BEFORE THE DISTRICT FORUM:KURNOOL
Present: Sri.K.V.H. Prasad, B.A., LL.B President
And
Smt. C.Preethi, M.A.LL.B., Lady Member
Wednesday the 10th day of September, 2008
C.C.No. 179/07
Between:
S.Sadik Basha, S/o.S.Baba Saheb,
H.No.47/1, Bhudavar Pet, Kurnool.
… Complainant
Versus
Manager, The United India Insurance Company Limited,
Kurnool. … Opposite party
This complaint is coming on this day for orders in the presence of Sri.S.R.Ravi Kumar, Advocate, for the complainant, and Sri.A.V.Subramanyam, Advocate, for the opposite party and upon perusing the material papers on record, the Forum made the following
ORDER
(As per Sri. K.V.H.Prasad, President)
C.C.No.179/07
1. This case of the complainant is filed U/s 12 of C.P.Act seeking direction on the opposite party to pay to the complainant Rs.79,380/- as compensation for damaged machinery covered under the policy of insurance , Rs.1 lakh as compensation , Rs.20,620/- towards mental agony alleging that as insurance policy No.051100/ 11/ 16 / 1100000680 for the period 2-12-2005 to 1-12-2007 was obtained by the complainant for his vermicelli manufacturing unit at Bhdhawarpet, at Kurnool for an assured amount of Rs.81,000/- and due to short circuit occurred on account of floods to Hundri river on 22-6-2007 his said unit damaged totally besides to maidia i.e, raw material used in production of vermicelli and so set up a claim of insurance with the opposite party and it was settled for Rs.15,000/- by the opposite party basing on its surveyor report but not paying it to the complainant inspite of the complainants willingness to receiving without prejudice to his rights and the opposite party responding to the notice of the complainant with evasive replies and constrained the complainant to file this case.
2. In pursuance of the receipt of the notice of this forum as to this case of the complainant , the opposite party caused its appearance through its counsel and contested the case filling written version denying the liability for complainants claim and seeking dismissal of the complainant’s case .
3. The written version of the opposite party even though admit the complainant obtaining alleged fire policy of insurance but allege the period of insurance as 2-12-2006 to 1-12-2007 and the risk covered only to machinery and electrical motor of vermicelli unit of manufacturing and the assessment of loss to the insured machinery and electrical motors of said unit by its surveyor at Rs.15,000/- and the complainant claiming Rs. 36,160/- ( ie Rs.15,600/- for loss of vermicelli stock + Rs.5,460 /- for loss of seven bags of maida and Rs.15,100/- towards the damage machinery )
and vide its letter dated 28-6-2007 and a total claim to an amount of Rs.1 lakh and the complainant instead of giving any consent for receiving the settled amount of Rs.15,000/- after causing legal notice and getting a suitable reply , resorted to this case unnecessarily inspite of the fact of the ever readiness of the opposite party to pay to the complainant the said sum of Rs.15,000/- assessed by the surveyor and so being any deficiency on its part and towards the complainant and so there by any of its liability to the complainants claim and so seeks the dismissal of the complainants case with exemplary costs.
4. In substantiation of the contentions while the complainant side has taken reliance on documentary record in Ex.A1 to A15 besides to the sworn affidavit of the complainant in reiteration of its case, the opposite party side has taken reliance on documentary record in Ex.B1 to B3 and sworn affidavit of the opposite party in reiteration of its defence.
5. Hence, the point for consideration is whether the complainant has made out any deficiency of the opposite party towards insurance claim of the complainant and there by any of the liability of the opposite party for complainant’s claim .
6. The Ex.A1 and A2 are the Xerox of the claim form of the complainant. They allege the value of the property insured as Rs.2,28,600/- and sum insured as Rs.1,28,303/- and on its reverse pages the particulars of the effected property and their valuation . The Ex.B1 is the duplicate of the insurance policy to which the said claim relates to . The perusal of the contents of Ex.B1 indicates the insurance covers the risk on machinery and electrical motors occupied in vermicelli manufacturing unit, situated at 47/1 Bhudhwarpet , opposite to Montessori School Road , Kurnool , for an amount of Rs.81,000/- only . Hence the particulars mentioned in Ex.A1 and A2 as to the sum insured not remaining correct except the policy number . Further while the Ex.B1 covers the risk on machinery and electrical motors of the complainant’s vermicelli manufacturing unit at the address mention in Ex.B1, the particulars of effected property mentioned on the reverse pages of Ex.A1 and A2 in addition to the parts of effected machinery takes mention to labour charges Hercules Sealing machine , Electronic Weighing Machine, Maida bags and damage to the factory which are not covered for the risk under Ex.B1 policy . Hence the Ex.A1 and A2 claim forms are remaining incorrect and faulty in claiming for the value of those articles which are not covered for the risk under the Ex.B1 policy.
