DATE OF FILING : 24.8.2015

IN THE CONSUMER DISPUTES  REDRESSAL FORUM, IDUKKI

Dated this the  29th  day of  June,  2017

Present :

SRI. S. GOPAKUMAR PRESIDENT

SRI. BENNY. K. MEMBER

CC NO.252/2015

Between

Complainant       :    Rani Paul, W/o. Shajimon P. Lukose,

Panickaparambil House,

  Karimannoor, Thodupuzha,

Idukki.

Represented by her husband

Shajimon P. Lukose.

(By Adv:  K.M. Sanu)

And

Opposite Parties                                        :   1. The Branch Manager,

    New India Assurance Co. Ltd.,

    Puthiyakunnel Buildings,

    Kanjiramattam Bypass Road,

    Thodupuzha, Idukki.

    (By Adv:  Thomas Sebastian)

2.  The Managing Partner,

     Kerala Cars Pvt. Ltd.,

     508-A, Ellikkattu Building,

     Edappally, Kochi – 622 024.

3.  The Manager,

     Kairali Ford,

     Kadathi, Muvattupuzha,

     Ernakulam.

     (Both by Advs:  Rahul Sasi & 

Anu Vijayan)

 

O R D E R

 

SRI. S. GOPAKUMAR, PRESIDENT

 

The case of the complainant is that,

 

Complainant insured her Ford Fiesta car bearing Reg. No.KL-38B-9333 with 1st opposite party insurance company for the period from 25.4.2014  to 24.4.2015.  On 7.4.2015, while the complainant along with her husband passing through a water accumulated road,  an  ongoing  vehicle  unexpectedly  stopped 

    (cont....2)

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and the insured vehicle hit against the back side of that vehicle and the engine of the complainant's car stopped causing damage.  The complainant submitted a claim form with necessary documents to the opposite party.  On receipt of claim form, 1st opposite party deputed a licensed surveyor Mr. Benny C. Ouseph to assess the damages to the vehicle.  On examination, the surveyor found that engine of the car was damaged due to hydrostatic lock.    As per the direction of the surveyor, 3rd opposite party started repairing works and the matter was intimated to the complainant by 3rd opposite party.  Complainant further added that this vehicle is insured with 1st opposite party as per the direction of 2nd opposite party.  Moreover the complainant happened to take bumper to bumper policy by spending an amount of Rs.4000/- additionally, only due to the direction of the 2nd opposite party for full insurance coverage of vehicle and passengers.  Eventhough the 3rd opposite party received consent from the surveyor for repairing the vehicle, they delayed it unreasonably and this caused mental agony and hardships to the complainant.

 

Since the vehicle is having full coverage policy, the 1st opposite party denied the coverage on lame excuses and at the  same time  3rd opposite party repeatedly demanded for full payment of workshop bill.  At  last the 3rd opposite party threatened the complainant for payment of workshop bill.  So the complainant approached 1st opposite party for sanctioning the insurance claim.  At that time, 1st opposite party directed her to approach the Divisional Office.  Hence on 29.6.2015, complainant submitted a detailed representation to the Divisional Manager of 1st opposite party and in reply to it, the Divisional Manager enquired about the reasons stated of the damages to the vehicle.  Thereafter the complainant came to know that, the 1st opposite party company sanctioned an amount of Rs.25,862/- and paid it to the 3rd opposite party.  Complainant further submitted that as per the final bill dated 9.4.2015, 3rd opposite party directed the complainant to pay an amount of Rs.1,40,211/- as repair charges.  On the basis of the report submitted by the authorised surveyor of 1st opposite party, 3rd opposite party repaired the vehicle.  But the 1st opposite party company decided to honour only a meagre amount as  insurance claim without valid reasons.  1st opposite party denied the further claim on the reason that due to negligence of the driver of the vehicle, water entered into the engine and caused severe engine damages, technically it is called as 'hydrostatic lock' and it is excluded as consequential loss.  Since the vehicle is having no depreciation, bumper to bumper policy, 1st opposite party is bound to compensate the damages occurred to the vehicle, without raising any excuse, moreover the 2nd opposite party is also liable to compensate the complainant because the complainant happened to take the policy only due to the pressure of 

(cont....3)

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the 2nd opposite party.  Moreover, 3rd opposite party is also liable to compensate the complainant, since 3rd opposite party created an exaggerated bill and tried to extract money from the complainant forcefully and caused much delay in sending the bill to the 1st opposite party insurance company.  The above said acts of opposite parties 1 to 3 are deficiency in service and unfair trade practice.  Hence the complainant filed this petition for getting relief such as to direct the 1st opposite party to pay an amount of Rs.1,14,000/- as the balance amount with 12% interest and also direct the 3rd opposite party to pay an amount of Rs.25,000/- as compensation and to other consequential reliefs.

