State Consumer Disputes Redressal Commission
National Insurance Co. Ltd. vs Devraj Chaudhary on 5 April, 2016
FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
First Appeal No.701 of 2014
Date of Institution: 10.06.2014.
Date of Decision : 05.04.2016.
National Insurance Company Limited, Batala Raod, Amritsar through
its duly constituted Attorney Shri Devinder Grover Deputy Manager.
.....Appellant/opposite party
Versus
Devraj Chaudhary S/o Sh. Chhaju Ram, R/o Plot No.42-A, Gali No.2,
Vikas Nagar, Chheharta, Amritsar.
.....Respondent/complainant
First appeal against order dated
09.05.2014 passed by the District
Consumer Disputes Redressal
Forum, Amritsar.
Quorum:-
Shri J. S. Klar, Presiding Judicial Member.
Shri H.S. Guram, Member.
Present:-
For the appellant : Sh. Parminder Singh, Advocate For the respondent : Sh. Updip Singh, Advocate ................................................... J. S. KLAR, PRESIDING JUDICIAL MEMBER:-
The appellant of this appeal (the opposite party in the complaint) has directed this appeal against the respondent of this appeal (the complainant in the complaint), challenging order dated 09.05.2014 of the District Consumer Disputes Redressal Forum, Amritsar (in short the "District Forum"), vide which, the complaint of the complainant was accepted by directing the OP to pay Rs.1,05,697/- for replacement of turbo, besides Rs.2000/- as costs of litigation.
2. The complainant has filed the complaint under Section 12 of the Consumer Protection Act, 1986 (in short, "the Act") against First Appeal No.701 of 2014 2 the OP on the averments that he purchased an insurance policy no.400611366313 dated 31.08.2011 valid upto 30.08.2012 for his car Nissan Micra (LMV), bearing registration no.PB-02T-8888 under cashless garage scheme. The vehicle of complainant met with an accident on 25.03.2012 at about 8:00 PM at Vikas Nagar Amritsar causing damage to the vehicle. Intimation was given to OP about this accident and it appointed Mr. Subash Chawla as surveyor to assess the loss and he submitted the report on 09.05.2012. In its report; surveyor opined that after meeting with accident the vehicle continued to run for some distance resulting the remaining oil in the engine pushed into the turbo of the vehicle and when the damaged chamber of the vehicle got replaced and vehicle went for the trial run, its turbo started giving noise, which was consequential loss and was not payable, as per terms and conditions of the insurance policy. The repairer submitted the supplementary estimate alongwith the technical opinion that loss is of consequential nature. It was further averred that supplementary estimate/loss was denied to the repairer on the ground that it is not within the scope of the insurance policy. The repairer submitted a estimate no.208 dated 27.03.2012 for Rs.23,829/- alongwith estimate no.218 Rs.1,05,697/- alongwith service tax @ Rs.12.36%, labour charges and Vat @13.75% extra. The complainant has, thus, filed the complaint directing OP to pay claim amount of Rs.1,05,697/- alongwith service tax @12.36%, labour charges and Vat @13.75% extra alongwith interest @12% First Appeal No.701 of 2014 3 per annum, besides Rs.10,000/- as compensation for mental harassment.
3. Upon notice, OP appeared and filed written reply and contested the complaint of the complainant. It was averred in preliminary objections in the written reply that complainant received amount of Rs.14,655/- towards full and final settlement with his own free will and consent and is not entitled to file the present complaint. As per survey report, the vehicle after having met with alleged accident, the vehicle continued to run for some distance resulting the remaining oil in the engine pushing into the turbo of the vehicle and when the damaged chamber of the vehicle got replaced and it went for trial run, its turbo started giving noise, which was consequential loss and was not payable in the light of terms and conditions of the policy. On merits, the complaint was contested on the ground that the loss to vehicle was consequential and is not payable under the policy. The OP prayed for the dismissal of the complaint.
