State Consumer Disputes Redressal Commission
United India Ins. Co. Ltd., Kadapa. And ... vs P.Raja Reddy, S/O.Subba Reddy, Kadapa ... on 17 February, 2014
BEFORE THE A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION : HYDERABAD F.A.No.716/2013 against C.C.No.09/2013, Dist. Forum, Kadapa Y.S.R.Dist. Between: 1.United India Ins. Co. Ltd., Rep. by its Divisional Manager, D.No.2/1714, Opposite to Officers Club, Kadapa. 2. United India Ins. Co.Ltd., Rep. by its B.M., D.No.21/72, Dwaraka Towers, 7 Roads, Kadapa. Appellants/ Opp.parties And P.Raja Reddy, S/o.Subba Reddy, Hindu, aged 45 years, R/o. Saduvaripalli Village, Pullampeta Mandal, Kadapa District. Respondent/ Complainant Counsel for the Appellants : M/s. V.Sambasiva Rao Counsel for the respondent : M/s. T.S.R.Prasad. QUORUM: HONBLE SRI JUSTICE GOPALAKRISHNA TAMADA, PRESIDENT, AND SRI S.BHUJANGA RAO, HONBLE MEMBER.
MONDAY, THE SEVENTEENTH DAY OF FEBRUARY, TWO THOUSAND FOURTEEN.
Oral Order: (Per Sri S.Bhujanga Rao, Honble Member) *** This appeal is filed against the order dt.06.07.2013 of the District Consumer Forum, Kadapa Y.S.R.Dist. in C.C.No.9/2013 whereunder, the District Forum directed the appellants to pay to the respondent a sum of Rs.18,89,999/- towards the repairs and replacement of the parts of the machine etc., Rs.50,000/- towards mental agony and Rs.5000/- towards the costs of the complaint.
The appellants are the opposite parties and the respondent is the complainant in C.C.No.9/2013. For the sake of convenience, the parties are described as arrayed in the complaint.
The brief case of the complainant as set out in the complaint is that the complainant is the owner of the vehicle i.e. L & T Komastu PC 200-6 Hydraulic Excavator equipment. The complainant insured the said vehicle with the opp.parties company for a period from 09.02.2011 to 08.02.2012, vide policy bearing no.050904/31/10/01/00007010 by paying net premium amount of Rs.38,827/-.
On 28.06.2011, the said excavator was engaged to load granite stones in a tipper bearing no.KA 405204. Unfortunately, the said tipper while reversing, hit against the said excavator, as a result of which, the said excavator slipped down from the height of about 25 ft. and stood on one side. The excavator was completely damaged. The complainant informed the same by phone, to opposite party no.2, immediately. On receipt of the intimation, the opposite parties insurance company appointed a surveyor, who inspected the excavator on the spot on 29.06.2011 .
On 29.6.2011 itself, after the inspection of the spot surveyor , the complainant transported the said excavator to L & T Earth Moving Machinery Service, Chennai, from Chikballapur, for the purpose of getting repairs of the said excavator, by spending Rs.60,000/- towards transporting charges on both sides. The said L & T Earth Moving Machine Service, prepared estimation for Rs.27,50,000/- towards repairs of the said excavator, including replacement of some spare parts. The complainant paid an amount of Rs.17,99,999/- towards repair charges of the said excavator to the company. The complainant submitted the said bills to the opposite parties, but the opposite parties did not pay any amount, towards repair charges of the said excavator. Since the policy was in force and it covers the accidental risk of the vehicle, the opposite parties company being indemnifier bound to make good the loss under the contract of indemnity. The complainant approached the opposite parties several times requesting to settle the claim, but they postponed the same on one pretext or the other. Thus there is deficiency in service on the part of the opposite parties. Hence the complaint.
Resisting the complaint, the opposite parties filed written version/counter denying all the material allegations and contended that soon after receipt of the information, the opposite party no.2 sent a surveyor for spot inspection on 29.06.2011 and by the time the spot surveyor went to the accident spot, to assess the damages and also to note down the manner of accident, he did not find tipper, which alleged to have hit the excavator, on the spot. If really the accident has taken place due to hit of the said tipper, the said tipper would have been found on the spot. These circumstances would speak that the said excavator was slipped from the height of 25 ft. and not due to hitting of the tipper. The complainant has introduced this theory to get illegal compensation and to have unlawful gain.
The opp.parties further contended that the investigator Sri S.B.Venkatachari, who was deputed by opposite party no.2 to investigate and submit his report, with regard to the manner of the accident, submitted his report on 27.02.2012, opining that the accident has taken place not in the manner given by the complainant and the version of the complainant is not true and correct.