 

Upon notice, opposite parties entered appearance and filed detailed version separately denying all the averements in the complaint.   

In the version, 1st opposite party admitted the policy and its validity and further contended that, as per the policy, the company is liable to indemnify the insured against the damage to vehicle subject to exclusions in terms and conditions of the policy.  On examination the surveyor found that engine was damaged due to hydrostatic lock.  As per the opinion of licensed surveyor, the body damage occurred due to collusion is payable but loss to engine due to hydrostatic lock is not payable as per policy conditions.  Therefore separately assessed the loss of the body of the vehicle due to the accident and loss to the engine due to hydrostatic lock.  He assessed an amount of Rs.11600/- is payable to body damage.  He also assessed that Rs.90000/- is required to repair the damage to engine due to hydrostatic.  Since the surveyor recommended the insurance company to determine the claim in respect of the loss of engine, 1st opposite party deputed another surveyor Mr. Biju Cyriac, for second opinion regarding the claim.  After verification, the second surveyor observed that the sudden stopping of the engine of the vehicle in water logged area do not affect any damage to the engine of the vehicle.  If water is entered into the engine, cleaning of air filter and checking of water entry into the engine, oil pump, etc. has to be done and to cleared before starting the engine.  The engine of the vehicle damaged due to hydrostatic lock.  So the surveyor came into a conclusion that damage incurred to the engine is a consequential loss occurred due to the negligence of the driver of insured vehicle.  It is also observed by the surveyor that the driver drove the vehicle through heavy water accumulated road without taking proper care.  1st opposite party further added that, as per clause (a) of section 1 and clause 4(a) of General Exceptions of the policy, the company shall not be liable to make any payment in respect of consequential loss, depreciation, wear and tear mechanical or electrical break down failure of breakage.  The surveyor recommended that the  cost of cleaning the engine 

(cont....4)

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assembly along with cost of necessary part like oil seals, gasket kit etc is admissible.  So he assessed an amount of Rs.24362/- is payable towards  repairing the damaged body of the vehicle and cost of cleaning the engine assembly due to entry of water,.  Therefore 1st opposite party settled the claim on the basis of the  reports of surveyor for Rs,25862/- and paid the same to the  3rd opposite party on 29.7.2015.  Therefore there is no deficiency in service and the opposite party is not liable to pay any amount to the complainant as alleged.

 

                In the written version, 2nd and 3rd opposite parties contended that, they are admitting the accidental repairs narrated by the complainant.  The 3rd opposite party at the instance of the complaint, intimated the same to the 1st opposite party,.  Further contended that 2nd opposite party never advised the complainant to insure the vehicle to a particular insurance company,.  Moreover, the 3rd opposite party had honoured all the necessary steps and intimated the repair  needed and had sought approval of the same from the complainant at every stage.    Meanwhile, the insurance surveyor after inspection of the vehicle found that the piston was stuck and the same happened due to the negligence of the complainant who tried to start the engine when the same was partly submerged in water.  Further contended that  the 3rd opposite party after completion of approved work had contacted the complainant and informed that the vehicle was ready for delivery.  However, after repeated phone calls, the complainant failed to take delivery of the same.  Hence no deficiency in service as alleged from the said of this opposite party.

