BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.

            Dated this the 27^th day of April 2017

                                                                                                Filed on: 26.11.2013

PRESENT:

Shri. Cherian K. Kuriakose                                                  President

Shri. Sheen Jose,                                                                 Member.

Smt. Beena Kumari V.K.                                                      Member.

                        C.C.No.814/2013

                              Between  

                                                         O R D E R

Smt. Beena Kumari V.K., Member

A brief statement of facts of this complaint is as stated below:

The complainant, the proprietor of Shreya Oil Extractions, has filed this case against the opposite party – Insurance Companies who are insurers of the plant, machinery and stock of the above said unit.  The 1^st opposite party – Bajaj Allianz General Insurance Co. Ltd. had insured the stock of  copra for Rs.27,00,000/- and the 2^nd opposite party- United India Insurance Co. Ltd. had insured the plant and machinery for Rs.53,00,000/- and the stock of copra for Rs.20,00,000/-.  The case of the complainant is that 13 tonnes of copra and the Drier got damaged in a fire accident that occurred on 29.03.2012 at 12.30 hrs.  The unit was kept closed for 7 days since there was a police enquiry in the matter.  The complainant contended that the 1^st opposite party arbitrarily arrived at Rs.66,345/- as the loss of copra occurred to the complainant and paid the said sum by crediting the account of the Unit on 07.06.2012 and the 2^nd opposite party also arbitrarily arrived at the amount of Rs.144,444/- as loss of copra which was credited to the account of the unit.  Thus, a total amount of Rs.2,10,789/- was paid by both the opposite party – Insurance Companies as against a total claim of Rs.14,90,000/-.  Aggrieved by the above decision taken by the opposite parties, this complaint is filed by the complainant seeking directions of this Forum to the opposite party –Insurance Companies to pay the balance amount of Rs.12,79,201/- to the complainant.

2) Version of the 1^st opposite party – Bajaj Allianz General Insurance Co. Ltd.

        In response to the notice received from this Forum, the 1^st opposite party filed their version and it is submitted by the 1^st opposite party that the insurance claim was duly considered and the admissible amount of Rs.66,388/- was allowed and credited to the account of the complainant maintained at Canara Bank, Thoppumpady branch.  It is contended that this complaint related to quantum dispute hence not maintainable before this Forum as held by the Hon’ble National Commission in 2003 CCJ 1389.  It is also contended that the complainant failed to demonstrate any deficiency in service on the party of the 1^st opposite party and this complaint is filed only to take undue and unlawful gain from the 1^st opposite party – Insurance Co., that a detailed survey conducted by the licensed surveyor, who is a Civil Engineer, revealed that there were two drying chambers having a size of 2m x 1.85m x1m and the volume of the drying chamber is about 3.7 m³.   The 1^st drying chamber was mostly affected by the fire occurred on 29.03.2012.  The inspection by the surveyor who was appointed by the 1^st Insurance Company, revealed some ashes under the grill of the 1^st drying chamber. The total damage of copra was arrived at, by Volumetric Assessment, 7454 KGs out of which 3879 KGs of burnt copra was from the 2^nd drying chamber and the remaining 3579 of copra was from the last drying session which was kept in front of the drying chamber.  The surveyor found that the stock of copra was ‘under insured’ for the stock value of Rs.27,00,000/-.  The 2^nd opposite party – United India Insurance Company had also insured the stock of copra for Rs.20,00,000/- and the plant and machinery for Rs.53,00,000/.  Thus, the stock of copra was insured for a total amount of Rs.47,00,000/- and the value of stock held by the complainant was Rs.49,31,360/- and by applying the prorate calculation and after considering all relevant facts and the survey report, the net amount payable by the 1^st opposite party – Insurance Company was arrived at Rs.66,388/- in accordance with the policy terms and conditions and the said amount was duly credited in the account of the complainant and the complainant has no case that the said amount was accepted under undue influence or coercion by the 1^st opposite party, that there is no specific plea that the complainant had accepted the above amount under protest.  The conduct of the complainant, after receiving the settlement amount, proves that he had accepted the above said amount without protest or objection.  After receiving the amount the complainant was silent for a long period of 1½ years and this complaint has been filed by the complainant on an experimental basis and with malafide and fraudulent intention to extract public money from the opposite parties and the balance claim of Rs.12,79,212/- in this complaint is without any concrete evidence and is filed on an experimental basis and the averment of the complainant that 13 tonnes of copra was damaged due to fire and fungal attack is specifically denied by the 1^st opposite party – Insurance Company.  The pleading of the complainant that he had sustained a total loss of Rs.14,90,000/- is also not correct in the absence of any supporting concrete evidence or records.  The 1^st opposite party – Insurance Company therefore sought for the dismissal of the complaint with costs.

