This revision petition has been filed by the petitioner Tata AIG General Insurance Co. Ltd. against the order dated 3.11.2014 of the State Consumer Disputes Redressal Commission, Punjab, (in short ‘the State Commission’) passed in FA No.1271/2013.

2.      Brief facts of the case are that the vehicle of the respondent No.1 was insured with the petitioner Insurance Company with policy No.0100630557 w.e.f. 13.7.2012 to 12.7.2013. Vehicle No.PB39F0663 was insured for Rs.7,00,000/- subject to terms and conditions of the policy.  On 29.09.2012, allegedly the vehicle hit a stone causing a hole in the oil pan of the vehicle. Intimation was received by the petitioner from the workshop regarding accident.  Surveyor visits workshop same day and assesses damage due to collision with stone at Rs.8557/- allowing loss only in respect of damaged oil pan.  The rest of the losses are disallowed as being due to driver’s negligence in continuing to drive the vehicle being the consequential loss.  On 15.12.2012, surveyor submits report along with claim form and photographs.  On 2.1.2013, cheque for Rs.8557/- was sent to respondent No.1.  In May, 2013, Complaint was filed in District Forum Patiala.  Petitioner files reply and evidence. In October, 2013. District Forum holds in favour of respondent No.1 and directs petitioner to pay Rs.1,87,805/- over and above the assessment of the surveyor + 9% interest + Rs.4,000/- cost.  On 22.11.2013, petitioner files an appeal in the State Commission,  Punjab.  On 3.11.2014, petitioner’s appeal is dismissed.

3.      Hence the revision petition. 

4.      Heard the learned counsel for the petitioner and A.R. of respondent No.1.  Learned counsel for the petitioner stated that engine of the vehicle was seized due to the negligence on the part of the driver as he continued driving the vehicle even when the stone had hit the oil pan of the vehicle and the oil had leaked out.  Thus, the engine was run without any oil and therefore, it got seized.  As per the terms and conditions of the policy, consequential loss is not covered. The surveyor has assessed the loss in respect of accident caused by hitting of the stone to the oil pan in respect of only damage caused to the oil pan of the vehicle. Surveyor has allowed only claim of Rs.8557/- allowing the replacement of the only affected part of oil pan plus some labour cost.  There is no mention in the surveyor’s report about damage to the engine as the same was only consequential damage.  Learned counsel further argued that as per Clause 2 of Section 1 of the Private Car package Policy, the Company is not liable to pay any consequential damages. Learned counsel drew attention of the bench to the following provision:-

“SECTION1- LOSS OR DAMGE TO THE VEHICLE INSURED

2. The Company shall not be liable to make any payment in respect of:

(a) Consequential loss, depreciation, wear and tear, mechanical or electrical breakdown, failures or breakages;

(b)   damage to tyres and tubes unless the vehicle is damaged at the same time in which case the liability of the Company shall be limited to 50% of replacement and

(c)   any accidental loss or damage suffered whilst the Insured or any person driving the vehicle with the knowledge and consent of the Insured is under influence of intoxicating liquor or drugs.”

5.      Learned counsel for the petitioner has referred to the following judgment in support of his arguments:-‘

Balendra Gautam Vs. Oriental Insurance Co. Ltd., RP 1282 of 2000, decided on 28.02.2002, (NC).  It has been held that :-

“4.  Only point involved is whether the truck was lost due to an accident? If not, then can it be deemed to be covered by the terms of the policy? Facts of the case lead us to see that the truck, collided with a trolly, yet the driver kept driving the truck, allegedly on the apprehension of this being beaten by the villagers.  He did not realise that oil pressure pipe was damaged-draining out the oil leading to engine’s seizure.  The story of apprehension of his being beaten has not been believed as the time of collision was mid-night and the place of incident was far of from the village.  Obviously there was no damage to the truck on account of accident directly, his driving it for a certain distance itself is a proof of the fact.  Had the Truck Driver stopped the vehicle, then at least the engine would not have “seized”.  Consequential loss could be said to be he loss occasioned, in this case by the recklessness on the part of driver, to keep driving after the collision resulting in an avoidable mishap to the vehicle.  Seizure of the engine is not the direct result of the accident but only an avoidable off short of the collision.  This is not covered by the terms of the policy.  Both the lower forums have examined this point at length and we find no merit in the arguments advanced before us by the petitioner.  We find no ground to interfere with the well-reasoned order of the both the lower forums.  The order of the State Commission is upheld.  Revision Petition is dismissed. No costs.”

6.      Learned counsel further referred to the case decided by National Commission in RP No.50 of 2013, Captain Brij Mohan Vs. New India Assurance Co. Ltd. & anr., decided on 20.01.2015 (NC), where in a similar case, a stone had hit the car and it was decided that the engine was seized due to mechanical failure, therefore, the loss was not indemnifiable and consequently the complaint was dismissed.

