| Final Order / Judgement | DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, BATHINDA C.C.No. 91 of 24-4-2019 Decided on : 08-06-2023 M/s Sepal Hotel (P) Ltd., Namdev Nagar, Bathinda (Punjab) through its Auhorized Director Lal Chand Katia aged about 77 years. ........Complainant Versus United India Insurance Co.Ltd., MCB No.Z-2-11786/001, 1st Floor, Natha Singh Tower, 100ft Road, Near Ghore Wala Chowk, Bathinda 151001 through its Divisional Manager. .......Opposite party Complaint under Section 12 of the Consumer Protection Act, 1986 QUORUM Sh. Lalit Mohan Dogra, President Sh. Shivdev Singh, Member Present : For the complainant : Sh. Sahil Bansal, Advocate. For opposite party : Sh. S.M. Goyal, Advocate. ORDER Lalit Mohan Dogra, President The complainant M/s Sepal Hotel (P) Ltd., (here-in-after referred to as complainant) has filed this complaint U/s 12 of Consumer Protection Act, 1986, ( Now C.P. Act, 2019 here-in after referred to as 'Act') through its Authorized Director Lal Chand Katia, before this forum (Now Commission) against United India Insurance Company Limited (here-in-after referred to as opposite party). Briefly stated, the case of the complainant is that the complainant firm is the registered owner of Car No. PB-03-P-0007 and the opposite party issued the policy of insurance vide Certificate No.2004003117P118350709 w.e.f. 29.03.2018 to 28.03.2019. The said insurance is comprehensively insurance and opposite party charged Rs.18,954/- from the complainant. It is alleged that on 27.09.2018, Vanish Katia was going from Mohali to Sirhind near Railway bridge on vehicle No.PB-03-P-0007 but due to heavy rain, the Car Engine was stopped in the water standing on the road. The complainant immediately with the help of public by pushing the Car manually without starting pull out from the water and shifted with Haneet Motor Works, Mohali, with the help of towing vehicle and they charged Rs.2,500/- for towing the vehicle from the spot on the same day. It is alleged that the complainant did not try to start the car when the engine stopped in the heavy rain. The complainant informed the opposite party regarding damage to the car and on intimation, the opposite party appointed Mr. R.P. Singh as Surveyor at Mohali. The surveyor visited the above said Workshop where the estimates prepared, and repair work was started under the supervision of surveyor. The said repairer M/s Haneet Motor Works repaired the vehicle under the supervision of the Surveyor of opposite party and made Bill of Rs.3,09,724/-. The complainant alleged that thereafter complainant visited the office of the opposite party daily to inquire about its claim, but no satisfactory reply given by them. The complainant received letter dated 12.03.2019 vide which the opposite party illegally rejected the claim of the complainant on flimsy grounds with the imaginations and without any reason with false allegation that the loss is consequential loss, as such the same is not payable. The opposite party never supplied any Insurance Policy or its terms and conditions to the complainant till date and moreover No Terms and Conditions attached with the No Claim Letter dated 12.03.2019 under which they rejected the claim of the complainant. It is also alleged that complete Car which includes Engine of the car, is Comprehensively Insured with the opposite party, but under compelling circumstances, complainant spent Rs.3,12,224/- (Rs.3,09,724/- (+) Rs.2,500/-) from his own pocket due to which complainant suffered mental agony and pain for which he claims compensation to the tune of Rs. 50,000/-. The complainant alleged that said loss is not consequential loss as the engine is duly covered and moreover the vehicle was sent to the workshop by towing with another vehicle. On this backdrop of facts, the complainant has prayed for directions to the opposite party to pay claim amount of Rs.3,12,224/- (Rs.3,09,724/- Rs.2,500/-) on account of loss and towing charges, alongwith interest 18% p.a. with damages to the extent of Rs.50,000/- on account of mental agony, pains and Rs. 25,000/- as litigation expenses. Upon notice, opposite party appeared through counsel and contested the complaint by filing written reply raising legal objections that complaint has not been filed by duly authorized and competent person ; Even no memorandum of article, article of association, agenda book, meeting book, resolution book, record showing sending of any such resolution to the ROC has been produced and legally when a litigant conceals such vital records, then also he is not entitled to claim any amount. That complainant has no locus standi to file present complaint. That complaint is bad for non-joinder of necessary parties. That the complainant has no cause of action to file this complaint and this Commission has got no jurisdiction to entertain this complaint. It has been pleaded that the claim was rejected only after getting case duly investigated from competent person and it was found that alleged loss is consequential one and not covered under the policy. Hence when claim was duly scrutinized by competent authority, alleged loss was found to be consequential loss, so question of any deficiency of service, on the part of opposite party, does not arise at all. It has been further pleaded that complainant