Karnataka

Belgaum

CC/835/2014

Nagaraj B Naik - Complainant(s)

Versus

The National Insurance Co Ltd - Opp.Party(s)

S S Patil

24 Feb 2016

ORDER

(Order dictated by Shri. B.V.Gudli, President)

: ORDER :

 

          The complainant has filed complaint against Opponent U/s. 12 of C.P. Act alleging deficiency in service for repudiation of claim in respect of paying damages caused to the vehicle Crane i.e, ACE FX 150 bearing registration No.K.A.49/ M-3612 met with accident.

          2) Opponent has appeared through his counsel and has filed his written version has denied the deficiency in service. Hence prays for dismissal the complaint.

          3) In support of the claim of the complaint, complainant has filed his affidavit by way of evidence and opponent has filed his affidavit and both parties are produced some documents.

          4) We have heard the arguments and perused the records.

          5) Now the point for our consideration is that whether the complainant has proved deficiency in service on the part of the opponent and entitled to the reliefs sought?

          6) Our finding on the point is partly in Negative, for the following reasons.

:: REASONS ::

          7) On perusal contents of the complaint, the complainant has alleged in his complaint that the complainant is the owner of the Crane ACE FX 150 bearing registration No.K.A.49/ M-3612 and said vehicle was duly insured with the opponent under policy No. 610201/31/14/14/6300007275 under the head of Misc. and special type of vehicle for the period from 27/2/2014 to 26/2/2015. The complainant further alleged that on 16/5/2014, the said vehicle while under work meet with an accident and was completely damaged and this fact was duly intimated to the opponent and the officials that is surveyor duly visited the spot and gathered all information including the details of vehicle, the insurance policy, the driver license etc., The complainant further alleged that the said surveyor intimated the complainant to shift the vehicle from the spot and the complainant with the help of other crane operating vehicles shift the said Crane at H.P. petrol pump, Ghataprabha. The complainant submitted that the dealer of the complainant vehicle action construction equipments Ltd., (ACE) through Om Tech equipment, Hubli, visited the spot and estimated the cost of repair of the said vehicle and other charges of Rs.3,86,240/-. The surveyor Sri. Acharya visited the Petrol Pump premises and took the estimated charges of repair as supplied by ACE Ltd and took some instructions from the complainant and Driver and went informing the complainant to get repair the said vehicle and that the opponent will reimburse repairing and other charges. The complainant further alleged that the said vehicle is insured by the opponent and the complainant had also paid the premium on own damages and furnished the documents along with quotation of expenditure of Rs.4,00,000/- for damaged vehicle. The complainant further submitted that due to the repair works of vehicle for lying for above 3 months and sustained the loss of Rs.1,50,000/- towards income from that vehicle. The complainant further alleged that as the opponent has repudiate the claim of complainant, for all these months the complainant was paying interest to bank towards the loan taken for purchasing the said vehicle. The complainant further alleges that several times requested the opponent to settle the claim of damage caused to the said vehicle but the opponent went on postponing the claim of the complainant one or the other pretext. The complainant further alleged that instead of settling the claim the opponent issued repudiated notice on 17/9/2014 vide reference No. 610201/31/14/6390000018 assigning the reason for repudiating the claim that the overtuning risk has not been covered in your policy, since the crane accident has occurred due to overturning, hence the liability of the insurer is nil. The complainant further alleged that the opponent has committed breach of policy terms and conditions and prayed to allow the complaint.

          8) The opponent has filed his objection and denied certain facts and admitted certain facts and contents of the complaint. The opponent contends that the complainant is not a consumer and the vehicle used for commercial purpose and the complaint is not maintainable in the eye of law. The opponent further contends that the vehicle Crane ACE FX 150 bearing Registration No.KA-49 M-3612 was duly insured with the opponent and under the policy and valid from 27/2/2014 to 26/2/2015 and denied that on 16/5/2014 the vehicle was under work and met with an accident and damaged completely. The surveyor of the opponent visited the spot and gathered all the information that is insurance policy and driving license.  The opponent further contends that the estimate cost of repair and other charges was Rs.3,86,240/- and the surveyor by name Sri. Acharya visited the premises and took the estimated charge of repair as supplied by the ACE Ltd., and informed the complainant to get the vehicle repair and the opponent reimburse the repair charges are all denied by the opponent. The opponent contends and denies that the complainant furnished all the documents with bills worth Rs.4,00,000/- and the vehicle is lying idle for 3 months and complainant has sustained loss of Rs.1,50,000/- towards the income. The opponent further contends that the complainant has suppressed true and material facts before the forum and the claim of the complainant is repudiated as the policy has not covered for overturning etc., The opponent further contends that under the terms and conditions of the policy clause No.47 the overturning risk is not covered and no additional premium is paid for the same and the opponent has recommended to be closed as NO CLAIM and also that the said fact were informed to complainant on 14/8/2014 and prayed to dismiss the complaint as not maintainable.

