State Consumer Disputes Redressal Commission
Ram Lal Belwal vs United India Insurance Co. Ltd. on 25 April, 2024
Consumer Complaint No. Sh. Ram Lal Belwal 25.04.2024
08 of 2019 Versus
United India Insurance Company Limited
STATE CONSUMER DISPUTES REDRESSAL COMMISSION UTTARAKHAND
DEHRADUN
Date of Admission: 27.05.2019
Date of Final Hearing: 18.04.2024
Date of Pronouncement: 25.04.2024
CONSUMER COMPLAINT NO. 08 / 2019
Sh. Ram Lal Belwal S/o late Pitamber Dutt
R/o 17, Shastri Nagar, Haridwar Road
Kale Ki Dhal, Rishikesh
Uttarakhand
(Through: Sh. Kranti Vikram Singh Bhandari, Advocate)
...... Complainant
Versus
United India Insurance Company Limited
through its Branch Manager
United India Insurance Company Limited
Kailash Gate, Muni-Ki-Reti
Rishikesh - 249201
(Through: Sh. Suresh Gautam, Advocate)
...... Opposite Party
Coram:
Ms. Kumkum Rani, President
Mr. B.S. Manral, Member
ORDER
(Per: Ms. Kumkum Rani, President):
This consumer complaint has been filed by the complainant - Sh. Ram Lal Belwal against the opposite party - United India Insurance Company Limited, alleging that the complainant is a consumer of the opposite party, as defined under the provisions of Consumer Protection Act, 1986 and is aggrieved of the deficiency in service on the part of the opposite party.
2. Briefly stated, the facts of the case are that the complainant had purchased a Komatsu Excavator PC 130 from L&T Komatsu Limited, which was insured with the opposite party (insurance company) under 1 Consumer Complaint No. Sh. Ram Lal Belwal 25.04.2024 08 of 2019 Versus United India Insurance Company Limited Contractors Plant and Machinery Insurance Policy bearing policy No. 2502024417P100611577 for the period from 03.04.2017 to 02.04.2018 for insured sum of Rs. 29,95,000/-. At the time of issuance of the insurance policy, the complainant was assured by the agent of the insurance company that the documents presented by him are perfect and in consonance with the clauses of the insurance policy. On dated 13.03.2018 at about 11:00 a.m. near Molana - Kandi, rocks from the hill started to topple down and immensely damaged the insurance machine, thereby causing total loss to the insured machine. The intimation of the occurrence was immediately given to the opposite party, who appointed Sh. R.R. Sharma, Consultant Engineer, Insurance Surveyor & Loss Assessor, as spot surveyor, who visited the site of accident on 16.03.2018 and submitted his report. The opposite party thereafter appointed Lt. Col. GPS Bagga (Retd.) & Associates, Surveyors & Loss Assessors, as final surveyor on 23.03.2018 for assessment of loss, who made visit to the site on 15.04.2018 and gave instructions for further course of action. In the pursuance to the instructions of the surveyor, all the documents relating to the accident were again submitted and after an expensive exercise, the insured machine was retrieved from the side of the accident on 26.04.2018 in presence of the spot surveyor - Sh. R.R. Sharma, who was again deputed by the opposite party for retrieval of the insured machine. Sh. Anil, Service Engineer of IMG Engineering Company, Dehradun, Authorised Dealer of L&T Construction Equipment, was also present at the site, who examined the loss and submitted his report dated 26.04.2018.
3. Pursuant to the retrieval of the insured machine and after assessment of loss by the final surveyor, a meeting was held at Hotel Natraj on 05.05.2018 in presence of Sh. Vijay Kunwar, Senior Divisional Manager of the opposite party; Final Surveyor - Lt. Col.
2Consumer Complaint No. Sh. Ram Lal Belwal 25.04.2024 08 of 2019 Versus United India Insurance Company Limited GPS Bagga (Retd.) & Associates; Sh. Omi Chand, Branch Office Head of the opposite party; complainant - Sh. Ram Lal Belwal; Sh. Anil, Service Engineer of IMG Engineering Company, Dehradun and Sh. R.R. Sharma, Spot and Retrieval Surveyor, wherein after a lot of deliberation on the alternatives available, it was decided that the damages being extensive and repair cost would be greater than the sum insured, the claim may be settled on total loss basis. A meeting was held, when all the formalities relating to the claim were duly completed and negotiations regarding claim were going on. The final surveyor vide letter dated 18.06.2018 had duly intimated the complainant the concurrence arrived at the meeting and requested to provide necessary documents, which were duly provided by the complainant and a consent letter regarding the terms of meeting was duly supplied to the final surveyor on his direction firstly on 05.07.2018 and thereafter on 09.07.2018.
