BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM, JALANDHAR.

Complaint No.285 of 2014

Date of Instt. 20.8.2014

Date of Decision :03.03.2015

M/s Hindustan Stone Crushing Mill through Sh.Suresh Kumar son of Roop Lal, Village Habibpur, PO Binapur District Gurdaspur-145001.

..........Complainant

Versus

1. Bajaj Allianz General Insurance Company Ltd, through its Divisional Manager, 2nd Floor Satnam Complex, BMC Chowk, Jalandhar.

2. Bajaj Allianz General Insurance Company Ltd, Regd. & Head Office:- GE Plaza, Airport Road, Yerwada, Pune-411006.

.........Opposite parties

Complaint Under Section 12 of the Consumer Protection Act.

Before: S. Jaspal Singh Bhatia (President)

Ms. Jyotsna Thatai (Member)

Sh.Parminder Sharma (Member)

Present: Sh.Uma Shankar Adv., counsel for complainant.

Sh.Raman Sharma Adv., counsel for opposite parties.

Order

J.S Bhatia (President)

1. The complainant has filed the present complaint under section 12 of the Consumer Protection Act, against the opposite parties on the averments that complainant has been running a Popland machine bearing chasis No.NL-16944, Engine No.NL-16944, Model 23.12.2008 for earning his livelihood by way of self employment with the help of one Arun Kumar. Complainant has got insured the aforesaid machine with the opposite parties vide cover note No.DY1300365636 on payment of Rs.20833/- valid from 13.7.2013 to 12.7.2014. On 27.10.2013 at about 1.30 PM the aforesaid machine turned turtle within the area of village Shahpur Jajan, Tehsil Dera Baba Banak District Gurdaspur while digging a drain. The matter was reported to the opposite parties and a surveyor was also deputed on their part. Accordingly M/s S.S.Associates have assessed a loss of Rs.3,24,486.27 on 7.12.2013. Even after completing all the requirements the opposite parties have repudiated the claim of complainant on 21.1.2014 illegally and arbitrarily. Complainant was left no option except to get it repaired from open market and as such he has spent a sum of Rs.3,43,415/- for getting it in proper working condition. On such like averments, the complainant has prayed for directing the opposite parties to pay it Rs.3,43,315/- alongwith interest. It has also claimed compensation and litigation expenses.

2. Upon notice, opposite parties appeared and filed a written reply raising preliminary objections regarding maintainability, territorial jurisdiction, complainant being not consumer etc. They further pleaded that the complainant had tried to defraud the opposite parties and now misleading and misrepresenting this Forum by concealing the real facts from this Forum. The vehicle has been got insured by Suresh Kumar son of Roop Lal R/o Village Habibpur, PO Bianpur District Gurdaspur by concealing the fact of having purchased the vehicle from M/s Hindustan Stone Crushing Mill on 28.5.2013. Copy of the written document duly signed by seller Pardeep Kumar Prop. M/s Hindustan Stone Crushing Mill and purchaser Suresh Kumar wherein it has been specifically mentioned that vehicle bearing engine No.NL-16944 and Chasis No.NL-16944 has been sold to Suresh Kumar and entire sale consideration has been received and the possession of the vehicle has been handed over to purchase Suresh Kumar on 28.5.2013 is attached. At the time of damage of the vehicle the ownership of the insurance policy was in the name of M/s Hindustan Stone Crushing Mill whereas the vehicle had already been sold to Suresh Kumar son of Roop Lal on 28.5.2013. There should exist insurable interest at the time of taking policy as well as at the time of loss which is not there with the complainant and the complainant was asked vide letters dated 10.12.2013 and 21.12.2013 to explain why its claim should not be repudiated and also why the policy should not be cancelled, but the complainant did not respond, as such the claim of the complainant was repudiated vide letter dated 21.1.2014 as there was no response to letters dated 10.12.2013 and 21.12.2013 and the complainant was informed accordingly. Otherwise also the loss to vehicle when it was in operation is not accidental loss and is not covered under the insurance policy. They denied other material averments of the complainant.

