State Consumer Disputes Redressal Commission
M/S Abode Realtors vs New Indiaassurance Co. Ltd. And Another on 25 May, 2015
2nd Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH
First Appeal No. 1273 of 2013
Date of institution: 22.11.2013
Date of Decision: 25.5.2015
M/s Abode Realtors, SCO No. 673, Sector 70, Mohali (Punjab) through its
Partner/Chairman Mr. D.S. Chadha.
Appellant/Complainant
Versus
1. New India Assurance Co. Ltd., Choti Baradari, Patiala through its
Senior Divisional Manager.
2. The New India Assurance Co. Ltd., 87, Mahatma Gandhi Marg, Fort,
Mumbai - 400 001 through its CMD.
Respondents/OPs
First Appeal against the order dated 8.10.2013
passed by the District Consumer Disputes
Redressal Forum, Patiala.
Quorum:-
Shri Gurcharan Singh Saran, Presiding Judicial Member
Shri Jasbir Singh Gill, Member
Mrs. Surinder Pal Kaur, Member
Present:-
For the appellant : Sh. R.K. Shukla, Advocate
For the respondents : Sh. Gourav Goyal, Advocate for
Sh. R.S. Madan, Advocate
2
FIRST APPEAL NO. 1273 OF 2013
Gurcharan Singh Saran, Presiding Judicial Member
ORDER
The appellant/complainant (hereinafter referred as "the complainant") has filed the present appeal against the order dated 8.10.2013 passed by the District Consumer Disputes Redressal Forum, Patiala (hereinafter referred as the District Forum) in consumer complaint No.180 dated 28.5.2013 vide which the complaint filed by the complainant was dismissed being not maintainable and on merits also.
2. A consumer complaint was filed by the complainant firm. It was further stated that Mr. D.S. Chadha is Chairman of the complainant firm and as such, is competent to file this complaint. It was stated that the complainant being an owner of car No. PB-65-N- 9913, model 2012, which was comprehensively insured from respondents/OPs(hereinafter referred as 'OPs'). Op No. 1 issued Policy No. 3500031110100004254 for the period 31.7.2011 to 30.7.2012. The policy was again renewed vide policy No. 36140031 120 100005167 for the period 31.7.2012 to 30.7.2013. On 11.10.2012 at 7.30 PM, Mr. Harinder Singh, Driver was driving this vehicle from Patiala-Dakala Road and on the route near Village on Narrow Pulley (bridge), a stone struck the vehicle underneath. Driver checked it and he took it to the residence. However, on the next morning i.e. 12.10.2012 when he tried it to start, it did not start. Car was towed to M/s Padam Cars (P) Ltd., who was authorised Dealer, who at the first instance prepared the estimate of Rs. 12,000/-. 3 FIRST APPEAL NO. 1273 OF 2013 However, the Ops on intimation deputed Mr. Narang, Surveyor and Loss Assessors and after dismantling, it was found that its engine had also been damaged in the accident and they prepared supplementary estimate of Rs. 2,29,825.92p on 13.12.2012. It was intimated to the Ops. The OPs deputed Mr. Chander Shekhar, Surveyor to assess the loss and during estimation, the Surveyor asked the complainant, that he should not insist for new engine and should agree for the second engine. Accordingly, the Surveyor assessed the loss to the tune of Rs. 1,24,375/- and the complainant paid Rs. 1,39,045/- as repair charges then he approached the ops for payment. After long persuasion the OP settled for the claim of Rs. 7760/-, which was not acceptable at all to the complainant and he again approached OP No. 1 to reconsider his case but OPs refused to listen to them. It amounted to deficiency in services on the part of the OPs. Hence, the complaint with a direction to the OPs to pay a sum of Rs. 1,39,045/- alongwith interest @ 18% p.a., also pay compensation of Rs. 50,000/- alongwith expenses of Rs. 25,000/-.
