State Consumer Disputes Redressal Commission
1. Ifco-Tokio General Insurance ... vs 1. Dr.P.V.Ramana Murthy S/O ... on 2 January, 2013
BEFORE A.P STATE CONSUMER DISPUTES REDRESSAL
COMMISSION AT HYDERABAD
F.A.No.616 OF 2011 AGAINST C.C.NO.243 OF 2010
DISTRICT FORUM-II VIJAYAWADA
Between:
1.
IFCO-Tokio General Insurance Co.Ltd.,
rep. by its Divisional Manager ITGI
Strategic Business Unit, Hyderabad
II Floor, Uma Chambers, Banjara
Hills Rd.,
Panjagutta, Hyderabad-028
2.
IFCO-Tokio General Insurance Co.,Ltd.,
rep. by its Divisional Manager, Lohia
Towers, 4th Floor, D.No.40-9/1-12
Opp: Nirmala Convent,
Vijayawada-008
Appellants/opposite parties no.1
& 2
A N D
1.
Dr.P.V.Ramana Murthy S/o Veerabhadra
Rao
Dr.No.40-5/5-5, Shyam Nagar, Tikkle
Road
Vijayawada-010
Respondent/complainant
2.
Adishwar Auto Diagnostics Pvt
Ltd.,
Mahavir Motors rep. by is Manager
Near Tata Motors, Gudavalli-104
Krishna District
3.
Adishwar Auto Diagnostics Pvt
Ltd,
Mahavir Motors, rep. by its Manager
Dr.No.6-3-1099/1/7, Somajiguda,
Hyderabad-082
4.
Daimier Chryiser India Pvt Ltd.,
(Mercedes-Benz) rep. by its Managing Director
Sector 1`5-A, Chikhali, Pimpri,
Pune-018
Respondents/opposite
parties no.3 to 5
Counsel for the Appellant Sri Mohana
Krishna
Counsel for the Respondent M/s V.Gourisankara
Rao(R1)
M/s A.P.Venugopal
(R2&3)
QUORUM: SRI R.LAKSHMINARASIMHA RAO, HONBLE MEMBER
AND SRI THOTA ASHOK KUMAR, HONBLE MEMBER WENESDAY THE SECOND DAY OF JANUARY TWO THOUSAND THIRTEEN Oral Order (As per Sri R.Lakshminarasimha Rao, Honble Member) ***
1. The appeal is filed by IFFCO-Tokio General Insurance Company Ltd questioning the legality of the order directing it to pay an amount of `16,46,564/- with interest @9%p.a. and costs.
2. The respondent insured his Mercedes Benz car bearing number AP-16BK-7999 with the appellant-insurance company. The appellant insurance company issued insurance policy bearing number 610100/31/04/0640327330 for the period commencing from 20.11.2008 till 19.11.2009. The car met with an accident on 2.09.2009 when its driver could not control it as the Lorry behind which the car was proceeding suddenly ran over a rock in the middle of the road and the first respondents driver had no time to avert the mishap. The rock hit the bottom of the car as a result of which the car went off the road at Katur Medical College. The first respondent noticed display on the screen in the car to check oil level the next time the petrol is filled. The first respondent informed the display on the screen about the need to check the oil level to the sales person and chief mechanic of the second respondent and on their instruction the first respondent measured the oil with oil gauze and found the oil at required level.
3. As per the advice of the chief mechanic of the second respondent, the first respondent left the car at the spot with the instructions to the driver to watch the car and the first respondent and his wife got arranged some other vehicle and reached Vijayawada. On the same night the second respondent towed the vehicle to Vijayawada and feeling unable to repair the car, sent it to the third respondent at Hyderabad. The third respondent prepared supplementary estimations to the tune of `15,00,000/- and till the date of filing the complaint the car was with the third respondent. The appellant-insurance company has not settled the claim after the first respondent submitted the relevant documents.
4. The surveyor addressed letter dated 2.02.2010 to the first respondent with a request to instruct the repairer to dismantle the engine and he informed the first respondent that the internal damage to the engine is not covered by the terms of the insurance policy as it is consequential damage and he requested the repairer to keep open the parts for further inspection. The first respondent issued cheque for `5,00,000/- to the third respondent on 25.02.2010. The first respondent addressed letter to the appellant-insurance company for which reply was given stating that the surveyor submitted report stating that the vehicle was driven without lubricant oil which resulted in damage to the engine and its related parts.
