State Consumer Disputes Redressal Commission
Cholamandalam M.S.Gen.Insurance ... vs Ajay Arora on 6 May, 2017
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR (C.G).
Appeal No.FA/2016/780
Instituted on : 20.01.2017
1) Cholamandalam MS General Insurance Company Ltd.,
Through : General Manger,
2nd Floor, Dare House, 2 N.S.C. Bose Road,
Chennai 600001
2) Cholamandalam MS General Insurance Company Ltd.
Through Branch Manager, 1st Floor, Rajiv Plaza,
Bilaspur (C.G.),
At present : 2nd Floor, Simran Tower,
In Front of L.I.C. Office, Pandri,
Raipur (C.G.) Pin 492001 ..... Appellants/OPs
Vs.
Ajay Arora, S/o Shri K.C. Arora,
Flat No.101, Siddhishikhar Apartment,
Ring Road No.2, Near Mangala Chowk,
Bilaspur (C.G.) ......Respondent/Complainant
PRESENT :
HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT
HON'BLE SHRI D.K. PODDAR, MEMBER
HON'BLE SHRI NARENDRA GUPTA, MEMBER
COUNSEL FOR THE PARTIES :
Shri Dinesh Verma, Advocate for the appellants (OPs).
Shri Praveen Das, Advocate for the respondent (complainant)
ORDER
DATED : 06/05/2017 PER :- HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT. This appeal is directed against the order dated 28.10.2016, passed by District Consumer Disputes Redressal Forum, Bilaspur (C.G.) (henceforth "District Forum") in Complaint Case No.CC/2014/121. By // 2 // the impugned order, learned District Forum, has allowed the complaint of the complainant and directed that :
1. The O.P. (Insurance Company) will pay a sum of Rs.2,37,361/-
(Rs. Two Lakhs Thirty Seven Thousand Three Hundred Sixty One) within a period of one month from the date of order to the complainant, along with interest @ 9% p.a. from the date of filing of the complaint i.e. 08.07.2014 till realisation.
2. The O.P. (Insurance Company) will pay a sum of Rs.30,000/- (Rupees Thirty Thousand) towards compensation for mental agony to the complainant.
3. The O.P. (Insurance Company) will pay a sum of Rs.5,000/- (Rupees Five Thousand) towards cost of litigation to the complainant.
2. Briefly stated, the facts of the complaint of the complainant are that the complainant is registered owner of Volkswagen vehicle bearing registration No.C.G.-10-FA-3174 and the same was insured with the OPs under Comprehensive Insurance Policy No.3382/00812565/000/00 for the period from 18.02.2013 to 17.02.2014. The Insured Declared Value of the vehicle was fixed at Rs.4,68,141/- and a sum of Rs.18,653/- was paid by the complainant towards premium to the OPs. The OPs issued one page insurance policy to the complainant. The vehicle of the complainant came down in a pit near Village Kotni, while it was going to Manendragarh from Bilaspur and was damaged. The vehicle was // 3 // brought out with the help of the passer-by and from the front of the car, the oil was flowing and oil chamber was damaged. The vehicle was sent to Vox Wagon Showroom, Bilaspur by the complainant by loading the same in the truck and Insurance Company was immediately informed in toll free number. In the showroom of Vox Wagon preliminary test was done and estimate of Rs.45,000/- was given to the complainant and the Surveyor and it was told that after opening the vehicle some more expenses would be occurred, and the same would be informed to the complainant latter. Volkswagen Showroom, when the oil sump was opened, then it was found that the main bearing of the engine and some other parts of the engine, were cracked and the estimate, which was given, was for about Rs.2,50,000/-. Information was also given to the Surveyor regarding above damages and estimate. The Volkswagen Showroom had given bill of Rs.2,37,361/- after repairing of the vehicle, which was paid by the complainant. The complainant submitted all relevant documents before the OPs and demanded a sum of Rs.2,37,361/- which was paid by him to authorized service centre for repairing of the vehicle. The complainant submitted all relevant documents to the OPs and also submitted all bills and documents in respect of his claim. The OPs accepted the claim of the complainant to the tune of Rs.21,550/- and sent the voucher to the complainant. The complainant refused to accept the above voucher and informed the OPs that total amount of Rs.2,37,361/- has been incurred in repairing of the // 4 // vehicle and the complainant is entitled to get the above amount from the OPs. In this regard, the complainant sent a letter to the OPs on 05.12.2013 and requested to pay a sum of Rs.2,37,361/-, which was spent by him in repairing of the vehicle. The complainant sent notice to the OPs through advocate on 06.01.2014 and demanded to pay compensation. The OPs sent reply to the above notice and informed that the claim of the complainant cannot be accepted because there were many losses that were consequential in nature. It is very much clear from the policy wordings under the head 'exclusions' (what the policy does not cover is that there is no coverage for the consequential loss. The difference amount that is disturbing the insured regarding the deficit payment is purely generated due to consequential loss. After receiving the letter, the complainant was surprised because as per terms and conditions of the insurance policy, the complainant was entitled for the compensation but on illegal ground the OPs have disallowed his claim, which comes in the category of deficiency in service. The OPs have disallowed the genuine claim of the complainant on illegal ground and acted contrary to the Claims Procedure Manual and guidelines of the I.R.D.A. The OPs committed unfair trade practice by repudiating the claim of the complainant in toto. There is proof that the vehicle of the complainant met with accident and a sum of Rs.2,37,361/- in repairing of the vehicle, even then the OPs had sent voucher for Rs.21,550/- to the complainant which was not proper. The OPs are not // 5 // paying the genuine claim of the complainant. Hence the complainant filed the instant complaint before the District Forum and prayed for granting reliefs, as mentioned in the relief clause of the complaint.
