State Consumer Disputes Redressal Commission
Acb India Ltd. vs The New India Insurance Co.Ltd. on 5 May, 2018
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR (C.G.)
Complaint Case No.CC/2017/74
Instituted on : 24.11.2017
A.C.B. India Limited,
18, Basant Enclave, Rao Tularam Marg,
Delhi
Through - Special Power of Attorney Holder -
Bhuvanlal Bhairam S/o Shankar Lal Bhairam,
Caste - Pawar, R/o Somwari Bazaar,
Deepka, District Korba (C.G.) ... Complainant.
Vs.
The New India Assuranmce Company Limited,
Divisional Office - Korba, SADA Complex,
T.P. Nagar, Power House Road, Korba,
Through : Divisional Manager,
The New India Assurance Company Limited,
Korba Divisional Office,
Korba, District Korba (C.G.) .... Opposite Party
PRESENT: -
HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT
HON'BLE SHRI D.K. PODDAR, MEMBER
HON'BLE SHRI NARENDRA GUPTA, MEMBER
HON'BLE SMT. RUCHI GOEL, MEMBER
COUNSEL FOR THE PARTIES:
Shri R.P. Singh, Advocate for the complainant.
Shri T. Árif, Advocate for the O.P.
ORDER
DATED : 5 /MAY/2018 PER :- HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT. The complainant has filed this consumer complaint under Section 17 of the Consumer Protection Act, 1986 against the O.P. seeking following reliefs :-
// 2 // (1) The O.P. may be directed to pay the amount of Rs.95,00,000/-
(Rupees Ninty Five Lakhs) towards compensation in respect of the machine along with appropriate interest.
(2) The O.P. be directed to pay appropriate compensation, expenses and other reliefs, which this Commission deems fit.
2. Briefly stated the facts of the complaint of the complainant are that the complainant is owner of a machine, which was insured with the O.P. under Contractors Plant and Machinery Insurance Policy No.46020044140700000074 for the period from 30.04.2014 to 29.04.2015. The year of manufacture of Machine Volvo Excavator ws 2008. The sum insured was Rs.1,20,00,000/-. The work area of the Machine is extended upto Gevra Deepka S.E.C.L. Coal Mines Area, Korba, which is specifically mentioned in the policy under the column Location and Operation. The above machine was working in the Coal Mines Area Coal Washery on 27.04.2015. The coal was loaded by the machine in the tipper. Due to heat in the coal, suddenly fire was caught and on being air blown, the spark was soared from the heap of the coal and the same was fallen on machine and the fire was caught in the side of the engine. The driver of the machine extinguished the fire with the help of Fire Safety Cylinder and water tanker and the fire was extinguished. The machine was completely burnt. On 27.04.2015 in the prescribed form, the complainant gave written intimation to the O.P. regarding the incident. On 02.05.2015, the complainant submitted claim form before the O.P. At the time of incident, Shamsad S/o Sultan was driving the vehicle, who is competent to drive the vehicle. After incident, th O.P. sent the Surveyor on the spot and the Surveyor took // 3 // photographs of the burnt machine in the spot. The assessment of loss to the machine was got done by the Insurance Company. The final quotation was given by S.V.P. Mining Technology Pvt. Ltd. Korba. On 02.05.2016 S.V.P. Mining Technology has made valuation of Excavator at Rs.1,35,66,000/- as per Annexure A-8. On being asked by the O.P., the complainant informed that the scap value of the burn machine was Rs.6,00,000/-.The complainant claim a sum of Rs.95,00,000/- towards damages to the machine. On 08.08.2015, the complainant sent details regarding the machine and salvage offer to M/s Mack Insurance Surveyor and Loss Assessor P.Ltd. New Delhi. On 10.10.2015 disposal delivery of fire affected machine was given to M/s B.N. Steel Traders, Avanti Vihar at Rs.7,30,478/-. On 29.02.2016, the O.P. sent a letter to the complainant mentioning therein why the claim of the complainant be repudiated. The complainant sent reply of the above letter to the O.P. on 18.03.2016. On 11.07.2016 the complainant again sent a letter to the O.P. and requsted to make payment. The instant complaint has been filed within limitation from the repudiation letter dated 29.02.2016. The O.P. issued Show Case Notice to the complainant regarding repudiation of clain and the complainant sent reply to the above notice on 18.03.2016 and also sent a letter on 11.07.2016 to the O.P. but the O.P. did not pat the claim amount of Rs.1,00,00,000/-, which comes in the category of deficiency in servi el. The reason stated for repudiating claim of the complainant is false. The complainant is having coalwashri which is situated in Gevra Deepka Coal Mines Area and in the above coalwashri the above machine is operating. The O.P. was aware regarding the above fact and thereafter the // 4 // O.P. insured the machine. The complainant is entitled to get the reliefs, as mentioned in the relief clause of the complaint.
