SMT. G. VASANTHAKUMARI, PRESIDENT

            The complainant’s case is that he is the registered owner of the Escorts JCB bearing Reg.No..KL.02R/2714 which was insured with the opp.party for a period  commencing from 14.11.2007 to 13.11.2008, that on 8.1.2008 at about 10 P.M. the JCB met with an accident while engaged in excavating work in the premises of Azeesia Medical College, Meeyannoor and due to the accident the contact valve block and Hydraulic hose was totally damaged, that the accident happened while the JCB was coming backward and hit on the bottom portion of a coconut tree,  that on the next day the matter was reported to  the branch office of the opposite party at Kadappakada in Kollam and the   SHO of the Chathannoor Police Station, that the authorized officer of the opp.party visited the place of occurrence and prepared notes of damages to the vehicle and allowed the complainant to shift the JCB to the workshop, that the police also inspected the vehicle on the spot and recorded the accident in the General  Diary, that after that  vehicle was shifted to the workshop  Kottarakkara, that the  excavator valve was totally damaged and it was replaced,  that the  cost of the valve alone is Rs.120196.12, that towards service charges the complainant spent a sum of Rs.5050.80 and thus for repairing the JCB, the complainant spent a total sum of Rs.125246.92,  that the claim was preferred to the opp.party, but the opp.party repudiated the claim of the complainant and hence this complaint.

          Opp.party filed version contending, that the complaint as framed is not maintainable either in law or on facts, that the opp.party had issued a Miscellaneous  Class   D Vehicles Package Policy to the  Complainant for his Tata JCB 3D Excavator having Reg.No.  KL-2R/2714  for a period commencing from 14..11.2007 to 13.11.2008 for a  sum insured of

Rs. 7 lakhs, that the complainant has reported a claim, with the opp.party on 10..1..2008 stating that the Valve block of the insured machine got damages due to hitting of the valve block of the machine on the root stump of a cut off coconut tree during the course of earth removing  operation on 8..1..2008 at 10 p.m.,  that the opp.party had issued  a claim  form to the complainant and the complainant   retransmitted the claim form duly filled and signed by  him along with   an estimate from the repairer M/s. India Techs Limited, Kottarakkara, that the opp.party  immediately on receipt of the claim form  and estimate   from the complainant had deputed a Government of India Licensed Insurance Surveyor and Loss Assessor Mr.K.H.. Muhammed Ashraf for inspecting the damaged machine and for ascertaining the cause of damage and the  extent of  loss etc, that the surveyor has visited the repairers workshop where the damaged machine was kept for repairs, that the surveyor had inspected the damaged machine thoroughly in the presence of the repairer and in his detailed inspection no damage, hit, impact or even a scratch is found on the valve block of the machine,  that the valve block of the machine alleged to have damaged due to the hit impact is  protected by a heavy ‘C’ Channel Cross Beam, that the machine and ‘C’ Channel Cross Beam are found to be free from  any hit impact and even the painting in the beam is found to be intact, that on careful examination of the damaged valve block by the surveyor it is found that  oil is oozing along one of its threaded holes ie, the source of  oil leakage is from somewhere inside the block which caused due to crack or  rapture on the walls of the oil  circulation path of the valve block, that on his examination the valve block of the machine is free from any visible damages other than the oozing of oil from the inside portion of the block, that the surveyor on the basis of his  detailed examination findings opined that if there was a hit or impact as alleged by the complainant, the heavy ‘C’ channel  cross beam of the machine that stands outside the valve block and serves as a protector /guard would have been affected  but either the ‘C’ Channel cross beam of the machine or the valve block are free from any visible damage at all during his inspection findings, that according to the enquiry made by the surveyor with people familiar   in the similar machine it is learnt that in a majority of cases the valve block of the machine fails on prolonged use due to inadequate maintenance or careless handling, that it is also understood by the surveyor that the valve block in lot of machine fails once the machine works for around  5,000 hours,   that in the present case as per the reading recorded in the chronometer, the machine have already done 9235 hours of work and the chronometer at the time of inspection was not  in working condition, that  it  pre supposes  that the machine had done much more than the reading noticed in the chronometer which was not functioning at the time of loss, that the surveyor on the basis of detailed examination findings  and the relevant informations collected by him from the people familiar with the  machine came to a definite finding that the damage noticed on the vehicle  such as oozing of oil out of the  threaded hole on the body of the valve block from its internal portion are inconsistent with the accident reported by the complainant, that the surveyor has made clear that the  problems found in the valve block is not due to any external damages but on account of failure due to lack of maintenance of machine and due to excessive work more than 5,000 hours, that even though the claim preferred by the complainant will not come under the purview of the risk covered under the policy, the surveyor has assessed the extent of loss including the labour charges to a sum of Rs.68,447/- after  deducting depreciation applicable  and the compulsory   policy excess, that the opp.party is legally bound to consider the finding of the surveyor who is a competent authority to ascertain the actual cause of loss sustained to the insured machine and  his report is legally admissible to the opp.party as per the statutory provisions under Section 64 UM of the Insurance Act, that as per clause 2 [a] of Section 1 of the policy condition the opp.party is not liable to make any payment  in respect of consequential  loss sustained to the insured machine due  to depreciation, wear  and tear,  mechanical or electrical breakdown etc. that the actual damages sustained to the insured machine is not  on account of any external means and the said damage is  not due to any of the insured  peril under the policy,  that the opp.party is not liable to indemnify the loss sustained to the complainant as per the terms and conditions of the policy and the complainant had approached this opp.party with an ulterior  motive to make unlawful gain to him by making  use of the Insurance Policy for the actual damages sustained to the insured machine which is not covered under the policy, that the cause of damage alleged by the complainant is not  supported with any proof or  documents and the same is only an invented story of the complainant for bringing a false cause of  auction against the opp.party and the complaint is only to be dismissed with costs to the opp.party.

