BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMRITSAR.

Consumer Complaint No.195 of 2012

Date of Institution: 27-03-2012

Date of Decision:29-06-2015  

M/s.Sawraj Overseas, carrying on its business at Village: Chattiwind, Tarn Taran Road, Amritsar through its partner S.Surinder Singh.

Complainant

Versus

Bajaj Allianz General Insurance Company Limited, through its Branch Manager, SCO-31, K.K.Tower, District Shopping Complex, Ranjit Avenue, Amritsar.

Opposite Party

Complaint under section 11 and 12 of the Consumer Protection Act, 1986 as amended upto date.

Present: For the Complainant : Ms.Neelam Khanna, Advocate

              For the Opposite Party: Sh. R.P.Singh, Advocate.

Quorum:

Sh.Bhupinder Singh, President,Ms.Kulwant Kaur Bajwa, Member

Mr.Anoop Sharma, Member  

Order dictated by:

Sh.Bhupinder Singh, President.

1. Present complaint has been filed by S.Surinder Singh, partner of the complainant firm  under the provisions of the Consumer Protection Act alleging therein that the complainant in order to insure the complainant concern for meeting any untoward emergency and loss occurring from fire, etc,. availed the services of the Opposite Party for a consideration and obtained policy namely Standard Fire and Special Perils Policy bearing No.0G-08-40001-00001874 valid for the period from 16.1.2008 to 15.1.2009 in which the machinery and plant installed in the complainant concern was covered and insured by the Opposite Party. Complainant alleges that on 31.12.2008 at about 7.00 a.m. i.e. within the period of subsistence of the policy in question, the dryer unit installed in the complainant concern caught fire and due to which 8 dryers and blower fans were damaged and the stocks in the dryer unit and above hodi were also damaged. The complainant concern suffered  huge loss and the fire brigade was called for controlling the fire. The policemen from P.S.Kot Mit Singh also came to the spot, but a considerable damage occurred till the fire brigade controlled the fire.  Intimation to the Opposite Party was also given. The complainant lodged the claim on 7.1.2009 regarding the loss suffered by it. After repeated requests, the Opposite Party appointed surveyor . Vide letter dated 13.3.2009, the surveyor desired certain documents viz-a-viz claim form duly filled in and signed, English version of copy of FIR, claim bill duly supported with purchase vouchers, copy of balance sheets for the last three years, copy of stock statements, fire brigade report alongwith its English version, trading account as on the date of loss, list of balance stocks alongwith its valuation and present replacement value of the machinery reported to have been damaged due to fire. The complainant concern vide letter dated 15.4.2009  satisfied the queries of surveyor as well as the Opposite Party and completed all the formalities for the approval of claim in question. At last, on 7.4.2010, the complainant received a letter from Opposite Party who arbitrarily and illegally without considering the reality and factual loss suffered  by the complainant, assessed the loss to the tune of Rs.67,900/- only. Whereas the complainant has suffered loss to the tune of Rs. 17,34,500/-, the details of which are given below:-

1. Replacement valve                                 Rs.16,00,000/-
2. Loss to stock in drier plant          Rs. 4,11,600/-
3. Loss to stocks due to water                   Rs. 1,02,900/-
4. Charges Labour                                     Rs.   20,000/-
5.  Less After sale drier plant           Rs. 4,00,000/-

Total                                                 Rs.17,34,500/-

Alleging the same to be deficiency in service, complaint was filed seeking directions to the opposite party to release the claim amount with interest. Compensation and litigation expenses were also demanded.