3. The complaint was contested by the Ops, who filed written reply taking preliminary objections that the OPs had already approved the claim of the complainant for Rs. 7760/- as per the terms and conditions of the Standard Private Car Package Policy. The Oil Sump had suffered accidental damages after striking with a stone underneath, which caused seizure of the engine, which is purely a consequential loss and does not fall under the ambit of the insurance policy as it is a breach of Condition No. 4 of the Policy. The complainant was requested to fill the discharge voucher for a sum of 4 FIRST APPEAL NO. 1273 OF 2013 Rs. 7760/- but he had not sent back the Discharge Voucher, therefore, no deficiency in services on the part of the Ops; the driver of the vehicle was not having a legal and valid driving licence; the facts of the complaint itself reveal that the driver continued to drive the vehicle after it hit against the stone underneath, therefore, he failed to take the reasonable care as required under the terms and conditions of the policy; the District Forum had no jurisdiction to try this complaint and that the complicated questions of law and facts were involved, as such, only the Civil Court was competent to try and decide the complaint. On merits, it was denied that D.S. Chadha is the Chairman of the complainant firm, otherwise, insurance of the vehicle has been admitted and accident took place during the insurance period. It was denied that Mr. Chander Shekhar, Surveyor had assessed the total loss to the tune of Rs. 1,24,375/-. It was also denied that the complainant paid a sum of Rs. 1,39,045/- to the Padam Motors for the repair of the vehicle. It was again reiterated that seizure of the engine was due to the negligence of the Driver and is a consequential loss, therefore, is not covered under the policy. Complaint was without merit and it be dismissed.
4. The parties were allowed by the learned District Forum to lead their evidence.
5. In support of his allegations, the complainant had tendered into evidence his affidavit Ex. C-A, RC Ex. C-1, insurance policy Ex. C-2, DL Ex. C-3, estimate Ex. C-4, claim form Exs. C-5 & 6, supplementary estimate Exs. C-7 & 8, damage intimation letter submitted to Ludhiana Ex. C-9, motor claim form Ex. C-10, inspection 5 FIRST APPEAL NO. 1273 OF 2013 report Ex. C-11, Narang surveyor report Ex. C-12, Chander Shekhar Surveyor Report Exs. C-13, 14, 17 & 18, letters Exs. C-15, 16 & 19. On the other hand, the opposite party had tendered into evidence affidavit of Ramesh Pandita Ex. OP-A and similar documents tendered Exs. Op-1 to 18, copy of ins. Policy Ex. Op-19.
6. After going through the allegations in the complaint, written reply filed by the OPs, evidence and documents brought on the record, the complaint filed by the complainant was dismissed on the ground that Mr. Mr. D.S. Chadha was not competent to file the complaint and even the complaint was without any merit and accordingly, it was dismissed.
7. Aggrieved with the order passed by the learned District Forum, the appellant/complainant has filed the present appeal.
8. We have heard the learned counsel for the parties.
9. With regard to the competency of Mr. D.S. Chadha, Chairman of the complainant firm, it was so stated in the complaint and have reiterated in the affidavit filed by Mr. D.S. Chadha Ex. C-A whereas on the other hand, there is also simple denial. No doubt that before the District Forum, no document was placed on the record to prove this fact that Mr. Chadha is Chairman of the complainant firm but during the appeal, the counsel for the appellant has placed on the record the Partnership Deed, which shows that D.S. Chadha is one of the Partner alongwith Mr. Amarjit Chadha and Mr. Inderpreet Singh and authority letter in the name of Mr. D.S. Chadha is also placed on the record, therefore, in case D.S. Chadha is one of the Partner of the complainant firm and as a partner he has a right to institute the 6 FIRST APPEAL NO. 1273 OF 2013 complaint. Against this documentary evidence, no document has been placed on the record that he is not Director of the complainant Company or was not authorised to file the complaint. Therefore, in view of the evidence now produced on the record, he is competent person to institute the complaint. The proceedings under the CP Act are summary proceedings and in case any document, which is an important document to decide the controversy between the parties that can also be taken into consideration at the appellate stage. Since, partnership deed is very important document to show whether D.S. Chadha was competent to file the complaint, therefore, it is ordered to be considered at the appellate stage. On the basis of this document, we are of the opinion that D.S. Chadha was fully competent to institute the complaint.
