Per Mr.K.B.Gawali, Hon`ble Member.
1. This complaint is filed by the complainant which is a registered Co-operative Sugar Factory through its authorized representative against the opponent Nos. 1 and 2 alleging deficiency in service and also unfair trade practice for repudiating its insurance claim. For better understanding the complainant hereinafter is termed as “The complainant Factory” whereas opponent No. 1 as the “Opponent Insurance Authority” and Opponent No. 2 as the "opponent-bank".
2. The brief facts of the complaint are as under :
2(a) That, the complainant sugar factory has been getting insured since 2002 by the opponent insurance authority covering the risk of sugar bags, plants/machinery etc. Accordingly, complainant factory had obtained a "Standard Fire and Special Perils Policy" on 30/11/2007 for the sum amounting Rs 16,50,00,000/- from the opponent insurance authority which was effective for the period from 29/11/2007 to 28/11/2008 through the opponent-bank from whom it had obtained loan. That, the complainant factory had pledged entire sugar bags with the opponent-bank towards the security of loan.
2(b) That, on 25/04/2008 at 7.25 p.m. while the truck of the sugar purchaser was being taken in reverse direction for the purpose of loading the sugar bags in godown No. 2, suddenly the spark from exhaust silencer of the truck had come out and fallen on the lower stack of sugar bags which caught the fire. That, when this fire was noticed by the hamal present on the spot, immediately blown up the siren and the fire fighting system of the factory was put in operation to extinguish the fire. That, the fire brigade tanker from Osmanabad and Latur were also called and by way of pouring water on fire affected bags made all out efferts to quench the fire. However, by the time the fire came to end there was huge loss of sugar bags due to fire and water, amounting approximately to Rs 25,00,000/-. That, police as well as the opponent insurance authority were informed immediately on the same date about the said incident of fire and the damages occurred. The other authorities were also informed subsequently about the said incidence. That, accordingly the police visited the spot on the very next date i.e. 26/04/2008 and drawn spot panchanama.
2(c) That, the opponent insurance authority immediately on 26/04/2008 deputed the surveyor namely Shri. R.Sangam to visit the spot. That, accordingly the surveyor Shri. Sangam visited the spot on 26/04/2008 and also on 02/05/2008 and inspected the damages of sugar bags. That, the surveyor was fully co-operated and supplied with all documents by the complainant factory. It is alleged that the surveyor inspected the spot on 26/04/2008 and 02/05/2008 but submitted his assessment report on 21/03/2010 i.e. almost after the lapse of 2 years. It is further alleged that the said survey report was not supplied to the complainant factory and finally after filing application dated 29/03/2011 under “Right to Information Act” the copy of the said report was supplied by the opponent insurance authority vide its letter dated 05/05/2011.
2(d) That, the complainant factory by its letter dated 02/05/2008 intimated to the opponent-bank about the quantity of bags which were affected by the fire. In that letter it was informed that 700 sugar bags each containing 50 kgs of sugar were burnt whereas 21630 sugar bags each of 50 kgs were drenched and damaged due to pouring of water to control the fire. It is further stated that the complainant factory had submitted its claim proposal to the opponent insurance authority for the amount of Rs 45,95,794/- along with details of the said claim. That, as per the said details Rs 2,05,113/- were claimed towards loss caused due to burning of sugar and Rs 42,60,231/- towards damages caused by use of water to control the fire i.e. the total loss being of Rs 45,95,794/-.
2(e) It is further contended by the complainant factory that despite of heavy persuasions made with both the opponents by way of number of written communication as well as personal contact, the settlement of claim was delayed and finally on the basis of surveyor’s recommendation, the claim of the factory was wrongly repudiated by the opponent insurance authority vide its letter dated 10/08/2010, alleging the complainant factory has not taken due care to of insured stock of sugar.
2(f) In support of his complaint the complainant factory has submitted its evidence affidavit and the documents as listed below.
1. Resolution dated 9th July,2011.
2. Copy of the policy dated 30 the November, 2007.
3. Copy of summary sheet showing details of insurance policies
purchased from the opposite party No. 1.
4. Copy of the letter dated 25th April, 2008 sent to the opposite party No.1.
5. Copy of the information report dated 25th April, 2008 given to the police by Mr.Ram Vaijinath Shinde.
6. Copy of the Police panchanama dated 26th April 2008.
7. Copies of photographs of the place of incident.
8. Copy of the claim form.
9. Copy of the chart showing loss and damages quantity and rate.
10. Copy of the letter of repudiation dated 10th Aurugst, 2010.
11. Copies of written correspondence made with opponent insurance authority and other offices etc.
3. After having perused the complaint and heard the complainant the complaint came to admitted and the opposite parties were summoned for hearing. Accordingly, both the opponent appeared before this Commission and filed their written version and also evidence affidavit etc.
