State Consumer Disputes Redressal Commission
Sh. Chaman Lal Thakur. vs Iffco Tokio General Insurance Co. Ltd. & ... on 11 November, 2022
H. P. STATE CONSUMER DISPUTES REDRESSAL
COMMISSION SHIMLA
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First Appeal No. : 69/2020
Date of Presentation: 12.06.2020
Order Reserved on : 12.10.2022
Date of Order : 11.11.2022
......
Sh. Chaman Lal Thakur Son of Sh. Daya Nand,
Resident of Village Ghiraj, Post Office Digerh,
Tehsil Anni, District Kullu, H.P.
...Appellant/Complainant
Versus
1. IFFCO Tokio General Insurance Co. Ltd.
Plot No.2, B & C, 4th Floor, IFFCO Complex,
Sector 28A, Madhya Marg, Chandigarh-160018.
2. M/s Krishna Automobiles, Mohali, Plot No.3,
Sector-82, Mohali-160055, Punjab.
...Respondents/Opposite parties
Coram
Hon'ble Justice Inder Singh Mehta, President
Hon'ble Ms. Sunita Sharma, Member
Hon'ble Mr. R.K.Verma, Member
Whether approved for reporting?1
For Appellant : Mr. Pradeep Kumar Gupta Advocate.
For Respondent No.1 : Mr.Virender Kumar Sharma, Advocate.
For Respondent No.2: None.
Justice Inder Singh Mehta, President
ORDER
Instant appeal is arising from order dated 25.02.2020 passed by learned District Consumer Commission, 1 Whether reporters of the local papers may be allowed to see the order? Chaman Lal Thakur versus IFFCO Tokio General Ins. Co. Ltd. & Anr.
(F.A. No. 69/2020) Kullu, H.P. in Consumer Complaint No. 17/2019 title Sh. Chaman Lal Thakur versus IFFCO Tokio General Insurance Co. Ltd. & Anr.
2. Brief facts stated are that complainant purchased a JCB excavator bearing Engine No. H00177458, Chassis No.HAR3DXSST02600004 and Registration No. HP-35-5025, from the opposite party No.2 on 09.04.2018 to earn his livelihood by means of self employment. The JCB excavator of complainant was insured with opposite party No.1 and cover note dated 9.4.2018 was issued. No Insurance policy cover was issued and handed over to the complainant. The JCB excavator was insured from 9.4.2018 to 8.4.2019 by the opposite party No.1 for a sum of Rs. 20,78,243/-. On 14th October, 2018 while the JCB excavator was deployed for breaking the stones at Betli Nalla on Panetanal- Bishal Road, the same met with an accident. JCB excavator rolled down into a deep gorge along with the driver Shri Sunil Kumar and was extensively damaged. Shri Sunil Kumar driver sustained multiple injuries in the mishap and subsequently died.
3. Information regarding the incident was given to the police and to the opposite party No.1. FIR No.0113, dated 14.10.2018 was registered in Police Station, Ani, District Kullu, Himachal Pradesh. Shri Chirag Thakur, Surveyor and Loss Assessor, was deputed by the opposite party No.1 to conduct the spot inspection. He visited the site on the same day and assessed the damage caused to the JCB excavator. Requisite papers were supplied by the complainant to Shri Chirag Thakur. 2 Chaman Lal Thakur versus IFFCO Tokio General Ins. Co. Ltd. & Anr.
(F.A. No. 69/2020) The complainant took the vehicle to the workshop of the opposite party No.2 at Mohali for repair. It was informed that a Surveyor will be appointed for final assessment of loss. Services of Shri P.K.Bansal, Surveyor and Loss Assessor, were hired by the opposite party No.1, who visited the garage of the opposite party No.2 and inspected the vehicle. Shri P.K.Bansal told the complainant that claim documents should be submitted in the office of the opposite party No.1. Shri P.K.Bansal asked the opposite party No.2 to repair the vehicle. The JCB excabator was repaired by the opposite party No.2. Bill of Rs. 7,43,468/- for spare parts etc. was issued. Another bill worth Rs. 88,500/- towards labour charges was issued by the opposite party No.2. Shri P.K. Bansal conveyed that approved amount of loss will be paid by the opposite party No.1 and difference will be paid to the OP No.2 by the complainant.
