National Consumer Disputes Redressal
Dr. P.V. Ramana Murthy vs Ifco-Tokio General Insurance Co. Ltd. & ... on 4 February, 2019
Author: R.K. Agrawal
Bench: R.K. Agrawal
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 1473 OF 2013 (Against the Order dated 02/01/2013 in Appeal No. 616/2011 of the State Commission Andhra Pradesh) 1. DR. P.V. RAMANA MURTHY ...........Petitioner(s) Versus 1. IFCO-TOKIO GENERAL INSURANCE CO. LTD. & 4 ORS. 2. IFFCO TOKIO GENERAL INSURANCE CO. LTD. - 3. DAIMIER CHRYSER INDIA PVT. LTD. (MERCEDES BENZ) (R-5) Rep. By Its Managing Director, Sector - 1, 2 -A, Chikhali, Pimpri Pune - 018 4. M/S. ADISHWAR AUTO DIAGNOSITICS PVT. LTD. (R-3) - 5. M/S. ADISHWAR AUTO DIAGNOSTTICS PVT. LTD. (R-5) - ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE R.K. AGRAWAL,PRESIDENT HON'BLE MRS. M. SHREESHA,MEMBER For the Petitioner : Ms. K. Radha Rao, Advocate For the Respondent : For the Respondent Nos. 1 & 2 : Mr. N. Mohan Krishna, Advocate For the Respondent No.3 : NEMO For the Respondent No.4 : Mr. K.S. Rama Rao, Advocate For the Respondent No.5 : Mr. B. Bharath Reddy, Advocate Dated : 04 Feb 2019 ORDER Challenge in this Revision Petition under Section 21 (b) of the Consumer Protection Act, 1986 (in short, "the Act") is the order dated 02.01.2013 in First Appeal No. 616 of 2011 against Consumer Complaint No. 243 of 2010 passed by the District Consumer Disputes Redressal Forum-II, Vijayawada (in short, "the District Forum".) By the impugned order, the State Commission has allowed the Appeal preferred by the Insurance Company modifying the order of the District Forum and directed Opposite Party No. 1 & 2, namely, the Insurance Company to pay an amount of ₹5,33,589/- with interest @ 9% per annum from 01.01.2010 till the date of payment. The Opposite Parties 3 & 4, namely, the Dealer at Krishna District and at Hyderabad were directed to pay an amount of Rs.1,00,000/- towards compensation. Further, cost of Rs.5,000/- was awarded to be paid by the Opposite Party Nos. 1 to 4 .
2. The brief facts as set out in the Complaint are that the Complainant's driver while driving the insured car from Chennai to Vijayawada met with an accident on 02.09.2009, as he lost control over the car as the lorry behind which the car was proceeding suddenly ran over a rock in the middle of the road and the driver has no time to avert 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 Complainant notices display on the screen to check the oil level and informed the dealer at Krishna District to check the oil level. It is averred that on his instruction, the dealer measured the oil with the oil gauze and found the oil at the required level. As per the advice of the chief mechanic of the dealer at Krishna Nagar district, the Complainant left the car at the spot with instructions to the driver and arranged some other vehicle and reached Vijayawada. It was stated that the same night the Dealer at Krishna District organized for the vehicle to be towed to Vijayawada as he was unable to get the car repaired. The Dealer at Hyderabad prepared a supplementary estimate to the tune of ₹15,00,000/- towards repair. A claim was made to the Insurance Company to instruct the repairer to dismantle the engine and informed the Complainant regarding damage to the engine. The Surveyor addressed a letter dated 02.02.2010 stating that the damage to the engine is on account of consequential damage and, therefore, the Insurance Company is not liable to pay the amount. It was averred that the Complainant issued a cheque of ₹5,00,000/- to the Dealer at Hyderabad on 25.02.2010. It was denied that the vehicle was driven without sufficient lubricant oil which resulted in damage. The Complainant organized some other vehicle spending a sum of ₹15,000/- per month. It is stated that he is a Doctor by profession and a busy Surgeon and the purpose of purchase of the car is defeated. The Complainant had 25 loan instalments payable to HDFC Bank, Vijayawada and suffered a lot as the Dealer at Hyderabad kept the vehicle with him not attending to the repairs for 13 months and hence the Complaint was filed before the District Forum seeking the following reliefs:
"a. To direct the first and second Opposite Party to pay the total claim amount as claimed by the Opposite Party 3 to 5 to bring the vehicle in road worthy condition;
b. To direct the first and second Opposite Party to pay ₹2,00,000/- as damages;
c. To direct the Opposite Party 3 to 5 to pay ₹5,00,000/- as damages;
d. To direct the fourth Opposite Party to deliver the vehicle to the Complainant in a sound and perfect road worthy condition;
e. To direct the fourth Opposite Party to refund the advance amount of ₹5,00,000/- paid by the Complainant alongwith interest @ 24% from the date of payment till realization.
