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NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
J.M. Malik, Presiding Member and Vinay Kumar, Member
DLF INDUSTRIES LTD. (NOW DLF UNIVERSAL LTD.) - Appellant
Versus
NEW INDIA ASSURANCE CO. LTD. AND ORS. - Respondents
Original Petition No. 134 of 2000
Decided on : 11-09-2012
Mr. Pallav Shishodia, Sr. Adv. with Mr. Amit Agarwal and Ms. Nimita Kaul, Advocates, for the Appellant; Mr. P.K. Seth, Advocate, for the Respondent
The main legal point established in the judgment is the importance of concrete evidence and consistency in claims, especially in cases involving liability for damages and insurance coverage.
Headnote:
Damages - Liability for Tower Crane Collapse - Insurance Act 1938, Section 41 - The judgment discusses the liability for damages in respect of a tower crane collapse and the role of the insurance company, manufacturer, and supplier. The court analyzes the insurance policy clauses, manufacturing defects, and the actions of the parties involved. The court concludes that the complainant's claim against the insurance company is tenuous and dismisses the complaint.
Fact of the Case:
The complainant's tower crane collapsed, resulting in damages and casualties. The insurance company repudiated the claim, citing manufacturing defects as the cause of the collapse. The complainant sought compensation from the insurance company, manufacturer, and supplier.
Finding of the Court:
The court found that the complainant's claim against the insurance company was tenuous and dismissed the complaint. The court also noted the complainant's contradictory stance regarding the manufacturer's liability and the actions taken by the complainant, which raised doubts about the validity of the claim.
Issues: The main issue was the liability for the damages caused by the tower crane collapse, involving the insurance company, manufacturer, and supplier. The court also considered the validity of the complainant's claim and the contradictory stance taken by the complainant.
Ratio Decidendi: The court's decision was influenced by the analysis of the insurance policy clauses, manufacturing defects, and the actions of the parties involved. The court emphasized the complainant's contradictory stance and the lack of concrete evidence to support the claim against the insurance company.
Final Decision: The court dismissed the complainant's claim against the insurance company, and no costs were awarded.
ORDER
J.M. Malik, Presiding Member - The whole controversy centres around the question, "Who is liable for the damages, in respect of complainant's tower crane, which collapsed and stood totally destructed beyond repairs ". The burning point of discussion is "Whether the Insurance Company, the main and only contestant or the manufacturer and supplier who did not contest the case and were given the clean chit trotted out by the complainant at the eleventh hour, i.e. at the time of final arguments is liable for the above said damages .
2. The genesis and sequence of the claim petition is this. The complainant company purchased two Tower Cranes from M/s. Binny Ltd., OP 2, the authorized supplier/agent of M/s. F.M. Gru, OP3 (Italy), the manufacturer of the said two Tower Cranes. The Tower Cranes were supplied to the complainant on 16.7.1995 and were commissioned on 1.8.1995. The warranty came to an end on 21.7.1996. The Complainant entered into a Contractor's Plant and Machinery Insurance Policy with New India Assurance Co. Ltd., OP 1, in respect of the above two Tower Cranes. One of the clauses of the Insurance Policy specifically mentions that the Insurance Company, OP1, would indemnify the complainant against ".....unforeseen and sudden physical damage by any cause not hereinafter executed to any insured property specified in the attached schedule". The said policy covered the period from 25.7.1995 to 24.7.1996. It was again renewed from 25.7.1996 to 24.7.1997. The complainant paid premium in the sum of Rs. 75,964 in respect of the above said period.
3. On 7.10.1996, at around 3.50 p.m., one of the said Tower cranes met with an unforeseen and sudden accident, while the tower crane was being used for building wall No. DW/10 in Tower No. 17, above Fifth Floor slab level, thereby resulting in the death of one of the employees of the complainant and serious injury to another employee, who, too, subsequently passed away. Till then, the warranty period had expired. M/s. A.K. Govil and Associates, the Surveyor, visited the site of the accident on 15.10.1996. The complainant claimed a sum of Rs. 53,00,000 on 9.1.1997 with the OP1 for the loss or damage caused in respect of the damaged Tower Crane. OP1 was requested to complete their assessment for early settlement, vide letter dated 27.5.1997.
4. 0P1, Insurance Company vide its letter dated 6.3.1998 repudiated the claim made by the complainant. The relevant portion of the repudiation letter, runs as follows:
".......and it has been revealed that the tower crane had failed because of design defect or manufacturing defect or poor workmanship. Under the policy, the company undertook to indemnify against loss or damage to the tower crane, if the loss or damage is caused solely due to accidental external means, whereas in your case the cause of damage was purely internal to the crane. Under the terms and conditions of the policy, it has been provided under Clause (p) that the Company shall not be liable under the policy, in respect of the loss or damage for which the supplier or the manufacturer is responsible, either by law or under the contract. Since it has been found that the tower crane has failed due to manufacturing defect, the company is not liable under the terms and conditions of the policy, and we have decided to repudiate the same, which we hereby do, and are closing our file as no claim".
5. Immediately after the occurrence of the accident, M/s. Binny Ltd., and manufacturer of tower cranes, M/s. F.M. Gru, furnished a declaration dated 7.10.1996 stating that the tower had been planned and designed according to the International Standards and had been verified and approved by the Italian Safety Bureau. They also explained that they sold 300 tower cranes, but no such complaint was ever received. Both the OPs 2 and 3, denied that there was any manufacturing defect. The complainant purchased the two cranes for a sum of Rs. 45,80,000, which is inclusive of excise duty. There were two repor