4. After 8-10 days, the opposite party No.1 through Shri P.K.Bansal intimated the complainant that the opposite party No.2 was not a registered vendor with them. Lot of time will be taken to get the opposite party No.2 registered as a vendor. Shri P.K.Bansal submitted his final report in the office of the opposite party No.1. Requests were made to the opposite party No.1 to settle the claim, but in vain. Letter dated 07.02.2019 was received from the opposite party No.1. The claim of the repair bills submitted by the claimant owner has been rejected on false grounds.
3 Chaman Lal Thakur versus IFFCO Tokio General Ins. Co. Ltd. & Anr.
(F.A. No. 69/2020)
5. Opposite party No.1 in its reply has taken preliminary objections to the effect that overturning of vehicle while in operation is not covered under the policy. Opposite party No.1 repudiated the claim vide letter dated 07.02.2019 that the JCB excavator was damaged not due to any "Accident External Means" and it got overturned while being used as a tool of operation which is not covered under the policy for want of fulfillment of regulation number IMT47 (Indian Motor Tariff). In the claim form, cause of loss was mentioned as "Machine was working on site while reversing machine fell down and overturned". On merits, it is admitted that JCB excavator was bought by the complainant from the opposite party No.2, the same was insured with Opposite Party No.1 and met with an accident during the period of insurance policy. However, it has been denied that only cover note was provided to the complainant. Insurance policy was issued and given to the complainant. On receipt of information regarding the incident, Shri Chirag Thakur, Surveyor and Loss Assessor, was deputed to conduct the spot survey. Pee Kay & Co. was appointed to conduct the final survey and assess the loss. Surveyor report is Annexure O-4. The opposite party No.1 prays that the complaint be dismissed with special costs.
6. Opposite party No.2 in its reply has raised preliminary objections to the effect that the complaint is not maintainable in the present form. The Opposite Party No.2 has no concern with the controversy and has been unnecessarily impleaded as a party 4 Chaman Lal Thakur versus IFFCO Tokio General Ins. Co. Ltd. & Anr.
(F.A. No. 69/2020) to the complaint. On merits, it is admitted that a JCB excabator was sold to the complainant. It was duly insured with the opposite party No.1 as agreed by the complainant. When the machine was delivered, policy documents were handed over to the complainant. Opposite Party No.2 has no knowledge regarding the occurrence. Vehicle was brought to the workshop and repaired as directed by Shri P.K.Bansal, a Surveyor of the opposite party No.1, who visited the garage and inspected the JCB excabator. Insurance claim, if any, is payable by the opposite party No.1. Opposite Party No.2 has no role to play. Repair bills were supplied to the opposite party No.1. After repudiation of claim, the complainant came to the workshop and took back the repaired vehicle. Repair bills were paid by the complainant. Neither the complainant has been harassed nor sustained any loss. There is no deficiency in service or unfair trade practice.
7. No rejoinder has been filed.
8. Learned District Forum below dismissed the complaint.
9. Feeling aggrieved by the order of learned District Forum, Kullu, appellant preferred the present appeal and prayed that present appeal be allowed and impugned order dated 25.02.2020 passed by learned District Forum, Kullu in Consumer Complaint No. 17/2019 be set aside.
10. During the course of arguments, learned counsel of the appellant has submitted that the District Commission below 5 Chaman Lal Thakur versus IFFCO Tokio General Ins. Co. Ltd. & Anr.
(F.A. No. 69/2020) went wrong on material facts available on record and reached to the wrong conclusion. Learned counsel of the appellant has submitted that the said JCB excavator while on the process of performing the duty met with an accident. The driver of the vehicle alongwith the vehicle JCB excavator went down to the khad and driver Sunil Kumar sustained injuries and later on died. The JCB excavator later was taken to the workshop of the opposite party No.2 and got repaired the said JCB excavator and the bills as shown in repair amounting to Rs.7,43,468/-alongwith bill of spare parts. Another bill worth ₹ 88,500/- towards labour charges was issued by the opposite party No.2. Opposite party appointed the surveyor and assessed the loss to the tune of Rs. 7,25,853/- and claimant be awarded with claimed amount as stated in the complaint.
