DR. SADHNA SHANKER, MEMBER

1.       This appeal has been filed under section 19 of The Consumer Protection Act, 1986 (hereinafter referred to as the ‘Act’) in challenge to the Order dated 14.01.2016 of the State Commission in complaint no. 15 of 2013 whereby the complaint was partly allowed.

2.       We have heard learned proxy counsel for the appellant (hereinafter referred to as the ‘insurance company’) and the learned counsel for the respondent (hereinafter referred to as the ‘complainant’) and perused the record including the State Commission’s impugned Order dated 14.01.2016 and the memorandum of appeal.

3.       The appeal has been filed with delay of 31 days. 

Leaned proxy counsel for the insurance company draws attention to the reasons contained in the application for condonation of delay and requests for the delay to be condoned.

Learned counsel for the respondents opposes condonation.

However, in the interest of justice, inter alia having regard to the reasons contained in the application for condonation of delay, the delay in filing the appeal is condoned.

4.       The brief facts of the case are that on 31.02.2000, the complainant had purchased one L & T. Hydraulic Excavator and insured the same with the insurance company. The premium was paid and the policy was valid for the period from 31.03.2008 to 30.03.2009. During the subsistence of the policy, on 30.08.2008, the said machine met with an accident at Langting, Assam and badly damaged as the machine fell down deep into the trench valley. The insurance company was informed. The police was also informed about the accident intimating therein that one V. K. Singh of Singhco lifted the machine from the valley and shifted to Hatikhali site without any prior intimation to or prior knowledge of the complainant. A police case was registered and the vehicle was seized. The insurance company appointed a surveyor for inspection of the damaged machine. On 10.03.2009, the complainant submitted the claim with an estimated loss of Rs. 34,58,862/-. The authorized dealer of the manufacturer, namely, L & T Ltd., inspected the machine on 28.06.2009 and estimated the repairing cost at a sum of Rs. 33,58,802/-. On 23.12.2010 the surveyor assessed the loss for an amount of Rs. 13,25,000/- and referred the matter to the insurance company. It is alleged that after repeated requests, the insurance company has not settled the matter.

5.       Being aggrieved, the complainant has filed a complaint before the State Commission seeking direction to the insurance company to pay the insurance claim of Rs. 34,58,802/- along with interest @12% per annum from the date of claim till payment and for compensation of Rs. 10,00,000/- and litigation cost of Rs. 60,000/-.

6.       The insurance company contested the complaint by filing reply raising the preliminary objections, firstly, that the complaint is barred by limitation and secondly, that the complainant is not a ‘consumer’ within the ambit of Section 2(1)(d) of the Act, as the machine has been purchased and used for commercial purpose. It is also stated that the machine was engaged in construction of railway track job and the machine was damaged due to overturning. It is further stated that the date of loss was prior to May 2008 and not 30.08.2008, which was a suppression of material fact. It was further stated that the machine in question was made available to the surveyor for inspection after three months which was not in tune with policy condition. The insurance company further stated that there is no deficiency in service and the complaint was liable to be dismissed.

7.       The State Commission, vide its Order of 14.01.2016, had allowed the complaint in part and directed the insurance company to pay jointly and/or severally a sum of Rs. 13,25,000/- to the complainant.

8.       Learned counsel for the insurance company has argued that the machine in question met with an accident on 30.08.2008 and the complaint was filed on 16.01.2013, hence, the complaint is barred by limitation. In support of this contention, he placed reliance on the decisions in the cases of State Bank of India vs. B. S. Agricultural Industries (civil appeal no. 2067 of 2002); Ganpat Rama Madhavi vs. The New India Assurance Co. Ltd. (2011) 4 CPJ 210 and Kandimalla Raghavaiah & co. vs. National Insurance Company Ltd. and another III (2009) CPJ 75 (SC). He further argued that the accident had occurred due to overturning of the vehicle while transiting and as per NB-3 read with IMT-47 of the Indian Motor Tariff the insurer is not liable to pay compensation when the accident was caused due to the overturning of the vehicle and the insurance company has rightly repudiated the claim.

