STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Tata AIG General Insurance Company Limited through its Branch Manager, 2^nd Floor, SCO No.232-234, Sector 34-A, Chandigarh (through its Authorized Signatory, Tata AIG General Insurance Company Ltd., Lotus Towers, Ist Floor, Community Centre, New Friends Colony, New Delhi 110065).

……Appellant/OP-3

V E R S U S

1.           M/s Ayushveda Informatics (India) Pvt. Ltd. through its Director Sh. Ramesh Mehta, Plot No.296, Industrial Area, Phase-II, Panchkula – 134 109.

2.           Sh. Ramesh Mehta, Director, M/s Ayushveda Informatics (India) Pvt. Ltd., Plot No.296, Industrial Area, Phase-II, Panchkula – 134 109.

… Respondents/complainants

3.           M/s Krishna Automobiles, through its Managing Director, Plot No.125, Industrial Area, Phase-I, Chandigarh.

4.           M/s. B.M.W. India (P) Limited through its Managing Director, DLF Cyber City, Phase-II, Building No.8, Tower-B, 7th Floor, Gurgaon – 122 002.

… Respondents/OPs 1 & 2

Appeal under Section 15 of the Consumer Protection Act, 1986.

BEFORE:     JUSTICE SHAM SUNDER, PRESIDENT.

                   MRS. NEENA SANDHU, MEMBER.

S.  JAGROOP  SINGH   MAHAL, MEMBER.

Argued by: Sh. Rajneesh Malhotra, Adv. for the appellant.

PER  JAGROOP  SINGH   MAHAL, MEMBER

                    This appeal is directed against the order dated 14.12.2011, rendered by the ld. District Consumer Disputes Redressal Forum-II, UT, Chandigarh (hereinafter referred to as the District Forum) vide which it allowed the complaint filed by the complainants/respondents No.1 & 2 and directed the appellant/OP-3 to pay to the complainant Rs.1,76,700/-, being the loss caused to him on account of ingestion of water in the engine and Rs.7,000/- as costs of litigation within 30 days from the date of receipt of certified copy of the order, failing which it was to pay the amount of Rs.1,76,700/- along with interest @18% per annum from the date of filing the complaint i.e.26.11.2010 till actual payment besides payment of Rs.7,000/- as costs of litigation.

2.                     The facts, in brief, are that the complainant  company purchased one BMW 3 Series car from OP No.1, manufactured by OP No.2 and paid a total price of Rs.26,90,000/- vide Retail Sales Invoice dated 02.03.2009 and got the same insured from OP No.3 for the period from 02.03.2010 to 01.03.2011.   On 11.9.2010, when the complainant was taking his car back after the first service, it suddenly stopped in the middle of the road due to heavy rain water. The complainant called up the workshop of OP No.1 and the car was towed to its workshop who prepared an estimate of Rs.1,59,244/-. According to the complainant the car was under warranty, therefore, its repair was to be done free of costs or repair charges were to be paid by OP No.3 with whom the car was insured. However, at the time of delivery of the car, OP No.1 charged a total amount of Rs.1,76,770/-  from the complainant.  OP No.3 appointed a surveyor, who after inspecting the car in question, vide his letter dated 20.9.2010 stated that there was no external impact to the vehicle or the engine and there was presence of water in the Air Filter. The complainant also received an email dated 29.9.2010 whereby it was intimated by OP No.2 that the engine of the car suffered mechanical damage from hydraulic locking due to ingestion of water through the intake system. The complainants served a legal notice dated 25.10.2010  whereafter OP No.3 vide its letter dated 01.11.2010 admitted that the complainants were entitled to the loss due to flooding/ingestion of water through intake system of the car. When the grievance of the complainants was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as the Act) was filed.

3.                     OP No.1 it its reply admitted most of the facts.  It was pleaded that neither there was any allegation in the complaint nor any expert opinion was placed on record to prove that there was any manufacturing defect in the engine of the car. It was submitted that hydrostatic lock occurred due to ingestion of water in the engine through air and oil filter. It was further submitted that neither it was alleged nor proved on record that the hydrostatic locking of the engine was the result of any manufacturing defect. According to OP No.1, it was a case of negligent driving on flooded road against the definite instruction by OP No.1. It was pleaded that the car was immediately towed and brought to the garage and repaired to the entire satisfaction of the complainant. According to OP No.1, there was no deficiency in service or unfair trade practice on its part and, therefore, the complaint against it deserved to be dismissed.

4.                     In the reply filed by OP No.2, it was pleaded that the car was in perfect running condition and there was no problem/complaint at all as admittedly it was brought to the workshop of OP No.1 for the first time after 18 months of its purchase with a complaint of low engine oil level. Upon examination, only 1 Liter of engine oil was found to be less than the normal, which is a permissible quantity of consumption. It was averred that engine oil is a volatile substance requiring regular check. It was asserted that on 11.09.2010, admittedly it was raining very heavily and a lot of rain water was on the roads and the complainant, despite the Owner’s Manual Instructions and the advice of the dealer, drove his car through heavily water logged road, which resulted in hydraulic locking of the car. According to OP No.2, there was no manufacturing defect in the engine of the car and the damage was caused due to ingestion of water through the intake system, which was precisely not covered under the warranty, hence, OP No.2 also prayed for dismissal of the complaint. 

