KERALA  STATE  CONSUMER  DISPUTES  REDRESSAL  COMMISSION

                    VAZHUTHACADU    THIRUVANANTHAPURAM

APPEAL  NO:617/2009 

                                 JUDGMENT DATED:19..04..2010.

PRESENT

SRI. M.V. VISWANATHAN                                      : JUDICIAL MEMBER

United India Insurance Company Ltd.,

Kozhikode Division-II, R/by

Dr.Mohan Shanker, Senior Divisional                    : APPELLANT

Manager, United India Insurance Company Ltd.,

Divisional Office-1, LMS Compound, TVPM.

(By Adv:Sri.R.Jagadeesh kumar)

            Vs.

P.Abdul Saleem, S/o Alavi,

Haritha, Near Govt. LP School,

Puthukode, Ernad Taluk,                                          : RESPONDENT

Malappuram Dist.

(By Adv:Sri.R.Jayakrishnan)

JUDGMENT

SHRI.M.V. VISWANATHAN : JUDICIAL MEMBER

The appellant in this appeal was the opposite party and the respondent was the complainant in CC:85/08 on the file of CDRF, Kozhikkode.  The complaint therein was filed alleging deficiency of service on the part of the opposite party/United India Insurance Company Ltd in repudiating the insurance claim preferred by the complainant with respect to the insured hydraulic crane vehicle bearing registration No:KL-10/V/7119.  The opposite party/insurance company entered appearance before the Forum below and filed written version justifying their action in repudiating the insurance claim.  The opposite party contended that the complainant did not pay the additional premium for covering the risk of over turning on use. Thereby the insurance company contended that the risk was not covered by the policy and so the complainant is not entitled to the insurance claim put forward by him.

2. Before the Forum below the complainant was examined as PW1 and the Assistant Divisional Manager of the opposite party/Insurance company was examined as RW1.  Exts.A1 to A5 and A6 series of documents were marked on the side of the complainant and Exts.B1 to B5 on the side of the opposite party.  On an appreciation of the evidence on record, the Forum below passed the impugned order allowing the complaint and thereby directed the opposite party to pay an amount of Rs.2,33,441/- being the repair charge with a compensation of Rs.3000/-.  Aggrieved by the impugned order dated:15/09/2009 passed by the CDRF, Kozhikkode in CC:85/08, the present appeal is filed.

3. We heard both sides.  The learned counsel for the appellant/opposite party submitted his arguments based on the grounds urged in the memorandum of the present appeal.  He much relied on B4 document and submitted that as per the provisions of the India Motor Tariff, the damage caused to the insured crane was not covered by the policy, as the complainant/insured had not paid any additional premium covering the risk of over turning while in use. He also challenged the quantum of compensation awarded by the Forum below.  On the other hand, the learned counsel for the respondent/complainant supported the impugned order passed by the Forum below.  He pointed out that the risk was covered by A1 insurance policy issued by the appellant/opposite party/insurance company and that the opposite party is bound by the terms and conditions of the policy.  Thus, the respondent prayed for dismissal of the present appeal.

4. Points that arise for consideration are:-

1.                            Whether the peril occurred on 19/5/2007 is covered by the policy of insurance issued by the appellant/ opposite party/insurance company?

2.                            Whether there was any deficiency in service on the part of the appellant/opposite party in repudiating the insurance claim preferred by the respondent/ complainant with respect to the insured hydraulic crane vehicle?

3.                            Whether the Forum below can be justified in directing the opposite party/insurance company to pay a sum of Rs.2,33,441/- being the repair charge with a compensation of Rs.3000/- to the complainant/insured?

4.                            Is there any sustainable ground to interfere with the impugned order dated:15/9/2009 passed by the CDRF, Kozhickode in CC:85/08?

5. Point Nos: 1 to 4:-

There is no dispute that the respondent/complainant, insured his hydraulic crane vehicle bearing Regn.No:KL/10/V/7119.  The said policy was for the period from 3/5/2007 to 2/5/2008.  Admittedly the insured hydraulic crane vehicle capsized on 19/5/2007 at Thekedathkadav while engaging in lifting of a girder in connection with the construction of the Thekedathkadvu bridge.  In the said accident the insured crane was extensively damaged.  The appellant/opposite party/insurance company deputed two approved surveyors to assess the loss to the damaged hydraulic crane vehicle.  The complainant has also preferred the claim to get his loss indemnified.  After getting the reports of the surveyors the opposite party issued A4 letter dated:8/1/2008 repudiating the claim preferred by the respondent/complainant with respect to the insured hydraulic crane vehicle.  In Ext.A4 repudiation letter it was stated that the insured crane was being operated as a tool of trade at the time of its over turning in to the river below and that over turning has not been covered under the policy and thereby the claim is repudiated.  Thus, according to the appellant/opposite party/insurance company the damage or loss to the insured crane occurred due to over turning and that over turning while in operation of the crane is not covered under the policy.

