IN THE CONSUMER DISPUTES REDRESSAL FORUM, ALAPPUZHA
Monday the 11th day of November, 2013
Filed on 10.01.2012
Present
- Smt. Elizabeth George (President)
- Sri. Xavier Antony (Member)
- Smt.Jasmine.D. (Member)
in
C.C.No.4/2012
between
Complainant:- Opposite Party:-
Sri. Shankar Babu Universal Sompo General Insurance Co.
Represented by his Ltd., represented by its Branch Manager
Power of Attorney Holder Door No.37/3913, D3a and D4, IInd Floor
Sri. Shyama Prasad Central Arcade, Azad Road, North End
Vallabhasseril Evoor P.O. Kalloor, Kochi
Haripad – 690 553 (By Adv. Saji Isaac K.J.)
Alappuzha District
(By Adv. Ruby Raj)
SMT. ELIZABETH GEORGE (PRESIDENT)
The case of the complainant is as follows:-
The complainant is the registered owner and insured of the vehicle No. KL-29/B 8688, a Volkswagen Car of the model Polo 1.2 which was purchased from EVM Automobiles, Cochin on 4.6.2010. The complainant took a comprehensive insurance policy from the opposite party for his vehicle and the period of coverage is from 4.6.2011 to 3.6.2012. On 12.9.2011 the car met with a mishap. The front wheel of the car fell in a dip at the road side that damages at the bottom portion of the engine and caused leakage of engine oil from the engine. Immediately after the mishap, the car was taken to the residence of relative of the complainant. On the next day itself, it was intimated to the opposite party and submitted motor insurance claim with all the relevant particulars as instructed by the opposite party. As per the direction of the opposite party, the car was tugged to the work shop of Volkswagen, Kottayam. After detailed assessment of the damage, the work shop prepared a total estimate for Rs.2,84,900/-. Thereafter, the estimate was forwarded to the opposite party for further follow-ups. Even after the receipt of the claim along with all documents, there was been no positive response from the opposite party to settle the claim. The complainant issued to a legal notice to the opposite party. Even though the notice is received by the opposite party, there was no response from them. Hence the complaint is filed to realize the amount of Rs.2,84,900/- on account of settlement of the claim and Rs.1,50,000/- as compensation due to the deficiency in service of the opposite party. The complainant is represented by the Power of Attorney Holder Sri. Shyama Prasad.
2. The version of the opposite party is as follows:-
The opposite party is liable to compensate the complainant only according to the terms and conditions of the policy. According to the policy conditions, opposite party is liable to compensate only the direct loss to the parts resulting from the accidental impact. The damage caused to the engine was due to the leakage of the engine oil and was a consequential damage and they are not liable to compensate the complainant. There is no deficiency in service on the part of the opposite party.
4. The Power of Attorney Holder of the complainant was examined as PW1 and documents were marked as Exts.A1 to A9. The expert witness was examined as PW2 and his report was Ext.C1. From the side of the opposite party RW1 and RW2 were examined and Exts.B1 to B3 were marked.
3. The points for consider are as follows:-
1) Whether there is any deficiency in service on the part of the opposite party?
2) If so the reliefs and costs?
4. Point No.1:- The complainant is the registered owner of the vehicle No. KL-29/B 8688. On 12.9.2011 while the vehicle was driven by the father of the complainant, the power of attorney holder, the car met with an accident. It is the admitted fact that the car was having a comprehensive insurance policy with the opposite party from 4.6.2011 to 3.6.2011. According to the complainant even though the matter was informed to the opposite party, on the next day of accident itself, as CL. 11020856, there was no response from the opposite party. On verifying the records, it is seen that even after sending so many letters by the complainant’s power of attorney holder, there was no response from the opposite party. Since the vehicle has insurance policy with the opposite party, the opposite party can handle the matter either by settling the claim or by repudiating the claim. In the instant case, the survey report was filed only after 8 months after the claim. The delay in handling the claim of the complainant amounts to deficiency in service on the part of the opposite party. The point No.1 answered accordingly.
5. Point No.2:- According to the complainant due to the accident so many damages caused to the vehicle and a total amount of Rs.2,84,900/- was estimated by the work shop authorities. The expert commissioner was appointed and the report filed by him marked as Ext.C1. As per the report of the expert commissioner the following damages were occurred to the vehicle. “1. No damages found on the bumper or bottom of the body.
