The complainant Shilfali (here-in-after referred to as complainant) has filed complaint U/s 12 of Consumer Protection Act, 1986 against opposite party United India Insurance Co. Ltd. (here-in-after referred to as opposite party).
Briefly, the case of the complainant is that she is the registered owner of Hyundai Verna car bearing No.PB-03AF-6543. Opposite party issued the cashless insurance vide certificate No.1117023115P111276620 w.e.f 31.12.2015 to 30.12.2016. It charged Rs.17,790/- for insurance coverage and it was assured to be cashless insurance. It is 'NIL Depreciation' insurance for which opposite party charged Rs.4128.60/-.
It is alleged that opposite party never issued any policy. On 6.8.2016, the car was parked in the Court Premises, Mini Secretariat, Bathinda. Due to heavy rain, the parked car was drowning in the flooded water. The complainant duly informed opposite party and M/s Raja Hyundai, Bathinda, the authorised service center of manufacturer. The parked car was shifted to M/s Raja Hyundai from Court Premises (Mini Secretariat), Bathinda with the help of towing service (Khalsa Cranes) by spending Rs.1725/-.
It is further revealed that opposite party appointed Mr.Dinesh K. Goyal as surveyor at Bathinda. He visited the workshop and prepared the estimates to the tune of Rs.3,87,995/-. The repair was started under the supervision of surveyor. M/s Raja Hyundai (Raja Motors) repaired the vehicle under the supervision of the surveyor of opposite party. It prepared the bill to the tune of Rs.3,80,534/- in the presence of Dinesh K. Goyal.
It is further alleged that opposite party denied the cashless insurance for repair of the vehicle under cashless insurance. The complainant had no alternative except to pay repair amount of Rs.3,80,534/-. She handed over the original bill to opposite party through its surveyor.
It is further alleged that the surveyors are under the thumb of insurance company. They cannot afford to disoblige their master i.e. opposite party from where they have to obtain business. As such, they are always to toe the dictates of opposite party. Mr.Dinesh K. Goyal is not an independent surveyor as he firstly came on the panel of opposite party after taking the license from IRDA and then he was appointed by opposite party. The complainant visited opposite party for her claim, but no satisfactory reply was given by it.
It is also alleged that the surveyor Dinesh K. Goyal was also reducing the claim of the complainant. He denied the engine loss due to flooded water. He never supplied any report to the complainant till date, although, it is mandatory. Opposite party illegally rejected the claim of the complainant vide letter dated 13.6.2017 on flimsy grounds by stating that loss is consequential loss. It is reiterated that opposite party never supplied any insurance policy and terms and conditions to the complainant and no such terms and conditions were attached with no claim letter dated 13.6.2017.
It is further alleged that due to non-payment of claim amount, the complainant has suffered from mental agony and pain. For these sufferings, she has claimed compensation alongwith interest @ 18% per annum; damages to the tune of Rs.1 lakh and litigation expenses to the tune of Rs.50,000/-. Hence, this complaint.
It is relevant to mention that in support of her allegations, the complainant has quoted some case law, reference of which is not necessary to solve the controversy.
Upon notice, opposite party appeared through its counsel and contested the complaint by filing written version. In the written version, opposite party has raised the legal objections that the policy was obtained from its branch office Sunam. As such, this Forum has no jurisdiction to entertain this complaint. The complainant has no locus-standi or cause-of-action to file complaint. The claim was rejected only after getting the case duly investigated. It was found that the loss in question was consequential one and not covered under the policy. The complainant has concealed true and material facts from this Forum.
It is further mentioned that after stagnation of car in rain water, attempts were made to start it and put the engine into ignition. Due to this, the alleged loss must have been caused, which comes under the definition of consequential loss. There is no cover/add on cover for engine protection under the package policy issued by opposite party. Hence, no liability whatsoever can be fastened upon opposite party regarding loss. The complainant had herself withdrawn her claim by giving her consent vide letter dated 13.6.2017. Now, she is estopped from filing this complaint due to her acts, conducts, omission, admissions and acquiescence and lastly, the complaint is false, frivolous and vexatious and it has been filed to get wrongful benefit and to harass and humiliate opposite party.
