Haryana

Ambala

CC/154/2022

Taneja Public School - Complainant(s)

Versus

National Insurance Company Ltd - Opp.Party(s)

Vishal Mittal

09 Jul 2024

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, AMBALA.

Complaint case no.	:	154  of 2022
Date of Institution	:	20.05.2022
Date of decision	:	09.07.2024

Taneja Public School, 12 K.M Stone, Ambala- Jagadhri Road, Tepla, District Ambala through its President Shri Tilak Raj Taneja.

          ……. Complainant

                                                Versus

1. National Insurance Company Ltd., #3, Prafulla Chandra Sen Sarani, Middleton Street, Kolkata-70007, through its Authorized signatory.
2. National Insurance Company Ltd, # 106 Railway Road, Ambala Cantt, through its Divisional Manager.
3. Maruti Insurance Broking Private Ltd. 1. Nelson Mandela Road, Vasant Kunj, New Delhi 110070 through its authorized signatory.
4. M/s Eakansh Wheels, (Authorized Maruti Suzuki Dealer) NH-444-A, Vill. Tepla, Jagadhri-Ambala Road, Ambala Cantt. through its authorized signatory.

                                                                                           ….….Opposite parties

Before:         Smt. Neena Sandhu, President.

                       Smt. Ruby Sharma, Member,

           Shri Vinod Kumar Sharma, Member.           

 

Present:       Shri Vishal Mittal, Advocate, counsel for the complainant.

                    Shri Dev Batra, Advocate, counsel for the OPs No.1 and 2.

                    Shri S.R. Bansal, Advocate, counsel for the OP No.3.

                    Shri Udai Singh Chauhan, Advocate, counsel for the OP No.4.

Order:        Smt. Neena Sandhu, President.

                   Complainant has filed this complaint under Section 35 of the Consumer Protection Act, 2019 (hereinafter referred to as ‘the Act’) against the Opposite Parties (hereinafter referred to as ‘OPs’) and prayed as under:-

1. To direct the OP No.4 to repair/replace the damaged part/engine of the car in question and direct the OPs No.1 to 3 being insurer, to indemnify the complainant by paying the amount of the repair/replacement of the damaged part.   
2. To direct the OPs, to pay compensation to the tune of Rs.4 lacs for mental agony and harassment and to pay Rs.11,000/-, as litigation expenses.

Or

Grant any other relief which this Hon’ble Commission may deems fit.

