BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT PUDUCHERRY

Dated this the 8^th day of February 2018

Consumer Complaint No.5/2014

M/s A.S.R. Agro Oils Private Limited

Rep. by its Managing Director A. Selvarangam

Suramangalam, Kariamanickam Village,

Nettapakkam Commune, Puducherry.                  

………                                  Complainant

                                                               vs

1. Authorised Signatory

Bajaj Allianze General Insurance Co. Ltd.,                                        

Chennai.

2. Zonal Head

    AVP Non-Motor Claims,

    Bajaj Allianze General Insurance Co., Ltd.,

    30, Vaithiyaraman Street, T. Nagar

    Chennai.

3. The Manager

     Bajaj Allianze General Insurance Co., Ltd.,

    No.87/91, LA Complex

    1^st Floor, Siddhanandha Nagar,

    Pondicherry – 605 005.

                                                          ……….                          Opposite Parties

BEFORE:

HON’BLE JUSTICE Thiru K. VENKATARAMAN,   

PRESIDENT

 Thiru S. TIROUGNANASSAMBANDANE,

MEMBER

FOR THE COMPLAINANT:

Thiru R. Udayakumar, Advocate             

FOR THE OPPOSITE PARTIES

Thiru K. Ravikumar, Advocate

O  R  D  E  R

(By Justice Thiru K. Venkataraman, President)

          The complainant filed the present complaint u/s 12 and 13 of Consumer Protection Act, 1986 directing the opposite parties 1 and 2 to pay Rs.99,00,000/- towards the damages caused to the oil mills, deficiency of service and mental agony and to direct the opposite parties 1 and 2 to pay a sum of Rs.50,000/- towards cost of the complaint and to direct the opposite parties to pay interest. 

          2. The gist of the complaint of the complainant is set out hereunder. 

          The building, plant, machineries and the stocks of the complainant's company were insured with the opposite parties and a net premium of Rs. 5,48,994/- was paid.   Thane Cyclone which hit the shore on 30.12.2011 between Cuddalore and Puducherry has caused total loss to the building, plant and machineries and stocks to the tune of Rs.1,92,22,119/-.  Immediately, the complainant informed the occurrence to the Opposite Parties on 01.01.2012 through Email along with the estimate.  The complainant was asked to furnish various documents.  Thereafter, through Email, the opposite parties have informed that M/s Rank Surveyor's (P) Ltd., Chennai was appointed a Surveyor and the Surveyor visited the property.  To the Surveyor, the complainant has submitted various documents asked for by them.  The Opposite Parties have released a cheque for Rs.25,00,000/- directly to the bank under "on account payment".  The complainant finally submitted a final estimate regarding the damage at Rs.1,35,97,076/-.  But the Opposite Parties have paid totally a sum of Rs.25.00 lakhs on one occasion and Rs.88,000/- on the other occasion and hence, the balance amount payable to the complainant was arrived at Rs.95,00,000/-.  The said amount has not been paid inspite of several demands.  It is a deficiency of service which has caused mental agony to the complainant.  Therefore, the complainant has preferred the said complaint claiming a sum of Rs.99.00 lakhs towards the damages caused to the oil mills, gross deficiency of service and mental agony and Rs.50,000/- towards cost of this complaint. 

          3. Counter statement has been filed on behalf of the opposite parties wherein, it is stated as follows:

a) The total amount of Rs.25,91,169/- is the just and reasonable compensation and the same has been paid which has been received by the complainant without any protest and hence, the complainant is not entitled to grant of any relief in this Consumer dispute.

          b) The claim of the complainant is only a money claim and hence, the complaint will not lie before the State Consumer Disputes Redressal Commission, Puducherry.  The Consumer Protection Act will not be applicable to the claim made by the complainant;

          c) The complaint is liable to be dismissed on the ground of limitation.  Though the Thane cyclone crossed Puducherry on the intervening night of 29.12.2011 and 30.12.2011, the complainant alleged that the cause of action arose on 31.12.2011 and the complaint filed after two years is liable to be dismissed on the ground of limitation;

          d) The complainant has received the payment made by the Opposite Parties without any protest and hence, they can claim no more amount from the opposite parties;

          e) The Surveyor appointed by the Opposite Parties visited the unit on 31.12.2011, 01.01.2012, 02.06.2012 and on 28.06.2012 and submitted reports and basing on the same, the entire amount has been settled to the complainant;

          f) The complainant has undervalued the building, plant and machinery and the stock and has taken the policy and hence, the complainant is not entitled to more than what has been paid to it;

Thus, the counter statement of the opposite parties seeks for the dismissal of the complaint. 

