Date: 10-04-2015

Sri Debasis Bhattacharya

The instant appeal arises out of the Order dated 09-06-2014, passed by the Ld. District Forum, Kolkata, Unit-II, in C. C. No. 376/2013, whereby the instant case has been allowed on contest, but without any cost against the OP Nos. 1 to 3. By such order, the Ld. District Forum has directed OP Nos. 1& 2 to pay a sum of Rs. 1,27,780/- to the Complainant.  Being aggrieved by and dissatisfied with the same, the Complainant thereof has preferred this appeal.

Case of the Complainant, shortly narrated, is that he submitted an insurance claim of Rs. 1,51,347/- to the OP Insurance Company against the damage caused to his Excavator machine during currency of the insurance policy in question.  The OP Insurance Company deputed their Surveyor to inspect the damaged machine.  He submitted requisite papers, as called for by the Surveyor to satisfy his need.  However, the Insurance Company, vide its letter dated 25-03-2013, repudiated his claim alleging willful act/negligence on his part.  So, he filed the instant complaint case before the Ld. District Forum in order to get his claim settled together with other relief(s) as per prayer of the complaint petition.

On the other hand, case of the OP Insurance Company, is that after inspection, the Surveyor reported that the Operator as well as the Insured tried to take out the excavator by running its engine itself applying excessive load, which caused damage to the engine and other parts.  According to Exclusion clause no. ‘O’ of the Insurance Policy, the Company shall not be liable under the policy in respect of ‘loss or damage directly or indirectly caused by or arising out of or aggravated by the willful act or willful negligence of the insured or his representatives’.  Therefore, on the basis of report of the Surveyor, they repudiated the claim and there was no deficiency on their part in doing so.

We are to consider in this appeal if the impugned order calls for any interference on account of factual/legal incongruity with the same, or not.

Decision with reasons

Ld. Advocate for the Appellant has submitted that although the Ld. District Forum arrived at a conclusion that the opinion expressed by the Surveyor was completely baseless and without any foundation, yet it directed the Respondent Nos. 1&2 only to pay the value assessed by the Surveyor, without passing any order for compensation, interest and legal cost, which if not considered, would also give an impetus to the Respondent Nos. 1&2 to repeat such wrongdoing in respect of the claims of other consumers.  In his initial inspection report, the Surveyor did not mention about any negligence on the part of the Appellant.  However, while preparing the final report, he cooked up a story of negligence/carelessness on his part without any basis whatsoever.  So, the Respondent Nos. 1&2 be directed to release payment of residual claim amount together with other relief(s), otherwise he would be highly prejudiced.  In support of his contention, the Ld. Advocate has referred to a decision of the Hon’ble National Commission, reported in I (2013) CPJ 568 (NC).

Ld. Advocate for the Respondent Nos. 1&2, on the other hand, has submitted that the Surveyor, who inspected the damaged excavator, found that the operator as well as the Insured tried to pull out the excavator by running its engine itself.  Because of application of excessive load, the excavator engine and other parts got badly damaged, thereby the Appellant made a willful breach of the aforesaid policy condition. Therefore, they rightly repudiated the claim of the Appellant.  The Ld. District Forum, while adjudicating the case, ignored the fact that loss or damage, caused to the insured machine, because of willful act/negligence of the insured or his representative, is a cogent ground for repudiation of a claim.  When efforts of the operator as well as the Insured failed, they reported the matter to the Insurance Company and also to M/s P.S.Earthmover Pvt. Ltd. to remove it with another excavator.  Fact remains that the said company, by engaging another excavator has somehow or otherwise managed to remove the present excavator from the mud and it is also evident from the Surveyor’s report that due to such removal by another Excavator, many of the parts, as listed in the assessment got damaged.  It has also been mentioned in the impugned order that Ld. Advocate for the Respondent Nos. 1&2 submitted before it that there was negligence on the part of the Appellant and the operator of the excavator for which said excavator got stuck in the mud and proper attention was not given by the operator for which the said machine got stuck in the mud where excavator should not have been operated.  This clearly shows gross laches on the part of the Appellant.  In any case, as per the direction of the Ld. District Forum, they have paid the awarded sum to the Appellant.  Therefore, the instant appeal be dismissed with cost.

