State Consumer Disputes Redressal Commission
Iffco Tokio General Insurance Company vs M/S Kisco Forgings on 4 December, 2015
First Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, DAKSHIN MARG, SECTOR 37-A, CHANDIGARH.
First Appeal No.607 of 2015
Date of institution : 12.06.2015
Date of decision : 04.12.2015
1. IFFCO TOKIO General Insurance Co. Ltd., Corporate Office, 4th
& 5th Floor, IFFCO Tower, Plot No.3, Sector-29, Gurgaon-122001
(Haryana) through its Branch Manager.
2. IFFCO TOKIO General Insurance Co. Ltd., 1st & 2nd Floor,
Shohan Singh Complex, Shastri Nagar, Near Railway Crossing,
Ludhiana (Punjab), through its Branch Manager.
3. IFFCO TOKIO General Insurance Co. Ltd., IFFCO House, 34,
Nehru Place, New Delhi, through its Branch Manager.
.......Appellants/Opposite Party No.1,2 &3
Versus
1. M/s Kisco Forgings, Guru Ki Nagri, Bhadla Road, Mandi
Gobindgarh, District Fategarh Sahib, through its Partner Sh.Anil
Goel.
........Respondent No.1/Complainant
2. Krishna Auto Sales (Authorized Dealers of Skoda Company),
Dhandari Kalan, G.T. Road, Ludhiana (Punjab), through its
Partner.
........Respondent No.2/Opposite Party No.4
3. Krishna Auto Sales, Plot No.177-E, Industrial Area, Phase-I,
Chandigarh through its Partner.
........Respondent No.3/Opposite Party No.5
4. Skoda Auto India Pvt. Ltd. Plot No.A-1/1, Shendra, Five Star
Industrial Area, MIDC, Aurangabad, Maharashtra-431201, through
its Director.
........Respondent No.4/Opposite Party No.6
F.A. No. 607 of 2015
2
First Appeal against order dated
30.03.2015 passed by the District
Consumer Disputes Redressal
Forum, Ludhiana.
Quorum:-
Mr. J. S. Klar, Presiding Judicial Member
Mr. H. S. Guram, Member.
Present:-
For the appellants : Sh.Yogesh Gupta, Advocate
For respondent No.1 : Sh.Sanjeev Sharma, Advocate
For respondents No.2&3 : Sh.Jagvir Sharma, Advocate For respondent No.4 : Ex-parte H. S. GURAM, MEMBER:-
This appeal has been preferred by the appellants(Opposite parties No.1,2&3 in the complaint) against the respondents of this appeal (Opposite Parties No.4,5 &6 in the complaint), assailing order dated 30.03.2015 passed by the District Consumer Disputes Redressal Forum Ludhiana, (in short 'District Forum'), in CC No.568 dated 19.08.2014, vide which, the complaint filed the complainant was partly accepted by directing OPs to reopen the claim file of the complainant and depute another surveyor to assess the loss of the vehicle and thereafter settle and pay the claim of the complainant on the basis of the report of the surveyor, so submitted by the second surveyor. Further OP No.1-3 have been directed to pay Rs.10,000/- as compensation and Rs.2,000/- as litigation expenses to the complainant within 30 days of receipt of copy of the order.