7.` The Ex.A13 letter dated 1-8-2007 of the opposite party addressed to the complainant besides furnishing the detailed particulars of the loss assessed by its surveyor in reference to damaged parts , also requires the complainant to inform the latter’s consent for receiving Rs.15,000/-, the loss assessed by the surveyor , for proceeding further with the claim of the complainant .
8. While the opposite party side say that the complainant did not inform any such consent for receiving said amount of RS.15,000/- mentioned in Ex.A13 , the endorsement of the complainant on Ex.A13 which bears signature of the complainant envisages that the complainant expressed his consent there under for receiving the said amount of Rs.15,000/- mentioned in Ex.A13 without prejudice to his contribution (?) ( perhaps without prejudice to his right for entitled claim ) .
9. While the office copy of legal notice of the complainant in Ex.A11 caused to the opposite party which was said to have been served on the opposite party vide Ex.A15 postal acknowledgement does not take any mention of the fact envisaged in the endorsement of the Ex.A13 and the opposite party not paying the said amount of Rs.15,000/- inspite of complainants said expression of consent for receiving the said amount . While such is so with Ex.A11 , the reply of the opposite party in Ex.A12 to said Ex.A11 , takes mention of the issual of Ex.A13 to the complainant informing there under the item wise value assessed by its surveyor and also requiring the complainant to inform the consent for said sum to enable the opposite party to proceed further with the claim of the complainant .
10. From the above circumstances there appears every reasonable doubt on the genuineness of contentions of the complainant that inspite of its exhibition of willingness to receive the said amount of Rs.15,000/- , the opposite party did not pay , especially when the endorsement of complainant in document in Ex.A13 was true and its tender to the opposite party was also true the custody of said document must have been with the opposite party and not surprisingly with the complainant who can be having every possibility to meddle with any endorsement there on as he pleases to suit the needs of the case to the disadvantage of the opposite party .
11. The complainant takes reliance on to the Ex.A14 – certificate dated 10-11-2007 issued by Thasildhar , Kurnool envisaging that the shop of the complainant was in inundation of Hundri river floods on 22-6-2007 and 23-6-2007 and the Ex.B3 – complainants intimation to the opposite party as to his unit effected by floods – to falsify the alleged visit of surveyor on 23-6-2007 for assessing the loss in the complainants unit on account of said floods and the loss assessed in Ex.B2 survey report dated 12-7-2007 and thereby the reliability of the said Ex.B2 alleging the impossibility and improbability for any surveyor inspection as alleged as the unit of the complainant was in inundation of Hundri river floods on the alleged date of surveyors visit and the Ex.B3 intimation of complainant to the opposite party was also sufficiently after to the alleged inspection of surveyor on 23-6-2007. But as the very surveyor’s report in Ex.B2 says of his inspection of the damaged parts at the house of the complainant as they were dismantled and were shifted to there by the time of his visit for inspection – there appears any improbability in the Ex.B2 loss assessment made by the surveyor to Rs.15,000/-, especially when the Ex.B3 letter dated 28-6-2007 of the complainant addressed to the opposite party as to the loss occurred to the machinery covered under insurance also is near by to the figure of Rs. 15,100/- mentioned by the complainant in Ex.B3 and from the wording of Ex.B3 at any stretch of imagination even it could be felt as first intimation of the insured to the insurer as to the occurrence ,as it merely takes mention of the value of losses of the parts of the unit and not makes any request for enquiring into the same.
12. Even though the Ex.A4 to A8 envisage the cost of spare parts mentioned there in but many of them being mere quotations and there being any evidence on record as to their purchase for mending the damaged machinery or any expert evidence on record is to the effect that those spare parts are essential for properly effecting the repairs of the damaged machinery , they are not remaining relevant for consideration for holding their entitleness to the complainant .
13. The Ex.A9 is a mere acknowledgement of the opposite party as to receipt of claim form of the complainant . As the submission of claim form in Ex.A1 and A2 and its receipts being not disputed by the opposite party the Ex.A9 needs any further appreciation .