3. The O.P. has filed its written statement and averred that the O.P. Insurance Company got inspected the spot through its Investigator Sudhir Nigam on 28.03.2016 and according to him the Coal Washery situated at Chakabuda does not come within Gevra Deepka S.E.C.L. Coal Project and it is a separate area and comes under Private Coal Washery. The complaint has been filed by the complainant through Special Power of Attorney Holder but the Special Power of Attorney Holder was not appointed by the A.B.C. India Co. The Special Power of Attoney Holder was appointed by Vrittapal Sindhu, who is Regional Director of the Company and documents regarding authorizing him to do work for the company, has not been filed. The complaint is liable to be dismissed. Gevra does not come within Deepka Mines. Mack Insurance Surveyors & Loss Assessor Pvt. Ltd. submitted its report to the O.P. according to which there is total loss of Rs.63,96,208/- and report has been submitted mentioning terms and conditions of the policy. As there is mention of Chakabuda Coal Washery Gevra - Deepka S.E.C.L. Coal Mines, but the Chakabuda Coal Washery, does not come under Gevra - Deepka S.E.C.L. Coal Mine, Korba, therefore, the claim was repudiated by the O.P. The complaint is liable to be dismissed with cost.
4. The complainant has filed documents. Annexure A-1 is Contractors Plant and Machinery Insurance Policy, Annexure A-2 Is intimation dated 27.04.2015 regarding accident of the machine, Annexure A-3 is Claim Form, Annexure A-4 is driving licence of Md. Samsad, Annexure A-5 are // 5 // photocopy of the photographs, Annexure A-6 is Preliminary Survey Report of Shri Ajay Lamba, Annexure A-7 is Service Quotation dated 13.05.2015 issued by SVP Mining Technologies P. Ltd., Annexure A-8 is Volvo EC380DL Crawler Excavator Sales Offer dated 03.05.2016, Annexure A-9 is letter sent by the complainant to the O.P., Annexure A-10 is letter dated 08.09.2015 sent by the complainant to M/s Mack Insurance Surveyors and Loss Assessors Pvt. Ltd. New Delhi, Annexure A-11 is letter dated 10.10.2015 sent by the complainant to M/s. B.N. Steel Traders, Raipur, Annexure A-12 is Sale Bill, Annexure A-13 is Weightment Slip, Annexure A- 14 is letter dated 29.02.2016 sent by the O.P. to the complainant, Annexure A-15 is reply dated 18.03.201 sent by the complainant to the O.P. regarding O.P.'s letter dated 29.02.2016, Annexcure A-17 is letter dated 11.07.2016 sent by the complainant to the O.P. along with Map, Annexure A-18 is letter dated 27.02.2017 sent by the complainant to the O.P., Annexure A-19 is Experience Certificate of Mohd. Shamshad issued by M/s M.K. Gupta and Company, Annexure A-20 is Tax Invoice issued by Volvo India Pvt. Ltd., Annexure A-21 is statement of Mohd. Shamshad, Annexure A-22 is letter dated 11.05.2015 sent by the complainant, Annexure A-23 is letter dated 10.03.2017 sent by the O.P. to the complainant.
5. The O.P.has also filed documents. The documents are letter dated 10.03.2017 sent by the O.P. to the complainant, letter dated 17.03.2017 sent by the O.P. to the complainant, letter dated 28.03.2016 sent by Shri Sudhir Nigam, Investigator to the O.P., Final Survey and Assessment Report dated 23.11.2015 of Mack Insurance Surveyors and Loss Assessors Pvt. Ltd., Map of Chakbuda, application dated 11.01.2018 submitted by Shri Tahfik // 6 // Ahmad, Advocate to Public Information Officer, South Eastern Coal Fields Ltd., Bilaspur.
