State Consumer Disputes Redressal Commission
M/S Anand Mining Company vs Sbi General Insurance Co.Ltd on 30 August, 2017
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR (C.G.)
Complaint Case No.CC/2017/36
Instituted on : 17.05.2017
M/s Anand Mining Company,
Through : Its Managing Partner
Shri Manak Chand Jain, S/o Late Dhiraj Jain,
504, 5th Floor, Dhebar Arcade, Pension Bada,
City, Tahsil & District Raipur (C.G.) ... Complainant.
Vs.
SBI General Insurance Company Limited,
Pujari Chamber, 4th Floor, Pachpedi Naka,
Near Pujari Park,
City, Tehsil & District Raipur (C.G.) ... Opposite Party
PRESENT: -
HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT
HON'BLE SHRI D.K. PODDAR, MEMBER
HON'BLE SHRI NARENDRA GUPTA, MEMBER
COUNSEL FOR THE PARTIES:
Shri Priyank Mishra, Advocate for the complainant.
Shri Manoj Prasad, Advocate for the opposite party.
ORDER
Dated : 30/08/2017 PER :- HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT. The complainant filed this consumer complaint under Section 17 of the Consumer Protection Act, 1986 against the O.P. seeking following reliefs :-
(A) The opposite party be directed to make payment of insurance amount Rs.22,00,000/- (Rupees Twenty Two Lacs).
(B) A further amount of Rs.5,00,000/- (Rupees Five Lacs) be awarded for mental agony suffered by complainant.
// 2 // (C) Interest at the rate of 18% per annum on the award so made be imposed on the opposite party from the date of filing of complaint till realization of the award.
(D) Cost of the litigation.
(E) Any other relief which may be just and proper in the circumstance of the case.
2. Briefly stated the facts of the complaint of the complainant are that the complainant is a registered partnership firm engaged in business as mining contractor. It uses to supply the machines and equipments for mining purposes on hire and/or reward. The complainant held, owed a HM 2021 Wheel Loader having Engine No.1200100 and Chassis No.561211, manufactured in the year 2012. The value of said Wheel Loader was Rs.34,50,000/- (Rupees Thirty Four Lacs Fifty Thousand Only). At earlier period, the loader n question was not made registrable machine under the provision of Motor Vehicle Act, 1988 and the complainant got it insured in different Insurance Companies for different point of time. It came to the notice of complainant that said machine//Wheel Loader made registrable under the gazette notification dated 22.01.2016 . The complainant as per rule prevailing at the relevant period / time applied for registration of said Wheel-Loader on 15.02.2016 and made payment(s) of requisite registration fees. In the meanwhile, the complainant on or about 10.02.2016 obtained an insurance policy covering the risk totalling in Rs.22,00,000/- (Rupees Two Lacs) in respect of said Wheel // 3 // Loader. Validity of the insurance is from 10.02.2016 to midnight of 09.02.2017. Under aforesaid contract the complainant become consumer of the O.P. having all the rights and entitlement flowing from contract so entered into by and between the parties. The aforesaid Wheel Loader on 20.02.2016 was located at Village Barbaspur, P.S. Korar, District North Bastar, Kanker (C.G.). After working hours same was stationed at the site. While the Wheel Loader was in stationary position, at about 9:15 P.M., it was subjected to arson along with other motor vehicles by some unknown naxalites. The incident of crime got reported at Korar Police Station in District Kanker (C.G.) on 21.02.2016, accordingly an F.I.R. was registered and Police filed challan Under Section 173 o the Criminal Procedure Code, 1973 before the Court of Chief Judicial Magistrate, Kanker (C.G.) after completion of investigation. Since the aforesaid Wheel Loader, reduced in to rubble; the complainant approached the O.P. and staked its claim under prescribed form / claim form. The O.P. dilly- dellied in considering the valid and legitimate claim made by the complainant by one pretext of other and ultimately repudiated the claim of the complainant on specious ground of violation of Section 39 of the Motor Vehicles Act, 1988 by the complainant. The complainant, anyhow requested by letter dated 14.06.2016 and letter dated 14.10.2016 to process the claim under claim No.242142 at the earliest. It was made known to the O.P. that quarterly tax upto 15.02.2016 for the purposes of registration had already been made but before any registration of the said Wheel Loader could be issued / obtained, it // 4 // was burnt in aforesaid naxalite incident. The O.P. said to have referred the matter to Company's Grievance Redressal Committee on its own accord as communicated / informed by its letter dated 17.10.2016. The complainant was absolutely unaware of any proceeding and / or going on before said Grievance Redressal Committee, ultimately received another letter dated 15.12.2016 suggesting that the representation against denial of claim is found meritless by it. In order to ascertain the malafides or otherwise on the part of O.P., the complainant approached the said insurer / O.P. through its Advocate demanding certain informations and copy of documents relating to proceedings allegedly taken before Grievance Redressal Committee and Surveyor's Report etc. vide application dated 