National Consumer Disputes Redressal
Patel Engineering Limited vs New India Assurance Co. Ltd. on 28 April, 2015
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 84 OF 2006 1. PATEL ENGINEERING LIMITED PATEL ESTATE ROAD, JOGESHWARI (W), MUMBAI - 400 102 ...........Complainant(s) Versus 1. NEW INDIA ASSURANCE CO. LTD. OFFICE AT NEW INDIA ASSURANCE BUILDING, 87, M.G. ROAD, MUMBAI - 400 001. ...........Opp.Party(s)
BEFORE: HON'BLE MR. JUSTICE V.K. JAIN, PRESIDING MEMBER HON'BLE MR. DR. B.C. GUPTA, MEMBER
For the Complainant : Mr. Aditya Narain, Advocate
With Ms. Astha Tyagi, Advocate And
Ms. Anushree Narain, Advocate For the Opp.Party : MR. S.M. TR4IPATHI
Dated : 28 Apr 2015 ORDER
This consumer complaint No. 84/2006 has been filed under section 21 of the Consumer Protection Act, 1986 by M/s. Patel Engineering Limited, a construction company incorporated under the Companies Act, 1956 and engaged in building dams, power stations, tunnels, highways and other infrastructural projects etc. The complaint is directed against the respondent/Opposite Party (hereinafter referred to as OP), New India Assurance Company Limited, alleging that respondent/OP had refused to entertain their claim for the loss of vehicles washed away in a flash flood in the area, during the subsistence of valid insurance policies, covering the said vehicles.
2. It has been stated in the complaint that the complainant was engaged in the construction of Dam part of Head Race Tunnel and allied works Lot HB I in Himachal Pradesh for the Parbati Hydro Electric Power Project Stage II. The complainant had purchased several machinery and equipment including trucks and other vehicles and kept them at the site of construction. All equipment, machinery and vehicles had been insured with different insurance companies including the respondent/OP. The case of the complainant is that in August 2004, there was heavy rainfall in the catchment area, resulting in flash floods, as a result of which many vehicles were carried away several miles downstream or fell into deep gorge or were buried under debris. The present complaint relates to loss of 10 heavy vehicles (trucks), whose details including the registration number etc. have been mentioned in the complaint. There were separate insurance policies for each of these vehicles and separate claims were prepared in respect of each such vehicle, the aggregate of which comes out to ₹89,70,532/-. Moreover, after losing the said vehicles, the complainant had to hire vehicles to complete the project and they incurred a sum of ₹95 lakh on such hiring. The complainant has, therefore, made a claim of ₹1,84,70,532/- on account of loss of 10 vehicles and compensation for money spent on hiring of new vehicles. The complainant has demanded interest @12% p.a. on the amount relating to the vehicles and also demanded a sum of ₹1 lakh as compensation for deficiency in service and ₹50,000/- as litigation expenses.
3. It has been stated that a report about the incident was made to the Police on 14.08.2004 and the respondent/OP Insurance Company was also informed and claim was lodged and all relevant documents provided. The Insurance Company appointed a surveyor, who submitted his report on 02.09.2004. The Insurance Company also appointed an investigator vide letter dated 31.03.2005 to look into the claim.
4. The complaint was resisted by the OP Insurance Company by filing written statement stating therein that there was no evidence that 10 heavy vehicles were washed away in the flash flood. The OP also stated that separate claims should have been filed for each particular vehicle, as the vehicles were separately insured with the company by taking a different policy for each vehicle. The loss of each vehicle, therefore, constituted a separate cause of action and hence, the issue of pecuniary jurisdiction was required to be looked into, before taking any decision in the present complaint. The loss does not exceed ₹ 1 crore in respect of any one particular vehicle, and hence the National Commission had no pecuniary jurisdiction to deal with the matter. The OP further stated that the said vehicles were deployed for commercial purpose and hence, the complainant does not fall within the definition of 'consumer' and hence the complaint is not maintainable. Further, as per the report of the investigator, the claim was false and fabricated. A detailed examination of the documents and evidence was required to be carried out before taking any decision in the matter and hence, the matter should be decided by a civil court and not by this Commission.
5. The OP further stated that the river in question flowed in a serpentine manner and there were frequent sharp curves with heavy rocks in the bed and hence it was not likely that such heavy vehicles could be carried to any long distance. The complainant had, therefore, put-forth a false claim for taking undue advantage. The OP further stated that they had sent a letter dated 21.11.2006 to the complainant saying that their claim had not been established, as it was reported to them by the investigator as follows:-
"1. When the investigator visited Parwati Dam Site on 24.05.2005 and requested your Sh. Naveen Agan to produce the driver of the vehicle and the keys and log book of the vehicle, his request was not acceded to. Only photocopy of the R.C. Book was produced, which, when compared with the original produced later on, difference was found between the said photocopy and the original and it was noticed that full copy was not given. The tax paid in respect of the vehicle subsequent to the aforesaid event of flash flood was sought to be concealed from investigator. Evidently the investigator was deliberately intended to be misguided by your official.
