DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, PALAKKAD
Dated this the 9th day of December, 2024
Present : Sri. Vinay Menon V., President
: Smt. Vidya A., Member
: Sri. Krishnankutty N.K., Member Date of Filing: 01/08/2023
CC/192/2023
Ahammed Fazil,
S/o. Veerankutty Haji,
Kizhakkepattuthodi (H),
Vallapuzha (PO), Palakkad – 679 336. - Complainant
(By Adv. K.R. Santhosh Kumar)
Vs
HDFC Ergo GIC,
2nd Floor, Chicago Plaza,
Rajaji Road, Near KSRTC Bus Stand,
Cochin – 682 001 - Opposite party
(OP by Adv. M/s Ullas Sudhakar and Saji Issac)
O R D E R
By Sri. Vinay Menon V., President
- Undisputed pleadings are that the complainant’s load carrying vehicle, insured with the OP was gutted when the same came into contact with an overhead electrical wire.
- Pleadings diverged at this point with the complainant pleading that the electrical wire was sagging dangerously and the opposite party holding that the complainant’s vehicle was carrying 3.7 times the permitted load and the size of the load caused contact with the electric line leading to combustion. Claim for insured amount was repudiated by OP on this ground stating that the complainant had failed to take ample care so that the vehicle would not suffer any untoward damages. Aggrieved by the repudiation, this complaint is filed.
- Pleadings considered, following issues were framed:
- Whether the complainant has resorted to overloading?
- Whether the repudiation of complainant’s claim was as per policy conditions?
- Whether there is any deficiency in service on the part of OP?
- Whether the complainants are entitled to any of the reliefs sought for?
- Any other reliefs?
4. (i) Documentary evidence of complainant comprised of proof affidavit and Exhibits
A1 to A11 on the part of complainant.
(ii) OP filed proof affidavit and marked Exts. B1 to B5.
iii) All documents from both sides were marked without any objection.
Issue No.1
5. It goes without dispute that the vehicle of the complainant was insured under a policy issued by the OP. The sole ground for repudiation of the claim was that the insured had failed to take reasonable steps to safe guard the vehicle from loss or damage and to maintain it in efficient condition, as contemplated under condition No.4 of Ext.B1 policy conditions. The OP also refers to misrepresentation of facts as against the complainant. The claim was closed as no claim. Reason for resorting to such a drastic measure is that the surveyor and the investigator deputed by the OP had observed that vehicle was loaded 3.7 times over sized cargo than the actual size of load body. It was due to this oversize that the consignment came into touch with the electric wire leading to combustion.
6. Ext.B3 is the Fire Forensic Report relied upon by the OP. Ext.B3 is a well-studied documents which include the details of the insured and insurer, incidence scene examination, versions of incidence, collection of evidences, forensic analysis / testing and observations, forensic conclusion and annexure. Annexure contains statements, photographic and recorded evidences, vehicle RC and driving license, lorry receipt, google time line and call history, Police & Fire Brigade Report.
7. No objection what so ever was made by the complainant at the time of marking the said report.
8. Still, we feel it imperative that we go through the documents and arrive at a studied conclusion with regard to the discussions, analysis and findings arrived at by the forensic team deputed by OP.
9. Since repudiation is based on the ground of over-loading, we are resorting to discussions and documents relied on by the experts alone.
Weight of Consignment
10. The only evidence that the experts have relied on to come to a conclusion that the weight of thermocol box as 2 tonnes was a document purporting to be a lorry receipt which can be seen in page 26 of Ext.B3 report. Said document is produced independently and marked by OP as Ext.B4.
11. We went through Ext.B4. Ext.B4 is a memo issued by one M.K.M. Transport, of which one Mr. Malik is the proprietor. M.K.M. Transport is a lorry booking agent. Ext.B4 memo is issued to one Veerankutty. The contents which are addressed to Sri. Veerankutty reads as follows:
“Dear Sir,
We are sending the Lorry No. KL-02-AC-5824 for loaded from Kondurkara to Irinjalakuda (Katur). Lorry hire fixed at Rs.5500/- for upto to 2-ton……... Loaded particulars Old - Thermocol – Box. ………………………………..”(sic)
It is also shown that loading and unloading has to be done by party.
12. On a perusal and appreciation by Ext.B4, we find that this is a document by which M.K.M Transport has agreed to provide transport facility (Lorry bearing Regn. No. KL-02-AC-5824) to Sri. Veerankutty for transporting old thermocol box from Kondurkara to Irinjalakuda (Katur) for a rental of Rs.5,500/- for consignments weighing upto 2 ton.
Contents of Ext. B4 can only mean that whatever be the weight of the consignment, Sri. Veerankutty, the consignor, had to pay Rs.5,500/- for weights from Nil to 2 tonnes. For weights above 2 tonnes, the rental would change. Ext. B4 cannot be termed as a Lorry receipt. Ext.B4 cannot be construed as any document that would prove the weight of thermocol box to be 2 tonnes.
13. In order to ascertain the actual weight of the consignment, the forensic experts ought to have availed bills / invoices / lorry receipts from Veerankutty, to whom the lorry was assigned. Upon going through Ext.B3, from beginning to end, we could not find any evidence to show that the experts had contacted the aforesaid Veerankutty and had ascertained the quantity of thermocol box transported. The surveyors deputed by the O.P. having failed to do so, there is no evidence to bank on to show that the consignment weighed 2 tonnes.
