Haryana

Ambala

CC/71/2010

RISHABH - Complainant(s)

Versus

THE ICICI LOMBARD . - Opp.Party(s)

RISHI GUPTA

28 Jan 2016

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMBALA.

Complaint Case No.: 71 of 2010

Date of Institution:    09.03.2010

Date of Decision  :     28.01.2016

M/s Rishabh Cargo, opposite PWD Rest House, Rai Market, Ambala Cantt, through Shri Rishabh Mittal Partner.

                                                                                                ……Complainant.

Versus

1.         The ICICI Lombard General Insurance Co. Ltd. through its Managing Director, Regd. Office ICICI Bank Towers, Bandra Kurla Complex, Mumbai-400051.

2.         The ICICI Lombard General Insurance Co. Ltd. through its Branch Manager, Tirloki Chamber, Opposite Municipal Council Ambala Sadar/Ambala Cantt.

3.         The ICICI Lombard General Insurance Co. Ltd. through its Branch Manager, SCO-253, 3^rd Floor Sector-12, Karnal.

…..Opposite Party.

Complaint Under Section 12 of the Consumer Protection Act

CORAM:        SH. A.K. SARDANA, PRESIDENT.

                        SH. PUSHPENDER KUMAR, MEMBER.                                   

Present:          Sh. Rishi Gupta, Adv. counsel for complainant.

                        Sh. Rajesh Kumar, Adv. counsel for Ops.

ORDER:

1.                     Brief facts of the present complaint are that the complainant firm is a registered partnership firm and Shri Rishabh Mittal is one of its registered  partner and has been authorized to file the present complaint. The complainant purchased a Toyota Corolla Car from Globe Toyota, Karnal on 20.11.2004 bearing registration No.HR01-R/0870 and  the  last service of the car was got effected by the complainant at 85000 KM at JCBL Auto Pvt. Ltd., Karnal.  The said car of complainant firm was fully insured with OP insurance Company vide comprehensive policy bearing No.3001/52840258/01/000 effective during  the period 20.11.2008 to 19.11.2009 but the engine of the car seized on 13.09.2009 due to  heavy water on the road accumulated owing to heavy rains from 10.09.2009 to 12.09.2009 and thus the car was touchaned  and sent to  nearest dealer at Karnal from village Manka Manki, Thana Chappar, District Yamunanagar on 14.09.2009 which was delivered to the complainant after extensive repairs on 28.12.2009. So, the complainant lodged a claim with the Ops but the Ops rejected the claim of complainant vide letter dated 18.12.2009 without any plausible reason and the complainant has suffered huge losses of Rs.1,93,093/-. Although the Agency had given an estimate at the time of issuance of job card to the tune of Rs.3,31,658/- but charged Rs.1,93,093/- from the complainant as the complainant had sent another car also for service etc. to Toyota Globe Toyota Automobile Pvt.Ltd.Karnal.   The rejection of claim of car by Ops without assigning any reason is nothing but a glaring example of deficiency in service as well as an act of adopting malpractice for securing insurance business from the  people. So, a registered legal notice dated 15.01.2010 was served upon the Ops but of no avail. Hence, the present complaint has been preferred by the complainant seeking relief as per prayer clause.  

