State Consumer Disputes Redressal Commission
Bajaj Allianz General Insurance ... vs M/S G.K. Resorts & Anr. on 7 November, 2024
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH.
First Appeal No. 864 of 2022
Date of institution : 11.10.2022
Reserved on : 01.10.2024
Date of Decision : 07.11.2024
1. M/s Bajaj Allianz General Insurance Company Limited,
Registered and Head Office: GE Plaza, Airport Road, Yerwawada,
Pune-411006 through its Managing Director
2. Bajaj Allianz General Insurance Company Limited, Feroz
Gandhi Market, SCO No. 146-147, 6th Floor, Ludhiana through B.M.
Bajaj Allianz General Insurance Company Limited, SCO No. 156-159,
Second Floor, Sector 9-C, Chandigarh through its Senior Legal
Executive Saurav Khullar.
....Appellants/Opposite Parties No.1&2
Versus
1. M/s G.K. Resorts Ferozepur Road, Ludhiana through its
Proprietor Gulshan Kumar
....Contesting Respondent/Complainant
2. G.S. Johal, Surveyor, Bajaj Allianz General Insurance
Company Limited, SCO 147, Feroze Gandhi Market, Ludhiana,
through its Branch Manager.
...Performa Respondent/OP No.3
First Appeal under Section 41 of the
Consumer Protection Act, 2019 against the
order dated 14.07.2022 passed by the District
Consumer Disputes Redressal Commission,
Shaheed Bhagat Singh Nagar, Camp Court,
Ludhiana
Quorum:-
Hon'ble Mrs. Justice Daya Chaudhary, President
Ms. Simarjot Kaur, Member
Mr. Vishav Kant Garg, Member
1) Whether Reporters of the Newspapers may be allowed to see the Judgment? Yes/No First Appeal No. 864 of 2022 2
2) To be referred to the Reporters or not? Yes/No
3) Whether judgment should be reported in the Digest? Yes/No Present:-
For the appellants : Sh. P.H.S. Pannu, Advocate
For respondent No.1 : Sh. Ishmeet Singh, Advocate for
Sh. S.K. Singla, Advocate
VISHAV KANT GARG, MEMBER :
Appellants/Opposite Parties No.1&2 i.e. M/s Bajaj Allianz General Insurance Company Limited, have filed the present Appeal through their Senior Legal Executive to challenge the impugned order dated 14.07.2022 passed by the District Consumer Disputes Redressal Commission, Shaheed Bhagat Singh Nagar, Camp Court, Ludhiana (in short, "the District Commission"), whereby the Complaint filed by the Respondent/Complainant has been partly allowed.
2. It would be apposite to mention here that hereinafter the parties will be referred, as were arrayed before the District Commission.
3. Briefly, the facts of the case as made out by the Respondent/Complainant in the Complaint filed before the District Commission are that the Complainant-Gulshan Kumar, the Proprietor of M/s G.K. Resorts was the owner of Mercedes Benz S-Class Car having registration No. PB10-CL-0070. Said car was having Chassis No.000229 and Engine No. 0611926. It was alleged that OP No.3 had approached the Complainant and asked him to purchase the Insurance Policy of OPs No.1&2 for the year 2015-16 being a best policy available in the market. On assurance of OP No.3, the Complainant had purchased the Private Car Package Policy No. OG-16-1203-1801-00000767, which was valid for the period w.e.f. 02.07.2015 to 01.07.2016. He had paid Rs.70,373/- as premium.
First Appeal No. 864 of 2022 3
4. It was averred that on 22.07.2015, there was heavy rain in Ludhiana. The Complainant was going to his office in his Car and had crossed the Rishi Nagar, District Ludhiana suddenly his car was stopped. Inspite of making efforts, the same was not started. In this regard, the Complainant had informed the OPs No.1&2 and they appointed OP No.3 as Surveyor, who after inspecting the vehicle had asked the Complainant to take the vehicle to Benz Motors, Ludhiana by towing the same. Due to numerous negotiations going on between the Benz Motors, Ludhiana and OPs No.1&2, the Car remained with Benz Motors for a period of three months. Thereafter, OP No.3 had informed the Complainant that Benz Motor had raised the excessive Bill/Estimate of repair and advised him to get his car repaired from Ravinder Auto Engineer/Gurmukh Denting Works. Due to this reason, the Complainant had shifted his car to Gurmukh Denting Works/Ravinder Auto Engineering, where the car was repaired. Said Firm had raised a bill of Rs.5,30,000/- for the repair of the Car. The Complainant had lodged the claim with OPs No.1&2 but they had lingered on the matter on one pretext or the other. Then, the Complainant himself had made the amount of repair through RTGS to the said Firm i.e. Gurmukh Denting Works. Said amount was paid on 14.01.2016 of Rs.1,00,000/-, on 17.06.2016 of Rs.1,00,000/- and on 19.08.2016 of Rs.3,30,000/-. Thereafter, the Complainant had served a legal notice dated 23.05.2017 upon OPs.