2.             Brief facts of the case are that the complainant is owner of the car bearing Regn. No. HR-24N-0039 S Cross Smart Hybrid Zeta Model 2018 and the same is insured with the OPs No.1 and 2 through the OP No.3. The President of the complainant is using the said vehicle for his personal use and not for any commercial purpose. At the time securing insurance policy of the car, the complainant was detailed above various benefits of the bumper-to-bumper insurance. The said car was got insured vide Policy No. 42040031211146439809 valid for the period from 02.05.2021 to 01.05.2022, on payment of Rs.22322/- as premium. The said policy covered viz., reimbursement the financial losses incurred during the accidents or natural calamities such as earthquake, storm, typhoon, man-made calamities, fire and explosion. Apart from personal accident cover, third-party property damage and free road-side assistance (RSA) was also provided. It was also told that the bumper-to-bumper Insurance Policy covers all kinds of bodily damages to the car. All body parts of the car which are made of rubber, fiberglass, plastic, nylon, metal, Engine Protect & invoice protect are included in the insurance. With its zero Depreciation premium add-on, it makes a far more advantageous insurance policy as compared to any standard car insurance policy.
3.            In the second week of August, 2021 the vehicle of the complainant started giving problem of coolant leakage and other engine problem, as such, the complainant sent his above said vehicle to the OP No.4 on 15.08.2021. OP No.4 prepared job Card No.JC21004744 dated 18.08.2021 and Job Card No. JC21004963 dated 24.08.2021. Thereafter the complainant several times contacted the OP No.4 for the delivery of his vehicle, but the OP No.4 lingered the matter by making excuses of non availability of the spare parts. When OP No.4 did not repair the car of the complainant within a sufficient time of more than one and half month, the complainant sent a email dated 27.09.2021 to the   OP No.4 alongwith copy of email of the Maruti India Ltd., On email of the complainant, the Maruti India Ltd requested the complainant to share the name and complete address of the last visited workshop and accordingly the complainant sent the same to Maruti India Ltd. The complainant again sent email dated 28.09.2021 to the OP No.4 and clearly mentioned that the car was hit below while passing under construction and was sent for repair on 15.08.2021. The complainant again sent email to the OP No.4 alongwith email of Maruti India Ltd. on 01.10.2021. Thereafter only OP No.4 repaired the car of the complainant and delivered it on 23.10.2021 after a span of more than 2 ½ months and the complainant after adjustment paid Rs.17000/- to the OP No.4.
4.           After delivery of the car in question, the complainant noticed that the vehicle is not repaired properly and still giving the same engine problems and the car often shuts down itself. As such, the complainant informed the   OP No.4 regarding the problem and on asking of the OP No.4, the complainant again sent the car for repair of previous faults to the OP No.4 on 06.01.2022. After examining the above said vehicle of the complainant, the OP No.4 intimated the complainant that its Alternator is not working and needs to be replaced. The complainant replied the same to the OP No.4 through email dated 18.01.2022 that the vehicle was sent just 3 months ago for repair due to coolant leakage & engine problem and was held up in their workshop for more than 2 ½ months and finally it was delivered to the complainant. It was further informed to OP No.4 that the vehicle is under insurance, as such, the defective parts be replaced under the said insurance policy. The complainant then sent email dated 20.01.2022 to the OP No.3 in the matter but to no avail. On 27.01.2022 the complainant received an email from the OP No.4 regarding taking up of the case with insurance company, despite of the fact the car of the complainant had been parked with the OP No.4 since 06.01.2022. Surveyor deputed by OPs No.1 and 2, surveyed the vehicle of the complainant, who verbally opined that it was not a accidental damage and not covered under insurance claim and the faulty parts replacement on payment basis and only thereafter the vehicle can be taken back by the complainant. Thereafter the Surveyor intimated OP No.4 through email dated 16.02.2022 that we have already clarified/confirmed the insurer's liability (which does not exist) to the insured as well as to the workshop representative during our initial inspection/survey at the workshop. In addition to this, we have also confirmed the Insured (and workshop representatives as well) to proceed with the replacement of the faulty MGU unit at their own risk without admitting the liability under the policy in question. We have closed this claim on a No claim basis, and the Final Survey Report has already been submitted to the workshop. On the basis of email dated 16.2.2022, the OP No.4 informed the complainant that the claim of the complainant has been denied by the insurance company after a span of more than 40 days without any plausible reason. As such, under compelling circumstances, the complainant was forced to take back his car on 24.02.2022 after a long span of more than one and half month. Thereafter the complainant several times requested the OPs to replace the damaged car, as the same is fully insured but of no avail. At the same time, OP No.4 miserably failed in providing service to the complainant and kept the vehicle of the complainant for long time in the workshop which is evident from Job card No.JC21004744 dated 18.8.2021 & invoice No. 15/BR/21004106 dated 23.10.2021 and then since 6.1.2022 to 24.02.2022 but the faulty part of the car of the complainant was not replaced. Under those compelling circumstances, the complainant got issued a Regd. Ad legal notice dated 28.03.2022 upon the OPs in the matter but to no avail. Hence, the present complaint.
