JUDGEMENT

1.      Heard Mr. Arvind Gupta, Advocate, for the petitioner and Mr. Rajnish Jindal, the respondent, in-person. 

2.      Above revision has been filed against the order of Rajasthan State Consumer Disputes Redressal Commission, Circuit Bench, Udaipur, dated 20.04.2022, passed in First Appeal No.239 of 2017 (arising from the order of District Consumer Disputes Redressal Forum, Udaipur, dated 24.10.2017 passed in CC/510/2016), whereby District Forum dismissed the complaint and State Commission allowed the appeal with cost of Rs.25000/- and directed the petitioner to pay Rs.172504/-, with interest @9% per annum from 26.09.2016 till the date of payment. The office has reported 3 days delay in filing the revision. Impugned order was passed on 20.04.2022 and the revision 22.07.2022. The petitioner applied for issue of certified copy of the order on 22.04.2022, which has become ready on 28.04.2022. The period of 7 days, which was taken in issue of certified copy, has to be excluded under Section 12 (2) of Limitation Act, 1963. After excluding 7 days, the revision is within time.

3.      Rajnish Jindal (the respondent) filed CC/510/2016, for directing The Oriental Insurance Company Limited (the petitioner) to pay (i) Rs.172504/- with interest @18% per annum, from 23.03.2016 till the date of payment, as the insurance claim; (ii) Rs.20000/-, as compensation for financial loss; (iii) Rs.100000/-, as compensation for mental agony and harassment; and (iv) any other relief, which is deemed fit and proper in the fact of the case.

4.      The complainant stated that he had taken Private Car Package Insurance Policy No.242500/31/2016/6008, from the opposite party of his Hyundai Xcent Diesel Car, Registration No.RJ 27 CD 8338 (model 2014), for the period of 11.08.2015 to 10.08.2016, which was a renewal policy. The complainant and his wife were returning to their house from Dabok on 22.03.2016, in the above car. As soon as the car reached near Power House, a bike was coming from wrong side in a high speed. While saving the bike from accident, the car became uncontrolled and climbed on big stone on the roadside. Due to shock of this sudden accident, Smt. Krishna Jindal, wife of the complainant suffered with an Asthama attack. Looking to serious condition of the wife, the complainant came in panic and forgets everything except serious condition of his wife. He immediately called his brother with vehicle, so that he could take his wife to nearest hospital. As soon as his brother came with vehicle, he left the crash car on the spot, shifted his wife to other vehicle and took her to Goyal Hospital, at Hiran Magri, Udaipur, where she was attended by Dr. Vijay Goyal. When condition of Smt. Krishna Jindal became stable, the complainant informed Chandra Hyundai Company i.e. Hyundai’s authorised service centre, about the accident of the car, who gave a toll free number, on which the complainant called and asked to send a towing vehicle on the place of accident. The complainant and towing vehicle reached on the spot, from where the car was towed to Chandra Hyundai, who after examination, prepared estimates of the repair. As the vehicle was insured, Chandra Hyundai submitted Insurance Claim along with Repair Bills on 23.03.2016 to the opposite party. The Insurer appointed Deepak Kapoor, Surveyor & Loss Assessor, Udaipur, on 25.03.2016, for survey and assessment of loss. The surveyor inspected the vehicle at the authorised service centre without any information to the complainant and submitted Final Survey Report dated 07.04.2016 without supplying its copy to the complainant, in which he recommended for payment of loss to engine oil chamber and not for engine and other related parts. On the request of the complainant, the Insurer arranged for a meeting on 11.06.2016 with Deepak Kapoor and three other surveyors on the panel. In the meeting, the surveyors agreed that insurance claim in respect of damage in engine and its related parts was payable but Deepak Kapoor expressed his helplessness as he had already submitted Final Survey Report. The complainant gave legal notices dated 21.07.2016 to the opposite party to settle his insurance claim. In spite of service of the notice, the opposite party did not respond. Then the complaint was filed on 26.09.2016.