3(a) The, opponent insurance authority by way of its written version though admitted to have issued the said insurance policy, denied the claim of the complainant factory on the ground of gross negligence on the part of the complainant factory in safeguarding the stock of sugar bags as insured. It is further submitted that the truck was driven in side the godown and spark from the silencer of the truck has resulted in fire which should have been avoided with due precautionary measures as opined by the surveyor Shri. R.Sangam. It is further contended that the insured has claimed excessive amount of Rs 45,95,794/- as against 7,76,000/- assessed by the surveyor. Lastly it is submitted that since there was a gross negligence on the part of the complainant factory, it is not entitled for any compensation under the said insurance policy and accordingly has repudiated the claim. It is also contended that the complainant factory can claim the compensation from the truck owner which allegedly caused the said incident of fire.
3(b) The opponent-bank by way of its written version admitted to have obtained the said insurance policy in the joint names of the complainant factory and the opponent-bank but denied to have any contractual obligation against it to the extent of complainants claim of insurance. Hence, the complainant being not its “ Consumer” the complaint is not maintainable against the bank. It is further stated that the opponent-bank has sanctioned various loans to the complainant factory and hence, the complainant factory had pledged the sugar stock in favour of the opponent-bank and as a part of the terms of the said sanction of loan the complainant factory had obtained the insurance policy. It has however, denied that the premium amount was deducted from the loan amount of the complainant factory. It has also denied that it is an agent of the opponent insurance authority. Hence, it is contended by the opponent-bank that there is no vicarious liability against it as claimed by the complainant and requested to dismiss the complaint against it with heavy cost. In support its contention the bank has submitted copy of the Government Resolution dated 19/08/1998.
4. Initially the complaint was heard on 08/04/2013 and was reserved for judgment and order. However, pending the finalization of the judgment and order the Presiding Officer was changed and hence, the complaint was again reheard on 26/07/2013. Adv.Shri.S.V.Deshmukh was present for the complainant and Shri.V.S.Kadam was present for the opponent-bank. None was present for opponent insurance authority, however, Adv.Shri.A.P.Gunge had appeared on earlier dates and also submitted his written notes of arguments. The Ld. Counsel for the complainant and opponent-bank have also submitted their written notes of arguments. Accordinly, after having reheard the complaint, the same was reserved for judgment and order.
4(a) The Ld. Counsel appearing for the complainant and also opponent-bank have made their averment as made in the complaint and in the written version respectively.
5. We have carefully gone through the complaint, the written version filed by both the opponents, the evidence filed by the respective parties, written notes of arguments and have also given anxious thought to the oral submissions as advanced by the Ld.
Counsel for the complainant and the opponent-bank. We find that the only question which arises for our consideration and decision is as given below.
Whether the complainant factory is entitled for insurance claim as made in its complaint ?
6. The reply to the question raised above is given in the negative for the reasons which follows.
6(a) As per the contention of the Ld. Counsel for the complainant factory, the sugar bags in the lower stack cought fire due to the spark coming out from the exhaust silencer of the truck while the said truck was being taken in the reverse direction for the purpose of loading the sugar bags. However, as argued by the Ld. Counsel for the opponent insurance authority it has rightly denied its liability to pay the compensation contending that the said incident has arisen due to gross negligence of the insured factory since the truck was driven in- side the godown and no precautionary measures to avoid such incident were taken. We find much fource in the arguments of the counsel for the opponent insurance authority.
6(b) We attribute the negligence on the part of the complainant sugar factory to the following 3 factors:
i.) No precautionary measures such as either covering the lower stack of sugar bags or the back side of the truck with the help of tarpaulin, or such other material, were taken.
ii.) The truck was driven in the godown right upto the stack of sugar bags. In fact some other alternate arrangement could have been made by the complainant for loading the trucks out side the godown.
iii.) No immediate steps appears to have been taken to extinguish the said fire. In fact it is reflected from the record, that at the time of incident of fire some hamals were present at the spot who could have extinguished the fire immediately. It also can not be believed that a small spark coming out of the silencer of the truck has set the sugar bags on fire. Even, if it is presumed that the said spark caused the fire, it can not be accepted that it spread so immediately to other bags as they are not said to be of flammable material so as to catch and spread the fire immediately. We therefore agree with the contention of the opponent insurance authority that due to gross negligence on the part of complainant sugar factory, there was a fire and resultant damages to the stock of the sugar. Hence, the opponent insurance company can not be made liable to pay any compensation to the complainant.
7. In view of the aforesaid facts and observations the claim of the complainant sugar factory regarding compensation against the damages of sugar bags under the insurance policy can not be sustained and hence, can not be accepted. In the result, we pass the following order.
O R D E R
1. Complaint is dismissed.
2. No order as to costs.
3. Copies of the judgment and order be sent to both the parties.
