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Judgment
M. Shreesha, J
Aggrieved by the order in CC No. 17 of 2008 passed by the Andhra Pradesh State Consumer Disputes Redressal Commission, Hyderabad (for short "the State Commission"), Iffco Tokio General Insurance Company Ltd. (hereinafter referred to as "the Insurance Company") preferred this First Appeal under Section 19 of the Consumer Protection Act, 1986 (for short "the Act"). By the impugned order, the State Commission had allowed the Complaint in part directing the Insurance Company to pay ₹23,96,483/- rounded off to ₹23,96,500/- along with interest @ 9% p.a. from the date of repudiation till the date of realization together with costs of ₹10,000/-. The brief facts as stated in the Complaint are that the Complainant insured a Volvo Hydraulic Excavator (for short "the machine") with the Insurance Company for the period between 28.05.2006 to 27.04.2007 for ₹49,51,000/-. While so, on 19.06.2006, during its functioning at Sriramsagar Flood Flow Canal Work at Kacharam village on account of some loose soil the machine lost control and slipped from the side. The police conducted panchnama and the Insurance Company appointed a spot Surveyor namely Sh. S. Bishan Singh who submitted his report on 22.06.2006 after inspection of the site. It was mentioned in the survey report that it was on account of loose soil that the machine lost control and fell down. It was noted that all the external damages were noted at the time of the spot survey and that the internal damages would be verified at the time of final survey. In the meantime the Insured got the machine repaired by M/s Vijay Engineering Equipment India Pvt. Ltd. and an amount of ₹23,96,483.94 was spend towards repairs.
It was averred that another Surveyor namely Sh. D.R. Krishna Murty was appointed who examined K. Suresh Kumar Reddy, partner and the machine operator on 05.07.2006 who stated that when the machine was going towards the ramp, the underneath earthen soil became loose and the machine slipped and rested on its left side and in the process some loose stones and boulders fell on the machine damaging the cabin, radiator, cooler, bucket cylinder and engine oil leakage etc. The detailed comments were obtained from the first surveyor who stated that the machine had overturned/fallen at the place of work where it was being used as a tool of trade and the machine was simply clearing the stones from upper level to lower side with bucket and as such the statement dated 05.07.2006 of the operator was far from reality. The surveyor observed that the loss or damage resulted from overturning arising out of the operation as a tool of such vehicle and, therefore, there was no liability and hence the Insurance Company repudiated the claim.
The State Commission allowed the Complaint after observing thus:-
"The complainant in order to prove the loss sustained by it filed the invoice issued by M/s Vijay Engineering Equipment India Pvt. Ltd. In fact Sri D.R. Krishna Murthy second surveyor who visited the workshop noted the damages. The complainant had spent ₹23,96,483.94 evidenced under bills Exs. A16 to A22. Though in the counter it was mentioned that the surveyor has assessed the damages at ₹19,80,542 a perusal of Ex. B3 report does not show that the surveyor had estimated the damage. What all he mentioned was 'Damage Details' and the fact that they are being repaired at the workshop. On the other hand, he mentioned "the insured has submitted a repair estimate for ₹29,31,626.25 from M/s Vijay Engineering Equipment India P. Ltd." He did not question the estimate. In fact he visited the machine at the workshop.
14) In the light of the fact that the complainant could prove that it got effected the repairs which fact was not controverted by the surveyors besides affirmed it, we are of the opinion that the complainant was entitled to the said amount. Though the complainant claimed a compensation of ₹2 lakhs it did not adduce any evidence as to the loss occasioned due to non-settlement of the claim by the insurance company. Since it is a partnership firm it ought to have filed its accounts to prove the said fact. Therefore, we are not inclined to award any compensation for mental agony etc.
Learned Counsel appearing for the Appellant vehemently contended that the risk was outside the scope of the policy and drew our attention to the observations made by the spot surveyor which are reproduced as hereunder:
"According to the insured, the insured machine VOLVO Hydraulic Excavator hired to M/s SKR Constructions and while working at their work site i.e., Sriram Sagar Flood Flow Canal Work, Kacharam village, Mdl. Medipally, Dist. Karimnagar, (67-68 Kms. Area) due to loose soil the Volvo Excavator machine lost control and fell down from up side place....."
He also drew our attention to the Surveyor's observations regarding the narration of occurrence which are as follows:-
"However, once the I.V. (insured vehicle) shifted to the workshop, the insured understood that overturning risks were not opted for by him under the policy at the time of taking policy and, therefore, he had changed the accident version .... I feel that some of the insurance experts might have fabricated the story.... so as to bring the loss under the purview of the policy."
It is the main case of the Insurance Company that the machine lost control and overturned and that the Complainant had not opted to get the risk 'overturning' covered under the insurance policy and did not pay the insurance premium for it and, therefore, the repudiation is justified. It is significant to mention the observations made by the spot surveyor in his report dated 11.07.2006. The spot surveyor has stated that no boulder or stones fell on the insured machine and the machine was simply clearing the stones from upper level to lower side with bucket so that they can be carried to the dump yard. At this time due to improper base beneath/loose soil it lost control and fell resting on its left hand side.
Endorsement IMT No. 47 read as follows:-
"Mobile Units: Endorsement IMT 47 is to be used in respect of the following mobile units.
a) Mobile cranes.
b) Mechanical navies, Shovels, Grabs, Rippers and excavators.
c) Dragline Excavators.
d) Mobile drilling rigs.
e) Mobile plant.
Package policies issued to the above units can be extended to cover damage to the unit by overturning during operational use as a tool of trade at an additional rate of 0.5% of IDV of the vehicle subject to a minimum additional premium of ₹100/-.
It is an admitted fact that the machine had fallen down due to loose earthen soil and was damaged. The spot surveyor, in his report, had categorically stated that due to loose soil the vehicle lost control and fell down from upside place causing damage to the insured machine. He never mentioned that the peril was not covered. Even the second surveyor Sh. D.R. Krishna Murthy also used the same very words that the damage was caused due to the machine having turned and rest on its side due to loose earthen soil. The Complainant has also filed his affidavit by way of evidence and Mr. K. Suresh Kumar Reddy, partner deposed in his affidavit that the Volvo Hydraulic Excavator machine was going towards ramp for excavating further work, the underneath earthen soil with boulders got loosened and due to that position the Volvo Hydraulic Excavator machine slipped down despite best efforts made by the operator to stop the machine from slipping and it slipped by 7 to 8 feet back and rested on the left side of the machine.
In the meanwhile some loose boulders and big stones also slipped and fell on the machine causing damage to cabin, radiator, cooler, bucket cylinder and engine oil leakage. A perusal of the material on record does not show any documentary evidence to establish that the damage was caused because of over-turning. Material on record establishes that the damage was purely accidental and happened on account of loose soil because of which the machine had slipped down. The surveyor had reported that there was damage on account of loose soil but stated that over-turning is not covered. Merely because the machine slipped down and fell on the left hand side, the Insurance Company cannot bring it within the ambit of 'overturning' to repudiate the claim. The Complainant in order to prove the loss also filed the repair bills for ₹29,31,626.25/- from M/s Vijay Engineering Equipment India P. Ltd.
In the result this Appeal is dismissed accordingly with no order as to costs. Statutory deposit shall be refunded to the Insurance Company. Needless to add, the amount deposited by the Insurance Company in compliance of the order dated 22.04.2010 together with the interest accrued shall stand released to the Complainant only to the extent of decretal amount. The balance, if any, shall be released to the Appellant Insurance Company.