F.A.No.237/2012 against C C.No.112/2011 District Forum, KURNOOL

Between

M/s. Narmada Seeds by its Proprietor

M.Chow Reddy, R/o.D.No.30-505,

Vivekananda Street, Boggu Line,

Nandyal, Kurnool District.                             Appellant/complainant.                       

        And

1. United India Insurance Co. Ltd., rep.

    by its Branch Manager, Branch Office,

    D.No.2-415, B.N.K.Road, Nandyal.

2. United India Insurance Co. Ltd.,

    Rep. by its Divisional Manager,

    Divisional Office, Mourya Inn complex,

    Kurnool town & District.

                                                                                Respondents /

                                                                                Opp.parties.

Counsel for the Appellant             : Mr.M.L.Srinivsa Reddy.              

Counsel for the Respondents         :Mr.S.Shravan Kumar.

QUORUM: THE HON’BLE SRI JUSTICE D.APPA RAO, PRESIDENT,

AND

SRI S.BHUJANGA RAO, HON’BLE MEMBER.

THURSDAY, THE FIFTH DAY OF JULY,

TWO THOUSAND TWELVE

Oral Order (Per Hon’ble Sri Justice D.Appa Rao, President)

***

        The appellant is the unsuccessful complainant.

        The case of the complainant in brief is that he got insured his building and stocks under Standard Fire and  Special Perils Policy covering the period from 22-6-2007 to 21-6-2008 for a sum of Rs.20,00,000/-.  While so on  22-6-2007, there was a cyclone and heavy floods and the water entered into the premises damaging the stocks completely. When  the said fact was intimated, the insurance company appointed a surveyor by name, Mr.M.R. Srinivasan, who conducted survey and submitted his report assessing the net loss at Rs.1,39,093/-.  Despite the fact that he has been approaching the insurance company to settle the claim, they have been dragging the matter on one pretext or the other and since no reply was received, he got issued a legal notice on 22-4 2011 claiming the amount for which no reply was even given.  Therefore, he filed the complaint for recovery of Rs.1,39,093/- together with interest at 12% p.a., compensation of Rs.20,000/- and costs of Rs.10,000/-. 

        The insurance company resisted the case.  While admitting the issuance of policy, it alleged that the complainant did not inform about the damage of stocks due to cyclone and it has never appointed any surveyor.  The fact that the policy was taken on 22-6-2007 at 2.15 p.m. and the water entered into the premises at 6.00 p.m. within four hours raised a certain doubt about the claim.  Since it did not receive any claim, no surveyor was appointed nor the said surveyor assessed the compensation at Rs.1,39,093/- The claim was admittedly barred by limitation and a false plea was introduced in order to save limitation. Had the surveyor submitted his report, the complainant could have filed by issuing a registered notice to save limitation.  Therefore, it prayed for dismissal of the complaint with costs.

        The complainant in proof of his case filed his affidavit evidence and got exhibits A1 to A6 marked while the opposite party filed affidavit evidence of its Divisional Manager and marked Ex.B1.

        The District Forum after considering the evidence placed on record, opined that the complainant could not prove that a claim was made immediately, and for the first time by issuing a registered notice on 22-4-2011 the claim was made, and therefore opined that the claim was barred by imitation and accordingly dismissed the complaint.

        Aggrieved by the said order the complainant preferred this appeal contending that the District Forum did not appreciate either facts or law in correct perspective.  It ought to have seen that the insurance company did not give any reply to the notice sent, despite the surveyor’s report, marked as Ex.A6, except bald denial there was neither repudiation nor settlement of claim and hence the question of the claim being barred by limitation does not arise and prayed that the complaint be allowed.

        The point that arises for consideration is whether the order of the District Forum is vitiated by any mis-appreciation of fact or law in that regard?

        It is an undisputed fact that the complainant has taken a Standard Fire and Special Perils policy for a sum of Rs.20,00,000/- covering the period from 22-6-2007 to 21-6-2008 evidenced under policy  Ex.A1/B1.  The complainant alleges that there was a cyclone on 22-6-2007 at about 6.00 p.m., followed by heavy rain and the water inundated   the stocks namely the seeds kept in the premises.  Though the complainant alleged in the complaint that an intimation of the damage was given and the insurance company has appointed a surveyor by name, Mr.M.R.Srinivasan and that the surveyor in turn came and inspected the premises and assessed the damage at Rs.1,39,093/-, the insurance company except denying for the first time when the complaint was filed did not give any reply to the notice issued by the complainant as long back as 22-4-2011 under Ex.A2.  The insurance company did not dispute the receipt of this notice, since it is borne out by acknowledgement, Exs.A3 and A4.

