Delhi District Court
Simardeep Kaur vs . Iffco-Tokio General Insurance Co. ... on 16 April, 2022
IN THE COURT OF MS. ANKITA LAL, ADDL. SENIOR CIVIL JUDGE-CUM-
JUDGE SMALL CAUSE COURT-CUM- GUARDIAN JUDGE, DISTRICT:
SOUTH, NEW DELHI.
CS No. 98/18
SIMARDEEP KAUR Vs. IFFCO-TOKIO GENERAL INSURANCE CO. LTD.
CNR No.-DLST03-000159-2018
IN THE MATTER OF:
Ms. Simardeep Kaur
W/o Sh. Preet Bawa
Sole Prop. M/s. South India Tailors
5/2, Gopi Nath Bazar
Delhi Cantt. .......Plaintiff
VERSUS
M/s. IFFCO-TOKIO General Insurance Co. Ltd.
Corp. Office: 4th & 5th Floor, "IFFCO TOWER"
Ploy No. 3, Sector-29,
Gurgaon, Haryana - 122001. .....Defendant
Date of institution : 23.08.2012
Reserved for Judgment : 13.04.2022
Date of decision : 16.04.2022
SUIT FOR RECOVERY
JUDGMENT
BRIEF FACTS:
1. The present suit has been filed by the plaintiff against the defendant seeking recovery for a sum of Rs.1,64,084.56/- along with the cost and CS SCJ No. 98/2018 Smardeep Kaur vs M/s IFFCO TOKIO page 1 of 24 interest at the rate of 12% per annum pendente lite and future till realization.
2. It is averred that the plaintiff obtained an Insurance of the car bearing no.
DL4C 1268 vide Policy No. 76654704 Make Honda City in the name of M/s. South India Tailors, which is a sole proprietorship concern of the plaintiff. Plaintiff paid a sum of Rs.13,969/- for insurance to the defendant as per their demand and car was comprehensively insured having its value Rs.7,50,000/-.
3. It is alleged that the said car met with an accident on account of heavy rains on 08.08.2011. The car was not starting and was handed over to a workshop in Amritsar where the car was taken and as such the matter was reported to the defendant and the car was inspected by their surveyors. The plaintiff duly intimated the defendant about all these happenings and submitted its claim no. as 33080172.
4. It is alleged that the vehicle was inspected by the Surveyor Mr. Saranpal Singh at Workshop of M/s. Lally Motors, Amritsar and after repairing, all the bills were paid by the plaintiff and bills were submitted to the defendant. The plaintiff paid a sum of Rs.1,61,759/- to M/s Lally Motors, Amritsar and Rs.1,000/- to Amritsar Recovery Van Association for towing the car.
5. It is alleged that the defendant did not supply the report of the surveyor and did not settle the claim of the plaintiff for a long time and ultimately the plaintiff received a cheque of Rs.11,687/- against repair cost of Rs.1,61,758.54/- vide letter dated 07.03.2012 sent by the defendant without giving any details.
CS SCJ No. 98/2018 Smardeep Kaur vs M/s IFFCO TOKIO page 2 of 24
6. It is alleged that a legal notice was sent to the defendant on 12.03.2012 under registered A.D. cover and through courier asking for the copy of the Surveyor Report as well as the balance amount of Rs.1,50,071.54/- but the defendant neither acknowledged nor replied the said letter nor complied with the same.
7. It is alleged that the defendant had illegally and unlawfully not paid the amount of Rs.1,50,071.54/- to the plaintiff and as such the plaintiff was entitled to the said amount on account of the insurance and the reasons given in the letter dated 11.03.2012 were frivolous & misconceived. It is further alleged that since the defendant had delayed the settlement of the claim, the defendant is also liable to pay interest at the rate of 12% per annum on a sum of Rs.1,61,758.54/- and, hence, a sum of Rs.10,448.24/- is recoverable from the defendant on account of up-to date interest on the said amount. Further, since the defendant paid Rs.11,687/- on 07.03.2012, thus, after calculating up-to date interest, the plaintiff is entitled to Rs.1,50,071.54/- being the principal amount and Rs.14,013.02/- on account of interest.
8. It is further alleged that the cause of action arose in favour of the plaintiff and against the defendant firstly on 08.08.2011 when the car met with accident and it further arose when the plaintiff submitted its claim and it further arose on 06.03.2011 when the defendant did not pay the compensation amount to the plaintiff. It further arose when the defendant paid only Rs.11,687/- on 22.02.2012 as settlement of claim and it further arose on 12.03.2012 when the plaintiff issued a legal notice and thereafter, the present suit was filed.
