Order of Application for sending the complaint by way of reference to the Hon'ble National Commission, New Delhi through Hon'ble State Commission, Punjab.
M/s Shital Fibers Limited Vs. M/s The New India Assurance Co. Ltd etc.
Present: Sh. AK Walia, Adv Counsel for the complainant.
Sh. RK Sharma, Adv Counsel for the OP No.1 and 2.
1. Through this order, we are going to dispose of an application, filed by the applicant/OP No.1 and 2 for sending the complaint by way of reference to the Hon'ble National Commission, New Delhi through Hon'ble State Commission, Punjab.
2. Brief facts of the application are that the above noted complaint is pending in this Forum and is fixed for argument. The present complaint is liable to be sent to the National Commission by way of reference to avoid conflicting decisions by two Forums having original jurisdiction with regard to same matter in issue to avoid multiplicity of litigation as the connected matter is pending before the Hon'ble National Commission, New Delhi in Complaint No.155 of 2013, titled “M/s Shital Fibers Ltd. Vs. M/s Bharti Axa General Insurance Co. Ltd, on the same cause of action and a part of the same claim as has been claimed in present complaint and further prayed for sending this file by way of reference to the Hon'ble National Commission, New Delhi.
3. Notice of the application was given to the respondent/complainant, who filed a reply and contested the application by taking preliminary objections that the instant application is not maintainable as there is no provision under 'The Consumer Protection Act'. On merits, all the averments made in the application are categorically controverted and lastly prayed that the application of the applicant/OP No.1 and 2 may be dismissed.
4. We have considered the respective submission of the learned counsel for the parties and also gone through the case file and find that the complainant, as per version described in the complaint got insured the material lying in the premises C-81, Focal Point Extension, Jalandhar and got an insurance policy, but the complaint pending before the Hon'ble National Commission is not in between the same party rather the said complaint filed by the complainant against M/s Bharti Axa General Insurance Company Limited and no doubt that complaint was dismissed in limine and after that order of the Hon'ble National Commission, my Predecessor adjourned sine-die the proceeding of this complaint till the decision of the appeal, filed by the appellant/complainant before the Hon'ble Supreme Court and after the decision of the Hon'ble Supreme Court, the complaint was remanded back to the Hon'ble National Commission for deciding the same on merit and then this complaint is revived by the complainant by filing an application. So, from all the facts, it is clear that the incident may be happened on the same day/same night, but the cause of action accrued to the complainant against the New India Insurance Company, OP in present case is not the same cause of action as accrued against the other insurance company i.e. M/s Bharti Axa General Insurance Company Limited, because the complainant has paid insurance premium to both the insurance company for respective material lying in the factory of the complainant and as such, the complainant has right to file a separate complaint against the New India Insurance Company as well as against M/s Bharti Axa General Insurance Company Limited and due to pecuniary jurisdiction, the complaint against Bharti Axa General Insurance Company Limited has been filed before the Hon'ble National Commission and moreover, the term and condition of both the insurance companies are not identical and even the claim of the complainant had not been denied by both the insurance companies by one letter. So, as per our opinion, there are two different cause of action accrued to the complainant and same can not be co-related with each other, which are to be decided on the basis of evidence led in each complaint and therefore, this complaint is not required to be kept pending or sent by way of reference to the Hon'ble National Commission and accordingly, the application of the applicant/OP No.1 and 2 is dismissed.
Dated Parminder Sharma Karnail Singh
06.12.2017 Member President
Judgment
BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL FORUM, JALANDHAR.
Complaint No.356 of 2013
Date of Instt. 03.09.2013
Date of Decision: 06.12.2017
M/s Shital Fibers Limited, Registered Office:A-17, Focal Point (Extension), Jalandhar-144004, through its Authorized Person Sh. Harpreet Singh S/o Sh. Mohinder Singh.
..........Complainant
Versus
1. M/s The New India Assurance Co. Ltd. Through its Managing Director/Chairman, Regd Office: New India Assurance Building, 87, M.G. Road, Fort, Mumbai-400001.
The Senior Divisional Manager, M/s The New India Assurance Co. Ltd. Divisional Office-II, 356, Guru Teg Bahadur Nagar, Jalandhar- 144003.
..….…Opposite parties
Complaint Under the Consumer Protection Act.
Before: Sh. Karnail Singh (President)
Sh. Parminder Sharma (Member)
Present: Sh. AK Walia, Adv Counsel for the complainant.
Sh. RK Sharma, Adv Counsel for the OP No.1 and 2.
