State Consumer Disputes Redressal Commission
Consumer Welfare Associations vs The Oriental Insurance Co Ltd on 27 July, 2017
CC/13/270
BEFORE THE HON'BLE STATE CONSUMER DISPUTES REDRESSAL
COMMISSION, MAHARASHTRA, MUMBAI
Complaint Case No. CC/13/270
1. Consumers Welfare Association
Thru its Joint Hon. Secretary
Mr.Jehangir Gai
402, B-wing, Ashoka Complex,
Justice Ranade Road,
Dadar, Mumbai - 400 028.
2. New World iCare Pvt. Ltd.
604, Trade Centre, 6th floor,
Opp. BKC Telephone Exchange,
Bandra-Kurla Complex,
Badra (East), Mumbai - 400 051. ...........Complainant(s)
Versus
1. The Oriental Insurance Co. Ltd.
Through Division Manager,
Broker Division Office,
Oriental House, 4th floor,
7, J Tata Road,
Churchgate, Mumbai - 400 020.
2. Mr.Ashok Chopra
Proprietor, Ashok Chopra & Co.
Insurance Surveyors,
520, Laxmi Plaza, New Link Road,
Andheri (West), Mumbai - 400 053. ............Opponent (s)
[Not pressed against opponent No.2 as
per order dated 05/08/2013]
BEFORE:
P. B. Joshi PRESIDING JUDICIAL MEMBER
D.R. Shirasao JUDICIAL MEMBER
For the Mr.J.B. Gai, A.R. for the complainants.
Complainant:
For the Mr.S. Krishnan, Advocate for the
Opponent: opponent/Insurance Co.
ORDER
Per Shri P.B. Joshi, Hon'ble Presiding Judicial Member Complainant No.1 is a voluntary consumer organization which has been espousing the cause of consumers. Complainant No.2 is the actual Page 1 of 19 CC/13/270 aggrieved consumer of the insurance service rendered by opponent No.1/Insurance Company. Complainant No.2 has electronic machines known as Excimer Laser System Model Allegreto Wave 400 HZ and Allegro Occulyzer which are used for the performance of laser eye surgeries. These machines were insured with the opponent under an Electronic Equipment Insurance Policy taken in the year 2010. Said policy was renewed without break. At the material time, policy bearing No.124500/44/2011/120 was in force for the period 02/02/2011 to 01/02/2012. The sum assured under the said policy is Rs.3,04,94,500/- (Rupees Three Crores Four Lakhs Ninety-Four Thousand Five Hundred only).
2. During the period of policy one of the machines suddenly failed on 22/07/2011. As the machine was covered under the insurance policy, opponent was informed who deputed Surveyor to assess the loss. Surveyor inspected the machine in presence of local representative of overseas manufacturer. On the basis of error code appearing on the screen, the Service Engineer, in consultation with the overseas manufacturer concluded that there was a problem with the laser head. It was suggested that the laser head be replaced as repairs were not possible. Complainant No.2 as per the advice of the Service Engineer replaced the laser head at a cost of Rs.46 Lakhs which was paid in four installments. Complainant No.2 accordingly lodged a claim for the said amount of Rs.46 Lakhs. Surveyor gave a false and prejudiced report dated 08/02/2012 opining that the claim is not payable. After receipt of said Survey Report, opponent has kept totally silent and has neither repudiated the claim nor sanctioned it. Since the matter is pending with the opponent/Insurance Company and no reply has been received by complainant No.2 it was contended that cause of action is continuous one.
Page 2 of 19CC/13/270 As no reply about claim made by complainant No.2 was given by the opponent, consumer complaint is filed claiming Rs.46 Lakhs spent on replacement of laser head. Complainants also claimed interest on said amount of Rs.46 Lakhs @ 12% p.a. from the date of Survey Report i.e. 08/02/2012 till realisation. Complainants also claimed Rs.2 Lakhs as compensation.
