Judgment:
Pritam Pal, President:
1. This appeal by New India Assurance Company, one of opposite parties is directed against the order dated 13.7.2009 passed by District Consumer Forum-I, U.T. Chandigarh whereby the complaint filed by Sh. V.K. Bawa, respondent /complainant was allowed and appellant was directed to pay Rs. 34,956 as compensation and Rs. 5,000 as litigation expenses within thirty days from the date of receipt of copy of the order, failing which appellant was held liable to pay interest @ 12% p.a. with effect from 1.10.2008 (30 days after the report of Surveyor) till its payment.
2. The facts culminating to the commencement of this appeal may be recapitulated thus:
The Maruti car of the complainant bearing registration No. CH03-P-8454 which was insured with OP-1 for the period from 5.7.2008 to 4.7.2009 met with an accident on 12.7.2008 and was got repaired from M/s. Sunil Autos through OP-1 by paying Rs. 49,712 as repair charges. However, the OP Insurance Company passed the claim for Rs. 11,500 on the ground that the loss to the vehicle had occurred due to gross negligence on the part of the insured and reference was made to condition No. 4 of the policy. Feeling aggrieved, complainant filed a complaint with the Insurance Ombudsman but the same was dismissed vide order dated 21.1.2009 without proper application of mind. Hence, alleging deficiency in service the complaint was filed before the District Consumer Forum.
3. On the other hand, the case of O.P. No. 1 before the District Forum was that on receiving intimation from the complainant, Shri Sandeep Sharma, Surveyor was immediately appointed to assess the loss who after examining each fact very carefully observed that water had entered into the engine through air filter of the car due to which it stopped. The insured tried to start the car and because of excess self, consequential loss occurred and 1st number connecting rod had broken due to which engine block had broken which was not payable as the same was in violation of the terms and conditions of the policy. It was pleaded that there was no deficiency in service and prayed for dismissal of the complaint. OP No. 2, however did not appear despite due service, hence, it was proceeded against ex parte.
4. The learned District Consumer Forum after going through the file and hearing the representative of complainant and learned Counsel for OP allowed the complaint as indicated in the opening part of this judgment. This is how feeling aggrieved against the said order, opposite party has come up in this appeal.
5. We have heard learned Counsel for the appellant, representative of respondent/complainant and also gone through the file carefully. The learned Counsel for appellant argued that in the instant case there was violation of condition No. 4 of the policy as it was a clear cut case of culpable negligence on the part of complainant as he allowed the vehicle to be driven himself knowing fully well and foreseeing that there was heavy raining and in the deep sub-merged water it was risky to ply the vehicle. The complainant failed to take reasonable care as expected from a normal person, therefore, it was a case of sole negligence on the part of complainant. He further argued that according to the report of Surveyor the water entered into the engine through air filter of the car and due to which the car stopped. On trying by the complainant to start the car, due to access ignition/self to the car, consequential loss occurred which was not payable under the policy. The other point of argument of learned Counsel for OP was that the Surveyor appointed in the case of complainant recommended the payment of Rs. 11,646 and in pursuant to which Rs. 11,500 had been paid to him, therefore, complainant was not entitled to any other amount as compensation. He argued that the Surveyors report is an important piece of evidence and has to be relied upon. On the other hand, aforesaid points raised on behalf of OP have been repelled on behalf of the complainant.
6. We have given our thoughtful consideration to the above submissions put forth on behalf of the parties. It has been rightly observed by the District Forum by referring the authority of this Commission in Kanta Dhir v. The Manager, ICICI Lombard and Anr., Appeal Case No. 830 of 2007, decided on 24.10.2008, that if a person is going in the car and all of a sudden rain starts and the water accumulates in the intersection and enters the engine or engine is seized then it is not the fault of the insured. Certainly the insurer is liable to reimburse the claim as the owner of the car or driver thereof would never intentionally take the car in deep water to cause damage to its own property. Further the learned District Forum rightly observed that there was no negligence of the complainant or his driver in the instant case and, therefore, the report of Surveyor disallowing the claim of complainant on the ground that it was caused due to negligence of the complainant or his driver was not accepted.
7. In this view of our foregoing discussion, we find no ground to interfere in the impugned order dated 13.7.2009 passed by the District Consumer Forum which is well reasoned and justified. Consequently the appeal fails and same is hereby dismissed, leaving the parties to bear their own costs.
Certified copies of this order be communicated to the parties, free of charge. The file be consigned to records.