Ld Advocates are present. Judgement is pronounced in open Commission in 6 pages 3 separate sheet of paper.
BY - SRI ASISH DEB, PRESIDENT
Brief facts of the complainant’s case are that the Complainant is a permanent resident of the above noted address and a citizen of India by birth. The Complainant runs a business of excavation of earth by his own for maintaining his livelihood, and for that purpose they bought an Excavator Machine (KOMATSU PC130- Crawler Mounted Hydraulic Excavator), on 31.05.2017 by paying the consideration money of Rs. 39,52,381.00/- vide its Vehicle/Machine No.-N52-0439. The said vehicle/machine is driven and operated on road by an OPERATOR, as per law, and as such he has completed a training and has obtained on Operator Certificate (PC-210-8- Structure, Function, Operation and Maintenance) from L&T Construction and Mining Machinery. The Complainant got insured his above mentioned Vehicle/Machine No.- N52-0439 under the Op vide a Policy No. 150300311810006357, by paying the required premium, and the policy was valid from 15.12.2018 to 14.12.2019. However, during the continuance of period of Insurance, on 05.02.2019, at 5:30 PM, suddenly the Machine met with an accident, and while excavating earth at Kumbheragari Subarnarekha River Bank, suddenly a land slide occurred for which the Machine fell down and was drastically damaged. Instantly the matter was informed to the OP as per process, and the OP appointed a surveyor namely Ramesh Kumar Jalan, Satyam Paramarsh, who on 30.06.2019 estimated the approximate cost for the repairing of the vehicle to be Rs. 11,92,840.54/- plus the labour cost and removal cost of damaged parts. However, till date no amount has been paid by the OP Company, rather they began to kill time by saying this or that reason, and advised the complainant to repair the same by his own cost, with assurance that the OP Company will pay the same in near future as policy benefits.Feeling the urgency, the complainant repaired the machine partly by investing his own money to the tune of Rs. 1403410/- (Rupees Fourteen Lakhs Three Thousand Four Hundred and Ten Only) and submitted the same to the OP. Thereafter, the OP took the ultimate measures to defy the complainant and to the utter surprise of the Comp0lainant, on 22.06.2020, issued one Repudiation letter in which it was surprisingly ad whimsically expressed that, “the claim was repudiated due to violation of Driver’s Clauses” (despite of the fact that the Machine is operated by its operator and not by a driver), and expressed their inability to give the insurance claim of the complainant, without furnishing any piece of paper or document in support of their whimsical and imaginative stories. All the above expressions as made by the Ops are not only bogus and baseless, but also purposive to harass and deny the Complainant from his genuine claim, and thus tantamount to be a gross negligence and deficiency in service and also caused a serious mental agony and economical loss. Therefore, the Ops have no lawful right to repudiate the Valid Legal Claim of the Complainant and all the activities of them are the results of gross negligence, sheer deficiency in rendering service and violation of lawful rights and claims of the complainant. Finding no other alternative, the complainant is hereby initiating this case before the Ld. District Commission praying for the following reliefs and the Ld. District Commission has enough Jurisdiction to entertain this case. The cause of action of this case has arisen on and from 22.06.2020, i.e. since the issuance of the letter by the OP No.2, denying the claim of the complainant and it continues till date. All the relevant documents and papers are filed herewith in photocopies. In these circumstances it is accordingly prayed that the Ld. Forum may graciously be pleased to pass the following orders against the Ops. By directing the op to pay the insured amount of Rs. 1403410/- (Rupees Fourteen Lakhs Three Thousand Four Hundred and Ten Only) only along with banking interest, by directing the OP to pay a consolidated sum of Rs. 500000/- (Five Lakh) towards compensation, costs, mental agony and sufferings of the complainant due to shear negligence and deficiency in rendering insurance service by the Ops and unfair business practice, and to direct the Ops to pay Rs. 30000/- only towards litigation cost, and to pass such other orders of relief as the Commission may deem fit and proper.
