OFFICE  OF  THE  DISTRICT  CONSUMER  DISPUTES  REDRESSAL FORUM, KAMRUP,GUWAHATI

C.C.131/09

Present:-

                             1)Md.Sahadat Hussain, A.J.S.   -   President

                             2)Sri U.N.Deka                         -    Member

M/S Ansari and Company                                            -Complainant

Golaghat Road,Dimapur-797112

Nagaland represented by their partner,,

Altaf Ali Ansari,                                                            

S/O Late Md.Hussain,

Resident of Golaghat Road,Dimapur,Nagaland

                           -vs-

1)      The Oriental  Insurance Company Ltd.,                         - Opp.parties

          Head Office, “Oriental House” P.B.No.7037.

           A-25/27,Asaf Ali Road, New Delhi-110002.

2)      The Oriental Insurance Company Ltd.,

           Regional Office, G.S.Road,Ulubari,

          Ghty-7,Assam.

3)      The Oriental Insurance Company Ltd.,

          Maligaon Branch Office, Maligaon Branch,

          First Floor, Meni Bhawan,Railway Gate No.1,

          Ghty-7810011,Assam.

Appearance-    Learned advocate Mr.Khanindra Lahkar for the complainant.

              Learned advocate Mrs.Mamoni Choudhury for Opp.Parties

Date of argument -   3.3.16

Date of judgment-    21.4.16

                                    JUDGMENT

This is a complaint u/s 12 of Consumer Protection Act,1986.

