Captain Brij Mohan
S/o Shri Chottu Ram
R/o House no.86, Sector – 5, Urban Estate,
Kurukshetra                                                                   … Petitioner

                                               Versus
1. New India Assurance Co.Ltd.
Regional Office at SCO-36-37, Sector – 17-A,
Chandigarh, Through its Manager (legal)

2. New India Assurance Co.Ltd.
Pipli Road
Kurukshetra
Through its Branch Manager                                         ...  Respondents

BEFORE:
HON'BLE MR.JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER
HON'BLE MRS. REKHA GUPTA, MEMBER

Pronounced on :  20th January, 2015


REKHA GUPTA

Revision Petition No. 50 of 2013 has been filed by the petitioner/complainant against the order dated 5.9.2012, passed by  Haryana   State Consumer Disputes Redressal Commission, Panchkula (short, “State Commission”) in First Appeal No.471/2012.

2.    Brief facts of the case as per petitioner/complainant are that the petitioner was the owner of a Honda City Car bearing Registration No.HR-02A/0059. The same was got insured by the petitioner from the respondents/opposite parties vide insurance cover Note No.310152 for the period from 1.7.2010 to 30.6.2011 and due premium was paid by the petitioner to the respondents.  

3.    On 12.7.2010, the petitioner while driving his aforesaid car was on the way from Kurukshetra to Jyotisar and when petitioner reached near Jyotisar, suddenly, the aforesaid car fell into a ditch on the road and the car stopped there.  Thereafter, the car was taken to Lally Automobiles Pvt. Ltd., G.T.Road, Madhuban (Authorized dealer of Honda).  Upon examination of the said car, it was found that the damage had been caused to the car due to blow suffered by some stones at oil pan and consequently the engine block seized.  The information with regard to the above said damage to the vehicle was duly given to the respondent well in time.

4.    After getting the information, respondent deputed its surveyor and the surveyor visited the workshop and inspected the vehicle on 16.7.2010.  However, no information was given to the petitioner about the inspection and survey of the vehicle. The petitioner brought the matter to the notice of CRM Mr.Rajesh Attri, who advised Mr.Parminder Singh, Regional Manager to discuss the said claim.  The loss was discussed in detail.  Despite the request by the petitioner, the respondent did not appoint any other surveyor and again on 4.9.2010, the same surveyor visited Lally Automobiles Pvt. Ltd.,  Karnal and took the photographs of the dismantled engine of the car.

5.    The petitioner submitted all the relevant documents and completed all the formalities for the purpose of claim and it was assured that the claim would be paid to the petitioner.  A sum of Rs.1,61,277/- was spent by the petitioner on the repairs of the above said vehicle and the petitioner paid the said amount to the Lally Automobiles, Karnal.  All the bills were submitted to the respondent for the purpose of release of the claim.

6.    The respondent vide letter dated 3.11.2010 repudiated the claim of the petitioner.  The respondent had kept on delaying the matter on one pretext or the other and did not give any information about the claim and consequently, petitioner sought information under Right to Information Act, vide application dated 24.10.2010 and 22.11.2010.  It is only then that the petitioner was informed by the respondent about the repudiation of the claim. The aforesaid act and conduct on the part of the respondent amounted to unfair trade practice and deficiency in service.

7.    It was, therefore, prayed that the respondent may be directed to make the payment of the claim amount of Rs.1,61,277/- along with up-to-date interest at the rate of 18% p.a. and also to pay compensation of Rs.50,000/- to the petitioner for harassment, mental agony and hardship faced by the petitioner. It was further prayed that the petitioner be awarded litigation expenses to the tune of Rs.11,000/- in the interest of justice.

8.    Respondent no.1 in their reply before the District Consumer Disputes Redressal Forum, Kurukshetra (short, ‘District Forum’) stated that :

“There is no deficiency on the part of the OP No.1.  The case of the complainant was thoroughly investigated and got surveyed promptly.  Shri Baljinder Singh, surveyor inspected and surveyed the loss twice and he found that the damage to the car was not due to any external impact of the accident.  The damage was due to mechanical failure, which is not covered under the term and conditions of the insurance policy and Indian Motor Tariff Act.  As such, the claim was repudiated on 3.11.2010.

In reply to para no.3 of the complaint, it is submitted that the complainant himself is not aware as to  how the car suddenly fell into the ditches and stopped running.