2. On notice, opposite party appeared and filed written version in which it was submitted that the  surveyor has assessed the loss to the tune of Rs.67,900/- and the complainant has challenged the said amount and to prove the same, evidence is required to be produced by the complainant. In this case, various letters dated 13.9.2009, 20.3.2009, 20.4.2009, 16.3.2009, 3.4.2009 and 10.4.2009 were issued to the complainant to provide the documents, but the complainant did not bother to provide the documents. Moreover, the complainant has not complied with the terms and conditions of the policy as in this case, the alleged occurrence is dated 31.12.2008 and as admitted by the complainant, the claim was lodged on 7.1.2009 after 7 days, whereas as per the terms and conditions of the policy, the complainant was required to intimate the loss immediately within 48 hours, therefore, the complainant has violated the terms and conditions of the policy and not entitled for any claim. It is submitted that after receiving the information regarding the loss, Sh.M.L.Mehta, Surveyor was appointed to assess the loss and after thorough investigation, an amount of Rs.1,02,900/- was allowed .After deducting the salvage and excess clause, claim  amount of Rs.67,900/- was passed by the Opposite Party and due intimation was given to the complainant vide letter dated 7.4.2010, but the complainant never  came forward to receive the same.  While denying and controverting other allegations, dismissal of complaint was prayed.
3. Complainant tendered into evidence his affidavit Ex.C1 alongwith documents Ex.C2 to Ex.C66 and closed the evidence on behalf of the complainant.
4. Opposite Party tendered into evidence affidavit of Sh. Suvir Vig, Branch Manager alongwith documents Ex.R1 to Ex.R26 and closed the evidence on behalf of the Opposite Party.
5. We have carefully gone through the pleadings of the parties; arguments advanced by the ld.counsel for the parties and have appreciated the evidence produced on record by both the parties with the valuable assistance of the ld.counsel for both the parties.
6. From the record i.e. pleadings of the parties and the evidence produced on record by the parties, it is clear that the complainant  obtained policy namely Standard Fire and Special Perils Policy bearing No.0G-08-40001-00001874 from the Opposite Party for the period from 16.1.2008 to 15.1.2009 in which stocks, machinery and plant installed in the complainant concern was covered/ insured by the Opposite Party. On 31.12.2008 at about 7.00a.m., the dryer unit installed in the complainant concern caught fire, due to which 8 dryers and blower fans were damaged and the stocks in the dryer unit and above hodi were also damaged. The complainant concern suffered  huge loss and the fire brigade was called for controlling the fire. The police of P.S.Kot Mit Singh was also informed.  However, a considerable damage occurred till the fire brigade controlled the fire.  Intimation to the Opposite Party was also given immediately. The complainant lodged the claim on 7.1.2009 regarding the loss suffered by the complainant concern, but no action was taken by the Opposite Party till March, 2009. Later on surveyor was appointed by the Opposite Party to assess the loss and to submit report. Surveyor vide letter dated 13.3.2009 desired certain documents viz-a-viz claim form duly filled in and signed, English version of copy of FIR, claim bill duly supported with purchase vouchers, copy of balance sheets for the last three years, copy of stock statements, fire brigade report alongwith its English version, trading account as on the date of loss, list of balance stock alongwith its valuation, etc. etc. The complainant concern vide letter dated 15.4.2009  submitted all the relevant documents and satisfied the queries of surveyor as well as of the Opposite Party and completed all the formalities, but the Opposite Party did not settle the claim of the complainant despite  so many letters written by the complainant to the Opposite Party. However, vide letter dated 7.4.2010, the Opposite Party arbitrarily assessed the loss to the tune of Rs.67,900/- only on the basis  of surveyor report. The complainant submitted that Opposite Party has wrongly disallowed the claim of the complainant regarding damage to  drier plant on the ground that no repair/ replacement had been done to damage plant and no repair and replacement bill was provided by the complainant to the surveyor. Damage to paddy stock in drier plant is also not considered on the ground that loss occurred to the property while going heating/ drying process falls under exclusions as per terms and conditions of the policy. The surveyor has allowed the amount of Rs.1,02,900/- claimed for damaged paddy stock lying near their drier plant. As such, total assessment comes to Rs.1,02,900/- less salvage for wet stock Rs.25,000/-  and less excess clause Rs.10,000/- and total amount payable was assessed at Rs.67,900/- only, by the surveyor in his report Ex.R-18. The complainant submitted that he suffered loss to the tune of Rs.17,34,500/-, but the Opposite Party has assessed the loss to the tune of Rs.67,900/- only.    