has concealed true and material facts from this Commission. In fact, rain water has not entered in the car due to constant falling of rain, rather the rain water entered in the car engine, as the car was put and tried to be driven through the stagnated and accumulated heavy rain water, knowingly and intentionally. But when the Car engine stopped working due to entering of water in the engine, the driver made attempts to start it, which caused consequential loss to the engine, which is not natural, but due to the sheer negligence and violation of terms and conditions of insurance policy. The opposite party has pleaded that in claim form, complainant has mentioned that "Vehicle was going from Mohali to Sirhind. Car was near railway bridge and there was water loging due to rain. Our driver could not see it and vehicle went in the water and engine stopped working and could not start." Hence it is very much crystal clear that when rain water entered in the engine of car, attempts were made to start the same and put the engine into ignition, due to which it has been mentioned that the engine could not start, and alleged loss must have been caused, which comes under the definition of consequential loss. It is also added that without making repeated attempts to start, it could not be said that engine could not start. The facility of Engine Protection Cover has been enacted only w.e.f. 26.06.2018, whereas policy of car in question came into operation w.e.f. 29.03.2018, Secondly even said cover is available on two wheelers and private cars upto 5 years of age from the date of registration of vehicle, whereas this car is of 2010 model. So question of providing or purchasing said cover for car in question does not arise at all. Hence nether insured had taken Engine Protection Cover which is an add on cover by paying extra premium nor such cover is available on vehicles more than 5 years old, so alleged loss is not covered under policy in hand. As such, claim was rightly repudiated and not paid by opposite party and legally no liability whatsoever can be fastened upon opposite party in this case. Further legal objections are that the complainant is estopped from the filing this complaint due to his acts, conducts, omission, admissions and acquiescence and that the complaint is false, frivolous, vexatious and has been filed to get wrongful benefit, to harass and humiliate the opposite party. On merits, the opposite party has admitted that as per records the complainant has purchased insurance policy in question for car No.PB-03-P-0007, which was duly supplied to complainant after charging the premium amount mentioned in the same. It has been pleaded that the said policy is subject to specific terms, conditions and exceptions mentioned therein. It has been also pleaded that claim intimation letter dated 01.10.2018 does not find mention any such cause or history or ground of loss to the car in question, nor finds mention the story as to how or what loss was caused to the car or from where, how and under what circumstances who had brought the car to the Haneet Motor Works. The opposite party specifically denied that the driver of complainant did not try even single time to start the car when the engine stopped working, rather it is an admitted case of complainant that driver made attempts after stoppage of engine in the accumulated water. However when the water entered in the engine it was damaged and said damage is consequentia1 loss, which is not covered under the terms and conditions of this policy. The opposite party has admitted that after receiving intimation, the opposite party has appointed Sh R.P. Singh surveyor at Mohali who had visited the spot and also made investigations and enquiries and thereafter he had given final report. However estimate and bills were not prepared in the presence of said surveyor nor repair was started or done under the supervision of said surveyor as alleged. In further reply, the opposite party has reiterated its version as pleaded in legal objections and detailed above. In the end, the opposite party prayed for dismissal of complaint. In support of his complaint, the complainant has tendered into evidence his affidavit dated 24.4.2019 (Ex. C-1) and documents (Ex.C-2 to Ex.C-7). In order to rebut the evidence of complainant, the opposite party has tendered into evidence affidavit of Baldev Singh dated 25.7.2019 and documents (Ex.OP-1/1 to Ex.OP-1/28). The learned counsel for the complainant has argued that car of the complainant is insured with the opposite party vide Ex. C-2 & Ex. C-3 and on 27-9-2018, when Vanish Katia was going from Mohali to Sirhind on the said car, near Railway bridge, due to heavy rain, engine of the car stopped in the water standing on the road. It is further argued that complainant immediately brought the car out of water with the help of public by pushing the car without starting it. The car was taken to M/s. Haneet Motor Work, Mohali, for repair and on intimation, Mr. R P Singh, surveyor was deputed by the opposite party to assess the loss. However, opposite party repudiated the claim of the complainant illegally, arbitrarily on the basis of report of surveyor, which amounts to deficiency in service. To support his submissions, learned counsel for the complainant has placed reliance on :- i) Case titled Tata AIG General Insurance Co. Ltd., Vs. Dr. Navneet Agnihotri & Ors 1(2022)CPJ 223 (NC)
