SMT. RAVI SUSHA : PRESIDENT
Complainant filed this complaint U/S 12 of Consumer Protection Act 1986 seeking to get an order directing opposite parties to pay an amount of Rs.108581/- towards the damages and loss and Rs.5,00,000/- towards compensation to the complainant for the deficiency of service of the OPs.
The complainant’s case in brief is that the complainant is the owner of the bus bearing No.KL 58R711 with the make of Ashok Leyland limited. As he got several other buses plying in and around Kannur. On 16/8/2018 the above said vehicle was trapped in flood due to the heavy rain during the worst effected flood all over Kerala while the vehicle was plying during the daily route from Chandanakkampara to Kannur at Podikkalam and the vehicle was pulled by locals there from the trap since the water was heavy on the road the vehicle was mechanically damaged. Since the vehicle was damaged the complainant submitted a claim petition by all the original documents and bills showing the damages caused to the vehicle as directed by 3rd OP. The complainant submits that later in the month of October 2018 he received a letter from 2nd OP that the claim petition was closed as the complainant has not complied with the required peoples and documents by sending repeated reminders and the other reason is that the complainant has sent an undated consent letter to 2nd OP that he had withdrawn his claim and lastly one reason shown that perils not covered. All the reasons shown in the letter to close the claim petition preferred by the complainant is utter falsehood. So the act done by the OP is the clear cut violation of the terms between the complainant and OPs and so the act of the OPs amount to breach of trust, cheating as well as deficiency of service . The complainant submits that the total damages caused to the vehicle amounts to Rs.1,08,581/- apart from the other damages caused to the complainant. On 29/11/2018 , the complainant sent the lawyer notice to OPs, they received the notice but not sent any reply till date. Hence this complaint.
After receiving notices, OPs entered appearance through counsel and filed written version. The OPs admitted that the bus KL-58/R 711 owned by the complainant was insured by the OPs for the period from 1/1/2018 to 14/9/201, but on 16/8/2018 the above vehicle was trapped in flood due to the heavy rain all over Kerala is false. The driver had taken the bus through the flooded road knowing well that the water level is high and he cannot proceed through the said route. Since the vehicle was driven through the flooded road, water entered the engine through the intake system of the engine. Since the engine was again started after the vehicle was stopped, the engine failed. Since this peril is not covered under the policy, the question of settling the claim does not arise. The complainant intimated the damage caused to the bus. Immediately on receipt of the intimation, OP availed the services of an independent surveyor and he inspected the vehicle and submitted his report. The complainant started the work before the inspection of the surveyor against the terms and conditions of the policy. As per the complainant , the damage to the vehicle was caused since flood water entered the engine of the bus while on its regular trip. As per the report of the surveyor, water entered the engine since the vehicle was driven through the flooded water and the damage was caused to the engine assembly since the vehicle was again started after the vehicle was stopped, and since this peril is not covered under the policy, the claim was repudiated. He further reported that damage caused to the engine parts does not tally with the reported cause. The engine parts were badly damaged due to ordinary wear and tear, which is excluded under the terms and conditions of the policy. He assessed the repair charges for the information of the OP a total amount of Rs.40,222.84 as total spare parts cost and Rs.16,000/- as total labour charge and thus the total repair charge Rs.56,423/-. The OPs are not liable to pay the amount of Rs.108581/- as repair charge of the vehicle and Rs.3,00,000/- as compensation for deficiency of service. There was no deficiency of service on their part. Hence prayed for the dismissal of complaint.
On the side of complainant’s 2PWs including the complainant was examined. PW2 is the conductor of the bus at the time of alleged incident. Exts.A1 to A9 were marked as documents on the side of complainant. On behalf of OPs the Deputy Manager of OP, Insurance company Mr.Gopi.C.K has filed his proof affidavit and has been examined as DW1. Exts.B1,B2 and B2 (a&b) were marked as the documents of OPs. The surveyor and loss assessor, who inspected the vehicle in dispute and assessed the loss happened has been examined as DW2. The survey report was marked as Ext.B2(a).
After that both learned counsels of the parties in this case have filed their respective written argument notes.
The only question that involves in the present complaint is as to whether the OP is justified in repudiating the claim of the complainant submitted before them in connection with the alleged incident?
