MANU/CF/0533/2015

Equivalent Citation: III(2015)CPJ198(NC)

IN THE NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION

NEW DELHI

Revision Petition No. 3584 of 2013 and IA/639/2013

Decided On: 09.03.2015

Appellants: Ashwani Kumar

Vs.
Respondent: Ford India Pvt. Ltd. and Ors.

Hon'ble Judges/Coram:
J.M. Malik, J. (Presiding Member) and Dr. S.M. Kantikar, Member

Counsels:
For Appellant/Petitioner/Plaintiff: Anupam Raina, Advocate

For Respondents/Defendant: Dhruv Wahi, Advocate

ORDER

J.M. Malik, J. (Presiding Member)

1. 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 authorized agent
of OP1, on 4.4.2006, 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.

2. On 24.6.2006, when the car had run only about 1,426 kms., the complainant
realized 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 26.6.2006, 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 26.6.2006, 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.

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3. The OP5 repudiated the claim of the complainant, vide its letter dated 24.8.2006. 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".

4. 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."

5. The District Forum dismissed the complaint and the State Commission affirmed the
same.

6. 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 reported in
Nagappa v. Gurudayal Singh & Ors., MANU/SC/1107/2002 : VII (2002) SLT 101 : III
(2003) ACC 766 (SC) : (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 (supra), 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 is it 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 authorized by the

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 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.

14. 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.

21. 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."

7. 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 Nos. 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 Company. 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 24.8.2006 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."

8. The Counsel for the petitioner/complainant further contended that sufficient

evidence is produced against OP5.

9. 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 26.6.2006, at 10
a.m. It mentions, as under:

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10. There is noting by the complainant as well, at the foot of the document, which
runs, as follows:

11. It is also notable that the complainant, of his own, appointed a Surveyor, on
24.6.2006, at his own cost. He was appointed after about one year of the incident, i.e.,
on 4.5.2007. 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 identifiable under the terms
of the issued and effective insurance policy by the insurers named M/s.
ICICI Lombard General Insurance Ltd."

12. 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

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 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 aforegoing 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 identifiable 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."

13. 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.

14. 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 2 1/2 ft.,
at his own peril. He should have stopped the car instantaneously and should not have
gone inside the water.

15. 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."

16. Now, we turn to the warranty service guide. This copy was placed on record. Its

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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:

1. 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."

17. 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."

18. 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

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 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.

11. 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.

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