3. Opponent/Insurance Company resisted the complaint by filing written version. Opponent has taken preliminary objection contending that the complainant No.2 is not a consumer as complainant No.2 is engaged in commercial activities for commercial gain. It was contended that complainant No.2 is a Corporate Body (Private Limited Company) with operations in three states of India. Complainant No.2 had availed services of opponent for insuring its commercial assets and therefore, services availed of by complainant No.2 is for commercial purpose.
4. It was contended that Empirical Systems Pvt. Ltd. has applied for insurance cover for the said machine. Opponent issued the insurance cover under the Electronic Equipment Insurance Policy in the name of empirical Systems Pvt. Ltd. Said machine was purchased by Empirical Systems Pvt. Ltd. It was contended that said insured and complainant No.2 misrepresented and avoided disclosure of material facts at the time of taking cover with regard to year of manufacture of said machine. Opponent has issued policy on the basis of representation made by the insured. Opponent has contended that complainant No.2 and Empirical Systems Pvt. Ltd. have breached fundamental principle of good faith between the parties while taking insurance policy. Had the complainant No.2 and Empirical Systems Pvt. Ltd. represented the correct year of manufacture of said machine, the terms of the insurance contract including the premium, risk covered etc. would have substantially different.
Page 3 of 19CC/13/270 Therefore, this contract of insurance is void ab initio. Only on the request name of insured was changed to complainant No.2 in the year 2011. It is for the complainant No.2 to show insurable interest.
5. Opponent has not disputed about appointment of Surveyor. Surveyor has observed that conclusion of services provider is based on the error message appearing on the display board of the said machine and they have not physically examined the affected part to ascertain the actual problem for stoppage of the said machine. It was contended by the opponent that where the complainant, service provider and the manufacturer emphasised that the damaged part of the machine is not repairable and only replaceable, then the complainant No.2 is under duty and obligation to disclose as to why damaged part was bought back by the manufacturer at such a high price. That clearly establishes and fortifies the statement and observation of the Surveyor that the manufacturer buys back the alleged damaged goods and refurbishes and again sells it to the customers. This further also illustrated that the damaged part is repairable and reusable in the said machine. It was contended that complainant No.2 and the service provider are in collusion with each other to grab money from the opponent under the guise of the insurance cover. Complainant No.2 is guilty of non-disclosure and misrepresentation of facts about age of machine, faults, repairs and replacement conducted on the said machine and the service required by the machine since 2008. Opponent has contended that the machine is manufactured in the year 2007 and giving trouble from 2008 and therefore, defect/fault in the machine in 2011 was only due to natural wear and tear of the machine and it is not a sudden stoppage as claimed by complainant No.2. It was contended that the opponent repudiated the claim of complainant No.2 vide letter dated 03/09/2013 on the ground specified therein. Opponent prayed for Page 4 of 19 CC/13/270 dismissal of the complaint.
6. Considering the rival contentions of the parties, considering the record and keeping in view the scope of the complaint, following points arise for our determination and our findings thereon are noted for the reasons as below :-
Sr.No. Points Finding
Whether complainant No.2 is a consumer
1. as contemplated under the provisions of No
Consumer Protection Act, 1986?
2. Whether complainant No.2 has an Yes
insurable interest in said machine?
3. Whether repudiation made by the Yes
opponent is legal and proper?
Whether complainant No.2 is entitled for
4. amount of Rs.46 Lakhs with interest @
No
12% p.a. along with compensation of
Rs.2 Lakhs as claimed?
5. Complaint is
What order?
dismissed.
REASONS :-
7. Point No.1 (Consumer) :- Learned Advocate for the
opponent/Insurance Company has argued that complainant No.2 is a
corporate body and availed services of opponent for commercial purpose and hence, complainant No.2 is not a consumer. Learned Authorised Representative for the complainants has argued that services of insurance were availed by complainant No.2 from the opponent and hence, it cannot be said that services were availed for commercial purpose and hence, complainant No.2 is a consumer. Learned A.R. has relied on authority of Hon'ble National Commission in the case of Harsolia Motors V/s. National Insurance Company Ltd., I(2005) CPJ 27 (NC). It was observed by Hon'ble National Commission that the -
Page 5 of 19CC/13/270 "Contract of insurance generally belongs to general category of contract of indemnity. Services may be for any connected commercial activity, yet it would be within purview of the Consumer Protection Act, 1986." It was further observed that - "Policy is only for indemnification of actual loss, and not intended to generate profit."
