Tamil Nadu
South Chennai
CC/325/2016
F.Dominic Rajesh - Complainant(s)
Versus
The Manager, MPL Ford - Opp.Party(s)
R.Vasudevan, S.Kavitha
29 Jun 2022
ORDER
Date of Complaint Filed : 12.09.2016
Date of Reservation : 09.06.2022
Date of Order : 29.06.2022
DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,
CHENNAI (SOUTH), CHENNAI-3.
PRESENT: TMT. B. JIJAA, M.L., : PRESIDENT
THIRU. T.R. SIVAKUMHAR, B.A., B.L., : MEMBER I
THIRU. S. NANDAGOPALAN., B.Sc., MBA., : MEMBER II
CONSUMER COMPLAINT No.325 /2016
WEDNESDAY, THE 29thDAY OF JUNE 2022
F.Dominic Rajesh,
S/o. J. Francis Xavier,
5/84, Maraikayar Nagar Main Road,
Neelankarai,
Chennai – 600 115. …Complainant
-Vs-
1.The Manager,
MPL Ford, 18, 200 Ft Road,
S.Kolathur, Kovilambakkam,
Chennai – 600 117.
2.The General Manager,
Royal Sundaram Alliance Insurance Company Limited,
Subramaniam Building, 2nd Floor,
No.1, Club House Road,
Anna Salai,
Chennai – 600 002. …Opposite Parties
*****
Counsel for the Complainant : M/s. R. Vasudevan
Counsel for the 1st Opposite party : Exparte
Counsel for the 2nd Opposite Party : M/s. M.B. Gopalan Associates
On perusal of records and after having heard the oral arguments of the Counsel for Complainant and the Counsel for the 2nd Opposite Party, we delivered the following:
ORDER
Pronounced by the President Tmt. B. Jijaa, M.L.,
2.The averments of the complaint in brief are as follows:-
The Complainant had purchased a Ford Figo Car bearing Registration No.TN07BT1588 engine No. CL33807, Chassis No.MAJ1XXMRJ1CL33807 from the 1st Opposite party and on the instruction of the 1st Opposite Party the Complainant had taken Insurance Policy No.FOP1082345000100 for the period till 04.12.2015 from the preferred insurer of the 1st Opposite Party, M/s Royal Sundaram Alliance Insurance Company Limited with an assurance that in event of any claim need not worry in respect of any claim settlement and the vehicle was insured with IDV value of Rs.3,18,947/-.Three warrant of service carried out by the 1st Opposite Party was not to the fullest satisfaction of the Complainant. However the Complainant was careful while driving due to bad condition of roads in some parts there are pitches and ditches on the rod filled with stones and one such stone hit on the Complainant vehicle on 17.02.2015 while the Complainant was driving his vehicle to office and after some time the vehicle did not start which was informed to the 1st Opposite Party. The 1st Opposite Party took the car by towing to their service centre and the Complainant paid Rs.2000/-. When the Complainant informed the 2nd Opposite Party, the 2nd Opposite Party informed the Complainant that they will accord sanction upon getting car surveyor report. The contractual obligation of the 2nd Opposite Party with the Complainant is legal and repair of car and it is an obligation on the part of the 2ndOpposite Party to accord sanction and the Complainant was kept in dark by the Opposite Parties until the Complainant had sent a legal notice to the Opposite Parties on 09.07.2015, for which the 1st Opposite Party had sent vague reply on 23.07.2015 and the 2nd Opposite Party on 19.10.2015. On 03.08.20215 the 2nd Opposite Party had asked the Complainant to produce original bills on completion of repair for which the Complainant had replied on 10.08.2015 stating that the vehicle is still under the custody of 1st Opposite Party and forwarded the email of the 1st Opposite Party stating repair cost of Rs.1,45,846/- for sanction by the 2nd Opposite Party. Against the reply sent by the 1st Opposite Party a rejoinder was sent by the Complainant on 25.08.2015 denying the allegations and demanding the 1st Opposite party to repair and handover the vehicle in roadworthy condition. The Complainant had preferred the complaint before the Insurance Ombudsman on 11.01.2016 as per the instructions of the IRDA. The Ombudsman Awarded an amount of Rs.67,337/- with direction to furnish to the insurer within a period of one month confirming the acceptance of Award in gull and final settlement of disclaims. Accordingly the Complainant had approached the 1st Opposite party for assessing and to carry out repairs to make the vehicle in road worthy condition. To the shock and surprise the Complainant was informed that the car was hit by Chennai flood on 01.12.2015 and 02.12.2015 which was not brought to the notice of the Complainant. The Complainant visited the 1st Opposite Party along with Ombudsman order dated 18.04.2016. Though the vehicle was hit by Chennai flood neither the vehicle started nor moved out of back location. In this regard the Complainant immediately intimated the 2nd opposite Party to resurvey the vehicle. The Complainant had issued legal notice dated 19.04.2006 but the Opposite Parties kept stoic silence all along and hence the Complainant.
