State Consumer Disputes Redressal Commission
Sh. Gaurav Kumar. vs National Insurance Co. Ltd. & Anr. on 27 July, 2015
H.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
SHIMLA.
First Appeal No.75/2015
Date of Presentation: 02.06.2015
Date of Decision: 27.07.2015
........................................................................
Gaurav Kumar, son of Shri Shiv Kumar,
R/o # 2755, Ward No.3, Mohalla Phool Chakkar,
Tehsil & District Ropar (Punjab).
.......... Appellant.
Versus
(1) National Insurance Company,
Through its Manager,
Having its Office Near Shitla Mata Mandir,
Sector-2, Parwanoo, H.P.
(2) National Insurance Company,
Through its Manager,
Motor Hub/13, Regional Office,
At SCO 337-340, Sector 35-B,
Chandigarh.
.......... Respondents.
..................................................................................
Coram
Hon'ble Mr. Justice Surjit Singh, President.
Hon'ble Mrs. Prem Chauhan, Member.
Hon'ble Mr. Vijay Pal Khachi, Member.
Whether approved for reporting?1 Yes.
For the Appellant: Mr. H.S. Upadhyay, Advocate.
For the Respondents: Mr. Jagdish Thakur, Advocate.
..........................................................................................
O R D E R:
Justice Surjit Singh, President (Oral) This appeal, under Section 15 of the Consumer Protection Act, 1986, by the complainant 1 Whether Reporters of the local papers may be allowed to see the order? Gaurav Kumar Versus National Insurance Company (F.A. No.75/2015) ____________________________________________________________ is directed against order dated 20th April, 2015, of learned District Consumer Disputes Redressal Forum, Solan, whereby, a complaint, under Section 12 of the Consumer Protection Act, 1986, filed by the appellant, has been dismissed, with the finding that insured tipper of the appellant/complainant, being a Miscellaneous Vehicle and premium for getting the policy endorsed with IMT-47 having not been paid and the loss to the insured vehicle having occurred, when it was being used as a tool for unloading its contents, insurer, i.e. the respondents are not liable to indemnify for the damage caused to the insured vehicle.
2. Admitted facts are that appellant owned a tipper, which was insured with the respondents for the period from 14.11.2012 to 13.11.2013. On 16.11.2012, the vehicle overturned, when gravel transported, through it, was being unloaded, by use of its hydraulic system. Intimation of loss was given to the respondents, with whom the vehicle was insured. A Surveyor deputed by the respondents assessed the loss at `1,94,655.63 paise. Page 2 of 8
Gaurav Kumar Versus National Insurance Company (F.A. No.75/2015) ____________________________________________________________ Respondents repudiated the claim on the ground that vehicle had overturned, when plant forming part of vehicle, i.e. hydraulic system was in operation and, therefore, on account of premium for IMT-47 having not been paid, the Insurance Company was not liable for the loss.
3. Appellant was dissatisfied with the repudiation of his claim and, therefore, filed a complaint, under Section 12 of the Consumer Protection Act, 1986. Direction was sought to the respondents to pay the amount of loss assessed by the Surveyor and also for payment of compensation for wrongful repudiation of claim. Cost of litigation was also claimed.
4. Complaint was contested by the respondents, on the same ground, on which, the claim had been repudiated.
5. Learned District Forum has accepted the respondents' plea and dismissed the complaint.
6. We have heard learned counsel for the parties and gone through the record. Page 3 of 8
Gaurav Kumar Versus National Insurance Company (F.A. No.75/2015) ____________________________________________________________
7. IMT-47, forming part of the policy condition, Annexure OP-1, is reproduced, below:-
"IMT.47. Mobile Cranes/Drilling Rigs/Mobile Plants/Excavators/Navvies/Shovels/Grabs/ 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-
a) 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.
b) Under Section II except so far as is necessary to meet the requirements of the Motor Vehicles Act, 1988, in respect of liability incurred by the insured arising Page 4 of 8 Gaurav Kumar Versus National Insurance Company (F.A. No.75/2015) ____________________________________________________________ out of the operation as a tool of such vehicle or of plant forming part of such vehicle or attached thereto."
