IN THE CONSUMER DISPUTES REDRESSAL FORUM, KOTTAYAM
Dated this the 30th day of March, 2023
Present: Sri.Manulal.V.S, President
Smt.Bindhu.R, Member
Sri.K.M. Anto, Member
CC No. 115/2021 (Filed on 14.07.2021)
Complainant : Johnson K.P, S/o N.T.Paul
Nadackal House, Athirampuzha P.O
Kottayam-686562
(By Adv.Zakhier Huzzain)
Vs
Opposite party : The New India Insurance Co.Ltd
Rep. by its Senior Branch Manager
Ettumannoor Branch,
Edens Shopping Centre, Pala Road
Ettumannoor, Kottayam-686631.
(By Adv.P.G.Girija)
O R D E R
Sri.Manulal.V.S, President
The complaint is filed under section 35 of the Consumer Protection Act 2019.
The brief facts of the case are that the Complainant’s car bearing Reg no. KL-05-AP-7731 was insured for the period from 28-01-2020 to 27-01-2021 by the opposite party. On 07-08-2020 at about 8 pm when the complainant reached Appanchira the car plunge into a gutter immersed in water. When the bottom of the car hit at a stone in the gutter he applied sudden break which caused the water to get into the exhaust pipe and the vehicle stopped. Thereafter the car was taken to the service centre and on examination it is found that the engine parts and sensors were damaged and had to be repaired. Complainant spent Rs.2,13,389/- towards the cost of repair. Though the complainant lodged a claim with the opposite party the same was repudiated stating that as per survey report the engine parts got damaged due to entry of water and estimate does not include any parts got damaged by hitting on a big stone. According to the complainant the water happened to get into the engine if any due to the sudden break followed by hit of the car on a stone. So the primary cause for the damage is the hit of the car in a stone in the gutter. Being aggrieved by the deficiency in service and unfair trade practice, the Complainant filed this complaint seeking refund of Rs.2,13,389/- and Rs.25,000/- as compensation for mental agony.
In the written version filed by the opposite party, submitted that on receipt of claim intimation, K.J.Philip was appointed to assess the claim and submit his report. The surveyor visited the workshop for assessment and after inspecting the car found that if the vehicle hits on stone, whatever be the shape of the big stone, at least one of the under body parts like cross member, oil sump, suspension arm or wheel disc will get damaged. In this case, the engine block above the oil sump was found broken as if the impact came from outside and no other part of the vehicle which are much below the engine block were found damaged or broken by any external impact. Therefore the surveyor has opined that the insured vehicle while going through a water logged area sucked water through the air filter which caused hydro static lock of the engine and breaking of the connecting rod and engine block. As per the claim the accident occurred by hitting on big stone. The description of the accident narrated in the claim form is not consistent with the damages found in the vehicle. It is contented by the opposite party that the complainant had negligently driven the car into a water logged area during the flood in August 2020 thereby water was sucked through the air filter which caused hydro static lock of the engine resulting in breaking of the connected rod and engine block. As per policy the damage caused to a vehicle if driven in water is not covered. The insured had an option to cover damage caused to ingress of water to engine by paying additional premium which he has not opted at the time of the inception of policy and “engine Protection Cover” option is shown as ‘No’ on the face of the policy. Therefore, there is no deficiency in service on the part of the opposite party.
Complainant filed proof affidavit in lieu of chief examination and marked exhibit A1 and A2. Asha R Thomas who is the Divisional Manger of the opposite party filed proof affidavit in lieu of chief examination and marked exhibit B1 to B4 from the side of the opposite party. Surveyor of the opposite party examined as DW1.
On evaluation of complaint, version and evidence on record we would like to consider the following points.
Whether there is any deficiency in service or unfair trade practice on the part of the opposite party?
- If so what are the reliefs and costs?
- We have heard the learned Counsel for the Parties, perused the material on record.
point number 1 and 2
There is no dispute on the fact that complainant’s car bearing Reg no. KL-05-AP-7731 was insured for the period from 28-01-2020 to 27-01-2021 by the opposite party. On perusal of exhibit B1 policy schedule we can see that insured value of the vehicle was Rs.7,72,286/-. It is further proved by exhibit B1 that the complainant had paid premium for own damage cover and basic third party cover. Specific case of the complainant is that on 07-08-2020 at about 8 pm when the he reached Appanchira the car plunged into a gutter immersed in water and the bottom of the car hit at a stone in the gutter, he applied sudden break which caused the water get into the exhaust pipe and the vehicle stopped. Exhibit A2 is the estimate issued by Cristal car Pvt Ltd for repair works of the car. On perusal of Exhibit A2 we can see that the estimated cost for repair work is Rs. 2,13,389/-.
Complaint was resisted by the opposite party stating that the complainant had negligently driven the car into a water logged area during the flood in August 2020 thereby water was sucked through the air filter which caused hydro static lock of the engine resulting in breaking of the connected rod and engine block.
Interestingly, Opposite Party in exhibit A1 communication to the Complainant had claimed that the episode of accident as intimated by the Complainant did not in any manner relate with the loss suffered by the vehicle, hence, the same being objectionable, is not payable. However, it is stated in exhibit A1 that it was revealed on inspection by the surveyor that the engine had suffered the damage due to the ingress of water causing hydrostatic lock leading to the extensive damage to the engine parts. Dw1 who is the surveyor of the opposite party deposed before the commission that the damages caused to the vehicle due to sucking of the water through the air filter. He further deposed before the commission that when the water entered into the vehicle through the exhaust pipe then vehicle would stop before the water reach in to the air filter.
