THE CONSUMER DISPUTES REDRESSAL FORUM, KOTTAYAM
Present:
Sri. Santhosh Kesavanath P., President
Smt. Bindhu M. Thomas, Member
Sri. K.N. Radhakrishnan, Member
CC No. 24/2010
Tuesday, the 29th day of March, 2011
Petitioner : Prasanna Babu,
Friends Saw Mill,
Palakkal House,
Vazhoor P.O, Kottayam.
(By Adv. K.B Vijayakumaran Nair)
Vs.
Opposite party : United India Insurance Co.,
Divisional Office, M.C Road,
Kottayam – 1.
(By Adv. Satheesh Mathew Zacharia)
O R D E R
Sri. Santhosh Kesavanath P., President
Case of the petitioner filed on 4..2..2010 is as follows:
Petitioner is running a saw mill by name “Friends Saw Mill” at Vazhoor in Kottayam District. Petitioner is having a hydraulic mobile crane with registration No. KL 33/A 3200 having package policy for special type of vehicle, with policy No. 100502/31/08/01/00005609 Policy of petitioner and is valid from 14..10..2008 to 13..10..2009. On 24..3..2009 at about 5 pm , when the crane was in use in coop road at Kokkayar Village, vehicle overturned and thereby it was totally damaged. At the time of accident the vehicle was having a valid package insurance policy with the opposite party coving all risks. Petitioner submitted claim for damages for an amount of Rs. 2,02,127/- Opposite party rejected claim of the petitioner as per letter Dtd: 28..10..2009 for the reason “the insured has not opted for overturning risk cover, by paying additional premium”. The petitioner insured the vehicle on 13..10..2008 by paying a premium of Rs. 16,576/- towards motor package policy. The said policy again renewed for the period from 14..10..2009 to 13..10..2009 by paying a premium
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of Rs. 14,745/-. Now the stand of the opposite party is that premium for Rs. 16,576/- for the period from 14..10..2008 to 13..10..2009 is not covering overturning risk, where as the premium for Rs. 14,745/- paid for the period from 14..10..2009 to 13..10..2010 is covering over turning risk. Opposite party took a stand that the bigger premium is not covering overturning risk but lesser premium will cover the same. According to the petitioner act of the opposite party in not admitting the claim of the petitioner amounts to unfair trade practice and is a deficiency in service. So the petitioner claims an amounts of Rs. 2,02,127/-, amount incurred by the petitioner for repair of vehicle, along with 12% interest per annum from 28..10..2009 till payment. Petitioner also claims costs of the proceedings.
Opposite party entered appearance and filed version contenting that petition is not maintainable. The policy of the petitioner is admitted . During the policy period, on 24..3..2009, the crane met with an accident opposite party arranged a spot survey. The accident occurred while lifting the body of a dead elephant using the crane. According to the opposite party at the time of accident the crane was having a valid miscellaneous and special type of vehicle package policy. The claim of the petitioner submitted on 13..10..2009 was repudiated as per vide letter Dtd: 28..10..2009. The reason for repudiation is that “ the insured has not opted for overturning risk cover by paying additional risk cover, by paying additional premium to include IMT 47 in the policy” and hence the claim is non payable. Petitioner insured the crane for Rs. 11,70,400/- and the remittance of the premium of Rs. 14,753/- is admitted. Policy was renewed from 14..10..2009 to 13..10..2010 by paying premium, of Rs. 14,745/- a lower premium, due to lesser value of vehicle IDV. According to the opposite party claim of the petitioner is repudiated on valid
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grounds and there is no deficiency in service on the part of the opposite party and opposite party pray for dismissal of petition with their costs.
Points for determinations are:
i) Whether there is deficiency in service on the part of the opposite party?
ii) Relief and costs?
Evidence in this case consists of affidavit filed by both parties and Ext. A1 to A8 documents on the side of the petitioner and Ext. B1 and B2 documents on the side of the opposite party.
Point No. 1
Case of the petitioner is that the repudiation of the claim of the petitioner amounts to deficiency in service and unfair trade practice. Petitioner produce repudiation letter Dtd: 28..10..2009 issued by the Branch Manager of the opposite party said document is marked as Ext. A4. In Ext. A4 opposite party stated that while taking the insurance policy the insured / petitioner has not opted for overturning risk covered by paying additional premium, to include IMT 47 in policy. So, the claim of the petitioner is not admissible. Petitioner produced the disputed policy covering the period from 14..10..2008 to 13..10..2009 said document is marked as Ext. A1. Opposite party also produced a copy of the policy covering the period from 14..10..2008 to 14..10..2009. Said document is marked as Ext. B1. In Ext. B1 it is stated that the policy is subject to terms and conditions and IMT endorsement printed here in. The IMT shown in the Ext. B1 policy is IMT 5, 21,24,40. Opposite party produced the policy issued by the opposite party from 14..10..2009 to 13..10..2010. Said document is marked as Ext. B2. In Ext. B2 the IMT endorsement is IMT 5, 21,47,24, 37, 40 . So, the argument put forth by the learned counsel for the opposite
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party is that at the time of accident vehicle has no coverage with an IMT endorsement of 47. Policy produced by the petitioner is marked as Ext. A1. The counsel for the opposite party argued that as per the policy given by the opposite party there is no such endorsement with regard to IMT 47.
