Complaint filed on: 18.02.2015

Disposed on: 12.06.2019

BEFORE THE IV ADDL DISTRICT

CONSUMER DISPUTES REDRESSAL FORUM, BENGALURU

1^ST FLOOR, BMTC, B-BLOCK, TTMC BUILDING, K.H.ROAD, SHANTHINAGAR, BENGALURU – 560 027

CC.No.336/2015

DATED THIS THE 12^th JUNE OF 2019

PRESENT

SMT.PRATHIBHA. R.K., BAL, LLM, PRESIDENT

SMT.N.R.ROOPA, B.A., LLB, MEMBER

Complainant/s: -                           

Sri.Raghavendra Swamy

S/o G.C.Narasaiah,

Age 54 Years,

R/at No.72, Flat No.F1,

1^st Floor, 3^rd Main, 4^th Cross,

Sri Basaveshwaranagar,

HBCS Layout, Vijayanagar,

Bengaluru-40.

By Adv.Sri.T.A.Karumbhaiah

V/s

Opposite party/s:-    

1. The General Manager

Bajaj Allianz General

Insurance co., ltd.,

GE Plaza, Airport

Road, Yerawada,

Pune-411006.

2. The Manager

Bajaj Allianz General

Insurance co., ltd.,

Golden Heights, 4^th Floor,

No.1/2, 59 C Cross,

4^th M Block, Rajajinagar, Bengaluru-10.

By Adv.Sri.Manoj Kumar.M.R

ORDER

SMT.PRATHIBHA. R.K., PRESIDENT

            This complaint is filed by the Complainant against the Opposite party no.1 & 2 (herein after called as OPs), under section 12 of the Consumer Protection Act, 1986. The Complainant prays to direct the OPs to pay entire repair charges of Rs.5 lakhs; to pay Rs.1 lakh towards damages for mental agony; to pay Rs.20,000/- per month as loss from 26.09.14 till the date of payment; to pay interest at 12% p.a. on the said amounts from 26.09.14 till the date of payment and to grant such other reliefs deem fit for which the Complainant is entitled to in the interest of justice and equity.

2. The brief facts of the complaint is as under:

The Complainant submits that, he is the RC owner of the Honda Civic 1.8 Motor car bearing registration No.KA-51 N-587. The said vehicle was insured with the OPs company vide policy No.HBA/00207589. The said policy was valid from 10.06.14 to 09.06.15. The Complainant further submits that, on 25.09.14 at about 10 p.m., he parked his vehicle near Sony World at Koramangala, Bengaluru. There was heavy rainfall at that time and due to blockage of rain water, the Complainant’s vehicle submerged. After the rain stopped, while Complainant was trying to take out his vehicle, the said vehicle did not start. On the very next day i.e. on 26.09.14, the Complainant was shifted his vehicle to Dakshin Honda Service Station i.e. OP’s service center. Service center of the OP tested the vehicle and noticed that, the rain water entered in to the engine. Service center estimated the repair cost for Rs.5 lakhs.

2a. The Complainant further submits that, the Complainant made the claim to OPs along with the documents. The OPs have repudiated the claim of the Complainant by sending a letter dtd.08.01.15. Hence, the Complainant issued legal notice dtd.20.01.15 calling upon the OPs to pay the claim amount. The notice was duly served on OPs, but the OPs have not met the claim of the Complainant. Hence, Complainant filed this complaint.