4. Inspite of meeting dated 05.05.2018 and the letter of final surveyor dated 18.06.2018, the opposite party did not settle the claim as per the decided terms. Thereafter, the complainant approached the opposite party multiple times for settlement of claim, but to no avail. Vide letter dated 01.10.2018, the opposite party asked the complainant for some additional documents, though the documents and information sought was irrelevant in cases of total loss, moreover maintenance and requirement of such information is nowhere mentioned in the insurance policy. The opposite party, after receiving all the information, did not settle the claim. The complainant sensing the ill intention of the opposite party, sent a notice to the opposite party for settlement of claim and requested under The Right to Information Act, 2005 for all the information and documents related to his claim, but the opposite party did not reply to any of the communications. The opposite party through letter dated 01.02.2019, repudiated the claim of the complainant as No 3 Consumer Complaint No. Sh. Ram Lal Belwal 25.04.2024 08 of 2019 Versus United India Insurance Company Limited Claim, without mentioning any reason. Aggrieved by the repudiation of his claim, the complainant has filed the present consumer complaint before this Commission, seeking the reliefs as set forth in the prayer clause of the consumer complaint.
5. Along with the consumer complaint, the complainant has filed his affidavit as well as copy of invoice issued by L&T-Komatsu Limited, Bangalore; copy of insurance policy; copy of relieving certificate issued by IMG Engineering Company; copy of proforma invoice and quotations issued by IMG Engineering Company; copy of letter dated 18.06.2018 issued by Lt. Col. GPS Bagga (Retd.) & Associates, Surveyors & Loss Assessors; copy of legal notice dated 27.10.2018 issued on behalf of the complainant to the opposite party; copy of application dated 27.10.2018 moved by the complainant under The Right to Information Act, 2005; copy of claim repudiation letter dated 01.02.2019 issued by the opposite party etc.
6. The opposite party filed written statement, stating that the complainant is not a consumer as defined under the Act. The insurance policy was issued in good faith of the insured that if there is any false and fabricated information provided by the insured at the time of taking the insurance coverage, the claim would be forfeited. As per the intimation given by the complainant, his machine had met with an accident. It is not admitted that due to the accident, the machine was immensely damaged, resulting into total loss of the machine. As per the report of Maj. R.K. Saraswat (Retd.), Surveyor, Loss Assessor & Investigators, the insured machine was found working, which fact was never informed by the complainant to the opposite party. It is also pleaded that the surveyor - Maj. R.K. Saraswat (Retd.) has found that the machine was working at the site without the knowledge of the opposite party. The opposite party has further pleaded that there exists 4 Consumer Complaint No. Sh. Ram Lal Belwal 25.04.2024 08 of 2019 Versus United India Insurance Company Limited no cause of action against the opposite party, hence the consumer complaint is not legally maintainable and the same is liable to be dismissed.
7. It was also stated that the opposite party has repudiated the claim of the complainant vide letter dated 26.04.2019 (the complainant was duly informed vide previous letter dated 01.02.2019), on the ground of misrepresentation, false documentation, concealment of material facts, exaggerated claim put forward with an intention of misleading the insurer, conniving with the repairer to submit two inflated estimates without even dismantling the machine, then later repairing the machine without intimating the insurer or taking their consent much before the assessment and final report was submitted / finalized. It was further stated in the written statement that the complainant had concealed crucial information regarding the service, past repair history, log book, details of the operator and his employment etc. The claim of the machine was not a fit case for settlement on total loss basis and the machine has been repaired and working at the site of the accident. The complainant has violated the terms and conditions of the insurance policy. The training certificate produced by the complainant was not found valid & genuine, whereas as per the policy under CPM, the training certificate is mandatory to operate the machine, as such, the claim was liable to be dismissed. On account of violation of condition No. 3(b) of the insurance policy, the insurance company has repudiated the claim of the complainant, as per the terms and conditions of the insurance policy. The complainant is guilty of misrepresentation and hiding of actual facts and also making false allegations against the opposite party. There is no deficiency in service on the part of the insurance company. The complainant has sought reliefs on baseless ground, hence the consumer complaint is liable to be dismissed on this ground alone.
