This is an application u/s.12 of the C.P. Act, 1986.

          Complainant by filing this complaint has submitted that he has one Tata Hitachi Ex-70 Excavator machine – SI No.0703-8362, Year-2012 for a sum of Rs.26,50,000/- having Contractor Plaint and Machinery Insurance Policy No.OG-13-2401-0410-00000139 for a period of 02-11-2012 to 01-11-2013 issued by Bajaj Allianz General Insurance Co. Ltd.

          While the said Excavator was working in the fisheries at Taldi, Canning, 24 Parganas (S), accidentally got stuck in the mud and grounded on 05-02-2013 and could not be lifted on its own power and complainant immediately reported the matter to Sales Manager of P.S. Earthmover Pvt. Ltd. on phone and also to one Kunal Khanna of Bajaj Allianz and informed him about the accident on the same day and Sri Satyaki Kar also mailed to Sri Kumal Khanna of OP1 on 06-02-2013 requesting him to contact with the complainant over phone to collect the information of accident.   Therefore, Mr. Khanna contacted the complainant when detail position of the machine was informed to hbim and as per his verbal advice complainant made arrangement for towing the machine for repairing.  Thereafter, the manufacturer and the insurance company made conversation with the manufacturer and Insurance Company, P.S. Earthmover Pvt. Ltd. issued a letter to the complainant on 06-02-2013 confirming that the equipment had grounded and stuck in such a way that it cannot be crawled back on its own power.  So, it must be towed to bring to their workshop with the help of other rescue machine and as per verbal consent as given by Kunal Khanna of Bajaj Allianz complainant proposed to the manufacturer to remove the same and it was removed by another machine to the workshop of the manufacture for repair.

          Subsequently, Goutam Bose was deputed on 08-02-2013 as surveyor of the Insurance Company to inspect the loss or damage and complainant supplied all papers and documents required by the surveyor.  Thereafter, surveyor inspected and submitted his report and surveyor submitted report after ascertaining loss and mentioned that there was willful act and negligence on the part of the complainant for pulling out the said machine from the mud forcefully and same was lifted and severe damages due to over pressure of the engine.  Accordingly, the claim was reported under Exclusion Clause ‘O’ of the said policy.

          But fact remains OP3 did not make any comment in regard to primarily inspection report on 08-02-2013.  But fact remains complainant has no excuse with the survey report and insurance company being a private one does not fall within the purview of RTI Act, 2005 and, as such, complainant does not know the action of removing the equipment by supplier with the consent of all can be treated as willful act or negligence when admittedly the fact remains the equipment cannot crawl back on its own power.  As such, complainant made protest against the decision of the of repudiation vide their letter dated 11-04-2013 but unfortunately no reply was received till date.  It is further alleged that a sum of Rs.2,01,347/- was incurred as expenditure for repairing the said Excavator and out of that claim complainant has claimed 1,51,347/- which is payable underwrite towards the policy excuse and complainant has claimed arbitrary repudiation of OP has caused huge loss, mental pain and agony and in the above circumstances complainant has prayed for redressal.   

On the other hand OP Bajaj Allianz Insurance Company by filing written statement submitted that the present complaint is not maintainable in view of the fact.  No doubt, complainant informed about the incident to the insurance company and on receipt of the intimation of aforesaid incident OP immediately on 07-02-2013 appointed an IRDA licensed independent surveyor cum loss assessor, Mr. Gautam Basus to investigate and also to assess the quantum of accidental loss suffered  by the insured and said surveyor visited the site on 08-02-2013 and submitted report to the effect that operator as well as insured tried to take out the Excavator by running its engine itself and due to excessive load applied to the Excavator engine wrongfully caused damage to the engine and other parts and accordingly, Exclusion Clause No.’O’ of the terms and conditions of the insurance the company shall not be liable under the policy to pay any loss or damages and for which there is no laches and negligence on the part of the OP and fact remains loss or damages directly or indirectly caused by or arising out of or aggravated by the willful act or willful negligence of the insured or his representative as a clause as per policy and so the complainant is not entitled to get the benefit of the said policy and thus OP prayed for dismissal of the same as same is vexatious one.

Decision with Reasons

On an introspective study of the complaint and the written version including the Clause ‘O’ of the policy and at the same time the surveyor’s report dated 25-03-2013 it is clear that the occurrence took place on 05-02-2013 and Excavator got stuck in mud, it could not be removed by the Excavator itself or by engaging labour and when all the attempts of the complainant failed he reported the matter to the Insurance Company including M/s. P.S. Earthmover Pvt. Ltd. to remove it with another Excavator.  Fact remains M/s. P.S. Earthmover 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 parts as listed in the assessment were damaged due to the Excavator got stuck in mud and fact remains that parts are damaged near the engine area and the major part, swing bearing also got damaged and there were no way for repair except its replacement.  Surveyor also came to a conclusion that approximate cause of damage of Excavator is suddenly stuck with soft mud while on job and the operator as well as insured tried to take out the Excavator by running its engine itself and excessive load was applied to the excavator engine wrongfully causing damage to the engine and other parts.

