Tamil Nadu

North Chennai

CC/388/2018

R.PremKumar, - Complainant(s)

Versus

The New India assurance Company Ltd.,& others - Opp.Party(s)

M.Gomathi& others

02 Dec 2021

ORDER

 

                                                                     Complaint presented on : 30.07.2012

                                                                         Date of disposal            : 02.12.2021

                                                                                  

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,

CHENNAI (NORTH)

@ 2^ND Floor, T.N.P.S.C. Road, V.O.C. Nagar, Park Town, Chennai – 600 003.

 

                PRESENT: THIRU. J. JUSTIN DAVID, M.A., M.L.                    : PRESIDENT

                        THIRU. S. BALASUBRAMANIAN, M.A., M.L.          : MEMBER

 

C.C. No.388/2018

 

DATED THIS THURSDAY THE 02^nd DAY OF DECEMBER 2021

                                

R.Premkumar,

Plot No.980, Dr.Lakshmanaswamy Road,

K.K.Nagar, Chennai – 600 078.

 

                                                                                               …..Complainant

 ..Vs..

1.The New India Assurance Company Limited

Claims Hub Chennai,

Rep. by its Chairman & Managing Director,

Macmillan House, 2^nd Floor,

No.21, Pattulos Road,

B Wing, Anna Salai,

Chennai – 600 002.

 

2. Capital Honda – Aadit Auto Company Private Limited,

Rep. by its Chairman & Managing Director,

No 18, GST Road,

Opp. to A.A.I Cargo Terminal,

•  

Chennai – 600 027.

 

.....Opposite Parties

Counsel for Complainant                   : M/s. M.Gomathi and another

Counsel for  1^st opposite party             : M/s.S.Manohar, Mrs.Elveera Ravindran

Counsel for 2^nd opposite party              : M/s.S.V.Udayakumar and another

 

ORDER

 

THIRU. J. JUSTIN DAVID, PRESIDENT

          This complaint has been filed by the complainant against the opposite parties under section 12 of the Consumer Protection Act, 1986 prays to pay a sum of  Rs.2,42,418/- towards the insurance claim of the complainant by 1^st opposite party, to pay interest at the rate of 24% per annum by 1^st opposite party, to pay a sum of Rs.5,00,000/- towards compensation for the harassment, inconvenience, frustration and the mental agony by 1^st opposite party to pay a sum of Rs.10,000/- towards the cost of the complaint by 1^st oppoite party and to declare condition 4 of the Insurance Policy is illegal.

This complaint was originally filed before the District Commission, Chennai (South) and taken on file in C.C. No. 169/2012.  Thereafter, the said complaint has been transferred to this Commission as per the proceedings of the Hon’ble  S.C.D.R.C. and taken on file as C.C. No.388/2018.

1.THE COMPLAINT IN BRIEF:

