Date of filing: 05.01.2015 Date of disposal: 06.08.2018
Complainant: Sri Ravindar Singh, S/o. Sri Satyapal Singh, resident of Radhakrishna Pally (East), near Ananda Dhara Hall, Benachity, Durgapur – 13, PS: Durgapur, Dist: Burdwan.
- V E R S U S -
Opposite Party: 1. IFFCO TOKIO GIC LTD., C/o. The Citi Residence, Office Tower, 3rd Floor, Sahid Khudiram Sarani, City Centre, Durgapur – 16, PS: Durgapur, Dist: Burdwan.
2. KON EQUIPMENTS PVT LTD., (Authorized Dealer of Mahindra Equipments) represented by its Director Kapil Malhotra, 108, Moulana Azad Sarani, City Centre, Durgapur – 16, PS; Durgapur, Dist: Burdwan. (expunged)
Present:
Hon’ble President: Smt. Jayanti Maitra (Ray).
Hon’ble Member: Smt. Nivedita Ghosh.
Hon’ble Member: Dr. Tapan Kumar Tripathy.
Appeared for the Complainant: Ld. Advocate, Suvro Chakraborty.
Appeared for the Opposite Party No. 1: Ld. Advocate, Saurav Kumar Mitra.
J U D G E M E N T
This complaint is filed by the complainant u/S. 12 of the C. P. Act, 1986 alleging deficiency in service and unfair trade practice against the Ops as the Ops did not pay the insured amount or repairing the damaged machine.
The case of the complainant in short is that the complainant purchased a Mahindra Earthmover Backhoe Loader from the OP-2, authorized dealer of Mahindra Equipments on 22.01.2014 amounting to Rs. 29.50 lacs on finance from Canara Bank, Bamunara Branch, Durgapur and the dealer had tie-up arrangement with IFCO TOKIO General Insurance Co. Ltd.-OP-1 and they got the vehicle/machine insured vide policy No. 86490101 on the same day i.e. 22.01.2014. The complainant sent the said machine for desilting of Lake at Kakdip (Namkhana), 24-Pgs. And was working on site but on 09.04.2014 due to displacement of soil from the base of the machine, the machine was accidentally stuck in the Lake and it became impossible to take out the said machine from the Lake and for this specialized mechanic was called for to take out the machine from the lake. The matter was also reported to the dealer of OP-1 as well as the Insurance Company-OP-1 on 09.04.2014 and the OP-1 sent surveyor on 10.04.2014 to verify and assess the damage and accordingly the Surveyor after proper verification assessed the estimated amount of cost for repairing the machine and submitted to the OP-1 by the OP-2. As the dealer could not repair the machine on site, was advised to tow the vehicle/machine which was done by me and was kept idle at the Dealer servicing centre having been assured by the Insurance Company to settle the expenses for the repairing work.
The OP-2 delayed to repair the damaged vehicle/machine for non-payment of the OP-1 as such the complainant requested both the Ops to repair and to deliver the said vehicle/machine as he was facing for losing the job in hand. But after a lapse of two months the OP-1 delivered a letter dt. 03.06.2014 which was received on 09.06.2014 declining the claim “for damage due to overturning and it is not insured under Endorsement IMT47”, which is not true. The Insurance Company tried to avoid the insurance claim intentionally and motivatedly remarked such, from which it appears their unfair trade practices. The insurance coverage was done by the dealer as per tie up arrangement with the Insurance Company and accordingly the complainant paid the premium. Such delay and refusal to pay the claim after lapse of two months showing the flimsy ground the complainant was compelled to get the said machine/vehicle repaired after payment of Rs. 5, 24,884=00 after borrowing the amount from the friends and relatives which he will have to pay and for which he become defaulter for non-payment of the EMI to the Bank. The complainant prayed for directing the OP-1 to pay Rs. 5,24,884=00 for repairing the damaged vehicle/machine, compensation of Rs. 6,80=000 for loss of two months idle keeping the machine/vehicle, mental tension, agony, harassment and defaulting to make payment of installments with penal charges to the concerned Bank and also Rs. 5,000=00 as litigation cost.
This complaint is contested by the OP-1 by filing written version denying all the material allegations made by the complainant in the petition of complaint.
