Document Fragment View

Matching Fragments

19. The next question, which falls for consideration, is, as to whether the appellant/Opposite Party No.3, was right, in repudiating the claim, on the ground that it was a consequential loss. The complainant submitted that on 24.07.2011, she noticed loud noise and smoke coming out of the engine, and apprehending that perhaps a stone or some solid object had hit the vehicle under body, she immediately turned off the engine, and the vehicle was towed to the service centre of Opposite Party No.2, while OP No.4 informed the complainant/respondent No.1, that the damage did not correlate with the cause of loss. She was informed that the engine was damaged because of water/hydrostatic lock and none of the opposite parties, were ready to make the payment towards the repairs. The complainant/respondent No.1, categorically asserted that when the car stopped, she immediately informed OP No.2. It is not proved that the complainant made any ignition attempt. The car was towed to the workshop, which clearly indicated that she followed all the driving and handling guidelines and precautions. The complainant/respondent No.1; in her email dated 15.8.2011 Annexure C-9 clearly mentioned that there was no indication of water locked of engine in various parameters and the indicators of the car were running smoothly. She could not be blamed if while traveling, all of a sudden the rain starts, and water accumulates in the intersection and enters the engine. . The complainant filed an affidavit to this effect. The appellant/OP No.3 did not produce any evidence to prove if due to the negligence of the complainant, there was any ingress of water in the engine. It seems that presumption was drawn only because of the fact that water, was sucked without realizing that the engine could have sucked water, even when the car was in running condition through the water before it stopped midway. The District Forum therefore, rightly came to the conclusion that the damage to the engine was due to rains and not due to negligence of the complainant who was herself driving the same. There was, therefore, no negligence, on the part of the complainant/respondent No.1, and the damage to the engine could not be said to be consequential damage due to the negligent act of the complainant/respondent No.1. All the precautions required to be taken, appear to have been taken by the complainant while driving the vehicle and, therefore, the claim could not be denied by the appellant/OP No.3. Our view is supported by the order passed by this Commission in Kanta Dhir Vs. M/s The Manager, ICICI Lombard & Anr., Appeal Case No.830 of 2007 decided on 24.10.2008, wherein 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 the fault of the insured and the insurer is liable to reimburse the claim. This order was followed in another case titled as New India Assurance Co. Ltd. Vs. V.K. Bawa Appeal case No.428 of 2009 decided by this Commission on 11.11.2009. The appellant/Opposite Party No.3, also did not produce any evidence by way of expert opinion of a qualified engineer, attributing consequential loss, due to the negligence, on the part of the complainant/respondent No.1.