11. On the other hand, learned counsel for the respondent No.1 IFFCO Tokio General Insurance Company Ltd. has submitted that Para-3(v) of the complaint and reply thereto be seen before reaching and appreciating the material facts on record. Learned counsel of the respondent No.1 has further submitted that IMT-47 was not there in the Insurance policy because Insurer has not paid the additional premium. Learned counsel of the respondent No.1 has submitted that complainant is also not entitled for any amount on the basis of Surveyor's report. He further submitted that the District Forum below has 6 Chaman Lal Thakur versus IFFCO Tokio General Ins. Co. Ltd. & Anr.
(F.A. No. 69/2020) rightly passed the order in favour of the Insurance Company and he relied upon the judgments;
i) (2016)3 Supreme Court Case 49, title United India Insurance Company Ltd. Vs. Orient Treasurers Pvt. Ltd.
ii) United India Insurance Company Ltd. Vs. Sharda Associates, decided on 12 July, 2019, National Commission.
iii) ICICI Lombard Genera Insurance Co. Vs. M/s Adam Suleman Durvesh, decided on 28 January, 2016, National Commission.
12. In rebuttal, learned counsel of the appellant has relied upon judgment of Hon'ble Punjab & Haryana High Court in CWP No.825 of 2017, titled OIC Ltd. Vs. Shamiksha Dua & Anr, decided on 20.02.2017.
FINDINGS :
13. The complainant in his complainant has specifically stated that JCB excavator in question bearing registration No. HP-35-5025 was purchased on 09.04.2018 for consideration of Rs. 22,46,750/-. The said JCB excavator was insured with opposite party No.1 i.e IFFCO Tokio General Insurance Co. Ltd. vide policy No. MO546282.
14. The complainant in his complaint has further stated that on 14.10.2018, the JCB excavator in question was detailed at work site at Betli nalla on Panatanala-Bishal road for breaking of stones. The aforesaid JCB excavator while at the work site in the process of working, met with an accident and rolled down in a 7 Chaman Lal Thakur versus IFFCO Tokio General Ins. Co. Ltd. & Anr.
(F.A. No. 69/2020) deep gorge alongwith its driver who sustained multiple injuries and machine was extensively damaged.
15. The aforesaid factum in para 3(v) of the complaint is reproduced as under :-
" That on 14.10.2018, while the JCB machine was detailed a work site at Betli nalla on Panatanala-Bishal road for breaking of stones for aggregate purpose and in the process of working of stones for agregate purpose and in the process of working, the machine met with an accident and rolled down in a deep gorge along with the driver, who sustained multiple simple as well as grievous injuries and the machine was extensively damaged."
Further, the factum of accident was intimated to the Police and FIR No. 0113 was registered in Police Station, ANNI, District Kullu, H.P. The relevant para is reproduced as under :-
On 14.10.2018, at about 10.30 A.M Sunil Kumar, driver of the JCB was engaged in crushing of the stones through JCB in question and in the process while the driver of the JCB was taking back through reversing the JCB lost control over it and thet JCB in question alongwith driver fell down in Betli Nalla and JCB got damaged and driver received got multiple injuries.
The claimant in his claim form too has stated that the JCB excavator was working on the site while reversing machine fell down of road and overturned.
The relevant para-6 of claim form is reproduced as under :8
Chaman Lal Thakur versus IFFCO Tokio General Ins. Co. Ltd. & Anr.
(F.A. No. 69/2020) "Machine was working on sight while reversing machine fell down of road and overturned."
16. The aforesaid factum also duly supported with its affidavit on the material point in para No.5 wherein the complainant has specifically stated that on 14.10.2018, the JCB excavator in question was detailed at work site at Betli Nalla for breaking of stones for aggregiate purpose. The JCB excavator met with an accident and rolled down in deep gorge alongwith its driver.
