DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION

PATIALA.

                                      Consumer Complaint No. 416 of 29.9.2016

                                      Decided on:   1.1.2021

Honey Goyal son  of Sh.Pawan Goyal, resident of 43, Sant Enclave, Near Mahindra Complex, Patiala.

                                                                   …………...Complainant

                                       Versus

1. The New India Assurance Co. Ltd., Ist Floor, Leela Bhawan, Opp.Income Tax office, Patiala through its Manager.
2. M/s Hira Automobiles, Rajbaha Road, Patiala through its M.D./Partner/Manager/Authorized Signatory.

                                                                   …………Opposite Parties

                                      Complaint under Section 12 of the

                                      Consumer Protection Act, 1986.

QUORUM

                                      Sh. Jasjit Singh Bhinder, President

                                      Sh.Vinod Kumar Gulati, Member    

ARGUED BY              

                                       Sh.Gaurav Bansal, counsel for complainant.

                                      Sh.D.P.S.Anand, counsel for OP No.1.

                                      OP No.2 ex-parte.                                      

 ORDER

                                      JASJIT SINGH BHINDER,PRESIDENT

1. This is the complaint filed by Honey Goyal  (hereinafter referred to as the complainant) against New India Assurance Co. Ltd.(hereinafter referred to as the OP/s).
2. The brief facts of the case are that the complainant purchased insurance policy bearing No.36150031150300012227 from OP No.1 for his car Maruti Swift bearing registration No.PB-11BL-1875 for the period from 2.1.2016 to 1.1.2017.The same was purchased from OP No.2.
3. It is averred that the car met with an accident on 1.7.2016 and was towed to the workshop of OP No.2, where after inspection of the car estimate was made by the technician of OP No.2 on 4.7.2016.Thereafter car was repaired by the mechanics of OP No.2.Cash memo was also prepared by OP No.2 on 16.7.2016 for an amount of Rs.43996/- which was paid by the complainant .
4. It is further averred that at the time of delivery it was noticed by the engineer/mechanic that engine of the car was seized during accident and due to non repair of the same car was not delivered to the complainant and was kept for repair of the engine. Complainant submitted the claim with OP No.1 who  paid an amount of Rs.39100/- by depositing the same in the account of the complainant maintained in Bank of Baroda, Patiala through NEFT on 11.8.2016.
5. It is further averred that when engine of the car was repaired, OP No.2 generated final bill for an amount of Rs.70,783/- dated 31.7.2016 which was paid by the complainant on 1.8.2016. The complainant submitted his claim with OP No.1 for the above said bill, but it refused to pay the claim of Rs.70,783/- with the comments that engine was seized due to dry running of engine without engine oil. It is averred that the OP has not settled the genuine claim without any valid reason. Legal notice dated 8.9.2016 was also served upon the OPs but nothing was done. There is thus deficiency in service on the part of the OP, which caused mental agony,tension, harassment, humiliation and inconvenience to the complainant. Hence this complaint with the prayer that the same be accepted by giving direction to the OPs to pay the amount of claim as charged by OP No.2 alongwith compensation of Rs.50,000/- plus costs of litigation.
6. Notice of the complaint was duly served upon the OPs. OP no.1 appeared through counsel and contested the complaint by filing written reply whereas OP No.2 did not come present to contest the complaint and was accordingly proceeded against ex-parte vide order dated 21.12.2016.
7. In the written reply filed by OP No.1, it raised preliminary objections that the complaint is not maintainable as the claim of the complainant has since been settled by paying Rs.39100/- and the complainant has also executed satisfaction voucher dated 4.7.2016 to the effect that his car has been repaired and in complete running order to his entire satisfaction. That the complainant has no cause of action and locus standi to file the present complaint and the same is liable to be dismissed.
8. On merits, it is submitted that the complainant has produced a false towing bill of Walia Recovery Service, Patiala of Rs.1500/-which is fake and fabricated as per statement of owner of towing service. It is submitted that the insured had drove the car to the workshop from place of accident as the engine of the car was seized due to hydrostatic locking as the rain water had ingested at the time of accident. The complainant did not inform OP No.1 immediately after the accident and also did not get the spot survey of the vehicle at the place of accident, which amounts to violation of terms and conditions of the policy.
9. It is further submitted that on receipt of intimation of loss OP deputed Sh.Mandeep Kataria approved IRDA surveyor and loss assessor, Patiala to assess the loss , who in his report dated 26.7.2016 assessed the loss to the tune of Rs.39102/- and a sum of Rs.39100/- was transferred to the bank account of complainant in response to which the complainant executed satisfaction voucher. The engine of the car was seized as per survey report and the loss has taken place due to negligence of the complainant as insured’s driver started the car and drove the same to the workshop of OP No.2.
10. It is further submitted that the complainant has never lodged the claim of Rs.70,783/- for the damage caused to the engine of the car after getting the payment of Rs.39100/-.It  is further submitted that the complainant lodged the false claim which is not covered under the terms and conditions of the policy.

