DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
MUCHIPARA, BURDWAN.
Consumer Complaint No 70 of 2015
Date of filing: 04.3.2015 Date of disposal: 06.8.2015
Complainant: Prabir Bondopadhyay, S/o. Sagar Bondopadhyay, residing at Baikuntha Apartment, PO: Asansol, Gopalpur, District: Burdwan, PIN – 713 304.
-V E R S U S-
Opposite Party: National Insurance Company Limited, represented through its Branch Manager, G. T. Road, Asansol, Post Office: Asansol, PIN – 713 301.
Present: Hon’ble President: Asoke Kumar Mandal.
Hon’ble Member: Sri Durga Sankar Das.
Hon’ble Member: Smt. Silpi Majumder.
Appeared for the Complainant: Ld. Advocate, P. K. Chaudhuri.
Appeared for the Opposite Party: Ld. Advocate, Shyamal Kumar Ganguli.
J U D G E M E N T
This complaint is filed by the complainant u/S. 12 of the C.P. Act, 1986 alleging deficiency in service, as well as, unfair trade practice against the OP as the OP has settled his insurance claim at a very lower amount and did not pay his legitimate claim.
The brief fact of the case of the complainant is that being an owner of his private car he obtained an insurance policy from the OP by which his car was under the coverage of an insurance policy. The policy was valid for the period from 02.12.2013 to 01.12.2014. On 11.7.2014 while the complainant was coming from Durgapur to Asansol by his car along with his family by self-driving and when the car reached near Kalna Hospital More suddenly a piece of stone fell down from a loaded dumper in front of his car. The complainant stopped his vehicle and apparently found no damage of his vehicle and he accordingly returned at his residence by driving the same. During keeping the vehicle at the garage he got smell of Mobil and opened the bonnet of the car and found the damage of Mobil chamber. The complainant called a local garage mistry who advised to send the car to the repairing shop. Accordingly the complainant took the car at the authorized repairing shop. A complaint was lodged before Asansol (North) Police Station on 12.7.2014. Intimation of such incident was given to the OP at their Asansol Branch along with available documents. One Surveyor came at the authorized repairing shop and examined the car thoroughly and collected the documents of the car. On 15.7.2014 the repairing shop sent a letter intimating the repairing charge and approximate cost of the defective part for necessary repairing and replacement to the complainant. After few months the OP sent a voucher of Rs. 2,186=00 instead of Rs. 1, 27,957=00, which caused dispute between the parties. The complainant requested verbally to the OP for making payment of the total and actual cost of repairing of the vehicle, but the OP denied paying the amount on the ground of ‘consequential loss’ of the incident which actually is a case of damage of the vehicle due to accident on NH-2 at a lonely area. The complainant sent a notice along with all papers and requested to settle the matter in respect of payment of the entire amount. The complainant received one letter from the OP on 09.02.2015 in which the OP had denied its liability for making payment of compensation for the damaged vehicle, caused by the accident and the OP had further declared it’s no liability on the ground of consequential loss. Thereafter finding no other alternative the complainant has approached before this Ld. Forum by filing this complaint praying for direction upon the OP for making payment of Rs. 1, 27,957=00 towards the repairing cost of the insured vehicle, Rs. 50,000=00 for unfair trade practice in business and deficiency in service, Rs. 1,00,000=00 due to suffering from mental agony, Rs. 20,000=00 for hiring another vehicle while his car was kept for its necessary repairing and litigation cost of Rs. 3,000=00.