WRITTEN STATEMENT ON BEHALF OF THE DEFENDANT:
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9. It is averred on behalf of the defendant that the suit was time-barred and had not been filed within the period of limitation. Further, it is averred that this Court did not have the jurisdiction to entertain, try and decide the present suit as the damage to the car of the plaintiff was caused in Amritsar, Punjab. The relevant insurance cover note of the car had been issued by Unit No.52-53, Mezzanine Floor, Ansals Fortune Arcade, Sector 18, Noida, Uttar Pradesh branch of the Defendant.
10. Further, it is averred that the plaintiff had instituted the suit against the defendant and had shown the address of the defendant as 4 th & 5th Floor, "IFFCO TOWER", plot no.3, Sector-29, Gurgaon, Haryana. It is further averred that the plaintiff had misused the process of law by filing the present false and frivolous suit before this Hon'ble Court and the same did not reveal any cause of action. Hence, the defendant has stated that the suit is not maintainable.
11. The defendant also denied the contentions of the plaint and averred that on perusal of the report of the Surveyor, it was revealed that the engine of the vehicle was not impacted externally or from outside force. It was also averred that the engine could not be impacted by merely coming in contact with the water and the damages to the engine can be attributed to mechanical failure to start/run the engine when it was still in contact with the water. It was averred that the obvious cause of damages to the engine components of the car was to start the engine without total cleaning of the engine and getting the vehicle inspected by expert technician. It was also averred that all the automobile manufacturers also lay certain guidelines for driving / handling the vehicle in a water-logged area and also advise the motorists to exercise precautions in such cases. It is averred that the plaintiff has been negligent as the guidelines have not been followed by her.
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12. It is further averred that as per the report of the Surveyor, the damages in the car were due to hydrostatic locking of the engine, which takes place when water or any liquid is filled in the combustion chamber and the engine is cranked repeatedly. The loss to the engine was caused due to re-cranking of the engine as per the statement of the plaintiff herself, and the water being non-compression stoke, thereby damaging the connecting rod resulting in the breaking of the cylinder block.
13. It is further averred that the plaintiff has been sufficiently compensated for the damages occurring to the car in terms of the insurance policy and the defendant has already paid a sum of Rs. 11,828/- for insurance and the insured's declared value of the car was Rs. 6,80,000/-. The defendant denied all the contentions of the plaintiff made in her plaint and stated that the defendant is not liable to pay any amount in the present suit or the interest claimed by the plaintiff.
ISSUES:
14. After completion of the pleadings, following issues were framed vide order dated 20.09.2018:
a) Whether plaintiff is entitled for recovery of sum of Rs.1,64,084.56 from defendant? OPP
b) Whether plaintiff is entitled to any interest on claimed amount and if yes, at what rate and for what period? OPP
c) Whether plaintiff has not come to this court with clean hands? OPD
d) Whether the suit of the plaintiff is time barred? OPD
e) Whether the damage caused to the engine of the car of the plaintiff due to its own negligence and hydrostatic locking of the engine? OPD
f) Whether the plaintiff was sufficiently compensated for the damage caused to the engine of the car in terms of the insurance policy? OPD
g) Whether the suit of the plaintiff is not valued properly? OPD
h) Relief.
CS SCJ No. 98/2018 Smardeep Kaur vs M/s IFFCO TOKIO page 5 of 24 PLAINTIFF EVIDENCE:
15. During plaintiff's evidence, plaintiff examined herself as PW1 on 11.03.2019 and tendered her affidavit, which is Ex. PW1/A and relied upon the following documents: -
a. Ex.PW1/1 (OSR) is the copy of Insurance policy of the car bearing no. DL4C NC.
b. Ex. PW1/2 (OSR) is the copy of insurance cover note. c. Ex.PW1/3 is the copy of newspaper dated 09.08.2011 in Dainik Bhaskar City. The same is de-exhibited and marked as Mark-A. d. Ex. PW1/4 (OSR) is the copy of receipt of Lali Motors dated 17.09.2011.
e. Ex. PW1/5 is the copy of estimate given by Lali Motors dated 09.08.2011. The same is de-exhibited and marked as Mark B. f. Ex.PW1/6 (Colly) (OSR) are the copy of letter addressed to the defendant along with original cash receipt of recovery van.
(Running into two pages).
g. Ex.PW1/7 (Colly) are the notice dated 12.03.2012 along with postal receipts. (Running into three pages).
h. Ex.PW1/8 (OSR) is the copy of letter receipt repudiating the claim.
16. PW1/Simardeep Kaur was cross examined at length and in her cross examination, she stated that she had not filed any document on record to show that she was the proprietor of M/s South India Tailor. She stated that since there was water logging on the road and the car in question had stopped, then the efforts were made to restart the engine, but it could not be restarted. She admitted that when the car was not started with car keys, help was sought. She stated that the defendant had issued a cheque dated 22.02.2012 towards the claim along with a letter Ex.PW1/8 and also stated that in the letter Ex.PW1/8, reasons had been given by the defendant why only an amount of Rs.11,687/- had been paid to the plaintiff.
