Indian Kanoon - Search engine for Indian Law

He further submits that the conditions of the policy particularly the exclusion contained in clause 2(a) regarding consequential losses and condition no.4 of the Motor Policy, that requires reasonable steps for safeguarding the insured vehicle, have been breached and therefore the complaint could not have been allowed. 

He then contends that the surveyor report categorically speaks about Hydrostatic lock having impacted the engine which was solely on account of the default of the Complainant hence the claim was not admissible. This technical aspect of the matter stood proved by the surveyor's report who himself was an engineer and no evidence to the contrary or any pleading was raised to contradict the said conclusion. In such circumstances, the cause of loss was clearly attributable to the Complainant. To substantiate this submission, learned Counsel invited the attention of the Bench to paragraph 4 of the Complaint to urge that it was the Complainant's driver/operator who had erroneously against the precautionary conditions specified in the working manual attempted to restart and crank the engine that had been flooded with water and mud and as such this faulty attempt resulted in damage to the pistons, connecting rods, and other internal parts of the engine. 

He then points out that invariably all Insurance Companies generally do issue Insurance Covers separately for all losses, and particularly the Petitioner Company has an add on cover for the risk of Hydrostatic Lock. He submits that this cover had not been taken by the Respondent/Complainant and to fortify his contention he has also relied on an RTI reply dated 22.10.2013 urging that since this add on coverage was not there in the policy the Complainant it could not have claimed any indemnity on that count and therefore the repudiation is valid.

Mr. Pancholi, learned Counsel for the Respondent/Complainant vehemently argued that the entire theory of the damage caused by Hydrostatic Lock is a creation of the Insurance Co. which is nowhere reflected in the repudiation letter dated 25.10.2010. He also points out that it is strange that the repudiation letter had emanated one day before the final survey report which is dated 26.10.2010. The contention therefore is that the document of the final survey report seems to have been prepared later on to create the story of Hydrostatic loss.

Thus, the contention of the Insurance Co. taken before the District Commission about Hydrostatic locking being caused by the default of the driver is not proved at all. Hydrostatic locking is a mechanical failure caused by a force applied to an imprisoned body of liquid to balance another force. It is a product of a science concerning the equilibrium of fluids and their pressure when they are at rest. A small force applied in a hydrostatic manner is made to exert a much greater force and is based on the principles of a science that deals with the pressure and equilibrium of fluids at rest. There is no technical report other than the observations of the surveyor to confirm the loss being caused due to this mechanical failure. Nonetheless, the failure cannot be attributed because of the alleged negligence or lapse of the driver as there was no proof or evidence that the driver had operated the machine when it was submerged or even after the water had receded. As noted above, the surveyor himself has indicated about the machine being sought to be rescued before the machine got submerged and it could not be done because the chain of the vehicle had slipped. In the absence of any fault or lapse in taking precaution by the driver, there is nothing to connect the allegation of Hydrostatic locking with any omission or commission of negligence by the driver.