State Consumer Disputes Redressal Commission
Icici Lombard General Insurance Co. ... vs Ashok Kumar Reddy 15, Valmiki Street, ... on 12 October, 2011
BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI BEFORE : Honble Thiru Justice M.THANIKACHALAM PRESIDENT Thiru J. JAYARAM, M.A.,M.L., JUDICIAL MEMBER
Tmt. VASUGI RAMANAN MEMBER II F.A.NO.846/2010 (Against order in CC.NO.14/2008 on the file of the DCDRF, Chennai (North) DATED THIS THE 12th DAY OF OCTOBER 2011
1. ICICI Lombard General Insurance Co. Ltd., Rep. by its Directors ICICI Bank Tower Bandra Kurla Complex, Mumbai-400 051
2. ICICI Lombard General Insurance Co. Ltd., Rep. by its Directors Zenith House, Kesnavarao, Khandia Marg Mahalakshmi, Mumbai 400 034
3. Moto Claim Manager ICICI Lombard General Insurance Co.
Ltd., Chottabhai Centre, 2nd and 3d Floors 140, Nungambakkam High Road Numgambakkam, Chennai -600 034 Appellant/Opposite parties Vs. Ashok Kumar Reddy 15, Valmiki Street, T.Nagar Chennai 600 017 Respondent/ Complainant The Respondent as complainant filed a complaint before the District Forum against the opposite parties praying for the direction to the opposite parties to settle the complainant Rs.3,48,099.22/- with 12% interest, alongwith compensation of Rs.5 lakhs and cost. The District Forum allowed the complaint. Against the said order, this appeal is preferred praying to enhance the award, order of the District Forum dt.26.04.2010 in CC.No.14/2008.
This petition coming before us for hearing finally on 28.09.2011. Upon hearing the arguments of the counsel on both sides, perusing the documents, lower court records, and the order passed by the District Forum, this commission made the following order:
Counsel for the Appellants/Opposite parties : Mrs. Elveera Ravindran Counsel for the Respondent/ Complainant: Mr. K. Moorthy M. THANIKACHALAM J, PRESIDENT
1. The opposite parties are the appellants.
2. The facts leading to this appeal:
3. The complainant had taken a private car package policy, for his vehicle Skoda car, from 15.1.2007 to 14.1.2008, paying a premium of RS.56,544/- on 10.1.2007.
On 28.10.2007, when the complainants driver was driving the vehicle, there was heavy rain, causing disturbance to the clarity/vision, that too when a vehicle was coming from the opposite direction. The complainant, in order to avoid the coming vehicle, moved to the vehicle right side, unfortunately the front wheel of the car dashed into the sewerage man hole, which was opened, and water crushed into the engine, resulting stoppage of the vehicle. The said incident was caused purely due to accidental, unexpected external force. Therefore, the car was pushed, taken back, parked at Andhra Club, then the incident was informed to the insurance company.
4. The complainant had incurred an expenditure of RS.3,48,099.22/-, towards the repair.
Based upon the insurance policy, when a claim was lodged, initially the opposite party offered to settle for a sum of RS.40000/-, for which the complainant is not willing, and thereafter the claim was repudiated, alleging engine failure was, due to engine seizure, and there was no external means, causing accident. The repudiation, as well as non-settlement of the claim is nothing, but negligence and deficiency in service, which has caused mental agony to the complainant, compelling him to pay a compensation of RS.5 lakhs, in addition to the actual expenses incurred by him, with interest thereon. Thus the complaint.
5. The opposite parties, admitting the insurance coverage, resisted the case, interalia contending that the alleged accident was informed belatedly to the opposite parties, that the surveyor, who inspected the vehicle, reported that the claim is not sustainable, since the damage caused was consequential loss, incurred by the insurer, arising out of an accident to the vehicle, which is not covered under the policy, that the non-settlement of the claim on legal basis, cannot be termed as deficiency in service, thereby praying for the dismissal of the complaint, denying other averments also.
6. The District Forum, considering the facts and circumstances of the case, drew a conclusion, that the repudiation of the claim by the opposite parties was unreasonable, and unrealistic, that the non-settlement of the claim should be construed as deficiency in service. The complainant though claimed a sum of Rs.3,48,098.22, quotation indicated the cost or repair at RS.3,27,683.22/-. Considering all these facts, allowing margin of 25%, the District Forum directed to pay the opposite party 75% of the cost incurred viz.
