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United India Insurance Company Limited Through Manager Vs. Sharda Associates - Court Judgment

LegalCrystal Citation
CourtUttaranchal State Consumer Disputes Redressal Commission SCDRC Dehradun
Decided On
Case NumberFirst Appeal No. 210 of 2011
Judge
AppellantUnited India Insurance Company Limited Through Manager
RespondentSharda Associates
Excerpt:
.....of the consumer protection act, 1986, is directed against the order dated 26.09.2011 passed by the district forum, dehradun in consumer complaint no. 189 of 2009, whereby the district forum has allowed the consumer complaint and directed the appellant to pay sum of rs.13,50,000/- to the respondent together with interest @9% p.a. from the date of filing of the consumer complaint till payment; rs.10,000/- towards mental agony and rs.5,000/- towards litigation expenses. the district forum has directed the respondent to surrender the registration certificate of the machine with the appellant, so that the same can be legally cancelled. the appellant was given liberty to use the machine after recovering it from the ditch at their expenses. 2. briefly stated, the facts of the case as mentioned.....
Judgment:

B.C. Kandpal, President:

1. This appeal, under Section 15 of the Consumer Protection Act, 1986, is directed against the order dated 26.09.2011 passed by the District Forum, Dehradun in consumer complaint No. 189 of 2009, whereby the District Forum has allowed the consumer complaint and directed the appellant to pay sum of Rs.13,50,000/- to the respondent together with interest @9% p.a. from the date of filing of the consumer complaint till payment; Rs.10,000/- towards mental agony and Rs.5,000/- towards litigation expenses. The District Forum has directed the respondent to surrender the registration certificate of the machine with the appellant, so that the same can be legally cancelled. The appellant was given liberty to use the machine after recovering it from the ditch at their expenses.

2. Briefly stated, the facts of the case as mentioned in the consumer complaint, are that the complainant “ Sharda Associates was the registered owner of JCB Excavator Machine bearing registration No. HR55-F-1694. The said machine was insured with the appellant “ United India Insurance Company Limited for the period from 05.03.2009 to 04.03.2010 at an IDV of Rs.13,50,000/-. On 25.05.2009, during the course of road construction near Shivpuri, the said machine fell in a 500 meter deep ditch and got completely damaged. In the said accident, the driver of the machine also died. +The complainant lodged the FIR with the police on 25.05.2009 and gave intimation of the accident to the insurance company on 27.05.2009. The complainant lodged the claim with the insurance company, but the insurance company did not settle the claim. Thus, alleging deficiency in service on the part of the insurance company, the complainant filed a consumer complaint before the District Forum, Dehradun.

3. The insurance company filed written statement before the District Forum and pleaded that the complainant does not fall under the category of œconsumer?; that the machine was being used for commercial purpose; that the District Forum, Dehradun has no territorial jurisdiction in the matter; that at the time of the accident, the machine was being used as œTool of Trade?, for which additional premium was required to be paid by the complainant, but the complainant did not pay the same; that the complainant is not entitled to the claim and that there is no deficiency in service on their part.

4. The District Forum, on an appreciation of the material on record, allowed the consumer complaint vide impugned order dated 26.09.2011 in the above manner. Aggrieved by the said order, the insurance company has filed this appeal.

5. We have heard the learned counsel for the parties and have also perused the record.

6. So far as the plea taken by the appellant “ insurance company that the complainant does not fall under the definition of œconsumer? as provided under the Consumer Protection Act, 1986 because it is engaged in commercial activity and the subject machine was being used for commercial purpose is concerned, we do not find any force in the said plea raised by the insurer. The reason being that by now, it is well settled that insurance is never done for any commercial purpose or commercial activity, it is always for indemnification of loss to be sustained by the insured during the validity of the policy of insurance and in that eventuality, the insurer is liable to indemnify the loss occasioned to the insured unless there is any breach of the terms and conditions of the insurance policy on the part of the insured. In the present case, the dispute is between the insured and the insurer with regard to the loss occasioned to the insured during the subsistence of insurance policy on account of loss of the insured machine and, as such, it can not be said that the complainant does not fall under the definition of œconsumer? and the consumer complaint was not maintainable before the Consumer Fora. This apart, merely because the complainant is a company engaged in construction activity, it can not be said that if any loss is occasioned to the complainant during the subsistence of insurance policy and the said loss is not made good by the insurer, it can not approach the Consumer Fora for redressal of his grievances by filing a consumer complaint. Therefore, the District Forum has rightly turned down the said plea taken by the insurer.

