JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER

            This revision is directed against the order of the State Commission Karnataka dated 09.12.2016 in cross appeals no. 193 & 355 of 2014.

2.         Undisputed facts relevant for the disposal of the revision petition are that complainant was the owner of BMW car No. 51 Z 9424.  The car was got insured by the respondent complainant from the petitioner insurance company on payment of premium.  The complainant also purchased an add on insurance cover which included cover for the key replacement.  On 31.05.2013 while the complainant was traveling in the subject car in Sadashiv Nagar, because of heavy rain fall, the water seeped into the engine mechanism of the car.  Consequently, the engine ceased. The complainant immediately informed the insurance agent Ms. Jaswinder Kaur as also BMW Service Station.  Upon instructions, the complainant got the car towed to Service Station located at Hosur.  In the process of pushing the car through rain water, the complainant lost the key.  The complainant thus after obtaining the estimate for repairs submitted two insurance claims, one for the damage caused to the car and other for the loss of key. The insurance company settled the insurance claim for loss of key.  However, the insurance claim for the damage caused to car was repudiated.  Being aggrieved of the repudiation of the claim, the complainant filed a consumer complaint in the concerned District Forum seeking reimbursement of Rs.8,21,893/- paid by him for the repairs of the car besides other appropriate reliefs.  According to the complainant during the process of pushing the car out of the water, some external damage was caused to the bumper of the car as also the side panels of the body. The repair bill covered the charges for setting right the aforesaid damage caused to the chamber of the body of the car. 

3.         The opposite party in its written statement admitted issue of insurance policy.  According to the opposite party, after the receipt of insurance claim, Shri M G Vijay was appointed as surveyor to conduct survey of the damaged vehicle and assess the loss.  The surveyor in his report assessed the value of the damage with respect to the bumper and body of the car to the extent of Rs.75,306/-.  The surveyor, however, was of the view that so far as claim regarding damage caused to the engine portion of the car is concerned, it is not covered under the policy.   The opposite party, therefore, offered a sum of Rs.75,306/- to the complainant with respect to the damage caused to the body of the car and repudiated the claim of the petitioner with respect to the damage caused to the engine.

4.         The District Forum concerned on appreciation of the evidence took the view that repudiation of the claim pertaining to the seizure of the engine was not justified.  The complaint was accordingly allowed and the petitioner opposite party was directed to pay to the complainant a sum of Rs.8,21,893/- within 30 days of the order of the date of the order besides Rs.2000/- as cost of litigation.

5.         Both the Opposite Party as also the complainant filed cross appeals against the order of the district Forum. The State commission on re-evaluation of evidence dismissed the appeal no. 193 of 2014 prefered by the OP and partly allowed the appeal no. 1577 of 2013 filed by the complainant by modifying the order of the District Forum concerned by awarding 9% interest on the awarded amount from the date of complaint till realization of the amount.  Being aggrieved, the opposite party insurance company has filed the revision petition.

6.         Learned counsel for the petitioner has taken us through the report of the Surveyor particularly the portion dealing with the cause of engine which is reproduced as under:

“When the vehicle runs into water logging, flood water is initially sucked into the air cleaner.  This creates the blockage of fresh air into the engine, engine chokes, stops operations and vehicle becomes stalled.  If an internal combustion engine hydrolocks while idling or under low power conditions, the engine stop suddenly with no internal damage.  In this case the engine can be purged by unscrewing the spark plug or injection and spinning the engine to expel the liquid from the combustion chambers and then re restarted.

Depending on how the liquid (water) was introduced to the engine, it is possibly can be re started and dried out with normal combustion heat or it may require more work, such as flushing out corrupted operating fluids and replacing the damaged gaskets.  By doing this precautionary and preventive measures, the damage can be restricted and further extension or consequential damage to the engine internal parts and the related parts like turbo charger ( water getting through exhaust manifold), starter ( repeated cranking leading to mechanical failure of bendex) and alternator can be avoided.

