This appeal has been filed by the appellant National Insurance Company Ltd. against the order dated 9.8.2016 of the State Consumer Disputes Redressal Commission, Himachal Pradesh, (in short ‘the State Commission’) passed in Complaint No. 06/2016.2. Brief facts of the case are that complainant is Deputy Chief Engineer of Himachal Pradesh State Electricity Board (HPSEB). Transformer of HPSEB went out of order, therefore was sent for repair at their workshop. Transportation of the transformer was entrusted to OP2 and had to be transported on tractor trailer driven by driver of respondent No. 2. On 23.9.2013 the said transformer was insured for transit risks by road with the appellant to the tune of Rs. 75 lakh and charges for said insurance were paid. On 24.9.2013 the tractor trailer tilted & due to said tilting of the tractor, the transformer got massive damage. Complainant informed about the same to the appellant and supplied all the necessary documents, but the appellant kept refusing the claim for one or other reason. Complainant also approached respondent No. 2 as due to massive damage transformer could not be repaired but respondent No. 2 denied his responsibility and requested to take the matter with the appellant. Complainant approached the appellant several times but finally on 11.2.2016 appellant refused the claim as it was not maintainable. The complainant filed a consumer complaint and prayed to direct OPs to pay insurance claim of Rs. 75 lakh with interest @ of 9% p.a., Rs. 1 lakh for compensation and Rs. 50,000 towards cost. The complaint was resisted by the appellant by filing the written statement. The appellant in its reply stated that intimation of alleged damage to the transformer was not given immediately and also the transformer was not properly secured in the body of the trailer as the chain used to tie it remained loose. State Commission partly allowed the complaint and directed the appellant to pay Rs. 12,04,250 with interest at the rate of 9% p.a., Rs. 50,000 for compensation and Rs. 10,000 towards cost.3. Hence, appeal has been filed by OP1/appellant herein.4. Heard the learned Counsel for the parties and perused the record. Learned Counsel for the appellant stated that the State Commission has failed to examine the preliminary survey report dated 31.1.2014 and final survey report dated 18.2.2015 placed on record. It is submitted that both survey reports, in great detail, have explained the cause of accident as improper chaining of the transformer which resulted in unbalancing of the trolley.5. Learned Counsel for the appellant argued that the impugned order failed to acknowledge the principle of adverse inference against the respondent No. 1 for not producing the details regarding the dispatch of letter of intimation. It is submitted that respondent No. 1 was bound to produce the proof of service to substantiate that the said letter was dispatched immediately on 24.9.2013 and not on a later date. It is further submitted that the late intimation of the accident is against the terms of the Transit Policy and it is a sufficient ground for repudiating the claim.6. Learned Counsel further stated that the impugned order dated 9.8.2016 passed by the State Commission is arbitrary and fails to consider the Police Report, G.D. Entry No. 43 (A) lodged at Police Station Dehra by ASI Shashi Bhushan. The driver of the trolley as well as the truck driver following the trolley, both appointed by the respondent No. 2, had given their statements before the police and in their statements, both the drivers have stated that the accident was caused due to the slippage of the chain used in tying the transformer with the trolley. Therefore, it can be concluded that the major and the only reason for the accident was due to the improper packing of the transformer. Further, the surveyor report also states that the accident had taken place because the chain used in tying the trolley with the transformer got loose. This resulted in the tilting of the transformer leading to the overturning of the trolley. These materials, although placed on record by the appellant, the same has been ignored by the State Commission while passing the impugned order dated 9.8.2016.7. The preliminary surveyor as well as the final surveyor have given clear report that the trolley tilted on the ground due to slippage of transformer on the vehicle as the transformer was not tightly tied by the chain as per the required norms. The final surveyor has mentioned in his observation that “As per version recorded in the FIR by the driver Sh. Atma Ram of truck trailor and Sh. Ajay Kumar of stand by truck of HPSEB that “due to slipping of chains of transformer on one side resulted in to the overturning of transformer along with trailor”.8. Thus, there is no dispute that the damage has happened due to overturning of the trolly on which the transformer was loaded and the overturning happened because of improperly securing the transformer with the trolley by the chain. Thus, as per the conditions of the policy, the claim is not payable. Learned Counsel for the appellant further argued that in the complaint, no relief