ASHWANI KUMAR vs Ford India Pvt Ltd

THERE is delay of 56 days'' in filing this revision petition. The delay is hereby condoned for the reasons stated in the application for condonation of delay, subject to just exceptions.

SH . Ashwani Kumar, the complainant, purchased a car from Ford India Pvt. Ltd., OP1, through M/s. AB Motors (P) Ltd., Patiala, OP2, which is authorised agent of OP1, on 04.04.2006, for a consideration of Rs. 7,21,000/ - Rs.3,500/ - for accessories, taxes, etc., and Rs.24,902/ - as insurance premium. OP2 gave a warranty of 12 months'' of free service.

ON 24.06.2006, when the car had run only about 1426 kms., the complainant realised that it suffered from inherent problems, like, starting trouble, starting of engine with unwanted noise giving intensive smoke from the exhaust. A complaint was lodged with OP2, immediately. M/s. Bhagat Ford, OP3, deputed a Mechanic who checked the car and assured that their Engineers would come back, but they did not turn back. In the evening, the complainant took the car to OP2''s Workshop by towing and informed them that there appears to be a major defect. On 26.06.2006, a casual checking was done by the Service Engineer and the complainant was informed that it would take some time to rectify the defect which had developed in the car. The car was accordingly kept in the workshop. On 26.06.2006, in the evening, the complainant went to take the delivery of the car, but was surprised to see that the engine of the car had been opened, without his consent. Upon his protest, the OP3 refused to rectify /remove the defect on the pretext that flood water had entered into the air filter and had got mixed with the engine oil and blamed the complainant for running the car in flood water. However, the case of the petitioner is that there were no heavy rains during that year. OPs 1 to 4 advised the complainant to file a claim before ICICI Lombard General Insurance Co. Ltd., OP5. The OP5 repudiated the claim of the complainant, vide its letter dated 24.08.2006. Its extract runs, as follows : - "In this connection, we would like to inform you that the losses to your vehicle are consequential losses which are not covered under the above said policy. In view of the above, aforesaid claim is in -admissible and same stands rejected. Company shall not have any liability in respect of captioned subject matter. Please feel free to contact on 0172 -3047012 for any further clarifications".

A complaint was filed before the District Forum with the following prayers : - "It is, therefore, prayed that the complaint may kindly be accepted and the opposite parties be directed either to replace the Ford Car with a new car which is free of defects, with fresh warranty period from the date of replacement or to pay Rs.7,64,132/ - being total cost of car, taxes, insurance premium along with interest and further to pay an amount of Rs. One Lac for business losses suffered by the complainant and also Rs. 50,000/ - for mental agony, harassment and cost".

THE District Forum dismissed the complaint and the State Commission affirmed the same.

WE have heard the counsel for the parties. Learned counsel for the petitioner / complainant admitted that the manufacturing defect does not stand proved. She explained that she should be awarded compensation of the reimbursement of the cost of the vehicle from OP5. She also contended that though no relief has been claimed against OP5 in so many words, but in view of the authority Nagappa Vs. Gurudayal Singh and Ors., 2003 2 SCC 274, wherein it was held that under the M.V. Act, there is no restriction that Tribunal/Court cannot award compensation amount exceeding the claimed amount. However, there lies no rub in granting more compensation but that should be just and reasonable. The Hon''ble Apex Court, at para Nos. 7, 14 and 21, of its judgment , has, however, held as under : - "7. Firstly, under the provisions of Motor Vehicles Act, 1988, (hereinafter referred to as "the MV Act") there is no restriction that compensation could be awarded only up to the amount claimed by the claimant. In an appropriate case where from the evidence brought on record if Tribunal/court considers that claimant is entitled to get more compensation than claimed, the Tribunal may pass such award. Only embargo isit should be ''Just'' compensation, that is to say, it should be neither arbitrary, fanciful nor unjustifiable from the evidence. This would be clear by reference to the relevant provisions of the M.V. Act. Section 166 provides that an application for compensation arising out of an accident involving the death of, or bodily injury to, persons arising out of the use of motor vehicles, or damages to any property of a third party so arising, or both, could be made (a) by the person who has sustained the injury; or (b) by the owner of the property; or (c) where death has resulted from the accident, by all or any of the legal representatives of the deceased; or (d) by any agent duly authorised by the person injured or all or any of the legal representatives of the deceased, as the case may be. Under the proviso to sub -section (1), all the legal representatives of the deceased who have not joined as the claimants are to be impleaded as respondents to the application for compensation. Other important part of the said Section is sub -section (4) which provides that "the Claims Tribunal shall treat any report of accidents forwarded to it under sub - section (6) of Section 158 as an application for compensation under this Act." Hence, Claims Tribunal in appropriate case can treat the report forwarded to it as an application for compensation even though no such claim is made or no specified amount is claimed.