6. Ext.A1 is the miscellaneous and special type of vehicles package policy issued by the appellant/opposite party/insurance company insuring the aforesaid hydraulic crane vehicle bearing Regn.No:KL10/V/7119.  B1 is also copy of the said policy.  The terms and conditions of the said policy are incorporated in A1 and B1 policy of insurance.  As per the said policy the said hydraulic crane vehicle bearing Reg.No:KL10/V/7119 was insured for a sum of Rs.8.lakhs.  The respondent/complainant being the insured and owner of the said crane paid the premium for the said policy.  The policy was valid for the period from 3/5/07 to 2/508.  Admittedly the accident to the said vehicle occurred on 19/5/2007.  Thus, the insured hydraulic crane vehicle was having a valid insurance coverage at the time of the said accident.  Ext.A1 policy would make it clear that loss or damage to the vehicle insured is covered by the policy and that the insurance company will indemnify the insured against loss or damage to the vehicle insured.

i.                    by fire explosion self ignition or lightning;

ii.                  by burglary housebreaking or theft;

iii.                by riot and strike;

iv.               by earthquake (fire and shock damage);

v.                 by flood typhoon hurricane storm tempest inundation cyclone hailstorm frost;

vi.               by accidental external means;

vii.             by malicious act;

viii.           by terrorist activity;

ix.               whilst in transit by road rail inland waterway lift elevator or air;

x.                 by landslide rockslide.

7. Thus, Sec-I (1) of the A1 policy would make it clear that loss or damage to the insured vehicle by accidental external means is covered by the said policy.  There can be no doubt that the insured hydraulic crane vehicle sustained damage due to the accidental capsize of the crane from the bridge to the river.  There cannot be any doubt that the said incident occurred due to an accident by external means.  Policy exclusions and exceptions are well defined in A1 policy.  But in those exclusion and exception clauses there is no whisper that the loss or damage caused to the insured hydraulic crane vehicle by over turning is not covered by the policy.  In other words, the damage or loss to the vehicle by over turning is not excluded by A1 policy.  If that be so, the loss or damage caused to the said insured hydraulic crane vehicle by over turning or capsize of the said vehicle is covered by A1 policy of insurance issued by the appellant/opposite party/insurance company. 

8. A1 policy of insurance contains references with respect to I.M.T (India Motor Tariff).  Those references are with respect to special exclusions and compulsory deductable coverage for electrical/electronic fittings, legal liability to passengers, legal liability to paid driver and or conductor and or cleaner employed in connection with operation of motor vehicle.  But there is no reference in A1 insurance policy with respect to B4 provisions of the India Motor Tariff.  It is to be noted that there is no mention in A1 policy about the provisions of India Motor Tariff as referred to in B4 document.  There is no case for the appellant/opposite party/insurance company that the A1 policy was secured by the respondent/complainant/insured by suppressing material facts.  There is also no case for the appellant/opposite party/insurance company that the complainant/insured was reluctant to pay any of the additional premium demanded by the opposite party/insurance company.  On the other hand, the terms and conditions of A1 policy would make it abundantly clear that the loss or damage caused to the insured hydraulic crane vehicle by accident is covered by the said policy.  It is not mentioned that over turning of the hydraulic crane vehicle by accident is not covered by policy or that the said peril is excluded subject to the conditions of India Motor Tariff.

9.  It is to be noted that the parties to the contract of insurance are governed by the terms and conditions of the policy of insurance.  As per Sec.I(1)vi loss or damage caused by accidental external means is covered by A1 policy.  In this case the damage to the insured crane occurred due to over turning.  The aforesaid over turning or capsize of the crane can only be treated as an accidental over turn.  It can also be considered that the said over turn occurred due to external means.  So, the terms and conditions of A1 policy would cover the risk of over turning or capsize of the insured hydraulic crane vehicle.  The appellant/opposite party/insurance company cannot be justified in repudiating the insurance claim on the ground that the additional premium was not paid by the insured as mentioned in B4 document.  The mere fact that the additional premium amounting to Rs.100/- was not paid by the complainant cannot be taken as a ground to repudiate the insurance claim which was preferred on the strength of A1 policy.  As per Ext.A1 policy the opposite party/insurance company was bound to honour the claim because the peril was covered by A1 policy.  By the issuance of A1 policy the opposite party/insurance company took the risk of damage or loss to the insured hydraulic crane vehicle by accidental external means.  In the present case, the insured hydraulic crane vehicle sustained damage due to accidental over turning by external means.  So, the respondent/complainant /insured is entitled to get the loss or damage indemnified by the appellant/opposite party/insurance company.

