Order-18.
Date-11/04/2017.
Shri Kamal De, President.
This is an application u/s.12 of the C.P. Act, 1986.
The case of the complainant, in short, is that complainant is a registered owner of a vehicle bearing No.WB 06J 1763 and the same is insured with OP1 insurance company under policy No.MOP 3338149, package policy, private vehicle for the period from 11-01-2016 to 10-01-1027 for a sum assured of Rs.2,00,087/-. Unfortunately on 16-05-2016 the said vehicle met with an accident near Patuli when the vehicle suddenly fell in a pith hole and oil started leaking from the lower portion of the vehicle and as a result lower portion got heavily damaged and thereafter the vehicle could not be started. Vehicle was towed down and was taken to the service centre namely Machino Techno Sales Ltd. (OP2) authorized service centre of OP1. Complainant, thereafter, submitted claim form along with documents as per requirement of the insurance company. OP2 issued job slip on 16-05-2016 stating “Frontal damage and block broken” i.e. the vehicle has got some accidental damage. The insurance company deputed empanelled surveyor who conducted the survey of the damaged vehicle and assured the complainant that the claim shall be released very shortly. The complainant, thereafter, through her husband and constituted attorney contacted the insurance OP over telephone as well as email on several occasions and each time the complainant was assured that the claim shall be released very shortly. The complainant, thereafter, sent a legal notice to the OPs for releasing the genuine claim of the complainant but OPs did not respond. OP1 till the filing of the case did not give any work order to OP2 for necessary repair of the damaged vehicle. It is alleged that the OPs are delayling the release of claim and are deficient in rendering service. The complainant has also alleged unfair trade practice against the OPs. It is also alleged that the insurance was done through the office of OP3 and 4 at the time of purchasing the vehicle and as such OPs 3 and 4 are also jointly and severally liable for deficiency in service. It is state that the vehicle has sustained damage of “Block Broken” and it is irreparable. Hence, replacement of the entire vehicle is very much required. The complainant has claimed total sum insured along with other reliefs. Hence, this case.
OP1 has contested the case in filing written version contending, inter alia, that the case is not maintainable either in fact or in law and the claim is inadmissible as per the policy terms and conditions. It is stated that the policy of insurance covers for accidental external damage and in the present insurance, the insurance vehicle suffered from mechanical failure for which the policy coverage is not provided. It is stated that the complainant had taken a Private Car Package Policy for the Wagon R VX1 from the OP vide policy No.MOP 3338149. It is stated that this OP appointed licensed surveyor to assess loss and damage to the vehicle. As per the surveyors assessment the damaged sustained to the insured vehicle was caused not due to any accidental external impact but for mechanical failure. It is submitted that as per policy terms and conditions mechanical break down or failures are excluded from the scope of the cover. In view of the survey report it is clear that the subject insured vehicle had not suffered any accidental break and damage cause was purely internal in nature due to mechanical failure as noted by the surveyor. Hence, the claim of the complainant was rightly repudiated by the OP vide letter dated 24-06-2016. It is stated that the answering OP has not committed any deficiency in service or unfair trade practice in repudiating the claim of the complainant and this OP has prayed for dismissal of the case.
OP3 has also contested the case in filing written version contending, inter alia, that the case of the complainant is frivolous, vexatious and is liable to be dismissed. It is stated that the grievances raised by the complainant are only against the Insurance Company and not against the answering OP and the complainant has impleaded the answering OP with an ulterior motive to cause wrongful loss and obtain undue gain. This OP has prayed for deleing its name from the array of parties and the complaint be dismissed in limine. It is also stated that there is no manufacturing defect in the vehicle and in fact, no such allegation has raised by the complainant in the complaint.
OPs 2 and 4 have not contested the case and the case has proceeded ex parte against the OPs 2 and 4.
Point for Decision
- Whether the OP1 is deficient in rendering service to the complainant?
- Whether the OP1 has indulged in unfair trade practice?
- Whether OP1 has repudiated the claim of the complainant arbitrarily and illegally?