8. Learned Advocate for the opponent has submitted that Hon'ble Supreme Court in Special Leave to Appeal (Civil) Nos.7186-7187/2004 in the case of National Insurance Co. Ltd. V/s. Harsolia Motors & Anr. by its order dated 15/04/2005 stayed the operation of the order of Hon'ble National Commission passed in Harsolia Motors's case. It was submitted that in view of said order of Hon'ble Supreme Court now the complainant No.2 cannot take help of that judgment of National Commission for contending that services of the insurance even though taken by the commercial organisation is not for commercial purpose. It was submitted that now it is open for consideration whether services of the insurance taken by any company is for commercial purpose or not.
9. Learned A.R. Mr.Gai has submitted that stay of the order is binding on said parties and it is not binding on others as the Supreme Court has not laid down any other legal proposition while passing stay order. Said legal proposition still can be used by other parties. He has submitted authority of Calcutta High Court in the case of Pijush Kanti Chowdhury V/s. State of West Bengal & Ors., (2007) 2 CALLT 577 HC. With due respect to Hon'ble Calcutta High Court, we find that the judgment of the High Court is binding only on them which are under the superintendence of that High Court. Thus, for the Maharashtra, the Hon'ble High of Bombay has superintendence over all courts and tribunals in the state of Maharashtra and hence, judgment of High Court of Bombay is binding on all courts and Page 6 of 19 CC/13/270 tribunals in the state of Maharashtra. However, that is not the position for judgments of other High Courts. Here, we would like to refer observations of Hon'ble Apex Court in the case of East India Commercial Co. Ltd. V/s. The Collector of Customs, Calcutta, 1962 AIR 1893, 1963 SCR (3) 338. It was observed by their Lordships that -
"The law declared by the highest Court in the State was binding on authorities or tribunals under it superintendence."
In view of those observations of the Hon'ble Apex Court, we find that in view of stay granted by the Supreme Court to the judgment of National Commission as referred above, now the point is open whether services of insurance availed by commercial organisation is commercial activity or not? That is to be decided in this case as said point is raised by Learned Advocate for the opponent in the present matter.
10. Mr.Gai submitted judgment of Hon'ble Supreme Court in the case of U.P. Power Corporation Ltd. & Ors. V/s. Anis Ahmad decided on 12/12/2011 and contended that in the said judgment, Hon'ble Supreme Court has observed that - "Since a large number of similar petitions are pending before various consumer fora, we deem it proper to request the National Consumer Disputes Commission to defer consideration of similar issues raised in the pending matters." Mr.Gai has submitted that no such observations were made by Hon'ble Supreme Court while staying judgment of Harsolia Motors in Petition for Special Leave to Appeal (Civil) Nos.7186-7187/2005 dated 15/04/2005. We find that in U.P. Power Corporation case, there was point of jurisdiction, however, that is not the position in case of appeal against the order in Harsolia Motors.