 

                Complainant’s power of attorney was examined as PW1 and Exts.P1 to P11 marked.   Ext,P1 is power of attorney.  Ext.P2 is survey report of Bessy C. Ouseph.  Ext.P3 is the survey report of Biju Cyriac.  Ext.P4 is copy of letter dated 29.6.2015 alongwith the postal receipt.  Ext.P5 is the copy of letter dated 3.8.205 along with postal receipt.  Ext.P6 is copy of letter dated 7.8.2015 along with postal receipt.  Ext.P7 is the tax invoice dated 29.4.2015.  Ext.P8 is the letter dated 13.8.2015 from the 1st opposite party.  Ext.P9 is the receipt dated 17.3.2016 and 19.3.2016 issued by 3rd opposite party.  Ext.P10 is the copy of policy certificate.  Ext.P11 is the tax invoice dated 29.4.2015.  From the defence side, Divisional manager of 1st opposite party, Bessy C. Ouseph and Biju Cyriac were examined as DWs1 to 3 respectively and Exts.R1 to R9 marked.  Ext.R1 is the policy certificate along with terms and conditions.  Ext.R2 is copy 

(cont....5)

-  5  -

of surveyor report dated 29.6.2015.  Ext.R3 is copy of survey report dated 30.5.2016.  Ext.4 is motor accident claim intimation dated 9.4.2015.  Ext.R5 is motor claim form dated 9.4.2015.  Ext.R6 is letter of intimation dated 13.8.2015.  Ext.R7 is estimation details of 3rd opposite party dated 9.4.2015.  Ext.R8 is estimate details dated 23.5.2015.  Ext.R9 is re-inspection report.

                Heard both sides.

                The point for consideration is whether there is any deficiency in service from the part of opposite parties and if so, for what relief the complainant is entitled to ?

 

                The POINT :-  The learned counsel for the complainant vehemently argued that the complainant, drove of the vehicle with due care and caution.  While the vehicle was passing through a water accumulated road, an ongoing vehicle unexpectedly stopped and his vehicle hit against the rear portion of the vehicle and the engine of alleged vehicle was stopped causing damages.  Since the place of occurrence is a water accumulated area, the complainant pushed away his car from the water.  Because the complainant is well aware of the defects which will caused the engine of the car, when try to start the engine in the water.  Hence the damage to the vehicle is caused due to some other facts.  Since the policy is a nil depreciation policy, 1st opposite party is liable to compensate the damage as whole.  Moreover, eventhough two surveyors are appointed, no body visited the place of occurrence or inspected the vehicle.  They prepared the survey report based on the information received from opposite parties 2 and 3.  

 

                On the other hand, the learned counsel for the opposite parties pointed out that the allegations leveled against them by the complainant is not true and made on assumed facts so as to made undue gain from the Forum.  The complainant is well aware of the exclusion clauses of the policy and the hydrostatic lock and resultant damages cannot be covered under this policy, as it is specifically stated in clause (a) of section 1 and clause 4(a) of General Exceptions.  Further stated that both the surveyors are expert loss assessors and IRDA licence holders.  Learned counsels further submitted that as per the recommendation of the surveyor, the 1st opposite party settled the claim by paying an amount of Rs.25,862/- towards damages to the vehicle and the cost of cleaning the engine assembly.  Hence the 1st opposite party is no way liable to pay any amount additionally. (cont....6)

-  6  -

                We have heard the learned counsels for the complainant as well as the counsels for the opposite party and had gone through the records and depositions.

                It is submitted by the learned counsel for the complainant that the surveyors appointed by the opposite party was not done any proper enquiry in this matter and not visited the place of occurrence and not visited the work shop, where the alleged vehicle was kept and not done any vehicle inspection.  Only on the basis of some oral information, they prepared the Exts.R2 and R3 Motor Survey  Report.  At this juncture, it is very pertinent to go through the deposition of DW2  Bessy C. Ouseph and DW3 Biju Cyriac, the licensed surveyors.  On cross examination, DW2, Bessy C. Ouseph deposed that, he has not issued any notice to the complainant regarding the inspection of the vehicle and also had not conducted any spot survey.  He added that, he inspected the vehicle in its dismantled condition, but not specifically stated it in the report.  In the cross examination DW3 deposed that, he has not seen the vehicle directly and not inspected it.  as per the direction of the company, he assessed the damages.  He added that, he can ascertain the damage with the help of the photographs of the vehicle.  By perusing Exts.R2 and R3 prepared by DW2 and DW3 respectively, we can see that in Ext.R2, cause and nature of the accident is reported as “It was reportedly known that, while proceding through a heavily water accumulated road, the preceding vehicle suddenly stalled, then the insured vehicle hit the back side of that vehicle ahead and in the meanwhile water sucked into the engine of the insured vehicle and stalled due to hydrostatic lock causing damage.”  This is reported in the Exgt.R3 report also.  In Ext.R2 report remark column, DW2 specifically stated that “the driver entered the insured vehicle into a heavily water accumulated road without taking proper care and caution, hence the engine sucked water into it and caused engine damage.  However the undersigned here assess the damages separately below.  The admissibility of engine loss is subject to the discretion of the insurer as per the policy condition.”  At this juncture it is to be noted that, the DW2 himself admitted that, he has not done any spot visit.  Moreover, the date of survey is 10.4.2015, that is after three days of the accident.  Hence without having a spot visit, he cannot say that the place of occurrence is a highly water accumulated area and the damages caused due to the careless driving.  At the same time, as per Ext.R2, the surveyor has not repoted that the persons who drove the car attempted to start it when the vehicle was in a water logged area, as alleged in the written version of opposite parties 1 and 2.  On going through Ext.R3, report submitted by the licensed surveyor, we can see that this report is prepared only on the   basis of Ext.R2 report, without  having 

