DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,<br /> BATHINDA (PUNJAB)<br /> <br /> CC No. 88 of 03.04.2007<br /> Decided on : 07-08-2007 <br /> <br /> Gursewak Singh S/o Sh. Ajaib Singh R/o 346 Model Town, Bathinda.<br /> <br /> ... Complainant<br /> Versus<br /> 1.The New India Assurance Co. Ltd., Divisional Office, 2090 The Mall, Bathinda.<br /> 2.The New India Assurance Co. Ltd., Registered & Head Office, New India Assurance Building, 87 M.G. Road, Fort, Mumbai 400 001 through its Managing Director/Chairman<br /> ... Opposite parties<br /> <br /> Complaint under Section 12 of the Consumer Protection<br /> Act, 1986.<br /> <br /> QUORUM :<br /> Sh. Lakhbir Singh, President<br /> Sh. Hira Lal Kumar, Member<br /> Dr. Phulinder Preet, Member<br /> <br /> For the Complainant : Sh. Bikaramjit Singh Ahluwalia, Advocate.<br /> For the Opposite party : Sh. Vinod Garg, Advocate.<br /> <br /> O R D E R<br /> <br /> LAKHBIR SINGH, PRESIDENT <br /> 1. Complainant is the owner of one Maruti Zen-D Car bearing Registration No. PB-03L-2060 which is being used by him for his personal use and domestic purposes. It was got comprehensively insured with the opposite parties vide Insurance Policy No. 20060268 after making payment of requisite premium. Policy issued was valid from 17.10.05 to 16.10.06. On 13.9.06, he was going to Bazar in this Car. When he reached on the Mall Road, Bathinda near Rekhi Hotel, Hanuman Chowk, Bathinda at about 4.00/4.30 p.m. heavy rain had started. Water had accumulated on the Mall Road and in the Hanuman Chowk. Car had stopped due to the fact that water had entered the engine. Engine was totally damaged. Due to heavy rain, car had halted in the water. Sh. S.S. Mann of Nissan Motors, 100 Ft. Road, Opp. Maheshwari Nursing Home, Bathinda was immediately contacted by him on cell phone. He came at the spot but the car could not start due to the defect which had occurred in the engine due to heavy rain. Car was shifted from the spot by way of towing it with Icon Car No. BLIZ 1069 belonging to Sh. Rajmeet Singh. It was brought to his (complainant's) residence. Thereafter it was brought to the workshop for repairs. A sum of more than Rs. 50,000/- were spent for repairs and for purchasing the damaged parts and replacing them. Spare parts were purchased from the authorised dealer. Opposite party No. 1 was informed regarding the loss to the car. Direction was given to him by opposite party No. 1 to get the estimate of loss prepared after dismantling. Accordingly car was dismantled and estimate was got prepared. Since the loss to the car exceeded Rs. 50,000/-, opposite parties appointed Sh. P K Pahwa, Surveyor and Loss Assessor. All the documents including photographs, copies of the bills etc., were supplied to the opposite parties and their surveyor for honouring the claim. Surveyor illegally and wrongly assessed the loss only to the tune of Rs. 22,366/- although he had already spent more than Rs. 50,000/- on account of replacement of the damaged parts and repair charges. Opposite parties issued letter dated 21.2.07 to him repudiating the claim stating that as per report furnished by Sh. S C Bansal, their another investigator there was no heavy rain on 13.9.06 on account of which water could accumulate on the Mall Road, Bathinda and could cause damage to the car. He (complainant) assails this letter as illegal, null and void, arbitrary, nonest and not binding upon him on the ground that opposite parties did not provide him an opportunity to prove his claim. Regarding heavy rain, news item was published in the news paper 'Dainik Jagran' dated 14.9.06. Accumulation of water on Mall Road, Bathinda on 13.9.06 is also clear from the photographs published in the news paper. Claim has been arbitrarily and illegally rejected. This has caused him great harassment, humiliation, botheration and loss to his reputation. He alleges deficiency in service and unfair trade practice on the part of the opposite parties. In these circumstances, complaint under Section 12 of the Consumer Protection Act, 1986 (Here-in-after referred to as `Act') has been preferred by him seeking direction from this forum to the opposite parties to pay him insurance claim to the tune of Rs. 50,000/- alongwith interest @Rs. 2/- per mensem w.e.f. 13.9.06 till realisation; pay Rs. 50,000/- as compensation on account of financial loss, mental tension, agony and botheration besides Rs. 5500/- as cost of the complaint.