ii) Case titled Hyundai Motors India Ltd., Vs. Rupranjan Das & Ors IV(2021) CPJ 181 (Odi) iii) First Appeal No. 799 of 2019 case titled United India Insurance Co. Vs. Shilfali decided on 22-01-2020 by Hon'ble State Commission, Punjab, Chandigarh. On the other hand, learned counsel for the opposite party has argued that opposite party has deputed the surveyor to assess the loss. However, the surveyor has given his report that when the car engine stopped working due to entering water in the engine, driver made attempts to start the car, which caused consequential loss to the engine which is not natural but due to sheer negligence and violation of terms and conditions of the policy of insurance. It is further argued that since consequential loss is not covered under clause No. 4 'General Exceptions' of the policy Ex. OP-1/4 as such, claim was rightly repudiated. It is further argued that Lal Chand Katia has no authority to file the present complaint and as such, complaint should be dismissed on this short ground. It is further argued by learned counsel for the opposite party that as per Circulars Ex. OP-1/2 & Ex. OP-1/3, complainant had not obtained add-on cover in respect of engine and gear box protection and as such, there is no deficiency in service on the part of the opposite party and has prayed for dismissal of complaint. We have heard learned counsel for the parties and gone through the record. It is admitted fact that car owned by complainant is fully insured with the opposite party vide policy of insurance Ex. C-3. It is further admitted fact that engine of the car got damaged on 27-9-2018 due to heavy rain and the water being having entered in the car. It is further admitted fact that opposite party has repudiated the claim on the basis of loss being consequential and not covered under the policy. We have carefully gone through the record and the report of surveyor Sh. RP Singh dated 25-2-2019 (Ex. OP-1/5). As per this report, surveyor has assessed the loss payable to complainant as Rs. 1,12,772/- after making deduction as per policy, out of total amount of Rs. 3,09,724/- spent by complainant on the repair of the car. A perusal of report shows that damage occurred to the engine as the complainant tried to start the car after engine stopped working after entering the water in it. However, this Commission is of the view that while arriving at the said conclusion, the surveyor has not obtained any independent opinion of the workshop engineer/mechanic who repaired the car or opinion of any independent automobile engineer rather the opinion has been given only on the basis of three words written in the Motor Claim Form i.e. “Could Not Start”. Therefore, this Commission is of the considered opinion that intimation letter are generally written in haste and sometimes even written on the instructions of the surveyor and the workshop manager. As such, opposite party was having no authority to arrive at a conclusion that complainant tried to start the vehicle after engine stopped working. This Commission is of the view that although the report of surveyor cannot be thrown out in its entirety, but the portion of report which is arbitrary and without any reasonable cause, is required to be discarded. Hence, in view of above discussion, it is held that surveyor has exceeded his powers and arrived at aforesaid conclusion without any cogent and convincing evidence and without any expert opinion. As such, the complainant is held entitled to receive Rs. 1,12,772/- as assessed by surveyor. So far as plea of the opposite party regarding applicability of Circulars Ex. OP-1/2 & Ex. OP-1/3 is concerned, the same cannot be held to be applicable as the complainant has paid premium to the opposite party and obtained Private Car Package Policy and engine of the car is also fully covered under the package policy. As such, there was no need for the complainant to obtain add-on cover for engine and gear box. Moreover, it is not the case of opposite party that said circulars were ever intimated to the complainant. As such, case of complainant has nothing to do with the said circulars. Thus, by relying upon the evidence on record, the complainant has fully proved deficiency in service on the part of the opposite party of having repudiated the claim of the complainant vide letter dated 12-3-2019 (Ex. C-7). Accordingly, this complaint is partly allowed and opposite party is directed to pay claim amount of Rs. 1,12,722/- to the complainant as assessed by surveyor as per his report Ex. OP-1/5, with interest @9% p.a. w.e.f 25-2-2019 (date of report of surveyor), till realization. The opposite party is also held liable to pay Rs. 5,000/- as compensation for mental tension and harassment and cost of litigation. The compliance of this order be made by opposite party within 45 days from the date of receipt of copy of this order. The complaint could not be decided within the statutory period due to heavy pendency of cases. Copy of order be sent to the parties concerned free of cost and file be consigned to the record room. Announced:- 08-06-2023 (Lalit Mohan Dogra) President
(Shivdev Singh) Member
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