Punjab

Ludhiana

CC/15/399

Gulshan Kumar - Complainant(s)

Versus

National Ins.Co.ltd - Opp.Party(s)

V.k.Bhatia Adv.

20 Jan 2017

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA.

 

Consumer Complaint No.399 of 30.06.2015

Date of Decision          :   20.01.2017

 

Gulshan Kumar Prop. M/s Virsa Exclusive, E-495, Phase VI, Focal Point, Ludhiana.

….. Complainant

Versus 

1.National Insurance Company Limited, registered office at 3, Middleton Street, Kolkata, through its Chairman cum Managing Director.

2.The Regional Manager, National Insurance Company Limited, SCO 332-334, Sector 34-A, Chandigarh.

3.The Divisional Manager, National Insurance Company Limited, Bansal Complex, Divisional Office No.2, Dholewal Chowk, G.T.Road, Ludhiana.

4.Lalli Motors India Pvt. Ltd., G.T.Road, District Ludhiana, through its Director.

 

..…Opposite parties

 

 (COMPLAINT U/S 12 OF THE CONSUMER PROTECTION ACT, 1986)

 

QUORUM:

SH.G.K.DHIR, PRESIDENT

SH.PARAM JIT SINGH BEWLI, MEMBER

 

COUNSEL FOR THE PARTIES:

For Complainant                     :         Sh.Vijay Kumar Bhatia, Advocate      

For OP1 to OP3             :         Sh.M.S.Jassal, Advocate

For OP4                         :         Sh.M.S.Sethi, Advocate

 

PER G.K DHIR, PRESIDENT

 

1.                          Complainant, a registered owner of car bearing registration No.PB-10-CZ-1666 of Volkswagen make, model Polo, having chassis No.WVWH10609BT005240 and Engine No.19910, got same fully insured with OP1 to OP3 vide cover note No.GG31 401207396292 with validity period from 8.9.2012 to 7.9.2013 for a sum of Rs.5 lac through OP4, who is an agent of OP1 to OP3. This policy was Dep Cap policy. Premium of Rs.16,992/- was paid to Ops by the complainant. OP4 is authorized dealer and authorized service centre of Volkswagen cars. The said car met with an accident on 17.3.2013 because stone lying on the road struck with the car from below. As a result of this accident, the chamber of the car stood broken due to hitting against the stone. There was also a leakage of oil and due to that engine of the car stood seized. The car was standing between the road and thereafter, it was towed by the complainant with another Altis car bearing registration No.PB-10-DZ-1666. It was parked at the factory premises of the complainant because 17.03.2013 was Sunday. Complainant informed Ops on 18.3.2013 about this accident. One crane was sent by OP4 in the factory of the complainant and the car was taken to the workshop of OP4. Mr.Harish Kumar Loriya was appointed as surveyor for inspection of the car by OP1 to OP3. That surveyor after inspection assured the complainant that he will get the claim settled as per the loss suffered by the complainant. Complainant received letter dated 5.4.2013 sent by the surveyor, through which, it was intimated as if loss is not payable because the same does not fall under the policy condition. Through that letter, it was claimed that the policy condition does not cover the extension of loss/damage caused as a result of the negligence on the part of the owner while towing/transportation/loading/ unloading/handling of the damaged vehicle. OP4 at time first inspection by the surveyor assessed the loss at Rs.25,097/- without the knowledge of the complainant. Even the surveyor never confirmed about this assessment to the complainant. Two estimates of cost of repair were mentioned in the letter dated 5.4.2013(date wrongly mentioned as 5.4.2012). It is claimed that story regarding negligence of complainant is concocted and made inconnivance with Ops just for escaping liability. During period of both inspections of 20.3.2013 to 3.4.2013, the car remained with OP4. If there had been negligence on the part of complainant, then OP4 would have disclosed about the same to surveyor and the claim would have been rejected by the surveyor on first inspection. The estimate cost of repair stood increased from Rs.25,097/- to Rs.1,58,504.56P in the subsequent inspection. Complainant also received letter dated 29.4.2013 from OP3, wherein it was stated that Dep Cap policy was mistakenly allowed to the complainant. Through that letter, it was disclosed as if Dep Cap premium will be refunded to the complainant. It was disclosed that as car was towed down and as such, responsibility does not remain with the insurance company to indemnify the complainant. A person is not supposed to let his accidental car lying on the road because the same may cause hindrance to the public and even may prove detrimental to the safety of the car. Allegation of malafide intention on the part of OP1 to OP3 levelled by claiming that genuine claim of the complainant is tried to be averted. OP4 issued retail invoice dated 30.4.2013 for a sum of Rs.1,56,482/- after repair of the car of the complainant. OP1 to OP3 were under legal liability to pay this amount to OP4 because the vehicle was fully insured with them from ‘Bumper to Bumper’. By pleading deficiency in service on the part of Ops, prayer made for allowing the claim of complainant.

