State Consumer Disputes Redressal Commission
Oriental Insurance Co., vs M/S Bawanigarh Gas Service, on 11 October, 2013
2nd Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH
First Appeal No. 319 of 2012
Date of institution: 15.3.2012
Date of Decision : 11.10.2013
1. Oriental Insurance Co., SCO No. 109-111, through its Manager,
Sector 17-D, Chandigarh.
2. O.I.Co. through B.M. Dhuri Rd., Sangrur.
.....Appellants/Opposite parties
Versus
M/s Bawanigarh Gas Service, Toor Patti, Bawanigarh District Sangrur,
through its Proprietor Charanpal Singh Sidhu.
.....Respondent/Complainant
Argued By:-
For the appellants : Sh. Vinod Chaudhary, Advocate
For the respondent : None.
First Appeal against the order dated 31.1.2012
passed by the District Consumer Disputes
Redressal Forum, Sangrur.
Quorum:-
Shri Gurcharan Singh Saran, Presiding Judicial Member
Shri Jasbir Singh Gill, Member Gurcharan Singh Saran, Presiding Judicial Member The appellants/opposite parties (hereinafter called "the opposite parties") have filed the present appeal against the order dated 31.1.2012 passed by the District Consumer Disputes FIRST APPEAL NO. 319 OF 2012 2 Redressal Forum, Sangrur (hereinafter called "the District Forum") in consumer complaint No. 164 dated 19.3.2010 filed by the complainant was accepted.
2. The complaint was filed by the complainant/respondent(hereinafter called 'the complainant') under Sections 11 to 14 of the Consumer Protection Act, 1986 (in short 'the Act') on the allegations that he purchased one Truck bearing registration No. PB-13R/7075 and was insured with the Ops for the period 13.6.2008 to 12.6.2009 vide cover note No. CHD-C79875 and paid Rs. 8,688/-. On 8.5.2009 at about 7.00 p.m. when the material Bajri was being unloaded from the vehicle then suddenly one wheel of the vehicle turned tilted to the left side, as a result of which, he suffered damages of Rs. 1,55,000/-, which was got repaired from Raj Agro, Khanna. Er. Shingara Singh, Surveyor has reported the loss to that extent. They lodged the report with the Ops but they repudiated the claim. Accordingly, claim of Rs. 1,55,000/- alongwith compensation to the tune of Rs. 15,000/- and litigation expenses of Rs. 5500/- was demanded from the Ops.
3. The complaint was contested by the OP, who filed written statement taking legal objections that the complainant has not come to the District Forum with clean hands, therefore, the complaint is liable to be dismissed with special costs of Rs. 20,000/-; the complainant does not fall within the definition of 'consumer' under the C.P. Act because the same was being used for commercial purpose; the complaint has been filed to over reach the law and contract; the complaint is bad for non-joinder of Tata Motor Finance Ltd., who had FIRST APPEAL NO. 319 OF 2012 3 financed the vehicle; the complainant has no cause of action because there is no deficiency or unfair trade practice on the part of the Ops. and that the complaint is not maintainable in the present form. On merits, it has been admitted that the vehicle in question of the complainant was insured with Ops for the period 13.6.2008 to 12.6.2009. However, according to the policy, it was subject to IMT-47, IMT-29, IMT-23 and IMT-6 as per the conditions of the policy. As per IMT-47, the insurer shall be under no liability in respect of loss or damage resulting from overturning arising out of operation as a tool of such vehicle or of plant forming part of such vehicle or attached thereto. The cause of accident has been observed that while driver was unloading material suddenly rear wheels got slipped due to loose material beneath rear wheel, got imbalanced and turned tilted. The opposite party appointed Mr. Shingara Singh as Surveyor, who observed that loss took place to the vehicle because of over turning arising out of operation as a tool of such vehicle, therefore, the Ops are not liable to pay any type of damages/claim to the complainant. However, the Surveyor assessed the loss to the tune of Rs. 1,31,328.78, accordingly, it was submitted that there is no merit in the complaint and the same be dismissed.
4. The parties were allowed by the learned District Forum to lead their evidence.
5. In support of his allegations, the complainant had tendered into evidence his affidavit Ex. C-1, registration certificate Ex. C-2, copy of insurance policy Ex. C-3, bills of repair of Punjab Agro Ex. C-4, permit Ex. C-5, copy of driving licence Ex. C-6. On the other FIRST APPEAL NO. 319 OF 2012 4 hand, the opposite party had tendered into evidence affidavit of I.K. Munjhal, Sr. Divisional Manager Ex. R-1, copy of ins. Policy Ex. R-2, claim form Ex. R-3, affidavit of Sudesh Kumar Beond, Auto Engineer Ex. R-4, surveyor reports Ex. R-5 & 6, repudiation letter Ex. R-7, tariff details Ex. R-8, Indian Motor Tariff 2002 Ex. R-9.
