DISTRICT CONSUMER DISPUTES REDRESSAL FORUM. BOLANGIR.
………………………………………
Presents:-
1. Sri P.Samantara,President.
2. Sri G.K.Rath, Member.
3. Smt. S.Rath, Member.
Dated, Bolangir the29 th day of June 2016.
C.C.No.98 of 2014.
Bhajanlal Agrawal, Prop of Bhawati Cycle Store son of late Jeeram Agrawal.
Resident of Kantabanji, P.O/P.S-Kantabanji, Dist- Bolangir.
.. .. Complainant.
-Versus-
Branch Manager, New India Assurance Co. Ltd. ,At-Bolangir Branch Office.
At/P.O/P.S/Dist- Bolangir.
.. .. Opp.Party.
Adv. for the complainant- Dipti Sharfma & A.K.Darjee.
Adv. for the Opp.Party - Sri R.K.Mohakur.
Date of filing of the case-23.12.2014
Date of order -29.06.2016
JUDGMENT.
Sri P.Samantara, President.
In brief the complainant owned a cycle store (styled as Bhawgbati cycle store) at Kantabanji, Bolangir. The godown was insured for standard fire & special policy of New India Assurance Co. Ltd against the certificate bearing No.55090211100100200236 from dt.02.03.2011 to 01.03.2012.The complainant averred unfortunately a fire was break out on dt.25.03.2011 at about 2.30 P.M gutting huge stocks of Rs 40,00,000/-.The claim is No.50902/11/11/01/90000002. Surveyor deputed on 26.03.2011. At last the O.P repudiated the claim vide letter No.550902/Claims/RKD/12/47 dt.16.05.2012 citing reasons “As per the policy the godown was having cycle and spare parts and the tyre, tubes which was burnt and damaged was not covered since burnt outside the godown”. (ii) There was no fire out-break inside the godown itself. (iii) The existence of cycle stand manufacturing was kept in the dark, while taking the policy. So there was violation of policy condition. (iv) The surveyor opined that the reported loss due to fire is beyond the scope of the policy and is not covered under the policy condition. Relied on policy photo copy, paper cuts, claim intimation form, stock statement in photo copies and affidavit.
2. In pursuance of notice, the O.P in submitting the written version in admission that the godown in question was insured with the New India Assurance Co. Ltd, vide Insurance policy No.550902111001100200236 which was valid from 02.03.2011 to 01.03.2012 subject to terms, conditions, exceptions, limitations and liabilities of the policy.
3. That on dt.26.03.2011 information regarding the fire was received by the company. So immediately surveyor namely Er.Kawaljeet Singh, Balangir was deputed to make survey and assess the loss occurred due to fire. The report reveals the fire was broke out beyond the Insurance coverage area and not inside the godown which was insured by the Insurer as per the Insurance policy.
4. That again a final survey was conducted by Er. S.K.Brahma, Bhubaneswar and the final assessment submission speaks the tyres and tubes were damaged while stocked/kept in the cycle stand fabricating/manufacturing shed and not in the godown.
5. And further admitting on perusal of the relevant documents and both the preliminary and final survey report along with the photo graphs of the spot, it is found that the fire broke out due to sort circuit in electrical equipments & due to spark at electrical main switch board which was installed in the shed due to voltage fluctuation which burnt the tyre and tubes kept in the shed which was beyond the policy coverage area.
6. The O.P contended complaint is not maintainable either in law or on facts and liable to be dismissed in limine. It is submitted that the complainant has not approached the Hon’ble Forum with clean hands as the complainant has suppressed the material facts so as to get the claim amount. The complaint is liable to be dismissed on this preliminary ground of non disclosure and concealment of material facts.
7. Also stated, the forum lacks pecuniary jurisdiction to entertain this matter as the value of the goods or service and the compensation claimed exceeds rupees twenty lakhs. Even the case is not maintainable as there is no such provision in the consumer protection Act for restoration of a cased which is dismissed for default.
8. That, in view of the above circumstances, the opposite party insurance company has no liability to compensate the loss sustained by the insured so the insurance company repudiated the claim and intimated the same to the complainant vide letter dated 16.05.2012. Being a vexatious litigation the case be dismissed with cost. Relied on Insurance Policy (Standard fire and special Perils Policy), Collection receipt cum Adjustment Voucher, Survey reports and repudiation letter in photo copies.
9. Heard both the parties and perused the materials on record.
10. The O.P vehemently contended in absence of statutory provision on restoration, the case under dismiss for default is not maintainable. In our considered opinion such case is maintainable in view of the decision made by the Apex Court in New India Assurance Co. Ltd Vs R. Srinivasan- AIR 2000 SC 941, (2000(1) CLT 414) and it is held – “On dismissal in default of first complaint, which was not restored even then a second complaint would be maintainable.
11. The other successive contention on pecuniary jurisdiction it is said the loss sustained exceeds rupees twenty lakhs or beyond, but in the present case the application is made for a sum of Rs 14,00,000/- within the containment of the sum assured as per policy and principle laid down of order 23,JRule (i).Thus the case is maintainable and suffers no barred of limitation and inherent causes of action to ensue for the loss sustained and thereof repudiated. Vikas Palace –Vs- National Insurance Co. (SCDRC- Uttaranchal) CLD-835-Held- Whether a party can reduce amount of valuation at any time to bring case within jurisdiction concerned forum-Held-Yes.
.
12. The other point raised, the complainant is liable to dismissed on this preliminary ground of non-disclosure and concealment of materials facts. As we observe, the O.P has conducted survey by two times and verified the requisite documents, books of account and necessary papers and no dispute prevails on the veracity of stocks at godown prior to the fire occurrence and post loss assessment.
In each survey report the loss due to fire is admissible and bonafideness of stocks of tyres and tubes in godown is not questioned. The only question shrouds the godown and adjacent shed includes the godown periphery that is inclusive or not. In this context exhaustive terms ,conditions and exclusions of the policy has been suppressed nor produced for considerable adjudication. Denying a genuine claim on hyper technical ground is against the settled principles.
13. We like to quote survey report in each case in short M/S. Shree Bhagawati cycle store, Preliminary report- Report No.A-12802/ Fire/11-12- says:- It was found that the insured had started a cycle side stand manufacturing Unit having an extended shed of 18” x 52” size to east direction wall of godown. He has installed electrical two process, drill, grinding and welding machine which covered three fourth area of shed and to the rest of area he used to unload and keep at time, the cycle tires and tubes for wholesale purposes.
14. The sum insured is Rs 14,00,000/- but the stock prior to the fire as above was Rs 57,72,918/-.Hence there is an under insurance and average clause is applicable.
FINAL SURVEY REPORT.
S.K.BRAHMA 7 ASSOCIATE REPORT NO- SKB/NIA/F/38/11-12
The main godown with dimension of 40” x 40”ft is partitioned into two parts by a wall was used to store the spare parts of the cycle.
A manufacturing/fabricating unit for ‘side stand’ of cycle was situated/made/established adjacent to main godown as extension.
Three electrical presses, grinding machine, drill machine and welding machines were installed for manufacture/fabrication purposes. One third of the shed area was used to unload and stock the tyres and tubes in temporary basis.
“As per the policy, the stocks in godown is insured for Rs 14,00,000/- .But as per purchase, sales & stocks register, the stock amounting to Rs 37,68,522/- was in the godown, on the day of incident. Hence there under insurance to the tune of 62.85%”.
“The insured had claimed for Rs 27, 41,314/- towards tyres and tubes. We have considered for the stocks kept near the side stand fabricating unit only. Accordingly we have calculated the loss in the assessment (Adjusted land) – Rs 8,98,187/-“.
15. Therefore in our opinion, the reported loss/claim is beyond the scope of policy, hence not covered under the policy. However it is left to the discretion of the under writer, to take a final decision in the matter.
16. Bare reading of the above noted findings, says the shed is part of the godown and excess stock arrived just stocked in the shed unit, which also houses a stand manufacturing unit. Thus stocks awaiting to enter the godown, can’t be said outside or beyond the actual godown. The hyper technicalities has been raised to absolve the liability. It is also concurred that fire brake not due to sparks and loss sustained is genuine. Thus we can say insurance claim cannot be rejected in entirety for minor violation of terms of policy.
17. Again even if there is violation of condition of policy, insurer is liable to pay claim on Non-standard basis,Held in:- The Manager, National Insurance Co. Ltd Vs M.P. Sree Kumar ,dt.31.07.12- 2013(1)CPR 207 (Keral), Case Ref- Amalendu Sahoo Vs Oriental Insurance Co. Ltd- 2010 CPJ 9, (S.C).
18. Further both the surveyor observe, under insurance is a violation of policy condition and settlement of claim rests on the insurer. Here it is noticed, the insurance is covered from the date of dt.02.03.2011 and the loss occurred on dt.25.03.2011,so it is case of close proximity and the stocks amounting to Rs 37,68,522/- was in the godown, on the day of incident. So it is clearly inferred, godown is not enough sufficient to hold the entire stocks .So some stocks lie in adjacent unit is neither deliberate nor violative for the time being so also under Insurance constituent components is not applicable. When insurer has to exercise the discretion, in such situation “Opinion of surveyor will be of no relevance to question of violation of condition of policy- Tejbir Singh JVs The Divisional Manager-j2013(1) CPR 267 (NC).
19. We find no inconsistency in allowing the case, as bonafideness of the loss is confirmed but repudiated on technical ground is a fact and in view of the above made discussion and settled principle, we considerably allow the case.
20. The final surveyor has assessed the adjusted loss to the tune of Rs 8,98,187/- and to make if at par of non-standard assessment we deemed it is just and proper to deduct 25% = Rs 8,98,187- Rs 2,24,456/-= Rs 6,73,641/- as the amount settled and disbursement be made against the loss of the complainant. As it is clear evidential loss has sustained no cogent evidence has not produced by the O.P that loss is fabricated or inflated one even the loss due to fire has been confirmed by the repeated surveyor and such confirmation cannot be brushed aside. Thus we ordered.
ORDER.
The O.P is hereby directed to pay a sum of Rs 6,73,641/- (Rupees Six lakhs seventy three thousand six hundred forty one) only to the petitioner for the loss sustained and towards harassment and mental agony sustained/suffered inclusive of litigation cost., within 30 days of this order, failing @ 9% interest per annum will accrue on the aforesaid sum from the date of order till realization.
ORDER PRONOUNCED IN OPEN FORUM THIS THE 29TH DAY OF JUNE 2016.
(Smt.S.Rath) (Sri G.K.Rath) (P.Samantara)
(MEMBER) (MEMBER.) PRESIDENT.