5.           Upon notice, OPs No.1 and 2 appeared and filed written version and raised preliminary objections with regard to maintainability, bad for mis-joinder of OPs No.1 to 3, cause of action, and estoppal etc. On merits, it has been stated that as per the averments made in the complaint, the grievance of the complainant is against O.P No 4 not OP No to 3. No proper particulars date of events have been mentioned categorically in the complaint. It has also not been disclosed in the complaint as to whether any own damage claim has been lodged with OP No.2 or not. For any claim, 0.D claim form has to be submitted to the Insurance Company in case of loss and intimation regarding any such occurrence has to be given immediately to the Insurance company a per the terms and conditions. Irrespective of claim as alleged in the complaint, one previous claim was submitted by the complainant with job card no. JC21004744, dated 10.08.2021 which was prepared by OP No.4 at Mileage of 34849 kms, against accidental claim and as such an amount of Rs 80,340/- was  paid against the vehicle in question.  Surprisingly again as per claim intimation dated 17.01.2022 it had been informed by the  complainant that on 06.01.2022 at 7.00 PM the vehicle no HR24-N 0039, suffered loss, however in Accident/incident it was narrated that column Short Description "Vehicle given for service in agency & found a fault in ESG" As a matter of fact, in case of any insured vehicle, the intimation thereof has to be given to the insurance company immediately without any delay as per the terms conditions of Insurance Policy and the law, but the complainant failed to do so and intimation was given after several days. As, soon as the matter was reported the O.P No 2, deputed a Surveyor for survey of the alleged damaged vehicle who after going through all the facts and circumstances of the case submitted his report with due application of mind and considering the terms & conditions of Insurance policy and also regarding damages and parts of the vehicle. Though estimate of loss was assessed to Rs. 49,570/- as per Summary Assessment sheet dated 11.02.2022 provided by M/s Eakansh Wheels, Saha. However as per Final Survey Report dated 11.02.2022 submitted by Classic Insurance Surveyors & Loss Assessors Pvt. Ltd, it was opined that "Keeping in view the extent & nature of damages, we feel that the assessment of Rs 0/-".
   1. As per Special Comments: As per the statement mentioned in claim form by the insured when he visited to the workshop for regular maintenance or service work, then workshop representative stated/confirmed to him that the MGU Assy of the vehicle is not working.
   2. Additionally, during initial inspection we have also not observed any physical damage or accidental impact on the subject vehicle, which is also confirmed by the insured in the claim form. The subject affected unit is mount at front portion with the Engine Assy, behind the radiator and fan assembly, which is fitted under the front bumper. We have observe all the components/spares before the MGU Assy, which are front bumper AC and engine radiator Assy, are observed in sound and intact condition
   3. Taking the cognizance of the above, we have the opinion that the damage to MGU Unit is not accidental and/or not related to an accident. It may be due to its lifespan and/or manufacturing glitches. There was no accidental external in nature, as per terms and condition of policy NO LIABLITY attached to Insurer.
6.           As admitted and even mentioned in the complaint itself, that previous claim under job card dated 18.08.2021 has been sanctioned and released by OPs No.1 and 2, which was accepted by the complainant without any protest. Rest of the averments of the complainant were denied by the OPs No.1 and 2 and prayed for dismissal of the present complaint with costs.
7.           Upon notice, OP No.3 appeared and filed written version raising preliminary objections to the effect that the contents of the complaint are wrong; the complainant is not a consumer; the complainant has concealed material facts from this Commission; the complainant has no cause of action to file this complaint; this Commission has no jurisdiction to decide this complaint etc. On merits, it has been stated that OP No.3 being facilitator, only apprises the customers about the features and benefits of motor insurance products offered by insurance companies. After the facilitation by OP No. 3 customers buy insurance as per their own will and volition and pay insurance premium which goes to the concerned Insurance Company only. In lieu of the premium received, Insurance Company insures the vehicle and issues insurance policy to the customer's subject to mutually agreed terms and conditions/IRDAl guidelines. In the instant matter, it is evident on record from the copy of insurance policy that the vehicle has been insured by National Insurance Company Limited in lieu of premium of Rs.22,322/- charged from the complainant. The Contract of Insurance has also been executed between National Insurance Company Limited and the complainant on mutually agreed terms and conditions and the insurance policy has been  only sourced through OP No.3. The car of the complainant is fully insured OP No.3 is not an insurance company to indemnify the complainant for any loss or damage to the vehicle under the insurance cover.  Rest of the averments of the complainant were denied by the OP No.3 and prayed for dismissal of the present complaint with costs.
