IN THE CONSUMER DISPUTES REDRESSAL FORUM, ALAPPUZHA
Thursday the 17th day of January, 2019.
Filed on 31-03-2017
Present
1. Sri.E.M. Muhammed Ibrahim,B.A,LLM (President)
2. Smt. Sheela Jacob, B.com,LLB (Member)
In
CC/No.93/2017
between
Complainant:- Opposite party:-
Smt.Rekha.S.Nair, United India Insurance Co.
W/o Saji Nair, Divisional Office,
Arackavadakkethil, Sarada Shopping Complex,
Muthukulam South, Alappuzha.
Kayamkulam, Alappuzha. (By Adv.T.S.Suresh)
(By Adv. K.B.Anilkumar)
O R D E R
SRI.E.M. MUHAMMED IBRAHIM (PRESIDENT-IN-CHARGE)
This case is based on a consumer complaint filed under section 12 of the Consumer Protection Act, 1986.
2. The averments in the complaint in short, are as follows:-
The complainant is the owner of the Honda Civic Car bearing register No.KL/C-4700. The above vehicle insured with the opposite party vide policy number 1015843115P109028361 with effect from 11/01/2015 to 10/01/2016. On 16.07.2016 at about 5.30 pm the complainant’s husband driving the vehicle through water lodged area of the Moolathara road near Kayamkulam KPSC Junction, the engine of the car was damaged. Immediately the complainant’s husband informed the same to the branch office of the opposite party at Harippad and as per the direction from the opposite party, the car was taken to the authorized workshop of the Honda at Palace Automobiles Kayamkulam. Immediately the complainant filed a claim before the opposite party stating the estimate for an amount Rs.4,30,956/- along with all relevant documents. After a week, the opposite party deputed a surveyor and he made inspection on several time. Finally the complainant claimed an amount of Rs.1,92,451/- as per the final bill issued from the workshop. The complainant is entitled to get that amount from the opposite party. But the opposite party issued a letter dated 01.03.2017 stating that the above claim of the complainant was repudiated. Hence the complaint.
3. The opposite party resisted the complaint by filing a detailed written version raising the following contentions :-
The complainant is not maintainable either in law or on facts. However the opposite party would admit the insurance policy in respect of the car owned by the complainant. The policy number date of taking policy and end of the policy cover IDV etc are also admitted. However the opposite party would denied all the allegations in the complaint. According to the opposite party the allegation that on 16-7-2016 at about 5.30 pm water entered in to the engine complaint happened the above car due to the entry of water is incorrect. There was no rain water logging at the area of the accidental place. There is no chance of rain water collection at the spot as alleged. There is clear drainage facility on both sides of the road and rain water flowing freely to the drainage without any obstruction and therefore there is no chance of collection rain water at this spot. The repudiation of the claim by the opposite party is legal and proper. On 21-7-2016 the complainant submitted on damage claim before the opposite party and the same day the opposite party deputed a surveyor and after necessary investigation the vehicle surveyor submitted his report stating that the cause of engine complaint stated at the claim is not consistent with surveyor report. The possibility of water logging in accident area is ruled out in the survey report. It is further contented that on investigation revealed that the vehicle has been used by the complainant for a long time and it was laying somewhere stagnant water logged area unattended without oil exposed to rain and sun hence the vehicle fully covered with rest. The surveyor could not notice any symptom of water in the engine the cause of accident was not seem relevant with damages found on the vehicle. Engine oil was seen completely drainged out and oil was not made available for service examination. Engine air filter chamber and filter element was seen dried condition and there is no symptom of water entry in the engine and allied system. The nature of engine seizure seemed have happened due to the starvation of coolant and bend on connecting roads might have occurred during the subsequent cranking of seized engine. Engine oil seen as a mechanical breakdown are not to be treated as accident of flood related failure. Damages caused to the vehicle is not by any accidental the external basis but only a mechanical breakdown which is excluded under the policy as per 2(a) under Sec.1 of the policy issued to the vehicle. Hence the claim has been repudiated. The further contented that the running kilometer of last service of the vehicle on 8-7-2015 was 47,175 and running kilometer shown on the vehicle on 2-8-2016 is 50,125 for the last 13 months preceding the alleged accident the vehicle was used only 2950 kilometers. Hence it is clear that the vehicle was unattended for the last 13 months. There is no illegal acts, fraud, misrepresentation and fault play and there is no deficiency in service on the part of the opposite party as alleged. The complainant approached the forum with unclean facts with suppressing material facts. If the claim is genuine the amount liable to be paid Rs.30,000/-. Complainant is not entitled to get any relief as prayed for.