8. Admittedly, no additional premium was paid by the appellant for contracting out IMT-47, with a view to claiming loss occurring because of overturning of the vehicle. The moot question is whether additional premium for getting IMT-47 endorsed with policy was required to be paid in the present case or not. Vehicle is a tipper. IMT-47 does not include a tipper in the kinds of vehicle, it speaks of. The only vehicles, in respect of which additional premium towards IMT-47 is required to be paid, are Mobile Cranes, Drilling Rigs, Mobile Plants, Excavators, Navvies, Shovels, Grabs, Rippers. Tipper is not included in either of these vehicles/equipments.
9. Learned counsel representing the respondents submits that vehicle was insured not as a goods carrier, but as Miscellaneous and Special Type of Vehicle, because on the top of the Policy, Annexure OP-1, words "Miscellaneous and Special Page 5 of 8 Gaurav Kumar Versus National Insurance Company (F.A. No.75/2015) ____________________________________________________________ Type of Policy and Package" are written and, therefore, extra premium for IMT-47 was required to be paid in case the insured wanted to be indemnified for damage to the insured vehicle, due to overturning. From a bare reading of IMT-47, it is clear that it applies in the case of specified vehicles/ equipments. It does not apply to Miscellaneous Vehicles.
10. In the cover note relied upon by the appellant, the words "Miscellaneous Goods Vehicle"
are written, which implies that what the appellant wanted to purchase was a policy for goods vehicle and not for Miscellaneous & Special types of vehicles. Whether, it was a policy for Miscellaneous Goods Vehicle or a policy for Miscellaneous & Special Types of Vehicles, is, in fact, immaterial, because of the reason that IMT-47 applies only in the case of certain vehicles/equipments, named therein and tipper which was admittedly the insured vehicle, being not included in this kind of vehicles, no special premium was required to be paid for Page 6 of 8 Gaurav Kumar Versus National Insurance Company (F.A. No.75/2015) ____________________________________________________________ claiming indemnification for the loss, arising out of overturning.
11. Another submission made on behalf of the respondents is that though the vehicle, in question, was insured as a tipper and IMT-47 may not be applicable to a tipper, yet it is applicable when hydraulic system of the tipper is pressed into service and in the course of use of that system the tipper overturns. In support of this plea, the learned counsel places reliance upon the words "loss or damage resulting from overturning arising out of the operation as a tool of such vehicle or the plant, forming part of such vehicle or attached thereto." He submits that hydraulic system was in the nature of plant, forming part of tipper and it was in the process of use of this plant that tipper overturned and, hence, IMT-47 is attracted.
12. We are unable to accept the submission made by the learned counsel for the reason that hydraulic system used in a tipper or a tractor trolley for unloading the contents of its body, cannot be equated with a plant. That is simply a device for Page 7 of 8 Gaurav Kumar Versus National Insurance Company (F.A. No.75/2015) ____________________________________________________________ unloading the contents of a goods carrier and not a plant used as a tool within the meaning of IMT-47.
13. As a result of the above stated position, we accept the appeal, set aside the impugned order and allow the complaint. Respondents are ordered to pay a sum of `1,94,655.63 paise, as insurance claim, with interest at the rate of 9% per annum, from the date of filing of complaint, i.e. 26.05.2014, to the date of payment of the aforesaid amount of money and is further directed to pay `20,000/-, as compensation and `10,000/-, as litigation expenses.
14. A copy of the order be sent to each of the parties, free of cost, as per Rules.
(Justice Surjit Singh) President (Prem Chauhan) Member (Vijay Pal Khachi) Member July 27, 2015.
*dinesh* Page 8 of 8