State Consumer Disputes Redressal Commission
Universal Sompo General Insurance Co. ... vs Bachan Lal Ahuja on 20 March, 2017
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, DAKSHIN MARG, SECTOR 37-A, CHANDIGARH.
First Appeal No.231 of 2014
Date of Institution: 10.03.2014
Date of Decision : 20.03.2017
1. Universal Sompo General Insurance Company Ltd. C/o
Prestige Honda, Lally Motors (P) Ltd. Patiala through its agent.
2. Universal Sompo General Insurance Company Limited., SCO
No.72, Sector 5, Swastik Vihar, Mansa Devi Complex,
Panchkula (Haryana) through its Manager / I.C.
3. Universal Sompo General Insurance Company Ltd., Plot
No.EL-94, T.T.C. Industrial Area, Mhape, Navi Mumbai, through
its chairman/M.D.
......Appellants/Opposite parties
Versus
Bachan Lal Ahuja aged 55 years S/o Sh.Ditta Ram Ahuja, R/o #8/81,
Krishna Colony, Lahori gate, Patiala.
......Respondent/Complainant
First Appeal against the order dated
31.12.2013 of the District Consumer
Disputes Redressal Forum, Patiala.
Quorum:-
Hon'ble Mr. Justice Paramjeet Singh Dhaliwal, President
Mr. Harcharan Singh Guram, Member
Present:-
For the appellants : Sh.Rajeev Abhi, Advocate For the respondent : Sh.R.K.Shukla, Advocate HARCHARAN SINGH GURAM, MEMBER The appellants have directed this appeal against the order dated 31.12.2013 of the District Consumer Disputes Redressal Forum, Patiala (in short 'District Forum') directing the appellants to pay an amount of `1,08,279/- to the complainant with interest at the rate of 9% per annum from the date of repudiation of the claim i.e. First Appeal No.231 of 2014 2 17.05.2013 till final payment. The opposite parties were further directed to pay `4,000/- as costs in favour of the complainant.
2. It would be apposite to mention at the outset that hereinafter the parties will be referred, as have been arrayed before the District Forum.
3. Brief facts of the case are that the complainant Bachan Lal Ahuja filed complaint No.198 of 2013 under Section 12 of the Consumer Protection Act, 1986 (in short 'the Act') against the opposite parties on the averments that he got his car Make Honda Civic, bearing registration No.PB-11-AM-9099, comprehensively insured vide policy No.45900014695 with the opposite parties for the period 01.05.2012 to 30.04.2013 for the sum insured of `7,68,000/- It was averred that on 16.02.2013 when Mr. Padam Kumar was driving the car while going from railway crossing, Patiala towards Rajpura Road and when he passed under the flyover bridge situated near Bus Stand, Patiala, the car waded through the rainy water collected due to depression and then the engine of the car stopped and came to a stand-still. It was averred that the vehicle was towed to the authorized dealer of the opposite parties at Bahadurgarh who prepared the estimate of repairs on 18.02.2013 for a sum of `2,79,121/-. The matter regarding the loss of the vehicle was reported to the opposite parties who deputed M/s Arora Associates, Surveyor to assess the loss. It was averred that he completed all the formalities as per the direction of the surveyor. However, he was surprised to receive the letter dated 17.05.2013 wherein his claim was repudiated on the grounds that the policy did not cover consequential loss. On receipt of the repudiation letter, complainant paid a visit to the office of the First Appeal No.231 of 2014 3 opposite parties and explained to them that the loss of the vehicle was due to accidental loss and requested them to reconsider his claim. His request made to the opposite parties was not considered. On refusal of the opposite parties to look into his representation, he filed a consumer complaint in the District Forum and sought directions to be issued against the opposite parties to pay him `2,79,121/- with interest at the rate of 18% per annum from the date of accident and to pay him `50,000/- by way of compensation on account of harassment and mental agony and also to award `22,000/- as litigation costs.
4. Upon notice, opposite parties filed their reply and admitted that the complainant purchased insurance policy No.2311/52212682/00/000 of his vehicle having registration No.PB- 11-AM-9099 from 01.05.2012 to 30.04.2013. It was averred that as per claim filed by the complainant it was stated that the engine of the vehicle was stopped due to entering in the rainy water. It was averred that information of the accident was given by the complainant. On receipt of the information M/s Arora Associates, Surveyor was appointed to survey and assessed the loss. The said surveyor submitted his report with the following observations:-
"As per our physical observation there were some water marks on air filter and upholstery of said vehicle and the engine of the said vehicle was chocked. In respect of extension of the loss, we allowed repaired to dismantle the engine assembly and again visited the repairer workshop and observed that the chamber contained water marks and block got cracked. As per our technical observations, due to trying self again and again to start the engine after the same was chocked due to water lodged, the engine got chocked and rod struck with the block First Appeal No.231 of 2014 4 Assy. and block got damaged, which is violation of policy terms and condition No.4".
It was averred that after considering the above survey report and documents, it was found that the part of the damages claimed pertains to consequential loss includes the damage to engine and related parts and averred that as per condition No.4 of the policy:-
"4(i) Any accident loss or damage to any property whatsoever or any loss or expense whatsoever resulting or arising there from or any consequential loss."
As per the said clause, the claim is not payable and, as such, the claim payable by the insurance company was to extent of `3,618/- and the other loss as claimed by the complainant does not fall within the ambit and scope of insurance policy terms and conditions. It was averred that the complainant was duly informed vide their letter No.17.05.2013. It was agitated that the insurance company was not having any branch office at Patiala and, as such, the District Forum did not have the jurisdiction to entertain the present complaint. The complaint filed by the complainant is false and vexatious and denied all other averments as averred in the complaint and prayed for dismissal of the complaint.