19.01.2017. The O.P. anyhow, declined to supply said informations and documents on flimsy grounds through its replies dated 31.01.2014. The complainant had made all the reasonable and possible effort to get the registration of said Wheel Loader under the provisions of Motor Vehicles Act, 1988 within stipulated period of 15 days as envisaged in Annexure C-6. Since the said Loader was burnt in said grace period of 15 days i.e. 11th day of issuance of insurance policy, no motive or inaction much less violation of any provision of law can be attributable to the complainant. Though the process of registration of said Wheel Loader was already pending with the Regional Transport Authority, Raipur (C.G.) and the Loader burnt before the said 15 days, it has not been practicable for anyone to issue or obtain registration number on any future date thereafter. On bare perusal of the insurance policy // 5 // (Annexure C-6), it would be made ample clear that "Wheel Loader" per se does not included in the categories of vehicle against which clause restricting the user of vehicle mentioned in specific term. The term and condition made applicable to the other kind of vehicle cannot be imported for defeating the claim of the complainant. No provision of law has been violated by the complainant so as to deny the claim made. Hence the complainant filed instant complaint and prayed for granting reliefs as mentioned in the relief clause of the complaint.
3. The O.P. filed its written statement and averred that the complainant is engaged in business and activities of the complainant are commercial and doing business through the employees appointed by the complainant and as per pleading mentioned in para 2, the complainant uses to supply the machine and equipments, for mining purpose on hire and / or reward. The complainant does not come under the purview of Consumer of the O.P. The cause of action arose against unknown naxalites and FIR was also lodged against unknown naxalites under the provisions of IPC and Explosive Act. The Wheel Loader got damaged due to naxalite attack and not met with an accident. The Wheel Loader was not registered on the date of incident and hence complainant violated the provisions of Section 39 of the Motor Vehicle Act, 1988. The Wheel Loader got damaged due to naxalite attack and such incident is not covered under the terms and conditions of the Insurance Policy. The complainant was bound to get register the wheel loader first from the concerned R.T.O. The // 6 // complainant having no right to file the present complaint before this Commission. This Commission has no jurisdiction to entertain the present complaint. The policy was issued subject to terms and conditions of the insurance policy and the conditions are binding upon the insurer and the insured. According to copy of First Information Report, the Wheel Loader was damaged to naxalite attack and this incident was not covered under the insurance policy, as the Wheel Loader was not involved in an accident. The FIR was also lodged under punishable Section 147/148/149/392/323/506B/436 IPC and 25, 27 Arms Act. The claim of the complainant has already been settled on merits. The O.P. appointed a Surveyor and Loss Assessor duly licenced from the Insurance Regulatory and Development Authority (IRDA) in compliance of provision of Section 64UM of the Insurance Act, 1938. The Surveyor was appointed for conducting assessment of loss and he has assessed the loss to the tune of Rs.15,89,000/- at Net on Salvage Liability subject to terms and conditions of the insurance policy, but the complainant is not entitled to get as above due to violation of policy conditions. The complaint is neither maintainable in law nor on facts and no cause of action had arisen to the complainant to prefer this complaint. The complain of the complainant is not maintainable for want of cause of action. This Commission has no jurisdiction to entertain and adjudicate upon the dispute involved in the complaint in as much as it is not a consumer dispute and does not fall within the ambit of the Consumer Protection Act, 1986 , and as such the complaint is liable to be dismissed // 7 // summarily on this score alone. The complainant has failed to disclose all the correct facts and intentionally not come with clean hand and as such the complainant cannot be allowed to gain from the same and hence now this Commission has no jurisdiction to entertain and adjudicate upon the dispute involved in the complaint. The dispute raised by the complainant in present complaint is manifestly outside the purview of the Consumer Protection Act, 1986. The definitions of Complainant, Complaint, Consumer Dispute and Service, as defined in Section 2(1) of the Consumer Protection Act, 1986 do not cover the claims arising under the present dispute and that from the aforesaid definitions, the complainant is not 'consumer' and the controversy involved in the complaint is not a 'consumer dispute'. Hence, the present complaint is baseless and flagrant abuse of process of law to harass the O.P. The complaint filed by the complainant is also not maintainable at all and the O.P. has not committed any deficiency in service. The present complaint is liable to be dismissed with cost.
