District Consumer Disputes Redressal Forum
Civil Station, Palakkad – 678 001, Kerala
Dated this the 22nd day of December, 2010
Present: Smt.Seena.H, President
Smt.Preetha.G.Nair, Member
Date of filing: 22/03/2010
CC. No.42/2010
Sudheer.K
S/o.Krishnan
Krishnagiri House
Manchira
Chittur
Palakkad - Complainant
(By Adv.V.K.Venugopalan)
Vs
1. The Branch Manager
Branch Office,
New India Assurance Co. Ltd.
Sri Valli Building Complex
2nd Floor, Anicode Junction
Chittur – 678101.
2. The Divisional Manager
Divisional Office Palakkad (761100)
The New India Assurance Co. Ltd.
N.S.Towers, Near Stadium Bus Stand
Palakkad, Keala 678013.
Representing the New India Assurance Co. Ltd
Head Office, New India Assurance Building
87, Mahatma Gandhi Road
Fort Mumbai 420001. - Opposite parties
(By Adv.C.Mohanram for both opposite parties)
O R D E R
By Smt.PREETHA.G.NAIR, MEMBER
The complainant is the registered owner of a Hitachi Excavator model No.EX-100-3 Serial No.36092 and the equipment was insured with the opposite parties vide contractors plant and machinery insurance policy No.761102/44/07/07/30000012. The sum insured for the machine was Rs.16,00,000/- and the premium amount for a period of one year remitted was Rs.17,146/-. On 9/3/2008 at 10 A.M while the machine was used for excavation work beside a pond at Manchira near JPS School, Chittur the machine accidentally fell into the pond and became unserviceable. It was on a Sunday and as such the very same day the complainant could not inform the insurer. The next day the matter was informed to the insurer. The machine could not be allowed to remain submerged in the water for a long time and as such to minimize damages it was retrieved from the site. Then the Divisional Manager of the Insurance Company deputed a Surveyor, Dr.Harshan, Electrical Engineer to assess the loss and he inspected the engine on 14/03/2008. The survey has been completed at the workshop premises as conducted on 14/3/2008, 18/3/2008 and 16/5/2008 by the surveyor. The complainant submitted all the documents to the opposite party enabling it to settle the claim. During 2nd week of November, 2008 the complainant received a letter from the opposite parties that the claim stands repudiated and closed as no claim. The complainant had spent an amount of Rs.3,30,000/- to repair the machinery after the accident. Hence complainant prays an order directing the opposite parties to pay damages sustained Rs.3,30,000/- with interest at the rate of 12% to the complainant and cost of the proceedings.
Opposite parties filed version stating the following contentions. The opposite parties admitted that Hitachi Excavator model No.EX-100-3 owned by the complainant is insured with the opposite parties. On 9/3/2008, the machine was used for excavation work beside a pond at Manjira and the machine accidently fell into the pond is disputed by opposite parties. The complainant intimated the opposite parties about the incident only on 10/3/2008, after shifting items subjected to loss, to the repairers, M/s.Kovai Engineers, Coimbatore. The same can be evidenced from the quotation dtd.9/3/2008 given by the repairer at Coimbatore. As per clause 7 of the contractors plant and machinery insurance policy issued to the complainant an opportunity is to be given to the company to assess the proximate cause of loss. Mr.Jacob who is the surveyor has been entrusted to do the preliminary survey mainly to find out the proximate cause of loss. He has stated in his letter dtd.12/11/2008, that the machine has been shifted to M/s.Kovai Engineers so he has not conducted any preliminary survey. The 2nd surveyor Mr.Harshan who was deputed to assess the loss after receipt of the estimate has opined that no external damage has occurred to the excavator and the loss was due to the mechanical break down while in operation, which is an exclusion under the contractor plant and machinery insurance policy. The opposite parties stated that the complainant has not submitted any documentary evidence to prove the fact that the cause of loss was happened due to an insured peril. Considering all these aspects the claim was repudiated and the same was intimated to the complainant as per letter dtd.31/12/2008. Since there is valid reasons to repudiate the claim and the same was done as per the terms and conditions of policy. The complainant is not at all entitled to get any relief as claimed in the complaint. Hence the opposite parties prayed that dismiss the complaint with compensatory costs.
Complainant and opposite parties filed chief affidavit and documents. Exts.A1 to A19 on the side of complainant. Ext.B1 marked on the side of opposite parties. One witness was examined on the side of complainant.