The case of the OP-1 is that a policy of insurance was issued in favour of the complainant by covering the risk of Ravinder Singh in respect of the Mahindra Loader with Engine No. PUNDBLC0578 and Chasis No. 13K2234 subject to terms, condition and stipulation thereof. The policy does not cover used for hire or reward. The insured had not paid premium for Overturning Extension under IMT 47 and also for Hire Reward/Commercial Usage. In this regard this OP begs to submit that there was no tie up between the Dealer and this OP. the policy was issued through proposal form duly submitted by the complainant through the agent of this OP, namely, Haque Sk. Mojammal. ON completion of 64 VB of the Insurance Act the above mentioned policy was issued and that was sent to the OP. It was on the part of the complainant to intimate this OP after registration but till date no registration particulars has been furnished by the complainant in favour of this OP. moreover the said policy was not a cashless policy but the same was an indemnification policy.
This OP further submits that after getting information regarding accident OP appointed spot surveyor Amitabha Chakraborty and his report mentioned that when the vehicle was pulling mud and soil from a pond then due to loss of soil the vehicle fell into the pond and turn turtle as he had came to know from the insured and after submitting his report the matter was sent to final surveyor Manotosh Bhakta who submitted his report on 29.05.2014. From the facts of the accident, as it appears, that the claim is not maintainable under the policy. The same was repudiated and that was intimated to the complainant vide letter dated 03.06.2014. There is neither any deficiency in service nor any unfair trade practice on the part of this OP.
The Ops further submits that the complainant never disclosed that the vehicle was using for hire and reward which he first time disclosed in his complaint petition. In this regard this OP craves leave to submit that using of machine on hire and reward also not covered under the said policy so the complainant neither lodged the claim with true or proper fact of the alleged accident nor have came before the Forum with clean hand. The complainant knowing fully well that he is not entitled to get any relief, has filed the instant case only to harass this OP. The present complaint should be dismissed with cost in favour of this OP.
The name of the OP-2 expunged vide order No. 10, dated 18.06.2015 as the complainant filed an application for expunging the mane and address of the OP-2 from the cause title of the complaint petition, which was registered as M.A. being No. 53/2015 and after hearing both sides, the M.A. was allowed.
-: Decision with reasons :-
To prove the case complainant filed his evidence-on-affidavit stating the facts which he has already stated in his petition of complaint. He also filed documents like policy papers and other documents of registration etc of the vehicle/machine purchase. He also filed the documents that the vehicle was repaired by KON EQUIP PVT. LTD. and the Tax Invoice dated 06.10.2014goes to show that total amount for repairing of the damaged Mahindra Earthmover Backhoe Loader amounting to Rs. 5,24,884=00 including labour charges of Rs. 45,000=00 and transportation cost of Rs. 15,000=00. The complainant incurred the expenditure towards the repairing of the said vehicle/machine has been proved by those documents.
The OP repudiated the claim vide letter dated 03.06.2014 stating the fact that the Commercial Vehicle Package Policy with Limitation as to use: Miscellaneous and special type vehicles – Class D and the perils is for “overturning during operational use as a toll of trade” is covered under IMT 47 of the Tariff, guiding the insurance of a commercial vehicle and on scrutiny of the policy as held by complainant it is observed that Endorsement IMT 47 has been opted out by complainant and in absence of the Endorsement IMT 47 at the material time of accident, the Insurance Company regrets for repudiation of the claim. We have gone through the policy papers where we found limitation as to use is also stating these facts.
OP never adduced any evidence as to why they repudiated the claim on the ground of limitation as to use. They relied on the report of the Surveyor but as per written version the Surveyor who went to survey after the accident, namely, Amitava Chakraborty who according to OP prepared the report but no such report is ever submitted by OP. Such Amitava Chowdhury adduced evidence as OPW in this case that he was appointed as Surveyor and Loss Assessor in respect of the accident claim of the machine/vehicle and submitted the spot survey report before the OP-Insurance Company.
OP in his written version also stated that the final survey was made by one Manatosh Bhakta and he also submitted his report on 29.05.2014. But to our surprise we find that one Hardev Singh has filed his evidence on affidavit as OPW that he was appointed on 02.05.2014 as Surveyor and Loss Assessor in respect of the claim of the complainant Ravinder Singh in respect of the said vehicle in question and that the fate of the claim in the absence of IMT 47 in the insurance policy was not payable and he returned the file to the Insurance Company. The report of such Hardev Singh is field by the OP dated 27.07.2014 goes to show that the date and time of accident is 09.04.2014 and he received request of survey on 02.05.2014 and inspected the vehicle on 03.05.2014 at the workshop of authorized dealer KON EQUIP PVT. LTD. at Durgapur. He conducted thorough inspection of the vehicle at the workshop, physically verified the chasis number and cause of accident ascertained. Though it is a case of overturning arising out of the operation as a toll and the loss and damage resulted. But there is no direct knowledge of the Surveyor that the vehicle was actually overturned or turned turtle and that as per exclusion clause of insurance policy terms and conditions cannot be covered as IMT 47 was opted out by the complainant. He also deposed in his evidence this fact.
