1.     Being aggrieved by the judgement and order of the District Consumer  Dispute Redressal Forum Wardha, in consumer complaint No.27/2018 dt. 30/03/2019, the appellant Insurance Company has  filed this appeal. The appellant is the opponent and the respondent is the complainant in the consumer complaint. The appellant and respondent are herein after referred to as opponent and complainant as per their status in the consumer complaint for the sake of convenience.

2.  The complainant is an owner of a truck, Bharat Benz/3123/R , bearing registration No.MH-32 -Q- 4591 and insured  it with the  opponent Insurance Company withNo.16060131160100003508 for the period of 01/10/2016 to 30/09/2017. That on 12/07/2017,driver namely Vinod Giri went to Bhugaon for transportation of goods from Bhugaon to Indore. Truck was carrying material  of 4 packets of H.R.Sheets , weighing 19.7 M.tonnes. When the truck reached  near  Semadoh on  Dharni road, incident took place in ghat section while negotiating acute turn, goods loaded in truck shifted to one side and the loaded body of truck detached from its fitting and fell down on road and caused loss. The driver  registered the complaint with police station Chikhaldara and the police authorities drawn the spot panchanama. The vehicle was  having valid fitness certificate .The complainant informed the opponent Insurance Company of the incident.  After the due inspection of the vehicle by the officers of Insurance Company, it was taken to Indore for body repairing. The estimate of Rs.4,61,290/- was informed to complainant by the repairing agency. It was assured of the reimbursement of the repairing expenditure by the opponent Insurance Company. He actually  required to incur expenditure of Rs.2,19,100/- He lodged a claim for loss before opponent Insurance Company. However, the opponent Insurance Company repudiated the claim on the ground that loss has not occurred due to acting of any external force. Therefore, the complainant filed consumer complaint bearing number 27/2018 before the District Consumer Dispute Redressal Forum, Wardha seeking  directions  to to pay Rs.2,19,100/- towards  the expenditure incurred by the complainant and RS., 5000/- towards agony and Rs. 25,000/- towards cost of litigation.

3.    The insurance company contested the complaint, denied the facts and rival allegations in the complaint. It is admitted that they repudiated the claim for the reason that loss has not occurred due to acting of any external force. The said incident is not covering under the category of accident. The complainant  not issued  legal notice before filing of the consumer complaint and the complaint is premature in the eyes of law. There is no FIR  registered with the police and only spot panchnama is drawn by the police . Deficiency un service is denied  by the opponent.

4.  After hearing both the parties, the District Forum allowed the complaint partly and directed the Insurance Company to pay Rs. 2,19,100/- to the complainant with 6% interest p. a. from the date of filing of the consumer complaint. The District Forum also awarded Rs. 5,000/- towards physical , psychological  and economic harassment of the complainant and Rs. 5,000/- towards cost of litigation.

5.  Being aggrieved by the judgement and order of district forum the Opponent Insurance Company  has filed this appeal.

6.   Advocate P.K.Kataria present for opponent Insurance Company and Advocate P.R.Naikwade present for complainant.

7.   After respective submissions of the parties, following points arose for our determination. We have noted them and answered them  for the reasons to follow.

REASONING :-

As to Point Nos. 1, 2 and 3.

8.  The ld Advocate Kataria argued for the opponent insurance company that complainant is not their consumer as the complainant  is running the vehicle for commercial purpose and also employing the paid driver. There is no evidence that the vehicle is used by the complainant for his livelihood by way of self employment. The opponent Insurance Company denies all the facts raised in the complaint for want of knowledge. The alleged incidence is not an accident as it has not happened due to any external force. There is no FIR of the police on record. The surveyor appointed by the opponent Insurance Company has given opinion that accident is caused due to failure of body foundation rafters on the sharp turn due to shifting of load on one side. There is no any other external force that has operated and/ or no any external impact has resulted into this loss and  this incident does not fall into perview of policy coverage. The report of surveyor is unchallenged and complainant has not taken the cross examination of the surveyor. The District Consumer Forum failed to appreciate all these facts and erroneously decided the complaint. There is no reasoning for not accepting the report of surveyor in the judgement and order of the District Forum.

To support his contention, the Iearned  Advocate relied on following judgements of National Commission

1.In Paam Eatables Ltd. ……. Versus….. United India Assurance Co.Ltd., IV ( 2004)CPJ 22 (NC).

2.Pradeep Kumar Sharma……. Versus….. National Insurance Company III (2008) CPJ 158 (NC).