2. On 24.05.2005 the investigator requested your official Mr. P.P. Venugopal for producing the keys of the vehicle for which no answer was given by him.
3. The investigator contacted several persons, including some ITBP and Govt. officials and Newspaper reporter of the area and was advised that such heavy trucks could not vanish in the river as alleged.
4. The investigator enroute of Parwati river and found that Parwati river is a small river and big rocks are lying in Parwati. It is not possible that these heavy vehicles can vanish in this river with no trace.
5. The clarifications sought from you vide our letters dated 18.11.2005, 13.02.2006 and 28.04.2006 have not been found to be satisfactory.
6. The conclusion arrived at by the investigator is that the claim is false and fabricated."
6. The respondent/OP prayed that the said complaint should be dismissed with costs.
7. The complainants in their rejoinder to the written statement, admitted that each vehicle was distinct and separate from the other and was independently insured and the claim forms were submitted separately for each vehicle. However, the bundle of facts giving rise to the claim indicates that there was only one cause of action and hence, one single complaint was filed instead of 10 different complaints. The complainant was very much a consumer as per the catena of judgments given by the National Commission. The complainant had submitted all possible cooperation to the investigator but the said investigator had not taken into consideration the relevant facts. The complainant also denied the version given by the respondent/OP that heavy vehicles could not be washed away during the said floods in such hilly terrain.
8. Both the parties filed their respective affidavits of evidence. The investigator SP Singh also filed his affidavit, in response to which the complainants have filed another affidavit. Both the parties have also filed their written submissions before us.
9. At the time of hearing before us, the learned counsel for the complainant stated that the complainant was a leading construction company engaged in the construction of dams, power-stations, tunnels, highways and several infrastructural projects of viable national importance. He stated that the factum of flash floods on 08.08.2004 had not been denied by the other party, rather the surveyor appointed by them visited the site of loss on 10.08.2004 and again on 24.08.2004 and 01.09.2004. In his interim report dated 02.09.2004, the said surveyor stated that on 10.08.2004, it was not possible to reach the site because the road was damaged or washed away in flood. On 24.08.2004, he visited the site again with Divisional Manager and they could identify certain vehicles which were buried under debris and only half portion was visible. On 01.09.2004, the surveyor again visited the site and could identify only one vehicle with number HP 66/0526. In his interim report, the surveyor has given details of the missing vehicles and the identified vehicles. The learned counsel submitted that the Insurance Company had repudiated the claim on the basis of the report submitted by the investigator only, although, the said investigator visited the project site after 9 months of the event and without notice to the complainant. The learned counsel has further drawn our attention to the statement of General Manager, Parbati Project saying that it was clear from the said statement that equipment belonging to the complainant was washed away or buried or damaged during the floods. The learned counsel also invited our attention to the police report dated 23.04.2005 in which it has been stated that the said vehicles could not be traced.
10. In reply, the learned counsel for the Insurance Company stated that there was no evidence to support the version that the vehicles in question had been washed away during floods. The report of the investigator made it very clear that the complainant had not provided the necessary documents to the investigator including the log books. The drivers of the said vehicles and the keys of the vehicles had also not been produced before the Investigator. There was, therefore, no deficiency in service on the part of the Insurance Company as the claims had been rightly repudiated.
11. We have examined the entire material on record and given a thoughtful consideration to the arguments advanced before us.
12. In their written statement to the complaint and also in the written submissions, the respondent Insurance Company have taken the plea that the complaint was not maintainable as the complainant was not covered under the definition of 'consumer' as they were engaged in their construction operations on commercial basis. In this regard, this Commission has taken the view in "M/s Harsolia Motors versus M/s National Insurance Co. Ltd. & Ors.", reported in 2005 (I) CPR 1 (NC)" that "contract of insurance is a contract of indemnity and, therefore, question of any commercial activity does not arise." In view of the order already passed by this Commission, it is held that in the present case, the complainant is covered under the definition of 'consumer' and hence, the present consumer complaint under the Consumer Protection Act, 1986 is maintainable.
13. The next question that arises for our consideration is whether the complainant should have filed separate claims for the vehicles, stated to have been missing because separate insurance policies had been taken by them in respect of each vehicle. The complainants have themselves admitted in their rejoinder to the written statement filed by the OP that each vehicle was independently insured and claim forms were submitted separately for each vehicle but the bundle of facts giving rise to the claim indicates that there is only one cause of action. In order to take a view on this issue, we may refer to Order II Rule 3 of the Code of Civil Procedure 1908 (5 of 1908) which states as follows:-
"3. Joinder of causes of action-- (1) Save as otherwise provided, a plaintiff may unite in the same suit several causes of action against the same defendant, or the same defendants jointly; and any plaintiffs having causes of action in which they are jointly interested against the same defendant or the same defendants jointly may unite such causes of action in the same suit.
