STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

The New India Assurance Company Ltd., Sonepat through Sh. K.B. Bindal, Manager of the New India Assurance Company Ltd. Regional Office S.C.O. No. 36-37, Sector 17-A, Chandigarh.

……OP-1/Appellant

V e r s u s

1.       Rakesh Chawla s/o Shri Hans Raj Chawla, resident of H.No.1009, Sector 14, Sonepat.              

…. Complainant/Respondent

2.       M/s Globe Toyota, Opp. Police Training Centre, G.T Road, Madhuban, National Highway No.1, Karnal. [Deleted vide order dated 20.7.2011].

 ....OP-2/Respondent

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. R.K. Bashamboo, Adv. for the appellant.

                   Sh. Sameer Sachdev, Adv. proxy for Ms. Seema Pasricha, Adv. for respondent No.1

                   Respondent No.2 (name deleted from the array of respondents vide order dated 20.7.2011)

PER  JAGROOP  SINGH   MAHAL, MEMBER

                    This appeal has been received by transfer from the Haryana State Consumer Disputes Redressal Commission under the order of the Hon’ble National Commission, New Delhi. The appeal was initially filed by OP No.1 before the State Commission Haryana against the order dated 14.1.2011 passed by the learned District Consumer Disputes Redressal Forum- Sonepat, Haryana (hereinafter referred to as the District Forum) whereby the complaint was allowed  and the OP No.1 was directed to pay Rs.3,08,865/- to the complainant alongwith interest @9% p.a. from the date of lodging of the claim by the complainant with OP No.1. It was further directed that OP No.1 shall pay Rs.5000/- towards compensation to the complainant alongwith Rs.5000/- as costs of litigation.          

2.                           The facts, in brief, are that the complainant got his new vehicle make Toyota/Atlis-1,8 G.L. Corolla insured from the OP No.1 for a sum of Rs.11,49,500 for the period from 12.9.2008 to 11.9.2009. On 10.9.2009 at around 10.30 a.m. when he was coming to his house, it was raining and suddenly a truck came from the opposite side at a very high speed and the water accumulated on the road came in the shape of wave towards the complainant’s car and immediately, the engine stopped working and finding no way out, he had to leave his car at the spot. Later in the day, when the complainant tried to start his car with single efforts, the engine of the car did not respond.  The complainant intimated OP No.2 (M/s Globe Toyota, G.T. Road, Madhuban,NH-1, Karnal, respondent No.1) about the non-functioning of the engine of the car who, after receipt of the information, took away the car to their agency and informed the complainant that there was some mechanical defect. Thereafter, the complainant also informed OP No.1/appellant and narrated all the actual facts. After receipt of the information, OP No.1/appellant deputed T.P. Singh, Surveyor who had given the survey report, the cause of non-functioning of the car engine was due to water entry into the engine through Air Cleaner restraining cylinder volume due to liquid which is not comprehensible and after receipt of the surveyor report,           the OP No.1’s Divisional Claim Committee referred the matter for joint opinion of two senior auto technical surveyors though            there was no need for the same. In the meantime on the assurance of OP-2/ respondent No.2 that the OP-insurance company                 would pay the amount so incurred by the complainant on             repair of the car, he paid Rs.3,08,866/- in cash to OP No.2.     Thereafter he remained in touch with OP No.1 for payment                of the amount spent by him towards repair of the car, but to             his   utter  surprise he  received   a   letter   dated   31.3.2010  from OP

OP No.1/appellant vide which his claim was repudiated.  Hence this complaint was filed.

