BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE
Dated this the 9th of December 2010
PRESENT
SMT. ASHA SHETTY : PRESIDENT
SRI. ARUN KUMAR K. : MEMBER
COMPLAINT NO.41/2010
(Admitted on 30.01.2010)
Mr.Udaya D,
So. Shankarnarayana Bhat,
Aged about 27 years,
RA. Durga Nilaya, Nadupadav,
Mangalagangothri Post,
Konaje Village,
Mangalore Taluk. …….. COMPLAINANT
(Advocate for the Complainant: Sri.Udayananda A.)
VERSUS
ICICI Lombard General Insurance Company,
Represented by its Branch Manager,
Maximus Commercial Complex,
C 22, 2 Floor, LHH Road,
Opp: K.M.C., Mangalore 575 001. ……. OPPOSITE PARTY
(Advocate for the Opposite Party: Sri.M.V. Shanker Bhat)
***************
ORDER DELIVERED BY PRESIDENT SMT. ASHA SHETTY:
1. This complaint is filed under Section 12 of the Consumer Protection Act alleging deficiency in service against the Opposite Party claiming certain reliefs.
The brief facts of the case are as under:
The Complainant submits that, he is the registered owner of the L & T CASE 770SS BACKHOE LOADER bearing registration No.KA 19Z-6443. The above said Mobile Bulldozer/Excavator using for Excavating soil for the purpose of leveling the land and the above said vehicle had insured with the Opposite Party under a Miscellaneous Package Policy bearing policy No.3008/53353171/ 01/000 valid from 11.01.2009 to 10.01.2010.
It is stated that, on 16.04.2009, when the aforesaid Mobile Excavator/Bulldozer was being driven to the work site, the said vehicle dashed against the hillock and sustained heavy damage. That on account of the said accident and consequent landslide over the said vehicle, the cabin and other parts of the same was completely damaged. Thereafter, the Complainant lodged a claim with the Opposite Party. The Opposite Party assessed the damage at Rs.5,50,000/- and obtained the quotation for the spare parts repaired to be replaced in the place of the damaged and destroyed spare parts from M/s. Ajax Engineering Private Limited, Bangalore who are the dealers for L & T Case Equipment Private Limited, the manufacturer of the aforesaid vehicle. It is stated that, the Opposite Party took very lethargic view in processing the claim and has sent a letter dated 11.05.2009 repudiating the claim alleging that, “the reported claim is not admissible as there is no coverage for overturning in the policy”. It is stated that, the repudiation made by the Opposite Party is not correct. The reason assigned by them is false, the vehicle which met with an accident when it was in motion and thereby the damage suffered on account of the said accident and land sliding is covered under the policy and stated that, on account of the failure of the Opposite Party, the vehicle could not be get repaired and the vehicle kept idle ever since the date of accident till this date. It is further submitted that, the Complainant has to pay exorbitant loan installments to the banker. On account of the accident, the Complainant suffered loss at the rate of Rs.500/- per day and he could not run the vehicle and hence the above complaint filed under Section 12 of the Consumer Protection Act 1986 (herein after referred to as ‘the Act’) seeking direction from this Forum to the Opposite Party to pay sum of Rs.5,50,000/- towards the damages caused to the L & T CASE 770SS BACKHOE LOADER, Rs.500/- per day towards the loss suffered by the Complainant from 16.4.2009 to 16.01.2010 amounting to Rs.1,37,000/- and also claimed Rs.2,00,000/- towards compensation along with interest at the rate of 9% p.a. till payment and also pay cost of the proceedings.
2. Version notice served to the Opposite Party by RPAD. Opposite Party appeared through their counsel filed version, admitted the policy but it is contended that, the Bulldozer toppled while under operation, hence this Opposite Party is not liable to pay any compensation because extra premium had not been collected covering the damage which may occur by toppling of the Bulldozer. The Tariff Advisory Committee constituted under Insurance Act has clearly provided as per IMT 47 that, unless the party opts and pays additional premium, loss or damage resulting from overturning arising out of the operation of the vehicle/ Bulldozer as a tool would not be payable as part of the basic indemnity. The repudiation of the claim was legally valid and proper.
