By Sri. MOHANDASAN.K, PRESIDENT
Case of the complainant is as follows:-
1. The complainant is the owner of excavator model No.E 37 Excavator ultra HD, serial No.B45611352. He purchased the said excavator from the second opposite party. It was insured with the first opposite party vide policy No.2215/00033360/000/00 valid from 27/07/2022 to 26/07/2023. While the policy was in force the excavator met with an accident on 14/07/2023 at Chappangadi, Kurupinpadi. In the accident the excavator was overturned and thus the engine became defective. The vehicle has got warranty at the time of accident.
2. On the same day of accident the complainant informed the accident to the second opposite party and also the surveyor of the first opposite party Mr. Niyas in the mobile No.9746266070. The surveyor of the first opposite party inspected the spot of accident through video call and surveyed the accident. Subsequently Mr. Niyas demanded the documents of the excavator and for that purpose he was called and sent voice message. The complainant forwarded all the details of the excavator to the first opposite party surveyor and to the authorized Gmail account. Subsequently in accordance with the document furnished by the complainant the excavator engine was taken to the bobcat service center of the second opposite party. Thereafter the engine was taken to the Ashoka Auto engineering works Kalpatta for the repair of the engine which is under the second opposite party. The bobcat service center issued estimate for the repair of the engine and the complainant produced the estimate before the first opposite party. The complainant forwarded the estimate to the first opposite party through the email and also to the surveyor Niays through the whatsapp. But the first opposite party sent an email on 18/08/2023 stating baseless allegations regarding the accident. The entire averments in the email is false and baseless. As per the email sent by the first opposite party dated 14/07/2023 it is admitted the accident to the excavator and the damage caused to the engine as well as the survey of the excavator done by the surveyor. The complainant submitted that the first opposite party misunderstood the service engineers report. As per the report of the service engineer the excavator was met with accident and due to the overturning of the excavator the oil from the engine passed to the head and the oil was removed from the head which is specifically stated by the service engineer.
3. The complainant submitted that after purchase of the excavator it is being serviced from the second opposite party in accordance with rules and regulations and the same is maintaining properly. The said fact can be perused from the service book of the excavator. The complainant submitted that he is entitled the estimate amount as per insurance. The complainant submitted that he is entitled to replace the engine. It is submitted that there was valid insurance coverage at the time of accident and there was valid warranty for the excavator. The complainant submitted that subsequently to the accident the excavator is with the custody of third parties due to the non-co-operation of opposite parties. The complainant is not able to earn through using the excavator. He submitted he sustained a loss near Rs. 4, 00,000/- due to the act of opposite parties. The complainant submitted that if it is not repaired and if allowed to continue in the present condition it will cause more defects to the excavator and for that the opposite parties will be liable.
4. The complainant submitted that there is no sufficient reason to deny the insurance
Claim. The opposite party willfully denied the insurance which amounts deficiency in service and unfair trade practice. The opposite party instigated the complainant to avail the insurance policy of the first opposite party. Now the complainant submitted that the act of the opposite parties amounts violation of provisions of the Consumer Protection Act. Hence the opposite parties are liable to rectify the defect of the engine the complainant caused notice to the opposite parties demanding the redressal of his grievance. The complainant filed this complaint praying to direct the opposite parties to rectify the engine defect and to make the excavator in the previous condition of the accident. The complainant also prayed compensation of Rs. 4, 00,000/- along with appropriate other reliefs which the commission deems fit and proper.
5. On admission of the complaint notice was issued to the opposite parties and the opposite parties entered appearance and filed version.
6. The first opposite party denied the allegations in the complaint but admitted the issuance of insurance policy covering BOB CAT E 37 IN excavator with serial No. B45611352 for a period commencing from 27/07/2022 to 26/07/2023. The policy covers only damages due to accidents only and not for misuse or improper use of the machine. The policy also specifies that the equipment should properly maintained, adequately secured at the time of blasting operation.
7. It is submitted that the complainant reported a claim before the opposite party on
14/07/2023. As per the report of the surveyor and the report of the service engineer, damage to the engine happened due to the low oil level. It is an improper maintenance. It is submitted there was no accidental damage. The estimate submitted by the complainant is only an estimate and exaggerated one which cannot be the liability amount or repair cost. The surveyor appointed by the opposite party had assessed the liability as nil since the claim is inadmissible due to improper maintenance of the machine. Hence the claim was repudiated since it was out of the scope of the policy. The repudiation letter was sent on 18/09/2023. The claim was repudiated on valid grounds. Hence it is submitted there is no deficiency in service and the complaint is liable to be dismissed.
