HON’BLE  MR. ASHIS KUMAR BASU, MEMBER

Order No. 12

Date: 18.03.2020

The record is put up for order.

1.The dispute in the present case arises out of complaint filed by the Complainant under Consumer Protection Act, 1986 ( hereinafter referred to as the Act ) in relation to deficiency of service and unfair trade practice for repudiation of insurance claim due to an accident of a hydraulic excavator.

2. The fact in brief is, Mr. Ajit Routh, S/O Late Pallab Chandra Routh, complainant, residing at Jamgram, P.O. Jamgram, P.S. Barabani, Dist. Paschim Bardhaman, PIN 713315, Proprietor of  Moti Ceramics purchased a VOLVO made hydraulic excavator, bearing  model no.ECE140BLC, M/C Serial No.17953, Engine Serial No. 11629912 from Suchitra Millenium Projects Pvt. Ltd, OP. No. 3 herein  for Rs.45,90,000/-  and corresponding  invoice no. was 3082, dated 20.11.14. Complainant took a loan amounting to Rs. 41,00,000/- from HDFC Bank Ltd. Durgapur  Branch, for the said purchase and it was   hypothecated  to the  said branch.  The complainant has been paying  HDFC Bank  Rs. 125365/- toward installment  of the loan.

3. The complainant purchased an insurance policy for  above mentioned hydraulic excavator  in the category of ‘ Miscellaneous Class D Vehicles Package Policy’ from  The Oriental Insurance Co. Ltd, Branch Office at Uma Bhawan, G.T. Road, Asansol, Dist.  Paschim Bardhaman, OP No.2  herein . The said policy bearing no 3131000/31/2015/3789 covering the period from 20.11.2014 to 19.11.2015, has been purchased for Rs.4590000 with a premium of Rs. 52507/- ( as per schedule of premium ).

4. The complainant used the said excavator  for lifting sand from the bank of river Ajay near Amulya ghat. On 11.01.2015, the excavator met an accident due to land slide and fell into the river under about 20 to 25 ft and remained under water for two days. It was out of working condition due to  severe damage and subsequently  lifted by a crane.  Complainant informed the matter to the insurance company and authorized service centre, OP No. 2and 3 respectively.  The OP No. 2 conducted spot survey by their surveyor and  completed other formalities.  Complainant started the process of  repairing the  hydraulic excavator  as per surveyor’s instruction. OP No. 3, Suchita Mellenium Projects Pvt. Ltd,  authorized dealer of Volvo Construction Equipment  advised the complainant to send the engine of the damaged excavator to their service centre in Kolkata .Complainant  send the engine and the excavator  to the servicing centre in Kolkata on 16.01.2015 and 22.06.2015 respectively for repairing . After completion of repairment,  the final survey was  conducted by the OP 2- insurer  and subsequently  the claim for compensation  for damages was repudiated  by OP 2  through a letter dated  15.12.2015 due to non- registration  of the said hydraulic excavator by a competent  RTO on the day of accident.

5. Complainant through a letter dated 24.02.2016 informed OP 2 that the chain mountain excavator does not require any registration as it is not a registrable item and hence he requested OP 2 for a settlement. As per request  of complainant , OP 3 through a letter dated 25.02.2016requested  ARTO, Motor Vehicles Department, Asansol   whether hydraulic excavator , having  model no. EC140BLC, Engine No. 1162992 is  required registration as the excavator is a chain mounting equipment and runs through iron crawler in mines area / off road area. In response to  above mentioned letter of OP 3, on 03.03.2016, the Registration Authority  of Motor Vehicles Department, Asansol, remarked that the chain mounting equipment does not require registration  as per Central Motor Vehicles Rules. Complainant paid Rs. 2248547.89/- to OP3 for repairing cost and received the repaired excavator in Sept’17. Complainant claimed Rs.2248573.89/-from OP 2 – insurance co. as repairing cost of damaged hydraulic excavator but OP2 repudiated the same arbitrarily as the excavator was  not registered  on the day of accident. Complainant alleged that registration of chain hydraulic excavator does not require registration  and hence the repudiation of insurance claim amounts to deficiency in service and unfair trade practice on the part of OP 1, Chairman of the  Oriental Insurance Co. herein & OP 2 for which complainant has been suffering from mental pain, agony and harassment.

6.Complainant  prays before this commission to set aside the repudiation of claim and direct the OP-insurer  to pay a) Rs 2248573.89/- along with interest @ 10%per annum from 08.09.17 till realization. b) Rs. 500000/- as compensation for mental pain, agony and harassment and c ) Rs. 100000/- as litigation cost.

