ORDER

BY SRI.H.R.SRINIVAS, PRESIDENT.

This is the Complaint filed by the Complainant U/S Section 12 of Consumer Protection Act 1986, against the Opposite Party (herein referred in short as O.P) alleging the deficiency in service in repudiating the claim in respect of the fire accident in respect of his car and for reimbursement of Rs.1,25,192/- along with interest at 18% in respect of the repair charges for his car and Rs.3,00,000/- towards compensation for mental stress, agony, physical strain and for other reliefs as the Commission deems fit.

2.      The brief facts of the complaint are that;

The complainant is the owner of car bearing No.KA 09 MA 6722. The same is under the insurance with OP1 and 2 (auto secure private car package policy) which is valid from 22.07.2018 to 21.07.2019.

3.      It is contended that the son of the complainant by name S.S.Kishan, drove the car on 03.08.2019 and parked the same opposite to Hotel Empire in Central Street, Shivaji Nagar, at about 6.30 pm., and went to Prestige Atrium Hotel, to relieve himself.  When he came back after three minutes, he noticed the fire from the front right portion of the car and his smoke was coming from Beneath the car and the general public helped in extinguishing the fire by putting sand and the fire extinguisher also arrived to the spot to put off the fire.  Complainant subsequently lodged a complaint to the Commercial Street Police station within whose jurisdiction the fire accident took place and also intimated OP1 and 2 on the same day and requested them to examine the CCTV footage maintained by the Hotel Empire for analysis of the incident.  

4.      OP3 the vehicle repair service provider was requested to tow the vehicle for repair by paying the applicable charges.  OP3 has given estimate for the repairing the said vehicle. Mahajar was also drawn by the jurisdictional police.  Subsequently OP1 and 2 appointed surveyor who on his report has repudiated the claim unilaterally without providing any opportunity for him to explain, basing on the technical report of Direct Information System Services provided by OP3. As on date of the complaint, the said report was not at all given to him.  OP1 and 2 have intentionally repudiated the claim contending that;

I humbly submit that section I of the policy reads as under:

1. The company will indemnify the insured against the damage to the vehicle insured hereunder and/or its accessories whilst thereon:

(vi) By accidental external means:

2. The company shall not be liable to make any payment in respect of:

1. Consequential loss, depreciation, wear and tear, mechanical or electrical breakdown, failures or breakages,

I humbly submit that Condition No.4 of the policy 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 any extension of the damage or any further damage to the vehicle shall be entirely at the insured’s own risk”.

5.      It is contended that OP1 and 2 after inspecting the vehicle only has given the insurance policy by collecting Rs.21,200/- as premium.  The technical report has been created in collusion with OPs and it is a concocted one. The repudiation of the claim is a created and concocted one and not on examination of the CCTV footage maintained by the hotel wherein the entire incident was recorded clearly which discloses the cause of the fire to the car.  The statement given by the eye witnesses to the incident before the jurisdictional police has not at all been taken into consideration.  OP1 and 2 were haste and in urgency in repudiating the claim.  He had to pay Rs.1,25,192/- towards repair charges to the work shop.  The insurance policy clearly states that “auto secure private car package policy” endorses the terms exceptions conditions of policy wherein section 1 provides that the OP will indemnify the insured against the loss or damage to the vehicle insured in the event of fire, explosion, self ignition or lightening. Thus under this head, the complainant is entitled to and OP are liable to reimburse the expenses incurred towards repairing of the vehicle.  OP1 and 2 on the basis of the surveyor report has repudiated the claim of the complainant by quoting wrong provisions of the terms and conditions.  One Sanjeev representing OP3 has disowned the technical report of DISS.  In view of this OP1 and 2 have played mischief in repudiating the claim.  OPs have not at all ascertain the reason for the car catching the fire.  Complainant has not been given an opportunity by OP1 and 2 to put forth the facts before they took decision to repudiate the insurance claim which is nothing but act of deceiving and deficiency in service and unfair trade practice. They are trying to escape from their responsibility and liability. Hence the complaint.

6.      Upon the service of notice, OP 1 and 2 appeared before the Commission and filed version.  OP3 though served notice remained absent and hence placed exparte.