<br /> 2. Opposite parties filed their version taking legal objections that complicated questions of law and facts are involved which require voluminous evidence and as such, this forum in a summary procedure cannot decide this complaint and the appropriate remedy, if any, lies before the civil court; complaint is not maintainable in the present form; complainant has no locus standi and cause of action; there is violation of terms and condition of the policy; complaint is false and frivolous and complainant has concealed material facts from them as well as from this Forum. On merits, they do not deny specifically ownership of the car. Inter-alia their plea is that vehicle was got insured by its previous owner Sh. Sukhpreet Singh vide Policy No. 20060268. He (complainant) got this vehicle transferred in his name w.e.f. 6.7.06. Endorsement was got issued on 6.9.06 i.e. only about a week prior to the alleged loss has been suffered. They deny that water had accumulated on the Mall Road on 13.9.06 at about 4.00 or 4.30 p.m. to such an extent which could cause damage to the engine of the Car. Complainant had lodged claim with the plea that vehicle was allegedly driven by his father Ajaib Singh while in the complaint, he alleges that it was being driven by him. Inter-alia their plea is that they got the matter thoroughly investigated through Major S.C. Bansal, Investigator. As per his report, there was no heavy rain on 13.9.06. Complainant could not produce any proof that water accumulated on the Mall Road, Bathinda could cause damage to such an extent. Cause of loss/damage was not co-relating with the finding of the Investigator and therefore no claim is payable as per terms and conditions of the policy. Claim has been rightly repudiated vide letter dated 21.2.07. They admit that complainant had submitted the bills. Their plea is that they were submitted much after the alleged date of loss. They are of unauthorised repairers. Claim was lodged by the complainant. They deny that he was directed to get the car dismantled. He was to submit the estimate of loss and car should have been got dismantled in the presence of their surveyor. Manufacturing year of the vehicle is 2003 as per registration certificate. They got the loss assessed through Mr. Pawan Kumar Pahwa who inspected the vehicle on 16.9.06. When the surveyor reached M/s. Nissan Motors, Bathinda, engine of the car was already got dismantled. Mr. Pahwa had conducted thorough inspection and loss was assessed by him to the tune of Rs. 22,367/- which was as per terms and conditions of the policy. Depreciation as per rules was considered by him. They deny that letter dated 21.2.07 is illegal, null and void and arbitrary on the grounds mentioned in the complaint and that there is deficiency in service and unfair trade practice on the part of the opposite parties. They deny the remaining averments in the complaint.<br /> 3. In support of his averments contained in the complaint, complainant has produced in evidence affidavit of Sh. S S Mann (Ex. C-1), copy of endorsement certificate (Ex. C-2), photocopies of bills (Ex C-3 to Ex. C-6), Receipt No.3133 dated 6.9.06 (Ex. C-7), Copy of letter dated 21.2.07 (Ex. C-8), Job Cash Memo (Ex. C-9), cutting of newspaper (Ex. C-10), his affidavit (Ex. C-11), affidavit of Sh. Rajmeet Singh (Ex. C-12), affidavit of Sh. Ajaib Singh (Ex. C-13), affidavit of Sh. Jaspreet Singh (Ex. C-14), photocopy of Registration Certificate of vehicle No. PB-03L/2060 (Ex. C-15), photocopy of courier receipt (Ex. C-16), photocopy of letter dated 16.11.06 (Ex. C-17), photocopy of another letter (Ex. C-18), photocopies of receipts (Ex. C-19 & Ex. C-20), photocopies of photographs (Ex. C-21 to Ex. C-23) and copy of Newspaper `Dainik Jagran' dated 14.9.06 (Ex. C-24).<br /> 4. In rebuttal, on behalf of the opposite parties affidavit of Sh. P K Jain, Senior Divisional Manager(Ex. R-1), affidavit of Ex. Maj. S C Bansal (Ex. R-2), affidavit of Sh. Pawan Kumar Pahwa, Surveyor & Loss Assessor (Ex. R-3), photocopy of Certificate-cum-policy schedule (Ex. R-4), copy of terms and conditions (Ex. R-5), photocopy of Registration Certificate of Vehicle No. PB-03L/2060 (Ex. R-6), photocopy of Investigation report (Ex. R-7) and copy of survey report (Ex. R-8) have been tendered in evidence.<br /> 5. We have heard learned counsel for the parties. Besides this, we have gone through the record and written brief of arguments submitted on behalf of the opposite parties.