1. The brief history of the case of the complainant is that he is the owner of Backhoe Loader Machine bearing No.OR-10G-0542 which was insured with OP.1 vide Policy No.2605043115P101794431 valid from 23.5.2015 to 22.05.2016 and Sri Prasant Kumar Dash having DL No.1020080011819 was operating the vehicle in mining work. It is submitted that on 21.7.2015 while the vehicle was engaged at Sree Srinivas Stone Crusher at Mania. Damanjodi, one of the back tyres of the machine got punctured and the Operator and Helper of the machine took the tyre to Semiliguda at 6.00 PM for its repair and at about 8.00 PM, the complainant received a phone call from the crusher owner that the vehicle has been caught fire while standing stationary. It is further submitted that the complainant immediately rushed to the site and with the help of local people and fire brigade, the fire was controlled but by then, the vehicle was totally damaged. The fact of fire accident was intimated to Semiliguda Police on 24.7.15 and on intimation the OPs deputed their surveyors. M/s. Trishul Tread Pvt. Ltd., Mancheswar Industrial Estate, Bhubaneswar who is the authorised dealer of the vehicle offered estimate of repair at Rs.31, 60,409/- but after filing of all claim documents with the Ops, they are paying no attention towards settlement of claim till date. Thus alleging deficiency in service on the part of the Ops, he filed this case praying the Forum to direct the Ops to settle the claim at Rs.10.00 lacs (IDV) since the vehicle got totally damaged with interest @ 12% p.a. from the date of accident and to pay Rs.5, 10,000/- towards compensation and costs to the complainant.
2. The Ops filed counter in joint denying the allegations of the complainant and contended that the Driver, Sri Prasant Kumar Dash had no valid DL to operate the vehicle. It is contended that the vehicle was used for commercial use and they have ascertained the fact that the Driver alone had taken the tyre for repair to Semiliguda but not with the Helper. It is further contended that the Police was informed after 4 days of the alleged accident and the Investigator deputed to the spot by the Ops on 23.07.15 submitted its report stating that the vehicle had no fitness on the date of alleged occurrence. It is also further contended that considering the facts and circumstances of the case, they have repudiated the claim on 11.08.2016 and 17.08.2916 and communicated the same to the complainant through RPAD. Thus denying any deficiency in service on their part, the Ops prayed to dismiss the case of the complainant.
3. Both the parties have filed certain documents in support of their cases. The Ops filed affidavit. Heard from the parties through their respective A/Rs and perused the materials available on record.
4. In this case, the JCB machine bearing No.OR-10G-0542 of the complainant insured with OP.1 vide Policy No.2605043115P101794431 valid from 23.5.2015 to 22.5.2016 which met with fire accident while in parking at Sree Srinivas Stone Crusher, Mania, Damanjodi on 21.07.15 at about 8.00 PM are all admitted facts. It is also an admitted fact that the said accident was intimated to local Police as well as Insurance Co. on 22.07.2015 by the complainant and the Ops have deputed their Surveyors to the spot of accident. The case of the complainant is that he submitted claim papers along with all required documents before the Ops for settlement of claim in respect of the vehicle but in spite of several request letters and phone calls, the Ops neither settled nor repudiated the claim.
5. The Ops stated in their counter that the fire accident took place at Mania, Damanjodi on 21.7.2015 but the complainant has lodged complaint at Semiliguda PS on 24.7.2015 i.e. after 4 days of occurrence and the reason for delay in lodging complaint has not been explained by the complainant which is fatal to this case. As per the Ops they have received intimation from the complainant on 22.7.15 and their Investigator visited the spot on 23.7.15 who furnished his report stating that the driver at the relevant time had no valid license and the vehicle had no fitness certificate on the date of alleged occurrence. The Ops referring the investigation report of Sri Bhoi, Advocate and opinion report of Sri Ramesh Chandra Sahoo dt.10.06.16 repudiated the claim and intimated the same to the complainant on 11.8.16 and 17.8.2016.
6. From the rival contentions of both the parties, the following issues emerge importance for just decision of this case. (1) Whether the complainant committed 4 days delay in intimating the Police regarding fire accident, (2) whether the driver had no valid license at the time of accident, (3) whether for want of fitness certificate, the vehicle met with fire accident, (4) whether there is any deficiency in service on the part of the Ops and (5) if so, as to what relief?
7. While deciding Issue No.1 it is seen that the vehicle met with fire accident on 21.7.2015 at about 8.00 PM and the fire was doused with the help of fire brigade and local people. From the copy of SDE No.528 dt.24.7.15 of Semiliguda PS, it is seen that the said PS has referred another SDE No.488 dt.22.7.15 in the copy of SDE No.528 dt.24.7.15 in fire accident complaint to the said vehicle of the complainant. The Ops have filed copy of SDE No.528 dt.24.7.15 of Semiliguda PS and hence on the strength of said document, it became clear that before the intimation dt.24.07.15 for fire accident, the complainant had earlier on 22.7.15 intimated the fact of fire accident to the concerned PS. From the above facts, we do not find any delay in lodging complaint before the local PS by the complainant and hence the FIR is in time. This issue goes in favour of the complainant.
