CONSUMER DISPUTES REDRESSAL FORUM, KOTTAYAM.

Present

Sri. Santhosh Kesavanath P. President

Smt. Bindhu M. Thomas, Member

                                             Sri. K.N. Radhakrishnan, Member

 

CC No 61/10

 

Saturday, the 3^rd day of September, 2011

 

Petitioner                                               : Praveen C.Joseph

                                                                Chempalayil House,

                                                                Poozhikol PO,

                                                                Kaduthuruthy, Kottayam.

                                                                (Adv. George Kurian)

 

                                                            Vs.

 

Opposite party                                        :   The Divisional Manager,

                                                                   Oriental Insurance Co.Ltd.,DO5

                                                                    Shan Complex, Door No.6/1032

                                                                    Bazar Road, Mattanchery, Kochi-682002.

                                                                    (Adv.Sajan A.Varghese)

           

 

 

            The complainant’s case is as follows:-

            The complainant is the owner of one ESCORTS JCB bearing No.KL-36/4951. It is being given for daily rent to the customers and he is looking after the entire day today affairs of this vehicle. This is the only source of income for livelihood. The said JCB is insured with the opposite party under miscellaneous class D vehicles package policy. Moreover the complainant has availed a special contingency Insurance Policy vide No.442300/48/2009/724 and remitted the premium of Rs.10,102/-. Covering all the mechanical problems of the vehicle. The said vehicle had a mechanical problem and got repaired at the CO’s recognized workshop on 29/4/09. The surveyor of the Insurance Company had been convinced of the mechanical problem of the vehicle and the complainant paid Rs. 69,297/- to the workshop in order to clear the bill. The complainant claimed the bill amount but the opposite party approved only Rs.11,800/- and this amount has not been accepted by the petitioner. The complainant alleged that as he is having the special contingency policy especially covering the mechanical problem, the opposite party is bound to pay the entire repairing bill. A lawyer’s notice was issued seeking explanation for the nonpayment of balance amount. But the opposite party has not responded to it. The complainant further alleged that the opposite party is deficient in their service and unfair in their acts and filed this complaint claiming the entire claim amount Rs.69,297/- and cost of the proceedings.

            The opposite party entered appearance and filed version with the following main contentions.

                        i) The complaint is not maintainable in law or on facts

            ii) The complainant had Motor Vehicle Policy bearing Policy No.442100/31/2009/1565 and the same was in force from 19/10/2008 to 18/10/2009. The complainant had another policy, an extended warranty policy bearing no.442100/48/2008/947 which was also valid when the claim was made.

iii) On 29-4-09 India Techs Ltd reported damage of hydraulic pump and rear casing (gear box) due to hitting of propeller occurred to the insured vehicle. A licensed surveyor conducted survey and observed that hydraulic pump and rear casing were damaged. It was also found by him that pinion and bolt of hinging portion of propeller shaft towards the gear box was broken. The surveyor gave a proximate cause that due to the breakage of pinion and bolt at the hinging portion developed sheer to the propeller shaft, which damaged the propeller shaft and UJ Kit which damaged the gear box casing and ultimately hydraulic pump. It is also reported that the propeller shaft, UJ joint kit and gear box case are connected and adjacent parts which acts as a single unit. The damages sustained to propeller shaft, UJ joint kit and gear box may be considered since its function is connected and act as a single unit.

iv) The surveyors report was considered and approved Rs.11,800/- and the discharge voucher was sent to the claimant but the complainant was not satisfied with the amount and filed this complaint. So there is no deficiency in service on the part of opposite party and the complainant is not entitled to challenge the correctness of the claim sanctioned by the opposite party

v) The hydraulic pump is a separate unit and the damage to the pump was not due to any manufacturing defect. The policies of the vehicle do not cover the damages sustained to the hydraulic pump.

            The claim of the complainant was processed by the opposite party within reasonable time and there is no shortcoming or deficiency in service on the party of opposite party. Hence the opposite party prayed to dismiss the complaint with costs to them.

i)                    Whether there is any deficiency in service or unfair trade practice on the part of opposite parties?

ii)                   Reliefs and costs?

