BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL FORUM, JALANDHAR.
Complaint No.203 of 2014
Date of Instt. 19.6.2014
Date of Decision :13.11.2014
Gurteshwar Singh aged about 30 years son of Satinder Singh C/o Joginder Singh Lally R/o VPO Nangal Shama, Jalandhar.
..........Complainant
Versus
1. The Oriental Insurance Co.Ltd, B.O.III, Opp.Circuit House, Jalandhar-144001, through its Manager/Director/Authorized Representative.
2. The Oriental Insurance Co.Ltd, Head Office, Oriental House,A, 25/27, Asaf Ali Road, New Delhi-110002 through its Managing Director/Authorized Representative.
.........Opposite parties
Complaint under section 12 of the Consumer Protection Act.
Before: S. Jaspal Singh Bhatia (President)
Ms. Jyotsna Thatai (Member)
Present: Complainant in person.
Sh.Brijesh Bakshi Adv., counsel for opposite parties.
Order
J.S. Bhatia (President)
1. The complainant has filed the present complaint under section 12 of the Consumer Protection Act, 1986 against the opposite parties on the averments that the complainant got the his vehicle fully insured vide insurance cover note No.943187 for 20 Lacs from opposite parties and paid Rs.49,154/- as premium for the period from 12.6.2013 to 11.6.2014 to opposite parties. The above said insured vehicle met with an accident on 13.6.2013 at 5.00 PM at Rajpura(Patiala). The accidental damaged vehicle was brought by recovery van from Rajapura(Patiala) to workshop namely Satnam Engineering Company at G.T.Road, Kartarpur(Jalandhar) for which the complainant paid Rs.6000/- as towing charges. The matter was immediately reported to the opposite party No.1 for the accident of said vehicle who sent their surveyor for assessment of loss & damage to said vehicle. In the said accident tipper right and left sides were damaged. Front Jack bracket was broken and damaged. Main tipper pin with bracket & Plate was damaged. Jack, Chassis frame, main tipping pin, tipper front fittings were damaged. Sub frame and main chassis was also damaged badly. M/s Satnam Engineering Company, G.T.Road, Kartarpur(Jalandhar) vide their bill No.69 dated 10.10.2013 charged Rs.27573/- including VAT and service tax from complainant for: (1) Tipper Right and left side(material) Rs.10,000/-, (2) Front Jack Bracket New Fitting Rs.6000, (3) Main tipper pin with bracket and plate new fitting Rs.10,000= 26000+1430 Vat + 143 Service Tax(Total Rs.27573/-). Besides above M/s Satnam Engineering Company, G.T.Road, Kartarpur, District Jalandhar vide their bill No.70 dated 10.10.2013 charged Rs.85725/- which included Rs.9750/- Vat and Rs.975/- service tax for repairs of Jack from complainant. And further M/s Satnam Engineering Company, G.T.Road, Kartarpur, District Jalandhar, vide their bill No.71 dated 10.10.2013 charged Rs.70,000/- from complainant for : (1) Sub frame straightening cutting and welding fitting(labour) Rs.20,000/- (2) Tipper right and left side body cutting and piller fitting and labour Rs.35000/- (3) Tipper main chassis straightening and labour Rs.15,000/- (Total Rs.70,000/-). As such above said M/s Satnam Engineering Company, G.T.Road, Kartarpur, received, total Rs.1,83,298/- from complainant for the repair and maintenance of above said damaged accidental vehicle. After receipt of bills and claim form from complainant, the opposite parties assured the complainant that the claim shall be given to complainant within two or three months. But when after three months the complainant went to opposite party No.1 to get the claimed amount as per bills submitted, the opposite party No.1 told the complainant that instead of Rs.183298/- only Rs.68000/- would be given to complainant which the complainant refused to accept. The complainant again and again went to opposite party No.1 to get the claim but every time the opposite party No.1 told the complainant that the case has been sent to opposite party No.2 for final approval and decision. But till date neither any approval nor any decision of the opposite party No.2 made. The opposite parties are liable to give the claim amount of Rs.183298/- as per bills produced by complainant to opposite parties. On such like averments, the complainant has prayed for directing the opposite parties to pay him the claim amount of Rs.183298/- on account of repair of the damaged vehicle. He has also claimed compensation and litigation expenses.
2. Upon notice, the opposite parties appeared and filed a written reply pleading that the present complaint as well as the claim of the complainant is not maintainable. There is no accident or accidental damage rather the damage has been caused to the vehicle in question during the unloading and not payable under the policy. The vehicle Tata Tipper bearing registration no.PB08-CB-9485 was insured for the period 12.6.2013 to 11.6.2014 under the Commercial Vehicles Policy. As per clause 2(a), the company shall not be liable to make any payment in respect of mechanical breakdown. It is pertinent to mention here that in the present case the said vehicle which was carrying load of Sand was unloading sand when due to mechanical breakdown it was unbalanced and the damage occurred. Thus the proximate cause of loss or damage was the mechanical breakdown on account of unbalancing while unloading. As such the company is not liable to make any payment for the claim raised by the insured/complainant. It was stated by the insured at the time of survey that the vehicle/Tipper was unloading sand when due to unbalancing while unloading the vehicle got damaged. No third party loss was intimated. The damage was limited to i) Jack Damaged ii) Body container dented iii) Chassis seemed misaligned as reported by the Surveyor after spot survey who also took photographs of the vehicle. During the processing of the claim it was found that the driving license of the driver was issued from LA Makachung Nagaland. Thus verification of the same was ordered which took time. The surveyor and loss assessor was deputed who submitted their final report and assessed the loss at Rs.58,914/- subject to the terms and conditions and coverage provided under the insurance policy. However, it was found that the loss to the vehicle occurred while the vehicle was standing and unloading the material and it became unbalanced and damaged during unloading. As per the opinion of M.L.Mehta & Co. Automobile & Mechanical Engineers, who were the surveyor and loss assessor deputed by the company such type of loss as claimed by the insured occurred due to mechanical breakdown and not due to any accident by external means, hence fell outside the scope of insurance policy. They denied other material averments of the complaint.
