National Consumer Disputes Redressal
New India Assurance Co. Ltd. vs Narvir R. Parmar on 26 February, 2019
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 313 OF 2018 (Against the Order dated 21/12/2017 in Complaint No. 142/2012 of the State Commission Maharashtra) 1. NEW INDIA ASSURANCE CO. LTD. DELHI LEGAL HUB, 12/1, 2ND FLOOR, JEEVAN RAKSHA BUILDING, ASAF ALI ROAD. NEW DELHI-110002 ...........Appellant(s) Versus 1. NARVIR R. PARMAR R/O. 11 GURUDEV COMPLEX, B/H. JAI TOWER SILVASSA ROAD. VAPPI-396191. GUJRAT. ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE V.K. JAIN,PRESIDING MEMBER
For the Appellant : Mr. J.P.N. Shahi, Advocate For the Respondent : Mr. Rutuij K. Dave, Advocate
Dated : 26 Feb 2019 ORDER
JUSTICE V.K.JAIN (ORAL)
The complainant/respondent owned a car which he had got insured with the petitioner company for the period from 14.10.2010 to 13.10.2011. On 14.7.2011 when the complainant was coming from Vapi to Mumbai in the said car, the vehicle stopped on account of water which had accumulated on the road. The vehicle was taken to a workshop and intimation was given to the insurer. Mr. B.N. Mehta was appointed as the surveyor to inspect the vehicle and assess the loss. The surveyor Mr. B.N. Mehta sent a letter dated 18.7.2011 to the insurer stating as under:-
"The Flood water had entered into the Engine through Air cleaner. The Engine was NOT rotating. Few photos taken by us are sent herewith. We have asked them to remove the Engine and the Cylinder Head, to check the extent of damage to internal parts of the Engine. The extent of damage to internal parts of the Engine depends on the speed of Engine at the material time. The estimate may be Rs.2.50.000/- or more, depending on the items damaged. The dealer are also NOT in a position to tell the extent of damage."
2. Vide subsequent letter dated 22.7.2011 Mr. B.N. Mehta intimated the insurer as under:-
"With ref. to above claim, we had inspected the car at MIS Auto Hanger-Andheri, dealer for the above vehicle on dt. 16.7.11. Preliminary note for the same was forwarded on 18.7.11. The engine was removed and on visual inspection, it was observed that Engine Block was damaged, as No.2 connecting rod was broken into two pieces and has hit the Engine Block. The estimate given by the dealer is also forwarded.
We had once again visited the above dealer on dt. 22.7.11 and had inspected the above damages. During the discussion, we were told by the dealer that loose parts, half engine etc. are NOT supplied by the Co. for the above model and hence they have to replace complete Engine Ass. Costing approx. Rs.17.00.000/-.
Please note that inside of passenger compartment was not affected due to flood water. The damages to connecting rod may be either due to hydrostatic lock or metal fatigue. The same can only be ascertained after the engine is dismantled, and individual parts are inspected. We have requested the above dealer NOT to dismantle the engine till official confirmation from your end to proceed further in the matter."
3. Thereafter the insurer appointed another surveyor M/s SS Bright who vide his report dated 20.9.2011 interalia reported as under:-
"Please also enlighten me about the positions of inlets through which water can enter into the engine specifying the height in inches of the lowest in let from the ground level.
In spite of my various requests, finally the repairer cum authorized dealer has replied as follows:
The above said vehicle was reported to our workshop on 15/07/2011 by our towing service (which we are supposed to provide to our customers) from Vasai. Mr B. N. Mehta surveyor visited our workshop on 16/07/00 & took the photos of water soaked air cleaner & its element later he had asked us to remove engine from the car for further inspection & if needed to remove cylinder head for detailed inspection.
The engine was removed by us & it was observed that the engine block had a big hole & the connecting rod was seen broken into two pieces. Mr. Mehta was called again to inspect the same. The engine child parts are not supplied by the manufacturer & hence complete engine needs to be replace costing approximately Rs. 17 iakhs + Taxes. As we understand the same was conveyed to New India Assurance Company Ltd & later you were appointed as a surveyor.
... visited our workshop & had visual inspection of the engine. The Exact height of the air cleaner inlet from the ground level of the above vehicle cannot be taken now as the engine assy. is removed.
You may measure the same on any on any same model car if you so desire. We are the dealers/ repairers, the car was being towed to our workshop with above defect for which we have given our estimate. We have no further From the above mentioned reply, it is evident that the repairer is trying to dodge the matter for the reason best known to them. However, the engine could get damaged due to water intrusion under the following circumstances.
A specific type of automotive engine damage occurs when water enters the engine and is compressed in one or more cylinders. Usually, water entering a typical automotive engine cylinder during the intake stroke. Water, unlike the fuel/air mixture, is incompressible and during the compression stroke, locks the piston. This condition tends to overload the connecting rod, causing a bending failure of the rod and severe engine damage. A common way for water to enter the engine is driving through water sufficiently deep to allow injecting into the air intake system of the vehicle, such as crossing flooded roads. After stalling in a flooded street, when the vehicle operator start the engine, which suddenly failed, the connecting rod bending failure resulted in a fracture through the cross-section of the connecting rod.