Ld.counsel for the   complainant  submitted that all this amounts to deficiency of service on the part of the opposite party.
7. Whereas the case of the opposite party is that the surveyor in the present case has assessed the loss to the tune of Rs.67,900/-. The complainant was served with various letters  13.9.2009 (Ex.R24), 20.4.2009 (Ex.R19), 16.3.2009 (Ex.R25), 3.4.2009 (Ex.R22) and 10.4.2009 Ex.R20)  to provide the documents, but the complainant did not bother to provide the required documents. As such, the complainant has not complied with the terms and conditions of the policy.  Moreover, the  alleged occurrence took place on 31.12.2008 at about 7 a.m. as alleged by the complainant in his complaint whereas the Opposite Party was intimated on 7.1.2009 after  7 days. As per the terms and conditions of the policy, the complainant was required to intimate the loss immediately within 48 hours, therefore, the complainant has violated the terms and conditions of the policy, as such, he is not entitled to any claim. Opposite Party submitted that the complainant concern is duly established firm and doing the commercial activities. Therefore, it does not fall in the definition of ‘consumer’.  It is further submitted that after receiving the information regarding the loss, Opposite Party appointed surveyor  Sh.M.L.Mehta & Co.  to assess the loss and after thorough investigation, he assessed the loss to the tune of Rs.1,02,900/-  and after deducting the salvage and excess clause an amount of Rs.67,900/- was passed by the Opposite Party and due intimation was given to the complainant vide letter dated 7.4.2010, but the complainant never  came forward to receive the same. Complainant even did not cooperate with the surveyor and did not provide the documents required by the surveyor, inspite of various letters issued by the surveyor/ Opposite Party to the complainant, therefore, the complainant concern is willful neglector. Even the complainant did not  bother to provide the relevant documents to the Opposite Party/ surveyor. The claim was delayed only due to the conduct of the complainant as he never cooperated with the Opposite Party as well as surveyor and he did not furnish the required documents despite various letters issued by the Opposite Party/ surveyor to the complainant. The surveyor in its report Ex.R18 considered in detail all the articles of loss and assessed the loss to the tune of Rs.1,02.900/- and after deducting the   salvage and excess clause an amount of Rs.67,900/- was passed by the Opposite Party.  Ld.counsel for the opposite party submitted that there is no deficiency of service on the part of the opposite party towards the complainant.
8. From the entire above discussion, it stands fully proved on record that complainant obtained policy named Standard Fire and Special Perils Policy bearing No. OG-08-40001-000-1874 from opposite party for the period from 16.1.2008 to 15.1.2009 vide which stocks, machinery and plant installed in the complainant concern were covered/insured by the opposite party. On 31.12.2008 at about 7.00 a.m. fire took place in the premises of the complainant firm. The complainant alleges that as a result of this fire 8 dryers and blower fans were damaged and the stocks in the dryer unit and hodi were also damaged. Police of P.S.Kot Mit Singh was informed immediately. Resultantly DDR No. 18 at P.S. Kot Mit Singh Ex.C-23 was recorded. The complainant alleges that  he suffered huge loss , fire brigade was called and considerable damage had already occurred till the fire brigade controlled the fire. Intimation to the opposite party was also given. The complainant lodged claim with the opposite party on 7.1.2009 regarding the loss suffered by the complainant concern. The opposite party appointed surveyor M.L. Mehta & Co, who assessed the loss and submitted his report Ex.R-18 .
9. As per the pleadings of the complainant concern  i.e. para 12 of the complaint, the complainant lodged the following claim with the opposite party:-