11. Learned Advocate for the opponent has contended that the insurance is also a service as like other services and hence, while deciding the point Page 7 of 19 CC/13/270 it should be considered as like other services. He submitted that when the commercial organisation maintained an account in any bank and if any dispute arises in respect of said account with said Bank, then said dispute is considered as commercial dispute and not coming under the provisions of Consumer Protection Act, 1986. He has submitted authority of Hon'ble National Commission in the case of Sushma Goel V/s. Punjab National Bank, II(2011) CPJ 270 (NC). In the said case, Sushma Goel is an authorised agent of M/s.Bonanza Portfolio Ltd. Complainant opened a current account in the name of M/s.Bonanza Portfolio Ltd. with Punjab National Bank. On 12/06/2008 when Sushma Goel got passbook updated she found that Rs.2,35,000/- has been transferred from the account through two cheques and deposited in the saving bank account of one Mr.Ranjit Singh on 11/06/2008. When consumer complaint was filed by Sushma Goel for M/s.Bonanza Portfolio Ltd. against Punjab National Bank claiming said amount of Rs.2,35,000/- with interest, District Forum allowed the consumer complaint. In appeal, State Commission, Uttarakhand set aside the said order. Then the matter went to the National Commission. While dismissing Revision Petition, National Commission has observed that -
"From the evidence produced on behalf of the complainant before the Fora, it is abundantly clearly that the entire matter in the complaint filed by Smt.Sushma Goel relates to operation of a bank account maintained by a commercial organization for a commercial purpose. Revision Petition itself claims in Para 3.1 that - "Revisionist is engaged in business of the share trading and is an authorised agent of M/s.Bonanza Portfolio Ltd., a company incorporated under Companies Act, 1956 having its registered office at 4353/4C, Ansari Road, Darya Ganj, New Delhi." It was Page 8 of 19 CC/13/270 further observed by the National Commission that - "By this admission, the complainant will fall within the exception clause contained in Section 2(1)(d)(ii) of the Consumer Protection Act, 1986 as amended in 2002. In terms of this provision, the revision petitioner/complainant does not qualify to be a consumer for the purposes of the Consumer Protection Act, 1986."
12. Learned Advocate for the opponent has argued that in view of said judgment of the National Commission, it is clear that only because the Bank account is maintained by the commercial organisation, services of the bank was branded as for commercial purpose and hence, complainant in the said case was not considered as consumer under the Consumer Protection Act, 1986. Learned Advocate for the opponent has submitted that insurance services are also the services and if those services are availed by commercial organisation then those services be considered as commercial activity as like that of bank service. We find much substance in the said argument.
13. Learned Advocate for the opponent has submitted that insurance policy issued by the Insurance Company is for giving insured amount to the person who has taken insurance policy in case anything adverse happens during policy period. If commercial organisation obtains insurance policy for its building, machinery, then by that policy commercial organisation is protecting its assets and hence, taking policy for protecting assets of commercial organization is certainly a commercial activity. We find much substance in the said argument.
14. It is material to note that the purpose for which the services are availed is decisive. Learned Advocate for the opponent has submitted judgment of this Commission in complaint case Nos.122to125/2013 (ABB Limited V/s. M/s.Super Laxmi Roadways decided on 30/01/2015). In the Page 9 of 19 CC/13/270 said case, this Commission has explained that purpose for which services are availed is a decisive to decide whether services are availed for commercial purpose or not. It was mentioned in the said judgment that -
"If the services of the carrier are availed by anybody for carrying his household articles from one place to other place, then those services availed are not for commercial purpose. However, if the services of the carrier are availed for carrying goods sold for delivering to the purchaser then the services availed of are certainly for commercial purpose as selling of the goods is for earning profit." If services are availed by commercial organization to get the reimbursement of the loss if suffered, in that case, commercial organization will be reimbursed of the loss, if any, suffered during the period of policy. Thus, commercial organization is reducing the losses or wiping out the entire loss with the help of amount which the organization will get on the basis of insurance policy. If that is so, then it is very clear that taking of insurance policy for the building, machinery and other assets, stocks of the commercial organization is certainly a commercial activity. Taking insurance policy for such purpose is for protecting the property or interest of commercial organisation. Thus the purpose of insurance policy is to protect interest of commercial organisation. Hence, services of insurance in such cases are part of commercial activity.
15. We find that in view of those observations of the Hon'ble National Commission in the said case, even profit which the commercial organisation would have earned in normal course and if it is not earned because of any reason then such organisation can claim that amount of profit on the basis of such policy. If that is so, then it can be said that the policy is also for earning profit. In any case, when the insured gets the amount on the basis of policy, either the losses are reduced to some extend Page 10 of 19 CC/13/270 or wiped out entirely or even profit can be earned on the basis of such policy as referred above. Hence, it is our considered opinion that the services of the Insurance Company, if availed for protection of business, assets of business, then it is certainly a commercial activity as part of said business.