4. The complainant has filed documents. Annexure C-1 is Invoice of Wheel Loader bearing Engine No.1200100 together with Sale Certificate, Annexure C-2 is Previous Insurance Policy issued by Future Generali India Insurance Co. Ltd. for Wheel Loader for the period from 27.09.2012 to 26.09.2013, Annexure C-3 is previous Insurance Policy issued by HDFC Ergo General Insurance Co. Ltd. for Wheel Loader for the period from 27.09.2014 to 26.09.2015, Annexure C-4 is Gazette Notification issued by Government of Chhattisgarh, // 8 // Annexure C-5 are receipts of payment made by complainant for registration of Wheel Loader before R.T.O. Raipur, Annexure C-6 is insurance policy issued by O.P. for Wheel Loader, Annexure C-7 is Extract of Challan put up by Korar Police Station, Korar before the Court of CJM, Kanker, Annexure C-8 is Claim Form submitted by complainant before the O.P. in respect of Wheel Loader, Annexure C-9 is letter issued by O.P. regarding denial of claim, Annexure C-10 is Letter to the O.P. dated 14.06.2016, Annexure C-11 is letter dated 14.10.2016 to the O.P. regarding declaration for claim, Annexure C-12 is letter dated 17.10.2016 issued by O.P. regarding information for referral of matter to Grievance Redressal Committee, Annexure C-13 is letter dated 15.12.2016 issued by O.P. regarding denial of claim by Grievance Redressal Committee, Annexure C-14 is application(s) filed by complainant before O.P. for production of information and documents under R.T.I., Annexure C-15 is replies to the R.T.I. applications made by the O.P.
5. The O.P. has filed documents. Annexure OP-1 is First Information Report, Annexure OP-2 is Claim Form, Annexure OP-3 & OP-4 is Motor (Spot) Survey Report dated 13.05.2016 of Shri Gagan Chopra, Surveyor, Annexure OP-5 is letter dated 07.10.2016 sent by the O.P. to the complainant,, Annexure 6 is insurance policy along with terms and conditions.
6. Shri Priyank Mishra, learned counsel appearing for the complainant has argued that the complainant is a registered // 9 // partnership firm, engaged in business as mining contractor and uses to supply the machines and equipments for mining purposes on hire and/ or reward. The complained owned a HM 2021 Wheel Loader having Engine No.1200100 and Chassis No.561211, manufactured in the year 2012. The Wheel Loader is insured with the O.P. for the Rs.22,00,000/-. Previous, the loader in question was not made registrable machine under the provisions of Motor Vehicles Act, 1988 and the complainant got it insured with different insurance companies for different point of time. It came to notice of the complainant that the said machine /Wheel Loader made registrable under the Gazette Notification dated 22.01.2016. The complainant as per rule prevailing at the relevant period, applied for registration of said Wheel Loader on 15.02.2016 and made payment of requisite registration fees. On 20.02.2016, the Wheel Loader was located at Village Barbaspur, Police Station, Korar, District North Bastar (C.G.). After working hours the same was stationed at the site. While the Wheel Loader was in stationary position, at about 9:15 P.M., some unknown naxalites burnt the Wheel Loader. The matter was reported to the concerned Police Station and First Information Report was registered. The challan was filed before Chief Judicial Magistrate, Kanker (C.G.). At the time of accident, the Wheel Loader was insured. In the incident, the Wheel Loader was completely burnt. When the complainant obtained insurance policy, the registration is not required under Section 39 of the Motor Vehicles Act, therefore, the complainant is entitled to get total Insured Declared Value of Rs.22,00,000/- from the O.P. The // 10 // complainant submitted his claim to the O.P., but the O.P. did not settle the claim of the complainant. The O.P. said to have referred the matter to Company's Grievance Redressal Committee on its own accord as communicated / informed by its letter dated 17.10.2016. The complainant was unaware of any proceedings going on before Grievance Redressal Committee. The complainant contacted the O.P., but the O.P. did not settle his claim. Shri Priyank Mishra, has further argued that the complainant has not violated the terms and conditions of the insurance policy. Only single page policy was provided to the complainant. The Exception Clause is not applicable in the instant case. In the repudiation letter, the O.P. did not take ground regarding naxalites attack, but the claim has been simply repudiated on the ground that the Wheel Loader was not registered at the time of loss. Therefore, the ground which has been taken in the repudiation letter, cannot be taken in the written statement. The complainant is entitled to get the compensation as prayed by him in the complaint. He placed reliance on Revision Petition No.1355 of 2015 - Bajaj Allianz General Insurance Co. Ltd. Vs. Kulvir Singh, decided by Hon'ble National Commission vide order dated 06.01.2015.
