Haryana

Ambala

CC/260/2016

Rakesh Kumar - Complainant(s)

Versus

Cholamandlam Ms General Inss Co - Opp.Party(s)

Yadwinder Gupta

06 Apr 2018

ORDER

BEFORE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMBALA.

                                        Complaint No.260 of 2016.

                                        Date of institution:- 23.06.2016.

                                        Date of decision: - 06.04.2018.

Rakesh Kumar aged 35 years son of Sh.Preet Ram s/o late Sh.Nathi Ram caste Harijan, r/o village Sirasgarh Tehsil Barar District Ambala.

                                                           ...Complainant.

Versus

1.Cholamandlam MS General Insurance Company Ltd. Branch Office near Dhiman Shuttering Store, Nahan-Naraingarh Road, OPpp. St.Francis Academy School, Kala Amb, Tehsil  Naraingarh District Ambala.

2.Cholamandlam MS General Insurance Co.Ltd.Business Location- Main Branch Office SCO 338 Basement, Near CANARA Bank ATM, Mugal Kanal Market, Karnal, District Karnal.

                                                            …Opposite parties.

Complaint under section 12 of

 

Before:     Sh. Dina Nath Arora, President.

                Sh. Pushpender Kumar, Member.        

                   Ms. Anamika Gupta, Member.                  

               

Present: -  Sh.Anil Singla, Advocate for complainant.

                Sh.R.K.Vig, Advocate for opposite parties.

       

Order

                In nutshell, the facts of the complaint are that the complainant purchased a tractor make Indo-Farm on 10.02.2016 from Saar Equipment Pvt. Ltd. and the temporary number was issued on 23.03.2016. The tractor was purchased with the financial help of Cholamandlam Investment and Finance Company   and the same was also insured with OPs vide policy No.3380/00961451/000/00 being comprehensive insurance policy w.e.f 31.03.2016. On 06.04.2016 the complainant loaded sugarcane in two tyre trolley to supply to a local contactor at village Gokalgarh which was situated approx.8-10 KMs away from the agriculture land of the complainant. At about 4.30 p.m. a motor cyclist suddenly approached the main road on high speed and in negligent manner, therefore, in order to save him the complainant took the loaded tractor on kacha portion resulting into major damage to the tractor. He immediately approached the Saar Equipment Pvt. Ltd. besides intimating the insurance company then at about 5.30 p.m. its official reached at the spot. Thereafter as per the directions of the company, he delivered the damaged tractor to Saar Equipments Pvt. Ltd.at Baddi for necessary repairs. The company had issued letter dated 07.04.2016 qua repairing estimate to the tune of Rs.3,10,221/-. The company had deputed their surveyors and the complainant also completed all the required formalities for settlement of claim but the insurance company vide letter dated 30.05.2016 repudiated the claim of the complainant wrongly and illegally on false grounds. The act and conduct of the OPs clearly amounts to deficiency in service on their part. In evidence the complainant has tendered affidavits Annexure CX, Annexure CY, Annexure CZ and documents Annexure C1 to Annexure C19.

2.             On notice OPs appeared and contested the complaint by filing their joint reply wherein it has been submitted that there was no insurance of trolley alongwith the tractor at the time of issuance of the policy. The complainant got tractor insured without trolley. The tractor in question was being driven by a person who was not having effective driving licence and the terms and conditions of the policy were violated by the complainant.  The surveyor opined and the company agreed to his proposal thereby repudiating the claim of the complainant on the account that the tractor when fitted with trolley was used for the purpose of loading the material from one place to another, there was no basis left with insurance company except to reject the claim of the complainant. Neither any illegality nor arbitrary action was followed by the OPs while disposing off the claim of the complainant qua the loss of the tractor which was fitted with two tyres trolley contrary to the terms and conditions of the policy. There is no deficiency in service on the part of the OPs and the claim has rightly been repudiated by the insurance company.  Objections about maintainability, jurisdiction, cause of action etc. have also been taken. Other contentions have been controverted and prayer for dismissal of the complaint has been made. In evidence, the OPs have tendered affidavits Annexure RA, Annexure RB and documents Annexure R1 to Annexure R15.

3.             We have heard learned counsel for the parties and gone through the case file very carefully.

4.             The complainant has come with the plea that the OPs have wrongly and illegally repudiated the claim lodged on account of damage of the vehicle caused during the subsistence of the policy. Moreover, the vehicle was not being used for commercial purposes and there was no violation of terms and conditions of the policy.

5.             On the other hand the OPs have denied the claim of the complainant on account of violation of terms and conditions of the policy because the driver was not having effective driving licence and the fact that the trolley which was fitted with the tractor was not insured with the OPs and even the vehicle was being used for commercial purposes despite the fact that the uses of the vehicle was for agriculture purposes.

6.                It is not disputed that the tractor was insured with the OPs and it got damaged during the subsistence of the policy. This Forum has to decide firstly whether any agricultural instrument attached to the tractor is deemed to be insured with the tractor and the insured vehicle was being used for commercial purposes. The word 'tractor' has been defined in the Act which is as under:-

"The tractor means a motor vehicle which is not itself constructed to carry any load (other than equipment used for the purpose) or propulsion; but excludes a road-roller."

On perusal of definition of the word 'tractor', it transpires that tractor itself is not able to carry any load without the equipment and as such, any equipment attached to the tractor is a part of tractor and is covered 5 of 9 under the insurance policy. In the present case, the trolley was attached with the tractor and was loaded with sugarcane, which has been the produce of agriculture fields belonging to the complainant as is evident through revenue record as well as agreement Annexure C10, Annexure C12 i.e. jamabandi, Annexure C13 i.e. mutation regarding taking the land on rent Ram Kumar son of Kashmira Ram who has tendered his affidavit Annexure CY at the time of incident in which it got damaged but nothing has come on record to show that the tractor was being used for any commercial purpose or there was any violation of terms and conditions of the policy issued by the appellant-insurance company.  The Ops have not taken the plea of plying the vehicle for commercial use in the reply and even this fact is also not mentioned in the repudiation letter. Moreover, the numberdar of that village has also furnished his affidavit Annexure CX wherein it has been mentioned that the complainant is doing the work of agriculture and the land has been owned by grandfather of the complainant and he has also taken the land from Ram Kumar on lease basis and the tractor was being used by the complainant for agriculture purposes and not for any other goods on hire basis. These documents have not been rebutted by the OPs by leading cogent and reliable evidence. The issue that the trailer attached with the tractor is a part of tractor was the subject-matter of consideration before a Division Bench of this Court in United India Insurance Co. Ltd. vs. Pritpal Singh and others, 1996 (2) RRR 335 wherein the following observation was made:-

"5.Definition of "motor vehicle" or "vehicle" is comprehensive so as to include any mechanically propelled vehicle adapted for use upon roads irrespective of the source of power and includes a trailer. "Trailer" has been defined separately but is also included in the definition of the "motor vehicle/vehicle". Therefore, even though a trailer may be drawn by a motor vehicle, it by itself is a motor vehicle and both the tractor and the trailer taken together would constitute a 6 of 9 transport vehicle. If the trailer/trolley is not driven by a tractor, it does not become a vehicle and does not have any independent identity. The very fact that the trailer has been included within the definition of "motor vehicle" clearly shows that the legislature did not intend to exclude a tractor together with a trailer/trolley from the definition of the "motor vehicle".

Undisputedly, the vehicle of the complainant was insured with the OP and after the incident the OPs had appointed surveyor who after physical inspection of the damaged tractor/trolley gave his report which has been placed on the case file as Annexure R8. Perusal of this very document reveals that the surveyor had assessed the net liability of insurer to the tune of Rs.276223.5/-. It is a settled proposition of law that Surveyor is the best person to assess the loss and his report cannot be brushed aside unless there is cogent and convincing evidence. In the instant case also, no credible evidence has been produced on the basis of which Surveyor’s report could be dis-believed. Moreover, the act and conduct of the of the insurance company  shows that it is bent upon to repudiate the claim of the complainant on one pretext or the other. The complainant has specifically submitted that at the time of incident he was driving the tractor and at that time he was authorized to drive the tractor and this fact is even evident from Annexure C11 wherein it has been clearly mentioned that the complainant was authorized to drive MC with Gear, LVV/NT-Car, LMV, Tractor only and the same was valid upto 11.12.2030. Keeping in view the above facts and circumstances of the case it is held that the insurance company has wrongly rejected the claim of the complainant which has been proved on the case file.  The case laws relied upon by learned counsel for the Ops  titled as CWP No.3878 of 2013 decided on 09.04.2014 in case Pula Ram Vs. State of Haryana by Hon’ble Punjab & Haryana High Court,  FAO No.5565 & 5566 of 2012 decided on 07.04.2014 in case Aas Mohammad Vs. Maya Devi & others decided by Hon’ble Punjab & Haryana High Court, 2013 (AC) Page 1352 by decided on 28.11.2011 by Hon’ble High Court of Punjab & Haryana High Court in case titled as Mam Chand Vs. Sunita Devi & Others are not applicable to the case in hand, therefore, same are being distinguished.

7.                     Now we are coming on the point of compensation. The complainant in his arguments has stressed that he has spent Rs.310221/- for repairing the vehicle (Annexure C4) i.e. estimate repair but surveyor has wrongly assessed the amount of Rs.276223.5/-. The complainant has failed to rebut the report of surveyor Annexure R8. Accordingly, we held that the OPs have wrongly and illegally repudiated the claim of the complainant and the impugned repudiation letter dated 30.05.2016 (Annexure C-9) is hereby quashed. The present complaint is allowed with cost which is assessed as Rs.5,000/-. The OPs are further directed to comply with the following direction within thirty days of the receipt of copy of the order:-

1. To pay a sum of Rs. 276223.5/- (as assessed by the surveyor in his report Annexure R8) to the complainant alongwith with simple interest @ 9% per annum from the date of filing of complaint till actual realization.

 

 Copy of the order be sent to the parties concerned, free of costs, as per rules. File after due compliance be consigned to record room.

 

Announced on: 06.04.2018

 

                                                               

PUSHPENDER KUMAR      ANAMIKA GUPTA        D.N. ARORA MEMBER                                MEMBER                        PRESIDENT