Ext. A1(a) is the part of the Ext. A1 policy. On perusal of Ext. A1 (a) the limitations of use are seen stated as (a) Organized racing (b) Pace making (c) Reliability Trails (d) Speed Testing etc. The moot point for analization is whether the
repudiation of policy on the ground that the risk of over turning is not covered by the policy is justifiable or not. It is contented by the opposite party that as per the provisions the over turning risk is not covered under the policy. We cannot accord any agreement to this submission. Opposite party has no case that vehicle was used for some purpose for which it was not meant to be used.
The vehicle sustained damages while it was working. No where in Ext. A1 policy certificate produced by the petitioner or Ext. B1 policy certificate (produced by the opposite party) it is stated that an accident occurred by overturning of the vehicle is excluded. Needless to say damage sustained to the vehicle in an accident is covered by the policy. The expression “accident” generally means some unexpected event happening without design, even though there may be negligence (Halsbury’s laws of England 2nd Ed. Vol. 34 page 816) The word ‘accident’ excludes the operation of natural causes, and implies the intervention of some cause which is brought in to operation by chance and which can therefore be described as fortuitous. In it’s most commonly accepted meaning or in it’s ordinary or popular sense as understood by an ordinary consumer is a fortuitous circumstance, even, or happening without any human agency, or if happening wholly or partly through human agency
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an event which under the circumstances is unusual and unexpected by the person to whom it happens. Undeniably overturning of the vehicle is an unforeseen event and is an accident.
Opposite party contends that the risk of overturning is not covered under the policy. There is no evidence placed before us to show that the policy issued for the vehicle specifically stated that an accident occurred due to overturning of the vehicle is excluded. It is the case of opposite party that in the subsequent year complainant had paid extra premium for covering the risk of overturning. Ext. B2 is the policy certificate issued for the subsequent year where it is seen that opposite party has collected additional premium to cover the risk of overturning. Only because parties to the contract have created a new condition in a subsequent year does not take away the liability cast upon opposite party in the policy that has already been issued unless the risk has been stated directly and specifically as excluded. Nothing can be inferred in to the conditions of a policy.
Similar observation has been made by the Apex Commission in M/s. Essen Enterprises Vs. The National Insurance Co. Ltd. R.P No. 2646/2002 decided on 01..3..2005 reported in 2005 NCJ 267 (NC). We therefore hold that the repudiation of the claim on the ground that the risk of overturning is not covered is unjustifiable. We find opposite party deficient in service.
The petitioner claimed an amount of Rs. 2,02,127/- , the amount incurred for repairing of the vehicle. Opposite party in their version or else in the proof affidavit or in the version has not disputed bill cost incurred by the petitioner to repair the vehicle. Further more no survey report showing the assessment made by the surveyor is produced. There is absolutely no evidence adduced by the opposite party regarding the assessment of the loss. Ext. A5 and A6 shows the details of the damages. From Ext. A5 invoice issued by the TVS it can be seen that there was damages to the cabin
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fab assy , over flow pipe etc. etc. The total amount as claimed by the petitioner without any contra evidence in our view is to be allowed and the petitioner is entitled to this amount. Petitioner also claims interest at the rate of 12% per annum from 28..10..2008 till payment. In our view allowing an interest at the rate of 9% per annum from the date of complaint till payment is reasonable. So, point No. 1 is found accordingly.
Point No. 2
In view of the finding in point No. 1, Petition is allowed. In the result petition is allowed. Opposite party is ordered to pay an amount of Rs. 2,02,127/- with 9% interest per annum from the date of complaint till payment. Order shall be complied with within one month of the receipt of the copy of this order.
Dictated by me, transcribed by the Confidential Assistant, corrected by me and
pronounced in the Open Forum on this the 29th day of March, 2011.
Sri. Santhosh Kesavanath P., President Sd/-
Smt. Bindhu M. Thomas, Member Sd/-
Sri. K.N. Radhakrishnan, Member Sd/-
APPENDIX
Documents for the Petitioner:
Ext. A1: Policy in the period from 14..10..2008 to 13..10..2009.
Ext. A1(a) Policy page No. 2 of 4, and 3 of 4 of policy
No.100502/31/08/01/00005609.
Ext. A2: Copy of the policy for a period from 14/10/2009 to 13..10..2010
Ext. A3: Copy of receipt dtd: 13..10..2010
Ext. A4: Copy of the repudiation letter dtd: 28..10..2009
Ext. A5: Retail invoice of Fax Dtd: 22..6..2009
Ext. A6: Retail invoice from TVS Dt: 1..7..2009
Ext. A7: Copy of cash voucher Dtd: 25..3..2009
Ext. A8: Copy of bill No. 528
Documents for the Opposite party
Ext. B1: Policy for a period from 14..10..2008
Ext. B2: Policy for a period from 13..10..2009 to 14..10..2010.
By Order,
Senior Superintendent
