Haryana

Ambala

CC/308/2011

AJAY SABHARWAL - Complainant(s)

Versus

NIA CO. - Opp.Party(s)

MANISH SHARMA

15 Feb 2017

ORDER

                            BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMBALA.

 

           Complaint Case No.    : 308 of 2011

Date of Institution       : 20.09.2011

            Date of Decision         : 15.02.2017

 

Ajay Sabharwal R/o 52, Subhash Nagar, Ambala Cantt.                                                                                               

……Complainant

                                            Versus

1.         The New India Assurance Company Ltd. through its Branch Manager.

            Brarnch Office: #6269, Nicholson Road, Ambala Cantt.

2.         The New India Assurance Company Ltd.

            Head office: 87, M.G. Road, Fort, Mumbai.

                                                                                    ……Opposite Parties.

Complaint Under Section 12 of the Consumer Protection Act

 

BEFORE:       SH. D.N. ARORA,  PRESIDENT.

                        SH. PUSHPENDER KUMAR, MEMBER.                       

Present:          Sh. Munsih Sharma, Adv. for complainant.

                        Sh. J.S. Rathore, Adv. for Ops.

ORDER.

                        In nutshell, brief facts of the complaint are that complainant  got insured his car from OP No.1 vide policy no.353501131090100204200 for the period from 19.01.2010 to 18.01.2011.  It has been submitted that on 06.07.2010, nephew of complainant Neeraj Sabharwal was coming from railway station after dropping  complainant’s brother-in-law at about 10:00 a.m.  and suddenly due to flood  water level increased and car stopped and  got damaged and when he started his car on 08.07.2010 in the evening, then he noticed that car was damaged by rainy water so complainant sent the car on 09.07.2010 to Harmony Honda, Chandigarh after informing the Op No.1 and after that they inspect the car through surveyor Sh. Baljinder Singh at the workshop.  The workshop gave estimate of Rs.27,000/- but  after surveyor’s inspection they given the estimate of Rs.4,25,000/-. This was more than car insurance and after  receiving this estimate, complainant changed his mind and made a call to Harmony Honda on 14.08.2010 to return the car in same condition and they have sent the car after OP. Company’s surveyor advice on 18.07.2010 to Om Motors, Ambala Cantt.  After that the OP Company appointed a new surveyor but the loss was more & they told the complainant that they appoint a new surveyor, due to this the final survey was late but the processing not late.  It has been submitted that after receiving estimate and claim form on 02.08.2010, Sh. Baljinder Singh Surveyor of OP issued letter dated 04.08.2010 to clarify  some questions which were duly explained by the complainant on 12.08.2010.  It has been further submitted that after conversation with the surveyor Sh. Baljinder Singh, complainant paid an amount of Rs.90991/- as expenditure of the repair to Om Motor, Ambala Cantt  but the Op insurance company  vide letter dated 05.08.2011 rejected the claim of complainant  on the ground that ‘loss of the vehicle is due to wear and tear’ which is not covered under the scope of policy.  As such, the complainant has prayed that the act & conduct of  Op amounts to deficiency in service and prayed for acceptance of the complaint as per relief clause.

2.                     Upon notice, OP appeared through counsel and filed written statement raising preliminary objections qua maintainability of complaint and suppression of material facts. On merits, it has been submitted that complainant has not  mentioned  the registration  no. of car, engine number and chasis number of the car which was insured by the OP. It has been denied that complainant informed the OP no.1 on 09.07.2010 regarding damage of the car. It has also been denied that there was  privity of contract of insurance between the owner of car and the OP on the date and time of the alleged accident covering such type of claims and risks or any insurance policy as alleged was issued by the OP.  It has been submitted that Op has rejected the claim  of vehicle no.HR01T-7771 on the ground that the loss of vehicle is due to wear and tear  which is not covered under the scope of insurance policy.  As such,  the complainant has prayed that the  complaint is liable to be dismissed with costs.

3.                     To prove his version, counsel for complainant tendered affidavit of complainant as Annexure CX alongwith documents as Annexures C-1 to C-8 and closed his evidence on 07.05.2012.  On the other hand, counsel for OP tendered affidavit as Annexure RX alongwith document as Annexures R-1 to R-4 and closed the evidence on 08.10.2013.

4.                     We have heard learned counsel for the parties and gone through the case file very carefully.  It is admitted  that  the vehicle was insured with the Op at the relevant period of accident.  It is also admitted that the vehicle in question damaged due to flood water  and  he got repaired the same from Om Motors  and made the payment of Rs.66500/- + Rs.24491/- vide Annexures C-6 & C-7.  The Ops have repudiated the claim of complainant on the ground that  the loss in question occurred due to wear and tear and therefore, the claim does not cover  under the scope of insurance policy. But the contention of the OP is not reasonable that normally a person tries to rescue his vehicle from the rainwater and in order do the same it might be possible that engine of the vehicle can be chocked even otherwise in the present case no evidence has been brought on record that entering of the rainwater in engine of the car tantamounts to ‘wear and tear’, so the contention of Op is rejected. 

5.                     So, far the loss caused to the vehicle is concerned, we have perused bills Annexure C-6 & C-7 which prima facie  reveals doubtful as Annexure C-6 is bill no.679 dated 26.09.2010 and Annexure C-7 is bill no.1086 dated 26.09.2010 which is highly  improbable  that there is difference of 407 bill numbers between the bill no.679 and Billno.1086 of the same date. As such, the said bills cannot be taken into consideration for the purpose of calculating the loss caused to the vehicle of complainant. On the other side, surveyor of Op has assessed loss to the tune of Rs.37,700/- vide Annexure R-2. So, we are of the opinion that surveyor is best person to assess the loss until and unless not rebutted by adducing the cogent evidence.  Hence, we are considered view that Ops has wrongly repudiated the genuine claim of the complainant as assessed by their surveyor  and they are liable to pay a sum of Rs.37,700/- to the complainant alongwith interest   and costs.

                        In view of the above discussion, we partly allow the present complaint with costs and direct the OP to comply the following directions within a period of thirty days from receipt of copy of the order:-

1. To pay a sum of Rs.37700/- to the complainant alongwith interest @ 9% per annum from the date of filing of the complaint till its realization.
2. Also to pay a sum of Rs.3000/- as litigation expenses.

                        Copies of the order be sent to the parties, free of costs, as per rules.  File be consigned to the record room after due compliance.

                                                                                                                                    Sd/-

ANNOUNCED ON:   15.02.2017                                                                 (D.N. ARORA)

                                                     PRESIDENT                

 

                                                                                                             Sd/-

              (PUSHPENDER KUMAR)

                                                                                                            MEMBER