C.VISWANATH

1. The present Revision Petition is filed by the Petitioner under Section21(b) of the Consumer Protection Act, 1986 against the order passed by the State Consumer Disputes Redressal Commission, Delhi (hereinafter referred to as the “State Commission”) in R.P. No. 970/2006 dated 10.02.2009.

    

2. In this Case, Respondent No.2/Complainant had obtained Insurance Policy No. 0100197084 for his Honda City Car DL 4C AB 08995 for the period 28.02.2004 to 27.02.2005. On 19.09.2004, while returning to hotel at Sawai Madhopur alongwith his family at about 11PM, the car hit a speed breaker with a loud thud, resulting in extensive damages. According to the Complainant, information about the accident was given to the Petitioner under whose advice the car was handed over for repair to Respondent No.1. Thereafter, the Petitioner arranged survey of the car at the workshop of Respondent No.1. Respondent No. 2 provided the estimate of repair, and other documents to the Petitioner. During the course of survey, Respondent No.1 gave the impression that the entire claim shall be borne by the insurance company, as the vehicle was only 3 months old. In the last week of October, 2004, Respondent No.1 called him to take delivery of the vehicle and demanded Rs.94,320/- towards repair cost. Respondent No.2 asked Respondent No.1 to provide details of the items which the Petitioner had refused to pay under the Policy. Thereupon, he paid Rs.94,320/- to Respondent No.1 and took delivery of his car. From the Bill copy received, vide letter dated 01.11.2004, the Complainant came to know that the total cost of repair was Rs.1,10,150/-, against which the Petitioner had paid only Rs.15,820/-, despite his taking a Comprehensive Insurance Policy. It was alleged against Respondent No.1 that he had given false assurance to him that the repair cost would be payable by the Petitioner Company directly to Respondent No.1, but later Respondent No.1 forced him to pay Rs.94,320/-, which was arbitrary, amounting to unfair trade practice.Hence, Complaint was filed by Respondent No.2 before the District Forum alleging deficiency in service on the part of the Petitioner and Respondent No.1.

    

3. Respondent No.1 filed written statement in which it was contended that, on 21.09.2004 estimate for repair of damaged car was prepared at the request of Respondent No. 2.On the next day, Respondent No.2 informed that the car was covered by comprehensive insurance and that he would recover the insurance claim from the insurer and therefore repair work should not be started, until the survey is carried out by the Petitioner. On 30.09.2004, Surveyor deputed by the Petitioner carriedout the survey in the presence of Respondent No.2 and approved damages to the extent of replacement of front bumper, oil sump besides labour charges of Rs.5,500/-. After the survey, it was noticed that the engine was seized and the same was informed to the Petitioner. The representative of the Petitioner rejected the entire claim, except the claim of Rs.15,830/-, stating that the same was consequential damages and not covered under the Policy. On 08.10.04, Respondent No.2 communicated to Respondent No.1 to commence the work which was thereafter started and completed on 01.11.04. Respondent No. 2 also paid Rs.94,320/- without any objection and took the delivery of the car against receipt dated 02.11.04. Respondent No.1 claimed that the complaint is frivolous and had been filed with an ulterior motive and hence, should be dismissed.

    

4. The Petitioner in his written statement contended that after the accident, Respondent No.2 continued to drive the car in a damaged condition, and as a result the engine seized, because of lack of lubricant oil that had leaked out due to the accident. Thus, as per condition No.4 of the Insurance Policy, reproduced below, they were not liable to indemnify the consequential damages suffered by the car:-

   “the insured shall take all reasonable steps to safe guard the vehicle from loss or damage and to maintain it in an efficient condition….. In the event of any accident or breakdown the vehicle shall not be left unattended without proper precautions being taken to prevent further damage or loss and if the vehicle be driven before the necessary repairs are effected, any extension of the damage or any further damage to the vehicle shall be entirely at the insured’s own risk”.

