STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA
Date of Institution: 03.12.2018
Date of final hearing: 12.09.2023
Date of pronouncement: 20.11.2023
First Appeal No.1342 of 2018
IN THE MATTER OF:-
The New India Assurance Company Limited, Gurudwara Road, Gurugram (Haryana), through Branch Manager, through its authorized officer: at SCO No. 36-37, Sector 17A, Chandigarh.
....Appellant
Versus
Amit Earth Movers office at: F-10, First Floor, Sushant Lok-2, Sector-57, Main Road, Near MDLR Mall, Gurugram (Haryana).
…..Respondent
CORAM: Naresh Katyal, Judicial Member
Argued by:- Sh. Pradeep Kumar, counsel for appellant.
Sh. Jatin Khullar, counsel for respondent.
ORDER
NARESH KATYAL, JUDICIAL MEMBER:
Delay of 18 days in filing of present appeal stands condoned for the reasons stated in application for condonation of delay.
2. Challenge in this Appeal No. 1342 of 2018 has been invited by New India Assurance Company Ltd./insurer to the legality of order dated 02.08.2018 passed by District Consumer Disputes Redressal Forum-Gurgaon (In short “District Consumer Commission”) in Complaint Case No.163 of 2017, vide which, complainant’s complaint has been allowed.
3. Complainant alleged that: on 19.11.2009 he purchased Hydraulic Excavator PC 200 M/C 5.7M for basic value of Rs.40,50,000/- and total value (including taxes) was Rs.44,71,394/-. He got insured aforesaid machine with OP/appellant and renewing insurance policy of machine for past four years, continuously from 2012-13 till 2015-16. OP-insurer has been renewing it, every year, after due diligence, on payment of required premium amount from him. Total sum insured for machine was Rs.12,00,000/-. On 06.02.2016, machine was moved to Diomukh Depot, Yupia, Papumare District, Andhra Pradesh to work for SP Construction and since then machine was being operated there for assigned work. On 30.10.2016, in the evening, machine was being operated by Operator- Mr. Harish Chandra Pal. After finishing work; he had turned it off and left the site. In morning of 31.10.2016, when he came back to work, he found that machine was burnt. He immediately reported matter to police and got lodged FIR about burning of Hydraulic Excavator and informed OP/insurer about incident/accident. On 21.11.2016; survey was done by M.P. Hansania & Co. (surveyor and loss assessors) and it found machine, completely burnt, and reported that: cause of burning of machine is ‘short circuit’. On 20.01.2017, he filed claim before OP/insurer, under policy with request to settle it, but OP put off the matter on one pretext or others, despite that: he had fulfilled requisite formalities of documentation, as desired by OP-insurer. On 03.03.2017, a letter was handed over to him (complainant) informing that: claim not being admissible and reason being given was that: damaged item was operational at Diomukh Depot, Yupia, Papumare District (Andhra Pradesh), whereas, location of operation covered under issued policy is Sushant Lok-II, Gurgaon. He visited office of OP and requested for making payment of his claim, but OP/insurer refused to make payment of claimed amount, on false and frivolous grounds. On these allegations; complaint has been filed to hold OP/insurer as negligent and directions against OP has been sought; (i) To give insurance money of Rs.12,00,000/- for which, OP is liable, as insurance claim is fully admissible. (ii) To pay him compensation of Rs.8,00,000/- for business loss, mental agony and harassment.
4. OP/insurer/appellant in defence has pleaded in preliminary objections that: complaint is not maintainable and misconceived. Claim of complainant was repudiated, being not admissible, and intimation in this regard was issued vide repudiation letter dated 03.03.2017, received by complainant. He has no cause of action to file complaint. Complainant is engaged in commercial business activities for earning profits and for this reason also, the complaint is not legally maintainable. Complainant has intentionally concealed true, material and relevant facts; rather tried to twist real facts. He is, not only guilty of violation of specific terms and conditions of insurance policy, but also guilty of violation of provisions of law. It is pleaded that a “Contractor's Plant and Machinery Insurance Policy bearing No.31280144150700000001 was got issued insuring Hydraulic Excavator PC 200 M/C 5.7 (Machine Serial No. NL: 17960) for period from 26.12.2015 to 25.12.2016 in respect of location of Operation “Risk Address: 1 F 10, Royal Cassa Floor, E Block, Sushant Lok-II, Gurgaon, Haryana, India, 122001” (description and location of the operation/risk of address is specifically mentioned in the insurance policy). OP/insurer was informed that Hydraulic Excavator had suffered fire loss, while situated/operational at Diomukh District Papumare (Arunachal Pradesh) on 30.10.2016. IRDA Surveyor and Loss Assessor M.P. Hansaria & Co. was deputed to assess loss. They assessed the loss, vide report dated 13.01.2017 to the tune of Rs.5,13,300/- (and value of salvage was assessed at Rs.3,00,000/- by the complainant) subject to coverage and terms and conditions of policy. During investigation, it was revealed that: Hydraulic Excavator was engaged in area grading and land development at Diomukh of Papumare District. In light of facts divulged by complainant, his driver-Harish Chandra Pal and report of assessment and investigation following salient features were revealed that: Alleged fire loss to Hydraulic Excavator had taken place at Diomukh of Papumare District at Arunachal Pradesh, whereas insured location of Operation as specifically mentioned in insurance policy is “Risk Address: 1 F 10, Royal Cassa Floor, E Block, Sushant Lok-II, Gurgaon, Haryana, India, 122001”. As per admission made in Para No.3 of complaint; Hydraulic Excavator was moved on 06.02.2016 to Diomukh (Arunachal Pradesh) from insured location of operational address of: Sushant Lok-II, Gurgaon illegally, without taking any insurance policy for location of operation in area of Diomukh, (Arunachal Pradesh). So, claim was repudiated and complainant was informed vide letter dated 03.03.2017. Inter-alia on these pleas dismissal of complaint has been prayed for.