5. The first respondent engaged some other vehicle by spending a sum of `15,000/-
per month from the date of the accident. The first respondent is a doctor by profession and he is a busy surgeon and by delay in settlement of the claim, the purpose of purchase of the car is defeated. The first respondent has 25 loan installments to the HDFC Bank, Vijayawada though he could not use the car due to negligence of the second and third respondents. The third respondent kept the vehicle not attending to the repairs for 13 months.
6. The appellant-insurance company resisted the claim on the premise that the vehicle was driven without lubricant oil which caused damage to the engine and the related parts and as per condition number 4 of the Insurance Policy the first respondent is liable for the loss or damage caused to the vehicle driven without the lubricant after the accident was occurred. The surveyor reported that there was no external impact to the engine and the appellant-insurance company is not liable to pay any amount towards consequential damage of the vehicle. It is contended that there was no deficiency in service on the part of the appellant-insurance company.
7. The respondents no.2 to 4 resisted the claim on the premise that the third respondent is authorized dealer and the second respondent is its branch office. It is contended that the third respondent repaired the car which was ready to be delivered in the month of June,2010 and the first respondent had taken delivery of the car on 10.12.2010 and filed the complaint on 23.12.2010. The respondents no.2 to 4 are not necessary parties to the complaint and there was no deficiency in service on their part.
8. The first respondent had filed his affidavit and the documents, ExA1 to A17. The Manager of the appellant insurance company had filed his affidavit and the documents, Ex B1 and B4.During pendency of the appeal, the appellant-insurance company has filed the surveyors report marked as ExB5.
9. The District Forum allowed the complaint on the premise that the appellant insurance company failed to produce the surveyors report and in absence of his report, the surveyors letter dated2.02.2010 addressed to the first respondent about four months after the date of accident need not be given any credence. In regard to violation of the condition no.4 of the insurance policy, the District Forum held that there has been no material placed on record by the appellant-insurance company.
10. Aggrieved by the order of the District Forum, the opposite party no 1 and 2 filed the appeal contending that the first respondent had committed fundamental breach of the terms of the insurance policy by allowing the vehicle to be driven by permitting the car driven without lubricant immediately after the accident which is violation of condition no.4 of the insurance policy.is contended that the surveyor report showing the loss assessed at `5,33,589/- is filed as additional evidence in the appeal.
11. The points for consideration are:
1.
Whether the first respondent violated the terms of the insurance policy?
2. To what relief?
12. POINT NO 1: The car belonging to the first respondent and its insurance coverage in terms of the insurance policy as also the vehicle meeting with an accident on 2.09.2009 near Kalur Medical College at Guntur are not disputed. The first respondent claimed for the repairs of an amount of `16,46,564/-. The appellant-company refused to settle the claim on the premise that the first respondent in violation of the condition no.4 of the insurance policy permitted the car to be driven without lubricant after the accident is occurred. The first respondent has contended that he had measured the oil level after the occurrence of the accident and found it to be at the required level and on his informing the second respondent, the vehicle was towed to Vijayawada by the second respondent.
13. It is not disputed that at the time of the accident, the screen in the car displayed suggestion that the oil be checked. The second respondent who according to the version of the first respondent had taken the car on tow to Vijayawada, has not stated that it has towed the vehicle. The surveyor addressed letter dated 2.02.2010 to the first respondent that the parts of the engine of the car were damaged as it was driven without the lubricant. The letter reads as under:
With reference to the above, I have discussed several times over phone and explained about the loss. During the conversation, it was also informed that the internal damage to the engine will not be covered as it is a consequential loss and the policy does not cover the consequential damage.
I have instructed the repairer to keep open the parts for further inspection In this connection, I once again request you to allow the repairer to dismantle as he was waiting for your approval.
Please submit the repair bills after repairs as I need to submit final surveyor report to the insurers.