          The complainant is the owner of a Honda City Car bearing registration No.TN-09 AX 4380. The said car was insured with the 1^st opposite party company  with valid insurance covering the period from 30.05.2011 till 29.05.2012 under the policy  No.71040531110100000272. On 21.08.2011 while driving his aforesaid car around 9.00 p.m from Kundrathurwhere he had gone for some personal work, to Porur on the way back home, it was raining and since the roads were flooded, the complainant could not make out the potholes on the road and his vehicle happened to get into and out of one such pothole.  The complainant  could not stop the car  after travelling a short distance of may be about 200 meters. The complainant checked what had happened and since he could not find any visible damage to the car, tried to start the car and proceed. Despite the complainant’s attempts the car could not be restarted. The complainant presumed it was a battery failure and again tried his best to restart by pushing the car with the help of people passing by, but could not succeed. The entire attempts to restart the car was in vain and the complainant contacted the helpline service of 2^nd opposite party (for Honda car services) by dialing the help line number. After waiting for 1 hour, two mechanics from the 2^nd opposite party came with a spare battery since they also presumed it could be a case of battery failure based on the narration of the symptom by the complainant. They also tried their best to restart the car by replacing the new spare battery. Thereafter the engine oil was checked by the said mechanic and they found that the engine oil tank was completely empty. They advised the complainant to buy engine oil so that the car could be restarted after replenishing the engine oil tank and found engine oil tank was damaged. On 22.08.2011 the complainant’s car was booked for repairs with the 1^st respondent viz Honda Car service of Capital Honda – Audit Company Private Limited at No.18, GST Road, Meenambakkam, Chennai – 600 027. On 22.08.2011 the complainant’s car was taken by a Recovery Service of 2^nd opposite party from K.K.Nagar to Honda car service centre at Capital Honda at No.18, GST Road, Meenambakkam, Chennai 600 027. The surveyor of the 2^nd opposite party also surveyed the engine related damages. After the above survey, the 2^nd opposite party gave an estimate for engine related works and repairs. The engine related works was completed by 2^nd opposite party on 05.11.2011 by replacing various parts and raised a bill for a sum of Rs.2,51,418/- towards the said repairs on the complainant car. The complainant made the said payments on 05.11.2011 to the 2^nd opposite party and took delivery of the car.  The complainant on 09.11.2011 sent a claim letter detailing the above events to the 2^nd opposite party and made a claim for Rs.2,51,418/- being the actual expenses incurred by him. The 1^st opposite party on 18.11.2011 sent a cheque for Rs.9,000/- towards the claim of the complainant strangely, the 1^st opposite party letter did not assign any reason or details for settling a meager  amount of Rs.9,000/- as against the claimant’s claim of Rs.2,51,418/- , which in itself amounts to deficiency of service. The 1^st opposite party restricted his liabilityonly to oil sump for Rs.9,000/- and disallowed the balance claim which is baseless, unsustainable and unreasonable. The said act of the 1^st opposite party confining its liability only to oil tank is unfair arbitrary and improper. The 1^st opposite party ought not to have turned down a genuine claim by the complainant under such frivolous and untenable  grounds which clearly amounts to deficiency in service by the 1^st opposite party and is a clear case of unfair trade practice.

2.WRITTENVERSION FILED BY THE 1^st OPPOSITE PARTY IN BRIEF:

The Complainant’s ownership and insurance coverage with this opposite party relating the Honda City car bearing Registration No.TN-09-AX-4380 are admitted.The complainant had travelled a long distance before checking the damages.  The complainant availed the services of 2^nd opposite party and it was found that engine oil tank was damaged and that it was not retaining the oil poured in.  Hence, as a prudent uninsured owner of the car, the complainant ought to have allowed the vehicle to be towed by 2^nd opposite party’s helpline service.  Instead, the complainant had taken the vehicle home and allowed the vehicle to suffer further damages and let the vehicle for repairs only the next day.The complainant, instead of not allowing the vehicle to be towed by the 2^ndoppoite party, took the vehicle on his own to his house, thereby aggravating the damages to the vehicle, resulting in damages to the engine and other parts of the vehicle resulting in seizure of the vehicle.  Except the damage to the engine oil tank, all other damages are consequent damages occurred only due to the carelessness of the complainant in not stopping the vehicle at the accident spot and towing it to the workshop.  Had it been done, the complainant could have avoided all further damages to the vehicle.  As per condition 4 of the policy, the complainant was required to “take all reasonable steps to safeguard the vehicle from loss or damage and to maintain it in efficient condition….and if the vehicle was driven before necessary repairs are effected, any extension of the damage or further damage to the vehicle shall be entirely at the insured’s own risk”.The opposite party immediately on receipt of information regarding the accident appointed an independent surveyor Mr.A.R.Ramesh, inspected the damaged vehicle on 24-08-2011 and submitted his survey report on 12-09-2011, certifying the damage to the Pan Assembly oil and Packing Oil Pan (LQ) and assessed the value of such Rs.8,095-73, after providing for necessary depreciation. The another independent surveyors M/s.Simax Surveyors, inspected the repaired vehicle, submitted their final report dated 11-11-2011 on 14-11-2011.  Hence, the opposite party could not decide the claim before receipt of the final survey report, which was mandatory. The second surveyor also opined that the damage to Oil Pan Assembly and Gasket Kit Block alone are required to be replaced and assessed the value of spares and labour charges at 10,509/-.  On receipt of such survey reports, this opposite party worked out their liability as per the survey report at Rs.9,000/- after providing for depreciation and sent a cheque for Rs.9,000/- by their letter dated 18-11-2011.  Hence, there was no delay whatsoever on the part of this opposite party in setting the claim.The settlement made by the complainant is in accordance with the terms and conditions of the policy and the facts as per the claim form.  Hence, there was no deficiency of service whatsoever on the part of the complainant.There is no evidence to show that the 2^nd opposite party declined to take the vehicle on the date of accident on 21.08.2012 or that the complainant’s vehicle was towed by a taxi to his house.This opposite party as per Sec.64-UM of Insurance Act only after independent surveyors inspected the vehicle-one such survey, immediately after the damages and the other after carrying out the repairs and only on their advices the insurers-1^st opposite party can decide the claim.The alleged damages to the vehicle except the damage to engine sump were not covered  by the terms and conditions of the policy and the complainant has driven the vehicle after the accident damage to engine oil sump, causing further damages to engine and other parts, which as an uninsured owner of the vehicle failed to avoid.This Hon’ble Forum may be pleased to dismiss the above dispute.

