DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-II

Udyog Sadan, C-22 & 23, Qutub Institutional Area

(Behind Qutub Hotel), New Delhi- 110016

Case No.69/10

Nouvelle Securities Pvt. Ltd.

Through its Authorized Signatory

43, Community Centre, New Friends Colony,

New Delhi-110025

….Complainant

Versus

National Insurance Company

Through its Manager

E-13, Hauz Khas Market

New Delhi-110016

        ….Opposite Party

Date of Institution    :  28.01.2010      

 Date of Order            : 28.01.2023      

Coram:

Ms. Monika A Srivastava, President

Ms. Kiran Kaushal, Member

Sh. U.K. Tyagi, Member

ORDER

Member: Sh. U.K. Tyagi

1. Complainant has made a request for  directing the National Insurance Company (hereinafter referred to as OP) (i) to pay amount of Rs.7,72,367/- alongwith interest @18% p.a w.e.f 11.11.2009 till its realization; (ii) to pay an amount of Rs.5,00,000/- towards mental agony, harassment etc.

2. Brief facts of the complaint are as under-

The complainant is owner of BMW, having registration No. DL02FFD0081. The said car was insured with the OP for the sum of Rs.33,00,000/- for the period from 05.01.2009 to 04.01.2010. The said car was trapped into deep water and stopped working while the driver was on the way to New Friends Colony. The driver with the help of labourers got parked at safer place and next day, the said vehicle was towed away to the authorized workshop, namely, Deutsche Motoren Pvt Ltd-Mohan Cooperative Industrial Estate- Mathura Road, New Delhi for necessary repairs. The Complainant intimated the OP vide its letter dated 28.07.2009 regarding the above incident. The OP vide its letter dated 29.07.2009 sent the Claim Form requesting to fill in so as to enable them to appoint surveyor. The copy of said letter is enclosed as Annexure 4. OP, on the  receipt of the filled in claim form, appointed Mr. Ghanshyam Nayyar, as Surveyor on 17.08.2009.  The said surveyor  conducted survey of the vehicle on 17.08.2009, 29.08.2009, 05.09.2009 at the said workshop. The complainant wrote letter dated 21.09.2009 to OP requesting them for re-inspection explaining the reason for re-survey. Meanwhile, an estimate was also got prepared and sent to OP for inspection of the surveyor.

3. The workshop after completing the repair work of the said vehicle, raised an Invoice no.SIP80381 dated 14.10.2009 for an amount of Rs.7,72,367/-. The complainant vide Cheque No.499409 made the payment and submitted the original invoice to OP. The complainant sent many letters to OP for settling the claim. After several follow up, the OP sent a Cheque of Rs.12,236/- against the claim of Rs.7,72,367/-. The Complainant made a mention of similar claim of vehicle insured with OP of the sister concern in 2006. The copy of the same is enclosed as Annexure-C-13 (Colly).
4. The Complainant requested OP vide its letter dated 16.11.2009 to make available the copy of the survey report and reason thereof of passing the meager claim of Rs.12,236/-. The OP vide its letter dated 14.12.2009 sent the copy of survey report dated 24.10.2009 stating that the survey report is self-explanatory. The same is annexed as Annexure C-15 (Colly). The survey report seems to be based on the assumptions of the surveyor. The same is not supported by the supporting  documents. The OP has made the basis of passing the meager claim of this report. The  complainant assailed the said report and argued that his claim is genuine  and squarely covered under the Clause V of the loss of or damage to the vehicle insured of the policy. Clause V goes as under:-

        “ by flood typhoon hurricane storm tempest inundation cyclone hailstorm frost;”

5. The complainant maintained that the case under reference is covered under the above Clause V. Since, the OP failed to appreciate the facts, so the complaint.

6. OP, on the other hand filed its reply inter-alia raised some preliminary objections. OP maintained that  there is no deficiency in service. The complainant is guilty of suppression of material fact. It is further alleged that the complainant did not take reasonable steps to safeguard the said car from any loss or damage. When the vehicle suddenly  trapped into pool of deep water and  stopped working. Thereafter, the efforts to start the vehicle is the well known source to cause damage to the engine. The engine cannot be impacted by merely coming in contact with water. The obvious cause known to be trial to re-start the engine without cleaning the water from inside the engine and inspection by an expert technician. Thus the extension of damage to the engine cannot be considered as per condition No.4 of the policy contract. Therefore, the complainant is responsible for the loss/damage.

7. Both the parties have filed their written submissions and evidence-in-affidavit. Written statement is on record so is rejoinder. Oral arguments were heard & concluded.

8. This Commission has gone into the entire material placed on record and due consideration was given to the oral arguments. The complainant’s grievance is that the claim so assessed by the authorized service station of the BMW is genuine and should have been honoured by the OP. The main reason of the OP to repudiate the claim primarily is on account of negligence on the part of the complainant, when the said vehicle came in contact with water logged  condition and it got stopped. The effort to re-start led to failure of engine. The engine cannot be impacted by merely coming in contact with water. The obvious cause to damage to engine was to re-start the vehicle without clearing the water from engine by the technician. Thus, extension to the damage to engine is not covered under the Condition 4 of terms & conditions of the policy.

9. The Complainant had provided the copies of following judgments to buttress his claim:-

10. The Hon’ble District Commission Chandigarh in similar case as mentioned at Sr. No.1 looked into the report of expert i.e General Motor (Service) and on the basis entire issues maintained that it will be almost impossible to draw a line between the number of times a person should try to re-start the car before it gets damaged to a larger extent. The Hon’ble Commission has not accepted the report of the surveyor in the said case. The Hon’ble National Commission in another case list above at Sr. 3, held that the Contention of the petitioner that vehicle suffered consequential damage is unfounded  when the vehicle was struck while running. It is natural that driver will make an attempt to re-start the vehicle. There is also no evidence that re-starting of vehicle was the cause of damage.
11. In another case the Hon’ble Supreme Court in the case listed at Sr.4, held that assessment of loss by the approved surveyor is a pre-requisite for payment or settlement of the claim but it is also not sacrosanct and its report is not last and final word. Likewise, there are other judgments which support the contention of the complainant. However, no effort was made by the OP to rebut the contention of Complainant with the help of ratio of some judgments of higher courts.
12. In view of the above discussion, facts and circumstances in the case and respectfully following the ratio of Hon’ble Supreme Court/Commission, this Commission is of the view that the OP is short of obligation and deficient in service. The surveyor had not provided detailed report as to what how many parts of vehicle got damaged. The Commission is of considered opinion that the whole claim of 7,72,367/- may not be justified as surveyor has not commented upon it. It would meet end of justice if 50% of the claim made by the service station is considered as genuine damage to the vehicle. Therefore, OP is directed to pay 50% the claim for repair of said vehicle i.e Rs. 3,86,184/- to the complainant within 03 months from the receipt  of this order, failing which rate of interest shall be levied @6% p.a till its realization. The other request of the complainant as claimed in prayer of the complainant are not acceded to. 

File be consigned to the record room and order be uploaded on the website.