7. Shri Manoj Prasad, learned counsel appearing for the O.P. has argued that at the time of accident, the Wheel Loader was not registered. The Wheel Loader was burnt by the naxalites and charge sheet was filed against the unknown naxalites under Section 147, 148, 149, 392, 323, 506B, 436 IPC read with Section 25 & 27 of Arms Act. The complainant violated the terms and conditions of the policy, // 11 // therefore, the complainant is not entitled to get any compensation from the O.P. The O.P. has rightly repudiated the claim of the complaint. The complaint of the complainant is liable to be dismissed. He palace on Appeal No.FA/2017/237 - Manager Future Generali India Insurance Company Limited Vs. Smt. Hemlata Sahu and Another, decided by this Commission vide order dated 24.07.2017.
8. We have heard learned counsel appearing for both the parties and have also perused the documents filed by the parties in the complaint case.
9. It is admitted fact that the complainant is a partnership firm and is owner of HM 2021 Wheel Loader having Engine No.1200100 and Chassis No.561211. It is also admitted fact that the said Wheel Loader is insured with the O.P. On 20.02.2016, the Wheel Loader was located at Village Barbaspur, Police Station, Korar, District North Bastar (C.G) and Wheel Loader was burnt by naxalites while it was in stationary position.
10. The O.P. repudiated the claim of the complainant on the ground that the wheel loader was not registered at the time of loss and used for hire and reward. In the repudiation letter dated 07.10.2016, it is mentioned thus :-
"On scrutiny of the survey reports and claim documents submitted by you, we noticed that the vehicle was unregistered at the time of loss and used for Hire & Reward.
// 12 // The above anomalies led to violation of Section 39 in The Motor Vehicles Act, 1988 reproduced below for reference."39. Necessity for registration. - No person shall drive any motor vehicle and no owner or a motor vehicle shall cause or permit the vehicle to be driven in any public place or in any other place unless the vehicle is registered in accordance with this Chapter and the certificate of registration of the vehicle has not been suspended or cancelled and the vehicle carries a registration mark displayed in the prescribed manner : Provided that nothing in this section shall apply to a motor vehicle in possession of a dealer subject to such conditions as may be prescribed by the Central Government."
11. In the written statement, the O.P. pleaded in Additional Pleadings that the policy was issued subject to terms and conditions of the insurance policy and the conditions are binding upon the insurer and the insured. According to copy of FIR, the Wheel Loader was damaged due to naxalite attack and this incident was not covered under the insurance policy as the Wheel Loader was not involved in an accident. The FIR was also lodged under punishable section 147/148/149, 392/323/596B/436 IPC and 25/27 Arms Act. The aforesaid fact is admitted fact.
12. The complainant has filed Annexure C-2 which is Future Secure Commercial Motor Insurance - Comprehensive Policy issued by Future Generali India Insurance Company Limited for the period from 27.09.2012 to 26.09.2013. Annexure C-3 is Contractors Plant and Machinery Insurance Policy, issued by HDFC Ergo General Insurance Co. Ltd. for the period from 27.09.2014 to 26.09.2015. Annexure C-6 is Certificate of Insurance Cum Policy Schedule - Commercial Vehicle // 13 // Miscellaneous - Class D, issued by the O.P. for the period from 10.02.2016 to 09.02.2017. In the insurance policy issued by the O.P. the insured name is mentioned Anand Mining Company and address is mentioned 502, 5th Floor, Dhebar Arcade, Pension Bada, Raipur, Head Post Office, Raipur 492001 Chhattisgarh.
13. From the perusal of document Annexure C-1, it appears that the vehicle in question is Wheel Loader. In document Annexure C-2 which is Certificate of Insurance Cum Policy Schedule issued by Future Generali India Insurance Co. Ltd., the Limitation to Use is mentioned thus :-
"Limitation to Use - As per Motor Vehicle Rules, 1989 :-
Stage Carriage /Contact Carriage / Private Service Vehicle / Goods, Carriage / Non Transport Vehicles - The policy does not cover use for
a) Organised racing, and b) Speed testing, Non transport vehicle -
The policy covers use for any purpose other than a) hire or reward, b) organised racing or c) speed testing. Goods Carrying Vehicles - The policy does not cover use for a) Organised racing, b) Pace Making, c) Reliability Trials and d) Speed testing Passenger Carrying Vehicles - The Policy does not cover use for a) Organised racing b) Pace Making
c) Reliability Trials d) Speed Testing and e) Use whilst drawing a trailer except the towing (other than for reward) of any one disabled mechanically propelled vehicle."
