K REGHUNATHAN Vs. NEW INDIA ASSURANCE CO LTD

JUDGEMENT

(1.) THE complainant/appellant purchased a 2003 Model TCB 3D Excavator Loader from India Tech Ltd. on 14 -11 -2003 and got it registered on 17 -11 -2003. The machine was got insured with the respondent -insurance company for a sum of Rs.16,38,750/ -, for a period of one year. On 02 -02 -2004, when the machine was engaged in removing the earth at Moonnammoodu, near Vattiyoorkavu, Trivandrum, a big heap of rubble with soil fell on the machine which got fully covered with rubble and soil. The machine having got completely damaged was rendered unfit for use. The insurance company having been informed and an FIR having been lodged with the police, an inspection by the Divisional Manager of the insurance company was carried out on 03 -02 -2004. After the inspection, the officer of the insurance company directed the complainant/appellant to dismantle the JCB, part by part. Accordingly, the JCB was dismantled and taken to the garage of the complainant with the aid of skilled labourers using JCB and trucks, at the cost of Rs.53,000/ -. The service engineer of India Tech Limited inspected the dismantled parts of the JCB on 19 -02 -2004 and gave estimate of Rs.19,54,556.53/ - for carrying out the repairs of the machine. A joint inspection was thereafter carried out by the Divisional Manager of the insurance company, surveyor and a representative of the dealer on 19 -02 -2004. After the aforesaid inspection, the surveyor asked the complainant to handover the engine fitted on the machine to the workshop of M/s. Nirmala Automobiles at Trivandrum and the machine to the workshop of the dealer India Tech Ltd. for detailed inspection. M/s. Nirmala Automobiles gave a quotation of Rs.10,400/ - towards charges of loading, transportation and dismantling the engine for the purpose of inspection. An issue then arose as to whether a repaired engine would perform well or not. The complainant requested the insurance company to allow him to purchase a new machine but the surveyor took another estimate from M/s. Nirmala Automobiles for cleaning, inspection and testing of the machine at Rs.3,000/ - and asked the complainant to release the engine assembly after getting it cleaned and tested from M/s. Nirmala Automobiles and forward the same alongwith other parts to India Tech Ltd.. Eventually, the dismantled parts of the machine were handed over to India Tech Ltd. on 11 -05 -2004 without engine. M/s. India Tech Ltd. vide its letter dated 20 -07 -2004 advised settling the claim on total loss basis. However, the insurance company estimated the total loss at Rs.8,18,204.16/ -, which was much below the estimate given by India Tech Ltd.. In fact, the estimate given by India Tech Ltd. for repair of the machine was much more than the price of the new machine. Since, the claim submitted by the appellant/complainant was not being allowed by the insurance company, a complaint was filed before the Kerala State Consumer Disputes Redressal Commission (for short, the State Commission), claiming a sum of Rs.16,38,750/ - along with interest on the said amount at the rate of 12% per annum. The complainant also sought a sum of Rs.5,95,225/ - which it claimed to have incurred towards various expenses and losses.

(2.) THE complaint was resisted by the insurance company on the ground that a highly qualified and experienced A class surveyor after detailed survey and technical consultation had assessed the cost of repair at Rs.8,18,204.46/ -, which was less than 50% of the insured value of the machine and, therefore, the claim could not be treated as total loss. Thus, according to the insurance company the machine could have been conveniently repaired at the aforesaid cost of Rs.8,18,204.46/ -. It was also stated in the reply that India Tech Ltd. was blindly supporting the claim of the appellant/complainant, though the machine was easily repairable. It was also pointed out that it was M/s. Nirmala Automobiles, which was the authorized dealer for the engine of the machine.

(3.) THE State Commission vide impugned order dated 26 -07 -2008 directed the insurance company to pay a sum of Rs.10,00,000/ - to the complainant within for months from the date of receipt of the order failing which the complainant was to get interest at the rate of 9% per annum from the date of the order. Being aggrieved from the order of the State Commission, the complainant is before us by way of this appeal. The only dispute between the parties is as to whether the machine which met with the accident on 02 -02 -2004 can be conveniently repaired at the cost of Rs.8,18,204.46/ - or not. The case of the insurance company is that it is very much possible to repair some of the parts of the machine which in the opinion of M/s. India Tech Ltd. need replacement. Primarily the dispute is regarding the following parts: