DISTRICT CONSUMER DISPUTE REDRESSEL FORUM,SAMBALPUR

C.C.No 63/2013

Pradeep Dwari, Aged about  52 years

Prop: M/S Dwari Engineers

Near Jail chowk,

Po/City/Dist:Sambalpur 768001              ….    …..    …    Complainant

                                                Versus

1.Dlivisional Manager, Divisional Office,

The New India Assurance Company Ltd.

Fatak, Sambalpur 768004 Odisha.

2.State Bank of India RASME CCC-SARC, ShivlokComplex,

Gaiety Road,

Sambalpur 768001

3.H.N.Agrawalla,Surveyor and loss Assessor,

 Hari Niwas, Tiwari Lane,

Khetrajpur,Sambalpur 768001.                       …..      ….       ….  Opposite party.

For Complainant                               : P.P.Panigrahi

 For O.P.1 and 2                                : B.K. Purohit

        PRESENT:-  SHRI A.P. MUND, PRESIDENT

                                SMT. S. TRIPATHY, MEMBER

                              SHRI K.D. DASH, MEMBER

Date of Order: 07/05/2019

SHRI A.P. MUND, PRESIDENT

            The Complainant’s  Case in short is :-

1. The complainant is the policy holder of two policies. One is the standard fire and special peril policy vide No. 55090011100100200186 (validity- 15.1.2011 to 14.01.2012) for sum assured of Rs.33 lakhs. The risk description of policy is Automobile Manufacturing. The description of insured property was on stock of raw materials, finished goods in Tractor Trolley and agricultural implements located at Jail Chowk Sambalpur. The other policy 550900/46/10/04/00000216 covering Burglary etc. covering stock in trade on stock of raw materials on finished goods for sum assured of RS.33.00lakhs. O.Ps 1 & 2 are same company. The policies are issued through O.P.1.
2. The O.P-2 is the financer. The insurance policies were directly obtained by the financer from the Insurer. Neither the Insurance Company supplied policy documents directly to the financer nor the Insurance Company supplied the policy holder any insurance documents. Therefore the complainant is not aware of the terms and conditions of the insurance policies. This is a regular arrangement between insurer and the financer for several years. Also as usual practice, the complainant borrower regularly submits monthly stock statements with the bank. The bank also in regular intervals obtains valuation of the financed and mortgage properties through it’s approved the licensed valuer and loss assessor.
3. In Sambalpur town there was a devastating flood in the month of September and the whole establishment of the complainant reflected in the insurance documents/along with entire area of that locality remained heavily inundated with flood water between 08.09.2011 to 11.09.2011. The level of water had gone to the height of 12Ft of the godown Photographs of flood conditions were taken.
4. The weighty insured items remained submerged and the light items of stock like tyres floated away in the flood water and could never be traced.
5. On 12.09.2011(Annexure-1) the complainant intimated the fact of loss due to flood; to the bank with request to take up the matter with the insurance company for claim of the loss of insured items. On  this date the bank supplied for the first time to the complainant , 4 sheets of insurance documents (three sheets- Annexure-2 relating to standard fire and special policy No. 186, 1 sheet( annexure-3)- Policy schedule No.216) On being intimated by bank and being approached by the complainant , the Insurance company issued letter dated 12.09.2011, requesting there in  to surveyor H.N. Agrawala to conduct preliminary survey. A copy of the same letter (Annexure-4) was handed over to the complainant. The surveyor conducted his job by visiting the spot and by verifying and examining the premises and the stocks. The complainant had also taken photographs of the surveyor while carrying on survey of loss.
6. The complainant  submitted the claim form mentioning  initial amount of loss of Rs. 8,71,073/- dated 29.09.2011 (annexure -5).This was supplemented with the exact loss amount  of Rs.9,63.073/-(annexure-6) relating  to loss and repair of components of tractor trolley etc. vide letter dated 29.09.2011
7. The Insurance company asked for some documents vide its letter dated 05.03.2012 which were duly complied with by the complainant.
8. The Insurance Company vide its letter dated 28.05.2012 offered a paltry sum of Rs.68,653/- towards settlement  as against the actual loss of RS.9,63,073/-.The Insurance Company insisted for signing a pre typed settlement voucher in which it has been unilaterally and arbitrarily mentioned by the Insurance Company as “ acceptance by the complainant  in full satisfaction “ and discharge of his  Claim under standard fire and special peril policy on account  of flood claim occurred on 08.09.2011 in the engineering work shop.
9. Vide Letter dated 17.01.2013 the complainant clearly stated that the offer of Rs.68, 693/- against the loss of Rs. 9,63,073/- is not acceptable  to him. In this letter the complainant has categorically asked for the reason for the offer of unreasonable lesser amount of Rs.68, 693/-.

