This complaint has been filed by the complainant u/s 12 of the Consumer Protection Act 1986, on the averments that complainant is a registered owner of the car no.UK-07-BK-3762, the same was insured with opposite party no.1 (hereinafter referred to as OP no.1), vide policy no.1107013117P105863988, , valid from 20.07.2017 to 19.05.2018. The policy was a comprehensive/package policy and the vehicle was insured for Rs.4,66,000/- i.e. the Insured Declare Value (hereinafter referred to as IDV). On 16.03.2018 the complainant brought his car at the Bhatia Motors, ITI Chowk, Karnal i.e. OP no.2 for its service. The owner of the workshop told to the complainant to take back the said car tomorrow i.e. on 18.03.2018. In the early morning of 18.03.2018, the 32 vehicles alongwith the car of the complainant stood in the workshop have totally burnt due to heavy electric shock of the high voltage wire which are/were upon the said workshop and this accident occurred. In this accident the car alongwith others vehicles got burnt/damaged extensively and in this regard matter was reported to the police of Police Post Model Town Karnal, vide DDR no.12 dated 18.03.2018. The complainant intimated the official of the OP no.1 and submitted all the relevant documents to the OP no.1. The car was totally burnt/got damaged and the same is lying in the premises of Bhatia Motors, Karnal. The said vehicle is a total loss and beyond its repair. Fire Brigade came there and they put off the fire, they also made report in this regard. The complainant informed the OP no.1 and submitted the claim form alongwith all the relevant and required documents. A surveyor was appointed by OP no.1, who inspected the vehicle and also obtained all the relevant documents from the complainant. The officials of the OP no.1 assured the complainant that claim of the complainant will be settled as early as possible but the OP no.1 failed to settle the matter. The complainant received a letter in which OP no.1 repudiated the claim of the complainant on the false and frivolous ground. In this way there was deficiency in service on the part of the OPs. Hence complainant filed the present complaint.
2. Notice of the complaint was given to the OPs, OP no.1 appeared and filed written version raising preliminary objections with regard to maintainability; cause of action; locus standi and concealment of true and material facts. On merits, it is pleaded that the claim of the complainant was rightly repudiated as same is not covered under the terms and conditions of the policy. As per limits of liability as narrated in the certificate of insurance condition no.2, insurance company is not be liable for any claim arising out of any contractual liability. As the vehicle was under contractual liability with M/s Bhatia Motors, so the insurance company is not liable. The garage owner becomes legally liable due to the facts that he has taken vehicle as, good held in Trust for repair work. The motor insurance policy does not cover liability of garage owner, as such the claim of the complainant has rightly been repudiated. There is no deficiency in service on the part of the OP no.1. The other allegations made in the complaint have been denied and prayed for dismissal of the complaint.
3. OP no.2 did not appear and proceeded against exparte, vide order dated 01.04.2019.
4. Complainant tendered into evidence his affidavit Ex.CW1/A and documents Ex.C1 to Ex.C6 and closed the evidence on 25.11.2019. -2-
5. On the other hand, OP no.1 tendered into evidence affidavit of Raj Kamal Assistant Manager Ex.OP1/A and documents Ex.OP1 to Ex.OP5 and closed the evidence on 07.02.2020.
6. We have heard the learned counsel of both the parties and perused the case file carefully and have also gone through the evidence led by the parties.
7. The case of the complainant, in brief, is that complainant got insured his vehicle bearing registration no. UK-07-BK-3762 with OP no.1. On 16.03.2018 the complainant brought his car at the Bhatia Motors, ITI Chowk, Karnal i.e. OP no.2 for its service. On 18.03.2018 the 32 vehicles alongwith the car of the complainant stood in the workshop have totally burnt due to heavy electric shock of the high voltage wire. The complainant intimated the official of the OP no.1 and submitted all the relevant documents to the OP no.1. The car was totally burnt/got damaged. The officials of the OP no.1 assured the complainant that claim of the complainant will be settled as early as possible but the OP no.1 failed to settle the matter and lastly repudiated the claim of the complaint on the false and frivolous grounds.
8. On the other hand, the case of the OP no.1, in brief, is that the motor insurance policy excludes the losses under contractual liability, which is the general exception no.2 of motor insurance policy. The company shall not be liable under this policy in respect of Any claim arising out of any contractual liability. The garage owner becomes legally liable due to the fact he has taken vehicle as, good interest, for repair work. Even a vehicle parked in a garage over night will also cause the liability to be own garage owner. The motor insurance policy does not cover liability of garage owner and owner of the vehicle as a right to recover damages if any contributed by the garage owner or its employees which was lying in garage or used, tested by garage workers so loss is not payable due to gross violation of term and conditions policy
9. The claim of the complainant was repudiated by OP no.1, vide letter Ex.OP1, that vehicle in question was lying in Bhatia Motors Karnal i.e. OP no.2 where fire caught in workshop due to electric shock. The motor insurance policy excludes the losses under contractual liability which is the general exceptions no.2 of Motor Insurance policy. The company shall not be liable under this policy in respect of any claim arising out of any contractual liability.
