This is a complaint filed under section 12 of consumer protection Act for an order directing the opposite party to pay `2,70,000 as compensation along with cost of this litigation with interest @9%.

          The case of the complainant in brief is as follows: Complainant has owned a car bearing Reg.No.KL13K.1771. On 16.7.2011 his wife was driving the car while so there was heavy down pour and the car was stopped on the way. Suddenly she attempted to re-start but in vain. Later it would be found from the workshop that water entered in to the engine. The car is insured with opposite party for the period from 15.10.2010 to 14.10.11. So complainant raised claim. But it was repudiated by opposite party; saying that the damage was consequential damage not covered under the purview of the policy. Refusal of claim is unreasonable unfair and unjust. The car is unable to use. It is lying idle in the workshop. Complainant is entitled to claim for total insured declared amount `2, 70,000. Hence this complaint.

 Opposite party entered appearance and filed version admitting the insurance at the time of alleged incident. The opposite party contended as follow: The car was suddenly stopped due to heavy down pour and when she attempted to restart the attempt was failed etc are not correct. The damage was not tallying with the cause mentioned in the claim form. The alleged damages are not the direct damages but only consequential damages. It is not covered under the purview of the policy. On their investigation it was revealed that the car was fell in gutter with full of water. Due to the water entered into the engine, the vehicle stopped there. The vehicle was restarted and run after the engine damage. The reason for the present alleged damage is due to the running of the vehicle after initial damage. It was due to the negligence of the driver. The driver ought not have restarted the vehicle and run the same with repairing it. In these circumstances repudiation is the only way. There is no deficiency of service on the side of opposite party. Hence to dismiss the complaint.

          On the above pleadings the following issues have been taken for consideration.

1.     Whether there is any deficiency in service on the part of

               opposite   party?

2.     Whether the complainant is entitled to get the relief as

       prayed in   the complaint?

3. Relief and cost.

The evidence consists of the oral testimony of PW1, PW2. Exts.A1 toA4, B1 & B2.

Issue Nos.1 to 3

                    Admittedly the vehicle of the complainant insured with the opposite party for the period of incident relevant under discussion herein. Complainant’s case is that his car while running under heavy down pour suddenly stopped. He attempted to restart the car but failed. Later it could be found that water entered into the engine and caused damage. Complainant raised the claim for damage before opposite party/the Insurance Company. But it was repudiated on the ground that it was consequential damage out of coverage under the purview of the policy. Opposite party on the other hand contended that on their investigation it was revealed that the car was fell in gutter with full of water by which water was entered into the engine and stopped the vehicle there. The vehicle was then restarted and run after engine damage which caused the present damage. Claim was repudiated since there was only consequential damage.

          The main point that is to be considered is whether the damage caused is consequential damage or not. Opposite party contended that it is consequential damage. The facts and circumstances along with the contentions taken by opposite party make it appear that there was heavy down pour on the day of incident and the vehicle was happened to be stopped suddenly since water entered into the engine. Now the question is whether the vehicle was restarted and run after engine damage. Complainant stated that the driver attempted to restart but that attempt was failed. That means he could not restart. If vehicle was not restarted the running of vehicle there after does not arise. Complainant adduces evidence by means of affidavit evidence that the vehicle could not be restarted and immediately informed to workshop. They came next day and taken to authorized work shop by towing.

          Ext.B1 is the report submitted by the surveyor. Surveyor was examined as PW2. He has deposed that survey was conducted as directed by opposite party/Insurance company. In the cross examination he has deposed that no objection has been filed against his report on any side. He has also deposed that “ Cu hml-\T  ]cn-tim-[n-¨t¸mÄXs¶ repair sNbvXp hml\T HmSn-¡m-hp¶ Ah-Ø-bn-em-bn-cp¶p” PW2 is the reliable witness since he was the person who conducted the survey. PW2 further deposed that “ Engine work sN¿p¶ ka-bT body level  shf-f-T Ds­-¦n Engine starting Ah-Ø-bn shf-fT Ib-dmT”. He has continued to say that “HmSn-s¡m­n-cn-¡p¶ hml-\-¯n \à ag ka-b¯v Enginete¡v shf-fT Ib-dm³ km²-y-X-bp-­v. A§s\ shf-fT Ib-dn-bm hml-\T OFF BIpT. Thus there is no substance in the contention that water will be entered into the engine only on the case where vehicle had been restarted. The remarks of  surveyor in the survey report is only an opinion expressed by him. The evidence  of surveyor himself is thus “Fsâ Report remark tImf-¯nÂ]-cm-aÀin-¨Xp Fsâ A`n-{]m-bT am{X-amWv ”.  That means surveyor in his evidence  admits that it is not a rule.