7. The insurance company has also challenged the territorial jurisdiction of the District Forum, Dehradun in the matter in issue and has pleaded that the District Forum, Dehradun has got no territorial jurisdiction in the matter. It is true that the policy in question known as Miscellaneous and Special Type of Vehicles Package Policy was issued in favour of the complainant by United India Insurance Company Limited, Kailash Gate, Muni-Ki-Reti, Rishikesh, District Tehri Garhwal, but the branch office of United India Insurance Company Limited is also situated at Rishikesh, District Dehradun. The insurance company has not filed any evidence to show that no branch office of United India Insurance Company Limited, Kailash Gate, Muni-Ki-Reti, Rishikesh, District Tehri Garhwal is situated at Rishikesh, District Dehradun. Thus, in view of the provisions of Section 11(2)(a) of the Consumer Protection Act, 1986, the District Forum, Dehradun had territorial jurisdiction in the matter in issue and the consumer complaint was legally maintainable before the District Forum, Dehradun.

8. So far as the merit of the case is concerned, the insurance company has not filed any evidence to show that the driver of the machine was not fully qualified or not possessing the experience to drive the machine. The insurance company has also not shown as to what type of driving licence was required to drive the machine in question. Even if the driver had not undergone the required training for driving the JCB machine, the claim of the complainant can not be repudiated on the said ground for the reason that there is nothing on record to show that the driver was not qualified or not possessing required qualification or driving licence to drive the machine in question. This apart, Sh. K.K. Yadav, surveyor, loss assessor and investigator in his preliminary survey report dated 31.05.2009 (Paper Nos. 40 to 42), has clearly stated that the machine was working at site and suddenly, the roadside edge (pusta) got broken and on account of which, the machine rolled down about 500 meters from roadside. Thus, there was no fault of the driver in causing the accident. Even otherwise, there is no such condition in the insurance policy and, as such, the claim of the complainant can not be repudiated on the said ground.

9. So far as another plea taken by the insurer that at the time of the accident, the machine was being used as œTool of Trade?, for which additional premium was required to be paid by the complainant and which was not paid by the complainant is concerned, we also do not find any force in the said plea raised by the insurer. The reason being that as per IMT 47 mentioned in the insurance policy and which has also been quoted by the District Forum in the impugned order, the claim is not payable in the event when the JCB machine is used as œTool of Trade? and it overturns while working as such. In the instant case, the JCB machine was being used for construction of road and debris was being removed from the machine. The JCB machine was being used a whole and not as œTool of Trade? and since the machine was being used a whole, no additional premium was required to be paid by the complainant. The District Forum has also elaborately dealt with that aspect of the matter and has rightly held that the JCB machine was not being used as œTool of Trade?. Thus, from above discussion, it is evident that the insurance company has certainly made deficiency in service by repudiating the claim of the complainant and the District Forum was perfectly justified in allowing the consumer complaint.

10. So far as the quantum is concerned, the surveyor Sh. Rajiv Kumar Gupta, surveyor, loss assessor and investigator in his survey report dated 18.07.2009 (Paper Nos. 56 to 62), has made the assessment of loss treating the machine as œTool of Trade?. As is stated above, the machine was not being used as œTool of Trade? and, as such, the assessment of loss made by the surveyor can not taken into consideration. The surveyor in his remarks has also stated that accidental machine can not be brought from deep ditch, as the DFO refused the permission to make the road in the area where accidental vehicle is lying. The surveyor has also stated in his report that in the accident, the machine was badly damaged. There is no evidence on record to show that the damaged caused to the machine was not extensive. The machine was insured for the period from 05.03.2009 to 04.03.2010 at an IDV of Rs.13,50,000/- and it met with an accident on 25.05.2009 and hence the complainant is entitled to the full insured amount and the present case can very well be termed as that of total loss and the District Forum was justified in awarding the said amount to the complainant. So far as the interest awarded by the District Forum @9% p.a. is concerned, we are of the view that the same is on the higher side and in our considered opinion, the same need to be reduced to 7% p.a. Since the complainant has been awarded interest, there is no question of separate compensation for mental agony and hence the award of Rs.10,000/- passed by the District Forum towards mental agony, is liable to be set aside. In the present facts and circumstances of the case, the litigation expenses of Rs.5,000/- awarded by the District Forum, are justified. This way, the appeal succeeds partly and is to be allowed accordingly and the order impugned passed by the District Forum is to be modified as such.

11. For the reasons aforesaid, appeal is partly allowed. Order impugned dated 26.09.2011 passed by the District Forum is modified and the appellant “ insurance company is directed to pay sum of Rs.13,50,000/- to the respondent “ complainant together with interest @7% p.a. from the date of filing of the consumer complaint till payment and Rs.5,000/- towards litigation expenses, as awarded by the District Forum. The respondent is directed to surrender the registration certificate of the machine with the appellant, so that the same can be legally cancelled. The appellant is at liberty to use the machine after recovering it from the ditch at their expenses. The cost of the appeal is made easy.


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