Issues to be considered are;
1. Whether there is any deficiency in service on the part of opposite parties?
2. If so, what is the relief and cost entitled to the complainant?
Issues 1 & 2:
We perused relevant documents on record. Admittedly the machine was validly insured with the opposite parties for the period from 17/12/2007 to 16/12/2008. The dispute on the part of opposite parties is that the accident was not intimated in time and they did not get a chance to verify the accident. The complainant stated that the accident was happened on 9/3/2008 and it was a Sunday. The very next day the accident was reported and on that day itself a Surveyor, Mr.Jacob was deputed for preliminary survey by the 1st opposite party. According to Ext.A18 opposite parties stated that Mr.Jacob has been deputed to do preliminary survey at Manchira on 10/03/2008. This letter and photographs were marked with objection. The 2nd surveyor was deputed on 14/03/2008. According to Ext.A11 the second surveyor stated that he had inspected the spot of accident and collected details from the insured as well as the local people. As per Ext.A17 the Surveyor stated that the internal parts of the machine filled with mud. The 2nd surveyor had inspected the machine on 14/3/2008, 18/3/2008 and 16/5/2008 and the place of survey held at M/s.Kovai Engineering, Coimbatore authorized workshop. Copies of photos of demand engines also enclosed with his 2nd surveyor report. As per Ext.A17 in the surveyor’s report, the surveyor had gross loss assessed for Rs.2,56,175/-. The Surveyor stated that the engine was 13 years old on the date of loss and the depreciation is provided for parts replaced as the components of engine and the hydraulic pump are items with specified or limited life. Hence 50% depreciation is provided for parts replaced i.e 50% of Rs.2,24,275 = Rs.1,12,138/-. Then the surveyor stated that the damaged components like bearings, rocker shaft, valves, nozzles, pistons of hydraulic pump, track roller etc. can altogether fetch a salvage value of Rs.3,000/- only. Thereafter the surveyor deducted the policy excess and under insurance 141037 x 16,00,000/31,87,500. Finally the surveyor started that the net liability to the insurer is Rs.54,795/- only. No contrary evidence was produced by the complainant. The complainant has taken steps for examination of two surveyors. But the 2nd surveyor has present for examination. The surveyor stated that the damage of machine happened only when the machine parts immersed in the muddy water. The complainant stated that the machine was used for excavation work beside a pond and the machine accidentally fell into the pond. The opposite parties stated that the complainant intimated about the incident only on 10/03/2008, after shifting the item to the repairers. The accident was happened on 9/3/2008. It was on a Sunday and as such the very same day the complainant could not inform the insurer. The first surveyor inspected the machine on 10/03/2008 in Kovai Engineers, Coimbatore authorized workshop. According to Ext.B1 the 1st insurance surveyor stated that the machine has been shifted to M/s.Kovai Engineers and he has not conducted any preliminary survey. In short the insurance surveyor has inspected the machine after the direction of opposite parties. According to Ext.A1 contractors plant and machinery insurance policy clause 7 parties following an accident the insured shall take all reasonable steps within his power to minimize the extent of the loss or damage or liability. We considered the point in favour of the complainant because the insured amount of machine was Rs.16,00,000/-. In the above discussions we hold the view that there is deficiency in service on the part of opposite parties. Hence the complaint allowed.
We direct the both opposite parties jointly and severally liable to pay Rs.54,795/- (Rupees Fifty four thousand seven hundred and ninety five only) with 12% interest from the date of repudiation of claim i,e on 31/12/2008 to date of order and Rs.2,000/- (Rupees Two thousand only) as cost of the proceedings. Order to be complied within one month from the date of order failing which the whole amount shall carry further interest @9% from the date of order till realization.
Pronounced in the open court on this the 22nd day of December, 2010
Sd/-
Smt.Seena.H,
President
Sd/- Smt.Preetha.G.Nair,
Member
Appendix
Witnesses examined on the side of complainant
PW1 – Shri.Harshan.C
Witnesses examined on the side of opposite parties
Nil
Exhibits marked on the side of complainant
Ext. A1 – Insurance policy
Ext. A2 – Receipt dtd.17/12/2007
Ext. A3 – Photocopy of claim form submitted by the complainant
Ext. A4 – Photocopy of letter dtd.06/06/2008 sent by Sri.Harshan.C to complainant
Ext. A5 – Photocopy of letter dtd.11/11/2008 sent by 1st opposite party to complainant
Ext. A6 – Copy of letter dtd.09/12/2008 sent by complainant to 1st opposite party
Ext. A7 - Photocopy of letter dtd.31/12/2008 sent by 1st opposite party to complainant
Ext. A8 - Copy of letter dtd.10/01/2009 sent by complainant to 1st opposite party’s Divisional Office, Palakkad.
Ext. A9 – Reply dtd.22/1/2009
Ext. A10 - Reply dtd.17/2/2009 sent by 1st opposite party to complainant
Ext. A11 – Final survey and investigation report submitted by Dr.Harshan.C
Ext. A12 - Copy of letter dtd.04/04/2009 sent by complainant to 1st opposite party’s Divisional Office, Palakkad
Ext. A13 - Reply dtd.22/04/2009
Ext. A14 - Copy of letter dtd.09/06/2009 sent by complainant to 1st opposite party’s Divisional Office, Palakkad
Ext. A15 – Copy of receipt dtd.17/06/2009
Ext. A16 – Letter dtd.17/06/2009 sent by 1st opposite party’s office to complainant
Ext. A17 – Survey report dtd.09/09/2008
Ext. A18 – Photocopy of letter dtd.20/10/2008 sent by 1st opposite party to Mr.Jacob
Ext.A19 (Series) - Photos
Exhibits marked on the side of opposite parties
Ext.B1 – Letter dt.12/11/2008 sent by M.A.Jacob to 1st opposite party
Cost (Allowed)
Rs.2,000/- (Rupees Two thousand only) allowed