has been sought against other respondents whereas the main culprit is respondent No. 2, who was responsible to transport the transformer. Liability clearly lies on respondent No. 2 as well. It was further argued that the State Commission has not considered the surveyor’s report. The surveyor has clearly stated that the loss is not payable because there is violation of a clause of the policy wherein the insured was required to take proper packing of the transformer which is clearly not the case in the present matter.9. On the other hand, learned Counsel for the respondent/complainant stated that no legal issue is involved in this appeal and the fact that the damage did not happen due to any lapse on the part of the complainant has been established by the State Commission. Learned Counsel further mentioned that the purpose of taking insurance is that if some untoward incident happens the insured is secured against the loss. It was further pointed out by the learned Counsel for the respondent No. 1 that before dispatch of the transformer, the same was inspected by the surveyor of the Insurance Company and it was found that the transformer was properly tied with the trailer. Had there been any shortcoming in securing of transformer with the truck through the chain, the same should have been reported by the surveyor who made pre-dispatch inspection. Thus, the Insurance Company has taken the reason of loose securing of the transformer only as a pretext for rejecting the Insurance Company.10. Learned Counsel for the respondent No. 2/Contractor also stated that the transformer was duly tied with the trailer as per the norms and the surveyor appointed by the Insurance Company had conducted pre-inspection and no objection was raised at that time. Therefore, respondent No. 2 cannot be made guilty of any lapse in loading of the transformer on the trailer.11. I have carefully considered the arguments advanced by the learned Counsel for the parties and examined the material on record.12. The claim of the complainant has been repudiated by the Insurance Company mainly on the ground that the transformer was not properly tied with chain to the trailer and it resulted in overturning of the trailer. As per General Exclusion Clause 4.3, the claim is thus not payable.Clause 4.3 reads as under:“4.3. Loss damage or expense caused by insufficiency or unsuitability of packing or preparation of the subject-matter insured (for the purpose of this Clause 4.3 “packing” shall be deemed to include stowage in a container or lift-van but only when such stowage is carried out prior to attachment of this insurance or by the Assured or their servants).13. It is the case of the appellant that as per the Clause 4.3, claim is not payable. Both the surveyor reports have been cited by the learned Counsel for the appellant to prove that the transformer was not properly tied with the trailer, therefore, the accident occurred due to shifting of transformer from one side to another. It is true that the claim is not payable if the packing is not properly done. Both the surveyors have tried to prove that the packing was not properly done as per the norms. The Insurance Company got the pre-inspection done by its surveyor and no objection was raised by the surveyor or by the Insurance Company. If the insured dispatched the goods in properly packed manner and if goods were damaged to some extent, then the Insurance Company cannot escape its liability. Thus, the liability on the part of the Insurance Company is clearly established.14. Now coming to the question of quantum of compensation, it is seen that the surveyor has assessed the loss to the tune of Rs. 9,71,772, whereas the State Commission has awarded Rs. 12,04,250. The major difference in these two figures is on account of fact that the surveyor has taken the depreciation as 35% [7/20 x 100] whereas the State Commission has taken the depreciation to be 30% [6/20 x 100]. The surveyor as well as the State Commission have agreed that the transformer was purchased in the year 2007 and the accident happened on 24.9.2013. T
Please Login To View The Full Judgment!
hus, clearly the transformer was six years old and the depreciation of six years could be applied on the basis of straight line method. Thus, from this aspect the calculation of the surveyor seems to be slightly off the mark. The calculation done by the State Commission seems to be correct and therefore, the compensation arrived at by the State Commission for Rs. 12,04,250 seems to be justified.15. It is further seen that the State Commission has awarded Rs. 50,000 as compensation. When the interest has been awarded on the insurance amount, there is no justification for granting separate compensation to the complainant as the interest is also in the form of compensation. Therefore, the order relating to award of Rs. 50,000 as compensation is liable to be set aside.16. Based on the above discussion, I do not find any merit in the appeal. FA No. 1432 of 2016 is dismissed except that the order of the State Commission in respect of the award of Rs. 50,000 as compensation to the complainant is set aside.Appeal dismissed.