Order-17.
Date-11/07/2016.
This is a case arising over repudiation of insurance claim.
The case is filed u/s.12 of the C.P. Act.
The case of the complainant, in short, is that the OP1 is a company carrying on business of providing general insurance service to the public at large. OP2 is an officer of OP1. OP3 is insurance surveyor and loss assessor.
Complainant purchased a Mercedez E250 CDI sedan car in August, 2013 and the said car was initially insured with Varati Axa General Insurance but from 19-08-2015 the complainant obtained the subject policy from OP1 being policy No.015468126.
On 24-08-2015 when the car was parked in the premises of the complainant, a small stone fell on the wind shield of the said car from the then under construction Park Circus Fly over which is absolutely in the close vicinity in the premises of the complainant. This caused damage to the wind shield in the said car. The car was sent to the repair workshop authorized by the OP1. On 28-05-2015 OP1 informed the complainant that during inspection, no damage to the wind shield of the said car was observed and the claim, as such, is not payable in view of Section 1 of the comprehensive package policy. OP1 further on 16-10-2015 informed the complainant that OP1 appointed an IRDA approved surveyor that is OP3 for assessing the loss. The workshop, however, reported by a letter to the complainant that upon checking the wind shield it was it was found that there was an impact in the glass. OP1 on 16-11-2015 issued a repudiation letter and repudiated the claim of the complainant purportedly on the basis of the survey report of the OP, inter alia, holding that the damage to the wind shield glass is not consistent with the cause of damage mentioned in the claim form and is not due to all any perils covered under the policy. It is alleged that the purported finding of the OP is totally incorrect, absurd and OP1 has repudiated the claim arbitrarily. Hence, this case.
OPs 1 and 2 have contested the case in filing written version contending, inter alia, that the complaint is not maintainable either, in fact, or in law. It is submitted in w/v that on 26-08-2015 the complainant had lodged the claim to the insurance company stating that on 24-08-2015 a small stone fell from the bridge construction site of Park Circus fly over while his car was parked near his residence and as a result of which the car is damaged and upon receipt of the claim intimation this OP appointed an IRDA Licensed Surveyor for inspecting the vehicle and assessment of loss and the statutory surveyor u/s.64 UN of Insurance Act covered a detailed report stating that the liability of the OP is restricted to the external impact damages only and therefore, the claim of the complainant is not payable under the terms issued, as damage caused to the vehicle was not due to any accidental external means, Therefore, the claim in respect of damages is not admissible as the damage is not result of accidental external impact. These OPs have prayed for dismissal of the case.
OP3 surveyor has also filed a written version contenting, inter alia, that the instant complaint is not maintainable either in law or in fact. It is alleged by the OP that the claim in respect of the damages as claimed by the complainant is not admissible as the damage was not the result of any accidental external impact. He has also opined that the damage found non-consistent with the cause of the damages described in the claim form nor it is covered u/s.1 of the Perils of the Insurance Policy.
Points for Decision
- Whether the OPs were justified in repudiating the claim of the complainant?
- Whether the complainant is entitled to get the claim as advanced to the OPs?
Decision with Reasons
It is worthy to point out at the outset that the motor insurance policy bearing no.0155468126 valid with effect from 19-08-2015 to 18-08-2015 is not disputed in this case. It is the case of the complainant that on 26-08-2015 the complainant had alleged a claim to the insurance company stating that on 24-08-2015 a small stone fell into the front wind shield from bridge construction site nearby his premises while his car was standing within his premises and as a result of which his car got damaged and upon receipt of claim intimation OPs1 and 2 appointed an IRDA Surveyor for assessing loss and the statutory surveyor gave a report that the liability of the OP is restricted to the external impact damages only and the damage caused to the vehicle was not due to any accidental external means. The Surveyor also gave an opinion that damage found not consistent with the cause of damage described in the claim form, nor it is covered u/s.1 of the Perils of the Insurance Policy. The Insurance Company, as such, repudiated the claim.
We have perused the documents on record, survey report and other materials thereon. It appears that the damage to the wind shield was due to fall of stone pebble. It is not the case of OPs that the damage was caused by the complainant himself or the car imbibed such damage automatically while the car was stationary at premises of the complainant. It appears that the accident was caused by external means or outer force. The damage was caused by external object. The repairing workshop also reported vide an e-mail dated 12-09-2015 that there was an impact on the glass which is visible and can be caused by falling of something on the set. We have also perused the photographs of the damaged wind shield glass. OP3 observed that no external impact was found. We are afraid that OP3 has not explained or made any comment as to how the damage could have happened other than any accidental external impact, that is, in the instant case, fall of a stone pebble from some considerable height. We find that the report of the surveyor is contrary to the report of the repairing workshop. OP3 has also stated in his report that damage to the wind shield glass is not consistent with the case of damage mentioned in the claim form but we are afraid it is not mentioned by the surveyor as to what basis he came to such finding. He has not also explained in his report that the nature of damage persistent on the wind shield glass of the car. When the insurer and the surveyor was of view that the damage is not due to external impact, the onus is on them to prove the same with materials evidence otherwise it appears that the damage to the wind shield is due to the impact with some outer force or object and obviously it comes within the Section 1 of the Perils of Insurance Policy. We hold that the damage was caused by accidental external means. It also appears that the complainant parked his car within his premises and not on the road exposing to the risk of damage but the damage occurred without any premonition and it was unforeseen. We think that the damage was unforeseen and accidental in nature. In view of the aforesaid discussion we think that the repudiation of the claim is wrongful and mala fide.
Hence,
Ordered
The instant case be and the same is allowed on contest against OPs 1 and 2 and ex parte against OP3.
OPs 1 and 2 are directed jointly and severally to meet the claim by paying the repairing cost of Rs.1,03,033/- with 20 percent deduction thereon on non-standard basis for depreciation charge, costs of parts etc., with interest at the rate of9 percentp.a. apart from litigation cost of Rs.15,000/- within one month from the date of filing of this case.
OPs are further directed to pay an amount of Rs.20,000/- for harassment, mental agony and pain within the stipulated time, i.d., the complainant will be at liberty to put this order into execution and in that event the OPs are liable to pay penalty at the rate ofRs.100 per diem to be paid to this Forum.
