National Consumer Disputes Redressal
Royal Sundaram Alliance Insurance Co. ... vs Ganibhai Nurmahamadbhai Parasara on 6 October, 2015
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 2993 OF 2014 (Against the Order dated 07/04/2014 in Appeal No. 1620/2010 of the State Commission Gujarat) 1. ROYAL SUNDARAM ALLIANCE INSURANCE CO. LTD. NAKSHATRA 2-3RD FLOOR, OPFFICE=312-313, FEER RING ROAD KKV CHOWK, RAJKOT GUJARAT ...........Petitioner(s) Versus 1. GANIBHAI NURMAHAMADBHAI PARASARA VILLAGE-SUNDHAVADAR, TAL-WANKANER, DISTRICT: RAJKOT GUJARAT ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER HON'BLE MRS. REKHA GUPTA, MEMBER For the Petitioner : MR. S.M. TRIPATHI For the Respondent :
Dated : 06 Oct 2015 ORDER This revision petition is directed against the order of Gujarat State Consumer Disputes Redressal Commission, Ahmedabad (in short, "State Commission") dated 7.4.2014 whereby State Commission dismissed the appeal No.1031 of 2011 preferred by the petitioner/Insurance company against the order dated 26.10.2010 of District Forum (Addl.) Rajkot in Consumer Complaint No.142 of 2009.
2. Briefly stated the relevant facts for the disposal of the revision petition are that the respondent/complainant raised a consumer dispute before the concerned consumer forum alleging that he had insured his JCB Cater Piller Excavator machine with the petitioner/insurance company. The sum insured was Rs.19,23,750/- and the policy was valid w.e.f. 27.2.2008 to 26.2.2009. During the currency of the insurance policy, the subject insured vehicle while returning after completion of levelling work fell into a deep well in order to save a cyclist. The incident was reported to the insurance company and the insurance claim was filed. The insurance company, however, repudiated the claim on the ground that no additional premium to insure the loss of overturning was paid and as such the insurance company is not liable.
3. The petitioner/opposite party in its written statement admitted that the vehicle was insured with the opposite party and it met with an accident resulting in damage to JCB. According to the petitioner, the insurance claim was righty repudiated in view of Indian Motor Tariff, 47 which provides that unless additional premium for overturning risk is paid, the claim due to loss caused by overturning would not be paid.
4. District Forum on consideration of the pleadings and evidence, allowed the consumer complaint and directed as under :-
"The present complaint is hereby allowed.
Opponent is hereby ordered and directed to pay to the complainant Rs.6,47,897.78 forward the repairing as per the bill on record with 9% interest from the date of filing of the complaint, till its realization and on failure to pay within 30 days, the interest will be charged 10%.
Opponent is also directed to pay Rs.5,000/- towards the mental harassment and Rs.2,000/- for the cost of complaint."
5. Being aggrieved of the order of District Forum, the petitioner preferred an appeal. The State Commission on consideration of appeal and submission made on behalf of the parties, did not find any infirmity in the order of the District Forum. Accordingly, the appeal was dismissed and the order of the District Forum was confirmed. This has led to the filing of revision petition.
6. Learned Shri S.M.Tripathi, Advocate for the petitioner has contended that the impugned order of the foras below have been passed in utter disregard of Indian Motor Tariff, clause 47 which was part and parcel of the Insurance Contract.
7. In order to appreciate the contention of learned counsel for the petitioner, it would be useful to have a look on IMT.47 which reads as under :-
"IMT.47. Mobile Cranes/Drilling Rigs/Mobile Plants/Excavators/ Navvies/Shovels/Grabes/Rippers.
It is hereby declared and agreed notwithstanding anything to the contrary contained in this Policy that in respect of the vehicle insured the insurer shall be under no liability.
Under Section I of this Policy in respect of loss or damage resulting from overturning arising out of the operation as a tool of such vehicle or of plant forming part of such vehicle or attached thereto except for loss or damage arising directly from fire, explosion, self-ignition or lightning or burglary housebreaking or theft.
(ii) Package Policies where an additional premium has been paid for inclusion of damage by overturning."
8. On careful reading of above, it is clear that under the package insurance policy wherein additional premium has not been paid for inclusion of damage by overturning, the loss or damage resulting from overturning arising out of operation as a tool of such vehicle is not payable by the insurance company. Admittedly, additional premium was not paid by the respondent/ complainant. Thus, the sole question which needs answer in this revision petition is whether at the time of accident, the subject vehicle was operating as a tool?
9. As per the version of the complainant, the subject vehicle toppled while it was returning from the work site in order to save a cyclist going on the road. If this version it to be believed then at the time of accident/overturning, the subject vehicle was not being used as a tool and the exclusion clause provided under IMT.47 would not be applicable.
10. Learned counsel for petitioner has contended that at the relevant time, the subject vehicle was used at the work site as a tool and in this regard he has drawn our attention to the copy of the report of investigator Shri Sandeep Kr. S.Vyas. Relevant observation is reproduced as under :-
"It is also observed from the statement of the insured that the FIR was not lodged as persons of the insurance company have not allowed him to lodged the company to the police station. This statement may not be correct as in such cases FIR is necessary and why persons of the insurance company interfere in such matter. This may kindly be ace rain from the persons of the company mention in this report looking to the photograph taken by us during the course mention in this report looking to the photograph taken by us during the course of investigation the JCB machine as mention above was in working motion at the time of an accident as can be seen standing position of the machine and also machine can be operated only after giving heavy pressure using Jack condition of the loader showed that machine was in used when it was toppled down and it was in standing position as buckev louder cannot be in such position at the time of topics down consignor in view of the above it is very clear dear that the JCB machine was topped down working motion."
11. On reading of the above, we find that the report of the investigator is inconclusive and is based upon surmises and conjecture. Therefore, it cannot be relied upon. Thus, in our view, the petitioner has failed to show that his case is covered under the exclusion clause provided by IMT.47. In view of the above discussion, we do not find any merit in the revision petition as no material irregularity or jurisdictional error have been shown in the concurrent findings of the foras below.
12. Revision petition is accordingly dismissed.
......................J AJIT BHARIHOKE PRESIDING MEMBER ...................... REKHA GUPTA MEMBER