1.   The complaint filed by M/S Ansari and Company, Golaghat Road, Dimapur(Nagaland) represented  by its partner Md. Shamshed Azam u/s 12 of Consumer Protection Act was admitted on 17.12.09 and notice was served on the Oriental Insurance Company Ltd (Ulubari) and two others, and they filed their written statement. The complainant side filed affidavit of Md.Shamshed Azam, Mr.P.Hukiye Yeptho and Abdul Waheb and they are also cross examined by the opp.party side. The opp.party side filed evidence of Mr.Ranbir Ganguli and he was also cross-examined by the complainant side. Thereafter, both sides’ learned advocates filed respective written arguments and forwarded their oral argument on 3.3.2016. After hearing the oral argument of the parties we had fixed the day of 18.3.16 for delivery of judgment, but on that day we failed to deliver the judgment owing to over-works on that day, but we fixed the day of 1.4.16 for delivery of judgment and on that day also we failed to deliver the judgment owing to over works. Today, we deliver the judgment which is as below.
2.    The complainant’s case in brief is that the complainant is a registered partnership firm vide Deed No. 874/07 dt. 10.4.07 and a class I Govt. contractor vide Registration No. NPW/class I/4 having business place at Nagaland (Dimapur) and it has three partners including Altaf Ali Ansari and it had purchased a Terex Vectra backhoe loader (Excavator) being Model No.TX 76010M24M Backhoe loader for their livelihood on 17.8.06 vide invoice No. E601212 being its chassis No. TVESC12AQ-0867600773 and Engine No.4H2607/06003117 from Terex Vectra Equipment (P) Ltd.Noida, New Delhi at a price of Rs.17,35,000/- and it was registered with D.T.O.Dimapur, Nagaland vide its registration No. NL-07-A-1435 and insured with Oriental Insurance Company Ltd. Maligaon branch Guwahati vide Policy No. 321104/2007/1788 dt. 14.8.06, which is a commercial vehicle package policy keeping I.D.V. as Rs.16,48,000/; and they, as per the proposal given and the cover-note issued by the insurance company, paid Rs.19,808/- as premium w.e.f. 14/8.16 to 13.8.07. Before using the said vehicle in contract business, it was inspected by D.T.O. Dimapur(Nagaland) and fitness certificate was issued on 30.8.06 which was valid upto 29.8.07. After receiving a contract work from Chief Engineer P.W.D.(Nagaland)vide work order date 6-0-06 vide order No.CE/R&B/R&B 2005-06 the vehicle was engaged in improvement of road from Aghunato toAsuto via Satami Road (16KM) under government of Nagaland ; but on 23.1.2007 at 3-30 p.m.at village-Nezini(Nagaland)while it was being engaged in road improvement work,it suddenly skidded from the road and rolled down into a gorge 200 feet below due to extreme loose soil and got badly damaged and its driver Sri Dharmendra Bordoloi sustained injuries and then they reported Aghunato Police Station the matter on 20.1.07, and the police investigated the matter registeringa case vide G.D.E.No. 109 dt. 20.1.2007 and inspected vehicle; and it was recovered by the police from the gorge but found totally damaged and delivered in their zimma. Then they filed claim before Opp.Party No.2 i.e. Regional Manager of Oriental Insurance Co.Ltd., Ulubari,Guwahati being claim No.321104/31/07/218,and the Opp.Party No.2 side got the vehicle surveyed through their surveyor Mr.Rubul Dutta, who inspected the vehicle as well as the spot on 20.1.2007 and filed his survey report and the investigation report to the opp.parties on 10.2.2007, who had found that the vehicle was fully damaged due to the impact of the accident, and he also assessed the vehicle as total loss. The MVI of Zunhebato also visited the accident spot and inspected the vehicle and submitted his report with a report that the accident was due to its work in a very hilly terrain zone and while it was working the back hoe of it fell to sleep face of rock and loosing grip and rolled down the slopes around 200 feet from the work place and got totally damaged. After the accident opp.Party No.2 over telephone informed them that they were processing the claim but asked them to purchase the damage vehicle which will be deducted from total loss to be assessed ,but they informed Opp.Party No.2 vide their letter dtd. 17.11.07 that they are not interested to purchase the accidental vehicle as salvage value. On 15.9.07 another surveyor of the opp.parties went to Dimapur on 15.9.07 and surveyed the accident spot and the vehicle and submitted the final report to the opp.parties on 28.11.07 and assessed Rs.16,39,760/- on total loss basis . The vehicle if repaired will cost high amount which is estimated – The opp.party side refused to the settle the claim although their surveyor submitted report on 28.11.2007 with finding that the vehicle was totally damaged and the loss assessed at Rs.16,39,760/-. They entitled to get the entire sum assured i.e. Insured Estimated Value. The vehicle was purchased being financed by Industrial Bank Ltd.,Guwahati and they are paying handsome amount as installment per month. They also failed to engage the said vehicle in work owing to its total damage. They are suffering from total loss of business for such acts which causes heavy financial loss to them. They filed all the documents with Opp.Party No.2 and Opp.Party No.2 & 3 admitted that they accepted the findings of the surveyor that the vehicle suffered total loss in the said accident and they also forwarded the matter to Opp.Party No.1 for final approval. The surveyor appointed by the opp.parties was of Category No. 1 and a licensed surveyor of IRDA and as such the survey report submitted by him on 28.11.07 cannot be thwarted by the opp.party at their own whims. The insurance investigator appointed by the opp.parties , namely Sri Pronay Das issued a letter to DTO, Dimapur  on 28.2.08 requesting him to submit a report as to fitness of the said vehicle and the latter also on 28.2.08 forwarded the report to the said insurance investigator. After receiving that report also, the opp.parties has not settled the claim. They insured the said vehicle with the opp.party paying requisite premium as per “package policy” offered by the opp.party, but the opp.party voluntarily neglected to settle the claim and herebyput them in loss of livelihood and in mental agony. Finally the Opp.Party No.1, after six months of taking over the case vide a letter informed them that the claim has been repudiated due to non-coverage of risk appeared out of overturning of the said vehicle. The repudiation is an illegal act and colourfull exercise of power on the part of the opp.parties. They , then approached Opp.Party No.3 with representation on 31.12.08 with a request to furnish all the relevant documents under RTI Act,2005 and all the documents were furnished to them. Opp.Party No.1 most illegally repudiated their claim although in the said accident the vehicle was totally damaged and damage by overturning of the vehicle is covered under the policy. The repudiation of the claim was done only on some flimsy grounds, and hence the repudiation cannot be accepted. As their vehicle is excavator/backhoe loader it has come under purview of miscellaneous type vehicles, but only to misguide and harass them in case of claim,the opp.party knowingly and voluntarily issued the same for some unscrupulous means of exploitation to them. They have come to know about the said policy only 21.7.08, when Opp.Party No.1 issued the repudiation letter, Insurance policy issued by the opp.parties no where it was written that in the commercial vehicle bond that an extra premium has to be paid for “overturning” and they were also totally unaware of the same. Due to lack of knowledge and due to being misguided by the opp.parties, they could not raise the same before the opp.party at the time of issuing the policy. Opp.Party No.3 had made a fraud just to please the complainant firm, by handling over the Cover Note; and falsely advised them that the vehicle was properly insured with them w.e.f. 14.8.06 to 13.8.07. The opp. parties   committed deficiency in service towards them by illegally repudiating their claim and the opp.parties are liable to pay them Rs.19,76,733/- with interest at the rate of 9% p.a. w.e.f. from 21.7.08 which includes value of total loss of vehicle i.e. Rs.16,39,760/-, interest up to date i.e. Rs.1,84,473/-, recovery charge Rs.2,500/-and compensation for putting mental agony etc. Rs.1,50,000/-.
3. The gist of the pleading of Opp.Party No.1,2 & 3 is that the complaint is not maintainable in the present forum; the complaint has no right or locus standi to sue the opp.parties; the complaint is barred by law of limitation, estoppels and acquisance. This forum has no territorial jurisdiction to adjudicate upon the dispute  having cause of action  arose at Nezini village under Ahunato P.S. Nagaland. The pleading of the complainant in para 1 to 21 in their complaint are denied by them. No additional premium has been paid for inclusion of damage by “overturning”. The opp.party did not harass the complaint side. The pleading of the complainant in para 22,23,24 and 25 of the complaint petition are not wholly correct. The complainant is not entitled to any amount from them. The complainant filed the complaint with some get-up story with a view to have an un-due advantage over the opp.parties. The complaint petition are liable to be dismissed with a compensatory cost in favour of the opp.parties.
4.  We have perused the pleading as well as evidence of the parties and found that both sides admit  that,                                              I)The complainant M/s Ansari & Co. is a partnership firm consisting of three members namely  Altaf Ali Ansari, Mr.Shamshad Azam & Abdul Waheb which was associated vide Deed No.874/07 dtd. 10.4.07 and had used to do the construction work under P.W.D. department of Nagaland and had been registered as first class Government Contractor/ Builder and Supplier vide registration No. NPW/Class1/4 having its place of business at Golaghat road, Dimapur, Nagaland.

