Case: Sharda Associates Vs. United India Insurance Company Ltd

or attached thereto except for loss or damage arising directly from fire, explosion selfignition 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 (2016) 8 SCC 286, 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 (Civil Appeal 432 of 2022 (Arising out of SLP(C) 21711 of 2019).

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]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.In a judgment of a three judge Bench in Lourdes Society Snehanjali Girls Hostel v H&R Johnson (India) Ltd (2016) 8 SCC 286,  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 (Civil Appeal 432 of 2022 (Arising out of SLP(C) 21711 of 2019).