DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi- 110016
Case No. 256/2014
Trusound Pvt. Ltd.
Through Sh. Sanjiv Batra
Director Commercial, 31,
EHTP, Sector-34, Gurgaon-122001
….Complainant
Versus
New India Assurance Co. Ltd.
R-7A, Green Park Main,
New Delhi-110016
….Opposite Party
Date of Institution : 04.07.2014
Date of Order : 25.11.2022
Coram:
Ms. Monika A Srivastava, President
Ms. Kiran Kaushal, Member
Sh. U.K. Tyagi, Member
ORDER
Member: Kiran Kaushal
- Brief facts as pleaded by the complainant are that the complainant got his Honda Civic Vehicle insured from New India Assurance Co. Ltd., hereinafter referred to as OP. Complainant was provided policy-cum-certificate covering the risk comprehensively for the period of the one year from 15.12.2012 to 14.12.2013. The complainant paid premium of Rs.17,024/- for the same. It is stated that policy terms and conditions were not provided to the complainant alongwith the documents or thereafter.
- It is next stated that the said insured vehicle was damaged due rain water logging under Badarpur Flyover on 19.01.2013 and OP was intimated immediately. On the advise of OP, complainant got the damaged vehicle towed to a service station, which raised an amount of Rs.3,63,801/- towards repairs. OP deputed a surveyor, who visited the workshop on 22.01.2013, took photographs and another documents, including original estimate of repairs, claim form, driving license of driver etc. It is stated that the claim was not settled despite receiving all the requisite documents. Complainant sent emails on 21.01.2013 and 22.01.2013, but after getting no response from OP was forced to take delivery of his car from workshop after making payment of Rs.3,47,867/- on 19.02.2013. Complainant pursued the claim of the vehicle from OP thereafter but no response was received. Complainant vide email dated 23.12.2013 requested again for settlement of the claim and also for providing copy of report of surveyor but to no avail. Complainant received email dated 24.02.2014, wherein OP had repudiated his claim on frivolous ground.
- Alleging deficiency in service on part of OP, complainant approached this Commission for directions to OP to pay Rs.3,47,887/- with interest @18% for settlement of the claim and Rs.1,50,000/- for mental agony, harassment and cost of litigation.
- OP resisted the complaint stating inter-alia that OP provided the insurance cover to the complainant alongwith complete schedule containing terms, conditions and exclusion clauses. OP vehemently denied that the terms and conditions of the policy were not provided to the complainant as the same were available on the internet and has been accessible to all. It is stated that on the policy documents provided to the complainant it is mentioned that the policy ‘is issued subject to terms, conditions and exception applicable to package/liability policy attached/available on the website, http;//newindia.co.in’.
- It is submitted that on information received from the complainant, OP deputed a surveyor to assess the damage done to the car. The surveyor visited the workshop on 22.01.2013, where the car was reported to have been taken for repairs, without any delay.
- The relevant portion of the surveyor report dated 30.05.2013 is as follows:-
“On receipt of inspection from underwriters office, the undersigned visited the workshop of M/s. Lally Automobiles Pvt. Ltd. Okhla, New Delhi and found the engine assy was removed the said car & got complete dismantled, therefore undersigned inspected each & every part of engine assy like engine block, connecting rods, crank shaft etc. & it has been observed that the cylinder block No.3 having mark of repeated cranking. After complete inspection of engine assy it has been observed that due to entering of water in the engine assy thru air filter or silencer as a result there was hydro static lock inside the engine block but insured’s driver would have tried to restart the engine by external force, i.e., cranking through self starter as a result due to movement of crank shaft the No.3 connecting rod twisted/bent and finally broken due to excessive pressure over the cylinder piston and due to breakage of connecting rod the same has broken the engine block from two sides. And in my opinion this is a clear case of Consequential loss which is not covered under the insurance policy….”
