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New India Assurance Co Ltd. v/s M/s. Coastal Agro Industries Ltd.

    First Appeal No. 780 of 2020

    Decided On, 18 January 2021

    At, National Consumer Disputes Redressal Commission NCDRC

    By, THE HONOURABLE MR. C. VISWANATH
    By, PRESIDING MEMBER

    For the Appearing Parties: Maibam N Singh, B. Suyodhan, Advocates.



Judgment Text

The present Appeal has been filed against the order dated 06.12.2019 of the Andhra Pradesh State Consumer Disputes Redressal Commission, Vijayawada ('the State Commission') in CC no. 21 of 2015.

2. Ia no. 6935 of 2020 is an application for Condonation of Delay. According to the Registry, there is a delay of 260 days, though the Appellant has not mentioned any number in his application. The impugned order of the Andhra Pradesh State Consumer Disputes Redressal Commission at Vijayawada is dated 06.12.2019. The order was received by the Counsel for the Appellant on 30.12.2019. As per the averments made in the application for Condonation of Delay, there was a delay in seeking legal advice and thereafter on 23.03.2020, lock down was declared. Hon'ble Supreme Court in Suo Moto Writ Petition no. 3 of 2020, vide its order dated 23.03.2020, has extended the time for filing any petitions/ applications/ suits/ appeals/ all other proceedings irrespective of the limitations prescribed under general law or special laws whether condonable or not with effect from 15.03.2020 till further order to be passed. In view of the above, the delay is condoned and IA No. 6935 of 2020 is allowed.

3. Case of the Complainant/ Respondent is that he has been carrying on agro industries business. A BMW M3 Coupe car bearing registration no. AP 13 R 0009, was purchased from M/s Hetero Labs Limited, Hyderabad for an amount of Rs.57,04,000/-. The Complainant took an Insurance Policy - "Private Car Enhancement Cover Policy" bearing no. 62060331120300003714 for a sum of Rs.58,80,000/- valid from 09.01.2013 to 08.01.2014, from the Appellant/ Opposite Party. On 16.02.2013, when the officials of the Company were proceeding to Bangalore from Hyderabad in the car, at Shamshabad, Ranga Reddy District, the car hit a stone in the middle of the road at 11.00 p m, resulting damage to the car. Immediately the Complainant took the car to the authorised workshop, M/s Kun Motoren, Khairatabad who found that the engine was damaged. The Complainant informed the Opposite Party about the said incident. Thereafter the Opposite Party appointed a Surveyor Vijaya Surveyors and Assessors for inspection and assessment of the loss. The Surveyor inspected the car and permitted the Complainant to get the repairs carried out. The vehicle was repaired, including replacement of the engine and the car was made road worthy. The Complainant paid the entire repair charges of Rs.23,20,352/- to M/s Kun Motoren (Motors) Khairatabad, Hyderabad The Surveyor inspected the car again on 21.09.2013 and submitted his final report. The Opposite Party had appointed another Surveyor Shri A Chandrasekhara Rao in March or April 2014 to give his technical opinion on the damage and the admissibility of the claim. The Opposite Party repudiated the claim vide letter dated 25.02.2015, nearly after two years from the date of the accident. Thereafter the Complainant sought copy of the Surveyor Reports through RTI, which was duly supplied. Aggrieved by the repudiation of his claim complaint was filed before the State Commission for redressal of his grievances with the following prayer:

To pay claim of the Complainant of Rs.35,22,866/- (Rs.23,20,245/- + Rs.12.02,621/-) with interest of 24% per annum from the date of the complaint till realisation;

To award an amount of Rs.5,00,000/- towards compensation for mental agony and suffering, and the OP 1 and 2 are liable to pay the same;

To grant costs Rs.30,000/- for the complainant;

To grant such further and other incidental relief's as the Complainant be found entitled as deem just and proper.

4. The Opposite Party resisted the Complaint. The Opposite Party contended that the Complainant without giving information to them had given the car for repair, denying the opportunity to make an on the spot inspection of the accident. The Complainant gave intimation of the claim on 18.02.2013 to the Opposite Party. M/s Vijaya Surveyors and Assessors conducted post repair inspection and submitted their report on 20.09.2013 and 21.09.2013. The Surveyor assessed the loss at Rs.20,36,459/- and salvage value at Rs.2.00 lakh. The contention of the Complainant was that the car was damaged due to hitting a stone, when oil leaked out and the engine stopped. The Surveyor's report did not come to a positive conclusion that the damage to engine was covered by insured peril or not. As the Surveyor failed to arrive a specific recommendations, the Opposite Party appointed a second Surveyor for ascertaining the cause of the accident and damage to the car. The Surveyor noticed that a sump was created by wilfully hammering the engine. The Surveyor further observed that a protective panel duly protecting the engine from outside panel was intact. He gave a report stating that the claim of the Complainant was fraudulent in nature and not caused by external means. Based on the report of the second Surveyor, the Insurance Claim had been repudiated.

5. The State Commission after hearing both the parties and based on record and evidence, allowed the Complaint in part directing the Opposite Party to pay an amount of Rs.23,21,824/- with interest @ 9% per annum from the date of the Complaint, i.e., 07.07.2015 till the date of realisation; Rs.50,000/- towards mental agony and Rs.10,000/- towards cost to the Complainant.