5.                     OP No.3 in its reply admitted that the vehicle in question was insured with it. It was submitted that on receipt of intimation of the loss, M/s Pee Kay and Company was appointed as Surveyors and Loss Assessors who as per its report dated 15.11.2010 assessed the amount of compensation at Rs.67,192/-, which amount was offered to the complainants vide letter dated 24.12.2010 but they refused to accept the same.  It was submitted that as per the terms and conditions of the insurance policy, the consequential losses, depreciation, wear and tear, breakage were not payable under the insurance policy and that no other amount beyond the report of the surveyor was payable to the complainants. Pleading that there was no deficiency in service on its part in settling the claim of the complainants, prayer for dismissal of the complaint was made

6.                     Parties led evidence in support of their contentions. 

7.                     After hearing the ld. Counsel for the parties and on going through the evidence on record, the ld. District Forum allowed the complaint, as stated above.

8.                     Feeling aggrieved, the instant appeal has been filed by the appellant/OP-3.

9.                     We have heard arguments of the learned Counsel for the appellant/OP-3, and have gone through the evidence on record of the case carefully, on the point as to whether the appeal should be admitted for regular hearing or not.

10.                  The contention of the ld. Counsel for the appellant is that the claim of the complainants/respondents beyond Rs.67,192/- is not covered because it was due to the consequential loss caused due to the negligence of the car driver who continued cranking  the self after the vehicle had stopped in the water.  The ld. Counsel referred to Annexure A-3 which is the report of Surveyors & Loss Assessors, Pee Kay & Co. in which it was mentioned by the surveyor that water contents were found in the air inlet line, air filter was wet and water was mixed with the engine oil.  According to the surveyor, after cleaning and flushing the engine was cranked, engine started but it was missing and compression in two cylinders was lower than other two.  It is on the basis of this report that the claim in excess of Rs.67,192/- was declined by the appellant/OP-3.  The ld. District Forum, however, did not find any merit in the contention of the appellant/OP-3 that the complainant continued cranking the self after the car stopped in the water.

11.                  Annexure A-2 is the claim submitted by the complainant in which he has mentioned that it was raining, visibility was poor, water was logged on the road, suddenly waves created by a vehicle coming from opposite side and his car stopped.  In Annexure A-3, the cause of loss is mentioned that the insured’s car stopped on the road when another vehicle splashed flooded rain water on the insured’s car.  There is no mention in it of cranking the self by the driver. 

12.                  Annexure C-7 is the letter written by the complainant in which he made it clear that when he was coming from BMW workshop after a minor repair, his car stopped on the road due to heavy rain.  According to him, he gave a call to Krishna BMW who promised to send a truck to tow the car to the garage and during the complete time the car ignition was off. According to him without any ignition attempts, the car was sent to the workshop, which shows that the car driver followed all the driving/handling guidelines and precautions.  It was denied if the driver continued cranking the self. When the appellant did not pay any compensation, a notice Annexure C-11 was issued in para 5 of which it was repeated that no attempt was made to start the car after it stopped midway due to splash of water.  According to him, the damage to the engine was the result of flood due to heavy rain and the hydraulic locking was due to ingestion of water through intake system during floods/heavy rain water on the road.  The complainant filed an affidavit to the same effect showing that no effort was made to crank the self after the car had stopped in the water.  On the other hand, there is no witness produced by the appellant, to prove if the driver of the car cranked the self.  This presumption has been drawn only because of the fact that the 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 ld. District Forum, therefore, rightly came to the conclusion that the damage to the engine was due to flood and not due to negligence of the car driver in cranking the self after the engine had stopped.

13.                  The facts of the case show that the complainant was going back from BMW workshop after some minor repairs.  It was raining; the driver had been told not to crank the self if the engine stops on the way; he followed those instructions when the car stopped due to splash of water given by another vehicle coming from the opposite side.  There was, therefore, no negligence on the part of the driver of the vehicle and the damage to the engine cannot be said to be a consequential damage due to the negligence of the driver of the driver of the vehicle.  In fact, all the precautions appear to have been taken by the driver while driving the vehicle and, therefore, the claim could not be denied by the OP/appellant.  Our view in this respect 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 sudden rain starts and the water accumulates in the intersection and enters the engine or engine is seized then it is not 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.

14.                  In view of the above discussion, we are of the opinion that there is no merit in this appeal to admit it for regular hearing.  The appeal is accordingly dismissed, in limine, with no order as to costs.

15.                  A sum of Rs.25,000/- was deposited by the appellant  at the time of filing this appeal.  After the expiry of the period for filing the revision, the aforesaid amount of Rs.25,000/- alongwith interest, if any accrued thereon, shall be paid to the complainants/respondents No.1 & 2  in partial satisfaction of their claim, if no stay order is received.

                   Copies of this order be sent to the parties free of charge.

Pronounced.

09.02.2012

[JUSTICE SHAM SUNDER]

PRESIDENT

NEENA SANDHU]

MEMBER

[JAGROOP SINGH MAHAL]

MEMBER

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