State Consumer Disputes Redressal Commission
Reliance General Insurance Co. Ltd., vs Dr. Anish Sebastian, on 6 September, 2013
Daily Order
Kerala State Consumer Disputes Redressal Commission Vazhuthacaud,Thiruvananthapuram First Appeal No. A/13/4 (Arisen out of Order Dated 07/11/2012 in Case No. CC/11/394 of District Kannur) 1. RELIANCE GENERAL INSURANCE CO LTD 2ND FLOORMVISHNU BUILDING,K.P.VALLON ROAD,KADAVANTHRA,COCHIN ERNAKULAM KERALA ...........Appellant(s) Versus 1. ANISH SEBASTIAN PRATHIBHAM,CHETTAMKUNNU,THALASSERY,KANNUR KANNUR KERALA ...........Respondent(s) BEFORE: HON'ABLE MR. JUSTICE SRI P.Q.BARKATH ALI PRESIDENT SRI. V. V. JOSE MEMBER PRESENT: ORDER
KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION
VAZHUTHACADU THIRUVANANTHAPURAM
APPEAL NO.04/13
JUDGMENT DTD:06/09/2013
(Appeal filed against the order in C.C. No. 394/2011 on the file of CDRF, Kannur, dt: 07.11.2012)
PRESENT
SHRI.K. CHANDRADAS NADAR -- JUDICIAL MEMBER
SHRI.V.V. JOSE -- MEMBER
Reliance General Insurance Co. Ltd.,
2nd floor, Vishnu Building,
K.P. Vallon Road, Kadavanthra, APPELLANT
Cochin
(By Adv. Sri. Sreevaraham G. Satheesh)
V/s.
Dr. Anish Sebastian,
Prathibham, RESPONDENT
Chettamkunnu,
Thalassery
(By Adv. Sri. Shyam Padman)
JUDGMENT
SHRI.V.V. JOSE -- MEMBER This appeal is filed against the order of CDRF, Kannur in CC.394/2011 dated 7/11/2012.
The opposite party in the above CC. 394/2011 was directed to pay Rs.2,70,000/- as damage along with Rs.1,000/- as cost within one month to the complainant.
The case in the above CC in short is as follows;-
The complainant owned a car, which was insured with the opposite party for the period from 15/10/2010 to 14/10/2011. On 16/07/2011, when wife of the complainant was driving the car, there was heavy down pour, the car stopped on the way. The attempt to restart was vain. Later he came to know from the workshop that water entered into the engine. The claim raised by the complainant was repudiated by the insurance company (opposite party) stating the damage was consequential, which was not covered by the policy. The car is unable to use now. The refusal by the insurer is unfair, unjust and unreasonable. So this complaint for the claim of Rs.2,70,000/- which is the total amount declared in insurance policy.
The opposite party in their version admitted the policy. They contented that the sudden stopping of the car due to heavy down pour and the failing of the attempt to re-start was not true. The damage is not tallying with the cause mentioned in the claim form. The alleged damages are consequential and not direct. On investigation it was revealed that the car fall in a gutter full of water, which entered water in the engine, which caused stopping of the vehicle. The vehicle was re-started and run after the engine damage. The present damage is a consequential damage after the initial damage, which is the negligence of the driver. There is no deficiency of service in side of the opposite party and repudiated the claim and prayed for a dismissal of the complaint.
The evidence consists of the oral testimony of PW1, PW2, Ext. A1 to A4, B1 & B2.
From the evidence and pleadings the Forum Below taken the following three issued for consideration. There was any deficiency in service on the part of the opposite party, which entitle the complainant for any relief and cost.
Admittedly the vehicle was insured with the opposite party at the time of the incident. While running under heavy down pour the car stopped suddenly failed to re-start. Later it was found water entered in to the engine and caused damage. The claim of the complainant was repudiated by the opposite party on the ground that it was consequential which is out of coverage. Opposite party contented, on their investigation it was revealed that the car was fell in a gutter full of water, by which water was entered into the engine and stopped the vehicle. The vehicle was restarted and run with the initial damage of entering water into the engine, which caused the present damage and is consequential damage only which cannot be covered under the policy. It is agreed by both parties that there was heavy down pour on the day of incident and the vehicle was stopped due to the entry of water into the engine. In the affidavit evidence adduced by the complainant states that he failed to re-start the vehicle. So informed the workshop and they towed the vehicle to the workshop on the very next day. So the question of running the vehicle after re-starting will not arise.