          4. On behalf of the complainant, one Mr. S. Aravindan was examined as CW1 and through him, ten documents were filed which were marked as Exs.C1 to C10.  On behalf of the Opposite Parties, one Ms. R. Kalpana,  the Assistant Manager of the Insurance Company, Chennai and D. Venkataraman, the Surveyor were examined as RW1 and RW2 and ten documents were filed which were marked as Exs.R1 to R10.

          5. We have gone through the pleadings, evidence adduced by both the parties, the documents filed by both the parties and also heard the oral arguments advanced by both the Counsels and also perused the written arguments filed by both the Counsels. 

          6. It is an admitted case of both the parties that in view of the Thane Cyclone, the factory premises of the complainant got damaged;  that the claimant made claim;  that the opposite parties appointed a Surveyor to assess the damage; that the Surveyor visited the premises of the factory on few occasions and that the Opposite parties settled a sum of Rs.25,00,000/- at the first instance and Rs.88,000/- in the second instance.  However, it is the case of the claimant that the opposite parties have to still pay a sum of Rs.99,00,000/-.  It is the case of the opposite parties that whatever amount that is payable to the complainant has been paid.

          7. The State Commission formulated the following points basing on the pleadings set out by both the parties:

          a) Whether the Complainant is a Consumer under Consumer Protection Act?

          b) Whether the claim is barred by limitation?

          c) Whether the complainant is entitled to more than the amounts paid by the opposite parties?

          d) Whether there is any deficiency on the part of the opposite parties?

          e) Whether the claimant is entitled to interest and cost?

          f) To what other relief the complainant entitled?

          8. Point No.1:

          The first point that has to be decided is whether the complainant is a Consumer under Consumer Protection Act.

It is the case of the claimant that it has insured with the opposite parties the building, plant and machinery and stocks.  The Insurance Policy is marked as Ex.C1.  The same is not disputed by the opposite parties.  It is the case of both the parties that in Thane Cyclone, the factory premises of the complainant was damaged.  The complainant  claimed amounts from the opposite parties towards damages caused based on the insurance policy.  Though some amounts were settled, alleging that it is not sufficient the complainant has come forward before the State Commission for claiming more amounts.  While so, it is the case of the opposite party that the claim of the claimant is only money claim and that the said claim is not maintainable before the State Commission, Puducherry.

          9. We have carefully considered the submission made in this regard.  It is the case of the claimant that as per the policy taken by it from the opposite parties, the Insurance Company has not settled their just claim and that it is a deficiency of service on the part of the opposite parties and that it cannot be claimed by opposite parties that the claim is just a money claim.  Having promised to settle amounts to the claimant, at the time of taking the Insurance policy for Standard Fire and Special Perils, the opposite parties cannot claim that it is just a money claim.  The claimant, undoubtedly, is a Consumer under the Consumer Protection Act.  This point is answered accordingly. 

          10. Point NO.2:

          The second point that has to be considered is whether the claim is barred by limitation.

          Thane cyclone hit the shore between the Cuddalore and Pondicherry on 30.12.2011.  The claimant under Ex.C2 dated 03.01.2012 intimated the Oppoiste Parties about the damage caused to the factory due to the cyclone.  The opposite parties settled a sum of Rs.25.00 lakhs on 07.01.2012 and a the balance of Rs.88,700/- was settled later.  The cause of action arose only thereafter when the claimant was not satisfied with the compensation it received from the opposite parties and intimated the same to the opposite parties.  The complaint was filed on 30.12.2013 and hence, we are of the view that the claim is not barred by limitation. 

          11. Point No.3:

          The third point that has to be decided is whether the claimant is entitled to more than the amount paid by the Opposite Parties.

          It is the case of the opposite parties that the claimant has undervalued the building, plant and machinery and the stock at the time of  taking the policy.  It is not the case of the opposite parties that it assessed the value of the building, plant and machinery and the stock before issuing the policy.  It will be useful to extract the evidence of RW1 in this regard.

          "We insure only on the directions of the bank.  The bank is one of the channel partner.  Whatever the bank says about the value of the property, we will presume that it will be correct.  Before issuing the policy, the insurance company will not value the property.  It is correct to say that in the present case before issuing the policy, we have not received any proposal from the complainant.  The proposal came only from the bank".

While so, it is too late for the opposite parties to contend that the claimant has undervalued the building, plant and machine and the stock at the time of taking the policy.

          12. Secondly, RW2, the Surveyor has stated in his cross examination that "At the time of assessment, I received assistance from my Civil Engineer to assess the damages……, "I have not verified the approved plan of the building before assessing the value of loss".  Therefore, it is clear that the report of the Surveyor cannot be taken as full proof regarding the assessment of damage.