(2) Where causes of action are united, the jurisdiction of the Court as regards the suit shall depend on the amount or value of the aggregate subject-matters at the date of instituting the suit."
14. It is made out from above that the complainant was within his rights to unite the cause of action in respect of 10 different vehicles. It is also made clear that where the causes of action are united, the pecuniary jurisdiction shall depend upon the value of the aggregate subject matter at the date of instituting the proceedings. In view of the cited provisions in the Code of Civil Procedure, 1908, it is held that the complaint is very much maintainable in the present form.
15. The core issue that arises for our consideration is whether the version of the complainant that 10 vehicles were washed away during the flash floods in the area is substantiated by any concrete evidence or not. The report made by the Police as referred to by the complainant was made on 23.04.2005, i.e., after about 8 - 9 months of the alleged incident. The report simply says that nothing could be known about the vehicles, whether they were lying buried or were washed away. The report submitted by the surveyor and the affidavit filed by the Investigator S.P. Singh says that the complainant had not cooperated in investigation for carrying out the necessary verification for determination of liability. The officials of the complainant at Parbati Dam Site refused to give statement relating to the occurrence. There was no sign of uprooting of trees near HRT Tunnel which got blocked due to silt on 08.08.04. All these factors lead us to believe that there is no conclusive proof about the alleged loss of the vehicles.
16. Further, it is quite material to observe that the drivers of the vehicles in question, the keys of the vehicles and their log books were never produced before the Investigator. In their written submissions filed by the complainant, which are on record, it has been stated that " complainant could not produce the drivers of the washed away vehicles because they were no longer in the service by then". This version reflects lack of credibility on the part of the complainant because even if the services of the drivers were dispensed with, the complainants could have produced them before the Investigator and got their statements recorded. The complainants could also have filed affidavits of some of these drivers in support of the version given by them, but nothing of that sort has been done by the complainants. Further, the stand of the complainant is that the keys of the vehicles were in the field workshop office which was also washed away in the floods. The log books of the vehicles were also washed away alongwith the vehicles. It has come in the report of the investigator that he was provided with registration certificate etc. but there was difference between the originals and photocopies of such registration certificates. Further, the complainant paid road tax in respect of a number of vehicles which are stated to have been washed away subsequent to the incident on 09.09.2004 upto 31.03.2005 and again from 12.04.2005 to 31.03.2006. All these factors lead to the conclusion that the alleged disappearance of vehicles has not been explained by any cogent and convincing evidence which may prove that the vehicles were actually washed away during floods.
17. No official posted by NHPC or by the Government at the site of the project being executed by the complainant has been examined as a witness to prove that at the time of flash flood, the trucks, in question, were deployed by the complainant at the project site and had gone missing. Even otherwise, it is difficult for us to accept that such heavy trucks went altogether missing and neither the trucks nor any part thereof could be traced at any point of time. No expert witness has been examined by the complainant to prove that the intensity of the rainfall and flash flood was so severe that even heavy trucks alleged to have been deployed by the complainant could be altogether washed away for ever without leaving any trace.
18. The complainant did not examine any truck driver, cleaner etc. who were on duty at the time the said trucks allegedly got washed away, fell into deep gorge or got buried under debris. This is not the case of the complainant that one or more truck drivers, cleaners etc. also got washed away, fell into deep gorge or got buried under debris alongwith the trucks. Therefore, it was imperative for the complainant to produce them, before this Commission to explain the circumstances in which the trucks got washed away, fell into deep gorge or got buried under debris, leaving the drivers and/or cleaners etc. of the trucks unharmed and alive. Even if all the aforesaid drives and cleaners have left the employment of the complainant company, nothing prevented it from summoning them as witness through the process of the Commission since their addresses must be available in the record of the complainant company.
19. In fact, if we go by the report of the investigator, we find that when he visited the spot, two officials of the complainant company who met him there, refused to give statements relating to the occurrence. They did not produce before him the drivers of the said vehicles, keys or the log books. The surveyor did not find any sign of uprooting the trees near HRT tunnel affected areas of cloud burst which had got blocked due to silt on 08.08.2004.
20. It has also come in the report of investigator that Parbati river is a small river and big rocks are lying in it river and there are sharp curves from place to place, making it improbable that such vehicles could vanish in the river, with no trace.
21. From the examination of the entire material on record, it is made out that there is no concrete evidence to believe that the vehicles, in question, were actually lost in the incident of the floods in the area. It is also not clear whether these vehicles were washed away or they were lying buried in debris somewhere. We, therefore, feel that the complainant has not been able to provide any reasonable explanation to believe that there has been loss of such vehicles and that he is liable to be compensated in accordance with the terms and conditions of the Insurance Policies in question. The consumer complaint in question is, therefore, ordered to be dismissed with no order as to costs.
......................J V.K. JAIN PRESIDING MEMBER ...................... DR. B.C. GUPTA MEMBER