BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL FORUM, JALANDHAR.
Complaint No.436 of 2015
Date of Instt. 06.10.2015
Date of Decision: 03.10.2018
Madan Mohan Lal son of Shri Dhani Ram, resident of H. No.25, Type-II, Power Colony, Roop Nagar, through attorney Shri Sanjeev Kumar son of Shri Madan Mohan Lal, resident of H. No.25, Type-II, Power Colony, Roop Nagar (Ropar).
..........Complainant
Versus
1. Tata-AIG General Insurance Company Limited, Regd. Office Peninsula Business Park, Tower A, 15th Floor, Ganpat Rao Kadam Marg, Lower Parel, Mumbai-400013, through its Manager/Authorized Person.
2. Tata AIG General Insurance Company Limited, 3rd Floor, Shanti Tower, SCO No.17, PUDA Complex, Opposite Tehsil Complex, Jalandhar through its Manager.
3. PMG Autos Private Ltd. 47, Industrial Area, Phase 1 Chandigarh 160002 through its Director.
….….. Opposite Parties
Complaint Under the Consumer Protection Act.
Before: Sh. Karnail Singh (President)
Smt. Harvimal Dogra (Member)
Present: Sh. KC Malhotra, Adv and Sh. Charanjit Mahey, Adv Counsels for the Complainant.
Sh. AK Arora, Adv Counsel for the OP No.1 and 2.
OP No.3 exparte.
Order
Karnail Singh (President)
1. The instant complaint has been filed by the complainant, wherein alleged that the complainant is owner of the vehicle i.e. Renault Scala Car bearing registration No.PB-12-T-0787. The said vehicle was duly insured with the OP No.1 and 2, vide insurance policy bearing No.010096136700 for the period effective from 13.04.2014 upto 12.04.2015 (Bumper to Bumper) in the name of the complainant, vide cover note dated 24.04.2014. As per certificate of Insurance Policy Schedule total insured declared value (IDV) of insured car was Rs.7,80,000/-. An amount of Rs.19,739/- total premium as consideration was paid for the risk covered. It is pertinent to mention here that the complainant purchased above said vehicle in the year 2013 by availing loan facility from Canara Bank, Kiratpur Branch, Anandpur Sahib, District Ropar.
2. That on 17.07.2014, unfortunately the above said vehicle was met with an accident, while the son of the complainant was going to Gurudwara of Manikaran Sahib in Himachal Pradesh in the insured car along with his other friends and sister. When they reached near Kanchi Moar of Simarghat, suddenly there was a land slide and few stones fell down on the road from rocks and spread on the road. Some of falling stones hit and the wind screen of the insured vehicle of the complainant and damaged the windscreen glass of the insured car and few of the stones lying on the road hit the engine of the car badly. Resultantly, the whole engine of the car was damaged and car stopped there. The mishap occurred due to sudden landslide and falling stones on the road side.
3. That after the accident, son of the complainant informed the dealer of the car i.e. OP No.3 since the vehicle was got insured by this OP having tie up arrangement with the OP No.1 and 2. OP No.3 in turn informed about the accident to OP No.1 and 2. That there upon the vehicle of the complainant was picked up by the OP No.3 authorized workshop of Renault at 47, Phase-I, Industrial Area, Chandigarh on the same day. OP No.3 estimated and assessed the loss of vehicle to the tune of Rs.3,50,000/- and Rs.4,00,000/- for the damaged vehicle of the complainant after checking and inspecting the damaged vehicle and assessment of the loss. The complainant was coerced, harassed and forced to deposit Rs.1,00,000/- in advance for the repairing of the damaged vehicle in a road worthy condition. On the information given by the OP No.3, OP No.1 and 2 deputed a surveyor from their panel. The deputed surveyor visited OP No.3/workshop and also inspected the damaged vehicle and assessed the loss/damage as total loss of the insured vehicle. The surveyor also assured the son of the complainant that he would submit his surveyor report of total loss of the vehicle to OP No.2-insurer. The son of the complainant requested the surveyor to supply the copy of the complete surveyor report, but he did not provide the same regardless of the fact that it is mandatory for the surveyor to supply complete copy of the surveyor report to the insured or his representative when asked for as per the provision of protection of Policy Holder's interest regulation 2002 of Insurance Regulatory and Development Authority. The complainant has also sent a legal notice dated 03.06.2015 to the Insurer and the surveyor inter alia calling upon them to provide complete copy of surveyor report as mandatory under IRDIAI Regulations, but he neither supplied copy nor gave any reply.
4. That the son of the complainant deposited an amount of Rs.1,00,000/- on 06.08.2014 with OP No.3. Thereafter, the vehicle of the complainant was got repaired by OP No.3. A bill/invoice No.RIA14000975 dated 03.09.2014, total amounting to Rs.3,44,890/- was generated for the repairs carried out to the accidental damaged vehicle. The son of the complainant also deposited remaining bill amount of Rs.2,44,890/- to OP No.3 in addition to Rs.1,00,000/- already deposited, the son of the complainant also deposited the remaining amount. It is pertinent to mention that the OP No.3 told to son of the complainant that some of the parts of the vehicle were still not working properly due to accident and it also needed to be replaced. On 11.09.2014, 12.09.2014 and 30.09.2014, the son of the complainant again paid Rs.15,000/-, Rs.50,778/- and Rs.41,193/- to OP No.3 for parts, which were required to be replaced stated ante.
5. That thereafter, the son of the complainant again approached the OP No.2 and requested the official concerned to settle and reimburse the amount of bill, referred above, as the above said vehicle was duly insured with the OPs, but the OPs lingered on the matter on one pretext or the other. Son of the complainant has supplied the OPs with bill/invoice issued by the OP No.3 along with necessary documents, as required by them, but till date, the claim of the complainant has not been settled by the OP No.1 and 2 despite repeated requests and protestation and as such, there is a deficiency in service and negligence on the part of the OP, which gave cause of action to file the present complaint with the prayer that the complaint of the complainant may be accepted and OPs be directed to reimburse the claim amount of Rs.4,51,861/- to the complainant and further OPs be directed to pay compensation qua damages and loss to the complainant, to the tune of Rs.5,00,000/- and litigation expenses of Rs.20,000/-.
6. Notice of the complaint was given to the OPs, but inspite of service, OP No.3 failed to appear and ultimately, OP No.3 was proceeded against exparte, whereas OP No.1 and 2 appeared through its counsel and filed joint written reply, whereby contested the complaint by taking preliminary objections that immediately on the receipt of information qua the damage caused to the vehicle of the complainant in the alleged accident on 17.07.2014 an independent surveyor Mr. Mohit Sharma was appointed to inspect the vehicle and assess the loss, who has surveyed the vehicle on 24.07.2014 at the workshop of M/s PMG Autos Pvt. Ltd. at Chandigarh. After inspection of vehicle, the loss was assessed, to the tune of Rs.29,927/-. The cause of loss as stated by the insured in claim form was “a stolen fell from the top of hill and hit the front glass of the vehicle due to which the vehicle got imbalanced and fell into a ditch.” However, as per the observations made by the surveyor in his report dated 14.10.2014, damages present of the engine assy. & allied parts were not allowed as the damage to the engine and allied parts was possible only if the vehicle is driven without the engine oil after the accident which leads to the engine failure. So, the engine assy. & allied parts are not covered under the policy of insurance as it is a consequential loss. It is further averred that in view of above, the claim of the complainant was approved by the OP, to the tune of Rs.29,927/- as assessed by the surveyor and letter dated 16.10.2014 to this effect was written to the complainant. It was brought to the notice of the complainant that during inspection of the vehicle, the surveyor found Front Windshield Glass and Oil Pan damaged and accordingly, he was allowed the replacement of the same. However, during further inspection of the vehicle, it was also noticed that the engine oil was completely drained out of the engine which means that the engine had run without lubricating oil and that caused the seizure of the engine. Since damages to internal parts of engine are a consequential loss hence, the surveyor has not allowed the repair/replacement of the same and further referred Section 1 of the terms and conditions, which allow the compensation on following damages as under :-
Section 1- Loss of OH Damage To The Vehicle Insured
The company will indemnify the insured against loss or damage to the vehicle insured hereunder and/or its accessories whilst thereon.