After denying all other averments made in the complaint, the OP prayed for the dismissal of the complaint.

11. In support of the complaint the complainant tendered his affidavits, Exs.CA and Ex.CB alongwith the documents Exs.C1 to C11 and closed the evidence.
12. The ld. counsel for OP No.1 tendered in evidence Ex.OP1 affidavit of I.S.Sidhu, Regional Manager, Ex.OP2 affidavit of Mandeep Kataria alongwith documents Exs.OP3 to OP12 and closed the evidence.
13. We have heard the ld. counsel for the parties and have also gone through the record of the case, carefully.
14. The ld. counsel for the complainant has argued that  the complainant purchased insurance policy from OP No.1 for his Maruti Swift car for the period from 2.1.2016 to 1.1.2017.The ld. counsel further argued that on 1.7.2016, the car met with an accident due to which the car was towed to the workshop of OP No.2 and cash memo of Rs.43996/- dated 16.7.2016 was prepared by OP No.2.The ld. counsel further argued that at the time of delivery it was noticed that engine of the car was seized due to accident and that car was kept by OP No.2 for repair of the engine.The ld. counsel further argued that the complaint paid Rs.43996/- for the first bill generated by OP No.2 and after verifying all the facts by the surveyor  an amount of Rs.39100/- was directly deposited in the account of the complainant. The ld. counsel further argued that on 31.7.2016 final bill of Rs.70,783/- after the repair of engine was prepared and paid by the complainant. The ld. counsel further argued that the complainant lodged the claim with the OP for the said amount but the same was not paid and has prayed that complaint be accepted.
15. On the other hand, the ld. counsel for OP No.1 has argued that claim of Rs.39100/- has already been paid to the complainant who has signed the satisfaction voucher on 4.7.2016.The ld. counsel further argued that surveyor was appointed who has stated that engine was seized due to negligence of the complainant as he drove the car after the same met with the accident. The ld. counsel further argued that when the complainant himself signed the form to his satisfaction now he is stopped by his act and conduct from recovering Rs.70,783/-.The ld. counsel further argued that the engine has been seized due to negligence of the complainant and he is not entitled for any claim.The ld. counsel has also relied upon the citation Tata AIG General Insurance Company Ltd. Vs.Ring Road Honda and Anr.1(2019)CPJ 482(NC).
16. To prove his case, complainant has tendered his affidavits Exs.CA and CB and has deposed as per the complaint, Ex.C1 is registration of car, Ex.C2 is insurance policy, Ex.C3 is estimate, Ex.C4 is the job card, Ex.C5 is also job card, Ex.C6 is bill of Hira Automobiles,Ex.C7 bill of Hira Automobiles of Rs.70,783/-, Ex.C8 entry of the Bank of Baroda vide which amount of Rs.39100/- was paid to the complainant by OP No.1. Legal notice was served on 8.9.2016 copy of which is Ex.C9,Exs.C10 and C11 are the postal receipts.
17. On behalf of OP No.1 Sh.I.S.Sidhu, Regional Manager tendered his affidavit,Ex.OP1, Ex.OP2 is affidavit of Mandeep Katria, Surveyor and Loss assessor. In the affidavit of Mandeep Katria, he has deposed that he has given the report dated 26.7.2016 and the loss was assessed to the tune of Rs.39102/-He has further deposed that in the report it is mentioned that the engine of the car was found to be seized and complainant agreed that the loss to the engine was caused due to negligence of his driver as he started the car and drove the same to the workshop which caused hydrostatic locking and engine was damaged. He has further deposed that he recorded the statement of Sukhwinder Singh of M/s Walia Recovery Service, Patiala who has stated that the bill produced by the complainant is false and fabricated and he never toed the car from Ganda Kheri to workshop of Hira Automobile.Ex.OP3 is survey report of