f. To direct all the Opposite Parties to pay costs and other reliefs."
3. The Insurance Company resisted the claim on the ground that the repudiation is justified as the vehicle was driven without lubricant oil causing damage to the engine. The surveyor reported that there was no external impact on the engine and that any damage caused due to consequential reasons is not covered by the policy.
4. The Dealer at Krishna District and Hyderabad and also the manufacturer filed their Written Version stating that the Dealer at Hyderabad had got the car repaired which was ready to be delivered in the month of June, 2010 but the Complainant had taken the delivery of the car on 10.12.2010 and filed the Complaint on 23.12.2010 and therefore there is no deficiency of service on their behalf.
5. The District Forum based on the evidence adduced allowed the Complaint on the ground that the Insurance Company failed to produce the Surveyor's Report and in the absence of that report the repudiation letter dated 02.02.2010 about four months after the date of incident should not be given any credence.
6. Aggrieved by the order of the District Forum, the Insurance Company preferred an Appeal before the State Commission which modified the order of the District Forum to the extent indicated above.
7. It is the case of the Petitioner/Complainant that he is a busy Doctor/Surgeon who spent approximately ₹15,000/- per month for his conveyance since the date the accident had occurred till the date of delivery of the car i.e. 02.09.2009 to 10.12.2010 (15 months) and therefore this amount is to be compensated; that the Surveyor had filed his report after three and a half months; that there was no evidence on record that the car was driven without lubricant oil; that the Petitioner never violated any terms & conditions of the policy and that he had paid an amount of ₹11,46,564/- vide cheque No.000796 drawn on Bank of India dated 10.12.2010 the dealer at Hyderabad and also paid an amount of ₹5,00,000/-vide cheque No. 004599 dated 25.02.2010 and therefore totally spent an amount of ₹16,46,464/-, whereas the fora below have only awarded an amount of ₹5,33,589/-. Learned counsel appearing for the Petitioner vehemently contended that the amount is to be enhanced to balance the equities.
8. We may mention here that the learned counsel for the parties have made a statement at the Bar that the Complainant Doctor had subsequently purchased another Mercedes Benz car, which shows his confidence and faith in the vehicle manufactured and sold by the Respondent No.5.
9. Learned counsel appearing for the Insurance Company contended that the State Commission has rightly awarded the amount assessed by the surveyor and that the District Forum had erred in awarding ₹16,46,564/-, which was allegedly paid by the Complainant to the dealers. Learned counsel appearing for the dealers vehemently contended that compensation of ₹1,00,000/- was unfairly fastened on them.
10. It is pertinent to note that the Respondents namely, the Insurance Company and the dealers both at Krishna District and Hyderabad did not prefer any Revision Petition challenging the order of the State Commission and therefore the finding of deficiency of service by the Insurance Company in repudiating the claim and also that of the dealers for delayed delivery of the car has attained finality.