17. PW1 was confronted with the policy of the car in question for the period of 18.05.2011 till 17.05.2012 on the clause mentioning that any sort of negligence in driving/handling of the car in question will not be covered CS SCJ No. 98/2018 Smardeep Kaur vs M/s IFFCO TOKIO page 6 of 24 under the insurance policy as per the terms and conditions attached with the said policy. The policy was exhibited as Ex PW-1/D1. She stated that the car was tried to be restarted after it had stopped in the water-logged area. She stated that there was no negligence on her part.
18. She also stated that she was not compensated for the first loss caused to the car and the defendant cannot be held liable for subsequent negligence of the plaintiff. She also stated that letter dated 07.03.2012 issued to M/s South India Tailors by the defendant was received along with cheque and the said letter contains the reasons for issue of the cheque amount of Rs.11,687/- towards replacement of flushing of engine and interior cleaning of the vehicle after deducting depreciation and excess clause.
19. She admitted that the car manufacturer of the said car issued a booklet/manual and she was not aware of its contents and when the vehicle had stopped in the water-logged area, efforts were made to restart the engine and, thereafter, the vehicle was towed away to the workshop. She admitted that she had not gone through the guidelines in the booklet for driving/handling the vehicle in a water-logged area and she was not aware of the same. She admitted that the aggravated problem was caused in the car after at least once an attempt is made to restart the vehicle.
20. She further admitted that the claim was filed only on 20.08.2011 while the water problem with the vehicle had occurred on 08.08.2011 and she could not explain why the claim had been made belatedly after a delay of about 12 days. She also stated that they were dissatisfied with the claim amount granted by the defendant and, therefore, they had filed the present case. She also stated that the water had filled in the vehicle and all that was done was only to attempt to restart engine by re-cranking. She denied that she was deposing falsely to claim compensation in the present case.
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21. Plaintiff also examined her husband as PW2/Preet Bawa, who tendered his evidence by way of affidavit as Ex.PW-2/A and also relied upon the following additional documents :
a. Copy of driving licence Ex.PW2/1 (OSR). b. Copy of photographs Ex.PW2/2 (colly).
22. PW2 was cross examined at length and in his cross examination, he stated that when he started from his house, his driver Sh. Khem Singh was driving the car, however, when he found a lot of traffic and water logging after traveling 1.5 Km, he took over the driver seat and when the incident happened, he was driving the vehicle. The witness was shown the motor claim form which was exhibited as Ex.PW-2/D1 and the driver at the time of incident was shown as 'Khem Singh'. PW2 stated that he himself was driving the vehicle when the incident occurred and that was the correct position and not what was stated in the motor claim form. He could not give any reason as to why the name of 'Khem Singh' had been shown instead of his name.
23. He admitted that when his vehicle had stopped, he tried to restart the vehicle. He admitted that he was aware that there were guidelines in water-logged areas. He stated that as there was lot of traffic behind his car and people were blowing horns, that is why he attempted to restart the car. He could not tell whether when the incident occurred what was the exact position pertaining to the water in the engine. The witness was shown the final survey report which was exhibited as Ex.PW-2/D2 as per which the water had entered the engine and due to re-starting of the engine, further damage had occurred in the same. He deposed that the finding in the report is a matter of record and he had not commented on the correctness or otherwise of the same. he admitted that apart from the estimate Ex. PW1/5, the plaintiff has not filed any final invoice. He admitted that the insurance company had issued letter dated 07.03.2012 CS SCJ No. 98/2018 Smardeep Kaur vs M/s IFFCO TOKIO page 8 of 24 i.e. Ex. PW-1/8(OSR). He denied that he was deposing falsely in order to claim compensation.
24. The plaintiff did not examine any other witness and the remaining witnesses as per the list of PW's were dropped, and PE was closed.