        The complainant in the said notice had pleaded the appointment of surveyor and assessment of loss.  At the cost of repetition we may state that as no reply was given, having waited for a certain time, the complainant again got issued letter to the surveyor on 09-11-2011 under Ex.A5 directing him to send copy of the report, said to have been submitted to the insurance company, adverting to which the surveyor submitted his report, Ex.A6, which the complainant had filed before the Forum. 

        Curiously when the said fact was pleaded in the complaint, the insurance company while filing its written version, while disputing the appointment of surveyor, adverted that the said survey report was not filed.  Thereupon the complainant filed Ex.A6, copy of the surveyor’s report submitted to him pursuant to his letter under Ex.A5.  Even then the opposite parties without looking into the affidavit evidence of the complainant or the document, Ex.A6, report of the surveyor, still had taken the contention, that the said report was not filed.  This shows that the insurance company did not bother to look into the documents or the affidavit evidence of the complainant and the very same counter was adopted while filing the affidavit evidence of the Divisional Manager and even in the written arguments the very same plea was taken.  It is obvious that the insurance company has been denying the appointment of surveyor and his report as it would come in the way of their defense.  If really surveyor has not been appointed, when the complaint was filed and the survey report is marked as Ex.A6, the insurance company ought to have taken action against the surveyor or atleast issued a notice to the surveyor as to how he could file a report when he was not appointed as a surveyor. It is not as though he was not a recognized surveyor, the license number was made a mention while submitting his report, Ex.A6.  When the insurance company did not intend to take action against the surveyor, who filed Ex.A6, mere denial of appointment of surveyor cannot be countenanced.  This plea is taken to deny the just claim of the complaint when the complainant not only informed about the loss and also appointment of surveyor and also issued notice, the insurance company did not give any reply and even when the complainant filed the same, the insurance company except denying could not establish its case.  Therefore an adverse presumption has to be drawn against its defense, more so when the insurance company did not take any action when the complainant filed the report, Ex.A6. 

The insurance company by their long silence intended to deny the claim on the ground that it was barred by limitation.  The survey report reads that on instructions of the insurance company, he proceeded to conduct enquiry on 25-6-2007.  This shows that intimation was given to the insurance company.  It would have denied the fact of receipt of registered notices evidenced under acknowledgement Ex.A3 and A4.  No explanation was given for non reply.  This is crucial.  They cannot turn round and later contend that it was barred by time.  In this regard, it is beneficial to note the decision of the National Commission in 3118-3144  of 2010 in Laxshmi Bai and others v. ICICI Lombard General Insurance Co. Ltd., & others dated 05-8-2011 at paras 13(2) and 14 as follows:

13 (2) Cases where claim is made to nodal officer or nodal officer has forwarded the claim to Insurance Company or claim has been directly filed with Insurance Company within 2 years of the death and the claim has remained undecided in such a case the cause of action will continue till the day the Respondent/Insurance company pays or rejects the claim.

14, In the above cases, the remedy under the Consumer Protection Act, 1986, cannot be barred on the ground that the jurisdiction of the consumer fora was not invoked within two years from the date of death/incapacitation.  Any contrary view in the matter, will result in the claimant/consumer being penalized for the delay caused by the Respondent/Insurance company.

Since there was no repudiation nor settlement of claim, it must be deemed that the cause of action continues and the complaint cannot be held to be barred by limitation.  We do not agree with the order of the District Forum in this regard, it did not consider the effect of non reply to the notice, Ex.A2  nor denial of Ex.A6.  Since the very defense taken by the insurance company is contrary to the record, which made the complainant file complaint, undoubtedly, he must have suffered mental agony all this time for which adequate compensation could be awarded.

        In the result this appeal is allowed and consequently the complaint is allowed in part directing the insurance company to pay Rs.1,39,093/- as assessed by the surveyor together with interest at 9% p.a. from the date of complaint together with compensation of Rs.10,000/- and costs of Rs.5,000/-.  Time for compliance one month.

Sd/-PRESIDENT.

                                                                Sd/-MEMBER.

JM                                                             05-7-2012