BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PONDICHERRY

                                       C.C.No.19/2013

Dated this the 10^th day of June 2016.

(Date of Institution: 16.05.2013)

M/s Popular Engineering rep. by its

Prop. K. Unnikrishnan

….     Complainant

vs

The Divisional Manager                

M/s United India Insurance Company Ltd.,

Pondicherry.

                                                          ….     Opposite Party

BEFORE:

          THIRU.A.ASOKAN, B.A., B.L.,

          PRESIDENT 

Tmt. PVR. DHANALAKSHMI, B.A.,B.L.,

           MEMBER

Thiru V.V. STEEPHEN, B.A., LL.B., 

MEMBER

FOR THE COMPLAINANT:  N. Baptiste Augustin, Advocate 

FOR THE OPPOSITE PARTIES: K. Ravikumar, Advocate.   

O R  D  E  R

(by Thiru A. Asokan, President)

              This is a complaint filed by the complainant u/s 12 of Consumer Protection Act for ;

1. Directing the Opposite Party to pay a sum of Rs.1,40,000/- being the total cost of the repair work done for the crane which met with the accident on 12.05.2011;
2. Directing the opposite party to pay a sum of Rs.80,000/- to the complainant as compensation for the deficiency in service and for mental agony;
3. to pay the cost Rs.20,000/- towards this complaint.

2.  The case of the complainant is as follows:

          The complainant stated that they have a Hydro Crane Vehicle weighing 12 M.T. with No. PY 01 AR 0572; Engine No. SA33098472, Chasis No. 1937257722  which was insured with the opposite party vide policy No. 011781/31/11/01  00000347.  The period of insurance commenced from 24.04.2011 to 23.04.2012 and the vehicle was declared by the insured as Rs.8,10,000/- and paid premium of Rs.5,890/- and the said vehicle was used for shifting of machineries from one place to another and the vehicle was in well working condition before the accident and it was properly maintained from time to time from the date of purchase.   That on 12.05.2011 at 12.10 p.m. when the said crane was carrying blade got the balance tilted, so that the blade as well as the crane fell down and got damaged.  The shifting blade fell on the blade which was kept in the yard and therefore, both the blades got damaged.  The complainant informed the same to the opposite party who in turn sent one representative by name Pachiyappan at 2.00 p.m. who inspected everything and took photographs and requested the complainant to send the crane to any authorised dealer for repair work and also requested quotation for repair work.  Accordingly, the complainant sent the crane to TVS Service Centre, Villupuram and received the quotation on 16.05.2011 and the total repair cost was Rs.3,73,382/- and handed over the same along with claim form to the said Pachiyappan.  On 20.05.2011 the Opposite Party's Surveyor Mr. Mohammed Ali have told through phone that the insurance policy does not cover "overturn" and so, the complainant is not entitled to get any insurance amount.  On 21.05.2011 the complainant formed this message to the Insurance Manager by name Pillai of Villianur Branch, Pondicherry.  On 25.05.2011, the Surveyor inspected the crane at TVS Service Centre,  Villupuram, however, the copy of the report was not furnished to the complainant.  The complainant stated that when the complainant's accident crane is not eligible for claiming insurance, then he should not have revisited the TVS Service Centre, Villpuram to reinspect the crane and  further he gave instruction to dismantle the same without giving any intimation to the complainant.  Further, on the same day, the Service Centre people demanded Rs.50,000/- to start the repair work.  Immediately, the complainant met with the Insurance Manager and Surveyor and negotiated, but the claim was repudiated by them, however refused to give in writing.  On 26.05.2011 the complainant gave Rs.1,00,000/- to the TVS Service Centre by way of demand draft to start the work.  On 27.05.2011 the complainant wrote a letter to the opposite party stating the above facts, but there was no response and hence he got mental agony.  Further the complainant gave another sum of Rs.40,000/- to the Service Centre by way of demand draft and totally, he had paid a sum of Rs.1,40,000/- for getting the vehicle repaired.   On 30.05.2011 the complainant received a letter from opposite party stating that the alleged damage to the vehicle occurred due to overturning during operation and the complainant has not obtained the cover for the vehicle for "The risk 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" as per IMT 47 and therefore, the claim of the complainant cannot be considered and finally his claim was repudiated.  It is further stated by the complainant that the package policy for the miscellaneous and special type of vehicles, contains terms and conditions.  In that, Section 1, title "Loss of or Damage to the Vehicle Insured" in item No.2 which speaks about that the Opposite Party's Company will not be liable to make any payment in respect of