The op has contested the case through its Ld Advocate by filing written version stating inter alia that save and except the statements which are the matters on record all other statements as made in para 2 of the Complaint are baseless and denied and the complainant is put to the strict proof of all such statements. It is very much denied that the complainant runs the business of excavation of earth by his own for maintaining his livelihood or for that purpose they bought the stated Excavator Machine. That the statements made in para 3 of the complaint such as the stated vehicle/machine is driven or operated on road by an operator or as per law or the complainant has completed a training or has obtained an operator certificate (PC-210-8-Sructure, Function, Operation or Maintenance) from L & T Construction and Mining Machinery are baseless, purposive and illegal. The instant complaint is not maintainable within the purview/provisions of the Consumer Protection Act, 2019, Rules & Notifications as the complainant is not a consumer within the definitions of the Consumer Protection Act, 2019 or by any implication. The Complainant having no cause of action to initiate the instant complaint, the same is liable to be rejected. The complainant can not get any benefit for any breach of specific terms and conditions of the Insurance Policy as issued by this O.P. The vehicle/machine for which the case has been initiated is a public service vehicle/machine being the earth excavation machine and was/is used only for commercial purposes on hire. As such the instant case is not maintainable as the complainant is not coming within the definition of Consumer under the Consumers Protection Act. This O.P. Insurance Co. most humbly begs to submit thatinstant case is not maintainable before this Ld. Commission for the very reason that the transaction shows fully for the commercial purposes and beyond the scope of the provisions of the Consumer Protection Act, 2019 and also beyond the jurisdiction of this Ld. Commission.
Upon pleadings both parties the following points fordetermination are framed.
Points for determination are:
- Is the case maintainable in its present form and in law?
- Is the Complainant entitled to the relief(s) as sought for?
Decision with reasons
Both the points, being inter related to each other, are taken up together for discussion for sake of brevity and convenience.
We have carefully perused and assessed the affidavit of the complainant, written version filed by op, evidence of both parties and other documents. We have anxiously considered the arguments advanced by the Ld counsel of rival parties.
Having regards had to the facts and circumstances of the case ,it appears that op is insurer and the complainant is insured.The Complainant got insured his Excavator Machine (KOMATSU PC130- Crawler Mounted Hydraulic Excavator) being No.- N52-0439 under the Op vide a Policy No. 150300311810006357, by paying the required premium, and the policy was valid from 15.12.2018 to 14.12.2019. The complainant has filed this case with the grievances of deficiency of service and unfair Trade Practice. The bundle of facts indicate that the case is maintainable in its present form and in law.
On careful analysis of the evidence on record, it is evident that the complainant has deposed that a business of excavation of earth by his own for maintaining his livelihood, and for that purpose they bought an Excavator Machine (KOMATSU PC130- Crawler Mounted Hydraulic Excavator), on 31.05.2017 by paying the consideration money of Rs. 39,52,381.00/- vide its Vehicle/Machine No.-N52-0439. The said vehicle/machine is driven and operated on road by an OPERATOR, as per law, and as such he has completed a training and has obtained on Operator Certificate (PC-210-8- Structure, Function, Operation and Maintenance) from L&T Construction and Mining Machinery. The Complainant got insured his above mentioned Vehicle/Machine No.- N52-0439 under the Op vide a Policy No. 150300311810006357, by paying the required premium, and the policy was valid from 15.12.2018 to 14.12.2019. However, during the continuance of period of Insurance, on 05.02.2019, at 5:30 PM, suddenly the Machine met with an accident, and while excavating earth at Kumbheragari Subarnarekha River Bank, suddenly a land slide occurred for which the Machine fell down and was drastically damaged. Instantly the matter was informed to the OP as per process, and the OP appointed a surveyor namely Ramesh Kumar Jalan, Satyam Paramarsh, who on 30.06.2019 estimated the approximate cost for the repairing of the vehicle to be Rs. 11,92,840.54/- plus the labour cost and removal cost of damaged parts. However, till date no amount has been paid by the OP Company, rather they began to kill time by saying this or that reason, and advised the complainant to repair the same by his own cost, with assurance that the OP Company will pay the same in near future as policy benefits.
