KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM.
APPEAL NO.316/11
JUDGMENT DATED 28.11.2011
PRESENT
SHRI. M.V. VISWANATHAN -- JUDICIAL MEMBER
SHRI.M.K.ABDULLA SONA -- MEMBER
M/S.National Insurance Co.Ltd;
Divisional Office, Damodara Chamber,
P.BNo.48, Statue junction, -- APPELLANT
Tripunithura – 682 301.
(By Adv.M.Nizamudeen)
Vs.
1. A.P.Varkey Mission Hospital,
Arakkunnam Thottappady,
Arakkunnam P.O;
Reptd. by its Medical Director,
Prof.Dr.C.A.Rajan.
2. Kerala Surgical Equipments Co; -- RESPONDENTS
41/2028, MES Centre, Near
Town Hall, Banerji Road,
Ernakulam, Kochi – 18.
3. Allerger’s Medical Systems Ltd;
Corporate Office, SCO 71,Sector 20C,
Chandigarh – 160 019.
4. Technical Devices,
6/24 E-1, Hasna Complex,
II Floor, Near English Church,
Kannur Road, Calicut-11.
JUDGMENT
SHRI.M.V.VISWANATHAN,JUDICIAL MEMBER
Appellant is the first opposite party and respondents 1 to 4 are the complainant and opposite parties 2 to 4 respectively in CC.No.228/07 on the file of CDRF, Ernakulam. The complaint therein was filed alleging deficiency in service on the part of the first opposite party in repudiating the insurance claim preferred by the complainant/insured with respect to the Standard Fire and Special Peril Policy. The first opposite party/National Insurance Company Ltd; entered appearance and filed written version denying the alleged deficiency in service. It was contended that the damage to the subject machine (C-Arm machine) was not covered by the policy of insurance issued by the first opposite party in favour of the complainant. Thus, the first opposite party justified their action in repudiating the insurance claim preferred by the complainant/insured.
2. Notice to the opposite parties 2 to 4 was dispensed with by finding that they are un-necessary parties to the complaint. So, no notice was served on opposite parties 2 to 4 and no relief has been awarded against them.
3. The Medical Director of the complainant Hospital was examined as PW1. Exts.A1 to A7 documents were marked on the side of the complainant. From the side of the first opposite party, DWs 1 and 2 were examined. Exts. B1 to B5 documents were also marked on the side of the first opposite party/National Insurance Company Ltd. On an appreciation of the evidence on record, the Forum below allowed the complaint in CC.No.228/07 directing the first opposite party to pay a sum of Rs.1,61,334.34 being the insurance claim with interest at the rate of 9% per annum from the date of complaint till realization. Aggrieved by the said order dated 26.10.10, the present appeal is filed by the first opposite party therein.
4. We heard the learned counsel for the appellant/first opposite party and the first respondent/complainant. Though notice was serviced on respondents 2 to 4, there was no representation for them.
5. The learned counsel for the appellant/first opposite party much relied on General Exclusions Clause No.7 and argued for the position that the subject machine was an electrical machine and so the damage caused to the subject machine by lightning is not covered by B1 Standard Fire and Special Perils Policy. He further submitted that the Forum below has gone wrong in not deducting the policy excess of Rs.10,000. Thus, the appellant prayed for setting aside the impugned order passed by the Forum below. On the other hand, the counsel for the first respondent/complainant argued for the position that the subject machine namely, C-Arm machine is an electronic machine and so the damage caused to the said machine by lightning is to be treated as the damage covered by the policy. He also relied on the testimony of DW2, the approved surveyor who submitted Ext.B4 survey report. Thus, the first respondent prayed for dismissal of the present appeal.
6. There is no dispute that the subject machine namely C-Arm machine was covered by Ext.B1 Standard Fire and Special Perils Policy. The peril in this case occurred on 10.5.06. Admittedly on the date of the said peril, the subject machine was covered by the Standard Fire and Special Perils Policy. The said policy was effective during period from 6.12.05 to 5.12.06. There is also no dispute that the subject machine (C-Arm machine) was damaged and the complainant/insured submitted the insurance claim for the damage caused to the said machine. The complainant preferred claim for Rs.2,42,000/-.