9.       Learned counsel for the complainant has argued that the authorized dealer of the manufacturer, L & T Ltd., namely, Saurav Auto Private Limited after inspection of the machine has assessed an estimate regarding cost of repair of the machine on 28.06.2009 for an amount of Rs. 33,58,802/- and the same had been sent to the insurance company for settlement but the insurance company kept total silent in the matter regarding settlement of the claim. He further argued that the complainant sent another letter dated 24.07.2010 to the insurance company for settlement and the insurance company vide letter dated 28.07.2010 replied that the matter was under active consideration and need more time for settlement. He further argued that the complainant had sent letters dated 25.09.2010 and 08.12.2010 but there was no effect. Thereafter, the surveyor sent another letter dated 23.12.2010 assessing the loss for an amount of Rs. 13,25,000/-. Thereafter also, the complainant wrote another letter dated 02.02.2011 and 11.02.2011 to the insurance company to settle the matter but the insurance company had lingered the matter for long and finally repudiated the claim on 08.02.2013. He further argued that the complainant is consistently pursuing the matter and hence, it cannot be said that the matter is barred by limitation.  

10.     It is stated that the accident had occurred on 30. 08.2008. There is no dispute that the complainant sent letters dated 24.07.2010, dated 25.09.2010 and 08.12.2010. And in reply, the insurance company vide letter dated 28.07.2010 informed the complainant that the matter is under our active consideration and sought few more time. There is no dispute that the insurance company repudiated the claim on 08.02.2013. Considering all these facts and circumstances, we are of the view that till the claim is repudiated, there is a continuing cause of action for the complainant and hence, the complaint filed in the year 2013 was well within time.

11.     The next question is as to whether the repudiation made by the insurance company was justified.

12.     The insurance company has issued two letters dated 06.02.2013 and dated 08.02.2013. The letter dated 06.02.2013 gives detailed reasons for repudiating the claim, while the letter dated 08.02.2013 summarizes the reasons as follows:

      “Dear Sirs,

Re : Your claim No. 150403/31/08/63/90000115 Srl. No. : 1 Policy No. 150403/31/07/6300005454

    Please note that your file stands closed, on account of Sr. No. 1 and 3 below:

1. Inspite of letters / reminders sent to you, you have not complied with the required papers/documents
2. ----
3. We are closing your claim-file, on account of the following reason :-

Peril/Cause of Loss not covered in the Policy.”

      The main argument of the learned counsel for the insurance company, apart from limitation, was on the exclusion as per endorsement IMT-47 that the loss of overturning was not covered as a peril.

      It is seen that the surveyor vide his report dated 15.05.2010 has reported on the occurrence as follows:

“The machine [Excavator Hydraulic] was engaged in excavation of land in between Diakho and Mupa Station in NC Hills; Lumding when met this loss on 30.08.2008 around 0730 hrs. It has been alleged [by Radhakant Jaiswal; relative of the Insured present at the site of loss] that the above machine was engaged to Railway Track road construction job under the care of one Singco Indi Pvt. Ltd.; Guwahati mainly. One Bijoy Kumar Singh was in care of the machine there. Railway track 50.2 km. construction from Lumding station which this machine was engaged in to the job. As usual like other schedule working days was engaged also in the morning shift on 30.08.2008. During excavation suddenly it slipped its chain sprocket drive grip off on the wet loose hilly soil on the hill rack and toppled/felled down to its left from height to next flat in small valley. Thus, it had sustained/caused considerable damages.”

      From a reading of the report, it is clear that the machine has slid on loose wet muddy terrain and fallen down into the valley. There is no overturning of the vehicle as alleged in the arguments. Once there is no overturning of the vehicle, the exclusion does not apply.

      Reliance has been placed on the decision of the Hon’ble Supreme Court in the case of Sharda Associates vs. United India Insurance Co. Ltd., civil appeal no. 4910 of 2022 decided on 25.07.2022.

      As regards the other reasons of repudiation it is seen that no proof of any documents being sought for from the insured have been filed by the insurance company.

13.     In view of the above discussion, we do not find any reason to interfere with the impugned order dated 14.01.2016 of the State Commission and the same is upheld.

14.     The appeal, being without, merit is dismissed. All pending I.A.s shall stand disposed of accordingly.