(cont....7)

-  7  -

any independent study and hence it is not reliable.  Then regarding the exclusion clause of policy condition No.4, it is an admitted fact that the insured is not aware of the terms and conditions, since no insurance company provides their terms and conditions  alongwith the  policy certificate to their policy holders.  Here the same thing is happened. No copy of terms and conditions of the policy is served to the insured along with the policy certificate.  This clause is not stated in the policy certificate also. 

                On the basis of the above discussion, the Forum is of a considered view that the rejection of the insurance claim in this matter is not justifiable and the complainant is legally entitled to get the claim of damages caused to the engine of the vehicle also.  The damages caused to the engine of the vehicle is separately assessed in Ext.R2 report and the opposite party is liable to honour this claim also.

 

                Hence the complaint allowed.  The Forum finds deficiency in service against 1st opposite party in rejecting the claim of the complainant regarding the damages caused to the engine of the vehicle in question.  As a result, the Forum directs the 1st opposite party to pay an amount of Rs.90,000/- being the damages caused to the engine of the vehicle as assessed by the DW2 in Ext.R3 survey report within 30 days from the date of receipt of a copy of this order, failing which the amount shall carry 12% interest per annum from the date of default, till its realization.  No cost or compensation is ordered.

 

                      Pronounced in the Open Forum on this the 29th day of June, 2017

  

          Sd/-

    SRI. S. GOPAKUMAR, PRESIDENT

Sd/-

SRI. BENNY. K., MEMBER

 

 

 

 

 

 

 

 

  (cont...8)

-  8  -

 

APPENDIX

Depositions :

On the side of the Complainant :

PW1              -  Shajimon P. Lukose.

On the side of the Opposite Party :

DW1              -  Suresh C.R.

DW2              -  Bessy C. Ouseph 

DW3              -   Biju Cyriac

Exhibits :

On the side of the Complainant :

Ext.P1       -  power of attorney.  

Ext.P2      -  survey report of Bessy C. Ouseph.  

Ext.P3      - survey report of Biju Cyriac.  

Ext.P4     - copy of letter dated 29.6.2015 alongwith the postal receipt.  

Ext.P5      - copy of letter dated 3.8.205 along with postal receipt.  

Ext.P6      -  copy of letter dated 7.8.2015 along with postal receipt.  

Ext.P7      - tax invoice dated 29.4.2015.  

Ext.P8     - letter dated 13.8.2015 from the 1st opposite party.  

Ext.P9      - receipt dated 17.3.2016 and 19.3.2016 issued by 3rd opposite party.  

Ext.P10    -  copy of policy certificate.  

Ext.P11    - tax invoice dated 29.4.2015.

On the side of the Opposite Party :

Ext.R1       -  policy certificate along with terms and conditions.

Ext.R2       -  copy of of surveyor report dated 29.6.2015.  

Ext.R3      - copy of survey report dated 30.5.2016.  

Ext.4         -  motor accident claim intimation dated 9.4.2015.  

Ext.R5      - motor claim form dated 9.4.2015.  

Ext.R6      -  letter of intimation dated 13.8.2015.  

Ext.R7      - estimation details of 3rd opposite party dated 9.4.2015.  

Ext.R8      - estimate details dated 23.5.2015.  

Ext.R9      - re-inspection report.

 

 

          Forwarded by Order,

 

 

 

              SENIOR SUPERINTENDENT