State Consumer Disputes Redressal Commission
Tata Aig Gen Ins Co Ltd vs Nixinova Motormen Pvt Ltd on 21 September, 2020
BEFORE THE CONSUMER DISPUTES REDRESSAL COMMISSION
GUJARAT STATE AT AHMEDABAD.
COURT - 3
APPEAL NO. 1332 of 2013 Dt: 21.09.2020
1. Tata IAG General Ins. Com. Ltd.
201, 2nd Floor, Abhijeet II,
Nr. Mthakhali Six Roads,
Ellis Bridge, Ahmedabad. ...Appellant
Vs.
1. Nixinova Motormen Pvt. Ltd.
Plot No.9, Survey No.375,
Santhal Bridge, Sarkhej,
Ahmedabad.
2. Chirag Kirtibhai Shah
'Aarya Villa'
37/B, Nirmalsinh Ni Vadi,
Bhanushali Nagar,
Bhuj-Katchh. ...respondents
Appearance: Mr. V. P. Nanavaty, ld. advocate for the appellant
Mr. Daxay D. Patel, ld. advocate for the respondent No.1
Mr. V. M. Pancholi, ld. advocate for the respondent No.2
Coram: Smt. J. P. Jani, Incharge President
Shri S. N. Vakil, Judicial Member
Smt. J. Y. Shukla, Member Order by Shri S.N. Vakil, Member
1. This appeal is by the insurance company for own damage claimed. The complainant - Opponent- Chirag Shah filed the Consumer Complaint No.225 of 2012 with CDRF, Bhuj, alleging that his Audi Car No. GJ-12-BD- 1111 was insured with the Tata AIG General Insurance Company Limited, by renewal for the period from 21.09.2010 to 20.09.2012, a cashless policy. 1 In September 2011 due to heavy rain water flooded in their residential area the car completely drowned in the heavy rain water. Therefore it sustained huge damage, the car stopped working. Therefore, he immediately informed the opponent No.2. The claim was registered with No.620376012. The opponent No.2 thereafter appointed a spot surveyor, upon whose instructions and of opponent No.2 the car was taken from Kutch (Bhuj) to Ahmedabad at its authorized Workshop - the opponent No.3. The Opponent No.3, in pursuance of opponent no.2 asked him to deposit Rs.2,50,000/-. He insisted at that the insurance is of cashless one. However, he was constrained to pay Rs.2,50,000/- and thereafter Rs.4,85,000/- and Rs.68,679/-. After complete reparation he was given its delivery. He asked Rs.8,03,679/- from Opponent no.2 who assured to send the cheque shortly. He telephoned the opponent No.2, who demanded the bills of reparation. Though it could have easily obtained it from the opponent no.3 its authorized workshop. However, from E-mail address of his friend Chaitany Mehta scan copies of bill were sent on 20.02.2012 and also the original by currier service. Even after waiting for long, no cheque was received. He telephoned on 25.07.2012 whereupon he was informed that the claim has been settled for Rs.7,210/- and the cheque has been sent to his address. However, no cheque towards the claim has been ever received. For this deficiency he claim, Rs.8,03,679/-, Rs.1,00,000/- towards mental pain and Rs.25,000/- towards costs.
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2. The Tata AIG General Insurance Company Limited -the opponent No.1 and 2 have denied the claim. The insurance was not cashless at all. In September 2011, there was heavy rain, the rainy water filled in the lower residential area and the car of the opponent drowned in rainy water but it is denied that due to that there was heavy damage, so also is denied that car was not functioning. The insurance company was not intimated nor the car was taken for reparation to the workshop of opponent No.3. No assurance was given by the opponent No.2 for the payment of Rs.8,03,679/-. The bills have not been sent by E-mail nor the complainant contacted on 25.07.2012. Cheque of Rs.7,217/- was sent to the address of the insured. The complainant has not sent the original bill. On receipt of the intimation, on 12.09.2012, the company deputed Mr. Atul B. Singh, IRDA licenced surveyor to inspect the vehicle and assess the loss. Surveyor visited Nixynova Motoren Pvt. Ltd. on 12.09.2012 and after flushing the engine when garage people tried to crank the engine but it was found jammed. On dismantling the engine, it was observed that water sucked through air intake and the engine oil found water mixed. This indicates that the water entered into the engine resulting in stoppage of engine due to Hydrostatic lock. Due to this, connecting rod was found bend and pistons received scratch/scoring marks. The Hydrostatic-lock occurs when an incompressible fluid (water etc.) replaces air entering an internal combustion engine. When an engine is over cranked in this condition, as the piston attempts to compress this fluid, the engine will stall, potentially 3 resulting in catastrophic failure of various internal components. The opponent submits that there is no external impact to the engine and the engine cannot be impacted merely coming into contact with water. Therefore, damage, if any can be attributed to either mechanical breakdown or trying to over crank the engine. The policy issued to the complainant did not cover such losses. In case of any accidental breakdown of the vehicle, insured had to take proper precaution to prevent further damage to the vehicle not to start before the necessary repairs were effected, any extension of the damage or any further damage to the vehicle was entirely to the insured's own risk and the company is not liable to pay for this kind of damage. The condition No.4 and Sec.1(2) (a) of the policy is to the effect that in the event of any accident or breakdown, the vehicle should not be left unattended without proper precaution being taken to prevent further damage or loss and if the vehicle be driven before the necessary repairs were effected any extension of the damage or any further damage to the vehicle should be entirely at the insure's own risk. The company shall not be liable to pay any anything in respect of consequential loss, depreciation, wear and tear or mechanical or electrical breakdown failures or breakages. It was for the insured to take all reasonable steps to safeguard the vehicle from loss or damage and to maintain it in efficient condition. Here, in this case the insured tried to drive the vehicle before necessary repairs and due to that it effected further extension of the damage and therefore, the damage to the vehicle was entirely at the insured's own risk and the insurance company is 4 not liable to make any payment in respect of consequential loss which was for insured's own negligence. The complainant was sent settlement cheque of Rs.7,210/- which he has received without any demur or protest as he was clearly informed by the surveyor of the reasons for non consideration of damage to the engine. He subsequently made a claim in May, 2012 which was settled for Rs.55,675/-. This indicates his acceptance of the settlement. However, he made this compliant which is merely speculative and deserves to be dismissed. There is no deficiency in service.
3. CDRF-Kutch-Bhuj by its order dated 15.04.2013 allowed the complaint and ordered the opponents to pay such amount of the bill as are payable after scrutiny within 1 month, Rs.3,000/- for mental pain, and Rs.3,000/- towards costs holding that complainant has failed to prove the said policy was cashless only. The insurance company has failed to prove the cheque of Rs.7,210/- was sent and that it was accepted in final settlement without any demur protest. Under the policy the company is liable to pay for the loss or damage to the vehicle by natural calamities such as flood. The company has also failed to prove that after the rain water subsided the complainant drove it on the public road and that thereby further damage was caused. It cannot said to be negligence on the part of the owner if after the water subsided tries to start the car in order to see whether it was in working condition or not and thereby if damage occurred. It cannot also thereby be said that by starting the car the damage has extended. Any car driver would 5 try to start it after the flood and water is subsided. Without starting the engine condition of the car cannot be known and therefore such an act cannot be termed as negligent. The car submerge in the rain water and thereafter when it was started to see if was in working condition or not. It distinguished Prakash Ratilal Bachkaniwala's Case (infra).
4. Being aggrieved by the same, the insurance company filed this appeal on the ground that the Forum ought to have appreciated that damage to the car occurred due to water entered into engine resulting in stoppage of engine by hydrostatic lock as connecting rods found bent and piston with scratch/Scoring marks. That there was no external impact to the engine and the engine cannot be impacted merely by coming into contact with the water. It ought to have appreciated that damage was attributed on account of mechanical breakdown and trying to overcrank the engine. It failed to appreciate that the policy does not cover such eventualities. It also erred in holding that the appellant failed to prove the payment to the complainant was in settlement of the claim. It failed to appreciate that there was settlement of the claim, and amounts were accepted without any demur, which indicates his acceptance of the settlement, and now complainant was not maintainable.
5. Heard Mr. V. M. Nanavaty, ld. advocate for the appellant- Tata AIG General Life Insurance Company Limited, Mr. Daxay D. Patel, ld. advocate for the 6 respondent No.1 and Mr. V. M. Pancholi, ld. advocate for the respondent No.2- the original complainant.
6. In M/s. Reliance General Insurance Co. Ltd. Vs. Dr. Anish Sebastian, 3 (2015) CPJ 644 (NC), the investigation conducted by the insurance co. revealed that the vehicle fell in a gutter full of water due to which the water entered into the engine. The vehicle stopped. It was restarted and run resulting in engine damage. The defence was that it happened due to negligence of the driver, the driver ought not have to restarted the vehicle and run the vehicle without repair, and the damage was a consequential damage and not covered under the perview of the policy. It was held that any normal person, stuck in water and with the water entering the engine of car, would make an attempt to restart the car and drive out of the water. This cannot be termed as 'negligence of the driver' resulting in 'consequential damage'. Accordingly, the defence was not upheld as was done by the learned Forum and so also would be here.
7. In Bajaj Alliance General Insurance Co. Ltd. Vs. Prakash Ratilal Bachkanivala, Appeal No. 534 of 2007 of this Commission decided on 20.03.2011, it was in similar case found that the damage to the engine was not by external means or by flood or inundation but by mechanical failure and the policy did not cover internal breakdown. Such is not the issue here. 7
8. The policy wordings on record do not read any clause as to engine gear box protector nor of it as add-on only. Therefore, the argument that such an engine failure is not recovered unless additional premium is paid is not acceptable.
9. There is nothing on record to come to definate conclusion with acceptance of check of Rs. 7,210/- and of Rs. 55,675/- were in full and final settlement against claim of Rs. 8,03,679/-. Therefore, the contention does not deserve to be accepted that the complaint is not maintainable.
10. The incident occurred in September, 2011, the damages thus attracted depreciation of 25% to 35% according to its age, under the policy. It would be so, even if there was no issue raised. It is for the reason that granting full amount for the damages irrespective of the month and year of manufacture would be like bypassing GR and also as acting against the policy. The Learned Forum has also ordered the Opponent to pay such amount of the bill as are payable after scrutiny within one month, to which only modification is required to give effect to the clause as to depreciation and excess.
11. For the reason stated the appeal deserves to be partly allowed with the modification as aforesaid, for which following final order is passed.
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Final Order
i) Appeal No. 1332 of 2013 is partly allowed.
ii) Judgment and order dated 15.04.2013 rendered by the CDRF, Kutch-
Bhuj in CC No.225 of 2012 is modified as the opponents No.1 and 2 of the complaint do pay such amount of bill as are payable, as reduced by the amounts not payable by depreciation and excess under the policy, after scrutiny within one month, Rs. 3,000/- towards mental pain and Rs. 3, 000/- towards costs.
iii) No order as to cost.
iv) Registry is directed to pay the deposited amount, with accrued interest, if any, on proper verification to the appellant by account payee cheque and the cheque be handed over to the advocate for the appellant after obtaining receipt.
Pronounced in the open court today on ______ day of ____________, 2020.
(J.Y.Shukla) (S.N.Vakil) (J. P. Jani)
Member Member Incharge President
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