DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, PALAKKAD
Dated this the 24th day of August, 2023
Present : Sri. Vinay Menon V., President
: Smt. Vidya A., Member
: Sri. Krishnankutty N.K., Member Date of Filing: 16/01/2020
CC/11/2020
Ratish K,
S/o. Ravikumar, “Aswathy”,
Thiruvilwamala, Thrissur – 680 588. - Complainant
(By Adv. M/s. A.V. Ravi, Sujeesh G. & Venugopal G.P.)
Vs
- M/s. United India Insurance Co. Ltd.,
Ottapalam Branch,
2nd Floor, Parapurathu Towers,
Main Road, Ottappalam – 679 101,
Rep. by Manager.
- M/s. Eram Motors Pvt. Ltd.,
38/293, Near Manjakulam Masjid,
Manjakulam Road, Palakkad – 678 001. - Opposite parties
(OP1 by Adv. Ajitha A.
OP2 by Adv. V.K. Ramachandran)
O R D E R
By Sri. Vinay Menon V., President
- Undisputed pleadings are that the complainant’s vehicle stopped (“Vehicle was freezed” as per complainant) when water entered its engine. As the O.P. failed to respond the complainant carried out the repairs worth Rs. 52,671/-. O.P. repudiated the claim raised by the complainant for this amount. Complainant is entitled to receive this amount along with compensation and other costs. No relief is sought as against the 2nd O.P.
- 1st O.P. filed version stating that the vehicle stopped due to hydrostatic lock which is not covered under the policy. There is no illegality whatsoever in repudiating the claim of the complainant. Complainant had not availed the add-on benefit provided for hydrostatic lock.
- O.P. 2 filed a functional version contenting that they had no liability whatsoever.
- The following issues were framed for consideration:
- Whether stoppage in water/ hydrostatic lock is excluded under Ext. B1 policy?
- Whether there is any deficiency in service / unfair trade practice on the part of OP in repudiating the claim?
- Whether the complainants are entitled to any reliefs sought for?
- Any other reliefs?
5. (i) Eventhough the complainant filed proof affidavit and marked Exts. A1 to A4, his Power of Attorney holder was permitted to file proof and documents were remarked as Ext. A1 to A4.
(ii) OP1 filed proof affidavit and marked Exts. B1 to B4.
Issue No. 1
6. A serious contention of the complainant is that the damage suffered by the complainant was not hydrostatic lock and that the O.P. failed to prove it. Even as per the pleading of the complainant his vehicle froze when water entered the engine. This condition is hydrostatic shock. Avoiding the word hydrostatic shock would not make it any other condition.
7. Since soul of the dispute revolves around the terms and conditions of Ext. B1 policy, one need not concern with the prolonged steps/procedures that had been carried out by the parties for adducing evidence and should focus on Ext. B1.
8. Ext. B4 is the letter of repudiation. Reasons for repudiation of the claim being in Lines 6 and 7 of Ext. B4, they are reproduced herein below:
“6. The hydrostatic lock is usually due to water seeping inside engine, which may damage internal engine parts, are is not covered under normal policy conditions.(sic)
7. The above mentioned losses are specific exclusion as per our policy contract.“
9. In order to ascertain the veracity of the contentions reproduced supra, we went through pages 1 to 12 of Ext. B1. Ext. B1 is the “GCV PUBLIC CARRIER OTHER THAT 4 WHEELER PACKAGE POLICY” issued to the complainant. For one thing, there is no section under the head “specific exclusion”. Pages 7 and 9 contain ‘General Exclusions” and “Special Exclusions and compulsory deductible” respectively. But none of these headings contain any reference to hydrostatic lock or water related exclusions.
10. Thus we find that Ext. B1 does not exclude specifically any losses due to water borne causes like hydrostatic lock as is stated in Ext. B4 and the version. Therefore the ground for repudiation is prima facie illegal.
11. Next we can ascertain whether the O.P. is bound to indemnify the complainant. What all losses or damages are covered under Ext. B1 for indemnification is stated in page 5 of Ext. B1.
“SECTION- I: LOSS OF OR DAMAGE TO THE VEHICLE INSURED
1. The Company will indemnify the insured against loss or damage to the vehicle insured here under and / or its accessories whilst thereon
i) by fire explosion self ignition or lightning;
ii) by burglary house breaking or theft;
iii) by riot and strike;
iv) by earthquake (fire and shock damage):
v) by flood typhoon hurricane storm tempest inundation cyclone hailstorm frost;
vi) by accidental external means:
vii) by malicious act;
viii) by terrorist activity;
ix) whilst in transit by road rail inland-water way lift elevator or air;
x) by landslide rockslide.”
It is true that hydrostatic shock is not expressly covered under Ext. B1. But there is an ambiguity regarding clause (vi), ie. loss or damage ‘by accidental external means’. Ext. B1 does not contain interpretation of the word ‘accidental’ and ‘external’.
12. Page 4 of Ext. B1 contains an ‘important notice’. The last line of this clause is a follows:
“IMPORTANT NOTICE:- ……………………………………… FOR LEGAL INTERPRETATION, ENGLISH VERSION WILL HOLD GOOD.”
Since Ext. B1 is silent regarding the term ‘accidental’ we can revert to dictionary meaning.
“accident. “Not a technical legal term with a clearly defined meaning. Speaking generally, but with reference to legal liabilities, an accident means any unintended and unexpected occurrence which produces hurt or loss”: Fenton Vs. Thorley (1903)AC 443.” (Source: Dictionary of Law, L.B. Curzon, 4th Edn. Pitman publishing)
The New Lexicon Webster’s Dictionary of the English Language(1989 edition), defines ‘accidental’ to mean happening by chance, fortuitous, relating to an accident.