Sh.Mandeep Katria.This is detailed survey report. In the remarks the surveyor has mentioned, “that the engine was found seized because insured’s driver started the captioned car and he produced a fictitious towing bill”.Ex.OP5 is job card, Ex.OP5 is voucher of Rs.39100/-,Ex.OP6 is bill of tower, Ex.OP7 is statement of Sukhwinder Singh, in which he has stated that he never towed the car of the complainant.Ex.OP8 is motor claim form. In this motor claim form, it is mentioned by the complainant that it was raining  and a motor cycle  going ahead of his car was slipped and his motor cycle struck in front of the car due to which car damaged.Ex.OP9 is important document which is duly signed by Honey Goyal complainant.In the satisfaction voucher, it is submitted that his car has been damaged  and has received the car after repair in complete running condition to the entire satisfaction and in consideration of their setting the repair bill. So it is clear that the satisfaction voucher was duly signed by the complainant.Ex.OP11 is claim intimation letter and Ex.OP12 is insurance policy.
18. It is admitted fact that the car was repaired and the bill of Rs.39100/- was duly paid by the OP in the account of Sh.Honey Goyal by Bank of Baroda, Patiala, vide Ex.C8.As per the complainant when car was repaired and when he started the car, he found that the engine was seized and engine was repaired by OP No.2 and he generated the bill of Rs.70,783/- but the bill was not paid.
19. In the written statement in para No.4, it is stated by OP No.1 that on receipt of intimation of loss  OP deputed Sh.Mandeep Katria,approved surveyor and he gave the report on 26.7.2016 and he has assessed the loss of Rs.39100/- and this amount was duly paid. It is further pleaded that engine of the car was seized as per the survey report and the loss has taken place due to the negligence of the complainant as insured driver started the car and drove to the workshop of OP No.2 which caused hydrostatic locking and due to this negligence engine was seized. The surveyor report Ex.OP3 is on the file and it is mentioned in the report that engine was found seized because insured’s driver started the captioned car and he produced a fictitious towing bill.
20. The complainant has not produced the towing bill due to which the Hira Automobile i.e. OP No.2 produced the towing bill,Ex.OP6. Ex.OP7 is statement of Sukhwinder Singh and he has stated that he has given the bill on the asking of the complainant and he never towed his vehicle.
21. No rebuttal has been lead by the complainant to this effect. So from the documents, it is clear that after accident the complainant’s driver drove his car to the workshop of OP No.2.Due to this fact engine was seized. As already stated above the satisfaction voucher is Ex.OP9 and has been duly signed by complainant Honey Goyal on 4.7.2016.
22. It has been held by the Hon’ble National Consumer Disputes Redressal Commission, New Delhi in the case titled as Tata AIG General Insurance Company Ltd. Vs. Ring Road Nonda & Anr.(Supra) that, ‘the engine was not damaged on account of accident but driving the car further with loss of oil. Engine seizure is a consequential loss which is not covered under terms and conditions of policy’.
23. So by taking into consideration all the facts and evidence on the file, it is clear that the satisfaction voucher was duly signed by Honey Goyal and the car was never towed from the place of occurrence to the workshop. So the engine was seized due to negligence of the driver. Already amount of Rs.39100/- was accepted by the complainant. As such he is not entitled for any other amount and the complaint is dismissed accordingly. Parties are left to bear their own costs.

ANNOUNCED

DATED:1.1.2021         

                             Vinod Kumar Gulati             Jasjit Singh Bhinder

                                    Member                                       President