II)        The complainant’s firm purchased one Terex Vectra backhoe loader (Excavator) being Model No. TX 76010M24M Backhoe loader  for  their  livelihood  from  one  Terex  Vectra  Equipment  (P) Ltd. , Udyug Nagar, Greater Noida on 17.8.06 vide invoice No.E601212,Chassis No. TVESC12AQ-0867600773, Engine No. 4H2607/0600317   being   financed   by   bank   and  the same was registered by D.T.O., Dimapur, Nagaland  vide its registration No. NL 01A1435 and the purchase value of the said vehicle is Rs.17,35,000/- and it was insured with Oriental Insurance Co. Ltd., Maligaon Branch, Guwahati vide policy No.321104/2007/1388  which was effective from 14.8.2006 to midnight of 31.8.2007.

III)The complainant’s firm took a road construction work on contract under P.W.D. department, Nagaland vide work order dtd. 6.4.2006 order No. CE/R & B/ R & B2005-06 and it was assigned the construction work from village Aghunato to Asuto via Satami Road (16 km) under Government of Nagaland; and on 23.1.07 at about 3-30- p.m. while the said vehicle was in work it suddenly skidded from the track due to loose soil and rolled down from hill into a gorge about 200 feet below and it was fully damaged due to its heavy impact with large boulder and rock; and its driver sustained injuries. About the accident the complainant’s firm informed Aghunato Police station of Nagaland on 24.1.2007 and the police registered a case under GDE No. 109 dtd.24.1.2007 and investigated the case and found that it had suddenly skidded from the track due to loose soil while it was working in the said road and rolled down on the hill slop about 200 feet below from the work place and it was totally damaged and was recovered from the place of accident by the police, and was handed over to the complainant in zimma.