In case, where there is evidence on record justifying the enhanced compensation for the medical treatment which is required because of the injury caused to a claimant due to the accident, there is no reason why such amendment or enhanced compensation should not be granted. In such cases, there is no question of introducing a new or inconsistent cause of action. Cause of action and evidence remain the same. Only Question is application of law as it stands.

For the reasons discussed above, in our view, under the M.V. Act, there is no restriction that Tribunal/Court cannot award compensation amount exceeding the claimed amount. The function of the Tribunal/Court is to award ''Just'' compensation which is reasonable on the basis of evidence produced on record. Further, in such cases there is no question of claim becoming time barred or it cannot be contended that by enhancing the claim there would be change of cause of action. It is also to be stated that as provided under sub -section (4) to Section 166, even report submitted to the Claims Tribunal under sub -section (6) of Section 158 can be treated as an application for compensation under the M.V. Act. If required, in appropriate cases, Court may permit amendment to the Claim Petition".

LEARNED counsel for the complainant argued that this Commission is not debarred from passing any order against OP5 which is a necessary party and allegations have been made against it as well, vide para No.7, of the complaint, which reads as under : - "7.That the complainant approached the opposite party No.1 to 4 number of times on phone as well as by visiting personally to look into the matter and solve the problem, but they showed their inability and suggested the complainant to file the claim with Insurance Co. The complainant has constrained to lodge the claim with the Opposite party No.5 and consequently they deputed their surveyor/ engineers. The opposite party no. 5 vide letter dated 24.08.2006 refused to pay the claim on the ground that consequential damages are not covered under the policy. During processing the claim, opposite party no. 5 got signature of complainant on some blank papers/forms to be filled by them later on".

THE counsel for the petitioner/complainant further contended that sufficient evidence is produced against OP5.

NOW , we turn to the evidence of OP5. The evidence produced by the party is this. The report filed by Bhagat Ford, OP3, is crucial. It was prepared on 26.06.2006, at 10.AM. It mentions, as under : - JUDGEMENT_22_LAWS(NCD)3_2015.htm 12. It is also notable that the complainant, of his own, appointed a Surveyor, on 24.06.2006, at his own cost. He was appointed after about one year of the incident, i.e. on 04.05.2007. He found no manufacturing defects. The extract of the report of Sh. Chander Shekhar, Surveyor, Loss Assessor, Investigation and Valuer, is reproduced here, as under : - "Nature of loss / Technical version : From the above given and reported history of occurrence of the resulted mishap, giving due consideration and accountability to the physical inspection and examination of the said vehicle by the undersigned, it has been evident that the loss and damage to the Engine of the said vehicle took place due to HYDRO STATIC LOCKING out of inundation forming an easily accessible pool of rainy water, passed through by other vehicles. Therefore, the very extent and nature of loss has nothing to do with the CONSEQUENTIAL LOSS, thus, stands very much indemnifiable under the terms of the issued and effective insurance policy by the insurers named M/s.ICICI Lombard General Insurance Ltd".

It is further observed in the said report, as under : - Note: In my opinion, the concerned insurance company have wrongly declared and rejected the said claim stating the very loss as "CONSEQUENTIAL LOSS" under the terms and condition of the issued and effective insurance policy, because the consequential loss means indirect financial loss to the party due to accident/breakdown of the said car and not at all of the said car in any way". "12.8 Therefore, the damages so sustained and developed to the Engine assembly have been due to action of the external force by means of the "HYDROSTATIC LOCKING" which stands to be indemnified under the terms and condition of the insurance policy instead of rejecting the claim under the irrelevant declaration of the "Consequential Loss". Further, its consolidated conclusion, runs as follows : - "CONSOLIDATED CONCLUSION Taking into view the observation, notification and explanation Given under the afore going paras, in my opinion, it is certified that the said vehicle developed and sustained damages to its Engine Assy. , due to "Hydrostatic Locking" resulted out of sucking of water from the inundated pool of raining water, which has been very much indemnifiable under the terms and condition of the issued and effective insurance policy of the concerned Insurance Company. But the concerned Insurance Company rejected the claim on the basis of declaration of the "CONSEQUENTIAL LOSS" being not covered by this issued insurance policy, which has been a declaration out of place and irrelevant to the cause and nature of loss. Resultantly, the solution to the subjecting problem delayed for such a long time which contributed to the irretrievable physical and functional performance of the said car and in case it would be reconditioned by replacing its Engine Assy. with new one, it would not match to the similarity and Performance in corresponding terms of technical parameters of two months and twenty days old brand new car. Hence the Insured/Registered owner deserves the right to obtain the total cost of the vehicle in question. Rest is to be dealt and decided by the competent authority of the honourable court of law in their procedural and legal network".