7. In the written version of OP 1&2contended  that complainant had not come before this Hon’ble Commission  with clean hands as the later suppressed  the material facts and made misrepresentation.  The complaint was filed with malafide intention to make financial gain There is no deficiency of service and unfair trade practice on the part of OP 1 & 2 and as such the complaint is liable to be dismissed.

8. Regarding loss in  accident, OP1 & 2 argued that the complainant did not take any measure to rescue the  “insured machine”immediately after accident, on the contrary it was under  river water for two days resulting more damages.  OP1 & 2 also denied  thatany meeting was held with complainant where the recommendation for settlement of claim  was made by Divisional Manager of Oriental Insurance  Co. Ltd.

9.  Regarding submission of RC Book , OP1&2 further argued that the complainant stated that submission of the same did not arise as the chain hydraulic excavator was not a registrable  item. Complainant mentioned that  in response to the representation before  RTO Asansol made by Suchita Millennium Projects Pvt Ltd on 25.02.16  regarding registration of the said excavator,  the competent authority did not clearly stated that the registration was not necessary. OP 1&2  contended that the said documents cannot be taken as a genuine documents  as it was not issued  following proper method . OP1 & 2 also denied that complainant  had paid Rs.2248573.89/- to OP3 as total expenditure towards repairing of the excavator  in Sept’17.  OP 1&2 also argue that registration of said excavator was necessary  as per Motor vehicles Act and Rules which is mandatory for getting insurance claim. After receiving information from complainant about the accident , OP1&2  deputed a licensed surveyor to assess the loss  and as per surveyor’s final report submitted on 13.05.2015, the quantum of loss stood at Rs.1580621.90/- but the same was denied as the complainant did not comply the terms and conditions of the policy.

10. OP1&2 contended that complainant has not suffered any loss, mental pain, agony or harassment for action of the insurance co. As such there was no deficiency in service and unfair trade practice. HenceOP1&2 are not liable to pay any relief or compensation as prayed for in the complaint. Therefore the instant case is liable to be dismissed.

11. In the brief notes of argument, OP1&2  alleged that  the instant complaint is not maintainable  as there was suppression of facts which  was filed  for financial gain.  The complainant purchased  Volvo made hydraulic excavator from M/S Suchita  Millenium Project Ltd , an authorized  dealer of Volvo Construction Equipments. Complainant  purchased a Motor Insurance Certificate Cum Policy of Miscellaneous Class D Vehicles Package Policy issued by OP – insurance Co. on 20.11.2014 where the ‘Type of Body’  is mentioned as ‘TRACTOR.’  OP 1 & 2 explained that  type of body was mentioned as Tractor as per proposal form  filled in by the complainant. OP 1&2 raised the question why the complainant remained silent for 51 days till the date of accident on 11.01.2015 over such irregularities`. OP 1& 2 alleged that as per report of surveyor deputed by them , at the time of  accident , the said excavator was operating on loose sand for which the excavator fell  into deep water of the river due to land slide. Moreover  the condition of the excavator became worse as it was under water for two days.  The surveyor could not found the complete machine except the engine in dismantle condition along with some electro-mechanical parts and  subsequently the body of the machine had been inspected near the bank of the Ajoy river. Some parts of the machine were removed and kept under the custody of the complainant which was not proper under the terms and conditions of  insurance policy.  OP1 & 2 also argued that the issued policy covered use only under a permit within the meaning of Motor Vehicles Act, 1988 and insurance policy is a contract of uberrimae fidi  i.e. a contract of utmost good faith. Any suppression of material fact at the time of purchasing policy or before this ld. Commission  shall not be entitled the  complainant to have any claim from  OPs- insurer.

12. OP 1 &2  mentioned the observation of  Hon’ble  Supreme Court of India in United India Insurance  Co. Vs  Harchand Rai, “ that the terms of the policy have to be construed as it is and the apex court cannot add to or to subtract from something. However liberally one may construed the policy but there is no scope take liberalism to the extent of substituting the wards which are not intended….”.AIR2004 SC 4794. OP 1&2also cited the case of Surajmal Ram Niwas  where the Hon’ble  Supreme Court  held ……” It is also well settled that since upon issuance  of  Insurance Policy  the Insurer under takes  to indemnify the loss suffered by the Insured on account of risk covered by the policy, its terms have to be strictly construed to determine the extend of liability of insurer.  Therefore the endeavour of the Courts should always be interpret the words in which the contract is  expressed by the parties…”. OP1&2 also argued why the insured excavator operated in a public place to lift sand which was  prohibited . OP 1 &2  contended that  the repudiation  of claim was justified as the  policy  had been purchased for the category of  Motor Vehicle .