3)     Version of the 2^nd opposite party

        The 2^nd opposite party – United India Insurance Co. submitted that this complaint is not maintainable for want of any cause of action and the 2^nd opposite party made a payment of Rs.144,444/- to the complainant as admitted by him in paragraph 10 of the complaint and the prayer in this complaint is for the balance claim amount hence it relates to quantum dispute which is not entertainable by this Forum, as held by the Hon’ble National Commission in the case reported in 2003 CCJ 1389.   The complainant after receiving the above amount remained silent for 1½ years and thereafter filed this complaint on an experimental basis, that too after 1½ years of silence to extract money from the 2^nd opposite party and to take undue advantage from the contract of insurance.  The settlement of claim was arrived at after getting the survey report from an independent licensed insurance surveyor and also in accordance with the terms and conditions of the insurance policy.  The pleading of the complainant that 13 tonnes of copra was damaged due to fungus attack and the complainant is holding two policies from two different insurance companies and the liability of the 2^nd opposite party – Insurance Company is subject to contribution clause as specified in the policy and the balance claim of Rs.12,79,212/- put forward by the complainant is without any concrete evidence.  The 2^nd opposite party had arrived at the settlement amount after consulting all the facts with the complainant and after considering all facts and circumstances of the case and after proper application of mind with regard to the policy terms and conditions.  It is submitted that there is no deficiency in service on the part of the 2^nd opposite party –Insurance Company and the 2^nd opposite party sought for the dismissal of the complaint with costs.

4)     The following issues came up for consideration of this Forum:

(i).  Whether this complaint is maintainable before this Forum?

(ii). Whether the complainant has proved deficiency in service on the    part of the opposite party – Insurance Companies?

(iii). Whether the opposite party – Insurance Companies are jointly liable   to pay the balance disallowed claim amount of Rs.12,79,219/- along with costs?

5)      The evidence in this case consisted of the oral evidence adduced by the complainant as PW1 and the documentary evidences marked as Exbt. A1 to A4, A5 series, Exbt. A6 to A8 on the side of the complainant.  The opposite party adduced oral evidence through their witness DW1 and the documentary evidences furnished by the opposite parties were marked as Exbt. B1 to B4.

6)      The Counsel for the complainant and the Counsel for both insurance companies were heard on 11.04.2017.

7)      Issue No. (i)