14. Thus, we hold that reliance on Ext.B4 memo alone to arrive at a conclusion that the weight of consignment was 2 tone is fallacious, illogical and totally baseless.
Height of consignment
15. From the Google Map in page 4 of Ext.B3, it can be seen that the complainant had travelled around 74.5 kms. It is also not clear whether the vehicle came into touch with an electrical line that was parallel to the road or one that crossed the road. It is also to be borne in mind that the electrical posts are of uniform length/height. On passing through all these distances of 74.5 kms, the lorry did not address any issue with any KSEB lines. Had the height of the consignment be as shown in Page 21 of Ext. B3, there was every chance of the consignment coming in contact with lines further down the lane. But that did not happen.
16. The forensic expert has also failed to take into consideration the height in which the lines are drawn. The expert ought to have taken the height at with the lines are drawn and matched the said height with the calculation he had arrived at in page 21 of Ext. B3.
17. Ext. A10 is the copy of report by KSEB stating that the sagging wire is corrected. In the diagram in page 21 of Ext. B3 the expert has shown that the wire was drawn tout. There is no finding anywhere that the cable got stuck with the consignment and was drawn leading to sagging of the wire. Ext. A10 is silent as to the cause of sagging. In such a circumstance, the expert, in view of the specific contention of the complainant (not before this Commission, but before the Insurance Authorities, while raising his claim) that his vehicle had come into contact with a sagging wire, ought to have investigated this aspect as well rather than relying on Ext. A10 blindly.
18. Thus, we are constrained to hold that Ext. B3 report is not conclusive and is faulty insofar as ascertaining the height of the consignment.
19. We are constrained to hold that the pleadings of the complainant that there was a precariously sagging line may be more probable. O.P. has failed to prove by adducing cogent evidenced that the complainant had resorted to over-loading.
Issue No.2
20. As already stated above, Ext. B3 report is based on faulty appreciation of the documents and ground realities. Repudiation of the complainant’s claim is based on this report. Hence repudiation of claim is against the terms and conditions of contract.
Issue No.3
21. Consequent on the findings in the issues above, we hold that there is deficiency in service on the part of the O.P. in repudiating the complainant’s claim.
Issue Nos. 4 & 5
22. Complainant has sought for an Order setting aside of the claim repudiation letter, order payment of Rs. 13,50,000/-, a compensation of Rs. 2,00,000/-, and a cost of Rs. 50,000/-.
We are of the opinion that this Commission is not in a position to order Rs. 13,50,000/-. We leave the O.P. to decide on the amount payable based on the documents submitted and the terms and conditions of the policy agreement.
Further, in the facts and circumstances of the complaint, we hold that a compensation of Rs. 2,00,000/- is exorbitant.
23. Resultantly, we allow the complaint on the following terms:
i. Ext. A2 communication of repudiation of claim is set aside.
ii. O.P. is directed to recalculate the claim of the complainant and pay the admissible amount to the complainant.
iii. The amount so arrived at shall carry interest at the rate of 10% from the date of accident till the date of payment.
iv. Complainant is entitled to a compensation of Rs. 75,000/-
v. Complainant is entitled to a cost of Rs. 50,000/-
vi. O.P. shall comply with the aforesaid order within 45 days of receipt of a copy of this Order failing which they shall pay a solatium of Rs. 1000/- per month or part thereof to the complainant from the date of this Order till the date of final payment.
Pronounced in open court on this the 9th day of December, 2024.
Sd/-
Vinay Menon V
President
Sd/-
Vidya.A
Member
Sd/-
Krishnankutty N.K.
Member
APPENDIX
Exhibits marked on the side of the complainant:
Ext.A1 - Copy of goods carrying comprehensive policy
Ext.A2 – Copy of repudiation letter dated 2/1/2023
Ext.A3 - Copy of RC of the vehicle
Ext.A4 – Copy of certificate of fitness
Ext.A5 – Copy of tax license
Ext.A6 – Copy of PUC certificate
Ext.A7 – Copy of Goods Permit
Ext.A8 – Copy of report by Kerala Fire Force
Ext.A9 – Copy of GD Entry
Ext.A10 – Copy of report by KSEB
Ext.A11 – Copy of Lawyers notice dated 7/1/2023
Exhibits marked on the side of the opposite party:
Ext.B1 – True copy of goods carrying comprehensive policy alongwith terms and conditions.
Ext.B2 – Printout of a scanned letter from complainant
Ext.B3 – Copy of fire forensic report
Ext.B4 – Printout of scanned copy of memo bearing No.4610 dated 19/9/2022
Ext.B5 – Printout of scanned copy of GD entry.
Court Exhibit: Nil
Third party documents: Nil
Witness examined on the side of the complainant: Nil
Witness examined on the side of the opposite party:
DW1 – Adwaith Manohar (O.P.)
Court Witness: Nil
Dictated to my Confidential Assistant by me, transcribed by him and verified by me and found correct.
Dated this the 9th day of December 2024.
Sd/-
Vinay Menon V
President
NB : Parties are directed to take back all extra set of documents submitted in the proceedings in accordance with Regulation 20(5) of the Consumer Protection (Consumer Commission Procedure) Regulations, 2020 failing which they will be weeded out.