14. In document Annexure C-6 which is insurance policy issued by the O.P.,, under the head Limitation As to Use, it is mentioned thus :-
"As per Motor Vehicle Rules, 1989, The Policy covers use of the vehicle for any purpose other than : a) Organized Racing, b) Pace Making, c) Reliability Trials, d) Speed Testing, e) Use whilst drawing // 14 // a trailer except the towing (other than for reward) of any one disabled Mechanically propelled vehicle (only for Passenger Carrying Vehicles).
15. Now we shall examine whether Wheel Loader requires registration ?
16. The Complainant has filed Gazette Notification dated 22.01.2016 issued by Government of Chhattisgarh, in which it is mentioned, thus :-
"CHHATTISGARH ORDINANCE (No.1 of 2016) THE CHHATTISGARH MOTORYAN KARADHAN (SANSODHAN) ORDINANCE, 2016.
An Ordinance further to amend the Chhattisgarh Motoryan Karadhan Adhiniyam 1991 (No.25 of 1991)
4. After serial number 7 of Part - I of Second Schedule of the Principal Act, the following entries in corresponding columns shall be added, namely :-
8. Crane and Mechanical excavator vehicle (with 7% of the cost of a shovel at the front and a digging arm at the vehicle rear or otherwise installed working machinery) popularly known as JCB or excavator made by other Manufacturers.
17. Section 2 (16) of The Motor Vehicles Act, 1988 defines heavy goods vehicle. The "heavy goods vehicle" means any goods carriage the gross vehicle weight of which, or a tractor or a road-roller the unladen weight of either of which, exceeds 12,000 kilograms."
18. The Central Government issued Notification regarding the type of motor vehicles. In S.O. 436 dated 12th June, 1989, the table has been // 15 // given. In table at Serial No.3 the description of Medium and heavy motor vehicle are mentioned, in which Camping trailer/House trailer, Crane, Fork lift, Tanker are mentioned as medium and heavy motor vehicle.
19. The complainant has filed Sale certificate of the Wheel Loader in which class of vehicle is mentioned Hindustan 2021 Z Bar Front End Pay Loader, and against the column Fuel Used "Diesel" is mentioned, against the column Number of Cylinders "6 Cylinders" is mentioned, against the column Unladen weight, 11300 Kgs is mentioned. Annexure C-5 has been filed by the complainant, which is Cash Receipt Cum Invoice under Rule 11 of Central Excise Rules, 2002. According to this document, the complainant has deposited the tax on 15.02.2016 for quarterly period from 01.09.2012 to 29.02.2016. The complainant himself pleaded that as per rule prevailing at the relevant period, the registration of the said Wheel Loader was not required, but the complainant has not filed any Notification regarding provision that as per Rule prevailing at the relevant period, the registration of the Wheel Loader is not required.
20. According to Section 39 of the Motor Vehicles Act, 1988, the registration of the vehicle is compulsory. Provisions of Section 39 of The Motor Vehicles Act, 1988 runs thus :-
"39. Necessity for registration. - No person shall drive any motor vehicle and no owner or a motor vehicle shall cause or permit the vehicle to be driven in any public place or in any other place unless the vehicle is registered in accordance with this Chapter and the // 16 // certificate of registration of the vehicle has not been suspended or cancelled and the vehicle carries a registration mark displayed in the prescribed manner :
Provided that nothing in this section shall apply to a motor vehicle in possession of a dealer subject to such conditions as may be prescribed by the Central Government."
21. From bare perusal of the Ordinance issued under The Chhattisgarh Motoryan Karadhan (Sansodhan) Ordinance, 2016, it appears that the said Ordinance is relating to Motor Karadhan Purpose (Taxation) and is not relating to Section 39 of the Motor Vehicles Act, 1988, therefore, it does not affect the provisions of the Section 39 of the Motor Vehicles Act, 1988.
22. It appears that the Wheel Loader was not got registered by the complainant at the time of incident, which is violation of the terms and conditions of the insurance policy as well as provisions of the Motor Vehicles Act, 1988.
23. The counsel for the O.P. has argued that the Wheel Loader was burnt by the naxalites, therefore, the Exception Clause is applicable in the instant case. The terms and conditions of the insurance policy have to be construed strictly and it is the duty of the Court to interpret the words in which the contract is expressed by the parties. On the contrary, the counsel for the complainant has argued that the O.P. has not taken ground in repudiation letter regarding naxalite attack.