8. The second opposite party submitted version and admitted the sale of E 37 excavator ultra HD mini excavator machine to the complainant on 31/07/2021. The second opposite party submitted that the machine became defective and therefore the insurance company was asked to reimburse the damages of the complainant. It is also submitted that the accident took place during the warranty period and so the engine is to be replaced. The second opposite party being only dealer they can provide service and repair work but the complainant can approach the insurance company for the insurance coverage. The second opposite party is not responsible to reimburse the complainant and the complaint is not maintainable against the second opposite party.
9. The complainant and first opposite party filed affidavit and documents. The second opposite party did not file affidavit. The documents of the complainant marked as Ext A1 to A9. The documents of the first opposite party marked as Ext. B1 to B3. Ext. A1 is copy of lawyer notice issued by Adv. Irshad .K.K against the first opposite party along with postal acknowledgement and postal receipts dated 10/10/2023. Ext. A2 is copy of lawyer notice issued by Adv. Irshad K.K to the manager Bobcat KEMCH equipment’s private limited Ramanattukara, Calicut along with postal receipts. Ext. A3 is copy of email send by the first opposite party to the complainant dated 18/08/2023. Ext. A4 is copy of service report with sale quotation issued by the second opposite party to the complainant. Ext. A5 is copy of service quotation issued from second opposite party dated 28/07/2023. Ext. A6 is copy of insurance policy issued by the first opposite party infavour of the complainant. Ext. A7 is copy of tax invoice issued by second opposite party to the complainant issued on 28/02/2022. Ext. A8 is copy of downloaded photographs from the whatsapp chat history to show the picture of overturned excavator also the communications between the complainant and the surveyor f the opposite party. Ext A9 is the photograph of the overturned excavator. Ext. B1 is copy of insurance policy with policy No. 2215/00033360/000/00 valid from 27/07/2022 to 26/07/2023. Ext. B2 is copy of final survey report dated 02/09/2023. Ext. B3 photo copy of service report with sale quotation issued by the second opposite party to the complainant.
10. Heard complainant and the opposite parties, perused affidavit and documents. The first opposite party filed argument note also. The following points arise for consideration:-
- Whether the complainant is entitled the insurance claim?
- Whether there is deficiency in service and unfair trade practice on the part of the opposite parties?
- Relief and cost?
11. Point No. 1
It is an admitted fact the complainant was the owner of excavator model no. E 37 ULTRA HD serial No. B45611352 which was insured with the first opposite party. The complainant submitted that the excavator met with accident and thereby caused damages to the engine and thereby approached the first opposite party for the insurance claim. But the first opposite party denied the insurance claim stating that the engine damage happened due to the low engine oil level which is improper maintenance and as per the policy condition the opposite party is not responsible to reimburse the loss sustained to the complainant due to improper maintenance.
12. The complainant produced Ext. A1 to A9 to prove his case. Ext. A1 and A2 are the copy of lawyer notice issued to the insurance company and the dealer which specifically states that the accident was duly reported to both the opposite parties and the representative of the first oppose party verified the incident through video call and after that the surveyor assessed the loss sustained to the complainant. But the opposite parties never respond to the lawyer notice. The documents produced by opposite parties. Ext. B1 to B3 do not find copy of reply to the lawyer notice. Ext. A3 is copy of email which reveals the surveyor observed that there is improper maintenance that is low oil level led to engine seizure and not due to any accidental damage and as per that it was recommended for repudiation of claim. Ext.A4 and B3 are same which service report is with sale quotation prepared by the service engineer. Ext. A4 or B3 do not reveal that the excavator overturned due to shortage of engine oil. It is hard to understand the excavator overturned due to shortage of oil in the engine. Ext. A8 and 9 are photographs related to the overturned excavator. It appears the excavator was over turned and resulted damage to the excavator. There is no reason to discard the averments of the complainant the excavator was overturned at the sight of workplace and thus sustained damages to the excavator. Ext. A8 and A9 substantiate the averments of the complainant. The first opposite party admitted the surveyor and the service engineer inspected the site and also admitted the excavator has toppled over. That be so in the absence of evidence to hold that the damage caused to the engine was due to shortage of engine oil we accept the contention of the complainant. The commission finds that the excavator was toppled over and due to the impact the engine was damaged. Hence the complainant is entitled the insurance coverage.