3. Written Version of the Opposite parties in brief:-
The Opposite Parties denied all the allegations and averments contained in the complaint except those that are specifically admitted and put the complainant to strict proof of rest of the allegations. The Complainant’s car TN 07 BT 1588 was insured under Policy bearing Certificate No.FOP 1082345 for the period 05.12.2014 to 04.12.2015. The coverage under the Policy was for damage caused by specific perils and subject to the terms and conditions as specified in the Policy. As per the terms of the Policy while the Complainant have insure damaged caused to the vehicle by “accidental external means”, the Complainant was obliged to take reasonable care to safeguard the vehicle from loss or damage and avoid aggravation of damage. A claim was reported by the Complainant alleging damage to his car due to hit by a stone near his house on 17.02.2015. The Opposite Party immediately appointed IRDA Licensed Surveyor Mr.Senthil Kumar (SLA No.62406) for inspection of the vehicle and survey as contemplated by Sec.64 UM of the Insurance Act. The Surveyor had inspected the vehicle at the 1st Opposite Party’s workshop and it was found that vehicle had suffered damage to Oil Sump due to the hit by stone. The Opposite Party was liable only to pay for such damage which can be construe as having caused by “accidental external means”. The Opposite Party was not liable for any further aggravation of damage to internal parts of the engine caused by driving without oil. Such internal damage of the engine which did not come in contact with stone or suffer damage by “accidental external means” is attributable to driving before necessary repairs are effected resulting in oil starvation to the Engine for which the Opposite Party is not liable. The Opposite Party has issued letter dated 04.05.2015 to the 1st Opposite Party and the Complainant confirming the inspection and to proceed with repairs, indicating roughly the items that would fall within coverage. The Opposite Party submits that their approval is only for the limited extent of ensuring survey/inspection before repairs are carried out. Irrespective of any dispute over the extent of repairs that fall within coverage under the Policy, the Complainant as owner of the vehicle was obliged to repair the vehicle as soon as the inspection was completed and submit final bills for payment. While the Opposite Party is liable to pay for repairs as covered under the Policy upon submission of final bills there is no necessity or justification for the Complainant to wait any approval from this Opposite Party. The Complainant as a prudent owner was bound to proceed with repairs and submit the final bill but cannot remain a silent spectator and shift the onus of repairs on this Opposite Party. A belated estimate dated 24.06.2016 of the 1st Opposite Party was provided to this Opposite Party. However, there was no necessity for this Opposite Party to deal with the same. The Opposite Party had already given approval for proceeding with repairs, having inspected the vehicle. The Complainant failed to effect repairs and submit bills. The Opposite Party had sent reminders on 07.07.2015 and 03.08.2015 for repairs and submissions of bills. Instead the Complainant had approached the Insurance Ombudsman on 08.03.2016 whose direction the Opposite Party had offered to consider revised items of claim to the extent of Rs.67,337/-. However the consideration of the claim would arise only upon repairing the vehicle and submitting final bills. The Opposite Party has not committed any deficiency of service. The Opposite Party is not aware of any damage to the vehicle in the flood during December 2015. This Opposite Party had no opportunity to survey and verify any claim due to flood. Therefore no relief attributable to the flood can be claimed by the Complainant as against the Opposite party. The Opposite Party is not liable for any amount beyond the original damage to the Oil Sump that alone is attributable to accidental external means. Hence the relief sought for is to be dismissed.
