CONSUMER DISPUTES REDRESSAL COMMISSION – X
GOVERNMENT OF N.C.T. OF DELHI
Udyog Sadan, C – 22 & 23, Institutional Area
(Behind Qutub Hotel)
New Delhi – 110016
Case No.87/2016
SARABJEET ASSOCIATES PVT. LTD.
THROUGH ITS DIRECTOR,
SHRI SARABJEET SINGH BATRA
REGISTERED OFFICE:
B-103/4, NARAINA INDUSTRIAL AREA,
PHASE-I, NEW DELHI-110028…..COMPLAINANT
Vs.
TATA AIG INSURANCE COMPANY LTD.
THOUGH ITS DIRECTOR/ AUTHORIZED SIGNATORY
REGISTERED OFFICE:
15TH FLOOR, TOWER-A,
PENINSULA BUSINESS PARK,
GANPATAO KADAM MARG,
LOWER PAREL,
MUMBAI-400013 ..….RESPONDENT
BRANCH OFFICE:
LOTUS TOWERS, FIRST FLOOR,
COMMUNITY CENTRE,
NEW FRIENDS COLONY,
NEW DELHI-110025.
Date of Institution-29/02/2016.
Date of Order-30/03/2022
O R D E R
MONIKA SRIVASTAVA– President
The complainant M/s Sarabjit Associates Private Limited has instituted the present complaint against sole OP- M/s Tata AIG insurance company limited. The complainant had initially filed the complaint before SCDRC, Delhi, however the same was withdrawn vide order dated 28.01.2016 with liberty to file before this Commission. The present complaint was filed on 11.02.2016.
The complainant has preferred a claim of Rs. 16, 88,947/- out of which Rs. 11,26,947/- is towards the cost of repair of said vehicle, Rs. 62,000/- towards interest @ 18% till the date of institution of claim and Rs. 5,00,000/- towards damages for mental harassment.
The Complainant subscribed to an insurance policy with OP, in respect of its vehicle VOLVO XC 60 D5 bearing registration number DL-08C-AF-0163 (hereinafter referred to as said vehicle) which was valid for a period between 22.11.2014 till 21.11.2015. It is stated that on 07.08.2015, owing to heavy rains the said vehicle met with an accident and fell into a pit which was caused because of heavy rains. The said vehicle was towed to the workshop of M/s Auto Kashyap for repairs. The complainant was informed by the officials of the workshop that because of accident, the engine of the said vehicle has developed some problem, the repair cost of it would be in excess of Rs. 10,00,000/-. The officials of OP visited the workshop and inspected the subject vehicle. It is further stated that OP vide its letter dated 24.08.2015, intimated the complainant that initial inspection of the said vehicle revealed the presence of water in the air filter and on further inspection it was inter-alia noted that engine was not cranking manually, water was found in the air intake line of engine therefore the liability of OP was limited to replacement of air filter, engine oil, oil filter and flushing of engine. OP, vide the said letter regretted it’s inability to indemnify the complainant for damage to the internal parts of the engine. It was further stated that damage to the engine could have been covered only if the complainant had opted and paid for add on feature “Engine Secure”.
The OP in its Reply, claimed that there is no deficiency in service on the part of the OP as it immediately deputed an officer/ surveyor to inspect the vehicle. It is further submitted that complainant had obtained an Auto Secure Private Car Package policy along with certain add on coverages which did not include “Engine Secure” which was necessary for claiming damage to the engine caused in the present case. It is further stated that surveyor found water intake in the engine which can only be attributed due to mechanical failure caused by running the subject vehicle in waterlogged area. Since the engine of the subject vehicle did not seize due to any accidental impact, the liability of the OP is only limited to replacement of air filter, engine oil, Oil filter and flushing of engine. It was thus stated that loss caused due to ingress of water is not covered under the standard policy which the complainant was holding thus the OP was not liable to make reimburse expenses incurred in repairs. OP has also alleged contributory negligence against the complaint as another reason for non-entitlement of refund. It is stated that driver of subject vehicle deliberately tried to start and run the vehicle when it was in contact with water as against the guidelines issued by the manufacturers of the vehicle that suggests to take precaution and running the vehicle at the time of integration of water so as to prevent engine seizure.
It is further stated by OP that to process the reimbursement of what is covered under the policy required submission of original repair bills and re-submission of subject vehicle for inspection, none of which was done by the complainant despite complainant requesting for the same vide its email dated 17.10.2015 and letter dated 21.10.2015. It is further stated that complainant vide its letter dated 18.11.2015 withdrew its claim and requested the OP to issue fresh renewal letter for claiming NCB (No Claim Bonus) therefore the present complaint is not maintainable and it deserves to be dismissed at the threshold.
The complainant in its replication admitted the fact that it had withdrawn the claim and opted for benefit of NCB. It is however explained that NCB forms a considerable part of insurance premium and unless the complainant had not withdrawn the claim the benefit of NCB would have been denied to it. In these circumstances, the complainant was left with no option but to write a letter withdrawing its claim but it never abandoned the claim of reimbursement.
Both the parties have filed affidavit by way of evidence and written submissions.
Hon’ble NCDRC in the matter of Sunil Gupta vs Ansal Township Infrastructure Limited CC NO. 50/2018 declined the relief of refund of amount towards what was claimed as excess area where the complaint was filed only after all the payments as per the demand of the opposite party have been made and the possession taken by the complainant. Relying upon the judgment of the Hon’ble Supreme Court in the matter of State of Punjab vs Dhanjit Singh Sandhu, Civil Appeal no 5698-5699 decided on 14.03.2014 it was held
“It is evident that the doctrine of election is based on the rule of estoppel the principle that one cannot approbate, and reprobate is inherent in it. The doctrine of estoppel by election is one among the species of estoppel in pais (or equitable estoppel), which is a rule of equity. By this law, a person may be precluded, by way of his actions, or conduct, or silence when it is his duty to speak, from asserting a right which he would have otherwise had."
Relying upon the above-mentioned judgment of Supreme Court, the Hon’ble NCDRC in the matter of R.V. Prasannakumaar vs Mantri Castle Private Limited CC no. 913/2016 declined to grant refund money given towards car parking space, after getting the facility of car parking space and without surrendering it.
The present complaint was instituted on 11.02.2016 while the claim before the OP was withdrawn on 18.11.2015. Admittedly, the complainant having elected to obtain the benefit of reduced insurance premium by claiming the benefit of NCB by withdrawing his claim filed before OP, cannot now be permitted to approbate and reprobate and press for claim towards insurance claim. The complainant by his action of withdrawing the claim has precluded himself with the right to maintain the present petition. The petition is accordingly dismissed. No order as to costs.
File be consigned to record room after giving copy of the order to the parties. Order be uploaded on the website.
(Dr. RAJENDER DHAR) (RASHMI BANSAL) (MONIKA SRIVASTAVA)
MEMBER MEMBER PRESIDENT
