State Consumer Disputes Redressal Commission
United India Insurance Company Limited vs Rajiv Choubey on 16 July, 2013
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR(C.G.)
Appeal No.FA/12/203
Instituted on : 24.04.2012
United India Insurance Company Limited,
Through - Divisional Manager,
Divisional Office,
Bhilai, District Durg (C.G.) ... Appellant.
Vs.
Rajiv Choubey, S/o Shri B.K. Choubey,
R/o : A-79, Street 27, Smirti Nagar,
Bhilai (C.G.) ... Respondent.
PRESENT: -
HON'BLE SMT. VEENA MISRA, PRESIDING MEMBER
HON'BLE SHRI V.K. PATIL, MEMBER
HON'BLE MISS HEENA THAKKAR, MEMBER
COUNSEL FOR THE PARTIES: -
Shri Shishir Bhandarkar, for appellant.
Shri C.S. Kannoje, for respondent.
ORDER
Dated : 16/07/2013 PER: - HON'BLE SHRI V.K. PATIL, MEMBER This appeal has been filed by the Appellant/Insurance Company having been aggrieved by the order dated 21.03.2012 of District Consumer Disputes Redressal Forum, Durg (C.G.) (hereinafter called "District Forum" for short) in Complaint Case No.254/2011, whereby complaint of the respondent/complainant, alleging deficiency in service on the part of the appellant/Insurance Company towards non-payment of his insurance claim , has been allowed.
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2. Briefly stated facts of the case, as per averment of the complainant, are that he had insured his vehicle having Regn.No.C.G.07/N-4792 with OP/ Insurance Company under "Special Type of Vehicle Package Policy" covering period 04.12.2010 to 03.12.2011 for S.A.Rs.14,00,000/-. The vehicle met with an accident on 03.04.2011 while saving a cow at village Aheri, Nandini Road, Durg. The driver had a valid license. Insurance claim was filed with OP/Insurance Company along with an estimate of loss Rs.3,07,945 /- prepared by the repairer Dynamite (CG) Equipment Pvt. Ltd. OP entrusted two surveyors one for spot inspection and another for assessment of loss. Complainant alleged that due to non cooperation of OP, repair of the vehicle could not be undertaken so he had to deposit Rs.15,000/- with aforesaid repairer to get the repair work done. He requested OP on 26.05.2011 to settle claim but received no response. He had paid Rs.99,315/- to the repairer Dynamic (CG) Equipment Pvt. Ltd. and also Rs.39,000/- towards denting & painting so total expenses of Rs.1,38,315/- were incurred which he was entitled to be indemnified from OP/Insurance Company but it repudiated the claim vide its letter dated 09.06.2011 stating that in terms of condition no.1 of the insurance policy it had no liability, as the loss was caused to the vehicle due to its overturning. Complainant alleged that the act of OP/Insurance company in repudiating his claim on unreasonable ground amounted to deficiency in service, thus filed consumer complaint and prayed before the District Forum, seeking direction to OP for payment of Rs.1,38,315/- towards expenses incurred //3 // by him, along with interest @ 24% p.a. Compensation of Rs.25,000/- towards mental agony with cost of litigation Rs.5,000/- was also sought.
3. OP/Insurance Company, while denying other averments of the complaint, averred that the insurance policy did not cover risk of overturning of the vehicle and the complainant had also not paid extra premium towards the risk of overturning. OP denied the fact that the accident of the insured vehicle was due to saving a cow. OP averred that spot survey was done by Shri Pankaj Roy and final survey was done by Shri Ramesh Kumar Patel assessing total loss of Rs.15,167/- and it was also found that the accident of the vehicle was due to its overturning so the claim was repudiated. OP prayed for dismissal of the complaint.
4. Learned District Forum, after having perused the documents produced before it and heard arguments of parties, allowed the complaint and directed OP-1/Insurance Company to pay claim amount Rs.1,31,315/- along with interest @ 7% p.a. from the date of filing complaint i.e. 16.08.2011 till the date of payment of payment and also to pay Rs.1,000/- towards mental agony and Rs.1,000/- towards cost of litigation.
5. We have perused the documents on record and heard arguments advanced by the parties.
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6. Defence of the Appellant/Insurance Company is that in terms of IMT 47 contained in the insurance policy, the loss due to overturning of the vehicle while in operation as a tool, was not covered under the policy. The surveyor had assessed the loss caused to the vehicle for Rs.15,187/- so no amount over and above it, was payable. Appellant also took a defence that learned District Forum did not consider factors like depreciation, Excess Clause while awarding compensation amount, in its impugned order.
7. We observe that respondent/complainant in Para no.2 of his affidavit dated 10.08.2011 has stated that the vehicle sustained damages due to dash with a cow at village Aheri, Nandini Road, Dist. Durg which fact has been denied by the appellant/Insurance Company by way of an affidavit dated 15.12.2011 of its Divisional Manager Shri J.S. Bhatia in its Para no.2. We also observe that the spot surveyor Shri Pankaj Rai had visited the spot on the same date of accident i.e. 03.04.2011 and observed under the column "Cause and Nature of accident of his report (document at page s.no.61) as following;
"As explained by the insured that at the aforesaid spot, while saving a cow, the driver of the insured vehicle lost control & turn tilted on its LH on road side slope, causing damages. Looking at the damages incurred on the vehicle, the cause of accident seems to be correct."
Surveyor Shri Ramesh Kumar Patel in his final survey report dated 07.06.2011 (document at page s.no.63) also confirmed the aforementioned observation of spot surveyor.
