O R D E R
By Dr.K.RadhakrishnanNair, President (I/C)
Complainant is a senior citizen. His car Honda Civic having the Reg.No.KL-46/A 4999 was insured with the opposite party under the Motor Package Policy No.101882/31/14/01/00001615 and its insured declared value was Rs.5,20,000/-. Complainant alleges that the above vehicle met with an accident on 2/9/2014 by 10am at Guruvayur causing
damage to the engine block and pan oil and it was informed to the 1st opposite party on the same day. Then the 1st opposite party was pleased to reply conveying that surveyor will be appointed and he will be inspecting the vehicle on the spot. Unfortunately to state by the complainant nobody from the company/opposite party inspected the vehicle on the spot and on 4/9/2014 the complainant was instructed to take the vehicle to the service centre. With the help of Thekkakara Crane Service it was taken to the service centre spending about Rs.5,000/-. Surveyor inspected the vehicle only on 17/9/2014. The factum of accident was reported much earlier, but subsequent steps taken including the survey were very late with inordinate delay. As instructed further by the surveyor and the opposite party the engine assembly was dismantled in order to find the damages sustained to the vehicle. Claim form and required documents were also given to the opposite party. Where the claim form was unfilled and as advised by the surveyor signature was given in the claim form and it was assured that filling up and other things will be done at their end. Surveyor filed his report on 29/9/2014 stating that “on inspection of the vehicle and checking the underbody/chasis, it was noted that there was no mark/impact at underbody and this was informed to the repairer. The under body was found as intact. A crack was found on middle/bottom area of engine block which was found as extended to oil pan also. There was no pressing at the bottom portion of oil pan. It was appeared that the damage was caused not due to the reported accident/impact from under body as detailed in the claim form. Hence the claim is not admissible”. Aggrieved by the delay in processing and settlement of the claim, a lawyer notice was sent on 6/11/2014 demanding a sum of Rs.2,04,873/- with 18% interest from the date of submitting the claim till the date of payment and an additional amount of Rs.1,00,000/- towards compensation. On receipt of the above notice on 10/11/2014 a reply was sent rejecting the claim without any just reasons. Complainant being a business man the car was a necessity to meet his daily needs and business affairs. As the claim was disallowed, the complainant was forced to do the necessary repairs spending money himself. As per in voice No.SER-INV-DD133-1415-11655 dated 22/2/2015 the complainant had paid an amount of Rs.2,56,346/- to M/s.Vision Motors (Pvt.) Ltd., NH Bypass, Ollukkara.P.O., Thrissur. Being a consumer the opposite party is liable to pay the claimed amount. Repudiation of claim is without any reasonable ground and opposite party is deficient in service. The complaint may be allowed directing the opposite party to pay the repair charges to the tune of Rs.2,56,346/- with 18% interest from the date of claim till the date of payment. Besides Rs.1,00,000/- towards compensation for mental agony and irreparable injury suffered and Rs.5,000/- towards towage and other transportation expenses along with litigation expenses.
2. The case was admitted, issued notice to opposite parties. Opposite parties appeared before the Forum and filed their version. Opposite parties seriously challenged the statements of the complainant. It is true that the claim was repudiated by their letter dated 3/11/2014 based on the surveyor’s report. As per the findings of the surveyor the defect of the vehicle is purely mechanical in nature and not caused out of an external impact or accident. Since there is no cause of action and no deficiency in service or unfair trade practice on the part of opposite parties, the complainant is not at all eligible to get any amount from the opposite parties and the complaint be dismissed with cost.
3. The case then posted for evidence. The points for consideration are the following:
1) Is there any deficiency in service on the part of opposite parties?
2) If so what reliefs and costs ?
4. Complainant and opposite parties filed their proof affidavits, documents and tendered oral evidence. Argument notes were also filed. From the side of complainant 11 documents were produced and are marked as Exts.P1 to P11. Ext.P1 is the true copy of RC book, Ext.P2 is the true copy of the policy, Ext.P3 is the true copy of the driving licence, Ext.P4 is the true copy of bill of crane service, Ext.P5 is copy of service check sheet of vision Honda, Ext.P6 is copy of survey report, Ext.P7 is copy of lawyer notice dated 6/11/14, Ext.P8 is postal receipt, Ext.P9 is A/D card, Ext.P10 is reply notice dated 13/11/14 and Ext.P11 is invoice dated 20/2/15. Deposition of witnesses marked as PW1 and PW2.
5. From the side of opposite parties 7 documents were produced and marked as Exts.R1 to R7. Ext.R1 is the copy of final survey report dated 20/10/2014, Ext.R2 is package policy, Ext.R3 is claim form, Ext.R4 is letter dated 20/9/14 informing that the claim is not admissible, Ext.
R5 is lawyer notice dated 6/11/14, Ext.R6 is claim repudiation letter dated 3/11/2014 and Ext.R7 is copy of reply notice dated 13/11/14.
