Karnataka

Chitradurga

CC/99/2014

Santhosh Vackdoth H.S. S/o. Surya Naik - Complainant(s)

Versus

The Manager, Royal Sundarum Allaiance Insurance Co.Ltd, Leagal Section - Opp.Party(s)

Shri. G.B.Prakash

14 Sep 2015

ORDER

COMPLAINT FILED ON : 20/12/2014

     DISPOSED ON: 14/09/2015

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHITRADURGA

 

CC. NO. 99/2014 DATED:  14th September 2015

 

PRESENT :-     SRI. T.N. SREENIVASAIAH      PRESIDENT                                      B.A., LL.B.,

                        SRI.H.RAMASWAMY,               MEMBER

                                         B.Com., LL.B.,(Spl.)

SMT.G.E.SOWBHAGYALAKSHMI,       

                                         B.A., LL.B.,                   MEMBER

                               

COMPLAINANT	Santhosh Vackdoth. H.S, S/o Surya Naik,  R/o Hosahatty village, Essamudra Post, Baramasagara Hobli, Chitradurga Taluk and Dist.   (Rep by Sri. G.B. Prakash,  Advocate)
OPPOSITE PARTIES	The Manager, Royal Sundaram Alliance Insurance Co. Ltd,. Legal Section, Subramanya Building, No. 1, Club Bane Road, Annasali, Chennai-600002,  Tamil Nadu.   (Rep by Sri.B.S. Shivamurthy,  Advocate)

 

SRI. T.N. SREENIVASAIAH. PRESIDENT.

ORDER

The complainants have filed a complaint U/s 12 of C.P. Act 1986 against the OP for a direction to pay Rs.2,53,543/- towards damage to the TOYOTA ETIOS (GD) Car and Rs.50,000/- towards repair charges with interest and cost other reliefs as the Hon'ble Forum deems fit to grant.

2.     The brief facts of the case of the complainant are that, he is the RC owner of TOYOTA ETIOS (GD) Car bearing Engine No. IND 1362082 and Chassis No. MBJB49BT500078484 and the same has been insured with the OP under Policy No.VCP0636304000100 by paying premium of Rs.25,565/- for a period of one year w.e.f., 07.05.2014 to 06.05.2015 and it covers all the risk of own damage and TP liability.  It is submitted that, on 11.10.2014, complainant brought his vehicle along with his friend to Tumkur Toyota Show Room for its second service as per the instruction of catalog and also on the date of appointment of service issued by the show room.  When he driving the vehicle, just to cross the Guilalu Toll, the vehicle jumped the hump and caused damaged to the vehicle and suddenly stopped at the spot.  The same was informed to the show room and the mechanics of the show room carried the vehicle with Tooling vehicle to Tumkur Toyota Show room.  The Mechanic observed and assessed the external damage caused the vehicle and issued estimation for Rs.59,369/- and the OP approved the estimation issued by the show room.  After approval, the Toyota Company repaired the external damage caused to the vehicle.  After the repair, the Mechanic tried to run the vehicle through mechanical treatment and after observation of the engine, they found that there was an engine problem due to accident and further they assessed damage and issued estimation to the tune of Rs.1,94,574/- and the same was informed to the OP but, the OP refused  the approved estimation.  The estimation is in relation to the same accident and hence, OP company is liable to pay the same.  The Toyota show room informed and submitted a repair estimation for Rs.59,369/- and Rs.1,94,574/- respectively.  Complainant also informed orally and in writing about the same and for payment of estimation issued by the Toyota Show room and applied the claim which was registered as Claim No.PN00118171 but, the OP Company did not approved the estimation till today.  As per the policy, covers all the risk towards the repair of the damaged vehicle and the OP is liable to pay the estimation cost.  The vehicle of the complainant is not in working condition and if the OP not approved the estimation, mechanics are need not be repaired and since from the date of accident, the Car parked in the Toyota Show room till today.  If the vehicle not come to the working condition, it will be damaged further and it will be put to great loss and damages to the complainant.     Hence, there is a deficiency of service on the part of OP so, he sustained financial loss and mental agony and etc., and prayed for allow the complaint.

