Complainant M/s.Bita Radio Corporation, through partner Snehpal Singh through the present complaint U/S 12 of the Consumer Protection Act 1986 (hereinafter for short the Act) has prayed for the issuance of the necessary directions to the opposite parties to pay the amount mentioned in the complaint alongwith damages for physical and mental harassment at the hands of the opposite party and any other relief to this Hon’ble Forum deems fit may pleaded be granted according to the circumstances, in the interest of justice.

2.       The case of the complainant in brief is that he purchased a vehicle from opposite party no.1 i.e. Maruti Celerio bearing No.PB 06 AD-0156 in his name through its proprietor/partner which was financed with Andhra Bank and the installment of the vehicle are yet been finally to pay. At the time of purchase of the said vehicle Maruti Celerio opposite parties no.2 and 3 offered him that they have good reputation in the market for the insurance of the vehicle and the company are responsible for all kind of risk i.e. damages, accident or any mechanical defect in the vehicle or any kind of damages due to water if enter into the engine.  Thereafter he accepted the proposal/offer of the opposite party no.2 and 3 and got insured the said vehicle Maruti Celerio vide policy No.3001/MI-02910255/00/000 dated 15.7.2015 and it was insured upto 14.7.2016. It was also made clear to him by the opposite parties no.2 and 3 that there will be no delay in the event of any damages and to pay the amount.  The said vehicle as insured shall be used for the business purpose of the firm and also to travel for away places to contact with the customers. He has next pleaded that this policy shall also cover the risk of natural calamity (rain, fire, grounded, flood, earthquake etc.) and in the event of any mis-happening with the vehicle as insured then the company shall pay the full amount of damages without any further clarifications. He has further pleaded that in the June 2016 it was some rainy season and he was driving the vehicle and was going towards city Batala on the said vehicle and when he reached near Smadh Road Batala and it was raining and when the vehicle which was driven by him on the road and the road was filled with rain water and then a heavy vehicle came from the opposite side and the said vehicle during passing his vehicle then that vehicle create a wave of rainy water and as a result said rain water floated on the road and entered into the engine of the vehicle and immediately the vehicle stopped in the water and did not move. Later on he took the said vehicle to the agency i.e. opposite party no.1 on 22.6.2016 and after checking of the vehicle by the employs of opposite party no.1 it transpired that the engine of the vehicle became jam and requires overhauling of the engine.  Opposite party no.1 had informed to opposite party no.2 regarding the insurance and the conditions of the vehicle and demands the claim and also informed the same but the opposite parties no.2 and 3 are delaying the matter without any reason which causes a business loss to him and he is unable to move without the vehicle and unable to approach to their customers for the business purpose and he is suffering a loss of Rs.5,000/- per day at the risk of all the opposite parties. Thus, he has suffered a loss of Rs.2,00,000/- in the business due to non availability of the Maruti Celerio bearing No.PB 06 AD-0156. He is traveling through bus and by hiring the private vehicle on per day payment i.e. Rs.2500/- per day and had disabled to contact the customers. Earlier he had made a letter of request to all the opposite parties dated 13.7.2016 and had requested to get repaired Maruti Celerio  as soon as possible without any cost but they had completely failed to rectify. On finding no other alternative and due to continuous loss suffering by him, he got released the said vehicle after paying the amount to the opposite party no.1 Rs.32,000/-. Due to adamant nature of the opposite party especially the opposite parties no.2 and 3 his client has suffered a financial loss of Rs.3 to 4 lac in the business because his client could not contact with customers and sub dealers regularly. Thus, there is deficiency in service on the part of the opposite parties. Hence this complaint.

3.       Notice of the complaint was issued to the opposite parties. Opposite party no.1 appeared through its counsel and filed its written reply by taking the preliminary objections that the complaint is not maintainable; complainant has failed to set out any deficiency in service or unfair trade practice on the part of the opposite parties; the present complaint is without any cause of action and the complainant has not come to the Hon’ble Forum with clean hands. On merits, it was submitted that the complainant has not come to the Forum with clean hands. The complainant visited the Bodyshop of the opposite party no.1 on 22 June 2016 and complained that while driving his car on the road in rainy water accumulated on the road, his vehicle got off. This has caused due to creating wave of water by heavy vehicle coming from opposite side and the water entered in the engine of the vehicle. The complainant had also intimated that his car is insured with ICICI Lombard General Insurance Company. Claim intimation/estimate for Rs.50,000/- was intimated to the above quoted ICICI  Lombard General Insurance Company. Surveyor Mr.Rohit Kapoor carried the survey of the vehicle and asked for the technical Report from Regional Office Maruti Suzuki India Ltd. Service Engineer Mr.Shobit Singhal Maruti Suzuki India Ltd. Intimated vide his report dated 09 July 2016 the vehicle bearing Regn No.PB06AD0156 has been inspected by him on 04 July 2016 alongwith Maruti Dealership at Batala. During the inspection it has been observed that “Cause of engine failure is not any manufacturing defect in the vehicle but it is due to water entry into it”. It has next submitted that the surveyor Rohit Kapoor asked for estimate cost of repairs which was already intimated to him for Rs.50,000/-. The surveyor Mr.Rohit Kapoor and Mr.Paramjit Sandhu again inspected the vehicle. After this Mr.Rohit Kapoor Surveyor vide his mail dated 18 July 2016 intimated that “Claim of above mentioned vehicle, due to water i.e. Hydrostatic Loss, the liability of the company will be only for first-first damages to engine. Non consequential loss can be allowed”. The complainant was informed about the reply of the above quoted Insurance Company. The repairs of the vehicle were carried out and a bill of Rs.32003/- was paid by the complainant and the vehicle was delivered to him on 11 Aug 2016. There was no delay in repairs of the vehicle by the opposite party and moreover the opposite party provided most effective and satisfactory services to the complainant. All other averments made in the complaint has been vehemently denied and lastly prayed that the complaint may be dismissed with costs