            On the above averments prayed for the following relief from this Hon’ble forum  :-

1. The Insurance company to indemnity the actual loss amount  of Rs.9,63,073/- with interest at the rate of 18% P.a. from the date of loss till actual payment.
2. The surveyor may be saddled   with a compensation of Rs. 9.00 lakhs in favour of the complainant; if his improper conduct or deficiency in service has resulted in under assessment of the actual loss.
3. To pay Rs.25,000/- towards the cost of the proceeding.

Opposite Party No. 1 filed written version as follows:-

1. One standard fire and special perils policy bearing No.55090011100100200186 was issued to the insured complainant M/s.Dwari Engineers where on the stock of raw materials and finished goods in Tractor, Trolly and agricultural implements of the insured in the premises at Jail Chowk, Sambalpur was insured with the conditions, limitation, exception. In the policy itself there is a mention of deductions which is  5% of the claim amount  subject to a minimum of Rs. 25,000/- in the case of act of god perils and Rs. 10,000/- in the Non-act of God perils.
2. During the validity of the Policy an intimation was received from the RASMECCC-SARC (O.P No.2 in this case) that the financed unit has suffered severe loss due to heavy rain and flood and accordingly to arrange and assess the loss and to do the needful. The Insurance Company on receipt of the intimation on 12.09.2011,engaged licensed surveyor and loss Assessor Sri H.N.Agrawal on the very same day to conduct the preliminary survey. The complainant was also intimated to supply the claim form and other documents which was supplied by the insured.
3. After conducting the survey the surveyor and Loss assessor Sri H.N.Agrawala assessed the loss at Rs. 1,50,000/- and deducted Rs. 56,847/- towards under insurance and finally assessed the claim of  Rs.93,653/- and submitted his report on 27.02.2012ds received by the Insurance company on 29.02.2012. Thereafter the complainant  was asked to submit meteorological report., newspaper cutting  and the FIR before the police to proceed further with the claim, which were supplied by the insured on 16.03.2012.The insurance company perused the report and after deducting the statutory deduction   of Rs.25,000/- on act of God Perils, and asked the complainant settled the claim of Rs.68,653/- and intimated the same to the insured vide letter dated 28.05.2012 and asked the complainant to submit a signed settlement intimation voucher in duplicate towards the acceptance of M/S. Dwari Engineers, so that the Insurance Company would be in a position to make payment. The letter was not replied to by the complainant and accordingly the first reminder was issued on 27.06.2012. The second reminder was issued on 25.07.2012 and third reminder was issued on 22.08.2012. As no response was received from the insured, the Insurance Company presumed that the insured was not interested in the claim and accordingly closed the file as “No Claim” and communicated the same to the insured by Registered Post with AD in a speaking letter of repudiation.
4. It has been further submitted by the insurance company that, the policy with condition was communicated to the complainant through the Financier and had the complainant being conscious; he would have gone through the documents and after happening of the peril. Now the complainant is  having no cause of action to proceed with the case and accordingly, this consumer case is deserved to be dismissed.

The Opposite Party No.2 file its Version as under:-

This answering O.P. averred in its first Para has stated as follows “for brevity here it is to bring to the notice of the Hon’ble Forum that the Complainant has initiated another Case bearing No. 64 of 2013 for the same cause of action concerning another policy and the same is pending in this Forum”. Further in Para 2 averred that “this Opposite party has suitable answered in detail all allegation leveled against this Opposite party by the Complainant and therefore it need no repetitions here in this case”. This was not challenged by the Complainant and hence we are importing to this case the defence made by this O.P. in C.C. No. 64 of 2013 which runs as follows.

