STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

M/s Garg Industries Ltd., a duly Registered Company, having its Branch Office at House No. 62, Sector 28-A, Chandigarh, being represented through its authorized representative Sh. Ram Kumar.

……Appellant/complainant

V e r s u s

1]    Ms/ Bajaj Allianz General Insurance Company Ltd. through its Managing Director, Registered Office G.E. Plaza, Airport Road, Yerwada, Pune 411006.

2]    Branch Manager, M/s Bajaj Allianz General Insurance Company Ltd. Branch Office at SCO No. 139-140, Sector 8-C, Chandigarh.

              ....Respondents/Opposite Parties

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

BEFORE:   JUSTICE SHAM SUNDER (RETD.), PRESIDENT.

                MRS. NEENA SANDHU, MEMBER.

Argued by: Sh. Aseem Gupta, Advocate for the appellant.

                   Sh. Paras Money Goyal, Advocate for the respondents.

PER JUSTICE SHAM SUNDER (RETD.), PRESIDENT

              This appeal is directed against the order dated 06.03.2012, rendered by the District Consumer Disputes Redressal Forum-I, U.T., Chandigarh (hereinafter to be called as the District Forum only), vide which, it disposed of the complaint, filed by the complainant (now appellant) and directed the Opposite Parties (now respondents), as under:-

“Judged from any angle and in order to clinch the matter, conclusively, we have no hesitation in coming to the conclusion that the complainant has failed to prove his case of alleged deficiency against the OPs. As a matter of fact, it is the OPs, who have been able to completely assail and rebut the allegations made by the Complainant, by way of pleading/producing all relevant documents on record. Therefore, we dispose of this complaint with direction to the OPs to pay Rs.2861/- only, as offered as well as assessed by the Surveyor, to the complainant, if not yet paid. There is no order as to compensation and costs”.

2.               The facts, in brief, are that the complainant Company, being the owner of AUDI Car, bearing registration No.CH 04 L 0062, vide Policy No. OG-10-1201-1801-00002423, got it insured from the Opposite Parties, valid for the period from 30.9.2009 to 29.10.2010 (infact 29.09.2010), for the Insured Declared Value of Rs.56,52,595/-. On 19.09.2010, Sh. Narsi Dass Garg, Director of the complainant Company, was returning from Nanital to Chandigarh, in the aforesaid car, being driven by Mr. Jasbir Singh, driver, having a valid and effective driving licence, to drive the same, and when it reached Rourkee, at about 5.30 P.M., there was a heavy rain, and, suddenly, heavy water/flood came over, and the car came in contact with the same. Due to heavy rain, the car got stuck on the road and stopped. The ignition was off, and the car could not be started. The Director of the complainant Company had to come home, by hiring some vehicle/taxi. The complainant Company informed the Opposite Parties, with regard to the aforesaid incident. Even the authorized dealer of AUDI car, was also informed about the incident. The authorized dealer of AUDI car took the car, in its possession, and brought the same to the Company Service Centre, at Chandigarh.

3.               Thereafter, the Opposite Parties, appointed the Surveyor, for assessing the loss/damage to the car. It was stated that Audi Car Service Centre Chandigarh, gave an estimate of initial parts, labour and repair to the tune of Rs.13 lacs. The factum of estimate, given by Audi Car Service Centre Chandigarh, was duly intimated to the Opposite Parties. The Surveyor, which had been appointed by the Opposite Parties, inquired the matter of loss/damage, from the engineer of Audi Car Company, in the presence of the Director of the complainant Company. The engineer disclosed to the Surveyor of the Opposite Parties, that as per the investigation, it was revealed that there was hydrostatic locking in the engine of the car, due to water entering into the cylinders of the same, leading to its (engine) damage. He further disclosed that the engine had sucked the water, through the air filter. It was further stated that after investigation, by the Surveyor of the Opposite Parties, the latter started avoiding the claim and did not give the consent for repairs of the vehicle, at their cost. It was further stated that even the Officers of the complainant Company were disclosed that the Surveyor had given the survey report, and the Opposite Parties, were not inclined to pass any claim. Audi Car Service Centre i.e. Jaycee Automobiles Pvt. Ltd., Plot No.171, Industrial Area, Phase 1, Chandigarh, dismantled the engine of the car and it was revealed that the engine of the car, had been damaged, only due to the water entering, into the same, through the air filter.