It is wrong to say that the damage was caused due to any blow suffered by some stones at oil pan, resultantly seized to engine block.  As a matter of fact, the damage to car was got surveyed by Shri Baljinder Singh, Surveyor and Law Assessor of Chandigarh.  The surveyor visited and inspected the car twice.  First time the surveyor took the photographs of the car from external side.  There was no apparent damage to the car from outside and no external accident impact was found.  Since, the complainant had reported that the said car had fallen in the ditch so the said car was put and lifted on two post (lift) for underneath inspection.  All the parts were found intact on his inspection.  On 4.9.2010, again the surveyor visited the workshop and inspected the dismantled engine.  The photographs were also taken on final inspection, it was found that the damage to the car was due to mechanical failure and not due to any external impact.  The complainant was accordingly informed.

The loss was not assessed by the surveyor as is same was not covered under the term and conditions of the insurance policy and Indian Motor Tariff Act.  So, the said loss cannot be taken as the loss as per insurance policy.  The claim was repudiated as per surveyor report and the term and condition of the insurance policy and Indian Motor Tariff Act.  No loss is payable as per insurance policy and there is no question of payment of any compensation.

9.    District Forum vide order dated 24.2.2012 while allowing the complaint observed that :-

“To us, on appraisal of rival contentions, we see no force in the contention of counsel for the Ops which would justify the repudiation of claim because if we go through the Annexure C3, which is a certificate issued by Courtesy Honda, Lally Automobiles Pvt. Ltd., Sales and Service, 117/8, K.M.Milestore, G.T. Road, Madhuban, Karnal and in view of the same, they have certified that ‘Honda City, Vehicle No.HR02A 0059, registered in the name of Cap. Brij Mohan, repaired during 13.7.2010 to 29.10.2010 in our workshop courtesy Honda Karnal for accidental loss arising due to blow suffered by some stones at oil pan.  Copy of repair invoice dated 29.9.2010 is attached.’ Op has not rebutted this document.  He has failed to produce any counter expert report in this regard.  In absence of the same, the observations of the surveyor has no meaning because the surveyor of a company is their paid servant and generally, they favour the company and dance at their tune and the company has not bothered even to produce his affidavit with regard to his observation.  So, we rely the document Annexure C3 and in view of the same, we find it fit to conclude that the accident was on account of damage in the car due to some stones at oil pan leading to the effect of the engine of the car which stood repaired.  So, the claim was wrongly repudiated.

Thus, we treat this complaint as genuine, accept the same and direct the Ops to pay the claim amount of Rs.1,61,277/-  after necessary deductions, if any, as per the insurance cover to the complainant, within 30 days, falling which the complainant shall be entitled interest @ 6% p.a. from the date of filing of this complaint till its realization.

10.    Aggrieved by the order of the District Forum, respondents filed an appeal before the State Commission. The State Commission in its impugned order dated 5.9.2012, while allowing the appeal observed as under :-

     “It is not disputed that complainant was got insured his vehicle with the OP.  The vehicle of the complainant was damaged due to blow suffered with some stones at oil pan and consequently, engine of the vehicle seized.  Surveyor was appointed, who has clearly mentioned in his report that there was no damage to the underneath components. No other evidence has been led in support of contention that the damage to the car was accidental and not on account of mechanical failure. Even otherwise, the engine seized because of leakage of oil, which was certainly mechanical failure.   Surveyor is a mechanical engineer and his opinion is reproduced below :-

“On my survey the front both sides and rear of said car were found intact.  No external accident impact was found as evidence in the enclosed photographs.  Since, the insured had reported that the said car had fell in the ditch.  So, the said car was put and lifted on two post (lift) for underneath inspection.  

On my inspection the underneath parts such as engine protection shield (plastic) suspension arms, oil sump, silencer and pipes etc. were also found in fact as evidence in the enclosed photographs.  The repairer/insured had also not claimed these parts in their estimate.  The engine pulley claimed by the repairer was found intact on my inspection.  The nature and place of damage to cylinder block is not due to external impact.  The damage to cylinder block had caused due to internal impact of connecting rod/rods.  This fact was conveyed to Mr.Jatinder Kumar, Supervisor.  Since, the insured was not available there.  Mr.Jatinder Kumar telephoned the insured and apprised of the situation.  There I had telephonic discussion with the insured and conveyed the above said fact.

1.     As an Automobile Engineer and 35 years of my work experience.  I am of the opinion that due to one of the above stated mechanical failure most probably failure of oil pump had led to seizure of engine resulting in breakage of connecting rod which had internally hit and broken the cylinder block and other engine components.  As on my survey engine bearings were found over heated/engine seizure.

2.    The reported cause of accident given by the insured has not contributed directly or indirectly the above said damages.  The mechanical failure u/s 1 (part 2) loss or damage of Motor Policy state as under :-
(a)    Consequential loss, depreciation, wear and tear, mechanical or electrical breakdown.
Since, the loss is not covered under the policy as stated above so question of assessment does not arise.  Hence the assessment is not given.

