National Consumer Disputes Redressal
United India Insurance Company Ltd. vs Sharda Associates on 12 July, 2019
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 3306 OF 2014 (Against the Order dated 01/05/2014 in Appeal No. 210/2011 of the State Commission Uttaranchal) 1. UNITED INDIA INSURANCE COMPANY LTD. THROUGH THE REGIONAL MANAGER, DRO-1, KANCHENJUNGA BUILDING, 8TH FLOOR, 18, BARAKHAMBA ROAD, NEW DELHI-110001 DELHI ...........Petitioner(s) Versus 1. SHARDA ASSOCIATES THROUGH B.N. KOTIYAL, SOLE PROPRIETOR, 46/2, NEHRU MARG, ASHUTOSH NAGAR, RISHIKESH UTTARAKHAND ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE V.K. JAIN,PRESIDING MEMBER
For the Petitioner : Mr. Naveen Kumar, Advocate For the Respondent : Mr. Gaurav Singh, Advocate
Mr. Kranti Vikram Singh Bhandari, Adv.
Dated : 12 Jul 2019 ORDER JUSTICE V.K. JAIN, PRESIDING MEMBER
The complainant / respondent owned a JCB Excavator machine, which he had got insured with the petitioner company for the period from 05.3.2009 to 04.3.2010 at an IDV of Rs.13.5 lacs. The case of the complainant is that on 25.5.2009, the insured excavator while being used for road making, met with an accident, which resulted in its total loss and death of its operator and helper. It is alleged that the machine was working at site when the road side edge suddenly got broken, as a result of which it rolled down 500 mtr. down the road. This is also the case of the complainant that the salvage could not be retrieved and Forest Department refused permission for making way to retrieve the salvage since that would have resulted in felling of trees.
2. The claim lodged by the respondent with the petitioner, however, was repudiated vide letter dated 13.4.2010, which to the extent it is relevant, reads as under:
"1. As per terms and conditions No. IMT No.47 which belongs to the mobiles cranes / drilling rigs/mobile, plants / excavators / rippers / grabs / shovels / navies. It is hereby declared and agreed notwithstanding anything t the contrary contained in this policy that in respect of the vehicle insured the insurer shall be under no liability -
Under Section 1 of this policy in respect of loss or damage resulting from over turning arising out of the operation as a tool of such vehicle or of plant forming part of such vehicle or attached there to except for loss or damage arising from Fire, Explosion, self-Ignition or lightning or burglary, house breaking or theft.
N.B. Omit paragraph (a) for - (i) Liability only policies
(ii) package policy where an additional premium has been paid for inclusion of damage by overturning.
Hence as per cause of accident on the day of accident the JCB machine was making the road so it was used as tool of trade and no other vehicle was involve in the above reference accident case. So as per policy condition IMT 47 in this cause the overturning was not covered."
3. Being aggrieved from the repudiation of the claim, the complainant/ respondent approached the concerned District Forum by way of a consumer complaint.
4. The complaint was resisted by the insurer primarily on the ground on which the claim had been repudiated.
5. Vide its order dated 26.9.2011, the District Forum allowed the consumer complaint and directed the petitioner company to pay a sum of Rs.13,50,000/- to the complainant, along with 9% interest from the date of institution of the complaint. Compensation quantified at Rs.10,000/- and cost of litigation quantified at Rs.5,000/- was also awarded to the complainant.
6. Being aggrieved from the order passed by the District Forum, the petitioner approached the concerned State Commission by way of an appeal. The said appeal having been dismissed vide impugned order dated 01.5.2014, the petitioner is before this Commission by way of this revision petition.
7. A dissection of IMT 47, which applied inter-alia to excavators and is reproduced in the repudiation letter would show that unless additional premium is paid, in case of loss of or damage to the excavator, the insurer is not liable if the following conditions are made:
(a) The loss or damage results from overturning of the vehicle (b) The excavator is being used as a tool of the vehicle or of the plant forming part of the vehicle or attached thereto, unless the loss or damage arises directly from fire, explosion, self-ignition, lightning, burglary, house breaking or theft.
8. An excavator machine cannot be used for road construction unless it is attached to the said vehicle or is used as a tool of the vehicle. This is complainant's own case that the excavator was being used for road making when it met with an accident. Therefore, it cannot be disputed that the operation i.e. the construction of the road was being carried when the excavator vehicle while being used as a tool, suddenly rolled down on account of road side edge having got broken. Earthmoving equipment such as a JCB can be used either as a tool or as a vehicle at a given time. It cannot work simultaneously as a tool as well as a vehicle. Since this is complainant's own case that the excavator was being used for road making when it met with an accident, it is evident that it was being used as a tool and not as a vehicle at the time it fell 500 ft. down the road.
9. The learned counsel for the complainant has referred to the decision of this Commission in RP/2993/2014 Royal Sundaram Alliance Insurance Co. Ltd. Vs. Ganibhai Nurmahamadbhai Parasara, decided on 06.10.2015 and its decision in RP/442/2007 United India Insurance Co. Ltd. Vs. N.M. Mohammed Jakeer Hussain, decided on 28.3.2014. In Ganibhai (supra), the excavator had toppled while it was returning from the work site in order to save a cyclist going on the road and it was found that it was not being used as a tool. It was therefore, held that the Exclusion Clause under IMT 47 was not applicable. However, in the present case, the excavator was being used as a tool and not as a vehicle, at the time it fell down the road. Therefore, Clause IMT 47 would be applicable.
10. N.M. Mohammed Jakeer Hussain (supra) does not apply to the present case, since the said case involved a lorry with a rig unit, which had met with an accident while it was going towards Srirampura. The lorry had fallen down when the driver took it to the left side of the road in order to avoid collision with a vehicle coming from the rear side . On the other hand, the excavator in the present case was being used as a tool for constructing the road when it fell down the road.
11. For the reasons stated hereinabove, the impugned order cannot be sustained and the same is accordingly set aside. The complaint is consequently dismissed with no order as to costs.
......................J V.K. JAIN PRESIDING MEMBER