Delhi

New Delhi

CC/170/2014

Mr. Ashok Kr Singh - Complainant(s)

Versus

M/S. Future General Insurance India - Opp.Party(s)

30 Jan 2023

ORDER

 

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-VI

(NEW DELHI), ‘M’ BLOCK, 1^STFLOOR, VIKAS BHAWAN,

I.P.ESTATE, NEW DELHI-110002.

Case No.CC-170/2014

IN THE MATTER OF:

Sh. Ashok Kumar Singh (Advocate)

S/o Shri Suraj Pal Singh,

Bungalow No. 16, 2^nd Floor,

G Block, Saket, New Delhi - 110017                                     

...Complainant

VERSUS

 

1. Future Generali India Insurance Co. Lt.

Shop No. 26, Kailash Building,

Kasturba Gandhi Marg, Connaught Place,

New Delhi – 110001.

 

2. Sh. Mukesh Kumar Agarwal

731, Sector-9,

Faridabad – 121005.                 

...Opposite Parties

 

Corum:

 

Ms. Poonam Chaudhry, President

Shri Bariq Ahmad, Member

Shri Shekhar Chandra, Member

 

                                               Date of Institution: 26.02.2014

                                                                                         Date of  Order:        30.01.2023

 

ORDER

 

 Shekhar Chandra, Member:

Succinctly put, the facts leading to filing of the present complaint are as under:

1. The Complainant is the holder of Policy No. 2012-V2039763-FPV issued by Opposite Party No.1 for the period of 24.10.2012 to 23.10.2013 for Honda Civic Car No. DL 2FHQ 004. On 21.07.2013, the Complainant was going from Connaught Place to Panchkuian Road in the aforesaid car. It was raining heavily and there was a huge traffic jam at the Panchkuian Road Red Light. There was water logging on the road and suddenly water level increased and entered in the Complainant’s car. The Complainant observed that due to heavy rains and water logging the vehicle of the Complainant had stopped working. The car was then pushed till the end of the Panchkuian Road by the Complainant & other accompanying him and it was left stationed there. Finally the car was towed to Southend Honda Workshop,  Badarpur, (hereinafter referred to as the “Workshop”) on a complaint by the Complainant.
2. Intimation was given to the Insurance Company/Opposite Party No.1 in this regard. Accordingly, one surveyor was appointed, but later on, another surveyor i.e., Opposite Party No.2 was deputed by Opposite Party No. 1 for survey and assessment of loss sustained by the Complainant’s vehicle. The Complainant duly completed all the formalities and submitted the required documents. Survey of the vehicle was carried out at the Workshop by the opposite party No. 2.
3. Through his email dated 26.07.2013 the Opposite Party No.2 informed about the inspection and assessment carried out by him to the Workshop where the car was stationed and he requested the Workshop to start the work in the vehicle of flushing and cleaning of the engine. The Workshop was also requested to provide the estimate.
4.  The Complainant received a communication dated 27.07.2013 from Opposite Party No.2 wherein it was informed that as per the policy only flushing and cleaning of engine was payable. Further, the Opposite Party No. 2 vide mail 29.07.2013 further informed to the Complainant that as per the terms, conditions and exceptions of the Standard Motor Package policy, the damage directly attributed due to water are covered to the extent of cleaning, opening and refitting of parts and if water has entered in the engine then flushing of the same. Any other loss or damage to the internal parts of the engine or block, which might have been damaged are excluded in the policy and the liability of Opposite Party No. 1 is restricted upto the flushing of engine and cleaning of vehicle only. However, no specific Clause was mentioned in the email.
5. The Complainant alleges that the Opposite Party No. 2 without even awaiting for the result of flushing and cleaning of the engine, which had been approved by him to the Workshop, assumed and arrived to the conclusion that the engine could not be impacted by coming into contact with water and any damage to it can be attributed to either mechanical failure or efforts to start the engine when it is contact with water. Thus, Complainant submits that this attitude of Opposite Party No. 2 clearly manifests a biased and pre-determined approach, in favour of Opposite Party No. 1 and against the Complainant.
6. The Workshop vide their mail dated 01.08.2013 informed the Opposite Party No. 1 that though flushing and cleaning of engine was done but the engine was not starting and as such, sought approval of Opposite Party No. 1 to dismantle the engine the engine to inspect the damage.
7. The Complainant informed to Opposite Party No. 1 and the Opposite Party No. 2 that it would be in the interest of all if Opposite Party No. 2 to re-inspect the vehicle to confirm as to whether the work as directed has been carried out or not and to give further instructions. But the Opposite Party No. 1 called upon the Workshop to seek approval to dismantle the engine from “insured” i.e., the Complainant.
8. The Complainant further submits that since the work of repair of car was getting delayed on account of negligence of both the Opposite Parties, the Complainant in view of mail of Opposite Party No. 1 asked the workshop to go ahead with the work including to dismantle the engine of the car through his email dated 01.08.2013 and 03.08.2013.
9. Further through his  email dated 03.08.2013, the Complainant requested the Opposite Party No. 2 to apprise him of the terms and conditions of the policy which permit only flushing and cleaning of the engine as stated by him in his letter dated 27.07.2013 and also any term of SLA 30512 of the regulation framed for surveyors under Insurance Act, 1938 and Insurance Regulatory and Development Authority Act, 1999, wherein he has been also empowered to give opinion and decision as conveyed vide mail dated 30.07.2013, besides giving survey report. But there was no response to it.
10.  That an estimate of the repair was sent by the workshop on 08.08.2013 which was immediately sent by the Complainant to both Opposite Party No. 1 and 2 for their perusal, and to ensure correct billing at their end, but there was again no response from the Opposite Parties.
11. Another notice was given on behalf of the Complainant to the Opposite Parties to disclose and provide a true attested copy of all the mails, documents, correspondence etc. exchanged between the Opposite Parties in respect of the insured vehicle. However, no document was sent by either or the Opposite Parties knowing well that they would disclose the conspiracy between the Opposite Party No. 1 and 2 to defeat the claims of the Complainant. Copy of notice dated 21.09.2013 is annexed as Annexure C-13.
12. On the contrary, vide letter dated 23.09.2013 the Complainant was informed by Opposite Party No. 1 that his claim has been closed as “nil claim” on ground of non-compliance of documents. It was stated that payment receipt and original repair invoice was not given. It is interesting to note that the invoice was long back given to Opposite Party No. 2 by the Workshop, and only on the basis of that further action was to be taken by him. This letter appears to be issued hastily by Opposite Party No. 1 as a counter to the notices issued for and on behalf of the Complainant.
13. Since there was no response from Opposite Parties, the Complainant made the payment of the invoice of Rs.1,52,741/- vide cheque dated 30.09.2013. Beside this he had also made payment of Rs.2000/- in cash for towing of the car by the crane owner/operator. Copy of invoice, cheque receipt and crane payment receipt are annexed as Annexure C-15 (colly).
14. The Complainant through his email dated 05.10.2013 informed the  Opposite Party No. 1 and No. 2 and again called upon them to comply with the notices. It is alleged that there was no response to it.
15. The Complainant further submits that to his utter surprise, vide communication dated 07.10.2013, Opposite Party No. 2 requested the Complainant to send the repair bill and payment receipt in original. The Complainant alleges that this is appears to have been issued to cover up the lapses of Opposite Party No. 1, who, without making such request had, vide letter dated 23.09.2013, closed the claim of the Complainant as “nil claim”. Again through comminucation dated 08.10.2013, the Opposite Party No. 1 asked the Complainant to submit original repair invoice and payment receipt to process his claim. It was informed that in absence of the same  his claim will be closed as “no claim”.  The Complainant states that the fact of the matter is that the Workshop had already sent the invoice to Opposite Party No. 2 vide mail dated 09.10.2013. However, the Complainant again sent the certified copies of the receipt and invoice.
16. That the Complainant through his Counsel again called upon the Opposite Parties to give the documents as mentioned in the notices served earlier vide mail dated 24.10.2013, but to no avail. The Complainant states that the Opposite Parties did not deliver the copies of documents as it would have disclosed that Opposite Party No. 2 had advised the Opposite Party No. 1 to make the payment as per invoice of the Workshop, but in furtherance of the conspiracy between officers of Opposite Party No. 1 and Opposite Party No. 2, changed the report.
17. Vide legal notice dated 02.12.2013, the Complainant called upon the Opposite Parties to jointly as well as severally pay to the Complainant an amount of Rs.3,54,721/- together with interest accrued thereon @18% per annum w.e.f. 30.09.2013 till realization and Rs.21,000/- as charges and expenses of the aforementioned legal notice, within seven days of the receipt thereof, failing which the Complainant would be compelled to institute proceedings against the Opposite Parties, for getting the needful done, as advised under law, at the cost, risk and responsibility of the Opposite Parties. However, there was no reply to the said notice.
18. Thus the present Complaint before this Commission with the prayer to order the Opposite Party No. 1 to pay Rs.1,54,721/- to the Complainant being the amount paid by him to the workshop towards the repairs and towing of his car.  Further it is prayed to grant compensation of Rs. 1,00,000/- for the professional loss incurred by the Complainant; Rs. 1,00,000/-  as compensation for the hardship, harassment and mental agony; and award interest on the total aforesaid amount i.e. Rs.3,54,721/- @18% per annum w.e.f. date of payment to workshop i.e. 30.09.2013 till its realization from the Opposite Parties.
19. In reply to the present Complaint, the Opposite Party submits that the main grievance of the complainant against the Opposite Party is that it did not pay the amount of Rs.1,54,721/- to the complainant which the complainant had paid to the workshop towards the repairs and towing of the insured vehicle. It is further submitted by the Opposite Party that the vehicle was insured with the Opposite Party subject to certain terms/conditions and exclusions. The Condition shown by the Opposite party is reproduced below:-

