State Consumer Disputes Redressal Commission
New India Assurance Co. Ltd. Regional ... vs V.K.Bawa on 11 November, 2009
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
STATE CONSUMER DISPUTES
REDRESSAL COMMISSION,
UNION TERRITORY,
CHANDIGARH.
Appeal case No.428/2009
Date of institution:12.8.2009
Date of decision :11.11.2009
New
India Assurance Co. Ltd. Regional Office, SCO No.36-37, Sector-17-A, Chandigarh
through its duly constituted attorney.
.Appellant
V E R S U S
V.K.Bawa son of late Shri D.D.Bawa, resident of House NO.25, Sector-35
A, Chandigarh.
.Respondent
Appeal U/s 15 of Consumer Protection Act,1986 against
order dated 13.7.2009 passed by
Consumer Disputes
Redressal Forum-I,
U.T.Chandigarh.
Argued
by: Sh.D.K.Dogra,advocate for the appellant.
Sh. Ajay
Walia,authorized representative on behalf of
Sh.V.K.Bawa, respondent.
BEFORE : Honble
Mr.Justice Pritam Pal, President
Mrs. Neena Sandhu,Member
JUDGMENT
11.11.2009 Justice Pritam Pal, President
1. This appeal by New India Assurance Company, one of opposite parties is directed against the order dated 13.7.2009 passed by District Consumer Forum-I, U.T.Chandigarh whereby the complaint filed by Sh.V.K.Bawa, respondent /complainant was allowed and appellant was directed to pay Rs.34,956/- as compensation and Rs.5000/- as litigation expenses within thirty days from the date of receipt of copy of the order, failing which appellant was held liable to pay interest @ 12% p.a. with effect from 1.10.2008(30 days after the report of surveyor) till its payment.
2. The facts culminating to the commencement of this appeal may be recapitulated thus ;
The Maruti car of the complainant bearing registration No.CH03-P-8454 which was insured with OP-1 for the period from 5.7.2008 to 4.7.2009 met with an accident on 12.7.2008 and was got repaired from M/s Sunil Autos through OP-1 by paying Rs.49712/- as repair charges. However, the OP insurance company passed the claim for Rs.11,500/- on the ground that the loss to the vehicle had occurred due to gross negligence on the part of the insured and reference was made to condition No.4 of the policy. Feeling aggrieved, complainant filed a complaint with the Insurance Ombudsman but the same was dismissed vide order dated 21.1.2009 without proper application of mind. Hence, alleging deficiency in service the complaint was filed before the District Consumer Forum.
3. On the other hand, the case of OP NO.1 before the District Forum was that on receiving intimation from the complainant, Shri Sandeep Sharma, surveyor was immediately appointed to assess the loss who after examining each fact very carefully observed that water had entered into the engine through air filter of the car due to which it stopped. The insured tried to start the car and because of excess self, consequential loss occurred and 1st number connecting rod had broken due to which engine block had broken which was not payable as the same was in violation of the terms and conditions of the policy. It was pleaded that there was no deficiency in service and prayed for dismissal of the complaint. OP No.2, however did not appear despite due service, hence it was proceeded against ex-parte.
4. The learned District Consumer Forum after going through the file and hearing the representative of complainant and learned counsel for OP allowed the complaint as indicated in the opening part of this judgment. This is how feeling aggrieved against the said order, opposite party has come up in this appeal.
5. We have heard learned counsel for the appellant, representative of respondent/complainant and also gone through the file carefully. The learned counsel for appellant argued that in the instant case there was violation of condition No.4 of the policy as it was a clear cut case of culpable negligence on the part of complainant as he allowed the vehicle to be driven himself knowing fully well and foreseeing that there was heavy raining and in the deep sub-merged water it was risky to ply the vehicle. The complainant failed to take reasonable care as expected from a normal person, therefore, it was a case of sole negligence on the part of complainant. He further argued that according to the report of surveyor the water entered into the engine through air filter of the car and due to which the car stopped. On trying by the complainant to start the car, due to access ignition/self to the car, consequential loss occurred which was not payable under the policy. The other point of argument of learned counsel for OP was that the surveyor appointed in the case of complainant recommended the payment of Rs.11,646/- and in pursuant to which Rs.11,500/- had been paid to him, therefore, complainant was not entitled to any other amount as compensation. He argued that the surveyors report is an important piece of evidence and has to be relied upon. On the other hand, aforesaid points raised on behalf of OP have been repelled on behalf of the complainant.
