(Delivered on 10/12/2019)
PER SHRI A. Z. KHWAJA, HON’BLE PRESIDING MEMBER.
1. Appellant – IFFCO Tokio General Insurance Company has preferred the present appeal challenging the judgment and order dated 02/06/2015 passed by the learned District Consumer Forum, Chandrapur in Consumer Complaint No. 71/2013 by which the complaint filed by the complainant /respondent came to be partly allowed and appellant / O.P. were directed to pay an amount of Rs. 4,93,200/- within 45 days and also to pay compensation of Rs.10,000/-. (Appellant and respondent shall hereinafter be referred to by their original nomenclature)
2. Complainant – Smt. Nirmala Pudoo claims to be an agriculturist and resident of Village – Kolharbodi, Post Sursundi, Tahsil Dhanora, District Gadchiroli . The complainant was owner of 10 acrs of agricultural land and the same was cultivated by her personally. Complainant was in need of one tractor for the purpose of cultivation and so in the month of August-2012 complainant purchased one tractor of Mahindra and Mahindra Company from Navin Automobile , Chandrapur and the same was bearing registration No. MH-33/F-2295. Complainant was using the tractor solely for agricultural purpose. Complainant – Nirmala Pudoo had also taken insurance for the tractor against fire from the O.P. namely IFFCO Tokio General Insurance Company and period of insurance was from 28/08/2012 to 27/08/2013. Complainant contended that on 13/01/2013 the complainant has sent the tractor to village Michgaon for bringing fertilizers for cultivation and the tractor was proceeding through forest infested by Naxalities. Tractor of the complainant was also proceeding along with 25 other vehicles. At about 2.00 p.m. suddenly all the vehicles proceeding through forest were obstructed by Naxalities. Naxalities thereafter forced all the vehicle to stand in a row and thereafter set on fire all the vehicles which also included the tractor of the complainant – Nirmala Pudoo. The complainant has alleged that this operation was under taken by Naxalities because work of construction of road was in progress with the help of one construction company and the same was opposed by the Naxalities. The complainant had not at all given the tractor on hire for commercial purpose. On the same day i.e. 13/01/2013 one Mr. Shivdas Madavi also lodged the report regarding the incident at Police Station, Dhanora and on the basis of report lodged by Mr. Shivdas Madavi Crime No. 02/2013 also came to be registered under section 143, 147, 148,149, 120B, 506B, 342, 335. Since the tractor of the complainant was completely damaged by fire, the complainant sent the same for repairs and also submitted a proposal for claiming sum of Rs. 4,93,200/-, but the same was not accepted. The complainant also issued notice to the O.P. but there was no response and so complainant filed present Consumer Complaint under section 12 of the Consumer Protection Act, 1986.
3. O.P. appeared and resisted the claim by filing written version. The O.P. has not denied that the complainant was an agriculturist and that complainant had purchased one tractor. The O.P. has also accepted that the said tractor owned by the complainant came to be insured with the O.P. The O.P. has also admitted that the tractor of the complainant was set on fire by Naxalities along with 25 other vehicles in the Naxal- infested area. However, the O.P. has denied that the complainant had not given the tractor on hire for construction activity. The O.P. has denied that there was any deficiency in service or it was liable to pay any amount as claimed by the complainant. The O.P. has also denied that the tractor was being used for agricultural purposes. On the contrary the O.P. has taken a plea that the complainant was using the tractor for commercial purposes by attaching a trolly and thereby the complainant had committed a breach the terms and conditions of the insurance policy. For the foregoing reasons the O.P. has contended that the complaint is untenable in law and it deserves to be dismissed.
4. Complainant and O.P. both have submitted their evidence affidavits as well as written notes of arguments along with documents. Learned District Consumer Forum, Chandrapur then went through the evidence adduced on record by complainant – Smt. Nirmala Pudoo as well as O.P. and also went through the written notes of argument. The learned District Consumer Forum thereafter came to the conclusion that the complainant had sustained monetary loss due to damage of tractor due to fire during the period of insurance policy. The learned District Consumer Forum also came to the conclusion that O.P.- IFFCO Tokio General Insurance Company had also indulged in unfair trade practice and deficiency in service by rejecting the claim of the complainant and therefore the O.P. was certainly liable to pay an amount of Rs. 4,93,200/- as claimed by the complainant. The learned District Consumer Forum therefore partly allowed the complaint by passing the impugned order dated 02/06/2015. It is against this order dated 02/06/2015 passed by learned District Consumer Forum, Chandrapur that the present appellant has come up in appeal.
5. We have heard, Mr. Pande, learned advocate for the appellant- IFFCO Tokio General Insurance Company and Mr. Pandhare, learned advocate for the respondent/complainant. We have also gone through the written notes of argument filed by the appellant as well as respondent. We have also perused the documents placed on record.
