KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION
VAZHUTHACAUD, THIRUVANANTHAPURAM
APPEAL NO.535/03
JUDGMENT DATED.23.06.08
PRESENT:-
JUSTICE SRI.K.R.UDAYABHANU : PRESIDENT
SMT.VALSALA SARANGADHARAN : MEMBER
SRI.M.K.ABDULLA SONA : MEMBER
1.The Branch Manager,
The Oriental Insurance Co.Ltd.,
Punalur.
2.The Divisional Manager, : APPELLANTS
The Oriental Insurance Co Ltd.,
Kollam
(By Adv.Varkala.B.Ravi Kumar&S.Sunil)
Vs
Antony Abraham,
Arch View, Kalanjoor, : RESPONDENT
Pathanamthitta District.
(By Adv.C.Gopinadha Pillai)
JUDGMENT
JUSTICE SRI.K.R.UDAYABHANU: PRESIDENT
The appellant is the opposite party/insurance company in OP.No.276/2001 in the file of CDRF, Kollam. The appellants are under orders to pay a compensation of Rs.1,20,577/- to the complainant with interest at 9% and also to pay a compensation of Rs.2000/- and cost of Rs.500/- with respect to the insurance claim of the vehicle that was damaged.
2. The case of the complainant is that the Lancer Car owned by him and insured with 1st opposite party got damaged on 13.9.2000 at about 7.30 pm when he was travelling from Kottayam to Pathanapuram through M.C.Road when it reached near Chingavanam at Kottayam. It is the case that a KSRTC Fast Passenger bus passing through the same direction with high speed overtook the car and splashed gutter water and the water entered into the silencer of the Car and then the engine stopped. On the next day, on 14.9.2000 he intimated the opposite parties who deputed a surveyor. The repair bill amounted to Rs.1,20,577/-. But the opposite party repudiated the claim raising false contentions. Hence the above amount as well as compensation of Rs.5000/- is claimed.
3. The opposite parties have filed a version admitting policy coverage to the vehicle. It is the contention of the insurer that the complainant had specifically opted out the risk of flood coverage in the proposal form and no premium was also collected for the risk due to flood. It is pointed out that the insurer was informed that on 29.8.2000 when the vehicle was plying through the road covered with flood water, the vehicle stopped running due to the entry of flood water into the engine. The vehicle was towed to the garage. A spot survey was conducted. The surveyor, as per information received from the complainant has mentioned that the vehicle was plying on the road covered with rain water; and at that time the KSRTC Stage carriage overtook the vehicle and due to the impact of overtaking it caused waves in the rain water and the water entered into the engine. Another surveyor was also deputed for conducting a detailed final survey. The above surveyor on examination found that in a Lancer Car intake of air to the engine is through a PVC pipe fixed from top near the battery. The pipe is connected to the deflector box fixed about 13 inches above road level. From the deflector the air passes into the air filter and subsequently to the intake manifold. Since the pressure in the intake manifold is less than the atmospheric pressure due to the surge of water on the road the water might have entered into the engine through deflector through drain holes and subsequently entered into the engine cylinder which resulted in the damage of the engine. The opposite party has also sought for a second opinion from Sri.S.Shaji, engineer-valuer-surveyor. The above surveyor has also found that the damage was occasioned due to entry of water in the engine cylinder when the vehicle was slowly moving on the road which was in a flooded condition. The cause of damage clearly falls under category ‘e’ of section-1 of the policy ie; FLOOD/INUNDATION which is totally deleted from the scope of the cover.
4. The evidence adduced consisted of the testimony of PW1 the complainant, DW1 the surveyor, who submitted the final survey report, DW2 the Assistant Manager of the insurance company and DW3, Mr.S.Shaji, engineer cum surveyor and Exts.P1 to P6; Exts.D1 to D6.
5. The Forum just concluded without considering the contentions of the insurance company that there was only gutter water which splashed and entered into the silencer of the car and that the damage was caused due to the entering of gutter water. The Forum has held that the above cannot be said to be damage caused by flood.
6. As pointed out by the counsel for the appellant, we find that in Ext.D4 intimation dated.29.8.2000 it is mentioned by the complainant that the incident took place at 10 pm when the complainant was returning from Kottayan; and that other vehicles were also proceeding in front of his vehicle and he moved the vehicle in a slow pace and at the time a KSRTC Fast Passenger bus overtook his vehicle and then water rushed through the silencer and the engine stopped. In Ext.D1 the date of the incident is mentioned as 27.8.2000. In Ext.D1 claim Form dated 31.8.2000 the complainant has informed the complainant has mentioned that on 27.8.2000 at 8pm when he was proceeding from Kottayam to Pathanapuram there was rainy water on the road and on his front side there was a Zen Car and Ambassador car moving slowly. He also followed the above vehicles slowly. Suddenly a KSRTC Fast Passenger bus came very closely from his back with speed and overtook his vehicle and due to this tidy(sic) water rushed into the silencer and the engine idling stopped automatically. He made several attempts by switching to start the car but could not succeed. The date and time of the incident mentioned in the complaint is 13.9.2000 at 7.30 pm. The above discrepancy stands an unexplained. It is not disputed that the complainant had opted out the risk due to flood.
7. The counsel for the appellant has relied on the meaning of flood in the Webster’s New International Comprehensive Dictionary of the English Language. It is mentioned therein that flood means an unusually large flow of water mentioned inundation. DWs 1 and 2 the surveyors have specifically reported vide Ext.D2 and D5 that there is no possibility of water entering into the engine through silencer in Lancer Car and that the pipe that intake the air to the deflector box is fixed at about 13 inches above the road level in the Lancer Car and that when the vehicle was passed through the road submerged in water the water was drawn inside by the above pipe fixed for the intake of air. The above explanations appears credible in view of the version of the incident in Ext.D1 claim form and in Ext.D4 intimation that he moved the vehicle in a slow pace behind the other vehicles when the KSRTC bus overtook and the water waves (Ext.D4) entered the engine. In the circumstances we find that the case of the complainant that gutter water entered into the engine through the silencer cannot be true. The silencer expels the air and hence there is no possibility of the gutter water entering through the silencer. The fact that risk due to flood is not covered is not disputed. In the circumstances we find that the complainant is not entitled for the claim under the policy. Hence the order of the Forum is set aside. The appeal is allowed.
JUSTICE SRI.K.R.UDAYABHANU : PRESIDENT
SMT.VALSALA SARANGADHARAN : MEMBER
SRI.M.K.ABDULLA SONA : MEMBER
R.AV