    

   It was also stated that the car met with an accident on 19.09.04, but the surveyor of the Petitioner came to know about the same only on 30.09.04, when he had gone to see some other vehicle at the premises of Respondent No.1. The formal information of the said accident was given by Respondent No. 1 only on 04.10.04 and Respondent No.2 gave intimation subsequently on 07.10.04. As per condition No.1 of the Policy, Respondent No.2 was required to give notice of occurrence immediately. Since, large amount of damages were caused to the vehicle by Respondent No.2 by his own carelessness, they would not be liable, except for the immediate damages caused by the accident. It was pleaded that for immediate damages caused by the accident, they have already discharged their liability and that the complaint against them deserved to be dismissed, as there was no deficiency in service on their part. 

    

5. The District Forum, vide order dated 28.08.2006, dismissed the Complaint of Respondent No.2 on the ground that the Petitioner cannot be held liable for the damages caused by Respondent No.2 by driving the vehicle after the accident, without getting the initial damages repaired.

    

6. Respondent No.2 filed Appeal before the State Commission against the orders passed by the District Forum. The State Commission, vide order dated 10.02.2009, allowed the Appeal of Respondent No.2 and set-aside the order passed by the District Forum and directed the Petitioner to make balance payment Rs.1,10,150/- less Rs.15,820/- (already paid) and also pay Rs.10,000/- as compensation for mental agony and harassment and Rs.5,000/- as cost of litigation to Respondent No.1.Being aggrieved by the order of the State Commission, the Petitioner filed the present Revision Petition.

    

7. Heard the Learned Counsel for Petitioner as well as Learned counsel of the Respondents. We have carefully gone through the orders passed by the State Commission as well as by the District Forum in this matter and other record placed before us.

    

8. While Respondent No. 2 was driving his car on 19.09.2004 at about 11:00 PM midnight near Sawai Madhopur, the car hit a speed breaker.There was a boom noise and the car was damaged.Instead of putting the vehicle to a side, Respondent No. 2 drove the car to the hotel where they were staying.In the morning, he found that the car engine was not working and lubricant oil had leaked.The car was not in a working condition and was carried on truck for repair to Ring Road Honda Station, New Delhi.

    

9. The case of the Petitioner is that Respondent No. 2 did not immediately inform about the occurrence of the accident and hence had violated condition No. 1 of the Policy which reads, “Notice shall be given in writing to the Company immediately upon the occurrence of any accidental loss or damage……”.This was denied by Respondent No. 2 who contended that it was on their advice only that he handed-over the vehicle for repairs to Respondent No. 1.The accident took place on 19.09.2004 but as per record the information was provided to the Insurance Company in writing only on 07.10.2004.There was, thus, certainly some amount of delay in reporting the accident in writing.

    

10. The main issue on which the insurance claim was repudiated was violation of condition No. 4 of the Policy, which provided that in the event of any accident or break-down, the vehicle shall not be left unattended without proper precautions being taken to prevent further damage or loss and if the vehicle be driven before the necessary repairs are affected, any extension of damage or any further damage to the vehicle shall be entirely at the insured’s risk.

     

11. This case is squarely covered by decision of this Commission in “Balendra Gautam vs. Oriental Insurance Co. Ltd.” [Revision Petition No. 1282 of 2000 decided on 28.02.2002].The damage to the engine was not on account of the accident but driving the car further, with loss of oil.Engine seizure is a consequential loss which is not covered under the terms and conditions of the Policy.The surveyor, therefore, did not recommend this part of the claim.This loss has since been permitted by IRDA as an add-on only vide letter dated 4^th June 2012, subject to payment of extra premium. The Petitioner Insurance Company was right in rejecting the claim for consequential damages as per the terms and conditions of the existing Policy.

     

12. In view of above, the order passed by the State Commission is set aside and the order passed by the District Forum is upheld.The Revision Petition is allowed.There shall be no order as to cost.