FA.No.259/2007 against CD.No.80/2004 District Consumer Forum, Khammam. 

Between:

United India Insurance Company Limited,

Divisional Office: Kothagudem, Khammam District,

Rep. by its Divisional Manager,

Khammam District.

…Appellant/Opp.Party.

And

S.V. Engineering Constructions,

G.K.O.C.P., Kothagudem, A.P.,

Rep. by its Managing Partner, N.Vinod Reddy.

…Respondent/Complainant.

Counsel for the Appellant        : Mr.K.Kioshore Kumar Reddy.

Counsel for the Respondent    :  Mr.P.Veera Reddy.

FA.No.69-B/2009 against CD.No.80/2004 District Consumer Forum, Khammam. 

Between:

S.V. Engineering Constructions,

G.K.O.C.P., Kothagudem, A.P.,

Rep. by its Managing Partner, N.Vinod Reddy.

…Appellant/Complainant.

And

United India Insurance Company Limited,

Divisional Office: Kothagudem, Khammam District,

Rep. by its Divisional Manager,

Khammam District.

…Respondent/Opp.Party.

Counsel for the Appellant        : Mr.P.Veera Reddy.

Counsel for the Respondent    :  Mr. K.Kishore Kumar Reddy.

QUORUM: THE HON’BLE SRI JUSTICE D.APPA RAO,PRESIDENT.

&

SMT. M. SHREESHA, HON’BLE LADY MEMBER.

FRIDAY, THE TWENTY THIRD DAY OF JANUARY,

TWO THOUSAND NINE.

Common Oral Order: (Per Hon’ble Sri Justice D. Appa Rao, President)

                                                                        *****

1.         The Insurance Company preferred the appeal, FA.No.259/2007 against the order of the District Consumer Forum, Khammam, in directing it pay Rs.4,12,522/- towards repairs of the vehicle together with costs of Rs.1,000/-. 

2.         The complainant also preferred cross appeal, FASR.No.5199/2006 and along with it IA.No.1254/2007 to condone the delay of 341 days in preferring the appeal on the ground that he received the notice in the appeal preferred by the Insurance Company and found that the District Forum did not award compensation in its entirety.  Since the appeal preferred by the Insurance Company is being heard, we condone delay in preferring the appeal by the complainant.  The office is directed to register the appeal and assign number. 

3.         The case of the complainant in brief is that it is a firm dealing in excavation, loading, transportation, dumping, etc. at different areas.  It owned a motor vehicle insured with the appellant Insurance Company.  It had paid premium covering the risk from 28.02.2002 to 27.02.2003. It had obtained permit for the said vehicle from the transportation authorities valid from 25.06.2001 to 24.06.2006.  It had obtained work for execution on behalf of ABC Engineering Works, Vijayawada, which in turn had obtained contract of blasting, drilling, excavating, loading and transporting from Singareni Colleries Company Limited, Kothagudem.  While so, the vehicle met with an accident on 11.09.2002 at open cast mine, Kothagudem, while it was proceeding from excavation point to dumping point, as the insured driver not observe another parking vehicle due to poor vision.  Immediately, the fact was informed to the Insurance Company.  It appointed a surveyor, who assessed the loss.  Since the Insurance Company has not settled the claim, it got it repaired by spending an amount of Rs.8,38,970/-.  It issued a registered notice, however, the same was refuted, and therefore, it filed the complaint to direct the Insurance Company to pay the said amount with interest at 12% per annum, besides compensation of Rs.1,00,000/- and costs.

4.         The Insurance Company resisted the case.  While admitting that it has issued an insurance policy covering the risk, it alleged that the complainant is not entitled to any amount, as it had violated the conditions of the policy by hiring the same to another company, a third party.  When a surveyor was appointed, he assessed the loss to an amount of Rs.4,12,522/- subject to its admissibility under the policy.  The complaint was barred by limitation, and therefore, the same be dismissed. 

5.         The complainant in proof of its case filed affidavit of one of its partners and filed eight documents, while the Insurance Company also filed various documents mentioned in the order.  However, no exhibit number was given. 

6.         The District Forum after considering the fact that the surveyor had assessed the amount at Rs.4,12,522/- directed the Insurance Company to pay the same together with costs of Rs.1,000/-.