4.               It was further stated that the Opposite Parties had issued letter dated 10.11.2010, intimating the complainant Company that their liability qua the claim was restricted only to the tune of Rs.2,861/- . It was further stated that such a letter was written by the Opposite Parties, to the complainant Company, on the basis of the false report, submitted by the Surveyor, which was not acceptable to it (complainant Company).

5.               It was further stated that the complainant Company received the information, alongwith the tax invoice dated 30.11.2010, from Audi Car Service Centre aforesaid, intimating that the repair was complete and the vehicle was ready for delivery. The authorized Service Centre of Audi Car, issued the invoice dated 30.11.2010, in the sum of Rs.9,11,878/-. The complainant Company, informed the Opposite Parties, vide letter dated 06.12.2010, about the completion of repairs and that the car was ready for delivery, alongwith copy of the invoice. The Opposite Parties, after getting the bill/invoice avoided to send reply to the letter dated 06.12.2010, sent by the complainant Company, to them. The complainant Company, then informed the Opposite Parties, in clear-cut terms, that it was making payment to Audi Service Centre aforesaid, and further requested them to appoint any Surveyor, to check the replaced parts/salvage, of the car, in question, but to no avail. Ultimately, a huge amount of Rs.9,29,878/- vide receipt Annexure C-10, had to be paid by the complainant Company,  to Audi Car Service Centre aforesaid, on account of  repairs of the damaged car, on its own. The Opposite Parties were many a time, asked to refund the bill/invoice amount of Rs.9,29,878/-. They were also requested to pay a sum of Rs.2 lacs, on account of non-settlement of the genuine claim of the complainant Company; Rs.50,000/-, as compensation, towards mental agony and physical harassment; cost of litigation, to the tune of Rs.11,000/-; and interest @15% P.A., on the aforesaid amounts, but to no avail. It was further stated that the aforesaid acts of the Opposite Parties, amounted to deficiency, in rendering service, as also indulgence into unfair trade practice. When the grievance of the complainant Company, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed.

6.               Opposite Parties No.1 and 3, in their joint written version, pleaded that the allegations contained, in the complaint, did not fall within the meaning/definition of Section 2(1)(d)(i) of the Act, and, as such, the same was not maintainable. It was stated that the authorized representative of the complainant Company had mis-represented the facts, in order to gain wrongfully. It was admitted that the complainant Company, got insured from the Opposite Parties, AUDI Car, bearing registration No.CH 04 L 0062, vide Policy No. OG-10-1201-1801-00002423, valid for the period from 30.9.2009 to 29.09.2010, for the Insured Declared Value of Rs.56,52,595/-. It was further stated that, on receipt of information, with regard to the incident, a Surveyor was appointed by the Opposite Parties. It was further stated that the Surveyor came to the conclusion, that the incident under the claim, was a case of hydrostatic locking of the engine, due to the water entering into the same, and their liability was restricted only to cleaning and flushing of the same. It was further stated that the Surveyor came to the conclusion, that the amount, which was payable to the complainant Company, was Rs.2,861/-. It was further stated that the damage to the engine was attributable to cranking, which came within the purview of a consequential loss, as per the terms and conditions of the warranty, and, as such, the Opposite Parties, were not liable to make payment of the repair bills/invoice, submitted, by the complainant Company. It was further stated that neither there was any deficiency, in rendering service, on the part of Opposite Parties No.1 and 3, nor they indulged into unfair trade practice. The remaining averments, were denied, being wrong.

7.               The name of Opposite Party No.2, was ordered to be deleted, from the array of the Parties, on the basis of the statement, made by the Counsel for the complainant Company, on 16.02.2011.

