Punjab

StateCommission

FA/12/619

ICICI Lombard General Insurance Company Ltd. - Complainant(s)

Versus

Baljit Singh - Opp.Party(s)

Sanjeev Goyal

06 Oct 2015

ORDER

                                                               FIRST ADDITIONAL BENCH

 

STATE  CONSUMER  DISPUTES  REDRESSAL COMMISSION,   PUNJAB

          SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.

                                     

                   First Appeal No.619 of 2012

 

                                                Date of Institution: 17.05.2012

                                                Date of Decision :  06.10.2015

 

ICICI Lombard General Insurance Company Limited, a public company incorporated under the Companies Act, 1956 having its registered office at "Zenith House", Keshavrao Khade Marg, Mahalaxmi, Mumbai (Maharashtra), and having its branches throughout India including the one at SCO 501, Sector 70, Mohali through its Legal Manager Sh. Inderjit Singh.      

                                                                                                                                         ..Appellant/ Opposite Party No.4                                                            Versus

 

1.      Baljit Singh son of Sh. Gurdial Singh, resident of village Butta   Singh Wala, P.O Ghagga, Tehsil and District Patiala, Punjab.

 

                                                          ..Respondent no.1/Complainant.

 

2.      M/s A.B Motors Pvt. Ltd., Fountain Chowk, (Branch Office) the  Mall, Patiala through its M.D.

 

3.      M/s Ford India Pvt. Ltd., S.P Koli Post, Chengalpattu 603 204, India, through its Managing Director.

 

4.      Manager Workshop, C/o M/s A.B Motors, Pvt. Ltd., Fountan   Chowk, The Mall Patiala.

 

                                                           ..Respondents/Opposite parties no.1 to 3

                                                     

First Appeal against order dated 26.03.2012 passed by the District Consumer Disputes Redressal Forum,  Patiala

Quorum:-

          Shri J. S. Klar, Presiding Judicial Member.

            Shri. Jasbir Singh Gill, Member

 

Present:-

 

          For the appellant                           : Sh. Sanjeev Goyal, Advocate

          For the respondent no.1       : Sh.G.C Babbar, Advocate

          For the respondent no.2 &4 : Sh. H.S Bedi, Advocate

          For the respondent no.3       : Sh. Gurvinder Singh, Advocate

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

 

J.S KLAR, PRESIDING JUDICIAL MEMBER :-

         

          The appellant of this appeal (the opposite party no.4 in the complaint) has directed this appeal against the respondent no.1 of this appeal (the complainant in the complaint) and respondent nos.2 to 4 of this appeal (the OPs no.1 to 3 in the complaint), challenging order dated 26.03.2012 of District Consumer Disputes Redressal Forum Patiala, accepting the complaint of the complainant by directing the OP no.4 (the present appellant) to pay the amount of Rs.91,000/- to complainant with interest @ 9% per annum from the date of repudiation of claim, besides Rs.5,000/- as costs of litigation.

The instant appeal has been preferred by the opposite part no.4 now appellant in this appeal against the same.

2.      The complainant Baljit Singh has filed  the complaint U/s 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the OPs on the averments that he purchased a new car make Ford Ikon 1.4 D Flair Diesel bearing temporary registration no.B-10 CP-/Temp/2010-9034, Engine no.AL74531, Chasis No. MAJAXXMRTAAL74531  from OP No.1 for a price of Rs.5,51,033/-  on 04.03.2010. It was insured by official of OP No.1  with ICICI Lombard General Insurance Company /OP NO.4, vide policy cover note no.PK 8828803 valid up to 03.03.2011. The above-said vehicle did not function properly since the time of its purchase and often used to breakdown on the road, while being driven. The said vehicle was taken to OP No.1 repeatedly for rectification of the defect, but it was assured by OP No.1 that there was only a minor defect, which would be rectified. No bill or receipt was issued to complainant in this regard by OP no.1, despite visit of the complainant on 4-5 occasions. The complainant used the car very carefully. On 22.09.2010, the complainant alongwith Lakhbir Singh was proceeding in the car for attending to his personal work. The said vehicle suddenly stopped at railway crossing no.22 Patiala. The complainant and above Lakhbir Singh saved their lives, as there was heavy rush on the road due to raining. The vehicle passed therefrom with the help of traffic officials. The vehicle in question was sent to OP No.1 for repairs on 22.09.2010 and it was represented to complainant by official of OP No.1 that there seemed some major defect and it would take some time for rectification. The complainant has been repeatedly visiting to get delivery of his vehicle after necessary repair, but to no effect. The officials of OP No.1 asked the complainant to pay an amount of Rs.92,000/- for the repairs of the vehicle in question and to get delivery after making payment of the amount, despite the fact that it was within warranty period of one year, which was valid up to 03.03.2011. It transpired that there was some manufacturing defect in the vehicle in question at the time of its delivery, but this fact was concealed at the time of supply of the vehicle to the complainant. The complainant had to arrange for another vehicle by spending Rs.60,000/- from 22.09.2010 to 24.11.2010 @ Rs.1000/- per day for two months. The complainant served legal notice to OP, but to no effect. The complainant has, thus, filed the present complaint against the OPs directing them to refund the amount of Rs.91,000/- towards repair charges paid by the complainant to OP No.1 on 24.11.2010 with interest  thereupon. The complainant has also prayed for replacement of the vehicle with new one of good quality. The complainant has also prayed for Rs.60,000/- for hiring the vehicle and Rs.35,000/- as compensation for mental harassment.