Rs.245762/-, with interest thereon, alongwith compensation of RS.50000/-, with cost of Rs.5000/-, which is impugned before us, in this appeal.
7. The learned counsel for the appellant would contend, that the accident was not caused due to any external force, whereas the damage should have been caused to the vehicle by driving the same, after the initial accident, which alone had caused major damages, which is not payable by the insurance company, not properly analysed by the District Forum, resulting erroneous view, which is liable to be upset, opposed by the complainant.
8. There is no dispute, regarding the insurance coverage. The vehicle bearing Registration No.TN 09 AT 2000, involved in an accident, is also not very much in dispute. According to the complainant, when the vehicle was driven by his driver on 28.10.2007, it was raining incessantly, and because of the night hours, the visibility was also poor.
When the driver had noticed another vehicle, in order to avoid the accident, he swiftly moved the same, and at that time the front wheel landed in a manhole, meant for sewerage, causing accident. It is not the case of the complainant, that thereafter they have started the engine, run the vehicle, causing further damage, in order to say consequential damage, for which the insurance company cannot be held responsible.
9. Here, it is the specific case of the complainant, the car was pushed and taken back to Andhra Club, parked therein. When a car was pushed, it cannot be moved when the engine is gear, and if at all that should have been pushed in the neutral position.
Therefore, when pushing the car from the place of the accident, there could be no possibility of damaging the engine further, or its part, as the case may be. The damage should have been caused only at the first instance.
10. The learned counsel for the appellant, though urged that there was no external force, causing the accident, considering the admitted facts, we are unable to accept the same. The factum of accident, cars front wheel got in the manhole, is not under shadow, and that should be construed as external force, causing damage to the engine, otherwise there would not have been any crack in the crankshaft etc., as observed by the surveyor. The surveyor has noticed, after dismantling the engine, there was a crack in the crankshaft, broken inside the liners, piston set were found badly bent, and broken, further observing due to hydraulic lock, which would have been caused due to insufficiency of lubrication in the engine compartment.
In this view alone, the surveyor has given a judgement, the loss has not occurred due to insured peril, in which conclusion, we find no legal sense. The surveyor ought to have assessed the damage, if at all suggesting whether it is admissible or not, and he is not expected to give a judgement, regarding the liability, for which the surveyor is not appointed, under the Act. Because of this reason alone, in the absence of the surveyors valuation, regarding damage, taking into the expenses incurred by the complainant, the District Forum ordered payment, in which finding we are unable to differ.
11. It is for the insurance company, to make out a case, that consequential loss incurred by the insured, arising out of the accident or in this case, the damage had caused to the engine, as said by the surveyor due to insufficiency of lubrication. A person, who had purchased Skoda car, incurring more than Rs.15 lakhs, being the new one, certainly would not have driven the vehicle, without engine oil, which is an impossibility. Because of the accident alone i.e., the front wheel landing in a sewerage manhole, water should have crushed into the engine, that too because of the crack in the engine, as well as due to opening of the grill, unexpectedly, resulting unable to restart the vehicle. Therefore, there is no question, the complainant causing any further damage, or consequential damage, after the accident, thereby relieving the insurance company. The insurance company having undertaken to reimburse the accidental loss, should have settled the claim, which they failed, which is rightly labeled as deficiency in service, which finding we concur.
12. The District Forum, not only awarded expenses incurred, but also granted compensation of Rs.50000/-, and not only that, it has also granted interest on interest, since order says, amount is payable with interest @9% p.a., from the date of complaint, then on failure, that amount will carry interest from the default clause, thereby making double payment of interest, which is unjustifiable, not permissible under law. Further, in this case, for the non-payment of the repair charges, interest was reasonably ordered, that should take care of the compensation part also, for the alleged mental agony, and we feel there need be no separate compensation of Rs.50000/-, and in this view, since the District Forum has awarded both interest, as well as compensation, we are inclined to detain interest, set aside the compensation, confirming repair cost, and cost of proceedings.
13. In the result, the appeal is allowed in part, modifying the order of the District Forum in CC.14/2008 dt.26.4.2010, setting aside the compensation of RS.50000/- alone, otherwise confirming the order of the District Forum as such, directing the parties to bear their respective cost in the appeal.
VASUGI RAMANAN J. JAYARAM M.THANIKACHALAM MEMBER I JUDICIAL MEMBER PRESIDENT INDEX : YES / NO Rsh/d/mtj/Bench-1/Insurance