State Consumer Disputes Redressal Commission
A. Ramadoss vs The New India Assurance Company Ltd on 30 October, 2015
Daily Order BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI BEFORE THIRU.A.K.ANNAMALAI PRESIDING JUDICIAL MEMBER Tmt. P. BAKIYAVATHI MEMBERC.C.NO. 45/2011
DATED THIS THE 30th DAY OF OCTOBER 2015 Sri. A.Ramadoss Erumbur Village, Pinnaloor(via) Chidambaram Taluk Cuddalore District 608 704 ..complainant Vs
1. The New India Assurance Company Ltd, Regional Office 2-B, Unity Buildings Annexe, P Kalinga Rao Road (Mission Road ) Bangalore 560 027 Rep.by its Deputy General Manager
2.State Bank of India, Pinnalur Branch, Pinnalur 608 704 Rep.by its Branch Manager ..opposite parties Counsel for the complainant : M/s Sampathkumar & Associates Counsel for the 1st opposite party : M/s Elveera Ravindran 2nd opposite party : Exparte This complaint coming before us for hearing finally on 20.10.2015 upon hearing the arguments on both side, perusing the documents, this commission made the following order.
ORDER THIRU.A.K.ANNAMALAI, PRESIDING JUDICIAL MEMBER
1. The complaint filed U/s 17 of C.P.Act 1986.
2. The complainant praying for direction to pay a sum of Rs. 21,60,000/- with 17.25% p.a. for Rs. 1,00,000/- compensation for mental agony and for cost alleging deficiency in service against the opposite parties in not settling the insurance claim for the vehicle insured with the 1st opposite party availing loan through the 2nd opposite party.
3. The gist of the complaint in brief as follows:
The complainant is an agriculturist. He purchased an Harvester agricultural machine with finance from the 2nd opposite party and insured with the 1st opposite party for a period of one year from 3.4.2009 to 2.4.2010 for a sum of Rs. 21,60,000/- for indemnifying the loss which may be suffered by the complainant and for protection.
4. The insured machine runs solely on track rollers and as such cannot tread on black-topped surfaces because the rubberized track rollers may lack grip and could wear off faster. The machine therefore could be moved from one place to another only by loading it on a truck. The machine was being engaged in S.Nos. 90/1, 90/2, 90/3, 90/3A, 90/4, 91/2, 86/1, 86/2B, 86/6 & 87/1A during the last week of January 2009 and while it was taken through one Ms. Ambikamani's field through which it had to be moved as Ms. Ambikamani's land was in the middle, the truck that was parked along side the banks of a canal and while its driver was away around dusk, the cleaner toppled the truck accidently into the canal and got injured. The complainant's machine operator one Mr. Raghu had to take him to hospital. It got very late and he therefore went home. The insured machine was therefore at Ms. Ambikamani's field. Around 7 a.m on the morning of 2.2.2010, the land owner Ms.Ambikamani noticed that the insured machine was burnt and was still smoking and informed a friend of the complainant and fire service attended the fire, a police complaint was also given. The 1st and 2nd opposite parties immediately informed. The 1st opposite party deputed one Senthilmaran for spot survey who had conducted spot survey on 2.2.2010 and also another Rangarajan was deputed for detailed survey on 20.3.2010 and the report was submitted on 10.4.2010. The surveyor stated that the claim qualified for consideration on total loss basis since the repair liability insisted 91% of the IDV and to settle the claim for Rs.21,60,000/- with salvage value for Rs.40,000/-. After that the complainant was insisted to accept 74/75% of the insured value by one Mr.Ananthakrishnan, approached the complainant on 24.5.2010 and threatened that if a consent letter was not given he would see that the claim is repudiated. In spite of that letter one Mr. Arya claiming to be son of Mr. Ananthakrishnan approached the complainant with the same threat which was also reported to the 1st opposite party by the complainant's letter dated 11.6.2010. 1st opposite party's counsel's reply dated 30.9.2010, stated that the claim was still under consideration and it was awaiting response from its Head office. The IRDA regulation clearly contemplates that a claim should be settled within 30 days after the survey report is received. The survey report is dated 10.4.2010. After the survey report of Mr.Rangarajan, was received on 10.4.2010, the complainant fails to understand the provocation for appointment of M/s Qui-Prom in May 2010, thereby alleging deficiency and also the claim made to be paying to the 2nd opposite party being added as a party claiming the relief as stated above.