//5 // IMT-47 referred in the insurance policy, is in respect of Mobile Cranes / Drilling Rigs/Mobile Plants/ Excavators/ Navvies /Shovels /Grabs/Rippers, which stipulates as following;
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 1 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 out of the operation as a tool of such vehicle or of plant forming part of such vehicle or attached thereto.
N.B: Omit paragraph (a) for :-
(i) Liability only Policies.
(ii) Package Policies where an additional premium has been paid for inclusion of damage by overturning NOTE:
Insert make, number or some other means of identification. Where a premium reduction is allowed for exclusion of damage when in use as a tool of trade omit from paragraph (a) words "resulting from overturning" and "except for loss.... or theft". We observe that as per IMT-47 (a), the damages caused to the questioned vehicle had not arisen out of operation of the vehicle as a tool but had arisen due to an accident on road while saving a cow and the driver lost control over the vehicle, as such damages caused to the vehicle, was due to accidental external means in terms of Section-1(VI) of the insurance policy.
//6 // When both the surveyors did not contradict the version of the respondent/complainant about damages of the vehicle due to an accident while saving a cow, then it was not proper on the part of appellant/insurance Company to deny claim according to the erroneous conclusion drawn by the surveyor about overturning of vehicle. We are thus of considered opinion that the questioned vehicle sustained damages due to loss of control over the vehicle by the driver while saving a cow leading to accident and not on account of overturning of the vehicle during operation as a tool, in terms of IMT-47.
8. Now matter remains about the compensation amount.
9. We observe that immediately after the accident on 03.04.2011, spot survey was done on the same day by a surveyor Shri Pankaj Rai, who in his report ( document no.D-4 at page s.no.60 & 61) has mentioned the details of damages as following :-
"The cabin found pressed on LH on uneven ground surface & its glass found broken. Whole cabin assy. Found misaligned. Its boom found pressed. Hydraulic & engine oil leaked."
10. We also observe that the final survey report dated 07.06.2011 was based on estimated loss and actual bills/ Money receipts towards repairs were not taken into consideration. Moreover the surveyor arrived at an erroneous conclusion that the vehicle had overturned as such was not covered under the policy. He has also not mentioned in his report as to how he had assessed loss Rs.15,187.99 as against estimated loss of //7 // Rs.3,10,488.49. When the questioned vehicle sustained damages due to an accident and the insured had incurred expenses related thereto, then the insurance company should have considered the claim in right perspective. Under the situation, compensation for loss caused to the vehicle is required to be considered properly on the basis of actual payment of bills. We find that the respondent/complainant has claimed indemnification of amount towards repairs as per two Money Receipts for Rs.84,315/- and Rs.15,000/- for total Rs.99,315/- as has mentioned in para no.9 of the complaint supported by his affidavit dated 10.08.2011. Aforesaid bills amount is to be considered after taking into consideration factors like Depreciation and 'Excess Clause' as per the insurance policy. Four bills of repairer for Rs.81,772/-, Rs.15,676/-, Rs.12,409/-, Rs.10,542/- appear to be genuine, since service tax, Education tax, and VAT on parts have been duly charged therein as per statutory norms against which the respondent/complainant submitted 2 money receipts amounting to Rs.99,315/- (document no.A-7 at page s.no.35) as aforementioned. The date of registration of the vehicle is 22.12.2009 as per surveyor's report ( document no.D-4 at page s.no.60), so as on the date of accident 03.04.2011 the depreciation factor would be @ 10% (page-2 of insurance policy) Rs.9,931 and deductible amount towards 'Excess Clause' of Rs.7,000/- so deducting total Rs.16,931/- the net amount works out to Rs.82,384/-.
//8 // Respondent/complainant has produced another bill dated 20.06.2011 for Rs.39,000/- which prima facie does not appear to be genuine as the issuing agency Shri Bajrang Sports, Bhilai has been mentioned therein as the authorized dealer of Multi Gym, Health & Sports Products and does not satisfy as to how does it undertake job of vehicle repairing itself. Moreover the items of repairs mentioned therein are in arbitrary round figures filled up manually without showing any taxes and against said bill and no money receipt has been produced as has been done in respect of other bills, and hence aforesaid bill is not acceptable for consideration.
11. Learned counsel for the respondent/complainant relied upon was pronouncement of Hon'ble National Commission in the case of Chanan Preet Singh Vs. United India Insurance Co.Ltd., 2012 STPL (CL) 807 NC wherein facts of the case were different so not applicable in the instant case. Another case relied upon by the respondent was pronouncement of Hon'ble Supreme Court in the case of Sri Venkateswara Syndicate Vs. Oriental Insurance Company Ltd. & anr., II (2010) CPJ I (SC) wherein facts of the case were different, so not applicable in the instant case.
12. In view of the observation made here-in-above and facts of the case, we find some substance in the appeal of the appellant/insurance company, hence it is allowed partly. The impugned order of Learned District Forum is modified and it is directed that :-
//9 // The appellant/Insurance company will pay Rs.82,384/- (Rupees Eighty Two Thousand Three Hundred and Eighty Four only) to the respondent/complainant in lieu of the amount as awarded in Para no.17 (1) of the impugned order. Remaining part of the impugned order as to its Para no. 17 (2) (3) (4) will remain unaltered. No order, as to cost of this appeal.
(Smt.Veena Misra) (V.K.Patil) (Ms. Heena Thakkar) Presiding Member Member Member /07/2013 /07/2013 /07/2013