Date of filing: 03.09.2009
Date of Order: 31.05.2022
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, VELLORE AT VELLORE DISTRICT
PRESENT:THIRU. A. MEENAKSHI SUNDARAM, B.A.B.L., PRESIDENT
THIRU. R. ASGHAR KHAN, B.Sc., B.L. MEMBER – I
SELVI. I. MARIAN RAJAM ANUGRAHA, M.B.A., MEMBER - II
TUESDAY THE 31st DAY OF MAY 2022
CONSUMER COMPLAINT NO. 29/2009
B. Kirubananda Rajan,
R/o. Old No. 4/36, New No. 360/11,
Bajanai Koil Street,
Thandalam Village, Navalpur,
Ranipet,
Vellore 632 403. …Complainant
-Vs-
M/s. ICICI Lombard General Insurance
Company Limited,
Rep. by its Authorized Officer,
No. 19 A, Priya Prasad Building,
2nd Floor, Officer Lane,
Krishna Nagar,
Vellore 632 001. …Opposite party
Counsel for complainant : Tmt. V.J. Nirmala
Counsel for opposite party : Thiru. S. Thulasimani Selvam
ORDER
THIRU. A. MEENAKSHI SUNDARAM, PRESIDENT,
This complaint has been filed under section 12 of Consumer Protection Act, 1986 to direct the opposite party to pay a sum of Rs.51,800/- towards complete over-hauling, replacement of fan and radiator assembly and to pay Rs.2,00,000/- as compensation towards mental agony and pain suffered by the complainant and also deficiency of service rendered by the opposite party and also to pay Rs.2,000/- towards cost of legal notice and to pay Rs.5,000/- towards cost of these proceedings.
1. The case of the complaint is briefly as follows:
The complainant had purchased a TATA Sumo Victa Car bearing Registration No.TN23 AV 9583 on 15.03.2007 and insured the same with the opposite party. The Insurance Policy Number is 3004/53957555/00/000. The period of insurance was from 29.04.2008 to 28.04.2009. The opposite party has a Branch office at Vellore. The complainant had purchased the said vehicle by availing vehicle loan from the ICICI bank by hypothecating the said vehicle. The car was used to pick up and drop of the employees of an Äviva IT Company. He used the said income for his livelihood. There was no other source of income. On 24.10.2008 while his car was being driven towards Ranipet a stone had hit his car. As a result his car’s radiator and fan leaf were damaged. Consequently the car also stopped running. The engine of the car was seized. The vehicle was not driven after the accident. On 26.10.2008, the vehicle was towed from Vellaigate to M/s.Vijay Sales Corporation, Vellore for thorough inspection and rectification. The towing charge Rs.2,000/- was paid. The complainant has intimated the accident to the opposite party on 28.10.2008 vide claim No.MOT 009287233. The surveyor of the opposite party visited the garage and inspected vehicle at M/s.Vijay Sales Corporation, Vellore. After thorough inspection, M/s. Vijay sales corporation gave an invoice for Rs.55,503/- for the complete engine over-hauling and for the replacement of radiator and fan assembly. Since, the vehicle was in urgent need for use of IT Company, the complainant himself had paid the entire repairing charges and had taken back the vehicle. He had incurred a sum of Rs.57,503/- towards towing and repairing charges. On 11.2.2009 the complainant wrote a letter to the opposite party along with bills paid by him for repairing and towing charges and requested the opposite party to reimburse of Rs.57,503/-. The opposite party gave a reply on 09.03.2009 rejecting the claim of complainant on the ground that “there was no external impact or damages to the engine” and hence repairing cost of engine seizure will not be considered in assessment”. The opposite party paid only Rs.5,703/- by way of Cheque No.426870 dated 13.03.2009. Since, the complainant had purchased the vehicle by availing the Vehicle loan from ICICI Bank, he has to repay the said loan by way of EMI. Being aggrieved by the unilateral and arbitrary decision of the opposite party, the complainant had issued a legal notice on 27.03.2009 to the opposite party calling upon them to reimburse of Rs.57,503/-, the cost incurred by the complainant for repairing the vehicle and to pay Rs.2,00,000/- (Rupees two lakhs only) as compensation towards mental agony. The opposite party neither replied to the legal notice nor reimburse the amount claimed by the complainant for repairing the vehicle. The conducts of the opposite party clearly amounts to negligence and deficiency in service on the part of the opposite party. Hence, this complaint.