5. The 2nd opposite party having served with notice not appeared before this Commission who was set exparte on 1.3.2013.
The 1st opposite party denied the allegations of the complainant in their written version. The 1st opposite party in their written version contended that the complainant is not a consumer since the insured machine was purchased for the purpose of commercial nature and availed the policy covering the period from 3.4.2009 to 2.4.2010 with the terms and conditions to use only for Agricultural and Forest purposes and other condition regarding use and the machine was used for hire and left un-attended and there was violation of terms and conditions as per the Surveyor's report and final survey was arranged through one Mr.Rangarajan, given report dated 10.4.2010 suspecting the occurrence on the basis of charred remains lead to suspect the battery, someone trying to crank the engine by shorting the starter's termini by inserting a metal object like a screw driver. The Harvestor's operator had to rush an accident victim to the hospital and was not therefore guarding the machine that night. In these circumstances an investigator was appointed to conduct detailed investigation made by M/s Qui Prom Surveyors and their Report dated 12.8.2010 was issued stating that there was no one from the side of the complainant at the time of the alleged fire, considering all the findings and outcome of enquiries, at various places and various persons. One has to conclude the very basis of this claim as to the cause of loss and it does not appear to be genuine. The complainant has not paid the bank dues on time and going by the previous insurance claims record history of the complainant he is an habitual in making such claims. The opposite parties had sent letters dated 12.4.2010, 15.6.2010 and 6.7.2010 clearly stated that the compensation if any payable, under the policy is always subject to the terms and conditions of the policy. The policy, inter alia, stipulates that it does not cover the risks if the vehicle is used for hire and reward. Condition No.4 of the policy clearly stipulates that in the event of an accident or breakdown the vehicle shall not be left unattended without proper precaution being taken to prevent further damage or loss. It is seen that the vehicle was lying partly burnt in the midst of a paddy field not belonging to the complainant. From the documents submitted by the complainant it came to light that the vehicle broke down in the said spot while it was on the way to another paddy field again not belonging to the complainant, to be used for hire for agricultural purposes. The complainant vide letter dated 29.4.2010 admits to the use of the vehicle for hire and also that the vehicle was lying in a field not belonging to the complainant and that the owner of the said field and requested the complainant to remove the wreckage. Hence the claim was rightly repudiated and there is no negligence or deficiency in service on their part.
6. Both sides have filed their proof affidavits. On the side of the complainant documents Ex.A.1 to A.34 were marked and on the side of the 1st opposite party Ex.B.1 to B.15 were marked.
7. The Following are the Points for consideration:-
Whether the complainant is not a consumer as per the provision of section 2(1)(d) of C.P.Act 1986?
Whether there is any deficiency in repudiating the claim of complainant for the insured vehicle?
Whether the complainant is entitled for the claim of Rs.21,60,000/- with interest and also Rs.1 lakh as compensation for mental agony?
To what relief the complainant is entitled?
8. Point No.1 :-
The complainant having purchased the insured vehicle for the value of nearly 23 lakhs, insured the same as IDV for Rs.21,60,000/- by paying a sum of Rs. 40,000/- as premium p.a for the coverage of insurance to indemnifying the vehicle for any loss, damage suffered by the complainant and for protection. Though he purchased machine for the purpose of Agricultural usage for Harvesting crops. Considering the value of the machine, it appears to be for the purpose of commercial income and in this case, the complainant had said that he had engaged only an operator of the machine and the driver to carry the machine which could not be driven as plain road and to be moved place to place only by loading on a trucker and for the purpose of protecting the machine it cannot be considered as for the purpose of commercial nature to generate the profit through the insurance coverage and thereby we are of the view that the complainant is a consumer under the provision of sec.2(2)(d) of the Act and accordingly this point is answered.