1. consequential loss, depreciation, wear and tear, mechanical or electrical breakdown, failures or breakages nor for damage caused by overloading or strain of the insured vehicle nor for loss of or damage to accessories by burglary, housebreaking or theft unless such insured vehicle is stolen at the same time.
2. Damage to tyres and tubes unless the vehicle insured is damaged at the same time in which case the liability of the company shall be limited to 50% of the cost of replacement.
3. Any accidental loss or damage suffered whilst the insured or any person driving with the knowledge and consent of the insured is under the influence of intoxicating liquor or drugs.

As per opposite party's package policy, it never contains "OVER TURNING".  Further at the time of insuring, the opposite party have failed to inform the same to the complainant.  Therefore, there is deficiency in service on the part of the Opposite Party.  The complainant issued a legal notice to the opposite party on 18.07.2011 which was received by the opposite party on 3.8.2011 and sent reply on 12.09.2011 with false allegations.  Hence, this complaint.   

3. The reply version filed by the opposite party briefly discloses the following:

While admitting the insurance policy taken by the complainant for the Hydro Crane Vehicle bearing No. PY 01 AR 0572, all other allegations of the complainant are denied by this opposite party.  It is stated by the opposite party that the nature of claim made by the complainant is purely a money claim and does not come within the purview of the Consumer Protection Act and hence, this Forum has no jurisdiction to entertain the complaint and it has to be returned.  Further, the complainant is a fleet owner who owns a lot of vehicles and is well versed with the terms of the policy and the endorsements as per India Motor Tariff (IMT).  The same is contained in the present policy issued to the complainant.  The complainant given an intimation to the Villianur Branch of Opposite Party on 18.05.2011 about the accident occurred on 12.05.2011 along with quotation dated 16.05.2011.  The opposite party appointed a Surveyor on 18.05.2011 who visited the spot and submitted his report on 25.05.2011 stating that there was no coverage of risk covered for the loss or damage resulting from overturning arising out of the operation as a toll of such vehicle or of plant forming part of such vehicle as required under IMT 47.   It is also stated by the opposite party that the vehicle has been covered only for endorsements 7, 21, 24, 40 of the IMT and not IMT 47 which is for the coverage of risk covered for the loss or damage resulting from overturning arising out of the operation as a toll of such vehicle or of plant forming part of such vehicle.  On 30.05.2011 the opposite party issued a letter of repudiation to the complainant and therefore, there was no deficiency of service on the part of the opposite party.  Hence, prayed for dismissal of the complaint with costs.

 4.      On the side of the complainant, Exs.C1 to C13 were marked with objections and no witness was examined by the complainant.  On the side of the opposite parties, one Anebazagane, Senior Assistant was examined as RW1 and Exs.R1 to R5 were marked. 

5.       Points for determination are :

1. Whether the Complainant is the Consumer?
2. Whether the opposite parties attributed any Unfair Trade Practice and deficiency in service?
3. To what relief the complainant is entitled for?

6.       Point No.1:

          The Complainant has taken a Miscellaneous and Special Type of Vehicles Package Policy under No. 011781/31/11/01/00000347 for his vehicle Crane bearing No.PY-01-AR-0572 from the Opposite Party for sum assured
Rs. 8,10,000/-  and has paid a premium of Rs.5,890/- vide Ex.C1.   Hence the Complainant is the consumer for the opposite parties as per the Consumer Protection Act.

