State Consumer Disputes Redressal Commission
Manoj R. Annadurai Managing Director ... vs Bajaj Allianz General Insurance Co. ... on 11 October, 2011
BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI BEFORE : Honble Thiru Justice M.THANIKACHALAM PRESIDENT Thiru J. JAYARAM, M.A.,M.L., JUDICIAL MEMBER
Tmt. VASUGI RAMANAN MEMBER II F.A.NO.771/2010 (Against order in CC.NO.46/2007 on the file of the DCDRF, Chennai (South) DATED THIS THE 11th DAY OF OCTOBER 2011 Manoj R. Annadurai Managing Director C.K. Technologies Pvt. Ltd., 2 Reddy Colony, Ramalingapuram Chennai 12 Appellant/Complainant Vs.
1. Bajaj Allianz General Insurance Co. Ltd., No.25/26, Prince Towers IV Floor College Road, Chennai- 6 Rep. by its Manager
2. Ford India Pvt. Ltd., S.P. Koil Street Chenglepet- 603 204 Rep. by its Manager Respondents/ Opposite parties The Appellant as complainant filed a complaint before the District Forum against the opposite parties praying for the direction to the opposite parties to repair the car free of cost, to pay Rs.5 lakhs towards punitive compensation, alongwith cost. The District Forum allowed the complaint. Against the said order, this appeal is preferred praying to enhance the award, order of the District Forum dt.08.03.2010 in CC.No.46/2007.
This petition coming before us for hearing finally on 28.09.2011. Upon hearing the arguments of the counsel on both sides, perusing the documents, lower court records, and the order passed by the District Forum, this commission made the following order:
Counsel for the Appellant/ Complainant: M/s. S. Natarajan Counsel for the 1st Respondent/1st opposite party : M/s. M.B. Gopalan Counsel for the 2nd Respondent/ 2nd opposite party: Mr. R. Senthilkmar M. THANIKACHALAM J, PRESIDENT
1. The complainant not satisfied with the order of the District Forum, though some reliefs were granted, has come before this commission, as appellant for enhancement.
2. The complainant being the owner of a Car, Ford Fiesta, manufactured by the 2nd opposite party, bearing Regn.
No.TN 05 S9713, insured the same with the 1st opposite party. On 28.10.2006, when Mr.Anu Selva was returning to their office in the car, it stopped suddenly, due to raining, and the attempt to start the engine, ended in vain. Therefore, the 1st opposite party was called, immediately not attended, and as instructed by them, the complainant started the car, solely drew it to the service centre, where the estimate was given as RS.5,70,000/-, whereas the 1st opposite party, sanctioned Rs.1,36,200/-. The 2nd opposite party refused to replace the spare parts, under warrant, therefore, the complaint was filed for deficiency and negligence, claiming various reliefs.
3. The 1st opposite party admitting the insurance coverage, as well as claim lodged, based upon the alleged incident on 28.10.2006, resisted the case, interalia contending that the damages to the car had happened, not due to stagnation of water by heavy rain, whereas the vehicle having driven, despite repair, which alone aggravated the damage, thereby offending the conditions No.4 of the policy, that the surveyor had assessed the admissible portion of the repairs, at RS.76,270/-, which was not paid, since repairs were not completed, that cannot be termed or brought within the meaning of deficiency in service, praying for the dismissal of the complaint.
4. The 2nd opposite party resisted the case, that the complainant is not a consumer, since the vehicle was purchased for commercial purpose, and that there was no allegations against them, regarding any negligence or deficiency including any manufacturing defect, and therefore as such they are not liable to answer the claim.
5. The District Forum, based upon the admitted facts, as well as based upon the surveyor report, come for the conclusion that the non-settlement of the claim, should be construed as deficiency in service,then directed the 1st opposite party to pay a sum of Rs.76,770/-, in addition to compensation of Rs.30000/-, alongwith cost of RS.5000/-, with interest, as per order dt.8.3.2010, not giving satisfaction to the complainant, resulting this appeal for enhancement.
6. The 1st opposite party, though suffered, an adverse order has not challenged the same, and in fact it was represented before us, that they have paid the entire amount, and the complainant also received the amount, without prejudice to his right in the appeal, not challenged.
7. The learned counsel for the appellant would contend, that when the deficiency remains proved, by sufficient documents, the District Forum failed, to award proper compensation, whereas awarded only meager compensation, which should be enhanced, and that the order of the District Forum purely based upon Ex.B1, is erroneous, which is opposed.
