1st day of March 2013
C.C.510/08 filed on 30/6/08
Complainant: Joy.V.V., Velangdan House, Mothirakani.P.O.,
Chalakudy, Thrissur.
(By Advs. Jecko Joy&Bindu Reghunath., Thrissur-3)
Respondent: The Oriental Insurance Co. Ltd., Branch Office 1,
Thiruvambadi Devaswom Bldg., 2nd floor, Round West,
Thrissur, rep. by its Branch Manager.
(By Adv.P.Sathiskumar, Thrissur-3)
O R D E R
By Smt. Padmini Sudheesh, President:
The case of complainant is that the complainant is the registered owner of an Escorts JCB Excavator bearing registration No.KL-8 X 7946. Respondent is the insurer of the vehicle. The vehicle costs Rs.18,00,000/- and complainant had availed loan for the purpose of purchasing the same. The vehicle started complaints because of which the vehicle used to brake down frequently and the complainant lost many works and sustained huge loss. So the vehicle was taken to the authorized dealer and it was told that there is damage to excavator valve of the vehicle which has to be replaced. The dealer told him that the valve is covered by insurance policy and the company will reimburse the amount. The complainant agreed to replace the valve for which he was made to pay Rs.1,20,196.56. Then the complainant made a claim for getting the reimbursement but refused by a letter dated 29/5/06 stating that the damage caused due to wear and tear and mishandling. It is incorrect and the vehicle was used by an inexperienced person. This act of respondent is deficiency in service. Hence the complaint.
2. The averments in the version are that the respondent admits that the vehicle is covered under Motor Package Policy for the period from 3/7/05 to 2/7/06 subject to the terms and conditions. The complainant has to prove the nature and cause of alleged incident and the extent of damage caused to the vehicle. This respondent denying the averment that as a result of the alleged accident the vehicle suffered loss to the tune of Rs.1,20,196.56. The complainant had informed of the alleged loss sustained to the vehicle and filed a claim. As per the claim form the insured vehicle was used for loading rubbles to lorry for transporting to construction site. At the time of accident the vehicle was arranging rubbles for loading by collecting rubbles together, a stone hit on the valve block and the same got cracked and damaged. Oil leakage was observed from the valve block in the working condition. Immediately this respondent had deputed a surveyor and the surveyor in his report mentioned that damage found in the vehicle seems not in consistent with the narration of accident mentioned in the claim form. This respondent deputed Mr.C.Krishna Menon to survey and assess the extent of damage caused to the vehicle. Accordingly he inspected the vehicle and submitted report. He had assessed the actual damages as Rs.93417.08. According to his report the valve block will not be damaged due to such an incident. In his opinion the oil leak through the LHCV was developed due to wear and tear and the extent of damages may be escalated due to over tightening of these valves with the hand of unskilled operators. So the complainant is not entitled to get any amount as per the policy. Hence dismiss.
3. Points for consideration are that :
1) Whether there was any deficiency in service from respondent ?
2) If so reliefs and costs ?
4. Evidence consists of oral testimonies of CW1 and RW1, Exhibits P1 and P2, Exhibit C1, Exhibits R1 to R6 and MO1.
5. Points : The complaint is filed to get reimbursement of the cost of excavator valve from the respondent. The complainant is the owner of Escorts JCB Excavator and the vehicle was used to brake down frequently and when taken to the authorized dealer it was told that there is damage to the excavator valve of the vehicle which has to be replaced. Accordingly it was replaced for an amount of Rs.1,20,196.56 and Exhibit P1 is the invoice. As per the policy with the respondent, the complainant says that the company is liable to reimburse the said amount. When claim was submitted the company refused the reimbursement by stating that the damage caused due to wear and tear and mishandling. The respondent filed a version by raising the above contention.
6. The complainant produced Exhibits P1 and P2 documents which are sale invoice and repudiation letter issued by company. According to Exhibit P2 the claim was repudiated because the damage had occurred not due to any external impact but due to wear and tear and mishandling. According to the company as per the policy this cost of loss is not coming under the scope of policy. Then the question to be decided whether the damage to valve was caused by an accident or wear and tear.
7. One expert commissioner inspected the vehicle and filed report which is marked as Exhibit C1. According to Exhibit C1 a major crack was found out by commissioner and it is his report that the possibility of this crack made due to a direct hit on that part of the excavator valve while it was in hot condition. He also reported that it was an accidental trouble shoot and not a manufacturing defect. So according to commissioner the crack on valve block is not due to wear and tear. He is examined as CW1and according to him oil leakage is not due to wear and tear. He also deposed that when nut is over tightened crack will be there. But such a kind of crack will not occur. He categorically denied that the damage was due to over tightening of nut and wear and tear. He also denied the version of respondent that there is no chance of hitting of stone on this part. So according to CW1 the damage of valve block was not because of wear and tear and mishandling.
8. The documents Exhibits R1 to R6 are marked from respondent in which Exhibit R4 is self report of surveyor, RW1. According to him the damage of vehicle is only because of wear and tear. He denied the occurrence of crack to the valve out of an accident. It is his definite stand that there was no manufacturing defect and the crack was only because of wear and tear. But the view of CW1 is more trustworthy.
9. Exhibit R1 is the policy certificate along with terms and conditions. According to respondent as per policy the claim is not payable. They would say that Section 1(2) (a) of the policy the company was not liable to make any payment in respect of consequent loss, depreciation, wear and tear etc. But in this case the damage was because of accident which was proved through Exhibit C1 and CW1. It is true that no narration of accident in the complaint. But Exhibit C1 is very clear and complainant is entitled to get Exhibit P1 amount. He is not entitled to get any amount by way of compensation because no evidence is adduced to prove the same. He is not step into the box.
10. In the result the complaint is allowed and the respondent is directed to pay Exhibit P1 amount with cost Rs.2,000/- (including commission batta) within two months from the date of receipt of copy of this order.
Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the open Forum this the 1st day of March 2013.
Sd/-
Padmini Sudheesh, President.
Sd/-
M.S. Sasidharan, Member.
Appendix
Complainant’s Exhibits:
Ext.P1 Sales Invoice
Ext.P2 Lr. dt. 25/9/06
Respondent’s Exhibits
Ext.R1 Policy certificate with terms and conditions
Ext.R2 Motor Claim form
Ext.R3 Copy of claim repudiation letter
Ext.R4 Survey report dt. 10/8/06
Ext.R5 Copy of acknowledgement card
Ext.R6 Survey report dt. 19/6/06
Respondent’s witness
RW1 – C.Krishna Menon
Ext.C1 – Commission report
CW1 – Don.P.Jose
Id/-
President