The Collin’s Paper Back English Dictionary (1989 edition) defines ‘accidental’ to mean occurring by chance, unexpectedly or unintentionally.
The Roget’s II the New Thesaurus defines ‘accidental’ to mean occurring unexpectedly.
Venkataramaiya’s Law Lexicon, 2nd Edn, has detailed the interpretation applicable to the word accident and accidental.
On perusing the definitions and word meaning based on the Authorities above, the word ‘accidental’ can be safely summarized to be ‘an occurrence that was unexpected, not pre-meditated or not by design’.
13. The word ‘external’ needs no further discussion. It is ‘something that has come from outside’ or ‘from without’.
14. Exceptions, whereby the insurer seeks to wash responsibility off is in page 7 of the contract, under the head ‘General Exceptions’. There are 6 exceptions. None of the 6 exceptions exclude any water related causes.
15. A reading of Ext. B1 shows that Ext. B1 has enough ambiguity in Section 1(1)(vi), when read conjointly with General Exceptions, granting ample leeway for us to interfere to bridge the gap in interpretation. Ext. B1 is an adhesion contract or a pre-fabricated contract. Since the contract is prepared by the O.P, we are resorting to the rule of ‘contra proferentem’.
In the facts and circumstances of the case, it is not in dispute that the engine froze upon seepage of water. The water logging is not premeditated and can be seen only as an accidental external occurrence (NOT an accident). Further the fact that water related incidents are not seen excluded anywhere in Ext. B1 also concretes the fact that hydrostatic shock can be included under the head ‘accidental external occurrence’.
16. Thus we hold that (1) Hydrostatic shock is not specifically excluded under Ext. B1 contract; and that (2) the O.P. is bound to indemnify the complainant under the terms and conditions of Ext. B1 agreement.
Issue No. 2
17. In view of the findings in Issue No.1 we hold that there is gross deficiency in service in the part of the O.P. 1. But no liability is imposed on the 2nd O.P.
Issue No. 3
18. Pursuant to discussions and conclusions above, we hereby allow the complaint on the following terms and conditions:
1. Complainant is entitled to indemnification as admissible under the terms and conditions of Ext. B1.
2. The O.P. 1 shall re-consider the claim already filed before it within 30 days from the date of receipt of this order.
3. The O.P.1 shall allow the claim, subject to the terms and conditions of the contract.
4. The complainant shall be entitled to interest at the rate of 10% on the amount so arrived at calculated from 09/08/2019.
5. The claim amount along with interest shall be paid to the Bank having ownership over the vehicle, if the hypothecation agreement is not settled. If the said hypothecation agreement is settled, the complainant shall be entitled to receive the said amount.
6. The complainant is entitled to compensation of Rs. 1,00,000/- for illegal repudiation of the claim.
7. The complainant is entitled to a cost of Rs. 25,000/-
8. The aforesaid Order shall be complied within a period of 45 days from the date of receipt of a copy of this order, failing which the O.P.1 shall pay the complainant a solatium of Rs. 500/- per month or part thereof from the date of this Order till date of final payment by the O.P.1.
Issue No. 4
19. O.P. No. 2 was made an Opposite Party of this proceeding for reasons best known to the complainant. Their only fault, it seems, was that they carried out the repair of the complainant’s vehicle. It is a deplorable and inhuman conduct on the part of the complainant to rope in opposite parties merely because the O.P.2 happened to be a part of the matrix. It is not a light matter that the complainant implead innocent bye standers into disputes like this. Complainant does not even have any case against the 2nd O.P. Merely because they carried out the repairs of the complainant’s vehicle, they had to be a party to a dispute, absolutely for no reasons attributable to them. In so far as the 2nd O.P. is concerned, this is a malicious litigation. They are to be compensated by the complainant for the complainant’s vexatious conduct.
20. Therefore we order the complainant to pay the 2nd O.P. an amount of Rs. 30,000/- as cost of these proceedings within 30 days from the receipt of this Order, failing which the 2nd O.P. shall be entitled to solatium of Rs. 300/-per month or part thereof from the date of this Order till date of final payment by the complainant.
Pronounced in open court on this the 24th day of August, 2023.
Sd/-
Vinay Menon V
President
Sd/-
Vidya A.
Member
Sd/-
Krishnankutty N.K.
Member
APPENDIX
Exhibits marked on the side of the complainant :
Ext.A1 – Copy of Invoice dated 10/8/2019 issued by Crane & Recovery service
Ext.A2 – Copy of invoice dated 25/9/2019
Ext.A3 – Copy of repudiation letter dated 21/10/2019
Ext.A4 – Copy of lawyers notice dated 26/9/2019
Exhibits marked on the side of the opposite party:
Ext.B1 – Copy of Insurance Policy along with terms and conditions
Ext.B2 – Copy of communication dated 26/6/2018
Ext.B3 – Copy of communication dated 8/6/2018
Ext.B4 - Copy of repudiation letter dated 21/10/2019
Court Exhibit: Nil
Third party documents: Nil
Witness examined on the side of the complainant: Nil
Witness examined on the side of the opposite party: Nil
Court Witness: Nil
NB : Parties are directed to take back all extra set of documents submitted in the proceedings in accordance with Regulation 20(5) of the Consumer Protection (Consumer Commission Procedure) Regulations, 2020 failing which they will be weeded out.