8.               The Parties led evidence, in support of their case.

9.               After hearing the Counsel for the parties, and, on going through the evidence, and record of the case, the District Forum, came to the conclusion, that the complainant Company was only entitled to a sum of Rs.2,861/-, as assessed by the Surveyor, and, accordingly, disposed of the complaint, in the manner, referred to, in the opening paragraph of this instant order

10.            Feeling aggrieved, the instant appeal, has been filed by the appellant/complainant Company.

11.            We have heard the Counsel for the parties, and, have gone through the evidence, and record of the case, carefully. 

12.            The Counsel for the appellant/complainant Company, submitted that damage to the engine of the car and its parts, was not caused, on account of cranking. He further submitted that when the Director of the complainant Company, on 19.09.2010, was coming from Nanital to Chandigarh, in the aforesaid car, being driven by Mr. Jasbir Singh, Driver, and reached Rourkee, at about 5.30 p.m., there was a heavy rain, and, suddenly, heavy water/flood came over and the car came into contact with the said water. He further submitted that due to heavy rain water/flood, the car got stuck on the road and stopped. He further stated that the ignition was off, and the car could not be started.  He further submitted that the driver of the car never tried to start the same, and, as such, the question of damage to its engine and the parts thereof, due to cranking did not at all arise. He further submitted that, even as per the incomplete survey report dated 22.09.2010, Annexure R-4 (colly. at pages 100 to 102 of the District Forum file), submitted by the Surveyor of the Opposite Parties, only physical inspection of the car, was conducted by him. He further submitted that, it was only on the basis of physical inspection of the car, by the Surveyor, that he came to the conclusion, that damage to the engine could be attributed due to cranking. He further submitted that there was no worthwhile evidence, produced by the Opposite Parties, to the effect, that the damage caused to the engine of the car, and its parts, was due to cranking. He further submitted that, as such, the Opposite Parties were liable to pay the amount of the bill of repairs, submitted by the complainant Company, to them, to the tune of Rs.9,29,879/-. He further submitted that the District Forum was wrong, in coming to the conclusion, that the damage caused to the engine of the car, and its parts, was due to cranking. He further submitted that the District Forum was also wrong, in accepting the incomplete report Annexure R-4 (colly.), of the Surveyor and awarding a mere sum of Rs.2,861/-, to the complainant Company. He further submitted that the order of the District Forum, being illegal and invalid, is liable to be set aside.

13.            On the other hand, the Counsel for the respondents/Opposite Parties, submitted that, as per the survey report Annexure R-4, submitted, in the District Forum, as also Annexure AX, complete report, submitted, as per the order of this Commission, during the pendency of appeal, the Surveyor came to the conclusion, that damage to the engine of the car and its parts, was on account of cranking. He further submitted that such damage to the engine of the car, did not fall within the terms and conditions of warranty, being a consequential loss, and, as such, the Opposite Parties were not liable to pay a sum of Rs.9,29,879/-, claimed by the complainant/appellant Company. He further submitted that the order of the District Forum, being legal and valid, is liable to be upheld.

14.            There is, no dispute, about the factum, that the car, in question, belonging to the complainant Company, was got insured, with the Opposite Parties, valid for the period from 30.9.2009 to 29.09.2010, for the Insured Declared Value of Rs.56,52,595/-. The factum, that Sh. Narsi Dass Garg, Director of the complainant Company, was coming, in the aforesaid car, when the same was being driven by Mr. Jasbir Singh, driver, from Nanital to Chandigarh, and when it reached Rourkee, at about 5.30 p.m., due to heavy rain, suddenly heavy water/flood came over and the car stuck in the same, was also not disputed. The question, that falls for consideration, is, as to whether damage to the engine of the car was caused, on account of cranking or there was hydrostatic locking, of the same, due to water entering its cylinders, as it (engine) sucked the water, through the air filter. Annexure R-4, report of the Surveyor, appointed by the Opposite Parties, besides being incomplete, is also not reliable. As stated above, it was not the case of the complainant Company, that when the car stuck up, in the heavy rain water, the driver continued starting the same, as a result whereof, the engine got water locked, due to cranking.  The Surveyor appointed by the Opposite Parties, recorded the following comments, in his report, at page 102 of the District Forum file:-

