BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMRITSAR.
Consumer Complaint No.474-12
Date of Institution:10.7.2012
Date of Decision:24.04.2015
Khanna Paper Mills Limited, Fatehgarh Road, Amritsar,Punjab (India) through Sh.Sanjay Jain, Sr. Manager, Power of Attorney Holder
Complainant
Versus
United India Insurance Company Ltd., Divisional Office No. 1, 3 Madan Mohan Malviya Road, Amritsar, Punjab, through its Divisional Manager
Opposite Party
Complaint under section 12 and 13 of the Consumer Protection Act, 1986 as amended upto date.
Present: For the Complainant: Sh. Deepinder Singh, Advocate
For the Opposite Party: Sh. P.N.Khanna, Advocate.
Quorum:
Sh.Bhupinder Singh, President
Ms.Kulwant Kaur Bajwa, Member
-2-
Mr.Anoop Sharma, Member
Order dictated by:
Sh.Bhupinder Singh, President.
1. Present complaint has been filed by the complainant under the provisions of the Consumer Protection Act alleging therein that the complainant company purchased an IAR (Industrial All Risk) policy covering the risk of Rs.610 crores from Opposite Party vide cover note No.260404. It has an excess clause of Rs.5 lacs. It was a renewal of earlier policy and was valid from 1.4.2008 to 31.3.2009. It covered the risk i)Rs.460 crores for fire and earth quake (2) Rs. 460.00 Crores covering plant and machinery installed in the insured mill including all its accessories, spared whilst lying in the insured bill (3) Rs. 110.00 Crores on the stock of all kinds. On 28.12.2008 at night press felt KPM 4 got damaged as a hole developed in felt due to a foreign material in the bottom of KPM 4 and wire got torned of from the same place. Since the complainant units runs for continuous 24 hours and to stop the same for some to wait the arrival of the surveyor is more costly than the claim as the work of the whole factory comes to stand still. The felt was replaced and photographs of both damaged and changed felt were taken which were submitted to the surveyor who came in the morning of 29th Dec. 2008. when the work of replacing the wire was on and was near completion and same was seen by the surveyor himself who stayed there till completion and submitted his spot report on 2.12.2011. The damaged felt was retained for inspection of the surveyor . The claim of Rs. 13,96,482/- was lodged vide claim bill dated 22.1.2009 alongwith all the relevant documents . Thereafter the complainant requested the opposite party to supply the copy of the survey report and to settle the claim but neither the copy has been given to the complainant nor the claim has been settled. Alleging the same to be deficiency in service, complaint was filed seeking directions to the opposite party to pass an award of Rs.13,96,482/- alongwith interest @ 9% per annum. Litigation expenses were also demanded.
2. On notice, opposite party appeared and filed written version in which it was submitted that the complainant has not shown the damaged Press Felt before replacing to the spot surveyor as well as to the final surveyor. The complainant company is otherwise stopped by its own act and conduct from filing the present complaint. It is submitted that as per arrangement made with the complainant company by the Opposite Party, they have been provided with penal of three surveyors namely Mr.Rohit Kapoor, Mr.Tejinder Singh and Mr.Rajesh Kapoor so that as and when any loss is caused to the felt, they can call any of the said surveyors immediately to show the damaged felt before its replacement. However, in the present case, the complainant company has failed to observe the said system and as per report submitted by the spot surveyor Mr.Tejinder Singh , he was not called immediately by the insured and as such any damaged felt was not seen by the said surveyor . It was submitted that complainant company has demanded claim of Rs. 13,96,482/- with interest @ 9% from 29.12,.2008 and compensation of Rs. 2,00,000/-. In this regard it is submitted that the same is against the loss quantified by Mr. J.K.Kharbanda as the said surveyor has quantified the said loss to the tune of Rs. 80000/- after applying excess clause of Rs. 5 lacs. However, loss of Rs. 80000/- is also not payable because the loss has been determined on account of wear and tear which is not covered under the scope of Industrial All Risk Policy , as such the complaint is not maintainable. While denying and controverting other allegations, dismissal of complaint was prayed.
3. Complainant tendered into evidence the affidavit of Sh.Sanjay Jain Ex.C1 alongwith documents Ex.C2 to Ex.C23 and closed the evidence on behalf of the complainant.
4. Opposite Party tendered into evidence affidavit of Sh.Gobind Aggarwal, Senior Divisional Manager Ex.OP1 , affidavit of Mr. Tejinder Singh Ex.OP/2 alongwith other documents Ex.OP3 , OP/5 to OP/11, affidavit of Sh.J.K.Kharbanda Ex.OP/4.