Another evidence of water ingestion into the engine may exist in the form of mud and water debris patterns. The air filter, which is often damp and crumbles when handled. Water marks on upholstery and carpeting In the occupant compartment are additional clues that corroborate the assessment that water may have entered the engine. Finely, an oil| analysis may add further information regarding the condition of the engine. If wear metal analysis yields evidence of long term related engine damage, then it is possible that the engine failure was not related to hydrostatic lock, absent any other evidence. It should be noted that some engine failure modes such as connecting rod bearing wear out can cause connecting rod failure, which is not related to hydrostatic lock.
The following details may be noted-
even If the Insured's statement has to take into consideration, it may be noted that merely 3 inch to 4 inch water logging cannot cause breakage of engine block as happened in this case
- the only way for the flood water to enter into the engine is through the air intake opening which is located about 2½ foot height from the wheel base thus it is clear that even if this car waded through 3" to 4" deep flood water, the flood water will not reach the engine through the air intake.
- no sign of flood water observed in the passenger compartment/seats/upholstery by myself nor by your surveyor Mr. B.N. Mehta who had inspected the car prior to my visit.
To sum up I am of the opinion that the damages observed on the engine block cannot take place as stated by your insured and such returning the claim papers for your further advise.
4. After receipt of the aforesaid report, the insurer repudiated the claim vide letter dated 27.12.2011 which to the extent it is relevant, reads as under:-
"1. As per claim farm and material provided by you, the damages to the said vehicle caused when the said vehicle entered Into flood water on National Highway when the speed of the vehicle was 20 kmph and the water level was 4" to 5".
As per The Preliminary Surveyor's Report of B. N. Mehta who had immediately inspected the said vehicle, and as per his report the damages to connecting rod was not due to flood water of such level but either due To Hydrostatic Lock or Metal Fatigue.
The Surveys as well as insurance company had written many letters to explain the said position but you failed to explain itto The satisfaction of surveyors and the insurance company.
It is observed by the surveyor that engine had a big hole and the connecting rod was seen broken Into two pieces.
As per the surveyor's report the only way for the flood water to enter into the engine is through air intact opening which is locatedabout 2.5ft. from the wheel base level, thereby also it was not possible for the wafer to enter. 3" to 4" water logging can't causebreakage of engine block."
5. Being aggrieved from the repudiation of the claim, the complainant/respondent approached the concerned State Commission by way of a consumer complaint.
6. The complaint was resisted by the insurer primarily on the ground on which the claim had been repudiated.
7. The State Commission having allowed the complaint and having directed the insurer to pay a sum of Rs.2897500/- to the complainant alongwith interest @ 6% p.a. and compensation quantified at Rs.50,000/-, the appellant/insurer is before this Commission by way of this appeal.
8. Relying upon Clause 5 of the terms and conditions of the insurance policy, the learned counsel for the appellant submits that the damage to the vehicle happened due to complainant's own negligence on account of his having driven the vehicle through flood water and by doing so, the insured had failed to take reasonable steps to safeguard the vehicle from the damage thereby committing breach of condition No.4 of the insurance policy. I, however, find no merit in this contention. It has come in the report of both the surveyors that the water level on the road was only about 3 inches - 4 inches. The complainant was driving the vehicle at a rather slow speed of about 20 km per hour. In my opinion, no prudent driver would apprehend damage to the engine of the vehicle if he drives at such a slow speed when the water level on the road does not exceed 4 inch. This is so, considering the report of the second surveyor that only way flood water could enter the engine through air intake opening which was about two and a half inch from the wheel base. In the opinion of the second surveyor, the water could not have entered the engine if the car waded through 3 inches to 4 inches deep water. However the fact remains that there is no evidence of the water level on the road being higher than 4 inch at the time the vehicle was driven through the said flood water at the speed of about 20 km per hour. The surveyor did not find any such evidence on the vehicle which would show that the level of the flood water on the road was about two and a half feet or higher which according to him was the level at which the water could enter the engine through the air intake opening.
9. In his letter dated 11.8.2015 sent to IRDA, Mr. B.N. Mehta interalia stated as under:-
"When there is a heavy rain, big potholes takes place for which local authority spends crores of rupee. When the water is accumulated in a small patch of road, due to heavy traffic, the vehicle keeps passing in a hurry to reach the destination. Due to heavy rain and darkness the visibility on many road is poor, along with all other vehicle, you are forced to go through the above patch of water, as you have no choice to return, because of one way and flood of vehicle at the back. Due to heavy rain and darkness, you are not in a position to judge the water level in the center and potholes which are covered with water. At times heavy vehicle passing from the side causes big water wave, which runs over the Bonnet level.
Passing under above circumstances is NOT a negligence, but a compulsion. All this hazard may cause damage to engine etc. Car owner has bought the vehicle for his use. By not taking due care, he will be without car till it is repaired, and will have to share certain amount towards repairs."
