Research › Search › Judgment

Orissa High Court · body

2008 DIGILAW 199 (ORI)

Arun Udyog v. New India Assurance Company Ltd.

2008-03-11

BASANTI DEVI, SUBASH MAHTAB

body2008
ORDER Complainant-M/s. Arun Udyog which is a Partnership Firm carrying on business of mining activities such as raising and transporting minerals from mines has filed this case under Sections 17(1)(a)(i) of the Consumer Protection Act, 1986, in short, the C.P.Act to direct the New India Assurance Company Limited through its Regional and Divisional Manager viz. opposite party Nos. 1 and 2 to settle the claim at Rupees 8,59,748.56 paise with 18% interest per annum from the date of receipt of the claim of the complainant till payment, in favour of the complain¬ant. Complainant, at the same time, has claimed from the opposite parties cost of litigation Rupees 20,000/-, compensation for mental agony rupees 5,000/-, cost of postal expenses Rupees 500/- to and fro journey expenses from Bhadrak to Bhubaneswar Rupees 5,000/- and business loss of Rupees 1,00,000/-. 2. The case of the complainant, in brief is that after purchasing Tata Hitachi Excavator to carry on its business purpose, complainant insured the said Excavator with opposite parties for the year 1998-99 vide policy No. 31550109943 from 10.12.1998 to 09.12.1999 (Annexure-1). Risk covered under policy is for damage of the excavator due to flood, typhoon, Tempest, Hurricane, storm, inundation cyclone etc. During super cyclone and flood on 29.10.1999 and 30.10.1999, the said excavator met with considerable damage being submerged in water inside the mines. Therefore, complainant intimated this to opposite parties and had requested to depute Surveyor to inspect the excavator and the mines. The Surveyor deputed by opposite party No. 2 inspected the machines of the excavator on 10.12.1999 and found the total Hydraulic system, Engine, pump, hydraulic pump, etc. were damaged which he intimated to opposite party No. 2 vide his letter dated 13.12.1999 (Annexure-3). Vide Annexures-3 and 4, complainant intimated him also that the total and final loss would be inti¬mated to him after the machine is operated and hydraulic system is dismantled. Complainant submitted claim form and provisional estimate as per the vouchers of Grand Motors through letter Annexure-4. Complainant submitted the service report, inspection report, quotation of spare parts of Trishul Tread Pvt. Limited vide letter Annexure-5 to opposite party No. 2. After completion of repair of the excavator, complainant sent bills for spare parts, repairing charges and report to opposite party No. 2 vide letter Annexure-5 dated 02.05.2000. Complainant submitted the service report, inspection report, quotation of spare parts of Trishul Tread Pvt. Limited vide letter Annexure-5 to opposite party No. 2. After completion of repair of the excavator, complainant sent bills for spare parts, repairing charges and report to opposite party No. 2 vide letter Annexure-5 dated 02.05.2000. Though complainant was going on enquiring from opposite party No. 2 since 10.06.2000 about settlement of insurance claim and even, made representation to his higher authority viz. opposite party No. 1 till 08.03.2002, he received no favour from them. Vide letter dated 08.03.2000 (Annexure-20) opposite party No. 2 had requested him to submit money receipts against payment of Bills Nos. 62, 63, 64 and 65 of 2000 which he sent also. But much thereafter vide letter dated 19.04.2000 (Annexure-24), opposite party No. 2 repudiated his claim on the ground that Bills submitted by him are not in order as per the report of the Investigator and damage to same of the major parts like Cylinder Arm and Cylinder Boom are not techni¬cally feasible. The complainant claims that he has been put to loss of Rupees 8,59,748.56 paise towards cost of spare parts and repairing charges as per the bills submitted by him. As opposite parties have repudiated his claim, complainant blames them for causing deficiency in service being the insurer. 3. As per their joint written version, the opposite parties challenge the maintainability of the consumer case mainly on the ground that the complainant being a Commercial Firm is not a consumer under Section 2 (1)(d) of the Consumer Protection Act, 1986, hereinafter be called as C.P.Act. Their specific case is that during alleged period of cyclone, said TATA Hitech Excavator has not been damaged in flood water. However, admitting insurance of said excavator and receipt of the claim from the complainant as is stated by the complainant, they admit to have initially deputed a surveyor Sri Sahoo and Sri S.K.Sarkar for final assessment of loss. They saw that initially complainant submitted an estimate of loss Rupees 73,000/- and later on submitted fur¬ther estimate of loss Rupees 11,18,320/- after dismantle of hydraulic system by Telco Service Engineer. The Surveyor-Sri Sahoo has stated in his report that machine was intact condition but dirty water had entered into the engine, fuel tank and hy¬draulic tank damaging the fuel filter assembly and hydraulic fil¬ter. The Surveyor-Sri Sahoo has stated in his report that machine was intact condition but dirty water had entered into the engine, fuel tank and hy¬draulic tank damaging the fuel filter assembly and hydraulic fil¬ter. Under such premises, there is no chance of damage of cylin¬der, Arm and booms as because NRV is provided not to