“As per our physical inspection there is no impact to IV or engine from outside. In our opinion engine cannot be damaged merely coming in contact to water. The damage to engine can be attributed due to cranking. As per terms and condition of policy insurer liability is restricted to the flushing/cleaning of engine”

15.            From the comments of the Surveyor, extracted above, it is evident, that he only physically inspected the car. There is nothing, in his comments, that the engine was dismantled, in his presence, and he inspected those dismantled parts of the same. In our considered opinion, on mere physical inspection of the car, it was not at all possible for the Surveyor, to come to the conclusion, that the damage to the engine of the car was caused, due to continuous cranking. The Surveyor did not go further, and, as such, failed to assess the loss/damage caused to the engine of the car, as also its other parts, on the basis of the estimate submitted by the complainant Company. As stated above, this report of the Surveyor described as “Final Survey Report”, therefore, could not be said to be an authentic document, to conclude, as to under what circumstances, the loss/damage to the engine was caused. It was, under these circumstances, that during the pendency of appeal, the Opposite Parties were directed to submit the complete Survey report, assessing the loss to the engine and various parts of the car, on account of the incident, aforesaid, alongwith the affidavit of the Surveyor. In pursuance thereof, Annexure AX, complete report of the Surveyor, assessing the total loss, to the tune of Rs.7,61,524.20Ps., was submitted by the Opposite Parties. Affidavit of Mr. Pukhraj Singh, Partner of Protech Engineers and Loss Assessors, SCF 40, Phase 9, Mohali, was also submitted. The relevant  part of the survey report Annexure AX, recorded by the Surveyor, reads as under:-

“The damage to engine observed after dismantling of the engine indicates that the loss to the engine parts had occurred due to continuous cracking (infact cranking) of engine, while the vehicle was still inside the water. Due to continuous cracking (infact cranking) of engine, the water has entered into one or more cylinders during the intake stroke (downward movement of piston). Water (unlike the fuel/air mixture) is incompressible, and, during the compression stroke (upward movement of piston) locks the piston. This condition tends to overload the connecting rod, causing a bending failure of the connecting rod. More cranking of the engine can further cause severe engine damage such as a broke piston, bent or broken con-rod, shattering of engine castings, or even breakage of the crankshaft”

16.            The report Annexure AX of the Surveyor, submitted by the respondents/Opposite Parties, during the pendency of appeal, to the effect, that the damage to the engine of the car, after dismantling of the same, indicated that it was, on account of cranking, is also not correct. In his earlier report, Annexure R-4, aforesaid, it was never mentioned, by the Surveyor, that the engine of the car, was dismantled, in his presence, and, thereafter, he checked the parts thereof, and, came to the conclusion, that damage to the same had been caused due to cranking. The afore-extracted  comments, recorded in Annexure AX report of the Surveyor, is an improvement over his earlier report Annexure R-4, according to which, he only physically inspected the engine and came to the conclusion, that the damage to it and its parts, was on account of cranking. Nothing was stated by the Surveyor, in his affidavit, as to on which date, the engine was allegedly dismantled, in his presence, and, on which date, he checked the same and its dismantled parts, to come to the conclusion, that the damage to the same, was caused, on account of cranking. No affidavit of the engineer of the repairer, who submitted the estimate Annexure C-5, and, repaired the car, was also produced, to prove that when he dismantled the engine and parts thereof, he came to the conclusion, that the hydrostatic locking of the same (engine), was caused due to cranking. No report of the engineer of the repairer was also produced, by the Opposite Parties, to the effect, that the  engine of the car was dismantled, in the presence of the Surveyor, and, it was found, that damage to the same, had been caused including its parts, on account of cranking. Both these reports of the Surveyor, on the point, that damage to the engine of the car, was caused due to cranking, cannot be relied upon. Even objections to the survey report dated 30.11.2012 Annexure AX, of Mr. Pukhraj Singh, Partner of Protech Engineers and Loss Assessors, SCF 40, Phase 9, Mohali, were filed by the appellant/complainant Company. In paragraph number 3 of the objections, it was, in clear-cut terms, stated by the Counsel for the appellant/complainant Company, that the Surveyor had not inspected the vehicle, after dismantling its parts, and, as such, his report to the effect, that the damage to the engine of the car and its parts, was caused due to continuous cranking, was not correct. The findings of the District Forum, that damage to the engine and its parts was caused due to cranking, are not based on the correct appreciation of evidence. The same are set aside. Under these circumstances, the submission of the Counsel for the Opposite Parties/respondents, that it was, on account of continuous cranking, that damage to the engine was caused, which was not covered under the terms and conditions of warranty, being devoid of merit, must fail, and the same stands rejected.

