Before the District Consumer Disputes Redressal Forum, Rohtak.
Complaint No. : 297.
Instituted on : 16.05.2017.
Decided on : 16.01.2019.
M/s Mahashiv Promoters Pvt. Ltd., through Chand Singh Hooda (Managing Director) 2320/10, Ram Gopal Colony, Rohtak.
………..Complainant.
Vs.
1 Zenica Cars India Pvt. Ltd., Orchid Center, Golf Course, Gurgaon-122002.(A Division of Volkswagen Group Sales India Pvt. Ltd.)
2 The Manager, IFFCO-TOKIO General Insurance Company Ltd., Regd. Office IFFCO Sadan, C1, District Centre, Saket, New Delhi-110017.
3 The Deputy General Manager, Claims, IFFCO TOKIO General Insurance, Unit No.-A & B 4, 3rd Floor, T D I Center, Jasola, New Delhi-110025.
4 The Manager, IFFCO-TOKIO General Insurance Company Ltd. Sector-14, Rohtak.
5 Motor Underwriter, IFFCO-TOKIO General Insurance Company Ltd., R/o 5C/1, Seetal Complex Rajbaha Road, Patiala, Punjab.
……….Opposite parties.
COMPLAINT U/S 12 OF CONSUMER PROTECTION ACT,1986.
BEFORE: SH.NAGENDER SINGH KADIAN, PRESIDENT.
SH. VED PAL, MEMBER.
SMT. SAROJ BALA BOHRA, MEMBER.
Present: Sh. Dharamvir Sharma, Advocate for the complainant.
Opposite party No. 1 exparte vide order dated 07.07.2017.
Sh. R.K. Behl, Advocate for opposite party No. 2 to 5.
ORDER
NAGENDER SINGH KADIAN, PRESIDENT:
1. The present complaint has been filed by the complainant with the averments that the complainant had purchased a private car having brand name Audi Q3 2.0 TDI having Engine No. CLL055342, Chasis No. WAUZHD8U7EY000176 from OP No. 1 on 01.11.2013 for gross amount of Rs.34,85,000/-. That the said vehicle was got registered bearing registration No.HR-12W-9999. That complainant got the said vehicle insured from Bharti AXA General Insurance Company Ltd. w.e.f. 01.11.2013 to 31.10.2014 followed by further insurance covering the period from 06.11.2014 to 05.11.2015 under comprehensive insurance policy and further insured the vehicle from IFFCO TOKIO General Insurance co. covering the period from 05.11.2015 to 04.11.2016 under Policy No.94870304 against the IDV of Rs.28,00,000/-. That on 31.08.2016, there was heavy monsoon rain and the vehicle while moving on the road at Model Town, Rohtak, was confronted with the waves of water accumulated on the road due to moving traffic thereby causing the vehicle to halt. On 01.09.2016 the vehicle was subsequently taken to Gurgaon at dealers workshop through Crane for which a sum of Rs.7,400/- was paid in cash. The matter was reported to the insurer on 02.09.2016 by the dealer(OP No.1). But as per surveyor’s report submitted by the OP No. 2 on 09.09.2016 it is submitted that : “No add on cover is given in the policy except Nil Dep. cover excluding the hydrostatic cover in the policy No. 94870304”. That said insurance policy not cover the hydrostatic”. That the insured while taking the alleged policy was assured that the policy will cover all kind of loss/damage and insured need not to make any additional payment for additional coverage although the insured was ready and willing to make any additional payment to cover up the loss/damage. That insured had to pay a sum of Rs.14,00,013/- on repairing of said vehicle. That the insurer as per terms and conditions of the policy is liable to indemnify the insured against all kind of loss or damage to the insured vehicle with the General Exceptions as mentioned under Section 3. That the act of opposite parties of denial of genuine claim of the complainant is illegal and amounts to deficiency in service. Hence this complaint and it is prayed that OPs may kindly be directed to give the cost of expenditure incurred on the repair of the vehicle along with compensation and litigation expenses as explained in relief clause.
2. Notice issued to OP No. 1 through registered post not received back either served or unserved. As such, OP No. 1 was proceeded against exparte vide order dated 07.07.2017 of this Forum.
3. Opposite party No.2 to 5 appeared and filed their written reply submitting therein that the insurance taken by the insured has no ‘Engine Protection Coverage’ (Add-on Coverage) over and above the standard comprehensive policy to cover loss or damage to the Engine Hydrostatic loss. Mr. Vikas Puri Surveyor and Loss Assessor duly licensed by IRDA has reported for the damage to the engine as water has entered in the same and insured has not taken the add-on coverage to cover the loss of damage to the engine and this fact has been informed to the insured. Further surveyor advised the insured that liability would be only restricted to cleaning and flushing of engine. It is further submitted that as per the papers, insured vehicle passing through a poll of water when all of sudden the vehicle stopped and after efforts did not start thereafter. It is also submitted that insured tried to start the vehicle when it was still in contact with the water. Later on, surveyor while checking the vehicle with the repairer who has informed that insured has taken away the vehicle without getting any job done and they have closed their job card as zero billing. Since no work has been carried out, no liability attaches the insurer. That the loss was not covered under the policy as such the respondents are not liable to indemnify the insured. That there is no deficiency of service on the part of the OPs and dismissal of complaint has been sought.
4. Learned counsel for the complainant in his evidence tendered affidavit Ex.CW/1, documents Ex.CW1 to Ex.CW8 and has closed his evidence on dated 28.03.2018. On the other hand, ld. Counsel for the opposite parties No. 2 to 5 in his evidence tendered affidavits Ex.RW1/A & Ex.RW1/B, documents Ex.R1 and Ex.R2. On 15.10.2018, the evidence of OPs No. 2 to 5 was closed by court order.