3. The OPs have filed their written statement and denied the allegations made by the complainant against them. The OPs averred that insurance policy was issued by the OPs in favour of the complainant as per terms and conditions of the insurance policy and in the insurance policy it is clearly mentioned that the terms and conditions of the insurance policy, were provided to the complainant and the terms and conditions of the policy are available in the Website of the Insurance Company. In the accident the oil chamber of the vehicle was damaged and thereafter the entire oil was fallen down. The complainant was having knowledge regarding the above fact, but even then the complainant started the engine of the vehicle and run the vehicle due to which the other damages were caused to the vehicle because there was no oil in the engine and it was occurred due to negligence of the complainant. According to the exclusion clause of the insurance policy, the Insurance Company is not liable to pay compensation to the complainant. The problem occurred in the vehicle is not result of the accident because due to cracking of the oil chamber, the oil pump, bearing, crank, gas kit and ring etc. were not damaged but oil chamber had cracked due to above accident, therefore, the Insurance Company paid the amount for repairing of the oil chamber and the // 6 // other expenses were not paid by the Insurance Company, because it was caused due to negligence of the complainant and the Insurance Company disallowed to pay the same as per rules and terms and conditions of the policy. The Insurance Company sent the cheque for the acceptable amount to the address of the complainant, but the complainant refused to accept the same. The OPs did not commit any deficiency in service. The claim of the complainant was settled as per the terms and conditions of the insurance policy. When the complainant gave intimation regarding the accident, the Insurance Company appointed Surveyor and after investigation he assessed net payable amount to the tune of Rs.21,550/- and the cheque of Rs.21,550/- was prepared and the same was sent to the complainant, but the complainant refused to accept the same. The OPs have not committed unfair trade practice. The complainant is only entitled to get Rs.21,550/- as assessed by the Surveyor and not more than the above amount. The complaint is liable to be dismissed.
4. Learned District Forum, after having considered the material placed before it by the parties, has allowed the complaint and directed the OPs to pay amounts to the complainant, as mentioned in para 1 of this order.
5. In the instant case the appellants (OPs) have filed an application under Order 41 Rule 27 CPC and sought to file documents i.e Motor // 7 // Final Survey Report of Vinod Kumar Mourya, Surveyor and Policy Wordings of Motor Package (Other Than Motor Trade) Policy.
6. Shri Dinesh Verma, learned counsel appearing for the appellants (OPs) has argued that the appellants (OPs) had appointed a loss assessor, who has assessed the loss and the document in this regard was not filed before the learned District Forum, due to miss bundling with another file. The entire files relating to own damage claims including third party claims are keeping by the Raipur and Chennai office of the appellants company. The assessment report is an important document for deciding the issue in respect of quantum. The above documents are essential for proper adjudication of the case, therefore, the application filed by the appellants (OPs), may be allowed and the above documents be taken on record as additional document. It is essential for proper adjudication of the case that the matter be remanded back to the District Forum for deciding the matter afresh.
7. We have heard arguments of Shri Dinesh Verma, learned counsel appearing for the appellants (OPs) on the application filed by the appellants (OPs) under Order 41 Rule 27 CPC for filing documents at the appellate stage.
8. The documents which are sought to be filed by the appellants (OPs) at the appellate stage, are essential documents and they are essential for proper adjudication of the case, therefore, we allow the // 8 // application filed by appellants (OPs) under Order 41 Rule 27 CPC subject to payment of cost of Rs.5,000/- (Rupees Five Thousand) and take the above documents on record as additional documents at the appellate stage .
9. The appellants (OPs) have filed additional documents at the appellate stage and on the basis of the documents filed by the appellants (OPs) in the instant appeal, it is necessary to consider the matter on its merits and it is appropriate to remand the matter back to the District Forum, for reconsideration of the matter. In view of the aforesaid discussions, we deem it appropriate to set aside the impugned order dated 28.10.2016 passed by the District Forum, by allowing the appeal.
10. Therefore, the appeal filed by the appellants (OPs) is allowed and the impugned order dated 28.10.2016 passed by the District Forum, is set aside. The case is remanded back to the District Forum with a direction to hear both the parties on the basis of the additional documents filed by the appellants (OPs) before us at appellate stage and if the respondent (complainant) wishes to file documents in rebuttal of the documents, which have been filed by the appellants (OPs) at the appellate stage, then an opportunity may be provided to the respondent (complainant) and after providing opportunity of hearing to both the parties, to decide the matter afresh on merits. It is // 9 // made clear that the appellants (OPs) will first of all deposit the amount of cost of Rs.5,000/- before the District Forum and thereafter only the documents which have been filed by the appellants (OPs) at appellate stage as additional evidence, will be taken into consideration by the District Forum, otherwise the District Forum will decide the matter without taking into consideration these documents. The parties are directed to appear before the District Forum, Bilaspur (C.G.) on 31.05.2017. The office of this Commission is directed to send the record of the District Forum forthwith along with copy of the documents filed by the appellants (OPs) at appellate stage as additional evidence along with application under Order 41 Rule 27 CPC to the District Forum, Bilaspur (C.G.).
(Justice R.S. Sharma) (D.K. Poddar) (Narendra Gupta)
President Member Member
06/05/2017 06 /05/2017 06/05/2017