State Consumer Disputes Redressal Commission
Icici Lombard General Insurance Co Ltd vs Suresh Kumar Sharma on 24 August, 2012
H H.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION, SHIMLA. First Appeal No : 69/2011. Date of Decision : 24.08.2012. .. ICICI Lombard General Insurance Company Limited, the Mall, Solan, through its Legal Manager, ICICI Lombard General Insurance Company Limited, SCO 501, Sector 70, Mohali, District Mohali, Punjab. .Appellant Versus Shri Suresh Kumar Sharma, S/o Sh. Bhagat Ram, R/o Village Bachur, Post Office Darlaghat, Tehsil Arki, District Solan, H.P. . Respondent Coram Honble Mr. Chander Shekhar Sharma, Presiding Member Honble Mrs.Prem Chauhan, Member Whether approved for reporting?[1] For the Appellant: Mr. Jagdish Thakur, Advocate For the Respondents: Ms. Dalip.K. Sharma, Advocate ORDER:
Mr . Chander Shekhar Sharma, Presiding Member This appeal is directed against the order dated 27.8.2011 passed in Consumer Complaint No. 109/2009 by learned District Consumer Disputes Redressal Forum, Solan whereby, the complaint was allowed and the opposite parties were directed to indemnify the complainant to the extent of ` 1,08,023/-, along with interest at the rate of 9% per annum, with effect from the date of filing of the complaint Parties are hereinafter referred as per their status in the complaint.
2. Factual matrix of the case that the complainant is owner of a For Fiesta car bearing registration No. HP-11A-6300, which was insured by him with the OP-Company, for a period of one year commencing from 04.02.2008 to 03.02.2009.
3. The aforesaid car met with an accident near Ambuja colony, Darlaght and has suffered extensive damage. The further averments are to the effect that the intimation qua the accident was given to the OP-company, who in turn asked the complainant to get the vehicle repaired from the their authorized service station at Mandi from Saluja Motor Private Ltd. Further averred that OP-company appointed surveyor and loss assessor to inspect the vehicle and assess the loss. It is the case of the complainant, as set out in the complaint, that after repair, the final bill to the tune of ` 1,16,986/- was raised, against which the OP-company, defrayed only a sum of ` 8,000/-. Thereafter a request was made to the OP-company to indemnify him, qua the balance sum, but in vain. Hence, deficiency of service has been alleged on the part of the opposite parties.
4. In this background present complaint Under Section 12 of Consumer Protection Act , 1986 was filed against the opposite parties for deficiency of service wherein relief to the extent has detailed in relief clause had been claimed by the complaint.
5. Rejoinder to the complaint was also filed wherein averments made in the complaint was reiterated.
6. This complaint was contested and resisted by the opposite parties who had contended that after the receipt of report of the purported accident, Shri Gaurav Sood, an independent surveyor and loss assessor to assess the loss, was appointed, who reported that the vehicle hit to the stone lying on the road due to which oil pan got damaged and the oil leakage happened. However, the complainant kept on driving the vehicle and due to leakage of oil, engine heated up and the same got seized hence, the same is consequential damage in nature and is not payable under the terms and conditions of the policy . Further averments are to the effect that the claim was passed and defrayed for an amount of ` 8,963/- to Saluja Motors Pvt. Ltd. It is contended that consequential damage is not covered under the policy, hence, nothing is payable. Hence, it was denied that there was defieiceny of service on the party of Opposite parties and they are not included any unfair trade practice.
7. The brief resume of the evidence led by the parties in nutshell is that the complainant in support of its case has filed his own affidavit and had placed reliance upon a number of documents Annexure A to D.
8. Opposite party in the present case had filed affidavit of Nigam Bhardwaj, Manager Legal of the Company and of Gaurav Sood surveyor had placed reliance upon number of documents Annexure R-1 to R-5.
9. Mr. Jagdish Thakur, Advocate Learned counsel for the appellant had argued that the order he Fora below is not legally sustainable. The For a below had wrongly concluded that in the present case there is no evidence to the effect that due to hitting of stone oil pan got damaged and company is not liable to indemnify the consequential damage which is not covered under the term and condition of the policy due to the negligence of driver who has not taken reasonable care as a result thereof engine got heated and effected parts of the engine. It was also argued that Fora Below had wrongly ordered for of indemnifying the OP for the consumable items as mentioned in Annexure B invoice Saluja Motors Ltd items mentioned at serial No. 16 to17 and 23 to 27 which are pan oil, oil filter, Power strg fluid, coolant-SLTR, seal, transmission oil, engine oil sae, SW-30 and 10 per cent depreciation is also to be deducted from the awarded amount as a age of the vehicle is two years and salvage value of the various spare parts which were replaced is also to be deducted from the awarded amount and learned counsel for both the parties had agreed that salvage value is to be assessed at ` 4000/- for which they have got no objection in assessing the same. Mr. Jagdish Thakur, Advocate had also argued that an amount of ` 8,963/- it to be deducted from the awarded amount.
10. Mr. Dalip.K.Sharma Learned counsel for the respondent had supported the order of the Fora below and he had only agreed for deduction amount of ` 4000/- as salvage value from the awarded amount.
11. After hearing the learned counsel for the parties and going through the case minutely we are of the considered view that there is some merit in the present appeal which deserves to be partly allowed. Reason being that in the present case learned Fora below had wrongly allowed a sum of ` 4832/- on the consumable items No. 16 to 17 and 23 to 27 as referred above and depreciation of 10 per cent is to be deducted from the awarded amount which comes to ` 11,215/- and ` 500/- is to be deducted from the total on account of excess clause and salvage amount of `4000/- is also to be deducted from the awarded amount as agreed between the parties and the amount of ` 8963/- which had already been paid to the M/s Saluja Motors also requires to be deducted from the awarded amount.
12. In view of the detailed given in the following table the complainant is only entitled for a sum of ` 87476/-. As per Annexure-B the total bill which is issued by authorized dealer the expenses thereof are ` 1,16,986/- and following amount is required to be deducted from ` 1,16,986/- as referred/ discussed above.
Total rupees 1,16,986/-
Consumable items No. 4832/-
Total 1,12,154/-
Less 10% depreciation 11215/-
Amount to be deducted, excess clause 500/-
Amount already paid 8963/-
Total 91476/-
Cost of agreed salvage value 4000/-
Total 87,476/-
Hence, the complainant is only entitled for a sum of ` 87,476/- instead of ` 1,08,023/- as ordered by learned Fora below. However, there is no force in the contention for the learned counsel for the appellant that the complainant is entitled for the consequential loss due to hitting of stone. As a result thereof oil pan got damaged as no expert evidence in this regard had been led by the appellant.
13. In the present case plea of the appellant to the effect that as a result of leakage of the oil the engine has ceased which caused consequential loss to the different parts of the vehicle, is not having any force and deserves to be rejected.
14. In view of the aforesaid discussions and facts and circumstances, the appeal is partly allowed and now complainant is entitled to ` 87,476/- instead ` 1,08,023/- and rest of the order relating to the payment of interest and cost is maintained . No order as to cost.
15. One copy of this order be sent to each of the parties, free of cost, as per Rules.
(Chander Shekhar Sharma) Presiding Member ( Prem Chauhan) Member.
August 24,2012.
(Mahajan) [1] Whether reporters of the local papers may be allowed to see the order?