3. In support of his complaint, learned counsel for the complainant has tendered affidavit Ex.CW1/A alongwith copies of documents Ex.C1 to Ex.C13 and closed evidence.

4. On the other hand, learned counsel for opposite parties has tendered affidavit Ex.OA alongwith copies of documents Ex.O1 to Ex.O6 and closed evidence.

5. We have carefully gone through the record and also heard the learned counsels for the parties.

6. Ex.C4 is copy of cover note issued by the opposite party insurance company which is in favour of M/s Hindustan Stone Crushing Mill i.e complainant. According to complainant, on 27.10.2013 at about 1.30 PM while digging a drain, machine in question turned turtle within the area of village Shahpur Jajan, Tehsil Dera Baba Banak District Gurdaspur and was damaged. The complainant lodged the claim with the opposite party insurance company but the opposite party insurance company repudiated its claim vide letter dated 21.1.2014 Ex.o4. Counsel for the opposite parties contended that at the time of loss, the complainant firm has sold the machine in question to Suresh Kumar son of Roop Lal and handed over its possession to him and as such the complainant firm was having no insurable interest in the machine in question. He further contended that even otherwise the loss is not covered under the policy. We have carefully considered the above contentions advanced by learned counsel for the opposite party. Ex.O5 is certificate cum policy schedule. In the policy schedule, it is mentioned that subject to IMT endorsement No.21,39,47/risk is not covered and policy wording attach herewith. IMT.47 lays down as under:-

"IMT.47. Mobile Cranes/Drilling Rigs/Mobile Plants/Excavators/Navvies/Shovels/Grabs/Rippers.

It is hereby declared and agreed notwithstanding anything to the contrary contained in this policy that in respect of the vehicle insured the insurer shall be under no liability.

a) Under section I of this policy in respect of loss or damage resulting from overturning arising out of the operation as a tool of such vehicle or of plant forming part of such vehicle or attached thereto except for loss or damage arising directly from fire, explosion, self ignition or lightning or burglary housebreaking or theft.

b) Under section II except so far as is necessary to meet the requirements of the Motor Vehicle Act, 1988, in respect of liability incurred by the insured arising out of the operation as a tool of such vehicle or of plant forming part of such vehicle or attached thereto".

7. So from the above condition, it is evident that the risk or damage resulting from over turning of the machine while in operation as a tool was not covered. So while digging the drain it was being used as a tool and in that process it turned turtle or over turned. So this risk is not covered under the policy. Even otherwise on the date of loss, the complainant has no insurable interest in the machine in question as he has sold the machine to Suresh Kumar son of Roop Lal vide agreement Ex.OP1 dated 28.5.2013 i.e before the incident in question. From the agreement Ex.O1 it is evident that the Pardeep Kumar Prop of M/s Hindustan Stone Crushing Mill sold the machine to Suresh Kumar son of Roop Lal and handed over its possession to him on 28.5.2013. Suresh Kumar son of Roop Lal never got the policy transfered in his own name. So on the date of loss the complainant was having no insurable interest in the machine in question as the firm has sold the machine to Suresh Kumar son of Roop Lal before the date of incident i.e on 28.5.2013. So opposite party insurance company has rightly repudiated the claim of the complainant. The opposite party insurance company wrote letter dated 10.12.2013 Ex.O2 and letter dated 21.12.2013 Ex.O3 in this regard but receiving no response thereto it ultimately rightly repudiated the claim vide letter dated 21.1.2014 Ex.O4.

8. In view of above discussion, we hold that there is no merit in the present complaint and same is hereby dismissed with no order as to cost. Copies of the order be sent to the parties free of costs under rules. File be consigned to the record room.

Dated Parminder Sharma Jyotsna Thatai Jaspal Singh Bhatia

03.03.2015 Member Member President