1. Replacement valve    (damage to machinery) Rs. 16,00,000/-
2. Loss to stocks in drier plant                            Rs. 4,11,600/-
3. Loss to stocks due to water                             Rs. 1,02,900/-
4. Labour charges                                                Rs.  20,000/-

Total                                                      Rs.21,34,500/- minus

After sale drier plant                              Rs. 4,00,000/-

In all                                                       Rs.17,34,500/-

The surveyor considered all the documents submitted by the complainant including stocks statement verified by their banker Punjab & Sind Bank which are Ex.C-2 to C-12, Ex.C-16 to C-19 as well as other documents produced by the complainant to the opposite party including documents relating to policy and the correspondence between complainant and the opposite party Ex.C-20 to C-38 and Ex.C-39 to C-64 and copy of stock godown statement from the banker Punjab & Sind Bank Ex.C-66. The surveyor M/s. M.L.Mehta & Company vide their report Ex.R-18 submitted that the damage to the machinery has been claimed by the complainant to the tune of Rs. 16 lacs, however, the insured vide letter dated 7.1.2009 has claimed only Rs. 6 lacs being repair charges. But the complainant himself has admitted that he neither got the drier plant/ machinery repaired nor replaced the same rather the same has been continuing working satisfactorily for the last more than two years after the incident of fire. So the surveyor submitted that the claim of Rs. 6 lacs by the complainant being repair charges only on the ground that they would get the machinery repaired , is not tenable because the opposite party insurer has to cover  the loss suffered by the insured i.e. amount spent by the insured on the repair of the plant/machinery or on the replacement of the plant/machinery. But in the present case this fact has been admitted by the complainant himself vide their letter dated 5.10.2009 Ex.R-13 that “as regards the machinery damaged  in fire , we have  not so far got the same repaired/replaced as this would have disturbed our whole business”. So it stands fully proved on record that the complainant neither got the machinery which was allegedly damaged, repaired nor got the same replaced. As such the opposite party was justified  in not accepting this claim of the complainant that he may be  given Rs. 6 lacs instead of Rs. 16 lacs for the damage caused to the drier plant/machinery.

9.     The second point was regarding the loss to the stocks of paddy stock in drier plant amounting to Rs. 4,11,600/- as claimed by the complainant i.e. the loss occurred to the property  while going direct heating/drying process. This stock falls under exclusion clause as per terms and conditions/exclusions of the standard fire and special perils policy. So this amount is also not payable to the complainant.

10.   As regards  the partial/substantial loss to the stocks in the factory premises due to water while the fire was being controlled, amounting to Rs. 1,02,900/-, this stock was near drier plant  in the processing block and damage was caused due to water. This claim of the complainant was  accepted  by the surveyor in his report Ex.R-18.

11.     As regards claim of labour charges amounting to Rs. 20000/-, the complainant could not produce any oral or documentary evidence as to how much amount he had spent on labour and what type of labour he had engaged.  Nor the complainant could produce any bill in this regard.  Resultantly the surveyor assessed the loss to the tune of Rs.1,02,990/- less salvage for wet stocks Rs. 25000/- less excess clause Rs. 10000/- and he assessed the total amount payable to the complainant Rs. 67,900/- and opposite party had written letter to the complainant that the opposite party is ready to pay this amount to the complainant. The surveyor has considered all the documentary as well as  other evidence produced by the complainant.  The  complainant has failed to prove on record any defect or deficiency in the surveyor report Ex.R-18. It has been held by the Hon’ble  National Commission in case Oriental Insurance Co. Ltd. Vs. B. Ramareddy II(2006) CPJ 339 (NC) that surveyor's report is an important piece of evidence. Compensation can be awarded only on the basis of surveyor's report. It has also been held by the Hon'ble Gujarat State Commission in case United India Insurance Co.Ltd and another Vs. Hotel White Rose 2004(3) CLT 494 that surveyor assessment was wrong, burden to prove is on the consumer to establish by producing evidence that what has been left out by the opponents and what has been not correctly and properly assessed by the opponents.

12.     Resultantly we hold that complainant failed to prove on record any deficiency of service on the part of the opposite party qua the complainant. Hence, the complaint is without merit and the same is hereby dismissed with no order as to costs. Copies of the order be furnished to the parties free of cost. File is ordered to be consigned to the record room. Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Forum.

Dated: 29.06.2015.                                                   (Bhupinder Singh)                                                                                               President

                                                (Anoop Sharma)     (Kulwant Kaur Bajwa)

                                                          Member                         Member