          7.  Point No.2:

We have perused the entire records, complaint, Exs.C1 to C13, reply version, chief examination of opposite party and Exs.R1 to R5.  It is alleged by the complainant that on 12.05.2011 at 12.10 p.m. when the crane was engaged with one Suzlon Energy Limited, Thiruvandarkoil for shifting the blade, the blade got the balance tilted and fell down and got damaged.  The complainnt informed the same to opposite party who sent one Pachaiyappan to inspect the vehicle and the said Pachaiyappan informed the complainant to send the crane for repair work and requested to submit quotation.  Accordingly, the complainant sent the vehicle to TVS Service Centre, Villupuram and they gave quotation for Rs.3,73,382/- to carryout such repair work.  It is alleged by the complainant that he submitted the claim form along with quotation to the opposite party who in turn sent a Surveyor to inspect the vehicle and submit report.  The Surveyor inspected the alleged crane on 25.05.2011 and submitted his report alleging that the accident took place due to overturn and hence, the complainant cannot claim insurance since the said policy does not cover "Over turn policy" and in this regard, on 30.05.2011, the complainant received repudiation letter from the opposite party stating that the vehicle alleged damage to the vehicle occurred due to overturning during operation, the complainant has not obtained the cover for the vehicle :the risk 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" as per IMT 47.    It is the further allegation of the complainant that he had spent a sum of Rs.1,40,000/- for getting the vehicle repaired.  Further alleged that the complainant issued a legal notice dated 18.07.2011 vide Ex.C11  for which the opposite has sent reply dated  12.09.2011 vide Ex. C13.

8. On the otherhand, the opposite party alleged that the claim made by the complainant is purely a money claim and does not come within the purview of the Consumer Protection Act.  Further alleged that as soon as they received the claim form from the complainant, they engaged a Surveyor who had submitted his report stating that the vehicle has been covered only for endorsement 7, 21, 24, 40 of the IMT and not IMT 47 which is for the coverage of risk covered for the loss or damage from overtuning arising out of the operation as a toll of such vehicle or of plant forming part of such vehicle and therefore, they have repudiated the claim and the opposite party has not committed any deficiency in service. 

9. The learned counsel appearing for the opposite party stated that the claim made by the complainant is money claim and this Forum has no jurisdiction to entertain the complaint.  The complainant has to approach the civil court of law.  There is no dispute regarding the policy taken by the Complainant vide Policy No. 011781/31/11/01/00000347 for a sum of Rs.8,10,000/- for the vehicle .   The period of insurance commenced from 24.04.2011 to 23.04.2012.  From the above policy Ex.C1, the Complainant has availed the services of the opposite party and hence, this Forum has decided that the Complainant is a Consumer.

10. The next allegation of the opposite party is that there was no coverage of risk covered for the 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, as required under India Motor Tariff 47 (IMT 47.)  Further stated that the vehicle has been covered only for endorsements 7,21, 24 and 40 of the IMT and therefore, the complainant is not entitled for claiming compensation for the alleged accident.  We have carefully perused the contents of Ex.C1.  Wherein, it is mentioned that this policy is subject to terms and conditions of clause 7,21,24 and 40 of India Motor Tariff,  the policy covers the accidental external means and it has to be looked into with broad mind.  Further, the damage caused to the vehicle only when it was in operation of shifting blade from one place to another place and not by external means.

11.     This Forum carefully perused the document Ex.C1 issued by the opposite party clearly envisages under the Caption "LOSS OF OR DAMAGE TO THE VEHICLE INSURED": wherein, the Company will indemnify the insured against loss or damage to the vehicle insured by accidental external means.   Whereas, on perusal of Ex.R2, the complainant availed insurance policy which is an earlier policy for another vehicle covers the overturn as per clause 47 of IMT.  Whereas, in the present case, the complainant taken the policy Ex.C1 for the vehicle in dispute does not cover the IMT 47 clause, but, it covered only the IMT clauses of 7, 21, 24, 40, which are for the coverage of risk covered for the loss or damages for accidental external means.  Therefore, the policy Ex.C1 is differs from the policy Ex.R2.  Having knowledge about the IMT 47, the complainant omitted to take policy under IMT 47 clause also and therefore, the plea taken by the complainant that he does not know the conditions of policy is not sustainable. 

          12. The Opposite party, insurance company while admitting the issuance of policy Ex.C1, resisted the claim on the ground that risk of overturning of the vehicle is not covered as the complainant has not paid premium for overturning.  Since the crane was damaged due to overturning which is not covered under the policy, the opposite party are not liable to indemnify the loss in terms of Indian Motor Tariff (IMT-47).    Even though the Surveyor has estimated the damages, he has clearly stated in his report that the vehicle got damaged due to overturning.  Therefore, this Forum has unanimously decided that the opposite party / insurance company is not liable to pay anything either towards repair charges or compensation since the policy Ex.C1 lacks IMT 47 Clause and the opposite party has rightly acted upon in repudiating the claim adhering to the  terms of the policy.

