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Judgment
The present revision petition has been filed against the judgment dated 03.01.2013 of the Himachal Pradesh State Consumer Disputes Redressal Commission, Shimla (''the State Commission'') in First Appeal no. 99 of 2012.
The facts of the case as per the respondent/ complainant are that the respondent was the owner of a Tipper, which was insured with the petitioner for the period from 13.08.2009 to 12.08.2010. The respondent intimated the petitioner that the tipper had been parked on the night of 10 th June 2010 when there was heavy snowfall. The respondent tried to start the vehicle, its engine burst suddenly. The bursting of the engine was caused due to freezing due to snowfall and low temperature. The petitioner deputed a spot surveyor and also a final surveyor. The final surveyor assessed the loss at Rs.1,03,321/-. However, the petitioner has reported that the damage to the engine was due to mechanical failure and this loss was not covered under the policy. On the basis of this report, the petitioner repudiated the claim.
Aggrieved by the repudiation of his claim the respondent filed a complaint, under Section 12 of the Consumer Protection Act, 1986, which the petitioner contested on the same ground, on which the claim had been repudiated. The District Consumer Disputes Redressal Forum, Kullu, Himachal Pradesh (''the District Forum'') dismissed the complaint holding that the damage to the engine was caused by mechanical failure and not due to any external cause and hence the petitioner was not liable.
Aggrieved by the order of the District Forum, the respondent/ complainant filed an appeal before the State Commission. The State Commission while allowing the appeal observed as under:
" 8. A number of newspaper cuttings were placed on record by the appellant in support of his plea that heavy snowfall had taken place in Lahoul & Spiti area. Such newspaper cuttings are available at pages 50-61 of the record of District Forum. The cuttings are from various newspapers, bearing dates from 1th June, 2010 to 22 nd June, 2010.
Report was lodged by the appellant with the police on 21 st June, 2010, copy of which is available at page-36 of the record of District Forum. This report was lodged subsequent to the lodging of the claim with the respondent, which is Annexure R3, page-74. Both in the police report and the claim form it is stated that the damage was caused to the engine when the driver tried to start the vehicle on 10 th June, 2010 in the morning. Similar version was given to the spot surveyor by the driver of the appellant when he visited the spot, as is made out from the report of that surveyor, which is Annexure R5. The spot surveyor, who is a Mechanical & Automobile Engineer, as per his qualification mentioned on the top of the report, did not say anywhere in the report that the mechanical failure of the internal parts of the engine was due to any reason, other than the freezing of the engine, as claimed by the driver engaged by the appellant.
However, the final surveyor though opined that the engine was damaged due to mechanical failure resulting from extra fatigue to the engine in tribal area, yet he did not deny that the engine failure was due to the low temperature of the area and also he did not give any reason for his observation that the mechanical failure might be the outcome of extra fatigue. In any case, this is a possibility, which he has stated in his report and not a definite opinion, as is clear from the language employed by him while reporting on this aspect.
11 . Now the fact that heavy snowfall had taken place in the area where the vehicle was parked on the evening of 9 th June, 2010, as also the fact that the earliest version, which was given by the driver of the vehicle to the spot surveyor, says that the engine failed when on 10.06.2010, after the snowfall in the night, he (the driver) tried to start the vehicle, when seen in the light of the surveyor''s report, suggest that the cause of engine failure was not extra fatigue, but the low temperature in the area. This is particularly so when the spot surveyor does not say in the report that the cause of engine failure could not be the one as narrated by the driver and the final surveyor has also not given definite opinion, but has simply stated that extra fatigue in tribal area might have been the cause of engine failure.
Policy, vide clause 1(e) of Section 1, covers the damage caused by frost. The clause reads as under:-
"The Company will indemnify the Insured against loss of or damage to the Motor Vehicle and/or its accessories whilst thereon:
(a) to (d) xxx xxx xxx xxx
(e) by flood typhoon hurricane storm
inundation cyclone hailstorm frost.