 

        3. On service of notice, OP has appeared through Sri. B.S. Shivamurthy, Advocate and filed written version stating that, the complainant had taken a Motor Insurance Policy No.VPC0636304000100 which was valid from 07.05.2014 to 06.05.2015 for his Toyota Etios Car bearing Reg. No. KA 05 TR 1402 subject to specific terms and conditions.  It is submitted that, complainant submitted a claim to the OP stating that on 11.10.2014 the said vehicle met with an accident as the vehicle ran over the hump and damaged with loud sound.  As per the assessment made by the IRDA licensed surveyor Mr. Devaraj it was found that, there was a damages to the inner parts of the vehicle's engine due to aggravation.  Inspite of knowing well the complainant drove the vehicle over the hump on the road and which results in engine coolant drained completely and the engine assembly got jammed due to overheating and as such the policy does not cover any such damages which are due to aggravation and in other words, the complainant aggravated the damages to the engine of the vehicle by plying after the vehicle met with an accident and the damages caused to the vehicle was due to negligent act of his own.  The relevant excerpt of the comments made in the survey report is reproduced below: 

        "Comments"

"Damages to the vehicle's engine seem not due to any external means.  Vehicle ran after the said impact of being hit by hump and therefore damages to oil sump is due to said accident or may be due to mechanical failure.  Hence, we may deny the claim as loss is due to aggravated damages".  

 

4.     It is further submitted that, the complainant plied the  vehicle in spite of knowing well that the vehicle hit by hump and the claim in respect to the aggravated damages were denied by answering the OP under policy condition No.4 and damages caused to the vehicle has to borne by the owner/complainant/insured as the damages caused due to aggravation.  The Surveyor has given comments in his report that there is no accidental external impact and the damage caused to the vehicle was due to aggravation or consequential loss due to negligent handling of the vehicle by the driver/complainant.  It is further stated that, the policy terms specifically excluded the liabilities arising due to "consequential losses", as the general exclusion No.4(i) clearly excludes all liabilities arising due to "consequential losses" and therefore, the claim of the complainant is inadmissible.  It is submitted that, the damages to inner parts of the engine is not covered under the policy and all such damages are inadmissible under policy condition No.4 of the policy which reads as under:

Condition No.4:

"In the event of any accident or breakdown, the vehicle shall not be left unattended proper precautions being taken to prevent further damages or loss and if the vehicle be driven before the necessary repairs are effected any extension of the damage or further damage to the vehicle shall be entirely at the insured's own risk".

 

      5.       It is further submitted that, the IRDA licensed surveyor gave an assessment that the sum payable to the complainant on account of external impact damages shall be Rs.40,483/- and the liability of the OP shall not exceed Rs.40,483/-.  However, the complainant is yet to submit original bills and receipt from the repairer for getting the claims settled with the regard to the damages caused to the vehicle.   It is further submitted that, it is settled law that, report of statutory has to be given due importance in arriving at the conclusion about the net loss suffered by the consumer unless there is substantial eviden ce to the contrary".  It is further submitted that, the OP is not liable to pay any sum to the complainant as the complainant has failed to comply with the terms and conditions of the policy, which disentitles him from claiming the damages under the policy.     In view of the above stated facts for breach of drivers clause of the motor insurance policy, OP has rightly repudiated the claim and etc., and prayed for dismissal of the complaint.

6. Complainant himself examined as PW-1 by filing affidavit evidence and Ex.A-1 to Ex.A-7 documents are marked. 

 

        7. OP has examined one Sri. G. Vinayaprakash, Assistant Manager (Legal), as DW-1 by filing affidavit evidence and Ex.B-1 has been marked. 

 

        8.     Arguments heard.

 

9. Now the Points that arise for our consideration for the decision of the complaint are that:

 

Point No.1:- Whether the complainant proves that, he is the owner of Toyota Etios (GD) Car bearing No  KA-05/TR-1402 and it was duly insured with the OP and on 11.10.2014 at Guilalu Toll when the said Car jumped the hump and suddenly stopped at the spot and sustained damages and OP has illegally repudiated the claim and thereby complainant has sustained financial loss and mental agony and OP has committed deficiency of service and entitled for the relief as prayed in the complaint?

 

Point No.2:- What order?

 

        10. Our findings on the above points are as follows:

 

        Point No.1:- Partly Affirmative.

        Point No.2:- As per the final order.