2. Written version of opposite party is briefly as follows:
The complainant failed to refer the subject matter of the complaint for Arbitration proceedings in terms of the Policy. This opposite party has denied that the vehicle was not driven after the accident. It is also false to state that the damage caused to the engine was by overheat which caused the engine to stop. The complainant ought to have mentioned the exact place where the said alleged damage had happened. The complainant in his claim form dated 31.12.2008, claimed that accident was took place on 27.08.2008 at about 10.30 a.m. while his car was driven by his driver from Chennai to Ranipet on National High Way near Kaveripakkam, a stone in the road hit fan leaf and radiator were damaged. He did not notice it and continued to drive the vehicle. The temperature meter was also repaired. Because of overheat, the engine had stopped. The complainant has given two different dates regarding date of accident and it shows that the complainant has lodged a false claim. The complainant did not inform about the alleged accident immediately to the opposite party which would have enabled this opposite party to conduct spot survey. The averments in the complaint are after thoughts and invented by the complainant for the purpose of filing this complaint. There is no way or chance for stones from road side to lodge between fan leaf and radiator, as the automobile engine was designed to avoid such stones. The complainant is put to strict proof of the nature and extent of alleged damages. It is evident that after the alleged damage the vehicle was driven by its driver for a long distance and it is false to allege that the vehicle was not driven after the accident. The alleged towing bill dated 26.10.2008 itself is a false one created for the purpose of this claim. The driver of the complainant drove the car after the alleged damage. After elaborate survey of opposite party surveyor, he came to a conclusion that engine was stopped due to the said negligent act of the driver. There was no external impact or damages to engine. Based on the report of the surveyor this opposite party rightly rejected the claim of the complainant by their letter dated 9.3.2009. There is no deficiency in service on the part of the opposite party and they need not liable to pay any amount to the complainant..
3. Proof affidavit of complainant filed. Exhibits A-1 to A-14 were marked. Proof affidavit of opposite party filed. Exhibits B-1 to B-10 were marked. Written arguments on behalf of the complainant and opposite party were filed and oral arguments of both sides heard.
4. THE POINTS THAT ARISES FOR CONSIDERATION ARE:
1. Whether there is any deficiency in service on the part of the opposite
party?
2. Whether the complainant is entitled to reimbursement of the amount
incurred for repairing of the car?
3. To what other amounts is complainant entitled ?
5. POINT NOS.1&2: The case of the complainant is that he is the owner of TATA SUMO Victa car bearing Registration No.TN.23AV 9583. It is a commercial vehicle used for picking up and dropping of the IT employees. He has insured the said vehicle with opposite party for the period from 29.04.2008 to 28.04.2009. Copy of the insurance policy was marked as Exhibit A-4. On 24.10.2008 when his car was running towards Ranipet on NH, near Kaveripakkam a stone hit and lodged in the radiator assembly and as a result the entire radiator assembly got damaged. On noticing the same, the driver stopped the vehicle. The engine had stopped. Thereafter, he towed the vehicle from Vellaigate to M/s.Vijay Sales Corporation, Vellore for repair. He has paid Rs.2,000/- towards towing charges vide Exhibit A-7. He has intimated the said accident with the opposite party on 28.10.2008. Accordingly, the surveyor of the opposite party had inspected the vehicle on 30.10.2008 at M/s. Vijay Sales Corporation, Vellore and submitted a report on 5.3.2009 vide Exhibit B-9. The surveyor estimated the insurer’s liability as Rs.5702.77. The complainant has filed tax invoice from Vijay Sales corporation showing Rs.55,503/- as repairing charges vide Exhibit A-9. Since the vehicle was urgently needed for fleet services of the IT employees, he had paid, the entire service charges from his pocket and took back the Vehicle. On 11.02.2009 the complainant has made a claim of Rs.57,503/- with opposite party vide Exhibit A-11. The said claim was rejected in part by the opposite party by letter dated 09.03.2009 vide Exhibit A-12, but partly allowed the claim and sent a cheque for Rs.5703/-. The complainant received the same without any protest. The complainant has issued the legal notice dated 27.03.2009 calling upon the opposite party to pay a sum of Rs.2,00,000/- as compensation vide Exhibit A-14.
