BEFORE THE DISTRICT CONSUMER DISPTUES REDRESSAL FORUM, KAITHAL.
Complaint no.251/A/15.
Date of instt.: 16.10.2015.
Date of Decision: 15.03.2017.
- Subhash Sharma son of Sh. Jagdish Lal, Raj Pal son of Sh. Rameshwar Dayal, resident of FAtehpur, Tehsil Pundri, Distt. Kaithal.
- Raj Pal son of Sh. Rameshwar Dayal, resident of Fatehpur, Tehsil Pundri, Distt. Kaithal.
Both partners of M/s. Royal Farm House Fatehpur Pundri.
……….Complainants.
Versus
- Bajaj Allianz General Insurance Company Ltd., GE Plaza, Airport Road, Yerwada Pune-411006 (India).
- Bajaj Allianz General Insurance Company Ltd., 167/18-C, IInd floor, Hazara Singh building near Ambala Club near Vijay Rattan Chowk, Ambala Cantt. through its Manager.
- Paramjit S/o Hariom (RM of Bajaj Allianz at Kaithal), resident of Devigarh Road, Subhash Nagar Kaithal, C/o 167/18-C, IInd Floor, Hazara Singh building near Ambala Club, near Vijay Rattan Chowk, Ambala Cantt.
- Branch Manager, Sarva Haryana Gramin, Bank at Pundri.
..……..Opposite Parties.
COMPLAINT UNDER SEC. 12 OF CONSUMER PROTECTION ACT, 1986.
Before: Sh. Jagmal Singh, President.
Sh. Rajbir Singh, Member.
Smt. Harisha Mehta, Member.
Present : Sh. Subhash Chugh, Advocate for complainants.
Sh. C.L.Uppal, Advocate for the Ops No.1 to 3.
Sh. Dinesh Dhull, Adv. for Op No.4.
ORDER
(JAGMAL SINGH, PRESIDENT).
The complainants have filed the present complaint under Section 12 of Consumer Protection Act, 1986, with the averments that the complainants established a project of poly house known as M/s. Royal Farm House in Khewat No.79, khatoni No.94, killa No.11/1, 11/3, rect. No.21, killa No.6, 15/1 and khewat No.336, khatoni No.435, rect.No.21, killa No.7, 8, 9, 10/1, 11/2, 12, 13, 14 as per jamabandi for the year 2010-11 and mutation No.10799 of village Fatehpur, Tehsil Pundri, Distt. Kaithal. It is further alleged that the complainants are running the poly house business in partnership in the name of M/s. Royal Farm House. It is further alleged that the poly house was built up with the help of finance of Rs.33,60,000/- from Sarva Haryana Gramin Bank Pundri and remaining amount was borne by the complainants. It is further alleged that the poly house was built up by the Poly Hub Teck Private Ltd., booth No.62, Scheme No.6, Gandhi Nagar, Jind and the same was insured with the Ops vide policy No.OG-15-1207-00001637 valid w.e.f. 28.03.2015 to 27.03.2016. It is further alleged that on 13.06.2015, the poly house of complainant was damaged due to storm and the complainant suffered a huge loss to the tune of Rs.4,00,000/- and “khira” which cropped in the poly house was also damaged and this loss was of Rs.4,00,000/-. It is further alleged that the Ops were informed about the same and the insurance company got surveyed the damage through Sh. Ajay Mahajan, Charted Engineer Technical Surveyor, who assessed the loss of the poly house to the tune of Rs.1,44,130.73 paise. It is further alleged that the claim was lodged with the Ops but the Ops repudiated the claim on the ground that the amount for the complainant’s policy is below 10% of the claim amount of the policy. It is further alleged that the complainants suffered a loss of Rs.8,00,000/- i.e. Rs.4,00,000/- in the shape of damage of poly house and Rs.4,00,000/- in the crop of “khira”. It is further alleged that the complainants got a report of the damage caused to the poly house from Poly Hub Agro Tech Private Limited, who assessed the loss to the poly house to the tune of Rs.2,92,261.45 paise, which is also very low as the actual loss has been Rs.4,00,000/- to the poly house. This way, the Ops are deficient in service. Hence, this complaint is filed.