- Whether the complainant is entitled to get the relief against the OPs?
Decision with Reasons
We have perused the documents on record i.e. Xerox copy of General Power of Attorney, Xerox copy of certificate cum policy schedule, Xerox copy of road tax, Xerox copy of certificate of registration, Xerox copy of motor insurance claim form lodged before the insurance company by the complainant, Xerox copy of letter dated 16-06-2016 by the complainant to insurance company, Xerox copy of legal notice dated 09-08-2016 filed from the side of the complainant.
We have also perused the other document i.e. the Xerox copy of job card retail invoice dated 06-10-2016 to Machino Techno Sales Ltd. (OP2) as filed from the side of the OP1.
It appears that the complainant is the owner of the vehicle bearing Registration No.WB 06J1763. The complainant is represented by her husband and duly Constituted Attorney, Sri Santanu Sarkar in this case. The complainant in the present case has stated that the said vehicle on 16-50-2016 met with an accident and, as such, sustained loss as claimed. The complainant, however, could not submit any GD entry in respect of such alleged accident. The complainant, however, has filed one Xerox copy of claim form. As per the narration in the claim form .
“While crossing an old concrete bridge my car suddenly fall in to a pit hole created due to damaged bridge portion and a noise heard. After that when we came down from the car see that oil is coming out from the lower portion. Therefore, we bring the car to the workshop by towing”.
It is stated from the side of the OP1 that OP1 appointed IRDA Licensed Surveyor to assess the loss and damage of the vehicle and as per the surveyor’s assessment the damage sustained to the insured vehicle was caused not due to any accidental external impact but due to mechanical failure which is not covered under the scope of this policy and there was no accidental external means involved. But we are afraid no report of surveyor’s assessment is forthcoming before us save and except a letter dated 24-06-2016 addressed to the complainant by OP1. No mechanical expert report is also forthcoming to us. It is not understood whether the car was inspected by any mechanical expert or not. So, we place no reliance simplicitor on such a letter dated 24-06-2016 addressed to the complainant by OP1.
Be that as it may, we however find from job sheet that OP2 Service Centre observed, “Front portion accidental damage at the rate of Block Broken”. Hence it is clear from the job slip that the vehicle got accidental damage due to any accidental external impact. In absence of any mechanical expert report or surveyor report, we cannot endorse the view that the insured vehicle sustained damage for mechanical failure.
We, however, find from the evidences on record that the vehicle has already been repaired and Rs.38,566/- has been paid to the garage towards repair of the vehicle. We have also perused the Xerox copy of the bill filed from the side of the OP1. In the complaint petition the complainant has prayed for the entire sum insured but in the cross-examination she had subsequently admitted that she had to spend only Rs.38,560/- for repair of the said vehicle. In the claim form the complainant herself has stated that the only front portion block was damaged due to accident. It is also clear from the job sheet that “Frontal Damage and block broken”. It is an established position of law that the insurance is only for reimbursement of actual loss and not for any profit or gain. We also find from the bill submitted by the OP that CNG Engine Kit has been installed and it also appears that the total amount incurred for Engine CNG is Rs.37,409/- which do not have any connection with the accident. The clutch plates and some other related items have been changed which do not also have connection with the accident. So, it is apparent that the balance amount is Rs.1,151/-. We think that complainant is entitled to get Rs.1,151/-. It is curious to observe tht the complainant in spite of having knowledge about such actual fact has intentionally suppressed it and has tried to make out the case that the entire expenses were borne for repair of damage caused due to alleged accident. It is a settled principle of law that the insurance is only for reimbursement of actual loss and not for any profit.
All the issues are thus decided accordingly.
In result, the case merits success in part.
Hence,
Ordered
That the instant complaint be and the same is allowed on contest against the OP1 and dismissed against the remaining OPs.
OP1 is directed to pay an amount of Rs.1,151/- to the complainant apart from litigation cost of Rs.5,000/- within one month from the date of this order, i.d., complainant will be at liberty to put the order into execution u/s.25 read with Section 27 of the C.P. Act.