The petition of complaint has been contested by the OP by filing written version wherein it is contended that the complainant obtained a policy from it covering his vehicle for a period of coverage from 02.12.2013 to 01.12.2014 and accordingly the terms and the conditions was also accepted by the complainant. It was informed by the complainant on 14.7.2014 that the insured vehicle met with an accident on 11.7.2014 arising out of fallen of one piece of bolder from a truck moving in front of the vehicle driven by the complainant and due to this reason the Mobil chamber of the vehicle got damage. G.D. was lodged by the complainant before the Asansol (North) Police Station on 12.7.2014. Upon receipt of such information this OP issued one motor claim form on 14.7.2014 and on 15.7.2014 the complainant submitted the form along with estimate amount for Rs. 1, 27,957=00 as estimated by M/s. Banerjee Ford, Durgapur. It was noted that out of total estimation cost of Rs. 1, 27,957=00 as submitted by M/s. Banerjee Ford in which the service of engine assembling Rs 1, 07,075=00 was included. The OP appointed Mr. A.K. Khanuja as final Surveyor on 16.7.2014. In his initial report the Surveyor found the damage of Pan Oil Engine only and on 25.7.2014 M/s. Banerjee Ford prepared an estimate of Rs. 4,713=00 and the Surveyor drew the assessment based on the said estimate. The OP forwarded a letter on 03.9.2014 requesting the complainant to submit bill, cash memo for processing the claim and accordingly he submitted the bill dated 27.7.2014 from Banerjee Auto Mart for an amount of Rs. 1, 24,753=00. It has been reported by the Surveyor that he visited the garage on 16.7.2014 and carried out the survey. During inspection the Surveyor found that Pan Oil Engine was damaged and apart from it no other incidental damage was found in the vehicle. It has also been informed that the front bumper of the car was also found intact and no other lower part was damaged in the accident. The OP has duly approved the assessment of the Surveyor and accordingly a pre-receipt voucher was send for due signature of the complainant which was returned on 21.10.2014 with objection by the complainant. As per request of the complainant the OP again referred the matter to the surveyor on 18.12.2014 for proper clarification. The Surveyor clarified the matter and made comment that cessation of engine was due to drainage of oil which was a consequential loss and not covered under the policy. A letter was issued to the complainant on 22.12.2014 clarifying the matter stating that the damage was due to consequential loss which is not admissible under the policy. On 02.02.2015 the policy condition, the Surveyor’s report and explanation by Surveyor were forwarded to the complainant along with assessment sheet of damage for his perusal. Therefore in terms of the policy condition under Clause no. 4 wherein it is stated that ‘the company shall not be liable to make any payment in respect of consequential loss, depreciation, warrantier, mechanical or electrical break down, failure of breakages the claim have been repudiated’. Inspite of this an amount of Rs. 2,100=00 was paid being the damage assessed by the Surveyor as concluded in the final report issued by the Surveyor and Loss Assessor. According to the OP as this complaint has no merit at all the same is liable to be dismissed with cost.
Both parties have filed written notes of argument, several papers and documents on which they have placed reliance and the ld. Counsel for the OP has also relied on some Rulings in support of his contention.
We have carefully perused the record, documents as available and heard arguments at length advanced by the ld. Counsel for the contesting parties. We have also gone through the Rulings as relied on by the OP. It is seen by us that there are some admitted facts in the case in hand i.e. the complainant is the owner of his private card, the vehicle was under the coverage of an insurance policy obtained from the OP, the policy was valid for the period from 02.12.2013 to 01.12.2014, during validity of the said policy an accident/incident occurred on 11.7.2014, on that date while he was on road suddenly a piece of stone fell down from the loaded dumper in front of his vehicle, prima facie he could not detect any damage of the vehicle, he returned home by driving the said vehicle along with his family, at the garage he got smell of Mobil, after opening the bonnet of the car he found the damage of the Mobil chamber, the vehicle was inspected by a local garage mistry, as per his advice the vehicle was brought at the authorized repairing garage, the garage gave an estimate to the tune of Rs. 1,27,957=00 towards the repairing cost, G.D. lodged with the Asanol (North) Police Station, the OP was intimated about the incident on 14.7.2014, claim form issued, claim form submitted along with relevant documents as also the paper showing the estimated cost issued by the garage, Surveyor appointed, inspected the vehicle and upon examination he found that the Pan Oil Engine of the vehicle got damage, on 25.7.2014 the authorized garage M/s. Banerjee Ford prepared an estimate of Rs. 4,713=00, the Surveyor drew the assessment based on the said estimate, the complainant was directed to submit the bill, cash memo etc. for processing the claim, bill dated 27.7.2014 was submitted by the complainant from the Banerjee Auto Mart for an amount of Rs. 1,24,753=00, apart from Pan Oil Engine damage other incidental damages were found in the vehicle, front bumper of the car and lower part got no damage, the Surveyor assessed the loss to the tune of Rs. 2,186=00, the complainant made several representation for making payment of the actual cost of repairing, the OP did not allow further amount as sought for, the OP sent a voucher for the said amount for signature of the complainant, the complainant returned the same without any signature praying for payment of the estimated amount. The allegation of the complainant is that the Insurance Company did not pay his legitimate claim and such action of the OP suffers from deficiency in service, as well as, unfair trade practice. The contention of the OP is that as the cessation of engine was due to drainage of oil which was a consequential loss and not covered under the policy condition, the claim of the complainant is not payable and such non-payment of claimed amount, which exists beyond the terms and the conditions of the policy, cannot be termed as deficiency in service and/or unfair trade practice. The complainant has prayed for allowing his claim as prayed for, the OP prays for dismissal of the complaint with cost.
