Haryana

Yamunanagar

CC/248/2014

Sudesh Sharma S/o Devi Chand - Complainant(s)

Versus

National Insurance Company - Opp.Party(s)

Inperson

10 Apr 2015

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, YAMUNA NAGAR

                                                                                                Complaint No…..248 of 2014.

                                                                                                Date of institution: 23.5.2014

                                                                                                Date of decision:10.4.2015

Sudesh Sharma Advocate son of Sh. Devi Chand Sharma, resident of H. No. 875, Sector-17, HUDA, Jagadhri, District Yamuna Nagar.   

 

                                                                                                                       …Complainant.

                                                Versus

 

1. National Insurance Company Ltd., Divisional Office, New Fountain Chowk, Workshop road, Yamuna Nagar.  
2. National Insurance Company Ltd., Divisional Office-II, 2^nd Floor, Narain Complex, Civil Road, Rohtak-124001.
3. National Insurance Company Ltd., Ambedkar Chowk, Gohana, District Sonepat through Branch Manager.
4. Maruti Udhog Ltd. Gurgoan.
5. Jagmohan Motors Ltd. Panipat Road, Gohana, District Sonepat.
6. M/s Pandit Automobiles, Jagadhri through Manager.

                                                                                                                   ….…Opposite parties. 

 

                        Complaint under section 12 of

                        the Consumer Protection Act.

 

CORAM:          SH. A.K.SARDANA PRESIDENT,

                        SH. S.C.SHARMA, MEMBER.

 

Present: Complainant in person.   

              Sh. Parmod Gupta, Advocate, counsel for OPs No.1 to 3.

              Sh. Vikas Aggarwal, Advocate, counsel for OP No.4.

              Sh. Rahul Dev Advocate, counsel for OP No.5.

              Sh. Amit Bansal, Advocate, counsel for OP No.6. 

 

ORDER

 

                        Brief facts leading to the institution of the present complaint are that the complainant is registered owner of vehicle i.e. Maruti Swift VXI bearing registration No. HR-02W-5051 and the same is insured with the OPs No. 1 to 3 i.e. National Insurance Company Ltd. vide policy No. 35101031116130736655 through M/s Pandit Automobiles, Jagadhri, who is authorized dealer of Maruti and the officials of said dealer who deals in insurance had assured the complainant that in case of any mishappening,  the vehicle shall be repaired free of costs due to cashless policy for the period effective from 9.2.2012 to 8.2.2013.  The complainant had gone to Rohtak from Jagadhri for some personal work on 26.5.2012 with his family members and was returning to his house at Jagadhri on the said day. At about 12.00/12.30 P.M, the vehicle of the complainant got damaged due to strike of some substance underneath  the vehicle on Rohtak-Panipat Road near Gohana. The complainant immediately contacted the Maruti Company on toll free No. 1800 1800 180 and made a complaint regarding damage of the vehicle and the complaint was registered vide complaint No. 588357 dated 26.5.2012 at 12.26 P.M. and he was advised to contact on telephone No. 1800420.  Accordingly, the complainant contacted on the said number and thereafter he received a telephone call from Mobile No. 9812000403 for intimating location of the incident and advised to contract on mobile No. 999220357 at Jagmohan Motors Ltd. Khanpur Chowk, Panipat Road, Gohana. The officials of Jagmohan motors Gohana visited the spot after about 2.30/3.00 hours and brought the vehicle at their service centre/agency. They had retained the vehicle for repair and total estimated cost of Rs. 20,000/-. The complainant gave an intimation to the Insurance Company through Fax as well as through registered post on 29.5.2012. Thereafter, a letter dated 30.5.2012 was received from National Insurance Company Gohana asking the complainant to send claim form and he sent the same. Thereafter, he again received a letter dated 12.6.2012 whereby he was asked to send the claim papers regarding repair of vehicle in question which were sent on 16.6.2012 but again received letter dated 26.6.2012 regarding intimation of claim form from NIC Gohana. After repair of the vehicle the complainant visited the agency of Jagmohan for taking the car but they refused to deliver the same without deposit of repair charges whereupon he told that he was not liable to pay any service or any kind of charges as the vehicle stands insured with the National Insurance Company and the Insurance company is liable to indemnify the agency being the cashless policy but of no use and finding no other alternative he had to deposit Rs. 18800/- with the Jagmohan Motors and got the vehicle from the said Agency whereas OP No.5 Jagmohan Motors issued bill of Rs. 18000/-. Thereafter, the complainant was informed by the Insurance Company vide letter dated 12.2.2013 that the damages were due to wear & tear and thus policy does not cover consequential loss and therefore the company is closing the claim as “No Claim”. As such, the insurance company has wrongly repudiated his claim and prayed for directing the OPs to make the payment of Rs. 18800/- alongwith interest at the rate of 18% per annum w.e.f. 2.6.2012 to till its realization besides refund of the excess amount so received by the Jagmohan Motors, Gohana alongwith compensation to the tune of Rs. 50,000/- on account of harassment suffered by him as well as cost of litigation etc.

2.                     Upon notice, Ops appeared through their counsels and filed separate written statements. OP No.1 to 3 urged in their reply that the vehicle in question was fully insured with the answering OPs and cashless policy for the period from 9.2.2012 to 8.2.2013 was issued to the complainant alongwith its terms and conditions and as per the terms and conditions of the policy, section-I is with respect to loss or damage to the vehicle insured.  As per exception clause, the company shall not be liable to make any payment in respect of consequential loss, deprecation, wear and tear, mechanical or electrical break down, failure or breakages nor for damages caused by overloading or strain of the insured vehicle nor for loss or damages to the accessories by burglary, house breaking or theft unless such insured vehicle is stolen at the same time. On receipt of intimation, the answering OPs immediately appointed an independent  surveyor and loss assessor Shri Ashok Kumar Sharma of Rohtak, who surveyed the said vehicle at M/s Jagmohan Motors Ltd. Gohana on 30.5.2012 and gave his fact finding report dated 18.9.2012 assessing net loss of Rs. 16,009.74 paise excluding salvage value of approximately Rs. 500/- subject to terms and conditions of the policy and it is clearly stated by him that there is no external damage to the vehicle meaning thereby the engine was ceased due to lack/leak of engine oil and the company is not liable in respect of consequential loss, depreciation, wear and tear, mechanical breakdown, failure of breakage, which falls in exception clause of the terms and conditions of the policy and thereafter the complainant was informed vide letter dated 12.2.2013 that the said loss is not covered under the policy and the claim stands closed as no claim which was legal and valid and within four corners of law and as such complaint is not maintainable and is liable to be dismissed. 

3.                     OP No.4 averred in his written statement that the present complaint is without cause of action against the answering OP. The liability of the answering OP being the manufacturer of the vehicle is limited to provide warranty benefits as per clause 3 of the warranty policy as set out in the owner’s manual and Service Booklet. It is an admitted fact that the vehicle had met with an under body hit while he was coming from Rohtak and he has also specifically stated that the delay was on the part of Jagmohan Motors (OP No.5) to bring the vehicle to their service station. Therefore, it is for the OP No.5 to answer the allegation made against them. The answering OP has no role to play in the present case. There is no deficiency on the part of answering OP and the complainant was himself at fault due to his negligent driving which resulted into the under body hit for which he had to suffer and due to the same reason the damage is not covered under warranty as per clause 4(d) of warranty agreement. The liability of the answering OP is limited upto providing three free services which they fulfilled and  thus the complaint qua OP No.4 is liable to be dismissed with costs. 

4.                     OP No.5 has averred in the written statement that the accidental vehicle of the complainant was repaired but he did not supply any document of the said vehicle to the answering OP and the estimate of Rs. 20,000/- for repairing the said vehicle was told to him orally. The complainant did not supply any document at the time of repairing of the said vehicle and did not tell about the insurance policy of the vehicle and on repeated requests made by the answering OP, the complainant paid an amount of Rs. 18,000/- as repairing charges of the said vehicle and then the answering OP handed over the said vehicle to him. The complainant is not entitled to get any compensation from the answering OP as there is no deficiency in service on the part of answering OP and prayed for dismissal of complaint against the answering OP.

5.                     OP No.6 in their written statement has averred that the Insurance Policy was issued by National Insurance Company Ltd. under the signatures of their authorized representative whereas the answering OP nowhere comes in the picture nor they ever stated to the complainant that in case any mishappening, the vehicle shall be repaired free of costs. The answering OP has no knowledge regarding the incident. However, as per best knowledge of the answering OP, the story laid down by the complainant does not fall in the loss or damage to the vehicle and it falls in the exception clause of Section I of the policy and as such there is no deficiency in service on the part of the answering OP because they were liable only if there was such default at the time of purchase of vehicle. It is a matter in dispute between the complainant and the National Insurance Company and as such the complaint against the answering OP is not maintainable and is liable to be dismissed.

6.                     To prove his case, complainant has tendered into evidence his affidavit as Annexure CX and documents as Annexures C-1 to C-17 and closed his evidence whereas on the other hand, counsel for OPs No.1 to 3 has tendered affidavit of Sh. Ashok Kumar Sharma as Annexure RX, Affidavit of Sh. Parveen Kumar, A.O. as Annexure RY and documents as Annexures R-1 to  R-10 and closed the evidence on behalf of OPs No.1 to 3.  Counsel for OP No.4 also tendered document as Annexure R.4/1 and closed evidence on behalf of OP No.4. Counsel for OP No.6 also tendered into evidence affidavit of Shri Jitender Sharma, M.D. Pandit Automobiles as Annexure R6/X and closed the evidence on behalf of OP No.6 whereas counsel for OP No.5 has not tendered any evidence on behalf of OP No.5 despite last opportunity, hence evidence of OP No.5 was closed vide court order dated 10.3.2015.

7.                     We have heard the complainant as well as learned counsel for the OPs and have gone through the pleadings as well as documents placed on file wherefrom it transpires that the OP No.1 to 3 have repudiated the claim of the complainant on the ground that the damages to the vehicle were due to wear and tear. The vehicle in question was dismantled before survey and the engine was seized due to leakage of oil and as such the company is not liable in respect of consequential loss and the claim of the complainant was closed as “No Claim” vide letter dated 12.2.2013 (Annexure C-14).

8.                     To rebut the contention of OPs, the complainant argued that OPs Insurance Company used to issue cover notes to the complainant without any terms and conditions and thereafter neither the insurance policies nor any terms and conditions thereof were ever supplied to the complainant till date. The OPs have neither mentioned to whom these terms and conditions were supplied nor there is any proof of sending the same to the complainant.  

                        To further substantiate the aforesaid version, the complainant submitted various case laws reported in 1(2000) CPJ page 1 Supreme Court titled as Modern Insulators Vs. OIC exclusion clause, 2005(3) CPR page 24 NC titled as Atlas vs. NIA Exclusion cause,2013 (1) CLT page 589  (National Commission), titled as NIA versus Pabhati Sridevi etc. and 2014(2) CLT page 305 (National Commission) titled as The Oriental Insurance Company vs. Satpal Singh wherein it has been held that “ when the terms and conditions have not been supplied/ communicated to the consumer, it cannot be invoked against the consumer. When the exclusion clause was never disclosed to the insured, the insurance company cannot take the benefit of the said clause. Insured/consumer cannot be affected by such exclusionary clause”.

9.                     In view of the aforesaid discussion, we are of the confirmed view that the OPs No. 1 to 3 have failed to prove by cogent documentary evidence that damage to the vehicle in question was caused due to leak/lack of engine oil as alleged in the reply and further failed to supply the terms and conditions to the complainant. The authorities (supra) tendered by the complainant are fully applicable in the present case.  Besides this, the OPs No.1 to 3 also appointed Sh. Ashok Kumar Sharma, Surveyor & Loss Assessor to assess the loss caused to the vehicle of complainant who inspected the vehicle in question on 30.5.2012 and after inspection vide his report dated 18.9.2012 (Annexure R-5) he has mentioned that he visited to the workshop of M/s Jagmohan Motors Ltd. Gohana where the insured had brought his car from spot of accident to the workshop and estimated a loss to the tune of Rs 20,000/- and after applying excess clause as well as depreciation charges assessed a net loss to the tune of Rs. 16009/-. Thus, it is clear that the net liability of Rs. 16009/- of OPs No.1 to 3 Insurance company has been assessed by the Surveyor who is the best person to assess the loss and the insurance company can’t evade its liability from indemnifying the claim which has been assessed by its own Surveyor.  So, in these circumstances, the complainant cannot be deprived of his legal claim and as such, we have no hesitation in holding that the OPs No.1 to 3 are admittedly deficient in providing proper services to the complainant and are also guilty of committing unfair trade practice by wrongly repudiating the genuine claim of the complainant. Hence, we allow the present complaint and direct the OPs No.1 to 3 to comply with the following directions within 30 days from the communication of this order:-

1. To release the insurance claim amounting to Rs. 16009/- to the complainant which has been assessed by the surveyor vide report Annexure R-5 alongwith simple interest @ 9% per annum from the date of institution of complaint to the date of decision.
2. To pay Rs. 3,000/- as compensation on account of harassment & Mental agony etc.

                        The aforesaid directions must be complied with by the OP-Insurance Company within the stipulated period otherwise all the aforesaid awarded amounts shall fetch further simple interest @ 12% per annum for the period of default. The complaint is decided accordingly in the 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:10.4.2015

                                                                                          (A.K.SARDANA)

                                                                                           PRESIDENT

 

                                                                                          (S.C.SHARMA)

                                                                                           MEMBER