(i) by fire explosion self-ignition or lightning;
(ii) by burglary housebreaking or theft. (iii) by riot and strike. (iv) by earthquake (Fire and Shock Damage); (v) by floor typhoon hurricane storm tempest inundation cyclone hailstorm frost. (vi) by accidental external means; (vii) by malicious act; (viii) by terrorist activity (ix) whilst in transit by road rail inland-waterway lift elevator/air. (x) by landslide rockslide. On merits, it is admitted that the vehicle of the complainant was got insured and same was met with an accident, but the loss was assessed and according to rule and regulation, the payment was approved to the complainant. The other allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits and the same may be dismissed.
7. In order to prove the case of the complainant, the counsel for the complainant tendered into evidence affidavits of the complainant Ex.CA and Ex.CB along with some documents Ex.C-1 to Ex.C-21 and thereafter, evidence of the complainant was closed by order on 09.05.2017.
8. Similarly, counsel for the OPs tendered into evidence affidavit of Azhar Wasi as Ex.OA and affidavit of Mr. Mohit Sharma, Surveyor as Ex.OB along with some documents Ex.O-1 to Ex.O-7 and in additional evidence counsel for the OPs tendered documents Ex.O-8 and Ex.O-9 and then closed the evidence.
9. We have heard the learned counsel for the respective parties and also gone through the written arguments submitted by learned counsel for the complainant and further scanned the file as well as documents.
10. From the over all circumstances as evaluated above, we find that the factum in regard to insurance of the vehicle, is not in dispute and even the insured vehicle met with an accident on 17.07.2014, is also not in dispute rather the dispute is only that the complainant claimed the total loss caused to the vehicle by way of said accident, to the tune of Rs.4,58,861/-, whereas the OP has approved a loss of Rs.29,927/- as assessed by the Surveyor. Keeping in mind the above factum in regard to admitted fact as well as the plea taken by the OPs, we have to decide whether the claim of the complainant, to the tune of Rs.29,927/- has been legally and validly approved by the OPs or not, for that purpose, we are required to go through the documents as well as evidence produced on the file by each of the party.
11. First of all, the OP alleged that as per terms and conditions as elaborated in Section 1- Loss of the damaged vehicle insured, the claim of the complainant has been approved, but the complainant has categorically alleged in the complaint that no term and condition has ever been supplied to the complainant at the time of inception of the policy and this factum has not been specifically denied or proved by the OPs that the terms and conditions along with the policy were supplied to the complainant or make understood to the complainant, for that purpose, we can make reliance upon one document issued by the OP i.e. Forwarding Letter dated 24.04.2014, wherein categorically mentioned along with this letter, we have enclosed as under:-
(a). Your Policy Schedule/Certificate of Insurance/Premium Payment Receipt.
(b). Auto Secure Policy/Wordings Booklet.
(c). Auto Secure Customer Information Booklet.
(d). Auto Secure Car Insurance Document Holder.
(e). Auto Secure Policy Card.
but no where mentioned in the forwarding letter that the terms and conditions are also supplied to the complainant at the time of taking of the insurance policy, if the terms and conditions for the whole time remained in the almirah of the OP, then how we can say that the said terms and conditions are well within the knowledge of the complainant, if so, then the complainant is not bound by that terms and conditions, which have never seen the light of the day. So, from this angle, the case of the OP not proved that the claim of the complainant is partly approved on the basis of the terms and conditions, which are never came to the notice of the complainant.