7. The appellant/first opposite party National Insurance Company admitted B1 Standard Fire and Special Perils Policy issued in favour of the first respondent/complainant insuring the hospital building and the hospital equipments etc. The subject machine was also covered by B1 Standard Fire and Special Perils Policy. Appellant/first opposite party Insurance Company deputed an insurance surveyor who submitted B4 Survey report. He assessed the damage to the insured C-Arm machine at Rs.1,61,334.34.
8. The definite case of the appellant/first opposite party is that the C-Arm machine is an electrical machine. But, there is nothing on record to substantiate the case of the appellant/first opposite party that the C-Arm machine is an electrical machine. On the other hand, the available materials on record and the circumstances of the case would show that the C-Arm machine is an electronic machine. DW2, the Insurance Surveyor who submitted Ext.B4 survey report in his oral testimony has admitted that he sought the assistance of electronic experts to assess the damage. DW2 has categorically deposed that he availed the service of Electronic Engineer Mr.Sujithkumar and on the basis of that expert opinion he assessed the damage to the C-Arm machine. The aforesaid deposition of DW2 would give a clear indication that the subject machine namely C-Arm machine is an electronic machine. There is nothing on record to substantiate the case of the appellant/first opposite party that the C-Arm machine is an electrical machine. It is reported by the expert commissioner in his B4 survey report that C-Arm machine is being used by orthopedic surgeons to handle implantations surgeries. It would also make it clear that the C-Arm machine is having the main components such as 1) Control console 2) The C-Arm 3) Image Intensifier 4) X-ray tube 5) PHS/table couch 6) The display (monitor). The description of the aforesaid components would make it clear that C-Arm machine is an electronic machine. Thus, the contention of the appellant/first opposite party that C-Arm machine is an electrical machine cannot be upheld. If that be so, Clause 7 of General exclusions of B1 Standard Fire and Special Perils Policy has no application in the present case. It can very safely be concluded that the damage caused to C-Arm machine is covered by B1 Standard Fire and Special Perils Policy. So, the appellant/first opposite party cannot be justified in repudiating the insurance claim vide B5 repudiation letter dated18.8.06. The aforesaid repudiation of the claim would amount to deficiency in service.
9. Appellant/first opposite party Insurance Company has not submitted any objection to B4 survey report. The approved surveyor assessed the net loss caused to the C-Arm machine at Rs.1,61,333.34. The Forum below has only awarded the net loss assessed by the approved surveyor. But, the Forum below failed to make deduction of the policy excess which is specified in the policy conditions. As per Clause (1) of General exclusions a minimum of 10,000/- is to be deducted from the aforesaid sum of Rs.1,61,333/-. So, the impugned order passed by the Forum below regarding quantum of compensation is to be modified. Thus, this State Commission is pleased to reduce the compensation amount toRs.1,51,333/-.
10. The Forum below has only awarded reasonable interest at the rate of 9% per annum from the date of the complaint till realization. So, the order awarding interest at 9% is upheld. Thus, the appellant/first opposite party is liable to pay interest at the rate of 9% per annum from the date of complaint till realization on the insurance claim amount of Rs.1,51,333/-. In all other respects, the impugned order passed by the Forum below is confirmed.
In the result, appeal is allowed partly. The impugned order dated 26.10.10 passed by CDRF, Ernakulam in CC.228/07 is modified and thereby appellant/first opposite party is directed to pay Rs.1,51,333/- being the insurance claim with interest at the rate of 9% per annum from the date of the complaint till realization. As far as the present appeal is concerned, the parties are directed to suffer their respective costs.
M.V. VISWANATHAN -- JUDICIAL MEMBER
M.K.ABDULLA SONA -- MEMBER