3.                           In its written reply OP No.1 submitted that T.P. Singh, surveyor gave the cause of accident that water entered into the engine through air cleaner restricting cylinder volume, due to liquid which was not compressible and due to non compressive mass/water engine stopped working and in view of the technical nature of the cause of accident, the Divisional Claim Committee of the Divisional office recommended the matter for joint opinion of two senior Auto Technical Surveyors who after going through the claim papers had concluded in their joint opinion that as and when water ingress into engine assembly through air cleaner, it reaches to the combustion chamber of the engine. As the amount of water was much more than the fuel required to be compressed in the chamber, it was not possible to compress the liquid which can be thrown out through exhaust valve. So in this case, the travel of piston of cylinder minimizes and the concerned connecting rod gets bend and the engine stops by itself. If the operator keeps on cranking the engine in spite of that hydraulic lock, at last the connecting rod breaks and that would further damage other components of engine like cylinder block or cylinder head and this breakage happens as a subsequent damage which occurred due to cranking up of the engine again and again which is not at all covered under the terms and conditions of the insurance policy. Hence, there was no liability of the OP insurance company in any manner. It was admitted that on 10.9.2009 it was raining and water accumulated on the road and water entered into the engine. It was alleged that the complainant tried to start his car again and again and due to this, the engine of the car was damaged and this damage does not fall under the definition of the accident and it also does not cover the terms and conditions of the policy and the OP No.1 has rightly repudiated the claim.  All other allegations of the complaint were denied and a prayer for dismissal of the same was made.

4.                           OP No.2 in its reply has submitted that there is no privity of contract in between the OP No.2 and the complainant. The complainant gave his consent for repair of the vehicle and after satisfying with the repair work, he took his vehicle by making payment without any protest. Thus there is no deficiency in service on the part of OP No.2.

5.                           Parties led evidence in support of their case. 

6.                           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 in the opening para of this order

7.                           Feeling aggrieved, the instant appeal has been filed by the appellant/OP No.1 initially before the Haryana State Commission and the same was transferred to this Commission.

8.                           We have heard the ld. Counsel parties and have perused the record carefully.

9.                            Before proceeding with the appeal on merits, it would be necessary to mention that the appellant/OP has moved three applications one for amending the grounds of appeal and the other two for additional evidence. As regards the first application, the appellant/OP wants to add that no such occurrence took place on 10.9.2009 because even thereafter the vehicle was taken to M/s Globe Automobile Pvt. Ltd. Karnal for normal service on 16.9.2009. In support of his contention the learned Counsel has referred to a report dated 27.2.2011 submitted by Hawa Singh, Investigator who claims to have gone to the premises of OP No.2, checked their record and found that first the vehicle was taken to the workshop on 16.9.2009 for normal service and thereafter on 24.9.2009 for repairs. On the basis of these facts the investigator concluded that the vehicle met with an accident after 16.9.2009, whereas the Insurance Policy issued by the appellant/OP had expired on 11.9.2009. This application is vehemently opposed by the complainant.

10.                       In para No.3 of the complaint the complainant has mentioned that on 10.9.2009 at about 10.30 a.m., when the complainant was driving his vehicle towards his house, it was raining and suddenly a truck came from the opposite side at a high speed and the water accumulated on the road came in shape of wave towards the complainant’s car and immediately the engine stopped working and finding no way out the complainant had to leave his car on the spot and he came on foot to his house. The OP/appellant filed a reply in para No.3 of which it was admitted as follows:-

“3.     That the para No.3 of the complaint is also the matter of record. However, it is admitted that on 10.9.2009, there was raining and water accumulated on the road which was entered into the engine of the car in question and due to again and again starting of the engine of the car by the operator, the engine of the car damaged due to entering of the water. However, it is also admitted that the complainant tried to start his car again and again due to this, engine of the car was damaged and this damage does not fall in the definition of the accident and it is also does not cover the terms and conditions of the policy in question and to this effect, the report of the surveyor has also been submitted and the letter was also sent to the complainant on 31.3.2010 by registered post. Hence, there is no deficiency in service on the part of the respondent company. 

                    In this manner it was admitted by the appellant/OP that it was raining on 10.9.2009 and the present occurrence took place on that date. In the entire reply there is no mention if the occurrence had not taken place on 10.9.2009 or it took place after 16.9.2009. Further there is no mention if the vehicle was taken to the premises of OP No.2 on 16.9.2009 for normal service. The grounds of appeal now being intended to be introduced by the appellant/OP are therefore, beyond pleadings and would take away the admission earlier made by the appellant/OP in para No.3 of its reply as quoted above. Such a ground cannot be allowed to be taken, which takes away the admission already made by the appellant/OP in favour of the complainant.  