5. Stating the act of the opposite parties to be a case of deficiency in service and unfair trade practice, it was prayed in the Complaint that the OPs No.1&2 be directed to pay Rs.5,30,000/- being the repair charges and Rs.2,00,000/- as compensation on account of inconvenience, harassment and mental agony suffered at the hands of the OPs.
First Appeal No. 864 of 2022 4
6. Upon issuance of notice in the Complaint, the Appellants/ Opposite Parties No.1&2 had filed their written statement by raising certain preliminary objections. It was stated that the Complainant had suppressed certain material facts and had not approached the District Commission with clean hands. Intricate and complex questions were involved in the Complaint, which cannot be adjudicated in summary proceedings. The Complainant had got no cause of action to file the Complaint. On merits also, it was admitted that the Complainant was the owner of Car bearing Registration No. PB10-CL-0070. Said Car was insured with OPs No.1&2 vide Private Car Package Policy for the period w.e.f. 02.07.2015 to 01.07.2016. The claim lodged by the Complainant was minutely considered by Sh. G.S. Johal, Surveyor & Loss Assessor appointed by OPs No.1&2 and had assessed the loss of Rs.11929.60p only. The Surveyor had made the following observations:-
"I"64 VB OK. Only flushing charges of engine are being allowed alongwith engine oil and coolant. The car engine was found damaged due to hydrostatic lock which is not covered in the policy. The insured till date has not submitted any estimate of repair, however we are giving our independent survey report allowing cleaning of car and engine flushing. It is upto the insurers to accept or reject the claim as no claim."
7. On the basis of the report of the Surveyor, the liability, if any, upon the OPs No.1&2 was fastened, the same was upto Rs.11929.60p only. It was alleged that the claim was processed as per the terms and conditions of the Insurance Policy and there was no 'deficiency in service' or 'unfair trade practice' on the part of OPs. It was prayed that the Complaint being without any merit be dismissed with costs.
8. After considering the contents of the Complaint and the reply thereof filed by the Opposite Parties No.1&2 as well as on hearing the oral arguments raised on behalf of both the sides, the Complaint filed by the First Appeal No. 864 of 2022 5 Complainant was partly allowed by the District Commission vide order dated 14.07.2022. The relevant portion of said order as mentioned in Para-10 is reproduced as under:
"10. Resultantly, keeping in view from the factum and circumstances of the case, we partly allow the present complaint with directions to complainant to submit said requisite documents, if not supplied yet, with the OPs within 30 days, thereafter, the OPs will settle the insurance claim in dispute within 30 days from the date of receipt said documents. Further, if the complainant is not in possession of the requisite documents, then in that case, the insurance company/OP is liable to pay 75% (Non-Standard basis) of the repair charges Rs.5,30,000/- (as complainant make aid payment through RTGS on 14.01.2016 Rs.1,00,000/-, on 17.06.2016 Rs.1,00,000/-, on 19.08.2016 for Rs.3,30,000/- for getting his car back after its repair) as mentioned in Para No.8 of complaint, in view of case law National Insurance Co. Ltd. versus Nitin Khandelwal by Apex Court alongwith interest @4% P.A. from the date of filing of this complaint till realization. But complainant inadvertently claimed Rs.200/- under prayer clause."
9. The aforesaid order dated 14.07.2022 passed by the District Commission has been challenged by the Appellant/Opposite Party by way of filing the present Appeal by raising a number of arguments and grounds.
