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HIMACHAL PRADESH STATE CONSUMER DISPUTES REDRESSAL COMMISSION, SHIMLA
Inder Singh Mehta, President and
R.K. Verma, Member
C.K. Earthmovers Private Limited – Complainant
versus
M/s Atlas Copco India Limited
and Anr. – Opp. Parties
Consumer Complaint No.12 of 2018
Decided on 4.4.2024
Consumer Protection Act, 1986 – Section 17 – Consumer Protection Act, 2019 – Sections 47 and 84 – Product Liability – Damage to the Machine – During transportation – Liability of Manufacturer – In the instant complaint, the provisions of Consumer Protection Act have to be construed in favour of the complainant to achieve the purpose of Consumer Protection Act which is a social benefit-oriented legislation – A commercial enterprise or a ‘person’ as defined under Section 2 (1) (m) of the Consumer Protection Act (which includes a firm, whether registered or not) is not excluded from the definition of a ‘consumer’ provided in Section 2(1)(d) of the Consumer Protection Act, 1986 – In the instant complaint what has been purchased is the drilling machine and the facts on record do not prove that it produces the finished goods/articles which could only be used for profit making commercial purpose – Therefore, complaint of the complainant alleging that drilling machine in question was purchased for earning their livelihood by way of self employment is maintainable – In the instant complaint, the loss/damage to drilling machine is alleged to have been caused during transportation. As per Annexure C-7, services of Vaishnavi Transline, (opposite party No.2) were hired for transportation of drilling machine in question – Since the loss/damage to the drilling machine in question has occurred during transportation, there was no fault on the part of the opposite party No.1/Manufacturer. The complainant has not specifically averred in its complaint that the drilling machine in question was having manufacturing defects. Consequently, the opposite party No.1/manufacturer cannot be held liable for the damage/loss to the drilling machine during transportation. Therefore, no deficiency in service can be attributed to the opposite party No.1/manufacturer – On facts, complaint of the complainant is partly allowed against the opposite party No.3/insurance company only. The opposite party No.3/insurance company is directed to pay a sum of Rs.29,98,317/- (Twenty nine lacs ninety eight thousand three hundred and seventeen) to the complainant alongwith interest @ 9% per annum from the date of filing of the complaint till realization of aforesaid amount. [Paras 10 to 40].
Result: Complaint allowed.
ORDER
Inder Singh Mehta, President—The complainant has filed the instant complaint seeking directions to the opposite parties to pay damages suffered to the drilling machine to the tune of Rs.48,27,503/- along with interest @ 18% per annum from the date of submission of claim, till its realization, Rs.10.00 lacs for the unfair trade practices and deficiency in service and Rs.3.00 lacs for litigation charges.
Brief facts of Case:
2. Brief facts stated are that the complainant is a Private Limited Company and is engaged in works of mining, cutting works, excavation works and construction of roads.
There are three Directors in the company who are engaged in earning livelihood by way of self employment.
The complainant company entered into an agreement for drilling and allied services with M/s Ambuja Cement Company for a period of 08.08.2017 to 31.07.2018.
The complainant company placed order for purchasing a drilling machine and requisite accessories for a total consideration amount of Rs.1,14,23,890/- to the opposite party No.1/Manufacturer. In pursuance to the purchase order Annexure C-2, the manufacturer M/s Atlas Copco India Limited, 90, MIDC, Satpur, Nashik, Maharashtra (opposite party No.1) sold the drilling machine vide Tax Invoice and delivery challan dated 23.08.2017 Annexure C-3 and the said drilling machine was to be commissioned by the concerned expert of opposite party No.1 at Chandi.
The complainant obtained the insurance cover of the aforesaid drilling machine to the tune of Rs.1,14,23,890/-.
The insurance premium duly paid on 23.08.2017, whereafter cover-note Annexure C-4 was issued in favour of the complainant concern by the Reliance General Insurance Co. Ltd.(opposite party No.3) on 24.08.2017. Thereafter, the drilling machine was dispatched by the manufacturer M/s Atlas Copco India Limited (opposite party No.1) on 23.08.2017 vide dispatch receipt Annexure C-5 and gate pass Annexure C-6. The complainant hired the services of transporter Vaishnavi Transline, Fleet Owners & Transport Contractors, Raj Corner, T1/17, Triveni Nagar, IT Park Road, Talawade, Pune, Maharashtra (opposite party No.2) for transportation of drilling machine from Nashik, Maharashtra to Chandi, Solan, H.P. The opposite No.2/transporter was responsible for safe and sound delivery of the consignment at Chandi, Solan. The consignment amount paid to the transporter for transportation of the consignment was approximately Rs.1,52,000/-.
The drilling machine was delivered by the driver of the transporter at Chandi on 29.08.2017. The drilling machine was in packed condition. Thereafter, the service engineers of the manufacturer M/s Atlas Copco India Limited (opposite party No.1) visited Chandi on 30.08.2017 for commissioning of the drilling machine. When the machine in question was inspected by the engineers of the manufacturer (opposite party No.1) for pre-delivery inspection and commissioning, it was discovered that the machine had suffered heavy damages during transportation. Thereafter, the claim in writing was lodged with the opposite party No.3/Insurance Company on 06.09.2017 vide claim intimation form Annexure C-9. Sh. H.M. Walia was deputed as surveyor to conduct the survey and assess the loss to the drilling machine. The surveyor deputed by the opposite party No.3 (insurance company) visited the spot on 23.11.2017 inspected the machine and called upon the complainant to submit the estimate of damages. Thereafter, the complainant submitted the detailed inspection that was carried by the engineers of the manufacturer (opposite party No.1) between 04.10.2017 and 06.10.2017 who submitted their report. The experts had also submitted the tentative list of spares to restore the machine and the estimate of repairs Annexure C-13 which was also forwarded to the insurance company (opposite party No.3). Those documents were forwarded to the insurance company (opposite party No.3) with the request to indemnify the claim at the earliest. Estimated loss wa
It cannot be assumed that complainant had submitted false and fabricated documents before insurance company while taking insurance policy.
The liability of carriers for damages arises during transportation unless they prove lack of negligence; rights under a subrogation agreement permit maintenance of a complaint by an insurer.
Insurers are obligated to act fairly in claim assessments, and claims under insurance policies cannot be dismissed solely based on survey reports lacking independence.
(1) Declaration made by Opponent no.1 that insurance policy issued by Opponent no.1 is void-ab-initio is illegal.(2) Only the insurance policy given by Opponent no.1 to complainant will come into exi....
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