On merits, it is claimed that the policy was duly given to the complainant and it was subject to specific terms and conditions, exceptions. The complainant was supplied copy of policy. In further written version, opposite party has reiterated its stand as taken in the legal objections and detailed above and controverted the stand of the complainant. In the end, opposite party has prayed for dismissal of complaint.
Parties were asked to produce evidence.
In support of her claim, the complainant has tendered into evidence her affidavit dated 12.10.2017, (C1); photocopy of insurance certificate, (Ex.C2); photocopy of R.C, (Ex.C3); photocopy of towing bill, (Ex.C4); photocopy of receipt, (Ex.C5); photocopy of bill, (Ex.C6); photocopy of no claim letter, (Ex.C7) and submitted written arguments.
To rebut the claim of the complainant, opposite party has tendered into evidence affidavit of Baldev Singh dated 4.12.2017, (Ex.OP1/1); photocopies of letters, (Ex.OP1/2, Ex.OP1/6 and Ex.OP1/7); photocopy of survey report, (Ex.OP1/3); photocopy of policy, (Ex.OP1/4) and photocopy of mechanical report of speed motors, (Ex.OP1/5).
We have heard learned counsel for parties and gone through the file as well as written arguments submitted by learned counsel for complainant.
Learned counsel for complainant, after reiterating his stand, has further submitted that admittedly, the complainant got her vehicle insured. As per complainant, on 6.8.2016, the car was struck in heavy rain. Its engine was damaged. It was taken to authorized service centre of manufacturer and it was got repaired under the supervision of surveyor appointed by opposite party. The claim was submitted, which was repudiated vide letter dated 9.6.2017, (Ex.OP1/6). Ground for repudiation is that opposite party is of the view that loss comes under consequential loss. The contents of repudiation letter itself proves that opposite party made its mind without any evidence. The categorical version of the complainant is that the car was damaged due to heavy rain. The surveyor has relied upon one writing, (Ex.OP1/5). This writing has no evidential value. It is opinion of one Harpreet Singh. His qualification is nowhere mentioned. He has not inspected the vehicle. He has given his opinion only on the basis of general conditions. Similarly, opposite party has relied upon letter of Mr.V.K Kohli, (Ex.OP1/7). He is only surveyor and loss assessor. He is not mechanic in the concerned field. Therefore, his opinion has no evidential value. When these opinions stand excluded, there remains no evidence of opposite party to prove that it was consequential loss. Opposite party has repudiated the claim allegedly under condition 2(a) of general exceptions, but it has also placed on record copy of policy in question, (Ex.OP1/4). There is no such condition applied by opposite party. Therefore, it is to be inferred that opposite party has examined the claim, but not as per terms and conditions of policy. Therefore, repudiation of claim is not sustainable.
It is further submitted by learned counsel for complainant that the complainant has produced bills, (Ex.C4 and Ex.C6) to prove that a total sum of Rs.3,80,534/- for repair and Rs.1725/- were spent for shifting the vehicle. The repair was got done from the authorized service centre of opposite party under the supervision of surveyor. The policy is 'zero depreciation' policy. The complainant is entitled to reimbursement of full amount. The surveyor has assessed the loss to the tune of Rs.157,639/- only. No affidavit of surveyor is brought on record. Therefore, his report is not admissible in evidence. Even otherwise, his report is not acceptable. The engine was damaged and complainant replaced the half engine assembly. This fact is also mentioned in the survey report, but surveyor has allowed only parts, which were damaged and he has not assessed the loss for the entire half engine assembly. He has also not allowed certain claims, but without mentioning any reason. Therefore, his report is biased and vague. His report is to be discarded. The complaint be accepted as prayed for.