The above opinion of surveyor, clearly indicates that damage was due to mechanical failure and not due to external impact.  Keeping in view the facts and circumstances of the case, we are of the view that the District Forum has not considered the case in right perspective.  Hence, the impugned order under challenge is not sustainable in the eyes of law.  For the reasons recorded above, this appeal is accepted, the impugned order is set aside and complaint shall stand dismissed.”

11.    Hence, the revision petition.

12.    We have heard the petitioner in person and counsel for both the parties and carefully gone through the record.

13.    The petitioner is resting his case on the certificate of Lally Automobiles Pvt. Ltd. which reads as follows :-

“TO WHOM WHAT SO EVER IT MAY CONCERN
This is certify that Honda City, Vehicle No.HR-02A 0059, registered in the name of Capt.Brij Mohan, repaired during 13.7.2010 to 29.9.2010 in our workshop courtesy Honda Karnal for accidental loss arising due to blow suffered by some stones at oil pan.  Consequently, seized to engine block. Copy of Repair Invoice is attached herewith.
Thanks & regards,
Authorized Signatory”

14.    Learned counsel for the respondent, however, reiterated that there was no deficiency in service because as per the survey report, there is no evidenced of the accident.  No external accident impact was found as evidence in the photographs which should have supported  the contention that the car had fallen into a ditch which damaged the engine.  On inspection, the underneath parts such as engine protection shield (plastic), suspension arms, oil sump, silencer and pipes etc. were found intact.  The repairer/insured had also not claimed these parts in their estimate.  The engine pulley claimed by the repairer was found intact on the inspection.  The damage to the cylinder block was not due to external impact but due to internal impact of connecting rods. The engine was not covered under the accident policy.      He alleged that the surveyor has not made a correct assessment of the damage to the car.

15.    The petitioner, who was present in person stated that the accident took place on 12.7.2012. He could not explain as to how the vehicle was taken out of the ditch. Further, the petitioner has failed to explain if the vehicle was taken out immediately on 12.7.2010 and how it reached at Lally Automobiles Pvt. Ltd. only on 13.7.2010 at 11.17 a.m.

16.    We find that the certificate placed on record from Lally Automobiles Pvt. Ltd. on which the petitioner has rested his case is not accompanied by the job card of the condition of the car on arrival and repair work to be done and the estimated cost thereof.  The petitioner has also stated that he did not have the job card. It would appear that he neither had a job card nor had he contacted the respondent to inform them about the accident and estimated cost of the repair before getting the work initiated.  The petitioner nowhere in the complaint has given any details as to how the accident took place and how the car fell into the ditch. He has also not given any information as to how it was retrieved from the ditch and the expenses incurred for retrieval and towing of the vehicle to the automobile workshop.  Thus, the petitioner has failed to establish that his car met with an accident and fell into a ditch which caused the engine to seize.  

17.    On the contrary, on perusal of surveyor report, annexure P-4, we find that surveyor on inspection of the installed vehicle found that the underneath parts such as engine protection shield (plastic) suspension arms, oil sump, silencer and pipes etc. were intact. Even, the engine pulley was found intact on inspection. The above observation of the surveyor falsify the claim of the complainant that damage to the engine of car was caused due to blow suffered by some stones at oil pan.

18.    In view of the above, we find nothing wrong with the conclusion of the State Commission that the opinion of the surveyor clearly indicated that the damage was due to mechanical failure and not due to external impact. We agree that the District Forum has not considered the case in right perspective and hence, the order deserves to be set aside.

19.    Hon’ble Supreme Court in Mrs.Rubi Chandra Dutta Vs. M/s United India Insurance Co. Ltd., 2011 (3) Scale 654 has observed :

“Also, it is to be noted that the revisional powers of the National Commission are derived from Section 21 (b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view than what was taken by the two Forums.  The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts.  This is not the manner in which revisional powers should be invoked.  In this view of the matter, we are of the considered opinion that the jurisdiction conferred on the National Commission under Section 21 (b) of the Act has been transgressed.  It was not a case where such a view could have been taken by setting aside the concurrent findings of two fora.”   

20.    Thus, no jurisdictional or legal error has been shown to us to call for interference in the exercise of powers under Section 21 (b) of Act.  Since, the State Commission has given detailed and reasoned order which does not call for any interference nor it suffer from any infirmity or erroneous exercise of jurisdiction or material irregularity. Thus, the present revision petition is hereby dismissed with no order as to cost.