2. The brief facts of the case of the complainant are that it had purchased Skoda (Rapid AMB-MT) car bearing registration No. PB-23P-4939, from OP No.4 on 22.07.2013. He had further obtained insurance from OP No.1 through OP No.2 after paying premium of F.A. No. 607 of 2015 3 Rs.34,985/- for the above vehicle. However, on 27.02.2014, when son of complainant was proceeding in the above car from Chandigarh Railway Station to Zirakpur between 12.30 AM to 1.00 AM and the car was being driven by Gurmeet Singh driver of the complainant, who was holding a valid driving licence therefor. The car was driven at a very low speed of 30/40 Kilometers and suddenly car jumped over the speed breaker and thereafter it stopped after covering a distance of about 500 meters. The car was immediately towed by Krishna Auto Sales, Chandigarh and taken to its workshop in Chandigarh. The intimation regarding the above said accident was given to the local representative of OPs at Chandigarh and also to head office of the OPs through E-mail. After checking done by Krishna Auto Sales Chandigarh; an estimate for repair of cost of Rs.5,23,491/- was given on account of damage to parts of engine of the car. OPs appointed B&S surveyors and Loss Assessors, Mohali regarding claim No.1-2 MBI ST5, as lodged by the complainant. It was further pleaded in the complaint that surveyor appointed by the OPs caused delay in checking the car and also gave an assurance that his claim would be considered, as he had not found any fault of the driver for the above incident. However, he received letter dated 13.03.2014 from the OPs that claim lodged by it was rejected on the grounds that liability of insurance did not extend to the damage to the internal parts of engine being a consequential loss. On receipt of the said letter, it served registered legal notice through its advocate on 25.03.2014, but OPs did not give any reply to the said notice. On failure to get any reply to its legal notice, the complainant filed its complaint in the Consumer Forum as it was forced to pay an amount F.A. No. 607 of 2015 4 of Rs.5,25,830/- to Krishna Auto Sales Chandigarh and delivery of the car was taken on 12.04.2014. The complainant prayed that directions be issued to OPs, to pay Rs.5,25,830/-, the amount paid by it to Krishna Auto Sales towards repair of the car; to further pay Rs.22,000/- as legal expenses; and to further pay Rs.1,00,000/- as compensation for mental harassment caused to it by OPs; and to pay Rs.10,000/- as miscellaneous expenses for going from Mandi Gobindgarh to Chandigarh visiting different offices of OPs and to pay Rs.2,00,000/- on account of depreciation of the vehicle.
3. Upon notice, OPs No.1, 2 &3 filed joint written reply and admitted the fact that Skoda Rapid Ambition car was insured, vide Policy No.84652472 valid for the period 22.07.2013 to 21.07.2014 by the OPs. It was submitted that on receipt of the information from the complainant about the above incident, and independent surveyor namely B&S Insurance Surveyor & Loss Assessor was appointed to conduct the survey of the damaged vehicle. The surveyor inspected the vehicle and assessed the loss to the tune of Rs.19,722/- thereto. As per report of the surveyor, the engine was found damaged due to external impact and the same was not approved by them. They have already paid a sum of Rs.19,722/- towards the claim of the repair of the vehicle. However, the damage to the car of complainant was a case of extension of consequential loss, as observed during the inspection. It was further observed that there was no external impact on engine and internal parts of the engine were affected due to scarcity of proper lubrication of the vehicle. Merely hitting of oil pump with external object cannot result in severe damage and seizure of F.A. No. 607 of 2015 5 engine parts, until and unless, it was kept running after the impact leading to seizure of engine due to loss of proper lubrication. As per surveyor report and the repair of documents, it was revealed that driver of the insured vehicle at the time of damage did not take the necessary steps to avoid any extension of the damage to the vehicle and as envisaged in condition 4 of the policy, it continued to run the vehicle even after above impact and, thus, the engine of the vehicle seized due to oil starvation. In view of this fact brought to their notice as per the surveyor report, the said estimate given by Krishna Auto Sales was rejected, vide letter dated 13.03.2014 and the admissible claim for repair of the vehicle due to external damage to the extent of Rs.19,722/- was allowed and was paid to the complainant. OPs took preliminary objection that damage to the internal components of the vehicle were solely attributable to the failure on the part of the driver to exercise ordinary prudence as expected from every insured for safety of vehicle. The said vehicle after the accident, continued to run by the complainant without proper care in violation of the condition No.4 of the insurance policy. It was further contended that complaint filed by the complainant in the District forum is not maintainable, as no cause of action arose within the territorial jurisdiction of the District Forum below. It was further averred that neither the damage to the vehicle