          9) The complainant has produced in all 5 documents they are the notice of No claim, the repudiation notice, the copy of reply given by the opponent and Xerox copies of expenditure for repairs and also the insurance policy, and RC particular etc., On the other hand the opponent has produced original terms and conditions of policy, original policy issued to the complainant, copy of No claim and repudiation and reply given to the complainant for the legal notice. On perusal of the terms and conditions one of the important condition under clause No.47 of the policy under the head Mobile Crane/ Drilling Rigs/ Mobile plants / Excavators, Navvies/Shovels / Grabs / Rippers. -Under this heading there is a note as N.B.: …. Omit paragraphs (a) for – (i) liability only policies (ii) package policies where an additional premium has been paid for inclusion of damage overturning. The overall contention of the opponent in his objection and affidavit is that the policy issued by the opponent to the complainant does not covered the overturning premium and the complainant has not paid the premium excess for the overturning, hence the opponent rejected the claim of the complainant on this ground. The complainant on the other hand has filed the affidavit, after filing the objection by the opponent wherein, we can notice that this fact of non payment of premium towards overturning has not been answered or denied by the complainant nor have produced any document to show that the complainant has paid extra premium or additional premium for overturning in case of accident. Therefore the contention of the opponent that the policy has not covered with the additional premium for overturning has to be believed and accepted. Another point here is to be noted that in the complaint filed by the complainant at para No.4 page 3 the complainant himself has alleged that the opponent has repudiated the claim on 17/9/2014 and the reasons assigned for repudiation is non covering of overturning risk under the policy and the liability of the insurer is nil. By this sentence we can say that knowing that the repudiation is on the ground of non payment of additional premium for overturning, the complainant ought to have produced the policy or any document which can show that an extra or additional premium has been paid by the complainant and the policy covers the risk of overturning of the vehicle in case accident etc., On this count itself the complainant had failed to prove that the policy covered the risk of overturning of the vehicle. The policy produced by the complainant no doubt is a package policy issued by the opponent, but in the said policy under the own damages the OD-basic is Rs.15,660/- and under the liability the T.P. basic is Rs.1,750/- and W.C. to employee1 is Rs.50/- under this policy total premium paid is Rs.16,099/-. But there is no column showing any premium paid as additional for overturning or damages after overturning and also that, under this policy it is subject to IMT endorsement Nos.5,21,47,52,24,37 and 40 which are the clauses subject to and in addition to other clauses, where the policy is covered if the complainant would have paid the premium as per clause No.47. Hence the contention taken by the opponent on this count has to be believed and accepted.

          10) No doubt that it is admitted the accident has taken place and the complainant has repaired the vehicle and also that the opponent has appointed the surveyor and survey has been conducted and according to the opponent contention that the total damages were assessed to Rs.1,22,400/-, but the opponent throughout his objection has contended the policy does not cover the risk and to show that the opponent has produced the terms and conditions under which the complainant is not entitled for the claim, damages or loss to his vehicle. Moreover, it has also been contended that the vehicle is use for commercial purpose and the complaint is not maintainable in eye of law. For this contention of the opponent the complainant has not putforth any documents to show that the vehicle was not use for commercial purpose and it is also not the case of the complainant that the vehicle is use for the livelihood etc., Therefore on the above discussions we are of the opinion that the complainant has failed to prove the deficiency of service on the part of the opponent. The complainant is not entitled to any damages from opponent. The complaint filed by the complainant is not maintainable.. Hence we pass the following order;

: ORDER :

The complaint is dismissed. No order as to cost.

(Order dictated, corrected & then pronounced in the Open Forum on this 24^th day of February 2016)

          Member            Member                    President

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