Order
Karnail Singh (President)
1. This complaint is filed by the complainant M/s Shital Fibers Limited through its authorized person Harpreet Singh S/o Mohinder Singh, who categorically stated that the OPs are engaged in the business of providing insurance coverage with regard to the person and property of General Public for consideration through out India and more particularly at Jalandhar. The complainant is a registered limited company duly registered with the Registrar of Companies in the year 1993 in accordance with the provisions of 'The Companies Act'. Sh. Harpreet Singh S/o Sh. Mohinder Singh is authorized to act on behalf of the complainant, vide resolution dated 14.08.2013 of Board of Directors for signing all the documents pleading etc. on behalf of the complainant concern and moreover, the said Harpreet Singh is full conversant with the facts of the present complaint.
2. That the complainant in order to save all the risk of loss/damage of building, machinery and stocks (Raw, finished, semi-finished) and goods of stock in process, packing material etc. got insured the same from the concerned insurance companies from the last many years. The complainant on the payment of several lacs of amount as premium got insured for all risk of loss/damage its building, plant and machinery, electrical fitting/installation, stocks (Floater) of all kinds of raw material used for manufacturing of Blanket/Carpets, including finished, semi-finished goods in process, packing material and such other goods of allied nature in the trade of the complainant, lying and or stored in factory premises/shed at 22 places including at C-81, Focal Point, Extension, Jalandhar of several Crore of Rupees with the OPs and with M/s Bharti AXA General Insurance Company Ltd. At Jalandhar under several policies. The OP paid premium of Rs.72,798/- for a policy i.e. Fire Floater Policy bearing No.36100011110300000008 for the period from 01.07.2011 to 30.06.2012 in favour of the complainant. The OPs sent only four pages of the above mentioned policy without any terms and conditions to the complainant even the OPs never communicated any terms and conditions of the above mentioned policy to the complainant.
3. That unfortunately, on 15.04.2012 in the night at about 11:30 PM approximately, factory building at C-81, Focal Point Extension, Jalandhar, suddenly collapsed subsequently damaging the entire plant and machinery/stock/electrical installations and other contents lying/installed within the building at C-81, Focal Point Extension, Jalandhar and accordingly, intimation regarding the loss was immediately furnished to the OPs by the complainant and even the said incident of collapse is widely published in so many papers as well as in the electronic media and the complainant also raised a claim of loss in the above mentioned unfortunate accident/incident of sudden collapse of building at C-81, Focal Point Extension, Jalandhar under the aforesaid Insurance Policy i.e. Fire Floater Policy and accordingly, the OPs on the receipt of the intimation appointed the Surveyor for the assessment of the loss and on demand of the Surveyor M/s Consolidated Surveyors Pvt. Ltd, whatsoever documents and information demanded the same was supplied and the said surveyor submitted an assessment report as under:-
“That as per the survey and assessment report of M/s Consolidated Surveyors Pvt. Ltd, 171, Sector 36-A, Chandigarh, Cause of Loss, all technical experts are of the opinion that if substandard material is used or the design/construction of the building is faulty it would not last for six years. In our opinion the drain, sewerage line and the digging of the pit has also a major role in the building collapse. The possibility of subsidence under the foundation of the building cannot be ruled out. On analysis of reports of all the experts, the correspondence between the Govt. Departments of Irrigation and Sewerage, test reports of the material issued by Guru Nanak Engineering College, Ludhiana obtained by Police Department leads to the only one cause of loss i.e. Subsidence under the foundation of the building. The rear part of the building towards drainage, collapsed first and rear wall and columns fell towards the drainage, which also establishes that the subsidence has taken place.
In losses, in which the cause of loss after the incident, could not be proved and is has doubts, the benefit of doubt is normally given to the insured”.
4. That as per the Survey and Assessment Report of the Surveyor the loss of the share of the New India Insurance Company is Rs.14,39,859/-, but the OP No.2, vide its letter dated 18.06.2013 repudiated the claim of the complainant being the claim is inadmissible due to “Non operation of any insured peril”. The OPs illegally, arbitrarily, without application of mind, vide its registered letter dated 18.06.2013, repudiated the claim of the complainant and as such, the complainant suffered mental tension, harassment, inconvenience, financial loss etc and as such, the complainant is entitled for the total claim of Rs.19,99,000/- and accordingly, the instant complaint filed with the prayer that the complaint of the complainant may be accepted and OPs be directed to pay Rs.19,99,000/- to the complainant as compensation for mental tension, harassment, inconvenience, financial loss etc, deficiency in service, negligence and unfair trade practice, to the complainant.