3. In support of his complaint, complainant has tendered in to evidence affidavits Ex.CA and Ex.CB along with copies of documents Ex. C1 to C6 and closed evidence.
4. On the other hand, learned counsel for opposite parties has tendered affidavit Ex.OPA alongwith copies of documents Ex.O1 to Ex.O14 and closed evidence.
5. We have carefully gone through the record and also heard the complainant in person and learned counsel for the opposite parties.
6. Ex.C-1 is cover note in respect of the insured vehicle i.e Tata Tipper. During the validity of the insurance period, it was damaged due to accident as per version of the complainant. He intimated loss to the insurance company who deputed its surveyor and conducted spot survey and submitted his report Ex.O4. Thereafter the insurance company appointed M/s M.L Mehta and Company, surveyor and loss assessor who submitted its final survey report Ex.O9 assessing loss at Rs.58.914/-. He excluded cost of Hyva jack new fitting to the extent of Rs.105000/- and further Rs.7500/- on account of existence of front jack bracket new fitting. He has excluded Rs.18,500/- on account of labour charges in respect of driver cabin repair using new and old material. Counsel for opposite party insurance company contended that in the present case the damage occurred due to mechanical breakdown and as such is not covered under the policy in view of condition 2(a) which provides that company shall not be liable to make any payment in respect of mechanical or electrical breakdown. In support of his contention, he has relied upon New India Assurance Co.Ltd Vs. Ashok, Revision No.785 of 2007 decided by Hon'ble National Commission on 25.4.2011 and M/s Prem Processor Vs. The Oriental Insurance Co.Ltd, Revision No.2088 of 2012 decided by Hon'ble National Commission on 31.10.2014. There is no dispute regarding the law laid down in the above cited authorities. It depends upon the facts and circumstances of each case whether damage to the vehicle was accidental or on account of mechanical failure. In coloum No.13 of its report Ex.O9, the surveyor and loss assessor has specifically mentioned that damages sustained to the said vehicle coincide with nature and cause of accident. As per initial surveyor which was conducted by Tejinder Singh who had submitted his report Ex.O4, according to the statement of insured at the time of survey the vehicle was being unloading the material and become unbalanced and damaged. Counsel for opposite parties contended that at the time of above said incident the vehicle become unbalanced and fell down and was damaged and it was on account of mechanical failure and not on account of any accident. We have carefully considered this contention advanced by learned counsel for opposite party insurance company but find no merit in it. Even if the above version that while unloading the Sand the vehicle i.e Tata Tipper became unbalanced and fell down and was damaged is accepted, it can not be said that it was on account of mechanical failure. On the other hand, it tantamount to accidental damage. The surveyor and loss assessor who has submitted his report Ex.O9 has not given any reasons for excluding Rs.18500 labour chargers on account of driver cabin repair, Rs.105000 on account of Hyva Jack new fitting and further Rs.7500/- on account of Front jack bracket new fitting. The opposite party insurance company has wrongly refused to pay the claim amount on ground that damage to the vehicle was on account of mechanical failure. If the vehicle while unloading material i.e Sand become unbalanced and was damaged after falling down on earth, it amounts to accidental damage. There is nothing on record to came to the conclusion that the vehicle become unbalanced on account of any mechanical failure. So the opposite party insurance company has refused to pay the claim amount to the complainant without any valid reason. The surveyor has also excluded the above mentioned items while assessing loss without any justification. The cost of metal parts which were disallowed by surveyor come of Rs.108000 and after deducting deprecation of 10%, the remaining amount comes to Rs.98800/-. In respect of labour charges no deprecation is applicable. So the surveyor has wrongly disallowed Rs.98,800 on account of cost of Hyva Jack new fitting and front jack bracket new fitting and further Rs.18,500/- on account of labour charges. So adding the above said amount to the loss assessed by the surveyor, the net claim payable amount comes to Rs.1,17,300 + Rs.58,914 = Rs.1,76,214/-
7. In view of above discussion, the complaint is accepted and opposite parties are directed to pay Rs.1,76,214/- to the complainant alongwith 9% interest from the date of filing of the present complaint till the date of payment. It is clarified that interest amount is being granted by way of compensation. Complainant is also awarded Rs.3000/- on account of litigation expenses. Copies of the order be sent to the parties free of costs under the rules. File be consigned to the record room.
Dated Jyotsna Thatai Jaspal Singh Bhatia
13.11.2014 Member President