8.           Counsel for OP No.4 made a statement on 22.09.2022 that written version filed on behalf of OPs No.1 and 2 be read as written version of OP No.4 also.
9.           Complainant tendered affidavit of Tilak Raj Taneja, president of Taneja Public School, 12K.M Stone, Ambala-Jagadhri Road, Tepla, District Ambala as Annexure C-A alongwith documents as Annexure C-1 to C-20 and closed the evidence of the complainant. On the other hand, learned counsel for the OPs No.1 and 2 tendered affidavit of Raman Chhabra, Divisional Manager, The New India Assurance Co. Ltd., Ambala Cantt. and affidavit of Gotam Narayan for classic Insurance Surveyor and Loss Assessors Pvt. Ltd., License No. IRDAI/CORP/200029, Regd. Office:280/1, Sector-41-A, Chandigarh, Annexure OP-1/A and OP-1/B respectively, alongwith documents as Annexure OP-1/1 to OP-1/8 and closed evidence on behalf of the OPs No.1 and 2. Learned counsel for the OPs No.3 and 4 has made separate statements that their written versions be read in their evidence and closed the evidence on behalf of OPs No.3 and 4.
10.           We have heard the learned counsel for the parties and have carefully gone through the case file and also the written arguments filed by the learned counsel for the OPs No.1 and 2.
11.           Learned counsel for the complainant submitted that by not repairing or replacing the defective parts in the vehicle in question despite the fact that the said vehicle was under warranty period, the OPs are deficient in providing service and indulged into unfair trade practice.
12.           Learned counsel for OPs No.1, 2 and 4 submitted that since the defect in the ESG (MGU Assembly) of the vehicle in question did not occur due to any accidental impact/physical damage but it was due to normal wear and tear of the vehicle in question, which was found to be occurred during regular maintenance or service work, the insurance company cannot be made liable to pay any amount towards repair of the said vehicle. The surveyor has also come to such a conclusion. He further submitted that as per claim intimation dated 17.01.2022 it had been informed by the complainant that on 06.01.2022 at 7.00 PM the vehicle no HR24-N 0039, suffered loss and in the column Short Description it is mentioned that "Vehicle given for service in agency & found a fault in ESG" .
13.           Learned counsel for OP No.3 submitted that OP No.3 being facilitator, only apprises the customers about the features and benefits of motor insurance products offered by insurance companies. From the copy of insurance policy, it is evident that the vehicle has been insured by National Insurance Company Limited in lieu of premium of Rs.22,322/- charged from the complainant. He further submitted that OP No.3 has no role qua rejection of claim of the complainant in respect of the vehicle in question.
14.           Admittedly the vehicle in question was purchased by the complainant in the year 2018 and insured under the policy in question.  It is also not in dispute that during pendency of the said insurance policy, the vehicle in question was got repaired vide job cards dated 18.08.2021 and 24.08.2021 (Annexure C-3 and C-4), as the same had been got hit below on 15.08.2021, while passing under construction site. It is significant to mention here that the OPs No.1 and 2 paid an amount of Rs.80,288/-, to the OP No.4, and the complainant had issued Satisfaction Voucher dated 16.08.2021, Annexure OP-1/8.  Now, as per the complainant, he sent the said vehicle to OP No.4 on 16.01.2022, for repairs as its engine was shutting down itself and it has been informed to him by OP No.4 that its ESG (MGU Assembly) defective and needs replacement on payment basis, on the ground that OPs No.1 and 2 have refused to pay for the said part. Thus, at this juncture, the question which is required to be determined is whether OPs No.1 and 2 are liable to make payment of the defective ESG (MGU Assembly) or not. It may be stated here that the complainant has failed to place on record even an iota of evidence that the said defect in ESG (MGU Assembly) has arisen on account of any accident of the said vehicle, which entitles him to get replacement of the said part under the policy in question. On the other hand, in the Motor Claim Form, Annexure OP-1/2 and OP-1/3 dated 17.01.2022, the complainant himself has specifically mentioned therein that Vehicle given for service in agency and found a fault in ESG. At the same time, the complainant has also failed to place on record any evidence to prove that as on the date, when the ESG (MGU Assembly) was found to be defective, the vehicle in question was under warranty period. Under these circumstances, we are of the considered view that once neither the defect of ESG (MGU Assembly) arose due to any accident of the vehicle in question nor it has been proved that when the said defect was found in the said vehicle it was under warranty period, as such, the complainant cannot seek any immunity from making payment towards replacement of the said defective part. It is therefore held that the complainant is liable to make payment towards the defective part, to get his vehicle repaired from OP No.4.
15.           For the reasons recorded above, this complaint stands dismissed with no order as to costs. Certified copies of the order be sent to the parties concerned, as per rules.  File be annexed and consigned to the record room.

 Announced:- 09.07.2024.

 

(Vinod Kumar Sharma)	(Ruby Sharma)	(Neena Sandhu)
Member	Member	President