7. It is further stated that the complainant did not reply to the written and oral request of the surveyor, wherein the complainant was asked to clarify as to why the vehicle was dismantled before the survey. The surveyor sent several reminders through registered post on 27.02.2013, 25.03.2013 and on 03.05.2013 and after having received no response from the complainant, the surveyor submitted his report recommending to close the file as no claim being ‘consequential loss’. Thus the claim of the complainant was declined by OP.
It is therefore prayed that complaint be dismissed with costs being devoid of merit.
- Rejoinder is filed on behalf of the complainant reiterating the averments made in the complaint. Evidence by way of affidavit and written submissions are filed on behalf of parties. Material placed on record is perused. Submissions made on behalf of the complainant are heard.
- Admittedly, complainant’s vehicle was insured by OP for the currency period of 15.12.2012 to 14.12.2013 and the said insured vehicle was damaged due to rain water logging on 19.01.2013. Dispute between parties arose when the claim of the complainant was declined by OP. It is not in dispute that the surveyor was timely appointed by OP, who visited the workshop on 22.01.2013 and surveyed the vehicle.
- As per the report filed by the surveyor, he sought clarification from the complainant as to why the engine of the vehicle was dismantled prior to inspection of the surveyor and upon not receiving any reply the surveyor requested to close the claim file as ‘No claim’. It is not in dispute that the parts dismantled and inspected by the surveyor were of not the subject vehicle. Any which ways the engine/vehicle could not have been inspected without dismantling. Therefore, we are of the opinion that OP cannot reject the claim of the complainant only on this ground.
- Further on Perusal of Section 1 of the Insurance Policy which covers the loss of or damage to the vehicle insured, the insurance company was to indemnify the insured against loss or damage to the vehicle by Flood, Typhoon, Hurricane, Storm, Tempest, Inundation, Cyclone, Hailstorm, Frost. It is not in dispute that damage to the subject insured vehicle was due to water ingress which led to hydro static lock.
- The issue involved in this complaint is no more res integra, in view of decision of Hon’ble National Commission in Bharti Axa General Insurance Company Limited Vs Chander Mohan Goyal Revision Petition No.4504 of 2014. Relevant portion of the said judgement is reproduced as under:-
“We have perused the insurance policy issued by the petitioner-company to the complainant. The said policy while covering damage due to flood, cyclone, hailstorm, etc., does not exclude the loss to the vehicle due to hydro static lock. In the absence of such an exclusion, the insurance company will have to reimburse cost of repair of the vehicle on account of damage by heavy rains and flooding irrespective of whether the said loss occurred due to hydro static lock or for some other reason. If despite IRDA permitting charging of an extra premium for reimbursement in respect of loss due to hydro static lock the petitioner-company did not charge such a premium, it is only itself to blame for such a situation because the policy issued by it while granting insurance against damage due to flooding, etc,. did not exclude the loss/damage to the vehicle on account of the aforesaid reason. Therefore, in our opinion, in a damage of this nature, unless expressly excluded, in the insurance policy, damage to the vehicle on account of hydro static lock would also be covered for the purpose of reimbursement. For this reason alone the petitioner-company must necessarily fail”.
13. Similar view was taken by Hon’ble National Consumer Disputes Redressal Commission in FA No. 1 of 2017 in TATA AIG General Insurance Company Limited. Vs M/s Ambience Leasing Pvt. Ltd. & anr.
14. Moreover, we are not in agreement with the report of the surveyor as it is matter of common knowledge that once the water enters the engine one tries to restart the engine through self-starter or by other modes. Resultantly, if something got damaged in the engine it cannot be considered ‘consequential loss’.
15. In view of the aforesaid discussion, we are of the opinion that OP was deficient in providing service by not indemnifying the loss to the vehicle insured. Therefore OP is directed to pay Rs.3,47,887/- @ 4% from the date of repudiation within three months from the date of order. Additionally, OP is directed to pay Rs.20,000/- towards compensation for harassment and litigation cost. Failing which OP shall pay Rs.3,47,887/- @9% p.a. from the date of filing of the complaint till realization.
File be consigned to the record room and order be uploaded on the website.