11. The State Commission in para 17 of the order has given a finding that the Complainant had not given any explanation as to why he is said to have paid in cash such a huge amount. Perusal of the record shows that the receipts of 10.12.2010 and that of 25.02.2010 were all cheque payments and not that of cash. The cheque numbers together with the name of the Bank against which it was drawn was mentioned in the receipts. It is also relevant to mention that there was no such plea regarding cash payment made by the Dealer at Hyderabad. Therefore the State Commission has erred in making such an observation. It is also an admitted fact that the Dealer had delivered the vehicle to the Complainant only on 10.12.2010 after one year of entrustment to it by the Complainant even if we take the submission of the learned counsel appearing for the dealer into consideration it is seen from the record that the accident had occurred on 02.09.2009 and the vehicle was admittedly made ready only in June,2010. Learned counsel submitted that the vehicle was taken by the Complainant only in the month of December 2010 and this delay of six months is only on account of the fault of the Complainant. Be that as it may, the record shows that the vehicle was kept with them for inordinate period of time till June, 2010. On a pointed query from the Bench as to why the Dealer had kept the vehicle for such a long period of time, it was stated that the Complainant did not give any consent for repair. This contention is unsustainable in the light of the fact that email dated 10.09.2009 clearly states that the dealer had taken note of the job recommended by the Complainant and had inspected the vehicle thoroughly in this regard. An estimate was also prepared and admittedly the Complainant had paid an amount of ₹16,46,564/- for the repairs. Hence apart from the fact that no Revision Petition was preferred by the Dealer we do not see any grounds to interfere with the finding of the State Commission qua the Dealers.
12. Now, we address ourselves to the contention of the Insurance Company that the Surveyor had rightly assessed the loss at ₹5,33,589/-. Having regard to the fact that the incident had occurred on 02.09.2009 and the Surveyor had assessed the loss and filed his report on 05.02.2010, which is contrary to the regulations of the IRDA, which stipulates that the Survey Report is to be done within 30 days of the filing of the claim and also additionally it is pertinent to note that the letter dated 02.02.2010 issued by the Surveyor to the Complainant states that internal damage to the engine will not be covered as it is a consequential loss and the policy does not cover the consequential damage. For better understanding of the case the letter is reproduced as hereunder:
"Sub: Assessment on your vehicle number AP 16 BK 7999 lying at Adiswar Auto, Hyderabad.
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 inspected.
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 survey report to the insurers."
13. It is significant to note that this letter dated 02.02.2010 was given even prior to the final report dated 05.02.2010 and the Surveyor had given a finding that it is a consequential damage without even dismantling. A brief perusal of the Survey Report does not anywhere state that the damage was caused only on account of the alleged deficient lubricant oil.
14. The State Commission has wrongly concluded that the amounts were paid in cash. Keeping in view the receipts dated 25.02.2010 and 10.12.2010 for ₹5,00,000/- and ₹11,00,000/- paid by cheque No. 004599 and 000796 and also the time taken by the Insurance Company to furnish the Survey Report and having repudiated the claim of 02.02.2010 by the Surveyor even prior to the filing of the final Survey Report on account of consequential damage in the absence of any documentary evidence to substantiate the same, we are of the considered view that the Complainant is indeed entitled for enhancement. At the cost of repetition, we reiterate that the Insurance Company did not prefer any Revision Petition challenging the order of the State Commission and therefore the observation of the State Commission has attained finality. It can be seen from the Survey Report that the total cost of parts is ₹14,57,769.09 paise and if we deduct the depreciation on parts of ₹1,03,398.28 paise, excess as per policy of ₹1,000/- and salvage value of ₹25,000/- and add taxes of ₹55,191.75 paise the amount arrived at would be ₹13,83,562.56 paise. We deduct the amount of ₹5,33,589.53 paise awarded by the State Commission i.e. and arrive at the balance amount payable i.e. ₹8,49,973.03 paise. Keeping in view the facts and circumstances of the case and no evidence to substantiate that ₹15,000/- per month was spent on a rented car, these amounts claimed towards monthly expenses, are being disallowed.
15. In the result, for all the aforenoted reasons the claim of the Complainant is allowed in part directing the Insurance Company (i.e. first and second Opposite Party as arrayed in the Original Complaint) to pay an amount of ₹8,49,973.03 paise within four weeks from the date of receipt of a copy of this order together, failing which the amount shall attract interest @ 9% p.a. from the date of filing of the Complaint till the date of realisation. It is clarified that this amount is in addition to what has been awarded by the State Commission and interest on this amount is being awarded only in case of default of payment within the time stipulated. This Revision Petition stands disposed of with the aforenoted directions.
......................J R.K. AGRAWAL PRESIDENT ...................... M. SHREESHA MEMBER