State Consumer Disputes Redressal Commission
Madhav Agrawal vs Gmmco Ltd on 11 July, 2011
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR (C.G.)
(A/11/2497)
Appeal No.216/2011
Instituted on : 05/04/2011
Madhav Agrawal,
S/o Shri Gopal Prasad Agrawal,
R/o : Guru Parivesh,
Shri Ram Nagar, Phase-2, Shankar Nagar, Raipur,
Tehsil & District - Raipur, (C.G.) ... Appellant
Vs.
1. GMMCO Limited,
Address : H.I.G.87, HUDCO,
Bhilai, Tehsil & District Durg (C.G.)
2. Reliance General Insurance Company Ltd.
Address : 412-413, 4th Floor, Ravi Bhawan,
Jaistambh Chowk, G.E.Road,
Raipur (C.G.) ... Respondents
PRESENT :
HON'BLE JUSTICE SHRI S.C. VYAS, PRESIDENT
HON'BLE SMT. VEENA MISRA, MEMBER
HON'BLE SHRI V.K. PATIL, MEMBER
COUNSEL FOR THE PARTIES :
Shri K. Anandani, for appellant.
Shri Anurag Thaker, for respondent No.1.
Shri S. Pandya, for respondent No.2.
ORDER (ORAL)
DATED : 11/07/2011 PER :- HON'BLE JUSTICE SHRI S.C. VYAS, PRESIDENT This appeal is directed against the order dated 08/03/2011 of District Consumer Disputes Redressal Forum, Durg (C.G.) (hereinafter called "District Forum" for short) in Complaint Case No.83/2010, // 2 // whereby the complaint of the appellant herein, alleging deficiency in service on the part of manufacturer, as well as insurer and claiming compensation on account of damages to the insured vehicle, has been dismissed on the ground that the complainant failed to establish any deficiency in service on the part of any of the respondents.
2. In nutshell, the facts of the case are that complainant is owner of a Caterpillar 424 B Backhoe Loader (Excavator), which was purchased by him from respondent No.1 and at the time of such purchase, warranty was provided by the manufacturer against any manufacturing defect for a period of one year. The vehicle was insured with respondent No.2/Insurance Company under Commercial Vehicle Insurance Policy for Insured Declared Value Rs.17,73,650/-. On 10.06.2009, the vehicle was being used at Village Madanpur, near Gariyaband, for a road work for excavation of soil and at the time of use, all of a sudden, the engine of the vehicle blocked and there was blast and then it stopped functioning. The incident was reported to the manufacturer. The Engineer of the manufacturer came to the spot and inspected the vehicle and found some manufacturing defects within the warranty period and recommended for replacement of Engine. Later on, on 18.06.2009, respondent No.1 and Engineers of the supplier, Simpson Company conducted a joint inspection of the vehicle and in such joint inspection, after opening the engine of the // 3 // vehicle, it was found that some unknown person dropped sugar in the parts of the engine resulting in severe damage to it. The engine was then opened by them. Later on, it was replaced by a new engine on the cost of the complainant as defect in the engine, was not on account of manufacturing defect, but was on account of some foreign particles introduced in the engine. As it was an incident related to damage to the engine, therefore, a claim was preferred before the Insurance Company, for the compensation. The complainant was required to pay a sum of Rs.2,77,875/- to the manufacturer for purchase of new engine, therefore that amount was demanded from the Insurance Company. The Insurance Company appointed a Surveyor, who opined that incident happened on account of negligence on the part of the complainant and therefore, no compensation is payable by the Insurance Company. On the basis of this Report of the Surveyor, claim of the complainant was repudiated by the Insurance Company. When complaint was filed before the District Forum, the manufacturer as well as Insurer took the same defences. The defence of the manufacturer was that there was no manufacturing defect in the engine of the vehicle, so it was not liable to pay any compensation and the defence of the insurer was that incident happened on account of negligence on the part of the complainant.
// 4 //
3. Learned District Forum, after having considered the material placed before it by both parties agreed with the defences taken by both the OPs/respondents and dismissed the complaint.