The opposite party categorically denied the allegation of the complainant as an utter falsehood and concocted story developed by the complainant for the purpose of filing this complainant. There is no truth in the complaint. The complainant has given two different dates regarding the accident. The opposite party has filed Exhibit B-9 surveyor report which shows insurer’s liability of Rs. 5702.77 only. Therefore they have followed the surveyor report and paid the sum of Rs.5702.77 to the complainant and same was received by the opposite party without any protest. Therefore the complainant cannot agitate the same once again. Further he has also contended that the terms of the policy should be read as it is. We cannot add or subtract something to the contract. The vehicle engine stopped from running because the complainant‘s driver continued to drove the vehicle without noticing the damage of the radiator assembly. When we go through the Exhibit B-7 and complainant, we find that the date of accident in the complaint it was mentioned as 24.10.2008 whereas in the claim form it was stated as 27.08.2008. Similarly, if the vehicle had been stopped after the stone hit the radiator assembly and damage would not have happened. The driver of the vehicle has not filed any affidavit explaining the accident. The possibility of overheat of the vehicle engine and as a result the engine getting stopped could have been avoided. There was a fault on the part of the driver of the vehicle.
The learned counsel for complainant to substantiate her contention has submitted the following Judgment;
HON’BLE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, TELANGANA,
In F.A.NO.286 OF 2017 AGAINST CC. NO.234 OF 2015
Reliance General Insurance Co., Ltd., and another
(Vs)
Muthyala Govind Reddy
Held that,
17) The other objection of the insurance company has been as spelt-out in the repudiation letter is that there was delay in submitting the claim form. It may be recalled that the incident of fire is said to have taken place on 25.02.2014 and the jurisdictional police has been informed on 04.03.2014 who conducted the panchanama which is Ex.A3. What is manifest from the above is that when the incident took place on 25.02.2014, the investigation in the matter commenced on 04.03.2014 Delay of 8 days in informing the police or the insurance company cannot be said to be so fatal as to deny the insured the benefits of the policy. It is no doubt true that if there was abnormal delay on the part of the insured in informing either the jurisdictional Police or the insurance company, the same can be taken as a ground by the insurance company for repudiating the claim but in the instant case, the delay of 8 days cannot be said to be in any way excessive so as to prevent the insured from claiming the benefit of insurance policy which he has taken by paying the premia of Rs.21,930/-.
6. The counsel for opposite party further argued that it is not possible for the engine to stop if it is not moved after the alleged accident. The counsel for the opposite party submits that in view of the clause 5 of the insurance policy, consequential damages are not covered and hence the claim of the complainant is not tenable. In support of his contention he has produced an authority reported in III (2009) CPJ 194 (NC) Nand Kishore Jaiswal vs. National Insurance Co. Ltd. which states “it is a well settled law that surveyor’s report is to be given credence unless there is evidence against the assessment made by the surveyor”.
It is an admitted fact that the vehicle is in question bearing Reg No. TN23 AV 9583 was insured for the period from 29.04.2008 to 28.04.2009 vide Policy No. 3004/53957555/00/000 for sum of Rs.4,64,975/- and met with an accident. The surveyor of the opposite party also did not dispute that the damage to the vehicle was caused due to accident and as a result the engine got stopped. But surveyor has disallowed the claim only on the ground that consequential damages not covered as per the condition of the policy. The only issue to be decided by this commission is
Whether the damaged caused to the engine is consequential or not?