3.WRITTENVERSION FILED BY THE 2^nd  OPPOSITE PARTY IN BRIEF:

This opposite party had sent their staff to meticulously advise the complainant and had assisted the complainant to remove the said vehicle. The said vehicle was entrusted with them to carry out the repairs as the said vehicle had sustained due to external impact as per the  survey report the repairs were carried out with utmost care on concurrence of the complainant and the rest of averments are matter of record and this opposite party has no say on the same and the said vehicle was delivered as schedule to the utmost satisfaction of the complainant herein.  This opposite party had extended meticulous care on the complainant’s vehicle. This party had been implicated as formal party this opposite party further reiterates that they had carried out the repairs required by the complainant and as per the survey report requirements. Hon’ble Forum may be pleased to dismiss this complaint.      

 

 

4. POINTS FOR CONSIDERATION:

1.Whether  there is deficiency in service on the part of opposite parties?

2. Whether the 1^st opposite party this liable to pay Rs.2,42,418/- being the      

     balance insurance claim to the   complainant with interest?

 

3.Whether the complainant is entitled for compensation and cost?

4. Whether the complainant  entitled for the relief as claimed in prayer No:5  

     of the complaint?

 

5. To what other relief, the complainant is entitled?

5. POINT NO: 1 & 2

           The complainant is the owner of Honda City Car bearing  Registration No.TN09AX4380. The said car was insured with the 1^st opposite party company with valid insurance coverage for the period from 30.05.2011  to 29.05.2012  under policy No.71040531110100000272.  Ex.A1 is the  copy of insurance policy issued by the 1^st opposite party covering period from 30.05.2011 to 29.05.2012. Therefore the complainant being the owner of the Honda City Car bearing registration No.TN09AX4380 having valid package insurance policy coverage from 30.05.2011 to 29.05.2012.

          06. The complainant car met with an accident on 21.08.2011  at about 9.00 p.m  on the way from Kundrathur to Porur and thereby the complainant’s car got damaged. Thereafter on 22.08.2011  the 2^nd opposite party took the car from complainant’s resident to Honda Car Service Centre at Meenambakkam Chennai -27.  The complainant also informed the 1^st opposite party about the accident and surveyor of the 1^st opposite party assessed the damages of the complainant vehicle on 22.08.2011 at the 2^nd opposite party service centre. The 2^nd opposite party also furnished an estimate for engine related works and repair after the survey done by the 1^st opposite party surveyor. Ex.A4 is the copy of estimate issued by the 2^nd opposite party regarding vehicle registration No.TN09AX4380 dated 06.09.2011. The complainant on 09.09.2011 sent a letter to the 1^st opposite party along with the copy of estimate and  copy of insurance policy. Ex.A6 is the copy of letter dated 09.09.2011 written by the complainant to the 1^st opposite party. In the letter the complainant stated as follows.

This refers to the subject mentioned car that met with an accident on 21.08.2011 (Night) near Porur and subsequently on 22.08.2011 the car was booked for repairs at Honda car service of Capital Honda – Aadit Auto Company Private Limited at No.18,G.S.T Road, Meenambakkam, Chennai – 600 027. In this connection the damages were assessed by your surveyor Mr.A.R.Ramesh on 22.08.2011 at the Capital Honda – Aadit Auto Company Private Limited at No.18, G.S.T. Road, Meenambakkam, Chennai – 600 027. Later the said surveyor also had surveyed the engine related  damages. Pursuant to that I am in receipt of the estimate for works related for repairs from the above referred Capital Hondaservice and the same is attached for your kind reference and processing.