2.                In joint written statement filed by Op1 to OP3, it is pleaded interalia as if the complaint is not maintainable. Admittedly, the complainant had insured the vehicle in question for the period from 8.9.2012 to 7.9.2013 for a sum of Rs.5 lac with OP3. Complainant gave intimation to OP3 on 18.3.2013 that insured car had met with an accident because of stone lying on the road struck against the car from below. OP3 deputed Mr.Harsh Kumar Laroiya, Mechanical Engineer as surveyor and loss assessor on 25.3.2013. The said surveyor visited the spot and after inspection, submitted his interim report under his signature on 25.3.2013. As per interim report, he assessed the tentative liability of Rs.20,000/- to Rs.22,500/- and certain documents of the vehicle were sought from the complainant. Complainant submitted claim form and other documents of the car on 30.3.2013 to insurance company on demand by the surveyor. Surveyor again visited the repair spot on 3.4.2013 and the repairer disclosed as if the vehicle has got the engine seized. Revised estimate of amount of Rs.1,58,504.56P was submitted. Surveyor re-examined the vehicle and found that the engine chamber sleeve block was badly heated and one piston was having deep scratches on the outer surface. Even all the connecting rod and crank shaft bearing shell was badly pressed and de-shaped. The tensioner change spring even was found broken. Exhaust manifold with Turbo was jammed. All these damages occurred due to sheer negligence of the driver because he repeatedly ignited the vehicle and pushed it forcibly, resulting in engine seizure. Surveyor also wrote a letter dated 5.4.2013 to the complainant for disclosing that loss does not fall under the policy terms and conditions because of occurrence of the same on account of negligence on the part of the complainant. Lally Motors India Pvt. Ltd, G.T.Road, Ludhiana issued an estimate dated 18.3.2013 of Rs.25,097/- under its signatures to the complainant and thereafter, again issued an estimate dated 18.3.2013 of Rs.1,58,504/-. Surveyor Sh.Harsh Kumar Laroiya also submitted Motor Survey report final dated 6.6.2013. As per that report, the car was fitted with indication on the meter/dash board showing as if there is sufficient oil in the chamber or not. Those indications flickers immediately when there is no sufficient oil in the chamber. The same gives indication to the driver to take the car for avoiding further damage to the engine. As per that report, driver did not take care of stopping the car immediately on seeing flickering indications. The cut in the oil chamber was not so big that engine oil could have drained out immediately. It was pointed out that the driver deliberately drove the car for few miles ignoring the red light warning on the dash board/meter of the vehicle, resulting in damage to various parts of the engine. As per the terms and conditions of the policy, in the event of any accident or break down, the vehicle should have not left unattended without proper precautions, so that further damage or loss may not occur. As per those conditions, if the vehicle is 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. In view of these terms and conditions, the surveyor assessed the amount of Rs.18,800/-. Op3 wrote letter to the complainant for informing that Dep cap facility has been cancelled because the same was erroneously granted. Claim of the complainant was approved for an amount of Rs.13,720/-  as per assessment made by the surveyor. Ops sent several letters and emails to the complainant for calling upon him to furnish the bank particulars for enabling them to transfer the amount of Rs.13,720/- directly in that account, but the complainant failed to provide the same to Ops. Ops closed the file of the complainant as ‘No claim’. Decision of the same was conveyed to the complainant. Ops are not liable to make payment to the complainant in respect to the consequential loss to the vehicle as per the terms and conditions of the insurance policy. Each and every other averment of the complaint denied.