5. Parties to this lis led their respective evidence, oral as well as documentary.
6. On analyzing rival submissions, pleas and evidence; learned District Consumer Commission-Gurgaon vide order dated 02.08.2018 has allowed the complaint, thereby directing OP/insurer/appellant to pay 75% of the balance amount of Rs.2,13,300/- in terms of policy, to complainant with interest @9% p.a. from date of filing of complaint, till realization and further to pay Rs.10,000/- as compensation for mental agony, harassment, as well as cost of litigation expenses, within 30 days from receipt of copy of order.
7. Feeling aggrieved there from; OP/appellant/insurance Company has preferred this appeal.
8. I have heard learned counsel for appellant/insurer, as well as learned counsel for complainant at length. With their able assistance, record of complaint filed has also been perused.
9. Learned counsel for appellant/insurer has, in order to accept this appeal urged that: as per insurance policy No.31280144150700000001 valid from 26.12.2015 to 25.12.2016; risk and operational address of Hydraulic Excavator Machine (PC200 M/C 5.7 M) is/was: 1F10, Royal Cassa Floor, E Block Sushant Lok-II, Gurgaon. Alleged fire loss on this machine had not resulted at its above risk and operational address. It allegedly resulted when this Hydraulic Excavator was moved at Diomukh Depot, Yopia Papumare District (Arunachal Pradesh) and at this address of location and operation; machine in question was not insured. Thus, repudiation of complainant’s claim by insurer/appellant vide repudiation letter dated 03.03.2017 was legally justified. It is urged that surveyor’s report dated 21.12.2016 who found that machine was completely burnt and cause of burning was short circuit; will not stimulate any cause of complainant.
10. Per-contra learned counsel for complainant/respondent has supported impugned order dated 02.08.2018 of learned District Consumer Commission by urging that it does not warrant any interference in this appeal.
11. Admittedly, appellant is insurer of Hydraulic Excavator Machine (PC200 M/C 5.7 M) vide Policy No.31280144150700000001; valid from 26.12.2015 to 25.12.2016. This policy carries insured name as Amit Earth Mover with address at F-10, Royal Cassa Floor, E Block, Sushant Lok-II, Gurgaon. Identical is the address mentioned in the complaint. Hydraulic Excavator Machine of above description cannot possibly be put in operation at above address. Hence, address regarding location of operation, mentioned in insurance policy was palpably wrong. It is a specific case of complainant (para no. 2 of complaint) that he has been renewing the insurance policy continuously since last four years and this stance of complainant has not been denied. Meaning thereby, name and address of insured, as well as address of location of operation of Hydraulic Excavator Machine in question might had been there in previous insurance policies too.
12. It is specific case of complainant in complaint in para no. 3 that: machine in question was moved to Diomukh Depot, Yopia Papumare District (Andhra Pradesh) on 06.02.2016 work for SP constructions for doing assigned work where on 30.10.2016/31.10.2016 it was found brunt. This incident of burning had taken place during currency of insurance policy.
13. Learned counsel for appellant/insurer has contended that policy in question had become void on its face, as Hydraulic Excavator Machine had departed from address of its operational location. This contention is not sustainable. Reason is obvious. Hydraulic Excavator Machine was moved at Diomukh Depot, Yopia Papumare District (Andhra Pradesh/Arunachal Pradesh) on 06.02.2016 to work there for SP Constructions. Naturally, as a flowing consequence wherever such like machine would operate for any assigned work; the shield of insurance cover (if such like machine is insured), would travel along with it, once insured’s name is same. Admittedly, in the present case insured’s name is same i.e. Amit Earth Movers. There is no denial that Hydraulic Excavator Machine in question was carrying valid insurance cover when it was found brunt. May be the place of alleged burning was not mentioned in the insurance policy in question, under head: location of operation, still it will not make the insurer to escape from its liability under policy. More so, from type of insured’s name (Amit Earth Movers), a prime facie inference can safely be drawn about nature of its work and the purpose for which Hydraulic Excavator Machine was insured from appellant/insurer. Such like machine cannot remain static and stationary, only at place of location of its operation as mentioned in policy. It has to move, here and there, thereby deviating from its stated location of operation (as mentioned in policy) and in such a situation; the insurance policy would always move along with it. In case, contention of appellant/insurer is accepted, as a gospel truth, then it would imply that: on any and every movement of such like machine, from its stated location of operation (as mentioned in policy); insured would have to obtain a fresh policy of any and every different location, where such machine would move there for work. This would, make the insurance policy, quite ridiculous and onerous in nature for insured.
14. As a sequel to above subjective and critical analysis of relevant facets of this case; this Commission has arrived at an inescapable conclusion that: impugned order dated 02.08.2018 passed by District Consumer Commission-Gurgaon is legally justified, being outcome of meticulous appreciation of facts and evidence brought on file by it. Thus, order dated 02.08.2018 is affirmed and maintained. This appeal being devoid of merits is hereby dismissed.
15. The statutory amount of Rs.25,000/- deposited at the time of filing the appeal be refunded to the appellant/insurance company against proper receipt and identification in accordance with rules, after the expiry of period of appeal/revision, if any.
16. Application(s) pending, if any stand disposed of in terms of the aforesaid judgment.
17. A copy of this judgment be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986/2019. The judgment be uploaded forthwith on the website of the commission for the perusal of the parties.
18. File be consigned to record room.
Date of pronouncement: 20th November, 2023
Naresh Katyal
Judicial Member
Addl. Bench-II