10. The appellant/opposite party/insurance company deputed an approved surveyor, Sajith E.P, who conducted spot survey and submitted B2 spot survey report dated:6/6/2007. In B2 spot survey report there is no whisper that the accidental over turning of he insured crane is not covered by the policy.  Thereafter, the insurance company deputed another approved surveyor Mr.Raveendran, Ext.B3 is the detailed survey report submitted by the approved surveyor and loss assessor.   It is dated:22/10/2007. As per B3 survey report the net liability of the insurance company was assessed at Rs.2,33,441/-.  The approved surveyor who submitted B3 survey report considered the terms and conditions of A1 policy and thereby he deducted the depreciation and also the policy excess.  It is to be noted that the surveyor who assessed the net liability has not stated that the accidental over turning is not covered by the policy.  Thus, according to the licensed surveyor who submitted B3 survey report the accidental damage caused to the insured crane is to be indemnified by the insurance company.

11. RW1, the Assistant Divisional Manager of the insurance company is deposed that the insurance company repudiated the insurance claim based on the survey report.  But B2 and B3 survey reports would not give any indication that the loss or damage to the insured crane was not covered by the policy.  On the other hand, B3 survey report would make it clear that the insurance company was liable to indemnify the insured for the loss or damage caused to the insured crane.  So, in that respect also the opposite party/insurance company was bound to honour the insurance claim with respect to the loss or damage caused to the insured crane.  No reason or ground is stated by the opposite party/insurance company to ignore B3 survey report and the net loss assessed by the surveyor.  It is a well settled position that survey report submitted by an approved and licensed surveyor cannot be ignored without assigning any valid reasons [ (2000) 10 SCC – 19 ].  So, the appellant/opposite party/insurance company cannot be justified in ignoring B3 survey report.

12. In B3 survey report at paragraph 11 it is specifically stated about the cause and circumstance of the accident.  It is stated therein that while lifting the girder at the top of the bridge, somehow it lost control and the mobile crane along with its operator fell into the river and sub merged into the river thereby sustaining very severe and extensive damages to the mobile crane.  It is also reported at paragraph 11 of B3 report that the Service Engineer of ACE hydraulic mobile crane has given his report on the reported incident which is enclosed with this claim.  It is stated therein that the operator might have used the boom down lever instead of Boom retracting lever while the load is hanging at the hook and due to this, there could have been a sudden jerk of the Machine and consequently lost control/balance and the crane fell into the river.  The aforesaid report regarding cause of the accident would make it clear that the loss or damage to the crane occurred by an accident and the said accident can only be by external means.  So, the cause of the accident would also make it clear that the said risk or peril was covered by A1 policy.  The exclusions or exceptions in A1 policy would not exclude the aforesaid loss or damage caused to the insured crane.  The Forum below is perfectly justified in directing the opposite party/insurance

company to indemnify the insured to the tune of Rs.2,33,441/-.  It is to be noted that the approved surveyor has also assessed the net loss at Rs.2,33,441/-.

13. The Forum below has also awarded compensation of Rs.3000/- to the complainant. It is to be noted that the Forum below has not awarded any cost of the proceedings to the complainant.  So, the aforesaid sum of Rs.3000/- can be treated as cost.  More over, the opposite party/insurance company is also to be made liable for the deficiency of service on their part in repudiating the insurance claim preferred by the complainant.  It is further to be noted that the Forum below has not awarded any interest on the said sum of Rs.2,33,441/-.  Thus, in all respects the impugned order passed by the Forum below is liable to be confirmed.  There is no justifiable reason or ground to interfere with the impugned order passed by the Forum below.  The present appeal deserves dismissal.  Hence we do so.  These points are answered accordingly.

In the result the appeal is dismissed.  The impugned order dated:15/9/2009 passed by CDRF, Kozhikkode in CC:85/08 is confirmed.  The parties are directed to suffer their respective costs.

M.V. VISWANATHAN   : JUDICIAL MEMBER

VL.