He has further opined that the excavator was slipped due to over turning, which is not covered in the insurance policy, as the incident is not accidental, as per the IMT 47. The opposite parties having gone through all the records, and the manner of the accident which took place due to over turning and taking into consideration, the surveyor report, the opposite party no.1 issued a notice dt.22.01.2013 repudiating the claim of the complainant in toto, as there is violation of the policy conditions and the said accident is against the terms and conditions of the policy, as the risk of over turning is not covered as per the policy conditions.
The amount claimed by the complainant towards repair charges of the vehicle is excessive and exorbitant. The bills which are filed are brought into existence to claim more compensation.
There is no deficiency in service on the part of the opposite parties. Therefore, the complaint is liable to be dismissed with costs.
During the course of enquiry, in order to prove his case, the complainant filed his evidence affidavit and got marked Exs.A1 to A5. Neither affidavit evidence nor documentary evidence was adduced by the opp.parties.
Upon hearing the counsel for both the parties and on consideration of the material on record, the District Forum came to the conclusion that there is deficiency in service on the part of the opposite parties and consequently allowed the complaint in part directing the opp.parties as aforesaid.
Aggrieved by the said order, the opposite parties filed this appeal questioning the validity and legality of the impugned order and contended that the liability of the opp.parties insurance company is subject to the IMT 47 of the subject policy and the District Forum failed to see that as per the policy in question, the over turning of the excavator is not covered and accordingly the Forum ought to have dismissed the complaint. That the complainant approached the District Forum by suppressing the documentary evidence particularly the repudiation letter dt.21.01.2012, which clearly shows the risk of over turning of the excavator which was the cause of the accident, was not covered in the policy. That the complainant created a story that the tipper was dashed the excavator while reversing with stones at quarry, but no tipper was involved in the alleged accident. Finally the appellants pray to set aside the impugned orders of the District Forum by allowing the appeal.
The appellants/opp.parties did not adduce any affidavit or documentary evidence, during the course of enquiry of the complaint. However, in this appeal, they filed petition in FAIA.No.1893/2013 praying to receive the following documents as additional evidence :
1. Repudiation letter dt.22.01.2013.
2. Investigation Report dt.27.2.2012.
3. Xerox copy of the relieving certificate/accident m/c.
inspection dt.29.6.2011.
4. Lr.dt.13.12.2011 addressed by the Sr.Div.Manager of Kadapa branch of the opp.parties insurance company to M/s. Libra Surveyors Pvt.Ltd., Chennai.
5. Lr.dt.15.05.2012 addressed by the surveyor Sri N.R.Suresh Babu to the Branch Manager, United India Insurance Co.Ltd., Kadapa (O.P.No.2).
6. The copy of the Motor Spot Survey Report dt.04.07.2011 of Libra Surveyors Pvt. Ltd.
7. Lr.dt.03.09.2012 from Excavator Operator/Driver to the Opp.party
8. The survey report dt.01.10.2011 of M.S.Dakshina Murthy, the Surveyor /Loss Assessor, the Motor Claim Form dt.11.07.2011 and the insurance policy document.
After hearing both the parties, this Commission allowed the petition and received the above said documents subject to proof and relevancy, and marked them as Exs.B1 to B8.
We heard the counsel for the appellants and the respondent and perused the entire material placed on record.
Now the point for consideration is whether the impugned order of the District Forum is vitiated for misappreciation of fact or law?
It is an admitted fact that the complainant is the owner of the excavator i.e. L & T Komastu PC 200-6 Hydraulic Excavator equipment and the same was insured with the opposite parties, for a period from 09.02.2011 to 08.02.2012 vide the policy i.e. Miscellaneous and Special Type of Vehicles Package Policy bearing no.050904/31/10/01/00007010, the copy of which is marked as Ex.A1. The duplicate copy of the policy is filed by the opposite parties along with the appeal. It is also not in dispute that the excavator of the complainant met with an accident on 28.06.2011.
The main contention of the appellants/opp.parties is that the excavator was damaged due to overturn of it, resulting in fall from slope of 25 ft., but not hit by any tipper as alleged by the complainant. That the overturn of the vehicle is not covered under the policy, as no premium was collected from the insured, as such, the insurance company is not liable to pay any amount, much less, the claim amount, under the policy.
In view of the above contention of the opposite parties, the question for determination in this case is whether the accident occurred due to dashing of the tipper as contended by the complainant or due to overturning of the excavator due to slip from 25 ft. height, as contended by the opposite parties.
Since the beginning, the case of the complainant is that on 28.06.2011, his excavator was engaged to load granite stones in a tipper bearing no.KA 40 5204. That the said tipper while reversing, hit the said excavator, as a result of which, excavator slipped down from the height of 25 ft. and stood on one side. The excavator was completely damaged and he informed the same to the opposite party no.2 immediately by phone.