          13. Thirdly, it has to be seen that the report of the Surveyor was not furnished to the claimant.  RW1 in his cross examination clearly stated that "I have not given the copy of the final report to the complainant".

          14. That apart, it is the case of the opposite parties that it has appointed independent Surveyor immediately after the report of the communication from the complainant on 3.1.2012 under Ex.C2.  The Surveyor filed the final report on 20.08.2012 as per the evidence of RW2 in his cross examination.  He has also deposed that "It is true that I have not asked for extension of time for submission of final report  either to the insurer or to the complainant"  However, it has to be seen that as per Regulation 9 (b) of Insurance Regulatory and Development Authority (Protection of Policy Holders Interest) Regulations 2002, the Surveyor cannot take more than six months from the date of his appointment to furnish his report.  It would be useful to extract the Regulation 9 (b) of the said Regulation

Where the insured is unable to furnish all the particulars required by the surveyor or where the surveyor does not receive the full cooperation of the insured, the insurer or the surveyor as the case may be, shall inform in writing the insured about the delay that may result in the assessment of the claim. The surveyor shall be subjected to the code of conduct laid down by the Authority while assessing the loss, and shall communicate his findings to the insurer within 30 days of his appointment with a copy of the report being furnished to the insured, if he so desires. Where, in special circumstances of the case, either due to its special and complicated nature, the surveyor shall under intimation to the insured, seek an extension 6 from the insurer for submission of his report. In no case shall a surveyor take more than six months from the date of his appointment to furnish his report.

Thus, the Surveyor has filed the report on 20.08.2012 beyond the time prescribed under the Regulation.

          15. With regard to the salvage, though the opposite parties have stated in their reply version that the Surveyor had assessed the salvage on building at Rs.2,03,029/-, the Surveyor in his cross examination as RW2 has stated that "I do not know about whether the claim has been made after adjusting or deducting or reducing the salvage value from the claim".

          16. Thus considering the overall discussions made above, we are of the view that proper assessment of damage was not made by the Surveyor and that the opposite parties have not properly assessed the damage caused to the complainants and paid the amount.  Therefore, the opposite parties are directed to assess the damage not on the basis that the complainants have undervalued the building, plant and machinery, but to arrive at a proper value of the damage and arrive at the proper amount for the damages caused to the building, plant and machineries and stocks of the complainant on the basis of value set out in the policy and settle the amounts within three months from the date of receipt of this order, failing which, the opposite parties are liable to pay interest at the rate of 12% per annum from the expiry of three months on such amount.

          17. Point No.4:

          On the 4^th point, whether there is any deficiency of service on the part of the opposite parties.

          We are of the view that in view of failure on the part of the opposite parties in assessing the damage caused to the complainant, undoubtedly, it is a deficiency on their part.  The opposite parties without assessing the damage properly as discussed above has paid a lesser amount to the complainant which definitely is a fault on the part of the opposite parties and that it is a deficiency of service which could have caused mental agony to the complainant.   

          18. On the 5^th point, whether the claim is entitled to interest and costs, We are of the view that even the claimants was not serious in asking for interest.  Though in the end of the complaint casually the complainants have asked for a direction to pay interest, they have not specified what is the rate of interest that they are seeking for.  Therefore, we are not awarding any interest to them.

          19. As regard the cost, though the claimant has claimed a sum of Rs.50,000/-, we are inclined to award a sum of Rs.20,000/- towards costs.  Thus the complaint is disposed of by

1. Directing the opposite parties to assess the value of damage caused to the complainant without taking into account that the complainant has undervalued the building, plant and machineries and stocks and also to consider the salvage amount in a proper manner and the amounts so arrived shall be paid within three months from the date of this order.
2. If the amount is not settled within three months, it shall carry interest of 12% per annum from the expiry of three months till the complainant paid completely.
3. Rs. 20,000/- towards cost of this proceedings.

Dated this the 8^th day of February 2018.

(Justice K. VENKATARAMAN)

PRESIDENT

(S. TIROUGNANASSAMBANDANE)

MEMBER

LIST OF COMPLAINANT'S WITNESSES:

CW1           11.02.2016           S. Aravinthan

LIST OF OPPOSITE PARTYS' WITNESSES:

RW1           13.10.2016           R. Kalpana,  Assistant Manager

RW2           23.02.2017           D. Venkattaraman, Surveyor

LIST OF COMPLAINANT'S EXHIBITS:

LIST OF OPPOSITE PARTYS'  EXHIBITS:

(Justice K. VENKATARAMAN)

PRESIDENT

(S. TIROUGNANASSAMBANDANE)

MEMBER