National Insurance Co. Ltd. vs S.KUMAR And ASSOCIATES

THIS appeal arises out of an order passed by the State Commission on a complaint filed by the respondent alleging deficiency in service on the part of respondent/complainant.

BRIEF facts of the case are that the complainant had taken an insurance cover for the loader-machine valid for 2.9.1997 to 2.9.1998 for Rs. 13.25 lakhs. The machine while working slipped and over-turned on 2.11.1997 causing extensive damages to the machine. The incident was reported to the appellants. A claim was preferred amounting to Rs. 5,99,082.36 based on certain estimates given by the Mechanical Department of M/s. L & T Ltd. - the manufacturer of the machine. The Surveyor was appointed, who gave the report to the appellant. The claim was repudiated as "No claim" by the respondent on the ground that it was a question of over-turning of the machine, which is not covered by the policy. It is in these circumstances that the complainant filed a complaint before the State Commission praying for direction to the appellant to pay the claimed amount of Rs. 5,99,028.36 along with interest @ 18%, Rs. 1 lakh for harassment, Rs. 2 lakhs for expenses in running here and there plus costs. On issuing the notice to the O.P., neither written version was filed nor did they appear, hence while proceeding ''ex parte'' against the appellant, the State Commission granted all the reliefs sought by the complainant. On an appeal being filed against this order, this Commission remanded the case back to the State Commission with the direction that "both the parties will approach the State Commission for a date. Cost of Rs. 5,000/- was also given to the complainant.

Again before the State Commission, while the complainant appeared before them to take a date, none appeared from the appellant''s side. Yet, the appellants were informed of the next date of hearing by the complainant through a registered A.D. A.D. was shown to the Commission, it was taken on record and State Commission decided to proceed ex parte yet again against the O.P./appellants. After examining the material on record and hearing the arguments, the State Commission gave the following reliefs : (1) The O.Ps. are ordered to pay sum of Rs. 5,99,082.36 ps. with interest @ 15% p.a. w.e.f. 2.11.1997 till full realisation. (2) The O.Ps. are also ordered to pay sum of Rs. 1 lakh as compensation to the complainant. (3) The O.Ps. are also ordered to pay Rs. 2 lakhs towards the expenses incurred by the complainants in pursuing their claim. (4) The O.P. shall also pay cost of Rs. 25,000/- to the complainant. (5) The O.Ps. to pay amount as ordered herein above within 60 days from the receipt of the order herein. (6) On failure by the O.Ps. to pay the amount within 60 days, the amount awarded at Nos. 2 and 3 above shall bear interest @ 15% p.a. till realisation.

AGAINST this order, the appellant filed a revision petition before the State Commission to recall its order dated 7.1.2001. Again none from the petitioner appeared. This revision petition was dismissed as not being maintainable. It is argued by the learned Counsel for the appellant, Mr. Joy Basu, that all efforts were made at the level of State Commission to engage a lawyer, if fact an Advocate did register the presence but on account of fact of the Commission''s changing its place of hearing from Nagpur to Mumbai, sometime was taken - the non-appearance was not wilful or deliberate. The State Commission erred in awarding Rs. 5,99,028.36 to the complainant whereas the Surveyor had assessed the cost of repair as Rs. 1,88,738/-. The State Commission having granted whatever amount it did, but were not justified in awarding a compensation of Rs. 1 lakh and Rs. 2 lakhs towards expenses and cost of Rs. 25,000/-. The order of the State Commission cannot be sustained, hence be set aside.

ON the other hand, it was argued by the learned Counsel for the respondent, Mr. U.B. Wavikar that the repeated conduct of the appellant be seen. They repudiate the claim on an imaginary ground, do not listen to its own Surveyor, do not appear repeatedly before the State Commission. The complainant had to incur expenditure in Nagpur to Mumbai to engage lawyers, he had to go several times from Nagpur to Mumbai on account of deficiency on the part of the appellant. This order of the State Commission is just and proper and need to be upheld. We have heard the arguments and seen the material on record. There is no dispute that the machine was insured at the time of incident. There is nothing in the terms of policy, as on record and filed by the appellant, which will show exclusion of incident of loss to the machine by over-turning. We see no merit in this contention of the appellant/O.P. There was no material even before the State Commission to take any other view than what they did. We see that besides the relief by way of cost of repairs as claimed, interest @ 15% has also been awarded. Besides this, we also see that Rs. 1 lakh has been awarded as compensation and Rs. 2 lakhs as expenses and cost of Rs. 25,000/-. We see no details of the expenses incurred by the complainant on record. There is not even a whisper on the subject on the affidavit by way of evidence before the State Commission as brought on record before us. In the absence of any details, we are unable to sustain grant of Rs. 2 lakhs given as expenses hence set aside especially in view of the fact that Rs. 25,000/- has been given as costs. We also see that Rs. 1 lakh has been awarded as compensation. In the affidavit filed by way of evidence before the State Commission, it is averred by the complainant that "I have also claimed for loss of any earning for the period when the machine was not in operation". Neither the details of period when the machine was out of operation; nor details of his earnings/loss sustained are not on record to substantiate the claim. In the absence of any details supported by affidavits by way of evidence, we are unable to sustain this relief as well. It is the case of the complainant that he got the machine repaired after spending over Rs. 2.52 lakhs. When did he get it repaired - how long he was without the machine is not on record. It is also to be noted that indemnity is for loss or damage to machine. No provision in the policy exists for making up the business loss. In view of this, we are unable to sustain the award of Rs. 1 lakh given as compensation, hence set aside. In view of the above discussions, reliefs given as per paras (2) and (3) of the order passed by the State Commission passed on 9.3.2001 are set aside. Only to the extent this appeal is allowed. Rest of the order is maintained. This appeal is disposed of in above terms with the directions that cost of Rs. 5,000/- shall be payable by the appellant to the complainant in the instant case. We also see that cost of Rs. 5,000/- awarded to the complainant vide order dated 13.9.2000 has also not been paid. Thus, in all, the appellant shall pay cost of Rs. 10,000/- to the complainant within four weeks of passing of this order. Appeal allowed.