BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, FEROZEPUR.
C.C. No. 68 of 2015 Date of Institution: 10.2.2015
Date of Decision: 31.8.2015
Makhan Singh, Aged 38 years, Son of Sh. Mehal Singh, Resident of village Awan, Tehsil Guruharsahai, District Ferozepur.
....... Complainant
Versus
- New India Assurance Company Ltd., Divisional Office, Malwal Road, Ferozpur City through its Divisional Manager.
2. Rishi Bahsin, Surveyor & Loss Assessor J-80,Sarabha Nagar, Near Guru Nanak College, Ludhiana.
........ Opposite parties
3. Radiant Toyata (Sales and Service Centre), village Malwal Moga Road, Ferozepur through its Incharge cum authorized signatory.
........ Performa Party
Complaint under Section 12 of the Consumer Protection Act, 1986.
* * * * * *
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PRESENT :
For the complainant : Sh. Hardeep Bajaj, Advocate.
For opposite party No.1 : Sh. M.L. Chugh, Advocate.
For opposite parties Nos.2 and 3 : Ex-parte.
QUORUM
S. Gurpartap Singh Brar, President
Mrs. Inderjeet Kaur, Member
ORDER
GURPARTAP SINGH BRAR, PRESIDENT:-
Brief facts of the complaint are that the complainant is owner of the car which was insured with opposite party No.1 vide policy No.3670031130100009946 which was valid from 27.1.2014 to 26.1.2015. The vehicle of the complainant met with an accident on 16.5.2014. The complainant immediately informed opposite party No.1 who appointed Sh. Pawan Kumar Surveyor to conduct spot survey. The complainant parked the vehicle for the purpose of repair with opposite party No.3. Opposite party
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No.3 prepared the estimate of the vehicle. Opposite party No.3 assured complainant to deliver the vehicle fully repaired within one and half month. During repair it was found by opposite party No.3 that the engine oil of the vehicle of the complainant was leaked and having been fallen on the road. Opposite party No.3suspected that there is some damage in the engine of the vehicle of the complainant. Opposite party No.3 prepared supplementary estimate for an other sum of Rs.1,94,000/- in addition to the earlier estimate of Rs.10,00,000/-. Opposite party No.2 verbally instructed opposite party No.3 to repair the engine of the vehicle of the complainant when opposite party No.3 dismantling of the engine of the vehicle of the complainant it was found by opposite party No.3 that some other parts of the engine were required to be replaced and consequently an other supplementary estimate of Rs.58,000/- was got prepared. During inspection, the engine of the vehicle of the complainant was found broken and opposite party No.2 was informed regarding the broken of engine of the vehicle. Opposite party No.2 asked the complainant to get the technical report from the engineer of opposite party No.3 whether the block of the engine in the accident could be damaged. Thereafter, the car was fully repaired and handed over to the complainant by opposite party No.2. Opposite party N o.3 issued the bill for Rs.8,61,000/-
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which was paid by the complainant through RTGS. The complainant has been requested opposite party No.2 to submitted the report on the basis of actual loss suffered by the complainant in the accident in question. After that opposite party No.2 called the complainant and asked him that if the complainant would pay Rs.50,000/- to opposite party No.2 then the claim of the complainant will be passed. The complainant refused to pay Rs.50,000/- to opposite party No.2. The complainant brought this fact to the notice of opposite party No.1 who assured the complainant that the claim of the complainant shall be paid. Thereafter, the complainant also served a legal notice to all the opposite parties vide registered cover dated 27.10.2014. Even before that the complainant had served a notice for payment of the claim under registered cover dated 16.9.2014. Ultimately, the complainant was paid an amount of Rs.4,82,842 on 19.12.2014. The complainant accepted the amount as part payment. The complainant is entitled to the claim full amount of Rs.8,61,000/- -(minus) 10% depreciation i.e. Rs.7,75,000/-along with interest @12% leaving a period of three months from the date of accident. Pleading deficiency in service and unfair trade practice on the part of the opposite parties, the complainant has prayed that the opposite parties be directed to pay the remaining amount of
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Rs.2,92,058/- alongwith interest leaving period of 3 months from the date of accident, to pay Rs.30,000/- as charges of Taxi, to pay Rs.1,00,000/- as compensation for mental harassment and to pay Rs.25,000/- as litigation expenses.
2. The opposite parties Nos.2 and 3 did not appear in this Forum despite service of notice. Therefore, the opposite parties Nos.2 and 3 were proceeded against Ex-parte vide order dated 24.3.2015.
3. Upon notice, the opposite party No.1 appeared and filed its written reply to the complaint. In its written reply, the opposite party No.1 took some preliminary objection interalia that the present complaint is false, frivolous and vexatious; that the complainant has not come to this Forum with clean hands and that the complaint is not maintainable. On merits, it has been pleaded in the written reply that opposite party No.2 has not verbally instructed to opposite party No.3 to repair the engine of the damaged car. The opposite party asked the surveyor to explain that there was any loss due to accident to the engine block. The block was damaged only from inside alongwith one connecting rod and all these happened when attempts were made to start the engine after the accident. The vehicle was toppled/rolled over in the accident and due to this, the engine oil moves from oil chamber
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to combustion chamber, intake and exhausts system. The engine of the car of the complainant then locks and a shut off so no loss occurs in the engine and the loss occurs if attempts are made to start the engine without getting the above mentioned parts cleaned and it was the duty of the insured to safeguard the vehicle after accident. Further it has been pleaded that as per the technical report, it was mentioned that loss of engine was consequential loss and it was not result of accident and rather resultant after the accident. The loss of the engine block and connecting rod was not covered under the policy. So, the money spent by the complainant on the repair of the engine was not payable as the bill submitted by the insured to the opposite party. Other allegations of the complaint have been denied and dismissal of the complaint has been prayed for.
3. Ld. Counsel for the complainant tendered into evidence Ex. C-1 to Ex. C-13 and closed evidence on behalf of the complainant. On the other hand, learned counsel for the opposite party tendered into evidence Ex. OP-1/1 to Ex. OP-1/8 and closed evidence on behalf of opposite parties.
4. We have heard the learned counsel for parties and have also gone through the file.
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5. The grievances of the complainant is that the opposite party has paid an amount of Rs.4,82,842/- on 19/12/2014 to the complainant and the complainant accepted the amount as part payment. Whereas the complainant is entitled to the claim full amount of Rs.8,61,000/- - (minus) 10% depreciation i.e. Rs.7,75,000/-along with interest @12% leaving a period of three months from the date of accident. The version of the complainant is that the vehicle of the complainant met with an accident on 16.5.2014 and the complainant parked the vehicle for the purpose of repaired with the opposite parties. Opposite party No.1 appointed Pawan Kumar Surveyor who conduct the surveyor report. Opposite party No.3 prepared the estimate of the vehicle and assured that opposite party No.3 will deliver the vehicle fully repaired within one and half month. During repair it was found by opposite party No.3 that the engine oil of the vehicle of the complainant was leaked and having been fallen on the road. Opposite party No.3 suspected that there is some damages in the engine of the vehicle of the complainant. Opposite party No.3 prepared supplementary estimate for an other sum of Rs.1,94,000/- in addition to the earlier estimate of Rs.10,00,000/-. Further it has been pleaded that opposite party No.2 verbally instructed opposite party No.3 to repair the engine of the vehicle of the
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complainant and when opposite party No.3 dismantling of the engine of the vehicle of the complainant it was found by opposite party No.3 that some other parts of the engine were required to be replaced and consequently an other supplementary estimate of Rs.58,000/- was got prepared. During inspection, the engine of the vehicle of the complainant was found broken and opposite party No.2 was informed regarding the broken of engine of the vehicle. Opposite party No.2 asked the complainant to get the technical report from the engineer of opposite party No.3 whether the block of the engine could be damaged in the accident. Thereafter, the car was fully repaired and handed over to the complainant by opposite party No.2. Opposite party N o.3 issued the bill for Rs.8,61,000/- which was paid by the complainant through RTGS. The complainant has been requested opposite party No.2 to submit the report on the basis of actual loss suffered by the complainant in the accident in question. But opposite party No.2 demanding Rs.50,000/-. From the complainant to submit the report in his favor. The complainant refused to pay Rs.50,000/- to opposite party No.2. The complainant brought this fact to the notice of opposite party No.1 who assured the complainant that the claim of the complainant shall be paid. The opposite parties paid to the complainant an amount of Rs.4,82,842/- on
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19.12.2014 which was accepted by the complainant as part payment. The complainant has placed on file the copy of bill EX.C-4 to prove that the complainant has paid Rs.8,59,144/- to the Radiant Toyata. This fact is not denied by opposite party No.1. On the other hand, the version of the opposite party is that the engine of the vehicle of the complainant was not damaged in accident when the complainant gave intimation to opposite party No.1, then the opposite party asked the surveyor to explain whether there were any damages to the engine block due to accident. The block was damaged only from inside alongwith one connecting rod and all these happened when attempts were made to start the engine after the accident. The vehicle was toppled/rolled over in the accident and due to this, the engine oil moves from oil chamber to combustion chamber, intake and exhausts system. The engine of the car of the complainant then locks and a shut off so no loss occurs in the engine and the loss occurs if attempts are made to start the engine without getting the above mentioned parts cleaned and it was the duty of the insured to safeguard the vehicle after accident. To prove his version opposite party No.1 has placed on copy of technical report EX. OP-1/7 in which it is mentioned that we observed that engine oil was present in combustion chamber, intake system & exhaust system which were
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very unlikely to be present during normal operation of the engine. It might be because of entry of engine oil in above said parts during the vehicle rollover, Subsequently, if the engine runs, it will create hydrostatic lock in the engine and it will bend the connecting rod, its lead to damage of engine cylinder block. In the written reply, the opposite parties pleaded that the block was damaged only from inside alongwith one connecting rod and all these happened when attempts were made to start the engine after the accident. The vehicle was toppled/rolled over in the accident and due to this, the engine oil moves from oil chamber to combustion chamber, intake and exhausts system. The engine of the car of the complainant then locks and a shut off so no loss occurs in the engine and the loss occurs if attempts are made to start the engine without getting the above mentioned parts cleaned and it was the duty of the insured to safeguard the vehicle after accident. The opposite party has not placed any evidence to prove that block was damaged only from inside alongwith one connecting rod and all these happened when attempts were made to start the engine after the accident and the vehicle was toppled/rolled over in the accident and due to this, the engine oil moves from oil chamber to combustion chamber, intake and exhausts system and the engine of the car of the complainant then locks and a shut off so no loss
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occurs in the engine and the loss occurs if attempts are made to start the engine without getting the above mentioned parts cleaned and it was the duty of the insured to safeguard the vehicle after accident.
6. The plea of opposite party No.1 that the loss to the engine block and connecting rod is a consequential loss and is not covered under the policy does not hold any weight and is not renable as no term and conditions have been placed on record by opposite party No.1 insurance company that consequential loss is not covered under the policy and there is no term and condition that the driver of the vehicle would not try to restart the insured vehicle after the accident. It is a matter of common knowledge that any prudent man would try to restart the vehicle after the accident and if any loss occurs due to the effort of the driver of the vehicle to restart the vehicle, that cannot be termed as consequential loss as the effort to restart the vehicle would be in continuation of the series of events following the accident specifically when the fact of the accident has been admitted by the opposite parties. The accident in question occurred on 16.5.2014 and the report of the opposite party No.3 terming it as consequential damage is dated 3.9.2014 and the report of the surveyor is dated 19.9.2014 and 23.9.2014 after about 4 months from the date of accident. Even, the opposite party No.1 insurance
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company has not placed on record the report of the surveyor who conducted the spot survey which was the best evidence to prove the actual state of things.
7. That the report of the surveyor dated 19.9.2014 and 23.9.2014 is not specific, clear and there is no rationale basis for the remarks given by the surveyor in the said report and the same is not based upon any sound logic and reasoning. Even no affidavit of the surveyor has been placed on record by the opposite party No.1 to substantiate the version put forward by the said surveyor. In our considered opinion, the opposite party No.1 has miserably failed to adduce any cogent and convincing evidence, except the report of the surveyor which cannot be termed as reliable piece of evidence.
8. Moreover, the report dated 3.9.2014 of the opposite party No.3 cannot be relied upon as the opposite party has chosen not to appear before the court and no affidavit of the person who issued the said report on behalf of opposite party No.3 has been placed on record by the opposite party No.3.
9. The loss of Block assy of engine is assessed Rs.2,03,866/- by the surveyor which is proved from the report of the surveyor Ex. OP-1/1. So, the complainant is entitled to receive the amount of Rs.2,03,866/- for the
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repair of the damaged engine. It is proved that opposite party No.1 is deficient in not providing the proper service to the complainant. So, opposite party No.1 is liable to pay suitable compensation.
10. In view of what has been discussed above, this complaint is accepted and opposite party No.1 is directed to pay an amount of Rs.2,03,866/-. Further opposite party No.1 is also directed to pay a sum of Rs.5000/- as compensation for harassment and Rs.3000/- as litigation expenses to the complainant. The present complaint against opposite party Nos.2 and 3 is dismissed. This order is directed to be complied with by the opposite parties within a period of thirty days from the date of receipt of a copy of this order. File be consigned to the record room.
Announced (Gurpartap Singh Brar)
31.08.2015 President
(Inderjeet Kaur) Member
