ADV. RAVI SUSHA,, MEMBER.

            Complainant’s case is that the complainant is  a consumer and the complainant being the owner of the JCB 175, availed a policy from the opp.party Oriental Insurance Company asNo.441401/2006/7860 for the period  from 17..1..2006 to 16..1..2007.  On 18..1..2006 , the said JCB J75 while  operating accidentally  hit a rock on the right side of track great box of it and damaged.   The incident was duly informed to the opp.parties and also the Chadayamangalam Police.  Though the surveyors of 2^nd opp.party  inspected the same and application for claim was preferred in time the insurance company repudiated the claim.  Hence the  complaint.

          The  opp.party 1 and 3  filed a joint version contenting that the opp.parties had issued a comprehensive insurance policy to the complainant for his Tracked Excavator JA 75, make JCB India Ltd., for a period from 17..1..2006 to 16..1..2007.   The policy was issued by this opp.party on the basis of the proposal form submitted by the complainant.   The complainant has reported a claim over phone to the 2^nd opp.party on 20..1..2006, stating that the gear box of the insured machine  got damaged on 18..1..2006 at about 12 hrs. night due to fall of a rock from the bucket of the machine.   The opp.party immediately on receipt of the claim had deputed an Insurance Surveyor and Loss Assessor Mr.A. Fasaluddin for conducti9ng a spot survey about the incident.   The Surveyor Mr. A Fasaluddin had conducted the spot survey on 21..2..2006 at about 5.40 P.M. at the approach road leading from M.C. Road near UPS, Chadayamangalsam, were the Excavator kept idle after the alleged damages sustained to it.   The surveyor found a crack covering almost 2/3^rd surface of the track gear box housing towards inside.   The surveyor after preliminary examination found that the cause of damage sustained to the Excavator is not correlating with the explanation given by the operator.   The surveyor again visited the spot on 23..1..2006 and found that the machine was kept in the Courtyard of the residence of one Mr.Shajahan about 40 feet south from the spot olf occurrence were it was found on 20..1..2006.   The damaged track gear box were dismantled in the presence of the surveyor by the repairer.   The Surveyor conducted a local enquiry with neighbours in the locality about the occurrence of the incident and understood that the accident was occurred prior to 18..1..2006 as stated by the complainant and the damaged machine was kept near the Tea shop of one Mr.Salim near Chadayamangalam UPS for more than three days prior to the reported date of the incident..  The opp.party after receiving the claim form and estimate from the complainant had deputed a qualified and competent surveyor Mr.P.P.Dharmarajan for inspecting the damaged vehicle and for assessing the extent of loss and cause of loss etc. in order to proceed with the claim.   The above  said surveyor visited  M/s. India Techs Ltd., Vazhakkulam, were the damaged Excavator was kept for repair.   The surveyor on detailed examination about the nature of damage sustained to the vehicle come to a definite conclusion that, the cause of damage mentioned in the claim form is not at all corresponding or corroborating with the nature of damages found in the machine.   The surveyor specifically noticed the fact that the track gear box is covered with a chain and the chain is free from any damages during his examination which was also observed by the spot surveyor Mr. Fasaluddin in his spot survey report as well .  Anyhow with the above observation the surveyor has assessed the not loss to a sum of Rs.93,284/- on the basis of his detailed examination after due consultation with the repairer.  The opp.party got reasonable suspicion regarding the genuiness of the claim and also about the date of occurrence of the incident intimated by the complainant.   The Investigator on the basis of the above evidence had submitted his report with a definite conclusion that the damage sustained to the insured track was occurred prior to the commencement of the policy and the complainant managed to obtain a renewal policy from this opp.party in  a fraudulent manner subsequent to the occurrence of the damages in order to mitigate the expenses required for the repairing works.  The opp.party on the basis of the investigation report and surveyors report took a decision to repudiate the claim of the complainant for valid and sufficient reasons.  The opp.party vide its letter dated 31..5..2006 have  intimated to the complainant about the decision to repudiate the claim stating that the accident occurred prior to the inception of the policy and the cause of accident furnished by the complainant is not consistent with the nature of damages seen in the vehicle.  In view of the facts and circumstances submitted above the complaint is liable to be dismissed in limine with heavy compensatory cost to this opp.party.

          The 3^rd opp.party filed a separate version contenting that the present complaint is not maintainable as against the 3^rd opp.party for the reason that primarily there is no claim or allegation raised against this opp.party.   The various averments made in the complaint are not in any way connected with the area of the business of the 3^rd opp.party except to the extend that the 3^rd opp.party is the authorized dealer of JCB make machines.  In the said circumstances, the complaint be dismissed against this opp.party for misjoinder of parties.  The various contentions, allegations in the complaint are not within the direct knowledge of this opp.party.  However, it is   true that the machine inspection report was prepared by the 3^rd opp.party on 19..1..2006 .    The machine inspection report above mentioned, the machine was repaired by this opp.party and has raised an invoice for an amount of Rs.1,49,770.13.  Apart from this fact, there is no subsisting cause of action or claim or relief as against this opp.party and the complaint against this opp.party is liable to be dismissed with costs.

          Points that would arise for consider4ation are:

1.     Whether there is deficiency in service on the part of the opp.parties?

2.     Reliefs and costs.

For the complainant  PWS 1 to 5 were examined and marked Exts. P1 to P19

For the opp.parties  DWS.1 and 2 examined and marked  Exts. D1 to D4

THE POINTS:

          The complainant’s case is that  his JCB  having insurance policy  with 1^st and 2^nd opp.parties for a period from 17..1..2006 to 16..1..2007, while operating accidentally hit a rock on the track gear box and damaged.  The incident occurred on  18..1..2006.  The claim application  of the complainant was repudiated by the opp.parties1 and 2.  Hence this complaint is filed for getting relief.  1^st and 2^nd opp.parties are the contesting opp.parties because relief is  claimed from them only.

