BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.
Dated this the 28th day of June 2018
Filed on : 18-12-2015
PRESENT:
Shri. Cherian K. Kuriakose, President.
Shri. Sheen Jose, Member.
Smt. Beena Kumari V.K. Member.
CC.No.828/2015
Between
Jose Jacob, : Complainant
S/o. P.T. Jacob (Late), (By Adv. C.A. Majeed,
42/1501 B, “Jacobs”, Mariyakutty John Road, C.A. Majeed Associates,Advocates
Kochi-682 018. & Notaries, Ernakulam-682 018)
Vs
1. M/s. Volkswagen Group Sales : Opposite parties
India Pvt. Ltd., 4th Floor, (1st o.pby Adv. Azeem Mohammed,
Silver Utopia, Cardinal Gracious Alappuzha)
Road, Chakala, Andheri East,
Mumbai-400 099,
rep. by its Managing Director.
2. M/s. EVM Motors & Vehicles (2nd and 3rd o.p. By Adv. Vinay Menon V
(I) Pvt. Ltd., Bldg No. II/4-CD, 2nd Floor, Lilly's Arcade, Spice's
Opp. BTH Sarovaram, Street (N) End, Kaloor, Cochin-682018
Kannadikkadu, Maradu,
Kochi-682 304,
rep. by its Managing Director.
3. M/s. EVM Passenger
(I) Pvt. Ltd., Bldg. No. 3/276A,
Manjummel Jun.,
Edapally-Varapuzha road,
Cheranelloor, Kochi-682 034,
rep. by its Managing Director.
4. M/s. Bharati AXA General (4th O.P. By Adv. R. Ajit
Insurance Company Ltd., 1st Floor, Ferns Icon, Kumar Varma )
Survey No. 28 Next to Akme Ballet,
Doddanekundi, Off Outer Ring Road,
Bangalaore -560 037,
rep. by its Managing Director.
O R D E R
Cherian K. Kuriakose, President.
1. Complainant’s case
2. The complainant purchased a Volkswagon Vento car on 21-12-2013 and it was registered as KL-07-BZ -1823. The complainant as per the advice given by the dealer, the 2nd opposite party, opted for insurance cover provided by the opposite party No. 4, M/s. Bharathi Axa General Insurance Company . The insurance was periodically renewed. On 27-09-2015 at night the complainant and his family were travelling from Kachripady to Ernakulam South Railway Station . It was raining during that time and there was water logging on the road, however, as the water level was not very high, the complainant went ahead. While going through the road the vehicle started jerking and then stopped. The vehicle stopped in the middle of the road and the car to be put aside by pushing to clear the road. The car was there was pulled in to a truck and transported to the opposite party No. 3, service centre. On 29th September 2015 the complainant handed over all the documents required and a gave a write up of the facts. The complainant received an e-mail on 10-10-2015 asking permission of the complainant to dismantle and clean the engine and forwarded an e-mail communication of approval received by them from the insurance surveyor Mr. Varun.A, the complainant gave his approval on 16-10-2016 the complainant received an e-mail from the 3rd opposite party stating that for parts covered under insurance the complainant would be required to pay depreciation and for the parts not covered under insurance, the complainant would be required to pay the whole amount. On the ground that the surveyor has not confirmed the parts covered under the insurance. The complainant did not get any details regarding the estimate cost including price of the spare parts to be changed. The complainant thereafter caused to issue a legal notice to the opposite parties, without any response. The complainant therefore seeks a direction to the opposite parties to repair the vehicle at their own cost and to deliver the same to the complainant expeditiously in addition to the payment of damages and compensation to the tune of Rs. 4,00,000/-.
2. Notices were issued to the opposite parties who appeared and resisted the complaint by filing their respective versions. However, op1 did not file any version and they were set ex-parte.
3. The 2nd opposite party, filed a memo stating that they adopts the contentions taken by the 3rd opposite party.
4. The 3rd opposite party contended that neither the manufacturer nor the service centre would take up the responsibility to do the work caused at the risk of the consumer. The opposite parties were continuously making complaints . There was no deficiency in service on the part of the 3rd opposite party. The complainant did not give permission to carry out the work. The insurance company had given permission only to the extent of the policy cover, the policy covered damage in a normal policy without any add on facility . The complainant is not entitle to any reliefs .
5. The 4th opposite party insurance company contended that there was large quantity of water in the Cylinder head, exhaust with manifold injectors The opposite party did not have any liability to pay for all the spare parts as per the policy. The surveyor had assessed the loss payable by the opposite party in terms of the policy at Rs. 1,27,621/- only . the complainant had taken a policy which does not have a add on coverage of loss due to hydro-statical lock. No additional premium has given and no additional coverage has been extended. The repair estimate given was Rs. 7,63,630/- which is above the IDV of the vehicle Rs.7,46,900/-. Since the claim is an exaggerated amount the 4th opposite party cannot accept the same . the complaint is premature and without a cause of action. The complainant is not entitled to get any compensation. The complainant had not driven the vehicle at material time on 27-09-2015. He informed the 4th opposite party that vehicle was driven on 27-09-2015 at the relevant time by one Ms. Harsha George. The driver ventured to drive through a flooded road ignoring the caution of manufacturer not to drive through the flooded road and in violation of the terms and conditions of the policy. The water entered the cylinder head as the driver had ignored the caution given by the manufacturer which resulted in hydro static lock. The opposite party therefore seeks exoneration.
