Haryana

Ambala

CC/307/2010

DEEPAK KHULLAR S/O SHRI TILAK RAJ KHULLAR - Complainant(s)

Versus

NATIONAL INSURANCE CO.LTD. - Opp.Party(s)

K.C.Jain

12 Apr 2016

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMBALA.

 

                      Complaint Case No.   : 307 of 2010

          Date of Institution      : 30.06.2010

                      Date of Decision        : 12.04.2016

     Deepak Khullar son of Shri Tilak Raj Khullar R/o H.No.1035/12, Milap Nagar, Ambala City.                     

                                                                                                                                                                   ……Complainant.

 

                                                                                           Versus

1.         National Insurance Company Limited, Branch Office, LIC Building, Second Floor, Ambala City through its Branch Manager.

2.         Divisional Manager, National Insurance Company Limited, 106 Railway Road, Ambala Cantt.

                                                                                                ……Opposite Parties.

Complaint Under Section 12 of the Consumer Protection Act

CORAM:        SH. A.K. SARDANA, PRESIDENT.

                        SH. PUSHPENDER KUMAR, MEMBER.                       

Present:          Sh. K.C.Jain, Adv. counsel for complainant.

                        Sh. Mohinder Bindal, Adv. counsel for OPs.

ORDER.

                        Present complaint under section 12 of the Consumer Protection Act, 1986 (hereinafter in short called as the ‘Act’) has been filed by the complainant alleging therein that he is owner of car bearing regn. No.HR01-X/5619 which was insured with Ops  vide policy No.4462785 for the period from 05.08.2008 to 04.08.2009.  On 18.12.2008, complainant was coming from Chandigarh to Ambala and when  he reached near Jharmery Barrier at about 10:00 P.M., suddenly a stone type item hit on below portion of the car as a result of which complainant stopped the car and made a call to Maruti 24 hours  Service Number but the officers on duty  asked for wait at the spot for half an hour but none came  and intimated that no service person is available, so the complainant  toed the vehicle to his house.  On 19.12.2008, complainant went to Modern Auto Mobiles, Ambala City and told episode of 18.12.2008.Thereafter, Modern Automobiles contacted the Ops insurance- company and told the complainant that  survey of the car is not possible at his house, so bring the car at the workshop. As such, the complainant brought the car to the workshop of Modern Automobiles  where Mechanics found that there was leaking of oils from intercooler hosepipe, joint open and oil pan was damaged due to hitting from outside and after opening of the engine, it was observed that oil-strainer of Aluminum got broken due to hitting of oil pan which caused the lack of lubrication resulting  into damage of engine and made estimate of spare parts & labour etc. to the tune of Rs.54690/- and Sh. A.K. Chhatwal, Surveyor appointed by OP Surveyed the car and put a query that whether a loss to the car can be caused due to the hitting from the below portion of the car which was duly replied by Modern Automobiles that the damage to engine may happen within 20 seconds, or two minutes or five minutes or 10 minutes  after non-lubrication as there is no time limit justification of engine damage  after lack of lubrications.  Thereafter, Modern Automobiles repaired the car of complainant and submitted bill of Rs.53993/- but the OP failed to make payment of Rs.53993/- to the Modern Automobiles, so the complainant paid the amount to the Modern Automobiles and wrote a letter on 16.03.2009 to the Op-insurance company but of no avail. Thereafter vide letter dated 07.08.2009, Ops passed the claim of the damaged car of complainant only to the tune of Rs.1821/- instead of Rs.53993/- which  is arbitrary, illegal and  is just to grab the amount of complainant for which he is legally entitled.  So, a legal notice dated 17.09.2009 demanding the amount of Rs.53993/-  got served upon the Ops but  despite that, OP did not make the payment  to the complainant which is a deficiency  in service and unfair trade practice on the part of Ops.  Hence, the present complaint seeking relief as mentioned in the prayer clause has been preferred by the complainant.  