// 17 //
24. The O.P. (Insurance Company) has field terms and condition of the insurance policy in which under the Head "General Exceptions", it is mentioned thus :-
"6. Any accidental loss damage and or / liability directly or indirectly or proximately or remotely occasioned by contributed to by or traceable to or arising out of or in connection with war, invasion, the act of foreign enemies, hostilities or warlike operations (whether before or after declaration of war), civil war, mutiny, rebellion, military or usurped power or by any direct or indirect consequences of any of the said occurrences and in the event of any claim hereunder the insured shall prove that the accidental loss damage and / or liability arose independently of and was in no way connected with or occasioned by or contributed by or treaceable to any of the said occurrences or any consequences thereof and in default of such proof, the Company shall not be liable to make any payment in respect of such a claim."
25. The complainant and O.P. both have filed copy of First Information Report (Annexure OP-1) in which it is mentioned thus :-
"eS cjcliqj vk;ju ekbZZl esa flfdoVh xkMZZ dh M;wVh djrk gwWA cjcliqj ekbZZl ftls tk;loky fedks dEiuh }kjk yht esa fy;k tkdj ioZ fcYdku dks Bsdk esa fn;k x;k gSA [knku ls vk;ju fudkyus dk dke nks rhu ekg ls py jgk FkkA fnukad 20-02- 2016 dks fnu esa dke lekfIr ds ckn nks iksdYks.M okgu nks yksMj okgu] ikap fVIij okgu ekbZl vkfQl ds ckgj ds ikl rFkk ikoj Ldzhu e'khu Åij [knku esa /keZdkVk ds ikl j[kk x;k FkkA dy jkf= esa [knku lqj{kk M~~;wVh esjh o lqjsUnz pkSgku dh FkhA ge nksuksa cLrh ds vius :e ls [kkuk [kkdj djhc 9%15 cts [knku vkWfQl ds igaqps rks ns[ks ,d O;fDr tks djhc 25 o"kZ dk // 18 // lknk Msªl esa ukVk lk Fkk] og fVIij ds 5 MªkbZoj y[ku] jkds'k] Mkseu] Hkwjs[kku] xksiky dks muds :e ls mBkdj ykdj vius lkFk j[kk FkkA iksdys.M vkWijsVj eukst yksMj vkWijsVj jfo Hkh muds lkFk FksA ge nksuksa dks og O;fDr gesa vius lkFk dj fy;k] og O;fDr vius vki dks uDlyh crkrs gq, ge yksxksa dks tku ls ekjus dh /kedh nsrs gq, dgk fd ge yksx djhc 15&20 uDlyh L=h&iq:"k gSa] gfFk;kj Hkh j[ks gSa] dqN lkns esa gSa] [knku ds pkjksa rjQ gSa] rqe yksx f?kj x;s gks] ;gka [knku dk dke pyus ugha nsuk gSA lHkh xkfM+;ksa dks tyk;k gS] ge yksxksa ds }kjk euk djus ij eka&cgu dh xUnh&xUnh xkfy;ka fn;kA eq>s ,d FkIiM+ ekjkA lqjsUnz pkSgku dh xnZu ds ikl VkpZ ls ekjk] rqe yksxksa dks tykdj ekj Mkysaxs cksykA og uDlyh gesa pkjksa rjQ [kM+s uDlyh dks fn[kk;kA gesa 15&20 yksx Hkh fn[ks] efgyk&iq:"k Fks] dqN gfFk;kj j[ks Fks] dqN [kkyh FksA og O;fDr gesa Mjk&/kedkdj vkWfQl fcfYMax esa ys x;kA ogka Mªe esa j[ks Mhty dks fudkydj vkWfQl fcfYMax esa fNM+ddj vkx yxk fn;kA vkWfQl ds ikl j[ks 3 fVIij ubZ lksYM 1] lksYM 2] lksYM 3 rFkk ,d fVIij lh- th-04ts,@4438 ,d fVIij lh-th- 04ts,@4434] iksdys.M Mh ,y- ,.M Vh- dksekRlq&10 ¼200½ ¼2½ dksekRlq 210] nks yksMj okgu ds Vadh dks Vafx;k ls QksM+dj mu xkfM+;ksa esa Mhty fNM+ddj mUgsa tyk fn;k] mlds ckn og uDlyh gesa Åij /keZdkaVk ds ikl ys x;k] ogka /keZdkaVk :e dks tyk fn;k] ogha /keZdkaVk ds lkeus j[ks ikWoj Ldzhu e'khu dks Vafx;k ls rksM+dj Mhty fudkydj fNM+ddj tyk fn;kA ge lHkh dk eksckbZy ysdj tyrh gqbZ fVIij esa Mky fn;kA mlds ckn lHkh okguksa ds ty tkus ds Ik'pkr~ jkf= djhc 10%30 cts ge yksxksa dks eqaxoky rd tkus iSny jokuk fd;kA muds lkFkh lM+d ds nksuksa vksj >kM+ ds