5Consumer Complaint No. Sh. Ram Lal Belwal 25.04.2024 08 of 2019 Versus United India Insurance Company Limited
8. The complainant has filed replication, denying the misrepresentation & concealment of actual facts and alleged that the so-called report of Maj. R.K. Saraswat (Retd.) is bereft of any genuineness and violates (Protection of Policy Holders Interests) Regulation guidelines. It was further stated that Maj. R.K. Saraswat (Retd.) was neither the spot surveyor, nor the final surveyor and he never made any kind of survey. Hence, the averments made in the written statement are misleading and vehemently denied.
9. The complainant filed his affidavit in evidence along with following documentary evidence:
(i) Copy of invoice dated 31.01.2011 issued by L&T-
Komatsu Limited, Bangalore.
(ii) Copy of insurance policy.
(iii) Copy of relieving certificate.
(iv) Copy of letter dated 21.03.2018 issued by IMG
Engineering Company to the complainant along with quotations.
(v) Letter dated 18.06.2018 issued by Lt. Col. GPS Bagga (Retd.) & Associates to the complainant.
(vi) Copy of legal notice dated 27.10.2018 issued on behalf of the complainant to the opposite party.
(vii) Copy of application dated 27.10.2018 moved by the complainant under The Right to Information Act, 2005.
(viii) Copy of notice dated 18.04.2019 issued on behalf of the complainant to the opposite party, claiming compensation.
(ix) Copy of claim repudiation letter dated 01.02.2019 issued by the opposite party to the complainant.6
Consumer Complaint No. Sh. Ram Lal Belwal 25.04.2024 08 of 2019 Versus United India Insurance Company Limited
10. In defence evidence, the opposite party has submitted the affidavit of Sh. Ashwani Kumar Kasana, Assistant Manager, United India Insurance Company Limited, Regional Office, Ratan Palace, Kaulagarh Road, Dehradun along with copy of the insurance policy with terms and conditions and repudiation letter dated 01.02.2019 issued by the opposite party. The opposite party has also filed affidavit of Lt. Col. GPS Bagga (Retd.) & Associates along with their preliminary survey report dated 11.07.2018 together with copy of claim form, copy of quotation dated 08.07.2018 issued by Hydraulic Power Company, Rishikesh as well as copy of consent letter dated 05.07.2018 submitted by the complainant to the surveyor / opposite party. The opposite party has also filed affidavit of Maj. R.K. Saraswat (Retd.) along with technical re-opinion and re-assessment report dated 07.12.2018; inspection report dated 27.04.2018 of Sh. R.R. Sharma as well as spot survey report dated 26.03.2018 of Sh. R.R. Sharma.
11. The complainant has also filed his affidavit in rebuttal evidence along with copy of e-mail dated 22.05.2022. The complainant has further filed additional documents, i.e., copy of survey report dated 05.08.2017 of Lt. Col. GPS Bagga (Retd.) & Associates. Here, it is pertinent to mention that as per the instructions of the then Hon'ble President of the Commission, the opposite party has submitted the verification report dated 11.07.2023 of damaged excavator issued by Sh. Bhopendra Singh, surveyor & loss assessor along with photographs of the machine.
