United India Insurance Co. Ltd. vs SEEMA BHARGAV

THIS appeal under Section 15 of the Consumer Protection Act, 1986 is directed against the order dated 18.9.2002 in Complaint Case No. 156/2002 of the District Consumer Disputes Redressal Forum, Raipur (hereinafter called as ''District Forum'' for short) whereby compensation of Rs. 36,986/- with interest @ 9% per annum thereon, has been awarded.

RELEVANT facts now no longer in dispute are : that the complainant/respondent herein is the owner of Fiat Car bearing Registration No. MP-23-L-3938. It was comprehensively insured by the complainant/respondent with the appellant/insurer for the period from 15.12.2001 to 14.12.2002. It is also not in dispute that on 12.1.2002, the said car met with an accident on Nagpur-Wardha road and dashed against stone due to which its oil chamber got damaged. According to complainant/respondent the said accident had occurred in mid-night. He brought the car to about a distance of 10 to 12 kms. away to Nagpur, whereafter it was brought back to Raipur by trochen, through G.R. Motors, the authorised dealer. Initially, estimate of Rs. 6,924/- was given by the authorised dealer for repairs of the vehicle. However, actual expenditure in repairs was to the tune of Rs. 32,098/-. The complainant intimated about the accident to the appellant/insurer on 16.1.2002. The Surveyor of the appellant estimated the expenses in repairs amounting to Rs. 5,961/-, while the appellant allowed claim of Rs. 4,400/- only, towards repairs. The complainant claimed in his complaint that compensation of Rs. 36,986/- with interest, etc. be awarded.

The complaint as above was resisted by the appellant/insurer. According to the appellant, the vehicle should not have been driven after the accident. It was averred that since the vehicle was driven after the accident, while the oil had leaked out from the chamber, the engine got damaged and seized. It was submitted that there was consequential loss to the vehicle on account of the negligence on the part of the complainant''s husband in driving the vehicle after accident. It was averred that as per terms of policy appellant was not liable to make good consequential loss.

THE learned District Forum found that the appellant has not proved that the damage to the engine was due to consequential loss. It was further held that since the complainant/respondent had spent Rs. 36,986/-, he is entitled to recover the same from the appellant, compensation to the above extent was accordingly awarded. Learned Counsel for the appellant/insurer during arguments laid great emphasis on the fact, that the complainant/respondent who was driving the vehicle, should have been careful enough and should not have driven the vehicle after it met with an accident. Having done so, he caused further damage to the engine which can only be termed as consequential loss. The appellant cannot be saddled with the liability of consequential loss in terms of condition No. 4 as contained in the insurance policy. It was further urged that no affidavit or receipt of trochen of the vehicle from Nagpur to Raipur has been produced by the complainant/respondent. It has, therefore, been submitted that the vehicle in all probability was driven right from the spot of the accident which was beyond Nagpur to Raipur. Learned Counsel for the appellant, therefore, urged that the appellant is only liable to reimburse Rs. 4,400/- as assessed by its Surveyor and not the whole cost of the repairs as awarded by the learned District Forum.

LEARNED Counsel for the respondent submitted that the complainant''s husband was driving the vehicle at the time of accident which took place at about mid-night. Therefore, the complainant''s husband took all precautions to bring it safely to Nagpur, the nearest point where he could expect assistance for its repairs. He, thereafter, intimated to his dealer at Raipur about the accident, who made arrangements for bringing the car by trochen to Raipur. The appellant/insurer was thereafter intimated about the accident. It appointed Surveyor and on the instructions of the Surveyor, the dealer of the car repaired the car in its workshop. The damage caused to the engine was also repaired. It was submitted that there was no negligence on the part of the husband of the complainant and that the damage to the engine could not, therefore, be treated as consequential loss. It was further submitted that the learned District Forum was justified in awarding compensation for the cost of repairs as incurred by the complainant. In view of rival contentions as above, the main question that arises for consideration is : as to whether the damage to the engine could be termed as consequential loss ? Undisputedly, the vehicle was comprehensively insured. Copy of the policy document is placed on record. Condition No. 4 thereof provides that the insured would take all reasonable steps to safeguard the motor car from loss or damage. It is further provided in the same clause that in the event of any accident or breakdown, the motor car shall not be left unattended without proper precautions being taken to prevent further damage or loss and if the motor car is driven before the necessary repairs are effected any extension of the damage or any further damage to the motor car shall be entirely at the insured''s own risk. It would, therefore, appears that in case of accident, the insurer was expected to take due precaution and should not have left the car unattended and should have taken all steps to prevent further damage to it.

AS noticed earlier, the accident took place in the late hours of night, at a far away place near Nagpur on Wardha road at a distance of about 8 to 10 kms. from Nagpur. It further appears from the complaint that the complainant''s husband alone was in the vehicle and was driving it. It also appears that on primary inspection after the accident, he did not find any major damage and also did not notice the leakage of oil. AS mentioned above, Nagpur was about 8 to 10 kms. and the complainant''s husband brought the vehicle back to Nagpur whereafter he took steps to intimate the dealer at Raipur who arranged to bring it by trochen with the help of another vehicle to Raipur. The action as above, appears to be just and normal reaction of a complainant''s husband. Had he left the vehicle on the spot of accident the vehicle would have remained unattended, in the night in the highway. It was, therefore, prudent to take it back to the nearest spot at Nagpur which was about 8 to 10 kms. from the place of accident. Being alone and on feeling prima facie satisfied that there was no leakage of oil after the accident, the action as above by the complainant''s husband does not appear to be unreasonable. Had the vehicle been left unattended and had it met the eventuality of getting damaged, the insurer would have possibly taken a plea that reasonable precaution for its due attendance was not taken. Since the complainant''s husband felt that it was a better alternative to take back the vehicle to Nagpur especially on finding that there was no apparent damage which might result in further loss to the vehicle, the option exercised as above, could only be treated that of a prudent man exercising reasonable care and caution.

WE are, therefore, unable to accept the submission of the learned Counsel for the appellant/insurer that the vehicle ought to have been left on the side of the road at the spot of accident by the complainant''s husband. It was also tried to be urged by the learned Counsel for the appellant/insurer that the vehicle was driven from the spot of accident to Raipur. However, there is no averment in that regard in the reply to the complaint, nor there is any material placed on record, to support the contention as above. In fact, from the reply of the appellant, it appears that they did not controvert the averments of the complainant that the vehicle was only driven up to Nagpur, and brought back to Raipur by trochen. This is also supported by the bill given to the complainant regarding repairing charges, etc. by the authorised dealer of the car.

The discussion, as above, clearly shows that there was no lack of care and caution on the part of the complainant husband who was driving the vehicle. It is also not in dispute that the sum of Rs. 36,986/- was spent by the complainant in the repairs of the car as it would be clear from the bill dated 4.2.2002 of G.K. Motors, the authorised dealer, copy of which is on the record of the District Forum. The learned Counsel for the appellant submitted that some reduction towards salvage and depreciation should have been made from the bill. It may be noticed that no such plea was raised by the insurer in its reply. However, considering the contentions, it appears to us just and proper to allow compensation to the extent of Rs. 32,000/-, which would be adequate compensation for the loss sustained by the complainant/respondent.

ACCORDINGLY, the appeal is partly allowed and the order of the District Forum is modified. Instead of the amount awarded by the impugned order, it is directed that an amount of Rs. 32,000/- would be payable with interest @ 9% per annum thereon from the date of filing of complaint till payment thereof. In the circumstances of the case, parties shall bear their own costs of this appeal. Appeal partly allowed.