9.  The learned Advocate Shri. Naikwade argued for the complainant in the line of consumer complaint. Though the claim is repudiated on the ground that there is no external force behind the happening of the accident.  However opponent has not informed the complainant about any clause as to internal/inside force or external/outside force. No such clause is included in the policy. The District Forum rightly appreciated the facts and law and decided the complaint. the District Forum rightly decided the complaint keeping reliance on the judgement of Hon’ble National Commission in National Insurance Company Limited ……. Versus…..  Mousmi in R.P.1270/2016 (20161  (4) CPJ 438 ,wherein the Hon.National Commission observed  that an accident is something that happens unexpectedly and is not planned in advance , it is an unpleasant  especially in case of vehicle that happens unexpectedly and causes injury or damage. The District Forum has also gone through the definition of accident given in the Oxford and Blacks Law Dictionary. The learned advocate also kept reliance on the judgement of Hon’ble National Commission in ICICI Insurance Company versus Raju Kachhva,appeal No. 144 /2008 (2008(6) CPJ 312). The learned Advocate concluded his arguments

with the  Submissions that the Distinct Forum  rightly awarded the amount of Rs.2,19,100/-, incurred by the complainant towards  repairing. The learned advocate submitted the judgement of Hon’ble High Court Madras in Indian Mutual General Insurance Society Limited Madras ……Versus……R. Raman Nair  in appeal No.529/1961, decided on 12th April 1966 wherein the Hon’ble High Court held that the words “by accidental external means in our view, are comprehensive to include the accident to the lorry. External means in the context is to be understood as referable to a cause other than what is internal to the lorry.”

10.  We would like to discuss whether the complainant is covering under the definition of consumer or not as it is objected by the opponent. It is contended by the opponent that the complainant is using the vehicle for commercial purpose by employing the driver. However, in our opinion employing of the driver will not disentitle the complainant being covered under the definition of consumer, it is not necessary that the person shall drive the vehicle by own. The next pertinent question before us is as to deficiency in service by the opponent Insurance Company. The opponent Insurance Company has repudiated complainants claim on the ground that the mishap happened not due to external force. For that the insurance company relied upon the surveyor report, wherein the surveyor has opened the same. However it is pleaded by the complainant that the vehicle was having the fitness certificate and the mishap happened when negotiating the turn or driving at the turn in the Ghat, where the load in the vehicle shifted at one side and the body got detached from the main cabin or engine. It is pleaded  that the vehicle was carrying the load of 19.7 tonnes of sheets. Whether the report of the surveyor is to be taken as a final word is a pertinent question. The Hon. Apex court in New India Assurance company….v/s…. Pradeepkumar , as reported in 2009 CTJ 599 Supreme court (CP), have held that the surveyor’s  report  is the  prerequisite in settlement of the insurance claim, however it is not the sacrosanct and final word in deciding the issues. Therefore, It is rather difficult for us to take the opinion of surveyor  that no external force acted in the case in happening of the mishap. In our opinion, shifting of the load on one side in the vehicle at the turn of the road in ghat is also a external force, that has acted in the case in hand. It is not the case that the vehicle was in resting condition then. Therefore, the surveyor’s opinion as to mishap happened not  due to external force, cannot be accepted. The District Forum has relied upon the judgement of Hon. National Commission in I.C.I.C.I Insurance Co.Ltd…..V/s……Raju Kacchawa,  reported in RP 144/2008(4) CPJ 312, where in it is observed that accident is unforeseen, unexpected , unintentional occurrence of an incident, which does not contribute the negligence. In the case in hand, otherwise also no element of contributory negligence on the part of complainant is established. As contended by the learned Advocate of the complainant, the definitions of accident in Oxford Dictionary and Black Law Dictionary also speaks the same. The judgement of Hon’ble High Court Madras in Indian Mutual General Insurance Society Limited Madras ……Versus……R. Raman Nair  in appeal No.529/1961, decided on 12th April 1966.  Wherein the Hon’ble High Court held that the words “by accidental external means in our opinion are comprehensive to include the accident to the lorry. External means in the context is to be understood as referable to a cause other than what is internal to the lorry.”

11.          Under these circumstances, it reveals that this is a case of accident only. Therefore, there reveals deficiency in service on the part of opponent Insurance Company in repudiating the complainant's claim. The district forum has allowed the complaint partly and directed the Insurance Company to pay Rs.2,19,100/- to the complainant with 6% interest p. a. from the date of filing of the consumer complaint. The District Forum also awarded Rs. 5,000/- towards physical, psychological  and economic harassment of the complainant and Rs. 5,000/- towards cost of litigation In view  of our aforesaid discussion, we agree with the observations and order of District Forum. Therefore, there requires no interference in the order of District Forum. In the circumstances, the appeal deserves be dismissed. Hence, the following order.                                              

                                                    // ORDER //

1.  Appeal bearing No.FA 19/143 is hereby dismissed.
2.  No coder as to costs.

    (iii)  Copy of the order be furnished to both parties free of

      cost.