The learned counsel of complainant alleged that his case is a genuine one and there is no reason to reject his claim. Further submitted that the surveyor has not cited or reported any reason for concluding his opinion in Ext.B2(a) survey report, that the claim is not identified as the peril is not covered in the policy. The observation of the surveyor is that water entered the engine as the vehicle was driven over the flooded water, resulting which water entered inside the engine through intake system of the engine and causing engine failure . Further even before the inspection the engine assembly has been dismantled and repair works were started and the surveyor inspected the vehicle while the repair works were in progress. It is to be noted that in the report the net loss assessed by the surveyor was Rs.56423.00/-.
On perusal of survey report, the cause and nature of accident was stated as insured vehicle was on its way to Kannur as one of the scheduled trip from Chandanakkampara, in between at Podikkalam road was flooded due to landslide, due to which water entered the engine of the IV, causing damage to the engine of the insured vehicle.
Further stated that nature of damages sustained to the IV not tally with reported cause of accident. But during cross-examination of the surveyor DW2 in page 3 deposed that “ സാധാരണ വെള്ളപ്പൊക്കം ഉണ്ടാവുന്പോൾ ഏതുവാഹനവും ഓടിക്കുന്പോഴുള്ള പ്രശ്നമാണ് ഇവിടേയും ഉണ്ടായത്? അതെ. Further during chief examination he has stated that വണ്ടികേടാകാനുള്ള കാരണം വണ്ടി വെള്ളകെട്ടിൽ കൂടി ഓടിച്ചതു കാരണം Engine seize ആയി .
Hence from oral evidence of surveyor he has admitted that the damages sustained to the vehicle tally with the cause of accident. Though OP raised a contention that peril is not covered in the policy, as per policy condition No.1(V) the company will indemnify the insured against loss or damage to the vehicle insured by flood. Ext.A5 paper publication , PW2 as well as DW2 also admitted that on the alleged day flood happened in Kerala. Hence complainant has proved his case through the above said document and through PW2 and DW2.
Next point to be decided is the quantum of loss happened to the insured vehicle. Complainant alleged that the total damages caused to the vehicle amounts to Rs.108581/-. But the surveyor and loss Assessor appointed by OP assessed the net loss calculating total spare parts cost Rs.40222.84 and total labour charge Rs.16200/- is Rs.56422.84 ie Rs.56423/-. Here it is seen that the surveyor calculated expenses for each spare parts and its labour charges. The depreciation also is calculated ,so the surveyor did his best to assess the loss on the basis of the repair details supplied by the automobile work shop. Here the complainant has not submitted the loss of the vehicle by cogent evidence ie, loss assessed by any authorized person to rebut the amount assessed by the surveyor. Simply because the complainant has produced repairing bills to the tune of Rs.108581/- will not entitled to the complainant to that effect. Complainant has failed to produce relevant and connected documents showing repair of the insured vehicle due to flood water entered the engine of the bus. Though the complainant is not satisfied with the surveyor’s assessment of loss, but he has failed to point out as to where the mistake happened in the said assessment. The report of the surveyor shows the loss happened to the vehicle in dispute in the flood. Therefore we are of the opinion that it would represent fairly the quantum of loss happened to the insured vehicle and the said amount is granted in such circumstances. Considering the facts and circumstances of this case, we are of the opinion that complainant is entitled to get Rs.56423/- the surveyor assessed amount. Since the OP failed to grant the quantum of loss assessed by the surveyor, to the complainant, there is deficiency in service on the part of opposite party.
In the result, complaint is allowed in part. Opposite party ,Insurance company , is directed to pay Rs.56423.00/- to the complainant. Opposite party is further directed to pay Rs.25,000/- towards compensation for the deficiency in service on the part of opposite party. Opposite party shall comply the order within one month from the date of receipt of this order, failing which the amount of Rs.56423.00/- carries interest @9% per annum from the date of order till realization. Complainant is at liberty to execute the order as per the provisions in Consumer Protection Act 2019.
Exts;
A1- Lawyer notice copy
A2 to A4-Acknowledgment card-
A5-news paper Mathrubhoomi daily (subject to proof)
A6series to A8-Photo copy of bills
A9-Trip sheet(subject to proof)
B1-policy schedule
B2- claim file
B2(a)-survey report
B2(b)-claim form
PW1- Ashraf.K-complainant
PW2-Jayesh.K-witness of PW1
DW1-Gopi.C.K –OP
DW2-C.K.Sujith-witness of OP
Sd/ Sd/ Sd/
PRESIDENT MEMBER MEMBER
Ravi Susha Molykutty Mathew Sajeesh K.P
eva
/Forwarded by Order/
ASSISTANT REGISTRAR
