Punjab

Ludhiana

CC/20/42

Talwinder Singh - Complainant(s)

Versus

M/s Cholamandlam MS General Ins.Co.Ltd - Opp.Party(s)

Ritesh Dhir Adv.

20 Oct 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, LUDHIANA.

                                                Complaint No:42 dated 28.01.2020.                                                 Date of decision: 20.10.2023.

 

Talwinder Singh S/o. Sh. Surjit Singh, resident of House No.196, Hoshiarpur Road, Scheme No.03, S.B.S. Nagar, Phagwara, Kapurthala, Phagwara.                                                                                                 ..…Complainant

                                                Versus

M/s.Cholamandlam MS General Insurance Company, S.C.O. 2463-2464, IInd Floor, Sector 22-C, Chandigarh through its Manager.                                                                                                                      …..Opposite party 

Complaint Under section 12 of the Consumer Protection Act, 1986.

QUORUM:

SH. SANJEEV BATRA, PRESIDENT

SH. JASWINDER SINGH, MEMBER

MS. MONIKA BHAGAT, MEMBER

 

COUNSEL FOR THE PARTIES:

For complainant             :         None.

For OP                           :         Sh. Vyom Bansal, Advocate.

 

ORDER

PER SANJEEV BATRA, PRESIDENT

1.                Briefly stated, the facts of the case are that the complainant purchased Truck Tralla make Mahindra & Mahindra Limited bearing registration No.PB-10GZ-8342 from Garyson Automobile, Showroom Sherpur Chowk, G.T. Road, Ludhiana and the same was got insured from the opposite party. On 03.05.2019, the vehicle in question met with an accident at Hazaribagh and was totally damaged. The said Truck Tralla was brought to Garyson Tata Workshop. The complainant lodged a DDR No.19 dated 08.05.2019 in the near police station and the officials of opposite party visited and inspected the spot as well as vehicle. Thereafter, the surveyor of the opposite party assessed the total loss of the vehicle at Rs.5,35,313/-. The complainant many times requested the opposite party to pay the insurance amount of Rs.5,35,313/- but they dilly dallied the matter on one pretext or the other and refused to pay the claim amount to the complainant. The refusal to make the claim of Rs.3,35,313/- to the complainant amounts to deficiency in service and unfair trade practice on the part of the opposite party due to which the complainant suffered mental pain, agony and harassment. The complainant also served legal notice dated 30.09.2019 upon the opposite party but no reply was received. Hence this complaint whereby the complainant prayed to issue direction to the opposite party to pay claim amount of Rs.3,35,313/- along with compensation of Rs.1,00,000/- as well as litigation charges. 

2.                Upon notice, the opposite party filed written statement and assailed the complaint by taking preliminary objections on the ground of maintainability of complaint; lack of jurisdiction; suppression of material facts etc. 

                   Under the column of factual submission, the opposite party stated that the vehicle of the complainant make Mahindra Blazo was insured vide policy No.3379/02252570/000/00 having validity from 27.122018 to 26.12.2019 with the opposite party. A claim towards damage to the insured vehicle was intimated on 03.05.2019 by the complainant and the same was registered vide claim No.3379283008 and Sh. Mahesh Chander Sharma, IRDA registered independent surveyor was appointed to survey the cause and extent of loss to the insured vehicle who visited the insured, recorded his statement, clicked photograph of the vehicle and submitted his report dated 28.08.2019 as per which the net liability of insurer was assessed at Rs.2,86,967.73. The opposite party further stated that upon examination of the said report and statement of the Insured, it was noted that Insured had stated that the driver applied emergency break and the material slipped from the trailer thereby causing damage to the LHS rear side of the truck body. Thus on application of mind by the authorized officials of the Insurance Company it was noted that the damage to the vehicle is not due to any Accidental External Means and the claim was not considered in terms of policy condition, which is reproduced as under:-

“Section 1-2 (a) of Motor tariff,

2. The Company shall not be liable to make any payment in respect of (a) consequential loss, depreciation, wear and tear, mechanical or electrical breakdown, failures or breakages nor for damage caused by overloading or strain of the insured vehicle nor for loss of or damage to accessories by burglary, housebreaking or theft unless such insured vehicle is stolen at the same time."

 

As such, vide letter dated 29.08.2019, the complainant was intimated about the decision of the company. The opposite parties denied any deficiency in service.

                   On merits, the opposite party reiterated the crux of averments made in the factual submission and preliminary objections. The opposite party has denied that there is any deficiency of service and have also prayed for dismissal of the complaint.

