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Supreme Court of India

SHARDA ASSOCIATES vs UNITED INDIA INSURANCE COMPANY LTD on 25 July, 2022

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2022 INSC 745C.A. No.-004910-004910 - 2022Official PDFAuthor HON'BLE THE CHIEF JUSTICEBench Ajjikuttira Somaiah BopannaAdvocates GP. CAPT. KARAN SINGH BHATI
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
Civil Appeal No 4910 of 2022
(Arising out of SLP(C) No 5100 of 2020)
Sharda Associates .... Appellant(s)
Versus
United India Insurance Company Ltd ....Respondent(s)
J U D G M E N T

Dr Dhananjaya Y Chandrachud, J

1 Leave granted.

2 This appeal arises from a judgment dated 12 July 2019 of the National Consumer

Disputes Redressal Commission.1 While exercising its revisional jurisdiction, the

NCDRC, by its judgment, reversed concurrent findings of fact which were

recorded by the District Consumer Disputes Redressal Forum2 and by the State

Consumer Disputes Redressal Commission.3

DigitallySanjay3Kumarsigned by The appellant purchased a JCB Excavator Model 3DX on 25 April 2007. The

1 “NCDRC” 2 “District Forum” 3 “SCDRC”

excavator was insured with the respondent for the period between 5 March 2009

and 4 March 2010 at an Insured Declared Value4 of Rs 13.50 lakhs. On 25 May

2009, the excavator was being used on the Shivpuri-Timli Road near Rishikesh in

the State of Uttarakhand. A portion of the road gave way, as a result of which

the excavator fell into a deep ditch resulting in the death of the operator and

helper and the total loss of the excavator. A First Information Report was filed on

26 May 2009. The FIR states that the accident had occurred due to a sudden

caving of the road. The surveyor appointed by the insurer conducted a spot

survey on 28 May 2009 and reported that the accident had taken place due to

the edge of the road side collapsing due to which the excavator fell into a ditch.

The final survey report was submitted on 18 July 2009. The appellant filed for an

insurance claim but the insurer did not settle it. The respondent repudiated the

claim on 13 April 2010 on the ground that the overturning of the excavator was

not covered in terms of the policy condition Indian Motor Tariff5 47 as the JCB

excavator was being used as a ‘tool of trade’ and no additional premium was

paid. The appellant filed a complaint before the District Forum alleging a

deficiency in service on the part of the insurer and the award of a sum of Rs

13.50 lakhs towards the IDV plus interest at twelve percent, along with

compensation for mental harassment. The District Forum allowed the complaint

on 26 September 2011 by directing the insurer to pay an amount of Rs 13.50

lakhs, together with interest at nine per cent. The judgment of the District Forum

was upheld in appeal by the SCDRC on 1 May 2014. On the issue of IMT 47, The

SCDRC made the following observations:

“9. So far as another plea taken by the insurer

that at the time of the accident, the machine, was

4 “IDV” 5 “IMT”

being used as “Tool of Trade”, for which

additional premium was required to be paid by

the complainant and which was not paid by the

complainant is concerned, we also do not find any

force in the said plea raised by the insurer. The

reason being that as per IMT 47 mentioned in the

insurance policy and which has also been quoted

by the District Forum in the impugned order, the

claim is not payable in the event when the JCB

machine is used as tool of Trade and it overturns

while working as such. In the instant case, the JCB

machine was being used for construction of road

and debris was being removed from the machine.

The JCB machine was being used a whole and not

as “Tool of Trade” and since the machine was

being used a whole, no additional premium was

required to be paid by the complainant.”

The respondent assailed the order of the SCDRC in Revision Petition No 3306 of

2014. The NCDRC, by its judgment dated 12 July 2019, reversed the findings and

the award of compensation by the SCDRC. The NCDRC reversed the decision on

the ground that earth moving equipment, such as a JCB excavator, could be used

either as a tool or as a vehicle, at a given point of time. Since the case of the

respondent was that the excavator was being used for the purpose of road

making when it met with an accident, the NCDRC held that it was being used as

a tool and not as a vehicle. In arriving at its findings, the NCDRC upheld the

submissions of the insurer that the claim could not have been allowed under IMT

47 unless additional premium was paid. The relevant observations of the NCDRC

are extracted below:

“7. A dissection of IMT 47, which applied inter-alia to

excavators and is reproduced in the repudiation

letter would show that unless additional premium

is paid, in case of loss of or damage to the

excavator, the insurer is not liable if the following

conditions are made:

(a) The loss or damage results from overturning of

the vehicle

(b) The excavator is being used as a tool of the

vehicle or of the plant forming part of the vehicle

or attached thereto, unless the loss or damage

arises directly from fire, explosion, self-ignition,

lightning, burglary, house breaking or theft.