25. Thereafter, matter was listed for defendant's evidence.
DEFENDANT EVIDENCE:
26. Defendant examined Sh. Ved Prakash Tripathi, Deputy General Manager of the defendant company as DW1 on 24.02.2021 who tendered his affidavit as Ex. DW1/A and relied upon the following documents: -
a. The authority letter exhibited as Ex.DW-1/1. b. Insurance Cover note no. 72009039 exhibited as Ex-DW-1/2. c. Insurance policy bearing no. 76654704 along with the terms and conditions as exhibited as Ex. DW-1/3 (previously copy of the same mentioned as Ex.PW1/D1 in the cross examination of PW-
1).
d. Original Scrutiny Sheet exhibited as Ex.DW-1/4. e. Cheque no. 261547 dated 22.02.2021 for an amount of Rs.11,687/- exhibited as Ex. DW-1/5.
f. Copy of registration certificate exhibited as Ex.DW-1/6. g. Copy of driving licence of the driver exhibited as Ex.DW-1/7. h. Original Motor final survey report admitted by PW-2 already exhibited as Ex.PW-2/D2.
i. Copy of photographs of the car taken by the surveyor admitted by PW-w already exhibited as Ex.Pw-2/2.(Colly) j. Letter dated 07.03.2012 admitted by the plaintiff/PW-1 already exhibited as Ex.PW-1/8.
k. Original motor claim from admitted by PW-2 already exhibited as Ex.PW-2/D1.
27. DW1 was cross examined at length and in his cross examination, he stated that he does not have any personal knowledge and he was deposing as AR for the defendant on the basis of record. He stated that the surveyor was not present at the time of the incident. He also deposed CS SCJ No. 98/2018 Smardeep Kaur vs M/s IFFCO TOKIO page 9 of 24 that they had sent a letter dated 07.03 2012 through registered AD to the insured mentioning the details about the claim, which is already Ex. PW1/A and they had not issued any separate show cause notice to the insured before rejecting the part claim as there was no such policy of the company. He stated that he was not aware if any reply was given by the company to the legal notice dated 12.03.2012 issued by the insured/plaintiff to their company.
28. He further stated that it was mentioned in Section 1 of "Policy Wording for Private Car", clause 5 (a) that the Policy will not cover any 'consequential loss, depreciation wear and tear, mechanical or electrical breakdown, failures or breakages', which is part of Ex.DW1/3 at point 'A'. He stated that the Surveyor Sh. Saranpal Singh was a licence holder from IRDA (Insurance Regulatory and Development Authority) and denied that the surveyor had made a fabricated report at the instance of defendant company. He further admitted that the incident took place on 08.08.2021 and he had sent the report of claim on 07.03.2012 to the plaintiff. He could not tell what the reason for delay of six months in giving the said report. He stated that they had not sent the Surveyor report to the plaintiff as the same was part of internal document.
29. The defendant also examined Sh. Saranpal Singh as DW2 on 16.02.2021 who tendered his affidavit, which is Ex. DW1/A and relied upon the following documents: -
a. Ex. PW2/1 : Authority letter given by defendant company in his favour.
b. Ex. PW2/2 : His ID from Indian Institute of Insurance Surveyors and Loss Assessors.
c. Already Ex.PW2/D2 : Original Motor Final Survey Report. d. Already Ex. PW2/2 : Photographs of the car taken by the deponent.
e. Already Ex. PW2/D1 : Original Motor Claim form. f. Already Ex. DW1/6 : Registration Certificate.
CS SCJ No. 98/2018 Smardeep Kaur vs M/s IFFCO TOKIO page 10 of 24 g. Already Ex. DW1/7 : Driving Licence of the driver.
30. DW2 Sh. Saranpal Singh was then cross examined by the plaintiff, wherein he stated that the description of the damage to the vehicle as mentioned to him and Sh. Preet Bawa was recorded by him on Ex.PW2/D1 at point A to A1. He further stated that the guidelines regarding usage of the motor vehicle were provided by the manufacturer in the service booklet. He stated that he had inspected the motor vehicle in the presence of the insured. He further stated that no other person from the insurance company (i.e. the defendant) was present at the time of inspection. He further stated that he had sent his complete report after the surve in February, 2012, and he had inspected and surveyed the vehicle on 20.08.2011. He denied that he was not competent to give the surveyor report of the vehicle inspected by him. He further denied that he did not have technical knowledge or that he had not inspected the vehicle properly.
31. Thereafter, DE was closed and the matter was fixed for final arguments.
32. I have heard both the counsels for the parties and have carefully perused the records.
ISSUE-WISE FINDINGS:
33. Issue no. (i): Whether plaintiff is entitled for recovery of sum of Rs.1,64,084.56 from defendant? OPP
34. Issue no. (ii) Whether plaintiff is entitled to any interest on claimed amount and, if yes, at what rate and for what period? OPP
35. Both the above said issues are being taken up together as they are connected.
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36. The onus of proving the said two issues was upon the plaintiff. The plaintiff has brought the present suit on the basis of a motor vehicle insurance policy he has taken from the defendant, which is Ex.PW1/1.
The said insurance policy is not in dispute and is also admitted by the defendant. The said policy was taken in the name of proprietorship concern of the plaintiff, which fact is also not in dispute, though the defendant has raised questions to the plaintiff regarding proof of the fact that 'M/s South Indian Tailors' in whose name the policy was taken, is the proprietorship concern of the plaintiff. However, the said questions are immaterial as the defendant should have done due diligence at the time of entering the insurance policy with the plaintiff, and cannot put such questions and go behind the policy after the dispute has arisen between the party.
