AQAB RAJ GUPTA AND ORS Vs. ICICI LOMBARD AND ORS

JUDGEMENT

(1.) THROUGH the medium of this complaint, the complainant has alleged deficiency on the part of OP for not getting his insured Tata Hitachi Excavator Model 2x120 -H, Open Body 2000CC of 2007 Model repaired properly by restoring its full efficiency which he had purchased from Telco Construction Equipment Co. Dharwad Vide invoice No. 212506040 dated 31.05.2007 for a price of Rs.33,44,001.00/ -. The above said Tata Hitachi Excavator was insured for an insurable interest in the amount of Rs.33,44,001.00/ - and the Insurance Policy was obtained from OP by paying a premium of Rs.57,540/ - (vide annexure A ). The Insurance Policy had to remain in currency from 09.07.2007 to 08.07.2008. During the insurance cover, unfortunately, on 02.09.2007, the insured Tata Hitachi Excavator met with an accident near a place known as Panchari falling within the area of District Udhampur. The incident was reported in Police Station Panchari for the commission of an offence falling under section 279 IPC. The complainant raised the claim with the OP; as consequence thereof Mr. Ravi Dhar surveyor of M/S Alak Consultants was appointed to make the survey and assess the loss. The surveyor inspected the damaged Excavator and consecutively sent missives dated 29.10.2007, 15.11.2007 and 21.11.2007 (annexures CA4, CA5 and CA6 respectively). In those three communications, he had impressed upon the complainant to get the repairs of the damaged cabin locally done. The complainant had consistently impressed upon him that cabin in question could not be locally repaired because it would not regain its original shape and strength which had been lost due to bending of reinforcement of the pillar. The complainant had shown his willingness to undertake the other repair works inclusive of replacement of the damaged parts.. He had insisted that driver s cabin had to be replaced with new one keeping in view the total damage caused to it. This plea he had taken before the said surveyor after getting the expert opinion from the engineer of the manufacturing company namely Telco Construction Equipment Co. Ltd. vide annexure 6A . The opinion expressed is that, the cabin fitted in the machine is a special cabin and it is called as CRES (Centre Pillar reinforced structure) cabin. The cabin is designed to protect the operator from injury in case of accident. The cabin is badly damaged and in case it is repaired locally it will not regain its originality . The OP finally repudiated the claim of the complainant vide repudiation letter dated 24.01.2008. The complainant has claimed the following reliefs: -

(2.) THE claim has been resisted by the OP and in the written version, it is pleaded that Mr. Ravi Dhar who was appointed as a surveyor was an independent expert appointed under the statutory authority i.e under The Insurance Act and his opinion is of independent nature as an expert. He had consistently impressed upon the complainant to provide him the copies of the repair bills but they were refused. Because of non -co -operation, the loss could not be assessed and the OP was compelled to repudiate the loss because he had to follow the expert opinion of the surveyor. The opinion expressed by the engineer of the manufactures of the Excavator as annexed with the complaint (annexure CA6A) nowhere states that the Excavator in question could not be repaired. The loss assessor and surveyor Mr. Ravi Dhar in his assessment report had assessed repair charges in the amount of Rs.1 lac and finally, he assessed the total loss in the sum of Rs.2,56,854/ -. There is no deficiency of service because the OP is always prepared to make the payment of assessed loss.

(3.) THE complainant himself has deposed on affidavit and has produced Urinditt Gupta, Ravi Kumar and Satish Kumar as his witnesses. While -as, OP has produced the evidence of Ravi Dhar surveyor and loss assessor.