6. Mr. Pande, learned advocate for the appellant has submitted that the learned District Consumer Forum had not taken into consideration the fact that the complainant was not entitled for the claim since the complainant herself has committed breach of terms and condition of the insurance policy taken by the complainant. Firstly it is submitted by Mr. Pande, learned advocate for the appellant that the tractor of the complainant was being used by complainant for commercial purpose by giving it on hire for transportation of material for road construction activity and so there was breach of terms and conditions of insurance policy. For this purpose Mr. Pande, learned advocate for the appellant has drawn our attention to the copies of police papers namely copy of First Information Report (F.I.R.) lodged by one Mr. Shivdas Madavi in Dhanora Police Station. Appellant has also relied upon one spot panchanama. If we turn to copy of F.I.R. lodged by Mr. Shivdas Madavi, he has alleged that he had taken his tractor for hire for transportation of construction material. Mr. Shivdas Madavi has also alleged that on 13/01/2013 his tractor along with about 25 tractors were proceeded through forest towards Village Michgaon when entire caravan was stopped and obstructed by Naxalities and thereafter all tractors including the tractor of the complainant were set on fire. On the basis of this document namely copy of F.I.R. alone the appellant has taken a plea that the tractor of the present complainant was also being used for commercial purpose by way of transportation.
7. Mr. Pandhare, learned advocate for the respondent /complainant has categorically denied this contention and has submitted that merely because the registration number of tractor of complainant was mentioned in F.I.R. no inference can be drawn that the complainant was using the same for commercial purpose. In our view when the appellant - IFFCO Tokio General Insurance Company had taken a plea that the tractor of complainant was being used for commercial purpose then heavy burden was cast upon it to establish the same and copy of F.I.R. alone would not be sufficient to discharge the burden cast upon the appellant –Insurance Company. It is necessary to mention that except the copy of F.I.R. no other material has been placed on record to discharge their burden more particularly when this ground has been taken also in the Repudiation Letter dated 09/04/2013. It seems from the letter of repudiation dated 09/04/2013 that the insurance company has drawn this inference since the photo taken by the surveyor showed the tractor attached with trolly but in our view this circumstance alone is not sufficient to draw such inference. It is common knowledge that agriculturists are using the trolly for transporting agricultural produce also. We are of the view that the insurance company was not at all justified in repudiating the claim on this count alone in the absence of other evidence on record. If we turn to the report of the surveyor which is on record, the surveyor has also given report that the tractor was burnt by unknown naxalities but this fact alone will not be sufficient to repudiate the insurance policy. As such contention of the appellant /O.P. that the tractor was being used for commercial purpose in breach of terms of insurance policy is not at all tenable in law.
8. During the course of argument Mr. Pande, learned advocate for the appellant has heavily relied upon judgments delivered by the Hon’ble National Commission in the case of Bharti AXA General Insurance Co. Ltd. Vs. Annasaheb Bapurao Ghandure in revision petition No. 4863 of 2013 and case of M/s. ATM Construction Vs. United India Insurance Company Ltd. , First Appeal No. 269/2015. In both these cases the plea was taken that complainant /consumer had committed breach of terms and conditions of the insurance policy. Mr. Pande, learned advocate for the appellant has drawn our attention to the case of M/s. ATM Construction Vs. United India Insurance Company Ltd. (cited supra) delivered by the Hon’ble National Commission. In that case also the excavator of the complainant was destroyed by the Naxalities and insurance company had invoked Exclusion Clause namely War like act committed by political organization. But it is pertinent to note that in the letter of repudiation dated 26/03/2013 and 09/04/2013 the appellant company has not at all repudiated the claim on this count at all. We are therefore of the view that it is not at all open to the appellant to take this defence and case of M/s. ATM Construction Vs. United India Insurance Company Ltd. cited by learned advocate for the appellant will not go to help of case of the appellant.
9. Coming now to the next ground agitated by the appellant, it is submitted by Mr. Pande, learned advocate that the complainant had also committed breach of terms and conditions of the insurance policy, in as much as the driver of the tractor was not having valid driving licence to drive the tractor with trolly. Mr. Pande, learned advocate for the appellant has drawn our attention to the copy of driving licence which shows that driver was holding a valid driving licence for Light Motor Vehicle (tractor) and so was not competent to drive the tractor with trolly. Copy of the driving licence no doubt, shows that the driver was holding valid driving licence for Light Motor Vehicle (tractor). But we find that the complainant had submitted claim only for damage to tractor due to fire and not trolly and tractor was also dully insured. Secondly, we are of the view that this ground was not tenable as same cannot be construed as fundamental breach of policy so as to disentitle the claim of the complainant. On this aspect Mr. Pandhare, learned advocate for the respondent has also placed reliance upon the case of B.. Nagaraju Vs. M/s. Oriental Insurance Co. Ltd., reported in II(19996) CPJ 18 (SC) and New India Assurance Company Limited Vs. Classic Printers , reported in II (1999) CPJ 161.
10. In the light of aforesaid discussion, we are unable to accept the contentions advanced by the appellant that the learned District Consumer Forum had committed any error in giving findings. On the contrary the learned District Consumer Forum has elaborately dealt with the evidence and also rightly allowed the claim of the complainant. We therefore pass the following order.
ORDER
i. Appeal is hereby dismissed.
ii. Appellant to bear his cost as well as cost of respondent.
iii. Copy of order be furnished to both the parties, free of cost.