Points that would arise for consideration are:

1.     Whether the finding made by the Government of India Insurance Surveyor and loss assessor is legally binding for settlement of the claim under the Insurance Policy?

2.     Whether the reasons stated by the complainant for the cause of damage sustained to the machine is due to any accident or due to lack of maintenance of machine and due to excessive work?

3.     Whether the report submitted by the Commissioner is legally acceptable or  not in deciding the question involved in this case?

4.     Reliefs and costs?

For the complainant complainant was examined as PW.1 and   commissioner as CW.1 and Exts. P1 to P13 and C1 are marked 

For the opp.party DW.1 is examined and Exts. D1 to D4 are marked

THE POINTS:

          The complainant’s case is that the valve block of the JCB bearing Reg.No.KL.02- R/2714  which was insured  with the opp.party for a period commencing from 14..11.2007 to 13.11.2008 got damaged on  8..1..2008 due to hitting of valve block on a root stump of a coconut tree and he got repaired the same spending Rs.1,25,246.92 and is entitled to get back  the same from the opp.party.  But the opp.party’s  case is that the JCB got damaged  not due to hitting of valve block as alleged  but  on prolonged  use and due to inadequate maintenance or careless handling and  so repudiated the claim  relying on the  surveyor’s report   Hence  the complaint.  Let us  examine  what is the cause for  the damage, with the available evidence.  The  complainant in this case has produced an estimate from the  repairer M/s.  India Tecs Limited for changing the valve block  of the machine costing to a sum of Rs.1,25,246./-  According to the complainant  the damage sustained to the machine is due to hitting of valve block in a root stump of coconut tree while the machine was engaged in excavating work in the premises of Azeesia Medical College, Meeyannoor, but according to the opp.party  the surveyor on his detailed examination of the machine found that the valve block of the machine is seated in inside portion which was properly protected by a heavy ‘C’ channel cross beam.  According to the surveyor the ‘C’ Channel cross beam is a heavy metal beam provided for protecting the valve block fitted behind the ’C’ Channel  and on examination of the machine he found that the ‘C’ channel beam fitted with the machine is free from any hitting impact and  free from even a minor scratch on it.  According to him on further examination it is found that  oil is oozing  along one of the holes of the valve block from inside portion which is not due to an accident at all.   The surveyor who was examined as DW.1 in this case  has further clarified that the ‘C’ Channel cross beam of the machine is specifically provided for guarding the valve block of the machine from any possible external impact.  Further DW.1 has stated that  on the basis of his enquiry made with technician and experts familiar  with  the above machine he understood that the valve block of the machine fails on prolonged use  due to inadequate maintenance or careless handling.  He has further stated that it is further understood  by him that ones the machine works for around 5,000 hours the valve block in majority of the machine reported to be damaged.  In the instant case when the surveyor examined the chronometer  of the machine, the machine have already done 9235 hours of work and more over the chronometer at the time of inspection  is not at all in working condition.   DW.1 would swear before the Forum that in his further examination  he noticed that the damage sustained to the valve block is only   oozing of oil out of the  thread  hole on the body of the valve block visibly from its internal portion.   It follows that according to the surveyor the above complaint is not due to external damages but only on account of failure due to lack of maintenance of machine and due to excessive work of more than 5000 hours.  