In our view, the Complainant had to prove that the loss or damage to the vehicle was caused due to the accident or due to inundation. The Complainant would be entitled to compensation only in case the accident was caused due to external means and certainly that was not the case at hand. The surveyor had clearly given his opinion on this aspect in his report and in his deposition which was accepted by the opposite party in its repudiation letter dated 23-9-2020. In fact one of the duties and responsibilities cast on a surveyor by the Insurance Surveyors and Loss Assessors (Licensing, Professional Requirements and Code of Conduct) Regulations, 2000 is to give reasons for repudiation of claim, in case the claim is not covered by Policy terms and conditions. At the cost of repetition, it may be stated that the surveyor had clearly set out in his report and deposition that the damage/loss is not due to hit on the stone and was due to hydro static lock which was caused due to inundation and that opinion has been accepted by the opposite party and conveyed to the Complainant in their letter of repudiation dated 23-09-2020. The Complainant did not try to rebut the said opinion given by the surveyor by any other opinion of equivalent weight. It is well settled that a report of a surveyor is a credible piece of evidence unless proved otherwise.
We understand that as the episode of water lock of the engine has occurred due to the ingress of water, as confirmed by the Opposite Party, but at the same time, the opposite party contended that the loss due to this factor, is not payable, as damage caused to a vehicle if driven in water is not covered under the policy. On perusal of exhibit B1 policy we can see that insured had an option to cover damage caused to ingress of water to engine by paying additional premium which he has not opted at the time of the inception of policy and “engine Protection Cover” option is shown as ‘No’ in the the policy. Opposite Party have not been able to make out that the ingress of water in the engine, was in the knowledge of the Complainant, and that even though being in know of ingress of water, he continued to drive the vehicle, causing such an extensive damage to its engine.
We have perused the insurance policy issued by the opposite party-company to the complainant. The said policy while covering damage due to flood, cyclone, hailstorm, etc., does not exclude the loss to the vehicle due to hydro static lock. In the absence of such exclusion, the insurance company will have to reimburse cost of repair of the vehicle on account of damage by heavy rains and flooding irrespective of whether the said loss occurred due to hydro static lock or for some other reason. If despite IRDA permitting charging of an extra premium for reimbursement in respect of loss due to hydro static lock the petitioner-company did not charge such a premium, it is only itself to blame for such a situation because the policy issued by it while granting insurance against damage due to flooding, etc., did not exclude the loss/damage to the vehicle on account of the aforesaid reason. Therefore, in our opinion, in a damage of this nature, unless expressly excluded, in the insurance policy, damage to the vehicle on account of hydro static lock would also be covered for the purpose of reimbursement. For this reason alone the opposite party -company must necessarily fail.
In view of the above referred pronouncement of this Commission, the damage to the engine of the vehicle is covered by the insurance policy even without the complainant having taken an additional cover for damage due to hydrostatic lock."
We note that the complainant is taking a private car enhancement Cover Policy from the opposite party. It is pertinent to note that admittedly as per the Surveyor's report the repair charges would became Rs.1,91,267/-. The insurance company was duty bound to pay the amount to the Complainant. But, the Insurance Co. instead of reimbursing the repair charges, repudiated the genuine claim. In our considered view, such unjustified repudiation of the claim by opposite party Insurance Company is deficiency in service by which the complainant suffered harassment and mental agony and was unnecessarily dragged to this litigation To achieve the ends of justice, the Insurance co. is directed to pay Rs.1,91,267/- to the complainant.
In the light of above observations, we are of the concerted view that the opposite party is found deficient in giving proper service to the complainant. Hence, the present complaint of the complainant deserves to succeed against the Opposite Party and the same is allowed. The opposite party is directed, to:-
[a] To refund the amount of Rs.1,91,267/- to the complainant.
[b] To pay Rs.25,000/- on account of deficiency in service and causing mental and physical harassment to the Complainant;
[c] To pay Rs.3,000/- as cost of litigation.
Order shall be complied within 30 days from the date of receipt of the copy of this order, failing which the award amount will carry 9% interest till the date of realization.
Pronounced in the Open Commission on this the 30th day of March, 2023.
Sri. Manulal.V.S, President sd/-
Smt.Bindhu.R, Member sd/-
Sri. K.M. Anto, Member sd/-
Appendix
Exhibits marked from the side of complainant.
A1- Copy of the letter from the New India Assurance Co.Ltd, dated 23.09.2020.
A2- Copy of tax invoice of Crystal Cars Pvt Ltd
Exhibits marked from the side of opposite party.
B1- Copy of policy schedule cum certificate of insurance issued by the New India Assurance Co.Ltd.
B2- Copy of motor survey report dated 28.08.2020, signed by K.J.Philip, Chartered Engineer.
B3- Motor Claim form of the New India Assurance Co.Ltd
B4- Copy of estimate issued from Crystal Cars Pvt Ltd
Sworn statement from the side of the opposite party.
DW1 - K.J.Philip, S/o K.P.John, Kaduthodil House, Muttambalam, Kottayam.
By order
sd/-
Assistant Registrar
