Before the District Consumer Disputes Redressal Commission, Rohtak.
Complaint No. : 23.
Instituted on : 15.01.2018
Decided on : 23.01.2024.
Jasvir Singh aged 44 years S/o Sh.Jai Singh R/o Village-Kutana, Distt.Rohtak.
…………….Complainant
Versus
SBI General Insurance Co.Ltd. Anand Plaza, Chhotu Ram Chowk, Rohtak through its Manager.
…….....Respondent/opposite party
COMPLAINT U/S 12 OF CONSUMER PROTECTION ACT,
BEFORE: SH.NAGENDER SINGH KADIAN, PRESIDENT.
DR. TRIPTI PANNU, MEMBER.
DR.VIJENDER SINGH, MEMBER
Present: Sh.Vikram Singh Ohlan, Advocate for complainant.
Sh.Gulshan Chawla, Advocate for opposite party.
ORDER
NAGENDER SINGH KADIAN, PRESIDENT:
1. Brief facts of the case as per the complainant are that he is registered owner of a vehicle/Transit Mixer bearing registration No.HR-56-7017 and same was insured with respondent vide policy no.7742726 valid from 23/7/2016 to 22/7/2017 for a sum of Rs.10,00,000/-. On 01/7/2017 the said vehicle was turned turtle with loaded goods and was badly damaged. The complainant duly informed officials of respondent and the vehicle of the complainant was got surveyed by the surveyor and he prepared his assessed damaged report and vehicle was reported total loss. After that the complainant applied for the claim and submitted all documents as desired by respondent vide claim No.392116. Complainant approached to respondent's officials and requested them to disburse the claim amount in his favour. But after repeated requests, officials of respondent did not disburse the amount of claim to the complainant and later on repudiated the claim of the complainant on false grounds. The act of opposite party of repudiating the claim of complainant is illegal and amounts to deficiency in service. Hence this complaint and it is prayed that the respondent/opposite party may kindly be directed to pay the amount of Rs.10,00,000/- with interest @ 18% per annum from the date of incident till realisation and to pay Rs.1,00,000/- as compensation on account deficiency in service, harassment & mental agony and to pay Rs.11000/- as litigation expenses to the complainant.
2. After registration of complaint, notice was issued to the opposite party. Opposite party in its reply has submitted that the contents regarding vehicle bearing no. HR-56-7017 being insured from answering respondent vide policy no. 4742726 for the period of 23-07-16 to 22-07-17 for the IDV of Rs.10,00,000/- ( Rupee tenlakh only) subject to the terms and condition is correct. That at the time of getting the vehicle insured, answering respondent handed over the policy along with terms and condition and the vehicle was got insured from answering respondent, after admitting confirming the conditions of the policy.The contents regarding the vehicle in question having being suffered a loss on 01-07-2017, as the vehicle in question turn turtle, is correct. It is denied that the vehicle in question has suffered a total loss, as alleged. On getting the intimation regarding the loss, respondent appointed an independent IRDA licensed surveyor Sh. Vokesh Arya, who submitted his detailed report showing the liability of Rs.3,56,900/- (Rupee Three Lakh fifty six thousand and nine hundred only) but the amount assessed has not been paid by the insurance company, as the damage sustained in the vehicle was due to the overturning. That as per the IMT 47 (Indian Motor Tariff):
IMT.47. Mobile Cranes/Drilling Rigs/ Mobile Plants/Excavators/ Navvies/ Shovels/Grabs/Rippers.
It is hereby declared and agreed notwithstanding anything to the contrary contained in this Policy that in respect of the vehicle insured the Insurer shall be under no liability:-
a) Under Section I of this Policy in respect of loss or damage resulting from overturning arising out of the operation as a tool of such vehicle or of plant forming part of such vehicle or attached thereto except for loss or damage arising directly from fire, explosion, self ignition or lightning or burglary housebreaking or theft.
b) Under Section II except so far as is necessary to meet the requirements of the Motor Vehicles Act, 1988, in respect of liability incurred by the insured arising out of the operation as a tool of such vehicle or of plant forming part of such vehicle or attached thereto.
Hence the claim of the complainant being inadmissible due to the above sited exclusion under the terms and conditions of the policy, was rightly declined.
All the other contents of the complaint were stated to be wrong and denied and opposite party prayed for dismissal of complaint with costs.
3. Ld. counsel for the complainant in his evidence has tendered affidavit Ex.CW1/A, documents Ex.C1 to Ex.C9 and closed his evidence on 28.03.2019. On the other hand, Ld. counsel for opposite party has tendered affidavit Ex. RW1/A& Ex.RW2/A, documents Ex.R1 to Ex.R4 and closed his evidence on 21.08.2019.
4. We have heard learned counsel for the parties and have gone through material aspects of the case very carefully.
5. We have minutely perused the documents placed on record by both the parties. The claim of the complainant has been repudiated by the insurance companyvide letter dated 26.10.2017 which is placed on record by the complainant as Ex.C2. The main contention of the insurance company is that the damages sustained in the vehicle was due to overturning while the same was in the operation at the material time of accident, so as per IMT 47 damages are not covered in the policy. We have perused the IMT 47, which is as under:-
a) Under Section I of this Policy in respect of loss or damage resulting from overturning arising out of the operation as a tool of such vehicle or of plant forming part of such vehicle or attached thereto except for loss or damage arising directly from fire, explosion, self ignition or lightning or burglary housebreaking or theft.
b) Under Section II except so far as is necessary to meet the requirements of the Motor Vehicles Act, 1988, in respect of liability incurred by the insured arising out of the operation as a tool of such vehicle or of plant forming part of such vehicle or attached thereto.
We have also minutelyperused the survey report Ex.R2 and in the column of cause and nature of accident, it is submitted that : “As stated in enclosed claim form that the insured driver was driving the vehicle near the site of accident a vehicle coming from opposite direction got unbalanced & overturned and thus the vehicle got damaged.” Meaning thereby in the claim form and complaint also the complainant has pleaded that vehicle was turned turtle with loaded goods and badly damaged. On the other hand the insurance company denied the claim of the complainant after taking the plea that the vehicle was damaged due to over turning but the insurance company has not pleaded or submitted any document to prove the fact that the vehicle was over turned arising out of operational as a tool at the time of accident. IMT 47 is applicable if the vehicle was used for operational as a tool at the time of accident but the facts of the present case are different in nature. So we came into the conclusion that IMT 47 is not attracted in the present case because the vehicle was not used for operational purpose at the time of accident. Hence the complainant is entitled for the claim. In this complaint the complainant has submitted that vehicle has been totally damaged. To prove this fact he has not placed on record any document. On the other hand as per surveyor report Ex.R2, the surveyor has assessed the loss of Rs.356000/- which is just and reasonable. As such the complainant is entitled for the claim as per the report of surveyor.
6. In view of the facts and circumstances of the case we hereby allow the complaint and direct the opposite party to pay the claim amount of Rs.356000/-(Rupees three lac fifty six thousand only)alongwith interest @ 9% p.a. from the date of filing the present complaint i.e. 15.01.2018 to till its realization and also to pay Rs.5000/-(Rupees five thousand only) as compensation on account of deficiency in service and Rs.5000/-(Rupees five thousand only) as litigation expenses to the complainant within one month from the date of decision.
7. Copy of this order be supplied to both the parties free of costs. File be consigned to the record room after due compliance.
Announced in open court:
23.01.2024.
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Nagender Singh Kadian, President
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TriptiPannu, Member.
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Vijender Singh, Member.