9. Point No. 2 and 3 :-
In this complaint, the complainant alleged that on 2.2.2010 in the morning, he was informed through his friend Mr.Dhandapani who was communicated by the land owner M/s Ambikamani in which land, the machine was left on the previous day noticed, the machine was burnt and was still smoking and the fire service attended the fire and the police was also informed and as well as the opposite parties 1 and 2 were informed and since during the last week of January when the machine was engaged in the field of certain survey numbers, it was taken through one Ambikamani's field it was in the middle of the land, the truck that was parked along side the bank of a canal and while its driver was away around dusk, the cleaner toppled the truck accidentally into the canal and got injured and the machine operator one Mr. Raghu had to take him to hospital and thereby the machine was left in M/s Ambikamani's field, where occurrence taken place some unknown mis-creant by shorterning the battery supply with screw driver which caused fire. This fact was admitted by the 1st opposite party, it is admitted that one Senthilmaran surveyor surveyed the occurrence finally on 20.3.2010 and submitted a 2nd report, the reports are marked as Ex.B.7, Ex.B.8 and final report marked as Ex.B.11. While going through these survey reports under Ex.B.7, containing all the details relating to the vehicle's driver particulars and FIR details, accident particulars and cause of accident and the cause of accident , it is mentioned as follows:-
"It is explained to me that on 1.2.2010 night the insured vehicle was proceeding near Mr. Ambikamani's land/Vadathalaikulam/ it suddenly stopped and the machine operator went back to home and next day he gone to the spot and noted that the insured machine was got fire and damaged. Damages were relevant to the said cause"
..and also the details of damages were pointed out, which go to show that there was an occurrence of fire as alleged by the complainant and in the 2nd report under Ex.B.8 dated 10.4.2010 containing details of vehicle particulars, Insurance details, machine operator particulars, accident particulars and labour charges for dismantling and repayment charges for spare parts were all assessed to the extent of Rs.20,11,586/- and after reducing compulsory excess at 0.5% of IDV is Rs. 10,800/- and the salvage net liability of the insurers assessed for Rs.19,65,036.36 subject to the discretionally insurance company in which also the occurrence was confirmed and suspecting some one seems to be have tried to operate the machine in the desolate area and in the process abused either the battery or the starter, by short-circuit as such, confirmed, but the source there-for cannot be authenticated. The machine was being insured for Rs.21,60,000/-. The insurer therefore may have to consider settlement of the IDV Rs.21,60,000/- on total los and the wreck may fetch only Rs.40,000/- net of advertisement charges and such other expenses.
10. On the basis of Ex.B.9, the final surveyor " Qui-Prom" from Madras asking some details from the complainant regarding the occurrence for the eye witness, the reply was given by the complainant under Ex.B.10, explaining the circumstances and also disputed that the surveyor under Ex.B.9, contact the machine operator Raghu and as per Ex.B.11, final report given stating that in the conclusion, " Considering all the findings and outcome of our enquiries at various places and various persons, lead has to conclude the very basis of this claim as to the cause of loss and it does not appear to be genuine. Also from the version of the final surveyor that someone was tampering with the machine during that fateful night and identity of this person is also not revealed. Going by the previous insurance claim record history of this insured also suggest that he is a habitual in making such claims. Taking into consideration of all these aspects, it leads us to conclude that this fire accident to the insured Harvester machine is also one such incidence, where the accident to the IV appears to be NOT GENUINE.
11. From this report alone, the 1st opposite party come to the conclusion that the genuineness of the claim is suspected in view of the previous claim record history and did not disclosed what was the previous record history when the purchase of machine itself, 10 months old on duly insured for Rs.21,60,000/-.
As per the assessment made by the 2nd surveyor, leaving a salvage for to the extent of Rs.40,000/- only and simply the 1st opposite party repudiated the claim by terming the policy violation of condition, stating that the machine was used for rent and un-attended without safe guarding with proper precautions. In view of the explanation given by the complainant especially of the particulars called for, details of explanation under Ex.B.10 would go to show that there was no intention on the part of the complainant to make any false claim and also on the basis of previous claim records which was not filed. Further the complainant side also relied upon the following cases reported on their behalf 2005 (1) CTC 267 "Once it was shown that loss was caused by fire, plaintiff had made out prima facie case and onus was upon insurer to show that, on balance of probabilities, fire was caused or connived at by plaintiff, and (2) that there was no principle of common law or authority for proposition that when facts were peculiarly within knowledge of person against whom assertion was made, onus shifted to that person; and that, therefore, onus was on insurer".
ii) I (2010) CPJ 80 (NC) "As well as the evidence led by the parties, held that the appellant-insurance company was not justified in appointing second and third surveyor as the 1st surveyor by a comprehensive report.."
iii) I (2010) CPJ 272 (NC) " Person taking insurance not expected to keep a security man to safeguard the vehicle".
I (2013) CPJ 133 (NC) "Consumer Protection Act 1986 - Sections2(1)(g), 14(1)(d), 21(a) (ii) - insurance - Fire incident - Stored items destroyed - surveyor appointed - Loss assessed - claim repudiated - Deficiency in service - State commission allowed complaint"
In view of the above cited rulings relied upon which are relevant for this case and also as per the discussion made above, we are of the view that the complainant is entitled for the insurance claim against the fire incident. As for as the claim amount is concerned. The 2nd Surveyor under Ex.B.8 estimated the insurer liability to the extent of Rs.19,65,036/- after deducting 5% of the compulsory deduction of the insured amount. The salvage would fetch Rs. 40,000/- since the vehicle insured is barely 10 months old as per survey report. Hence,
12. We are inclined to consider the claim for 75% of the total IDV of Rs.21,60,000/- i.e., for (devided 4 x 3) = Rs. 16,20,000/- could be granted as claim of the insurance and as for as the claim of Rs.1,00,000/- ( 1 lakh) as compensation for mental agony caused since we are inclined to grant the claim amount with interest also we are of the view that there is no need for granting any compensation since the 1st opposite party repudiated the claim on technical ground and these points are answered accordingly.