6. Shri R.P. Singh, learned counsel appearing for the complainant has argued that the complainant is owner of a machine, which was insured with the O.P. under Contractors Plant and Machinery Insurance Policy for the period from 30.04.2014 to 29.04.2015. The year of manufacture of the machine was 2008. The sum insured was Rs.1,20,00,000/-. The work area of the Machine is extended upto Gevra Deepka S.E.C.L. Coal Mines Area, Korba which is specifically mentioned in the insurance policy. On 27.04.2015, the coal was loaded by the machine in the tipper. Due to heat in the coal, suddently, the spark was soard from the heap of the coal and the same was fallen on the machine, due to which fire caught in the side of engine. The driver of the machine extinguished the fire with the help of Fire Safety Cylinder and water tanker and fire was extinguished. Due to fire, the machine was completely burnt. On 27.04.2015 itself the complainant gave written intimatin to the O.P. regarding the incident. On 02.05.2015, the complainant submitted its claim before the O.P. The O.P. sent the Surveyor on spot and the Surveyor took photographs of the machine in the spot. The Surveyor assessed the loss. The complainant informed the Surveyor that the scrap value of the burnt machine was Rs.6,00,000/-. The complainant submitted his claim for Rs.95,00,000/- towards damages to the machine. The complainant sent details regarding the machine and salvage offer to the Surveyors. On 29.02.2016, the O.P. sent letter to the complainant mentioning therein why the claim of the complainant should not be repudiated. The complainant sent reply of the above letter to the O.P., but even then the // 7 // claim of the complainant was not settled by the O.P. The complainant sent legal notice to the O.P. and thereafter filed intant complaint before this Commission. The complainant is entitled to get compensation, as perayed by it in the relief clause of the complaint, from the O.P.
7. Shri T. Arif, learned counsel appearing for the O.P. has argued that the Coal Washery situated at Chakabuda does not come within Gevra Deepka S.E.C.L Coal Project and it is a separate area and comes under Private Coal Washery. The complainant had obtained insurance policy for a particular area, but the machine was working in a different area, which does not cover under the insurance policy. The instant complaint has been filed by the Special Power of Attorney Holder, but the Special Power of Attorney Holder was not appointed by the complainant A.C.B. India Limited and he was appointed by Vrittapal Sindhu, who is Regional Director of the complainant company and documents regarding authorizing Vrittapal Sindhu to do work for the company, has not been filed. Therefore, the complaint is liable to be dismissed. The complainant is not entiled to get any compensation from the O.P. and the O.P. has rightly repudiated the claim of the complainant.
8. We have heard learned counsels appearing for both the parties and have also perused the documents filed by the parties in the complaint case.
9. The first objection raised by the O.P. is that Vrittapal Sindhu has not been authorised by the Company to appoint Special Power of Attorney Holder. The above contention of the O.P. is not acceptable. In the Special Power of Attorney, it is mentioned that Vrittapal Sindhu, is working as // 8 // Regional Director of A.C.B. India Limited, Chakabuda. Being Regional Director of A.C.B. India Limited, he is competent to appoint any person as Special Power of Attorney Holder, to file the complaint on behalf of the Company and he gave Power of Attorney to Bhuwanlal Bhairam S/o Shankar Lal Bhairam. The instant complaint has been filed by A.C.B. India Limited through its Special Power of Attorney Holder Bhuweanlal Bhairam, therefore, the instant complaint is maintainable.
10. According to the O.P., the Contractors Plant and Machinery Insurance Policy was issued for Gevra Dipika S.E.C.L. Coal Mines, Korba but the machine was performing work at Chakabuda Coal Washery, which does not come within Gever Dipika S.E.C.L. Coal Mines,
11. Now we shall examine whether at the time of incident, the machine of the complainant was working at place, which is not covered under the Insurance Policy ?
12. Annexure A-1 is Contractor's Plant and Machinery Insurance Plicy. In the insurance policy, the address of the insured is mentioned 18, Vasant Enclave Rao Tula Ram Marg, Delhi. In the Insurance Policy, the Locatins of of Operation is mentioned as Gevra Dipika S.E.C.L. Coal Mines, Korba.