7.      In the version filed by OP1 and 2 it is contended that the complaint filed is false, frivolous, vexatious liable to be dismissed with exemplary cost.  It is further contended that the claim of the complainant was repudiated as per the terms and conditions of the policy based on the report of the surveyor. The complainant has violated the terms and conditions of the policy and the surveyor observed that the vehicle is found to have caught fire due to short circuit caused by tampering the wiring harness with reference to both the headlines and fog lights and fitted with higher wattage bulb as well as additional relays which were not original equipment fitment, not authorized by the manufacturer or authorized dealer to fix the same.  The said electrical fitments are unauthorized and against to the manufacturers specification.  Putting more than acceptable load on wiring under source of power under battery caused short circuit resulting more flow of current and heat generated by unwarranted load on the electrical wire and fuses which affected to operate optimally and lead thereby to fire.  In view of this proximate cause for the fire as ascertained is due to short circuit, tantamount the electrical brake down and thus cannot be construed and considered as damage caused by accidental external means. They are bound by Sec 1of the policy conditions.

8.      It is further submitted that on further verification of the repairer provided direct information system service, it was found that both the head lights and fog lamps unit were fitted with nongenuine high voltage  bulbs with additional relays and also the OE wiring barness of both headlight and fog lamp bulbs found tampered.  It seemed, before parking the vehicle at the incident spot, the vehicle was driven with the parking the vehicle at the incident spot, the vehicle driven with the parking and fog light were in ON position.  It is clear that RH side fog lamp bulb holder melted due to heat of high wattage non genuine fog lamp bulb (12V/90W) resulted in said damage at RH side of the vehicle.  Also noticed a small premature melting started at 1h side fog lamp assy.  Based on above finding, it is clearly confirmed that the cause of said damage was due to fitment of high wattage non genuine fog lamp and headlight bulbs by tampering the OE wiring barness by the unauthorized local garage”.  Based on the above they came to the conclusion that the damage was due to the fitment of high voltage none genuine fog lamp and head light bulb, by unauthorized local garage.  Hence they have rightly repudiated the claim of the complainant as per the conditions of the policy.  They have to act in accordance with the terms and conditions of the policy and on law of insurance.  When complainant has violated the terms and conditions of the policy as observed by the surveyor, complainant is not entitled for the claim made by him. Hence repudiation cannot be considered and termed as deficiency in service and the filing of the complaint constitutes gross abuse of the process of law for unlawful gain and by denying all the allegations made against them prayed the forum to dismiss the complaint.

9.      In order to prove the case, both the parties filed their affidavit evidence and produced documents. Arguments Heard. The following points arise for our consideration:-

1) Whether the complainant has proved deficiency in service on the part of the Opposite Parties?

2) Whether the complainant is entitled to the relief prayed for in the complaint?

10.   Our answers to the above points are:-

POINT NO.1:            In the Affirmative

POINT NO.2:            Partly in the affirmative.

                                For the following.

REASONS

11.   POINT No.1:-

   Perused the complaint, version, affidavit evidence and the documents produced by respective parties.  It is not in dispute that the complainant is the owner of vehicle No.KA 09 MA 6722 Skoda LMV white colour car.  It is also not in dispute that the son of the complainant drove the vehicle on that day and parked opposite to Hotel Empire in central street, Shivajinagar at about 6.30 pm., in order to relieve himself.  As soon as he came out of the hotel, he found that lot of people were assembled on the road and when he went there, he found that there was a fire on the right side head light of his car and people were trying to drouse the fire.  Smoke was also emanating on the left front side head light of the vehicle.  The police who was on the duty also tried to put off the fire and also he informed him that the car caught fire all of a sudden. Even the owner of the Empire Hotel in front of which the car was parked, was trying to put off the fire by using the fire extinguisher.  

12.       It is stated that the Police man on duty who took the photograph shared the same to him and the complainant made a claim for the reimbursement of the repair charges  of Rs.1,25,192/- which the OP the insurer repudiated the claim on the ground that after the investigation, it was found that the complainant has violated the terms and conditions of the policy and the surveyor observed in his report that the fire to the car was due to short circuit caused due to the tampering of wire, harness with respect to both head lights and fog lights and fitted with higher watted bulbs as well as additional relays which were not original equipments fitment thus not authorized by the manufacturer or authorized dealer and it is in the report that due to the unauthorized electrical fitments as against the manufacturers specification, put a more than acceptable load on the wiring and the source of power i.e., battery and the short circuit is caused due to resultant of enormous flow of current and heat generated by such unwarranted load on the electrical wiring and fuses which have adversely affected to operate optimally and lead thereby to fire.  The proximate cause for the said fire is ascertained due to the internal short circuit which amounts to electrical brake down and thus cannot be construed and considered as damage caused by external means and it comes under exclusion of the policy. It violates section 1 of the policy as u/s 1 of the policy;

1. The company will indemnify the insured against the damage to the vehicle insured hereunder and /or its accessories whilst thereon.  