4. We have heard the arguments advanced by all parties and perused the record of the District Forum.
5. The appellant/complainant in his affidavit has categorically stated that all of a sudden, when the vehicle was in use for a road work for excavation of soil, then it stopped functioning on account of blast in the engine and then intimation was given to the manufacturer. The Engineer of the manufacturer came to the spot. The Report of the Engineer is available in the record of the District Forum at page No.62 as Document No.4, which says that when that Engineer inspected the vehicle in question, then he found that engine connecting rod was broken and also burst out to cylinder block. He also checked engine oil level and found it OK. It has also been recorded that previous maintenance was done in time. He recommended for replacement of engine of the vehicle. Later on joint inspection was conducted by Shri G. Kashinathan of Simpson Company, and Shri Vijay Paney & Shri Rajendra Verma of respondent No.1 and they found that there was approximately 1/2 k.g. of sugar particles above the 4th Cylinder of head on account of which 4th Cylinder valve, spring/piston/valve seized/jammed due to entry of sugar particles. 4th Con rod // 5 // bolt/bearings/cap were found broken, crank pin found seized (4th pin). Oil drained/sump removed found oil more contamination (paste) with sugar particles and the block was found burst due to broken con rod hitting. This Joint Inspection Report document Annexure D-4 says that there was blast in the engine of the vehicle and probably it was on account of approximately ½ kg sugar particles, which was found above the 4th Cylinder of head. Shri Vijay Pandey, Engineer as well as Shri Siddharth Jha, Branch Manager of the respondent No.1, have also filed their affidavits in support of both reports and in their affidavits also they stated on oath that trouble in the engine was on account of foreign particles in the engine and not on account of manufacturing defects.
6. The most important question is as to who inserted foreign particles inside the engine of the vehicle. There appears no evidence on the part of the insurer. Neither manufacturer nor the insurer produced any evidence to show that it was on account of some deliberate act of anyone or on account of adulteration in the lubricant or oil used in the engine or it was mischief committed by some miscreants.
7. Whatever may be the reason, but the fact remains that the engine of the vehicle ceased on account of blast as some foreign particles was there and without any evidence complainant or anybody // 6 // cannot be held responsible for the presence of foreign particles in the engine of the vehicle.
8. Counsel for the insurer has argued before us that it was negligence on the part of the complainant/insured, who failed to maintain the engine properly and that is why the incident happened, but we find no substance in this argument, because Service Engineer, who inspected the engine of the vehicle immediately after the incident, had not reported any such thing in his Inspection Report and on the contrary it has been stated by him that previous maintenance was done in time. Thus, it cannot be said that there was lack of maintenance on the part of the complainant.
9. The vehicle in question is Excavator and it is required to be parked on road. Reasonable care which is expected from the owner, must have been taken by the complainant and at the time of incident for last half an hour it was already functioning and thereafter all of a sudden blast in engine was happened, which shows that it was merely an accident and the complainant/appellant, cannot be held responsible of any negligence on his part, either in maintaining the vehicle or in not taking its proper care.
// 7 //
10. Moreover, any such copy of the Insurance Policy, has not been brought on record by the insurer, wherein such conditions have been embodied. The only document which has been brought on record, is document Annexure D-3, filed by the complainant/appellant and it simply says that the vehicle in question has been insured as „Commercial Vehicle‟ and there are some limitations as to use, persons or classes of persons entitled to drive, limits of liability, a per description given in the document. In this description, there appears nothing on the basis of which it can be said that the insurer, is not responsible if there is some seizure in the engine or some foreign parties is found in the engine. As there was no such condition, and no such policy containing such condition was provided to the appellant/complainant, so the insurer, can not be permitted to take shelter of such conditions which were not part of the policy document and the agreement executed between the parties.
11. In view of this, we find that the District Forum, has committed mistake in dismissing the complaint against the insurer. Therefore, the appeal succeeds and is allowed. The respondent No.2/Insurance Company is directed to pay a sum of Rs.2,23,080.20, as assessed by the Surveyor, on account of damage to the engine of the vehicle, along with interest @ 6% p.a. from the date of filing of the complaint till date of payment and also to pay cost of litigation, which is quantified as // 8 // Rs.5,000/-, to the appellant/complainant. With these directions, the appeal is disposed of.
(Justice S.C.Vyas) (Smt.Veena Misra) (V.K. Patil)
President Member Member
/07/2011 /07/2011 /07/2011