So it is argued by the learned counsel appearing for the opp.party that from the above finding of the surveyor  it is very much clear that the damages reported by the complainant is due  to normal wear and tear of the machine and not due to any accident at all and since the above damage is due to the  wear and tear of the machine the same is not  a risk covered under the  policy as per Clause 2 {A] of the Insurance Policy and accordingly the opp.party repudiated the claim of the complainant.  In Ext. D2 Surveyor report   DW.1  also opined that the damage sustained to the valve block is not  due to any accident but due  to material fatigue/failure due to lack of maintenance of the machine and the excessive work load of the machine which does not come under the policy coverage.  It follows  that the opp.party repudiated  the claim of the complainant purely on the basis of the finding of the surveyor which is acceptable to the opp.party as per the statutory provisions envisaged  under section 64 UM of  the  Insurance Act  Complainant who is examined as PW.1 deposed in  tune with the allegations  in the complaint but failed to examine the repairer who has prepared the estimate in this case.  On the other hand he has taken out a commission and the commissioner filed Ext.C1 report  after  examining the damaged valve block which was  removed  and  kept away for more than  two years.  He would swear  before the Forum as CW.1  that\ BlR ziNsaRyk\ QlE\ Yr\fUuksm sshcRc\/\ cGi\iuG Lh\h /lSaw\/\ Llu dNSYmlX ilHu\ alYfaln\ BlR egjSClPjv\vf\;  sw;;cj;>j; dlnkdSul egjSClPj]kdSul svu\fjh\h;  BlR LliCUse\e}Selsh dAe\xujrRyk\ /lSawj/\ elG}\ <lwgl]kdulujgkr\rk;  /lSaw\ cA.ijv\vf\ tb\bsrulsnr\r\ dAe\xujrRyk eyBBfjsRy Lmjc\Flrf\fjhln\ tqkfjuj}kxxf\;  dNSYmlX ilHijsr cj; vlrH tr\r Qgk sYel}d\,R diG svu\fj}kn\mk\;  cj; vlrH td\c\SMnH TAeld\Mjsr sYel}d\M\ svu\ukr\rfjrkxx Qgk /jssic\ Lln\ ;  il<rA <lwgl]lf\ffjrlH cj; vlrH egjSClPj]kr\rfjr\ dqjB\Bj}jh\h;  il<rA tYfanj]oG iG]\ svu\fk tr\rkxxfkA dlnlR dqjB\Bj}jh\h;    So from the above evidence it can very well see that the commissioner has not examined the JCB machine in order to ascertain the nature and condition of the machine, maintenance of the machine, the total hours of work recorded in the chronometer of the machine and also about the condition of the ‘C’ Channel which is provided as a protector to the valve block.  It is important to note that the commissioner has not even met the repairer and sought his opinion about the nature of damage caused to the machine, who had  actually replaced the damaged valve block immediately after the accident.   So the finding of the Commissioner on the sole basis of the information furnished by the complainant about the cause of damage is not helpful to the complainant to get the surveyor report discarded.

        The learned counsel appearing  for the opp.party relied in United India Insurance Company Ltd and others V\s. Roshan Land Oil Mills Ltd and another [2000[10] SCC.19] where it has been held that  a surveyor report, which is required to be made U/s. 64 UM [2] of the Insurance Act 1938, is an important document and its non – consideration results in serious miscarriage of justices and vitiates the judgment rendered by the court”

           Taking the evidence as a  whole I have no hesitation to safely conclude that the  assessment of loss made by the  licensed insurance surveyor and loss assessor is statutorily acceptable  in deciding the  actual loss sustained to the complainant  for his vehicle  and the  report is legally binding for settlement of the  claim under the Insurance Policy and the repudiation of the claim relying on the  Surveyor report is only to be  upheld. Points found accordingly.

In the result the consumer case is dismissed  but without costs.

.

I n d e x

List of witnesses for the complainant:

PW.1. -  Shibu.M.S.

PW.2. – Nishad

PW.3. - Lishad

List of documents for the complainant

P1. – Bill

P2. – Service Bill

P3. -  GD Copy

P4. – Policy

P5. – Premium receipt

P6. – R.C. copy

P7. – Driving License

P8. – Advocate notice

P9. – Postal receipt

P10. – Acknowledgement card

P11. – Photograph

P12. – Nagatives

P13 – Postal receipt

List of witnesses for the opp.party

DW.1. – Muhammed Asharaf

List of documents for the opp.party

D1. – Policy

D2. – Survey report

D3. – Claim repudiation letter

C1. – Commission report