13. Point No.4:
In view of the findings in point No 1 to 3 in favour of the complainant, the complaint to be allowed.
In the result, the complaint is allowed in part against the 1st opposite party only and the complaint against the 2nd opposite party is dismissed.
The 1st opposite party is directed to pay a sum of Rs.16,20,000/- with 9% p.a. interest from the date of complaint till realisation and also to pay a sum of Rs.5000/- as costs.
The directions shall be complied within six weeks, failing which the complainant is entitled to proceed u/s 25 & 27 of C.P Act 1986 P.BAKIYAVATHI A.K.ANNAMALAI MEMBER PRESIDING JUDICIAL MEMBER ANNEXURE LIST OF DOCUMENTS FILED BY THE COMPLAINANT :
Ex.A1 copy of policy certificate of the complainant with 1st op. Ex.A.2 2.2.2010 copy of Accident certificate of the complainant Ex.A.3 3.2.2010 copy of letter from the 2nd opposite party Ex.A.4 1.3.2010 copy of letter from the complainant to the 1st op Ex.A.5 5.3.2010 copy of survey report Ex.A.6 10.4.2010 copy of Final survey report Ex.A.7 29.4.2010 copy of letter from the complainant to the 1st op Ex.A.8 25.5.2010 copy of letter from the complainant Ex.A.9 11.6.2010 copy of letter from the 1st opposite party to the complainant Ex.A.10 11.6.2010 copy of the letter from the complainant to 1st op Ex.A.11 18.6.2010 copy of letter from the complainant to 1st op Ex.A.12 29.6.2010 copy of letter from the complainant to 1st op Ex.A.13 30.6.2010 copy of letter from the complainant to 1st op Ex.A.14 6.7.2010 copy of letter from the complainant to 1st op Ex.A.15 12.7.2010 copy of letter from the complainant to surveyor Ex.A.16 16.7.2010 copy of letter from the complainant to 1st op Ex.A.17 8.9.2010 copy of notice from the complainant's counsel Ex.A.18 20.9.2010 copy of letter from the 1st op to complainant Ex.A.19 30.9.2010 copy of reply from the 1st op's counsel to the complainant Ex.A.20 11.10.2010 copy of letter from the 1st op to complainant Ex.A.21 20.11.2010 copy of letter from the complainant to the 1st op Ex.A.22 16.11.2010 copy of letter from the 1st op to complainant Ex.A.23 29.11.2010 copy of letter from the complainant to 1st op Ex.A.24 1.12.2010 copy of letter from the complainant to 1st op Ex.A.25 8.12.2010 copy of letter from the 1st op to complainant Ex.A.26 18.12.2010 copy of letter from the complainant to the 1st opposite party Ex.A.27 20.12.2010 copy of letter from the 1st op to complainant Ex.A.28 17.12.2010 copy of V.A.O's certificate Ex.A.29 7.3.2009 copy of certificate of 2nd opposite party Ex.A.30 13.12.2006 copy of Lease Agreement Ex.A.31 copy of statement of Account of complainant with the 2nd op Ex.A.32 26.2.2011 copy of letter from the Insurance Regulatory and Development Authority to 1st op Ex.A.33 12.4.2011 copy of letter from the 1st op to complainant Ex.A.34 29.4.2011 copy of notice from the complainant's counsel to the 1st opposite party LIST OF DOCUMENTS FILED BY THE OPPOSITE PARTIES Ex.B.1 copy of Proposal Form Ex.B.2 copy of policy of insurance Ex.B.3 copy of terms and conditions Ex.B.4 12.4.2011 copy of letter sent by 1st op to complainant Ex.B.5 15.6.2011 copy of letter sent by 1st op to complainant Ex.B.6 6.7.2010 copy of letter sent by 1st op to complainant Ex.B.7 5.3.2010 copy of survey report Ex.B.8 10.4.2010 copy of motor final survey report Ex.B.9 22.6.2010 copy of letter sent by surveyor to complainant Ex.B.10 29.6.2010 copy of reply sent by complainant to surveyor Ex.B.11 12.8.2010 copy of Investigation report Ex.B.12 6.9.2010 copy of Addendum Report Ex.B.13 copy of proposal for loan given by complainant to 2nd op Ex.B.14 copy of letter given by Raghu driver of machine Ex.B.15 copy of notice sent by 2nd op to complainant for non payment of loan P.BAKIYAVATHI A.K.ANNAMALAI MEMBER PRESIDING JUDICIAL MEMBER