New India Assurance Co. Ltd. vs D. RATHNAPANDI

THIRU Justice A. Raman, President-The complainant made a claim to the opposite party with reference to his new Ambassador Car No. TN-72-1782 which was used as a tourist taxi on the ground that it met with an accident and, therefore, the Insurer is liable to compensate the complainant.

THE opposite party repudiated the claim stating that the damage to the vehicle was caused only due to mechanical breakdown and not due to any accident and that the failure of engine had taken place due to failure of the cap bolt of the third connecting rod and that it is not due to any external act that the damage to the vehicle had happened and, therefore, the Insurance Company is not liable. The lower Forum directed the opposite party to pay a sum of Rs. 22,661/- towards repair charges and also to pay a sum of Rs. 1,000/- as damages and Rs. 1,000/- as cost. Hence the present appeal.

The complainant''s case is that on 9.2.1992 an accident took place when the vehicle was proceeding on the Sankarankoil Taluk-Shanmuganallur Road where a person suddenly darted across the road and the driver in order to avoid accident turned the wheel to the left and at that time the bottom part of the vehicle came into contact with a stone against which it dashed and the crank case and the engine were totally damaged.

THE only point to be determined is : Whether the cause of damage was an accident or mechanical failure? THE policy provides that the Company will not be liable for consequential loss, depreciation, wear and tear, mechanical or electrical breakdowns, failure or breakages. Thus if it is shown that it was not a damage caused by an external factor, viz., due to an accident but it was caused by a mechanical breakdown, then the complainant would be out of Court. THE complainant had produced photographs of the crank shaft and the main shaft. But in the complaint, it is stated that there was a stone against which the underside of the vehicle dashed with force and as a result of which the crank case and engine were totally damaged. THE photographs which have been marked as Exhibit B2 do not show any damage to the crank shaft. THEse photos were taken on 13.2.1992 and the accident was on 10.2.1992. If really the accident had happened in the manner alleged, then, one would find damages in the crank shaft and not on the underside of the vehicle. THE Surveyor has stated that the bottom of the oil sump was alleged to have been damaged with a dent by reason of hitting a stone and that when he examined it he did not find any sign of scratch or abrasions at the bottom surface of the oil sump. He also did not find any scratching of paint. THErefore, he concludes that the dent was not a fresh one and should have occurred some time long before the claim period. He has further pointed out that the nature of the dent on the sump also revealed that vertical static force should have acted over it rather than a longitudinal dynamic force which would have created a shearing effect over the sump. He has also stated that he did not find any oil starvation which would show that the failure of the engine was spontaneous and sudden. He has also stated that the nature of damage to the connecting rod cap and bearing indicated that they had flown off from the connecting rod assembly during the failure of the engine. THE damaged connecting rod bolts also revealed necking which is a phenomenon that takes place when the material is loosing its tensile strength. Thus the Surveyor has stated that it was a mechanical breakdown. THE second surveyor appointed has also noted that there was only a fresh trace of stone hitting mark in the sump and there is no damage to the paint and the 3rd connecting rod bolt cut and bearing cap and bearing had come away in damaged condition and that this failure is only due to mechanical breakdown and not due to any accident. In this connection, the complainant''s Driver has been examined. He has stated that when proceeding on the Shanmuganallur Road, a cyclist came from the other side and crossed the road and, therefore, with a view to avoid hitting him, he turned the vehicle to the left side and while turning so, the vehicle hit against a milestone and on account of hitting, the crank case was damaged and the vehicle is damaged. But on the other hand, in the complaint, it is stated that a person suddenly darted across the road and, therefore, the driver had to turn the vehicle to the left and there was a stone against which the underside of the vehicle had hit resulting in damage to the crank shaft. But the complainant''s witness has spoken to a completely different version. THE cyclist is not mentioned in the complaint. THE milestone is not mentioned. Whereas we find those developments in the witness of the complainant. According to the complainant''s witness, the vehicle was on hire on that day and was taking passengers and that 4 persons belonging to Sankarankoil had engaged it for going to hospital at Tirunelveli and a sum of Rs. 450/- was fixed as hire charges. Nothing is mentioned about it in the complaint. THE trip sheet is also not produced. He admits that the Surveyor inspected the damage to the vehicle in his presence. THE Surveyor has been examined. He has spoken to what he has noted at the inspection of the vehicle on 17.2.1992 and that when he went there how certain parts were dismantled. THErefore, the above circumstances would go to show that there is nothing to show that the accident took place as alleged by the complainant and in that accident damage had occurred. If the vehicle had dashed against a milestone, there would have been damage at the front side of the vehicle viz., on the bumper, but that is not the case of the complainant. Thus the manner as alleged about the accident creates lot of doubts and suspicion. THEre is variation between the complaint and the complainant''s witness. Certain material facts are not stated in the complaint. THE trip sheet is not produced. THErefore, in the circumstances, it is not possible to conclude that the damage had occurred as a result of an accident as alleged by the complainant. On the other hand there are materials to show that it could not have taken place in the manner alleged by the complainant. THErefore, in such circumstances, we have no hesitation in setting aside the order of the lower Forum. We are of the view that the damage is not the result of an accident but due to mechanical failure and, therefore, the opposite party is not bound to accept the claim. In the result, the appeal is allowed, but in the circumstances there will be no order as to costs. The order of the lower Forum will stand set aside. Consequently the complaint will stand dismissed. No costs. Appeal allowed.