2.                     Upon notice, OPs appeared through counsel and filed written statement raising preliminary objections qua non-maintainability of complaint, concealment of true facts and complaint being devoid of merits.  On merits, it has been urged that  the policy was issued to complainant  subject to certain terms & conditions and the complainant was legally bound to follow them.  Further it  has been submitted that after the incident, complainant  did not stopped the car and keep on drive inspite of the indication of oil pressure light and thus stated loss to internal engine parts i.e. breakage of cam shaft, rocker arm and other damages to engine parts was found to be caused due to mechanical breakdown failure resulted on account of the operation of engine with insufficient oil pressure in-spite of indication of oil pressure light which is a clear caution to stop the engine to avoid mechanical breakdown, so, the complainant himself was found to be gross negligent in ignoring the indicator of oil pressure light and kept the vehicle on drive till the mechanical breakdown and was proved to be negligent enough to cause internal loss to the engine of the car in question.  However, as per norms of the company and  the assessment made by IRDA licensed surveyor without any discrimination, the OP  approved  the payable claim to the tune of Rs.1821/- and complainant  was time and again requested to issue a valid receipt against the payment or to provide his bank account number but inspite of repeated reminders, he failed to do the needful and hence on 02.02.2010, the claim  of the complainant was closed  as No Claim after due notice. As such, there is no deficiency in service on their part and prayed for dismissal of complaint with costs.

3.                     To prove his contention, complainant tendered his affidavit as Annexure CX alongwith documents as Annexures C-1 to C-6 and closed the evidence whereas on the other hand, the counsel for OPs tendered in evidence affidavits of Sh. Sunil Aggarwal, Sr. Branch Manager  and  Sh. A.K. Chatwal, Surveyor as Annexures RX & RY respectively alongwith documents as Annexures R-1 to R-8 and closed the evidence on behalf of OPs.

4.                We have heard counsel for the parties and gone through the record very minutely. Counsel for complainant has placed on record various documents to prove his case viz. insurance policy (Annexure C-1), vehicle history & job estimate for repair of the vehicle in question issued by Modern Automobiles (Annexures C-2 & C-3), reply to the query put-forth by the Surveyor of OP (Annexure C-4)  whereby it has been clearly stated that “Damage to the engine is due to lack of lubrications and lack of lubrication is due to breakage of oil strainer in the oil pan and this loss of engine material can happen within 20 seconds or 50 seconds or two minutes or five minutes or 10 minutes after non-lubrication. There is no time limit justification of engine damage after lack of lubrication” and Annexure C-5 is a letter written by complainant to the Ops for making payment to Modern Automobiles for repair of the vehicle Annexure C-6 is the bill qua repair of car vide invoice no. BR090000.  Further to strengthen his case, counsel for complainant placed reliance on case law titled as Oriental Insurance Co. Vs. M/s Sandeep reported in 2015 (3) CLT page 584 wherein our Hon’ble State Commission, Haryana has held that “ Surveyor Report-Insurance Claim-Held- 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”.  

                   On the other hand, counsel for  Ops in order to rebut the contention of complainant has relied upon documents Annexures R-1 to R-3 & R-5 which are letters qua demand of discharge voucher of Rs.1821/- sent by the Op company to complainant, Annexure R-4 is  Surveyor’s report, Annexures R-6 & R-7 are the  Motor Claim Form and intimation letter submitted by the complainant to the OP insurance company and Annexure R-8 is the copy of instruction manual qua maintaining Oil Pressure of the vehicle in question.  Besides it, counsel for Ops also submitted a case law titled as Krishna Kanhaiya  Gontiya Vs. Tata Engineering and Locomotive Company Ltd. & others reported in 2011(1) page 324(NC) to justify his version.