14. The Ex.A10 is said to be a receipt issued by Andhra Bank Zonal Office, Kurnool as to receipt of insurance claim from the complainant . As there being any mention of this in the pleadings of the complainant and his sworn affidavit , the Ex.A10 is not remaining relevant for consideration for want of its relevancy to this case proceedings.
15. However, as the opposite party stand in its pleading including written arguments and other relevant material of the opposite party side as alleges its offer to the complainant for Rs.15,000/- assessed by its surveyor under Ex.B2 and exhibits its ever readiness to pay said amount of Rs.15,000/- to complainant towards his claim and the Ex.B3 also envisages the assessment of loss of value as to the machinery and its spare parts to a value of Rs.15,100/- - a near by figure to the figure of Ex.B2 - there appears every genuineness in the offer of the opposite party to the complainant made in Ex.A13 .
16. In the light of the above circumstances , except in the unsubstantiated complainants case averments , there being any dispute as to the amount the complainant is offered entitled and alleged to have consented to receive under endorsement in Ex.A13 , there appears any relevancy of the referred citation in Champalal Verma Vs Oriental Insurance Company Limited reported in III ( 2008) CPJ 93 (NC) which holds that the dispute as to the quantum of loss assessed by the surveyor complainant to approach Civil Court / IRDA / Arbitration .
17. The decision cited by the learned counsel for the complainant in Parmod Grover and others Vs Manvinder Kaur and others reported in II (2007) CPJ 63 (NC) is having any relevant application to this case as there is any plea on opposite parties side questioning the competency of this forum to adjudicate the question involved in this case alleging it as either of civil nature or involved complicated issues of fact and law , but only as to the settlement of dispute as to quantum of loss assessed by the surveyor by other institutions other than forum and that being suitably answered in discussion made in supra para.
18. Therefore in the conclusion of the above discussion as the entitleness of the complainant under said insurance claim being limiting to Rs.15,100/- only and the complainant would have avoided this case if he has simply received the said amount offered by the opposite party even on receipt of Ex.A12 – reply notice of the opposite party and instead resorting to the case exhibits the hasty conduct of the complainant and there by the case of the complainant is remaining devoid of strong cause of action to file the case and there by to hold any liability of the opposite parties to the cost of the case.
19. consequently, the case of the complainant is allowed directing the opposite party to pay to the complainant Rs.15,100/- towards the claim of insurance for damaged parts of machinery of the complainants insured unit, within a month of receipt of this order. In default the supra stated award shall be payable by the opposite party to the complainant with 12% interest from the date of default till realization along with Rs.1,000/- as cost of this case.
Dictated to the stenographer, transcribed by her, corrected and pronounced by us in the open bench on this the 10th day of September, 2008.
Sd/- Sd/-
MEMBER PRESIDENT
APPENDIX OF EVIDENCE
Witnesses Examined
For the complainant :Nil For the opposite parties :Nil
List of exhibits marked for the complainant:-
Ex.A1. Xerox copy of claim form.
EX.A2. Xerox copy of claim form.
EX.A3. Letter dated 29-6-2007 of complainant to opposite party.
Ex.A4. Xerox copy of cash bill dated 14-7-2007.
Ex.A5. Xerox copy of two quotation dated 30-6-2007.
Ex.A6. Xerox copy of quotation dated 7-7-2007.
Ex.A7. Xerox copy of quotation dated 2-7-2007.
Ex.A8. Xerox copy of quotation dated 30-6-2007.
Ex.A9. Acknowledgement of opposite party as to claim form.
Ex.A10. Acknowledgement of Andhra Bank.
Ex.A11. Office copy of legal notice of complainant counsel to
Opposite party.
Ex.A12. Reply of opposite party dated 16-10-2007 to complainant Counsel.
Ex.A13. Surveyor assessment of loss dated 1-8-2007 of opposite party to complainant.
Ex.A14. Certificate dated 10-7-2007 of Tahsildar, Kurnool.
Ex.A15. Postal acknowledgement dated 6-9-2007.
.
List of exhibits marked for the opposite parties:
Ex.B1. Policy (duplicate) No.051100/11/06/11//00000680.
EX.B2. Surveyor report dated 12-7-2007.
EX.B3. Letter dated 28-6-2007 of complainant.
Sd/- Sd/-
MEMBER PRESIDENT
// Certified free copy communicated under Rule 4 (10) of the
A.P.S.C.D.R.C. Rules, 1987//
Copy to:-
Complainant and Opposite party
Copy was made ready on :
Copy was dispatched on :