10. Mr. P.H.S. Pannu, Advocate, learned Counsel for the Appellants has argued on the same lines as submitted before the District Commission. As per version of the Surveyor on minutely examining the claim, the Engine of the Car was damaged due to hydrostatic lock. Said defect was not covered under the policy and for such type of damage, the insured was required to purchase the additional/add on coverage under his policy, which the Complainant had not purchased. The Surveyor had also observed that the Complainant was in connivance with Gurmukh Denting Works had prepared an exaggerated and inflated repair bills. There was First Appeal No. 864 of 2022 6 huge discrepancies/variation in the repair bill. The damages as mentioned in the bill were not caused due to water logging, which were as under:-
a) Grille Central bottom;
b) Mounting Frame
c) Radiator
d) Regulator at Alternator
e) Pulley at Alternator
f) Control Unit Actuation Module
g) Fuse Box Fuse and Relay Module
He has further submitted that these damages had not occurred due to the impact of the water. The policy clearly reflects that the Company was not liable to pay amount towards consequential loss, depreciation, wear and tear, mechanical or electrical breakdown, failures or breakages. The Surveyor had opined that at the most, the Complainant was only entitled for the charges of flushing of engine along with engine oil and coolant, which he had assessed as Rs.11,929.60p as per the terms and conditions of the policy. However, concluded that Hydrostatic lock being a consequential loss was not covered under the policy. He has also submitted that the District Commission has misread and misconstrued the documents/evidence as produced on record. The impugned order is not sustainable in the eyes of law. The Complainant had no cause of action to file the Complaint and to claim the exaggerated amount. The Appeal of the Appellant be accepted and the impugned order be set-aside.
11. On the other hand, Mr. Ishmeet Singh, Advocate learned Counsel for the Contesting Respondent No.1/Complainant has submitted that the Complainant had repaired his car from Ravinder Auto Engineering/Gurmukh Denting Works i.e. Mercedes Benz Car & Luxury Car Repair Centre as per the advice of OP No.3. The total repair charges of Rs.5,30,000/- as paid by the Complainant were claimed from the OPs. Whereas the Surveyor in his report had approved only Rs.11,929/- as charges of engine oil and coolant. The OPs by relying upon the unjustified First Appeal No. 864 of 2022 7 report of Surveyor had repudiated the claim of the Complainant, without assigning any justifiable reason. The Complainant had produced on record the complete repair bills of the car. The District Commission passed the well-reasoned impugned order and the OPs were unable to pin-point any illegality or perversity in the same. It was prayed that the Appeal be dismissed and the impugned order be upheld.
12. We have heard the oral arguments of learned Counsel for the parties and have also carefully perused the impugned order passed by the District Commission, written arguments submitted by the parties and all relevant documents available on the file. We have also gone through the judgments cited by both the parties.
13. Undisputedly the Car of the Complainant was insured with the Appellant/OP on the date of incident i.e. 22.07.2015. The said car was stuck in the rainy water in the area of Rishi Nagar, District Ludhiana. The Complainant had approached the OPs-Insurance Co., who appointed Sh. G.S. Johal, Surveyor to conduct provisional survey. The Complainant had spent an amount of Rs.5,30,000/- on the repair of the Car, which he had paid from his own pocket and lodged the claim for the same with the Appellants/OPs. Whereas Sh. G.S. Johal, the Surveyor in his Report dated 27.07.2015 had assessed the repair amount of Rs.11,929.60p only as charges of Engine Oil and Coolant. He has further opined that the Engine of the Car was damaged due to Hydrostatic Lock, which cause was not covered under the policy. The insured had not provided any estimate of repair. Surveyor recommended that it was upto the Insurers to accept or reject the claim as 'No claim'.
14. The issue for consideration is as to whether the total repair charges paid by the Complainant including the loss due to Hydrostatic Lock was payable or not.
First Appeal No. 864 of 2022 8
15. As per the policy, the Company was not liable to pay the consequential loss, depreciation, wear and tear, mechanical or electrical breakdown, failures or breakages. Hydrostatic lock being the consequential loss, was not covered under the policy. On that basis, the Surveyor had rightly concluded that the Complainant was only entitled to claim charges of flushing of engine along with engine oil and coolant i.e. Rs.11,929.60p.
16. To consider the said issue and objection of the OPs, firstly we are to examine as to 'what is consequential loss'? Consequential loss is an indirect loss which does not naturally flow from the breach of contract. So it is clear that such type of loss is an indirect loss, which does not occur generally but occurs occasionally. From the facts of the case it has been proved on record that the loss occurred in the present case in an exceptional circumstances and it was not intentional breach on the part of the Complainant, while driving the vehicle. The Insurance Policy was purchased by the Complainant to protect himself from bearing the cost/loss of unexpected expenses. It is clear that there was no intentional breach of the policy condition, then the Complainant has every right to claim the repair charges. To support this, we are fortified the support from the judgment of the Hon'ble Supreme Court of India in the case of "R. Amudha v. The Manager, UTI Bank, Madurai and Others", 2013 SCC Online Mad 1517 wherein it has been held that the rejection of the claim of the Complainant on the ground of non-availability of add-on protection in the policy was unjustified. As regards the ground of repudiation of the claim on the ground that the subject vehicle is an imported vehicle and engine protection Add-on to Private Car Package Policy is not applicable for imported vehicles, the State Commission concluded that the reasoning of repudiation was meritless.