To support these submissions, learned counsel for complainant has cited following case law:-
i) Tata AIG General Insurance Co. Ltd. Vs. Sandesh J. Choutha, II (2017) CPJ 553 (NC);
ii) United India Insurance Co. Ltd. Vs. K. Kannusamy, I (2012) CPJ 19 (NC);
iii) National Insurance Co. Ltd. Vs. Arun Aggarwal, II (2010) CPJ 149 (NC);
iv) Oriental Insurance Co. Ltd. Vs. Mehar Chand, IV (2009) CPJ 230 (NC);
v) National Insurance Co. Ltd. Vs. Subhash Chandra Gupta & Anr., I (2014) CPJ 16A (CN) (UP);
vi) Troikaa Pharmaceuticals Ltd. Vs. National Insurance Co. Ltd. & Ors, III (2019) CPJ 115 (NC);
vii) United India Insurance Co. Ltd. & Anr. Vs. Virender and Nirender, III (2011) CPJ 110 (NC);
viii) Kesar Singh Vs. Sriram General Insurance Company Limited & Anr., III (2019) CPJ 6 (HP);
ix) Shamsher Singh Vs. Kissar Sewa Kender, III (2019) CPJ 11 (Har);
x) Oriental Insurance Co. Ltd. Vs. Shraddha Traders, II (2019) CPJ 300 (NC);
xi) K.L Malhotra Vs. Oriental Insurance Co. & Anr., I (2003) CPJ 107 (NC);
xii) United India Insurance Co. Ltd. Vs. Shree Sunder Marbles, I (2016) CPJ 483 (NC);
xiii) Decision of Hon'ble State Commission rendered in F.A No.827 of 2005 in case New India Assurance Co. Vs. Chamkaur Singh.
On the other hand, learned counsel for opposite party has submitted that the claim is based on insurance policy, copy of which is on file as Ex.OP1/4. The insurance policy is contract like other contracts. The parties are bound by terms and conditions mentioned in the policy and matter is to be decided as per terms and conditions agreed upon. There are certain exclusions mentioned in the policy. Any loss or expenses resulting or arising from the consequential loss are not payable.
After receipt of claim, surveyor was appointed. After receipt of claim,. His report is Ex.OP1/3. Although, he has assessed the loss to the tune of Rs.1,57,639/-, but keeping in view the cause of loss, opinion was also obtained from some expert. Ex.OP1/5, is report of speed motors wherein it is certified that author has experience of 6 years as technician with Parked Hyundai and Maruti. He has categorically mentioned that vehicle is submerged in rain water. Repair is required in certain parts and not all parts are required to be replaced. The opinion was obtained from Mr.V.K Kohli vide his report, (Ex.OP1/7). He has also categorically reported that if vehicle is submerged in 3/4 ft. deep water and it is not started before shifting to workshop, damage can occur only to electric parts and engine will not be effected. This Forum can also take judicial notice of the fact that engine is effected when only if water enters in it. The driver of the vehicle has tried to start vehicle when submerged in water. It resulted in entering of water and caused damage to engine. Therefore, it is clear cut consequential loss, which is not covered. Opposite party has rightly repudiated the claim.
It is further submitted by learned counsel for opposite party that if this Forum comes to the conclusion that loss is covered. Even then, the complainant is entitled to loss assessed by the surveyor. The surveyors are independents. There is no specific challenge to the report of surveyor. His report is not to be disbelieved on the basis of mere allegations.
To support these submissions, learned counsel for opposite party has also cited following case law:-
i) Balendra Gautam Vs. Oriental Insurance Co. Ltd., 2002 (3) CPJ 244;
ii) Lightwalas Vs. Bank of India & Anr. 2015 (1) CPJ 255;
iii) Captain Brij Mohan Vs. New India Assurance Co. Ltd. & Others, 2015 (1) CPJ 621;
iv) Keshav Trading Company Vs. United India Insurance Co. Ltd. 2013 (4) CPJ 159;
v) United India Insurance Co. Ltd. and Others Vs. Roshan Lal Oil Mills Ltd. and Others, 2001(2) CPC 340;
vi) Iffco Tokio General Ins. Co. Ltd. Vs. Beena Raghav, 2015 (3) CPJ 75;
vii) D.N Badoni Vs. Oriental Insurance Co. Ltd., 2012 (1) CPJ 272;
viii) General Assurance Society Ltd. Vs. Chandmull Jain and Anr., 1966 AIR (SC) 1644;
ix) Ravikant Patil Vs. United India Insurance Co. Ltd. 2013 (3) CPR 73;
x) New Horizon Sugar Mills Ltd. Vs. The United India Insurance Co. Ltd. and Ors. 2003 (4) CPJ 81;
xi) National Insurance Co. Ltd. Vs. Noli Ram & Sons, 2017(3) CPJ 378;
xii) Sikka Papers Ltd. Vs. National Insurance Co. Ltd. and Ors, 2009 (3) CPJ 90;
xiii) Decision of Chhattisgarh State Commission, Raipur rendered in F.A/15/159 dated 13.10.2015 in case Rasmadha, Tehsil & District Durg (C.G) Vs. The New India Assurance Company Limited.
