SRI JIBAN KRUSHNA BEHERA, MEMBER (I/C)

            The Complainant has filed this complaint petition, U/s-12 of C.P.A.-1986, (here-in- after called as the “Act”) alleging a “deficiency-in-service” against the Opp. Party. 

2.         The factual matrix of this case is that the complainant owned one Bore Well Drilling Machine and Compressor (RIG UNIT) which is mounted on a vehicle bearing Registration No.OR-01G-8075. Said machine is separately covered under a Contractor’s plant and machinery Insurance policy issued by the OP vide policy No.163005/44/05/5900000040 covering the period from dt.8.3.2006 to dt.7.3.2007. While the aforesaid machine was engaged in the work site at Kaptipada in the district of Mayurbhanj, on dt. 23.4.2006 at about 11.30 AM suddenly break down. The complainant made a claim to the OP on dt.26.5.2006 along with expenditure report dt. 25.5.2006 from G.S. Works and Services, Bhubaneswar. It is further averred that on dt.30.5.2006, the complainant sought for permission from the OP to dismantle the aforesaid machineries. On the instruction of the OP, Surveyor  visited the premises of the complainant on dt.12.7.2006 for survey of the break down machines. The machines were dismantled in his presence, photographs along with details were taken by him on the same day and assured the complainant to inform the actual amount of assessed claim later on. On repeated calls, the complainant sent his Supervisor with necessary papers to meet the Surveyor, but the Surveyor told the complainant to meet him personally in his residence.

            It is further stated that on dt.10.8.2006, said Surveyor sent a letter to the complainant intimating him that the machine was already found to be in dismantled condition at the time of inspection, there was no trace of Mobil found in the engine chamber, the parts of engine were found in dry condition, the valves were removed from the head, few spider nets were found inside the valve hole of the head. It was further intimated by him that no scope was given by the complainant to go to the exact cause of loss to the claimed equipment and finding no other alternative issued a NIL assessment report to the OP. Said Surveyor of the OP has not supplied the copy of his inspection report at any point of time and whimsically submitted such a report to the OP. Thus, the complainant sent a letter dt.23.8.2006 to the OP for settlement of the claim. On dt.27.9.2006, the complainant sent legal notice to the OP for settlement of his claim which was received by the OP and sent one reply on dt. 18.10.2006 to the Advocate of the complainant stating that the matter was taken up by Er. S.N. Nayak to assess the actual loss with a request to be in touch with him for early assessment of the claim. Said Er. Nayak had already inspected the machine in question afresh, but the OP has not yet settle the claim of the complainant and remained silent over the matter for which the complainant sustained huge financial loss and mental agony as well as harassment.

            To substantiate his case, the complainant has relied on the following documents, which are placed in the record, as mentioned hereunder-

1. Photocopy of insurance certificate.
2. Photocopy of engineering insurance erection claim form.
3. Photocopy of estimate of G.S. Works & Service.
4.  Photocopy of letter dt. 30.5.06 of the complainant issued to OP.
5. Photocopy of inspection report of the Surveyor of the OP.
6. Photocopy of letter dt. 23.8.06 of the complainant issued to OP.
7. Photocopy of legal notice dt. 27.9.2006.
8. Photocopy of reply of OP against legal notice.

3.         On receipt of notice, OP made his appearance and filed his written version, not only challenged the cause of action to file the present case but also emphatically stated that the case is not maintainable. Admitting the fact that the machinery of the complainant was covered under insurance policy and the fact of its break down, this OP has stated, inter alia, that on dt.25.4.2006, the representative of the complainant visited the office of OP and after discussion, OP provided claim form to him with a request to submit the same as early as possible along with loss estimate and enable the OP to appoint Surveyor for inspection. As the complainant remained silent, the OP sent reminder to him on dt.16.5.2006 with a request to submit the claim form within seven days to which the complainant submitted his claim form on dt.26.5.2006. Thereafter, OP appointed Er. S.R. Sarangi as Surveyor for inspection of the aforesaid break down machine at the premises of the G.S. Works & Services, Rasulgarh, Bhubaneswar. Said Surveyor visited G.S. Works & Services on dt.27.6.2006 and found no such machine  there for which he contacted the complainant and came to know that the machine in question has already been shifted to the premises of the complainant situated at Sergarh without any intimation to the OP. Thereafter, the complainant sought for permission from the OP vide letter dt. 1.6.2006 to dismantle the alleged break down machine at Sergarh which was received by the OP on dt.7.7.2006. Being advised by the OP, said Surveyor inspected the alleged machine on dt.9.6.2006 in the premises of the complainant. After discussion, the complainant fixed the date to dt.12.7.2007 to dismantle the alleged machine. On dt.12.7.2007, the Surveyor visited the premises of the complainant and inspected the machine mounted on the vehicle in presence of technician and found that prior to their arrival, the alleged machine is in dismantled condition and there was no trace of Mobil in the chamber of the engine, the parts of engine were found in dry condition, valves were found removed from the head and few spider nets were inside the valve hole of the head and intimated the said fact to the complainant vide letter dt. 10.8.2006. On dt.23.8.2006, OP received a letter from the complainant alleging dissatisfaction against the Surveyor with a request for settlement of claim. Thereafter, OP once again deputed Surveyor Er. S.N.Nayak to pay another visit for taking into matter afresh prior to conclusion, but the complainant did not cooperate him and did not allow him to survey with an ulterior motive and thereby violated the policy condition. Therefore, the OP is no way liable for deficiency of service. Hence, it is prayed to dismiss the case with cost.