3.                In written statement filed by OP4, it is pleaded that complaint barred by limitation against answering OP because repair invoice is of date 30.4.2013 and amount of repairs paid on 23.3.2013 as well as on 30.4.2013, but the complaint is filed after two years on 30.6.2015. Besides, it is claimed that the complainant is not a consumer because he in individual capacity has not purchased anything from OP4. Complainant purchased the car from the funds of commercial establishment in the name of firm M/s Virsa Exclusive and purchased the vehicle from the funds of the company. Use of the vehicle cannot be termed for personal purposes. There is no pleading of hiring of services of OP meant for self employment and livelihood of the complainant company or its proprietorship. Complainant has not hired or availed the services of OP4 for dispute involved in the case. Besides, it is claimed that the complaint is false and frivolous. As per contents of complaint itself, OP1 to OP3 were under liability to pay to OP4, but well before the filing of the complaint, Virsa Exclusive paid the repair charges to Op4. That fact has been concealed by the complainant. As per produced documentary record, car is registered in the name of M/s Virsa Exclusive. It is not denied that the car was brought to the workshop of OP4. Each and every other averment of the complaint denied.

4                 Complainant to prove his case tendered in evidence his affidavit Ex.CA along with documents Ex.C1 to Ex.C10 and thereafter, closed the evidence.

5.                On the other hand, counsel for OP1 to OP3 tendered in evidence affidavit Ex.RA of Sh.A.S.Grover, Sr.Divisional Manager, Division No.II, National Insurance Company Limited along with documents Ex.R1 to Ex.R10 and then closed the evidence.

6.                Counsel for OP4 tendered in evidence affidavit Ex.RW1 of Sh.Tejinder Singh along with documents Ex.RR1 to Ex.RR2 and then closed the evidence.

7.                Written arguments not submitted by any of the parties. Oral arguments alone addressed and those were heard. Records gone through minutely. 

8.                It is vehemently contended by Sh.Vijay Kumar Bhatia, Advocate representing complainant that earlier repairer gave estimate of repair as Rs.25,097/-, but on subsequent visit of 3.4.2013, the said estimate of Rs.1,58,504.56P was prepared and as such, complainant entitled to the later assessed amount. It is contended that vehicle did not remain with the complainant from 18.3.2013 to 3.4.2013 and as such, employee of OP4 may have started repair of the vehicle resulting in further trouble. In view of negligence of employee of OP4, OP4 is liable for payment of the full repair charges is also the submission of the counsel for the complainant. However, counsel for OP4 vehemently contends  that OP4 only repaired the vehicle and prepared the estimates and thereafter, sent to the parties. As OP4 is just a repairer and as such, he is entitled to recover the repair charges. Only on payment of repair charges, the complainant can get the vehicle back. It is contended that payment was made by the complainant on 23.3.2013, but the present complaint filed on 30.6.2015 and as such, the complaint against OP4 is barred by limitation. Submissions advanced by counsel for OP4 certainly has force because the complainant seeking the full reimbursement amount in pursuance of the policy Ex.C1 having schedule Ex.C2 and certificate of insurance Ex.C3. It was after lodging of claim by the complainant that surveyor Mr.Harish Kumar Laroiya was appointed by OP1 to OP3. Copy of insurance cover note Ex.R1 even has produced on record by OP1 to OP3 along with copy of claim form Ex.R2. In Ex.R2 mention made as if accident took place on 17.3.2013 at 9:00 AM at Ferozepur Road. Reason                  of the accident mentioned in Ex.R2 is that on account of construction of the road, the car got hit into the hump on the road, due to which, the chamber stood broken. So, complainant himself disclosed the insurer as if damage to the chamber of the car took place due to hitting from beneath. Mention of stone hitting is not made in Ex.R2 at all. Tentative liability by the surveyor pegged at Rs.20,000/- to Rs.22,500/- in interim report Ex.R3. The name of repairer mentioned as OP4 in this interim report Ex.R3. Final report to be submitted by the surveyor whenever the vehicle will be repaired and papers submitted as per contents of Ex.R3. So, loss assessed through Ex.R3 is the tentative loss and not the final one. First visit by the surveyor was made on 20.3.2013, but the subsequent visit made on 3.4.2013 is a fact borne from the contents of Ex.R4 dated 5.4.2012 of the surveyor. During the first inspection, the repairer gave estimate of Rs.25,097/-, but during the second visit of the surveyor, the estimate of Rs.1,58,504.56P was submitted because of damage to the engine on account of its being seized. Surveyor through letter Ex.R4 pointed out that after thorough inspection he found the engine chamber sleeve block badly heated and one