First Appeal No. 864 of 2022 9
17. Also the Hon'ble Supreme Court in "M/s Texco Marketing Pvt. Ltd. versus TATA AIG General Insurance Company Ltd. & Ors." 2022 LiveLaw (SC) 937 held that it is the duty of the insurer to disclose exclusion clauses....Further held that non-disclosure and a failure to follow the procedure required by statute, would make the said clause redundant and non-existent.
18. Also the Appellants/OPs No.1&2 had admitted in their reply that for the loss to the Car, their Surveyor in the provisional assessment had assessed the loss of Rs.11,929.60p i.e. the charges of flushing of engine along with engine oil and coolant. The Surveyor of the OPs also had opined that some of the damages as mentioned in the bill had not been caused due to the impact of water logging, therefore, the claim of the same was not payable. But in the Grounds of Appeal, the Appellants have themselves admitted that they had re-assessed the loss submitted by the Respondent No.1 vide Annexure A-8 and assessed the net loss amount as Rs.1,55,583.36 but no application for leading additional evidence has been filed alongwith the Appeal so we are unable to consider this amount. From the above facts and circumstances, it is clear that the Appellants had partly allowed the claim of the Complainant. Moreover, their Surveyor in its provisional assessment had recommended the disbursement of Rs.11,929.60p to the Complainant, which had been enhanced by themselves in their re-assessment to Rs.1,55,583.36p.
19. In the Appeal file, it was the stand of the Appellants that their Company had re-assessed the repair assessment bill of the Complainant. So from the above circumstances, it is made clear that in the opinion of the Appellants the claim of the Complainant appears to be justified as per reasoning given by the Appellants and the repudiation of said claim is not justified. No insurance company, without any basis is ready to pay the First Appeal No. 864 of 2022 10 claim. Therefore, in view of above circumstances and law discussed above, it is clear that the Appellants/OPs had wrongly repudiated the claim of the Complainants.
20. The judgment cited by the Appellants in support of their grounds i.e. "Khatema Fibres Ltd. Vs. New India Assurance Company Ltd. & Anr.", Civil Appeal No. 9050 of 2018 is not applicable in the present case because the facts in the said case are totally different as the loss suffered had occurred due to fire incident. However, the issue in the said case was with regard to assessment of the loss on the basis of stock register & other records or on the basis of volumetric analysis. But in the present case, the issue is totally different as to whether the loss was covered under policy or not. Therefore, this judgment cannot be relied upon.
21. So once it is clear that the Appellants themselves in their re- assessment admitted that the claim of the Complainant is payable, therefore, in these circumstances, the grounds of repudiation proves to be unjustified.
22. The District Commission had concluded that it is admitted fact between the parties that the Complainant had spent Rs.5,30,000/- on the repair of the vehicle as the Complainant had placed on record the details of payment of this amount to Gurmukh Denting Works so after through discussion, directed the Insurance Company to settle the insurance claim of the Complainant within 30 days from the date of receipt of said documents. Further held that if the Complainant was not in possession of the requisite documents, then in that case, the Insurance Company/OPs will be liable to pay 75% of the repair charges of Rs.5,30,000/- on 'Non- Standard Basis'. The above observation of the District Commission is appropriate in the given circumstances, as such, we uphold the same. First Appeal No. 864 of 2022 11
23. The District Commission has considered the objections of the OPs No.1&2/Appellants, given reasoning and citing the law while passing the impugned order. Accordingly, the order passed by the learned District Commission appears to be correct and we do not find any infirmity in the said order. Therefore, the impugned order is affirmed.
24. In view of the above discussion, we do not find any merit in the Appeal of the Appellants and the same is dismissed with no order as to costs.
25. Since the main case has been disposed off, so all the pending Miscellaneous Applications, if any, are accordingly disposed off.
26. The Appellants had deposited a sum of Rs.25,000/- at the time of filing of the Appeal and Rs.2,97,097/- in compliance of the order dated 14.10.2022. Said amounts, along with interest which has accrued thereon, if any, shall be remitted by the Registry to the District Commission forthwith. The Contesting Respondent/Complainant may approach the District Commission for the release of the same and the District Commission may pass appropriate order in this regard in accordance with law.
27. The Appeal could not be decided within the statutory period due to heavy pendency of Court Cases.
(JUSTICE DAYA CHAUDHARY) PRESIDENT (SIMARJOT KAUR) MEMBER (VISHAV KANT GARG) MEMBER November 07, 2024.
as