6. We have given our thoughtful consideration to the above submissions putforth on behalf of the parties. It has been rightly observed by the District Forum by referring the authority of this Commission in Kanta Dhir Vs The Manager,ICICI Lombard & Anr Appeal case NO.830 of 2007 decided on 24.10.2008 that if a person is going in the car and all of a sudden rain starts and the water accumulates in the intersection and enters the engine or engine is seized then it is not the fault of the insured. Certainly the insurer is liable to reimburse the claim as the owner of the car or driver thereof would never intentionally take the car in deep water to cause damage to its own property. Further the learned District Forum rightly observed that there was no negligence of the complainant or his driver in the instant case and therefore, the report of surveyor disallowing the claim of complainant on the ground that it was caused due to negligence of the complainant or his driver was not accepted.
7. In this view of our foregoing discussion, we find no ground to interfere in the impugned order dated 13.7.2009 passed by the District Consumer Forum which is well reasoned and justified. Consequently the appeal fails and same is hereby dismissed, leaving the parties to bear their own costs.
Certified copies of this order be communicated to the parties, free of charge. The file be consigned to records.
Sd/-
Announced ( Justice Pritam Pal)(Retd.) 11th Nov.,2009 President Sd/-
(Mrs.Neena Sandhu) Member Js 2] 6] The ld.Counsel for OP has argued that the damage to the car took place due to the reason that the complainant was negligent in driving the same through water, when the car stopped midstream the driver again tried to start it due to which the water entered the engine and broke the connecting rod due to which engine block was broken. It is argued that the vehicle was driven in violation of Condition No.4 of the policy and therefore this amount was not payable to the complainant. In support of his contention, the ld.Counsel for OP referred to the case of Branch Manager, National Insurance Company Ltd. Vs. Sushil Kumar Bhanot, First Appeal No.334 of 2006, decided by the Honble State Commission Punjab on 17.3.2006. We, however, have the decision of U.T. State Commission in case of Kanta Dhir Vs. The Manager, ICICI Lombard & Anr., Appeal Case No.830 of 2007, decided on 24.10.2008 in which it was held that if a person is going in the car and all of a sudden rain starts and the water accumulates in the intersection and enters the engine or engine is seized then it is not fault of the insured. Certainly the insurer is liable to reimburse the claim. It was held that the owner of the car or driver thereof would never intentionally take the car in deep water to cause damage to its own property.
7] The ld.Counsel for OP has also referred to the case of Rajiv Dhiman vs. Maruti Udyog Limited & Ors, I(2007) CPJ 101 but this authority is not applicable in the present case because in that case hydrostatic locking occurred due to ingress of water in engine. The complainant filed the complaint against the manufacturing company alleging that it was a manufacturing defect but the said contention was not accepted.
8] The ld.Counsel for the OP has also referred to the case of Deen Dayal Chamoli Vs. National Insurance Co. Ltd., 2006(2) CPC 633 and argued that a Surveyor was appointed in this case, who submitted his report Annexure R-4 recommending the payment of Rs.11,646/- to the complainant in pursuance to which Rs.11,500/- was paid to him. His contention is that Surveyors report is a valuable piece of evidence and should be followed and therefore, the complainant was not entitled to any other amount as compensation. In that case the complainant did not challenge the Surveyors report whereas the present case is based only on the challenge to the said report in which the Surveyor had disallowed the claim to the insured on the ground that it was caused due to the negligence of the complainant or his driver.
We have already held in view of the authority of the Honble U.T. State Commission that it was not the negligence of the complainant or his driver and therefore, the report of Surveyor to this extent is not accepted. The result is the complainant is entitled to the compensation of Rs.32,601/-
spent by the him on half assembly engine as mentioned in the report Annexure R-4.
9] There are other claims made by the complainant such as Rs.1550/- for Valve set, Rs.500/- for Valve seal set, Rs.350/- for Air Filter, Rs.800/- for Engine Oil, Rs.70/- for Oil Filter, Rs.343/- for Chamber Oil, Rs.350/- for Coolant and Rs.1250/- for AC gas and Rs.630/- for AC compressor seal. The Surveyor has mentioned N.A. against all these claims without assigning as to what is meant by N.A.. In this report he did not mention as to why these claims have not been allowed. We can presume that the engine oil, oil filter, chamber oil and coolant are consumable articles and may be disallowed to the complainant but the compensation for other items should have been paid to the complainant. We are therefore of the opinion that the complainant is entitled to a sum of Rs.32,601/- + Rs.1550/- + Rs.500/- + Rs.350/- = total Rs.34,956/-.
10] In view of the above discussion, we are of the opinion that the present complaint must succeed and the same is accordingly allowed. The OP Insurance Company is directed to pay Rs.34,956/- to the complainant as compensation and Rs.5,000/- as litigation expenses within 30 days from the date of receipt of copy of this order, failing which the OP would be liable to pay the same along with interest at the rate of 12% per annum with effect from 1.10.2008 (30 days after the report of Surveyor - Annexure R-4) till the payment is actually made to the complainant.
Certified copies of this order be sent to the parties