Orissa

Cuttak

CC/69/2022

Subhashree Packers Pvt Ltd - Complainant(s)

Versus

Branch Manager,New India Assurance Co Ltd - Opp.Party(s)

H S Sahu & associates

15 Dec 2022

ORDER

IN THE COURT OF THE DIST. CONSUMER DISPUTES REDRESSAL COMMISSION,CUTTACK.

C.C.No.69/2022

 

Subhashree Packers Pvt. Ltd., represented

Through its Managing Director Mr. KahnuCharan Nayak,

s/O:LateBaishnabaCharan Nayak,

Regd. office at Old Jagannath Road,Khapuria Industrial Estate,

Madhupatna,Cuttack,Odisha,Pin-753010.                                ... Complainant.

 

                                                                Vrs.

          The New India Assurance Co. Ltd. Represented

          Through the Branch Manager, Link Road Branch,

          Opp. ArunodayaMarket,Cuttack,Pin-753012.                                … Opp. Party.

 

 

Present:               Sri Debasish Nayak,President.

                                                Sri SibanandaMohanty,Member.

 

               Date of filing:     20.04.2022

Date of Order:   15.12.2022

 

For the complainant:          Mr. H.S.Sahu,Adv. & Associates.

For the O.P :                           Mr. A.A.Khan,Adv. & Associates.

 

Sri Debasish Nayak,President.                       

          The case of the complainant as made in the complaint petition bereft unnecessary details in short is that the complainant is a “service hirer” whereas the O.P is a service provider.  The complainant had incurred loan for his business from the HDFC Bank with an agreed interest @ 7% per annum and had insured his unit also.   The policy named and styled as “Standard Fire and Special Perils” policy bearing policy no.55040111200100000513 was covering the risk from 28.2.2021 to 27.2.2022.  He had paid the premium amount of Rs,.3,08,069/- and the assured sum was of Rs14,75,00,000/-.  In the night of 12.92021 and 13.9.21 there was continuous heavy and very heavy rain fall for which there was water logging also.  Due to the heavy rain, the complainant suffered huge loss to the tune of Rs.10,00,000/- which he had immediately intimated to the O.P Insurance Company. A surveyor was deputed by the O.P on 14.9.21 to enquire into the matter and assess the loss.  The complainant enquired about the settlement of his claim through e.mail from the O.P on 4.10.21,8.10.21 and 9.10.21.  The complainant had also objected to the surveyor’s report through his e.mail dt.11.10.21 as because the O.P had made baseless allegation that there was defect in the Gutter capacity design of the commercial unit of the complainant for which the damage occurred and for which the claim of the complainant was repudiated.  The surveyor of the O.P had visited the unit of the complainant on 14.9.21 and also on 23.9.21.  According to the complainant the gutter capacity design was as per the approved plan of the unit which was well within the knowledge of the O.P while his unit was insured.  The further allegation of the O.P that there was leakage on the roof consisting of CGI sheet panel which was also within the design of the factory shed in the approved plan.  The O.P had never raised any objection to that effect earlier even though they were provided with the approved plan and structure design of the unit of the complainant prior to insuring it.  Thus, the complainant has come up with this case alleging unfair trade practice and deficiency in service by the O.P for which he has claimed a sum of Rs.3,58,666/- towards the loss of his stocks, a sum of Rs.1,75,746/- alongwith interest thereon @ 7% per annum, further a sum of Rs.43,000/- towards interest @ 12% per annum, further compensation of Rs.12,21,000/- towards ideal of P & M and workers for 37 days and also a sum of Rs.1,00,000/- towards his mental agony and harassment and also a sum of Rs.10,000/- towards cost of his litigation.

          The complainant has filed copies of several documents in order to prove his case.

