D.o.F:14/8/2010
D.o.O:10/3/2011
IN THE CONSUMER DISPUTES REDRESSAL FORUM, KASARAGOD
CC 190/2009
Dated this, the 10th day of March 2011
PRESENT:
SRI.K.T.SIDHIQ : PRESIDENT
SMT.P.RAMADEVI : MEMBER
Abdul Haris.P.M
S/o Late Mohammed Haji,
Razeela Manzil, Po.Eriyal Kudlu,Kasaragod. : Complainant
(Adv.Benny Jose,Kasaragod)
1.The Manager,
Customer Service ICICI Lombard General Insurance Co.Ltd,
City Plaza YMCA, Cross Road,Calicut.
2. Authorised Signatory
ICICI Lombard Motor Insurance ,
Zenith House,Corporate Office,
Kashorao Khader Marg, Mahalaxmi, Mumbai 400034.
3.PVS Autumotive Co.Pvt.Ltd,
KTC Nagar,Meenchantha,Calicut.673018. : Opposite parties
(Adv.P.Iswara Bhat,Kasaragod)
4. Abdul Shameer, S.S.Com,
Ist floor, City centre,Bank Road,Kasaragod.
(Exparte)
5. Anoop,ICICI Lombard Executive,
City centre,Bank Road,Kasaragod.
( opS 1,2,5 Adv.Mammoo Taliparamba)
ORDER
SRI.K.T.SIDHIQ : PRESIDENT
Complainant is the RC owner of vehicle bearing Reg.No. KL 14/H333. It is duly insured with ICICI Lombard General Insurance Company. It met with an accident in Oct.2008 night and the front portion of the vehicle sustained damages. As per the instruction of the police the vehicle was taken to a near by Petrol Bunk at Payyanur. On the next day morning as advised by the representative of OP.3 the vehicle was taken to the garage of 3rd opposite party. The total amount for repair was ` 416900/- But opposite party did not honor the entire bills and paid only ` 70327/- stating that the vehicle is run without coolant and therefore the engine is seized because of the driving with coolant leaking. There was no noticeable coolant leaking. Therefore the complaint is claiming the balance ` 345673/- with compensation.
2. Notice to all opposite parties sent by registered post 4th opposite party remained absent. Inspite of receipt of notice. Hence 4th opposite party had to be set exparte. Opposite parties 1&2 filed version. No version filed by Ops 3&5.
According to Ops 1&2 the accident was happened on 20/10/2008. The investigator and the surveyors report revealed that in the above accident the radiator got damaged and its coolant became oozed out consequently engine got stuck up. The driver instead of towing the vehicle to a nearby workshop continued his journey towards Kozhikode and on the way at Vadakara engine got stuck up. The subsequent problem to engine occurred due to the sheer negligence of the driver and as such is not covered under the insurance policy. Hence complainant is not at all entitled for the consequential damages due to the stuck up of engine. In the owner’s manual it is specifically stated that the vehicle with coolant leaking should not be drawn and the complainant had violated this condition/ instruction mentioned in the owner’s manual. Therefore opposite parties have no other option but to repudiate the claim towards that head and gave the amount which is eligible to the complainant. Being the insurer opposite parties have discharged all the liabilities as per the terms and conditions shown in the policy. The complainant is not entitled to reopen the claim by raising unsustainable and imaginary grounds after settlement of the claim with the insurer. The assessment of ` 70327/- was made after a thorough inspection by the surveyor. It is not a part payment and hence complainant is not entitled for any further relief claimed in the complaint.
3. Complainant filed proof affidavit and Exts.A1 to A4 marked. On the side of opposite parties DW1 filed affidavit. Exts.B1 to B3 marked. Both sides heard and documents perused.
4. The issues to be settled in this case are:
1. Whether the complainant is entitled to get indemnified by opposite parties for all the loss sustained to the vehicle?
2. Whether opposite parties committed any deficiency in their service?
3. If so what order as to compensation and costs?
For the sake of brevity all issues are considered together?
5. The facts of the case are not in dispute. The learned counsel for the complainant Sri.Benny Jose argued that there is no rule that the driver should study the owners manual before plying the vehicle and therefore no negligence can be attributed on the part of the driver who took the vehicle from the spot of accident to the authorized repairer by driving the vehicle.
6. According to learned counsel for opposite parties Sri. Mammu the opposite parties are bound to indemnify the loss arising out of the accident and not for the losses sustained. The opposite parties have undertaken to indemnify the loss subject to the terms and conditions of the policy and the complainant can not travel beyond the policy. He submitted that the surveyor also reported that due to the accident the radiator got damaged and its coolant became oozed out and consequently engine got stuck up. After the accident instead of towing the vehicle to a nearby workshop for the necessary checkup/repair work the driver continued with his journey and on the way the engine got stuck up. The subsequent problem to the engine is occurred due to the shear negligence of the driver as such is not covered under the Insurance policy. The learned counsel also invited our attention to the relevant condition mentioned in Ext.B3(a) policy which ready as under
“ The injured 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 times 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’
7. According to learned counsel for opposite parties had the complainant or his driver has taken proper care then the damage to the engine could have been avoided and the plying of vehicle before necessary repairs effected extension of damages for which opposite party is not liable.
8. The fact that after the accident the driver again drove the vehicle upto Vadakara from Payyanur itself reveals that the accident caused to the vehicle due to the accident was not major one and its engine was in perfect running condition. Hence it is clear that the damage to the engine was an extension of damage caused due to the plying of vehicle without coolant which is entirely at the insured own risk.
9. In this regard ,the argument of the learned counsel for complainant Sri. Benny Jose is that the contention advanced by the opposite party that before plying the vehicle the driver should read the owners Manual absurd etc does not hold good since the owner of a vehicle entrusting it with another for driving at his own risk and the presumption is that the person with whom the vehicle is entrusted is aware about all the pros and cons of vehicle maintenance. Otherwise it would be a short cut for every owner /insurer of the vehicle to allege fault on the part of driver and thereby save themselves from faults
The Surveyor has assessed the damages to the tune of ` 70327/-. In the report surveyor has clearly noted that the damages to the engine occurred due to the negligence of the driver which is not covered under the policy and hence the same is not considered for assessment.
10. As far as the settlement of a motor accident claim is concerned survey report is an important document. Though it is not the last word, there shall be sufficient materials to depart from it. In this case we do not find any grounds to meddle with the finding of the surveyor and the complainant is not entitled for the whole loss sustained to him except that is noted by the surveyor.
Therefore, we are of the view that there is no deficiency in service on the part of opposite parties and the claim settled by opposite parties does not warrants any interference. The points 1&2 are answered accordingly.
In the result, compliant is dismissed with no order as to costs.
Exts:
A1-Invoice-form No.8B
A2- cash receipts
A3- copy of email
A4-Copy of Ext.B3
B1- claim form for motor vehicle
B2- 16/1/09- survey report
B3- Certificate cum policy schedule
B3(a)- Policy wordings
PW1-AbdulHaris E.M-complainant
DW1- M.Ravindran-witness of OP
Sd/ Sd/
MEMBER PRESIDENT
/Forwarded by Order/
SENIOR SUPERINTENDENT