5. We have heard learned counsel for the parties and have gone through material aspects of the case very carefully.
6. After going through the file and hearing the parties it is observed that first contention of the opposite party is that the vehicle in question was used for commercial purpose. In the case in hand the total value of vehicle is Rs.3485000/- and registration is in the name of company for the personal use of the company owner/directors and no document has been placed on record by the OP to prove that vehicle was used for commercial purpose at the time of accident. The second contention of the OP is that the vehicle was passing through the pool of water and all of a sudden vehicle stop and after efforts did not start thereafter. As per insurance company the driver of the vehicle wrongly attempted to start/run the engine when the vehicle was still in contact with the water. The respondent has not placed on record any document to prove that the vehicle was passed through a pool of water. Moreover as per the para no.4 of the complaint, the real facts are that there was heavy monsoon rain on 31.08.2016 and when the vehicle was moving on the road at Model Town, Rohtak, it confronted with the waves of the water accumulated on the road due to moving of traffic thereby which caused the vehicle to halt. In this way, it is proved that the vehicle was not plied in any pool area of heavy water.
7. In the preliminary objections of the written statement, the respondents have submitted that surveyor had checked the vehicle in the premises of repairer who has informed that insured has taken away the vehicle without getting any job done and they have closed their job card as zero billing. Regarding this contention, the respondent officials have not produced any report or any written note issued by the repairer that there was a zero billing. The respondent officials placed on record an affidavit of surveyor as Ex.RW1/B. In this affidavit the surveyor has not disclosed the name of authorized service station of the repairer where he visited to assess the loss of the vehicle in question. Moreover, we have also perused the report Ex.R1 and the same fact has been mentioned in this report. The surveyor has not disclosed the name of the workshop or authorised service station.
8. The next contention of the insurance company is that there is no add-on coverage taken by the insured over and above the standard comprehensive policy to cover loss or damage to the engine. Regarding this contention we have perused firstly cover note Annexure C4. As per this cover note there are some options regarding add on which are as under:- Depreciation cover, Hospital cash, Ambulance charges, medical expenses, Hydrostatic lock, consumables, NCB protector, Load Transfer, Voluntary deductibles, Other. After perusal of this cover note the complainant opt Depreciation cover, hydrostatic lock and consumables as add on cover over and above the comprehensive policy. In these options damage to the engine has not been mentioned regarding add on cover. There are several options out of which complainant has opted three with the comprehensive insurance policy. Now at this stage, the respondent officials took an objection that the complainant had not taken add on cover regarding the damage to the engine, is wrong and illegal. When they have not given any option in add on cover, how he can take the alleged cover at his own. We have also placed reliance upon the law of Hon’ble National Commission in 1(2005)CPJ27(NC) titled as Harsolia Motors Vs. National Insurance Co. Ltd., 2012(2)CPC35(NC) titled as Ashish Vishwakarma Vs. National Insurance co. Ltd. & Ors. , II(2011)CPJ 176(SC) Himachal Pradesh, Shimla titled as Bajaj Allianz General insurance Company Ltd. Vs. Bir Singh, 2013(2)CLT 395 Punjab SCDRC, Chandigarh titled as Bhupinder Singh Vs. National Insurance Co. Ltd., IV(20140CPJ302(NC) titled as Kaveri Telecom Ltd. Vs. Vijay Bank & another and IV(2009)CPJ 96 titled as Oriental Insurance Co. Ltd. Vs. Kandha Nayak. As per the case II(2011)CPJ 176(SC) Himachal Pradesh, Shimla titled as Bajaj Allianz General insurance Company Ltd.(Supra), Hon’ble Himachal Pradesh State Commission has held that : “Nothing to suggest insurance agent insured tractor exclusively for agricultural purposes, not mentioned in cover note-Duty of insurer to provide all material information to enable prospect to decide best cover in his favour-As per Regulations, 2002 when law requires a particular thing to be done in particular manner, duly enjoined upon those responsible to do needful in same manner-As per Motor Vehicles Act 1988 no vehicle can roll out without insurance- cover note issued before policy, both to be in consonance and not otherwise as in this case”. The law cited above is fully applicable on the facts and circumstances of the case”. Moreover, the complainant has taken the comprehensive policy and as per policy, the same is zero dep. policy. Hence the act of opposite parties of repudiating the genuine claim of the complainant is illegal and against the natural justice and they are liable to pay the claim amount. As per bills placed on record by the complainant as Ex.CWB, he has spent an amount of Rs.1400013/- on the repair of his vehicle and this amount has been transferred from his account as is proved from documents Ex.CW6 and Ex.CW7. As such complainant is entitled for the alleged amount.
9. In view of the fact sand circumstances of the case, we hereby allow the complaint and direct the opposite party No.2 to 5 to pay the alleged amount of Rs.1400013/-(Rupees fourteen lac and thirteen only) alongwith interest @ 9% p.a. from the date of filing the present complaint i.e. 16.05.2017 till its realization and shall also pay a sum of Rs.10000/-(Rupees ten thousand only) as compensation and litigation expenses to the complainant within one month from the date of decision.
8. Copy of this order be supplied to both the parties free of costs.
10. File be consigned to the record room after due compliance.
Announced in open court:
16.01.2019.
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Nagender Singh Kadian, President
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Ved Pal Hooda, Member.
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Saroj Bala Bohra, Member
