State Consumer Disputes Redressal Commission
Reginaldo Mascarenhas vs The Branch Manager, The United ... on 23 March, 2017
1
BEFORE THE GOA STATE CONSUMER DISPUTES
REDRESSAL COMMISSION,
PANAJI - GOA
FA No. 73/2016
Mr. Reginaldo Mascarenhas,
s/o Mr. Gabriel Mascarenhas,
aged 45 years, r/o H. No. 84,
Xelvona Baag, Curchorem, Goa. ... Appellant
v/s
1. The Branch Manager,
The United Insurance Co. Ltd.,
Jamnadas Bldg., Curchorem, Goa.
2. The Divisional Manager,
The United Insurance Co. Ltd.,
Salgaonkar Bldg.,
Near Margao Municipality,
Margao, Goa. ... Respondents
Mr. C. Fernandes, Lr. Counsel for the Appellant.
Mr. S. Raikar, Lr. Counsel for the Respondents.
Coram: Shri. Justice U. V. Bakre, President
Smt. Vidhya R. Gurav, Member
Dated: 23/03/2017
ORDER
[Per Justice Shri. U. V. Bakre, President] This appeal is directed against the order dated 30/09/2016 passed by the Consumer Disputes Redressal Forum, South Goa (the "Forum", for short) in Complaint No. 45/2012. The said Complaint has been dismissed. The Appellant was the Complainant and Respondents were the Opposite Parties (OPs) in the said Complaint. Parties shall hereinafter be referred to as per their status in the said Complaint.
22. The Complainant had filed the said Complaint to direct the OPs to sanction the amount required to replace the damaged part of the insured vehicle i.e. tilt cylinder or in the alternative to pay to the Complainant the sum of Rs. 1,38,819/- as per the quotation of GmmCO that being the cost of the tilt cylinder and further to pay to the Complainant an amount of Rs. 5,49,370/- towards the expenses described in paragraph 21 of the Complaint, to pay further sum of Rs. 50,000/- on account of deficiency in service, to pay costs and to discharge the Complainant from paying further premiums to the OPs.
3. The Complainant is the registered owner of a wheel loader bearing registration No. GA-05-B-3113 which was insured with the OP No. 1 under policy No. 102604/31/10/01/00005975. The wheel loader was operated by the Complainant himself on the mine at Kosti plant. On 29/06/2011 at around 6.30 p.m. during the course of the work of the said wheel loader at the plant, a huge boulder pushed by another machine fell on the wheel loader thereby causing major breakdown and damage of huge amount due to which the wheel loader could not be used. By application dated 05/01/2012, the Complainant requested the OP No. 1 to pay necessary compensation for the damages after making necessary investigation. By reminder dated 26/03/2012 the Complainant again requested for payment of necessary compensation. The OPs had engaged the services of Mr. R. R. Prabhu to do the estimate of damages caused to the wheel loader who in turn had carried out the inspection of the wheel loader and had given report dated 26/07/2011 to the OPs. After perusing the said report, the Complainant clarified his grievance to the OPs by letter dated 26/06/2012 and requested for appointment of a proper surveyor having knowledge of the wheel loader which the OPs failed to do. By letter dated 04/07/2012 the OPs requested the Complainant to produce necessary documents ascertaining the damages. By letter dated 31/07/2012 the 3 Complainant produced relevant documents before the OPs but the OPs deliberately avoided the payment of compensation. This constitutes deficiency of service. The Complainant was compelled to fix a rented spare tilt cylinder incurring additional expenses for no fault of his from 14/01/2012 onwards, which expenses are recurring. In paragraph 21 of the Complaint, an amount of Rs. 2,500/- is claimed towards fitting spare tilt cylinder; Rs. 3,500/- towards expenses of report from Shreyas Engineering Enterprises; Rs. 7,500/- per month towards the rent charges of tilt cylinder from 14/01/2012 till the date of replacement of damaged part; an amount of Rs. 3,370/- is claimed towards obtaining report from GmmCO; an amount of Rs. 4,20,000/- is claimed towards idle charges from 29/06/2011 to 14/01/2012; an amount of Rs. 10,000/- is claimed towards miscellaneous expenses and an amount of Rs. 50,000/- is claimed towards mental agony and torture for delay in settling the claim. The Complainant, inter alia, relied upon the inspection report of Shreyas Engineering Enterprises and a certificate issued by Rudra Earthmovers.
