PRESENT

                   Complainant Adv. Vidyarthi along with Adv.Manasi Kajarekar.  

                   Opponent by Adv. Sneha  Dwivedi.

                                                ORDER

( Per-Mr. S.V.KALAL,, Hon’ble Member.

1. M/s VishwakarmaEng. Works (Hereinafter called as the complainant) has filed the complaint againstThe Oriental Insurance Co.Ltd.(Hereinafter called as the Opposite Party) u/s 12 of CP Act 1986 , alleging the deficiency in service and unfair trade practice followed by the OP , in respect of the insurance Policy purchased by complainant fromOP.

2. It is the contention of complainant that they approached to op insurance co. for transitinsurance policy for their Valuable and Imported Machine to be shifted from their Mumbai Factory to Umbergaon factory located in Valsad District of Gujarath state. However as advised by OP, complainant arranged the pre-dispatch survey of the Machine from the authorized surveyor. The Machine was assed as second hand used Machine and valued for Rs.69,35,000/-and accordingly the premium of Rs. 3826/- was paid by complainant. OP issued the Marine Cargo Single Voyage (Inland transit)-All Risk A, policy bearing no.124300/21/2010/82 dtd.10.06.2009.

3. The complainant further contends that on furnishing the details about the transportation of the machine viz. Name of transporter, vehicle no., LR no. etc to OP , endorsement of the said details was made in the policy on dt.24.06.2009. The machine carrying vehicle reached at Umbregaon factory on dt.25.06.2009. But before delivering the machine safely to storage place, suddenly the vehicle tilted due to soft soil, while moving to take proper position to unload the machine from the vehicle. The accident of vehicle resulted falling down of the machine from the vehicle causing damages to the machine. Complainant immediately intimated the accident of carrying vehicle to local authorities of OP. As instructed by OP. complainant arranged the survey to assess the loss / damage to the insured machine.The machine was repaired by replacing the damaged spare parts . Complainant lodged the insurance claim of Rs.4,38,359/-With op, to reimburse the cost of repairs of the machine under the insurance policy. But OP repudiated the claim stating the reason that there was no accident to carrying vehicle, therefore as per policy terms OP is not liable to indemnify the loss/damage. Therefore complainant has filed this complaint against OP to resolve the grievance.

4. On the contrary Op company has filed its W.S.and denied all the allegations made by complainant. It is the contention of OP that since the machine was used, only the basic cover insurance policy was issued to complainant for the transit risk of their machine. The Machine reached safely at the desired destination and there was no accident to the carrying vehicle during the transit. Op further contends that the Insurance policy (All Risk) clause –A was inadvertently issued. But the due endorsement ofclause –B type was made . Since there was no accident to carrying vehicle, therefore as per policy terms OP is not liable to pay the insurance claim.

5. Both parties have filed their affidavit of evidence , Written argument , and supporting documents. We have perused all the documents filedon record by both parties.

6. It is admitted position that the machine was 2^nd hand used machine. It was insured for transit risk during shifting of machine from Mumbai to Umbergaon. We have perused the terms and conditions under (All Risk )-Clause A & Basic Cover Clause –B insurance policy.

7. The disputed issue is that whether the complainant is entitled for insurance claim for damages of theirinsured Machine?

8. It is the contention of OP that there was no accident to carrying vehicle, therefore as per policy terms OP is not liable to pay the insurance claim.

9. We have perused the survey report of an authorized surveyor filed on record. The surveyor has declared the accident to carrying vehicle in the premises of Umbergaon factory of complainant.

10. The Machine carrying Vehicle tilted due to soft soil conditions,, while moving to take proper position to deliver the machine at the storage point in the factory, resulting falling of the machine from the truck, caused damages to the insured Machine. As per policy terms & conditions either of Clause –A or B, the transit clause says that the insurance cover starts from the goods leave the ware house until it is delivered at the storage place at the destination mentioned in the policy document point No.5(i)(ii)&(iii). according to policy terms & conditions no. 1(b)(iii) of Inland transit (Rail/Road) –B, Basic cover there was an accident to carrying vehicle. Therefore we are of the view that the machine was in transit as it was not delivered at the storage point in the Umbergaon factory. The machine unexpectedly fell down from the truck during the transit before its delivery at the storage point. Further as per the survey report of authorized surveyor there was an accident to carrying truck and the machine fell down from the truck before its delivery at the storage point. Complainant carried out the repairs of the machine only after assessment of loss/damage by the authorized surveyor , and complainant has claimed only the cost of repairs of the machine under the insurance policy. Therefore complainant is entitled for insurance claim from OP.

11. Repudiation of the insurance claim of the complainant by OP company amounts to deficiency in service and adopting unfair trade practice on the part of OP co.

12. We are of the view that the claim of complainant is only limited to the extent of repairs of the machine. It can be settled either under clause –A orB policy conditions as complainant has insured his machine and there is damage to the machine during transit. As Op insisted for basic cover under Clause –B , even then the complainant is entitled for insurance claim as the damage is inexcess of 1% of sum insured. The assessment of damage/loss made by the authorized surveyor is on record.Complainant has submitted claim under clause ‘A’ policy.According to complainant opponent issued clause ‘A’ type policy but later on after accident to carrying vehicle opp. unilaterally changed the policy by making an endorsement on 25.06.2009 which is after thought.Though the machine was 2^nd hand used machine opponent inadvertently issuedthe clause‘A’ type policy and even at the time of 1^st endorsement opponent failed to change the policyThis amount to deficiency in service and unfair trade practice by opponent.We are of the view that it is admitted that the machine was 2^nd hand used machine then the claim of complainant can be settled undere clause –B policy.

13. As regards the quantum / Amount of insurance to be settledwe have perused the survey report of Ankur Pandya Appointed by OP. We are inclined to the gross assessed loss of Rs 387384/- in the said report. Howeverwe disallow the deduction of prop.15% on 58,175/- as no justification to the said deduction is given in the report.Therefore the insurance claim of complainant be settled at Rs.3,88,401/-.

14. In view of the above facts and circumstances we pass the following order.

ORDER

1.        The RBT Consumer Complaint No. 190/2011 is partly allowed.

2.      It is hereby declared that there is deficiency in service and adoption

         of unfair trade practice in   respect of transit insurance policy  on the part of OP insurance company. 

3.      The OP insurance co. is directed to settle the insurance  claim of

          Complainant and Rs.3,88,401/- along with interest @ 7 %  from the date

            of  repudiation of the claim i.e. from 26.4.2010 till realization of the

             entire amount.

4.         As  there is deficiency in service & adoption  of unfair trade practice

            in respect of  endorsement of policy, opponent is directed to pay

            Rs.10,000/- to complainant for mental agony and Rs.5,000/- for cost of

            litigation.   

5.         Copy of this order be sent to the both parties.