<br /> 6. Ex. C-15 is the copy of the registration certificate of Car No. PB-03L-2060. It shows Its (car's) manufacturing year as 2003. Its registered owner was Sukhpreet Singh. This vehicle was got comprehensively insured by Sukhpreet Singh for the period from 17.10.05 to 16.10.06 as is evident from Ex. R-4. Complainant purchased this car from Sukhpreet Singh. It was transferred in his (complainant's) name on 16.7.06 as is evident from copy of the registration certificate. He got endorsement certificate from the opposite parties on 6.9.06 by way of depositing the endorsement fee. Risk inception date and risk expiry date remained 17.10.05 and 16.10.06 respectively as per copy of the endorsement certificate Ex. C-2.<br /> 7. As per version of the complainant there was heavy rain on 13.9.06 at about 4.00 p.m. or 4.30 p.m. and that while he was going in the car on Mall Road, Bathinda, water entered in the car and its engine was totally damaged and that a sum of more than Rs. 50,000/- was spent by him for repairs.<br /> 8. Some are the undisputed facts in this case. They are that opposite parties had deputed Mr. Pawan Kumar Pahwa, surveyor for assessment of loss who assessed the loss to the tune of Rs. 22,367/-. Claim has been repudiated by the opposite parties vide letter Ex. C-8 dated 21.2.07 stating that Major S.C. Bansal, investigator was also deputed by them to examine the vehicle about the loss occurred to the car due to the entering of the water in the engine due to heavy rain on 13.9.06 at The Mall, Bathinda. It is further in the letter dated 21.2.07 that as per report of Sh. S C Bansal, there was no heavy rain on 13.9.06 due to which water could accumulate on the Mall Road where alleged loss is stated to have occurred. According to this letter, complainant has failed to prove and produce any proof that water had accumulated on the Mall Road on 13.9.06 due to heavy rain which caused damage to the vehicle. Hence claim has been disallowed mainly on the ground that there was no heavy rain on 13.9.06 due to which water could accumulate on Mall Road, Bathinda and could cause damage to the car of the complainant.<br /> 9. Submission of the learned counsel for the opposite parties is that evidence on the record does not establish that there was heavy rain on 13.9.06 on the Mall Road, Bathinda. For this, he drew our attention to the affidavits Ex. R-1 & Ex. R-2 of S/Sh. P.K. Jain , Senior Divisional manager and Ex. Major S C Bansal, Investigator respectively and the copy of the report Ex. R-7 of Sh. S.C. Bansal.<br /> 10. Learned counsel for the complainant vehementally argued that abundant evidence proves that there was heavy rain on the Mall Road, Bathinda on 13.9.06 at about 4.00 or 4.30 p.m. which caused damage to the vehicles which were going on the road at that time.<br /> 11. We have considered the respective arguments and we feel ourselves inclined to agree with the learned counsel for the complainant on this aspect of the matter. Complainant in his affidavit Ex. C-11 reiterates his version about heavy rain on Mall Road, Bathinda on 13.9.06 at about 4.00 or 4.30 p.m. due to which water had accumulated on Mall Road and near Hanuman Chowk. He further states that car had suddenly stopped as water had entered in it and its engine was damaged. Factum that there was heavy rain on Mall Road is further fortified from the affidavits Ex. C-12 to Ex. C-14 of S/Sh.Rajmeet Singh, Ajaib Singh and Jaspreet Singh respectively. Ramjeet Singh is a person who was coming on 13.9.06 at 4.30 p.m. from the Bazar in his Icon Car. When he reached near Mall Road near Rekhi Hotel, Hanuman Chowk, Bathinda, complainant alongwith his father was found sitting in Car No. PB-03L-2060 which had stopped due to the accumulation of water on the Mall Road. It was not starting as water had entered the engine and had accumulated in the car. Car of the complainant was towed with his car and was brought to the residence of the complainant. Sh. S.S. Mann of Nissan Motors through his affidavit Ex. C-1 has also supported the version of the complainant. He had gone at the spot where car of the complainant had gone out of order. It could not be started. This person observed that car was out of order due to damage to its engine because of heavy rain and water logging as it had accumulated in it. Sh. S.S. Mann also gave writing to support it and copy of the same is Ex. C-19. News item was also published in the news paper `Danik Jagran' in its issue dated 14.9.06 according to which there was torrential rain in Bathinda. Moreover, matter stands clinched with the copy of the report Ex. R-8 of Sh. Pahwa , Surveyor and Loss Assessor who was deputed by the opposite parties. He had physically verified the engine and chassis of the car. Necessary inquiries pertaining to the loss were also made by him. He made minute inspection of the damaged parts of the engine of the car. He came to the conclusion that car had gone into