17. It is apparent and proved on record that what was purchased by the complainant was the JCB excavator bearing registration No. HP-35-5025 on 09.04.2018 for consideration amount of Rs. 22,46,750/- and the same was insured with the opposite party IFFCO TOKIO vide policy No. MO546282. This factum has not been disputed between the parties.
18. The FIR No. 0113 indicates that the JCB in question was fallan down into Betli Nalla while the same was in the process of crusing of stones alongwith the driver.
19. The evidence on record indicates what was fallan was the JCB excavator only which was insured with the opposite party No.1.
20. The JCB excavator in question was in the process of crushing of stones and was on its four wheels and not on jacks.
21. The contentions of the learned counsel of the respondent No.1 that the JCB excavator in question met with an 9 Chaman Lal Thakur versus IFFCO Tokio General Ins. Co. Ltd. & Anr.
(F.A. No. 69/2020) accident while the same was on tools and got dis-balanced due to the impact of forward hitting of the rock is factually incorrect.
22. The FIR, claim form and affidavit filed by the complainant Chaman Lal and affidavit of Nand Lal eye witness indicates that on 14.10.2018, the aforesaid JCB excavator bearing registration No. HP-35-5025 was in the process of breaking of stones for aggregate purpose. The eye witness Nand Lal who has seen the incident from his naked eyes does not say in his affidavit that the deceased Sunil Kumar was using the JCB excavator as tools at the time of accident. Meaning thereby, at the relevant point of time, the JCB excavator was on its four wheel and not on the jacks. Consequently, the JCB excavator in question is covered under the Motor Vehicles Act, 1988.
23. Since the vehicle in question was covered under the Motor Vehicles Act, 1988, therefore, the question of opting or not opting the IMT-47 was option for the complainant and non-opting of IMT-47 in the present case has got no effect of not opting IMT-47 in the presence of existence of Insurance Policy No. MO546282 between the parties on the date of accident and the same is covered under Motor Vehicles Act, 1988.
24. The claimant claim is pertaining to the damages of JCB excavator only.
10 Chaman Lal Thakur versus IFFCO Tokio General Ins. Co. Ltd. & Anr.
(F.A. No. 69/2020)
25. The learned District Commission below went wrong in non-appreciating the existence of insurance policy between the parties for which the claim has been sought.
26. The surveyor-cum-loss assessor who was appointed by the opposite party No.1 IFFCO Tokio General Insurance Company Ltd. has filed its report and the same is Annexure O-4. As per Annexure O-4, the surveyor has assessed the loss to the tune of Rs. 7,25,851.96 paise after deducting salvage value. Therefore, the complainant is entitled to the amount to the tune of Rs. 7,25,851.96 paise as assessed by the surveyor.
27. The judgments relied upon by the respondent No.1 IFFCO Tokio General Insurance Company aLtd. are not helpful in the present facts and circumstances of the case.
28. Therefore, the appeal of the appellant is allowed and order of learned District Consumer Commission, Kullu in Consumer Complaint No. 17/2019 is set aside.
29. Consequently, the Respondent No.1 is directed to pay to the complainant Rs.7,25,851.96 paise alongwith interest at the rate of 9% per annum, from the date of filing of the complaint, till its realization.
30. The respondent No.1 is further directed to pay to the complainant a sum of Rs.50,000/-, as compensation for mental stress as well as monetary loss and Rs. 5,000/- as costs of litigation.
11 Chaman Lal Thakur versus IFFCO Tokio General Ins. Co. Ltd. & Anr.
(F.A. No. 69/2020)
31. Certified copy of order be sent to learned District Commission below for information. Certified copy of order be sent to parties as well as to their counsel as per rules. File of State Commission be consigned to record room after due completion forthwith. F.A.No.69/2020 is disposed of. Pending application(s) if any also disposed of.
Justice Inder Singh Mehta President Sunita Sharma Member R.K.Verma Member 11.11.2022 *ss* 12 Chaman Lal Thakur versus IFFCO Tokio General Ins. Co. Ltd. & Anr.
(F.A. No. 69/2020) 13