5. Notice of the complaint was given to the OPs and accordingly, both the OPs filed a joint reply and contested the complaint by taking preliminary objections that the complainant has not come with clean hands before this Forum and has tried to mislead the Forum by concealing the real facts about the dismissal of the complaint at the admission stage on 04.07.2013, which was filed by the complainant before the National Commission, New Delhi, vide Complaint No.155 of 2013, titled “M/s Shital Fibers Ltd. Vs. M/s Bharti Axa General Insurance Co. Ltd.”, on the same cause of action and a part of the same claim as has been claimed in the present complaint and as such the complaint is liable to be dismissed. It is further averred that the instant complaint is not maintainable against the OP as the claim of the complainant stands repudiated as per terms and conditions of the insurance policy, vide letter dated 18.06.2013 after due application of mind as the claim of the complainant is not admissible due to “Non operation of any insured peril” and further alleged that there is neither any deficiency in service on the part of the OP nor any negligence or unfair trade practice, as repudiating the claim as per terms and conditions and even there is no negligence or unfair trade practice and further alleged that the complainant is commercial unit and is not covered under the definition of Consumer under 'The Consumer Protection Act' and as such, the complaint is liable to be dismissed and further alleged that the complainant have no option to bifurcate the claim in two parts and approach different Forums one by one and as such, the complaint is liable to be dismissed. On merits, the factum in regard to purchase of the insurance policy as well as causing damages to the concern of the complainant and submit of claim is not denied, but the other averments as made in the complaint are categorically denied and lastly prayed that the complaint of the complainant is without merits and the same may be dismissed.
6. In order to prove the case of the complainant, the counsel for the complainant Sh. A.K. Walia, Adv tendered into evidence affidavit of the authorized person Ex.CA and another affidavit of Jatinder Kumar Ex.CB and some documents Ex.C1 to Ex.C7 and closed the evidence.
7. Similarly, counsel for the OP No.1 and 2 tendered into evidence two affidavits Ex.OA and Ex.OB and also tendered into evidence some documents Ex.O-1 to Ex.O-8 and closed the evidence.
8. We have heard the learned counsel for the respective parties and also scanned the case file very minutely.
9. After considering the over all circumstances as brought on the file by both the parties and accordingly, we find that the complainant firm got insurance from the OP for the period 01.07.2011 to 30.06.2012 and copy of the insurance is proved on the file by the complainant is Ex.C4 alongwith annexure i.e. Description of the property and previous policy taken by the complainant from the same OP is also available on the file Ex.C-3 alongwith description of the property, the OP has not disputed that the complainant got insured stock of all kinds of Raw Material used for manufacturing of Blankets/Carpets including finished, Semi-finished Goods in process, Packing material and such other goods of allied nature pertaining to insured trade whilst were lying or stored in factory premises/sheds of first class construction situated at location mentioned below, stocks also covered goods held in trust or on commission and or joint holding basis, the complainant got the insurance of the different premises alongwith the premises, which was collapsed having number C-81, Focal Point Extension, Jalandhar and it is also not in dispute that the complainant gave an intimation to the OP in regard to damages to the material as well as to the building and accordingly, the OP appointed a Surveyor namely consolidated surveyor private limited, who after making an investigation submitted its report, which is Ex.C-5 and as per surveyor report, the loss caused to the complainant have been assessed Rs.14,39,859/- but after taking into consideration, the said report of the Surveyor, the OP repudiated the claim of the complainant, vide repudiation letter dated 18.06.2013, which is produced and proved on the file by the complainant Ex.C-6 and same repudiation letter proved on the file by the OP as Ex.O-6 and claim of the complainant is repudiated on the ground that the claim is in admissible due to non operation of any insured peril, it is important to mention here that the claim of the complainant is not repudiated by the OP on the basis of the report of the building Engineer Surjan Singh Sidhu, which is Ex.O-5, in the said report, the said Engineer Surjan Singh Sidhu reported that main cause of collapse of building seems to be the failure at the near joints of RCC columns and RCC beams due to shear stresses, as the work was done without following structural design and may have lead to the collapse. Therefore, structural design defect is the main cause of collapse of building and in addition to it, there is no reliable information regarding construction procedure adopted, required quality control system applied and qualified Civil Engineers deputed for construction and supervision etc. and the said Engineer concluded that the non-compliance of building construction Codal Rules and Regulations, Byelaws, Technical Specifications, may have contributed to produce a weak structure, which could not resist the applied loads, continuous vibrations due to operating machinery and other forces causing ultimate failure of building and on the basis of the said report of engineer Surjan Singh Sidhu dated 14.11.2012 Ex.O-5, the claim of the complainant has been repudiated on 18.06.2013 simply on the ground that it is not admissible due to non operation of any insured peril, but if we go through the repudiation letter Ex.C-6, there is no mention in regard to report of the Engineer Surjan Singh Sidhu, Ex.O-5, rather the plea in regard to defective design of the building as reported by the Engineer is taken by the OP first time in the written statement. So, it is clear that the OP has twisted the story as elaborated in the repudiation letter, after thought just to decline the claim of the complainant.
