(Passed On 11/02/2016)

Per Smt. Jayshree Yengal, Honble Member

1. This appeal challenges the order dated 30/03/2009, passed by the District Consumer Forum, Gondia, partly allowing the consumer complaint bearing No. 1 of 2009, and thereby directing the OP/appellant herein to pay the complainant the insurance claim of Rs. 1,13,259/- with 12 percent  per annum interest till realization. The Forum by the impugned order imposed Rs. 3,000/- and Rs. 1,000/- as compensation for mental and physical harassment and cost of proceeding respectively to be paid to the complainant.
2. Respondent Mr. Prakash Jugalkishor Agrawal to be referred as complainant and appellant HDFC General Insurance Company Ltd. to be referred as Opposite Party (OP for short) for the sake of convenience.
3.  Facts in brief as set out by the complainant in his complaint are as under.

The complainant Prakash Jugalkishor Agrawal is owner of a Four Wheeler, a model of Honda City GXI MT-ZX bearing RTO Registration No. MH-35M422. The said vehicle was comprehensively insured with the OP/ HDFC General Insurance Company Ltd. for the period from 13/12/2007 to 12/12/2008 by paying the required premium. On 23/08/2008, the aforesaid vehicle of the vehicle met with an accident while coming from Goregaon to Gondia near Karanja Village. As a result of the said accident, the Engine of the vehicle was seized. It is the contention of the complainantthat due to seizure of the engine of the Four Wheeler Vehicle. The said vehicle was required to be takento one side of the highway when one speeding truck suddenly came and dashed against the complainant’s vehicle. The vehicle was damaged. However there was no major injury to the occupants of the car. Therefore no report (FIR) was lodged with the police authority. However the complainant informed the OP on 25/8/2008 about the accident and the damage caused to the vehicle and that the said vehicle was sent to the authorized dealer of Honda City for repairs. It is the contention of the complainant that inspite of the intimation, the OP did not take immediate steps by appointing surveyor for inspection of the vehicle. The surveyor Mr. Vadaskar was appointed by the OP who inspected the damaged vehicle only on 4/9/2008 without giving any prior notice to the complainant. The authorized dealer of Honda City Car after inspection of the vehicle, gave the estimate towards repairing charges of about Rs. 2,21,000/-The complainant was required to pay Rs. 1,13,259/- to Rushabh Motors Private Ltd.towards cost of repairs. The complainant immediately lodged claim with the OP towards the loss caused to the insured vehicle. The OP on 14/10/2008, informed the complainant by email that the claim of the complainant cannot be given as it comes under general exception in the general insurance policy. Being aggrieved by the repudiation and alleging deficiency in service the complainant filed the consumer complaint seeking insurance claim of Rs. 1,13,259/- towards the cost of repairs of insured vehicle, Rs. 25,000/- and Rs. 5,000/- as compensation for mental and physical harassment and cost of proceeding respectively.