To decide the above issue we have perused the following decision passed by the Hon’ble State Consumer Disputes Reddressal Commission and National Consumer Disputes Reddressal Commission.
- The Hon’ble State Consumer Disputes Redressal Commission, Hyderabad,
In CC. No. 6 of 2012,
Vasireddy S.V. Prasad
(Vs)
Merecdes Benz India Pvt Ltd., and Others
held that,
“Thus, it can be said that the damage caused to the vehicle is not consequential and it occurred as a result of an accident occurred by external means which is covered by the terms of the insurance policy. The Complainant is entitled for the amount required for repairing of the vehicle”.
2. Hon’ble State consumer Disputes Redressal Commission, Chandigarh,
In F.A. No. 607 of 2015,
Iffco Tokio General Insurance Co. Ltd., and others
(Vs.)
M/s Kisco Forgings and others
held that,
“ In order to decide the controversy in hand, we are of the view that case of the appellants does not fall under the exclusion clause more so when there is no expert report produced on the record by the Ops to the effect that consequential loss to the engine was exclusively due to the fact, that complainant’s car had been driven for more than 2-3 kilometers after the above incident. The case of the complainant is that car suddenly stopped after running more than 500 meters from the speed breakers. As such, we do not find it to be intentional act and carelessness on the part of driver of the vehicle to drive the car without stopping it, as contended by the appellants. The surveyor appointed by the insurance company has recommended the payment of Rs.19,722/- only whereas, he has left out the spare parts of engine, considering them to be due to consequential loss only without giving reasons, how it is consequential loss, whereas, the repair bill was of Rs.5,25,830/- only”.
- Hon’ble State consumer Disputes Redressal Commission, Chandigarh,
In First Appeal No.34 of 2012,
Tata AIG General Insurance Company Limited
(Vs)
M/s. Ayushveda Informatics (India) Pvt. Ltd., and Others
held that,
“There was, therefore, no negligence on the part of the driver of the vehicle and the damage to the engine cannot be said to be a consequential damage due to the negligence of the driver of the vehicle. In fact, all the precautions appear to have been taken by the driver while driving the vehicle and, therefore, the claim could not be denied by the OP / appellant”.
- Hon’ble State Consumer Disputes Redressal Commission, Chandigarh,
In Appeal case No. 830 of 2007,
Kanta Dhir
(Vs.)
M/s The Manager, ICICI Lombard & Anr.,
It was held that,
“If a person is going in the car and all of sudden rain starts and the water accumulates in the intersection and enters the engine or engine is seized then it is not fault of the insured and the insurer is liable to reimburse the claim.
This order was followed in
- Hon’ble State consumer Disputes Redressal Commission, Chandigarh,
In Appeal case No. 428 of 2009
New India Assurance Co. Ltd.
(Vs)
V.K. Bawa
- The Hon’ble State Consumer Disputes Redressal Commission,
Punjab,
In First Appeal No. 1273 of 2013,
M/s. Abode Realtors,
(Vs)
New India Assurance Co. Ltd., and another.