11.                       Otherwise also, there is no evidence collected by the appellant/OP to prove this contention.Hawa Singh aforesaid is alleged to have given this report dated 27.2.2011 after the impugned order dated 14.1.2011 was passed by the learned District Forum, it was done virtually to non-suit complainant by introducing frivolous grounds. Hawa Singh claims to have verified from the record but no copy of the said record was obtained by him and attached with his report. He did not obtain in writing from OP No.2 if the car was ever brought to their premises on 16.9.2009 for normal service or if it was subsequently brought for repair on 24.9.2009. No affidavit was produced in support of this contention.  This story has therefore, been concocted now by the OP/appellant just to defeat the genuine claim of the complainant, which cannot be permitted to be done.

12.                       The OP No.2 has filed its reply to the complaint, in which also no such grounds were taken denying, if the car engine was not damaged when the car was first brought to its premises after 10.9.2009 or if it was brought on that day only for normal service. There is no such assertion, if the car was brought again for repairs on 24.9.2009 and not on 16.9.2009. The OP/appellant did not dispute the truth of the contents of said reply filed by OP No.2. In fact the complainant has mentioned in para No.4 of the complaint that he remained busy due to the illness of his maternal uncle upto 14.9.2009 then intimated to OP-2, who later on took the car to their Agency.  He thereafter visited the Agency on 24.9.2009 to instruct them to start the repair. There is, therefore, no such fact that the vehicle was not damaged when it was taken to the Agency on 16.9.2009. 

13.                       The report dated 27.2.2011 submitted by Hawa Singh  clearly mentions that the vehicle was insured with the appellant till 11.9.2009 and thereafter, it was insured with Reliance General Insurance Company w.e.f. 12.9.2009. The Cover Note No. and date has also been mentioned. If the accident has taken place after 16.9.2009 there would be no reason, why the complainant would have lodged the claim with the appellant/OP and should not have claimed compensation from the Reliance General Insurance Company. It is not a case wherein the insurance cover had expired on 11.9.2009 and thereafter the complainant had not got the vehicle insured, which could tempt him to claim compensation from the previous insurer only. The circumstantial evidence also, sufficiently proves that the OP/appellant is now setting up a totally false case simply for the purpose of denying the claim to the complainant.

14.                       In view of the above discussion we are of the opinion that no amendment of grounds of appeal can be allowed. The application for amendment is accordingly dismissed.

15.                       There are two other applications moved by the complainant for additional evidence to produce the investigation report dated 27.2.2011 submitted by Hawa Singh investigator and also the surveyor’s report as mentioned in the first application for additional evidence. As discussed above, the report dated 27.2.2011 of Hawa Singh is a concocted report prepared subsequently after the complaint was allowed against the appellant/OP and moreover, this report is not supported by any evidence. It also runs counter to his earlier report, a mention of which is made in the Surveyors report dated 20.1.2010, alleged to have been submitted by T.P. Singh & Co. which is sought to be produced as additional evidence.  As regards the surveyor report dated 20.1.2010, it was mentioned that the same could not be placed on record in spite of due diligence, but the same are important for just and proper decision of the case. The report of T.P. Singh & Co. dated 20.1.2010 has been enclosed. It may be mentioned that the present complaint was filed on 31.5.2010 when the report of T.P. Singh & Co. should have already been in possession of the OP/appellant. The OP No.1/appellant filed written reply but this report was not produced by them, may be due to reason that it supported the case of the complainant because it is mentioned therein that Hawa Singh investigator had also investigated the loss and confirmed that road level was low and plenty of rain water gathered there in rainy season. He further quoted that the incident was genuine and occurred on 10.9.2009 at  11.00 a.m due to rain water jumped over the said car while crossing by another truck and engine got seized. Strangely enough, Hawa Singh has now come forward with a totally contradictory report dated 27.2.2011 which is sought to be produced now denying that any such occurrence took place. The OP/appellant has not produced affidavit of T.P. Singh to prove the report  dated 20.1.2010 which itself is of doubtful origin because it was not produced during the regular trial of the complaint nor any mention was made in the written reply, if there was any such report dated 20.1.2010 given by T.P. Singh & Co. The contention of the learned Counsel for the complainant/respondent is that since the OP/appellant has repudiated the claim, now efforts are being made to prepare and fabricate the reports to justify the wrong action earlier taken by them. If such a report dated 20.1.2010 existed even before the filing of the present complaint there is no reason why the same had not been produced before the learned District Forum. It is true that the complainant in his complaint and OP-1/appellant in their reply have mentioned about the report of T.P. Singh, but that by itself would not prove that it relates to this report dated 20.1.2010.  It was therefore, all the more necessary for the OPs to have proved this fact by producing affidavit of T.P. Singh, which is completely missing.

