State Consumer Disputes Redressal Commission
United India Insurance Co. Ltd vs Prasanna Babu, Friends Saw Mill, on 30 November, 2011
Daily Order
Kerala State Consumer Disputes Redressal Commission Vazhuthacaud,Thiruvananthapuram First Appeal No. A/11/417 (Arisen out of Order Dated 29/03/2011 in Case No. Complaint Case No. CC/10/24 of District Kottayam) 1. United India Insurance Co Ltd Divisional Office,Kottayam Kottayam Kerala ...........Appellant(s) Versus 1. Prasanna Babu Friends Saw mill,Palakkal House,Vazhoor,Kottayam Kottayam Kerala ...........Respondent(s) BEFORE: SRI.S.CHANDRAMOHAN NAIR PRESIDING MEMBER PRESENT: ORDER
KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM.
APPEAL NO.417/11
JUDGMENT DATED :30.11.11
PRESENT:
JUSTICE SHRI. K.R. UDAYABHANU : PRESIDENT
SHRI.S. CHANDRA MOHAN NAIR : MEMBER
United India Insurance Co. Ltd.,
Divisional Office, Kottayam,
Represented by the Sr. Divisional Manager, : APPELLANT
United India Insurance Co. Ltd.,
Divisional Office, LMS Compound,
Trivandrum, Dr. Mohan Shankar.
(By Adv. R. Jagadish Kumar)
Vs
Prasanna Babu, Friends Saw Mill,
Palakkal House, Vazhoor P.O., : RESPONDENT
Kottayam District.
(By Adv. Suresh Kumar C.R.)
JUDGMENT
SHRI.S. CHANDRA MOHAN NAIR : MEMBER This appeal is filed by the opposite party, in CC No. 24/10 before the CDRF Kottayam, who is aggrieved by the directions to the opposite party to pay a sum of Rs.2,02,127/- with 9% interest per annum from the date of complaint till payment.
2. The complainant has approached the Forum stating that he is having a hydraulic mobile crane with registration no. KL 33/A 3200 and the same was having a special package policy for the period from 14.10.2008 to 13.10.09 and that on 24.3.09 at about 5.pm, when the crane was in use it overturned and got totally damaged. It is the case of the complainant that though he had made a claim for Rs.2,02,127/- towards the repair charges, the same was repudiated by the opposite party stating that the policy did not cover overturning risk. Alleging deficiency in service, the complaint was filed praying for directions to the opposite party to pay a sum of Rs. 2,02,127/- with interest at 12% p.a from 28.10.2009 till payment.
3. The opposite party vehemently opposed the complaint by filing version where in it was submitted that at the time of accident, the same did not cover the over turning risk as no additional premium was paid by the complainant. It was also submitted that the complainant had subsequently remitted the premium from 14.10.09 to 13.10.2010 covering the overturning risk and as the previous period did no cover the overturning risk, the repudiation was legal and there was no deficiency in service.
4. The evidence consisted of the affidavits filed by both sides, Exts. A1 to A8 were marked on the side of the complainant and Ext. B1 and B2 were marked on the side of the opposite party.
5. Heard both sides.
6. The learned counsel for the appellant argued the case based on the contentions taken on the version as well as the grounds urged in the memorandum of the present appeal. It is submitted by him that though the complainant had a valid policy at the time of risk the particular policy did not cover the risk of overturning. Inviting our attention to Exts. B1 and B2 the learned counsel advanced the contention that the complainant did not opt for overturning risk by paying additional premium to include IMT 47 in the policy. The learned counsel has further advanced the contention that in Ext.B1, IMT 47 was not incorporated as the complainant had not opted for the same and in Ext.B2 IMT 47 was incorporated as the complainant had opted for including the same. It is the case of the learned counsel that the Forum below has not appreciated the above said facts while disposing the complaint.
7. On the other hand, the findings and conclusions of the Forum below were supported by the learned counsel for the respondent. He has submitted before us that while issuing Ext. B1 policy, there was no such condition named as IMT 47 as can be seen from the policy itself. It is submitted by him that at the time of issuing Ext.B1 there were no such conditions and it was only at the time of issuing the second policy ie Ext. B2 that the opposite party had incorporated the particular condition. Hence it is his very case that the repudiation of the claim was definitely deficiency in service and unfair trade practice. He has argued before us that the appeal is to be dismissed with compensatory cost.
8. On hearing both sides and on a perusal of the records, we find that it is the admitted case of both parties that the complainant had a valid policy at the time of accident that happened on 24.3.09. The crucial question that is to be answered by us is whether the complainant had opted for covering overturning risk at the time of taking Ext.B1/A1 policy. On a perusal of Ext. B1/A1 we find that in the policy schedule no said condition such as IMT 47 is in corporated . It is only in Ext.B2 that the same is incorporated. The Forum below has considered this important aspect while passing the impugned order. It is to be found that the opposite party had repudiated the claim on the ground of a non existing clause. The opposite party has also a case that the accident had occurred at a time when the vehicle was not in use. The opposite party has admitted that the accident occurred while lifting the body of a dead elephant using the crane. In the said circumstance, it can be concluded that accident occurred when the vehicle was in use. In Ext. B1 nowhere it is stated that such type of accident is excluded for payment of the insured amount. However, it is also found that the Forum below has awarded the entire amount to be paid to the complainant. The learned counsel for the appellant has vehemently opposed the payment of the entire amount. However we find that the policy excess etc has to be deducted for payment from the claim amount. It will be just and proper that 10% is deducted from the claim amount. Then the payable amount will be Rs. 1,81,915/-. The appellant/opposite party is liable to pay the said amount with 9% interest from the date of complaint till payment.
In the result, the appeal is allowed in part with the above modification. Thereby the appellant/opposite party is directed to pay to the complainant a sum of Rs.1,81,915/- with 9% interest from the date of complaint till payment.
In the facts and circumstances of the present appeal, the parties are directed to suffer their respective cost.
The office is directed to forward the LCR to the Forum below along with a copy of this order.
S. CHANDRA MOHAN NAIR: MEMBER JUSTICE K.R. UDAYABHANU: PRESIDENT DA [ SRI.S.CHANDRAMOHAN NAIR] PRESIDING MEMBER