deep rain water. His observations are that water was sucked by the engine of the car through its air cleaner. Movement of the engine was restricted due to hydrostatic locking by the water entered in engine of the car which resulted bending of connecting rods and also causing further damage to its engine. This surveyor assessed the loss to the tune of Rs. 22,367/-. When Mr. Pahwa who was deputed by the opposite parties themselves has found loss to the car due to rain water, it does not lie in the mouth of the opposite parties that fact that there was heavy rain on the Mall Road on 13.9.06 at 4.00 p.m. or 4.30 p.m. is not established. When Mr. Pahwa was already deputed by the opposite parties, appointment of Mr. S C Bansal as investigator was not justified. Abundant evidence on the record proves heavy rain on the Mall Road, Bathinda on 13.9.06 at about 4.00 or 4.30 p.m. Damage to the car due to heavy rain and on account of the fact that water had entered its engine, is also established. No weight can be attached to the report of Sh. Bansal, copy of which is Ex. R-7 according to which seizing of the engine due to water is not justified. Similarly affidavit Ex. R-1 of Sh. P K Jain cannot be of any avail to the opposite parties. Resultantly repudiation of the claim by the opposite parties through letter dated 21.2.07 is set aside leading to deficiency in service on their part. Once it is so, it cannot be said that complainant has no locus standi and cause of action to file the complaint and that complaint is not maintainable or that there is no deficiency in service.<br /> 12. Now question arises as to which relief should be accorded to the complainant. Complainant alleges that a sum of more than Rs. 50,000/- was spent by him for replacement of damaged parts and repair charges. When amount shown in the bills Ex. C-3 to Ex. C-6 is calculated it comes to Rs. 36,981.90. So far as Ex. C-7 is concerned, it is a receipt of Rs. 350/- issued by Tara Automobiles on 6.9.06. As per story of the complainant, damage to the car had occurred on 13.9.06. Ex. C-9 is the bill issued by Tara Automobiles for Rs. 2344/-. It is dated 25.4.06. It being so, complainant cannot drive any benefit from these documents. Mr. Pahwa assessed the loss to the car to the tune of Rs. 22,367/-. Report is detailed and reasoned one. He has tried to consider all the pros and cons concerning the loss to the vehicle. He has taken into consideration aspect of depreciation as per India Motor Tariff. This vehicle was manufactured in the year 2003. Accordingly, depreciation has been considered by him. In these circumstances, we find no reason to differ with his report about loss to the vehicle assessed and net liability of the opposite parties reported by him. Intimation regarding the loss to the car was reported by the complainant on 14.9.06 as is clear from Ex. C-8. Sh. Pahwa was deputed on 15.9.06 by the opposite parties. He had inspected the vehicle on 16.9.06. Reasonable time period for taking decision of the claim by the insurer is three months as has been held by their Lordships of the Hon'ble Supreme Court in the case of United India Insurance Company Limited Vs. M K J Corporation III(1996) CPJ 8(SC). To the same effect is the authority M/s. Bhagwati Rice Company, Sangrur Vs. United India Insurance Company Limited and Others 2005(1)CPC 479. Opposite parties were required to settle the claim within three months i.e. upto 14.12.06. They did not settle the claim upto that date. In these circumstances, direction deserves to be given to the opposite parties to pay Rs. 22,367/- to the complainant alongwith interest @9% P.A. from 15.12.06 till payment. Complainant is craving for compensation of Rs.50,000/- for mental tension, agony, botheration and harassment. There is no case to allow it in view of the relief which is going to be accorded as above. Out of interest and compensation, one can be allowed.<br /> 13. No other point was urged before us at the time of arguments.<br /> 14. In view of our foregoing discussion, complaint is accepted against the opposite parties with cost of Rs. 1,000/-. Opposite parties are directed to do as under :-<br /> i) Pay Rs. 22,367/- to the complainant alongwith interest @9% P.A. from 15.12.06 till payment. <br /> Compliance of this order be made within 30 days from the date of receipt of its copy.<br /> Copy of this order be sent to the parties concerned free of cost and file be consigned to record room.<br /> Pronounced :<br /> 07-08-2007 (Lakhbir Singh )<br /> President<br /> <br /> (Hira Lal Kumar )<br /> Member<br /> <br /> (Dr. Phulinder Preet)<br /> Member<br />