4. The OPs filed their written version beyond the prescribed period stipulated under the Consumer Protection Act, 1986 and without an application for condonation of delay due to which the Forum did not take the same on record. The OPs filed application for condonation of delay on 10/04/2013. By order dated 20/11/2013, the Forum rejected the same. Thereafter, on 02/12/2013, the Complainant filed his affidavit-in-evidence and an affidavit of one Ajitkumar Simu, a mechanical Engineer. In the meantime, the OPs filed an appeal along with an application for condonation of delay (MA CD No. 03/2014) before the State Commission against the order dated 20/11/2013 of the Forum. By order dated 13/02/2014, the State Commission dismissed the application and the appeal. The Complainant filed an amendment application and an application for production of additional 4 documents namely 16 receipts issued by Nidhi Earthmovers towards hire charges of tilt cylinder and 3 Insurance Policy papers. Both the applications were allowed by the Forum by order dated 01/10/2014. After the amendment was carried out by the Complainant, the OPs filed additional written version, on 24/10/2014, wherein it was stated that the surveyor Mr. R. R. Prabhu is IRDA licensed surveyor and had done the estimate for damages and had stated in his report dated 26/07/2011 that the damages were due to wear and tear and hence did not come under the purview of the policy conditions and exceptions of the policy of the Complainant. The OPs denied the case of the Complainant. On 13/11/2014, the Complainant filed additional affidavit-in-evidence, in view of the amendment carried out to the Complaint. On the same day the OPs filed affidavit-in-evidence of the Divisional Manager of the OP No. 1. The Complainant also produced a duplicate copy of the report of GmmCO. By order dated 21/05/2015, the Forum held that duplicate Copy cannot be taken on record and directed the Complainant o examine the author of the said report. However, the Complainant failed to examine the author.
5. Vide the impugned order, the Forum found that in the certificate dated 23/07/2012 issued by Rudra Earthmovers, there was no mention of any other machine being used at the site though the case of the Complainant was that the damage was caused due to huge boulder being pushed by another wheel loader. The Forum further noted that the Complainant had not produced any complaint on record like the First Information Report filed against the owner of the other wheel loader or any proof of any inquiry conducted against the owner of the other wheel loader. The Forum further found that as per the Complainant, the accident had occurred on 29/06/2011 but there was no affidavit of any independent person to substantiate the same and even there were no photographs produced on record. The Forum further noticed that according to 5 the report of Shri. R. R. Prabhu, the wheel loader was being driven by the driver Mr. Joseph D'Silva, however, even the affidavit of the said driver Joseph D'Silva was not filed. The Forum therefore concluded that there was no evidence on record to establish any accidental damage to the wheel loader. The Forum further found that according to the Complainant the wheel loader was operated by him at the mine at Kosti plant but as per the report of Mr. R. R. Prabhu dated 26/07/2011 it was driven by one driver Mr. Joseph D'Silva. Therefore, the Forum held that the Complainant was not driving the wheel loader but had employed one Joseph D'Silva as driver. The Forum therefore held that it could not be said whether the Complainant was a contractor who had leased out the wheel loader to the Kosti plant and whether he was conducting the commercial activity by employing a driver in order to run the said wheel loader. The Forum held that the Complainant was not a consumer. The Complaint came to be dismissed.
6. Records and proceedings of Complaint No. 45/2012 were called for. Both the parties have filed written arguments in the present appeal. On the date when the matter was fixed for oral arguments, the OPs and their Lr. Advocate was absent. We heard Mr. C. Fernandes for the Complainant. We have gone through the entire material on record.