IV. By accidental external means;

2. The company shall not be liable to make any payment in respect of:

1. Consequential loss, depreciation, wear and tear, mechanical or electrical break down, failures or breakages.

The OP has also relied on the surveyors report which is based on the verification of repairer provided by direct information system services(DISS) report states that as follows:

“Found both the head light and fog lamp units have been fitted with non-genuine high wattage bulbs with additional relays and also the OE wiring harness of both head light and fog lamp bulbs found tampered.  It seemed, before parking the vehicle at the incident spot, the vehicle driven with the parking and fog light were in ON position.  It is clear that RH side fog lamp bulb holder melted due to heat of high wattage non genuine fog lamp bulb (12V/90W) resulted in said damage at RH side of the vehicle. Also noticed a small premature melting started at 1h side fog lamp assy.  Based on above finding, it is clearly confirmed that the cause of said damage was due to fitment of high wattage non genuine fog lamp and headlight bulbs by tampering the OE wiring harness by the unauthorized local garage.”

        13.   On these grounds the claim of the complainant was rejected and repudiated which caused the complainant to file this complaint.

        14.   On perusing the report of the surveyor in this case, it becomes clear that the surveyor has not at all visited and inspected the vehicle personally and physically which caught fire to ascertain the truth regarding the contention as informed by the repairer that the extra fittings made was cause to the fire.

        15.   The surveyor appointed by the OP ought to have been impartial and should have inspected the vehicle physically and collected the materials which according to him are the extra fittings caused for the fire and  sent it for the lab for inspection to strengthen the reason given by him in the report regarding the extra fittings, extra wiring made to the car without any consent by the manufacturer or dealer and ought to have examined before the forum by producing the said materials to show that the complainant is at fault and manipulated the car which caused the fire accident.  

        16.   The very Mahajar drawn by the police, the statement given by the witnesses clearly shows that the head light of the car and the engine of the car were in a switch off position.  Even the photographs shows that the head lights were not in on position and even the fog lights.  Hence it cannot be held that by mere assumption of the surveyor on the assumed report of the repairer that the vehicle was fitted with extra high voltage bulbs relays, and the wires were altered.  Further one Sanjeev of TAFE Axis who is the repairer of the complainant’s car who according to the surveyor has given the report regarding the probable cause for the fire due to the extra installations has sent a letter to the surveyor stating that they have not got any clues as to the route cause for the fire incident.  Unfortunately they have not got any clues.  Inspite of striving hard to get the cause known, therefore the fire might have happened due to extraneous factors or might due to additional accessories.  As per the customer’s version, the vehicle was in a switch off position during the fire accident. There was no manufacturing defect causing fire accident.

        17.   When this is taken into consideration, along with the surveyors report, the cause of fire accident could not be ascertained either by the surveyor or by the repairer and under these circumstances, further investigation to support the stand of the insurance company ought to have been made, which is lacking in this case. Absolutely there is no evidence at all except the hear say evidence of the surveyor based on the non definitive report of the repairer which cannot be taken as gospel truth.  Further the photographs and as well as the police mahajar, clearly shows that the fog light and the head light were not in ON position and were switched off.  Even the engine of the car was switched off.  When such being the case, it is to be held that the fire caused to the motor car is an accidental fire.  Cause may be due to the overheating of the internal circuit and not due to the reasons stated by the surveyor that it is due to the extra equipments fitted to the car which caused short circuit, for which no evidence is adduced. Hence the rejection and repudiation of the claim amounts to deficiency in service and answer point No.1 in the Affirmative.