          Fact remains Surveyor assessed loss to the extent of Rs.1,27,780/- and fact remains Excavator was re-inspected on 15-03-2013 after its repair and during re-inspection surveyor found that work was done satisfactorily.  Damaged parts have become scrap and lying at Insured’s custody but surveyor considering the entire facts and circumstances and cause of damage expressed that Clause ‘O’ of the policy is applicable in view of the fact there was willful act or willful negligence of insured as well as insured representative for pulling excavator out from muddy field by running its engine itself or by engaged Excavator.

          Ld. Lawyer for the OP submitted that there was negligence on the part of the complainant and the operator of the Excavator for which the said excavator stuck into mud and proper attention was not given by the operator for which in the fisheries the said Excavator was stuck into mud knowing fully well that in the fisheries the entire soil is full of mud where Excavator must not be operated but even then it was placed and stuck in the mud and that is the laches on the part of the complainant and at the same time for the purpose of removing the same Excavator another Excavator was engaged which applied huge force which many parts were damaged at the time of lifting and scientific process was not applied for which the present Excavator was damaged heavily and in the above circumstances surveyor passed his opinion that complainant is not entitled to get any benefit for damage caused due to lifting from the mud.  But in particular question is at the time of lifting the said Excavator whether the Excavator which was deputed for the purpose of lifting acted properly, scientifically or not.  In this regard we have gathered that if any heavy Excavator is found stuck with a mud and if same would be lifted invariably higher power Excavator must be deputed for lifting and higher load(force) must be applied at a high rate otherwise the stuck Excavator would not be removed from the mud.  Truth is that at the time of recovery of any vehicle from deep mud the recovery van or Excavator which was deputed for the purpose of lifting must have to apply higher force otherwise it cannot be lifted for such type of mud and it is truth that at the time of recovery certain damages must be caused to both Excavator so the present damage what has been found by the surveyor at the time of inspection after recovery or lifting of the Excavator by another Excavator was must.  In fact the surveyor did not accept it is a natural cause and as an act of recovery.  But to that effect insurance surveyor has not expressed any such active view about any of the Excavator deputed for the purpose of the disputed lifting but opined that the disputed Excavator tried to go out from the mud by running its engine with an excessive load but such sort of observation must be proved by technical report that due to creating heavy power of force and creating excessive load the operator of the disputed excavator tried to go out from the mud.  Fact remains if any excavator is stuck with a mud it must have to apply higher load to go out because in the fisheries area it is impossible to go out from an area of mud without applying higher load force or power so to that extent no doubt operator tried hard to come out from the mud but failed.  But fact remains the general damages as found by the surveyor was not of such a type which is too much excessive because valuation of an Excavator is more than 30-40 lakhs whereas the surveyor assessed loss of Rs.1,07,780/- after deducting loss policy excess so it is clear that such a damage to the Excavator is very simple one for which repairing cost was very low and at the same time after replacement of new parts the cost of repairing did not cross more than Rs.1,50,000/- and when that is the fact then we are convinced that there is no cogent evidence on the part of the OP to show that Excavator was damaged due to operators fault to use heavy load and force to get out from the mud and there is no such expert opinion in this regard.  On the contrary another Excavator was deputed for the purpose of lifting and at the same time for lifting such a heavy Excavator such minor damages must be caused and it is natural no doubt but OP Insurance Company relied upon the opinion of the surveyor but has failed to substantiate the fault of operator of the Excavator when he has admitted that when he inspected he found that entire Excavator is mixed with mud and when he appeared before the Excavator the damaged parts had been be replaced properly and that replacement was required for making the disputed Excavator fit to run when that is the fact then we feel that the opinion of the surveyor repudiating the claim is completely baseless and without any foundation but in particular it is the practice of the insurance company not to give any insurance claim but in the present case the surveyor’s assessment of loss is only Rs.1,27,780/- but complainant has claimed Rs.1,51,347/- and after proper assessment of the claim of the complainant and assessment as made by the surveyor.  We find that surveyor is more scientific than that of the complainant and considering that fact that complainant is entitled to Rs.1,27,780/- as repairing cost or assessment of loss by the surveyor.  No doubt, OP insurance Company is liable to pay the sum and in this regard we have relied upon one ruling reported in I(2013) CPJ 568 (NC) and accordingly we allow this complaint in part but without any cost when the observation of the surveyor regarding application of clause ‘O’ is found without any technical opinion and without any justification.

In the result, the case succeeds.

Hence,

Ordered

That the case be and the same is allowed on contest but without any cost against the OPs 1,2 and 3. 

          OPs 1 and 2 is hereby directed to pay a sum of Rs.1,27,780/- to the complainant within one month from the date of this order positively failing which for non-compliance of the Forum’s order OPs1 and 2 shall have to pay punitive damages @Rs.200 per day till full satisfaction of the decree.

          OPs1 and 2 are hereby directed to comply the order very strictly failing which as per provision of the C.P. Act penal action shall be started against them.