10. It is an admitted fact that the vehicle in question bearing No. PB-65-N-9913 was insured for the period 31.7.2012 to 30.7.2013 vide policy No. 36140031 120 100005167 for a sum of Rs. 6,72,000/- and it met with an accident on 11.10.2012 at 7.30 PM within the insurance period. The accident took place at village Train, Patiala- Dakala Road on Narrow Pulley (bridge) and the vehicle struck against a stone underneath. Although, immediately there was no leakage of any oil in the vehicle, it reached the residence of the complainant but in the morning it did not start as the oil had leaked. Originally, the Surveyor had prepared the estimate of Rs. 12,000/- but when engine assembly was opened, it was found to be seized. The claim of the complainant was passed only for a sum of Rs. 7760/-. The loss to the engine was declined by the Ops on account of consequential loss. 7 FIRST APPEAL NO. 1273 OF 2013
11. Now we have to see whether it is a consequential loss? Immediately after the accident, after receiving the intimation, OPs appointed Narang Surveyors & Loss Assessors, his report is Ex. C-12 and in the column No. 27 cause and nature of the accident has been mentioned as under:-
"27. Cause & Nature of accident: As stated by the insured's rep. & mentioned in the claim form accident occurred the vehicle was going to village train on Patiala-Dakala Road. On route, near village on a narrow pulley, a stone struck with the vehicle underneath. The driver took the vehicle to his residence and parked outside. In the morning observed that chamber has broken. Hence causing damages to the car."
and in the comments, it was mentioned that when the accidental vehicle was inspected, it was found that the oil sump was damaged. Accordingly, submitted his preliminary survey report. Then Mr. Chander Shekhar was appointed as a Surveyor and Investigator. He in his report, Point No. 7.1 observed as under:-
"7.1 CAUSE:- As gathered from the narration of the Insured's Directory enclosed copy of the Preliminary survey report of M/s. Narang Surveyors & Loss Assessors and also from the enclosed claim form;
The captioned car, when neared the spot of accident was passing through a Narrow pully, where a big sized stone could not be noticed and adjudged timely and the underneath section of the said car hit and grazed past against that stone, but the Insured's paid driver could not infer the after effects of the 8 FIRST APPEAL NO. 1273 OF 2013 impact of that stone and drove the said car to his residence, which stopped on its own reaching near to his house and did not start up the next morning. The authorised repairer & Dealer was called upon, who towed it to their workshop & arranged the survey, submitting a estimate of loss Rs. 11970/- only to D.O.-1 Patiala of the Insurer, however, after dismantling the oil pan, their technician observed that the complete Engine was damaged due to lack of lubrication and excessive heat generation, hence the loss."
and extent of damage has been mentioned as under at Point No. 10.1:-
"10.1 Extent of damages As obvious from the enclosed photos and was evident at the time of physical inspection, the captioned vehicle was found to have sustained, smashing & penetrating accidental impact upon & against its underneath oil Chamber consisted of Aluminium, which did not broke, but its bottom surface was chiselled away at the time of hitting & grazing with the stone, therefore, the Engine oil drained not instantly rather by & by from the see through developed holes, to which, the Insured's paid driver could not notice & adjudge time & the said car stopped on its own, resulting into seizure of the Engine parts. The repairer in the first place also adjudged for the loss & damage to Oil Pan only, but on opening the Oil Pan, its crank shaft was seen, depicting the after effects of the Engine seizure, therefore, submitted the supplementary estimates to 9 FIRST APPEAL NO. 1273 OF 2013 the Insurer's D.O.-1 Patiala. Having inspected the captioned car for its Engine, it was obvious & evident that all the moving parts have to be replaced, because no oversize parts were being supplied by the manufacturer. Therefore, undersigned calculated the liability, considering all the replacements required, discussed the matter with MTD R.O. Ludhiana, D.O.-I Patiala, Insured's direct & the repairer, whereby, it was decided to procure a used/second Engine Assy Instead of Major overhauling, however, the repairer raised their hand to arrange the used/second hand Engine, yet to cooperate with the activities required. Undersigned started enquiring the possible probabilities & finally came across a Junk dealer in Burail, who was having complete Engine of the similar car, run for 30 to 32 thousand Kms. The negotiation were started with the shop keeper, which at last struck for Rs. 75000/- only. In exchange of the damaged Engine. This aspect was again discussed with MTD R.O. Ludhiana & D.O.-1 Patiala before procuring the Engine in exchange of the damaged Engine. The activities of taking the damaged Engine to Burail & bringing the used Engine/second hand Engine without oil Pan, Oil Pump & turbo was carried out by the repairer."