8. An excavator machine cannot be used for road

construction unless it is attached to the said

vehicle or is used as a tool of the vehicle. This is

complainant's own case that the excavator was

being used for road making when it met with an

accident. Therefore, it cannot be disputed that

the operation i.e. the construction of the road was

being carried when the excavator vehicle while

being used as a tool, suddenly rolled down on

account of road side edge having got broken.

Earthmoving equipment such as a JCB can be

used either as a tool or as a vehicle at a given

time. It cannot work simultaneously as a tool as

well as a vehicle. Since this is complainant's own

case that the excavator was being used for road

making when it met with an accident, it is evident

that it was being used as a tool and not as a

vehicle at the time it fell 500 ft. down the road.”

4 We have heard Mr Jaideep Singh, counsel appearing on behalf of the appellant

and Mr Abhishek Gola, counsel appearing on behalf of the respondent.

5 The narrow issue which falls for determination in this appeal turns on the

interpretation of the insurance policy. There is no dispute about the fact that the

term of insurance was valid between 5 March 2009 until 4 March 2010. Section I

of the policy, inter alia, provides as follows:

INSURED

1. The Company will indemnify the insured against

loss or damage to the vehicle insured hereunder and/or

its accessories thereon:

i. by fire explosion self-ignition or lightning;

ii. by burglary housebreaking or theft;

iii. by riot and strike;

iv. by earthquake (fire and shock damage);

v. by flood typhoon hurricane storm tempest

inundation cyclone hailstorm frost;

vi. by accidental external means;

vii. by malicious act;

viii. by terrorist activity;

ix. whilst in transit by road rail inland waterway lift

elevator or air;

x. by landslide/rockslide.”

6 However, the insurance policy contains a specific stipulation in regard to the

application of IMT 47 in the following terms:

“IMT 47: Mobile Cranes/ Drilling Rigs/ Mobile Plants/

Excavators/ Navvies / Shovels/ Grabs/ Rippers

It is hereby declared and agreed notwithstanding

anything to the contrary contained in this Policy that in

respect of the vehicle insured the insurer shall be under

no liability:

a) Under Section I of this policy in respect of loss or

damage resulting “from overturning arising out of the

operation as a tool of such vehicle or of plant forming

part of such vehicle or attached thereto except for

loss or damage arising directly from fire, explosion

self-ignition or lightening or burglary housebreaking

or theft.

b) Under Section II except so far as is necessary to meet

the requirements of the Motor Vehicles Act, 1988, in

respect of liability incurred by the insured arising out

of the operation as a tool of such vehicle or of plant

farming part of such vehicle or attached thereto.

N.B.: Omit paragraph (a) for :-

i. Liability only Policies.

ii. Package Policies where an additional premium has

been paid for inclusion of damage by overturning.

NOTE:

Insert make, number or some other means of

identification.

Where a premium reduction is allowed for exclusion of

damage when in use as a tool of trade omit from

paragraph (a) the words “resulting from overturning”

and “except for loss ... or theft”.”

7 Mr Jaideep Singh, counsel appearing on behalf of the appellant, urges that:

i. The NCDRC was not justified in reversing concurrent findings of fact which

were recorded by the District Forum and by the SCDRC to the effect that

the excavator was not being used as a tool of trade, when the accident

occurred; and

ii. In any event, it is apparent from the survey report as well as the findings

of fact which have emerged on the record that the excavator suffered an

accident due to a landslide or the collapsing of the road, to which IMT 47

would not stand attracted.

