1.       This first appeal arises out of a final Order dated 09.09.2022 passed by the Jharkhand State Consumer Disputes Redressal Commission, Ranchi, whereby the appellant – complainant’s claim of insurance regarding the upturning of a Hydraulic Excavator has been rejected on the ground that such a vehicle was not classified as a vehicle in respect whereof the insurance claim, on an alleged accident of the nature involved, could be extended any benefit under the insurance policy.

2.       The State Consumer Disputes Redressal Commission upheld the repudiation of the claim by the insurance company and denied the reliefs prayed for by the appellant.

3.       Aggrieved, the owner – company of the vehicle has come forward assailing the Order of the State Commission urging that the cause of over-turning of the vehicle was accidental and the loss and damage was covered under the policy. The repudiation by the insurance company is unjustified and that the claim deserves to be allowed.

4.       The nature of the accident was sought to be explained by contending that this was totally beyond the control of the vehicle owner, as also the driver of the vehicle, and there was neither any negligence on their part nor was there any shortcoming. Emphasis was laid by relying on the judgment of the Apex court in the case of Sharda Associates vs. United India Insurnace Company Ltd. decided on 25.07.2022 where the Order of this Commission in a similar matter was reversed holding that the accident was in the nature of a landslide. It was pointed out in the said judgment that the vehicle, which was a JCB excavator, was being used for the construction of a road. This Commission had reversed the Order of the forum below holding that the JCB excavator was not being used for a purpose covered under the policy when it overturned. The machine had met with an accident when it was motoring on a road that collapsed resulting in the excavator suddenly falling into a deep ditch. The Apex court set aside the Order of this Commission and allowed the complaint holding that the damage and loss was not on a mere overturning of the vehicle but was plainly on account of the collapse of the road, which was in the nature of a landslide.

5.       The insurance company, in the present case, repudiated the claim stating that the overturning risk was not covered at all under the policy. In order to put the narrative on record, the claim as was pleaded before the insurance company by the appellant, as contained in the letter dated 27.12.2010, is reproduced below:

          P/41/550

            Dec. 27^th, 2010

            The Branch Manager,

            M/s Bajaj Allianz General Insurance Company Ltd.,

            504, Fifth floor, Mahabir Tower,

            (Opp. Gel Church Complex),

            Main Road,

            Ranchi – 834001

Sub.: Regarding accidental claim of L&T Make Hydraulic Excavator, Model PC 200-6 insured with you under Policy No.OG-11-1003-1811-00001136 issued on 27^th July, 2010

            Dear Sir,

This has reference to the telecom the undersigned had with you on 23.12.2010 whereby you informed that your company which has insured Chain Mounted Hydraulic Excavator working at our mines was not responsible for the accidental damage caused as  the equipment had over turned and the policy issued by you does not cover damage arising out of over turning.

In this connection we wish to inform that the policy document for Excavator issued by you is the policy document meant for commercial vehicles that are registered under the Motor Vehicle Act and ply on roads, whereas the Hydraulic Excavator is a Chain Mounted Equipment weighing 20 M.T. and moves at a very slow speed i.e. a maximum speed of 5 kilometer per hour. Its movement is also restricted to only going to the place where it has to work and is not meant to ply on roads or carry men or material.

Under the above circumstances we reiterate that the damage caused to our this equipment is squarely covered under Insurance Policy and your stand that the equipment had over turned and as such is not covered by the policy is totally misconceived.

We further wish to state that the accident has taken place on 22^nd November, 2010 and we had, through your Agent, submitted the claim duly filled in on the same day, but the first response we received in respect of our claim from you was only on 14^th December, 2010 whereby you wanted certain documents to be submitted which were submitted by us within the time allowed by you.

After submitting these documents on 21^st December 2010, you required us on 22^nd December 2010 to submit certain other details, which were also submitted to you on the same day i.e. on 22.12.2010.

Simultaneously, we called your officer on the phone and it was agreed that a tripartite meeting between ourselves, the manufacturer of the equipment namely M/s L&T Ltd. and your goodselves would be held at our office at 4.30 P.M. on 23.12.2010. As your representative did not turn up for the meeting for settlement of the claim at the appointed time, we telephoned your goodselves and we are informed by you that your company is not liable for the claim, which according to us is totally misconceived and may be a motivated view of yours to get out of your accrued liability.

Please be further informed that the equipment is working at our Graphite Mines at Village Murma, Dist. Palamau and the graphite ore, which is raised with the help of the Excavator, is used as a Raw Material at our Graphite Beneficiation Plant situated at Village Belchampa, Dist. Garhwa, which employs over 150 workmen and has an electrical connection of 275 KVA Contract Demand. The working of our factory is very adversely affected due to the delay in commissioning of the equipment after the accident and is causing us a loss that runs to several tens of thousands of rupees per day.

Under the circumstances we request you to please reconsider the matter urgently and settle our claim as otherwise we will be forced to seek relief by the legal process in which case you shall also be liable for the damage and loss being incurred by us due to your misconceived and/or motivated stand.