POINT NO.2

        18.   It is not in dispute that the complainant made a claim to the insurer Rs.1,25,192/- as the repair charges for reimbursement.  The bills have been produced for which OP has not at all objected.  Hence in view of our answers to Point No.1, OPs are bound to pay the said amount from the date of claim i.e., 04.08.2018 along with interest at 12% p.a.,

        19.   Complainant has sought Rs.3,00,000/- as compensation due to the act of the OP in rejecting his claim which forced him to suffer mentally, physically and financially.  Though there is no concrete evidence placed as to the exact sufferance, the very fact of repudiation of the claim of the complainant clearly puts the complainant under mental stress and strain besides financial implications.  Also he has to suffer physically due to the delay in making arrangements to pay the repair charges to the repairer in order to get the vehicle repaired as the insurance company refused to pay the amount. Hence considering all these and taking into circumstances, the above facts, we are of the opinion that if a sum of Rs.25,000/- towards damages and Rs.10,000/- towards litigation expenses, if OP 1 and 2 are ordered to pay to the complainant would meet the ends of justice.  

20.   OP has relied on two decisions and we have perused the same.

1.    Hon’ble Supreme Court of India - BASPA Organics Limited –vs- United India Insurance Co. Ltd., AIR online 2020 SC 204

2.    Hon’ble National Consumer Disputes Redressal Commission 2019(1) CPR 254, M/s TATA AIG General Insurance Co. Ltd., -vs- Ring Road Honda and another.

21.   Since there is no evidence regarding the complainant fitting extra equipments or materials in the car, the OP has failed to prove the violation of the breach of the conditions and terms of the insurance policy.  Hence the first decision relied on by the OP is not acceptable.  Further in respect of the second decision, there is no materials placed by OP that the complainant left the vehicle unattended without any preparation being taken to prevent further damage or loss to the vehicle and the vehicle was driven before necessary repairs were affected.  It is to be noted here that in a city like Bangalore, where the traffic is heavy, if one expects the vehicle to be in the place where the accident has taken place, there will be much chaos and there will be much traffic jam and the police has to clear the road for the free passage of the vehicles.  In this case, the police drew the Mahajar and then towed the said vehicle which involved in the fire accident to OP3 garage. Hence it cannot be held that the said vehicle was driven before necessary repairs are affected.  It can be understood that after the accident if the vehicle was driven and further damage is caused to the vehicle, then the insurance company cannot be held responsible for the further damages.  Under the circumstances, the second decision relied on by the OP is also not relevant and applicable to the facts and circumstances of the case and answer point No.2 partly in the affirmative and pass the following;

ORDER

1. Complaint is allowed in part with cost.
2. OP1 and 2 are directed to pay a sum of Rs.1,25,192/- along with interest at 12% p.a., from the date of claim i.e., 04.08.2018 to till the payment of the entire amount.
3. OP1 and 2 are further directed to pay Rs.25,000/- towards damages and Rs.10,000/- towards litigation expenses.
4. The OPs are further directed comply the above order within 30 days from the date of receipt of this order and submit the compliance report to this forum within 15 days thereafter.
5. Send a copy of this order to both parties free of cost.

Note:You are hereby directed to take back the extra copies of the Complaints/version, documents and records filed by you within one month from the date of receipt of this order.

(Dictated to the Stenographer over the computer, typed by him, corrected and then pronounced by us in the Open Forum on this 20^TH DAY OF APRIL 2021)

MEMBER                                PRESIDENT

ANNEXURES

1. Witness examined on behalf of the Complainant/s by way of affidavit:

Copies of Documents produced on behalf of Complainant/s:

Ex P1: Copy of the Registration Certificate

Ex P2: Copy of the Auto Secure Private Car package policy

Ex. P3: Copy of the Certificate of Insurance

Ex P4: Copy of the letter written by me to Inspector of Police Commercial Street

Ex P5: Copy of the estimate given TAFE

Es P6: Copies of the Mahazar drawn by police (4 in Nos.)

Ex P7: Copy of the Auto secure private car package police wordings

Ex P8: Copy of the email correspondences

Ex P9: Photographs (8 photos) to show the burning and drawsing of the car.

2. Witness examined on behalf of the Opposite party/s by way of affidavit:

RW-1: Sri.Krishna Sheernali

Copies of Documents produced on behalf of Opposite Party/s

Ex R1: Copy of the Policy with terms and conditions

Ex R2: Copy of the Survey Report

Ex R3: Copy of the direct Information Systems Service Report

Ex R4: Copies of the Repudiation letter (2 Nos.)

MEMBER                                        PRESIDENT