8 On the other hand, Mr Abhishek Gola, counsel appearing on behalf of the

insurer, submitted that IMT 47 was specifically designed to meet such

contingencies in which event the insurer would not be liable unless an additional

premium was paid. In this context, counsel relied upon the complaint which was

lodged to the police station which specifically adverted to the fact that the soil

under the machine had collapsed resulting in the excavator falling into a deep

ditch. Moreover, the counsel has also adverted to the survey report, according to

which, there was a sudden collapse of the edge of the road side, as a result of

which the machine rolled down about 500 meters.

9 In order to attract the applicability of IMT 47, certain specific conditions have to

be fulfilled. IMT 47 excludes liability:

i. Where the loss or damage has resulted from “overturning arising out of

the operation as a tool of such vehicle or of plant forming part of such

vehicle or attached thereto”;

ii. Unless the loss or damage is directly arising from fire, explosion, self-

ignition, lightning, burglary, house breaking or theft.

10 It is important to note that clause 1 of the insurance policy, which has been

extracted earlier, specifically covers a loss or damage which arises as a

consequence of a landslide. IMT 47 applies to a situation where the loss or

damage has been caused due to ‘overturning’ arising out of the operation as a

tool of such vehicle or of plant forming part of such vehicle or forming a part

thereto. In other words, for the provisions of IMT 47 to be applied, it is essential

to establish that the loss or damage was caused due to overturning and that the

overturning should arise out of the operation as a tool of such vehicle. The

NCDRC was persuaded to adopt the view of the insurer that an excavator could

be used either as a tool of trade or as a vehicle and, in the present case, since it

was being used for the purpose of road construction, it was not being used as a

vehicle. However, the line of reasoning of the NCDRC clearly missed the point

that in the present case the accident was caused as a result of a portion of the

road having given way. The accident was in the nature of a landslide, as a result

of which the vehicle fell into a deep ditch occasioning the death of the operator

and the helper and a total loss of the machine.

11 The situation, in the present case, therefore, did not involve loss or damage due

to the overturning of the vehicle. Consequently, even if, for the sake of

argument, the submission of the insurer that the vehicle was being used as a

tool were to be accepted, it is impossible to subscribe to the findings of fact of

the NCDRC. The damage or loss was not as a result of the overturning of the

vehicle, but was plainly due to the collapsing of the road, which resulted in the

vehicle falling into a deep ditch in a hilly terrain of the State of Uttarakhand.

12 Counsel appearing on behalf of the appellant submitted that NCDRC could not

have reappreciated the facts in its revisional jurisdiction of NCDRC under Section

21(b) of the Consumer Protection Act 1986. In a judgment of a three judge

Bench in Lourdes Society Snehanjali Girls Hostel v H&R Johnson (India)

Ltd,6 this Court held that the NCDRC should not have interfered with the

concurrent findings of fact in the judgments impugned before it, particularly

having regard to the nature of jurisdiction conferred upon it by Section 21 of the

Consumer Protection Act 1986:

“17. The National Commission has to exercise the

jurisdiction vested in it only if the State

Commission or the District Forum has either failed

to exercise their jurisdiction or exercised when

the same was not vested in them or exceeded

their jurisdiction by acting illegally or with

material irregularity. In the instant case, the

National Commission has certainly exceeded its

jurisdiction by setting aside the concurrent finding

of fact recorded in the order passed by the State

Commission which is based upon valid and cogent

reasons. […]”

The limited ambit of the revisional jurisdiction of the NCDRC has been reiterated

in subsequent decisions of this Court, most recently in Sunil Kumar Maity v

State Bank of India.7

6 (2016) 8 SCC 286 7 Civil Appeal 432 of 2022 (Arising out of SLP(C) 21711 of 2019

13 Having regard to the above findings, the judgment of the NCDRC is

unsustainable. We accordingly allow the appeal for the reasons set out above

and set aside the impugned judgment and order of the NCDRC dated 12 July

2019 in Revision Petition No 3306 of 2014. In consequence, the judgment of the

SCDRC in First Appeal No 201 of 2011 dated 1 May 2014, which directed the

insurer to pay a sum of Rs 13.50 lakhs to the appellant, together with interest at

the rate of seven per cent from the date of the filing of the consumer complaint,

shall stand restored.

14 Pending application, if any, stands disposed of.

[Dr Dhananjaya Y Chandrachud]

[A S Bopanna] New Delhi; July 25, 2022 -S-