6. The complainant examined himself as PW1 and Exbts. A1 to A9 documents were marked . The opposite parties were examined as DW1 and DW2 and Exbts. B1 to B12 documents were marked.
7. Following issues were settled for consideration.
- Whether the complainant had proved that there was any deficiency in service on the part of the opposite parties as alleged in the complaint?
- Reliefs and costs.
8. Issue No. i. When PW1, the complainant was examined, he admitted that he was driving the car at the relevant time. He had given instruction to the service centre not to do any repairs which are not covered under the insurance. On 10-10-15 however, the opposite party service centre had requested permission from the complainant to open the engine and to get it cleaned. Such permission was given on 15-10-2015 by e-mail, However, the work not covered under the insurance were not permitted to be done.
9. The complainant did not mention in the complaint as to who was driving the vehicle at the relevant time. The complainant admitted that he did not take a specific policy covering the consequences of hydrostatic lock . The complainant admitted that he did not intimate the incident to the 4th opposite party, insurance company directly but the information was passed on through the 3rd opposite party. The complainant had given Exbt. B1 Claim Form. In Exbt. B1 it is stated that the vehicle fell into a pot hole and it was not restarting as the engine went off. In the Claim Form the complainant had written that the vehicle was driven by his wife, Smt. Harsha at the time of the incident. The complainant had also submitted the driving license of Smt. Harsha George along with the Claim Form. According to the complainant still vehicle is lying in the 3rd opposite party. When PW1 was examined before this Forum. He admitted that it was he who was driven the vehicle at the time of causing hydro static lock to the car. He also substantiated the matter stating that his wife was carrying pregnancy for 6 months at that time.
10. There is no dispute to the fact that the vehicle belong to the complainant and Exbt. A1 registration certificate shows that he is the registered owner . Exb. A2 shows that the vehicle was covered under the insurance of the 4th opposite party at the time of the incident and that he had paid a premium of Rs. 18,329/- including taxes. The schedule of premium would go to show that the car had complete coverage of own damage. However, there is a rider in the limitation clause that the vehicle should have been driven by duly licensed person. The complainant had 2 different cases with regard to the person who was driving the car at the time of accident. In the Claim Form his case was that his wife was driving the car, where as in the complaint he took a stand that it was he himself had driven the vehicle. Exbt. A5 would go to show that the complainant had submitted that the copy of driving license of Harsha George in order to claim the insurance benefits. In Exbt.. A6 advocate notice, there was no mentioning regarding the name of the driver. When the complainant was cross –examined as to how it happened to give the name of his wife as the driver of the car at the time of incident, the complainant answered that he was holding a duplicate license at that time and that is the reason why he submitted the license of his wife stating that she was driving the vehicle. As the complainant has no consistent case regarding the person, who was driving the vehicle at the time of incident , and in the absence of any evidence of an expert regarding the condition of the car, we find difficulty to hold that the3rd opposite party had committed any deficiency in service.
11. Contract of insurance is a contract in Uberrimae fiddei . The parties to the contract of insurance must express bonofides in their dealings and commitments. The complainant having admitted that his wife was plying the vehicle at the time of incident alleged, has now turned round to say that it was not his wife but the complainant himself was driving the car. The leaned counsel for the insurance company argued that the complainant had not approached the Forum with clean hands and that he had violated the contract of insurance by making false statement that his wife was driving the car as against the contention of the complainant in the Judicial Forum that it was he , who was driving the car at the time of incident pertaining to this case. We find merit in the contention raised by the Insuranc company and find the 1st issue against the complainant.
12. Issue No. ii. Having found issue No.i against the complainant we find that the complaint is liable to be dismissed and is accordingly dismissed.
Pronounced in the open Forum on this the 28th day of June 2018
Sd/-
Cherian K. Kuriakose, President.
Sd/-
Sheen Jose, Member.
Sd/-
Beena Kumari V.K., Member.
Forwarded/By Order,
Senior Superintendent.
Appendix
Complainant's Exhibits
Exbt. A1 : Certificate of registration
A2 : Copy of certificate dt. 23-12-2014
A3 : Copy of e-mail dt. 21-10-2015
A4 : Copy of letter dt. 06-11-2015
A5 : Copy of claim dt. 19-11-2015
A6 : Copy of letter dt. 20-11-2015
A7 : postal receipts
A8 : Copy of e-mail dt. 11-11-2013
A9 : Sales contract Forum
Opposite party's exhibits:
Exbt. B1 : True copy of Motor Insurance
claim form
B2 : True copy of repair order
dt. 28-09-2015
B3 : True copy of repair order
dt. 29-09-2015
B4 : Copy of estimate dt. 21-12-2013
B5 : Copy of estimate dt. 21-12-2013
B6 : True copy of owner's smanual
Depositions
PW1 : Jose Jacob
DW1 : Jibin Joy
Copy of order despatched on :
By Post: By Hand:
