Date of Filing: 09/09/2015

  Date of Order: 05/08/2017

ORDER

BY SRI.SYED ANSER KHALEEM, PRESIDENT

1.     This is the complaint is filed under Section 12 of the C.P. Act 1986 against the O.Ps alleging the deficiency in service and praying for orders to direct the O.Ps for the following reliefs:

i)      To direct the O.Ps to pay a sum of Rs.1,67,452/- to the complainant towards the repair works of the vehicle along with 12% interest from 12.05.2015 i.e., Rs.6609/-

ii)      To pay a sum of Rs.1,500/- to the complainant towards the towing of the vehicle on multiple occasion along with 12% interest from 12.05.2015 i.e., Rs.60/-.

iii)     To pay a sum of Rs.60,000/- as compensation for the loss of pay incurred by the complainant.

iv)     To pay a sum of Rs.50,000/- as compensation for the harassment and mental agony caused to the complainant.

v)      To pay a sum of Rs.30,600/- being the policy amount and Rs.26,450/-  being the renewal  amount paid by the complainant towards the policy i.e., a total of Rs.57.050/- and

vi)     to pay a sum of Rs. 25,000/- towards the cost of litigation.

2.     The facts of the complaint in brief are that the O.Ps are the insurance providers who inter-alia provide vehicle insurance.  It is stated that the complainant had insured his vehicle i.e., Mahindra XUV 500 bearing registration number KA-51-MD-3704 with the O.Ps and the insurance policy bearing No.01000891825.  The said policy was availed on 21.12.2013 and thereafter duly renewed on 21.12.2014. It is stated that the 1^st O.P solicited and promised the complainant that the policy is an absolutely comprehensive policy and also assured that the policy is a coverage of “bumper to bumper” policy. The 1st O.P officials informed that the “Depreciation Add on” was an essential feature to insured the vehicle from any depreciation that may occur and the same will also ensure that any damage that has been caused to the vehicle will be covered under the policy and the add on, and the add on will further cover any depreciation in the value of the insured vehicle and thus the complainant was solicited to avail the said add on as well. Hence the complainant stated that he was virtually made to availed the “Depreciation add on” to the said policy by paying an exorbitant sum of Rs.4,823/- for availing the said policy.

3.     It is further stated that on 11.05.2015 night, the complainant’s brother Mr.Sandeep Nyamati was driving the vehicle belonging to the complainant.  When Mr. Sandeep was on his way to home with his family, he felt that the bottom part of the vehicle had collided with a stone and there was a sudden noise out of nowhere which emanated from underneath the vehicle and the vehicle stopped abruptly in the middle of the road, near BTM Layout, Bangalore and the vehicle abruptly stopped moving.  As the traffic came to a standstill, the complainant was constrained to taken help from some passengers to move the vehicle to the side of the road as the traffic was piling up.  Immediately after the said incident, said Mr. Sandeep informed the complainant and the complainant immediately rushed to the spot.  Under such circumstance, the complainant telephoned to a mechanic at S.M. Cars, which was the nearest service station known to the complainant, informing the mechanic about the events as they unfolded.  The complainant was instructed by the mechanic at S.M. Cars not to move the vehicle any further and was asked to check if any oil leakage had occurred.  Upon verification the complainant observed that oil had indeed leaked out of the vehicle.  After that the complainant was informed that a towing machine will be sent to the spot by S.M. Cars and accordingly the vehicle was towed to the garage of S.M. Cars on the same night.  Further complainant was advised by the personnel of S.M. Cars to contact his insurance agency i.e., the O.Ps.  Therefore, on 12.05.2015 in the afternoon at around 1:00 p.m., the complainant telephoned the O.Ps customer care service and registered a claim. Upon inquiry, the complainant was informed that it was not mandatory to get the repair works of the vehicle done at an authorized service station and that service of the repair works can be availed from any service centre and that the entire cost of such repair works will be covered under the policy held by the complainant.  The complainant as informed by the 1^st O.P officials that the complainant had to fill the claim form and the same had to be filled in a particular manner providing details as the manner required by 1^st O.P. Thereafter that the complainant filled in the claim form as accordingly to the instructions of the 1^st Op officials.

4.     The complainant requested the 1^st O.P to send their surveyor for a spot inspection, the 1^st O.P failed do so and the complainant was further informed that the spot inspection survey was not at all required.  However, as abundant caution the complainant had taken certain photographs of the vehicle at the spot soon after the vehicle had stopped.   On 13.05.2015 one Mr. Jayasimha who is the personnel from the claims department of the 1^st O.P took certain photographs of the vehicle and informed the complainant that another surveyor will be assigned pertaining to the complainant’s claim to conduct further inspection.  On 15.05.2015 after a delay of three days of registering the claim the complainant received a call from one Mr. Pruthveesh, who is purportedly an IRDA licensed surveyor, informing the complainant that since there is a Depreciation Add on to the policy, the vehicle had to be moved to an authorized Mahindra service centre.  The complainant therefore intended to shift the vehicle to M/s. Sireesh Auto Private Limited near Hosur Road, being the nearest authorized centre. Accordingly, the complainant shifted the vehicle to Sireesh on 18.05.2015.  It is stated that the cost of shifting i.e., towing of the vehicle, was borne by the complainant himself and even to this date, the O.Ps have not reimbursed to the cost incurred in towing the vehicle to the complainant, which the O.Ps are obliged to do so.  The complainant was thereafter informed by Mr. Pruthveesh on 19.05.2015 that the policy allegedly did not cover the damages to the internal parts of the vehicle.  The complainant was also informed by the O.P. No 1 that the complainant will be constantly updated regarding the progress in processing the complainant’s claim.   The complainant was further assured that the 1^st Op officials would personally oversee the repair works of the vehicle and process the complainant’s claim.  However, after about a week of shifting the vehicle to Sireesh service centre, the complainant was informed that the casing of the engine of the vehicle was opened at the service centre at the behest of the 1^st O.P officials.   Though the service centre did not have the authorization to do so and although the 1^st O.P was under an obligation to ensure that the casing was opened only in the presence of a surveyor and the complainant, the casing was opened and the complainant was telephonically informed that internal parts of the gearbox assembly were allegedly damaged and that the completely assembly had to be replaced.

5.     It is stated that the surveyor had drawn up an initial estimation after consulting the 1^st O.P.  According to the said initial estimation dated 21.05.2015 of Sireesh the Surveyor i.e., Mr. Pruthveesh had approved the clutch housing replacement as per the estimation and physical damage noticed on the part. It is further stated that the O.Ps assured the complainant that the damages that were incurred were covered under the Policy but to process the claim effectively, the O.Ps required a communication from the complainant stating that the vehicle moved a few meters after the impact.  Believing the assurances of the O.Ps the complainant issued an e-mail dated 15.06.2015 thereby stating that the vehicle may have moved a few meters after the impact.  The complainant had sent numerous e-mail correspondences informing that 1^st O.P about the incident and explaining the event and also sending the photographs with explanations as to the damage.  Despite the bonafied attempts from the complainant to address the issue but the O.P. No 1 failed to do so. On 10.06.2015 the complainant was informed that his claim will be revisited.  However on 15.06.2015 the complainant was informed by the 1^st O.P that the claim of the complainant was allegedly not tenable under the policy.  Hence the complainant got issued a reply notice dated 09.07.2015 through his legal counsel.  Instead of making payment as per the policy, the O.Ps issued another notice dated 10.07.2015 and ultimately O.Ps denied the claim of the complainant. Hence this complaint.