16. To make the point more clear we would like to give illustration. If person takes a insurance policy for his residential house or his car, the insured may get the amount insured if the house or car suffers damage. In such cases, insurance policy cannot be said to be obtained for commercial purpose. However, when the same person takes policy for his industry for protecting assets of his industry i.e. building, machinery and stocks, in that case, said person may get amount which will reduce his loss in business or may wipe out the entire loss or even he will get the profit on the basis of said policy and hence, such type of policy is certainly a commercial activity as it is a part of his business.
17. Here, we would like to refer observations of the Apex Court in the case of Laxmi Engineering Works V/s. P.S.G. Industrial Institute, 1995 AIR 1428, 1995 SCC (3) 583, wherein their Lordships of the Apex Court have discussed the Consumer Protection Act, 1986 and its scheme. It was observed by their Lordships that -
"After good amount of consultation with governments and international organizations, the Secretary General of United Nations submitted draft guidelines for consumer protection to the Economic and Social Council (UNESCO) in 1983. After extensive discussions and negotiations among governments on the scope and content of the guidelines, the General Assesmbly of the United Nations adopted the guidelines for consumer protection by consensus on 9th April 1985 [General Assembly Resolution Page 11 of 19 CC/13/270 No.39/248]. The guidelines issued are placed under four heads, viz., objectives, general principles, guidelines and international co- operation. Para 1 of the head "objectives" reads as under :-
"Taking into account the interests and needs of consumers in all countries, particularly those in developing countries, recognizing that consumers often face imbalances in economic terms, educational level, and bargaining power and bearing in mind that consumer should have the right of access to non-hazardous products, as well as the importance of promoting just, equitable and sustainable economic and social development, these guidelines for consumer protection have the following objectives :- (a) To assist countries in achieving or maintaining adequate protection for their population as consumers; (b) to facilitate production and distribution patterns responsive to the needs and desires of consumers; (c) to encourage high levels of ethical conduct for those engaged in the production and distribution of goods and services to consumers."
We find that the reference "recognising that consumer often face imbalances in economic terms" is certainly relates to individual person. It is germane to note that adequate protection for their population as consumers as referred in the objectives above, denotes that population means public at general as a consumer. Thus, we find that here while considering consumer, a common person is the centre for consideration. Nowhere it is considered an artificial person/commercial organisation as a consumer while considering scheme of the Act. The objectives also to render inexpensive and speedy remedy is necessary.
18. It was further observed by the Apex Court that indeed the entire act revolves around the consumer and is designed to protect his interest. The Page 12 of 19 CC/13/270 act provides for "business to consumer" disputes and not for "business to business" disputes. We find that those observations are very material for deciding the issue before us. The act provides for "business to consumer"
disputes. It means on one side business organisation running business such as Insurance Company or other Companies providing services and on other side an individual person and that is why words are used "business to consumer" disputes. It was specifically mentioned that the act provides not for "business to business" disputes. It means it is not expected under the provisions of the act that both parties are running a business. If that is so then dispute between "business to business" is not expected to cover under the act as observed by Hon'ble Apex Court.
19. Here in the present case, complainant No.2 is commercial organisation running commercial activity. To protect machinery for running business, the policy was taken from the opponent and hence, purpose of availing services of the opponent is certainly for commercial purpose. Hence, we find that the complainant is not a consumer as contemplated under the Consumer Protection Act, 1986.
20. It is contended that under the insurance policy only reimbursement of loss is expected and no question of earning profit is there. We find that minimising loss of the commercial organisation is also a profit of it. For that organisation is investing premium and getting that benefits. Even there are policies where the organisation can get the amount of profit which it could not earn.