4. After the said accident the complainant firm informed the insurance (the opp.party) about the accident and also filed claim with them and the insurer side engaged their surveyor Mr.Rubul Dutta who physically visited the accidental spot on 26.1.07 and also investigated the concerned vehicle at the spot and submitted the report to the opp.parties on 10.2.2007 highlighting that the damage to the vehicle was caused due to impact of the accident and the loss assessed is total loss. On the request of the complainant side, the MVI of Zunheboto inspected the spot and the vehicle and submitted his report on 18.5.2007 to the officer-in-charge of Zunheboto and he also found that the said vehicle had fallen to steep face of rock loosing grip and rolled down the slop around 200 feet from the work place and was totally damaged . Thereafter the opp.party side also engaged another surveyor Mr. Aswini Sarma who also went to Dimapur on 15.9.07 to survey the accident and accordingly he did the survey and found that the vehicle was totally damaged in the said accident and he assessed the vehicle is beyond repairable and total loss assessed at Rs.16,39,760/- and submitted his report on 28.11.07.
5.          Thus, it is crystal clear that the complainant had purchased the said Excavator from Terex Vectra Equipment P.Ltd., Udyug Nagar, Noida on 17.1.06 paying the value of Rs.17,35,000/- and it was insured with Oriental Insurance Co. Ltd., Maligaon branch Opp.Party No.3 and engaged it in construction work of road at Nagaland in the village Nezini,  Aghunato after getting a work order from Chief Engineer P.W.D. , Nagaland; and while it was working in the said place in construction of the road on 23.1.07,it had suddenly skidded from the track due to loose soil and rolled down on hill into a gorge about 200 feet below, and later on it was recovered from the spot , but it get fully damaged without any scope of repairment; and the opp.parties surveyed the accident and the vehicle through its surveyor who submitted the report vide report 28.11.07 assessing the total loss at an amount of Rs. 16,39,760/- giving after finding that it was fully damaged in   the said accident. It is also found that the vehicle suffered damaged in the said accident within the coverage of insurance policy issued by Opp.Party No.3 vide policy No. 321104/2007/388 dtd. 14.8.06. It is also found that the vehicle had met the said accident in the legitimate use of the said vehicle.
6. Now, the moot question is whether the opp.parties are liable to compensate the complainant for such damage of their vehicle. The complainant sides’ learned advocate Mr.Khanindra Lahkar submits that as per the insurance policy quoted above the complainants’ are entitled to get compensation from opp.parties while the opp.party sides’ advocate Mrs. Mamoni Chowdhury submits that although the vehicle was insured with the opp.parties, the claimant side had not paid additional amount at the assurance  of the policy to cover “overturning” and that why the vehicle overturned in the said accident and fell down in the gorge and get damaged and hence opp.parties are not liable to compensate the claimant for such damaged. The complainant sides’ learned advocate Mr. Lahkar submits that the policy concerned is a “package policy” and premium paid at the time of assurance of the policy includes also additional premium to cover overturning and that having it’s a package policy where no additional premium to cover overturning is required to be paid separately. In support of their respective argument, learned advocates of both sides file some case laws. Both side learned counsel admits that it is a case of “overturning” and in the said overturning the vehicle skidded  from the road and fell down in a 200 feet deep gorge and got fully damaged.

Thus, it is crystal clear that while the said vehicle was working, it had overturned and skidded off the road and fell down into a 200 feet deep gorge and got fully damaged.

5) Now, the next moot question is whether the damage sustained by that vehicle due to “overturning “ is covered by the instant policy. The policy is an admitted policy covering the period when the vehicle had met with the accident. The complainant sides counsel ld advocate Mr.Khanindra Lahkar submits that the instant policy is a package policy covering all sorts exigencies to be met by the vehicle including the damage sustained due to overturning having the premium paid covers all such exigencies which is inherent in the premium where it is not required to mention specifically that a certain amount is as premium for covering “overturning”. Reversely, the opp.party sides plea is that for “overturning” a specific amount of premium is requiredto be paid under the policy issued that was issued to the complainant and the complainant had not paid any amount in such head and hence the policy issued to the complainant does not cover overturning and hence, they are not liable to pay any compensation to the complainant and therefore the repudiation of the claim of the complainant cannot be said to be an act of deficiency of service towards the complainant. The opp.party sides ld. advocate Mrs. Mamoni Choudhury vehemently submits the said plea.