5. We have carefully gone through the pleadings of the parties; arguments advanced by the ld.counsel for the parties and have appreciated the evidence produced on record by both the parties with the valuable assistance of the ld.counsel for both the parties.
6. From the record i.e. pleadings of the parties and the evidence produced on record by the parties, it is clear that complainant company got IAR (Industrial All Risk) policy from Opposite Party covering the risk of Rs.610 crores from Opposite Party from 1.4.2008 to 31.3.2009 with excess clause of Rs.5 lacs. Policy covers the risk of fire and earth quack with Escalation, covering plant and machinery installed in the insured mill including all its accessories, spares etc. and machinery break down and earthquake and all other similar stocks pertaining to insured trade lying in the godowns, warehouse/ open shed situated inside the factory premises as per cover note No.260404. On 28.12.2008 at night, Press Felt KPM-5 got damaged. The Opposite Party was immediately informed, but no surveyor visited the factory premises of complainant for inspection. So, the complainant replaced the Press Felt and retained the damaged felt for inspection of the surveyor because the complainant company runs for 24 hours and it can not stop the production due to damage to the machinery. Later on, Mr. J.K.Kharbanda was deputed to carry out the final survey, who inspected the factory premises and called for certain documents from the complainant which were supplied by the complainant to the surveyor . The final surveyor submitted his report,. The complainant lodged a claim of Rs 13,96,482/- vide claim form dated 22.1.2009 with the Opposite Party. But the surveyor vide his report Ex.OP5 assessed the loss to the tune of Rs. 5,80,000/- , but the opposite party has not settled the claim of the complainant,. The opposite party has alleged that Press Felt has been replaced before the same could be inspected by the surveyor. Further Sr. G.M. Sh. Anil Bhudhiraja Ex.P-6 of the complainant company himself has given statement regarding life of lip of machine and in the said statement he has already confirmed that bottom fabric wire is giving life of 30 days. So the claim of the complainant is covered under clause wears and tears which are not payable by the opposite party. As such the excess clause of Rs. 5 lacs is applicable with respect to the claim in question. The net loss as assessed by the surveyor is only to the tune of Rs. 80000/- which is also recommended not payable as the said loss has occurred on account of wear and tear. So the opposite party did not pay the claim of the complainant. Ld.counsel for the complainant submitted that all this amounts to deficiency of service on the part of the opposite party.
7. Whereas the case of the opposite party is that the complainant has has failed to make the compliance of the letter written by the Opposite Party i.e. letter dated 15.5.2009 Ex.OP7, letter dated 24.5.2010 Ex.OP8, letter dated 25.6.2010 Ex.OP9, letter dated 3.9.2010 Ex.OP10 and has also not shown the damaged Press Felt before replacing the same, to the spot surveyor as well as to the final surveyor. As per the agreement between the parties, the Opposite Party has provided with penal of three surveyors namely Mr.Rohit Kapoor, Mr.Tejinder Singh and Mr.Rajesh Kapoor so that as and when any loss is caused to the felt, they can call any of the said surveyors immediately to show the damaged felt before its replacement. However, in the present case, the complainant company has failed to observe the said system and as per report submitted by the spot surveyor Mr.Tejinder Singh Ex.OP3 only photographs of the felt which was damaged as stated by the manager, has been shown to him. He has also submitted that the felt was damaged because a hole was developed due to some foreign material in the bottom wire of KPM 4 and the wire was replaced with new wire. Similarly in the final report Ex.OP5 Sh. J.K. Kharbanda surveyor also submitted that damaged felt was not shown to the surveyor before replacing to the preliminary surveyor as well as to the final surveyor, even though the preliminary surveyor was arranged without any delay. In his report Ex.OP5 the surveyor has submitted that bottom fabric wire is giving life of 30 days as told by the Deputy Manager of the complainant company which confirms that the damaged wire claim falls under normal wear and tear only, therefore final surveyor recommended that the claim may be repudiated. Apart from this the complainant company inspite of repeated requests made by the opposite party/its surveyor , did not explain why he was not given to inspect the damaged felt to the preliminary surveyor and the complainant company has failed to give any reply to the said query. Ld.counsel for the opposite party submitted that as the case of the complainant falls in excess clause and is not payable due to the fact that claim of the complainant falls under clause wears and tears , the said amount is not payable by the opposite party as per terms and conditions of the policy. Ld.counsel for the opposite party submitted that as such the complainant is not entitled to any claim, so there is no deficiency of service on the part of the opposite party qua the complainant.