 3. The OP.1 & 2 appeared before this forum and filed objections. In the objection, the OPs submit that, the Complainant had insured the said vehicle with the OPs and the insurance policy bearing No.BHA/00207589 is valid from 10.06.14 to 09.06.15. The total insured declared value is Rs.4,30,195/-. Ops further submit that, the Complainant has submitted the claim form to OP.2 only on 29.09.14 and there is a delay of almost 4 days, the date of the accident was on 25.09.14. Hence, it is against the policy terms & conditions No.1. Ops further submit that, as per the Invoice No.597/26.10.14 of Madhu Towing Services, the insured vehicle was so alleged to be towed to the repairer’s garage on 26.10.14, whereas, as per the estimate of Elite Automobiles Pvt. ltd., the insured vehicle was shifted only on 30.09.14 at around 5.30 p.m. Hence, as stated above and also as stated by the Complainant at para 6 of the pleadings is contrary to the documents. Hence, the complaint is liable to be dismissed on the ground of misrepresentation of the facts.

3a. Ops further submit that, the Complainant submitted the claim form along with the estimate repair bill on 30.09.14 i.e. nearly 5 days delay after the occurrence of the incident. OPs have appointed an IRDA approved surveyor and he inspected the vehicle and issued survey report. On the basis of the said survey report, OPs have issued letters dtd.26.11.14 & dtd.12.12.14 to the Complainant requesting for the clarification. The Complainant has not responded to the said letters. Hence, OPs have repudiated the claim on 08.01.14. Ops further submit that, the liability of the company was restricted to claim amount of Rs.5,416/- excluding the damage caused to the engine. The damage caused to the engine was not due to inundation but the damage to the engine was due to rain water having entered in to the insured vehicle and engine got seized/crancked during flood, due to exerting pressure by trying to starting the vehicle again and again. Which exertion of pressure in trying to start the vehicle again and again had resulted in engine cylinders scored, connecting rods being bent, pump assembly oil and oil filter being damaged. The said damage caused to the engine is not covered under terms & conditions of the policy. As such, the claim of the Complainant for consequential damages was not payable as per condition No.4 of the policy, which reads as here under:

Condition: 4. The insured shall take all reasonable steps to safeguard the vehicle from loss or damage and to maintain it in efficient condition and the company shall have at all-time free and full access to examine the vehicle or any part thereof or any driver or employee of the insured. In the event of any accident or breakdown, the vehicle shall not be left unattended without proper precautions being taken to prevent further damage or loss and if the vehicle be driven before the necessary repairs are effected any extension of the damage or any further damage to the vehicle shall be entirely at the insured’s own risk.

3b. Ops further submit that, the company shall not be liable under the policy in respect of “any accidental loss or damage to any property whatsoever or any loss or expense whatsoever resulting or arising therefrom or any consequential loss.” On the above ground, the OPs have repudiated the claim. Hence, there is no deficiency in service on the part of OPs and hence, prays this forum to dismiss the complaint.

4. In the course of enquiry into the complaint, the Complainant and the OPs have filed their affidavit reproducing what they have stated in their respective complaint and objection. The Complainant has filed written arguments. Both parties have produced documents which were marked. We have heard the arguments of both sides and we have gone through the oral and documentary evidence of both parties scrupulously and posted the case for order.  

5. Based on the above materials, the following points arise for our consideration;  

1. Whether the Complainant has proved that there is deficiency in service on the part of the OPs, if so, whether he entitled for the relief sought for ?

2.  What order?

6. Our findings on the above points are as under:

Point No.1:  In the negative

Point No.2:  As per the order below

REASONS

7. Point No.1: On perusal of the pleadings, objection, evidence and documents of both the parties, it is an admitted fact that, the Complainant is the RC owner of the Honda Civic 1.8 Motor car bearing registration No.KA-51 N-587. The said vehicle was insured with the OPs company vide policy No.HBA/00207589. The said policy was valid from 10.06.14 to 09.06.15. The contention of the Complainant is that, the said vehicle was parked near Sony World at Koramangala, Bengaluru. Due to heavy rain fall and blockage of rain water, the vehicle was submerged. After the rain stops, the Complainant was trying to take out the vehicle. The said vehicle did not start, hence, he towed the said vehicle to the Dakshin Honda Service Station i.e., OP’s service center. Service center of the OPs noticed that the rain water entered in to the engine and they estimated the repair cost of Rs.5 lakhs. The OPs have not settled the claim of the Complainant and repudiated the claim on 08.01.15 on the ground that, the Complainant has failed to respond or fulfill the requirements sought through letters dtd.12.11.14, 26.11.14 and dtd.12.12.14, which reads as here under:

