FINAL ORDER/JUDGEMENT
SHRI ASHOKE KUMAR GANGULY, MEMBER.
This is a complaint case u/s 12 of the CP Act, 1986. The brief facts of the case is that the Complainant is a Private Limited Company incorporated under the Companies Act,1956 and is engaged in the construction of various civil infrastructure who obtained a Contractors Plant and Machinery policy bearing no. OG- 19-2430-0410- 00000005 from the OP 1 for their Volvo Motor Grader, Model : G 930 of sum assured of Rs. 90,00,000/- for the period from 11.04.2018 to 10.04.2019 to cover material damage & Rs. 9,00,000/- for third party liability. The policy also covers STFI Perils, Earthquake and Floater Cover. The premium amount of Rs.84,292/- for the said policy was paid vide receipt dated 10.04.2018. The subject Volvo Motor Grader Model No. G 930 was damaged on 04.06.2018 when a loaded track dashed the front side of the Volvo Motor Grader machine whilst working at the designated site at Thakurpukur, Behala. The machine was operated by one expert namely Shri Kailash Yadav who was duly trained. The operation of gear transmission system of the machine was stopped while it was working at the site due to sudden impact with a vehicle carrying sand. The incident was reported to Thakurpukur P.S. A statement of an eye witness of the incident was also obtained. The service Engineer of Volvo dealer examined the affected machine at the site on 09.06.2018 and prepared a field service report. The complainant intimated the loss to the OP 1 on 07.06.2018 and surveyors being the OP 3 was appointed vide letter dated 07.06.2018. A joint inspection report dated 08.06.2018 was prepared where it is stated that the cause of loss was accident. The remark of the report was “The machine starts ingestion but due to failure in transmission this unable to move.” The OP 3 visited again with the service engineer of the dealer and the representative of the complainant on 15.06.2018 for inspection of the machine in dismantled condition. A joint inspection report duly signed by the service engineer along with the surveyors and representative of the complainant was prepared where the cause of lose was stated as “while said machine was operating in 5 No. gear, if got hit by another vehicle which cause its electronic transmission to fail by ceasing the system.” The Service engineer vide his field service report dated 16.06.2018 recommended to send the transmission to the work shop as early as possible. The OP 3 vide their revised preliminary lose advised report dated 12.06.2018 stated that “the frontal impact as on the ill fated machine is not sufficient enough to damage the clutch plate which was inside the transmission system without affecting other spares. So, the probable cause of lose is mechanical breakdown / or wear and tear”. The report was received by the complainant on 12.03.2019. The OP 3 fail to provide reasonable explanation to justify as to how it has been concluded that damage to the machine was caused due to mechanical break down or wear and tear of the machine prior to dismantling and physical examination of each and every components of the machine in presence of the service engineer. The observation of the surveyors is mere conjecture, purely speculative, baseless, doctorial and antedated. The OP 3 further approached the complainant to confirm the date, time and place of dismantling of the transmission machine and to keep aside all the damaged/affected parts replaced from the machine vide their letter dated 18.06.2018 which was already inspected by them on 15.06.2018. The surveyors also approached the complainant on 18.06.2018 to furnish the requisite document for preparation of the survey report. The OP 3 further visited on various dates at the Volvo Authorised workshop for inspection of repair job and also on 22.06.2018 to inspect the transmission system in dismantled condition and commented on it. No joint report was prepared with service engineer and the representative of the complainant The final survey report dt. 04.12.2018 was not in accordance with the joint inspection report dated 08.06.2018 and 15.06.2018 duly signed by all concerned. There is gross deviation of the Final Report against the reports dated 08.06.2018 and 15.06.2018. The complainant was asked to submit claim documents vide letter dated 17.07.2018 by the OP 1 against that complainant submits that the first claim documents were submitted on 14.06.2018 and second set on 29.06.2018 duly acknowledged by the OP1. Thereafter one Mr. Deepak Choudhury, Zonal Authority of the OP 1 visited to the office of the complainant for negotiated settlement of the claim as per purported survey report. The complainant refused to accept the subject proposal. At the time of talk of negotiation the final survey report was not prepared which give rise to unscrupulous activities and bad trade practice of the OP 1. The OP 3 visited the workshop on 06.08.2018 and worksite on 16.08.2018 to verify the new parts replaced and assembling of repaired transmission system. The complainant vide letter dated 30.11.2018 approached the OP 1 to arrange for reimbursement of the amount. The OP 1 denied their liability vide letter dated 20.02.2019. The surveyor/OP 3 denied to submit the original preliminary loss advise report in lieu of revised preliminary loss advise report when asked by the complainant. The OP 1 accepted the revised preliminary loss advise report without asking clarification from the OP 2 regarding the original report. The final survey report was subsequently issued on 04.12.2018. The said report with the identical assessment was submitted to the complainant on 10.08.2018. It was also suspicious that why the OP 1 did not take any action to conclude the claim for more than 5 months. The complainant issued mails dated 30.11.2018, 24.01.2019 and 31.01.2019 for early settlement of the claim. The OP 1 vide mail dated 31.01.2019 informed that they did not receive the final survey report as yet which is very much misleading and false since the date mentioned in the final survey report was dated 04.12.2018 issued by the surveyors. As per the letter of repudiation the reported loss was due to mechanical breakdown/ wear and tear only and as per the exclusion clause no. (b) & (i).of the policy. The OP 3 obtained an expert opinion from one Mr. D. Raghotham who commented that the loss is not due to any accidental impact to the outer body of the machine, this type of loss happened due to normal wear and tear for maintenance/mechanical breakdown only. The complainant is not at all convinced with the said expert report and relied on joint inspection report dated 08.06.2018 and 15.06.2018 where from it is established that the cause of loss was accident. The complainant also cited the letter from the authorized dealer dated 19.06.2019 which specifically states that the damage to the transmission of the Grader was happened due to the sudden impact it received from the reversing truck and it was not the case of normal wear and tear. The authorized dealer has also commented against the report of the surveyor. The joint inspection report signed by surveyor, service engineer and representative of the complainant did not state the damage was caused due to wear and tear/ mechanical break down of the component. The survey report was prepared on both partial and total loss basis where as the policy was issued on the current replacement value basis. More over the depreciation of 50 percenton the reported limited life parts was determined by the OP 3 on hypothetical basis without furnishing technical data and literature of the components. The salvage value of Rs. 3,02,189/- as assessed by the OP 3 is highly excessive where as the cost of 50 kg scrap iron to a Kabadiwala at the rate of 22/- per kg comes to Rs.1100/- only. The net adjusted loss claimed by the complainant is Rs. 17,11,237/- which has been repudiated by the OP 1 vide letter dated 20.02.2019 . Hence the case has been filed to the Commission with the prayers as mentioned in the complaint petition.