21. It was argued by Learned Advocate for the opponent that point of end user is to be kept in mind while deciding whether activities/services are commercial or not. If end user is individual, it is not commercial. If it is organisation, then it is commercial activity. If water cooler or AC is purchased by the commercial organisation for its employees, then that Page 13 of 19 CC/13/270 cannot be said as commercial activity and purpose is not a commercial purpose as end user is employee i.e. the natural person. However, commercial organisation purchased water cooler or AC necessarily for cooling product of the organisation then it is a commercial purpose as end user is commercial organisation.
22. If commercial organisation enters into maintenance contract for its machine, the organisation will not get any profit by that contract, but by that contract the organisation will get assurance that in case of any problem in the machine, the service provider will remove the defects. Here, there is no question of earning profit by said contract. In spite of that such service contract is for machinery in the business and it is a part of business and hence, it is for commercial purpose. Likewise, when contract of insurance is for assets of the commercial organisation then it is for commercial purpose.
23. Complainant No.2 cannot take advantage of explanation to Section 2(1)(d)(ii) of the Consumer Protection Act, 1986 as that is not its case as commercial organisation cannot raise a plea of earning livelihood by means of self employment. Thus, complainant No.2 is not a consumer as contemplated under the Consumer Protection Act, 1986.
24. In view of basic scheme and object of the Consumer Protection Act, 1986, it is the individual person who is a consumer for whose protection the Act is passed. No doubt in view of definition of "consumer" and "person", firm, co-op. society, association of persons can be a consumer, however, services availed should not be commercial.
25. In view of above discussion, the commercial organisations are not the consumers when they are running any activity for their business such as purchasing machine for business and likewise taking insurance policy Page 14 of 19 CC/13/270 for protecting that machine or its assets.
26. It is germane to note that more than 90% consumer complaints against the Insurance Companies are by the commercial organisation and they are depriving rights of the common man who is a real consumer of the Insurance Companies by occupying most of the field. Thus, common man is deprived of getting quick relief.
27. In view of the above discussion, it is clear that complainant No.2 who is a company i.e. commercial organisation is not a consumer as contemplated under the Consumer Protection Act, 1986. Hence, we answer Point No.1 in negative.
28. Point no.2 (Insurable interest):- The opponent has contended that complainant no.2 has no insurable interest in the said machine. It is admitted position that initially the insurance policy was in the name of 'M/s.Empirical System Pvt.Ltd.'. Thereafter, at the request of insured and complainant no.2, the policy was changed in the name of complainant no.2 in the year 2011. Learned advocate for the opponent has contended that complainant no.2 has not produced any document about the ownership of the said machine or to show that complainant no.2 has insurable interest in the said machine. The surveyor has mentioned it in his report. It is a matter of record that complainant no.2 has not filed any document even before this Commission to show that complainant no.2 has ownership to the said machine and complainant no.2 has insurable interest. When the point of insurable interest of complainant is raised, then it was necessary for the complainant to file necessary document to show that ownership of the machine is with the complainant and complainant has insurable interest. Learned authorized representative for complainant Shri Gai has submitted that when the insurance policy is issued in the name of complainant no.2, the Insurance company cannot raise the point of insurable interest. He Page 15 of 19 CC/13/270 relied on the authority of the Hon'ble National Commission in the matter of United India Insurance Co.Ltd. v/s. Hasan Sultan Nadaf reported in Volume III (1992) CPJ 64 (NC). It was held in the said case that, "It is the duty of the insurer to satisfy himself before issuing a policy of insurance, that the insured has insurable interest. Only if the insured has furnished wrong or false information, it is open to the insurer to repudiate an insurance claim on the policy. But it is not open to raise the question of absence of insurable interest after the policy has been issued." In view of this finding of Hon'ble National Commission and in view of the fact in the case before us, where it is not disputed that the insurance policy is issued in the name of complainant no.2, now Insurance company cannot raise the point of insurable interest. Thus, we find that issuance of policy in the name of complainant no.2 is a sufficient material to conclude that complainant no.2 has insurable interest. Hence, we answer point no.2 in affirmative.