12. We have heard learned counsel for the parties and perused the record. It is proved on record that the complainant had purchased a Komatsu Excavator PC 130 from L&T Komatsu Limited from L&T- Komatsu Limited, Bangalore vide invoice dated 31.01.2011 for an amount of Rs. 31,88,266/-. The pleadings of both the parties as well as 7 Consumer Complaint No. Sh. Ram Lal Belwal 25.04.2024 08 of 2019 Versus United India Insurance Company Limited insurance policy of the subject machine has transpired that the subject machine (Komatsu Excavator PC 130) was insured with the opposite party for the period from 03.04.2017 to 02.04.2018 for insured sum of Rs. 29,95,000/-. It is also not disputed by the opposite party that on 13.03.2018 at around 11:00 a.m. near Molana - Kandi, rocks from the hill started to topple down and immensely damaged the machine. It is further established on record that the complainant immediately reported the occurrence to the insurance company, who appointed Sh. R.R. Sharma as spot surveyor, who visited the site of accident on dated 16.03.2018 and submitted his report dated 26.03.2018, which is available on record (Paper Nos. 136 to 139). A perusal of the spot survey report submitted by Sh. R.R. Sharma has clearly transpired that on the ill-fated day, the insured machine was working at site at Molana
- Kandi under construction motor road, Kirti Nagar, District Tehri Garhwal and while cutting the hill rock and removing rock debris from the road, suddenly heavy hill rocks toppled over the machine and the subject machine got badly damaged. The details of the loss / damages have elaborately been given in the survey report. As per the said report, the insurance particulars were found accurate and the driver's licence was found endorse for hill roads w.e.f. 09.10.2014. Thus, as per the spot survey report, the driving licence of the driver - Sh. Dinesh Singh was endorsed for hill roads and the driver was authorised to drive the subject machine. In the said report, the spot surveyor has observed that he could not verify the identification marks of the machine on account of accumulation of boulders and rock mass on the machine and the machine was partially hanging in the ditch; the insured was requested several times to recover the machine, so that he can verify the identification marks, but the insured has not done the same as yet. On the instructions of the insurance company, the said surveyor - Sh. R.R. Sharma has further submitted inspection report dated 27.04.2018 (Paper Nos. 134 to 135) in regard to recovery process of L&T Komatsu 8 Consumer Complaint No. Sh. Ram Lal Belwal 25.04.2024 08 of 2019 Versus United India Insurance Company Limited Hydraulic Excavator from the spot, wherein also he has given the details of loss / damages.
13. On the instructions of the insurance company, Lt. Col. GPS Bagga (Retd.) & Associates made final survey and submitted report dated 05.08.2017 to the insurance company, copy whereof is Paper Nos. 156 to 163, wherein it is stated that the excavator was taken out from the site of accident with the help of crane. The surveyor has also found that on dated 13.03.2018 at about 11:00 a.m., the subject machine was being operated by the operator - Sh. Dinesh Singh (driver) at the place of accident Molana - Kandi under construction motor road, Kirti Nagar, District Tehri Garhwal, while cutting the hill rock and removing debris, suddenly hill rock toppled over the machine, causing extensive damages and no third party loss was reported. The said surveyor has also conceded that the insured informed the Branch Office, Rishikesh on 15.03.2018 about the accident to the machine and spot surveyor Sh. R.R. Sharma was deputed for spot survey, who submitted his report dated 27.04.2018, indicating the damages while the insured machine was still buried under the boulders. The said surveyor assessed the loss on repair basis to the tune of Rs. 24,87,694/- and the liability of market value was assessed as Rs. 10,50,000/-. The said surveyor has recommended that the repair liability comes to Rs. 24,87,694/- and the liability on market value comes to Rs. 10,50,000/-, hence it will be economical for the insurance company to settle the claim on market value as per terms and conditions of the insurance policy. In conclusion of his report, the surveyor has stated that that the insured has given his consent accepting the market value as Rs. 15,50,000/- and the insured had offered the wreck value of Rs. 4,00,000/-. The surveyor has enquired from the market about the wreck value and received quote hardly for Rs. 3,90,000/-, since the location of machine is in remote location with tedious approach. The surveyor insisted the insured to 9 Consumer Complaint No. Sh. Ram Lal Belwal 25.04.2024 08 of 2019 Versus United India Insurance Company Limited improve upon the offer of wreck value and he has sent a consent to retain the machine for Rs. 4,50,000/-. The surveyor has recommended the insurer to settle the loss on market value for Rs. 10,50,000/- as per terms and conditions of the insurance policy.