13. We  have heard the counsels of both the parties at length and perused the materials on record. If we take an in-depth  study  of the instant case, it will be found that as per Tax Invoice  cum challan dated 20.11.2014 submitted by the complainant,  description of goods was Hydraulic Excavator , Make-Volvo ,Model-EC140BLC, M/C Sl. No 17953, Engine Sl. No.11629912 for  Rs. 45,90,000/- issued by Suchita Millenium Projects Pvt. Ltd. which are absolutely corroborated with  MOTOR INSURANCE CERTIFICATE CUM POLICY SCHEDULE MISCELANEOUS CLASS D VEHICLES PACKAGE POLICY ZONE except ‘ TRACTOR’ as mentioned for ‘ Type of body’ in place of Hydraulic Excavator. It is fact that complainant all along described it as hydraulic excavator in all documents. OP 1&2 could not explain conclusively  why the type of  body was printed as tractor in the policy when the  model  VOLVOEC140BLC , was a  hydraulic excavator  for which the premium amounting to Rs. 52507/- had been received. The said policy has been issued by the Insurer  henceapparently OP 1 &2 are responsible for this anomaly. Repudiation of claim cannot be sustained on the ground  that the insurance policy  issued by the insurer bears some mistakes.  As per ‘Declared Value’ and schedule of premium it is revealed that IDV is taken as Rs. 4590000/-where premium amounts to Rs. 52807/-. FromIDV  it can be concluded that the cost of a  tractor cannot be  so high.  OP 1&2 alleged that the   complainant did not file  the proposal form properly  at the time of purchasing policy but it was not proved from the record .  OP 1& 2 argued that said excavator operated on loose sand  but from circumstances, we are of the opinion that apparently it was an accident for which the complainant couldnot be held responsible. OP 1&2 also alleged that the complainant illegally lifted sand on the river bank and a  cutting  of news paper containing the report on selling sand  from  river had been submitted. But from that report in the news paper nothing can be conclusively proved  that  the complainant has been doing illegal activities.

14.   Complainant made  insurance claim to the tune of  Rs. 2248573.89/- as expenditure incurred by him for repairing damaged  excavator which was supported by ledger and Tax Invoice cum Challans. From record it is found that  Divisional Manager , Oriental Insurance  Co. Ltd through a letter  dated 15.12.15 informed complainant  that “ …. claim has been repudiated  by the Competent Authority on account of non- registering the said vehicles with any R.T.O as on the date of the loss.” From the said repudiation letter it can be concluded that OP 1&2 have denied any compensation to  the complainant only onthe ground that the excavator was not registered by any R.T.O.  Ld. Counsel for the complainant cited the observation of the Hon’ble Apex Court  in the case of  Galada Power And Telecommunication Ltd. Vs  United Insurance Co. Ltd, ( 2016 )14 SCC , 161 where it has been clearly laid down that “ Insurance Company  cannot go beyond the grounds of repudiation”.The Hon’ble  Supreme Court has confirmed the view taken by the Hon’ble High Court  of Delhi in Krishna Wanti Vs. L I C  of India, 2000(2)R.C.R.( Civil) 140:2000( 52 )DRJ 123 ( DB ),  wherein the High Court has taken note of the fact that “ if the letter of repudiation  did not mention an aspect, the same could not be taken as a stand when the matter is decided..  In the instant case , though ld. Counsel for the Insurance Co. contended that  there is a delay of 8 days in informing them and that the surveyor found the machine in a dismantle condition, it is pertinent to note that both these grounds are not reflected in the letter of repudiation.”

15. From above facts and figures , it appears that the moot point of this case is whether Volvo made- Hydraulic Excavator being model no. EC140BLC is required  registration by R.T.O under Motor  Vehicles Act. Complainant contended that excavator is a chain mounting equipment and runs through  iron crawler in mines area/ off road area as it damages the road if it runs on the road .Hence it does not come under the preview of  the Motor Vehicles Act. The said excavator  is purchased by complainant from M/S  Suchita Millenium Projects Pvt. Ltd. , an authorized dealer of Volvo Construction Equipment. Complainant filed a photo-copy of a letter written by  Suchita Millenium Projects Pvt Ltd.  to  the ARTO , Motor Vehicle Department, Asansol, W.B. requesting  whether a  certificate  regarding registration of  Hydraulic Excavator Model EC140BLC is required. . In response to the said letter, Registering Authority ,Burdwan, Asansol remarked that  Chain –mounting equipment  need not  require registration.This  remarkapparently bears the seal and signature of Registering Authority , Burdwan, Asansol.