6)     Before entering into discussion of those pleas of the parties , now let us see what is the type of the vehicle and the policy. The complainant side plea is that the vehicle concerned is a  Miscellaneous type of vehicle and the policy is a “Package policy for Miscellaneous types of vehicle”.

7)    We have, after perusing the policy , found that the complainant paid premium in the head of “ own damage” Rs.19,808.00 and in the head of basic liability Rs.785/- and in the head of “legal liability employee/ Driver” Rs.50/- in total Rs.23,171.00. It is seen that no separate amount specifically mentioning premium for covering “overturning” was paid.

Ld advocate Mr.Lahkar submits that the premium for overturning is inclusive in the premium paid and it is not required to be fractionalized.   The opp.party sides’ counsel ld advocate Mrs. M. Choudhury submits that the endorsement No. 47 of Indian Motor Tariff  (IMT -47) is a condition of the instant policy, and as per such endorsement if extra premium for covering damage by overturning is required to be paid but the complainant had not paid such extra premium and hence the instant policy does not cover the damage of the vehicle of the complainant which was caused by overturning . In support of her plea, she cites the ratio of decision of Hariyana State Commission in National Insurance Co.Ltd.(App.opp.party)  vs.Green Valley Ply Wood Limited, First Appeal No. 2728/2006 (judgment delivered on 29.8.2011). In this case, both sides admit that Endorsement No. 47 of Indian Motor Tariff is applicable in the proceeding in our hand. But the complainant sides’ counsel ld advocate Mr.Lahkar submits that the very Endorsement 47 of IMT. Envisages that in a package policy where the additional premium for inclusions of damage by overturning is paid then the insurer is required to omit para (a) of 47 SMT, but the instant policy being a package policy for miscellaneous types vehicles it includes all liabilities including damages or loss resulting from overturning and the premium paid by the complainant includes premium for coverage of IMT 47 and as such, the insurance company rightly omitted the para (a) i.e. section I in the present policy. After perusing the insurance policy (Ex A) it appears to us that it is a package policy and the complainant had paid Rs.23,171/- in total as premium of the relevant year wherein Rs.19,808’96/- for own damage, Rs.785/- for basic liability and Rs.50/- for legal liability employee/driver, but paid no amount in the head of overturning separately. No question is whether the premium required to be paid in the head of over-turning is inclusive in the premium paid. Ld advocate Mr.Lahkar submits that when premium for coverage certain fact required to be excluded then such exclusion shall be specific and in the instant case coverage of overturning was not excluded and hence no written exclusion is available in the instant policy, meaning thereby the   premium required to be paid for overturning is inclusive in the premium already paid. In support of his plea, he cites certain case-laws. We have found that in State Consumer Disputes Redressal  Commission Himachal Pradesh in Des Raj Thakur (Applicant) vs. M/S Tata AIG Insurance Co.Ltd. (First Appeal No. 228/2014) (date of judgment  8.10.2014) observes that it is for the insurance company to prove that no premium for covering the risk of damage due to overturning within the meaning of IMT-47, was paid by the insured , particularly when, the policy and cover-note do not show break up of the premium in terms of various IMT s. In Oriental Insurance Company Limited vs. Jasbir Singh (FA No.1078/2013 date of judgment 27.1.2014) State Consumer Disputes Redressal Commission, Punjab observes that the circular issued by the Head office of Oriental Insurance Company Ltd. on 8.4.2008 provides that additional premium @ 0.5% of I.D.F. of the vehicle should be inclusive to cover the risk of overturning , but in case the client opts out of this cover in writing, then the said additional premium should not be charged. Basing on the ratios of above two cases, we are of opinion that after issuance of the Circular dated 8^th April,2008 issued by Head of office of the opp.party (Oriental Insurance Company), the  premium paid in a package policy includes the additional premium @ 0.5% of the IDV covering the damage by overturning although it is not shown separately but when the insured opts out of this coverage in writing then only the said additional premium should not be charged. In the case in hand, it is found that the complainant paid premium of Rs.19,808/- in the “own damage head” and he has not opted out of coverage of the damage by overturning either in writing or verbally. It is also found that the opp.party has no plea to the effect that the complainant opted out of that coverage . Thus, it is crystal clear that the complainant side has not opted out of coverage of damage caused by overturning . It is seen that Supreme Court of India in General Assurance Society Ltd. vs. Chandoull Jain(1966 Legal Eagle (SC) 43) observed that in contract of Insurance, in   case of ambiquity or doubt, the contract is to be construed against the insurance company but not against the insured. Therefore, we hold that the premium paid by the complainant includes additional premium of @ 0.5% of IDV of the vehicle of the complainant which is required to cover the damage caused by overturning. Therefore, we hold that the instant insurance policy does cover the damaged caused by overturning and hence the opp.parties are liable to compensate such damage to the complainant and hence the act of repudiation of claim of the complainant by the opp.parties is an illegal act meaning thereby they committed deficiency of service towards the complainant. Hence, the complainant, being a consumer of service under the opp.parties , is entitled to get relief from this forum.