          The complainant Sri.Antony Frederic Baiju is the proprietor of the M/s.Shreya Oil Extractions, an SSI unit having SSI Registration No.32081102445.  The stock of copra, plant and machineries of the unit were insured with the opposite party – Insurance companies.  The 1^st opposite party Bajaj Allianz General Insurance Company had insured stock of Copra under the policy No. OG-12-1602 4001-0000 1259 dated 27.06.2011 for Rs.27,00,000/- and the policy period was from 23.06.2011 to 22.06.2012.  The 2^nd opposite party – United India Insurance Company had insured stock of copra under the policy No.100201/11/11/0000 1102 dated 20.03.2013 for Rs. 20,00,000/- and the plant and machineries are also insured under the above policy for Rs.53,00,000/-.  The policy period was from 26.03.2012 to 19.03.2013.  The fire accident in the drying chamber of the unit had occurred during the policy period ie., on 29.03.2012 at 12.30 hours.  The drying chamber of the complainant’s oil extraction unit was the adjoining room to the pulverizing mill unit.  Fire wood was used as fuel in the drying chamber and the complainant contended that 13 tonnes of copra valued Rs.9,00,000/- were lost in the fire accident that occurred on 29.03.2012 and the damages occurred to the machineries amounted to Rs.5,90,000/-. It is contended that the total loss suffered by the complainant amounted to Rs.14,90,000/-.  The complainant submitted a claim of Rs.14,90,000/- and the claim amount allowed by the 1^st 2^nd opposite party was for Rs.210,832/- towards loss of copra ie., the 1^st opposite party allowed Rs.66,388/- and the 2^nd opposite party allowed Rs.144,444/- towards loss of copra.  Aggrieved by the claim amount allowed by the opposite party – Insurance Companies, the complainant filed this complaint.  The complainant contended that the claim amount settled by the opposite parties is arbitrary.  The opposite parties on the other hand contended that the complaint related to quantum dispute hence not maintainable before this Forum.  The complainant argued that the complaint is maintainable in view of the decision of the Hon’ble Supreme Court in National Insurance Co. Ltd. Vs. Sehtia  shoes (2008) 5 SCC 400).  In the above case, it was held that “mere execution of discharge voucher and acceptance of insurance claim would not estop the insured from making further claim from the insurer.  In the instant case, the admissible claim amounts were credited to the account of the complainant -insured according to both the opposite party – Insurance companies.  But the complainant – Insured was aggrieved by the claim amount settled by the opposite party- Insurance Companies since the settlement of the claim was not on account of free will.  Hence he filed this complaint seeking orders of this Forum directing the opposite parties to allow the disallowed portion of the claim amount of Rs.12,79,211/-.  Following the decision of the Hon’ble Supreme Court in the above mentioned case, we hold that this complaint filed by the complainant is maintainable, since mere execution of discharge voucher and acceptance of the claim would not estop the complainant –insured from making further claim from the insurer.  Thus the 1^st issue is decided in favour of the complainant and this complaint is found maintainable before this Forum.

8)      Issue No. (ii)

          The case of the complainant is that the allowable claim amount of Rs.210,832/- arrived at by both the opposite party – Insurance Companies towards loss of copra in the fire accident was incorrect and arbitrary.  The complainant contended that he had lost 13 tons of copra valued Rs.900,000/- in the fire accident occurred on 29.03.2012.  Thus the total claim amount in respect of copra loss and machinery loss worked out to Rs.14,90,000/- (Rs.900,000/- + 590,000/-).  The admissible claim amounts arrived at by the opposite party – insurance companies in respect of copra loss are as stated below:

The above amounts were arrived at on the basis of the loss assessed by the Insurance Surveyor and in accordance with the terms and conditions of the policies.  The Hon’ble Supreme Court in the case of New India Insurance Co. Ltd. Vs. Pradeep Kumar reported in 2009 (3) KLT suppl. (SC), held that the surveyors report is not the last and final word. Therefore, the other evidences furnished by the complainant – Insured are also taken into consideration by this Forum.  His contentions are also considered.  In the Exbt. A1 Claim Form lodged before the 1^st opposite party –Bajaj Allianz General Insurance Co. Ltd., the complainant stated that he had lost 13 tonnes of copra valued Rs.900,000/- in the fire accident, that the intimation about the fire was conveyed to the Fire brigade at 12.49 hours ie., after 20 minutes of the fire accident, that the Fire brigade arrived the spot after 20 minutes.  The fire occurred in the drying chamber was 1^st seen by the workers and customers who were present in the adjoining pulverizing mill room at 12.30 hours on 29.03.2012 and the fire force  arrived at the site at 13.10 hours and the fire was put off at 14.20 hours.  The Insurance – Surveyor and assessor Sri.G.B.Manoj in his Exbt. B1 Commission Report (CR) dated 14.05.2015 stated that there was no damage to the building, GI Sheet roofing and steel structure which indicates that no big fire had occurred.  There was also no soot marks found in the drying chamber which is adjacent to the pulverizing mill room.  Hot air is blown into the drying chamber from the fire wood furnace situated outside, with the help of a fan and the spark of fire that occurred from the furnace had caused the fire.  The insurance surveyor visited the business place of the complainant on the very same day of occurrence of the fire at 3^o clock on 29.03.2012.    He weighed burnt copra and water affected copra including ashes in the 1^st Drier on the next day ie on 30.03.2012 and on a volumetric analysis, after giving due consideration of loss of oil, the total quantity of copra available was assessed at 7454 KGs, out of the above, 3579 KGs of burnt copra was from the 1^st drier. It was valued at the rate of Rs.46/per KG ie at Rs.1,64,634/-.  The copra in the 1^st drier alone was affected by the fire on 29.03.2012.  After deducting salvage under insurance etc the value of burnt copra or copra loss was assessed at Rs.76,423/- as stated in the Exbt. B1 Survey Report at page 4.  In furtherance of the Exbt B1report dated 14.05.2012, an addendum report dated 19.11.2012 was furnished by the surveyor vide Exbt. B2.  During cross examination of the surveyor as DW1, it was revealed that the 2^nd report was issued by him after the repair of Blower and ducts of the drier. The loss occurred to the Drier was arrived at Rs.81,689/- after deducting the depreciation of an amount Rs.48,586/- from the value of the 6 year old Drier and the value of scarp (1980 KGs) at Rs.31,680/-.  The total loss was thus assessed at Rs.161,955/-.  The main issue raised by the complainant is that he lost 13 tons of copra valued Rs.9,00,000/- in the fire that occurred on 29.03.2012, out of which 3 tons of copra were completely damaged by the fire  and 9 tonnes of copra were partially damaged.  It is further submitted that the complainant was holding copra and finished products valued Rs.54,77,774/- on the said date,  The above of stock of copra and finished goods were not supported by the stock register certified by the concerned bank as deposed by the complainant as PW1.  Further the relevant purchase bills of copra was also were not produced.  The purchase and sales details for the month March 2012 furnished vide Exbt.A3 is not a certified document.  No seal or name of the Charted Accountant who prepared the Exbt. A3 purchase sales details, is shown in the said document.  The returns filed either before the commercial Department or to the IT Department were not produced before this Forum to establish that the complainant was holding a total stock valued Rs.54,77,774/- on the day of fire accident.  The attested order copy for the year 2011-12 issued by the commercial Taxes Department is not produced by the complainant to prove that he was holding such huge stock as on 29.03.2012.  Further from the closing stock statement as on 31.03.2012 certified by the chartered Accountants GSPU & Associates it is stated that the figures are taken from accounts.  No such accounts were present at the business present at the business place when the surveyor visited the business place on 29.03.2012.  Therefore the above stock statement is found not reliable or acceptable also.  Further the fire broke out at 12.30 pm on 29.03.2012 and the fire was put off by 14.20 hrs.  The duration of fire was too short for the damage of 13 tonnes of copra. There was also no damage to the external part of the 1^st drier.   Thus we find that the evidences furnished by the complainant are not sufficient to prove that such huge quantity of copra was damaged in the fire accident that took place on 29.03.2012.  Thus the survey report in Exbt. B1 and B2 is the only reliable and concrete evidence to show the actual loss of copra and we find that the contention of the complainant that 13 tonnes of copra was lost in fire accident is not conclusively proved by the complainant by reliable evidences.  Thus the issue No. (ii) is decided against the complainant.

9)      Issue No. (iii)

          Having found the issue No. (ii) against the complainant, we are not inclined to consider and decide issue No. (iii).

10)    In the result, the complaint is found liable to be dismissed.  Hence dismissed with no costs.         

Pronounced in the open Forum on this the 27^th day of April 2017.

Sd/-Beena Kumari V.K., Member

Sd/-Cherian K. Kuriakose, President

Sd/-Sheen Jose, Member

                                                              Forwarded by order

                                                             Senior Superintendent

Date of Despatch

                   By Hand    :

                   By Post      :

                                    APPENDIX

Complainant’s Exhibits:

Opposite party’s Exhibits:

Depositions: 

PW1 ::        Antony Frederic Baiju

                  DW1: G.B. Manoj             

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