10. For the argument sake, if we take into consideration report of the Engineer Surjan Singh Sidhu Ex.O-5, which is admittedly prepared by him after collapse of the building and regarding that the Surveyor has categorically mentioned and reported that all technical experts are of the opinion that if substandard material is used or the design/construction of the building is faulty, it would not last for six years and further opined that the drain sewerage line and the digging of pit has also a major role in the building collapse and further submitted that the cause of loss after the incident could not be proved and is has doubts and the benefit normally is given to the insured and also falsified the report of the Engineer Surjan Singh Sidhu by describing in the Surveyor report because the insured has submitted a certificate from the Competent Authority that Textile machines installed by the insured has minimum vibration and such vibration don't damage the building, thus the report of Mr. Surjan Singh Sidhu don't have much substance to prove that the building collapsed due to the material failure. So, we find that the report submitted by the Engineer Sujan Singh Sidhu Ex.O-5 is not prepared prior to collapse of the building and if building in standing/existence is not seen by the Engineer, then how he can give opinion that there is any design defect in the building. So, with these observations, we are of the opinion that the report of the Engineer Surjan Singh Sidhu Ex.O-5 is not based on any solid and material evidence, so, for the concern of terms and conditions as referred by the OP i.e. Ex.O-3 and further referred Clause-VIII of the said terms and conditions. In regard to these terms and conditions, the complainant has categorically pleaded in the complaint that the OP never supplied any term and condition to the complainant, when specific plea is taken by the complainant, then duty is casted upon the OP to prove that in what manner the term and condition was supplied to the complainant at the time of inception of the insurance policy, if the terms and conditions were not supplied, then the same are not binding upon the complainant and further complainant has also established on the file by placing the report of the Surveyor Ex. C-5, wherein he categorically mentioned that the loss caused to the complainant is Rs.14,39,859/-.
11. So, for the other plea taken by the OP, in its written statement that the complainant has concealed the material fact in regard to another complaint No.155 of 2013, title “M/s Shital Fibers Ltd. Vs. M/s Bharti Axa General Insurance Co. Ltd.”, which was on the same cause of action and a part of the same claim has been dismissed by the Hon'ble National Commission on 04.07.2013 and as such, the instant complaint is not maintainable. We have considered this aspect and find that the said complaint of the complainant filed against M/s Bharti Axa General Insurance Co. Ltd. was dismissed by the Hon'ble National Commission, but against that order, the complainant went in appeal before the Hon'ble Supreme Court and accordingly, the complaint was remanded back to the National Commission and copy of the order of the Hon'ble Supreme Court is placed on the file by the OP, which is Ex.O-7. We find that the said complaint pending before the Hon'ble National Commission is against M/s Bharti Axa General Insurance Co. Ltd, in regard to material/goods got insured with the said insurance company and as such, that case is having no nexus with the present complaint in any manner because the instant complaint is in regard to the goods and material as well as building got insured by the complainant with an other insurance company i.e. OP 'The New India Insurance Company'. Therefore, this submission of the learned counsel for the OP is devoid of merits and further, the OP has also took a plea that the complainant is a commercial unit and as such, does not cover under the definition of 'The Consumer Protection Act', but this version of the OP is not correct one because in the present complaint, no activities of the complainant firm is involved in any manner rather the claim of the complainant is only in regard to insurance of the material lying therein and as such, the version of the OP to this effect is also not acceptable and sustainable.
12. In the light of above detailed discussion, we find that the complainant is able to establish its case and demanded consolidated amount i.e. loss of the material, which was assessed by the Surveyor of the OP i.e. Rs.14,39,859/- alongwith compensation and interest to the tune of Rs.19,99,000/-. So, accordingly, the complaint of the complainant is accepted and OPs are directed to pay the aforesaid amount of Rs.19,99,000/- to the complainant within one month from the date of receipt of the copy of order. The complaint could not be decided within stipulated time frame due to rush of work.
13. Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.
Dated Parminder Sharma Karnail Singh
06.12.2017 Member President
