Punjab

StateCommission

FA/12/1210

Krishan Bhandari - Complainant(s)

Versus

NIC Ltd. - Opp.Party(s)

Mukand Gupta

27 Feb 2015

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB, DAKSHIN MARG, SECTOR-37A, CHANDIGARH

 

FIRST APPEAL No.1210 of 2012

 

                                                 Date of Institution: 13.09.2012

 Date of Decision  :  27.02.2015

 

Krishan Bhardari aged 45 years son of Daulat Ram, resident of # 29157, Street No.3, Janta Nagar, Bathinda.

…..Appellant/Complainant

 

VERSUS

 

1.      National Insurance Company Limited, The Mall, Bathinda,       through its Divisional Manager.

 

2.      Mehta Motors, Bibi Wala Road, Bathinda through its           Owner/Proprietor/Director/Manager.

 

3.      Tata Motors, Registered Office, Bombay House, 24 Homi Mody       Street, Fort, Mumbai 400001

 

4.      State Bank of Patiala, Paras Ram Nagar, Bathinda, through its         Manager.

 

…..Respondents/Opposite Parties

 

First Appeal against the order dated 24.07.2012 passed by the District Consumer Disputes Redressal Forum, Bathinda.

Quorum:

 

Hon’ble Mr.Justice Gurdev Singh, President

          Sh. Baldev Singh Sekhon, Member

                   Smt. Surinder Pal Kaur, Member

 

Present:

          For the appellant         :      Sh. Mukand Gupta, Advocate

          For respondent No.1            :      Sh. Vinod Gupta, Advocate

          For respondent No.2   :      Sh. Amit Gupta, Advocate

          For respondent No.3   :      Sh. Pankaj Katia, Advocate

          For respondent No.4   :      None

BALDEV SINGH SEKHON, MEMBER

          This appeal has been filed by the appellant/complainant against the order dated 24.07.2012 passed by the District Consumer Disputes Redressal Forum, Bathinda (in short “District Forum”), vide which his complaint against the respondents/opposite parties ( in short 'OPs') was dismissed on the ground that he has failed to prove that the damage to and the seizure of the engine of the vehicle, in question, was accidental in nature, by placing cogent and convincing evidence on file.

2.      Briefly stated, the facts of the case are that the complainant, purchased a Tatra, Manza, Car No. PB-03-X-2569 from OP No.2, the authorized dealer of its manufacturer i.e. OP No.3. The said vehicle was hypothecated with OP No.4 and comprehensively insured with OP No.1, through OP No.2, vide Certificate of Insurance No.25041031106120035415, which was effective from 10.12.2010 to 09.12.2011 for IDV of Rs.6,39,350/-. The said insurance was cashless, under which, in case of any loss to  the vehicle, the car was  to be repaired by the authorized service centre of manufacturer without any charges. It was pleaded that OP Nos. 1 to 3 never supplied any Insurance policy, alongwith terms and conditions to him. On 25.09.2011, when complainant was coming from Sivian to Bathinda Via Malout Road at about 6.15 P.M, the said vehicle met with an accident on 40 Ft. road behind G.N.D.T.P. Gate, as one stray dog suddenly came and hit the front of the car and  lower portion of its engine struck with the Edge/Stones of the road. After the accident, complainant removed the car  from the site of accident to his house in the evening as its engine was in working condition. Next  morning, he intimated the accident to OPs No.1&2, who sent one person for shifting the car to the workshop of OP No.2 and OP No.1 appointed Mr. Dinesh Goyal, Surveyor for assessment of loss caused to the vehicle. OP No.2 issued estimate of loss in the presence of said surveyor. The said surveyor as well as OP No.2 took signatures of the complainant on some blank papers including satisfaction voucher, on 26.9.2011 alongwith claim form under the pretext that the policy was cashless and as such he was only to pay the depreciation @ 5%. The original documents i.e. registration certificate, driving licence and insurance certificate etc., were verified by the manager of OP No.2 and the surveyor. Complainant immediately lodged protest, vide his letter dated 3.10.2011, against obtaining his signatures on blank documents. Thereafter, he wrote  registered letters dated 10.10.2011, 12.10.2011, 20.10.2011 and 29.10.2011 to the OPs and the surveyor requesting them to settle his claim but to no effect. The engine of the car, in question, was also damaged and seized in the said accident. As the car was under warranty in first year, it was the duty of OP No.2 to repair the seized engine. It was also the duty of OPs No.1&2 to repair the car under "cashless insurance scheme" but OPs No.1 to 3 were not ready to repair the same. Therefore, complainant had to pay Rs.1,32,614/- on 8.10.2011 from his own pocket to take delivery of the car.  In the complaint filed before District Forum, he sought directions to the OPs Nos.1 to 3 to pay to him the amount of Rs.1,32,614/- spent by him on the repairs of his car for the loss suffered in accident, alongwith interest. Costs and compensation were also prayed.