3.                In support of his claim, the complainant tendered his affidavit Ex. CA in which he reiterated the allegations and the claim of compensation as stated in the complaint. The complainant also tendered documents Ex. CA1 to Ex. CA4 are the photographs of the damaged vehicle, Ex. CA5 is the copy of insurance policy, Ex. CA6 is the copy of welcome letter dated 18.01.2019, Ex. CA7 is the copy of letter dated 08.05.2019 of the complainant, Ex. CA8 is the copy of driving licence of Mukesh Kumar, Ex. CA9 is the copy of receipt issued by Trimurti Logistics, Ex. CA10 is the copy of service estimate prepared by Garyson Automobile, Ex. CA11 is the copy of PAN card of the complainant, Ex.CA12 is the copy of registration certificate No.PB10-GZ-8342, Ex. CA13 is the legal notice dated 30.09.2019, Ex. CA14 is the postal receipt and closed the evidence.

4.                On the other hand, counsel for the opposite party tendered affidavit Ex. RA of Sh. Vidhi Passi, Deputy Manager Claims (Legal) of the opposite party as well as affidavit Ex. RB of Sh. Mahesh Chander Sharma, Insurance Surveyors and Loss Assessors along with documents Ex.  R1 is the copy of policy documents, Ex.  R2 is the copy of Motor Final Survey Report,  Ex. C3 is the copy of no claim intimation letter dated 29.08.2019 and closed the evidence.

5.                None has turned up for the complainant today also. None has been appearing on behalf of the complainant in this case since 11.04.2023. We have heard the arguments of the counsel for the opposite party and also gone through the complaint, affidavit and annexed documents and written reply along with affidavits and documents produced on record by both the parties. We proceed to decide the case on merits.

6.                 The vehicle in question owned by the complainant and insured by the opposite party vide insurance policy No.3379/02252570/000/00 valid from 27.12.2018 to 26.12.2019. It damaged in an accident on 03.05.2019. On receipt of intimation, Sh. Mahesh Chander Sharma, an IRDA approved Insurance Surveyor and Loss Assessor was deputed as an independent surveyor who vide his report 28.08.2019 Ex. R2 assessed the net liability of the opposite party to be Rs.2,86,967.73. The report was examined by the opposite party and it was found that driver applied emergency brakes resulting in slipping of material from the trailer causing damage to the rear side of the truck. The opposite parties repudiated the claim vide letter dated 29.08.2019 Ex. R3, operative part of the same is reproduced as under:-

“On perusal of the vehicle damages we wish to state that the damage to the vehicle is not due to any “Accidental External Means.” The relevant policy provisions are reproduced for reference:

Section 1 -2 (a) of Motor Tariff,

2. The Company shall not be liable to make any payment in respect of

(a) consequential loss, depreciation, wear and tear, mechanical or electrical breakdown, failures or breakages nor for damage caused by overloading or strain of the insured vehicle nor for loss of or damage to accessories by burglary, housebreaking or theft unless such insured vehicle is stolen at the same time.”

We regret our inability to consider your claim.”

7.                Now adverting to the terms and conditions of the policy, Section 1 of the Policy Ex. R1 provides as under:-

                   “Section I – Loss of or damage to the vehicle insured

1. The Company will indemnify the insured against loss or damage to the vehicle insured hereunder and/or its accessories whilst thereon.

1. by fire explosion, self ignition or lightening;
2. by burglary, housebreaking or theft;
3. by riot and strike;
4. by earthquake (fire and shock damage)
5. by flood, typhoon, hurricane, storm, tempest, inundation, cyclone, hailstorm, frost;
6. by accidental external means.

                   Section 2 of the policy further provides as under:-

2. The Company shall not be liable to make any payment in respect of

(a) consequential loss, depreciation, wear and tear, mechanical or electrical breakdown, failures or breakages nor for damage caused by overloading or strain of the insured vehicle nor for loss of or damage to accessories by burglary, housebreaking or theft unless such insured vehicle is stolen at the same time.”

 

A conjoint reading of aforesaid provisions would make it crystal clear that when the loss and the damage of the vehicle has been suffered by “Accidental External Means” then only Company is bound to indemnify. In common parlance, external forces are the forces caused by external agent outside of the system, while internal forces operate within the structure. It appears that the load carried by the trailer was not properly secured or tied which led to its displacement while the vehicle was in transit. On sudden application of brakes, the said displacement/slipping of the load had resulted in damage to the vehicle. Obviously, it was an internal factor that kept operating. Further the complainant had ample opportunity to explain the manner and cause of accident. Perusal of the complaint (affidavit) and legal notice shows that the contentions therein bald assertions of the accident only and no attempt has been made to explain or contradict the version of the opposite party. As such, the opposite party has rightly repudiated the claim of the complainant by invoking the provisions of Section 1 (vi) and Section 2(a) of the policy terms and conditions.

8.                As a result of above discussion, the complaint fails and the same is hereby dismissed. However, there shall be no order as to costs.  Copies of the order be supplied to the parties free of costs as per rules. File be indexed and consigned to record room.  

9.                Due to huge pendency of cases, the complaint could not be decided within statutory period.

 

(Monika Bhagat)          (Jaswinder Singh)             (Sanjeev Batra)

Member                         Member                              President        

 

Announced in Open Commission.

Dated:20.10.2023.

Gobind Ram.