8)         The damage of the vehicle is admitted by the opp.parties and for that damage the complainant had no contributory negligence. The complainant seeks Rs. 16,39,760.00 in the head of the loss of the vehicle. It is found that the said vehicle was completely damaged which cannot be made pliable after repairing. From Ext.2 (the invoice of the purchase of the said vehicle) it is seen that the complainant purchased the vehicle on 17.8.06 paying total price of Rs.17,35,000/- inclusive with excise duty and sales-tax but it was insured with value of Rs.16,48,000/- and the accident had taken place after five months of its purchase. The complainant side states that the surveyor of Opp.Party No. 2 surveyed the vehicle after the accident and found that the total loss is Rs. 16,39,760/- and he also submitted his report to Opp.Party NO.2 on 28.11.2007. This fact is not denied by the opp.party either in the pleading or in evidence. Thus, it is held that the surveyor of the opp.party surveyed vehicle after the accident and found that the vehicle was totally damaged in the said accident and the total loss is Rs.16,39,760/- . Therefore, we hold that the opp.party is liable to pay Rs.16,39,760/- to the complainant for the loss of his vehicle, Secondly, it is found that for not honouring the claim of the complainant, the    opp.parties are liable to pay interest on that amount, which , according to our opinion, shall be at the rate of 9% p.a. and the total interest from 21.07.08 (date of issuing repudiation letter) till the date of filing the case (17.12.09) is Rs.1,84,473/- and the opp.parties are liable to pay that amount to the complainant and thereby, on the date of filing the complaint, the complainant is entitled to get Rs.18,24,233/- , in total against the value of his vehicle. Thirdly, by illegally repudiating the claim of the complainant, the opp.parties side caused harassment to the complainant and put its partners in mental agony. Hence , the opp.party side is laible to pay atleast Rs.20,000/- to the complainant as compensation for  causing harassment to the complainant and for putting its members in mental agony. Fourthly, for no fault of the complainant, the complainant side had been compelled to prosecute the opp.parties by paying advocates’ fees and bearing other ancilliary expenditure which cannot be avoided. So, the opp.party side is liable to pay the complainant atleast Rs.20,000/- in the head of the cost of the proceeding.

9)           Because of what has been discussed as above, the complaint is allowed on contest and the opp.parties namely  the Oriental  Insurance Company Ltd., are directed to pay (the complainant, (M/S Ansari and Company)  Rs.18,24,233/- (Rupees eighteen lakhs twenty four thousand two hundred thirty three)only against the value of the damaged vehicle and to pay compensation of Rs.20,000/- (Rupees twenty thousand)only for mental harassment to the complainant and putting its members in agony, as well as Rs. 20,000/- (Rupees twenty thousand)only as cost of the proceeding, within two months, to which, they are jointly and severally liable, in default of which, it shall also carry interest at the rate of 9% p.a.. It is also directed that after full satisfaction award, the opp. parties would be entitled to value of the salvaged parts of the vehicle.

Given under our hands and seal of this forum on this day 21^st  April, 2016.

Free copies of judgment be delivered to the parties.

                                                                         (Md.S.Hussain)

                                                                          President

                                                                      (Mr.U.N.Deka)

                                                                             Member