     07. The 2^nd opposite party completed the engine related works of the complainant vehicle  by replacing various parts  and raised  bill for Rs.2,51,418/-. The complainant paid the said amount to the 2^nd opposite party on 05.11.2011 and took delivery of the car. Ex.A8 is the payment receipt issued by 2^nd opposite party in the name of complainant. As per Ex.A8 the complainant paid a sum of Rs.2,51,418/- to the 2^nd opposite party on 05.11.2011 and took delivery of the car.  Then on  09.11.2011  the complainant had sent a claim letter enclosing original invoice and payment receipt issued by the 2^nd opposite party and made a claim of Rs.2,51,418/-  to the 1^st opposite party. Ex.A9 is the copy of the letter dated 09.11.2011. The 1^st opposite party after receipt of Ex.A9 letter issued a cheque for 9,000/- to the complainant on 18.11.2011. Ex.A10 is copy of cheque for Rs.9,000/- and Ex.A11 is  the copy of covering letter. Thereafter on 07.12.2011 the complainant written a letter to the 1^st opposite party claiming the remaining amount of Rs.2,42,418/-. Ex.A12 is copy of letter dated  07.12.2011. The 1^st opposite party  sent a reply on 09.12.2011 stating that the insurance company arrived their liability for Rs.9,000/-. In Ex.A3 1^st opposite party stated  as follows:

    We now acknowledge receipt of your letter dated  07.12.2011 and note that you have received our cheque for Rs.9,000/- we would like to give details as below as to how the liability was arrived.

          The surveyor observed that the oil sump was broken due to the hit by which entire oil drained. If the vehicle stopped then and there and attended the accident jobs, there would not be any further damages such as seizure of the engine which leads to replacement of engine items.

 As per the insurance policy condition no.4 reads

The insured shall take all reasonable steps to safeguard the vehicle loss or damage and to maintain it in efficient …. Andif the vehicle be driven before the necessary repairs are effected only extension of the damage or any further damage to the vehicle shall be entirely at the insured’s own risk*

      In view of above the liability had been restricted to Oil Sump   and disallowing the subsequent damages.

08. Therefore, in this complaint this commission has to decide whether the complainant violated the insurance policy condition No.4.  The complainant’s car met with an accident on 21.08.2011   at about 9.pm.. At the time accident it was rainy and the road were flooded. The complainant could not make out the potholes on the road and complainant vehicle get in to one such pothole. There was heavy traffic on the either side of  the road and there was no place to park the vehicle  and therefore the complainant drove the car for a distance of 200 mtrs and find a place there was no floodwaters so that the complainant can examine the car. On examination the complainant found that the engine oil tank was damaged and therefore the complainant with the help a tax driver  tow the complainant’s car from Porur to K.K. Nagar at about 11.30 p.m in the night itself. On 22.08.2011  the complainant car was taken by the 1^st opposite party for repair. The above averment made by the complainant clearly proves that the complainant has taken all reasonable steps to safe guard the vehicle from further loss or damages. The accident took place because of the flood water logging on the road . The accident is not due to the negligent act of the complainant. Immediately after the accident, since there is traffic jam, road also flooded and there is no place for parking on the side of the road, the complainant drove the car for 200 meters and stop on the side of the road and examine the car. On examination the complainant found the engine of the car damaged an the engine oil also drained from the oil tank. Therefore the complainant with help of the tax driver tow the vehicle from Porur (Accident Place) to K.K.Nagar (His Residence).  The accident took place at 09.p.m during night hours and the tax driver came to the place at about 11.00 p.m  and thereafter the complainant towed the vehicle to his house. Further the 2^nd  opposite party service centre might be closed during night hours. The complainant immediately after the accident informed the 2^nd opposite party  for help line service. Two mechanism from 2^nd opposite party came to the place and examine the vehicle and found engine oil was empty. The mechanic unable start the vehicle. Therefore the complainant has taken all reasonable steps to safeguard  the vehicle from further loss or damage. The complainant has not violated the insurance policy condition No.4. Under these circumstances the restriction of insurance claim at Rs.9,000/- is unreasonable.