12. He further pointed out that the liability to repair the engine was Rs. 2,92,335/- whereas the complainant had agreed for second hand engine costing Rs. 1,24,375/-, in this way, the Op will save a sum of Rs. 1,68,360/- and in the recommendations he has observed that the reported loss and damage to the engine of the said car has 10 FIRST APPEAL NO. 1273 OF 2013 been very much within the indemnifying terms and conditions of the effective insurance policy, once the insured driver had a valid driving licence because error of judgment is no negligence, which took place in the reported loss resulting into heavy damage to the engine parts. There are number of judgments on this point that normally surveyor report be admitted unless contrary is proved. The Ops did not file any objection against this report and no new Surveyor was appointed after receiving this Surveyor report. Therefore, it was required to be accepted. In those circumstances, the repudiation by the Ops of a scaled down loss should have been accepted. In similar circumstances, this Commission in the judgment cited II(2011) CPJ 577 "National Insurance Company versus Manjit Sharma". In that case, there was no report that the damage was not due to the accident but due to the negligence of the respondent. Then the Hon'ble National Commission in its judgment reported in II(2012) CPJ 163 (NC) "Vinit Poonia versus New India Assurance Co. Ltd. & Anr.". In that case, the Surveyor held that the accident was caused due to mechanical failure as engine oil for sufficient time cannot be accepted as he never opened engine assembly. Vehicle met with an accident and on account of impact, many parts of the body of the vehicle were damaged and possibly engine oil leaked out at the spot and accordingly, the claim was allowed. He has referred to another judgment of the Hon'ble National Commission reported in 2013(4) CLT 277 "Adarsh Chemicals & Fertilizers Ltd. & others versus United India Insurance Company Ltd.". In this case, the Ops contended that the Surveyor report should not be relied upon as it was guideless. In 11 FIRST APPEAL NO. 1273 OF 2013 case it was so then the Ops should have appointed another Surveyor. Similarly, in this case, the Surveyor had pointed out that there was no negligence on the part of the Driver, it was just to be an error of judgment, therefore, no violation of any terms and conditions of the policy.
13. Whereas the counsel for the Ops has relied upon the judgment 2002(3) CPJ (N.C.) 244 "Balendra Gautam versus Oriental Insurance Co. Ltd.". In that case, after leakage of the oil, the driver of the vehicle continued to drive the vehicle recklessly causing ceasure of the engine. However, each case is to be judged on the facts of that case. In the present case, as per the version on the record, it has also been accepted by the Surveyor appointed by the OPs that immediately there was no leakage, there was just a simple hole, the vehicle had run upto the house of the complainant but in the next morning, it did not start. In those circumstances, it cannot be said to be consequential loss.
14. These facts were not considered by the learned District Forum in a proper perspective and has wrongly observed that the complaint filed by the complainant was without any merit. The complainant had already accepted the version of the Surveyor to go for second hand engine instead of new engine and in that process the OP Company have already saved a sum of Rs. 1,68,360/-, in those circumstances, it would have been gracious on the part of the Ops atleast to accept version of the Surveyor to replace with the second hand engine. In these circumstances, the order so passed by the District Forum is not legally sustainable and liable to be set-aside. 12 FIRST APPEAL NO. 1273 OF 2013
15. In view of the above, we accept the appeal. The impugned order of the learned District Forum is set-aside. The complaint of the complainant is accepted with a direction to the Ops:-
i) to pay a sum of Rs. 1,24,375/- plus Rs. 7760/- to the complainant alongwith interest @ 9% p.a. from the date of filing the complaint till the date of payment;
ii) Rs. 50,000/- as compensation; and
iii) Rs. 11,000/- as litigation expenses.
16. The Opposite parties are directed to comply with the above directions within 45 days from the date of despatch of the order, otherwise proceedings under Section 27 of the CP Act shall be initiated against them.
17. The arguments in this appeal were heard on 18.5.2015 and the order was reserved. Now the order be communicated to the parties as per rules.
18. The appeal could not be decided within the statutory period due to heavy pendency of Court cases.
(Gurcharan Singh Saran) Presiding Judicial Member (Jasbir Singh Gill) Member May 25, 2015. (Surinder Pal Kaur) as Member