2.                     Upon notice, Ops appeared through counsel and filed written statement raising preliminary objections qua non-maintainability of complaint as the vehicle was being used for business & commercial purpose besides concealment of facts etc.   It has been urged that the complainant has suffered the alleged loss, if any, due to his own gross negligence and as such, the Ops are not liable for any such claim.  The car in question was insured with the Ops under private car package policy and the period of insurance was from 20.11.2008 to 19.11.2009. On submission of claim, Sh. Gaurav Sood was appointed as surveyor who submitted his report mentioning that  the engine was seized due to the sole negligence of complainant. A person when driving the vehicle in water is expected to stop the vehicle when the water has been introduced in the vehicle. In this case, the complainant have taken the vehicle as per their own submission in the water and water introduced in the engine but instead of stopping the engine, the complainant continued to run the engine and this way the vehicle got hydrostatic lock and in case of hydrostatic lock, the repair or replacement of engine part is not covered under the motor comprehensive  insurance policy and it is considered as consequential loss which is not payable. The loss assessment amount of the said vehicle was Rs.9062/- which is as per the rules and regulations and complainant was intimated vide letter dated 18.12.2009. On merits, it has been submitted that insurance policy does not cover the consequential loss and as such the Ops are not liable to pay any amount.  However, the loss caused by the flood is covered, if any, then also it is supposed that the items covered under the insurance policy are taken  of proper care and after taking the proper care the loss has occurred but the policy does not  cover  the loss which has occurred due to the negligence on the part  of the complainant.  It has been further urged by the OP that is it not the case of the complainant that the vehicle was standing and the flood came instantly but on the contrary, case of the claimant is that heavy water was logged on the road and he had taken  the vehicle in the water knowingly  and damage to the engine caused. So, the claim of the complainant was rejected. Hence, a prayer for dismissal of the complaint has been made on the premise that there is no any deficiency in service on their part.   

3.                     In evidence, complainant tendered  his affidavit as Annexure CX alongwith documents as Annexures C-1 to C-21 and closed the evidence whereas on the other hand, the counsel for OP has tendered in evidence affidavit of Sh.Gurpreet Bhullar, Manager Legal  of OP company as Annexure RX alongwith documents as Annexures R-1 & R-2 and closed the evidence on behalf of OPs.

4.                     We have heard the learned counsel for the parties and gone through the record very carefully. Counsel for complainant argued that the objection raised byOP qua non-maintainability of complaint as the vehicle was being used for the business & commercial purpose by the complainant  is not sustainable  since the insurance  policy was purchased by complainant for indemnification of loss caused to the car and not for earning any profit. Further to strengthen his case, counsel for complainant has relied upon case laws rendered by Hon’ble National Commission  titled as Harsolia Motors  Vs. National Insurance Co. Ltd. reported in 2005(1)CLT Pg. 97 and Chander Prakash Vs. ICICI Lombard General Insurance Co. Ltd reported in CPJ 2012 –III Pg. 444 wherein it has been held that consumer Protection Act, 1986, Section 2(1)(d)- commercial purpose-insurance policy-whether insurance policy taken by commercial units could be held to be hiring of service for commercial purpose and thereby excluded from the purview of the Consumer Protection Act? Question  answered in negative –held that a person who takes insurance policy to cover the envisaged  risk does not take  the policy for commercial purpose, policy is only for indemnification the actual loss-it is not to generate profit.

5.                     After going through the above referred case laws rendered by Hon’ble National Commission  titled as Harsolia Motors etc. Vs. National Insurance Co. Ltd. reported in 2005(1)CLT Pg. 97 and Chander Prakash Vs. ICICI Lombard General Insurance Co. Ltd reported in CPJ 2012 –III Pg. 444(supra), we are  of the confirmed view that the activity of the complainant firm may be commercial but the insurance policy taken by complainant firm qua the car in question is not for commercial purpose rather the policy is for indemnification  of  loss, if any, caused to the vehicle, as such, the objection raised by the OP is not sustainable and  complaint is squarely covered under the provisions of Consumer Protection, Act and complainant is held to be a consumer in the present case.

6.                     The next question arises for consideration before the Forum is whether the report of the surveyor deserves to be appreciated as per terms & conditions of Insurance Policy?        