3.      Upon notice, OP no.1 and 3 appeared and filed written reply and contested the complaint of the complainant. It was averred in preliminary objections by OP No.1 and 3 that complainant has filed the complaint with unclean hands by concealing the material facts. It was further pleaded that complainant has violated the terms and conditions of the warranty and specifications and hence warranty of the vehicle got lapsed. The complainant did not drive the vehicle with care and caution and as per specifications or terms and conditions of the company, as specified in the booklet. The vehicle was driven in deep water by the complainant, it stopped suddenly, and due to this factor, the vehicle was hydrostatic locked and as such engine needed to be replaced due to own fault of the complainant. This negligence of the complainant is outside the purview of the warranty. On merits, OP No.1 and 3 pleaded that the vehicle was driven in deep waters by the complainant's side and OP brought the vehicle to workshop by towing it and it was found that vehicle had run in deep water and due to that, the same was stopped and hydrostatic locked and its engine needed to be replaced. This fact was brought to the knowledge of the complainant and repair order dated 22.09.2010 was prepared by OPs, which was signed by the complainant. From perusal of the repair history, it was clearly pointed out that there was no manufacturing defect in the vehicle prior to 22.09.2010. OP No.1 and 3 prayed for dismissal of the complaint.

4.      OP No.2 was set exparte, vide order dated 24.02.2011  passed by District Forum Patiala.

5.      OP No.4 filed its separate written reply and also contested the complaint of the complainant by raising preliminary objections that complaint is beyond the policy coverage, as the loss caused due to external means and manufacturing defect, which was not covered under the policy. The complaint is alleged to be false and frivolous by OP no.4. It was further averred that the District Forum Patiala has no jurisdiction to try the complaint and complaint is not maintainable and complainant has no locus standi and cause of action to file the complaint. On merits, OP No.4 pleaded that insurance of the vehicle in question is a matter of record. On getting information regarding damage caused to the engine of the vehicle, OP No.1 allotted claim no.MOTO1734588 and appointed Sh. Vivek Mishra approved Surveyor & Loss Assessor for assessing the loss caused to the vehicle. The said surveyor inspected the vehicle at AB Motors Pvt. Ltd Patiala and found that engine of the vehicle had stopped due to hydrostatic locking of the engine. Hydrostatic locking of the engine took place when the water/any liquid is filled in the combustion chamber and engine is cranked repeatedly. The water being non-compressible and non-combustible, puts reverse pressure during the compression stock- thereby damaging the connection rod and leading to hydrostatic locking of the engine and as such the said loss was not covered under the policy, as such it was caused due to external mean. The surveyor submitted the final report dated 12.10.2010 and claim of the complainant was repudiated on the basis of the survey report, vide letter dated 17.11.2010, as conveyed to the complainant. OP No.4 prayed for dismissal of the complaint.

 6.     The complainant tendered in evidence, his affidavit Ex.CW-1/A, affidavit of Lakhvir Singh Ex.CW-2/A along with copies of documents Ex.C-1 to Ex.C-6. As against it, OPs tendered in evidence affidavit of  Gupreet authorized signatory ICICI Lombard General Insurance Company Limited  Ex.R-1, affidavit of Rajnaresh Singh MD of A.B Motors Pvt. Ltd Patiala/OP No.1 Ex.RW-2/A, affidavit of Vivek Mishra Surveyor & Loss Assessor  along with copies of documents Ex.R-1 to Ex.R-7. On conclusion of evidence and arguments, the District Forum Patiala, accepted the complaint of the complainant by directing the OP no.4 to pay the amount of Rs.91,000/-, as paid by the complainant to OPs no.1 and 3, vide invoice Ex.C-3 and Ex.C-6  with interest @ 9% per annum from the date of repudiation of the insurance claim within a period of one month. Dissatisfied with the order of the District Forum Patiala, the OP no.4 now appellant has preferred this appeal against the same.

7.      We have heard learned counsel for the parties at considerable length and have also examined the record of the case.