5.                At the very outset, it is an admitted fact on record that the vehicle in question was insured with the OP- insurance company on the day of occurrence. Admittedly, after the incident, Sh. A.K. Chhatwal, was appointed by the OP company as Surveyor to inspect the damaged vehicle and to access the loss caused to it and the said surveyor submitted his report dated 09.05.2009 (Annexure R-4) passing the loss to the tune of Rs.1821/- only  though admitting the replacement of recommended parts as per details given in the invoice no.BR09000024 dated 14.04.2009 ( Annexure C-6) on the very premise that the company is not liable  to make any payment towards  the replacement of parts other than PAN Comp. Oil & STAINER ASSY. since the damage to oil sump & stainer is due to hit of stone due to external means, hence, covered under the policy whereas breakage of com shaft, Rocker arms and other damage to engine parts is due to Mechanical Breakdown failure  resulted due to operation of engine with insufficient/lackage /absence of oil pressure inspite of Indication of oil pressure light which is a clear caution to stop the engine to avoid Mechanical Breakdown failure and hence not covered under the policy.

                   Now on perusal of document Annexure C-2 i.e. vehicle history initially observed by Modern Automobiles, it emerges that “After thoroughly check up on lift on 19.12.2008, it was found that some oil was leaking from inter cooler hosepipe, joint open and oil pan was damaged due to hitting from outside resulting into lack of lubrication and damage to parts of engine”. Thereafter during survey, Surveyor raised some queries from M/s Modern Automobiles, Ambala which was duly replied as “Damage to the engine is due to lack of lubrications and lack of lubrication is due to breakage of oil strainer in the oil pan and this loss of engine material can happen within 20 seconds or 50 seconds or two minutes or five minutes or 10 minutes after non-lubrication. There is no time limit justification of engine damage after lack of lubrication”. However, the Surveyor not being satisfied with the answers put forth by M/s Modern Automobiles, Ambala passed the claim to the tune of Rs.1821/- only  which is neither legal nor justified in the eyes of law nor binding upon the complainant and thus the complainant declined to accept  the same and Ops closed the claim of the complainant.  Besides it, in the document Annexure R-6 (Motor Claim Form) filled in by the complainant  while lodging the claim with OP insurance company,  it has been specifically stated in the column of Short Description of the Accident that “While coming from Chandigarh near  Barrier at Jharmari, something stone type got hitted from below portion.  After 3 to 5 minutes, I stopped  the car & saw oil leaking from engine below portion” wherefrom it  reveals that the parts of engine of vehicle in question damaged due to hitting of stone type substance struck beneath the car and thereby owing to leakage of oil/ lubricant and not due to driving of vehicle after leakage of lubricant as alleged by OP in its reply.  Furthermore, the version of OP that the damage caused to the vehicle was solely due to the negligence of the complainant as he not stopped the vehicle immediately after the incident and keep it on running is not sustainable because the complainant itself has averred in claim form  that  he stopped  the vehicle after 3/5  minutes after the incident and  thereafter called the Maruti 24 hours Service Number but none come and  thereafter complainant got towed the vehicle  in question to Ambala but no any rebuttal  to towing of vehicle has been produced by the OP. So, in view of the facts discussed above, we are of the confirmed view that the OP company is deficient in partly allowing the claim of complainant though the complainant is not at negligence and he did all what he can do. Thus the complainant is entitled to the claim amount of Rs.53993/- which he paid to M/s Modern Automobiles with prior intimation to the OP insurance company.  Accordingly, the complaint is allowed and OP-Insurance Company is directed to comply with the following directions within 30 days from the communication of the order:-

1. To release to the complainant a sum of Rs.53993/- alongwith simple interest @ 9% per annum from the date of institution of complaint to till date after making statutory deductions, if any, as per compulsorily deductible clause as per terms of insurance policy.
2. To pay Rs.5,000/- as compensation on account of harassment &  mental agony.
3. And to pay a sum of Rs.5,000/- on account of litigation charges including the counsel’s fee.

                                     

                   Further the award in question/directions issued above must be complied with by the OPs within the stipulated period failing which all the awarded amounts shall further attract simple interest @ 12 % per annum for the period of default. So the complaint is allowed in above terms. Copies of this order be sent to the parties concerned free of costs, as per rules. File be consigned to the record room after due compliance. 

Announced:12.04.2016                                                                       Sd/-

                                                                                               (A.K. SARDANA)

                            PRESIDENT                 

 

                                                                                                             Sd/-

                              (PUSHPENDER KUMAR)

                                                                                                            MEMBER.