PER MR.B.S.WASEKAR, HON’BLE PRESIDENT

1)                The present complaint has been filed by the complainant under section 12 of the Consumer Protection Act, 1986. According to the complainant, she had taken comprehensive vehicle insurance policy from the O.P.No.1 by paying premium of Rs.12,536/-. The policy period was 24^th April, 2012 to 23^rd April, 2013.  On 11^th August, 2012, the complainant was driving her car on Mumbai-Pune Expressway along with her husband.  At that time, her car met with an accident. She gave intimation of accident to the O.P.No.1 & 2 immediately on phone and requested to arrange for pick up van.  The O.P.No.2 took 3½ hours to provide pick up van.  She submitted accident report to the O.P.No.1 by email.  While driving car, driver of the other vehicle informed the complainant that smoke was coming from exhaust which could be a hoax. Therefore, the car was taken to the left side of the road. That time, car dashed against big stone causing damage to Front Grill, Left Side Light, Radiator and the Rubber Pipe thereby engine was failed. There was correspondence with the opponents for repair of the car but both the opponents avoided their responsibility. The complainant was required to hire a car for day to day work spending Rs.2,000/- per day. Therefore, the complainant has filed this complaint to direct the opponents to repair the car and to hand over it to the complainant in working condition.  She has also claimed amount of Rs.4,58,000/- for car hire charges with interest.  She has also prayed to direct the O.P.No.1 to pay warehousing charges to the O.P.No.2. She has claimed compensation of Rs.5 Lakhs for mental harassment and cost of proceeding of Rs.25,000/-.

2)                  The O.P.No.1 appeared and filed written statement.  The policy is admitted.  There was mechanical problem and there was no damage due to accident.  Therefore, this O.P. is not liable to pay any amount to the complainant.  There is no deficiency in service on the part of this opponent.  There was engine problem and ultimately caused failure of engine.  Surveyor was appointed by this opponent.  As there was no damage due to the accident this opponent is not liable to pay the claim as prayed.

3)                The O.P.No.2 remained absent though duly served therefore it is proceeded exparte.

4)                After hearing the argument of complainant and the O.P.No.1 and after going through the record, following points arise for our consideration.

POINTS

REASONS

5) As to Point No.1 & 2 :-  The vehicle insurance policy is admitted.  Copy is produced on record.  It is Comprehensive Insurance Policy.  According to the complainant, on 11^th August, 2012, she was driving car on Mumbai-Pune Expressway alongwith her husband.  After accident, she immediately informed about the accident to the opponents.  She has also produced copies of correspondence with the opponents.  The same is not challenged by the opponents.  The O.P.No.1 refused to bear the repair expenses on the ground that it was mechanical problem and there was no damage due to the accident. The correspondence show that it was the contention of the O.P.No.2 that damage was due to the accident and there was no mechanical defect. Both the opponents avoided their liability by shirking responsibility against each other. Due to conduct of both the opponents, the complainant is the sufferer.  If, there is mechanical problem, the O.P.No.2 is responsible to repair it but if there is damage due to the accident, the O.P.No.1 is liable to reimburse the expenses.  In the affidavit, the complainant has stated that, while she was taking the car by side of the road, it dashed against the stone causing damage to the vehicle. According to the O.P.No.1, Surveyor was appointed to inspect the car and as per Surveyor Report, it was mechanical problem. The O.P.No.1 has not produced the Surveyor Report on record. If, according to the O.P.No.1, as per Survey Report, it was mechanical problem then it was necessary to produce the Survey Report on record.  Failure to produce the Survey Report on record shows that there was no mechanical defect.  As the policy was in force, the O.P.No.1 is liable to reimburse the expenses.

6)                The learned advocate for the O.P.No.1 has placed reliance   on the judgment of Hon’ble National Commission in Revision Petition No.1282 of 2000, in the case of Balendra Gautam –Versus- Oriental Insurance Company Limited, decided on 28^th February, 2002.  In that case, driver ran away with the vehicle by giving false excuse and therefore claim was not allowed.  In the instant complaint before us, car was immediately stopped after accident.  Therefore, the abovecited judgment is not applicable.  The learned advocate for the O.P.No.1 has further placed reliance on the other judgment of Hon’ble National Commission in Revision Petition No.785 of 2007 in the case of New India Assurance –Versus- Ashok Shankar Lal, decided on 25^th April, 2011. In that judgment, insurance company was asked to reimburse the loss caused due to the accident and insurance company was not liable to reimburse the other expenses for repair of the engine and mechanical job.  In the instant complaint before us, the complainant has prayed for repair of the car which was damaged in the accident.  Therefore, the abovecited judgment is not applicable.  The learned advocate for the O.P.No.1 has further placed reliance on the judgment of State Commission West Bengal, in the case of Dr.Ranjit Kumar Dey –Versus- Bajaj Allianz General Insurance Company Limited, decided on 6^th November, 2009. In that judgment, accident took place on 3^rd April, 2008 and information was given on 15^th April, 2008.  As there was delay, the complaint was not allowed.  The fact before us are totally different.

7)                Thus, the evidence on record show that car was damaged due to the accident.  Immediate information was given to the opponents but both the opponents avoided their liability. In spite of several correspondence, the opponents failed to repair the car.  Therefore, it is necessary to give direction to the opponents to repair the car.  Insurance policy was in force therefore the O.P.No.1 is liable to reimburse the repair expenses.  The O.P.No.2 is liable to repair the car in roadworthy condition.

8)                The complainant has claimed car hire charges at the rate of Rs.2,000/- per day. Under the policy, the O.P.No.1 is liable for reimbursement of repair expenses.  There is no provision to pay car hire charges.  Therefore, the complainant is not entitled for car hire charges.  The complainant has also claimed warehousing charges of O.P.No.2  The O.P.No.2 remained absent though duly served therefore the O.P.No.2 is not entitled for warehousing charges.  The complainant has also claimed compensation of Rs.5 Lakhs for mental harassment. In spite of several correspondence, the opponents avoided to repair the car thereby the complainant suffered from mental harassment. The compensation claimed by the complainant is excessive.  We think both the opponents are liable, to pay compensation to the complainant for mental harassment.  We think compensation of Rs.20,000/- each will suffice the purpose.  Besides this, the complainant is entitled for the cost of this proceeding Rs.5,000/- each. Hence, we proceed to pass the following order.

ORDER

1. Complaint is allowed.
2. The opponents shall repair the car and handover it to the complainant in roadworthy condition.
3. The O.P.No.1/Insurance Company shall bear the repairing charges.
4. The O.P.No.1 & 2 shall pay compensation of Rs.20,000/- (Rs.Twenty Thousand Only) each to the complainant as compensation for mental harassment.
5. The O.P.No.1 & 2 shall pay of Rs.5,000/- (Rs.Five Thousand Only) each to the complainant as cost of this proceeding.
6. The above order shall be complied with within a period of one month from today.
7. Copies of this order be sent to the parties free of cost.

Pronounced on 5^th December, 2014