1. “This answering O.P. admitted that the complainant is a loanee. Refuted the allegation of negligence alleged to have been committed by this O.P.
2. Further goes on to aver that as per standard practice the complainant executed one “Letter of Agreement” with O.P. No.2 on Dt. 13.8.07. The O.P. no. 2 further clearly averred that, duty is cast on the borrower to insure the stock. It also averred that the Bank reserves the right only in the event of failure by the borrower to do insurance. It is incumbent upon the borrower to insist upon/demand the bank to get a copy of such policy and check the correctness of details of the Insurance Policy and advice the discrepancies/error if any for necessary correction in time”.

III.                  That the allegation made at para 8 of the petition is not correct. And it is wrong to say that the Bank is pressuring to the Complainant to accept the assessed amount. The Insurance Company as matter of procedure was merely intimating the substance of the correspondences taking place between the Insurer and the Insured and in turn the Bank has requested the Complainant to settle the claim soon as a routing process and nothing else.

IV.                The entire allegation made in this petition against the Bank is a part of scheme of the Complainant to drag the Bank so as to make his loss good from the Bank in the event of or say alternatively his failure to get the benefits from the Insurance Company.

V.                Under the above circumstances the Complaint is devoid of any merit, vexatious and liable to be dismissed as against this Opposite Party and therefore the same may kindly be dismissed with cost to this Opposite party.

                  Heard arguments advanced by complainant and O.P.No.1, went through the documents filed  and gone thoroughly through the written argument  submitted.

                   After careful consideration and considering admission we have arrived at the following issues in the case.

1. Whether the O.P. No.1 guilty in not supplying policy documents to the complainant.
2. Whether surveyor gave a correct report of loss and carried out a balanced and disaffected survey by observing whether tyre sinks or floats and other articles can be reused on greasing.
3. Whether   the complainant  is entitled to the total loss assessed by him.
4. Whether the O.P. No 1 correctly assessed the loss & correctly held that the property was under insured.
5. To what relief the complainant is entitled to.
6. Whether tractor tyres can float away in flood waters causing total loss.

The issues are taken  chronologically. Issue No.1 is answered as follows:-

1. In para 3 of the plaint  the complainant avers that  the insurance Policy  were directly obtained by the financer  i.e O.P. No. 2 from O.P. No. 1. Complainant  was not involved nor claimed any documents. This a standard practice for at least a period of 2 years.
2. The same procedure was adopted in the 2011-12 policy. The Policy is of around Rs. 33 lakhs and  the complainant’s claim of ignorance of the terms and condition of the Policy is unbecoming of a prudent buyer of policy. The contention of the complainant that he was not informed about the policy condition is an afterthought and is  a ploy to cover up his lacunas of utmost vigilance. Beside we infer that the complainant is clutching to a last straw to retrieve his loss by blaming all short comings on the O.P.’s. Complainant should file cogent and suitable evidence to prove his case and not depend on the lacuna committed by the O.P.’s

                                     Hence Issue No.1 is answered in negative against the Complainant.

Issue No. 6 is taken up next :

1. It is alleged by the complainant that complainant’s boundary was covered from 3 side which were of  5ft high. One side wall was not constructed. The flood water floated away all the 20 tyres kept within the boundary wall entailing a loss of Rs.5,90,000/- to the complainant.
2. The Advocate for complainant made serious effort to hammer into the forum’s mind that this is  the real thing happened and the surveyor is guilty in not granting the loss sustained by the complainant.
3. Issue No 6 involved in the  case has two corollaries (i) whether tyre sinks or floats in flood water (ii) whether the bearings and other articles can be used after application of grease.
4. The Learned Advocate wanted us to believe that tyres can float. In this case it has happened the boundary wall is of 5ft high. When the flood water reached a height of 9ft. the tyre overcame the barrier of the 5^th feet of boundary wall and floated away in the force of flood water.
5. When asked to prove his contention, the learned Advocate in reply threw a challenge to this Forum. He stated that any old tyre can be thrown to a canal and result be observed. We did not have capacity to act according to his wish. Instead of  taking the challenge route; we put a simple question to Google ” whether tyre can float”. We found the answer to this question given by YAHOO which  is as follows “If the tyre has all the air driven out by water pressure because of its position in water then it will sink” . Another answer is “Density of rubber is about 10% higher than water, so no, they would sink unless they are inflated and mounted on light rim, in such a way that they displace more water.”
6. This answer was read out to the Advocate for complainant. After hearing the answer of Yahoo, the learned Advocate’ changed his stance and argued that due to water pressure in the receding flood;  the tyres were sucked out.
7. This is a clear shifting of stand which is not allowed in law. He had not taken this stand in his complaint petition. Beside the other side have no chance to defend the changing stand. Only during argument time; as Yahoo complicated the original reasoning of the Complainant, the Advocate tried to retrieve some lost ground for the complainant.
8. So after taking into consideration the higher density of rubber than water, and the filling of water in free space of tyre give an answer to this issue; that the tyre sinks in water and cannot float.