allow water, foreign particles hydraulic oil in and out of it. As it is sub¬merged in the water, it could not have affected other parts, Sri S.K.Sarkar who was deputed for assessment of loss had inspected the spot on 21.12.1999, 18.03.2000 and on 28.03.2000 who had assessed the loss at Rupees 1,91,061.30 paise and salvage cost of parts at Rupees 10,000/-. But, in view of aforesaid report of Sri Sahoo subsequent report in respect to loss of Sri S.K.Sarkar cannot be accepted. Moreover, Amulya Kumar Tripathy, who was appointed to verify bill and cash memos supplied by the complain¬ant, has stated vide his report dated 29.03.2001. Bill Nos. 62/1999-2000 to 64/1999-2000 dated 16.02.2000 and bill No. 65/1999-2000 dated 02.03.2000 issued by M.S.Sahal Trading Corpo¬ration, Calcutta for Rupees 2,90,544.80 are fake and fictitious. This is how there is no basis of claim by the complainant. The complainant also cannot claim compensation having committed breach of contract insurance being a contract between them. In these end of the view, they claim to have rightly repudiated the claim vide letter dated 19.04.2002, for which the C.D.Case should be dismissed. 4. We have heard the learned counsel for both sides, perused their pleadings and Xerox copies of documents filed by the parties. 5. Now, therefore, first of all questions arises as to whether the complainant is a consumer and secondly, how far opposite parties have committed deficiency in service to the complainant in repudiating his claim on the ground of unfairness of the complainant in submitting fake and forged bills and on the ground that Cylinder Arm and Cylinder Boom are not technically feasi¬ble. 6. In respect to the first point, it may be stated that Consumer Protection Act, 1986 is a special enactment to protect the interest of the bona fide consumers in respect to hazardous goods and deficient services and against exploitation by unscru¬pulous traders and industrialist. This case has been filed by the complainant alleging deficient insurance service by the opposite parties being the representative of New India Assurance Company. This case has been filed by the complainant alleging deficient insurance service by the opposite parties being the representative of New India Assurance Company. In view of the admitted insurance policy with the complainant, opposite parties are obliged to provide service to the complain¬ant as per the policy conditions provided that the complainant comes under the category of a consumer under Section 2 (1)(d)(ii) of the C.P.Act. In view of this particular provision of the C.P.Act “a person who avails of such services for any commercial purpose” is not a consumer. “Commercial purpose” has been defined as per “Explanation” below Section 2 (1)(d)(i) and (ii) of the C.P.Act being inserted by the Consumer Protection (Amendment) Act, 2002 and given effect to with effect from 15.03.2003 that : “For the purpose of these clause, “Commercial Purpose” does not include use by a person of goods bought and used by him and services availed by him exclusively for the purpose of earning his livelihood by means of self employment.” 7. In the present case, no where the complainant has whispered a word that he had purchased and was using the TATA Hitachi Excavator and services availed by him from New India Insurance Co. Ltd. is exclusively for the purpose of earning his livelihood by means of self employment. On the other hand, in paragraph 1 (one) of the complaint petition, has admitted that complainant is a Partnership Firm which is carrying on business of mining activities such as raising and transporting of minerals from mines and it has purchased the excavator for business activ¬ity. In this end of the view, the complainant is not a consumer as per the C.P.Act. Therefore, the present case filed by the complainant is not maintainable. 8. In respect to aforesaid second point, we are to report that in paragraphs 8 to 11 of their written version, opposite parties admit that Sri Sahoo who was initially deputed as a Surveyor, has submitted his spot survey report stating therein that he found the machine looks intact outwardly but after thorough check-up, it was detected that dirty water entered into the engine, fuel tank and hydraulic tank damaging the fuel filter assembly hydraulic filter. Though the opposite parties have not accepted the loss as per the report submitted by the next survey¬or appointed by them, yet they have not produced his report in this case. Though the opposite parties have not accepted the loss as per the report submitted by the next survey¬or appointed by them, yet they have not produced his report in this case. According to them, Sri S.K.Sarkar was also deputed for final assessment of loss who had inspected the spot on 21.12.1999, 18.03.2000 and 28.03.2000 and has submitted his report on 23.03.2000 assessing the loss at Rupees 1.91,061.00 paise and salvage cost of parts at Rupees 10,000/-. But opposite parties have not produced this report and have not denied when complainant says that initially surveyor had inspected the spot on 10.12.1999. This means Sri Sahoo had inspected the machine and the spot initially on 10.12.1999. In the averments under para¬graph 10 of the written version, opposite parties say in view of the aforesaid report of surveyor Sri Sahoo that the plea of damage to cylinder, Arm and boom is held to be not entertainable for the reason