8.      The dispute in this appeal is solely between insured and insurer. The insurer of the vehicle has preferred this appeal aggrieved by order of District Forum Patiala fixing the liability of the insurer to pay the amount of Rs.91,000/-, as  incurred by the complainant on the repair of the vehicle with interest @ 9% per annum. Neither the complainant has carried any cross-appeal challenging the findings of the District Forum nor manufacturer or the dealer of the vehicle has carried any such appeal against the same. The grievance to the order of the District Forum is by OP No.4 the insurer, which is appellant in this case. We have examined the evidence on the record in this case. The pleadings of the parties contained in their complaint and the written replies have been duly examined by us. Affidavit of the complainant is Ex.CW-1/A with regard to his statements on oath, as pleaded in the complaint. The complainant alleged that car was giving some problem since when it was purchased from OP no.1. On 22.09.2010, he along with Sh. Lakhvir Singh was proceeding in the car for attending his personal work. The said vehicle suddenly stopped at 22 No. Phatak Patiala on that date. The complainant and above Lakvir Singh saved their lives, as there was heavy rush of water on the road due to raining. The vehicle passed with the help of traffic officials out of that logjam of deluge and due to this, the complainant and his friend suffered a great harassment. The car was taken to workshop of OP No.1 for repair on 22.09.2010 and he had to incur the amount of Rs.92,000/- as expenses on the repair of the vehicle, despite the fact that it was during the warranty period. He further stated that he served a legal notice upon OPs on 03.11.2010, but to no effect. Affidavit of Lakhvir Singh in support of his averments Ex.CW-2/A is on the record. Ex.C-1 is invoice dated 04.03.2010 regarding payment of price of Rs.5,51,033/- for purchase of the car by complainant from A.B Motors Pvt. Ltd Patiala /OP No.1. Ex.C-2 is Motor Insurance Cover Note issued in favour of the complainant. Ex.C-3 is retail invoice. Ex.C-4 is legal notice sent by the complainant to OPs. Ex.C-5 is postal receipt. Ex.C-6 is the invoice for payment of Rs.91,000/- by the complainant to OPs. The OPs relied upon affidavit of Gurpreet authorized signatory of ICCI Lombard General Insurance Company Limited, vide Ex.R-1 on the record. It is stated in this affidavit that on receipt of intimation regarding damage of the car, Sh. Vivek Mishra was deputed, as surveyor for assessing the loss caused to the vehicle. The said surveyor inspected the vehicle at A.B Motors Pvt. Ltd Patiala and found that engine of the vehicle was stopped due to hydrostatic locking of the engine. Hydrostatic locking of the engine took place when the water/any liquid entered in the combustion chamber and the engine was cranked repeatedly. The water being non-compressible and non-combustible, puts reverse pressure during the compression stock -thereby damaging the connection rod and leading to hydrostatic locking of the engine and as such this loss is outside the terms and conditions of the policy. The surveyor submitted the final report dated 12.10.2010 on the basis of which the insurance claim was repudiated by the OPs, as conveyed to the complainant, vide letter dated 17.11.2010. Ex.R-2 is repudiation letter of the insurance claim. Ex.R-3 is report of the surveyor Vivek Mishra, vide which, he opined that the damages sustained in the vehicle were due to hydrostatic locking of the engine. The amount assessed by the surveyor is Nil, as it was no claim. Ex.R-4 is the claim details. Ex.R-5 is claim form filed by the complainant. Ex.R-6 is certificate-cum-policy schedule. Ex.R-7 is terms and conditions of the policy document. Ex.R-8 is affidavit of Vivek Mishra Surveyor & Loss Assessor on the record. Ex.R-2/A is affidavit of Rajnaresh Singh Managing Director A.B Motors Pvt. Ltd Patiala on the record. It is stated in this affidavit that the car was not driven with due care and caution by the complainant and as per the specification of the terms and conditions of the company and that too, as specified in the booklet. The driver of the car drove it in deep waters and it stopped suddenly and due to this, the vehicle was hydrostatic locked and engine needed replacement and due to fault of the complainant, the vehicle was not covered under the warranty clause. It was further stated in this affidavit that the vehicle was driven in deep waters and it stopped suddenly and was hydrostatic locked, which occurred utterly due to negligence of the complainant.