 

               CONDITION

This Policy and the Schedule shall be read together and any word or expression to which a specific meaning has been attached in any part of this Policy or of the Schedule shall bear the same meaning wherever it may appear.

1. Notice shall be given in writing to the Company immediately upon the occurrence of any accidental loss or damage in the event of any claim and thereafter the insured shall give all such information and assistance as the Company shall require. Every letter claim writ summons and/or process or copy of thereof shall be forwarded to the Company immediately on receipt by the insured. Notice shall also be given in writing to the Company immediately the insured shall have knowledge of any impending prosecution, inquest or fatal inquiry in respect of any occurrence which may give rise to a claim under this Policy. In case of theft or criminal act which may be the subject of a claim under this Policy the insured shall give immediately notice to the police and co-operate with the Company in securing the conviction of the offender.”

 

20. Learned counsel for the Opposite Party submits that the alleged incident took place on 21.07.2013 whereas the answering Opposite Party was informed about the same on 26.07.2013 i.e. after 5 days of the alleged incident which clearly is against the mandate of the policy. However, the Opposite Party appointed a licensed surveyor for the inspection of the insured vehicle who submitted his report dated 12.09.2013 with the following observations:-

• The date of accident as per claim form is 21.07.2013 and claim was intimated on 26.07.2013 so there is delay in intimation about 5 days from the insured. Copy of intimation sheet is Annexure OP1/2.
• As per claim form the cause of incident/accident as narrated by the complainant in the claim form is “it was raining very heavily, there was traffic jam total at Panchkuian Red Light it stopped car, suddenly water flooded and entered in my car, I immediately stopped car.” Copy of claim form is Annexure OP1/3.
• So as per cause of accident it was clear that there was no any external impact on any parts/engine of the vehicle. However, it was observed that the air clear was wet and its oil was having some water. The repairer was asked to rotate the engine manually but it was not rotating. So repairer was asked on same day for flushing & cleaning of engine to remove the water from it.
• On 08.08.2013, the engine was dismantled and it was observed by surveyor that one connecting rod got broken and other one is bent. There were some securing marks on the piston also. On further inspection of the engine it was further observed as under that:-

1. There was no external impact either to the vehicle or to the engine from outside.
2. Engine cannot be impacted merely coming into contact with water and damage, if any, can be attributed to either mechanical failure or trying to run the engine when it is still in contact with the water.
3. When vehicle stops on the water logged road, efforts to start the vehicle is the well known source to cause damages to engine.
4. The obvious course is known to be not to try to start the engine, without total cleaning the water from inside engine and inspection by an expert technician, thus your extension of damages to the engine if any cannot be considered as per condition no. 4 of policy contract.”

 

21. The Opposite Party further submits that after making aforesaid observations, the surveyor recommended the claim settlement as per the assessment made by him and that the same was subject to the final approval of the answering Opposite Party.
22. Learned Counsel for the Opposite Party has also drawn our attention to Clause 4 of the Condition governing the insurance policy which reads as under:-

“The insured shall take all reasonable steps to safeguard the vehicle from loss or damage and to maintain it in efficient condition and the Company shall have at all times free and full access to examine the vehicle or any part thereof or any driver or employee of the insured. In the event of any accident or breakdown the vehicle shall not be left unattended without proper precautions being taken to prevent further damage or loss and if the vehicle be driven before the necessary repairs are effected any extension of the damage or any further damage to the vehicle shall be entirely at the insured’s own risk.”

