Delhi

East Delhi

CC/187/2021

M/S A.R. ENTER. - Complainant(s)

Versus

IFFCO TOKIO G..I.C. - Opp.Party(s)

09 Jun 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION (EAST)

GOVT. OF NCT OF DELHI

CONVENIENT SHOPPING CENTRE, FIRST FLOOR,

SAINI ENCLAVE, DELHI – 110 092

 

C.C. No. 187/2021

 

	M/S A.R. ENTERPRISES THROUGH ITS PROPRIETOR SMT. RASHMI JAIN R/O 10/89, VISHNU GALI, VISHWAS NAGAR, SHAHDARA, NEW DELHI - 110032	….Complainant
Versus
	IFFCO TOKIO GENERAL INSURANCE CO. LTD. REGISTERED OFFICE: IFFCO SADAN, C-1, DISTRICT CENTRE, SAKET, NEW DELHI – 110017	……OP

 

 

Date of Institution	:	26.03.2021
Judgment Reserved on	:	09.06.2023
Judgment Passed on	:	09.06.2023

               

QUORUM:

 

Sh. S.S. Malhotra	(President)
Ms. Rashmi Bansal	(Member)
Sh. Ravi Kumar	(Member)

 

Order By: Shri S.S. Malhotra (President)

 

 

 

JUDGMENT

1. By this order the Commission shall dispose off the present complaint filed by the Complainant against OP w.r.t. deficiency in service in wrongfully repudiating the claim of the complainant against loss to its commercial vehicle.    
2. Brief facts as stated by the complainant in the complaint are that complainant is a proprietorship firm and Smt. Rashmi Jain is its sole proprietor and the complainant in order to carry her business purchased a vehicle i.e. the boom pacer having Registration No.UP14HP4749 and after purchasing the same entered into a contract with M/s Mayank Engineering Projects Pvt. Ltd. TATA KPO Site at Jajpur, Bhubneshwar, Orissa by way of written agreement dated 21.05.2019 for Rs.54,00,000/- and the said vehicle was duly insured by OP vide comprehensive policy covering all risks for a total IDV of Rs.1,22,94,700/- and she paid a premium of Rs.66,895.25/-.  It is further stated that along with the policy no other terms and conditions were given to the complainant.  It is further submitted that on 07.08.2019 the vehicle along with Boom Pacer was standing on its riggers at the site of contract for operation and was in stationary position.  All of sudden a thunderstorm started and due to heavy catastrophic rain the left side of boom pacer thrusted alongwith the vehicle, as a result of which the riggers went into the land and the vehicle tilted to its left side and fell down with boom thereby causing heavy damage to the boom and the vehicle.  Information of this was given to the OP who immediately deputed Mr. Sudeepta Behra, Surveyor to carry out the survey and to assess the damage, who also did the survey on 08.08.2019 itself and thereafter vehicle was shifted to its manufacturer’s unit i.e. M/s Putzniester India Pvt. Ltd. at Panjim, Goa, to repair who gave an estimate of Rs.36,61,330/-.  All the desired documents along with the claim form were given to the complainant along with the details of the accidental loss but OP delayed the claim initially and ultimately sent a letter on 20.09.2019 thereby stating that the claim be treated as ‘no claim’ and no reason was explained.  The complainant then issued a notice dated 01.10.2019 upon the OP thereby requesting them to review their decision which was unethical, unlawful and biased and also requested them to pay the claim but of no avail and this amounts to ‘unfair trade practice’ while rejecting the claim by using flimsy ground of IMT 47 of Indian Motor Tariff which reads as under:  

 

1. 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 the loss or damage arising directly from fire, explosion, self ignition or lightening or burglary housebreaking or theft.

 

2. 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.

 

 

3. It is further submitted that when the OP did not pay the claim the complainant got the same repaired at her own cost and paid Rs.16,52000/- and ultimately filed the present complaint thereby claiming Rs.16,52000/- towards cost of repair, Rs.7,65,000/- towards loss of income i.e. income of Rs.45,000/- per month X 17 Months on account of not able to give services to the contractor where the boom pacer was rented out, Rs.36,000/- as transport for carrying the accidental vehicle to Panjim Goa, Rs.50,000/- as mental agony, pain and suffering and litigation expenses of Rs.25,000/-.
4. OP filed its Written Statement taking preliminary objection that complaint is not maintainable as there is no deficiency of service on the part of complainant, there is no cause of action in favour of the complainant or against the OP, the complainant has not come to the Commission with clean hands, the complainant is not a consumer as it purchased the vehicle for commercial purpose, the claim was rightfully rejected as the same was outside the scope of the insurance policy, as the overturning within the meaning of IMT 47 have not been opted for by the complainant while taking the insurance policy and even otherwise the claim includes complicated question of law and cannot be decided in Consumer Commission.  It is further stated that the complainant has concealed material facts as just after the information w.r.t. accident the OP appointed an independent duly licensed surveyer who assessed the loss at the spot at earliest possible and he assessed the actual position of the insured vehicle at the material time, and as per the report the Boom Pacer was seen overturned and based upon the initial and spot surveyor’s report it was concluded that endorsement number IMT-47 was not found covered in the policy and therefore claim could not have been recommended and it was accordingly conveyed to the complainant that it amounts to ‘no claim’. 
5. It is further stated that the surveyor duly visited the workshop also and observed that the damage has been sustained to the bottom place which has been caused due to overturning, while being in operation of the crane as a tool and the insurance cover for overturning (IMT-47) is not taken by the complainant while taking the insurance of this vehicle and therefore there is no deficiency in providing the services rather OP has acted according to the agreement. 
6. On merit the facts mentioned in the preliminary objections are reiterated and it is submitted that complaint case of the complainant be dismissed. 
7. Complainant has filed Rejoinder thereby reiterating the contents of the complaint and has submitted that although the vehicle was being used for commercial purpose yet the policy was not taken for commercial purpose and as per the proposal given by the authorised agent of the OP it was a comprehensive policy covering all risks.  It is denied that the boom pacer was working at the time of incident rather it is reiterated that it was on its riggers and due to heavy rain, tilted to its left side and fell down.  Contents of complaint are reiterated and it is prayed that complaint of the complainant be allowed. 
8. The Complainant has filed its evidence but when it came to the turn of the evidence by OP, it did not appear on 05.09.2022 and did not file its evidence and despite waiting upto lunch hours, the OP did not turn up and was proceeded Ex-parte vide order dated 05.09.2022 itself.  The OP thereafter filed an application under Section 40 of the CP Act which was also dismissed vide order dated 18.10.2022. 
9. Complainant and OP both have filed the Written Arguments.
10. The Commission has heard the arguments and perused the record. 
11. The Commission has perused the policy document as well as the oral arguments.  The contention of the OP that complainant was having commercial activity and as such is not a consumer is of no merit as it is not the case of the complainant that the policy was being used for commercial purpose but the fact is that policy was taken for a vehicle which was being used for commercial purpose and therefore the argument of the counsel for OP that the insurance was for commercial purpose or the complainant has taken certain benefits from the insurance policy is not well found.  Further it is not the commercial activity of the Complaint which is in dispute rather it is the policy which was given by OP for a commercial vehicle, in dispute.  Looking from this angle also the contention of OP is not well found.    
12. As far as other aspects w.r.t. IMT-47 or w.r.t. ‘no claim’, is concerned, it is fact of the matter that OP although has filed Written Statement yet has not led evidence being Ex-parte and therefore in absence of any evidence the pleadings howsoever  strong may be cannot take place of proof.  Now, coming to the facts, i.e. as to whether the vehicle for which the policy was taken was in stationary condition or was in running/operational condition or whether it got thrusted into the earth or whether it overturned.  This is a fact which required evidence.  The counsel for OP has relied upon the policy where it is mentioned that overturning (IMT-47) is not covered as there is no insurance taken by the complainant w.r.t. loss against overturning.  The Commission is of the opinion that if it is overturning, then contention of the counsel for OP based on the policy document itself would have been appreciated well but if it is not overturning then the contention is not well found.  The contention of the complainant that vehicle was in stationary position is supported with the evidence and it is stated on oath that it was in stationary condition and when the heavy rain started riggers went into the earth thereby the vehicle along with Boom Pacer tilted to the left side and fell down.  The fact that there was rain on that day has not been disputed and in absence of any evidence of the OP either of its manager or of the surveyor that what exactly happened on that day, the argument of the OP cannot be appreciated.  Further, the report of the Surveyor has also not been filed/proved by the OP as to what the surveyor exactly observed.  Therefore, in absence of any evidence of the OP the contention of OP cannot be appreciated.  Accordingly, the Commission is of the opinion that there was deficiency in service on the part of OP in rejecting the claim of the complainant.      
13. The Commission therefore orders as follows:

•  OP would return only Rs.16,52,000/- to the complainant with interest @7% p.a from the date of filing the complaint i.e. 26.03.2021 till actual realization. 
• As far as claim w.r.t. loss of income is concerned it was not part of the policy contract.  Similarly the transportation was to be provided by the OP has also not been proved by the complainant.  Therefore these two reliefs cannot be granted. 
• The Commission also grants compensation of Rs.25,000/- along with litigation cost of Rs.10,000/-.    

This order be complied with within 30 days from the date of receipt of the order failing OP would pay the interest @ 9% p.a. on all the amounts.       

Copy of the order be supplied/sent to the parties free of cost as per rules.

File be consigned to Record Room.    

Announced on 09.06.2023.