6.     Upon issuance of notice, O.Ps appeared through its counsel and filed the version. In the version it is admitted that the complainant vehicle i.e., Mahindra XUV 500 bearing registration number KA-51-MD-3704 was insured with the O.Ps i.e., Auto Secure Private Car package policy bearing No.0100891825 on the said policy validity is from 00.01 hours on 21.12.2014 to mid night of  20.12.2015.  Further the insured declared value of the vehicle is for Rs.9,64,600/- and complainant paid the premium of the Rs.26,449/-. It is contended that the liability of the O.Ps is subject to terms and condition of the said policy. Further contended that complainant by suppressing the material facts filed this compliant.  It is denied has false the coverage of policy bumper to bumper but it is subject to terms and conditions and wordings as to bumper to bumper is nowhere stated therein and it is just a created wording. The policy obtained by the complainant after understanding the terms and conditions and exclusion there under. It is contended that as per the add on cover i.e., depreciation reimbursement for which Rs.4,823/- was paid is matter of record.  The add coverage obtained by the complainant entitled him for the amount which is usually deducted towards parts of metal and rubber and fiber under the standard policy. Hence contended that the present claim is no way connected with add on cover and also similarly the add on cover of loss of personal belongings emergency transfer hotel expenses and key replacement etc., for which an additional premium was paid. It is contended that complainant has not obtained engine secure add on cover by paying additional premium there by the policy is not extended to cover the present line which falls under the similar category.  It is contended that complainant had intimated that is car broke down on 11.05.2015 at night hours when it was driven by his brother, but contended that the brother of complaint drove the vehicle carelessly and rash and negligently without any precautions and spot repairs as such the entire engine oil was caused by the vehicle being driven following the draining out of oil and as such the claim falls under the clear cut exclusory U/s 1 clause 2 of the policy. Hence contended that company shall not be liable to make any payment in this respect.   It is admitted that as per the intimation of claim, filing of claim form and other documents arising, the surveyor by the O.Ps are true and correct. It is contended that the as per the report of the surveyor assessed the liabilities for Rs.22,438/- subject to the terms and conditions. However, the said approval was withdrawn later since manipulation of accident was noted.  It is was noticed during the inspection by the surveyor that there were several “hammer Marks on the transmission housing apparently to make the damages caused by an external object (stone) and the hole in the transmission causing thus appears to have been made by hitting  with hammer.  This fact were brought to the notice of the complainant during visit of surveyor to M/s. Sireesh Auto on 19.05.2015 after shifting of said vehicle to authorized dealer from M/s. S. M. Cars. Further the said surveyor opined that the damage were not due to any accident but were made to make a claim under the policy.   It is denied that the complainant has incurred Rs.1,70,000/- as cost of repair and towing charges. It is contended that O.Ps repudiated the claim through letter dated 04.06.2015 to the complainant and also replied to the notice of the complainant. Hence contended that there is no cause of action to bring this complaint and ultimately prays for dismissal of the complaint.

7.     In order to substantiate the case of the parties and both parties filed their affidavit evidence and also heard the arguments and the parties have also filed the written arguments.

8.  On the basis of the pleadings of the parties, the following points will arise for our consideration :-

                                (A)  Whether the complainant has proved

                      deficiency in service on the part of the O.Ps?

(B)  Whether the complainant is entitled to

      the relief  as prayed for in the complaint?

(C)   What order?

9.     Our answers to the above points are:-

POINT (A) & (B):      In the Affirmative.

POINT (C):               As per the final order

for the following:

REASONS

POINT No. (A) & (B):-

10.   On perusing the pleadings of the parties, it is an undisputed fact, that the complainant insured his vehicle Mahindra XUV 500 bearing registration number KA-51-MD-3704 with the O.Ps. It is also not in dispute that the insurance policy i.e., Auto Secure Private Car package policy bearing No.0100891825  and the validity is from 00.01 hours on 21.12.2014 to mid night of  20.12.2015. It is also not in dispute that the insured vehicle on 11.05.2015 was driven by the brother of the complainant and the said vehicle was stopped abruptly and thus stopped moving. Thereafter the said vehicle was towed to M.S. Car service centre and ultimately the said car was shifted Sireesh service centre.