13. The O.P. has appointed Mack Insurance Surveyors & Loss Assessors (P) Ltd. as Surveyor. In letter dated 16.05.2015 sent by the Surveyors to the O.P., it is mentioned thus :-
Occurrence The machine operator, Mr. Md. Samsad stated that on 27.4.15 at 1:30 AM, he was loading hot coal (after cooling) into a dumper. Suddenly sparks from heap of // 9 // coal on the ground, came with gust of wind and landed at the machine engine which caught fire. Fire spread to other parts before it was control.
Cause of Loss The heap of coal (kept for long period) catches fire (due to chemical reaction) & therefore it is cooled down with water spray before loading on dumper. But fire erupted from the lower part of heap of coal and sparks landed over the engine compartment which has inflammable material like leaked oil. This resulted into fire and massive damages to the machine.
14. In the Final Survey Report of Mack Insurance Surveyors and Loss Assessors P.Ltd., dated 23.11.2015, it is mentioned thus :-
"ABOUT THE PROJECT :
The Insured Company M/s ACB (India) Ltd., is situated Chakabura, Coal Washery, receives raw coal from South East Coal Ltd.'s Dipka, Gewra, Manikpur and other mines by Tippers & Trailers. After that the subject coal is dumpted in coal stockyeard. As per necessity, the coal is loaded into tipper by the excavator and sent to washery for crushing and washing...
The subject Excavator Machine Sr. No.13111 belongs to ACB India Ltd. and was working in their own coal tock in Chakabura, Washery. (There is work order in this case..."
15. According to the Surveyor, the Excavator Machine was working in Complainant's own coal stock in Chakabuda Coal Washery. The Surveyor has assessed loss to the tune of Rs.63,96,208/-
16. Now we shall examine whether the complainant is entitled to get the above amount from the O.P.?
17. The O.P. has obtained information under Right to Information Act from South East Coal Fields Ltd. Bilaspur, through its Advocate Mr. Tahfiq // 10 // Ahmad. The Regional Survey Officer, S.E.C.L. Gevra Area sent information to the General Manager, S.E.C.L. Gevra Area vide letter dated 30.01.2018 in which it is mentioned thus :
"3. Gevra and Dipika both are separate project.
4. Gevra and Dipika Project are not same.
5. In the Gevra Project, for mining work, M/s Sainik Mining and Allied Services Limited is working.
6. There is no contract between A.B.C. India Limited and Coal Washery of Gevra Area."
In the above letter it is further mentioned that Chakabuda Coal Washery does not come under Gevra area
18. Looking to the above documents, it appears that the area where the incident of fire took place, does not come within Gevra Dipika Area and the incident took place at Chakabuda Coal Washery, which is a Private Coal Washery and does not come within Gevra Deepka Area and Chakabuda Coal Washery is not mentioned in the insurance policy.
19. In the case of M/s Vijay Concerns v/ State Bank of India, Through Branch Manager & Anr., 2013 (4) CPR 165 (NC,) Hon'ble National Commission, has observed thus :-
"8. From the material on record, it is very clear that the place where the loss has occurred was not within the knowledge of the Insurance Company. Moreover, the Bank can also not be held liable for any deficiency in service, because it was the primary duty of the // 11 // complainant/petitioner to obtain the Insurance Policy and to have knowledge about its terms and conditions.
9. The State Commission while passing the impugned order have rightly placed reliance on the orders passed by the Hon'ble Supreme Court in the case United India Insurance Co. Ltd. v. M/s Harchand Rai Chandan Lal and in the case Deokar Exports Pvt. Ltd. v. New India Assurance Co. Ltd. according to which the rights and obligations of the parties are strictly governed by the policy of Insurance and no exception or relaxation can be made on the grounds of equity. Further, a similar view has been expressed by the Hon'ble Supreme Court in the case of Suraj Mal Ram Niwas Oil Mills Private Ltd. v. United India Insurance Co. Ltd. & Anr. In which it has been observed by the Hon'ble Supreme Court as follows :-
"The Courts should always try to interpret the "words" in the insurance contract as they have been expressed by the parties. It is not open for the Court to add, delete or substitute any words. The words used in the Insurance Contract must be given paramount importance."
20. In the case of M/s Export Credit Guarantee Corporation of India Ltd. v. M/s Garg Sons International, 2013 (4) CPR 373 (SC), Hon'ble Supreme Court, has observed thus :-
"9. The insured cannot claim anything more than what is covered by the insurance policy.