But it is not clear who reported him about the overturning of the vehicle. The cause and nature of accident the surveyor as reported, insured earth moving machine was in operation at site. While digging earth the sand under wheels got loosened and machine over-turned and fell right sidewise.” There is no mentioning who reported the same. The Surveyor never visited the actual place of accident. No photographs were taken regarding inspection of the vehicle soon after the accident. Therefore it is not believable to this Forum that the vehicle was actually overturned or turned turtle and violated the terms and conditions of the policy and that complainant is not entitled to receive the claim as it is mentioned in the letter of repudiation. The complainant stated specifically on affidavit that while removing earth the machine was accidentally stuck in the lake and it became impossible to take out the said machine from the lake.
OP also took pleas of repudiation that the policy does not cover for hire and reward and violating the policy terms and conditions, machine was implied by the complainant. But this new ground was never taken in their letter of repudiation, where only ground is taken that the complainant is not entitled to the claim as he opted out limitation as to use overturning during operational use a toll of trade and it is not covered under IMT 47 of the policy.
Ld. Counsel for the OP-Insurance Company filed some rulings reported in 2012 (2) CPR 76 (NC) & 2012 (2) CPR 250 (NC).
From the evidence of the both sides and documents filed by the parties, it is clear to this Forum that the incident occurred during the operation of the digging earth and the complainant has able to prove that the machine was working for removing earth and accidentally stuck in the loose soil in the ground and he was not able to take out the machine from that place and the OP inspite of receiving information and conducting Survey, did not take any step for repairing of the said machine/vehicle and complainant was compelled to get the machine repaired after making payment of Rs. 5,24,884=00 to the repairer. That, the claim form was filled up and sent to the Insurance Company and OP- Insurance Company arbitrarily repudiated the claim showing Clause IMT 47, the exclusion clause. OP failed to prove his case that the claim was not maintainable in absence of IMT 47 Clause of the Insurance Policy assigning convincing evidence with sufficient document in this regard that actually the vehicle/machine was overturned. The report of the Surveyor is not of any help to the OP-insurance Company in this regard.
The questions put to the Surveyors by the complainant who filed evidence on affidavit as OPWs, never filed answers to those specific questions that how the OP-Insurance Company came to know about the alleged overturning of the vehicle/machine.
After hearing both sides and on perusal of documents filed by the parties, we find that the complainant has been able to prove his case. The OP repudiated the claim on the ground stated in the repudiation letter was not based on sufficient evidence. Therefore, the complainant is entitled to recover the amount which he incurred for the repairing of the damage of this machine/vehicle to the tune of Rs. 5, 24,884=00. The conduct of the OP-Insurance Company is necessarily amounting to deficiency in service in repudiating the claim of the complainant. As a result, the case succeeds. C. F. paid is correct.
Hence, it is
O r d e r e d
that the Consumer Complaint being No. 04/2015 be and the same is allowed in part against the OP-1 with cost with a direction to the OP-1 – Insurance Company to pay Rs. 5, 24,884=00 to the complainant as repairing cost of the damaged vehicle/machine within 45 days from the date of passing of this award, in default, it will carry penal interest @7% per annum for the default period and the OP-1 – Insurance Company is also directed to pay Rs. 5,000=00 as compensation for mental pain, agony and harassment and Rs. 2,000=00 as litigation cost to the complainant within 45 days from the date of passing of this award, failing which, the complainant is at liberty to put the award in execution as per provisions of law.
Let plain copies of this order be supplied to the parties free of cost as per provisions of law.
Dictated & Corrected by me: (Jayanti Maitra (Ray)
President
(Jayanti Maitra (Ray) DCDRF, Burdwan
President
DCDRF, Burdwan
(Tapan Kumar Tripathy) (Nivedita Ghosh)
Member Member
DCDRF, Burdwan DCDRF, Burdwan
