Per Mr.S.R.Khanzode, Hon’ble Presiding Judicial Member
The consumer complaint pertains to deficiency in service on the part of the opponent –M/s.Reliance General Insurance Company Ltd. (herein after referred as ‘Insurance company’) for arbitrarily repudiating the insurance claim pertaining to damage caused to Hydraulic Excavator while in operation.
It is not disputed that Hydraulic Excavator Make KOBELCO : SK 200-8, an imported brand new model belonging to the complainant was insured with the Insurance company for a total sum of `48,50,000/-. The said Hydraulic Excavator while in operation working at the Marshy land for excavation of sand near Dungi river in Panvel, District Raigad, on 25/12/2007 around 6.00 p.m. fell in the ditch and, thereby, it got damaged due to mud and sludge entered into the engine and machinery of the said Hydraulic Excavator and effort to take out Hydraulic Excavator proved futile. Insurance company was immediately informed and since there were instructions not to remove the said Hydraulic Excavator, until there is a survey, it remained at the site of accident for 4-5 days. The loss was estimated as assessed by the company’s approved agency namely M/s.Suretech Infrastructure Pvt.Ltd. and even confirmed by the surveyor M.R.Jhalani & Associates, who assessed the loss at `30,95,000/- and submitted his final survey report dated 22/01/2008. However, the Insurance claim stood repudiated referring to the exclusion clause in the policy, “loss or damage due to total or partial immersion in tidal water”. Therefore, consumer complaint is filed.
Insurance company submitted their written version and stick up to their case to justify repudiation on the ground mentioned earlier.
Heard both the parties.
There is no separate affidavit filed in evidence as per the provisions of section 13(4) of the Consumer Protection Act, 1986, but either of the parties relying upon the affidavits filed viz. on behalf of the complainant Mr.Manoj Angre dated 13/03/2009, who is proprietor of M/s.Shree Construction, affirming the contents of the complaint, while on behalf of the opponent -insurance company, it relies on affidavit of Mr.Ganesh Jadhav dated 29/06/2009, who is Deputy Manager of the said Insurance company affirming contents of the written version filed. Final survey report is being referred by both the parties and, therefore, we find it safe to rely on it for reference even though affidavit of said surveyor Mr.M.R.Jhalani is not on record. Letter of repudiation of the claim is dated 22/01/2008 is also placed on record marked as Exhibit C-2 and there is no dispute about the said letter except for the validity of the reasons mentioned therein.
In the instance case, referring to the material which is tendered in evidence and except the one which are referred by the parties to which there is no dispute, namely, final survey report, except for applicability of exclusion clause and the letter of repudiation except for the correctness of the reasons mentioned therein; we find Insurance company failed to justify their repudiation.
Repudiation is mainly on the ground that loss or damage caused due to immersion in tidal water. Relevant portion of the final survey report reads as under:-
“ 3.2 : Later during high tide the level of sea water rose and the excavator got immersed in sea water.
4.5 : The engine was then inspected in completely open condition at M/s.SURETECH’s workshop on 16.01.07 and detailed discussions were held with service engineers of M/s.SURETECH and M/s.KOBELCO. It was found that the sea water had entered inside the engine and crank shaft, bearings, cylinder head, turbo charger, sensors, mount rubber, valve assembly muffler etc. of the engine assembly were badly rusted and pitted due to prolong contact with sea water and were rendered totally useless. Except for the body of the engine rest of the things were badly damaged and required to be replaced.”
In the written version Insurance company referred to Panchang, but no such Panchang is produced. Besides that it is revealed from the record that the site of accident is by the side of river Dungi, which meet to the sea at about 2-3 k.m. away from the said site. In para 2.3 of the final survey report, supra, it is mentioned that the insured are using the excavator to remove upper layer (about 3-4 ft.) of the marshy land, about 20-30 Mtrs. away from sea. In a letter dated 12/02/2008 written by the surveyor M.R.Jhalani, it is mentioned that the site of accident was about 500 meter inside from the main road. Kachha road is constructed to allow movement of vehicles till the site of excavation. On the left side of the Kachha road is a small stream of water called DungiRiver. The Kachha road is at the raised level of about 3-4 ft. from the surrounding ground level. The site is located in bay area and is totally unoccupied and the site is surrounded by marshy land. It is also mentioned that work of extracting sand is carried out near Dungi river near Belapur which is about 2-3 k.m. away from the site of the accident.
Thus, there is hardly any evidence led on record by the Insurance company to show and establish about timing of high tide.
Secondly, it failed to establish about high tide line or boundary of the sea as to whether such high tide level covers the accident site, etc. In absence of such evidence, it cannot be stated that the site of the accident, which is a marshy land is covered by high tide level and high tide sea water actually entered therein.
Evidence on record is also silent about the excavator submerging into the tidal water. In fact, complainant when occasioned to visit the site immediately after the accident had categorically denied the fact that about submerging said excavator in the tidal water.
Thus, from the material placed on record, it cannot be said that the Insurance company has made out a case to justify repudiation referring to the exclusion clause, supra. Thus, repudiation of the insurance claim is per se arbitrary and without any foundation. Hence, deficiency on the part of the Insurance company is well established on this count.
Coming to the compensation, it could be seen that the surveyor M. R. Jhalani himself assessed the net loss more than `33,50,000/- claimed by the complainant. Therefore, said estimation is based upon the actual assessment of the damaged parts and the amount required for repairs through appropriate and proper agency and as even approved by the surveyor. Therefore, we find compensation of `33,50,000/- on this count is just compensation, which could be properly awarded for establishing deficiency in service on the part of the insurance company. We hold accordingly.
Complainant also claimed compensation of `5 lakhs towards the inconvenience, mental agony, trauma, etc. Complainant is a non juristic i.e. non living person. Therefore, question of mental agony, trauma certainly would not sustain by it as far as inconvenience is concerned. There is no proper evidence led on behalf of the complainant to justify claim of `5 lakhs on this count. Therefore, we do not award such compensation and, further, find that compensation already awarded would cover the same to meet the ends of justice. For the reasons stated above, we hold accordingly and pass the following order:-
ORDER
1. The complaint is partly allowed.
2. Opponent –M/s.Reliance General Insurance Co. Ltd. do pay `33,50,000/- (Rupees Thirty three lakhs fifty thousand only) to the complainant along with interest @ 12% p.a. from the date of complaint i.e. 13/03/2009 till its realization.
3. The opponent to bear its own costs and pay `25,000/- (Rupees Twenty five thousand only) as costs to the complainant.
4. Copies of the order be furnished to the parties.
Pronounced on 23rd September, 2011.