            A prudent man/dealer will not leave behind tyres worth of Rs. 6.00 lakhs unattended or unchained in the open as the Advocate for complainant wants us to believe.

9. If the dealer has not preserved prudently; tyre worth of Rs.6.00 lakhs; then he is to suffer the consequences. The behavior of a reasonable prudent man and science both sinks the theory of floating   away of tyres. Hence this issue goes against the complainant.

            Hence Issue No.6 is answered in negative against the Complainant.

Issue No. 2,3,4,&5 are taken together.

1. The complainant has filed some photograph supporting the case. In one photograph the surveyor is seen taking reading with a measurement tap. The photograph shows the damage and water level. It is not disputed that there was loss and damage due to flood in the premises of the complainant.
2. But the big question is to what extent the survey report filed shows in column7th of the report the history and nature of loss. The surveyor has held some items were reportedly damaged on inspection/verification of column 7 he has listed 8 items with their Nos.
3. Under the heading assent of loss he has given justification for arriving at his conclusion. He has gone in details in ascertaining loss. What are total losses according to him can be salvaged after washing/cleaning/greasing. No counter explanation by providing cogent evidence on the side of complainant to refute the assessment. Only plain argument. Hence the assessment made the surveyor stands.
4. Page no.4 reveals the mind of the surveyor as to the loss of tyre. He is categorical that tyres are not liable to be washed away in flood water (supported by Yahoo supra). Theft is also not substantiated as matter was not reported to the police. Hence loss of tyre is assessed as NIL.
5. After assessing the loss he has assessed gross loss at Rs.1,50,500.20. After deducting under insurance and further deducted Rs.25,000/-(For act of God) it arrived a net loss of Rs68,653/-.This amount  was accepted  by O.P.No 1 and accordingly issued settlement intimation voucher.
6. This assessment was not accepted by the complainant and termed it as deficient. In Para II of the petition the complainant tried to give a wild reasoning as to how the surveyor conducts surveys. In Para 12 of written argument filed by complainant, gave reasoning for supply of policy instruments directly to the party. (This is contrary to the practice as per averments in Para 2)
7.                   In the written argument also he has attached the report of surveyor and cited some case laws (not supplied the full report) to substantiate his case.
8.                     The complainant has supplied the stocks and book debts as on 31.08.2011.
9.                   Accordingly to us the complainant has only attached the survey report without furnishing any evidence as to how the survey report went wrong in assessing the loss.
10.                   According to our considered opinion we do not think the complainant has given any evidence to overcome lacuna as claimed by the complainant; that the survey report assessment is wrong. The assessment made by surveyor was legally right. Hence Survey reports stands.
11.                   The un-communication of Insurance condition also does not hold good as, as per practice for last couple of year; the terms and conditions was communicated to the O.P. No. 2 by O.P. No. 1. The Complainant has not raised any issue about this practice earlier. Only after he sustained loss due to flood at a different place other than the actual place mentioned in the Insurance documents; he want to retrieve his loss and making these allegations to buttress his case.

Hence it is ordered that :

•                     AS per finding above we are of the considered opinion that the complainant failed to prove his case by placing sufficient evidence that he suffered more loss than assessed by the surveyor and hence the case for enhancement of compensation is dismissed.
•                   In view of special circumstances no order as to cost.
•                   The O.P. No 1 had settled the claim at Rs.68, 653/-and intimated vide their Letter dated 28.05.2012. But the complainant did not receive it. We deem it proper that the O.P.No.1 should pay the above amount with interest @6% from the above date within one month of passing of this order.

                                                                                                                                        Sd/- 

                                                                                                                                 SHRI A.P.MUND

                        Sd/-                                                                                                      PRESIDENT.

SMT S.TRIPATHY. Member I agree.

                        Sd/-                                                                                                            Sd/-          

   SHRI K.D.DASH.  Member    I agree.                                                     Dictated and corrected by me.

                                                                                                                                PRESIDENT