5. The District Forum allowed the parties to lead their evidence in support of their averments. The District Forum heard the arguments of the learned counsel for the parties and after perusing the records, allowed the complaint, vide aforesaid order.
6. Aggrieved with the impugned order, the opposite parties have filed the present appeal in this Commission. First Appeal No.231 of 2014 5
7. We have heard the learned counsel for the parties and perused the record of the District Forum which was called at the stage of admission.
8. Learned counsel for the appellants argued that the car was started / cranked several times in flood water as a result of which it got damaged and no additional cover has been taken by the complainant for the vehicle for the aforesaid damage. He argued that the District Forum wrongly allowed the complaint of the complainant by directing the opposite parties to pay `1,08,279/-. As per their averments that the complainant had not paid any amount towards the bills paid by them as per the estimate issued in their name by the authorized dealer M/s Lally Motors, situated at Bahadurgarh, Patiala. He argued that as per their surveyor's estimate the complainant was liable to be reimbursed the amount of `3,618/- being the assessment cost made by their surveyor and loss assessor. He further argued that insurance company does not cover the consequential loss having occurred in the car due to ingression of water was beyond the scope of insurance policy and argued that when the surveyor is appointed itself, an independent authority as approved by IRDAI who assessed the loss and damage when any accident took place. In the instant case, no accident had occurred but only the complainant pushed his car into the rainy water and due to that his car stopped in between. He argued that after his car struck up in the rainy water he further tried to start the engine again and again in order to move his car from the rainy waters and prayed that the order passed by the District Forum be set aside.
First Appeal No.231 of 2014 6
9. On the other hand, learned counsel for the complainant argued that from the perusal of the insurance policy the vehicle was insured against the loss and damage by flood, typhoon, hurricane, storm, tempest etc. He argued that due to heavy rains there was flood like condition on the roads when engine of the car suddenly stopped and had to be pushed aside of the road. It was averred that Padam Kumar, the driver had not started his vehicle or cranked it several times in the rainy water. He further argued that surveyor being not an automobile engineer, his report itself is not sufficient to prove that the engine could not have damaged without the vehicle having been started. He argued that the order passed by the District Forum is well reasoned order and needs to be affirmed.
10. In order to decide the controversy, we have been guided by the recent judgment passed by the Hon'ble National Consumer Disputes Redressal Commission, New Delhi reported in Consumer Protection Reporter, Part-2 (P.373) titled as "Tata AIG General Insurance Co. Ltd. Vs. M/s Ambience Leasing Pvt. Ltd. and Anr." Wherein it has been held in para No.10 as under:-
"10. We have perused the insurance policy issued by the petitioner-company to the complainant. The said policy while covering damage due to flood, cyclone, hailstorm, etc. does not exclude the loss to the vehicle due to hydro static lock. In the absence of such an exclusion, the insurance company will have to reimburse cost of repair of the vehicle on account of damage by heavy rains and flooding irrespective of whether the said loss occurred due to hydro static lock or for some other reason. If despite IRDA permitting charging of an extra premium for reimbursement in respect of loss due to hydro static lock the petitioner-company did not charge such a premium, it is only itself to blame for such a situation because the policy issued by First Appeal No.231 of 2014 7 it while granting insurance against damage due to flooding, etc., did not exclude the loss/damage to the vehicle on account of the aforesaid reason. Therefore, in our opinion, in a damage of this nature, unless expressly excluded, in the insurance policy, damage to the vehicle on account of hydro static lock would also be covered for the purpose of reimbursement. For this reason alone the petitioner-company must necessarily fail."
11. In view of the above discussion of the Hon'ble National Commission, we have perused the insurance policy documents placed on the record vide Ex.OP-6 being a Private Car Package Policy, wherein loss or damage to the vehicle insured is enumerated as under:-
"i. by fire, explosion, self ignition or lightning;
ii by burglary, housebreaking or theft:
iii by riot and strike;
iv by earthquake (fire and shock damage)
v. by flood / typhoon / hurricane / storm / tempest/
inundation / cyclone/ hailstorm / frost
vi by accidental external means;
vii by malicious act;
viii by terrorist activity;
ix whilst in transit by road/rail/inland-waterway/lift/ elevator
or air;
x. by landslide/ rockslide"
wherein it is stated that the insured against loss or damage to the vehicle hereunder and / or its accessories whilst thereon.
12. As discussed above, this policy contains the conditions covering flood, typhoon, hurricane storm, tempest, inundation, cyclone, hailstorm, frost etc. The same conditions have been looked into by the Hon'ble National Commission in the (supra) judgment cited above.
First Appeal No.231 of 2014 8
13. Accordingly, we are of the view that the appeal filed by the present appellants, as per the decision of the Hon'ble National Commission in the above-cited judgment, cannot be allowed. Accordingly, we feel that the insurance company has failed to prove its contentions that the policy excluded the clause of consequential loss due to rain water entering in the engine from its cover or policy. Accordingly, we do not find any merit in the appeal and the same is dismissed.
14. The appellants have deposited a sum of `25,000/- at the time of filing of the appeal along with interest which has accrued thereon, if any, be remitted by the registry in favour of the respondent/complainant, by way of crossed cheque/demand draft. Opposite parties are further directed to pay the remaining amount as per the directions of the District Forum within 30 days from the date of receipt of the certified copy of the order.
15. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(JUSTICE PARAMJEET SINGH DHALIWAL) PRESIDENT (HARCHARAN SINGH GURAM) MEMBER March 20, 2017 parmod