1. There is no external impact either to the vehicle or to the engine from outside.
2. Engine cannot be impacted merely coming in to contact with water and damage if any, can be attributed to either mechanical failure or trying to run the engine when it is still in contact with the water.
3. When vehicle stops on the water logged road, efforts to start the vehicle is the well-known souse to cause damages to engine.
4. The obvious course is known to be not to try to start the engine, without total cleaning the water from inside engine and inspection by an expert technician.
5. Therefore we wish to inform you that our liability is restricted to only Rs.5,416/- as recommended by surveyor (subject the submission of original bills)
6. Keeping in view the above facts please let us know if your good self have any objection to the above settlement with in seven days from the receipt of this letter.

8. Further the OPs submitted that, the damage caused to the engine was due to rain water having entered in to the engine and the engine got seized due to exerting pressure by trying to start the vehicle again and again. Which exertion of pressure in trying to start the vehicle again and again had resulted in engine cylinders scored, connecting rods being bent, pump assembly oil and oil filter being damaged. The said damages are consequential damages. As per condition no.4, the said damages are not payable. The said condition reads as hereunder:

Condition: 4. The insured shall take all reasonable steps to safeguard the vehicle from loss or damage and to maintain it in efficient condition and the company shall have at all-time free and full access to examine the vehicle or any part thereof or any driver or employee of the insured. In the event of any accident or breakdown, the vehicle shall not be left unattended without proper precautions being taken to prevent further damage or loss and if the vehicle be driven before the necessary repairs are effected any extension of the damage or any further damage to the vehicle shall be entirely at the insured’s own risk.

9. The Complainant admitted in his affidavit evidence and pleadings that “The vehicle was submerged due to blockage of rain water. After rain stops, the Complainant was trying to take out the vehicle. But the vehicle did not start.” On plain reading of the evidence, it clearly evident that, the Complainant is fully aware of the fact that the water had clogged in the engine. The only possible way was to tow the vehicle and not to start the vehicle while water had enter the engine. The Complainant in his case, tried to start the vehicle continuously. However, since the vehicle did not start, he repeatedly continued to start the vehicle. As a result of which the engine was seized. This act of the Complainant is an act of negligence. Hence, the Complainant committed negligence and therefore repudiation of the claim by OPs is correct and sustainable.

          10. Further, in normal course the engine could seize due to mechanical problem only. Admittedly no mechanical problem was evident in the vehicle. However, the vehicle was seized due to the fact that the Complainant tried to start the vehicle when it was clogged in water. Therefore on the reasons narrated above, there is no deficiency in service on the part of OPs for repudiating the claim of the Complainant. Accordingly, we answered the point no.1 in the negative.  

11. Point no.2: In the result, for the foregoing reasons, we proceed to pass the following order.

ORDER

The complaint filed by the Complainant is hereby dismissed. No Costs.

          Supply free copy of this order to both parties. 

(Dictated to the Stenographer, transcribed and typed by her, corrected and then pronounced by us in the Open Forum on this, the 12^th day of June 2019)

1. Witness examined on behalf of the complainant/s by way of affidavit:

Sri.Raghavendra Swamy, who being the Complainant was examined. 

Copies of Documents produced on behalf of Complainant/s:

1. Witness examined on behalf of the OP/s by way of affidavit:

Sri.Krishna Sheernalli, who being the Authorized Signatory of OP.2 was examined. 

Sri.Anand A Nadgouda, who being the IRDA approved licenced surveyor and also one of the surveyor in the panel of surveyor of OPs was examined. 

Copies of Documents produced on behalf of OP/s: