State Consumer Disputes Redressal Commission
Bajaj Allianz General Insurance Co. ... vs Smt. Vidya Subhash Mandora And Others on 10 December, 2013
Daily Order
BEFORE THE
HON'BLE STATE CONSUMER DISPUTES REDRESSAL
COMMISSION, MAHARASHTRA, MUMBAI
First Appeal
No. A/11/847
(Arisen out
of Order Dated 27/07/2011 in Case No. 112/2008 of District
Mumbai(Suburban))
BAJAJ ALLIANZ GENERAL INSURANCE CO. LTD.,
HAVINGS IT OFFICE AT:-
G.
E. PLAZA,
AIRPORT ROAD
YERVADA, PUNE 411006
...........Appellant(s)
Versus
1. SMT. VIDYA SUBHASH MANDORA
PLOT NO.1502
TOWER-'B', SATYAM TOWERS
THAKUR COMPLEX
90, V. P.
ROAD
KANDIVALI EAST
MUMBAI 400101
2. SHRI.V.V.ARORA
PLOT NO.8,1ST FLOOR,
PREM SAGAR CO-OP. HSG. SOCIETY LTD.
ROAD MO.4, SION (E),
MUMBAI-400 022
3. M/S.SHAMOL MOTORS PVT. LTD.
SHOWROOM MADHUKUNJ,
SAYANI
ROAD,
PRABHADEVI
ROAD,
MUMBAI-400 025
...........Respondent(s)
BEFORE:
HON'ABLE MR. JUSTICE R.C.Chavan PRESIDENT
HON'ABLE MR. Dhanraj Khamatkar Member
PRESENT:
Adv. S. R. Singh for the Appellant
Adv. S. Z. Choudhary for the Respondent No.3
None for other Respondents
ORDER
Per - Hon'ble Mr. Dhanraj Khamatkar,
Member This appeal filed by Appellant/original Opponent No.1 - Bajaj Allianz General Insurance Company Ltd. (hereinafter referred to as 'the Insurance Company' for the sake of brevity) takes an exception to an order dated 27/07/2011 passed by the Mumbai Suburban District Consumer Disputes Redressal Forum (hereinafter referred to as 'the District Forum' for the sake of brevity) in Consumer Complaint No.112 of 2008, Smt. Vidya Subhash Mandora Vs. M/s. Bajaj Allianz General Insurance Company Ltd. and Others. Facts leading to this appeal can be summarized as under:-
[2] Respondent No.1/original Complainant - Smt. Vidya Subhash Mandora (hereinafter referred to as 'the Complainant' for the sake of brevity) had availed an insurance policy for her vehicle for the period 08/02/2007 to 07/02/2008.
On 30/06/2007 there were heavy rains in Mumbai city and during the rains the Complainant had parked the insured vehicle near her residence. Because of heavy rains, there was water-logging and the rain water entered in the insured vehicle. On the next day the Complainant tried to start the insured vehicle. However, the insured vehicle did not start.
Hence, the Complainant towed the insured vehicle and took it to the garage of the Respondent No.3/original Opponent No.3. Complainant informed about the same to the Insurance Company. Accordingly, the Insurance Company had appointed a Surveyor (Respondent No.2/original Opponent No.2) and the Surveyor had inspected the insured vehicle on 10/07/2007 and again on 17/07/2007.
The Complainant contended that on 24/09/2007, the Insurance Company instructed the Complainant to start the repairs to the insured vehicle and accordingly, the Respondent No.3 started repairs to the insured vehicle.
[3] Respondent No.3/original Opponent No.3 repaired the insured vehicle and prepared a bill for repairs amounting to `2,93,720/-. Complainant requested the Insurance Company to pay the amount towards repair bills to the Respondent No.3. However, the Insurance Company had sanctioned the insurance claim only to the extent of an amount of `30,065/- and informed the Complainant that the Complainant had not taken due care of the insured vehicle and hence, the Insurance Company was not responsible to pay the entire bill for repairs. Thereafter, the Complainant issued a notice to the Insurance Company. However, the Insurance Company refused to reconsider the Complainant's claim.
As the Respondent No.3 did not receive the payment, it has not handed over the possession of the insured vehicle to the Complainant. Hence, alleging deficiency in service on the part of the Insurance Company, the Complainant approached the District Forum and filed a consumer complaint impleading the Insurance Company as the Opponent No.1, Surveyor as the Opponent No.2 and the Garage as the Opponent No.3.
[4] Insurance Company contested the claim by filing a written version inter-alia contending therein that the Surveyor had submitted his Survey Report regarding the claim made by the Complainant, wherein the Surveyor had stated that as the rain water entered into the engine of the insured vehicle, the engine could not start.
However, the Complainant tried to start the insured vehicle and hence, damage was caused to the insured vehicle. It was contended that it was a mistake on the part of the Complainant and, therefore, the Surveyor had recommended that the Insurance Company is not liable to sanction the claim in respect of repairs to the engine and the Surveyor had only allowed reimbursement of incidental expenses and on the basis of report of the Surveyor, the Insurance Company has sanctioned the claim limited to the extent of incidental expenses of `30,065/-. Thus, the Insurance Company claimed that there was no deficiency in service on its part and prayed that the complaint may please be dismissed.
[5] Respondent No.2/original Opponent No.2, the Surveyor, in his written version stated that the engine of the insured vehicle got damaged because the Complainant tried to start the engine and hence, he has not recommended reimbursement of expenses incurred for repairs of the engine.
[6] Respondent No.3/original Opponent No.3, in its written version filed before the District Forum, contended that he started the work of repairs to the insured vehicle on the instructions of the Complainant and he repaired the insured vehicle on 14/12/2007 and the final bill for repairs of `2,91,749/- was accordingly prepared and handed over to the Complainant. However, because of a dispute between the Complainant and the Insurance Company regarding the insurance claim, the Insurance Company had not paid the repair charges to the Respondent No.3 and hence, he has not handed over the possession of the insured vehicle to the Complainant.
It is further contended that parking charges are calculated @ `200/- per day and this amount is to be paid by the Complainant. On these main grounds and other grounds as set out in the written version, the Respondent No.3/original Opponent No.3 prayed that the complaint may be dismissed so far it relates to the Respondent No.3/original Opponent No.3.
[7] The District Forum after going through the complaint, written versions filed by the Opponents, rejoinder filed by the Complainant, evidence filed by the parties on affidavits and pleadings of their respective advocates came to a conclusion that there is deficiency in service on the part of the Insurance Company and partly allowed the consumer complaint directing the Insurance Company to pay to the Complainant an amount of `2,91,749/- together with interest thereon @ 9% p.a. as from 14/11/2007 besides costs of `5,000/-. Balance amount of `1,48,875/- out of the total amount of `2,91,749/-
deposited by the Complainant was directed to be released in favour of the Opponent No.3/Garage together with interest accrued thereon. Consumer complaint stood dismissed as against the Opponent No.2/Surveyor and the Opponent No.3/Garage. Being aggrieved by the said order, the Insurance Company has preferred this appeal.
[8] We have heard Adv. S. R. Singh on behalf of the Appellant/Insurance Company and Adv. S. Z. Choudhary on behalf of the Respondent No.3/Garage. Respondents Nos.1 and 2 chose to remain absent and did not advance their oral submissions.
[9] We have gone through the order passed by the District Forum and evidence on record. Admittedly, the Respondent No.1/original Complainant had availed of an insurance cover for his vehicle from the Insurance Company and the insurance policy was valid for the period 08/02/2007 to 07/02/2008. It is an admitted fact that there were heavy rains in Mumbai city and there were many incidences of water-logging and because of water-logging, the rain-water entered into the insured vehicle. In the present appeal important question is whether the survey report is binding on the Insured and the Insurer. The Apex Court in the case of New India Assurance Company Ltd. Vs. Pradeep Kumar ~ 2009-ACJ-1729; has observed that survey report is not final and it is not binding on the Insured or the Insurer. In view of this, the District Forum has rightly over-looked the authorities/citations of the decisions passed by the National Consumer Disputes Redressal Commission, quoted and relied upon by the Learned Advocate for the Insurance Company.
[10] Perusal of the survey report reveals that the Surveyor visited the garage on 10/07/2007 and again on 17/07/2007 and instructed the Complainant to start the repair works of the insured vehicle. In the preliminary survey report dated 30/07/2007, there is no reference regarding the damage to the engine. In the said report the surveyor observed that there was rain-water in some parts of the insured vehicle. Thereafter, there is no evidence to show that the surveyor inspected the insured vehicle. Observations regarding damage caused to the engine because the Complainant tried to start the insured vehicle had came in the final survey report only.
Hence, the District Forum observed that the observations of the surveyor are not based upon the inspection of the insured vehicle. The Surveyor had tried to apply logic to the conclusions drawn by him.
Learned Counsel for the Insurance Company tried to rely on Clause No.(4.1) of the terms and conditions of the insurance policy wherein it is stated that any accidental loss or damage to any property what-so-ever or any loss or expense what-so-ever resulting or arising therefrom or any consequential loss. We observe that this will not be applicable in the present case. In his survey report, the surveyor has termed that the fault in the engine was caused because of hydro-static law as the Complainant had tried to start the insured vehicle. It is a common sense that anybody will try to start the vehicle and accordingly, the Complainant tried to start the insured vehicle and when she could not start the insured vehicle she took the vehicle to the garage for finding what was the fault with the insured vehicle and accordingly, it was informed to the Insurance Company.
[11] Not only this Insurance Company had informed the Complainant on 24/09/2007 to repair the insured vehicle and on the basis of said letter, the repairs were carried out.
The District Forum after taking into consideration the facts of the case and evidence on record had rightly allowed the consumer complaint as the Appellant/Insurance Company failed to pay the legitimate claim of the Respondent No.1/original Complainant and held that Appellant was deficient in rendering service. We do not find any substance or merit in the present appeal filed by the Insurance Company. We hold accordingly and pass the following order:-
ORDER Appeal stands dismissed.
No order as to costs.
Pronounced and dictated on 10th December, 2013 [HON'ABLE MR. JUSTICE R.C.Chavan] PRESIDENT [HON'ABLE MR. Dhanraj Khamatkar] Member KVS