14. The surveyors letter and his opinion cannot be brushed aside as the surveyor is an expert in the automobile field and unless there are rebuttable circumstances, the surveyors opinion cannot be side tracked. The terms of the insurance policy exonerates the appellant of any liability in case of internal damage or consequential loss caused to the car. Condition No.4 of the insurance policy reads as under:
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 effected any extension of the damage or any further damage to the vehicle shall be entirely at the insurers own risk
15. The first respondent paid an amount of `5,00,000/- to the third respondent on 25.02.2010 for the repairs of the vehicle and yet the third respondent has not repaired the vehicle. The third respondent has contended that the vehicle was repaired in the month of June, 2010 which is not supported by any evidence. Admittedly, the third respondent delivered the vehicle to the first respondent on 10.12.2010 i.e., after one year of entrustment to it by the first respondent. The first respondent has stated in his affidavit that there was every chance of the parts of the vehicle getting damaged due to rust and like the cause as the vehicle was not used for such a long time He has stated that:
So far there was no action from the opposite parties.
My vehicle was with opposite party no.4 for the last 13 months. Because of the inaction of the opposite parties i.e., keeping the costly vehicle with them, without completing the repair works for a period of more than 13 months, keeping vehicle idle in garage may result in some parts becoming damaged, rusted and useless.
16. The surveyor has expressed his opinion that the car was driven without there being any lubricant as a result of which the parts of the engine were damaged. The letter dated 2.02.2010 coupled with his report and the statement of the manager of the appellant-insurance company would go to show that the first respondent permitted the car driven without lubricant as a result of which some of the parts of the engine were damaged. The first respondents failure to furnish the particulars of the vehicle and the mode of transport from the spot where the accident occurred to Vijayawada would lend support to the observation of the surveyor. The surveyor has not distinguished the parts of the engine which were damaged due to the vehicle running without lubricant and those which were damaged due to the impact of the stone hitting the bottom of the car.
17. The first respondent paid the amount of `5,00,000/- to the third respondent on 25.02.2010 by which time it cannot be said that the third respondent would not know the damage caused to the car as the surveyor by the time already inspected the car. The first respondent paid `5,00,000/-
to the third respondent through cheque and stated to have paid `11,00,000/- in cash. The first respondent has not given any explanation as to why he said to have paid in cash such a huge amount. Taking into consideration of the aforementioned facts, we are of the view that the amount awarded against the appellant insurance company `16,46,564/- is liable to be scaled down to the amount assessed by the surveyor, i.e, `5,33,589/-.
18. The District Forum has awarded compensation of `1,00,000/-
against the respondents no.2 to 4. The respondents no.2 to 4 have not challenged the award and thus the order of the District Forum insofar as the direction against the tespondentsno.2 to 4 is concerned has become final. The operative portion of the order reads as under:
In the result, the complaint is allowed and the opposite parties 1 and 2 (jointly and severally) are directed to pay an amount of Rs.16,46,564/- (Rupees sixteen lakhs forty six thousand five hundred and sixty four) only to the complainant with interest at 9% p.a., from 01-01-2010 till the date of payment, it is further ordered and directed that the opposite parties 3 and 4 (jointly and severally) to pay an amount of Rs.1,00,000/- (Rupees one lakh) only as damages for causing mental agony to the complainant apart from making the complainant to use private vehicle for more than one year, and no relief is granted against the opposite party No.5. Further, there is no need to direct the opposite party No.4 to return the vehicle in roadworthy condition since the vehicle was already delivered to the complainant. Further, no need to direct the opposite party No.4 to return Rs.5,00,000/- as that amount has to be reimbursed by opposite parties 1 and 2 and that was also covered/ordered to pay by the opposite parties 1 and 2. The opposite parties 1 to 4 (jointly and severally) are directed to pay an amount of Rs.5,000/- (Rupees five thousand) only towards costs to the complainant. Rest of the claims if any claimed by the complainant are rejected. Time for compliance one month..
19. For the foregoing reasons, we held that the first respondent to have violated the terms and conditions of the insurance policy whereby he is disentitled to claim for reimbursement of the entire amount stated to have been incurred for getting repaired the car. The order of the District Forum is liable to be modified as the settlement of the claim has to be made in respect of the damage caused to the vehicle other than the internal damage or consequential loss.
20. In the result, the appeal is allowed modifying the order of the District Forum. The opposite parties no.1 and 2 are directed to pay an amount of `5,33,589/ with interest @9%p.a. from 01.01.2010 till payment. The opposite parties no.3 and 4 are directed to pay an amount of `1,00,000/- towards compensation to the complainant. The opposite parties no.1 to 4 shall pay costs of `5,000/-. There shall be no order as to costs in the appeal. Time for compliance four weeks.
MEMBER MEMBER Dt.02.01.2013.
KMK*