11.   It is allegation of the complainant is that the said car was abruptly stopped due to hitting to the stone to the oil tank and the leakage was occurred and caused damage to the car. Whereas O.Ps contended that the car broken down on 11.05.2015 when it was driven by the brother of the complainant on account of his careless and rash and negligent driving and who has not taken any precaution.  The liability of the O.Ps is subject to terms and condition of the policy and the claim of the complainant falls under exclusion clause i.e., Section 1(2) of the policy. Hence contended that O.Ps shall not be liable to make any payment. It is also contended that the coverage is not bumper to bumper and the surveyor of the insurance company noticed to the hammer marks on the transmission housing apparently to make the damages caused by an external object and the hole in the transmission casing thus appears to have been made by hitting with hammer. Thereafter the OP repudiated the claim.

12.   It is worth to note that the insurance policy the respect of the vehicle is not in dispute.  Crux of the matter is to consider whether the damaged to vehicle is caused due to external object (stone) and the hole in the transmission casing thus appears to have been made by hitting with hammer as the surveyor of the insurance company noticed the hammer marks?

13.   It is pertinent note that on perusal of the entire evidence on record though generally one who alleges deficiency in service the burden lies on the complainant to prove, whereas in this case the complainant proved that the vehicle was insured with the O.Ps and the policy was in force when the above incident occurred.  On perusal of document No.12 &13 it clearly reveals that the complainant well in time intimated to the opposite party insurance company and accordingly insurance surveyor inspected the vehicle and opined that damaged to vehicle was caused due to external object (stone) and the hole in the transmission casing thus appears to have been made by hitting with hammer as the surveyor of the insurance company noticed the hammer marks and on basis of opinion of the surveyor O.Ps repudiated the claim. Hence the burden of proving is on the O.Ps to justify the repudiation. It is worth to note that the insurance company did not examined its surveyor in order to establish that the damage to the vehicle was caused due to external object (stone) and the hole in the transmission casing thus appears to have been made by hitting with hammer as the surveyor of the insurance company noticed the hammer marks. In absence of the cogent evidence the contention of the O.P or the opinion of the insurance surveyor is lame of strength and holds no water. On perusal of the exchange of notice it clearly establish that O.Ps are attempting to exonerate their liability on the technical grounds saying that the claim of the complainant falls under the exclusion clause without any cogent evidence.

14.    On perusal of the document No.17 it clearly reveals that complainant incurred expenditure of Rs.1,67,452/- so far as the case in hand is concerned the claim of the complainant has been accepted as it was duly supported by document No.17 in getting the Mahindra XUV 500 repaired. On the basis of available evidence on record the repudiation of the claim by the O.Ps is not justifiable.  Hence we find non settling the claim amount, amounts to deficiency in service on the part of the O.Ps. Under the circumstance we deem it just and proper to direct the O.Ps to pay a sum of  Rs.1,67,452/- along with Rs.2000/- towards cost of the proceedings and it will meet to the ends of the justice. Accordingly we answered these points partly in the affirmative.

POINT (C):

15.   On the basis of findings given while answering the Points (A) & (B) and in the result, we proceed to pass the following:-

ORDER

1. The complaint is allowed in part with cost.

2. The O.Ps are hereby directed to pay a sum of Rs.1,67,452/- towards the repair charges of Mahindra XUV 500 to the complainant within 30 days from the date of receipt of this order failing which O.Ps are directed to pay interest at the rate of 9% p.a. on the above said amount  from the date of complaint till realization. 

3. Further O.Ps are hereby directed to pay a sum of Rs.2,000/- towards cost of the proceedings.

4. The O.Ps are hereby directed to comply the order of this Forum within 30 days from the date of receipt of this order and submit the compliance report to this forum within 45 days.

5. Send a copy of this order to both parties free of costs, immediately.

(Dictated to the Stenographer, transcribed and computerized by him, corrected and then pronounced by us in the Open Forum on this the 05^th Day of August 2017)

                                                    MEMBER                 MEMBER                PRESIDENT