State Consumer Disputes Redressal Commission
United India Ins.Co.Ltd. vs M/S Vikas Mines Pvt.Ltd. on 16 November, 2009
Misc.Case No.25/09 in Appeal No.136/05 United India Insurance Co.Ltd. & anr. V. M/s Vikas Mines Pvt.Ltd. Before Mr.Justice Sunil Kumar Garg-President Mr. G.S.Hora-Member
Shri Kapil Totala,counsel for the appellants petitioners Shri Rajesh Singhvi,counsel for the respondent Date of Judgement: 16.11.09 BY THE STATE COMMISSION:
This misc.application has been filed the petitioners appellants on 2.1.09 with a prayer that Appeal no.136/05 United India Insurance Company Ltd. V. M/s Vikas Mines Pvt.Ltd which was dismissed in default on
2.1.09 by this Commission be restored to its original number.
In support of that application an affidavit has been filed on behalf of the counsel,Mr.Kapil Totala and looking to the averments made in the application filed by the appellants petitioners which are supported by the affidavit,this Commission is of the view that the restoration application be allowed and appeal no.136/05 be restored to its original number.
For reasons,this misc.application is allowed and the 2 impugned order dated 2.1.09 passed in appeal no.136/05,by which the appeal was dismissed is quashed and set aside and appeal no.136/05 is restored to its original number.
Heard on merits in Appeal No.136/05 This appeal has been filed by the appellants insurance company against the order dated 7.12.04 passed by the District Forum,Rajsamand in complaint no.30/04 by which the complaint of the complainant respondent was allowed against the appellants insurance company in the manner that the repudiation of the claim of the complainant respondent was not justified and it further ordered that the amount as assessed by the surveyor be paid to the complainant respondent within one month and further if the complainant respondent was not satisfied with that amount, an option was given to the complainant respondent to approach the arbitration proceedings.
It arises in the following circumstances:
That the complainant respondent had filed a complaint against the appellants insurance company before the District Forum,Rajsamand on 10.3.04 interalia stating that a Excavator PC.200-6 machine was got insured by him with the appellants insurance company for the period 25.5.02 to 24.5.03 for a sum of Rs.42,60,000/-. It was further stated in the complaint that on 1.9.02 when the machine in question was in operation and while removing debris,one stone had fallen on the bucket of the machine as a result of which the bucket and cylinder were damaged and information of that incident was given by the complainant respondent to the office of the appellants insurance company.3
It was further stated in the complaint that in getting the repair of the bucket and cylinder,a sum of Rs.1,44,770/- were spent and since the claim of the complainant respondent was not settled by the appellants insurance company,therefore,the present complaint was filed.
A reply was filed by the appellants insurance company before the District Forum on 9.6.04 stating that it was wrong to say that the complainant respondent had suffered a loss to the tune of Rs.1,44,770/- but on the contrary,as per the report of the surveyor the complainant respondent had suffered a loss to the tune of Rs.1,10,518/- including salvage and after deducting Rs.20,000/- as salvage value,the net liability assessed was to the tune of Rs.90,518/-. It was further replied that since the loss was due to machanical break down of the machinery followed by another break down in sequence and since both were out of the ampit of the policy,therefore,as per the terms and conditions of the policy,the claim was not payable and it was prayed that the complaint be dismissed.
The District Forum after hearing both the parties,through the impugned order dated 7.12.04 had allowed the complaint as stated above,interalia holding that the repudiation of the claim of the complainant respondent was not justified and further it was ordered that the amount as assessed by the surveyor be paid to the complainant respondent within one month and further if the complainant respondent was not satisfied with that amount the complainant respondent was further given an option to approach the arbitration proceedings.
Aggrieved from that order this appeal has been filed by the appellants insurance company.4
In this appeal,the main contention of the learned counsel for the appellants insurance company is that since the loss in question was out of the scope of the policy and since proximately was caused by mechanical break down,therefore,the appellants insurance company were not under obligation to indemnify the complainant respondent for the loss and thus the claim was rightly repudiated and the findings recorded by the District Forum are erroneous one and be quashed and set aside and appeal be allowed.
On the other hand,the learned counsel for the complainant respondent has supported the impugned order.
We have heard the learned counsel for the parties and perused the record.
In this case,there is no dispute on the point that the excavator machine was got insured by the complainant respondent with the insurance company for the period 25.5.02 to 24.5.03 for a sum of Rs.42,60,000/-.
There is also no dispute on the point that as per the case of the complainant respondent that the machine was damaged on 1.9.02 and the matter was examined by the surveyor appointed by the appellants insurance company and as per the findings of the surveyor, the loss had occurred because of the following reasons:
"Under the circumstances we are of the opinion that although there is a loss,but establishing beyond doubt by the Insured or their representatives/representatives of Manufacturers that the loss had occurred because of an 5 external impact(this is a specified peril policy),more so in absence of a detailed test/failure analysis report has prompted us to reasonably conclude (looking to the nature & extent out damage suffered,nature of cleavage/fracture of rod & narration in log book etc,without a conclusive evidence substantiated by a detailed failure analysis report) that the loss occurred due to splitting open of the RHS Bucket collar while pulling a big piece of boulder with jerk/repeated jerks which lead to excessive/sudden impact loading on Rod Eye End leading to failure."
In our considered opinion, looking to the fact that the excavator machine in question was insured in the relevant period and when the insurance is meant to protect against uncertain events which may otherwise may be of some disadvantage to the insured and looking to the fact that the primary function of the insurance is to compensate the loss, therefore,the grounds on which the claim of the complainant respondent was not found payable by the appellants insurance company was not justified at all and the District Forum had rightly rejected that grounds and thus so far as the merits of the case is concerned,this appeal deserves to be dismissed and the findings recorded by the District Forum by which the report of the surveyor was accepted are liable to be confirmed one.
On point of compensation,it may be stated here that the surveyor appointed by the appellants had assessed the loss to the tune of Rs.1,10,518/-,but after deducting Rs.20,000/- as salvage value the surveyor had come to the conclusion that the net liability was to the tune of Rs.90,518/- and that amount was ordered to be paid by the appellants insurance company to the complainant respondent.
6In our considered opinion,this amount was rightly ordered to be paid by the appellants insurance company to the complainant respondent by the District Forum and when this being the position,even on point of compensation,this appeal deserves to be dismissed.
But that part of the order by which an option was again given to the complainant respondent to approach the arbitration proceedings could not be justified and that part of the order deserves to be quashed and set aside.
For reasons as stated above,this appeal filed by the appellants insurance company is dismissed. But that part of the order by which an option was given to the complainant respondent to approach the arbitration proceedings if he was not satisfied with the amount is quashed and set aside.
Member President