nor the repair of the vehicle was done within the jurisdiction of the District Forum below and it was not having territorial jurisdiction to decide the complaint. It was further pleaded that as per own admission of the complainant, the vehicle was being used after the above impact. Thus, the complainant failed to adhere to the terms and specially to the condition No.4 of the F.A. No. 607 of 2015 6 contract of insurance. It was further pleaded that vehicle was being used for commercial use i.e. for the firm of the complainant but, the policy was issued for a private vehicle. It was further pleaded that complicated questions of law and facts are involved in the complaint which could not be tried and decided in the summary jurisdiction of the Consumer Forum, as the case requires leading of voluminous evidence and expert opinion, which could be led only before regular Court. On merits, it was pleaded that as evident from the surveyor report, the external impact was on oil pump and other parts which were found broken, but no external impact was observed on engine and internal parts. Thus, the act of driving the car after impact without caring for necessary repairs of the engine of the vehicle, led to starving of lubrication of engine and and ultimately led to its seizure. The condition No.4 of the policy specifically states that any further damage to the vehicle should be entirely at the insured's own risk and as such, the claim for engine repair was denied to complainant. The bill of Rs.5,23,491/- for repairs by Krishna Auto Sales was solely rejected on account of repair to damage to engine and only admissible claim of Rs.19,722/- in terms of the survey report was paid. It was denied that any official of the OPs had ever assured the complainant regarding approval of the claim. OPs denied that complainant had suffered any mental tension agony, financial loss and physical harassment at their hands. Complainant was alleged to be not eligible to any amount of Rs.8,57,830/- as alleged in the complaint and OPs prayed for dismissal of the complainant.
4. OPs No.4-6 jointly filed their written reply and took preliminary objections that complaint was liable to be dismissed F.A. No. 607 of 2015 7 against them, as there was no deficiency in their service rendered to complainant and no relief was sought against them in the complaint. The complaint had arisen due to the fact of non-settlement of the claim by the OPs No.1-3 on account of damage caused to the car in accident on 27.02.2014 and OP No.4-6 were not necessary parties for the adjudication of the dispute. In view of the above facts, the complaint is not maintainable against OPs No.4-6, as there was no allegations against them with regard to the repairs of the car in question. The deficiency if any was only against OPs No.1-3 which had failed to settle the claim of the complainant. On merits, it was pleaded that as per legal notice sent to OPs No.1-3 and OPs No.4-6 was made therein to reconsider the claim pertaining to claim No.1- 2MB 1-ST5 pertaining of vehicle No.PB-23P-4939 and to pay the amount directly to OP No.5 within 15 days period. No cause of action had accrued against OPs No.4-6 to file the complaint.
5. Complainant tendered in evidence the affidavit Ex.C-A alongwith documents Ex.C-1 to Ex.C-25 and closed the evidence. In rebuttal, the OPs tendered in evidence affidavit Ex.R-A and Ex.R-B alongwith documents Ex.R-1 to Ex.R-16 and closed the evidence. On conclusion of evidence and arguments, the District Forum Ludhiana partly accepted the complaint of the complainant as detailed in the order under challenge in this appeal. Dissatisfied with the order of District Forum Ludhiana dated 30.03.2015 OPs No.1 2&3 preferred this appeal against the same.
6. We have heard learned counsel for the parties and also examined the record of the appeal. In the grounds of appeal, it has been contended by the counsel for the appellants that the order F.A. No. 607 of 2015 8 passed by the District Forum is liable to be set aside on the ground that the District Forum has failed to appreciate that the complainant has concealed the material facts. It is not appreciated by the District Forum that complainant violated Condition 4 of the Insurance Policy. It was further argued that the District Forum also failed to appreciate the surveyor report on the record and hence the complaint has been erroneously accepted. It was further argued that at the most, the complainant is entitled to get the amount as assessed by the surveyor appointed by the OP's Insurance Company only. The counsel for the appellants has specifically referred to condition No.4 of the policy which reads as under:-
"The insured shall take all reasonable steps to safeguard the vehicle from loss or damage and to maintain it in efficient condition and the Company shall have at all times free and full access to examine the vehicle or any part thereof or any driver or employee of the insured. In the event of any accident or breakdown, the vehicle shall not be left unattended without proper precautions being taken to prevent further damage or loss and if the vehicle be driven before the necessary repairs are affected any extension of the damage or any further damage to the vehicle shall be entirely at the insured's own risk."