It is stated that, the Opposite Party had obtained a survey report dated 27.04.2009, the loss assessor estimated the liability as Rs.1,78,775.40. The amount of Rs.5.5 lakhs claimed is without any basis and contended that there is no deficiency of service and the Bulldozer is used for commercial use and the complaint is not maintainable and prayed for dismissal of the complaint.
3. In view of the above said facts, the points now that arise for our consideration in this case are as under:
- Whether the Opposite Party proves that the above said bulldozer used for commercial purpose?
- Whether the Complainant proves that the Opposite Party has committed deficiency in service?
- If so, whether the Complainant is entitled for the reliefs claimed?
- What order?
4. In support of the complaint, Sri.Udaya D (CW1) filed affidavit reiterating what has been stated in the complaint and answered the interrogatories served on him. Ex C1 to C4 were marked for the Complainant as listed in the annexure. One Sri.Naveen Kumar P.V.T. (RW1), Insurance Surveyor and one Sri.Ullas Karanth (RW2), Manager-Legal of the Opposite Party filed counter affidavits and answered the interrogatories served on them. Ex R1 to R12 were marked for the Opposite Party as listed in the annexure. Both parties produced notes of arguments.
We have considered the notes/oral arguments submitted by the learned counsels and also considered the materials that was placed before this Forum and answer the points are as follows:
Point No.(i): Affirmative.
Point No.(ii) to (iv): As per the final order.
Reasons
5. Point No. (i) to (iv):
The facts which are not in dispute is that, the Complainant is the registered owner of the L & T CASE 770SS BACKHOE LOADER bearing registration NO.KA 19Z-6443. It is also admitted that, the Complainant has purchased the above said Mobile Bulldozer cum Excavator by paying Rs.13,79,440/- and the same is using for excavating soil for the purpose of leveling the land belonging to him. The above said excavator insured with the Opposite Party under Miscellaneous Package Policy bearing policy No.3008/ 53353171/01/000 valid from 11.01.2009 10.01.2010 as per document No.1).
Now the dispute between the parties before this FORA is that, according to the Complainant, on 16.04.2009 when the aforesaid Mobile Excavator cum Bulldozer was being driven to the work site belonging to the Complainant, the said vehicle dashed against the hillock and sustained heavy damage. On account of the said accident, the cabin and other parts of the same was completely damaged and the Complainant lodged a claim with the Opposite Party but the Opposite Party not honoured the claim, hence this complaint.
On the other hand, the Opposite Party interalia contended that, the bulldozer is used for commercial purpose and the said bulldozer was overturned while under operation and hence the overturning and consequent damage is not covered under the policy as per IMT 47.
However, the Complainant filed oral evidence by way of affidavit and produced Ex C1 to C4. Opposite Party also filed oral evidence by way of affidavit and produced Ex R1 to R17.
On scrutiny of the oral as well as documentary evidence available on record, we find that, the Complainant is the registered owner of the above said vehicle and the said vehicle got insured with the Opposite Party under Miscellaneous Package Policy and the said policy is valid from 11.01.2009 to 10.01.2010 (i.e., as per document No.1). Now the only dispute between the parties before this FORA is that, according to the Complainant, the Excavator cum Bulldozer was being driven to the work site belonging to the Complainant, the said vehicle dashed against the hillock and sustained heavy damage. But the Opposite Party contended that, as per Ex R11 i.e., the claim form submitted by the Complainant the description of the accident, he has stated that, while his machine was under operation at the site, retaining wall was slided and machine toppled for to the left side and damaged. So, the loss or damage was resulted from overturning arising out of the operation as a tool, hence he is not entitled any claim and relied IMT 47 of the policy.
However, we have perused the IMT 47, wherein, it is defined as fallows:-
The Mobile Cranes/Drilling Rigs/Mobile Plants/Excavators/ Navies/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:-
- Under Section 1 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.
- ……………………….
N.B.:
Omit paragraph (a) for:-
- Liability only policies.
- Package Policies where an additional premium has been paid for inclusion of damage by overturning.