5.      The petitioner filed its written reply and contested the complaint. The petitioner stated that Private Car Package Insurance Policy was subject to conditions, restrictions and exclusions as contained in Terms and Conditions of the policy. The complainant informed about the accident and loss, on 23.03.2016, in the office of the opposite party and submitted insurance claim along with bills/estimates of the repair. The opposite party appointed Deepak Kapoor, Surveyor & Loss Assessor, Udaipur, on 25.03.2016, for survey and assessment of loss. The surveyor inspected the vehicle at the authorised service centre and found that there was a hole at bottom of engine oil chamber due to hitting it with the stone at the time of accident. The surveyor discussed with Manohar Singh, the representative of Hyundai’s authorised workshop, who informed that from the hole, engine oil was drained out and engine oil tank had become empty. The car was driven without engine oil due to which the engine parts were damaged and the engine was seized. The surveyor, in Final Survey Report dated 07.04.2016, submitted that liability under the policy was only in respect of damage to engine oil tank and not to engine or its part. The surveyor assessed the liability to Rs.21110/- subject to salvage deduction. On the request of the complainant, the opposite party appointed a panel of three surveyors, namely Mr. Manohar Sainani, Mr. Ramesh Chandra Sharma and Mr. Deepak Kapoor, who held a meeting on 11.06.2016 in Divisional Office of the Insurer with the complainant. The panel also found that damage to engine or its part was not due to accident, as such, the claim relating to engine and its parts was not payable and submitted its report dated 11.06.2016. In reply of the notice dated 21.07.2016, the opposite party, vide letter dated 15.09.2016, offered the complainant for settlement of the claim for Rs.20360/-, which was not accepted by the complainant nor he signed discharge voucher. The damage to the engine and its related part was caused due negligent driving of the car without engine oil, which was drained out from the hole of the tank and engine oil tank had become empty and not due to accident as such the claim in this respect was not payable. There is no deficiency in service on the part of the opposite party. The complaint is liable to be dismissed.

6.      District Forum, in its judgment dated 24.10.2017, relied upon the Final Survey Report dated 07.04.2016 and disbelieved Receipt (C-5), relating to towing of the vehicle and held that the vehicle was driven after accident. Due to hitting with stone a hole was caused in engine oil chamber and engine oil drained out from the hole and it had become empty due to which engine and related parts were damaged. There was violation of Condition-4 of Terms and Condition of the policy as such the claim relating to engine and related parts were not payable. On these findings the complaint was dismissed. The respondent filed First Appeal No.239 of 2017, from the order of District Forum. State Commission, by its judgment dated 20.04.2022, relied upon Receipt (C-5), relating to towing of the vehicle and statement of the complainant that after accident, the engine remained start as due to serious condition of the wife, the complainant came in panic and forgets everything except serious condition of his wife. The damage to the engine was as a consequence of the accident as such the claim was payable. On these finding the appeal was allowed and order as mentioned above was passed. Hence the Insurer has filed this revision.

7.      I have considered the arguments of the parties and examined the record. Section-1.1(iv) of Private Car Package Policy provides that the company will indemnify the Insured against loss or damage to the vehicle insured by accidental external means. Clause-4(a) of General Exception provides that the company shall not be liable under this policy in respect of any accidental loss or damage to any property whatsoever or any loss or expenses whatsoever resulting or arising there from or any consequential loss. Supreme Court in New India Assurance Company Limited Vs. Rajeshwar Sharma, (2019) 2 SCC 671, held that if there is no ambiguity in exclusion clause then it has to be given effect to.

8.      If the engine and its related part of the vehicle of the respondent, was damaged due to accidental external means, the insurance claim is payable. The accident of the vehicle, hitting with big stone, caused a hole in engine oil chamber and engine oil drained out from the hole and the chamber/tank had become empty. The respondent stated that after accident, he had focused on his wife, who suffered with Asthama attack as her condition had become serious and forget to switch of the engine. The engine remained in start condition after accident due to which engine and related parts were damaged as there was no engine oil to protect them. From the respective case of the parties as well as evidence on record, it is proved that the engine and its related part had not damaged due to accidental external means rather it was damaged due to negligence of the Insured to switch of the engine after accident, which remained in start condition till it was seized. Exclusion clause is fully attracted in the present case as the engine and related parts were damaged as a consequence of accident and not due to accident.

9.      So far as the damage to engine oil chamber/tank is concerned, its claim was payable. The opposite party, vide letter dated 15.09.2016, offered Rs.20360/- to the complainant for settlement of its claim. Under Regulation-9 of The Insurance Regulatory and Development Authority (Protection of Policyholder’s Interest) Regulations, 2002, if the claim is not settled within six months from intimation of the loss, then the insurer is liable to pay interest. The accident was intimated on 23.03.2016. The claim was offered within six months as such no interest is payable.    

O R D E R

In view of the aforesaid discussion, the revision is partly allowed. The order of State Commission dated 20.04.2022 passed in First Appeal No.239 of 2017 is modified and the petitioner is directed to pay Rs.20360/- to the respondent within two months from the date of this judgment.