6. Aggrieved by the order of the State Commission, the Opposite Party/ Appellant filed the present Appeal before this Commission. It is an admitted fact that the Insurance Policy was taken and the car met with an accident during the Policy period. The Respondent/ Complainant took the vehicle to the authorised dealer of BMW Car, at Hyderabad and got it repaired. Surveyor was appointed by the Opposite Party who inspected the car before and after the repair and agreed with the Respondent/ Complainant that the engine was damaged due to hitting of a stone and the engine stopped suddenly after the engine oil leaked. Not satisfied with the report of the Surveyor, the Insurance Company appointed another Surveyor who reported that the claim of the Respondent was fraudulent in nature and not caused due to an act of insured peril. The Opposite Party repudiated the claim of the Complainant based on the report of the second Surveyor.

7. Learned counsel for the Appellant argued that the second Surveyor appointed was an investigator and the Company was well within its right to appoint an investigator,if not satisfied with the report of the first Surveyor. Since the second Surveyor was also a technical expert and the Insurance Company had relied on his report that the claim of the insured was fraudulent in nature and not proximately caused due to the act of insured peril, the claim was repudiated.

8. Learned Counsel appearing on behalf of the Respondent/ Complainant stated that the vehicle was duly repaired after seeking permission for carrying out the same from the Surveyor and at the authorised dealer of BMW Car in Hyderabad. Since the car got damaged by hitting a stone, oil had leaked and the engine suddenly stopped. The vehicle was towed to the authorised work-shop and after thorough verification it was identified that the engine was damaged. The Appellant/ Opposite Party had wrongly repudiated their claim.

9. The vehicle met with an accident due to hitting a stone due to which the engine got damaged and stopped due oil leakage from the car. The Respondent informed M/s Kun Motoren, Khairatabad, the authorised BMW dealer/ work-shop who in turn sent a recovery van to take the car to the work-shop. The authorised dealer got the vehicle inspected and identified that the engine was damaged. The authorised dealer estimated the cost of repairs at Rs.27,15,989/-. The Respondent sent claim intimation to the Opposite Party within two days on 18.02.2012. The Appellant appointed Surveyor Vijaya Surveyors and Assessors on 22.02.2013 for inspection and assessment of loss caused to the Complainant's car. The Surveyor duly inspected the car and took the photographs before the repairs were carried out. After repair, the Surveyor again inspected the car on 21.09.2013 and submitted a final report. The Appellant appointed a second Surveyor to inspect the vehicle and report, vide letters dated 10.03.204 and 08.04.2014. The second Surveyor submitted his report on 02.06.2014. The authorised dealer issued the repair bill for Rs.23,21,824/-. The Appellant repudiated the claim of the Respodnent, vide its letter dated 25.02.2015.

10. Learned Counsel for the Appellant stated that the Surveyor did not come to a positive conclusion about the damage to the engine and had failed to arrive at a specific recommendation for payment of the claim. The Surveyor/ Investigator were appointed by them because the first Surveyor did not arrive at a specific recommendation. I have carefully perused the report of the first Surveyor. It is very clear that the vehicle got damaged due to accident caused by hitting a big stone, the oil leaked and the vehicle stopped suddenly. As seen from the preliminary report submitted by the Surveyor, "car ran over the big stone which hit the sump of the engine, resulting the engine oil was dried out and vehicle was stopped with noise.................. Hence, informed this matter to BMW authorised work-shop................., after thorough inspection identified that the engine was damaged...................... I have inspected the car on 23.02.2013 and many occasions conducted final survey". He concluded that "after considering the above points, I am strongly feel that engine was damaged due to hitting of big stone and oil was leaked out it was happened accidentally. Hence, I am recommending the same to insurers consideration". In fact by their own admission the Appellant stated that the first Surveyor merely reiterated the narration of the Complainant. No evidence has been placed on record to show scope for any suspicion and the reasons for discarding the report of the first Surveyor and appointing another Surveyor/ Investigator. The Appellant did not even care to inform the Respondent about the appointment of a second Surveyor/ Investigator. The second Surveyor noted that a sump was created by willful act of making a hole with a hammer. This appears to be height of imagination, that engine of a BMW car would be destroyed in that manner. The second Surveyor also noted that there was no possibility of damage to the engine by hitting a stone, in view of the protected panel of the car. The second Surveyor came to the conclusion:

"Thus after conducting a detailed investigation and inspection of the vehicle under claim, and its engine etc., the undersigned opines that the insured's claim is fraudulent in nature and not proximately caused due to the act of an insured peril, i.e., accident by external means. The insured's claim may be repudiated as per the terms and conditions of the policy".

11. The State Commission has noted the Chief Examination of PW 2:

"It is just and necessary to state that the undercover of the vehicle, is to protect the air friction, wind blow noise and water spill into the vehicle from bottom but it cannot protect any accidental damages to it. Even assuming but not conceding

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that there is a protected panel, that will be only for some other purpose other than protection engine. The opposite party did not choose to cross examine PW 2, to falsify this aspect. The 2nd Surveyor's report did not completely ruled out the possibility of damage of the engine, if the car came into contact with a big stone. In such circumstances, the report given by the 1st Surveyor cannot be discarded". 12. As seen from the above, the report of the second Surveyor/Investigator could not be relied upon. The Appellant appears to have appointed the second Surveyor only to subvert the opinion of the first Surveyor and to obtain a favourable report. The first Surveyor had categorically held that the engine got accidentally damaged due to hitting of a stone and leakage of oil and recommended the case of the Insurer to the Insured. The State Commission after a detailed examination of witnesses arrived at a considered view that the Respondent was entitled to recover repair charges from the Opposite Party. Order passed by the State Commission is fully justified. Appellants failed to show any illegality or irregularity in the impugned order warranting interference in the appellate jurisdiction. Appeal is dismissed with no order as to costs.
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