29. Point no.3 (Repudiation) :- The opponent has repudiated the claim on two grounds. One is that the complainant has no insurable interest and that the breakdown described is not one that is indemnifiable under the policy. As far as first ground is concerned, we have already concluded that complainant no.2 has insurable interest and, hence, repudiation on that ground is not legal and proper.
30. As far as second ground is concerned, the learned advocate for opponent has argued that the said machine was initially purchased by 'M/s.Empirical System Pvt.Ltd.' in the year 2007. Complainant no.2 has not disputed that the said machine was initially owned by 'M/s.Empirical System Pvt.Ltd.' However, complainants have not filed on record any document about the date of manufacturing of the said machine. It is the contention of the complainants that it was a sudden breakdown of the Page 16 of 19 CC/13/270 machine. Learned advocate for the opponent has contended that the machine was purchased by 'M/s.Empirical System Pvt.Ltd.' on 14/09/2007. At page no.79 of compilation there is a document to show the said transaction.
31. Learned advocate for the complainant has drawn our attention to service reports which are at page nos.82 to 99. First report is dated 12/03/2008. Fault is shown as P.M.S. Diagnosis is shown as "Need to check the machine". Second service report is dated 27/06/2008. Third report is dated 08/08/2008. There are 18 service reports till 25/07/2011. Learned advocate for the opponent has contended that these 18 service reports are sufficient to show that there was no sudden breakdown in the machine but it is because of the natural wear and tear due to the prolonged use of the machine. We find much substance in the said argument of learned advocate for the opponent, in view of those 18 service reports.
32. Learned advocate for opponent has drawn our attention to insurance policy and special exclusion to section I at page no.28 in complaint compilation, which reads as under:-
"The Company shall not, however, be liable for
c) loss or damage as a direct consequence of the continual influence of operation (e.g.wear and tear, cavitation, erosion, corrosion, incrustation) or of gradual deterioration due to atmospheric conditions)."
33. Learned advocate for the opponent has also contended that there is no document on record to show what was the actual damage and that the said part i.e.Laser Head was not repairable. He has drawn our attention to last service report which is at page no.99 of complaint compilation. In the Page 17 of 19 CC/13/270 said report, Engineer's remark is "Need to replace the Laser Head by new one. As we cannot remove the manifold and valve in the field invoirement, this refurbishment is only done at factory."
34. Learned advocate for opponent contended that refurbishment means renew. It means said part can be renewed. From the said service report and remark of the Engineer it is very clear that the said part was not opened and checked by the Engineer to find out what was the defect and whether it is repairable or not. Only on the basis of the image on the monitor, that remark was given by Engineer.
35. In view of the above discussion, it is very clear that the said machine was taken for service on 18 times. As per surveyor's report which is at page 38 of compilation, life of Laser Head is only for 2-3 years. However, the affected Laser Head has been in use for over 3½ years. During this time, the Cavity and/or Valves and/or Valve Manifolds have deteriorated and leakage has started. In view of these observations of the surveyor in his report at page no.41 of compilation, it is to be accepted that there was no sudden breakdown of the machine but it was because of the natural wear and tear due to the prolonged use of the machine. Thus, we find that repudiation on second point that the breakdown described is not one that is indemnifiable under the policy is legal and correct in view of the exclusion clause in the policy. Hence, we answer point no.3 in affirmative.
36. Point no.4 :- In view of the answer to point nos.1,2 &3 we answer point no.4 in negative.
Page 18 of 19CC/13/270
37. Point No.5 :- In view of answers to point Nos.1,2,3&4, complaint deserves to be dismissed. Hence, we pass the following order :-
-: ORDER :-
1. Consumer complaint stands dismissed.
2. In the circumstances of case, parties to bear their own costs.
3. Copies of the order be furnished to the parties.
Pronounced Dated 27th July 2017.
[ P. B. Joshi ] PRESIDING JUDICIAL MEMBER [ D. R. Shirasao] JUDICIAL MEMBER dd/ms Page 19 of 19