held that,
“There are number of judgments on this point that normally surveyor report be admitted unless contrary is proved. The Ops did not file any objection against this report and no new Surveyor was appointed after receiving this Surveyor report. Therefore, it was required to be accepted. In those circumstances, the repudiation by the Ops of a scaled down loss should have been accepted. In similar circumstances, this Commission in the Judgment cited II(2011) CPJ 577 “National Insurance Company versus Manjit Sharma”. In that case, there was no report that the damage was not due to the accident but due to the negligence of the respondent. Then the Hon’ble National Commission in its judgment reported in II(2012) CPJ 163 (NC) “Vinit Poonia versus New India Assurance Co. Ltd. & Anr”. In that case, the Surveyor held that the accident was caused due to mechanical failure as engine oil for sufficient time cannot be accepted as he never opened engine assembly. Vehicle met with an accident and on account of impact, many parts of the body of the vehicle were damaged and possibly engine oil leaked out at the spot and accordingly, the claim was allowed. He has referred to another judgment of the Hon’ble National Commission reported in 2013(4) CLT 277 “Adarsh Chemicals & Fertilizers Ltd. & others versus United India Insurance Company Ltd”. In this case, Ops contended that the Surveyor report should not be relied upon as it was guideless. In FIRST APPEAL NO. 1273 of 2013 case it was so then the Ops should have appointed another Surveyor. Similarly, in this case, the Surveyor had pointed out that there was no negligence on the part of the Driver, it was just to be an error of judgment, therefore, no violation of any terms and conditions of the policy”.
13. Whereas the counsel for the Ops has relied upon the judgment 2002(3) CPJ (N.C.) 244 “Balendra Gautam versus Oriental Insurance Co. Ltd. In that case, after leakage of the oil, the driver of the vehicle continued to drive the vehicle recklessly causing ceasure of the engine. However, each case is to be judged on the facts of the case. In the present case, as per the version on the record, it has also been accepted by the Surveyor appointed by the Ops that immediately there was no leakage, there was just a simple hole, the vehicle had run upto the house of the complainant but in the next morning, it did not start. In those circumstances, it cannot be said to be consequential loss”.
In the recent case
- The Hon’ble Supreme Court of India
In Civil Appeal No. 4071 of 2022, Gurmel Singh
(Vs)
Branch Manager, National Insurance Co. Ltd.
Held that,
“Once, there was a valid insurance on payment of huge sum by way of premium and the Truck was stolen, the insurance company ought not to have become too technical and ought not to have refused to settle the claim on non-submission of the duplicate certified copy of certificate of registration, which the appellant could not produce due to the circumstances beyond his control. In many cases, it is found that the insurance companies are refusing the claim on flimsy grounds and/or technical grounds. While settling the claims, the insurance company should not be too technical and ask for the documents, which the insured is not in a position to produce due to circumstances beyond his control”.
7. On perusal of the aforesaid judgment and discussion we come to the conclusion that though the surveyor disallowed the claim on the ground of the consequential loss he has not assigned any reasons for that. He has simply stated that “I have not allowed the consequential damages as per the condition policy”. It is to be proved by the opposite party that the accident was due to negligence of driver. A stone hit the radiator is not disputed. But the engine did not stop on the spot. The driver would have noticed a only going further till the engine stopped. Hence there is no negligence on the part of the driver.
The relevant portion of the policy reproduced hereunder:
“ 2. The company shall not be liable to make any payment in respect of
- Consequential loss, depreciation, wear and tear, mechanical or electrical breakdown, failure or breakages nor for damage caused by overloading or strain of the insured vehicle nor for loss of or damage to accessories by burglary, house braking or theft unless such insured vehicle is stolen at the same time.
5. The insured shall take all reasonable steps to safeguard the vehicle from loss or damage ………………”
Based on the above examination, we are of the view that the stopped of the engine in the present case may not be seen as a consequential damage, rather it may be considered as damage due to direct impact of the accident caused by hitting of a stone to the Radiator assembly of the vehicle. However, it is also seen that the loss could have been minimized, if the driver had stopped the vehicle when he realized the a stone had hit the car. Thus, there is some negligence on the part of the driver. Hence, in the circumstances of the case, we deem it appropriate to allow the claim at 50% of the actual claim of repair.
In view of the above discussion, after having heard the counsel of both sides and perusing the documents and going through the judgments quoted on the subject we came to conclusion that there is a deficiency in service on the part of the opposite party. Hence the opposite party is hereby directed to reimburse 50% amount paid by the complainant for repairing his vehicle i.e Rs.25,900/- (Rupees Twenty Five Thousand and Nine Hundred Only) with interest at 9% p.a. from 10.02.2009. These points 1 and 2 are decided in favour of the complainant.