"The terms of the contract have to be construed strictly, without altering the nature of the contract as the same may affect the interests of the parties adversely."
// 12 //
21. In the case of United India Insurance Company Ltd. v. M/s Harchand Rai Chandan Lal, 2005 (1) CPR 64 (SC), Hon'ble Supreme Court has observed thus :-
"6. The terms of the policy have to be construed as it is and we cannot add or subtract something. Howsoever liberally we may construe the policy but we cannot take liberalism to the extent of substituting the words which are not intended. It is true that in common parlance the term 'burglary' would mean theft but it has to be proceeded with force of violence. If the element of force and violence is not preset then the insured cannot claim compensation against theft from the insurance company. (Para 6).
It is not open to interpret the expression appearing in policy in terms of common law; but it has to give meaning to the expression reproduced the terms of the policy as also the definition of burglary and / or housebreaking as defined in the policy."
22. In the case of Deokar Exports Pvt. Ltd. v. New India Assurance Company Ltd., I (2009) CPJ 6 (SC), Hon'ble Supreme Court has observed thus :-
"11. A policy of insurance is a contract based on an offer (proposal) and an acceptance. The appellant made a proposal. The respondent accepted the proposal with a modification. Therefore, it was a counter proposal, in which event three would have been no contract. The second was to accept either expressly or impliedly, the counter proposal of the respondent (that is respondent's acceptance with modification) which would result in a concluded contract in terms of the counter proposal. The third was to make a counter proposal to the counter proposal of the respondent in which event there would have been no concluded contract unless the respondent agreed to such counter proposal. But the appellant definitely did not have the fourth // 13 // choice of propounding a concluded contract with a modification neither proposed nor agreed to by either party."
23. In the case of National Insurance Co. Ltd. v. Vinod Puri, I (2014) CPJ 341 (NC) , Hon'ble National Commission has observed thus :-
"8. Hon'ble Supreme Court while deciding, Civil Appeal No.2080 of 2002 titled as Vikram Greentech (I) Ltd. & Anr. v. New India Assurance Co. Ltd., II (2009) CPJ 34 (SC) = IV (2009) SLT 35, has looked into the issue as to how insurance contract must be construed. In the aforesaid judgment, Hon'ble Supreme Court has observed thus :
"An insurance contract, is species of commercial transactions and must be construed like any other contract to its own terms and by itself. In a contract of insurance, there is requirement of uberimma fides i.e. good faith on the part of the insured. Except that, in other respects, there is no difference between a contract of insurance and any other contract. The four essentials of a contract of insurance are, (i) the definition of the risk, (ii) the duration of the risk, (iii) the premium, and (iv) the amount of insurance. Since upon issuance of insurance policy, the insurer undertakes to indemnify the loss suffered by the insured on account of risks covered by the insurance policy, its terms have to be strictly construed to determine the extent of liability of the insurer. The endeavour of the Court must always be to interpret the words in which the contract is expressed by the parties. The Court while construing the terms of policy is not expected to venture into extra liberalism that may result in re-writing the contract or substituting the terms which were not intended by the parties. The insured cannot claim anything more than what is covered by the insurance policy."
24. Looking to the documents and insurance policy, it is clear that the insurance policy was issued for Gevra Dipika SECL Coal Mines, Korba, but the machine was working at Chakabuda Coal Washery, which is a Private // 14 // Coal Washery and does not come within Gevra Dipika Area, therefore, there is no contract of insurance between the parties in respect of Chakabuda Coal Washery.
25. The complainant used the machine at place which was not covered under the policy, therefore, it any incident has occurred and loss was suffered by the complainant, the O.P. is not laible to indemnity the complainant for the loss suffered by the complainant.
26. Looking to the facts and circumstances of the case, it is established that the insurance was done only for Gevra Dipika SECL Coal Mines, Korba and not for Chakabuda Coal Washery, therefore, the O.P. is not liable to indemnity the complainant for the loss ssufered by him. The O.P. has rightly repudiated the claim of the complainant. The complaint is liable to be dismissed.
27. Therefore, the complaint filed by the complainant against O.P. is dismissed. Parties shall bear their own costs.
(Justice R.S. Sharma) (D.K. Poddar) (Narendra Gupta) (Smt. Ruchi Goel)
President Member Member Member
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