4. The OP resisted the complaint by filing its written version and denied all the adverse allegations of the complainant. The OP in its written version specifically submitted that the surveyor appointed by the OP was technically expert who had inspected the vehicle on 26/8/2008 and 18/9/2008 at M/s Rushabh Honda, Nagpur and gave an opinion that seizure of the engine was due to inadequate lubrication. The complainant himself is liable  and therefore the seizure of the engine of the vehicle was totally  due to negligence and carelessness shown by the complainant. The aforesaid loss was a result of consequential loss which is not covered under the policy of insurance. Hence the insurance company cannot be made liable. As the accident resulted due to negligence of the complainant, no report was filed with the police authority. The OP therefore denied to have rendered any deficiency in service and sought for dismissal of complaint being frivolous.
5. The Forum after hearing both the sides and the perusing the documents filed on record, partly allowed the complaint as aforesaid. The Forum in the  impugned order specifically held that the OP has rendered deficiency in service by not appointing the surveyor for inspection immediately. The surveyor appointed by the OP inspected and investigated into the loss of vehicle only on 4/9/2008 i.e. almost after 11 days of accident. The Forum has further held that the claim of the complainant deserves to be allowed as the OP had not brought any evidence on record to prove that the seizure of the engine of the vehicle was due to inadequate lubrication.
6. Feeling aggrieved by the impugned order, the original OP/ HDFC General Insurance Company Ltd. has preferred this appeal. We heard counsels for both the sides and perused the written notes of arguments filed by both the parties, copy of the complaint, written version and documents filed on record by both the parties.
7. The appellant has mainly challenged the impugned order on the ground that the loss assessed is by the surveyor who is a technical expert and therefore his  opinion that the seizure of the engine of the vehicle was due to lack of lubricant and that for which the complainant is solely liable and the los/damage cause does not fall within the terms and condition of the insurance policy.
8. The facts of insurance policy of the vehicle, the period of insurance and the date of accident are not disputed. The only issue that survives for our consideration is whether the cause of accident is covered under the terms and conditions of the insurance policy. We perused the final survey report dated 18/9/2008 of the surveyor Mr. Wadaskar. The said survey report, record the ‘cause and nature of accident’ as under:

11. CAUSE & NATURE OF ACCIDENT- As per the claim form filed by the insured, it was mentioned that the vehicle was on the way from Gondia to Nagpur. A stone was found lying on the road and vehicle struck to it and jumped over it. Due to the impact driver friend sitting beside the driver also jumped from his seat and his head struck to a car wind shield, causing Damage to insured vehicle.

9. The surveyor further has recorded ‘Details of Survey’ as:-

12. Details of Survey- The undersigned inspected the insured vehicle(IV) at M/s Rushab Honda MIDC, Nagpur on 26/08/2008, on dismantling on 18/09/2008 and Vrank were found bent and twisted and also connecting rod and pistion were found red hearted and loss there strength. The said loss had taken place due to inadequate lubrication in the engine assembly. The underbody impact is so huge that it cant unnoticed to customer and also there use to be a indicator on instrument panel which warns the rider about consequential losses. But still the driver dileberetly drove  the car which caused the parts to expand due to absence of lubricant and result in engine seizure. The parts that are allowed are mentioned below & disallowed parts are the consequential damages as a result of engine seizure.

10. On perusal of the rejoinder filed by the complainant, it reflects that the complainant has submitted in detail about the servicing done to the insured vehicle. In which he has mentioned that the servicing of the vehicle was done on 4/3/2008 and the vehicle had run on that date at 29575 km and the said vehicle had met with an accident on 23/8/2008 and when the same vehicle was given for repair to  the authorized service station, the mileage was shown at 33336. It means that within the span of five months, the vehicle was run for 3761 km only and it cannot be presumed that there was inadequate lubricant in the engine keeping in mind, the kilo meters run by the vehicle. The surveyor has not logically reasoned out, the seizure of the engine due to inadequate lubricant. The surveyor has also not collected  any evidence on record to disbelieve the claim of the complainant about the cause of accident.
11.  We also perused the copy of the insurance policy filed on record. The appellant has not filed the General Exceptions in the policy conditions referred to in the repudiation letter. For the foregoing reason, we are of the reasoned view that the Forum has rightly allowed the complaint as the appellant has not brought evidence on record to prove that the claim of the complainant is not payble under the general exceptions clause of the policy. We find no glaring infirmity, irregularity in the impugned order and the appeal deserves to be dismissed being devoid of merits. In the result, we pass the following order.

ORDER

1. The appeal is dismissed.
2. The impugned order dated 30/03/2009  in consumer complaint bearing No. 1 of 2009  passed by the District Consumer Forum, Gondia  is confirmed.
3. The complaint is allowed as per the impugned order.
4. No order as to cost.
5. Copy of order be furnished to both the parties, free of cost.