                        In the present case, after the incident of flood, the complainant submitted his claim with Ops-insurance company and the insurance company  appointed Sh. Gaurav Sood as Surveyor and after his thorough examination, the Surveyor  submitted his final report  observing that  engine of the vehicle was seized due to   the sole negligence of complainant urging that  a person when driving the vehicle in water is expected to stop the vehicle when  the water has been introduced in the vehicle and  instead of stopping  the engine, complainant continued to run the same, in this way, the vehicle  was got hydrostatic lock  and in this situation, the repair or replacement of engine part is not covered under the motor comprehensive insurance policy and it is considered as consequential loss and after inspection of the vehicle,  only initial damages that were due to entering of water in the engine  are allowed (initial loss) but the later damages that occurred due to negligence of the insured are disallowed. Thus final assessed loss to the said vehicle is to tune of Rs.9062/-.  To rebut the aforesaid contention of surveyor appointed by Ops, counsel for complainant placed reliance on case law rendered by Hon’ble National Consumer Disputes  Redressal Commission, New Delhi in Revision Petition No.4504 of 2014  titled as Bharti Axa General Insurance Co. Ltd. Vs. Chander Mohan Goyal decided on 05.01.2015 (Annexure C-17) wherein  it has been held that “any damage on account of hydro-static lock would be covered under the  clauses of insurance policy unless expressly excluded” and case law reported in 2009 (7) SCC Page 787 (SC) titled as New India Insurance Co. Ltd. Vs. Pardeep Kumar wherein Hon’ble Supreme Court has held that “Surveyor’s report-Although the assessment of loss by the approved surveyor is a pre-requisite for payment or settlement of claim of twenty thousands rupees or more by insurer, but surveyor’s report is not the last and final word- It is not sacrosanct   that  it cannot be departed from; it is not conclusive-Approved surveyor’s report may be basis or foundation for settlement of a claim by the insurer in respect of the loss suffered by the insured but surely such report is neither binding upon the insurer nor insured.” In this way, complainant’s counsel controverted  the contention of Ops.

7.                     At the very outset, we are of the considered view that the observation put-forth by the surveyor  in disallowing the claim of complainant does not appears to be genuine because on the one hand he is allowing the damages that were due to entering of the water in the engine whereas on the other hand, disallowing the damages which occurred later on alleging to be occurred due to starting of vehicle again & again by the insured in the water resulting into hydrostatic lock of the engine.  We have perused the policy (Annexure C-6 & C-7) issued by OP company to the complainant firm regarding the vehicle in question wherein it has  nowhere been mentioned that the loss occurred due to hydrostatic lock of engine is not covered rather it covers all basic own damages. In the absence of such an exclusion, the insurance  company cannot escape from the liability to reimburse the costs of repair of the vehicle in question on account of damage by heavy rains and flooding irrespective  of  the fact whether the said loss occurred due to hydrostatic lock or for some other reason.  Further, in para No.8 of the reply, OP has admitted that the loss caused by the flood is duly covered in the policy.  In these  circumstances, we have no option except to discard the Surveyor report being  unreasoned & unjustified  after appreciating the case laws (supra) submitted by complainant since the facts of above-referred case laws are fully applicable to the facts of the present case.  As such, present complaint is allowed and Ops are directed to comply with the following directions within thirty days from the communication of this order:-

(a)       To release the insurance claim amounting to Rs.1,93,093/- (one lac Ninety Three Thousand  and Ninety Three only) to the complainant alongwith simple interest @ 9% per annum from the date of institution of complaint to till its realization.

(b)       Also To pay Rs.10,000/- as litigation charges including advocate’s fee.

                   Further the award in question/directions issued above must be complied with by the OPs  within the stipulated period failing which all the awarded amounts  shall further attract simple interest @ 12% per annum for the period of default. So, the complaint is decided in above terms. Copies of this order be sent to the parties concerned, free of costs. File be consigned to the record room after due compliance. 

 Announced: 28.01.2016                                                    Sd/-

                                                                                 (A.K. SARDANA)

                                                                                    PRESIDENT

 

                                                                                    Sd/                                                                                                                                                                                                             (PUSHPENDER KUMAR)

                                                                               MEMBER