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Judgment
THIS common order will decide the two Revision Petitions filed against the order passed by the State Consumer Disputes Redressal Commission, Chandigarh, Punjab (in short, ''State Commission'') in First Appeal No. 828 of 2007 (New India Assurance Co. Ltd. Vs. Satpal & Co) and First Appeal No. 1049 of 2007 (M/S Satpal & Co. Vs. New India Assurance Co. Ltd.), whereby the Hon''ble State Commission dismissed the FA No. 828/2007 and allowed the FA No. 1049/2007. Those two appeals were filed in the State Commission against the orders of the District Consumer Disputes Redressal Forum, Gurudaspur (in short, ''District Forum''). Brief facts: The facts are similar in both revision petitions. M/s Satpal & Company, the complainant got insured its L & T machine from the OP vide policy No. 361601/31/05/00334, w.e.f. 30.06.2005 to 29.06.2006.
On 23.10.2005, the machine was working on hill and cleaning the surface on the hill top. It caused landslide due to which, the machine overturned and was totally damaged. The OP was duly intimated regarding the accident and loss to the machine. The OP appointed a surveyor. The complainant submitted all the claim papers to the surveyor and replied all the queries, but the claim was not settled by the OP. OP submitted that 1st surveyor Mr. Vikas Gupta conducted spot survey and gave the report on 9/11/2005 with details regarding damage to the machine. Thereafter, the OP -1 deputed another Surveyor and Loss Assessor M/S R.P. Bhasin & Co. to conduct survey and to assess the loss. The surveyor produced report on 12.03.2006 as assessed the loss to the tune of Rs. 2,20,610/ - and the value of salvage @ Rs. 7,000/ -. In reply the OP refused to pay, mentioning that ''loader was not working at the time loss'', and filed the claim of the complainant as ''no claim''. Aggrieved by the decision of the insurance company on 28.03.2006 a legal notice was also served upon OP. The complainant filed a complaint for deficiency service by OP and prayed for payment of amount of claim at Rs. 13.50 lacs for which the said machine was insured along with interest @ 12% p.a. from the date of loss till payment and to pay Rs. 1 lac as compensation on account of harassment, loss of business and litigation expenses.
THE District Forum held that the said machine runs into tons and it is not possible that the machine can overturn as the base of the machine is very heavy. Referring to the site survey report of Gram Panchayat and claim form it was further held that the said documents show that the machine was clearing the land at the Hill Top when the earth below gave way and the said machine rolled down in the Khud. The District Forum thus concluded that the repudiation of the claim was not justified and the claim of the Complainant falls within the scope of the policy. As against the amount of Rs. 2,20,610/ - assessed by the surveyor, the District forum awarded a sum of Rs. 5,02,081/ - along with interest @ 9% from the date of repudiation and cost of Rs. 2000/ -. The order of the District Forum was challenged by both parties before the State Commission. The Complainant filed an appeal FA No. 1049/2007 for enhancement of the amount awarded by the District Forum. The Petitioner/OP Insurance Company also filed appeal FA 828/2007 for dismissal of complaint. The OP contended about the correct repudiation of claim under IMT - 47 and also the District Forum could not have awarded any amount over and above the amount assessed by the surveyor. The State Commission held that it was not a case of overturning but it was the land slide by which the said machine was damaged due to fell down from the Hill Top. Hence the IMT - 47 cause is not applicable. The State Commission dismissed the appeal FA 828/2007 and allowed the Appeal FA 1049/2007 filed by the Complainant. The State Commission held that the surveyor had whimsically and without reasons reduced the estimated loss and estimate of loss can be taken as actual loss therefore, amount of estimated loss of Rs. 7, 38,500.76 was allowed with interest @ 9% from the date of repudiation by the holding that. The estimate of loss can be taken as the actual loss.
AGGRIEVED by the order of state commission the Petitioner preferred these two Revision Petitions.
WE have heard the counsels for both the parties, perused the documents on file and the IMT - 47 clause. The L & T machine (Excavator Loader) was insured by complainant with the Petitioner and at the time of accident the policy was in force. The State Commission made following observations 11..... as per the evidence led by the Respondent through Affidavit Ex.C -11, supported by the certificate of Sarpanch of the Gram Panchayat Ex. C -6, the L & T machine while excavating the land, fell down due to the landslide in the ditch. The Appellant filed the claim as ''no claim'' for the reasons: -
Loader was not working at the time of loss.
The Appellant deputed Mr. Vikas Gupta, surveyor who gave his report Ex. R -3 and under the head ''Cause & Circumstances of Loss'', he reported as follows: -
While clearing the surface near the hill top, all of a sudden a portion of land slide & the machine rolled down into the Khud, causing multiple damages.
WE have perused the evidence on record and noted that the surveyor Vikas Gupta submitted the details of the damage caused, but did not assess the value of loss. The Petitioner appointed 2nd Surveyor/Accessor M/S R.P. Bhasin & Co. who assessed the loss to the tune of Rs. 2,20,609.99/ -. The surveyor made reduction in the loss assessed and labour charges for which he did not give any reasons.
THE petitioner repudiated the claim as per IMT - 47 i.e., the loss or damage resulted by overturning arising out of the operation as a tool, is not payable. Also extra premium was not charged in the present case. We don''t find any force in argument of Counsel for Petitioner. We are in considered view that it was the landslide which caused the said L & T machine to fall down from the hill top and the damage was caused. It is evident from the certificate of Sarpanch of the Gram Panchayat Ex. C -6. The damage was not caused due to overturning and, therefore IMT -47 is not applicable. The Report as mentioned in 2nd surveyor''s report is The parts mentioned as to be checked after dismantling and hence not considered. Even though the district forum made additions of value of those parts in the 1st surveyor''s assessment and arrived a sum of Rs. 502081/ -.
WE need to consider another point that the complainant sold the machine as scrap without any repairs or dismantling for Rs. 250000/ - As per policy the machine was insured for Rs. 945000/ -. As, no repairs were undertaken; calculating the claim on repair basis inclusive of labour charges will be wrong one. Therefore, it will be just and proper to calculate the complainant''s claim by deducting the applicable depreciation and the salvage value from the insured value. As follows:
Therefore, we are of considered view that, there is deficiency in service on part of Petitioner/OP who repudiated the claim. Accordingly, we modify the order of State Commission of that OP the insurance company directed to pay Rs. 553250/ - instead of 738500.76/ - with interest @ 9% per annum from the 4/4/2006 i.e. the date of repudiation till payment. OP is further directed to pay Rs. 10,000/ - as litigation charges.
This order should be complied within 45 days otherwise it will carry interest of 9% p.a. till the payment.