1.                     The brief facts of the case of the complainant are that he is a Civil Contractor and for his work he had purchased a Tata Hitachi, Model-Ex70 Hydraulic Excavator with GP Bucket, Dozer Blade and emergency spares in the year, 2012 and the said vehicle has been insured with the Ops since 2014-15 and for the last time, the vehicle was insured with the Ops vide Policy No.32068966 valid from 27.2.2015 to 26.2.2016 for a sum assured of Rs.18, 00,000/- with insurance premium of Rs.15, 814/-.  It is submitted that during subsistence of insurance on 11.6.2015 at about 1.30 AM (early hour on 12.6.15) while the vehicle was standing at camp site near village Ganjeipadar under Pottangi PS, some moist came and set the insured vehicle fire along with other vehicles causing extensive damage.  The fact of accident was immediately intimated to the local PS and the Ops as well.  The Insurance Co. deputed Er. B. B. Patro, Surveyor to the spot who took photographs of the ill fated vehicle and advised to shift the vehicle to authorised garage.  It is further submitted that the complainant intimated the fact to the dealer of the vehicle at Bhubaneswar and Er. B. B. Patro inspected the vehicle in pre-dismantling condition and issued a letter to the complainant to arrange dismantling the affected parts for inspection.  As per instruction of the Surveyor the complainant requested the authorised dealer  who after inspection advised the complainant that the cost of repair will be more than the cost of the vehicle and further stated that they cannot arrange testing of the vehicle  as because due to ravages of fire, the inner parts of Tata Hitachi has lost its temper.  It is also submitted that M/s. Trishul Tread Pvt. Ltd., Bhubaneswar has issued 2 number of dismantling estimates for Rs.16, 09,860.39 and Rs.6, 93,772.56 dt.14.7.2015 aggregating Rs.23, 03,632.95.  After submission of above estimates, the complainant awaited for decision of the Ops/Surveyor for dismantling of the vehicle.  After submission of claim form as well as estimates, the Ops as well as the Surveyor asked the complainant to submit undertaking to the effect that the complainant will retain the salvages for a sum of Rs.4, 32,000/- and being agreed, the complainant submitted a letter dt.03.11.2016 to the Opsto that respect with the hope that the matter will be settled early but the Ops did not settle the matter and sent a letter from their Kolkata office repudiating the claim with reason that “the work address declared as per policy is at near Santoshi Mata Temple, Parabeda, Jeypore, Dist-Koraput which is around 67 Kms away from the location where the accident was occurred” without giving any opportunity of appeal.  The complainant submitted that he has never supplied the above address as workplace of the vehicle but the Ops by mistake has written the said address in the policy document which is the residential address of the complainant and the Ops have arbitrarily repudiated the claim.  Thus alleging deficiency in service on the part of the Ops he filed this case praying the Forum to direct the Ops to settle the claim and pay the insured amount of Rs.18, 00,000/- with interest from 11.6.2015 treating the claim as total loss and to pay Rs.1, 20,000/- towards compensation and cost to the complainant and to take back the damaged vehicle from the garage.

2.                     The Ops 1 to 4 filed counter in joint admitting the insurance cover effected to the vehicle Tata Hitachi Model-Ex70 Hydraulic Excavator with GP Bucket, Dozer Blade of the complainant by OP.3, Bhubaneswar Branch vide Policy No.32068966 valid from 27.2.2015 to 26.2.2016 for a sum assured of Rs.18, 00,000/- with insurance premium of Rs.15, 814/- and during validity period of the insurance they have received message from the complainant on 15.6.2015 that the insured vehicle was damaged  due to set fire by unknown persons on 11.6.2015.  It is contended that the Ops deputed Er. B. B. Patro, Surveyor for investing into the matter and the Surveyor submitted its report on 20.09.2016 and as per the report of the Surveyor they have repudiated the claim of the complainant citing the reason that the damage to the insured vehicle occurred at Ganjeipadar, Kunduli, Pottangi PS whereas the work address declared by the complainant is at Santoshi Mata Temple, Parabeda, Jeypore, Dist-Koraput and due to said reason, they have repudiated the claim on 21.11.2016.  Thus denying any deficiency in service on their part, the OPs prayed to dismiss the case of the complainant.

3.                     Parties have filed certain documents in support of their cases.  The complainant has filed affidavit.  Heard from the parties through their respective A/Rs and perused the materials available on record.

4.                     In this case insurance cover extended to the Tata Hitachi Model-Ex70 Hydraulic Excavator with GP Bucket, Dozer Blade of the complainant by OP.3, Bhubaneswar Branch vide Policy No.32068966 valid from 27.2.2015 to 26.2.2016 for a sum assured of Rs.18, 00,000/- with insurance premium of Rs.15, 814/- is an admitted fact. Similarly setting of fire to the insured vehicle on 11.6.2015 at Camp site near Ganjeipadar under Pottangi PS by unknown persons is also an admitted fact.  It is also a fact that a Police Case was registered vide PS Case No.54/2015 dt.12.06.2015 u/s.435/427/34 IPC at Pottangi PS and the claim was registered with the Ops Vide No.3232/15-16/028.

5.                     The case of the complainant is that the Ops deputed Surveyor and the vehicle was shifted to the authorized garage.  The Surveyor advised to dismantle the vehicle but the authorized dealer on pre-dismantling condition of the vehicle issued estimates at Rs.23, 03,632.95.  The estimates were submitted to the Ops and they being agreed advised the complainant to accept the salvage at Rs.4, 32,000/- and they also agreed to settle the claim on total loss basis.  The complainant agreed to the proposal of the Ops on 03.11.2016 but the Ops later on repudiated the claim stating that the work address declared by the complainant in respect of vehicle is 67 Kms. away from the place of occurrence and after such repudiation; the Ops did not give any chance to the complainant for appeal.