vkM+ esa py jgs FksA pkj xkao igaqapdj ogka :e esa jg jgs nks MªkbZoj] ,d gsYQj dks lkFk ys fy;s] fQj ge 12 yksxksa dks iSny // 19 // pykrs gq, xzke eqaxoky ds fuekZ.kk/khu Ldwy ds ikl jkf= 12%30 cts rd ysdj igaqps] fQj gesa /kedh nsrs fd ;gka ls rqe lqcg tkuk gksf'k;kjh djksxs rks tku ls [kRe dj nssaxs djds /kedh fn;sA mlds ckn os 15&20 uDlyh efgyk&iq:"k tks vk/ks onhZ] vk/ks lkns esa Fks] xke Hkstk rksMEek rjQ taaxy dh vksj pys x;sA 15&20 iq:"k&efgyk uDlyh cjcliqj ekbZal dke esa yxs 10 xkfM+;ksa] ekbZal fcfYMax rFkk /keZdkaVk fcfYMax dks tyk fn;s Fks ftlls djhc nks djksM+ dk uqdlku gqvk gSA jkf= esa ?kVuk ds ckn uDlfy;ksa ds ds pys tkus ds Ik'pkr~~ ge yksx xzke eqaxoky esa :dsA eSustj ,- ds- feJk dks Qksu ls ?kVuk dh tkudknh fn,A vkt [knku dk tkdj fQj ls fLFkfr uqdlkuh dks ns[kus ds ckn vius lkFkh lqjsUnz] flD;qfjVh bapktZ fiazl okfy;k ds lkFk tkdj ?kVuk dh fjiksV fd;kA fjiksVZ i<+dj ns[kkA esjs crk;s vuqlkj fy[kh xbZ gSA tkap pkgrk gWawA**
26. The complainant himself pleaded that the charge sheet was filed before Chief Judicial Magistrate, Kanker (C.G.). The O.P. also pleaded that the First Information Report was lodged against the unknown naxalites for offence under Section 147/148/149/392/323/506B/436 IPC and 25/27 Arms Act.
27. In definition clause of Section 2 (k), (o) and (m) of The Unlawful Activities (Prevention) Act, 1967, it is mentioned thus :-
"(k) "terrorist act" has the meaning assigned to it in Section 15, and the expressions, "terrorism" and "terrorist" shall be construed accordingly;
(m) "terrorist organisation" means an organisation listed in the Schedule or an organization operating under the same name as an organisation so listed;
// 20 //
(o) Unlawful activity", in relation to an individual or association, means any action taken by such individual or association (whether by committing an act or by words, either spoken on written, or by signs or by visible representation or otherwise), -
(i) which is intended, or supports any claim, to bring about, or any ground whatsoever, the cession of a part of the territory of India or the secession of a part of the territory of India from the Union, or which incites any individual or group of individuals to bring about such cession or secession; or
(ii) which disclaims, questions, disrupts or is intended to disrupt the sovereignty and territorial integrity of India; or
(iii) which causes or is intended to cause disaffection against India;
28. In definition clause of Section 2 (e) and (f) of Chhattisgarh Vishesh Jan Suraksha Act, 2005 it is mentioned thus :-
"(e) "Unlawful Activity" in relation to and individual or organization means any action taken by such individual or organization whether by committing an act or by words either spoken or written or by signs or by visible representation or otherwise ;
(i) which constitute a danger or menace to public order, peace and tranquility; or
(ii) which interferes or tends to interfere with maintenance of public order; or
(iii) which interferes or tends to interfere with the administration of law or its established institutions and personnel; or
(iv) which is designed to overawe by criminal force or show of criminal force or otherwise to any public servant including the force of the State Government or the Central Government in the exercise of the lawful powers of such public servant.
