ORDER :

N. Kotiswar Singh, J.

1. The present petition has been filed against the order dated 24.10.2019 passed by Jammu & Kashmir State Consumer Disputes Redressal Commission (SCDRC), Srinagar in complaint No. 43/2011, titled “M/S Kunal Stone Crusher V. National Insurance Company Limited”

2. It is the case of the complainant that the complaint was filed by M/S Kunal Stone Crusher through Manzoor Ahmad Naikoo after the machine one Tata Hitech Excavator which was purchased by him and insured with the National Insurance Company which was valid from 17.07.2009 to 16.07.2010, for an amount of Rs. 20.00 lacs. The said machine was used for excavation works on being hired by various contractors.

3. It is the case of the complainant that on 20.08.2009 during the subsistence of the insurance, the said Excavator met with an accident at Mihi Mangil Road Banihal while undertaking excavation work after falling into the deep Nallah and was totally damaged. The said accident was duly reported and, accordingly, FIR was registered with the Police Station Banihal vide FIR No. 179/2009. The complainant also duly informed, about the said accident, to the Insurance Company which was duly acknowledged by the insurance company. After the said intimation, the insurance company deputed one Surveyor for preliminary survey and spot inspection and accordingly to submit the report.

4. The complainant also submitted his own claim to the tune of Rs. 32,26,072/-. The surveyor after examining and discussing, settled the claim for Rs. 14.20 lacs on the basis of, total loss net of salvage basis, which was acceptable to the complainant, but the Insurance Company without proper reasons did not entertain the claim leading to filing of the complaint before the Consumer Commission alleging deficiency in services. The said complaint before the Commission was registered,

5. The Insurance Company taking the plea that complainant has no insurable interest in the property, inasmuch as, the said machine earlier belonged to one M. C. Chopra who had sold to Ab. Qayoom and Ghulam Ahmad Dar on 08.06.2007 prior to the commencement of the insurance without intimating any such transfer to the Insurance Company and thereafter, the complainant along with Khursheed Ahmad and Mehraj Din purchased the machine from Ab. Qayoom and the Ghulam Ahmad Dar, as such, the complainant is not the consumer and there was no contract between the complainant and Insurance Company, as such, there cannot be any deficiency of service on the part of the Company towards the claimant.

6. Learned Commission after considering the issue of insurable interest of the property held that in terms of the Surveyor’s report which was not being denied by the Insurance Company, the complainant is entitled to a sum of Rs. 14.20 lacs along with interest @ 9% from the date of complaint.

7. The aforesaid award has been challenged by the Insurance Company on two grounds; one that the Insurance Company has taken a specific plea as mentioned in the objection filed before the Commission that the policy did not cover any accident arising out of the operational use of the Excavator and it has been specifically mentioned in the policy that the policy is subject to IMT 47 and as per the commercial vehicle package policy of the Insurance Company, IMT 47 provides that the insurance policy shall not be liable for loss of damage resulting from overturning arising out of the operation as a tool of a vehicle and in the present case the complainant choose not to subscribe.

8. It has been said that though the insurance was in respect of the said machine, but it was not covered for loss of damage resulting from overturning arising out of operation and it has been clearly mentioned in the policy and in fact no additional payment which is required to be paid on account of loss of damage resulting from overturning arising out of the operation was paid by the insured and, as such, since the policy did not cover any such loss on account of overturning