CORAM : MS. POONAM CHAUDHRY, PRESIDENT
SH. BARIQ AHMAD, MEMBER
MS. ADARSH NAIN, MEMBER
Date of Institution: 30.12.2014
Date of decision: 14.12.2021
SH. BARIQ AHMAD, MEMBER
ORDER
Hearing Through Video Conferencing.
- The brief facts of the complainant are that the complainant purchased one Maruti Swift Dzire VDI BS4 bearing registration No.DL-3C-BC-5359, which was insured with Opposite Party (in short OP) United India Insurance Co. Ltd. vide the policy No.041784/31/01/00002295 for the period from 22.10.2013 to 21.10.2014 . It is stated that on 10.08.2014, the complainant parked his vehicle near his office at Saidulabad, Saket, Delhi which in vicinity of Delhi Metro Station. Due to severe rain, water started logging up on the road and in the parking lots, and eventually, said vehicle was sunk in water of two and half feet approximately, it took couple of day to clear all the water from the parking lot. The complainant tried to start his car but failed, the complainant contacted the helpline of OP but who also could not start the vehicle as the engine of the car got seized. The car was taken out from the water by pushing it manually and then taken to the workshop of Maruti the Complainant had called Competent Automobiles Co. Ltd. who initially advised and gave the estimate of parts like BCM, main Relay, EPS, Diesel filter & filter Sensor and steering assembly worth Rs.46,891/- qua the damages due to water logging and labour charges of Rs. 9000/-. The complainant had also lodged a claim request with OP, OP deputed Mr. Ankur Agarwal as surveyor to survey and assess the loss. The surveyor had visited the workshop. The workshop officer assured that once the above parts were replaced only then further diagnoses could be done, if required, It is further stated that the OP appointed surveyor agreed but after replacing the above parts, as vehicle still do not start, further diagnosis was done and found that compression was very low in all four cylinders, the engine needed to be opened, which was duly informed to Mr. Ankur Agarwal/surveyor but he did not responds or re-visit the service centre but informed on the cell phone that “ he will not cover the engine in insurance and only cover the parts excluding engine.” The complainant then reported the matter to OP through e-mail dated 23.08.2014 and made further request to change the surveyor, and take, complainant`s car repair on priority as he was facing problem due to non availability of the vehicle and was forced to pay huge Taxi bills. It is also alleged on 26.08.2014 the complainant again received second estimate of Rs.78,602/- for repair through e-mail, from competent motors which was duly forwarded to OP and the surveyor. The complainant visited OP several times. The Workshop Manager told the complainant that the requisite approval had not been received from the OP. The complainant even sent an email dated 27.08.2014, 12.09.2014 respectively to OP and requested to get the repair work started but nothing was done, infact surveyor failed to visit the workshop and also failed to give instruction to service center to carry our work, as a result of which worked started late, due which complainant had to face hardship. On 18.09.2014 & 19.09.2014 complainant had informed OP that his vehicle had been repaired and wanted the insurance surveyor to come and inspect the vehicle, however despite complainant`s personal visit and calls to Mr. Ankur Agarwal, the surveyor he failed to inspect the vehicle after repair.
- It is further alleged that inspite of receipt of all the bills, OP passed the claim of only Rs.31,592/- after almost 93 days , without disclosing the mode of calculation of arriving as a sum of Rs.31,592/- instead of sum of total Rs.1,08928/- The complainant immediately on 11.11.2014 & 17.11.2014 sent e-mails and made personal visits to OP and requested the OP to supply the details of the claim amount allowed and reason of rejection of the rest of the claim amount but no positive response was received. It has further been alleged that there are various discrepancies and lapses in the surveyor`s investigation and OP deliberately denied the cashless facility to complainant and OP did not justify the details of the claim. A false report had been prepared by the officials of OP without proper inspection of the vehicle in connivance with OP in order to extort money from the complainant. OP did not give the approval to repair the engine with malafide intention. The OP did not convey the contents of the inspection report to complainant till 09.12.2014.