We have given careful consideration to these rival submissions and gone through the case law cited by learned counsel for parties.
Admitted facts are that the complainant got her vehicle insured with opposite party. As per complainant, vehicle was damaged on 6.8.2016 i.e. within cover period. The claim was lodged with opposite party, but it has repudiated the claim vide letter dated 9.6.2017, (Ex.OP1/6). Opposite party has tried to justify the repudiation under condition 2(a) U/s 1. It is observed by opposite party that loss comes under consequential loss, which does not fall under the scope of opposite party. When opposite party has taken specific ground to justify the repudiation of claim, onus was upon opposite party to prove that it was consequential loss. Only evidence to support this fact is writings, (Ex.OP1/5 and Ex.OP1/7).
In order to decide the controversy, evidential value of these writings is to be examined. Ex.OP1/5, is writing from Harpreet Singh, the owner of speed motors. This writing is not on specific letter head. His qualifications are not disclosed. There is nothing on record to show that Harpreet Singh is competent to give report on this matter. He has also not inspected the vehicle in question. He has simply stated that if vehicle is parked and it is submerged in heavy rain, some parts are required to be repaired. Therefore, in the absence of any qualifications of Harpreet Singh, no evidential value can be attached to this writing.
Other document is Ex.OP1/7, which is given by Mr.V.K Kohli, surveyor and loss assessor. Although, this writing is submitted by Mr.V.K Kohli, but his opinion is only on the basis of documents and bills provided to him and he has opined on the basis of bills as well as discussion with Harpreet Singh of speed motors. The report of Harpreet Singh of speed motors is already considered having no value. Therefore, discussion of Harpreet Singh with Mr.V.K Kohli is also insignificant. There is also nothing to show that Mr.V.K Kohli has any qualifications in mechanical field to give report on the subject. Therefore, this report is not going to support repudiation of opposite party.
A perusal of repudiation letter also reveals that it is based on view of the Senior Branch Manger as well as Harpreet Singh Nagra A.M and Joginder Singh, A.O and claim is repudiated on the basis of recommendation given by B.O, Sunam that claim does not fall under scope of policy. There is no record to prove the basis of recommendation by B.O, Sunam. From this angle also, repudiation of claim is not justified.
Now, point for determination is amount for which the complainant is held entitled to. She has claimed that she has spent Rs.3,82,259/-. Although, she has alleged that the surveyor appointed by opposite party is not independent, but this fact cannot be accepted only on the basis of mere allegations. There is nothing to show that the surveyor was bias or his report is not correct.
Hon'ble National Commission in case of Narinder Kumar Joshi Vs. Reliance General Insurance Company Limited IV 2017 CPJ 366 (NC) has observed that the insurance claim is to be settled on the basis of surveyor report unless legitimate reasons are pointed out for not accepting the surveyor report.
Similarly, in case of Sri Venkatshwar Sindikat Vs. Oriental Insurance Company and Anr., II (2010) CPJ 1 (SC), Hon'ble Supreme Court of India has observed that the surveyors were appointed under statutory provisions and they are linked between insurer and insured when question of settlement of loss or damage arises. The report of the surveyor could become base for settlement of claim by the insurer in respect of loss suffered by the insured.
Therefore, keeping in view the aforesaid law also, the surveyor report is to be accepted. The surveyor has assessed the loss to the tune of Rs.1,57,639/-. The complainant is held entitled to claim to this extent. Opposite party has repudiated the claim illegally. Therefore, she is also entitled to interest @ 9% per annum as compensation from the date of repudiation i.e. 9.6.2017 till date of payment.
. For the reasons recorded above, the complaint is partly accepted with Rs.10,000/- as cost against opposite party. Opposite party is directed to pay Rs.1,57,639/- alongwith interest @ 9% per annum from the date of repudiation i.e. 9.6.2017 till date of payment, to the complainant.
The compliance of this order be made within 45 days from the date of receipt of copy of this order.
The complaint could not be decided within the statutory period due to heavy pendency of cases.
Copy of order be sent to the parties concerned free of cost and file be consigned to the record.
Announced:-
09-10-2019
(M.P Singh Pahwa)
President
(Manisha)
Member