37. The case of the plaintiff is that on 08.08.2011, while driving the car on a water-logged road owing to heavy rains, the car stopped in the middle of the said water-logged road. The car was being driven by driver 'Khem Singh', who accompanied PW2 (husband of the plaintiff) in the car. When the car was stuck in the water-logged road, PW 2 took over the driver seat and tried to re-start the vehicle. However, the vehicle did not start and was later retrieved from the road with the help of rescue van and was taken to the workshop. The repairs to the vehicle costed Rs. 1,61,759/- which the plaintiff paid to the workshop namely M/s Lally Motors, Amritsar, and Rs. 1000/- was also paid for the rescue van. When the plaintiff sought to claim insurance from the defendant, the plaintiff was only given a cheque for a sum of Rs. 11,687/- and the rest of the amount was declined to her.
38. In the defence, the defendant has stated that the claim of the plaintiff for the remaining amount was declined based on the report of the Surveyor, who stated that the damage to the vehicle was not cause by any external CS SCJ No. 98/2018 Smardeep Kaur vs M/s IFFCO TOKIO page 12 of 24 impact, which in fact is covered under the policy, and instead the engine of the vehicle of the plaintiff was damaged due to hydrostatic locking of the engine which was caused due to re-cranking of the vehicle on a water-logged road. The defendant alleged that there has been negligence on the part of the plaintiff as the guidelines of the manufacturer of the vehicle clearly states as to how the vehicle needs to be operated in case of water-logging and the plaintiff has completely overlooked the same.
39. Now, it is evident from the record that the defendant has placed its defence on the basis of the Surveyor's report, which is Ex. PW-2/D2, and was admitted by PW2 as well, and also on the basis of the guidelines/instruction manual of the manufacturer of the vehicle in question. However, the defence never produced any such manufacturer's guidelines/instruction manual before the Court. On a specific question put to Ld. Counsel for the defendant in this respect, the same was evaded by submitting that they do not have the said guidelines/manual in their possession and the onus was upon the plaintiff to produce the same.
40. The said submissions made on behalf of the defendant thereby shifting the onus upon the plaintiff is misconceived as it is not the plaintiff who is relying upon the said guidelines/instruction manual, but it is rather the defence of the defendant. Further, the defendant also never questioned any of the PWs for producing the said guidelines/instruction manual of the manufacturer nor ever moved any application for the same. Moreover, as has been rightly stated by Ld. Counsel for the defendant during arguments, "insurance is a contract of utmost good faith", and thus, it was also the duty of the defendant to inform the plaintiff about such guidelines/instructions of the manufacturer regarding operating the car at the time of granting the insurance. From a layman's perspective, CS SCJ No. 98/2018 Smardeep Kaur vs M/s IFFCO TOKIO page 13 of 24 an insurance company cannot expect every person who seeks insurance, some of those insured may also not be literate, to have read the said car manual/guidelines in each and every case. In fact, the insurance company should even obtain the copy of the said manual / guidelines from the insured while giving the policy and make them aware about the instructions contained therein. This should also form a part of the "good faith contract" which the insurance company claims.
41. Further, the insurance policy itself does not bear any such clause or any disclaimer which mentions that the claim of the insured shall be declined if they have not read the user manual/manufacturer's instructions/guidelines regarding operating the car or have not complied with the same. The insurance company cannot deny the claim in such cases on the grounds of attributing "negligence" to the insured. The Insurance Policy, which is also a contract between the parties, prescribes certain terms and conditions which binds both the parties. In the present case, the insurance policy given to the plaintiff by the defendant is an admitted document as Ex. PW1/D1. Now, the defendant has referred to section 1 of "Policy wording for private car", clause 5 (a) which prescribes that the policy will not cover any 'consequential loss, depreciation wear and tear, mechanical or electrical breakdown, failures or breakages', which is at point 'A' on Ex. DW1/3. It is also pertinent, at the same time, to read the first part of this section 1 of the "Policy wording for private car" which provides for the circumstance when the insurance company will honour the claim of the insured and will indemnify him/her. The said part as mentioned in PW1/D1 reads as:
"The Company will indemnify the insured against loss or damage to the vehicle insured hereunder and/or its accessories whilst thereon:
i. By fire explosion self-ignition or lightning; ii. By burglary, house-breaking or theft;
iii. By riot and strike;
CS SCJ No. 98/2018 Smardeep Kaur vs M/s IFFCO TOKIO page 14 of 24 iv. By earthquake (fire and shock damage);
v. By flood, typhoon, hurricane, storm, tempest, inundation, cyclone, hailstorm, frost;
vi. By accidental external means;
vii. By malicious act;
viii. By terrorist activity;
ix. Whilst in transit by road, rail, in land waterway, lift, elevator
or air;
x. By landlside, rockslide." (emphasis supplied)
42. It is clear from the above said terms and conditions of the policy that there is no clause specifically declining the claim in case of water-logging owing to heavy rains. In fact, heavy rains are also a natural calamity and even the consequent water-logging on the road which is beyond the control of the insured is deemed to be included in the clause covering damage/loss to the vehicle due to "flood, storm, cyclone...et al". There is no reason why an insurance company should not pay for repair of a vehicle or its engine damaged in a flood or a flooded road when the policy after all covers loss due to several natural calamities including floods, cloud bursts, landslides, etc.