- It is also alleged on 09.12.2014, the complainant sent a legal notice/demand notice to OP to pay the balance amount as well supply of the detail of the claim passed, as total bill for a sum of Rs.1,08,928/- for repair of the car was lodged, Out of which Rs.31,592/- was paid by the OP directly to service centre on behalf of complainant under protest. It has alleged that there was negligence on the part of OP in not giving the total approval of the bill for repair of the car. The complainant had taken delivery of the car under protest. It is further stated that the OP has not paid the balance amount of Rs.77,326/- alongwith interest. The aforesaid dereliction of duties and failure to provide the prompt service amounted of deficiency of service due to which complainant suffered losses and incurred expenses, which OP is liable to pay. Complaint is thus claiming Rs.1,52,680/- and interest @ 18% P.A. on the said amount till the date of realization of the amount.
- OP contested the case and filed the reply alleged that claim has been allowed as per the assessment of the duly appointed surveyor/investigator. There is no deficiency in service on part of OP as the surveyor assessed the loss of vehicle to the tune of Rs. 31,593/- which has been paid to the complainant, as per the term of the policy. The remaining amount is deducted as per the terms of policy. The assessed amount of loss has been paid to the complainant. The remaining amount is deducted as per the policy terms. The complainant had availed the cashless facility. As per surveyor`s assessment repairing of damages to engine found in claim in question are excluded under wear and tear clause. It was also stated that the complainant is not maintainable, not entitled to any relief.
- The Complainant filed rejoinder reiterating therein the contents of the complaint and denying the allegation made in the WS. The complainant categorically denied that the complaint is without any cause of action. It was also denied that the OP is not liable to pay any balance amount. It was also stated that OP has no documentary proof to prove that OP has settled the claim and the same has been accepted by the complainant.
- In order to prove his case the complainant filed his evidence by affidavit and also filed written submission. The complainant placed on record, copy of registration certificate of the vehicle, copy of insurance policy No.041784/13/01/00002295 for the period of 22.10.2014 TO 21.10.2014, copy of road side job slip, 1st estimate issued by Competent Motors of Rs.46,891/- + labor charges of Rs.9,000/-, Copy of e-mail dated 23.08.2014 send to OP to change the surveyor copy of e-mail dated 26.08.2014 by Competent Motors work shop for 2nd estimate of repair & survey. Copy of e-mail dated 27.08.2014 & 12.09.2014 sent to OP for instruction to carry on the work, Copy of e-mail dt.18.09.2014 & 19.09.2014 to inform OP that vehicle had been repaired, copy of invoice No.BR14009981 dt.19.08.2014 for sum of Rs.30,326/- & No.BR14011043 dt.19.09.2014 for sum of Rs.78,602/-, copy of e-mail dt.11.11.2014 & 17.11.2014 to OP after passing of the short claim amount, copy of legal/demand notice dt.06.12.2014 alongwith speed post receipt dated 08.12.2014. OP also filed evidence by affidavit reiterating therein the averments made in WS/reply. The OP had proved the surveyor’s report as RWI/A.
- We have heard the learned counsel for parties and perused the record. The learned counsel for complainant placed reliance on a decision of Hon’ble Supreme Court in the matter of United India Insurance Versus Ajmer Singh Cotton and General Mills and other (1986-199 Consumer 5077 {NS} ) that wherein it has been held “mere execution of the discharge voucher would not always deprive the consumer from preferring claim with respect of the deficiency in service or consequential benefits arising out of the amount paid in default of the service rendered’. The learned counsel of complainant also relied upon a decision of Hon’ble National Consumer Disputes Redressal Commission, New Delhi in case titled Vinod Bhardwaj vs M/S. Tata Aig Insurance Co. Ltd. & ... on 29 August, 2017 it was held that “mere execution of the discharge voucher would not always deprive the consumer from preferring claim with respect to the deficiency in service or consequential benefits arising out of the amount paid in default of the service rendered. Despite execution of the discharge voucher, the consumer may be in position to satisfy the Tribunal or the Commission under the Act that such voucher or receipt had been obtained from him under the circumstances which can be termed as fraudulent or exercise of undue influence or by mis-representation or the like’. It is to be noted that the complainant wrote to the OP through his e-mail dated 11.11.2014, 17.11.2014 and served a legal notice dated 06.12.2014 urging the OP that OP had settled the claim for less amount and avoided and neglected to pay the full amount to the complainant and demanded the balance amount against the claim. The execution of the discharge voucher and acceptance of the insurance claim would not stop the insured from making further claim from the insurer.
