(1.) ONLY question involved in this complaint is, as to who is liable to indemnify the complainant in the facts and circumstances as set out in the complaint. It is admitted case of the parties that opposite party (OP) No. 3 is the manufacturer of the Logan Car K7MPS GLS 5 SM BAG AIR(Car) (Sedan . Its dealer is OP No. 2. This Car was admittedly purchased by the complainant on 29.2.2008 from OP No. 2 and was insured with OP No 1. Again it is not in dispute that on 3.3.2008 when the complainant was travelling from his New Shimla office to his residence, near Ayurvedic Hospital, Chhotta Shimla, he noticed in the rear view mildsmoke coming out of the Car. He inspected the same and found that the Car had caught fire. With a view to get some water, according to the complainant, he went to nearby Ayurvedic Hospital so that fire could be extinguished but nobody was available there. He claims to have sought the help of passers -by but his efforts went in vain with the result that the entire car was engulfed in fire. Fire Brigade came and extinguished the fire. The entire Car had been burnt. Complaint was also lodged at Police Station, Chhotta Shimla. Vehicle having caught fire is also certified by the Fire Department. In this background, claim was lodged by the appellant with the dealer OP No. 2 as well as with the OP No. 1. As the Car had been gutted in the fire, same being insured with the OP No. 1, therefore, the complainant asked the Insurance Company to indemnify him.
(2.) OP No. 1 got the spot survey done from Shri Mohinder K. Sharma and his report is Annexure R.4. He opined that since the fire had taken place within 4 days of its purchase, as such it was the outcome of manufacturing defect in the vehicle/its components, like warring (wiring harness or fuel pump. Final survey of the vehicle was got done by OP No. 1 from Shri Girish Sharma. He recommended the settlement of case on total loss basis. But at the same time he also remarked, that as the fire had occurred from rear side and the same was due to manufacturing fault as per the report of Shri Mohinder Sharma (who had carried out preliminary survey) and also as per investigation report of Shri Kamal Narain, Investigator, the loss had occurred due to its (manufacturer s) fault, so the complainant should recover the amount from the manufacturer, as the Car was purchased on 29.2.2008 and loss occurred on 3.3.2008, he also observed in his report that that he had a telephonic talk with Shri Pranav Bhardwaj, Service Engineer of Mahindra and Mahindra, but he gave no comment on the cause of loss. As the loss occurred within 4 days of issuing the cover note and falls within close proximity so according to Shri Girish Sharma, Surveyor, the matter needs to be got investigated. Per him the liability on total loss basis works out to Rs. 4,68,775, less wreck value. In this context it may be appropriate to mention that the vehicle was purchased by the complainant for Rs. 4,94,501. This position was not disputed again between the parties, and it was insured in the sum of Rs. 4,71,000 as per Annexure R.1, the insurance policy.
(3.) WHEN claim was, not settled, present complaint was filed. It has been seriously contested by OP No. 1 on one side, and OP Nos. 2 and 3 on the other. As already observed, according to OP No. 1, it was not liable for making payment of any amount, because the complainant has no cause of action against it. Further according to it, cause of loss is due to fire, and it was the outcome of manufacturing defect in the vehicle. Thus, liability is that of the manufacturer. Further according to this OP, as pleaded in the written submissions that loss was not caused by the insured peril and the same is not covered under the policy, as such no claim was entertainable. Alternatively, it is pleaded that without in any manner admitting liability, at best it is liable to pay only Rs. 4,68,775 less wreck value on total loss basis subject to right of subrogation and transfer of the vehicle in its favour, being duly executed. With a view to advance its case, Mr. Bhasin learned Counsel for OP No. 1 also laid much emphasis on the terms and conditions of Private Car Package Policy Annexure R.1. In terms of Clause (1) of Section 1, the Company had undertaken to indemnify the insured (the complainant), against loss or damage to the vehicle insured and/or its accessories whilst thereon, by fire. However, by referring to the opening part of the terms and conditions, Mr. Bhasin submitted that his client would only be liable in respect of accidental loss or damage caused during the period of insurance and according to him, accident has to be given its literal meaning. He also pressed into service Clause 2 of the above section which deals with exclusions, thus per him, his client is not liable to make any payment in the present case. For ready reference, this Clause (2) is extracted hereinbelow: The Company shall not be liable to make any payment in respect of
(a) consequential loss, depreciation, wear and tear, mechanical or electrical breakdown, failures or breakages
(b) damage to tyres and tubes unless the vehicle is damaged at the same time in which case the liability of the company shall be limited to 50% of the cost of replacement.
(c) Any accidental loss or damage suffered whilst the insured or any person driving with the knowledge and consent of the insured is under the influence of intoxicating liquor or drugs."
We are sorry to observe that on one hand, OP No. 1 had undertaken to cover the loss caused by fire, how and in what manner exclusion clause above extracted is attracted to the facts of the present case, learned Counsel for OP No. 1 was unable to satisfy us. Faced with this situation, Mr. Bhasin tried to make capital out of the affidavit of Mr. Prashant Jadhav, Ex. OPW,3, and the report given by him which is a part of his affidavit. According to his findings, any such conclusion that fire happened due to electric short circuit or any electrical malfunctioning or any manufacturing defect was absolutely ruled out. His further finding is that it could be a possibility that fire started due to some external burning of something kept in the boot or something got stuck to the rear of the Car. There was no sign or any evidence to suggest that the cause of fire was due to electrical short circuit or any malfunctioning in any system or any manufacturing deficiency whatsoever. He also relied upon the cross -examination of this witness during the course of proceedings.;