43. In Bharati Axa General Insurance Company v. Chandra Mohan Goyal (RP No 4504 of 2014, decided on February 5, 2015), while dismissing the contention of the insurance company that the engine damage caused on account of hydrostatic lock was a consequential damage coming under the exclusion clause, the Apex Consumer Court pointed out that the policy clearly said it covered floods, cyclone, hailstorm, etc. Thus, a damage to the vehicle on account of hydrostatic lock caused due to flooding of the roads, would also be covered for reimbursement. Besides, the policy did not exclude hydrostatic lock. So, in the absence of such an exclusion clause, the insurer had to pay for the damage caused by heavy rains and flooding, the National Consumer Disputes Redressal Commission said. The relevant paras of the judgment are reproduced below:
CS SCJ No. 98/2018 Smardeep Kaur vs M/s IFFCO TOKIO page 15 of 24 "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.
11. Even otherwise we find that there is no evidence of damages, which the surveyor excluded for the purpose of reimbursement, having been caused on account of hydro static lock. Neither the surveyor has stated so in his report nor has the insurance company filed any opinion/report from an automobile engineer or from the workshop where the vehicle was repaired to prove that the damage which it was not ready to pay had occurred on account of hydro static lock. This is yet another reason for which the insurance company has to fail."
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44. The Insurance Ombudsmen too have similarly dismissed the argument of the insurance companies that they will not pay for engine damage caused as a result of flooding of roads. In Shri JItendra Kumar v. Iffco Tokio General Insurance Company Ltd. (Award dated 21-12-2017), for example, the insurer argued that the engine damage was a result of the 'mishandling and using the vehicle after the damage due to rain water' and so it was a consequential loss not covered under the policy. However, the Ombudsman held that the engine damage was due to flood water, covered under the policy.
45. In Lt. Col. AK Nag v. Bharti AXA General Insurance Company Ltd. (date of award December 22, 2017) too, where the insurer said that the damage to the engine occurred on account of mechanical breakdown not covered under the policy, the Ombudsman held that the engine damage was caused by flood and rain water peril, included under the policy and directed the insurer to pay Rs 1,52,900.
46. Ld. Counsel for the defendant has also relied upon one judgment of Ashwani Kumar v. Ford India Pvt. Ltd and Ors. Revision Petition No. 3584/2013 and IA/639/2013 (decided on 09.03.2015). However, perusal of the said judgment shows that in the said case the insured/claimant was held liable for not coming to the Court with clean hands as he had not disclosed the fact that he had run the vehicle in the water. Also, the vehicle manufacturer's Owner's Manual was also produced in the said case and was considered by the Court. The Apex Commission, thus, declined the claim of the petitioner/claimant therein as he had bellied his contention.
47. The facts and circumstance of the said case are also different from the present case as in this case the petitioner had driven the vehicle in 2 ½ ft. water as per the report of the Surveyor in the said case, and this fact CS SCJ No. 98/2018 Smardeep Kaur vs M/s IFFCO TOKIO page 17 of 24 was not disclosed by the petitioner/claimant. In the facts and circumstances of the case in hand, no such report of the Surveyor has been given and it is not the defence of the defendant either. Moreover, in view of the judgments cited above which are later in time vis-à-vis the said judgment of Ashwani Kumar v. Ford India Pvt. Ltd. & Ors. (supra) quoted by the defendant, the law is now settled that the damage to the vehicle due to hydrostatic locking cannot be declined as a "consequential loss" by the insurance company and the insured would be covered for such hydrostatic locking of the engine owing to flooded or water-logged road.
48. The other defence raised by the defendant is that there has been misrepresentation as in the claim, it has been mentioned that the vehicle was driven by driver 'Khem Singh', but in the deposition of PW2 it has now come on record that at the time of the incident PW2 was driving the vehicle. In the considered opinion of this Court, there is no misrepresentation by the plaintiff as the fact that driver Khem Singh was initially driving the vehicle and when the vehicle got stuck in water logged road and a traffic situation had occurred, PW2 had taken over the driver seat, has already been clarified in the testimony of PW2. In view of the said deposition of PW2, it cannot be deemed as a misrepresentation of any fact on behalf of the plaintiff.