2. On inspection of the engine, (1) Three pistons side having deep scratches, (2) Crank pin and main bearing pin were deeply scratched (3) Bearings of crank shaft main journal and connecting rod having deep scratches (4) Piston rings having scratches (5) Crank front and rear oil seal damaged (6) Turbo charger damaged (7) Oil Sump bottom near oil drain plug broken and dented of size 8 x 3 cms. (8) Engine bore have deep scratches.” According to him the damages caused the vehicle due to the accident is the breakage of the crank cane only. But the other damages are the incidental damage due to hit. While he was examined as PW2. He admitted that, “
In Ext.C1 it is also stated that the damage caused the oil sump is due to hit of some hard object, on that portion and all other damage caused are due to running of the engine without engine oil, due to the leakage of engine oil, all of a sudden through the broken hole of oil sump.
6. The opposite party contended that the leakage of the oil sump was consequently damaged for which they are not liable to compensate. In order to substantiate their contention, the survey report of the insurance company is produced and marked as Ext.B3. According to the surveyor at the time of accident, oil sump cracked and oil drained. The damages found on the engine parts can be occurred only on working the engine without oil and the same might have been happened after the reported accident. But while he was cross examined as RW2. He admitted that oil sump bottom portion was broken due to the accident. He also stated that, “
It is pertinent to note that PW2 also admitted that the oil sump bottom portion was broken and dented of size 8 x 3cm. and one second is sufficient to drain out the oil from the oil sump such a big crack. He also stated that time will be taken to remove a vehicle from a place where there is heavy traffic.
7. The accident occurred at 6 p.m. at Budha Junction, Mavelikara. According to PW2 it was a heavy traffic place. It was not challenged by the opposite party. But at the same time, it is admitted by both parties that due to the accident, oil sump bottom was broken. As per Ext.C1, the damage caused oil sump was 8 x 3 cm., a considerably large hole leading to sudden drainage of oil. The opposite party has no evidence against that. So there is every chance of leakage of oil through that damage portion and thereby starvation occurred and accordingly the engine ceased. In Ext.B3, it is clearly stated that “As per the information by the repairer, the repaired had removed and towed the vehicle from the spot to the work shop by their own recovery van.” So there is no chance to believe that the vehicle was driven up to the residence of the complainant’s relative without engine oil. The severe damage caused to the engine cannot be treated as a consequential one for the purpose of exclusion of insurance coverage under section 4(i) of the Insurance Policy conditions, because the damage to the oil tank, the sudden drain out of the oil, stoppage of engine are all series of incidents which took place within time in resulting serious damage to the engine. Hence the whole act is to be treated as the direct result of the single accident. Hence there is no justification in refusing the policy coverage by applying the exceptions under section 4(i) of the policy conditions.
8. As per the Survey report of the Insurance Company (Ext.B3) the total estimated cost of spare parts is Rs.2,59,622.12/- and total labour charge is Rs.25,278.18/-. In the light of the above discussions, we are of the opinion that the complainant is entitled to get the same amount for the purpose of deciding the cost of spare parts and labour charges. Since the amount allowed is to satisfy the claim, no further amount towards compensation.
In the result, the complaint is allowed by granting the following reliefs:-
(1) The opposite party is directed to give Rs.2,84,900/- (Rupees two lakhs eighty four thousand and nine hundred only) towards the cost of spare parts and labour charge to the complainant along with interest at the rate of 9% per annum from the date of filing of this complaint till realization.
(2) The opposite party is directed to give Rs.5000/- (Rupees five thousand only) as costs of this proceedings.
Dictated to the Confidential Assistant transcribed by her corrected by me and
pronounced in open Forum on this the 11th day of November, 2013.
Sd/- Smt.Elizabeth George (President) :
Sd/- Sri. Antony Xavier (Member) :
Sd/- Smt.Jasmine.D. (Member) :
Appendix:-
Evidence of the complainant:-
PW1 - Shyama Prasad (Witness)
Ext.A1 - Copy of the Power of Attorney
Ext.A2 - Copy of the Motor Insurance Claim Form
Ext.A3 - Copy of the Estimate
Ext.A4 - Copy of the letter dated 12.12.2011
Ext.A5 - Copy of the Legal Notice
Ext.A6 - Postal Receipt
Ext.A7 - Acknowledgement card
Ext.A8 - Retail Invoice
Ext.A9 - Copy of the Policy Certificate
Ext.C1 - Commission report and mahazor
Evidence of the opposite parties:-
RW1 - Jojo Kattikkaran (Witness)
RW2 - Biju Syriac (Witness)
Ext.B1 - Copy of the Yahoo mail dated 28.10.2011
Ext.B2 - Policy certificate and book let
Ext.B3 - Survey Report
// True Copy // By Order
Senior Superintendent
To
Complainant/Opposite party/S.F.
Typed by:- pr/-
Compared by:-