piston having deep scratches on the outer surface. Besides, the surveyor during his second visit found that all the connecting rod and crank shaft bearing shell was badly pressed and de-shaped. Even the surveyor found that tensioner change spring was broken and its exhaust manifold with turbo was jammed. After recording these findings in Ex.R4, it was pointed that all these damages occurred by the clear cut negligence of the driver because he repeatedly ignited the vehicle and pushed it forcibly resulting in seizure of the engine. So, this letter Ex.R4=Ex.R5 establishes that the surveyor found the subsequent loss on account of negligence of the driver, due to repeated ignition of the vehicle. Surveyor Mr.Harsh Kumar Laroiya is a Mechanical Engineer as per contents of Ex.R4 and Ex.R5 itself. During first visit of 20.3.2013, estimate of Rs.25,097.38P Ex.R6 was obtained, but the subsequent estimate of Rs.1,58,504.56P Ex.R7 was obtained.

9.                Final observations recorded in Ex.R4 and Ex.R5 are based on the final survey report Ex.R8 of the surveyor. In Ex.R8, it is mentioned that during the first inspection on 20.3.2013, he estimated the loss at Rs.26,000/-, but after dismantling the vehicle, the repairer found that engine got seized and estimate turned as Rs.1,59,804/-. So, initially estimate of Rs.26,000/- was put forth without ascertaining as to what damage caused to the engine. It was only after dismantling of the engine by the repairer that seizure of the engine was found and as such, in case in the interim report, surveyor assessed lesser amount of loss, then it was on account of the fact that he was not aware as to what actual damage was caused to the vehicle.

10.              Surveyor recorded the findings in Ex.R8 that the car is fitted with the indication on the meter/dash board, which shows whether there is sufficient oil or not in the chamber and on flickering of the indication, driver will immediately know about the insufficient oil in the chamber. The flickering of the indicator will give indication to the driver to take the car, so that further damage may not occur. However, in case, driver does not take care, but drove the car on seeing flickering indication even, then damage to the vehicle will be on account of sheer negligence on the part of the driver. Surveyor recorded findings that damage to the oil chamber was not so big that engine oil would have drained out immediately after hitting of the stone. Rather, in Ex.R8, findings even recorded that driver deliberately drove the vehicle to few miles ignoring the red light warning on the dash board/meter of the vehicle and that is why further damage to the engine took place resulting in its seizure. These findings recorded in EX.R8 cannot be termed as incorrect at all, particularly when the surveyor is a mechanical engineer. As per the terms and conditions of the insurance policy, in the event of any accident or break down, the vehicle will not be left unattended without proper precautions being taken to prevent further damage or loss. If the vehicle be driven before the necessary repairs, then for extended damage to the vehicle, the insured will be liable. In view of clause 4 at page 2 of terms and conditions of the policy contained in Ex.R10, certainly insurer not liable to bear the loss caused due to negligent driving of the vehicle after accident, resulting in seizure of the engine. Reliance on condition no.4 at page no.2 of Ex.R10 in this respect has been specifically placed. Besides, as per condition (a) at page no.1 of Ex.R10, company not liable to make any payment in respect of consequential loss/depreciation of wear and tear, mechanical or electrical break down, failures or breakages etc. Consequential loss in this case reported by the surveyor through report Ex.R8,  owing to negligent driving of the vehicle even after flickering of the indicators on the dash board and as such, certainly insurance company is not liable for loss that occurred subsequently due to driving of the vehicle after leakage of the engine oil.