4. The complainant submitted his Proof Affidavit and on the side of the Complainant Exs-A1 to Ex-A33 were marked. The Opposite Parties submitted their Proof Affidavit and on the side of the Opposite Parties Ex-B1 and B-2 were marked. Both the parties have filed their Written Arguments.
5. Points for Consideration:-
- Whether there is any deficiency in service on the part of the opposite parties?
- Whether the complainant is entitled to get compensation as claimed in the complaint?
- To what relief, the complaint is entitled?
Point No.1:-
On perusal of records and after hearing the arguments of counsels on both sides, the undisputed facts are that the Complainant had taken insurance Policy bearing No.FOP 1082345 for the period from 05.12.2014 to 04.12.2015 from the 2nd Opposite Party for his Ford Figo car bearing Regn.No.TN 07 BT 1588 according to the Complainant on instructions from the 1st Opposite Party. The Complainant having a valid driving license vide Ex.A-3 while driving the vehicle on 17.02.2015, the vehicle was hit by stone due to bad condition of roads and after some time the vehicle did not start and hence informed the 1st Opposite Party who is the authorized service agency for FORD. The 1st Opposite Party took the car by towing to their service centre and inventory was taken as per Ex.A-4 according to Complainant in co ordination with the 2nd Opposite Party. The Contention of the Complainant was that when he had contacted the 2nd Opposite Party, the 2nd Opposite Party informed to accord sanction after the surveyor report. However, till 07.04.2015 no information was received and as per Ex.A-8, the Complainant had sent e-mail to the 2nd Opposite Party. The 1st Opposite Party by Ex.A-6 had sent mail dated 18.04.2015 to the Complainant informing that they had not received any approval regarding service of the vehicle from the Complainant and the 2nd Opposite Party, for the first time after 17.02.2015, on 04.05.2015 has sent a Repair Assessment Order approving a sum of Rs.9,800/- towards total accidental labour charges and for the parts mentioned therein at 50% depreciation. For the first time after a period of 2 months on 24.06.2015 the 1st Opposite Party had sent an Estimation details which was assessed at Rs.1,45,846.93, was informed to the 2nd Opposite Party. The Complainant contended that though it was obligatory on the party of the 2nd Opposite Party to accord sanction being the insurer for repair of the vehicle and it is obligatory on the part of the 1st Opposite Party to get the vehicle repaired, as per Ex.A-10, the 1st Opposite Party had sent an email dated 02.07.2015 stating that no approval was received from the 2nd Opposite Party.
But the 2nd Opposite Party contended that as a owner of the vehicle the Complainant had to carry out repairs and submit bills to the 2nd Opposite Party but cannot remain silent shifting the onus on the 2nd Opposite Party for approval. The Opposite Party is liable only to damage caused by accidental external means and not liable to the internal damage of engine which did not come into contact with the stone and is attributable to driving before repairs resulting in oil starvation of the engine, which is not covered under the policy. The Complainant had committed breach of Condition No. 4 of the Policy, Ex B-1 which reads as follows:
“ The insured shall take all reasonable steps to safeguard the Private Car 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 Private Car or any part thereof on any driver or employee of the Insured. In the event of any accident or breakdown, the Private Car shall not be left unattended without proper precautions being taken to further Damage or Loss and if the Private Car be driven before the necessary repairs are effected any extension of the Damage or any further Damage to the Private Car shall be entirely at the Insured’s own risk.”
The Complainant had taken reasonable steps of informing the 1st Opposite Party about the damage to the car on 17.02.2015,who had taken the car by towing to its service centre on the same day and the Complainant had not left the car unattended, but left the car under the custody of the 1st Opposite Party. Nowhere in the exchange of communications marked as Exs. A-5 to A-20 it was stated that the damage to the engine was attributable to driving of the Complainant after the car was damaged resulting in oil starvation. For the first time this plea is taken in the Version filed by the 1st Opposite Party. Moreover no ordinary person would anticipate that just by hitting a stone the engine would get damaged resulting in oil leakage.
As per Ex.A-18, the Complainant had again requested the 2nd Opposite Party to accord approval enclosing the estimation details given by the 1st Opposite Party, to which the 2nd Opposite Party vide reply letters, Exs.A-19 and A-20 in a casual manner replied that the repair assessment order dated 04.05.2015 was already sent with approval of Rs.9800/- against the estimated amount of Rs.1,45,846.93.
As there was no proper response from the Opposite Parties the Complainant had given a complaint on 11.01.2016 vide Ex.A-23 to Insurance Ombudsman. The Insurance Ombudsman has passed an award , Ex.A-29 on 31.03.2016 fixing the liability on the insurer at Rs.67,337/-, which Award was intimated by the Complainant by letter dated 19.04.2016 Ex.A-30 to the Opposite Parties requesting them to carry out the repairs, for which the 1st Opposite Party according to the Complainant had stated that they had inspect to the vehicle for a revised estimate as the vehicle was badly affected due to floods in Chennai and flood survey was carried out by the 2nd Opposite Party on 02.12.2015, which fact was never intimated to the Complainant, resulting in delayed claim by the Complainant to the 2nd Opposite Party for the damage caused to vehicle due to flood, which had happened under the custody of the 1st Opposite Party.
The Complainant had placed reliance on the Order passed by the National Consumer Disputes Redressal Commission, New Delhi, on 04.08.1994 in F.A.No.362 of 1993, reported in 1995(1) C.P.J 44, wherein it was held that when the insurer has the option to replace the damaged motor car, he can take over the damaged car and insured is bound to submit to the same. If option to repair the car is exercised by the insurer, he is entitled to negotiate the charges with the repairer and the insured has hardly anything to do with it.
The 2nd Opposite party relied on the Order passed by the National Consumer Disputes Redressal Commission, New Delhi, on 28.02.2002 in R.P.NO.1282 OF 2000, reported in 2003 1 CLT (NC) 565, and the Order passed in R.P.No.1463 of 2009 wherein it was held that Insurance Company was right in rejecting the claim for consequential damages as per the terms and conditions of the existing policy caused not on account of accident but driving the car further with loss of oil and engine seizure.
In this case as already discussed in the exchange of communications between the Complainant and the Opposite parties, there is no mention that the damage to the engine was attributable to driving of the Complainant after the car was damaged resulting in oil starvation. Moreover no ordinary person would anticipate that just by hitting a stone the engine would get damaged resulting in oil leakage. Even the Survey Report does not mention the reason for disallowing the claim of the Complainant. Hence the Orders relied upon by the 2nd Opposite Party passed by the National Consumer Disputes Redressal Commission, New Delhi is not applicable to this case, as there is no proof to show that damage to the engine was attributable to driving of the Complainant after the car was damaged.
Considering the facts and circumstances of the case, it would be clear that the 1st Opposite Party had take the ca to his service centre on 17.02.2015 for repair, estimation details of repair was sent by the 1st Opposite Party only on 24.06.2015, pending sanction of the 2nd Opposite Party the car was in the yard f the 1st Opposite Party, the fact that the car was affected by floods in Chennai during December, 2015 was not brought to the notice of the Complainant by the Opposite Parties, when there was an existing Contract of Insurance with the 2nd Opposite Party for value of Rs.3,18,047/- the car that got damaged and placed with the 1st Opposite Party, an authorised service agent, are under the obligation to repair the damaged car of the Complainant. Hence, this Commission is of the considered view that the Opposite Parties 1 and 2 had committed deficiency of service, by not assessing the repairs of car of the Complainant and by not approving the Insurance claim a per the Policy. Accordingly Point No.1 is answered.
Point No.2:-
As we have discussed and decided Point No.1 in favour of the Complainant, and as the Opposite Parties neither repaired the vehicle nor had intimated the Complainant to take back the vehicle, which is still lying with the 1st Opposite Party and there was an existing Contract of Insurance with the 2nd Opposite Party for value of Rs.3,18,047/- when the car got damaged, the 1st and 2nd Opposite Parties are liable to reassess the condition of the vehicle and repair the vehicle into road worthy condition and hand over the same to the Complainant or in the alternative the 2nd Opposite Party is liable to pay the IDV insurance value of the vehicle at Rs.3,18,947/- to the Complainant, to pay a sum of Rs.50,000/- towards mental agony for committing deficiency of service and to pay a sum of Rs.10,000/-towards litigation cost.
In the result the Complaint is allowed in part. The Opposite Parties 1 and 2 are jointly and severally directed to reassess the condition of the vehicle and repair the vehicle into road worthy condition and hand over the same to the Complainant or in the alternative the Opposite Parties 1 and 2 are directed to pay the IDV insurance value of the vehicle at Rs.3,18,947/- (Rupees Three Lakh Eighteen Thousand Nine Hundred and Forty Seven Only) with interest at the rate of 6% from the date of Complaint, ie., 12.09.2016 till the date of the order, and to pay a sum of Rs.50,000/- (Rupees Fifty Thousand Only) towards mental agony for committing deficiency of service and also to pay a sum of Rs.10,000/- (Rupees Ten Thousand Only) towards litigation cost, to the Complainant.
The Opposite Parties 1 and 2 are jointly and severally directed to pay the above amounts within 8 weeks from the date of this order, failing which the Complainant is entitled to recover the above amounts along with interest at the rate of 6% per annum from the date of this order till the date of realization.
In the result this complaint is allowed.
Dictated to Steno-Typist, transcribed and typed by her, corrected and pronounced by us in the Open Commission, on 29th of June 2022.
S. NANDAGOPALAN T.R. SIVAKUMHAR B.JIJAA
MEMBER II MEMBER I PRESIDENT
List of documents filed on the side of the Complainant:-
Ex.A1 | 29.11.2012 | Registration Certificate |
Ex.A2 | 5.12.2014 | Insurance Policy |
Ex.A3 | 3.6.2004 | Driving licence |
Ex.A4 | 17.2.2015 | Repair Order |
Ex.A5 | 08.04.2015 | |
Ex.A6 | 18.04.2015 | |
Ex.A7 | 19.04.2015 | |
Ex.A8 | 4.5.2015 | E-mail repair assessment order |
Ex.A9 | 24.6.2015 | E-mail estimation details |
Ex.A10 | 2.7.2015 | |
Ex.A11 | 09.07.2015 | Legal Notice |
Ex.A12 | 23.07.2015 | Reply |
Ex.A13 | 03.08.2015 | Letter |
Ex.A14 | 10.08.2015 | Letter |
Ex.A15 | 25.08.2015 | Rejoinder |
Ex.A16 | 08.09.2015 | Letter |
Ex.A17 | 15.09.2015 | Letter |
Ex.A18 | 25.09.2015 | Letter |
Ex.A19 | 07.10.2015 | Letter |
Ex.A20 | 19.10.2015 | Reply to legal notice |
Ex.A21 | 5.11.2015 | Reply |
Ex.A22 | 19.11.2015 | Rejoinder |
Ex.A23 | 11.1.2016 | Complainant to Insurance Ombudsman
|
Ex.A24 | 13.01.2016 | Reply
|
Ex.A25 | 23.01.2016 | Letter |
Ex.A26 | 24.02.2016 | Letter |
Ex.A27 | 08.03.2016 | Letter |
Ex.A28 | 11.03.2016 | Complainant with Annex – IV-A |
Ex.A29 | 31.03.2016 | Award |
Ex.A30 | 19.04.2016 | Letter |
Ex.A31 | 11.05.2016 | Letter |
Ex.A32 | 10.08.2016 | Letter |
Ex.A33 | 19.08.2016 | Reply |
List of documents filed on the side of the Opposite Party:-
Ex.B1 | - | Insurance Policy with terms and conditions |
Ex.B2 | - | Surveyors Assessment for Rs.67,337/- |
S. NANDAGOPALAN T.R. SIVAKUMHAR B.JIJAA
MEMBER II MEMBER I PRESIDENT
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