09. The complainant paid a total sum of Rs.2,51,418/- to the 1^st opposite party towards repairing the vehicle which was damaged due to road accident. But 1^st opposite party paid only Rs.9,000/-. The 1^st opposite party has to pay the genuine claim of the complainant. The 1^st opposite party restricted the claim for Rs.9000 which is baseless, unsustainable and unreasonable and the same amounts to deficiency in service. Under these circumstances there is deficiency of the service on the part of the 1^st opposite party and 1^st opposite party liable to pay the balance claim amount of Rs.2,42,418/- to the complainant.

10. POINT NO:3

The complainant has taken package insurance policy to his car from the 1^st opposite party. The said car met with an accident on 21.08.2011  and got damaged. The 2^nd opposite party repaired the car and claimed Rs.2,51,418/-. The 1^st opposite party paid Rs.9,000/- only. The remaining amount paid by the complainant to the 2^nd opposite party took delivery of the car. The 1^st opposite party being the insurance company duty bound to  indemnified the cost of damages. But the 1^st opposite party failed their duty and same caused mental agony and financial loss to the complainant. Therefore the complainant is entitled for compensation of Rs.10,000/- and cost of Rs.5,000/-

 

 

11. POINT NO:4

          The complainant  in the complaint No.5  requested this commission the pass an order to declare condition No.4 of the insurance policy illegal. This commission no jurisdiction to grant the said relief. Further the complainant has  not violated the insurance policy condition No.4. Therefore the complainant is  not entitled for the relief as claimed in prayer No.5.

12.POINT NO:5

In the result, this complaint is allowed in part. The 1^st opposite party is ordered to pay a sum of Rs.2,42,418/-(Two lakhs forty two thousand four hundred and eighteen only) being the balance insurance claim payable to the complainant. The 1^st opposite party further ordered to pay a sum of Rs.10,000/-(Ten thousand only) towards compensation for mental agony besides a sum of Rs.5,000/-(Five thousand only) towards cost of this proceedings to the complainant.    

          The above amount shall be paid to the complainant within 2 months from the date of receipt of the copy of this order failing which the above said amount shall carry 9% interest from the date of this order to till the date of payment. This complaint against 2^nd opposite party is dismissed.   

Dictated  by the President to the Assistant taken down, transcribed and computerized by her, corrected by the President and pronounced by us in the open Commission on this the 02^nd  day of  December  2021.

 

MEMBER – I                                                                PRESIDENT

 

LIST OF DOCUMENTS MARKED ON THE SIDE  OF COMPLAINANT:

Ex.A1 dated  04.05.2011                  Car Insurance Policy

Ex.A2 dated 04.05.2011                   Collection Receipt Cum Adjustment Voucher

Ex.A3 dated  NIL                    Standard Form for Private Car Package Policy

Ex.A4 dated 06.09.2011                   Estimation  Charges of 2^nd respondent

Ex.A5 dated 07.09.2011                   E-mail regarding estimation charges

Ex.A6 dated 09.09.2011          1^st Letter sent by the petitioner to the 1^st respondent enclosing estimate of damages

 

Ex.A7 dated 05.11.2011          Invoice of actual expenses by 2^nd respondent

 

Ex.A8 dated 05.11.2011          Payment Receipt issued by 2^nd respondent

 

Ex.A9 dated 09.11.2011          2^nd letter sent by the petitioner to the 1^st respondent enclosing original invoice and payment receipt

 

Ex.A10 dated 16.11.2011        Copy of the cheque sent by 1^st respondent

 

Ex.A11 dated 18.11.2011        Covering letter enclosing the cheque

 

Ex.A12 dated 07.12.2011        3^rd letter sent by the petitioner to the 1^st respondent claiming balance amounts

 

Ex.A13 dated 09.12.2012        Reply by the 1^st respondent to the letter dated 07.12.2011 sent by the complainant

 

LIST OF DOCUMENTS MARKED ON THE SIDE OF 1^st OPPOSITE PARTY:

 

Ex.B1 dated 12.09.2011                   A.R.Ramesh Surveyor to the 1^st opposite party

                                                Intial Survey Report

 

 

Ex.B2 dated 11.11.2011                   M/s.Simax Surveyors to 1^st opposite party

                                                Final Survey Report

 

Ex.B3 dated 15.11.2011                   1^st Opposite party (O.D. claim working sheet)

 

LIST OF DOCUMENTS  MARKED ON THE SIDE OF 2^nd OPPOSITE PARTY:

 

 

                                                ….NIL…

 

 

MEMBER – I                                                               PRESIDENT