(f) to (j) xxx xxx xxx xxx"
As a result of the above stated position, we allow the appeal and set aside the impugned order. Consequently, complaint is allowed and the respondent is ordered to pay Rs. 1,03,321/-, which has been assessed as loss to the vehicle by the respondent''s own surveyor, with interest at the rate of 9% per annum from the date of the complaint to the date of the payment of the aforesaid amount of money, and also to pay litigation expenses quantified at `5,000/-However, in view of the peculiar facts of the case nothing is awarded by way of extra compensation".
Hence, the present revision petition.
I have heard the learned counsel for the parties and have also gone through the record.
Learned counsel for the petitioner has contended that the State Commission had passed the order by ignoring the facts that the survey report had clearly indicated that the damage to the vehicle was not due to an accident but due to mechanical failure of the internal parts of the engine. This was due to fatigue, wear and tear of the engine. Counsel for the respondent on the other hand has contended that the tipper had to be parked at a place called Dalang in Lahaul and Spiti District, since there was heavy snowfall on 10.06.2010. When the driver tried to start the vehicle something broke from the engine. This was due to the extreme freezing cold and due to heavy snowfall and low temperature.
The spot surveyor Mr Sanjay Vaidya in his survey report has stated that on checking the vehicle it was found that the connecting rod was broken and due to the impact of the connecting rod its engine block developed a big hole. Mr Mohinder K Sharma in his final survey report has also concluded that on checking the vehicle it was observed that the connecting rod had broken which further broke the engine cylinder block and damaged the engine. There was no outward accidental damage, hence, this could not be termed as accidental loss. It was a mechanical failure and due to fatigue, wear and tear of the engine. He further concluded that "during the survey it was observed that the loss have taken place due to mechanical failure which may be the outcome of extra fatigue to engine in the tribal area. There was no out ward damage by any of the external means, hence, in my opinion the insurance policy terms and conditions, the insurer are not liable for the loss/ damage due to mechanical failure".
It is seen from the policy and its terms and conditions that the policy is a commercial vehicle. The policy covers - Section 1 - Loss of or damage by flood, typhoon, hurricane, storm, tempest, inundation cyclone, hailstorm, frost.
It is an admitted fact that there was heavy snowfall on 09.06.2010 and hence, the driver was forced to park his vehicle at village Dalang in Lahaul and Spiti. On the next day, the driver of the aforesaid vehicle wanted to move the vehicle to a nearby place and tried to start the engine, when the engine got damaged due to the freezing temperature.
From the records it is apparent that the said tipper was purchased on 29.08.2007 whereas the incident took place on 10.06.2010, hence, the vehicle was not even three years old. Both the surveyors have concluded that the connecting rod had been broken when the vehicle was started and damaged the engine. They have stated in their reports that the damage may be due to mechanical failure which may be because of fatigue, wear and tear of the internal parts of the engine. They have not given any evidence to support that it was indeed mechanical failure due to metal fatigue and wear and tear of the connecting rod. No efforts have been made to establish why the connecting rod had broken particularly when they must be aware that the vehicle was less than three years old and the damage had occurred when the vehicle had been parked due to heavy snowfall in extreme low temperature. As mechanical and automobile engineer they had to be aware of the effects of temperature on metal toughness which can be critical in many cases because the metal becomes brittle at very low temperature. Tests could have been conducted to establish the exact cause of the breaking of the connecting rod.
In view of the above, the State Commission has correctly arrived and concluded that even if there was a mechanical failure it was due to freezing cold and frost, hence, the same is covered under the policy. The petitioner, has failed to give any definite expert opinion of evidence to establish that the mechanical failure was due to metal fatigue and wear and tear of the connecting rod and not the low temperature and frost.
In view of the discussion above, I find no jurisdictional error or material irregularity in the impugned order which may call for interference in exercise of powers under section 21 (b) of the Consumer Protection Act, 1986. Revision petition is, therefore, dismissed with no order as to costs.