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Judgment
THIS revision petition is directed against order dated 28.11.2011 passed by the Kerala State Consumer Disputes Redressal Commission, Thiruvananthapuram in Appeal No. 316/2011 whereby the State Commission dismissed the appeal filed by the petitioner/OP Insurance Co. against the order dated 26.10.2010 passed by the District Consumer Disputes Redressal Forum, Ernakulam in consumer complaint No. 228/2007. By its order, the District Forum had allowed the complaint filed by complainant, R -1 herein, and directed the petitioner/OP Insurance Co. to pay a sum of Rs. 1,61,334.34 being the insurance claim together with 9% p.a. interest from the date of complaint till realisation. Respondent No. 1 which is the original complainant in this case, filed a consumer complaint against the petitioner Insurance Company alleging deficiency in service on its part in repudiating the insurance claim preferred by the complainant under the Standard Fire and Special Peril Policy taken by it. As per the allegation, the complainant had purchased Allenger''s C -Arm Mobile Image Intensifier from OP -2/R -2. The machine was manufactured by OP -3/R -3 and OP -4/R -4 was the authorized service centre of R -3.
THE petitioner Insurance Company had insured the machine under aforesaid insurance policy for the period 6.12.2005 to 5.12.2006. On 10.5.2006, this machine got damaged due to heavy lightening/thunder and resultant fire. Since the machine was not in a repairable condition, the complainant submitted its claim to the petitioner Company but it came to be repudiated by them. Later on, the complainant replaced the image intensifier tube by spending Rs. 2,42,000 and filed a consumer complaint in question for a sum of Rs. 2,42,000 being the value of the image intensifier tube along with compensation of Rs. 40,000 for the financial loss suffered by it. While admitting the issuance of the insurance policy, the petitioner Insurance Company opposed the claim on the ground that the electrical surge caused due to lightening is a specifically excluded item. It was stated that after receiving the claim application from the complainant, the petitioner co. had appointed a Surveyor to assess the loss. The Surveyor assessed the depreciated value of the machine at Rs. 1,61,333.34 and an amount of Rs. 10,000 was recommended to be excluded under the excess clause in terms of the policy. However, the petitioner Insurance Company rejected the claim as being outside the purview of the insurance policy under General Exclusion Clause No. 7. Based on the evidence adduced before it, the District Forum accepted the complaint vide its order mentioned above which came to be challenged before the State Commission which also upheld the order with a slight reduction in the award amount by Rs. 10,000 due to excess clause and dismissed the appeal of the petitioner Insurance Company vide its impugned order. We have heard learned Counsel Mr. Sushil Kumar Gupta, Advocate for the petitioner and Mr. G.C.K. Parambil, Advocate for the complainant/R -1. None has appeared for respondent Nos. 2 to 4. Learned Counsel for the petitioner submitted that the order passed by the State Commission is contrary to facts and circumstances of the case and is based purely on certain assumptions, surmises and conjectures and hence liable to be set aside. His first contention was that the complainant/respondent cannot be covered under the definition of a consumer because the machine in question was installed in the hospital for commercial purposes. He further submitted that during the survey conducted by the Surveyor appointed by the petitioner Company, no evidence could be found to conclude that the loss had been caused due to direct strike of lightening as alleged by the complainant. On the other hand, it was noted that as per Clause 7 of the General Exclusions, the liability of the petitioner Insurance Company was excluded in respect of loss, destruction or damage to any electrical machine, apparatus, fixtures or fittings arising from or occasioned by short circuiting, arching or leakage of electricity from whatever cause (lightening included) under the policy. In view of this, the petitioner Company had rightly treated the claim of the respondent as no claim and repudiated it. He further submitted that the loss because of excess current would also be covered by the General Exclusion Clause under the policy and as such the Fora below gravely erred in accepting the claim of the respondent.
ON the other hand, learned Counsel for the complainant/respondent contended that the machine item in question which was damaged on the day of lightening thunderstorm followed by fire is an electronic item and not an electrical item. He further pointed out that so far as the submission of the petitioner to the effect that the damage was caused by excess flow of current is concerned, the surveyor report on which this conclusion and submission is based itself is not categorical about it and the Surveyor has only opined that this could be the "most probable cause for the damage/loss" in his report. In view of this, the concurrent finding of the Fora below which was arrived at after considering all the related aspects is right and does not call for any interference. Revision petition, therefore, is liable to be dismissed with cost.
WE have carefully considered the rival contentions of the parties and perused the record. The broad facts of the case not being under dispute, the whole controversy revolves around the question as to whether the machine item in question was an electrical item or an electronic item and also as to whether the damage to the machine was really caused due to surge in the voltage/electric current. Perusal of the impugned order shows that the State Commission has considered the submissions of the petitioner co. in this regard in detail in para 8 of the order which reads thus: 8. The definite case of the appellant/first opposite party is that the C -Arm machine is an electrical machine. But, there is nothing on record to substantiate the case of the appellant/first opposite party that the C -Arm machine is an electrical machine. On the other hand, the available materials on record and the circumstances on the case would show that the C -Arm machine is an electronic machine. DW2, the Insurance Surveyor who submitted Exh. B4 survey report in his oral testimony has admitted that he sought the assistance of electronic experts to assess the damage. DW2 has categorically deposed that he availed the service of Electronic Engineer Mr. Sujith Kumar and on the basis of that expert opinion he assessed the damage to the C -Arm machine. The aforesaid deposition of DW2 would give a clear indication that the subject machine namely C -Arm machine is an electronic machine. There is nothing on record to substantiate the case of the appellant/first opposite party that the C -Arm machine is an electrical machine. It is reported by the expert Commissioner in his B4 survey report that C -Arm machine is being used by Orthopaedic Surgeons to handle implantations surgeries. It would also make it clear that the C -Arm machine is having the main components such as (1) Control Console, (2) The C -Arm, (3) Image Intensifies (4) X -ray tube, (5) PHS/Table Couch, (6) The Display (Monitor). The description of the aforesaid components would make it clear that C -Arm machine is an electronic machine. Thus, the contention of the appellant/first opposite party that C -Arm machine is an electrical machine cannot be upheld. If that be so, Clause 7 of the General Exclusions of B1 Standard Fire and Special Perils Policy has no application in the present case. It can very safely be concluded that the damage caused to C -Arm machine is covered by B1 Standard Fire and Special Perils Policy. So, the appellant/first opposite party cannot be justified in repudiating the insurance claim vide B5 repudiation letter dated 18.8.2006. The aforesaid repudiation of the claim would amount to deficiency in service.
We may also note that the surveyor report on which the petitioner Company has placed great reliance itself indicates that the Surveyor was not categorical in his finding regarding damage to the machine due to surge in the voltage and is recorded it as "the most probable cause" for the damage. In view of these facts, we do not have any manner of doubt regarding the coverage of the machine item in question under the policy and non -applicability of the Exclusion Clause to the present case. As regards the complainant/respondent being covered by the definition of consumer, as per the settled law, availment of services of an Insurance Company through an insurance policy taken for indemnification of loss due to certain events cannot be regarded as a commercial purpose and as such we reject the plea taken by the Counsel for the petitioner in this regard. In view of the aforesaid discussion, we do not find any infirmity with the concurrent finding of the Fora below based on facts. The powers of this Commission while exercising its revisional jurisdiction under Section 21(b) of the Consumer Protection Act, 1986 being limited, we do not find any merit in the present revision petition which would justify our interference. The revision petition, therefore, is dismissed with no order as to costs.