2. Upon notice, the opposite parties appeared before this forum. Ops No.1 & 2 filed their joint reply, whereas Op No.4 filed the separate reply. Ld. Counsel for the Ops No.1 to 3 made statement on 06.05.2016 to the effect that the reply filed on behalf of Ops No.1 & 2 may also be read as reply on behalf of Op No.3. Ops No.1 & 2 filed reply raising preliminary objections with regard to maintainability; cause of action; locus-standi; that the poly house was insured by Ops No.1 & 2 from 28.03.2015 to 27.03.2016, subject to terms and conditions of the policy; that the poly house was built up for commercial purpose, hence, the complainants are not the consumers. It is further stated that the claim has been filed by the complainants for Rs.2,92,261.45 paise only, therefore, the contention of complainants that they had suffered loss to the tune of Rs.4,00,000/- is totally wrong and false. It is further stated that that after the information received from the complainants, the Ops No.1 & 2 have deputed IRDA, Licenced Surveyor to assess the loss and the surveyor assessed the loss to the tune of Rs.1,44,130.73 paise after detailed inspection as per policy terms and conditions. It is further stated that the said IRDA, Licenced Surveyor has recommended as “No claim” as the loss falls below the excess clause because the excess clause of the policy provides that “10% of claim minimum of 10% of structure sum insured for STFI perils” and due to this clause, the claim was not admissible and the same has been rightly repudiated. It is further stated that the crop of “khira” was not insured with the Ops concerned, therefore, the Ops No.1 & 2 are not liable for the loss, if any, caused to the “khira”, however, the complainants had not proved any loss on the file regarding the crop of “khira”. There is no deficiency in service on the part of answering Ops. On merits, the contents of complaint are denied and so, prayed for dismissal of complaint.
4. Op No.4 filed reply raising preliminary objections with regard to maintainability; cause of action; locus-standi; that the complainants have taken loan from Op No.4 for the establishment of project of poly house at Village Fatehpur, Tehsil Pundri, Distt. Kaithal and the Op No.4 has disbursed the loan amount to the complainants for the said purpose, therefore, the present complaint is not maintainable against the Op No.4; that the Op No.4 has nothing to do with the loss of complainants.
5. In support of their case, the complainants tendered in evidence affidavit Ex.CW1/A and documents Ex.C1 to Ex.C8 and Annexure-CA to Annexure-CF and closed evidence on 27.01.2017. On the other hand, the Ops tendered in evidence affidavit Ex.RW1/A and documents Ex.R1 to Ex.R5 and closed evidence on 14.03.2017. The Op No.4 did not produce any evidence despite availing several opportunities including last opportunity, so, the evidence of Op No.4 was closed vide court order dt. 14.03.2017.
6. We have heard ld. counsel for both the parties and perused the case file carefully and minutely and have also gone through the evidence led by the parties.