14. The copy of the consent letter dated 05.07.2018 submitted by the complainant is on record (Paper No. 122), whereby the complainant has consented for settlement of claim for Rs. 11,00,000/-. It is also established that after the spot survey and final survey, a meeting was held between the parties at Hotel Natraj on 05.05.2018, wherein it was agreed in the presence of Senior Divisional Manager of the opposite party; final surveyor; Branch Office Head of the opposite party; complainant; Service Engineer of IMG Engineering Company, Dehradun and spot & retrieval surveyor, that the repair cost of the machine would be greater than the sum insured and it was agreed to settle the claim on total loss basis. However, subsequently, the insurance company has repudiated the claim of the complainant, as per the report of Maj. R.K. Saraswat (Retd.), whereas the claim on total loss basis was agreed to be settled in presence of the Senior Divisional Manager of the insurance company.
15. It is worth to mention here that as the verification report dated 11.07.2023 of damaged excavator issued by Sh. Bhopendra Singh, in pursuance to the instructions conveyed to him by the insurance company on 07.07.2023, he visited Village Dang situated before 03 km. from Village Kandi, on Molana - Kandi Road, District Tehri Garhwal, on 08.07.2023, where he found that the subject excavator is still lying on the roadside after its retrieval from the site of loss. The various assemblies / components (i.e. cabin, side covers RH, swing motor, assembly, exhaust, fuel tank, hydraulic tank & boom etc.) were damaged and various components of the machine were found rusted 10 Consumer Complaint No. Sh. Ram Lal Belwal 25.04.2024 08 of 2019 Versus United India Insurance Company Limited because of its sustaining atmospheric conditions. The said surveyor has also enclosed photographs of the subject machine along with his report.
16. Learned counsel for the complainant as well as the opposite party have stated that the report dated 11.07.2023 of Sh. Bhopendra Singh, surveyor & loss assessor, was summoned by the insurance company from its surveyor on the oral instructions of the then Hon'ble President of this Commission for the purpose of compromise and the said report can not be taken into consideration while deciding the dispute between the parties. Here, it is pertinent to mention that when the spot surveyor
- Sh. R.R. Sharma as well as final surveyor - Lt. Col. GPS Bagga (Retd.) & Associates, have found the subject machine totally damaged and another surveyor - Sh. Bhopendra Singh has also found the damaged machine lying on the roadside, all these facts make suspicious the report of Maj. R.K. Saraswat (Retd.) that the insured machine was found working. Hence, in our view, the report submitted by Maj. R.K. Saraswat (Retd.) has no relevance at all and can not be relied upon.
17. As per survey report of Lt. Col. GPS Bagga (Retd.) & Associates, the loss on total loss basis (liability on market value) was assessed to the tune of Rs. 10,50,000/-. Thus, we are of the considered opinion that the said amount should be paid by the opposite party to the complainant for the damage caused to the insured machine on dated 13.03.2018. Here, it is worth mentioning that the complainant has also given consent letter dated 05.07.2018 for sum of Rs. 11,00,000/-, but as the surveyor has recommended for settlement of loss on market value for sum of Rs. 10,50,000/-, it would be it just and proper to award an amount of Rs. 10,50,000/- in favour of the complainant towards claim amount. Since the opposite party has wrongly repudiated the claim of the complainant without any valid reason, therefore, the complainant is also entitled to interest @6% p.a. on the above amount of 11 Consumer Complaint No. Sh. Ram Lal Belwal 25.04.2024 08 of 2019 Versus United India Insurance Company Limited Rs. 10,50,000/-, payable from 27.05.2019, i.e., the date of admission of the consumer complaint till actual realization and Rs. 15,000/- towards litigation charges.
18. For the reasons aforesaid, the consumer complaint succeeds and is to be allowed accordingly.
19. Consumer complaint is allowed and the opposite party - insurance company is directed to pay within 30 days' an amount of Rs. 10,50,000/- (Rupees Ten Lacs Fifty Thousand Only) to the complainant towards claim amount along with interest @6% p.a. from 27.05.2019, i.e., the date of admission of the consumer complaint till actual payment and Rs. 15,000/- (Rupees Fifteen Thousand Only) as costs.
20. A copy of this Order be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986 / 2019. The Order be uploaded forthwith on the website of the Commission for the perusal of the parties.
21. File be consigned to record room along with a copy of this Order.
(Ms. Kumkum Rani) President (Mr. B.S. Manral) Member Pronounced on: 25.04.2024 12