6. After going through the allegations in the complaint, written statement, evidence and documents brought on the record, the learned District Forum vide impugned order has observed that under IMT-47, the opposite parties repudiated the claim of the complainant that loss or damage to the vehicle resulting from overturning arising out of the operation as a tool of such vehicle or of plant forming part of such vehicle whereas the case of the complainant is that loss was not from overturning but it was a case of tilting. Neither Surveyor Shingara Singh nor Sudesh Kumar Beond, Loss Assessor has observed that it was a case of overturning rather their view is of tilting of the vehicle, therefore, the Ops are not protected under IMT-47. The Surveyor and Loss Assessor has assessed the loss to the tune of Rs. 1,31,328.78p. It was observed that repudiation is incorrect and the complainant is entitled to the loss of Rs. 1,31,329/- with interest @ 9% per annum from the date of institution of the complaint till payment with litigation expenses of Rs. 3,000/-.
7. Aggrieved with the order passed by the learned District Forum, the appellants/opposite party has filed the present appeal.
8. In the grounds of appeal, it has been contended by the appellant that the claim was repudiated on the basis of IMT-47, which FIRST APPEAL NO. 319 OF 2012 5 is part of terms and conditions of the policy. The Ld. Court below in its wisdom tried to make distinction between the word "Overturned" and "Tilted" and came to the conclusion that it was not a case of overturned but had tilted, whereas, the word tilting/overturned is so frequent that the Tariff Advisory Body was conscious of such losses and was quick to exclude this period through IMT 47, therefore, the distinction of the learned District Forum is not correct.
9. We have heard the learned counsel for the appellant Sh. Vinod Chaudhary, Advocate.
10. After the alleged accident, Er. Shingara Singh was appointed as Surveyor and his report is Ex. R-6 and he in his report under the items 'Cause and Nature of Accident' has mentioned as under:-
"9. Cause and nature of accident : As explained The vehicle was unloading the material at site, suddenly due to slipping of loose material below rear R/s tyres the vehicle tilted towards L/s".
11. Even Mr. Sudesh Kumar Beond, who is Surveyor and Loss Assessor appointed by OP has also observed 'Nature and Cause of Accident' as under:-
"Nature & Cause of Accident : As reported by the insured rep is that while driver was un loading loaded material suddenly rear wheels got slipped due to loose material beneath rear tyres. The vehicle got un balanced and turned tilted on its left side and it got damaged."FIRST APPEAL NO. 319 OF 2012 6
12. He has also observed the cause as turn tilted and has not observed that it was due to over-turning. Even otherwise it tilted when the material Bajri was being un-loaded and tilted means 'cause for moving to slopping position', which was in the present case whereas overturning refers to turning over and come or bring to rest ups and down, therefore, keeping in view the observation made by the Surveyor and Loss Assessor and even technically going through the meaning of the word 'tilting/overturning' it is case of tilting and not the over-turning. Therefore, the case of the Ops/appellants is not covered under IMT-47. The Loss assessed by the Surveyor according to report Ex. R-5 is Rs. 1,31,328.78, which has been allowed by the learned District Forum, therefore, we are of the opinion that the findings so recorded by the learned District Forum are correct findings, we do not find any infirmity in the same and the same are hereby affirmed.
13. In view of the above discussion, we do not find any merit in the appeal and the same is dismissed with no order as to costs.
14. The arguments in this appeal were heard on 7.10.2013 and the order was reserved. Now the order be communicated to the parties as per rules.
15. The appellants had deposited an amount of Rs. 25,000/- with this Commission at the time of filing the appeal and Rs. 54,096/- + Rs. 25,131/- in compliance with the order dated 27.3.2012. These amounts with interest accrued thereon, if any, be remitted by the registry to the respondent by way of a crossed cheque/demand draft FIRST APPEAL NO. 319 OF 2012 7 after the expiry of 45 days under intimation to the learned District Forum and to the appellants.
16. Remaining amount shall be paid by the appellants to the respondent within 30 days from the receipt of the copy of the order.
17. The appeal could not be decided within the statutory period due to heavy pendency of Court cases.
(Gurcharan Singh Saran)
Presiding Judicial Member
October 11, 2013. (Jasbir Singh Gill)
as Member