The complainant gave his affidavit, narrating his above case. The opposite parties did not file any affidavit evidence controverting the above case of the complainant and the contents of his affidavit and narrating their case.
The opposite parties mainly relying on the Investigation Report dt.27.02.2012 Ex.B2 of Sri.S.B.Venkatachary, Investigator appointed by the opp.parties. The Investigator, while denying the case of the complainant that the tipper suddenly reversed its direction and accidentally hit the excavator, which fell rolled and stood on one side of the excavator, opined that the excavator was badly damaged on 28.06.2011 at 6.30 p.m. when it fell from 25 ft. height slope.
The learned counsel for the respondent/complainant submitted that the opp.parties insurance company, obtained investigators report dt.27.02.2012, six months after the accident. This report of the investigator is not proved by the appellants/opp.parties by examining the investigator. Thus the report is not proved. Further, the investigators report is hear say evidence which cannot be believed. He further submitted that there is no provision to appoint investigator under the Insurance Act. But it is compulsory to appoint surveyor as per the Insurance Act, in case, the claim is more than Rs.20,000/- and that surveyors report is an important document for settlement of the claim. The said report cannot be discarded without any valid reasons. But in this case, the opposite parties appointed an investigator, even after the two surveyors, appointed by them, who submitted their reports. Therefore, the surveyors report dt. 27.02.2012 cannot be relied on in proof of the case of the opp.parties that the vehicle slipped and fell down from a height of 25 ft. and was damaged.
There is considerable force in the above submission of the learned counsel for the respondent/complainant. The complainant is denying the surveyors report dt.27.2.2012 and is contending that the said report is obtained by the opposite parties as the earlier two surveyors reports are against them and in favour of the complainant. In view of the contention of the complainant, the opposite parties ought to have examined or filed the affidavit evidence of the investigator S.B.Venkatachari, to prove the investigators report. But they neither examined him nor filed his affidavit evidence. Therefore, we are of the view that the opposite parties failed to prove the said investigators report and as such, the same cannot be taken into consideration. Even if it is taken into consideration, the same cannot be accepted in proof of the case of the opp.parties that the excavator slipped and fell down from the height of 25 ft. and damaged and that the same was not due to the hitting of the tipper. The Investigator has not given any reasons for accepting the case of the opp.parties and for rejecting the counter case of the complainant. Without giving any reasons, the investigator simply came to the conclusion that the excavator was badly damaged on 28.06.2011 at 6.30 p.m. when it fell from 25 ft. height slope and denied the case of the complainant.
Admittedly, two surveyors namely Mr.Sumanth Kumar, Service Representative of Anugraha Constructions Equipment Services and Support Pvt. Ltd., Bangalore and M.S.Dakshina Murthy, Surveyor & Loss Assessor, Chennai were appointed by the opp.party no.2.
Mr.Sumanth Kumar was appointed to visit the site and inspect the damaged excavator. Accordingly, he visited the site on 29.06.2011 at 1.30 p.m. and inspected the machine and noted down the damages and on his advise, the damaged excavator was shifted to Madras from the spot. In his Inspection Report, he has categorically stated that as per visualisation and feed back of the customers, the machine met with an accident on Quarry (approximate height 25 ft. slope) and the machine was functioning at site, attending quarry work and fell down from approximately 25 ft. slope.
One Sri N.R.Suresh Babu of Libra Surveyors Pvt. Ltd., who was deputed for spot survey on 29.06.2012, has categorically stated in his Motor Spot Survey report dt.04.07.2011 Ex.B6 that the cause of the accident is that a Tipper was loaded with stones by the Machine. That Tipper suddenly came in reverse and hit the Machine. The machine fell down and rolled and stood on one side. When the opposite party sought for clarification, he has stated in his letter dt.15.05.2012 Ex.B5 that on 29.06.2012, he attended the survey in the afternoon and by that time, the tipper that had hit the machine was not there. Basing on this statement of Sri N.R.Suresh Babu, the contention of the opposite parties is that if really accident has taken place due to hit of the said tipper, the said tipper would have been found on the spot and these circumstances would speak that the said excavator was slipped from the height of 25 ft. and not due to hitting of the tipper. It is not the case of the opp.parties that the driver of the tipper was asked to keep the tipper at the spot till the spot inspection. Further, it is evident that not only the said tipper, but some other tippers were engaged in the work at the spot at the time of the accident. No tipper was there at the spot by the time the surveyor came for spot inspection. Under these circumstances simply because the tipper was not found at the spot by the time the surveyor reached the place for spot survey on 29.06.2012, it cannot be held that the excavator was not hit by the tipper while reversing.