3.      Upon notice OP No.1 filed its written reply pleading therein that on receipt of intimation regarding the accident on 26.09.2011, Mr. Dinesh Kumar Goyal, was appointed as surveyor, who inspected the vehicle on 26.09.2011 for the first time at M/s. Mehta Motors, Bathinda (OP No.2) in the presence of the insured. The initial repair estimate, submitted by OP No.2 on 26.09.2011 for a sum of Rs.63,400/-, was for the apparent damages. Later on, the insured submitted a written statement dated 20.10.2011, mentioning therein the cause of loss as stray dog having hit the front of his car and thereafter, the under portion of the front of the car having struck with the Edge/stones of the road. The  engine of vehicle was in working condition after the accident but the car was shifted by the complainant in the evening by driving it. The said surveyor, after going through the details and inspecting the car at the spot of accident, concluded in his report dated 02.11.2011 that the loss to the engine parts was not accidental in nature and only front side of the car could be considered as accidental loss as per the policy terms and conditions. The loss mentioned in the written statement of complainant, filed on 20.10.2011, was an after thought. The estimate for the loss of the engine parts was Rs.83,652/-; out of which only an amount of Rs.18,789/- was payable and it was ready to pay the same. It was, however, admitted that the insurance policy, in question, was a cashless one but obtaining of the signatures of the complainant on any blank document was denied.

4.      OP No.2 filed separate written reply admitting therein that it is an authorized dealer of OP No. 3 but pleaded that complainant himself opted for getting the vehicle repaired on payment and never availed the option of cashless insurance. The vehicle was found over heated due to its use after the accident by the complainant which resulted to the seizure of the engine. It was further pleaded that complainant voluntarily made the payment of the amount of the bill, raised by it. It was also denied that it obtained his signatures on any blank document. It pleaded that the complainant was entitled to seek any benefit of the warranty only as per terms and conditions thereof. Since the engine had suffered damage due to his negligent act of driving the same after the accident, the damage was not covered under warranty. At the time of the repairs of the vehicle, it was observed by its Service Engineer   that it had no concern with the settlement of the claim, as accidental loss was a matter between the complainant and OP No.1.

5.      OP No.3 also filed written reply admitting that the  entire sale consideration of the vehicle was inclusive of insurance but pleaded that its name has unnecessarily been dragged into litigation. It had nothing to do with the controversy, in question, as the main allegation of the complainant was regarding non-settlement of insurance claim under cashless policy.

6.      Parties led their evidence by way of affidavits and documents before the District Forum, which after going through the same, dismissed the complaint.

7.      Aggrieved by this order, the complainant has come up in appeal on the ground that since there was a deficiency in service on the part of the insurance company as well as authorized dealer in demanding  Rs.1,32,614/- for repairs of the vehicle, particularly when the insurance policy was a cashless one. It is an admitted fact that the vehicle was within warranty period and the bill estimates was prepared by the authorized dealer of the vehicle i.e. OP No.2. The said car met with an accident on 25.9.2011 and the Surveyor's report was prepared on 2.11.2011 but nothing has been paid by the Insurance Company to the complainant till the filing of the complaint. The Insurance  Company cannot reject the claim on the ground that the loss caused to the engine did not seem to the accidental in nature. The car met with an accident, due to which its engine got seized/damaged. As such, whole of the amount spent on its repair was payable to the complainant. Acceptance of the complaint and setting aside of the impugned order was prayed.

8.      Learned counsel for the OPs submitted that there was no merit in the appeal and the same be dismissed.

9.      Admittedly, the vehicle of the complainant met with an accident on 25.9.2011 when it was hit by a stray dog. As per his own admission, the complainant shifted the car to his house in the evening because its  engine was still in working condition after the accident. The Surveyor appointed by the OP No.1 inspected the vehicle on 26.9.2011 in the workshop of OP No.2 and assessed the loss vide its report Ex.C-27. Perusal of this report shows that the Surveyor assessed the net loss as Rs.88064/-; out of which only Rs.18,789/- were found payable as per terms and conditions of the policy, being the loss caused on account of accident. Rest of the loss to the engine of the vehicle was said to be on account of negligence on the part of complainant himself. The said Surveyor has given detailed reasons for not allowing the other amount, pertaining to the damage to the engine of the vehicle. He has specifically mentioned that during inspection of the site of the accident, he did not find any reason due to which the engine could have been damage by hitting of stone or the edge of the road. He allowed only the loss, which was caused on account of hitting of the dog in the front portion of the car. He has specifically observed that  seizure of the engine of the car was caused as it  was driven back to his house by the complainant after the accident. Admittedly, the engine was still in working condition after it was hit by a stray dog. There is a specific report that during inspection the engine was found over heated; which could only be caused if the vehicle is used with damaged radiator or without engine oil in the chamber thereof or the defective oil pump. By no stretch of imagination, the seizure of the engine can be attributed to the accident. Thus, the OP No.1 was with in its rights to exclude the loss that was not on account of accident.

10.    The complainant has further contended that since the vehicle was under warranty period, therefore, the repair of the engine should have been done by OP No.3 who is the authorized dealor of the manufacture. Apparently, the damage to the engine was caused subsequent to the involvement of the vehicle in the accident. It is the case of the complainant himself that the engine was in working condition after the accident; confirming that engine of vehicle was not damaged/seized in the accident. Evidently, engine was damaged due to sheer negligence of the complainant and such damage cannot be covered under the warranty.

11.    In view of the aforesaid discussion and findings, the appeal of the complainant, being devoid of any merit,  is hereby dismissed and impugned order of the District Forum is affirmed and upheld. No order as to costs.

12.    The arguments in the case were heard on 10.02.2015 and the order was reserved.  Now, the order be communicated to the parties.

13.    The appeal could not be decided within the statutory period because of the heavy pendency of the court cases.

 

 (JUSTICE GURDEV SINGH)

PRESIDENT

 

(BALDEV SINGH SEKHON)

MEMBER

 

(SURINDER PAL KAUR)

MEMBER

February 27, 2015