PW2, the Surveyor was examined, who deposed survey was conducted at the instance of the opposite party. He affirmed his technical expertise by saying that the vehicle was amenable for repair and can be used again. It is possible that water can enter into engine during heavy rain while running. If it happens the vehicle will automatically get off. PW2 is a reliable witness as he conducted the survey. So the contention of the opposite party to enter water in the engine only due to the re-start and running of vehicle after the sudden skip of the vehicle is of no substance. Opposite party only marked two documents
1) the survey report and
2) the certificate-cum-policy schedule and didn't adduced any evidence.
The possibility of entering water in engine while running due to heavy rain cannot be ruled out. The available evidence shows that the reason for the incident is heavy rain and entering water in the engine of the vehicle. Opposite party didn't come forward to adduce evidence to their contention and they failed to establish their contention. According to the surveyor the reason for the damage can be found only after dismantling the vehicle. So opposite party was not able to prove their case by establishing what was really pleaded by them. Mere pleading without entering in the box cannot be considered as evidence. The Hon'ble Supreme Court and various High Courts re-affirmed the well settled stand that "where a party to the suit does not appear into the witness box and state his own case on oath and does not offer himself to be cross-examined by other side, a presumption would arise that a case set up by him is not correct" Here also the opposite party abstained from entering in the witness box. It is evident from the circumstances that the opposite party was not ready to find out the true position of the cause of the damage. The deposition of PW2, that the vehicle was not dismantled to ascertain, the real cause and that his request to dismantle the vehicle was turned down by the workshop as there was no assurance from the insurance company to effect payment for the repairs. Dismantling could not be done due to the non-availability of NOC from the company. So it is crystal clear that repudiation of the claim was done by the opposite party without realizing truth. So the repudiation can be considered as unjust, unreasonable and undoubtedly deficiency in service.
The claim of the complainant is for Rs.2,70,000/- as damage and Rs.30,000/- as compensation. It is clear that the IDV is Rs.2,70,000/- and loss of vehicle is Rs.1,09,187/- It is based on the working done by the Surveyor in the B2 report. The liability table shows Rs.1,01,187/- as insurance company's liability. The assessment of Surveyor Rs.109187/- as the net claim amount is reasonable amount. The question of IDV will not arise, if the vehicle was repaired then and there. If the IDV amount is not allowed, it will be a denial of natural justice. So the Lower Forum was of opinion to allow Rs.2,70,000/- as damages and a cost of Rs.1,000/-. Other issued and claims are not proved by the complainant.
So the Forum Below allowed the complaint and directed the opposite party to pay Rs. 2,70,000/- as damages along with Rs.1,000/- as cost of the proceedings within one month from the date of receipt of this order failing which the complainant is entitled to get an interest of 9% from the date of order, whereas on payment the opposite party shall be entitled for salvage.
Aggrieved by the said order the insurance company filed this appeal on various grounds. Heard both counsels. The contention of the appellant that the damage is consequential damage is unfounded when a vehicle is getting struck while running. It is natural that the driver will at least make an attempt to re-start the vehicle. While doing so the insured is loosing all his rights to get claim is not acceptable. There is no evidence, the vehicle was driven after the first stop of vehicle during heavy rain. Re-starting of the vehicle is the cause of damage will not stand without explaining the reason for the vehicle struck off at the first instance. Moreover the report of the Surveyor is also negating this contention of the appellant. Further the appellant's contention that the granting of IDV without considering depreciation is also not of any real substance. The surveyor has assessed and reported the damage to an extent of Rs.1,09,187/-, had the vehicle been repaired then and there. The denial of claim and repudiation of insurance claim resulted the lying of vehicle in the workshop in the damaged condition has deteriorated the entire value of the vehicle. Hence the complainant is entitled for entire value of the vehicle. The IDV was not objected at the time of insuring the vehicle by the insurance company and they have no right to challenge the value when a claim comes. Moreover even without evaluating the cause of damage and scope of repairs, even without opening and dismantling the vehicle, the blanket refusal is not justified. The vehicle ought to have been dismantled and the cause ought to have been established by the insurer, while denying the claim. In addition to this the opposite party has not mounted the box and clarified the true position also, disentitle them to turn down the insurance claim by the appellant. In the circumstances we do not find any valid grounds to interfere in the order of Lower Forum. And therefore we dismiss the appeal.
In the result, the appeal is dismissed without cost and upheld the order of Lower Forum. There is not cost.
V.V. JOSE -- MEMBER
K. CHANDRADAS NADAR -- JUDICIAL MEMBER
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[HON'ABLE MR. JUSTICE SRI P.Q.BARKATH ALI] PRESIDENT
[ SRI. V. V. JOSE] MEMBER