13. Point No. 2 and 3
In this complaint there is no dispute that the complainant availed insurance policy from the first opposite party but the opposite party denied the insurance coverage without valid reason as stated above. Hence the act of the opposite party No. 1 amounts deficiency in service and unfair trade practice.
14. The first opposite party produced Ext. B1 to B3 which reveals the issuance of insurance policy and conducting survey of the accidental damage. But the final survey report is that due to low oil level maintenance and not due to any accidental means the insurance was denied. But the commission finds that the surveyor report is baseless since there is no reason to belelivethat the excavator overturned due to short of oil level. At the same time the surveyor assessed the net liability as Rs.4, 11,692/- rupees. It is vital to note the submission of the first opposite party in the version that the surveyor has assessed the repair cost as Rs. 4,11,692/- rupees and if the commission finds the claim is payable then the above said amount be allowed. Hence the commission finds that though the final survey report is not accepted by the commission there is no proper data before this commission to assess exact extend of repair cost except the commission report. The complainant produced Ext. A4 along with sales quotation and Ext. A5 revealing labor cost as Rs.26,500/-. But those documents are without proper authentication and the Commission cannot accept the same. At the same time it can be seen that the accident to the excavator was occurred on 14/07/2023 but so far the opposite party did not provide insurance benefit to the complainant. Complainant has got a case that due to non-providing of insurance benefit, he sustained huge financial loss due to nonuse of excavator as part of his work. So the complainant might have suffered financial loss but there is no proper data before this commission to assess the extent of financial loss sustained by the complainant. The commission finds Rs 1, 00,000/- will be a reasonable amount as compensation on account of deficiency in service and unfair trade practice from the side of first opposite party and thereby caused inconvenience, hardship and financial loss to the complainant. The complainant is also entitled cost of Rs. 10,000/-. There is no specific allegation against the second opposite party hence the first opposite party is responsible to re imbrues the complainant.
15. In the light of above facts and circumstances the complaint stands allowed as follows:-
1) The first opposite party is directed to pay Rs. 4, 11,692/- to the complainant with 9% interest per annum from the date of complaint to till date of payment as the repair cost of the excavator.
2) The first opposite party is directed to pay Rs. 1, 00,000/- (Rupees one lakh only) to the complainant as compensation on account of deficiency in service and unfair trade practice and there by caused inconvenience, hardship, mental agony and financial loss sustained to the complainant.
- The first opposite party is directed to pay Rs. 10,000/- (Rupees ten thousand only) to the complainant as cost of the proceedings.
The first opposite party shall comply this order within one month from the date of receipt of copy of this order, failing which the first opposite party is liable to pay interest at the rate of 9% per annum for the above said amount from the date of filing this complaint to till date of payment.
Dated this 27th day of September, 2024.
Mohandasan. K, President
Preethi Sivaraman.C, Member
Mohamed Ismayil.C.V, Member
APPENDIX
Witness examined on the side of the complainant: Nil
Documents marked on the side of the complainant: Ext.A1 to A9
Ext.A1: Copy of lawyer notice issued by Adv. Irshad .K.K against the first opposite party
along with postal acknowledgement and postal receipts dated 10/10/2023.
Ext.A2: Copy of lawyer notice issued by Adv. Irshad K.K to the manager Bobcate
KEMCH equipment’s private limited Ramanattukara Calicut along with postal
receipts.
Ext A3: Copy of email send by the first opposite party to the complainant dated
18/08/2023.
Ext A4: Copy of service report with sale quotation issued by the second opposite party to
the complainant.
Ext A5: Copy of service quotation issued from second opposite party dated 28/07/2023.
Ext.A6: Copy of insurance policy issued by the first opposite party infavour of the
complainant.
Ext.A7: Copy of tax invoice issued by second opposite party to the complainant issued on
28/02/2022.
Ext A8: Copy of downloaded photographs from the whatsaap chat history to show the
picture of overturned excavator also the communications between the
complainant and the surveyor f the opposite party.
Ext A9: Photograph of the overturned excavator.
Witness examined on the side of the opposite party: Nil
Documents marked on the side of the opposite party: Ext. B1 to B3
Ext.B1: Copy of insurance policy with policy No. 2215/00033360/000/00 valid from
27/07/2022 to 26/07/2023.
Ext.B2: Copy of final survey report dated 02/09/2023.
Ext.B3: Photo copy of service report with sale quotation issued by the second opposite
party to the complainant.
Mohandasan. K, President
Preethi Sivaraman.C, Member
Mohamed Ismayil.C.V, Member