            In support of his case, OP has relied upon the following documents, which are placed in the record, as mentioned hereunder-

1. Photocopy of inspection report made by Surveyor Er.S.N. Nayak.
2. Photocopy of reply to the legal notice of the complainant.
3. Photocopy of letter dt. 9.2.2007 issued to Surveyor Er.S.N.Nayak.
4. Photocopy of letter dt. 16.10.2006 issued to Surveyor Er.S.N.Nayak.
5. Photocopy of acknowledgement of receiving legal notice.
6. Photocopy of survey report of Er.S.R.Sarangi.
7. Photocopy of letter dt. 23.8.2006 of the complainant.
8. Photocopy of letter dt. 4.9.2006 issued by OP to Er.S.R.Sarangi.
9. Photocopy of letter dt. 9.6.2006 issued by OP to Er.S.R.Srangi.
10. Photocopy of survey report of Er.S.R.Sarangi.
11. Photocopy of letter issued by OP to Er.S.R.Sarangi.
12. Photocopy of letter dt. 1.6.2006 issued by complainant.
13. Photocopy of engineering insurance erection claim form.
14. Photocopy of letter dt. 16.5.2006 of OP to complainant.
15. Photocopy of letter dt. 25.4.2006 issued by OP to complainant.
16. Photocopy of letter dt. 26.4.2006 issued by complainant to OP.

4.         In view of the above averments of parties, the points for determination in this case are as follows:-

(i)         Whether the Complainant is a Consumer or not?

(ii)         Whether the complainant has cause of action to file this case?

(iii)        Whether this consumer case is maintainable?

(iv)        Whether there is any deficiency in service on the part of the OPs?

(v)        Whether the complainant is entitled to get the relief, as sought for?

(vi)        To what other relief(s), the Complainant is entitled to?

F  I  N  D  I  N  G  S

5.         First of all it is to be determined as to whether the complainant is a consumer or not. From the averments made in the pleadings of both the parties and document produced on behalf of the complainant vide Annexure-1 to 8 and Annexure-A to P, it is clear that the complainant is the owner of vehicle in question bearing registration No.OR-01G-8075 which was covered under machinery insurance policy bearing No.163005/44/05/5900000040 covering from dt.9.3.2006 to dt.8.3.2007. Thus, it can safely be said that the complainant is covered under the definition of a consumer as defined under the provisions of the Consumer Protection Act, 1986.    

6.         Before delve into the merits of the case, it is required to be decided how far the complainant is able to prove his case with regard to the cause of action and maintainability of the complaint. Learned counsel for the complainant submitted that when the aforesaid machine was engaged in the work site at Kaptipada, on dt.23.4.2006 suddenly break down. Thus, the complainant made a claim to the OP on dt.26.5.2006 along with expenditure report dt. 25.5.2006 from G.S. Works and Services, Bhubaneswar. It is further submitted that on dt.30.5.2006, the complainant sought for permission from the OP to dismantle the aforesaid machineries. On the instruction of the OP, Surveyor was visited the premises of the complainant on dt.12.7.2006 for survey of the break down machines. The machines were dismantled in his presence, photographs along with details were taken by him on the same day and assured the complainant to inform the actual amount of assessed claim later on. On repeated calls, the complainant sent his Supervisor with necessary papers to meet the Surveyor, but the Surveyor told the complainant to meet him personally in his residence. He further urged that on dt.10.8.2006, said Surveyor sent a letter to the complainant intimating him that the machine was already found to be in dismantled condition at the time of inspection, there was no trace of Mobil found in the engine chamber, the parts of engine were found in dry condition, the valves were removed from the head, few spider nets were found inside the valve hole of the head. It was further intimated by him that no scope was given by the complainant to go to the exact cause of loss to the claimed equipment and finding no other alternative issued a NIL assessment report to the OP. Said Surveyor of the OP has not supplied the copy of his inspection report at any point of time and whimsically submitted such a report to the OP. Thus, the complainant sent a letter dated dt.23.8.2006 to the OP for settlement of the claim. On dt.27.9.2006, the complainant sent legal notice to the OP for settlement of his claim which was received by the OP and sent one reply dt 18.10.2006 to the Advocate of the complainant stating that the matter was taken up by Er. S.N. Nayak to assess the actual loss with a request to be in touch with him for early assessment of the claim. Said Er. Nayak had already inspected the machine in question afresh, but the OP has not yet settle the claim of the complainant and remained silent over the matter for which the complainant sustained huge financial loss for lost of his income and mental agony as well as harassment.

7.         On the other hand, learned counsel for the OP submitted that no doubt the Rig machine of the complainant was broke down on dt. 23.4.2006 and the complainant informed the OP about the said fact on dt.24.4.2006. It is further submitted that on dt.25.4.2006, the representative of the complainant visited the office of OP and after discussion, OP provided claim form to him with a request to submit the same as early as possible along with loss estimate and enable the OP to appoint Surveyor for inspection. But the complainant remained silent. Then, OP sent reminder to him on dt.16.5.2006 with a request to submit the claim form within seven days to which the complainant submitted his claim form on dt.26.5.2006. Then, OP appointed Er. S.R.Sarangi as Surveyor for inspection of the aforesaid break down machine at the premises of the G.S. Works & Services, Rasulgarh, Bhubaneswar. Said Surveyor visited G.S. Works & Services on dt.27.6.2006 and found no such machine was there for which he contacted the complainant and came to know that the machine in question has already been shifted to his own premises situated at Sergarh without any intimation to the OP. Thereafter, the complainant sought for permission from the OP vide letter dt.1.6.2006 to dismantle the alleged break down machine at Sergarh. On the other hand, Annexure-L shows that the complainant sent the said letter to the OP on dt.1.6.2006 seeking permission for dismantle the break down rig machine at his premises instead of garage at Bhubaneswar. Said letter is found to be suppressed by the complainant. Annexure-L was received by the OP on dt.7.7.2006. Being advised by the OP, said Surveyor inspected the alleged machine ondt. 12.7.2006 in the premises of the complainant and found that prior to his arrival, the alleged machine was in dismantled condition and there was no trace of Mobil in the chamber of the engine, the parts of engine were found in dry condition, valves were found removed from the head and few spider nets were inside the valve hole of the head and intimated the said fact to the complainant vide letter dt. 10.8.2006. On dt.23.8.2006, OP received a letter from the complainant alleging dissatisfaction against the Surveyor with a request for settlement of claim. Thereafter, OP once again deputed Surveyor Er. S.N.Nayak to pay another visit for taking into matter afresh prior to conclusion, but the complainant did not cooperate him and did not allow him to survey with an ulterior motive and thereby violated the policy condition.