that NRV is provided not to allow water, foreign particles hydraulic oil in and out of it and that excavator being submerged in the water, it could not have affected other parts. This is one of the grounds of repudiation of claim of the complainant by the opposite parties as per Annexure-24. But opposite parties have not filed the reports of three surveyors deputed one after other who had visited the excavator and the spot, as a result of which the basis of such observation of the opposite parties in respect to Cylinder Arm and Cylinder Boom had no basis at all. Opposite parties have also not produced expert’s opinion to the effect that even if the excavator remains sub¬merged in water, these parts are least to be damaged due to availability NRV. Therefore, our contentious finding would be that opposite parties have taken a wrong stand in view of said report of Sri Sahoo that damage to Cylinder Arm and Cylinder Boom are not technically feasible. The opposite parties have also repudiated the claim of the complainant as per Annexure-24 for the reason that the bills submitted by the complainant are not in order as per the report of the investigator. In paragraph 11 of their written version, opposite parties have stated that they had deputed Sri Amulya Kumar Tripathy to verify the bills and cash memos given by the complainant. In paragraph 11 of their written version, opposite parties have stated that they had deputed Sri Amulya Kumar Tripathy to verify the bills and cash memos given by the complainant. Sri A. K. Tripathy has submitted his report on 29.09.2001 stating therein that the bill Nos. 62/1999-2000, 63/1999-2000, 64/1999-2000 of dated 16.02.2000 and Bill No. 65/1999-2000 dated 02.03.2000 for Rupees 2, 90,544.80 issued by M.S.Sahal Trading Corporation, Calcutta in favour of the complainant are fake, fictitious and forged one and are manufactured. Opposite parties have produced said report of Sri A.K.Tripathy. The reasons assigned after necessary enquiry by Sri A.K.Tripathy undoubtedly establish that the aforesaid four bills are fake and fabricated ones. Apart from this, Sri A.K.Tripathy after enquiry has reported that Challan No. 6208 dated 18.12.1999, Bill No. 6805 dated 10.03.2000 for Rupees 63,448.00 issued by Grand Motors, Cuttack, Cash Memo No. 3922 dated 14.02.2000 for Rupees 5,933/- issued by Grand Engineering, Cut¬tack, Invoice No. 995878 dated 04.01.2000 for Rupees 3,78,917.70 paise issued by Trishul Tread Pvt. Ltd., Bhubaneswar and Invoice No. 2-00085 dated 24.01.2000 for Rupees 1,02.905/- issued by Telco Construction Equipment Co. Ltd., Jamshedpur appear to be genuine. The total amount under these challans, bills, cash memos and invoice towards necessary repairs of the excavator and re¬placement of certain parts is Rupees 5,51,203.70. The opposite party No. 1 has filed this report of Sri A.K.Tripathy and relies upon it. 9. On total reading of the case of both parties and documents and reports of the surveyor deputed earlier and the surveyor - Sri S.K.Roy whose inspection have been referred in paragraphs 8 and 9 of the written version, we have no doubt at all that during devastating super cyclone and flood on 29.10.1999 and 30.10.1999, the Tata Hitachi Excavator of the complainant was damaged to some extent being submerged in the water and complain¬ant, at least has incurred expenditure of Rupees 5,51,203.70 paise towards repair of the excavator. The usual practice of certain people is to make embellishment of fact, manufacture document and to claim more than the actual loss and expenditure incurred on happening of such type of event. It is the harden duty of responsible officials to find out the truth and to pro¬vide relief and compensation which the sufferer actually de¬serves. The usual practice of certain people is to make embellishment of fact, manufacture document and to claim more than the actual loss and expenditure incurred on happening of such type of event. It is the harden duty of responsible officials to find out the truth and to pro¬vide relief and compensation which the sufferer actually de¬serves. Therefore, in view of the aforesaid report of Sri A.K.Tripathy, the opposite parties would have settled the claim in the worst case at Rupees 5,51,203.70 paise. But, it is unfor¬tunate that opposite parties have repudiated the claim in total of the complainant on surmise that Cylinder Arm and Cylinder Boom are not technically feasible and some of the bills and vouchers are fake and fabricated. 10. Further, no doubt, we feel that the complainant is entitled to genuine insurance claim from the opposite parties. But as the complainant is not a consumer, as per the discussion made above, we are constrained to make any such direction to the opposite parties to consider the claim of the complainant again and to settle to which he is entitled for. It is seen from the letter dated 11.06.2002 (Annexure-26) of the Deputy Secretary of the office of the Insurance Ombudsman that, the complaint of the complainant was not entertained there as it did not come under the scope of Redressal of Public Grievances Rules, 1998. We may state here that insurance policy is a contract violation of which can be challenged by the aggrieved party in proper Court of law. With these observations, we dismiss this case being not maintain¬able in Consumer Fora. 11. In the result, this case is dismissed on contest with¬out cost. Case dismissed.