10. The moot question involved in the present case is that whether the claim of the complainant falls under contractual liability with the garage owner of M/s Bhatia Motors (OP no.2), or not ?
11. Learned counsel for the complainant relied upon the judgment of Honble Supreme Court in Civil Appeal no.2202 of 1969, dated of decision 22.07.1983 case titled as N.R. Srinivasa Lyer Versus New India Assurance Co. Ltd. Madras, in which Honble Supreme Court held that as per Sections 148 and 151 of Contract Act, 1872, a car delivered for repairs by the insurer if destroyed in fire that broke out in workshop of repairer, the insurer is liable for loss of the insured vehicle. Insurer and repairer relationship is that insured is bailer, insurer is bailee/repairer sub bailee. Bailee and sub bailee had to take care of the car as was expected from a prudent man, in that case, insurer is liable for loss to the insured.
12. Per contra, learned counsel for the OP no.1 relied upon the judgment of Honble Supreme Court of India in Civil Appeal no.8611 of 2019 ( Arising out of S.L.P. (Civil) no.11213 of 2018 decided on 14.11.2019 in case titled as Taj Mahal Hotel Versus United India -3- Insurance Company Ltd. & Ors. wherein it has been held that in a case of theft of a vehicle given for valet parking, the hotel cannot claim exemption from liability by arguing it was due to acts of third parties beyond their control, or that they are protected by an owners risk clause, prior to fulfilling its burden as required under section 151. It is further held that it is by now well established that while a case of a robbery by force is visibly beyond a bailees control, in cases of private stealth, or simple theft where no force or violence is involved, the bailee still has the prima facie burden of explaining that the loss or disappearance of the goods in his custody is not attributable in his neglect or want of care. This is because no one apart from the bailee is in a position to explain the fate of the goods. It is further held that the theft of the car of respondent no.2 was a result of negligence of the appellant-hotel, the exemption clause on the parking tag will not exclude the appellants liability. Hence, the argument of appellant-hotel on this count fails. The Honble Supreme Court observed as under:-
i) The hotel-owner cannot contract out of liability for its negligence or that of its servants in respect of a vehicle of its guest in any circumstances. Once possession of the vehicle is handed to the hotel staff or valet, there is an implied contractual obligation to return the vehicle in a safe condition upon the direction of the owner. ii) Even where there is a general or specific exemption clause, there remains a prima-facie burden of proof on the hotel to explain that any loss or damage cause to the vehicles parked was not on account of its negligence or want of care per sections 151 and
152 of the Contract Act. It is only after this burden of proof is discharged that the exemption clause can come into force. The burden of proving that such loss or damage was covered by the exemption clause will also be on the hotel. Hence, the hotel due to want of requisite care towards the car bailed to it. The appeal dismissed. The authority relied upon by the learned counsel for complainant applicable to the facts of the present case, whereas the authority relied upon by the OP does not applicable to the facts of the present case. As in the present case the complainant parked its vehicle in the garage for repairing with the OP no.2 and at that time, nothing was charged by the OP no.2 from the complainant. Moreover, during the course of investigation, OP no.2 was not found negligent at any point of time. The happening of fire was beyond the control of OP no.2. Thus there is no liability on the part of the OP no.2, as the present case does not fall under the category of contractual liability.
13. Admittedly, vehicle in question caught fire during the subsistence of the insurance policy. It is also admitted in that incident that thirty two vehicles had been burnt. A DDR Ex.C4 was got lodged by the owner of the workshop on the same day. The insurance company i.e. OP no.1, on intimation having been given to them, appointed a surveyor and also an investigator to carry out survey/investigation in the matter. During the spot survey and investigation, it was found that the cost of repair of the insured vehicle is more than the IDV of the vehicle in question.
14. The surveyor/investigator of the OP also came to the conclusion that on 18.03.2018 at about 3.00 a.m. due to short circuit fire had taken place in Bhatia Motors Karnal and 32 vehicles had burnt.
15. The police investigated the matter and came to the conclusion that the said incident was occurred all of sudden and there was no fault of anyone. From the fire brigade report Ex.C5 it has been also proved that due to fire many vehicles had burnt. -4-
16. Keeping in view the ratio of the law laid down in the abovesaid judgments and the facts and circumstances of the present case, we are of the considered view that the act of the OP no.1 amounts to deficiency in service and unfair trade practice while repudiating the claim of the complainant, which otherwise proved genuine.
17. The surveyor has been appointed by the OP, who assessed the loss of repair to the vehicle in question to the tune of Rs.16,40,200/- which is more than the IDV of the vehicle i.e. Rs.4,66,000/-. Thus, the complainant is entitled for Rs.4,66,000/- i.e. IDV of the vehicle in question alongwith compensation and litigation expenses.