                                        ::REASONS::

11. Point No. 1:- It is not in dispute that, complainant is the RC owner of TOYOTA ETIOS (GD) Car bearing Engine No. IND 1362082 and Chassis No. MBJB49BT500078484 and the same has been insured with the OP under Policy No.VCP0636304000100 by paying premium of Rs.25,565/- for a period of one year w.e.f., 07.05.2014 to 06.05.2015 and it covers all the risk of own damage and TP liability.  That on 11.10.2014, complainant brought his vehicle along with his friend to Tumkur Toyota Show Room for its second service as per the instruction.  When he driving the vehicle, just to cross the Guilalu Toll, the vehicle jumped the hump and caused damaged to the vehicle and suddenly stopped at the spot.  The same was informed to the show room and the mechanics of the show room carried the vehicle with Tooling vehicle to Tumkur Toyota Show room and observed and assessed the external damage caused the vehicle and issued estimation for Rs.59,369/- and the OP approved the estimation issued by the show room.  After approval, the Toyota Company repaired the external damage caused to the vehicle.  After the repair, the Mechanic tried to run the vehicle through mechanical treatment and after observation of the engine, they found that there was an engine problem due to accident and further they assessed damage and issued estimation to the tune of Rs.1,94,574/- and the same was informed to the OP.   But, the OP refused  the approved estimation.  The estimation is in relation to the same accident and hence, OP company is liable to pay the same.  The Toyota show room informed and submitted a repair estimation for Rs.59,369/- and Rs.1,94,574/- respectively.  Complainant also informed orally and also in writing for payment of estimation issued by the Toyota Show room and submitted a claim form which was registered as Claim No.PN00118171 but, the OP Company did not approved the estimation till today.  As per the policy, it covers all the risk towards the repair of the damaged vehicle and the OP is liable to pay the estimation cost.  The vehicle of the complainant is not in working condition and if the OP is not approved the estimation, mechanics are need not be repaired and since from the date of accident, the Car parked in the Toyota Show room till today.  If the vehicle not comes to the working condition, it will be damaged further and it will be put to great loss and damages to the complainant.     Hence, there is a deficiency of service on the part of OP so, he sustained financial loss and mental agony and etc., and prayed for allow the complaint.

 

  12. So, as on the date of accident, insurance policy was in force.  It is the main contentions of the complainant that, on 11.10.2014 when he driving the said vehicle at Guilalu Toll, it was jumped the hump and caused damage and suddenly stopped at the spot.   Complainant informed the same to OP and made a claim and in spite of policy was in force, OP has repudiated the claim on the ground that,  policy terms specifically excluded the liabilities arising due to consequential losses, as the general exclusion No.4(i) clearly excludes all liabilities arising due to consequential losses and thereby he sustained financial loss and mental agony and OP has committed deficiency of service so, this complaint has been filed. 

 

       13.  In support of his contentions,  complainant has relied on his affidavit evidence in which he has reiterated the contents of complaint.  Complainant has also riled on documents like copies of Delivery Note marked as Ex.A-1, Tax Invoice as Ex.A-2, Estimation copies as Ex.A-3, letter by the OP dated 20.11.2014 as Ex.A-4, Original Tax Invoice dated 14.03.2015 as Ex.A-5, Original Receipt No.7214 dated 14.03.2015 as Ex.A-6 and Receipt of HDFC Bank dated 01.03.2015 as Ex.A-7 and they are not in dispute.

 

14.  On the other hand, it is admitted by the OP that, complainant is the owner of said vehicle and it was duly insured with the OP and policy was in force as on the date of accident.  As per the assessment made by the IRDA licensed surveyor Mr. Devaraj it was found that, there was a damage to the inner parts of the vehicle engine due to aggravation.  Inspite of knowing well the complainant drove the vehicle over the hump on the road and which results in engine coolant drained completely and the engine assembly got jammed due to overheating and as such the policy does not cover any such damages which are due to aggravation and in other words, the complainant aggravated the damages to the engine of the vehicle by plying after the vehicle met with an accident and the damages caused to the vehicle was due to negligent act of his own and so, OP has rightly repudiated the claim and complaint itself is not maintainable etc., and prayed for dismissal of the complaint.

 

       15.  On the basis of the above said affidavit and documentary evidences, Sri. G.B. Prakash, Advocate for the complainant has argued that, admittedly complainant is the owner and RC holder and said vehicle was duly insured with the OP and even though policy was in force as on the date of accident OP has illegally repudiated the claim and thereby committed deficiency of service and complainant is entitled for the relief etc., and prayed for allow the complaint.

 

16.  On the other hand, Sri. B.S. Shivamurthy, Advocate for the OP has resisted the said contentions stating that, the complainant has not handled the vehicle in a proper manner and it was observed by the surveyor that there was rubbing hose to the fan assembly of the engine of the vehicle and the same was only suggested that the vehicle was being driven after hit by the hump, as the rubbing of the fan with hose made the hose torn and engine coolant drained completely as a result the engine got over heated and got damaged.  The damage caused to the vehicle was due to negligent act of the complainant himself and prayed for dismissal of the complaint.    

  

17.  On hearing the rival contentions of both the sides and on careful perusal of the entire records, it clearly shows that, OP has wrongly repudiated the claim of the complainant.  Admittedly, complainant is the owner of said vehicle and it was duly insured with the OP and the policy was in force as on the date  of accident.  OP has appointed Surveyor and who assessed the loss and submitted the report for the damages caused to the vehicle for Rs. 40,483/- due to jumping of hump at Guilalu Toll which was accepted and approved by the OP.  But, the estimation made by the Toyota Show Room, Tumkur for engine problem of Rs. 1,94,574-41 has been repudiated.   But, the complainant was claiming cost of the vehicle damage is of Rs.59,369/- totally it comes to Rs.2,53,543-41.   OP has wrongly repudiated the claim of the complainant. 

 

18.  On hearing the rival contentions of both the sides and on perusal of the documents produced by the both parties and we have gone through the all the exhibits of both sides, it seems that, when the OP accepted and approved the estimation given by the show room and the report submitted by the licensed surveyor for the damages caused to the vehicle due to an accident, there is no reason to repudiate the estimation given by the show room for the problems occurred in the engine when the mechanics of the show room tried to start the Car by that time, the complainant knows the problems of the engine. So, we are of the considered opinion that, it is just and proper to award compensation under the head of non standard basis as per the decision reported in AIR 2010 Supreme Court page:2090 at the rate of 75% of the total cost.

 

19.  As per Ex.B-1 Surveyor's report, the total loss was assessed by the Surveyor at Rs.40483/-.   The valid surveyor report is available on record as per Ex.B-1, it is just and proper to taken into consideration the surveyor's report only because complainant has not denied the correctness of the surveyor's report marked as Ex.B-1.  In view of the above cited decisions 75% of Rs.2,53,543-41 and complainant is entitled for the relief at Rs.1,87,100/- along with that complainant is also entitled for Rs.10,000/- for mental agony and Rs.5,000/- towards costs of the proceedings.  Accordingly, this Point No.1 is partly held as affirmative to the complainant.

20.  Point No.2:- For the foregoing reasons, we pass the following:

ORDER

        The complaint filed by the complainant u/Sec. 12 of the C.P. Act, 1986 is partly allowed.  The OP is directed to pay Rs.1,87,100/- to the complainant along with interest at the rate of 9% p.a from the date of complaint till realization. 

Further the complainant is also entitled for Rs.10,000/- towards mental agony and Rs.5,000/- towards costs of the proceedings. 

Further, the OP is directed to pay the above amount to the complainant within 60 days from the date of this order. 

                (This order is made with the consent of Members after the correction of the draft on 14/09/2015 and it is pronounced in the open Court after our signatures.)   

 

MEMBER                   MEMBER                      PRESIDENT

 

-:ANNEXURES:-

Complainant by filing affidavit evidence taken as PW-1.

Witness examined on behalf of complainant:

                                                -Nil-

On behalf of OP Sri. G. Vinayaprakash, Assistant Manager of OP by filing affidavit evidence taken as DW-1:

 

Witnesses examined on behalf of OP:

-Nil-

Documents marked on behalf of complainant:

01	Ex-A-1:-	Copy of Delivery Note.
02	Ex-A-2:-	Tax Invoice
03	Ex-A-3:	Estimation copies
04	Ex-A-4:	Letter by the OP dated 20.11.2014
05	Ex-A-5:	Original Tax Invoice dated 14.03.2015
06	Ex.A-6:	Original Receipt No.7214 dated 14.03.2015.
07	Ex.A-7:	Receipt dated 01.03.2015 by the HDFC Bank.

 

Documents marked on behalf of Opponent:

01

Ex-A-1:-

Surveyor's report

 

 

MEMBER                   MEMBER                      PRESIDENT

Rhr.