8. From the entire above discussion, we have come to the conclusion that the Opposite Party has panel of three surveyors namely Mr.Rohit Kapoor, Mr.Tejinder Singh and Mr.Rajesh Kapoor so that as and when any loss is caused to the complainant company, they can call any of the said surveyors immediately to show the damaged felt before its replacement , but the complainant company has failed to make compliance of the said provision and the complainant has failed to show the damaged Press Felt even to the spot surveyor Sh. Tejinder Singh before its replacement. As per the report submitted by the spot surveyor Mr.Tejinder Singh Ex.OP3 it has been confirmed that the repair work had already been carried out. The felt which was damaged as stated by the manager of the complainant company was not shown even to the said spot surveyor. So even the sport surveyor could not see the damage felt which was already replaced with new one as per information disclosed by the Deputy Manager of the complainant company. The independent surveyor deputed by the opposite party Mr. J.K.Kharbanda vide his report Ex.OP5 assessed the loss to the tune of Rs. 6 lacs and after adjusting salvage value of Rs. 20000/- the net liability was to the tune of Rs. 5,80,000./- . After applying excess clause of Rs. 5 lacs the net loss being payable was quantified to the tune of Rs. 80000/- only and this amount was also not payable as the case falls under clause wear and tear of any part of the complainant company which is not payable under the policy. The said survey report has not been challenged by the complainant nor the complainant could point out any defect in this survey report Ex.OP5. The final surveyor vide his report Ex.OP5 assessed the loss to the tune of Rs. 80000/- only on the application of excess clause of Rs. 5 lacs and this report has clearly recommended that as the insurer has not cared to show the damaged felt even to the preliminary surveyor, who was appointed without any delay. The Deputy Manager of the complainant company in his statement Ex.OP6 has submitted that the bottom fabric wire is giving life of 30 days only which proves that the damaged felt claim falls under normal wear and tear only. It has been held by the Hon'ble National Commission in case Oriental Insurance Co. Ltd. Vs. B. Ramareddy II(2006) CPJ 339 (NC) that surveyor's report is an important piece of evidence. Compensation can be awarded only on the basis of surveyor's report. It has also been held by the Hon'ble Gujarat State Commission in case United India Insurance Co.Ltd and another Vs. Hotel White Rose 2004(3) CLT 494 that surveyor assessment was wrong, burden to prove is on the consumer to establish by producing evidence that what has been left out by the opponents and what has been not correctly and properly assessed by the opponents. As such, we hold that the opposite party was justified in proving that the claim of the complainant is not payable as per terms and conditions of the policy.
9. Apart from this ld.counsel for the opposite party submitted that the complainant is running its business in crores of rupees and it has employment having employees in hundreds which is a big establishment and they are doing their business for gains to earn profit and the complainant has obtained the services of the opposite party for its business i.e. for commercial purpose and not to earn livelihood by way of self employment . Moreover the complainant has nowhere claimed itself the consumer qua the opposite party in the complaint. So the complainant is not a consumer under the Consumer Protection Act. Ld.counsel for the complainant could not rebut this plea/averment of the counsel for the opposite party. Rather he admitted that the complainant company is one of the top ten papers mills in India and its business is running into crores of rupees having large employment of Executives, engineers, staff , etc..Ld.counsel for the complainant also admitted that the services of the opposite party have been obtained for the business of the complainant company.
10. So from the entire above discussion, it stands fully proved on record that the complainant obtained the services of the opposite party for its business which is being carried out to earn profits. As such the complainant does not fall within the definition of consumer. It has been held by the Hon'ble Supreme Court of India in case U.P. Power Corporation and Others Vs. Anis Ahmad 2013(3) CLT 227 that where the complainants have electric connections for Industrial/commercial purposes, as such they have obtained the services of the opposite party for commercial purpose.So they do not come within the meaning of Consumer as defined u/s 2(1)(d) of the Consumer Protection Act, 1986. Resultantly this complaint is also not maintainable.
11. Consequently, we hold that the complainant has failed to point out any deficiency of service on the part of the Opposite Party. Resultantly we hold that complaint is without merit and the same is hereby dismissed with no order as to costs. Copies of the order be furnished to the parties free of costs. File is ordered to be consigned to the record room. Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Forum.
24.04.2015 ( Bhupinder Singh )
President
( Kulwant Kaur Bajwa) (Anoop Sharma)
/R/ Member Member