The OP 1 & 2 have contested the case by filing their W/V contending inter alia that the material allegations are false and the petition is not maintainable either in facts and in law against the OPs. The case is also not maintainable due to non joinder of necessary party / parties.
The complainant intimated the OP 1 regarding the alleged damaged . The surveyor was appointed by the OP 1. The report of the surveyor was submitted to the OP 1. The reported cause of loss is in contradiction of the nature of loss as found during inspection. Service Engineer’s report does not mention anywhere that loss occurred due to accident. The surveyor also appointed an expert Mr. D. Raghotam to confirm the cause of loss. The loss as per the report of the expert is not due to any accidental impact on machine and it happened due to mechanical breakdown / wear and tear. The OP 1 repudiated the claim vide letter dated 20.02.2019 on the basis of report from IRDA licensed surveyor cum loss assessor and hence there is no deficiency of service and as such the complaint petition is not maintainable.
Points for Determination
On the pleading of parties the following points have necessarily come up for determination.
- Whether the OPs have got deficiency in service.
- Whether the OPs are indulging unfair trade practice.
- Whether the Complainant is entitled for the relief/reliefs as prayed for.
Decision with Reasons
Points Nos. 1 to 3 :-
All the points are taken up together for the sake of convenience and brevity in discussion.
Complainant and the OP 1 & 2 have tendered their Evidence on Affidavit. The complainant has replied to the questionnaire set forth by the OP 1 & 2. Both have submitted their BNAs also.
We have travelled over all the documents placed on record.
Facts remain that the complainant had a Contractors Plant and Machinery Policy with the OP 1 bearing no. OG 19 2430 0410 00000005 for the period from 11.04.2018 to 10.04.2018 for their Volvo Motor Grader with sum insured of Rs. 90,00,000/- and third party liability of Rs. 9,00,000/-. As per submission of the complainant the said Motor Grader met with the accident on 04.06.2018 when a truck loaded with sand dashed the front side of the machine and the gear transmission system of the machine got stopped working due to sudden impact of the accident. The so called accident was reported to the Thakurpukur P.S. on 07.06.2018 vide GDE No 533 dated 07.06.2018. We could not understand why the preliminary information was reported to the police station on 3rd day of the accident which should have been done immediately as per the terms and conditions of the policy. We have also neither been provided with any report from the concerned Police Station in this matter thereafter nor the complainant approached the concerned police station for any follow up action against the owner of the vehicle for damaging his costly machine. The owner of the vehicle could have been made as necessary party in the instant consumer case. The reality of the accident could be understood in presence of the vehicle owner. The complainant is putting stress on the joint inspection report dated 08.06.2017 & 15.06.2018 to establish that the cause of loss is due to the accident. We do not find any concrete / independent paper where from it could be understood that the so called accident really took place. The statement of the eye witness of the accident who happens to be an employee of the complainant is also noted. We have gone through the Final Survey Report dated 04.12.2018 of the OP 3 where the Net Adjusted Loss as per the Final Summary stands Rs. 6,52,575/- and the recommendation of the Surveyor is that the cause of loss is contradicting with the nature of loss. The frontal impact as on the ill fated machine is not sufficient enough to damage the clutch plate which was inside the transmission system without affecting others spares and as such probable cause of loss is mechanical breakdown / or wear and tear, both are excluded under the CPM policy. In view of the above observation they recommended to the underwriter to decline the liability. The observation of the expert Mr. D. Raghotham dated 28.11.2018 in the matter of technical opinion with respect to cause of accident, nature and extent of damages to the Volvo Grader Machine as annexed with the Survey report is also noteworthy. The first observation is “ The machine is manufactured in 2006. Insured had purchased used machine on 05.02.2010. Reported no AMC with the dealer / manufacturer. Machine has done 8867 Hrs. In conclusion, they have mentioned
“ We observe only Transmission repair & normal wear & tear replacements in the repair bills submitted. No accidental repairs claimed noted in the repair bills.
Considering the above technical points & our observation, reported loss is not due to any accidental impact to the outer body of the machine , this type of loss happened due to normal wear & tear for maintenance / mechanical breakdown only.”
The repudiation letter dated 20.02.2019 of the OP 1 is in accordance with the above survey report of the OP 3.
In view of the above aspects we are of the considered view that the complainant has failed to establish his case against the OPs.
Thus all the points are answered accordingly.
In the result, the Consumer Complaint fails.
Hence,
Ordered
That the Complaint case be and the same is dismissed on contest against the OPs without any costs.