7.      It was argued that as the consequential loss has happened due to negligence of the driver, the Insurance Company is not liable to indemnify loss occurred in terms of the above clause.  Learned counsel further stated that the surveyors are appointed under the Insurance Act, 1938 and their reports cannot be disregarded without any cogent reasons.  Both the fora below have erroneously disregarded the report of surveyor in awarding claim of the complainant. 

8.      On the other hand, A.R. of the respondent No.1/complainant stated that the car was fully insured and, therefore, whatever damages were caused to the car are to be indemnified under the policy.  Though there was no FIR lodged, however, surveyor has inspected the vehicle, however, he has not considered the damage to the engine which was seized as the stone hit the oil pan of the engine of the vehicle and the same has been acknowledged by the surveyor. Certain other parts of the engine also got damaged due to which the engine got seized.  Thus, damage of other parts cannot be treated as consequential damage, rather it is direct damage due to impact of the stone on the engine.  The A.R. of the complainant further stated that the order of the State Commission is based on the actual bills submitted by the complainant for the repair of the vehicle, therefore, there cannot be any doubt that the complainant has suffered that much loss.  It was further argued that both the fora below have given concurrent findings and in such cases the scope under a revision petition is very limited.  No jurisdictional issues are involved in the present revision petition, hence it has to be outrightly rejected.

9.      I have given a thoughtful consideration to the arguments advanced by both the parties and have examined the material on record.  First of all, it is seen that both the fora below have given concurrent finding of fact that the vehicle has suffered loss due to accident during the currency of the policy and therefore, the claim of the complainant is payable.  The surveyor has only allowed replacement of the oil pan thereby assessing total loss of Rs.8557/- only. 

10.    The surveyor in his report has also not mentioned anything about seizure of the engine of the vehicle.   The surveyor was expected to provide the full details of the damage to the vehicle and then he may have given his recommendation about non-admissibility of the claim in this regard. Though the Insurance Company is accepting the fact of car being hit by a stone and also the seizure of engine, but the surveyor’s report does not  deal with the seizure of the engine, so obviously, the surveyor’s report cannot be accepted and believed to be correct as reflecting the true condition of the damaged vehicle.  The complainant has got his vehicle repaired from Padam Cars Pvt. Ltd. workshop and the estimate of the repair has not been examined by the surveyor.  The State Commission has relied upon the bills of repairs and has allowed the claim accordingly.  There is no doubt that the engine got seized due to total leakage of oil from the engine. There seems to be some negligence on the part of the driver.  He should have stopped the vehicle when stone hit the vehicle and should have checked for any damage.  However, the damage to other parts of the engine has to be treated as a direct damage due to impact of stone on the engine as a hole was created in the oil pan of the engine. The oil would have leaked in a very short time and the driver may not have realized that a hole has been created in the oil pan of the engine. From this consideration, the contributory negligence on the part of the driver has to be ignored to a great extent.  The decision of this Commission in Captain Brij Mohan Vs. New India Assurance Co. Ltd. & anr(supra) does not seem to help the petitioner as that case was of mechanical failure whereas the present case is related to damage by hitting of a stone.  Similarly, the other judgment relied upon by the petitioner in Balendra Gautam Vs. Oriental Insurance Co. Ltd. (supra) cannot be accepted as an analogy for the present case because in the cited case the damage was due to an apparent collision of the truck with a trolley of a tractor whereas there is no such apparent accident in the present case where only a stone had hit the car from beneath and damaged the oil pan and some other parts of the engine of the vehicle.  Thus, in the cited case, there was an overt negligence on the part of the driver as he should have definitely seen the condition of the vehicle after the accident, whereas in the case in hand, the driver might overlook the hit by a stone until the vehicle starts troubling in driving.

11.    Based on the above examination, I am of the view that the seizure of the engine in the present case may not be seen as a consequential damage, rather it may be considered as damage due to direct impact of the accident caused by hitting of a stone to the engine of the vehicle.  However, it is also seen that the loss could have been minimized, if the driver had stopped the vehicle when he realized that a stone had hit the car.  Thus, the contributory negligence on the part of the driver is there, but this negligence is not in that proportion so as to deny the total claim.  Hence, in the circumstances of the case, I deem it appropriate to allow the claim at 60% of the actual claim of repairs.

12.    On the basis of above discussion, the revision petition is partly allowed and the petitioner Insurance Company is directed to pay Rs.1,12,683/- to the complainant instead of Rs.1,87,805/- as ordered by the District Forum and confirmed by the State Commission.  Except for this modification, the order dated 3.10.2013 of the District Forum is upheld.  This order be complied within 45 days by the petitioner Insurance Company.