9.      The District Forum, by considering the above-referred evidence on the record, concluded that problem in the vehicle took place on 22.09.2010, but it stopped at 22 No. Phatak Patiala and vehicle was brought to the workshop of OP No.1 in toed condition. On inspection, it was found that vehicle had run in deep waters and hydrostatic locking took place thereby, which needed to be replaced. Sh. Vivek Mishra was deputed to assess the loss  being approved surveyor and he inspected the vehicle at A.B Motors Pvt. Ltd and found the engine of the vehicle stopped due to hydrostatic locking and any liquid entered in the combustion chamber and the engine cranked repeatedly. The water being non-compressible and non-combustible  puts reverse pressure during the compression stock- thereby damaging the connecting rod and leading to hydrostatic locking of the engine. The report of surveyor Ex.R-3 is on the record to this effect. The District Forum rightly reasoned in the order that OP no.1 and 2 have not filed the affidavit of the concerned person to prove that car was toed from deep waters at railway crossing no.22 Patiala, when it was brought to the service station. The District Forum Patiala took judicial notice of  the matter that 22 number railway-crossing area Patiala is highly developed area and there is no question of submerging the vehicle in the deep waters on account of heavy raining. There is no substance on the record brought to our notice by the appellant that this judicial observation of the District Forum is without any basis. Generally, vehicle faces normal raining like in such a developed area of the railway phatak no.22 at Patiala, as observed by District Forum in the order under challenge in this case. No such negligence was found by District Forum on the part of the complainant. The counsel of OP no.4 now appellant could not point out any substance on the record to our notice to establish it that generally vehicles when driven in rain and its engine could be damaged in general raining. The District Forum observed that complainant had not made the payment of the amount of invoices Ex.C-3 and Ex.C-6 dated 24.11.2010 voluntarily and rather the same was paid by him under protest, as recorded thereon. Ex. R-7 is the terms and conditions of the policy for car package policy. Section 1 contains the conditions of loss or damage to the vehicle insured, which is reproduced below:

i) by fire explosion self ignition or lightening.

ii) by burglary housebreaking or theft

iii) by riot and strike

iv) by earthquake (fire and stock damage)

v) by flood, typhoon, hurricane, storm, tempest, cyclone, hailstorm, frost.

vi) by accidental external means

vii) by malicious act

viii) by terrorist activity

ix) whilst in transit by road rail inland-waterway lift elevator or air

x) by landside rockslide.

The District Forum found that case of the complainant is covered by clause (vi) of the policy document Ex.C-7 regarding loss caused to the vehicle due to external means. Section 1 of the terms and conditions of the insurance policy Ex.R-7 lays down that company will indemnity the insured against the loss or damage. Clause (vi) lays down that company shall indemnify by accidental/external means.

10.    The District Forum observed that loss of the complainant falls under clause (vi) for indemnification by accidental/external means and is virtually on account of flood, typhoon, hurricane, storm, tempest, cyclone, hailstorm, frost. On the other hand, the affidavit of complainant, coupled with affidavit of Lakvir Singh, is on the record to the effect that damage was caused to the vehicle due to some defect in it. They stated that there was heavy rush on the road, as it was raining and vehicle passed with the help of the traffic officials therefrom. Clause (v) of Section 1 of insurance terms and conditions Ex.C-7 also covers loss by flood, typhoon, storm, tempest, cyclone etc. Water can enter into vehicle only in a condition of rush of water, like flood. The District Forum rightly came to the conclusion that the damage, at the most, was caused due to flood like situation on account of heavy rainfall only and it is covered under the terms and conditions of the policy clause (v) of Section 1. We have also considered law laid down by Apex Court in C.N Anantharam versus  Fiat India Ltd, reported in 2011(1) RCR (Civil) Page 246 and Maruti Udyog Ltd versus Susheel Kumar Gabgotra and another, reported in 2006(4) Page 113 (Supreme Court Cases) and law laid down in Indochem Electronic and another vs. Addl. Collector of Customs, reported in 2006(3) (Supreme Court Cases), Page 721.  We find that damage to the vehicle cannot be said due to negligence of the driver of the vehicle on the part of the complainant. All precautions are generally taken by the driver, while driving the vehicle and hence repudiation of the same on that score is not appropriate on the part of the appellant. The order of the District Forum passed under challenge in this case cannot be faulted in this appeal and same is ordered to be affirmed.

11.    As a sequel to our discussion, the appeal of the appellant is dismissed and the impugned order of the District Forum Patiala dated 26.03.2012 is affirmed under challenge in this appeal.

12.    The appellant has deposited an amount of Rs.25,000/- with this Commission at the time of filing the appeal. This amount with interest, if any, accrued thereon, be refunded by the registry to the complainant by way of crossed cheque/demand draft after 45 days from receipt of copy of this order, Remaining amount shall be paid  by the appellants to the complainant after 45 days from receipt of copy of this order.

13.              Arguments in this appeal were heard on 29.09.2015 and the order was reserved. Copies of the order be communicated to the parties as per rules.

14.    The appeal could not be decided within the statutory period due to heavy pendency of court cases.

 

                                                                          (J. S. KLAR)

                                                          PRESIDING JUDICIAL MEMBER

                       

                                                         

                                                                           (J.S GILL)

                                                                             MEMBER

 

October  6,  2015.                                                               

(ravi)