12. Furthermore, the main plea taken by the OP is only that the insured vehicle, which was met with an accident was inspected by the Surveyor at the workshop of OP No.3 and observed that the cause of loss was due to fall a stone from the top of hill and hit the front glass of the vehicle, due to which the vehicle got imbalanced and fell into a ditch, but further the Surveyor observed that during the inspection of the vehicle, it was found/noticed that the engine oil was completely drained out of the engine, which means that the engine had run without lubricating oil and that caused the seizure of the engine, which is due to fault of the complainant, therefore, the complainant is not allowed to repair the engine rather the claim only of Rs.29,927/- is recommended by the Surveyor, which has been approved by the OP, vide letter dated 16.10.2014 Ex.O-1 and further OP brought on the file a copy of letter dated 03.09.2014 Ex.O-9, sent by Surveyor to the complainant through postal receipt and postal receipt is also annexed on this letter. The OP has also brought on the file copy of the report of the Surveyor Ex.O2 and observation is given as same as discussed above. Now, we have to decide whether the report of the Surveyor can be accepted as it is without going through its content or the procedure adopted by the surveyor or whether he is competent to check the engine by way of having knowledge of mechanic, for that purpose, the surveyor has not mentioned or detailed any word in his affidavit Ex.OB that he is having a knowledge of mechanical engineer, if so, then how he can assess that the engine of the insured vehicle got damaged due to want of oil engine.
13. For the argument sake, we accept the version/observation of the Surveyor that at the time of inspection of the insured vehicle, there is no engine oil in the engine, it is pertinent to mention here that the vehicle has been inspected by the Surveyor while it was parked in the workshop, after accident. As per version of the Surveyor, the complainant reported in the claim form that due to fall of a stone from the hill on the front glass of the vehicle and due to which, the vehicle got imbalanced and fell into ditch. We can assess without any further evidence that when any vehicle fell into ditch, then there must be some pressure from both sides i.e. from the engine side or from the that ditch and at that eventuality, there is a 100% possibility that some damages must be caused to the engine and it might be leakage of the oil engine and oil of the engine must be drain out at the spot of the accident due to fall of the vehicle into a ditch, but this aspect has not been assessed by the surveyor at the time of inspection and observing the loss to the vehicle. So, from this angle, we are of the opinion that the report of the Surveyor cannot be accepted as it is, rather the Forum has to observe its own opinion also and in support of this observation, we like to refer a pronouncement of Hon'ble State Commission, New Delhi, cited in 2016 (2) CLT, titled as “Suresh Chand Jain Vs. Universal Sompo General Insurance Co. Ltd & Others”, wherein his Lordship held as under:- “Insurance Claim, Surveyor Report, Held, Report of the expert surveyor is not ultimate document to reach at a conclusion to allow or not to allow the claim, Courts had to apply their mind also”.
14. In the light of above detailed discussion, we are of the opinion that the claim of the complainant has been wrongly and illegally partly allowed by the OP, to the tune of Rs.29,927/-, whereas the complainant is entitled for the total loss caused to the insured vehicle as assessed by the workshop/ OP No.3, vide its estimate report Ex.C-5 i.e. Rs.3,44,890/-. However, we are not agree with the other bills submitted by the complainant i.e. Ex.C-6, Ex.C-7 and Ex.C-8, whereby alleged that he also made some other amount for replacement of the parts because the total loss assessed by the OP No.3 at the first instance, after the accident, is described in the estimate report Ex.C-5. So, accordingly, we are of the opinion that the complainant is entitled for the assessed amount by workshop i.e. Rs.3,44,890/- and accordingly, OP No.1 and 2 are directed to pay the said claim amount to the complainant with interest @ 12% per annum from the date of filing this complaint, till its realization and further OP No.1 and 2 are directed to pay compensation to the complainant for mental and physical harassment, to the tune of Rs.40,000/- and litigation expenses of Rs.10,000/-. The entire compliance be made within one month from the date of receipt of the copy of order. This complaint could not be decided within stipulated time frame due to rush of work.
15. Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.
Dated Harvimal Dogra Karnail Singh
03.10.2018 Member President