8. The Dismissal of the complaint against the 2nd opposite party is not very much challenged, even by the complainant before us. The 2nd opposite party though resisted the case, as if the complainant is not a consumer, we find no merit in that defense, since purchasing a vehicle by a commercial organization, is not prohibited, and that purchase will not come within the meaning of commercial purpose, since purchase of the car has nothing to do with the profits, or purchase was not motivated for profits, or the car so purchased is not utilized for commercial purpose, whereas it was utilized by officials of the company. Therefore, we are of the undoubted opinion, that the complainant is a consumer, though they are the business concern.
9. It is the common case of the parties, that the vehicle was insured with the 1st opposite party, for the period 30.8.2006 to 29.8.2007. It is also not in dispute before us, since the 1st opposite party has not challenged the finding of the District Forum, that on 28.10.2006, this vehicle met with an accident, whether it is due to stagnating of rain water, preceded by heavy rain, or otherwise. In the said accident, the vehicle got damaged is also admitted. Therefore, if the conditions of the policy, empowers the insured to claim the amount, despite the non-repair also, subject to repairing the insurer can claim the amount, that cannot be totally prohibited. In this way alone, though originally the claim was repudiated, subsequently amount was paid, as ordered by the District Forum.
10. In the appeal for enhancing the compensation, we find no merit, whereas we are able to see the avaricious nature of the complainant alone, which can be seen from the prayer. The prayer reads:
a. Repair the car free of cost b. Pay a sum of Rs.5,00,000/- towards punitive compensation for mental agony, inconvenience and hardship caused;
c.
Pay cost of this complaint and d.
Pay my monthly EMI and my daily expenditure till the time the car is repaired.
It is not the case of the complainant either the insurance company, or the manufacturer had caused the accident, and therefore it is understandable how the complainant can claim repair the car free of cost, and if at all subject to policy condition, they can claim the amount spent. Thus, the frivolous first prayer was rightly negatived, ordering justifiable claim, which should be confirmed.
10. The 2nd prayer reads, Rs.5 lakhs compensation, and our search to find the cause by going through line by line, in the complaint, ended in vain, how this amount is claimed or calculated. The complainant on his own caused accident, and therefore if he or they had engaged taxi for their company purpose, it is their headache, not the head ache of the opposite parties , which they are attempting to pass on, to the District Forum and State commission. In this view, the compensation claim should have been totally dismissed, but unfortunately the District Forum has passed an order, directing to pay RS.30000/-, which is not challenged, and therefore we are not disturbing.
11. The 4th prayer is, the opposite party should be directed to pay EMI, and daily expenditure, till the time car is repaired. How this kind of relief is available to the complainant is not made out, based upon terms of contract of the policy. In case, if the complainant is unable to repair the vehicle, or not willing to repair the vehicle, how they can claim daily charges or seek direction to pay EMIs, unknown to law, especially to the Consumer Protection Act.
Therefore, this part was also rightly negatived by the District Forum.
12. Admittedly, after the accident, it was reported, surveyor inspected, and he assessed the permissible damage, though it was subsequently negatived or repudiated.
The surveyor (Ex.B1) has given reasons for the excess damage, and has reasonably assessed the accident damage, which alone covered by the policy, as rightly pointed out by the learned counsel for the opposite party. Condition No.4 of the policy, makes it clear, that the loss had occasioned to the vehicle, due to precautions, not being taken to prevent the further damage, or the vehicle driven before the necessary repair, or effected in extension of the damage, is not bound to be payable. In this case, even as pleaded in the complaint, due to rain fall, whether the water entered into the engine or not, car stopped. Naturally, they attempted to start, and without knowing what was the problem, they have driven the vehicle to the service centre, thereby caused further damage to the vehicle, which comes squarely within the ambit of condition No.4. Therefore, whatever may be the amount spent, or to be spent, or incurred by the complainant, due to his fault, under the condition of policy, insurance company is not liable to pay, which was rightly considered by the District Forum, ordering the actual accidental expenses, which should be confirmed, as such, dismissing this appeal, with cost, as frivolous one.
13. In the result, the appeal is dismissed with cost of RS.2500/-, confirming the order of the District Forum in CC.No.46/2007 dt.8.3.2010.
VASUGI RAMANAN J. JAYARAM M.THANIKACHALAM MEMBER I JUDICIAL MEMBER PRESIDENT INDEX : YES / NO Rsh/d/mtj/Bench-1/Insurance