7. Though the alleged accident had occurred on 29/06/2011, the Complainant did not produce any evidence to prove the facts of the said accident having occurred on that day, except his own affidavit. The Complainant made a false statement in the Complaint as well as in his affidavit-in-evidence that he himself was operating the said wheel loader. In fact, the same was driven by a driver namely Mr. Joseph D'Silva. The Complainant had relied upon the driving licence of Mr. Joseph D'Silva, in the list of documents, but there were no averments regarding Joseph D'Silva in the Complaint and even in the affidavit-in-evidence. The Complainant could have filed the 6 affidavit of the driver of his wheel loader. He could have filed the affidavit of the driver of the other machine which had allegedly pushed the boulder. He could have produced photographs showing the said boulder having dashed to the wheel loader. However, nothing of the above was produced. There is no mention in the Complaint or in the affidavit-in-evidence of the Complainant about any inspection carried out by any mechanical Engineer by name Ajitkumar Simu. Even otherwise, the said affidavit does not help the Complainant to prove the accident. It is not known as to why the Complainant filed application claiming compensation to the OP No. 1 belatedly on 05/01/2012 after about six months.
8. The OP had appointed the surveyor namely Mr. R. R. Prabhu who gave detailed report after inspecting the wheel loader and after knowing the facts as stated in the claim form. The said Shri. R. R. Prabhu is licenced surveyor and a loss assessor and therefore he cannot be said to be having no knowledge regarding the vehicle. The said surveyor had no reason to give a false report. According to said Shri. R. R. Prabhu the wheel loader was thoroughly inspected in the presence of the Complainant on 08/07/2011. They found that there was no external impact directly or indirectly to the tilt/Bucket Arm cylinder and adjacent parts from which it could be construed that there was an accident. The said Surveyor has mentioned that no spot photos, spot survey or police panchanama was done. According to the surveyor, the damage was due to wear and tear. It cannot be understood as to why no police complaint was filed by the Complainant.
9. The report dated 03/07/2011 of Shreyas Engineering Enterprises, produced by the Complainant, is also a copy and the maker of the same has not been examined. Be that as it may, this report does not say for sure that the damages were on account of external impact or an accident. Probability of impact by fall of boulder is stated only insofar as the dent to the rod is concerned.
7The certificate given by Rudra Earthmovers, produced by the Complainant, which is dated 23/07/2012, merely says that the said wheel loader met with an accident while side casting at their screening plant by fall of a big boulder on the machine resulting in damage to the tilt cylinder on 29/06/2011 at about 06.30 p.m.. It is not known as to who has signed the certificate on behalf of Rudra Earthmovers since the said signatory has not written his name nor has he put any stamp on the certificate and has not filed any affidavit. Besides the above, it is not stated in the report of Shreyas Engineering Enterprises or in the certificate of Rudra Earthmovers that the said big boulder was pushed by another machine. The second inspection report is dated 20/07/2012 allegedly prepared by GmmCO Ltd. However, only a duplicate copy of the report has been produced. In this report, it is stated that the tilt cylinder was dismantled and dents of various depths were noticed on the cylinder rod, scoring marks inside the cylinder tube, deep scratches on piston, deep scratches on gland and cylinder rod found bent. It is further stated that the said dents and bend was caused by some external impact. It is not known as to who has signed this report as there is no stamp or name below the signature. By order dated 21/05/2015, the Forum had specifically held that such duplicate copy cannot be taken on record and the Complainant should either produce the original or examine the author of the same. Neither the original has been produced nor an affidavit of the person who has prepared the report has been filed. This report produced by the Complainant is by way of afterthought as rightly held by the Forum.
10. In the circumstances above, considering the entire material on record it is bound to be held that the Complainant has not established that the damage to the wheel loader occurred due to an accident or due to external impact/force. The Complainant had not stated in the Complaint as to when he had purchased the said wheel loader. The certificate of registration mentions the year and 8 manufacture of the said wheel loader as December 2007 and it was purchased by the Complainant on or about 27/03/2008. The damage to the tilt cylinder had occurred on 29/06/2011. There is no reason as to why the report of the licenced surveyor Mr. R. R. Prabhu should not be believed.
11. It is therefore that the Complainant had failed to prove his case and the Complaint has been rightly rejected.
12. In the result, the appeal is dismissed. No order as to costs.
[Smt. Vidhya R. Gurav] [Justice Shri. U. V. Bakre]
Member President
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