          13.  Further, the opposite party has stated that the complainant had not examined any witnesses to substantiate its case.  The non-examination of witness by the Complainant is against the mandatory provisions of Sec. 13 (2) of the Consumer Protection Act.  In this regard, the opposite party relied upon the following judgments;

1. Reyazuddin vs Md. Mumtax [1996] 3 CPJ 344
2. Kumar Distributors (P) Ltd., vs. Bidyadhar Pandey [1996] 2 CPJ 87
3. C.S.R. Hospital vs. Kannan [2005] 1 CPR 513
4. Nagaraja Rao vs Branch Manager, Canara Bank [1994] 1 CPR 883
5. Bharatbhai Amirtlal Patadia vs Gujarat Motors [1993] 1 CPR 310
6. Indian Oil Corporation vs D.N. Pandey [1996] 1 CPR 326
7. Solanki Bharthuji Fataji vs M/s Nationa Insurance Company [1993] 1 CPR 574.
8. Franch Express vs K.K. Thomas [2006] 3 CPJ 72
9. Muddeerswara Minning Industries Co., vs. M/s National Insurance Company [2006] 3 CPJ (NC) 412
10.  H.G. Vasudeva vs. Waterject Engineers [2006] 2 CPJ (NC) 300

In all the above authorities filed by the Counsel for the opposite Party, it is categorically held that the complainant has to establish his case by way of filing affidavit or letting in oral evidence.  Section 13 (2) (b) (i) of the Consumer Protection Act reads as follows:

          "(b) where the opposite party, on receipt of a copy of the complaint, referred to him under clause (a) denies or disputes the allegations contained in the complaint, or omits or fails to take any action to represent his case within the time given by the District Forum, the District Forum shall proceed to settle the consumer dispute, -

1. on the basis of evidence brought to its notice by the complainant and the opposite party, where the opposite party denies or disputes the allegations contained in the complaint, or
2. [ex parte on the basis of evidence] brought to its notice by the complainant where the opposite party omits or fails to take any action to represent his case within the time given by the Forum.

From the above, it is clear that it is not mandatory that a Chief Examination  affidavit has to be filed by the complainant to establish his case.  Further, the crux of this case is based on the contents of the document marked as Ex.C1 wherein, the Opposite Party is a party to the document and having been admitted the execution of document Ex.C1, the objection raised by the opposite party in considering the document Ex.C1 for adjudication is unsustainable.  No prejudice will be caused to the Opposite Party if the complainant not examined any witness on affidavit in chief. 

14.   In view of the discussion, it is held by this Forum that the complainant is  not entitled for any relief and therefore, this complaint is liable to be dismissed.

15. In the result, this complaint is dismissed.   No costs.

Dated this the 10^th  day of  June 2016.

                                                                                                                                    (A. ASOKAN)

PRESIDENT

(PVR. DHANALAKSHMI)

MEMBER

                                                                                                                                  (V.V. STEEPHEN)

                                                       MEMBER

COMPLAINANTS' WITNESS:   NIL

OPPOSITE PARTY'S WITNESS:

RW1           13.01.2015           Anebazagane, Senior Assistant

COMPLAINANTS' EXHIBITS:

OPPOSITE PARTY'S EXHIBITS:

Ex.R1                   21.05.2014           Authorisation letter given by Opposite Party to

RW1

Ex.R2                                                Insurance Policy for the vehicle PY 01 T 9475

Ex.R3                   18.05.2011           Photocopy of letter from Complainant to Opposite

Party

Ex.R4                   18.05.2011           Photocopy of Claim Forum given by complainant

to the opposite party.

Ex.R5                   25.05.2011           Photocopy of Surveyor's report.

LIST OF MATERIAL OBJECTS:  NIL

1. ASOKAN)

PRESIDENT

(PVR. DHANALAKSHMI)

MEMBER

(V.V. STEEPHEN)

   MEMBER