6. On examining the proof affidavits, documents and depositions submitted by the parties, this Forum is convinced that an accident as described in the claim form may be the probable cause of this loss. The cause of loss as declared by the opposite party is nothing but mechanical failure as per Ext.P10. This conclusion seems to be without any supporting documents. In Ext.R1 the surveyor reports that “the damage to engine was not caused due to any external impact/accidental external means. The damage/loss to engine was appeared as caused due to some internal/other complaint which will not come under the purview of the policy”. While arriving at such a jumping conclusion as not coming under the purview of the policy the surveyor could have observed that there are mechanical failures as well. On first inspection a hole was noted on the front side of block and the broken piece was not seen. On his second inspection he has noted that a crack was developed from top area of oil pan/crank case and spread to two third of the total height of oil pan/crank case through which oil had leaked out. Engine was dismantled also. Being a qualified and competent expert he could have concluded the cause of loss more specifically. According to the surveyor there was no hit mark on under chasis/bottom area. The reported date and time of accident is on 2/9/2014 at 10am. Whereas the reported date of survey is on 16/9/2014. Being a major claim amount, the opposite party ought to have entrusted another surveyor or the same surveyor to conduct the spot survey immediately on the intimation of accident. As stated otherwise by the complainant through his solemn statement this Forum cannot disbelieve him in toto. The impact of hit varies and depend upon surface to surface. There may be cases where no signs are left even in cases of severe impact. At least some marks would be possibly seen if the spot survey was done within a short period. This tentamount to lapses and deficiency in service. In the instant case the opposite party has a greater onus to prove that the cause of loss was not an accident but mechanical failure to substantiate repudiation. The sole document to evaluate the merits of the case is the survey report which does not throw much light to prove that the cause of loss was mechanical failure in specific terms.
7. In Union of India Vs.Sunil kumar Gohosh 1984 (4) SCC 246 our Hon’ble Supreme Court has delineated the word “Accident” which means an occurrence or an event which is unforeseen and startles one when it takes place but does not startle one when it does not take place. It is the happening of the unexpected, not the happening of the expected, which is called an accident. Any fortuitous event takes place without a human design is an accident. In other words an event or occurrence the happenings of which is ordinary expected in the normal course by almost everyone undertaking a rail journey cannot be called an accident. But the happening of something which is not inherent in the normal course of events and which is not ordinarily expected to happen or occur is called a mishap or an accident. P.Ramanatha Aiyar’s Law Lexicon defines the expression accident as “an event that takes place without one’s foresight or expectation; an event that proceeds from an unknown cause, or is an unusual effect of a known cause, and therefore not expected chance, causality, contingency”. As quoted from Colinvanx’s law of Insurance discusses the effect and impact of the expressions, violent, external and visible means in Alka Shukla Vs. LIC 2019 KHC 6483 (SC). The violent does not necessarily imply actual violence. The word is used simply as the antithesis of without any violence at all.
External The word external in these policies merely serves to reiterate the general principle that the injury/loss must not be attributable to natural causes.
Visible It is probable that this word adds nothing to the policy coverage since every external cause must be visible. It appears to be included merely for the purposes of emphasis.
8. PW1 is the deposition of surveyor. He has confirmed that it is a true report. PW2 has also deposed that as a repairer he is unable to identify the exact cause of the loss. Since there is no reliable evidence to prove otherwise, that the loss is caused due to a mechanical failure by the opposite party, we are convinced to find in favour of the complainant being the cause of loss an accident. Therefore, the repudiation of a genuine claim of the complainant tentamounts to deficiency in service.
9. The claim was lodged on 15/9/2014 and the accident was occurred in 2/9/2014. There is no documentary evidence to prove that he had intimated to the opposite party on the same day. If the claim form and required documents were given on 15/9/2014, the opposite party cannot be blamed for not conducting the spot survey. Complainant had disregarded knowingly or not, the prescribed loss control measures necessarily to be complied with. On this count alone complainant has to forgo 25% of the eligible claim amount and the same will be forfeited.
10. Relief and costs : Having found that the opposite party has committed deficiency in service by repudiating the genuine claim of the complainant. We are inclined to allow the complaint directing the opposite party to pay 75% of the amount due to him as assessed by the surveyor to the complainant within 30 days of the receipt of this order. No compensation and cost is allowed.
Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the open Forum this the 1st day of July 2020.
Sd/- Sd/-
Sreeja.S Dr.K.Radhakrishnan Nair
Member President I/C
Appendix
Complainant’s Exhibits
Ext.P1 True copy of RC book,
Ext.P2 True copy of The policy,
Ext.P3 True copy of The driving licence,
Ext.P4 True copy of bill of crane service,
Ext.P5 copy of service check sheet of vision Honda,
Ext.P6 copy of survey report,
Ext.P7 copy of lawyer notice dated 6/11/14,
Ext.P8 postal receipt,
Ext.P9 A/D card,
Ext.P10 Reply notice dated 13/11/14
Ext.P11 Invoice dated 20/2/15
Complainant’s witnesses
PW1 – K.C.Muraleedharan Nair
PW2 – Prasanth S Nair
Opposite Parties Exhibits
Ext.R1 copy of final survey report dated 20/10/2014,
Ext.R2 package policy,
Ext.R3 claim form,
Ext.R4 letter dated 20/9/14 informing that the claim is not admissible, Ext.R5 lawyer notice dated 6/11/14,
Ext.R6 claim repudiation letter dated 3/11/2014
Ext.R7 copy of reply notice dated 13/11/14
Id/-
President I/C