11.              As per para no.4 of the complaint, the car was towed by the complainant with another Altis car and was parked at the factory premises of the complainant after accident on 17.3.2013. That accident resulted in damage to the chamber resulting in leakage of the oil as per para no.3 of the complaint. So, these assertions of the complaint enough to establish that the vehicle in question was not towed by the OP4 or its employees, but the same was towed by the complainant himself for taking the same to his factory premises. On which date, the crane was sent by the OP4 in the factory of the complainant qua that contents of para no.5 and other paras of the complainant are silent. Had the crane been sent by OP4 for bringing the damaged car from the factory of the complainant to its workshop, then certainly the crane carrying charges even would have been calculated in the estimate of repair bills Ex.R6 or in Ex.R7, but the same are not calculated and as such, the same shows as if the car actually was brought by the complainant to the workshop of OP4 and not by OP4. So, report of surveyor believable that engine was started repeatedly even after the damage to the chamber resulting in leakage of the oil. So fault lay with the complainant in further extended loss to the engine resulting in seizure. For such further extended loss, Ops not liable as per terms and conditions of insurance policy, Ex.R10 as referred above. However, for initial damage to the engine, loss of Rs.26,000/- was reported on inspection as per para no.10 of the final report Ex.R8 and as such, complainant entitled to this estimated loss of Rs.26,000/- as reported by the surveyor in Motor Survey Report Final Ex.R8. If Dep Cap facility cancelled through letter Ex.C7, then illegality in that respect not shown and as such, in view of non putting of the claim in that respect, the complainant cannot be held entitled to the amount in excess of Rs.26,000/- estimated through report Ex.R8.

12.              Retail invoice Ex.C8 has been produced on record to show as if total amount payable was Rs.1,56,482/-. This retail invoice is in the name of Virsa Exclusive, to which, Mr.Gulshan Kumar is the proprietor. Even in this retail invoice Ex.C8, mention of crane charging is not made and as such, case of the complainant is not believable that actually crane was sent by OP4 for bringing the car from the factory premises of the complainant. Payment of amount of Rs.20,000/- made by Virsa Exclusive on 23.3.2013 is a fact borne from the contents of copy of receipt Ex.RR1, but of balance amount of Rs.1,36,594/- made on 30.4.2013 is a fact borne from the contents of copy of receipt Ex.RR2. As this payment was made on  30.4.2013 by the complainant to OP4 through these receipts finally and as such, complaint being filed on 30.6.2015 certainly is beyond the period of two years. Cause              of action accrued to the complainant against OP4 w.e.f.30.4.2013, when last payment of Rs.1,36,594/- was made through Ex.RR2, but this complaint filed on 30.6.2015 i.e. after period of more than 2 years of accrual of cause of action and as such, certainly complaint against OP4 is barred by limitation. Claim of the complainant is sustainable against OP1 to OP3 to the extent of Rs.26,000/- only by keeping in view the term of final report of surveyor Ex.R8. However, complainant not entitled to reimbursement of the loss on account of extended damage due to negligence of the driver as discussed above.

13.              Therefore, as a sequel of the above discussion, complaint allowed against OP1 to OP3 only in terms that they will pay Rs.26,000/- (the loss estimated through report Ex. R8) to complainant within 30 days from the date of receipt of copy of order. Complaint against OP4 however is dismissed. No amount of compensation for mental harassment and litigation expenses allowed.  Copies of order be supplied to parties free of costs as per rules.

14.                        File be indexed and consigned to record room.

 

                      (Param Jit Singh Bewli)                        (G.K.Dhir)

                                  Member                                        President

Announced in Open Forum

Dated:20.01.2017

Gurpreet Sharma.