 

23. Thus the arguments of the learned counsel for the Opposite Party is that in view of the facts and circumstances, the liability of the Opposite Party was restricted upto flushing of engine and the cleaning of vehicle. Accordingly the surveyor advised the workshop for the same. To strengthen his arguments, he has cited the following judgments:-

1. United India Insurance Co. Ltd. Vs. Harchand Rai Chandan Lal,  Civil Appeal No. 6277 of 2004 (SC)  
2. NEW INDIA ASSURANCE COMPANY LIMITED VS. PRADEEP KUMAR 2009 (6) SCALE 253     
3. SIKKA PAPERS LTD. VS. NATIONAL INSURANCE CO. LTD. & OTHERS MANU/SC/0907/2009
4. CHAMPALAL VERMA VS. ORIENTAL INSRUANCE CO. LTD., (2008) CPJ 93 (NC)

 

24. In the matter between United India Insurance Co. Ltd. Vs. Harchand Rai Chandan Lal, Civil Appeal No. 6277 of 2004, the Hon’ble Supreme Court has held that ‘it is settled law that terms of the policy shall govern the contract between the parties, they have to abide by the definition given therein and all those expressions appearing in the policy should be interpreted with reference to the terms of policy and not with reference to the definition given in other laws. It is a matter of contract and in terms of the contract of insurance with their eyes wide open, they cannot rely on definition given in other enactment. Their Lordships further observed that it is possible that an insured may sustain loss in technical terms of the criminal law, but no relief can be given to him unless his case is covered by the terms of the policy. It is not open to interpret the expression appearing in policy terms of common law; but it has to given meaning to the expression as defined in the policy’.
25. In the case of New India Assurance Company Ltd. Vs. Pradeep Kumar, 2009 (6) SCALE-253, the Hon’ble Apex Court has held that ‘the approved surveyor’s report may be basis or foundation for settlement of a claim by the insurer in respect of the loss suffered by the insured but surely such report is neither binding upon the insurer nor insured’.
26. In the matter between the Sikka Papers Ltd. Vs. National Insurance Company Ltd. and others – MANU/SC /0907/2009, it has been held that surveyor’s report is not the last word but then there must be legitimate reasons for departing from such report. And in the matter between in Champalal Verma Vs. Oriental Insurance Company Ltd., (2008) CPJ 93 (NC), it has been held by the Hon’ble National Commission that the report of the surveyor has to be given due weightage and this Commission cannot go into the question of quantum dispute as it will involve a detailed investigation, which cannot be dealt in the summary proceedings as stipulated under the Consumer Protection Act, 1986.
27. Thus to sum up the arguments of the Opposite Party, the Opposite Party has mainly put forth the following four points for rejection of the claim of the Complainant:-

1. The complainant is bound by the clauses and conditions imposed in the policy;
2. There was delay of five days in informing the Insurance Company/Opposite Party thus it violates the term of the Policy which prescribes the word ‘immediate’ for lodging any complaint;
3. All reasonable steps to safeguard the vehicle  from loss or damage not taken by the complainant; and
4. The Surveyor’s report or findings cannot be assailed and it should be treated as final verdict as he being the technical expert.

28. In rebuttal, the learned counsel for the complainant submits that the arguments of the opposite party are not sustainable and stands demolished on the well established principles and law laid down by the Hon’ble Apex Court.  He submits that there is no express provision in the Policy under which the liability of the complainant is limited to flushing and cleaning of engine of vehicle. Therefore, in the absence of any such specific provision, the general categories of loss or damage to the insured vehicle would apply which would be covered fairly under Paragraph (v) of the Insurance Policy.
29. As regard the second point of delay, the complainant states if this was the objection initially, the Opposite Party would not have acted upon the information given by the Complainant and it would not have appointed a Surveyor to examine the vehicle.  Counsel states that this plea is an afterthought to deny the claim.
30. In reply to arguments (iii) and (iv) above, the complainant submits that due care was taken by the complainant and there is no proof with the Opposite Party of any negligence on the part of the Complainant in handling the vehicle. Further regarding Surveyor’s report to be treated as final, the learned counsel for the Complainant submits that the Hon’ble Apex Court has already held that the Surveyor’s report cannot be a final word, therefore, there is no force in the arguments of the learned counsel for the Opposite Party.

We have heard the parties at length and gone through the record of the case. After hearing both the parties, we are of considered view that the Opposite Party is liable to pay the Complainant Rs. 1,54,721 (Rupees One Lakh Fifty Four Thousand Seven Hundred Twenty One) with interest @ 9% per annum from the date of filing of the complaint. The OP will also pay 50,000/- (Rupees Fifty Thousand) towards compensation for mental agony and Rs.25,000/- (Rupees Twenty Five Thousand) as cost of litigation, within the 30 days of receipts of the order, failing which Opposite Party will be liable to pay interest @ 15% per annum till realization.

The order be uploaded on the website of the Commission. Copy of order will provided to all parties free of cost.

File be consigned to record room with a copy of the order.

 

 

POONAM CHAUDHRY

(President)

 

 

 BARIQ AHMAD                                                                                SHEKHAR CHANDRA

(Member)                                                                                                          (Member)