We have noticed that though the insured vehicle met with an accident arising out of fallen of one piece of bolder from a truck/dumper moving in front of the vehicle but admittedly after the incident the complainant returned at his house by driving the said vehicle. So it can safely be said if just after fallen of the bolder the vehicle became damaged, it could not be possible for him to return at his residence by driving the same car by himself or any one. According to the complainant such hit with a bolder can be termed as accident, but according to the OP it cannot be termed as accident, it is consequential loss. In this respect we are to say that the facts reveal that after the incident the vehicle was not stopped and the complainant drove the vehicle for his return at home. For this reason the engine got ceased due to drainage of engine oil. Therefore in our opinion the effect was a consequential loss. As, such loss does not cover under the Motor Insurance Policy, hence the OP had denied to make payment of the claimed amount.
The complainant has relied on the definition of ‘accident’ from where it is evident that “to get the correct meaning of the word ‘Accident’ we have also consulted Black’s Law Dictionary, 7th edition, page 15 where the word ‘accident’ has been described as an unintended and unforeseen injuries occurrence something that does not occur in the usual course of events or that could not be reasonably anticipated. Another meaning that has been given here is that accident is an unforeseen and injuries occurrence not attributable to mistake, neglect or misconduct………………..”
From the above interpretations or description of the word ‘accident ‘ in so far as the word is used in insurance parlour, it seems that all such occurrences which are not foreseen or expected or which can never be preplanned and take place all on a sudden to the surprise and shock of the people amongst whom such a phenomenon takes place is an accident. Had it been a case where such homicidal killing was in the knowledge of the people concerned, and then such a happening cannot be taken as a form of accident.
Admittedly the complainant had no earlier knowledge that on the way his insured vehicle will get hit with a bolder, fallen from a dumper, while the vehicle was in running condition. If due to such hit the vehicle got damage, he could not return by driving the same vehicle after the incident. So the hit can be termed as accident, but due to such accident the Pan Oil Engine of the vehicle became damage, the same cannot be said. Loss occurred but the same is not direct loss, the same is consequential loss.
Upon receipt of the claim form one Surveyor was appointed by the OP who after survey and examining the vehicle submitted his report to the OP. It is mentioned that after the accident instead of stopping the vehicle, the same was driven from the spot of accident at his residence and as a result engine oil drained and engine got ceased, which is a consequential loss. As the said loss is not admissible under the policy, according to the Surveyor the claim cannot be payable. In support of its contention the OP has relied on several Rulings. We have carefully perused the same and we have noticed that in almost every Ruling the Hon’ble NCDRC has observed that the report of the Surveyor is to be given due weightage and as the Surveyor’s report is an important piece of evidence which cannot be brushed aside without any cogent reason.
The OP has also filed a photocopy from social media network, which has been well circulated for benefit of the owners/users of the car (circular dated 21.01.2014) to aware the users about general exceptions of own car insurance policy from where we have noticed that when can the insurance claim be called as void by motor insurance company in India:
It has been stated major top ten reasons of Insurance Company where they can deny the claim or call it void. In reason no. 6 it has been stated that any consequential damage to the car is not payable by the Insurance Company. (Example of consequential damage: - If a car has met an accident and has started engine oil leakage, if the person/driver does not switch off the engine, the engine of the car can seize and effectively is not payable for repairs and is neither covered in car insurance policy).
Going by the foregoing discussion, hence, it is
O r d e r e d
that the consumer complaint be dismissed on contest without any cost.
Let a plain copy of this final order/judgment be supplied to the parties free of charge.
(Asoke Kumar Mandal)
Dictated and corrected by me. President
DCDRF, Burdwan
(Silpi Majumder)
Member
DCDRF, Burdwan
(Durga Sankar Das) (Silpi Majumder)
Member Member
DCDRF, Burdwan DCDRF, Burdwan