          In the version 1^st and 2^nd opp.parties contented that the claim application of the complainant was repudiated due to the reasons that the accident occurred prior to the inception of the policy and the cause of accident explained by the complainant is not consistent with the nature of damages seen in the vehicle.   After the evidence stage, opp.parties 1 and 2 conceded the 1^st contention ie. According to them the accident was occurred on 18..1..2006 within the policy period.   During argument time, the learned counsel for opp.parties 1 and 2 argued that the complainant is not entitled to get the claim amount because the damage in the gear box happened only due to mishandling/heavy loading  of the machine and not because of an external impact.   So the claim will not come under the purview of the policy.   For these, the opp.parties are relying Ext.D2 and D3 the surveyor’s report.   The surveyors  were examined as DW.1 and DW.2.  Complainant’s case is that during the course of operation of the machine one piece of rock from the bucket of the machine fell on the track gear box causing the damage. DW.1 surveyor also found a  crack at most  2/3 on the surface of the track gear box.  He also found a piece of rock having an approximate volume of 1.5. cu.f.  in between the track gear box housing and the cutting, touching the cutting and housing of the track gear box.  DW.1 further reported that the chain of the machine is projected outside from the track gear box housing  and if any piece of rock false on the gear box housing would definitely hit first on the projected chain only..  During evidence DW.1, deposed that “gear box sâ 2/3 `mKhpw crack Df-f-Xmbn note   sNbvXn-«p-­pv. IÃnsâ IqÀ¯-`mKw  gear box  X«n  damage D­m-b-Xm-Wp ? X«n-bp-­mIpwv   That means there is chance to hit the rock on the gear box.   From the deposition of DW.1 it is revealed that the 4 sides of the gear box is not covered with chain and in his report it is stated that a piece of rock was  found in between the track gear box and the  cutting , DW.2 in his report Ext. D3 mentioned that DW.1 has not mentioned about any oil/fluid /leakage or trace of oil/fluid at the accident spot.   Actually  DW.1 has not noted anything about the oil/leakage.   The conclusion of DW.2 ie the particular damage happened only due to mishandling/heavy loading of the machine and not  because of an external impact.  DW.2 during deposition stated that he has not seen, the machine and not know about the loading capacity of JCB.  He has  been only the gear box .  Without seeing the machine he cannot  come such a conclusion that the damage to the gear box happened due to mishandling/over loading.   Then the opinion arrived by the surveyor [DW.2] cannot be accepted.   There is no such a prior incident happened ion the machine.

          On considering the entire evidence we are of the view that the damage to the JCB happened due to the accident as explained by the complainant.   Repudiation of the claim application of the  complainant. on vague  reasons amounts to deficiency in service.  Hence the complainant is entitled to get relief.   DW.2  after inspecting the damaged parts in detail,  assessed the extent of damages sustained to the machine

The next point to be decided is what is the quantum of damages entitled to the complainant.

In this case the report submitted by the surveyors are license holders issued by the IRDA in assuring the damages payable under an insurance  contract.  The complainant has not examined the repairer M/s. India Techs Ltd where the damaged machine was brought immediately after the accident.  Here the surveyors were examined as DW.1 and DW.2.  The surveyors are independent assessors and their report has to be given due importance and weightage unless there is overwhelming  evidence  to the contrary.  It is for the complainant to prove that he had suffered higher loss, which he has failed to do so.   The complainant has not examined the repair or.  Hence the complainant is only entitled to get the amount assessed by DW.2

As per the assessment made by DW.2 he has assessed the  net loss to the sum of Rs.95,657/.  The complainant is entitled to get the said amount.

          In the result, the complaint is allowed.  The opp.parties 1 and 2 are directed to give Rs.95,657/- with 9% interest to the complainant from the date of this complaint ie. from 20..7..2006.  Opp.parties 1 and 2 are further directed to give Rs.10,000/- as compensation and Rs.1000/- as cost to the proceedings.   The order is to be complied with within one month from the date of receipt of this order.   Failing which the complainant is entitled to get the amount with 12% interest.

          Dated this the  7^TH     day of June, 2012.

I n d e x

List of witnesses for the complainant

PW.1. – Sodharan

PW.2. – Josachan

PW.3. – Bennichan.K. Thomas

PW.4. – Beenashajahan

PW.5. – Maharajan

List of documents for the complainant

P1. – Policy certificate

P2. – G.D. entry

P3. – Claim form

P4. – Letter sent by complainant dated 6..2..2006

P5. – Letter dated 4.4.2006

P6. – Letter sent by opp.party dated 10..4..2006

P7. – Letter sent by opp.party dated 17..4..2006

P8. – Letter dated 3..5..2006

P9. – Letter dated 31..5..2006 issued by opp.party

P10. – Letter sent by 3^rd opp.party

P11. - Bill issued by 2^nd opp.party

P12. -  Bill dated 30..10..2006

P13. – Machine Inspection report

P14. – Reading record

P15. – Register copy maintained by Pathibel company

P16. - - Driving license

P17. – No Objection certificate

P18 . -Service Bill dated 28..1..2006

P19. – Copy of Taxi Service Trip sheet

List of witnesses for the opp.parties

DW.1. – Fazaludheen

DW.2. – P.S. Dharmarajan

List of documents for the opp.parties

D1. Letter given by the Project Manager Patibel  constructions

D2. – Survey report by surveyor Mr. Fasaludeen

D3. - - Final survey report by the surveyor P.P. Dharmarajan

D4. – Policy with conditions