The learned counsel for the complainant also relied upon another decision of Hon`ble National Consumer Disputes Redressal Commission, New Delhi in R.P. No.4504 of 2014 titled Bharti Axa General Insurance Co. v/s Chadra Mohan Goyal …. on 05 01. 2015, wherein it has been held that any damage on account of hydro-static lock would be covered under the clauses of insurance policy unless expressly excluded in the Hon. Supreme Court held in 2009 (7) SCC Page 787 (SC) titled as New India Insurance Co. Ltd. Vs. Pardeep Kumar that “surveyor report although the assessment of loss by the approved surveyor is a pre-requisite for payment or settlement of claim, but surveyors report is not the last and final word- It is not sacrosanct that it cannot be departed from; it is not conclusive approved surveyors report may be basis or foundation for settlement of a claim by the insurer in respect of the loss suffered in this by the insured but surely such report is neither binding upon the insurer nor insured”.
The parties have admitted the Policy in question, metal fatigue. It is pertinent to noted that hydro static locking is considered as an accident and covered by the terms of the insurance policy and the damage caused to the engine of insured car cannot be termed as consequential damage. Also
The next question for consideration before this commission is whether the report of the surveyor is to be accepted as per terms and conditions of insurance policy. In the present case, after the incident of heavy rain and water logging, the complainant submitted his claim to OP and the insurance company appointed Sh. Ankur Agarwal as Surveyor and after his thorough examination, the surveyor submitted his report observing in clause 1 stating that “narration of the insured regarding the cause of accident/incident appears to be genuine & reliable. It is also indemnifiable under the scope of captioned insurance policy”. The surveyor stated that the repair or replacement of engine part is not covered under the motor comprehensive insurance policy as it is considered as consequential loss and after inspection of the vehicle, only damages due to entering of water in the engine are allowed (initial loss) but the damages that occurred due to negligence of the insured are dis-allowed, The assessed loss to the said vehicle is to tune of Rs.31,592/-. Ld. Counsel for complainant alleged that the surveyor only carried some visual inspection. The engine was not got dismantled. The estimate may be Rs.1,08,928/- or more, depending on the items damaged. The service centre is also not in a position to tell the extent of damage. In surveyor report dated 10.08.2014 there is no preliminary note that inside of passenger compartment was affected due to flood water was the damages in the engine due to hydrostatic lock or metal fatigue. The same could only be ascertained after engine was dismantled, preliminary note as well official confirmation from the end of OP to proceed further in the matter are missing in survey report. The insurer also failed to appoint another surveyor despite written request dated 23.08.2014 of the complainant.
We have also perused the insurance policy in respect of the vehicle in question. The said policy while covering damage, does not exclude the loss to the vehicle due to hydro static lock. In the absence of such an exclusion, the OP/ insurance company will have to reimburse cost of repair of the vehicle on account of damage by heavy rains and flooding irrespective of whether the said loss occurred due to hydro static lock or for some other reason. Therefore, we have no hesitation holding that the damage to engine of the vehicle is covered by the insurance policy.
Thus, we are of the considered view that the repudiation of the balance claim was arbitrarily, wholly unwarranted and unjustified on the part of OP, which amounted to deficiency in service. We therefore hold, OP guilty of deficiency in services and direct it as under:
- The OP is directed to pay the remaining claim amount of total Rs.77,326/- (Rupees Seventy Seven Thousand Three Hundred Twenty Six Only) towards the repaired expenses of the vehicle, to the Complainant, with interest thereon from the lodging of claim till the payment @9% PA, within a period of 4 weeks from the date of this order.
- The OP is directed to pay a sum of Rs.5,000/- (Rupees Five Thousand Only) towards cost of the proceedings.
Ordered accordingly. Office is directed to send a true copy of this order to the parties by speed post in accordance with the rules. This final order be sent on server (www.confonet.nic.in). Thereafter, file be consigned to record room.
Announced on this 14th Day of December, 2021.
(POONAM CHADHARY)
President
(BARIQ AHMAD) (ADARSH NAIN)
Member Member