8. Point No.3: As we have decided that the point Nos.1 and 2 that there is a deficiency in service on the part of the opposite party. We hereby direct to the opposite party to reimbursement of claim charges 50% of amount paid by the complainant for repairing his vehicle i.e Rs.25,900/- (Rupees Twenty Five Thousand and Nine Hundred Only) with interest at 9% p.a. from 10.02.2009 to till the date of realization and also to pay a sum of Rs.25,000/- (Rupees Twenty Five Thousand Only) as compensation for deficiency in service and mental agony . This point No.3 is also answered accordingly.
9. In the result, this complaint is partly allowed. The opposite party is hereby directed to reimbursement of claim charges 50% of amount paid by the complainant for repairing his vehicle i.e Rs.25,900/- (Rupees Twenty Five Thousand and Nine Hundred Only) with interest at 9% p.a. from 10.02.2009 to till the date of realization and also to pay a sum of Rs.25,000/- (Rupees Twenty Five Thousand Only) as compensation for deficiency in service and mental agony and also to pay a sum of Rs.5000/- (Rupees Five Thousand Only) towards cost of this proceedings, within one month from the date of this order, failing which the above compensation amount shall carry interest at the rate of 9% per annum from the date of order to till the date of realization.
Dictated to the steno-typist transcribed and typed by her corrected and pronounced by us in the open Commission on this the 31st May, 2022.
Sd/- Sd/- Sd/-
MEMBER –I MEMBER – II PRESIDENT
LIST OF COMPLAINANT SIDE DOCUMENTS:
EX.A1- 15.03.2007 - Copy of form of Certificate of registration issued by
Assistant Registering Authority, Ranipet.
Ex.A2 - 22.03.2007 - Copy of permit in respect of a particular contact carriage
issued by the Secretary, Regional Transport Authority,
Vellore
Ex.A3 - Copy of tax card issued by Transport Department
Ex.A4 - Copy of Certificate Cum Policy Schedule issued by the
Opposite party
Ex.A5 - Copy of repayment schedule issued by the opposite
party
Ex.A6 - Copy of driving licence of Mr. Gopi sathyarajan
Ex.A7- 26.10.2008 - Copy of bill No. 108 given by M/s. Rajans Transport,
Ranipet.
Ex.A8 -31.12.2008 - Copy of claim form submitted to opposite party
Ex.A9 -10.02.2009 - Copy of tax invoice given by M/s. Vijai Sales
Corporation, Vellore
Ex.A10-10.02.2009 - Copy of receipt issued by M/s. Vijai Sales
Corporation, Vellore
Ex.A11-11.02.2009 - Copy of requisition letter by the complainant
Ex.A12 -09.02.2009 - Copy of rejection of claim by the opposite party
Ex.A13 -13.03.2009 - Copy of cheque for Rs.5703/- by the opposite party
Ex.A14 -27.03.2009 - Copy of legal notice
LIST OF OPPOSITE PARTY SIDE DOCUEMNTS:
Ex.B1 - Copy of claim
Ex.B2 – 24.12.2008 - Copy of letter sent by opposite party to complainant
Ex.B3 – 01.01.2009 - Copy of letter sent by opposite party to complainant
Ex.B4 – 23.01.2009 - Copy of letter sent by opposite party to complainant
Ex.B5 – 28.01.2009 - Copy of letter sent by opposite party to complainant
Ex.B6 – 03.02.2009 - Copy of letter sent by opposite party to complainant
Ex.B7 – 11.02.2009 - Copy of letter sent by the complainant to opposite
party
Ex.B8 – 09.03.2009 - Copy of letter sent by opposite party to complainant
Ex.B9 - 05.03.2009 - Copy of Surveyor’s Report
Ex.B10 - Copy of Policy with conditions
Sd/- Sd/- Sd/-
MEMBER –I MEMBER – II PRESIDENT