16. The Ld. Counsel for complainant cited  the decision of the Apex Court in the case of  Central Coalfield  Ltd. Vs. State of Orissa, AIR 1992 SC 1371 wherein the Apex Court itself had made a distinction between vehicles fitted with chain plates like caterpilles  like military tanks and others “. It is held that “ the excavator referred to in  Bose  Abrahma’s case was a motor vehicle  fitted with inflated tyres  and not chain plates like caterpillars or military tank. Under the above mentioned circumstances we are in agreement with the learned single Judge that the excavators fitted with chain plates like caterpillers like military tanks are not motor vehicles  within the meaning of sub-section (28 )of  section 2of the Motor Vehicles Act read with 2(1)(i) of the Kerala Tax on Entry of Goods into Local Areas Act, 1994.”  It is pertinent to recall the observation made by  Hon’ble  Bombay High Court In the case  of  V.M.Salgaocar & Brothers Ltd. Vs. State of Goa & others ,“that  If  vehicle falls within the definition of vehicle under Section 2(28) of Act then it is to be registered. Vehicle being used  in an enclosed area of mine and clearly of special type to perform specific  function of mining . None of these machines are capable of use for transporting goods or people on a public road, such type of vehicle need not be registered.” In the instant case the  OPs 1&2 could not produce any tangible documentary evidence before this commission that the disputed  hydraulic excavator had transported the removed  sand from one place to another place.

17.  The definition of the term Motor Vehicle  as per MV Act  is‘that motor vehicle or vehicle means any  mechanically propelled vehicle adopted to use upon roads….. but does not include ….. a vehicle of special type adopted  for use only in a factory  or in other enclosed premises ‘.In  our view,the prime function of a hydraulic excavator is confined to excavate the soil/sand/mineral but not to carry it at another place. Its structure, shape, mechanism, locomotion, mode of operation and purpose  are completely different from  those of  Motor Vehicles.  The hydraulic excavator  has a cabin capable of rotation  and its weight  appears to be rested on the rollers , which in turn  rested upon the tracks on the ground.  The track , because of their length and shape, cannot be regarded as wheels. So it cannot be  equated with Motor vehicles.

18.   Going through the pros and cons of the case  and Judgment  given by the  Apex  court in similar cases , we are of the opinion that Hydraulic Excavator  does not come under the purview of  Motor Vehicles Act, hence it does not require registration  under the relevant  Act.Complainant  claimed Rs 2248573.89/- for the  repairment of the damaged excavator.  In the final report,the licensed surveyor estimated the loss to the tune of Rs.Rs.1580621.90/-. The said surveyor, in his loss assessment, reported that“The assessment drawn is  strictly subject to post  repairing inspection.  It clearly shows that the other relevant expenses for repairing jobs are not considered.  But OP 1& 2 repudiated the claim due to non- registration of the excavator under Motor Vehicles Act 1988 which was not actuallyrequired .Therefore,  the plea taken by OPs- Insurer for repudiation of insurance claim of the complainant is not tenable as it is not  based on any valid grounds.

19.   After overall consideration of the facts and circumstances of the instant case , we are of the opinion that  it is a clear case of  deficiency in service and unfair trade practice on the part of OP 1 & 2 for which the complainant is entitled to get compensation. In this view of the matter, we deem it appropriate and proper that the complainant be entitled to have Rs.1580622/- asinsurance claim. From materials on record, it appears that  there is no dispute between the  complainant and  OP No. 3 and as such OP No. 3 is not liable for deficiency in service  and unfair trade practice.

ORDERED

 The instant complaint be and the same  is allowed on contest without cost.

OP 1 &2  are jointly or severally directed to pay the complainant Rs. 1580622/- for insurance claim along with interest @ 9% per annum  w.e.f. 08.09.2017 till compliance within 60 days from date of passing this order.

OP  Nos 1&2 are also directed to pay the complainant Rs. 100000/- jointly or severally for causing mental pain, agony and harassment  within 60 days from date of passing this order apart from  litigation cost  Rs.30000/-within the said period.

 We make no order as against OP No.3.

We make no order as to cost.

Let a copy of the judgment be supplied to the parties free of cost immediately.