8.         From the above rival submissions of the parties, it is clear that the rig machine in question was owned by the complainant which was under valid insurance policy coverage at the time of its break down on dt.23.4.2006. The fact of break down of the rig machine is said to have been intimated by the complainant to the OP, but no such document is filed to place reliance. Annexure-5 shows that the complainant sought for permission from the OP to dismantle the machine in question in his premises instead of Bhubaneswar to avoid misplace of spare parts by the garage. In this connection, OP has claimed that the letter under Annexure-5 was received by their office on dt.7.7.2006. On the other hand, Annexure-L, letter dated dt.1.6.2006 shows that the complainant sent the said letter to the OP on dt.1.6.2006 seeking permission for dismantle the break down Rig machine at his premises instead of garage at Bhubaneswar. The complainant has not filed the said letter dated dt.1.6.2006, rather, he has filed the letter dated dt.30.5.2006 stating that he has sought for permission from the OP to dismantle the break down machine at his premises instead of Bhubaneswar. Suppression of any material fact by the complainant is otherwise fatal to his own case. However, Surveyor Er. S.R.Sarangi had been to the garage situated at Bhubaneswar on dt.27.6.2006 for inspection of the break down Rig machine and found that no such machine was available there. Then said Surveyor contacted the complainant about the availability of the machine in question and appraised that the complainant had already shifted the said break down Rig machine to his own premises at Sergarh. Here, one question crept in the mind of this Commission as to why the complainant had shifted the said machine from the garage at Bhubaneswar to his own premises at Sergarh, that too without prior permission of the OP. However, said Surveyor had been to the premises of the complainant for inspection on dt.12.7.2006 and found that prior to his arrival, the alleged machine was in dismantled condition and there was no trace of Mobil in the chamber of the engine, the parts of engine were found in dry condition, valves were found removed from the head and few spider nets were inside the valve hole of the head. In his inspection report, Surveyor has mentioned that on both the occasions, the complainant has not given no scope to go to the exact cause of loss to his claim equipment and consequently issued a NIL assessment report to the OP. Being aggrieved with the aforesaid assessment report of Surveyor Sarangi, the complainant requested the OP for taking necessary step for settlement of the claim. In response to it, OP again appointed another Surveyor Er.S.N.Nayak for assessment of the loss and report, who, on completion of his inspection, submitted his report dt. 14.2.2007 vide Annexure-A wherein it has been made out that the alleged machine was an old machine purchased 2^nd hand by the complainant and the condition of the said machine was found to be badly maintained. It is also made out that the observations of the earlier Surveyor Er. S.R.Sarangi was adequate as per prevailing condition during his inspection and further on discussion, the complainant stated that he has stated in his correspondence which he had earlier submitted and he has nothing new to report and the complainant was found to be adamant. Thus, the Surveyor came to a conclusion that he has no scope left to determine the loss, if any, as the complainant-insured die not cooperate to do so. From the above, it is clear that the complainant has no cope up with the Surveyors deputed by the OP for assessment of the loss incurred by the complainant. That apart, the complainant has not stated a single line in his complaint petition nor at the time of hearing that the alleged machine was a second hand. This fact is also suppressed by the complainant.

9.         Further, obligations casts on the complainant to produce or give access to any property alleged to be damaged and he shall be bound to satisfy the OP by such reasonable evidence as the OP may require that the loss, destruction or damage in respect of which a claim is made has actually arisen from one of the risks insured. The officials of the OP shall at all reasonable times have the right to inspect and examine any property insured and the complainant shall provide the officials of the OP with all details and information necessary for the assessment of the risk. But in the present case, the complainant has not extended his cooperation with the Surveyors during their inspection for assessment of loss or damage caused to his alleged machine. It is the obligation of the complainant to take all responsible steps to maintain the alleged insured machine in efficient working order and to ensure that no item is habitually or intentionally overloaded and shall follow the manufacturer’s instruction for operating, which are not followed by the complainant, as reflected in the inspection of both the Surveyors.

10.        In the present case, complainant himself has been examined as witness No.1. During cross examination made by the O.P, he has stated that he has not filed any document to show that he is not the owner of the machine in question mounted on a vehicle bearing Regd. No. OR-01G-8075. Further, he has stated that he has not filed any document to show that his rig- unit has engaged at Kaptipada under the district of Mayurbhanj on dt. 23.04.2006. He has further stated that he has not filed any document issued by technical person to show that on dt. 23.04.2006 at about 11.30 A.M while his rig- unit was in operation at Kaptipada site, was broke down. The complainant has admitted in his deposition that he has not filed any letter issued by the O.P under which he was permitted to shift his rig- unit machine from Kaptipada site to M/s. G.S Work, BBSR and also not filed letter dt. 30.05.2006 addressing to the O.P, seeking permission to dismantle his rig – unit at Sergarh instead of M/s. G.S Work, BBSR. From the above statement of the complainant, it clearly established that he is not the owner of the rig- unit and the said machine in question was engaged at Kaptipada on the alleged date and time, was broke down, which is totally contradicted to his own version made in the complaint petition.

11.        In the above facts and circumstances of the case and taking into consideration the discussions made above, it is held that the complainant has no cause of action to file the case and the case is also not maintainable. Consequently, the complainant is not entitled to get the benefits as claimed in his complaint petition.

             Hence, it is ordered -

O   R   D   E   R

             The case of the complainant be and the same is dismissed on contest against OP. But in the peculiar facts & circumstances, no order as to costs.

             Pronounced in the open Court of this Commission on this day i.e. the 02^nd day of January, 2024 given under my Signature & Seal of the commission.