2.       The O.P has contested this case and has filed written version wherein the O.P has prayed to dismiss the complaint petition with cost alleging that it is not maintainable.  The O.P admits about the “Standard Fire and Special Perils” policy as opted by the complainant from him which was effective from 28.2.21 to 27.2.2022.  The O.P also admits about the claim raised by the complainant and about the deputation of surveyor-cum-Loss Assessor Er. Chitta Ranjan Das for the said purpose.  The said surveyor Er. Chitta Ranjan Das while inspecting the shed of the complainant had noticed and had mentioned that as because there was excessive rain from the channel gutter which was over flooded resulting over flow of the rain water from the channel causing damage to the materials kept in the shed.  The said surveyor had submitted his report on 8.2.2022 and had assessed the loss to Rs.3,19,273/-.   The surveyor has specifically mentioned that due to accumulation of water in the insured premises as the gutter had over-flows due to low capacity and handling of heavy rain, the stocks were affected.  He had alleged that due to defect in the gutter capacity design, the said incident had happened.  Accordingly, the claim of the complainant was repudiated and when the complainant approached the Ombudsman, his grievance was also rejected there.  Thus according to the O.P, the case of the complainant being not maintainable is liable to be dismissed with cost.

          The O.P has filed copies of certain documents including the policy papers in order too further his case.

3.    Keeping in mind the averments as made in the complaint petition and the contents of the written version, this Commission thinks it proper to settle the following issues in order to arrive at a proper conclusion.

i.          Whether the case of the complainant is maintainable?

ii.         Whether there was any deficiency in service on the part of the O.Ps and if they had practised unfair trade?

iii.        Whether the complainant is entitled to the reliefs as claimed by him?

Issue No.ii.

Out of the three issues, Issue no.ii being the most pertinent issue is taken up first for consideration here in this case.

Admittedly, the complainant had insured his factory with the O.P and the said policy was inforce when there was heavy rain due to “Fani” in the nights of 12.9.21 and 13.9.21.  Admittedly there is damage to the stocks and articles of the complainant due to such heavy rain.  In this context, it is the plea of the O.P that since because the surveyor could notice the defect in the gutter capacity of the unit of the complainant, over flow of the heavy rain water had caused the damage for which O.P had repudiated the claim.  While insuring the factory unit of the complainant, it is obvious on the part of the O.P in order to inspect the site and its premises and peruse the approved plan design, structure design and construction as made.  In this context the complainant has urged that the plan design and structure design as per the approved plan were well within the knowledge of the O.P of this case prior to inception of the policy.  The O.P has no say in this regard.  This goes to show that the O.P was having prior knowledge about the gutter capacity and if there was any defect in the said gutter capacity of the unit of the complainant, it was the duty of the O.P to raise objection on that context and  the O.P could have drawn attention of the complainant instructing him to rectify the said defect alongwith other defects prior to entering into the policy contract.  Thus, after accepting the premium amount from the complainant and insuring his unit for a sum of Rs.14,75,00,000/- and subsequently resiling from the said contract definitely amounts to practice of unfair trade on the part of the O.P in this case which also clearly signifies the deficiency in service of the O.P towards the complainant by arbitrarily and unilaterally repudiating his bonafide claim.  This issue is accordingly answered.

            Issues no.i& iii.

From the above discussions, the case of the complainant is definitely maintainable and the complainant is entitled to the reliefs as sought for.  Hence it is so ordered;

 

 

                                    ORDER

Case is decreed on contest against the O.P.  The O.P is thus directed to pay a sum of Rs.10,00,000/- to the complainant towards the total loss as incurred by him during the heavy rain in the nights of 12.9.21 and 13.9.21+ together with interest thereon @ 12%  per annum with effect from 23.9.21 till the amount is quantified.  The O.P is further directed to pay a sum of Rs.1,00,000/- towards compensation to the complainant due to the mental agony and harassment caused to him and also to reimburse his litigation cost to the tune of Rs.10,000/- within a period of 30 days from the date of receipt of copy of this order.

Order pronounced in the open court on the 15^th day of December,2022 under the seal and signature of this Commission.   

                                                                                                                                Sri Debasish Nayak

                                                                                                                                            President

                       

                                                                                                                                                              Sri Sibananda Mohanty

                                                                                                                                            Member