8. The 2nd issue is whether the driver of the vehicle had valid license during the relevant time of accident. It is seen from the DL of the driver, P. K. Dash issued by RTO, Koraput that Sri Dash has been authorised to drive “Other Construction Equipments” and it is found that the Maker’s Name of Model JD 315V Backhoe Loader is “TELCO Construction Equipment Co. Ltd.”. The vehicle is a medium goods vehicle with open body as mentioned in the Registration Certificate issued by RTO, Koraput but not a transport vehicle as mentioned in the opinion report of Sri R. C. Sahoo, Advocate at para-5 of his report. From the above facts it was ascertained that the vehicle is known to be construction equipment and the driver had valid license to operate “Other construction equipment” w.e.f. 21.8.2008. However, in the investigation report, Sri Bhoi, has not raised the issue of DL. Further it is seen that the vehicle was caught fire while in parking position and as per settled principle of law, DL has no role to play in that situation. Thus this issue also favours the complainant.
9. The 3rd issue is whether for want of Fitness Certificate, the vehicle met with accident. The Ops relying the report of investigator stated that the vehicle had no fitness certificate as on the date of alleged accident. As per MV Act, fitness certificate is required for transport vehicle implied for safety of passengers and goods. The vehicle in question which met with accident is neither a passenger nor a goods carrying vehicle. Further the vehicle has been declared as medium good vehicle with open body and known to be construction equipment. The vehicle was not put in to operation work during the fire accident. As per the investigator, the fitness of the vehicle was valid up to 21.5.2015 and the fire accident took place on 21.7.15. Though the Ops are grumbling about breach on the part of the insured concerning fitness certificate, they would not be allowed to avoid their liability towards the insured unless said breach is as fundamental as is found to have contributed to the cause of accident to a parked vehicle. Nowhere the Ops proved that due to want of fitness of the vehicle, the fire accident took place. Moreover, want of fitness certificate and valid license has no nexus to a parked vehicle met with fire accident and in our view such breach is not so fundamental to contribute the cause of fire accident. Accordingly, this issue also goes in favour of the complainant.
10. In absence of fitness certificate in a parked vehicle, which is not a passenger or goods carriage one, it was not found to have been the direct cause of fire accident and would be treated as minor breach on consequential deviation in the matter of use of the vehicle. Further the insured has not explained the warrantees, exceptions and conditions of the policy to the insured when it repudiated the claim on the ground of breach of policy conditions. Required IRDA guidelines regarding policy holder’s interest also are not complied with. In the above facts and circumstances, the Ops cannot be allowed to avoid their liabilities towards the insured and such repudiation of claim without valid reason or application of mind after 13 months delay certainly amounts to deficiency in service on the part of the Ops.
11. While quantifying the loss, it is seen that the complainant has advanced is claim on total loss basis. From the insurance certificate it is seen that the IDV is Rs.10.00 lacs. The report of the investigator says that the vehicle is totally damaged and the cost of the vehicle may be Rs.9 to 10 lacs. In view of above facts, the Ops are required to settle the claim as per total loss basis minus compulsory excess and cost of salvages.
12. The compulsory excess as mentioned in the insurance certificate is Rs.5000/-. While assessing the cost of salvage it is seen that the unladden weight of the vehicle is 7340 Kg. Considering the cost of salvage as per market value, we feel a deduction of Rs.50, 000/- towards salvage by the Ops from the insured value will be just and proper. Now the compulsory excess and cost of salvage comes to Rs.55, 000/- (Rs.5000/- + Rs.50, 000/-) and after deduction of salvage cost, the salvage is the property of the complainant. While settling the claim on total loss basis, the Ops are to pay Rs.10, 00,000/- minus Rs.55, 000/- = Rs.9, 45,000/- to the complainant. As the vehicle got damaged from 21.7.2015 and the Ops have not settled the claim, the above amount certainly bears interest. Further due to loss of vehicle in the fire accident and subsequent annoying situation faced by the complainant in connection with non settlement of claim, he must have suffered some mental agony and also has filed this case incurring some expenditure. Considering the sufferings of the complainant, we feel, a sum of Rs.1.00 lac towards compensation besides Rs.5000/- towards cost of litigation in favour of the complainant will meet the ends of justice.
13. Hence ordered that the complaint petition is allowed in part and the Ops 1 & 2 being jointly and severally liable are directed to pay Rs.9, 45,000/- towards insurance claim in respect of the vehicle of the complainant with interest @ 12% p.a. from the date of repudiation i.e. 11.08.2016 and to pay Rs.1, 00,000/- towards compensation besides Rs.5000/- towards cost of litigation to the complainant within 30 days from the date of communication of this order.
(to dict.)