16.                       In view of the above discussion, we are of the opinion that the applications for additional evidence cannot be allowed at this stage and the same are accordingly dismissed.

17.                       As regards merits of the case, as discussed above, the OP/appellant admitted in para 3 of the reply that on 10.9.2009 there was raining, water had accumulated on the road and it entered into the engine of the car in question due to which the engine was damaged. In these circumstances, mentioned by the complainant as admitted by the OP/appellant, we are of the opinion that the complainant would be entitled to compensation. Our view in this respect is supported by the judgment 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 authority 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 Commision on 11.11.2009.

18.                       The case of the complainant is that the vehicle was taken to the premises of OP No.2 where it was repaired and he paid a sum of Rs.2,90,000/- and Rs.18,865 vide two receipts dated 13.11.2009 produced by him. The repair of the vehicle and payment of this amount was not disputed by the OP/appellant and rather it was alleged that the amount if any paid to the respondent No.2, the appellant insurance company has no concern with the same. The District Forum therefore, rightly allowed the said amount as compensation.

19.                       It is a case which depicts that the new India Insurance Company/appellant was not fair in its conduct towards its clients. They have tried to introduce false reports alleged to be given by Hawa Singh, which is devoid of any evidence to support the same. Their, contention that T.P. Singh and Company had earlier given the report dated 20.1.2010 before the complaint was filed by the complainant but strange enough, the said report was not produced before the District Forum nor the case was pleaded on its basis. Even in this report it was specifically mentioned that Hawa Singh Investigator had investigated the loss and confirmed that the incident occurred on 14.10.2009 (?) at 14/15 dividing main road, Sonepat, he confirmed that road level was low and plenty of rain water gathered there in rainy season, he concluded that incident was genuine and occurred on 10.9.2009 at 11.00 a.m. due to rain water jumped over the said car while crossing by another truck and engine got seized. However, when the complaint was allowed they have now come forward with a totally contradictory report of Hawa Singh which cannot be allowed to be taken at this stage. Ordinarily when the conduct of a party is dishonest and they produce false evidence or take a false plea, the Consumer Fora slaps a penalty of Rs.1.00 to Rs. 1.5 lac on the defaulting party as held in cases Reliance India Mobile Ltd. Vs. Hari Chand Gupta-III (2006) CPJ 73 (NC) & Jodhpur Vidyut Vitran Nigam Ltd. Vs. Rameshwar Prasad Vaishnav & Ors-II (2007) CPJ 280 (NC), Ethopian Airlines Vs. Naveen Singh Grewal,III(2009) CPJ 239 (NC), The Hon’ble National Commission imposed a compensation of Rs.1.5 lacs on the OP for giving false defence in their reply.  We are therefore, of the view that if it is ever considered that the complainant is not entitled to the full amount of Rs.3,08,865/- the excess amount would be treated as penalty levied against the OP/appellant for creating and producing false evidence as referred to above.

20.                       In view of the above discussion we are of the opinion that the present appeal fails and the same is hereby dismissed with litigation costs of Rs.10,000/-.

21.                       The OP/appellant would be free to recover the amount of interest, costs and part of compensation from its officers whose duty was to promptly allow the compensation but delayed the same and introduced false evidence.     

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

Pronounced.

18^th January, 2012                                                                             Sd/-

[JUSTICE SHAM SUNDER]

PRESIDENT

Sd/-

[NEENA SANDHU]

MEMBER

Sd/-

[JAGROOP SINGH MAHAL]

MEMBER