Thanking you,

Yours faithfully

For Chotanagpur Graphite Industries

(Unit of Chotanagpur Graphite (P) Ltd.

Sd/-

Director

6.       The repudiation by the insurance company dated 28.12.2010 is extracted hereinunder:-

Sub: Reported accident claim of L&T – Hydraulic Excavator, Model No. PC 200-6, policy No. OG-11-1003-1811-00000136, date of accident 23-Nov-2010

            Dear Sir,

We are in receipt of the documents submitted by your good self and we would like to state herein below.

• From the report and physical inspection it is concluded that the aforesaid vehicle was overturned during its operation.
• As per the policy terms and condition and Endorsement IMT 47 overturning risk is not covered. Package policies issued to the above units can be extended to cover damage to the unit by overturning during operational use as a tool of trade at an additional rate of 0.5% of IDV of the vehicle subject to a minimum additional premium of Rs. 100/-.

Therefore, we are not in a position to accept any Liability towards the aforesaid claim and the same has been repudiated.

            Thanking you,

            Yours truly,

            For & on behalf of Bajaj Allianz General Insurance Company Limited

            Sd/-

            (Authorised Signatory)

7.       The appellant again protested before the insurance company but of no avail whereafter the complaint case no. 04 of 2013 was filed before the State Consumer Commission.

8.       The appellant – complainant took a plea that the terms and conditions and Endorsement IMT 47 of the policy were not made known to the appellant - complainant and that its classification as a miscellaneous & special type of vehicle by the insurance company as against commercial vehicles would not denude the complainant from raising the claim. As a matter of fact, the complainant alleged in his complaint that such endorsement of IMT 47 was not made known to the complainant or disclosed to the complainant. It was also alleged that the copy of the survey report was not furnished as per provisions of Regulation 9 of IRDA (Protection of (Rights of the Policy Holder’s interest) Regulation, 2002.

9.       The contentions raised primarily rest on the fact that the hydraulic excavator machine met with an accident on 22.11.2010 which according to the narration contained in the complaint itself was on account of the machine treading and passing over soft soil during excavation in the mine where the machine was being operated. In paragraph 2.4 of the appeal, it is admitted that the certificate-cum-policy schedule was tendered but the implication of the endorsement of condition IMT 47 was not explained to the complainant. This is unacceptable in as much as the certificate-cum-policy schedule which is admitted to have been received by the complainant under the heading “IMPORTANT NOTICE” clearly explains as under:

IMPORTANT NOTICE: The Insured is not indemnified if the vehicle is used or driven otherwise than in accordance with this Schedule. Any payment made by the Company by reason of wider terms appearing in the Certificate in order to comply with the Motor Vehicles Act, 1988 is recoverable from the Insured.

See the clause headed “AVOIDANCE OF CERTAIN TERMS AND RIGHT OF RECOVERY”

Subject to IMT Endorsement Nos. 21,39,47 (Overturning Risk is not covered) & Policy wordings attached herewith. 

10.     A perusal of the same would clearly indicate that the insured is not to be indemnified and the clause “AVOIDANCE OF CERTAIN TERMS AND RIGHT OF RECOVERY” should be perused subject to IMT endorsement No. 21, 39, 47 (overturning Risk is not covered). Thus, it is evident from the certificate-cum-policy schedule that the complainant was well aware of the terms and conditions of the policy where overturning risk was not covered.

11.     Coming to the judgment cited by the learned counsel in the case of Sharda Associates (supra) it is more than clear that the accident therein was that of a road having suddenly sunk and given way, which was akin to a landslide. This nature of accident is clearly distinguishable as against the present case where the machine was plying inside the mine and had allegedly crossed over some soft soil. This was therefore not a case of natural calamity but rather a case where the driver of the vehicle consciously drove the vehicle over a soft soil area within the mine itself. Consequently, no parallel can be drawn between the nature of the accident in the case of Sharda Associates (supra) where it was akin to a landslide and the nature of the accident in the present case. It is well settled that there cannot be a precedent on facts, and even a small difference of facts so as to form a circumstance for assessment, can make a world of difference in the application of law. As a result of the aforesaid conclusions drawn, the nature of the accident caused by overturning per se does not appear to be a risk covered under the insurance policy against which the claim had been made. This Commission, therefore, does not have any reason to accept the arguments that have been advanced and take a different view from that which has been taken by the State Consumer Commission.

12.     After orders were reserved on 21.08.2023 for delivery on 28.08.2023, an application dated 23.08.2023 was mentioned for clarifying the facts and law as stated above. Accordingly before delivery of the order learned counsel addressed the bench with the aid of the documents on record, but the arguments were the same with no new dimension revealed that have already been dealt with above.

13.     The appeal, therefore, lacks the very foundation of a claim being covered under the insurance policy. Hence, the appeal is liable to be dismissed. It is accordingly dismissed.