6.                     As per the opinion of the Surveyor in his report dt.20.9.16, some unknown culprits have set the vehicle fire causing an accidental damage thereon.  The date of accident is 11.06.2015 and the complainant has duly intimated the fact to the Ops.  The Surveyor advised the complainant to arrange dismantling but the dealer of the said vehicle in pre-dismantling condition has offered estimate of Rs.23, 03,632.95.  The complainant has forwarded the said estimates to the Ops along with claim form.  The Surveyor submitted its report before the Ops on 20.9.2016 i.e. near about 15 months after the accident took place or spot survey by the surveyor.

7.                     We have gone through the survey report and found that as per opinion of the surveyor, the vehicle due to ravages of fire has been totally damaged and parts described in the report have become weak and lost its normal strength.  Skeleton structure of the vehicle was left behind on the spot of accident.  Hence though it was not directly declared by the surveyor that the loss is to be assessed on total loss basis, the report clearly indicates total loss of the vehicle in the fire accident.  However, the surveyor advised the Ops to settle the claim considering the location of the accident as mentioned in the policy bond.

8.                     The complainant stated in his complaint petition supported by affidavit that the OP.2 gave him a proposal to furnish an undertaking to the effect that the complainant will retain the salvages at Rs.4, 32,000/- for settlement of claim on total loss basis and the complainant with a hope for settlement of claim, he submitted undertaking dt.03.11.2016 accepting the proposal.  The copy of said offer letter of the complainant is available on record but the Ops on 21.11.2016 repudiated the claim disputing location of accident and work address as mentioned in the policy document.

9.                     In the above connection, we have gone through the policy documents and found insured’s address as “At-Near Santoshi Mata Temple, Parabeda, Jeypore, Dist-Koraput and in the same document, the work address has been mentioned as “At-Near Santoshi Mata Temple, Parabeda, Jeypore, Dist-Koraput.  We have also carefully gone through the Proposal Form furnished by the complainant requesting insurance coverage to his vehicle and found that the location address of risk is written in the Proposal Form as “At-Near Santoshi Mata Temple, Parabeda, Jeypore, Dist-Koraput (ON FLOATER BASIS).  As such the work place mentioned by the complainant in his proposal form differs from the work place mentioned in the policy document.  The Ops have omitted in mentioning the clause “On Floater Basis” and for such omission of fact, the Ops have repudiated the claim citing the reason that the risk place is 67 Kms. away from the place of accident.  The Dictionary meaning of “On Floater Basis” is “not fixed permanently in one particular position or place”.  Further one document which is available on record namely, CPM Calculator Sheet attached to the Proposal Form clearly indicates the working area of the machine as PWD, MI, RI and Departmental works at Malkangiri, Semiliguda, Koraput and Nabarangpur, Odisha.  Previous year policy to the said vehicle obtained by the complainant from the same Ops also indicates the working area of the machine as mentioned supra.

10.                   The Hydraulic Excavator machine of the complainant is construction equipment and in general sense, it cannot be kept in one place as mentioned in the work address of the insurance document which is the residential address of the complainant.  It works on floater basis as mentioned in the proposal form furnished by the complainant before getting the insurance from the Ops.  The complainant has rightly mentioned the work place but the Ops have wrongly taken the matter and placed a wrong note in the insurance document.  At no stretch of imagination it can be said that the machine will be at the residence of the insured during the insurance coverage period.  Thus the Ops committed blunder by not mentioning the “Floating” clause in the insurance documents while preparing the same and non settlement of insurance claim within a reasonable period is deficiency in service on the part of the Ops.

11.                   Further it is seen that the surveyor must have gone through the proposal form and other documents during his investigation.  He also failed to notice the fact and submitted its report after 15 months from the date of accident.  The Ops repudiated the claim on 21.11.2016 with flimsy and untenable ground.  However, as per suggestion of the Ops, the complainant has agreed to accept the salvage at Rs.4, 32,000/- through its letter dt.03.11.2016 but in spite of that, the Ops on 20.11.2016 repudiated the claim.

12.                   Considering the extent of damage from the report of the Surveyor as well as estimate and report of the repairer, we are of the view that the vehicle after fire accident is of no use and cannot come to its previous strength, if repaired.  Hence the Ops are to settle the claim on total loss basis.  Regarding salvages, the complainant has already agreed to accept the salvage at Rs.4, 32,000/- and hence we are not inclined to hold nothing regarding cost of salvage.  The Sum Assured in this case is Rs.18, 00,000/- and the Ops are to pay the sum assured with interest @ 9% p.a. from the date of repudiation which will be just and proper.  Further due to such inaction of the Ops, the complainant must have suffered some mental agony and has filed this case incurring some expenditure and hence he is entitled for some compensation and cost.  It is not out of place to mention here that the insured machine is construction equipment and from the date of fire accident it became useless.  Considering the sufferings of the complainant, we feel a sum of Rs.25, 000/- towards compensation and cost in favour of the complainant will meet the ends of justice.

13.                   Hence ordered that the complaint petition is allowed in part and the Op No. 2 & 3 being jointly and severally liable are directed to settle the claim on total loss basis at Rs.18, 00,000/- with interest @ 9% p.a. from 21.11.2016 and to pay a sum of Rs.25, 000/- towards compensation and cost to the complainant.  The Ops are further directed to deduct a sum of Rs.4, 32,000/- towards salvage from the above awarded amount after due calculation of interest on the sum assured.  The salvage shall remain  as the property of the complainant.  The above directions are to be complied by the Ops within 30 days from the date of communication of this order.

(to dict.)