As per the policy, if the Opposite Party proves before the FORA, that the loss or damage caused to the bulldozer/excavator resulting from overturning arising out of the operation as a tool, then definitely the Complainant is not entitled for any claim. But in the instant case, the Ex R11 i.e., claim form submitted by the Complainant to the Opposite Party, wherein, under the heading ‘description of the accident’, the Complainant stated that, according to him, the accident was occurred while machine was under operation at the above site, retaining wall was slide and machine was toppled to the left side and damaged. That means, the accident was caused solely because of unforeseen or intervening cause like retaining wall or hillock dashed against the vehicle. When that being the case, one cannot say that it is not an accident but the same has occurred due to overturning of the vehicle. It is ludicrous to believe that, the vehicle was overturned while in operation. The Opposite Party failed to prove that, the accident was caused due to overturning of the vehicle. Further, we have perused the Survey report issued by one Mr.Naveen Kumar dated 27.04.2009. As per the survey report, it explained that, the damage was caused due to the accident to the bulldozer and assessed the damage of Rs.1,78,775/-. The report of an insurance surveyor is an important piece of evidence and it has to be relied upon unless it is proved by some cogent and reliable evidence that it could not be relied upon. In the instant case, there is no such evidence available on record. In the absence of the same, the survey report holds good. Further, the above said vehicle used for excavating soil for the purpose of leveling the land belonging to him and produced the Ex C4 i.e., the record of rights pertaining to the Complainant in order to show that, he is holding immovable properties. The same is not denied by the Opposite Party. When that being so, one cannot contend that the above said vehicle used for commercial purpose without therebeing any material evidence.
In view of the above discussion, we are of the considered opinion that, the Opposite Party i.e., ICICI Lombard General Insurance Company is liable to indemnify the loss suffered by the Complainant for a sum of Rs.1,78,775/- along with interest at 10% p.a. from the date of accident till the date of payment. In the present case, the interest considered by this Forum itself is compensation and therefore, no separate amount for compensation is awarded. Rs.1,000/- awarded as cost of the litigation expenses. Payment shall be made within 30 days from the date of this order.
6. In the result, we pass the following:
ORDER
The complaint is allowed. Opposite Party i.e., ICICI Lombard General Insurance Company represented by its Branch Manager is hereby directed to pay Rs.1,78,775/- (Rupees one lakh seventy eight thousand seven hundred and seventy five only) to the Complainant along with interest at 10% p.a. from the date of accident till the date of payment. Further Rs.1,000/- (Rupees one thousand only) awarded as cost of the litigation expenses. Payment shall be made within 30 days from the date of this order.
The copy of this order as per the statutory requirements be forwarded to the parties free of charge and therefore the file be consigned to record.
(Page No.1 to 10 dictated to the Stenographer typed by her, revised and pronounced in the open court on this the 9th day of December 2010.)
PRESIDENT MEMBER
ANNEXURE
Witnesses examined on behalf of the Complainant:
CW1 – Sri.Udaya D – Complainant.
Documents produced on behalf of the Complainant:
Ex C1 – 02.05.2009: Original bill for Rs.3,49,695.84 having repaired the bulldozer at Ajax Engineering Pvt. Ltd, authorized dealer of L & T Case Equipment Pvt. Ltd.
Ex C2 – : Original bill for Rs.16,545/- paid towards service charges issued by Ajax Engineering Pvt. Ltd.
Ex C3 – : Copy of the Driving Licence of Mr.Nagesh U.
Ex C4 – : RTC’s of the property belonging to the Complainant and his family total 10 members.
Documents Produced by the Complainant:
1) 09.01.2009: Copy of the Insurance Policy issued by the Opposite Party.
2) 11.05.2009: Original of the repudiation letter issued by the Opposite Party.
Witnesses examined on behalf of the Opposite Party:
RW1 – Sri.Naveen Kumar P.V.T., Insurance Surveyor.
RW2 – Sri.Ullas Karanth, Manager-Legal of the Opposite Party.
Documents produced on behalf of the Opposite Party:
Ex R1 – 27.04.2009: Certified copy of the final survey report issued by Sri.Naveen Kumar P.V.T., Engineer, Surveyor and Loss Assessor.
Ex R2 to R10 - : Photographs of the vehicle (9 in numbers).
Ex R11 – 25.04.2009: Original claim form submitted by the Complainant.
Ex R12 – 16.04.2009: Original report of CSM with digital photos of the Bulldozer damaged at the spot of work (7 in numbers).
Dated:09.12.2010 PRESIDENT