The Surveyor vide his report dated 25-03-2013 concluded that the operator as well as Insured tried to take out the excavator by running its engine itself.  He further observed that excessive load was applied to the excavator engine wrongfully causing damage to the engine and other parts.  From the documents on record it transpires that the said Surveyor prepared another inspection report on 08-02-2013, which was countersigned by the Appellant.  On going through the said report, however, we do not find any adverse observation of the Surveyor as regards any palpable negligence/laches/carelessness on the part of the Insured or his operator, or even on the part of the agency, who removed the excavator.  The Surveyor surely owed an explanation to the Appellant as to why he did not utter a single word about any negligence on the part of either the Insured or the operator or the agency concerned, but went hammer and tongs with his allegations against them behind their back. However, despite receipt of notice from the Ld. District Forum, he chose to give it a miss.  Further, whether or not excessive load was applied by the operator in his bid to remove the excavator from the mud or such pressure was indeed beyond the permissible limit, cannot be ascertained with certainty save and except necessary mechanical/technical analysis report to this effect from the competent authority. Mere allegation is not evidence and is not equivalent to proof. 

On going through the assessment made by the Surveyor, we find that he has not allowed reimbursement in respect of some items, but no explanation is given why he did so.  Assessment cannot be done in a whimsical manner, proper justification should be there behind disapproval of every single rupee of a claim.  There is nothing on record to suggest that the Appellant was apprised of the reservation of the Surveyor before he embarked on replacing the parts concerned.  It is also noteworthy that Clause 2a of the terms and conditions of the policy under the heading ‘Basic Indemnity’ stipulates that, ‘….No deduction shall be made for depreciation in respect of parts replaced, except those with limited life…………….’  However, while assessing the loss, we find that the Surveyor applied uniform   depreciation @ 5% on all the parts. 

Also, it is noted in the survey report that Md. Alimuddin Ansari, Operator of the excavator, who deposed before him as a witness, stated that, ‘On 5.2.13 the excavator got stuck in mud.  I could not remove it from there.  Then I informed the owner.  He came and tried applying manual labour and log but failed.  Then he took help of M/s P.S. Earthmovers to remove it with another excavator.’  However, while concluding his report, he remarked that ‘As per the statement of operator, I understand there was willful act or willful negligence of Insured as well as Insured’s representative for pulling excavator out from muddy field by running its engine itself’.  Clearly, there is no symmetry in between the actual statement of the operator vis-à-vis inference of the Surveyor.  It is a clear indicator of the fact that the conclusion of the Surveyor is based on totally wrong surmises.  Quite naturally, the Ld. District Forum also observed that recommendation of the Surveyor to repudiate the claim was completely baseless and without any foundation.

Notwithstanding the Respondent Nos. 1&2 have taken the Appellant to task for operating the excavator in fishery area, the fact remains that the Surveyor has clearly mentioned in his final report that while on job, the excavator suddenly got stuck in soft mud.  Therefore, it is clear that the incident occurred accidentally.  The Respondent Nos. 1&2 have not placed any such document to show that fishery is a prohibited zone for operation of such type of machines. As such, the objection of the Respondent Nos. 1&2 in this regard is totally unfounded.  

Against the background of our foregoing discussion, we are of opinion that the Respondent Nos. 1&2 should pay compensation and litigation cost to the Appellant. 

In fine, the appeal succeeds in part.

Hence,

ORDERED

That the appeal be and the same is allowed on contest against the Respondent Nos. 1&2 and dismissed ex parte against the Respondent No. 3.  The Respondent Nos. 1&2 are directed to pay, jointly and severally, within 40 days from the date of this order, compensation to the Appellant in the form of interest @ 9% p.a. over Rs. 1,27,780/- (value assessed by the Surveyor) w.e.f. 25-03-2013 (date of repudiation) till full and final payment is made together with litigation cost of Rs. 5,000/-. The impugned order is modified accordingly.