49. The defendant also raised a defence that there has been delay by the plaintiff in filing the claim for insurance as the incident took place on 08.08.2011 and the claim was filed on 20.08.2011 as also admitted by PW1 too in her cross examination. Now, clearly there has been a delay by the plaintiff in filing the claim, and the reason for such delay also remained unexplained by PW1. However, the defendant has failed to point out any clause incorporated in the policy which makes time or the period in which the claim is to be filed as sine qua non to the said CS SCJ No. 98/2018 Smardeep Kaur vs M/s IFFCO TOKIO page 18 of 24 insurance claim. The policy nowhere specifies as to within what period of time from the day of the incident, the insured is expected to file his/her claim and for what period of delay the claim can be declined. No such fact regarding delay in filing of the claim was also mentioned by the defendant when they sent the letter dated 07.03.2012 which is Ex. PW1/8, along with a cheque for Rs. 11,687/- towards the claim, which letter itself and the payment of part claim in acknowledgment of the liability by the defendant company.
50. Moreover, it is also noteworthy that in fact there has been a considerable delay by the defendant company itself in sending the part of the claim amount of Rs. 11,687 as belated as six months from the date when the vehicle was inspected by the Surveyor on 20.08.2011. DW2/Surveyor has himself admitted that he surveyed and inspected the vehicle in question on 20.08.2011 and sent his report to the defendant company in the month of February, 2012 (dated 14.02.2012 as per the record), while the letter Ex. PW1/8 along with the cheque has been sent by the defendant company on 07.03.2012 to the plaintiff. Neither DW1 nor DW2 could give any plausible explanation regarding the said delay on their part despite being specifically questioned during their cross examination.
51. It is also an admitted fact of DW1 that the original report of the surveyor was also never sent to the plaintiff by merely mentioning that there is no policy of sending the same as it is an internal record of the defendant company. In the opinion of this Court, there was no reason for the defendant for concealing the said report from the plaintiff while sending their letter dated 07.03.2012 along with cheque for part claim, and in fact this would rather amount to concealment of facts by the defendant company and keeping the insured in dilemma. It is also observed that the defendant in their written statement had in fact declined the contention that they had not sent the report of the surveyor and had not settled the CS SCJ No. 98/2018 Smardeep Kaur vs M/s IFFCO TOKIO page 19 of 24 claim of the plaintiff for a long time, which is clearly contrary to the evidence brought on the record.
52. Another argument raised on behalf of the defendant company is that the plaintiff has only given an estimate of the repair work done by the workshop on her vehicle and no final bill/invoice was ever sent to the defendant company. The said contention of the defendant company is contrary to its own admission of the said estimate given by the plaintiff regarding the repairs done on the insured vehicle as they had even sent payment of Rs. 11,687/- towards acknowledgment and part satisfaction of the claimed amount. Further, as per the terms and conditions of the policy itself under the "Policy Wording for Private Car", in the last para of 'Section 1' it has been mentioned that the insured may authorise the repair of the vehicle necessitated by damage for which the Company may be liable under the said policy and proviso contains that in case the cost of the repairs including the replacement does not exceed Rs. 500/-, a detailed estimate of the cost of the repairs is to be furnished to the Company. Though this proviso contains cost of repairs only to the extent of Rs. 500/-, there is no other clause in the entire policy which requires furnishing of a final bill/invoice. Also, the said argument is also without any merits as neither the fact of not furnishing a final bill/invoice of repairs was ever raised by the defendant company to the plaintiff nor the same even forms part of their pleadings filed on the record.
53. Thus, in view of the above said observations and findings, the plaintiff has proved its case by sufficiently corroborated evidence furnished on the record. Hence, the issue no.(i) and (ii) are decided in favour of the plaintiff and against the defendant.
54. Issue no. (iii) Whether plaintiff has not come to this court with clean hands? OPD CS SCJ No. 98/2018 Smardeep Kaur vs M/s IFFCO TOKIO page 20 of 24 In view of the findings given under issue no. (i) and (ii) above, and further since no such evidence has been led on behalf of the defendant to raise doubt on the claim of the plaintiff in the present suit, the issue no. (iii) is decided against the defendant and in favour of the plaintiff.
