By Smt. C. S. Sulekha Beevi, President,
1. The JCB excavator registered as KL-10 Q 1900 owned by the complainant was covered by an insurance policy issued by opposite party. On 13-4-2007 while the complainant was working, the vehicle lost balance and toppled. The vehicle sustained excessive damage. Complainant intimated the accident to opposite party and surveyor was deputed. Thereafter opposite party repudiated the claim stating the reason that the particular risk of overturning of vehicle is not covered under the policy. Complainant spend Rs.45,000/- towards repair. The repudiation of the claim is not legally sustainable. Hence this complaint.
2. Opposite party filed version admitting that opposite party had insured the JCB KL10 Q 1900 at the relevant time of accident. It is stated that the policy does not cover the risk of overturning. The liability of opposite party is strictly in accordance with terms and conditions of the policy. On receiving intimation from complainant about the accident opposite party arranged investigation and on receipt of report of the investigator/surveyor it is revealed that the particular risk of overturning is not covered under Sec.66(3) of the limitation as to the use in exclusion clause. Opposite party has rightly repudiated the claim. It is further stated that complainant has taken fresh policy for the same vehicle for the subsequent period covering the risk of overturning. That there is no deficiency in service.
Evidence consists of the proof affidavit filed by complainant and Exts.A1 to A4 marked for him. Opposite party filed counter affidavit and Exts.B1 and B2 marked for opposite party.
4. The moot point for analysation is whether the repudiation of policy on the ground that the risk of overturning is not covered by the policy is justifiable or not.
5. On perusal of Ext.A1 insurance certificate cum policy schedule, the limitations of use are seen stated as under:
“Limitations: The policy covers use of the vehicle for any purpose other than (a) Organized racing (b) Pace making (c) Reliability Triaiz (d) Speed Testing (e) Use whilst drawing a trailer except the towing (other than for reward) of any one disabled Mechanically propelled vehicle (f) use for carriage of passengers for hire or reward.”
6. It is contended by opposite party that the policy covers use only under a permit within the meaning of the Motor Vehicles Act, 1988 or such a carriage falling under subsection (3) of section 66 of the said Act. That as per these provisions overturning is not covered under the policy. We cannot accord any agreement to this submission. Sec. 66 deals with necessity for permits. Opposite party has no case that the vehicle was used for some purpose for which it was not meant to be used. The vehicle has toppled while it was at work. There is nothing stated in the said section which has any relation to the dispute raised in this case.
7. The vehicle sustained damage while it was working. The vehicle lost balance and toppled. It is not seen stated in Ext.A1 policy certificate that an accident occurred by overturning of the vehicle is excluded. Needless to say that damage sustained to the vehicle in an accident is covered by the policy. The expression “accident” generally means some unexpected event happening without design, even though there may be negligence (Halsbury's laws of England 2nd Ed. Vol.34 page 816). The word 'accident' excludes the operation of natural causes, and implies the intervention of some cause which is brought into operation by chance and which can therefore be described as fortuitous. In it's most commonly accepted meaning or in it's ordinary or popular sense as understood by an ordinary consumer is a fortuitous circumstance, event, or happening without any human agency, or if happening wholly or partly through human agency an event which under the circumstances is unusual and unexpected by the person to whom it happens. Undeniably overturning of the vehicle is an unforeseen event and is an accident.
8. Opposite party contends that the risk of overturning is not covered under the policy. There is no evidence placed before us to show that the policy issued for the vehicle specifically stated that an accident occurred due to overturning of the vehicle is excluded. It is the case of opposite party that in the subsequent year complainant had paid extra premium for covering the risk of overturning. Ext.B1 is the policy certificate issued for the subsequent year where it is seen that opposite party has collected additional premium to cover the risk of overturning. Only because parties to the contract have created a new condition in a subsequent year does not take away the liability cast upon opposite party in the policy that has already been issued unless the risk has been stated directly and specifically as excluded. Nothing can be inferred into the conditions of a policy.
9. Similar observation has been made by the Apex Commission in M/s Essen Enterprises Vs. The National Insurance Co. Ltd. R.P.No.2646/2002 decided on 01-3-2005 reported in 2005 NCJ 267 (NC). We therefore hold that the repudiation of the claim on the ground that the risk of overturning is not covered is unjustifiable. We find opposite party deficient in service.
10. Complainant has done the repairs and claims Rs.45,000/- towards repair charges.
Though opposite party contends that surveyor inspected the vehicle, the survey report showing the assessment made by the surveyor is not placed before us. This case was taken for orders earlier on 04-8-2010. On taking note of the fact that survey report has not been produced the case was suomotto reopened. Opposite party was given several chances to produce the survey report. On 08-12-2010 opposite party produced a survey report which is marked as Ext.B2. But this is only a spot survey report and no assessments of loss is seen stated in this report. There is absolutely no evidence adduced by opposite party regarding the assessment of loss inspite of availing sufficient time.
11. Ext.B2 shows that the vehicle has sustained the following damage.
“Detail of Damages
The vehicle was lifted and brought
to the premises of the residence of the insured before survey. Spot photographs were taken by the insured. The survey was conducted from near the residence of the insured. The following damages were observed on the vehicle at the time of my inspection.
Cabin assy. was bent and twisted. It was altogether twisted to LH side. Angular frames was bent.
Front glass was broken.
Cabin roof (fiber) was broken at places.
Head light front RH was broken.
Body RB side was bent, buckled and deformed.”
Ext.A4 series are the bills and receipts evidencing the amount spend by complainant. Ext.A1(a) shows that Rs.5,000/- was paid for towing charges. Ext.A1(b) shows that rs.4129/- is seen paid to automobile glass dealers for JCB wind screen and wind screen beeding. Ext.A1(c) shows that complainant paid Rs.31,500/- to Three Star Industries for repair works. Ext.A1(d) shows the payment of Rs.8,238/- to India Tech Ltd for spare parts. The total amount as per these documents is Rs.48,867/-. Complainant claims for Rs.45,000/- as charges for repair. We consider this claim reasonable. In our view, complainant is entitled to this amount. He is also entitled to interest @ 12% per annum from the date of complaint till payment.
12. In the result, we allow the complaint, and order opposite party to pay Rs.45,000/- to the complainant along with interest @ 12% per annum from date of complaint till payment within one month from the date of receipt of copy of this order.
Dated this 11th day of January, 2011.
Sd/-
C.S. SULEKHA BEEVI, PRESIDENT
Sd/-
MOHAMMED MUSTAFA KOOTHRADAN, Sd/-
MEMBER E. AYISHAKUTTY, MEMBER
APPENDIX
Witness examined on the side of the complainant : Nil
Documents marked on the side of the complainant : Ext.A1 to A4
Ext.A1 : Photo copy of the Certificate cum policy schedule.
Ext.A2 : Terms and Conditions of the Commercial vehicle 'B” policy(Misc.)
Ext.A3 : Photo copy of the registered with acknowledgement due letter from opposite party to complainant.
Ext.A4 : Photo copy of the receipt (3 Nos.)
Witness examined on the side of the opposite parties : Nil
Documents marked on the side of the opposite parties : Ext.B1 and B2
Ext.B1 : Motor Insurance Certificate cum Policy schedule.
Ext.B2 : Spot Survey Report.
Sd/-
C.S. SULEKHA BEEVI, PRESIDENT
Sd/-
MOHAMMED MUSTAFA KOOTHRADAN, Sd/-
MEMBER E. AYISHAKUTTY, MEMBER