// 21 //
(v) of indulging in or propagating acts of violence, terrorism, vandalism or other acts generating fear and apprehension in the public or indulging in or encourage the use of firearms, explosives and other devices or disrupting communications by rail or road; or
(vi) of encouraging or preaching disobedience to established law and its institutions; or
(vii) of collecting money or goods forcibly to carry out any one or more of the unlawful activities mentioned above;
(f) "Unlawful Organization" means any organization which indulges in or has for its object, abets or assists or gives aid, succor or encouragement directly or indirectly, through any medium device or otherwise to any unlawful activity."
29. In ATM Constructions Vs. United India Insurance Company Limited, IV (2016) CPJ 480 (NC), n'ble National Commission has observed thus :-
"4. ......It would be seen from a scrutiny of the aforesaid exclusion that the insurer is not liable in case where the loss occurs interalia due to commandeering a group of malicious persons or persons acting on behalf of or in connection with any political organisation.
5. A perusal of the report of the surveyor shows that the excavator in question was destroyed by Naxalites. Though the learned Counsel for the petitioner disputes the hand of Naxalites in the destruction of the excavator, in the letter available on page No.71 of the paperbook which the complainant / petitioner itself had sent to the insurer, it was alleged that the excavator was burnt by Naxalites on 19.12.2011. The petitioner sent a legal notice dated 18.4.2013 to the insurer. In para 2 of the said notice, it was specifically alleged that the petitioner had lodged a claim on account of total loss of the excavator due to Naxalite attack on 19.12.2011. Thus, it was petitioner's own case throughout that the excavator had been destroyed by Naxalites in an // 22 // attack on 19.12.2011. The destruction by Naxalites in my opinion would certainly be an act committed by a commandeering group of malicious person, if it is assumed that they did not have any connection with a political organisation. Consequently, the aforesaid loss was not covered under the insurance policy taken by the petitioner. The view taken by the State Commission therefore, was eminently justified and does not call for any interference by this Commission..."
30. In Muralidhar Sarangi vs. New India Assurance Co. Ltd. (2000) 3 SCC 466, Hon'ble Supreme Court has observed thus :-
"8. Endorsement No .IMT 21, which has been reproduced above, consists of two distinct parts. The first part speaks of mutiny assuming the proportion of popular rising, military rising, rebellion, revolution, insurrection etc. The second part consists of :-
"Any act of any person acting on behalf of or in connection with any organization with activities directed towards the overthrow by force of the Government de jure or de facto or to the influence of it by terrorism or violence or by the direct or indirect consequence of the said occurrences."
13. When read in the light of the above statutory provisions as also the attending circumstances of this case, it becomes clear that provision (b) of Endorsement No. IMT 21 of the insurance policies did not cover the risk complained of. The trucks were destroyed by acts of terrorism and a driver of the truck was also shot dead. The National Commission was, therefore, fully justified in its conclusion that the respondent was not liable for the loss suffered by the appellant at the hands of Bodo activists who completely destroyed the trucks of the appellant by setting them on fire and killed one of the drivers."
// 23 //
31. In Complaint Case No.2016/39 M/s Manmathnath Kundu & Sons & Ashoka Engineers (J.V.), Through Partner Shri Ashok Arora Vs. United India Insurance Company Limited, decided by this Commission vide order dated 17.01.2017, this Commission has observed thus :-
"22. Looking to the copy of First Information Report (FIR), Charge Sheet and averments of the complainant, it appears that the vehicle in question, was burnt by the naxalites, therefore, the Exception Clause of the Insurance Policy is applicable in the instant case. On the basis Exception Clause of the insurance policy and judgment of Hon'ble Supreme Court in Muralidhar Sarangi Vs. New India Assurance Co. Ltd. (Supra) and judgment of Hon'ble National Commssion in ATM Constructions Vs. United India Insurance Company Limited (Supra), the complainant is not entitled to get any relief from the O.P. (Insurance Company)."
32. Looking to the copy of First Information Report (FIR) and pleadings of both the parties, it appears that the Wheel Loader in question, was burnt by the naxalites, therefore, the Exception Clause of the Insurance Policy is applicable in the instant case. On the basis Exception Clause of the insurance policy and judgment of Hon'ble Supreme Court in Muralidhar Sarangi Vs. New India Assurance Co. Ltd. (Supra) and judgment of Hon'ble National Commission in ATM Constructions Vs. United India Insurance Company Limited (Supra), the complainant is not entitled to get any relief from the O.P. (Insurance Company).
// 24 //
33. Therefore, the complaint filed by the complainant against the O.P. is liable to be dismissed, hence the same is dismissed. Parties shall bear their own cost.
(Justice R.S. Sharma) (D.K. Poddar) (Narendra Gupta)
President Member Member
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