4. In view of the above pleadings the points that arise for consideration are:-
1) Whether the repudiation of the claim in respect of the complainant’s vehicle bearing No.KL/C-4700 is legal and proper.
2) Whether there is any deficiency in service or unfair trade practice on the part of the insurance company.
3) Reliefs and costs.
5. Evidence on the side of the complainant is the oral evidence of PW1 to PW3 and Ext.A1 to A7 documents. The opposite party has examined the surveyor as RW1 and got marked as Ext.B1 to Ext.B3 out of which Ext.B3 as marked as subject proof. Heard both sides. The learned counsel for appearing for both sides are notes of arguments.
Point No. 1& 2
For avoiding repetition of discussion of materials these 3 points are considered together. Admittedly the complainant is the owner of the car bearing number KL/C-4700 and it was insured with the opposite party who issued policy number 1015843115P109028361 and the policy was valid as on the date of the alleged accident. The complainant has been filed by a lady by a name Rekha S. Nair but her husband by virtue of Ext.A1 Power of Attorney as examined as PW1. The oral evidence of PW1 would indicate that he was the husband of the complainant and using the vehicle at the time of alleged accident. According to the PW1 on 16-7-2016 at about 5.30 pm while the complainant’s husband was driving the vehicle through water logged area of the Moolathara road near Kayamkulam KPSC Junction. The engine of the car was damaged immediately the complainant is suspend informed to the same to the branch office of the opposite party at Harippad and as directed by the opposite party the car was taken to the authorized workshop of the Honda at Palace Automobiles Kayamkulam. There after the complainant filed a claim before the opposite party stating the estimate for an amount of Rs.4,30,956/-along with relevant documents. After 1 week only the opposite party deputed a surveyor who made inspection of several times. However the petition claimed at amount of Rs.1,92,451/- as per final bill issued from the workshop. The complainant is entitled to get the amount claimed from the opposite party. But the opposite party repudiated the claim by issuing repudiation letter dated 1-3-2017. According to the complainant the repudiation of the claim is not legal or proper and she is entitled to get amount claimed and the denied of the claim by the insurance company amount to deficiency in service. He would further admit that 08-07-2015 the running km was 47175 but on 2-8-2016 the running KM was 50125. It is also brought out in evidence that the complainant is a lady and she was not using the vehicle and PW1 is none other than her husband who is employed at Bombay used by the vehicle when she came to his native place only. According to the PW1 he used to come to his native place on all months. The definite contention of the opposite party is that the accident occurred non due to the incident alleged by the complainant on due to the mechanical defect of the vehicle for which the insurance company is not liable to pay the claim. It is the further contention of the opposite party is that the incident has happened due to the starvation of the lubricating oil coolant and bent on connecting rods might have occurred during the subsequent franking of engine failure sealed as mechanical breakdown and not to be treated as accident or flood related failure. It is true that PW1 and PW2 have uniformly depose before court that the place of the alleged accident is a water logged area at the road but it is brought out in evidence that is drainage facility at one side of the road. There is no chance of having any excessive water at the public road when there is a drainage facility on one side of the road. There is a chance of occurring the incident as alleged the complaint is removed. There is no expert evidence to prove that the defect found on the vehicle belongs to the complainant has happened has claimed in the complainant at the same time.