7. Ld. Counsel for the complainants reiterated all the points mentioned in the complaint. He argued that the complainants established a project of poly house known as M/s. Royal Farm House in Khewat No.79, khatoni No.94, killa No.11/1, 11/3, rect. No.21, killa No.6, 15/1 and khewat No.336, khatoni No.435, rect.No.21, killa No.7, 8, 9, 10/1, 11/2, 12, 13, 14 as per jamabandi for the year 2010-11 and mutation No.10799 of village Fatehpur, Tehsil Pundri, Distt. Kaithal. He further argued that both the complainants are running the poly house business in partnership in the name of M/s. Royal Farm House. He further argued that the poly house was built up with the help of finance of Rs.33,60,000/- from Sarva Haryana Gramin Bank Pundri and remaining amount was borne by the complainants. He further argued that the poly house was built up by the Poly Hub Tech Private Ltd., booth No.62, Scheme No.6, Gandhi Nagar, Jind and the same was insured with the Ops vide policy No.OG-15-1207-00001637 valid w.e.f. 28.03.2015 to 27.03.2016. He further argued that on 13.06.2015, the poly house of complainants was damaged due to storm and the complainants suffered a huge loss to the tune of Rs.4,00,000/- and further loss of Rs.4,00,000/- was suffered as “khira” crop was also damaged. He further argued that the Ops were informed about the same and the insurance company got surveyed the damage through Sh. Ajay Mahajan, Charted Engineer Technical Surveyor, who assessed the loss of the poly house to the tune of Rs.1,44,130.73 paise. He further argued that the Ops No.1 & 2 repudiated the claim on the ground that the amount for the complainants policy is below 10% of the claim amount of the policy excess of Rs.3,36,600/-. He further argued that the report of surveyor is totally false, frivolous, arbitrary because the complainants suffered a total loss of Rs.8,00,000/- i.e. Rs.4,00,000/- in the shape of damage to poly house and Rs.4,00,000/- damaged to the crop of “khira”. He further argued that the complainants got a report of the damage caused to the poly house from Poly Hub Agro Tech Private Limited, who assessed the loss to the poly house to the tune of Rs.2,92,261.45 paise, which is also very low as the actual loss has been Rs.4,00,000/- to the poly house only. He further argued that the insurance was made through Sarva Gramin Bank, Pundri. He further argued that the Ops No.1 & 2 have allowed another claim of Subhash Sharma, complainant No.1 for Rs.36,275/-, which is much less than the excess clause of Rs.3,36,600/- as is clear from the letter, Ex.C8, so, the Ops No.1 & 2 have wrongly repudiated the claim of complainants. On the other hand, ld. Counsel for Ops No.1 to 3 argued that the poly house was insured by Ops No.1 & 2 from 28.03.2015 to 27.03.2016, subject to terms and conditions of the policy. He further argued that the claim has been filed by the complainants for Rs.2,92,261.45 paise only, therefore, the contention of complainants that they had suffered loss to the tune of Rs.4,00,000/- is totally wrong and false. He further argued that after the information received from the complainants, the Ops No.1 & 2 have deputed IRDA, Licenced Surveyor to assess the loss and the surveyor assessed the loss to the tune of Rs.1,44,130.73 paise after detailed inspection as per policy terms and conditions. He further argued that the said IRDA, Licenced Surveyor has recommended as “No claim” as the loss falls below the excess clause because the excess clause of the policy provides that “10% of claim minimum of 10% of structure sum insured for STFI perils” and due to this clause, the claim was not admissible and the same has been rightly repudiated. He further argued that the complainants have failed to prove on the file that they had suffered loss to the tune of Rs.4,00,000/- due to damage to the poly house. He further argued that the crop of “khira” was not insured with the Ops concerned, therefore, the Ops No.1 & 2 are not liable for the loss, if any, caused to the “khira”, however, the complainants had not proved any loss on the file regarding the crop of “khira”. Ld. Counsel for Ops No.1 to 3 submitted an authority cited in III(2008) CPJ page 158 (NC) titled as Pradeep Kumar Sharma Vs. National Insurance Company. Ld. Counsel for Op No.4 argued that the Op No.4 has nothing to do with the loss of complainants as the complainants have taken loan and the same was disbursed to the complainants.
8. From the pleadings and evidence of the parties, there is no dispute that the complainants had established a project of poly house under the name of M/s. Royal Farm House with the help of finance of Rs.33,60,000/- from Sarva Haryana Gramin Bank, Pundri. It is admitted case of the parties that the said poly house was insured with the Ops No.1 & 2 valid from 28.03.2015 to 27.03.2016 vide policy No.OG-15-1207-00001637 and the said poly house suffered damage due to storm. It is also admitted that Sh. Sanjay Mahajan, Charted Engineer was appointed as surveyor and the surveyor assessed the loss to the tune of Rs.1,44,130.73 paise vide his report, Ex.R3. The dispute between the parties is that according to complainants, the damage suffered to the poly house was Rs.4,00,000/- but the surveyor has assessed the loss much less to the actual loss. The complainants have placed on the file Annexure-CF regarding the loss assessed by Poly Hub Agro Tech Private Ltd., Jind vide which the total loss was assessed to the tune of Rs.2,92,261.45 paise. The surveyor Sh. Ajay Mahajan also assessed the total loss to the tune of Rs.2,92,261.45 paise, as is clear from his report, Ex.R3. The surveyor deducted Rs.2,000/- as the salvage value and 50% on account of depreciation and thereafter, assessed the net loss to the tune of Rs.1,44,130.73 paise. The loss assessed by both i.e. by the surveyor as-well-as by Poly Hub Agro Tech Private Ltd., Jind is the same. The complainants have not placed any other report from the expert except the affidavit of complainant No.1 to prove that the poly house had suffered damage to the tune of Rs.4,00,000/-. Moreover, the complainants have filed the claim only for Rs.2,92,261.45 paise as is clear from Fire Claim Form, Ex.R4 and not for Rs.4,00,000/- or Rs.8,00,000/- as claimed in the present complaint. Therefore, in these circumstances, we are of the considered view that the damage to the poly house of the complainants is suffered to the tune of Rs.2,92,261.45 paise only and not more than that.
9. The complainants have placed the copy of policy, Ex.C2 and the Ops No.1 to 3 have also placed the copy of same policy as Ex.R1. On perusal of policy, it is clear that there is a clause of special condition/Higher Deductibles (if applicable) which runs as under:-
“Warranted that irrespective of the details in Proposal Form renewal Notice or Any Document that forms the basis of this insurance the policy shall not cover loss destruction or damage caused by any insured peril to plant and/or earth work in any form. The rate of Depreciation Chargeable for Polythene/polythene sheets/plastic/poly-films of any shall be at the rate of 25% p.a. from the date of installation of such films/sheets. Exces-5% of claim of Rs.25,000/- For other than STFI Claims, B) 10% of Claim Minimum of 10% of Structure Sum Insured for STFI Claims”.
The surveyor assessed the net loss of Rs.1,44,130.73 paise after making necessary deductions as salvage and depreciation. The claim of complainants was repudiated on the ground “That as per the surveyor report, the Net Loss adjusted after application of Depreciation comes out to be Rs.1,44,130.73 paise which is below the Compulsory Policy Excess of Rs.3,36,600/-=(10% of claim amount subject to minimum of 10% of sum insured Rs.3,36,600/- for each & every claim under STFI perils) as per already Agreed Policy Terms & conditions”, as is clear from the repudiation letter, Ex.C5. The surveyor is an independent person. In this regard, we rely upon a judgment 2(2008) CPJ page 182 (NC), United India Insurance Co. Vs. Maya, wherein it has been held that a surveyor report should not be dismissed summarily as the surveyor is independent and qualified person under the relevant provisions of Insurance Act, 1938.
In the above facts and circumstances of the case, we are of the considered view that the Ops No.1 & 2 have repudiated the claim of the complainants in accordance with the terms and conditions of the policy. Even otherwise, if the total loss assessed by the surveyor and Poly Hub Agro Tech Private Ltd., Jind amounting to Rs.2,92,261.45 paise is to be taken into consideration, even then the same is not payable under the policy-excess condition.
10. The argument of ld. Counsel for complainants that in another case, the claim of complainants was settled for an amount of Rs.36,275/- on 23.03.2015 has no force because the document, Ex.C8 placed on the file in this regard relates to policy No.OG-14-1207-4001-00001804 and not to the policy in question. Therefore, it is not proved on the file that the excess clause of that policy was the same as in the policy in question. The authority submitted by ld. Counsel for Ops No.1 to 3 is applicable to the fats of instant case. In the above circumstances, it is clear that the Ops No.1 & 2 had repudiated the claim of complainants in accordance with the terms and conditions of the policy. Therefore, we are of the considered view that the complainants have failed to prove any deficiency on the part of Ops.
11. Thus, in view of above discussion, we find no merit in the complaint and we hereby dismiss the same. No order as to costs. A copy of this order be sent to both the parties free of costs. File be consigned to the record room after due compliance.
Announced.
Dt.15.03.2017.
(Jagmal Singh),
President.
(Harisha Mehta), (Rajbir Singh),
Member. Member.