Evidence consists of affidavits filed by both parties and Exts A1 to A5.

            Heard the counsel for both parties and perused the entire evidence placed on record. It is not in dispute that the complainant’s JCB is insured with the opposite party under class D vehicles package policy and that he has availed a special contingency Insurance Policy Vide No.44 2300/48/2009/724. It is also not in dispute that the alleged problem of the said JCB occurred during the subsistence of the aforesaid policies.

            The complainant submitted that the surveyor of the opposite party had been convinced of the mechanical problem of the vehicle and therefore a claim for Rs.69,297/- was made to the opposite party. The complainant further submitted that the opposite party approved only Rs.11,800/- and this amount has not been accepted by him. Whereas the opposite party submitted that they have considered the surveyors report and loss assessment and approved Rs.11,800/-, but as the complainant not being satisfied with the amount has not accepted it. According to the opposite party the damages to the hydraulic pump is not due any manufacturing defect and the policies of the vehicle do not cover the damages sustained to the said pump. The learned counsel for the opposite party submitted that as they have processed the claim there is no deficiency in service on their part.

            The opposite party in their counter averments quoted the observations of the surveyor as under

            “The hydraulic pump and rear casing were damaged. The pinion and bolt of hinging portion of propeller shaft towards the gear box casing was broken. The breakage of pinion and bolt at the hinging portion developed sheer to the propeller shaft, which damages the propeller shaft and UJ Kit, which damages the gear box casing and ultimately the hydraulic pump. The propeller shaft, UJ joint kit and gear box casing are connected and adjacent parts which act as a single unit. The damages sustained to propeller shaft, UJ joint kit and gear box may be considered since its function is connected and act as a single unit.”

            The learned counsel for the opposite party further submitted that if during the period of insurance the insured vehicle meet with breakdown or failure of a mechanical or electrical part for a reason arising out of manufacturing defect falling outside the purview of the manufacturer’s warranty period, the company shall indemnify the insured against the cost of labour parts directly incurred for the physical repaired and replacement of parts. The complainant produced original repairing quotation given by India Tech Ltd and it is marked as Ext.A2. As per Ext.A2 the total amount spent by the complainant is Rs.69,297/-. But the amount allowed by the opposite party is only Rs.11,800/-. According to the surveyor, the breakage of pinion and bolt at the hinging portion developed sheer to the propeller shaft, which damaged the propeller shaft and UJ kit which damaged the gear box casing and ultimately the hydraulic pump. From the aforementioned submission of the learned counsel of opposite parties, the amount offered Rs.11,800/- may be the price of the parts which had manufacturing defect. From the surveyor’s opinion, we feel that the damage caused to the hydraulic pump is the consequence of the manufacturing defect of other parts. As the manufacturing defect of other parts caused the alleged damage of the hydraulic pump, we feel that the opposite party has to approve the entire claim and process the claim accordingly. Point No.1 is found accordingly.

            In view of the findings in point no.1 the complaint is ordered as follows.

            As the damage of the hydraulic pump is caused due to the manufacturing defects of the other parts such as breakage of pinion and bolt at the hinging portion, propeller shaft, UJ joint kit

 

 

 

 

and gear box, the claim is to be processed considering this aspect also within one month of receipt of the order failing which the opposite party will be liable to pay the entire claim amount of Rs.69,297/- to the complainant.

            The complaint is disposed off with the aforementioned directions.

 

Smt. Bindhu M. Thomas, Member                    Sd/-

Sri. Santhosh Kesavanath P. President Sd/-

Sri. K.N. Radhakrishnan, Member                    Sd/-

 

Ext.A1-Copy of the policy schedule

Ext.A2-Duplicate bill of repairing issued by India Tech

Ext.A3-The repudiation letter

Ext.A4-Office copy of the lawyer’s notice

Ext.A5-Original certificate & terms and conditions of the policy

Nil

 

By Order,

 

Senior Superintendent.