4. The complainant tendered in evidence affidavits Ex.C-1, Ex.CW2/A and copy of certificate Ex.CW2/1 alongwith documents Ex.C-2 to C-9 and closed the evidence. As against it, OP tendered in evidence affidavit of M.S. Bhatia, Sr. Divisional Manager of OP Ex.OP-1 and copy of insurance policy Ex.OP-2 and closed the evidence. On conclusion of evidence and arguments, the District Forum accepted the complaint of the complainant. Dissatisfied with order of District Forum Amritsar dated 09.05.2014, the OP now appellant preferred this appeal against the same. First Appeal No.701 of 2014 4
5. We have heard the learned counsel for the parties and have also examined the record of the case. The only point involved in this case for adjudication is whether the loss was caused on account of consequential loss, which is not covered under the terms and conditions of the policy or not. The version of the OP is that vehicle continued to run after accident and resulting into the consequential loss, because remaining oil in the engine pushed into the turbo of the vehicle and when damaged chamber of the vehicle got repaired and vehicle was taken for the trial run, its turbo started giving noise and stopped working, which was consequential loss and is not payable under the contract of insurance as averred by OP in the written version. Evidence is required to be referred to on the record to settle the dispute between the parties. Affidavit of Manavdeep Singh is Ex.CW-2/A on the record. He stated in this affidavit that turbo became out of order due to non supply of engine oil. The turbo equipment ran dry with the leakage of engine oil and fuel oil after accident and its plates of special alloys eroded and not repairable. He further stated that replacement of turbo is essential to maintain the accidental car. Ex.CW-2/1 is the copy of diploma in Railway Engineer of Manadeep Singh. Ex.C-1 is the affidavit of complainant on the record. Complainant stated in this affidavit that the vehicle met with accident and loss was caused to the turbo. Ex.C-2 is the copy of insurance policy. Ex.C-3 is the copy of registration certificate of the vehicle in question. Ex.C-4 is the copy of driving licence of Dev Raj Chaudhary. Ex.C-5 is the copy of repair First Appeal No.701 of 2014 5 estimate. Ex.C-6 is the copy of RO billing dated 28.01.2011. Ex.C-7 is the copy of job card. Ex.C-8 is the copy of motor spot/final survey report. The OP placed reliance upon affidavit of Sh.M.S. Bhatia, Sr. Divisional Manager of OP Ex.OP-1 that vehicle continued to run after accident resulting into consequential loss. Policy document is Ex.OP-2 on the record.
6. From perusal of record, we find that complainant stated that loss was due to the accident to the turbo. It is version of the OP that loss took place due to run of the vehicle after accident resulting into loss to the turbo. The OP mainly relied upon surveyor report in this regard. The surveyor mainly pointed out that when the damaged chamber of the vehicle got replaced and vehicle went for the trial run, its turbo started giving noise, which was consequential loss and claim is not admissible under the contract of insurance. The affidavit of surveyor is not on the record. On the other hand, Manavdeep Singh qualified engineer placed his affidavit Ex.CW-2/A on the record that the turbo equipment run dry with the leakage of engine oil and fuel oil after accident. Similarly, on the basis of surveyor's report, which is primarily meant for the purpose of assessment of loss, it cannot be said that the loss took place due to consequential loss to the turbo. Evidence on this point is lacking on the record. Consequently, we are of this view that District Forum Amritsar correctly observed that the turbo of the vehicle became defective due to accident and not due to negligence on the part of driver of the First Appeal No.701 of 2014 6 vehicle by driving it after the accident. The order of District Forum under challenge in this case is affirmed.
7. As a result of our above discussions, we find no merit in the appeal and the same is hereby dismissed.
8. The appellant had deposited the amount of Rs.25,000/- with this Commission at the time of filing the appeal and further deposited Rs.28,849/- in compliance with order of this Commission. These amounts with interest, which accrued thereupon, if any, be remitted by the registry to the respondent of this appeal by way of a crossed cheque/demand draft after the expiry of 45 days.
9. Arguments in this appeal were heard on 04.04.2016 and the order was reserved. Now the order be communicated to the parties. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(J. S. KLAR)
PRESIDING JUDICIAL MEMBER
(H.S.GURAM)
April 05, 2016 MEMBER
(MM)