4.     Upon notice, the opposite parties no.2 and 3 appeared and filed their joint reply through their counsel taking the preliminary objections that the complaint is not maintainable either in law or on facts and liable to be dismissed in limine; the complainant is running the vehicle for commercial purpose and as such does not fall within the definition of the consumer and the complaint is liable to be dismissed. The complainant has obtained Private Car Package Policy 3001/104828110/00/000 commencing w.e.f. 15.7.2015 valid up till 14.7.2016 in respect of his vehicle No.PB-06-AD-0156 from the opposite party ICICI Lombard General Insurance Company Ltd. Insurance policy is contract in itself and the parties are bound by the terms and conditions of the insurance policy. There is no deficiency in services on the part of the opposite party.  Actually, the complainant failed to provide the relevant documents NEFT DOCS and the letters dated 19 September, 2016 and 22 August, 2016 have been sent, but he failed to provide the documents due to which the claim has been closed. So there is no fault of the insurance company and it is the complainant who is responsible for all this. The complaint is premature as the claim has been closed due to non-submission of the documents and as such the complaint is liable to be dismissed.  Even otherwise the liability if any of the insurance company is only as per terms and conditions of the policy and as per surveyor Rohit Kapoor. The surveyor submitted his detailed report and as per his report the liability of the insurance company is only of Rs.10,300/-. So the loss assessed by the Surveyor is Rs.10,300/-. On merits, it was submitted that the claim has been filed but closed due to non-submission of documents by the complainant in spite of reminders and he is at fault. The complaint is premature. It was next submitted that after the intimation of the claim, the surveyor has been duly appointed and he also submitted his survey report. The complainant failed to send NEFT DOCS, due to which the claim has not been paid and closed after sending reminders. It was further submitted that the liability if any of the insurance company is only as per Survey report of Rohit Kapoor who after physically examining the vehicle, submitted his report and as per report the loss assessed is Rs.10,300/- as per terms and conditions of the policy. All other pleadings made in the complaint have also been denied and lastly the complaint has been prayed to be dismissed.

5.      Complainant tendered into evidence his own affidavit Ex.CW-1/A alongwith other documents Ex.C1 to Ex.C22 and closed the evidence.

6.       Counsel for the opposite party no.1 tendered into evidence affidavit of Sh.Jaswinder Singh Works Manager Ex.OP-1/1, alongwith other documents Ex.OP-1/2 to Ex.OP-1/4 and closed the evidence.

7.       Counsel for the opposite parties No.2 and 3 tendered into evidence affidavit of Vidhi Passi Ex.OP-2,3/1 alongwith other documents Ex.OP-2,3/2  to Ex.OP-2,3/8 and closed the evidence.

8.         We have carefully examined all the documents/evidence produced on record for its contained statutory merit and have also judiciously considered and perused the arguments duly put forth by the learned counsels along with the incidental scope of adverse inference for some of the documents that have been somehow ignored to be produced by the contesting litigants. We observe that the instant dispute has prompted at the OP3 insurer’s settling (Affidavit Ex.OP2,3/1) the complainant’s vehicle claim @ Rs 10,300/- in terms of the Surveyor’s Report (Ex.OP2,3/4) against its OP1 Vendor (repairs-cost based) claim amount (Ex.OP2,3/5) of Rs 32,003/- stated/claimed to have been actually spent/ incurred/ paid (Ex.OP1/4) towards repairs of the Zero-Dep-Policy insured vehicle damaged upon getting stalled in rain-waters in June’ 2016 while being driven on the inundated-road near the Samadh Road, Batala.

9.       We further find that the opposite party insurers have addressed/ termed this damage caused to the vehicle as ‘consequential-loss’ (not covered under the applicable policy) caused to the internal parts of the vehicle’s engine as a result of the futile attempts to restart/ run the inundated/stalled vehicle and have thus part-repudiated the insurance claim on the strength of the Surveyor/Engineer’s Report.

10.     In turn, the complainant has simply contested the OP insurers’ part-repudiation/surveyor’s report through bald statements sans any firm/cogent evidentiary/technical support by way of an expert opinion and/or technical literature rebutting/ negating the theory of consequential loss and in its absence the loss-quantum as assessed out in the Survey Report shall prevail.         

11.     Thus, we observe that the complainant has failed to prove/ place on record that the OP Insurers have arbitrarily/ inadvertently repudiated his insurance claim, in part. However, we also find that the insurers have un-necessarily deferred/ delayed the payment of the partly-settled claim on arbitrary and flimsy grounds only and that validly attracts our judicial annoyance and censure so that fruits of claim settlement are expedited at their end. We further find that the complainant has also contributed towards the ‘delay’ (incurred so far) in claim- settlement by way of non-submission/non-dispatch of the NEFT DOCS to the OP3 insurers in spite of their repeated demands.  

12.     In the light of the all above, we find that the instant complaint (being bereft of the requisite statutory merit) shall be best disposed of by directing the OP insurers to urgently pay to the present complainant the settled/recommended amount of Rs 10,300/- (in terms of the Surveyor’s Report) but within 07 working days of the receipt of the orders.

13.     Copy of the order be communicated to the parties free of charges. After compliance, file be consigned to records.

            (Naveen Puri)

                                                                          President     

ANNOUNCED:                                                    (Jagdeep Kaur)

September 11, 2017.                                           Member.

*MK*