In case, there are repeated attempts are made to start the engine, the (flood) water get sucked through air cleaner, to inlet manifold, and finally into the compression chamber through partially opened inlet valve during the suction stroke.  The presence of water inside the compression chamber creates an unwarranted pressure / force on the crank shaft, pistons, connecting rods during the compression stroke. This is because the water with the  high density does not get compressed. When this process is repeated, the connecting rod due to its design cannot withstand the pressure / force resulting in the mechanical failure/ damage to the engine internal parts and hence the seizure of the engine.  In addition to this, probability of damage to the starter and turbo charger becomes also high as consequential and extension of damage since the contaminated flood water fuel air mixture is found to have entered into turbo charger form the exhaust manifold of the engine.

The nature of damage to the engine parts like pistons, connecting rods, oil pump, exhaust cool and starter and turbo charger confirms the above facts which is exactly what happened in the insured vehicle’s claim and these damage are consequential and extension of loss in nature.

On its own the engine of a car cannot be impacted by coming into contact with water which has enough safeguards provided by a manufacturer to prevent entry of water into engine unless the cranking is done while vehicle is waterlogged resulting into sucking of water through air cleaner and inlet manifold and then entering into combustion chamber. Thus such damages are caused and categorized as mechanical failure and / or consequential/extension of loss caused by trying to run an engine while vehicle is submerged in water.

7.         The contention of learned counsel for the petitioner is that damage to the engine of the subject vehicle has occurred because despite of the engine having stopped due to hydrostatic lock, the driver of the vehicle continued to make repeated attempts to start the engine as a result of which engine seized.  Thus, the loss caused by the seizure of the engine of the vehicle can be attributed to the failure on the part of the insured to safeguard the subject vehicle from loss or damage.  Thus, the repudiation of insurance claim in view of condition no.4 of the insurance policy is justified which is reproduced as under: 

“The insured shall take all reasonable steps to safeguard the private car from loss or damage and to maintain it in efficient condition and the company shall have at all times free and full access to examine the private car or any part thereof or any driver or employee of the insured.  In the event of any accident or breakdown, the private car shall not be left unattended without proper precautions being taken to prevent further damage or loss and if the private car be driver before the necessary repairs are effected any extension of the damage or any further damage to the private car shall be entirely at the insured own risk.”

8.         Learned counsel has also argued that otherwise also, damage to the engine of the vehicle has been caused due to heavy rain and not due to flooding.  As such the claim of the insured complainant is not even covered under the insurance policy

9.         We have perused the insurance policy issued by the insurance company.  The said policy covers damage due to flood, cyclone, hailstorm etc and does not exclude the loss to the vehicle due to hydro static lock.  In absence of such an exclusion, insurance company cannot  be permitted to take shelter of condition no.4 of the insurance policy to get rid of its liability under the insurance policy.  Otherwise also, on going through the above noted surveyor report,  neither the surveyor in his report nor the petitioner opposite party in its affidavit evidence has said that surveyor had adequate qualifications and experience to give opinion regarding the cause for seizure of the engine of the subject car. Thus, the observation / opinion of the surveyor cannot be relied upon particularly when the petitioner opposite party has not filed any opinion / report from the manufacturer of the car or automobile engineer or from the workshop where the vehicle was repaired.

10.       We do not find merit in the contention of learned counsel for the petitioner that seizure of the engine of the subject car was because due to heavy rain and not due to flood.  The word ‘Flood’ has been defined in the Oxford Dictionary as large amount of water covering the area that is usually dry.  From the facts of the case, it is clear that because of heavy rain, large amount of water had accumulated in the area where the subject car was being driven.  Therefore, it cannot be said that area was not flooded.  As the water which has flooded the area  seeped into the engine of the car, this is clear case of damage caused to the subject car by flood.  Hence, repudiation on the ground that damage was not covered under the insurance policy is not justified. 

11.       In view of the discussion above, we find no reason to interfere with the concurrent finding of the Fora below in exercise of revisional jurisdiction.  Revision Petition is accordingly dismissed.