7. It was further canvassed by the appellants that it is clear from the complaint itself that after the accident, the complainant had driven the car and did not stop it, therefore, the loss to the engine is consequential loss only. Accordingly, OPs are not liable to pay any amount as per the directions of the District Forum nor liable to reopen F.A. No. 607 of 2015 9 the claim of the complainant. It has been further maintained by the appellants that District Forum in its judgment in para No.12 observed as under:-
"It is proved fact on record that when the accident occurred, the loss/damage was caused to the vehicle, while due to jumping over a speed breaker. However, it is undisputed facts that the external damaged was caused to the vehicle due to sudden jumping over a speed breaker, which resulted in the damage to the oil pump of the engine, as a result of which engine of the vehicle was seized due to oil starvation. We can consider this loss to be a consequential loss, which resulted after the external damage of the vehicle."
8. In view of this observation of the District Forum itself, it had wrongly ordered to reopen the claim of the complainant and awarded compensation against OPs. On the other hand, the counsel for the respondents in this appeal argued that District Forum has not considered the damage to the engine as consequential loss and the counsel for the appellant did not read out the entire para 12 of the District Forum order which is as under :-
"It is proved fact on record that when the accident occurred, the loss/damage was caused to the vehicle, while due to jumping over a speed breaker. However, it is undisputed facts that the external damaged was caused to the vehicle due to sudden jumping over a speed breaker, which resulted in the damage to the oil pump of the engine, as a result of which engine of the vehicle was seized due to oil starvation. We can consider this loss to be a consequential loss, which F.A. No. 607 of 2015 10 resulted after the external damage of the vehicle. So, there does not appear to be any negligence on the part of the driver of the vehicle and it appears that OP 1 to OP 3 have arbitrary and illegally rejected the whole claim of the complainant qua this fact. It is also evident from the report of the surveyor Ex.R-3 that the surveyor had only consider the damage to the Bumper/Intercooler/Carrier and Oil Sump, which was caused due to external accidental means. Furthermore OP1 to OP3 has submitted that claim has been paid to the complainant, but has not placed on record any such proof regarding the payment of the claim to the complainant.
9. In order to decide the controversy in hand, we are of the view that case of the appellants does not fall under the exclusion clause more so when there is no expert report produced on the record by the OPs, to the effect that consequential loss to the engine was exclusively due to the fact, that complainant's car had been driven for more than 2-3 kilometers after the above incident. The case of the complainant is that car suddenly stopped after running more than 500 meters from the speed breakers. As such, we do not find it to be the intentional act and carelessness on the part of driver of the vehicle to drive the car without stopping it, as contended by the appellants. The surveyor appointed by the insurance company has recommended the payment of Rs.19,722/- only whereas, he has left out the spare parts of engine, considering them to be due to consequential loss only without giving reasons, how it is consequential loss, whereas, the repair bill was of Rs.5,25,830/- only. F.A. No. 607 of 2015 11 The District Forum after going through the record directed OPs to reopen the claim and reassess the same by appointing second surveyor.
10. In view of our above discussion, we do not find any ground to interfere in the order of District Forum and the same is upheld accordingly. We do not find any merit in this appeal the same is hereby dismissed.
11. Appellants had deposited a sum of Rs.25,000/- at the time of filing this appeal in this Commission. The registry is hereby directed to remit Rs.12,000/- to the complainant/respondent No.1 by way of a crossed cheque/demand draft after the expiry of 45 days from the date of this order, as per order of District Forum Ludhiana, the remaining amount of Rs.13,000/- out of amount of Rs.25,000/- alongwith interest which accrued, thereon, if any, be remitted by the Registry to the appellants. The appellants are directed to comply with the remaining directions of the District Forum within a period of one month from the date of receipt of this order.
12. Arguments in this appeal were heard on 01.12.2015 and the order was reserved. Now, the order be communicated to the parties as per rules.
13. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(J.S. Klar) Presiding Judicial Member (H.S. Guram) Member F.A. No. 607 of 2015 12 December 04, 2015 RK 2