10. The learned counsel for the insurer states that the above-referred letter from the surveyor of the insurer was managed by the complainant for consideration. In the absence of any material to substantiate the said statement, I am unable to exclude the aforesaid letter from consideration.
11. In my opinion, the insurer has not been able to prove that the insured had failed to take reasonable steps to safeguard the vehicle against any damage. The policy taken by the insured was a comprehensive policy insuring the vehicle against damages of all kinds and, therefore, irrespective of the cause of damage, the insurer has to reimburse the insured for the loss suffered by him unless the case is covered under any of the exceptions contained in the insurance policy or the insurer is able to prove breach of a mandatory term of the insurance policy. No such breach having been proved in this case, the State Commission in my opinion was justified in allowing the claim. Though it has come in the report of the surveyor that the damage to the vehicle could be due to Hydrostatic lock, even such a damage would be covered under the insurance policy. A reference in this regard may be made to the decision of this Commission in Tata AIG General Insurance Co. Ltd. Vs. M/s Ambience Leasing Pvt. Ltd. & Anr. - FA No.1 of 2017 decided on 6.2.2017. The said decision to the extent it is relevant, reads as under:-
"5. A perusal of the insurance policy would show that the appellant had inter-alia insured the vehicle against loss or damage by flood, typhoon, hurricane, storm, tempest, inundation, cyclone and hailstorm.
The case of the complainant / respondent, as noted earlier, is that due to heavy rains there was flood like condition on the road when the engine of the car went off suddenly and had to be pushed to a side of the road. The case of the appellant company is that had the driver of the vehicle not started / cranked it several times in flood water, the engine would not have got damaged. There is no evidence of the driver having started / cranked the vehicle several times in flood water. The surveyor not being an automobile engineer, his report by itself is not sufficient to prove that the engine could not have got damaged without the vehicle having been started / cranked several times in flood water. In any case, the issue involved in this appeal is no more res integra in view of the decision of this Commission dated 05.1.2015 in Bharti Axa General Insurance Company Limited Vs. Chandra Mohan Goyal Revision Petition No. 4504 of 2014. The aforesaid judgement to the extent it is relevant reads as under:
"7. The learned counsel for the petitioner company has produced before us a literature which to the extent relied upon reads as under:
"Symptoms and damage If an engine hydrolocks while at speed, a mechanical failure is likely. Common damage modes include bent or broken connecting rods, a fractured head, a fractured block, crankcase damage, damaged bearings, or any combination of these. Forces absorbed by other interconnected components may cause additional damage. Physical damage to metal parts can manifest as a "crashing" or "screeching" sound and usually requires replacement of the engine or a substantial rebuild of its major components.
If an internal combustion engine hydrolocks while idling or under low power conditions, the engine may stop suddenly with no immediate damage. In this case the engine can often be purged by unscrewing the spark plugs or injectors and spinning the engine to expel the liquid from the combustion chambers and then restarted. Depending on how the liquid was introduced to the engine, it possibly can be restarted and dried out with normal combustion heat, or it may require more work, such as flushing out corrupted operating fluids and replacing damaged gaskets.
If a cylinder fills with liquid while the engine is turned off, the engine will refuse to turn when a starting cycle is attempted. Since the starter mechanism's torque is normally much lower than the engine's operating torque and momentum this will usually not damage the engine but may burn out the starter. The engine can be drained as above and restarted. If a corrosive substance such as water has been in the engine long enough to cause rusting, more extensive repairs will be required.
Amounts of water significant enough to cause hydrolock tend to upset the air/fuel mixture in gasoline engines. If water is introduced slowly enough, this effect can cut power and speed in an engine to a point that when hydrolock actually occurs it does not cause catastrophic engine damage.
Causes and special cases Automotive Hydrolock most commonly occurs in automobiles when driving through floods, either where the water is above the level of the air intake or the vehicle's speed is excessive, creating a tall bow wave. A vehicle fitted with a cold air intake mounted low on the vehicle will be especially vulnerable to hydrolocking when being driven through standing water or heavy precipitation. Engine coolant entering the cylinders through various means (such as a blown head gasket) is another common cause. Excessive fuel entering (flooding) one or more cylinders in liquid form due to abnormal operating conditions can also cause hydrolock."
8. The learned counsel has also relied upon the reply dated 22-10-2013 sent by IRDA under RTI Act, stating therein that generally insurance companies charge extra premium to provide add on cover for hydro static loss in a motor vehicle policy.
9. The contention of the learned counsel for the petitioner-company is that since the major damage to the vehicle occurred on account of hydro static loss and they had not charged extra premium in order to cover the said loss while issuing the policy to the insured, they are not liable to pay for the damage on account of hydro static loss to the vehicle.
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 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.
6. In view of the above referred pronouncement of this Commission, the damage to the engine of the vehicle is covered by the insurance policy even without the respondent / complainant having taken an additional cover for damage due to hydrostatic lock."
12. For the reasons stated hereinabove, I find no merit in the appeal which is accordingly dismissed with no order as to costs.
13. The amount which the appellant had deposited with the State Commission be released to the complainant / respondent after three months from today.
......................J V.K. JAIN PRESIDING MEMBER