          It has also be taken into account that it is an important fact that opposite party did not adduce evidence except marking Ext.B1 & B2.  Ext.B1 is the report of the surveyor PW2. Ext.B2 is the Reliance private Car vehicle ‘certificate-cum-policy schedule’. On going through the evidence of PW1 the possibility of entering water in Engine while running the vehicle under rain water cannot be ruled out. The entirety of available evidence reveals that the reason for the incident is heavy rain and entering water in the engine of the vehicle. Complainant adduced evidence by way of affidavit evidence that though attempts were made to restart the vehicle he could not do it. Opposite party pleaded that the damage was caused due to the running of the vehicle after entering of water in the engine. But opposite party did not come forward to adduce evidence. Opposite party failed to establish their contentions. Opposite party did not attempted to find out the truth. Even PW1 surveyor deposed in cross examination that “ Cu case DÄs¸-«-ImÀ dismantle sNbvXn-«nÃ. DismantlesNbvXm am{Xta bYmÀ°  cause of damage]d-bm³ Ign-bp-I-bp-ffp F¶p ]d-ªm icn-bmWv”.  Thus it is clear even according to surveyor the real reason for the damage can only be ascertained by examination after dismantling. So opposite party was not able to prove their case by establishing what was really pleaded by them. Mere pleading is not evidence. Opposite party did not even entered in box to state the case set up by them is correct. It is relevant to point out the discussion of Hon’ble Supreme Court in Vidhyadhar Vs. Mankikrao & Anr.(1999 SAR(Civil)442SC) that “ where a party to the  suit  does not appear into the witness box and state his own case on oath and doesn’t offer himself  to be cross examined by the other side, a presumption would arise that the case set up by him is not correct as has been held in a series of  decisions passed by various High Courts and the privy council”.  In the present case in hand also opposite party abstained from entering the witness box. Therefore an adverse inference has to be drawn against opposite party especially in the light of the fact that opposite party did not take initiative to find out truth of actual cause of damage by examining the subject matter after dismantling the engine.  What is deposed by the PW2/Sureyor is thus: “ Rm³ ]cn-tim-[n-¡p¶ Ah-Ø-bn  hml-\T dismantle sNbvX Ah-Ø-bn-e-Ãm-bn-cp¶p . Dismantle sN¿W-sa-¶ph Bh-i-y-s¸-«n-cp-¶p. Enginesâ   overall sNehp sImSp-¡p-sa¶p Dd¸v X¶m am{Xsa Dismantle sN¿m³ Ign-bp-I-bp-ffp sh¶p workshop \n¶p ]d-ªn-cp-¶p.”. It could not be done since there was no NOC from company. So it is clear that in order to find out the truth of the cause of damage, examination by dismantling the vehicle was essentially necessary. But opposite party was not ready to do so. They were not interested to give NOC. Thus it is crystal clear that the repudiation of claim was done by the opposite party without realizing the truth. Hence the repudiation can only be considered as unjust, unreasonable and undoubtedly deficiency in service. So opposite party is liable to meet the consequences.

          The claim of the complainant is to pay `2, 70,000 as damage and `30,000 as compensation. The evidence of the surveyor made it clear that the IDV is `2, 70,000 and the loss of vehicle is `1, 09,187. The assessment summary in Ext.B2 shows that the depreciated part cost including taxes and other levies is `1, 01,539.

          Assessment  summary as per Ext.B2 is thus:

Depreciated part cost including taxes & other levies   `1, 01,539.29

Total labour including taxes                                           `17,648.00

Add Towing                                                                              0. 00

Less Excess Clause

Less voluntary Excess clause                                            `1,000.00

Less salvage                                                                     ` 9,000.00

Less discounts                                                                          0.00

Net claim Amount                                                        `1,09,187.29

The liability table shows `1, 09,187 as Insurance company’s liability.

          The assessment of surveyor `1,09,187 as the net claim amount is a reasonable amount. Suppose the vehicle was repaired then and there the question of  IDV `2,70,000 does not arise at all. But the vehicle was not repaired due to the unreasonable stand taken by the Insurance Company. PW2/Surveyor gives evidence that“ 28.7.2011\mbn-cp¶p h­n ]cn-tim-[n-¨-Xp. B h­n Ct¸.Ä repair sNbvXn-sÃ-¦n IqSp-X tami-am-Im-T. Ct¸mÄ h­n  running condition AÔ. According to this evidence the alleged vehicle has been kept idle without running more than another one year. Under such circumstances if the amount of IDV `2,70,000 if not allowed as damages we  fear, that would be a denial of natural justice. Hence we are of opinion that the complainant is entitled for an amount of `2, 70,000 as damages. Other losses being not proved by adducing evidence by complainant we are not in a position to allow any compensation but opposite party is liable to pay also `1000 as cost of this proceedings.

          In the result, the complaint is allowed directing the opposite party to pay `2,70,000 (Rupees  Two lakhs Seventy thousand only) as damages along with  `1,000 (Rupees One thousand only) as cost of this proceedings to the complainant within one month from the date of receipt of this order, failing which the complainant is also entitled to get interest @9% p.a from the date of order. On payment of the amount opposite party shall be entitled for the salvage. Complainant is at liberty to execute the order after the expiry of one month as per the provisions of consumer protection Act.   

                        Sd/-                   Sd/-                     Sd/-                               

President              Member                Member

                           APPENDIX

Exhibits for the complainant

A1.Copy of the registration certificate of the vehicle

A2.Copy of the driving license

 A3.Copy of the letter issued by OP

A4.Copy of the policy and conditions

Exhibits for the opposite parties:

B1. Copy of the survey report

B2.Copy of the vehicle certificate cum policy schedule

Witness examined for the complainant

PW1.Complainant

PW2.M.T.Prakasan

Witness examined for the opposite parties: Nil

                    /forwarded by order/

          Senior Superintendent

Consumer Dispute  Redressal Forum, Kannur.