17.            When the complete report Annexure AX was submitted by the Opposite Parties, during the pendency of appeal, the Surveyor assessed the loss on account of damage to the engine, and its parts, to the tune of Rs.7,61,524.20Ps. The report Annexure AX dated 30.11.2012 of the Surveyor, to this extent, appears to be correct. The Surveyor, on the basis of the estimate, assessed the loss, item-wise, on account of damage caused, to the engine and its parts. No worthwhile rebuttal evidence, in respect of the amount  of loss, assessed by the Surveyor, vide report Annexure AX, was produced by the complainant Company, though, an opportunity was granted to it, in that regard. It is, therefore, held that the complainant Company is entitled to a sum of Rs.7,61,564.20Ps, the amount of loss assessed by the Surveyor, vide report Annexure AX, on account of damage caused to the engine of the car, and its parts, in the incident, referred to above.

18.            Since the appellant/complainant is a Company, it could not suffer any mental agony and physical harassment. Only a living person can suffer mental agony and physical harassment. Under these circumstances, the complainant Company is not entitled to any compensation, on account of mental agony and physical harassment.

19.            Since, the genuine claim of the complainant Company, was arbitrarily and illegally declined by the Opposite Parties, to a substantial extent, and the Surveyor vide report Annexure R-4 (Colly.) aforesaid, came to the conclusion, that the complainant Company was only entitled to Rs.2,861/-, they (Opposite Parties) were certainly deficient, in rendering service. Had the loss caused to the engine of the car and its parts, been properly assessed, by the Surveyor, vide report Annexure R-4 (Colly.), submitted before the District Forum, and had the amount now assessed, by the Surveyor, in report Annexure AX, been paid to the complainant Company, in time, it would have invested the same, in some business or deposited the same, in the bank, as a result whereof, it would have certainly earned interest thereon. Thus, financial loss was caused to the complainant Company, on account of non-settlement of its genuine claim, in a proper manner, by the Opposite Parties, at the relevant time. The complainant Company, is, thus, entitled to interest @9% P.A., on the amount Rs.7,61,564.20Ps, from the date of filing the complaint, till realization.

20.            No other point, was urged, by the Counsel for the parties.

21.            For the reasons recorded above, the appeal is accepted, with costs. The order of the District Forum is modified, in the following manner:

                              i.   The respondents/Opposite Parties are directed to pay Rs.7,61,564.20Ps, instead of Rs.2,861/-, awarded by the District Forum.

                            ii.   The respondents/Opposite Parties are further directed to pay interest @9% P.A., on the amount mentioned in Clause (i) above, i.e. Rs.7,61,564.20Ps., from the date of filing the complaint, in the District Forum, till realization.

                          iii.   The respondents/Opposite Parties, shall also pay cost of litigation, to the appellant/complainant, to the tune of Rs.10,000/-.

                           iv.   The amount mentioned in Clause (i) alongwith interest mentioned, in Clause (ii), of paragraph number 20 above, shall be paid, by the respondents/Opposite Parties, jointly and severally, within 45 days, from the date of receipt of a certified copy of this order, failing which they shall be liable to pay interest @12% P.A., instead of 9% P.A., on the amount mentioned, in Clause (i) above, besides payment of costs, to the tune of Rs.10,000/-.

22.            Certified copies of this order, be sent to the parties, free of charge.

23.            The file be consigned to Record Room, after completion

Pronounced.

January 7, 2013

Sd/-

[JUSTICE SHAM SUNDER (RETD.)]

PRESIDENT

Sd/-

[NEENA SANDHU]

MEMBER

Rg