Now coming to the Survey Report dt.01.10.2011 Ex.B8 of M.S. Dakshina Murthy, Surveyor/Loss Assessor, the surveyor has categorically stated in his report, at page 5 that based on the discussions he had with the insured, based on the motor spot survey report along with 12 spot photographs, claim form and also in his considered firm opinion that the damages to the machine was accidental in nature and that the peril is accidental in nature and falls within the scope of the policy. The said report of the surveyor is not at all considered by the investigator in his report.
There is no reason as to why the opposite parties appointed the investigator S.B.Venkatachari nearly six months after the accident and after both the above said surveyors submitted their reports. The opposite parties neither rejected the surveyors reports nor accepted them. There is no reason as to why , the said two survey reports should not to be accepted. The surveyors reports cannot be ignored without assigning any reasons.
Further, it is an admitted fact that the complainant submitted his claim to the opposite parties on 11.07.2011. As per the law laid down by the Honble Supreme Court, the Insurance Company has to settle the claim, within a reasonable time i.e. three months and the maximum time limit for settlement of the claim is six months. In this case, the opposite parties insurance company had not settled the claim within the above limit of time. They have repudiated the claim of the complainant by their letter dt.22.01.2013, Ex.B1 about 18 months after submission of the claim.
In view of the above facts and circumstances, we are of the view that the accident occurred due to hitting of the tipper while reversing and not due to overturning of the excavator from the height of 25 ft. Therefore, the damage caused to the excavator is covered under the policy. The complainant is therefore entitled to claim damages and the opp.parties are liable to indemnify the complainant under the contract of Insurance as per Ex.A1 policy.
It is an admitted fact that on 29.06.2011, after the inspection of the spot surveyor, the complainant transported the damaged excavator to L & T Earth Moving Machinery Service, Chennai from Chikballapur, for the purpose of getting repairs of the said excavator. It is the case of the complainant that the said L & T Earth Moving Machinery Service, prepared estimation for Rs.27,50,000/- towards repairs of the said excavator, including replacement of some spare parts and that he paid an amount of Rs.17,99,999/- towards repair charges of the said excavator to the company, who issued receipts. To prove the above case of the complainant, the complainant filed Ex. A3 Professional Fees cum Receipt dt.01.10.2011 issued by Mr. M.S.Dakshina Murthy, surveyor/loss assessor, acknowledging the receipt of Rs.33,723/- from the complainant. As seen from Ex.A3 , the surveyor assessed the loss at Rs.18,29,809/-. Ex.A4 is the copy of the estimation sent by Larsen & Toubro Ltd. to the complainant regarding the repairs to the excavator. They estimated the tentative charges for carrying out accident repairs to the subject excavator, at Rs.27,50,000/- ( service charges :Rs.2,50,000/- + spare parts:Rs.25 lakhs). Ex.A5 is another letter dt.22.9.2011 of the same company, which estimated the repair charges under Ex.A4, whereunder the complainant was informed that they have carried out the accident repairs to the subject excavator for Rs.17,99,999.31 ps.
For all the aforesaid facts and circumstances, we are of the view that there is not only deficiency in service but also unfair trade practice on the part of appellants/opp.parties. We do not find any illegality or irregularity in the impugned order of the District Forum to interfere with it.
In the result, the appeal is dismissed, confirming the order of the District Forum. The appellants/opp.parties are directed to pay Rs.5000/- to the respondent/complainant towards costs of this appeal. The appellants/opp.parties are directed to comply with the order of the District Forum within four weeks.
PRESIDENT MEMBER Dt. 17.02.2014 Exhibits marked on behalf of the appellants/opp.parties before this Commission:
Ex.B1 : Repudiation letter dt.22.01.2013.
Ex.B2 : Investigation Report dt.27.2.2012.
Ex.B3 : Xerox copy of the relieving certificate/Accident m/c. inspection dt. 29.06.2011.
Ex.B4 : Lr.dt.13.12.2011 from Sr.Div.Manager of Opp.party to M/s. Libra Surveyors Pvt. Ltd.
Ex.B5 : Lr.dt.15.05.2012 addressed by the surveyor Sri N.R.Suresh Babu to the Branch Manager, United India Insurance Co.Ltd.,Kadapa.
EX.B6 : The copy of the Motor Spot Survey Report dt.04.07.2011 of Libra Surveyors Pvt. Ltd.
Ex.B7 : Lr.dt.03.09.2012 from Excavator Operator/Driver to the Opp.party Ex.B8 : Survey Report dt.01.10.2011, the Motor Claim Form Dt.11.7.2011 and the insurance policy document.
PRESIDENT MEMBER Dt.17.02.2014