55. Issue no. (iv) Whether the suit of the plaintiff is time barred? OPD The onus of proving this issue was also upon the defendant. The defendant has not brought any evidence in support of the said issue. No argument has also been made on behalf of the defendant even at the stage of final arguments challenging the limitation of the present suit. Moreover, it is also clear from the record that the incident had taken place on 08.08.2011. Further, the defendant acknowledged the claim and even sent part of the claimed amount vide their letter dated 07.03.2012, which is also an admitted piece of evidence. The suit has been filed on 21.05.2012. Thus, there is no issue as to the fact that the present suit is being filed within the limitation period.
56. Hence, the issue no. (iv) is also decided against the defendant and in favour of the plaintiff.
57. Issue no. (v) Whether the damage caused to the engine of the car of the plaintiff due to its own negligence and hydrostatic locking of the engine? OPD The onus of proving the said issue was also upon the defendant. The defendant has not filed any evidence that the plaintiff has been negligent in operating the vehicle, which had stopped on a water-logged road. The defendant has merely alleged that the damage to the engine of the vehicle was due to the re-cranking i.e. attempt of re-igniting the engine, while it was stuck on a water-logged road. The defendant has also not mentioned any fact of negligence by the plaintiff in their letter dated CS SCJ No. 98/2018 Smardeep Kaur vs M/s IFFCO TOKIO page 21 of 24 07.03.2012, by which they had acknowledged part of the plaintiff's claim under the insurance policy. The defendant has only mentioned the possible reasons for the damage to the engine of the plaintiff's vehicle based on the report of the Surveyor. In fact, the Surveyor report filed on the record as Ex. PW2/D2 is also silent as to any fact of negligence being attributed to the plaintiff. The report merely mentions the 'Cause of Loss' as 'WATER ENTER IN THE ENGINE FROM RESONATOR AND STOPPED THE CAR'.
58. The defendant then based reliance upon the depositions of the plaintiff and her witnesses to attribute negligence on their part. However, even in the depositions of PW1 and PW2, they have only stated that when the car had stopped on a water-logged road, they had attempted to re-start it, which is just a case of common sense being used and any reasonable person would do the same in such a situation. Further, PW2 also stated that as there was traffic on the road and once the car had stopped in the middle of the road, the other commuters of the road started blowing horn from behind. In such a scenario, any sane person would only attempt to restart its vehicle so that it can at least be taken at the side of the road or can at least reach the workshop. Hence, such an act cannot fall under the interpretation of a "negligent act"
59. Moreover, the reliance of the defendant on the car manual/instruction guidelines is also misconceived as already observed above, and the defendant even failed to produce any such guidelines/manual on the record.
60. Thus, issue no. (v) is also decided against the defendant and in favour of the plaintiff.
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61. Issue no. (vi) Whether the plaintiff was sufficiently compensated for the damage caused to the engine of the car in terms of the insurance policy? OPD The defendant failed to give any reasonable ground and bring any evidence in support of the said issue. In view of the findings given in preceding paragraphs, the said defence of the defendant is absolutely misconceived and there was no reason for the defendant to have denied the claim of the plaintiff under the insurance policy. Hence, the issue no.
(vi) is also decided against the defendant and in favour of the plaintiff.
62. Issue no. (vii) Whether the suit of the plaintiff is not valued properly? OPD There is no evidence placed on the record by the defendant in support of the said issue. The plaintiff has filed the suit for recovery of a sum of Rs. 1,64,084.56/- along with interest calculated at the rate of 12% per annum and after deducting the amount received from the defendant i.e. Rs. 11,687/-. The plaintiff has filed on the record estimate of the repairs done to the car, which are Ex. PW1/5, and which have remained unrebutted. Hence, the claim of the plaintiff cannot be considered as undervalued. Thus, issue no. (vii) is also decided against the defendant and in favour of the plaintiff.
RELIEF:
63. In view of the findings given by this Court in the foregoing paragraphs, the suit of the plaintiff is decreed in her favour and against the defendant. Plaintiff is entitled to following reliefs:
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1) The plaintiff is entitled to a decree for recovery of a sum of Rs.
1,61,758.54 towards the principal amount due upon the defendant and payable by the defendant forthwith.
2) The plaintiff has also claimed an interest at the rate of 12% per annum, which is allowed, as there was no agreed rate of interest between the parties and also keeping view the facts and circumstances of the case in hand and since there has been no rebuttal to the claimed interest in the present case. Hence, defendant shall be liable to pay an interest @ 12% per annum on the principal amount, calculated from the date of filing of the suit till its realization.
3) Cost of the suit is also awarded in favour of the plaintiff.
64. File be consigned to Record Room, after due compliance.
Announced in the open court on 16.04.2022 (ANKITA LAL) ASCJ-CUM-JSCC-CUM-GJ (SOUTH) SAKET COURTS, NEW DELHI/16.04.2022 CS SCJ No. 98/2018 Smardeep Kaur vs M/s IFFCO TOKIO page 24 of 24