The opposite party has examined the surveyor who proves Ext.B1 survey report. RW1 has noted the particulars of loss of water damaged in the vehicle belongs to the complainant involved in the alleged accident whether it is written that engine transmission fuel cooling exhaust systems. Engine was seized and on stripping second and third connecting rods find bent requiring the replacement of this connecting rods and related components for which he has a estimated and amount of Rs.30,000.45/- including labour charges, depreciation, salvage value etc. According to him the amount payable for the claim is 30,415/-. In view of the oral evidence of RW1 coupled with Ext.B1 report it is clear that on his investigation it was revealed that oil was removed from the engine immediately before the survey and that the oil was not shown to him. Therefore according to RW1 the damage was caused not due to the entry of water in the engine but due to oil starvation. He has also directed the insurance company to depute the investigator. Accordingly the insurance company has deputed the investigator who in the presence of insured and driver verified the place of occurrence and filed his report stating that there was no chance of having water logged at the place of occurrence and hence there is no chance of any entry of water in to the engine. According to RW1 oil starvation and coolant starvation are the reason for the breakdown of the vehicle. In spite of lengthy cross examination nothing material has been brought out in evidence to disbelieve the oral evidence of RW1 and Ext.B1 survey report. Under the head cause of accident in Ext.B1 report it is stated that as per the claim the insured suspected that water was entered into the vehicle while driving on a rainy day through the slight water logged on the pocket road in between the compound walls but it is not relevant with the damages of the vehicle. The insured is not sure of the accident and during survey no symptom of water entry noticed in to the engine. Under details of estimate submitted in survey, 2nd paragraph it is stated that during the first day of survey engine oil of vehicle was seen completely drained out prior to survey and that oil was not made available for our examination. Engine, air filter chamber and filter element was seen in a dried condition and thereby no symptom of water entry into the engine and allied system. Battery was not made available in the vehicle and there by monometer reading could not be noticed. More over insured is having only suspicion regarding water entry and not sure about it. In view of the above report 2 aspects are crystal clear. The 1st aspect is that even as per the claim form the complainant is not sure of the cause of the breakdown of the vehicle. He has been suspecting the water entry into the engine but the engine oil was completely drained out just before the surveyor inspecting the vehicle if water was entered into the engine the engine oil will be mixed with water and if that be so drained out oil can be verified and can be ascertained whether water was entered into the engine and mixed with the oil. But it is brought out in evidence that the complainant had drained out the engine oil and also not made available drained out oil for verification. Though these aspects have been mentioned in Ext.B1 report the same was not challenged by the learned counsel for the complainant. In short the non availability of engine oil and non finding any symptom of entry of water into the engine and non availability of coolant etc would clearly indicate that the breakdown of the vehicle was not due to the accident but it was due to the starvation of lubricating oil and coolant and bent on connecting roads might have occurred during the subsequent cranking of seized oil and therefore the engine failure may be the result of mechanical breakdown and cannot be treated as accident and flood related failure as point out in Ext.B1 report. It is also brought out in evidence that insurance policy in respect of the vehicle does not cover any such mechanical breakdown. In the circumstances it is clear that the opposite party insurance company has rightly repudiated the claim. In the light of the above report it is crystal clear that the claim of the complainant for repairing the damaged car is highly excessive and exorbitant as contented by opposite party. However as it is brought out in evidence that the policy does not cover the mechanical breakdown of the vehicle the opposite party insurance company is not liable to compensate the loss caused due to the complainant’s vehicle. In the circumstance we have no hesitation to hold that the complainant is not liable to get any amount from the insurance company since the repudiation of the claim is legal and proper. The points answered accordingly.
Point No.3
In view of my finding with regard to point No.1 and 2 the compliant is only to be dismissed.
In the result the complaint stands dismissed. No costs.
Dictated to the Confidential Assistant, transcribed by her corrected by me and pronounced in open Forum on this the 17th day of January, 2019.
Sd/- Sri.E.M. Muhammed Ibrahim (President)
Sd/-Smt. Sheela Jacob (Member)
Appendix:-
Evidence of the complainant:-
PW1 - Saji.R (Witness)
PW2 - Bhasuran (Witness)
PW3 - Anoop.M (Witness)
Ext.A1 - Power of Attorney
Ext.A2 - Copy of Insurance Policy
Ext.A3 - Copy of Registration Certificate
Ext.A4 - Letter dtd 01.03.2017
Ext.A5 - Work Bill
Ext.A6 - Certificate from Honda Palace Automobiles Pvt.Ltd
Ext.A7 - Copy of ID Card
Evidence of the opposite parties:-
RW1 - V.N.Sivan Pillai (witness)
Ext.B1 - Motor Survey Report
Ext.B2 - Copy of Policy and Condition
Ext.B3 - Photograph
// True Copy //
To
Complainant/Oppo. party/S.F.
By Order
Senior Superintendent
Typed by:- Sa/-
Compared by:-