7.         Aggrieved by the said decision, the Insurance Company preferred appeal, FA.No.259/2007 contending that the District Forum did not advert to the terms and conditions.  Since the insured vehicle was not carrying the goods belonging to it, was not entitled to the amount.  The repudiation was just, and therefore, prayed that the appeal be allowed dismissing the complaint.

8.         The complainant filed cross appeal contending that the very surveyor who was appointed in the case assessed the damage at Rs.4,12,522/-, and without considering various bills filed by it showing that it had spent altogether an amount of Rs.8,38.970-, the District Forum ought to have awarded entire amount besides compensation. 

9.         It is not in dispute that the complainant is a partnership firm engaged in the business of excavation, loading, transporting, dumping, etc. It had purchased a goods vehicle insured with the Insurance Company for the period from 28.02.2002 to 27.02.2003.  It is also not in dispute that the complainant entered into a contract with ABC Engineering Works, Vijayawada which in turn had obtained a contract for transporting loose soil for Singareni Collieries, Kothagudem.  It is further not in dispute that while the vehicle of the complainant was carrying the material belonging to ABC Engineering Works, Vijayawada it met with an accident for which the complainant had laid the claim.  We may clarify herein that the accident took place while the vehicle was carrying goods belonging to a third party.  It is not its own goods. 

10.       Evidently, a perusal of the policy discloses that the complainant had taken policy “for own goods only”.  The policy was issued subject to IMT 66, which reads as follows:

“In consideration of a 30% discount on own damage premium under the policy, it is hereby understood and agreed that if at the time of accident the vehicle insured under the policy is carrying goods not belonging to the insured, the company will not be liable for any claims u/s.1 of this policy”

From the above, it is clear that the insurance policy was taken on the condition of using the vehicle for its own purpose of carrying its own goods.  The insured had plied the vehicle for hire to another company in violation of the policy conditions, when it met with an accident.  Whatever be the amount spent towards repairs, the complainant having not entitled to carry goods of third parties while plying the vehicle, a contravention of policy condition, any amount spent towards repairs of vehicle will not be liable to be recovered. 

11.       The Supreme Court in United India Insurance Co.Ltd. Vs. M/s.Harchand Rai Chandan Lal reported in AIR 2004 SC 4794 had categorically observed that the policy is a contract between the parties and both parties are bound by the terms of contract.  It was further observed that the terms of the policy have to be construed as it is and court cannot add or subtract something.  The Supreme Court observed:

“it is possible that an insurer may sustain loss in technical terms of the criminal law, but no relief can be given to him unless his case is covered by the terms of the policy.  It is not open to interpret the expression appearing in the policy in terms of criminal law; but it has to give meaning to the expression as defined in the policy.  The act that causes the loss must fall within the definition in the policy and it cannot take the cover and contents of the definition as laid down in the criminal law.  Therefore, when the definition of the word burglary’ has been defined in the policy then the case should fall within that definition.  Once a party has agreed to a particular definition, he is bound by it and the definition of criminal law will be of no avail.  The terms of the contract has to be strictly read and natural meaning to be given to it.  No outside aid should be sought unless the meaning is ambiguous.”

12.       There is yet another angle to the case.  The complainant had undoubtedly obtained insurance policy for getting the loss indemnified.  It hired the lorry in order to transport the goods pertaining to a third party. It was hired in order to generate profit, which undoubtedly, meant for commercial purpose.  Since the activity undertaken by it was for commercial purpose and in order to generate profit, the Insurance Company need not indemnify the loss.  Equally the firm cannot be termed as consumer and entitle to clutch jurisdiction.    

13.       Coming to the facts, the policy having been taken for carrying its own goods and since there was breach of terms, the complainant was not entitled to be reimbursed for any loss sustained in the course of accident.  The order of the District Forum directing the Insurance Company to pay the amount spent towards repairs of the vehicle cannot be upheld.  The complainant is not entitled to the amount claimed . 

14.       In the result, the appeal filed by the Insurance Company is allowed setting aside the order of the District Forum.  Consequently, the complaint is dismissed. As a corollary, the appeal preferred by the complainant is also dismissed.  In the circumstances, each party to bear its own costs.        `

PRESIDENT                   LADY MEMBER

                                                         Dt:23.01.2009.