It is evident from the facts and circumstances of the case that the accident took place due to the sudden river land sliding due to erosion by high tide. It is very much explicit in the report of the surveyor which was prepared by the Surveyor appointed by the op itself.To buttress the said facts we can give a look on the SURVEY REPORT – ANNEXTURE (A)wherein it has been observed the subject machine slid into water after soil of path at the river bank gave way as per spot survey report, it was working at the site for building a village road and sudden high tide caused erosion of bank. As the subject machine submerged in the river, water entered its various aggregates and caused damages.No fault on the part of the operator has been detected by the surveyor .However, the op has repudiated the claim of the complainant on the ground that REPUDIATION LETTER-Annexure- This is for your kind information that our competent authority has repudiated your above claim for violation of driver’s clause of the policy which states that “that a person driving holds an effective driving license at the time of the accident and is not disqualified from holding or obtaining such license”.
Now, the question arises as to whether “the claim can be repudiated on the ground of violation of Driver’s Clauses” despite the fact that the Machine is operated by its operator?
The grounds of repudiation appear to be baseless, firstly, there was no fault on the part of the operator has been detected by the surveyor.secondly, the insured/owner engaged driver having license no-WB-29-20180161934(from Surveyor report) and operator certificate issued by the recognized institution for running this type of excavator. The operator had valid operator certificate which entitles him to operate the category of machine in question.
Now, it is the settled position of law that when an owner is hiring a driver he will therefore have to check whether the driver has a driving license. If the driver produces a driving license which on the face of it looks genuine, the owner is not expected to find out whether the license has in fact been issued by a competent authority or not. The owner would then take the test of the driver. If he finds that the driver is competent to drive the vehicle, he will hire the driver.Thus where the owner has satisfied himself that the driver has a license and is driving competently there would be no breach of Section 149(2)(a)(ii). The insurance company would not then be absolved of liability.
The owner of the vehicle is expected to verify the drivingskills and not run to the licensing authority to verify the genuineness of the driving license before appointing a driver. Therefore, once the owner is satisfied that the driver is competent to drive the vehicles, it is not expected from the owner thereafter to verify the genuineness of the driving license issued to the driver. In the instant case, the Insurance Company has not established that there was a willful breach of the conditions of the Insurance Policy.
In his report the Surveyor has assessed the loss at Rs. 9,47,680/-for the repairs. The documents submitted by the complainant show that the complainant spent for repairing the machine. Surveyor’s Report in any insurance claim is very much crucial and needs to be given due weightage in the given facts and circumstances of the case. The op ought to have settled the claim of the complainant n the tune with the Surveyor Report.
In the above backdrop,we are of the view that the complainant has been able to bring home the elements of deficiency of service against the op. Therefore, the complainant is entitled to get reliefs in this case.The op should pay assessed loss at Rs. 9,47,680/-for the repair of the excavator machine, compensation of Rs.42,320 and Rs.10,000/ as towards litigation costs to the complainant.
Thus, the case succeeds.
Hence, it is
O R D E R E D
That CC/15 of 2021 be and the same is allowed on contest against the op.
The op is hereby directed to pay Rs. 10,00,000/-(assessed loss at Rs. 9,47,680/-for the repair of the excavator machine, compensation of Rs.42,320 and Rs.10,000/ as towards litigation costs) Ten Lakh only to the complainant within 45 days from the date of this order.
In default, the complainant will get simple interest @9% per annum over the said amount of Rs . 10,00,000/- from the date after expiry of the said 45 days till the date of compliance.
Let a copy of the judgment be supplied to each of the parties free of cost.