THE learned counsel for the complainant submitted that under these circumstances, there is no manufacturing defect, yet, there is sufficient evidence against the insurance company. She contended that the reimbursement amount should be ordered against the insurance company. 15. We are unable to locate any substance in these arguments. First of all, it is clear that the petitioner has not come to the Commission with clean hands. The petitioner did not disclose that he had run the vehicle in the water. However, the report mentioned above including the survey report, bellied his contention. The petitioner has been very economical with the truth. He is keeping the real facts under the hat. It is, thus, clear that he has driven the vehicle in the water which was deep up to 21/2 ft., at his own peril. He should have stopped the car instantaneously and should not have gone inside the water. 16. Our attention was invited towards the copy of the Owner''s Manual, pertaining to Ford Fiesta, where, under the Heading General Points on Starting, it is mentioned as under : - "If your stationary car is submerged up to or over the bumper Contact your authorised Ford Dealer immediately. Do not attempt to start the engine, if the car is flooded".

Now, we turn to the warranty service guide. This copy was placed on record. Its relevant paras, which are germane to the present case, are reproduced here, as under : - "8. Any claim attributable to failure to follow the vehicle manufacturer''s operating guidelines (located in this manual) or mechanical failure attributable to exceeding the manufacturer''s operating limitations. 23. Any defects caused by negligence, abnormal use or insufficient care or the use of spurious parts. 24. Loss or damage resulting directly or indirectly from all the external causes such as accidents, bad weather, fire, theft, or attempted theft, collision, freezing or heat. This warranty will cease to operate and no claims will be accepted where the vehicle :

Has not been operated in accordance with the operating instructions in Owners Guide or is being used for a purpose for which it was not designed".

The State Commission was pleased to hold at para Nos. 3 and 15, as follows : - 3. xxxx A technician was sent to the site by opposite party No.2, who found that the car was struck in water, which was above the knee level and they had to push the car out of the water and towed the same to the workshop. It was found that the car had been driven through water and, therefore, could not start. Consequently, to assess the damage, the air filter and cylinder head cap were opened and it was found that there was water in the air filter and the engine compartment. The car had suffered from hydro locking and a job card was duly drawn up in which that diagnose was noted. The same happened on account of the driving of the car through deep water. If the car is driven through such a deep water, impurities along with water enter the engine thereby causing misfiring of the cylinders leading to the seizing of the engine itself. "15. Proceeding on the aforesaid premise we partly allow the appeal by directing the appellant to pay the insured amount of the vehicle less 5% by way of depreciated value and pay lump sum compensation of Rs. 20,000/ -, which shall include cost of litigation also. Respondent shall complete all the formalities for transferring the vehicle in the name of the appellant within one month from receipt of this order".

Regarding the report of the complainant''s surveyor, the State Commission, commented, at Paras 9, 10 and 11 of its judgment, as under : - "9. . The District Forum did not commit any error by dismissing the complaint against opposite party No.5 on the ground that no relief was claimed against it. The complainant has based his claim on the ground that there was inherent manufacturing defect and had prayed for the replacement of the car by other opposite parties and in the alternative, had asked for the refund of the total amount, including the insurance premium. When he is asking for the refund of the insurance premium itself, how does it lie in his mouth to allege that the findings recorded by the District Forum dismissing the complaint against opposite party No.5 is not correct. There is no ground for upsetting that finding. 10. It is very much clear from his complaint that he never came up with the plea that the car developed defect after it was passed through deep/flood water and rather he denied that fact by pleading that opposite party no.3 refused to rectify the defect on the false pretext that the flood water had entered the car. Xxxxxx It is mentioned in his report that a wrong statement was made by the repairer because inundated rainy water intruded into the engine assembly not due to deep water level up to knee or two feet level but for about one foot, thus, which resulted the hydrostatic locking of the engine. When it is the case of the complainant himself that he had not driven the car through water and there is no evidence about the deepness of the water, then how can this surveyor mention in his report about the level of the water through which the car was driven resulting into the seizing of the car itself.

The claim made by the complainant to opposite party No. 5 was repudiated on the ground that the loss to the car was a consequential loss which was not covered under the policy. If the complainant relies upon the facts stated in the complaint, then opposite party No.5 cannot be made liable as, according to him, there was inherent manufacturing defects in the car, which resulted in the damage to the engine. In case the story developed by him during the course of arguments before us is to be taken into consideration, then opposite party No.5 cannot be made liable as it was the consequential loss and the claim was correctly repudiated on that ground. It was rightly submitted by the learned counsel for opposite party No.5, during the course of arguments, that no relief can be granted against opposite party No.5 as the complainant never asked for any direction against that opposite party in the complaint".

IT is, thus, apparent that the complainant has made a vain attempt to make the bricks without straw. He cannot take advantage of his own negligence. He did not act as a prudent person and is responsible for the damage caused to himself. The complainant / petitioner has no bone to pluck with the OPs and as such, the revision petition is dismissed.