DATE OF FILING: 20.3.2014
DATE OF DISPOSAL: 26.12.2016
Dr. N.Tuna Sahu, Presiding Member:
The complainant has filed this consumer dispute under Section 12 of the Consumer Protection Act, 1986 alleging deficiency in insurance service against the Opposite Parties ( in short the O.Ps) and for redressal of her grievances before this Forum.
2. Briefly stated the case of the complainant is that the complainant being a businessperson running a Dal Mill with supported machinery and stock situated at Vill: Anantei, Po: Banthapalli, Berhampur, Ganjam with the financial assistance from Bank of Baroda, Main Branch, Fire Station Road, Berhampur, Ganjam. As per her complaint, she has been doing such business for earning her bread and butter and also to lend financial help to other accompanied labourers. The complainant on payment of Rs.2,981/- towards premium before O.P.No.2 insured her buildings stocks/contents under the risk code No.098/09 for sum assured Rs.12,82,000/- vide policy No.183201/11/12/ 3100000899 on 01.02.2013 and the policy is valid from 07.02.2013 to midnight 06.02.2014. To her misfortune, the entire South region of Odisha State particularly Ganjam District severely affected due to natural disaster “PHILIN- 2013” which touched Ganjam district in the evening of 12.10.2013. Due to such disaster, the entire Dal Mill unit as well as the stock kept inside the Mill premises was destroyed and the building was fully collapsed which caused heavy damage to the machinery unit of Dal Mill due to continuous rainfall followed by Philine. The industry of the complainant was completely damaged and the stocks were also of no use. Due to the loss, the complainant through a written intimation on 11.11.2013 intimated to the insurer to compensate such loss. The financer of the complainant M/s Bank of Baroda, Berhampur Branch also extended their co-operation for settlement of loss caused by the ‘Philine’ and the banker has also approached O.P.No.2 to expedite settlement of the insurance claim at the earliest vide its letter No.INS 2013/26 dated 11.11.2013. On receipt of both the written approaches, the O.P.No.2 deputed its Surveyor and Loss Assessor namely Mr. S.S.Rayat, who inspected the insured premises and asked to furnish certain documents vide his letter No.Nil/46/13-14 dated 14.11.2013. In compliance to the letter, the complainant submitted the loss assessment of insured machinery and stock as well as the renovation cost of the damaged premises and machines in a format amounting to Rs.13,38,000/- on 25.11.2013. After compliance, the said surveyor again issued a letter vide No. NIL/51/2013 and further asked to furnish some other documents. The complainant furnished all the relevant documents to the O.P. No.2 but the O.Ps remained silent for more than two months and harassed the complainant to move from one table to another in premises of the O.P.No.2. The complainant once again approached O.P.No.2 in writing for settlement of the claim on 23.1.2014. After receipt of the written approach, the O.P.No.2 became annoyed and issued a letter vide letter No. 163201/MCI/2610/2014 dated 31.01.2014, wherein the O.P.No.2 repudiated the claim of the complainant as “No claim”. Hence, the complainant has filed this consumer complaint before this Forum with a prayer to direct the O.Ps to pay a sum of Rs.13,38,000/- towards assessed loss, Rs.10,000/- for expenses to mitigate the dispute and to award Rs.50,000/- towards mental agony and Rs.10,000/- towards cost of litigation in the interest of justice.
3. On receipt of notice from this Forum, the O.Ps filed version through their learned counsel Sri P.C. Panigrahi, Advocate, Berhampur. The learned counsel for the O.Ps filed written version on 22.07.2014 and written argument on 03.02.2016. In the written version, it is stated that averments made in the complaint are not all true and correct; the complainant has to prove the same which are not specifically admitted herein and they are deemed to be denied. It is not true that the complainant is a businessperson and running his business for her livelihood. In fact she had no Dal Mill with supported machinery and stock situated at village Anatei. It is not true that the complainant has paid sufficient premium for covering the risk buildings, stock/contents under the code No. 098/09 for Rs.12,82,000/- vide Policy No.183201/11/12/3100000899 under this O.P. In fact her banker had paid net premium of Rs.2,981/- excluding service tax for covering the risk of the stock of his alleged Dal Mill for the complainant vide policy No.163201/11/12/3100000699 which is valid from 07.02.2013 to 06.02.2014. The O.P. has not received any premium either from the complainant or from his banker for covering the risk of the building and machinery of the Mill. It is not true that due to the Philine of 2013, the entire Dal unit as well as the stock kept inside the mill premises have destroyed and building as well as machinery of the mill was fully damaged. It is not true that the continuous rainfall followed by the Philine were also caused heavy damage to the machinery, building and stocks to the said premises. It is also admitted that O.Ps received a written intimation of the complainant on 11.11.2013 along with photocopy of policy document vide No.163201/11/12/3100000699. The complainant never submitted her written intimation relating to his Philine claim directly to the O.Ps. It is a fact that after receipt of intimation relating to the Philine claim of the complainant from the Bank of Baroda, the O.P. deputed a Surveyor-cum-Loss Assessor who is under IRDA panel namely Mr. S.S. Rayet for assessing the loss of the stock of the complainant. It is not true that the complainant furnished all documents as required by the Surveyor. The so called self style annexure are created for the purpose of the case. It is submitted that the complainant has no separate and independent building for her business establishment. So the alleged loss caused to her business establishment due to the alleged Philine does not arise. In the present case the O.P. had received premium from the Bank of Baroda for covering the risk of stock of the mill of the complainant against the fire for the period from 07.02.2013 to 06.02.2014 vide policy No. 163201/11/12/3100000699. The said policy does not cover the risk of building and machinery of the mill of the complainant. In the said intimation the complainant has mentioned that there was Philine on 12.10.2013 and due to the said Philine the entire building of the mill was collapsed and huge damage was caused to the stock of the Mill. So she wanted to compensate the above loss by insurer. Though the Philine was occurred on 12.10.2012 but he has given intimation to her banker on 11.11.2013 after about one month who forwarded the same to the O.Ps thereafter. As per the policy conditions the insured has to give intimation of loss to the insurer immediately after occurrence so that they can effectively assess the loss by the Surveyor. In the present case the complainant has deviated from the conditions of policy by not giving intimation of loss to the O.Ps immediately after occurrence. However, the O.P. deputed a surveyor Mr. S.S. Rayet of Cuttack for inspection and making the assessment of loss. The surveyor had been to the site along with the complainant and found that the building pertaining to the Mill is jointly used by M/S Sai Ram Enterprises, a Dal Mill owned by Smt.Rita Kumari Patro W/o Sri Pratap Patro with common meter. There was no specification of godown of the M/s Tara Tarini Rice Mill and M/s Sai Ram Enterprisers. Apart from it the Surveyor considering physical condition of machinery and electrical equipments reported that the mill is not running since long. In order to ascertain the power supply to the mill they asked for electric bills and payment receipts from the insured. The insured submitted photocopies of the five numbers of electric bills along with some photocopies of receipts showing the payment of electricity dues in respect of the mill. On verification of the above bills and receipts by O.Ps, it came to know that the bills and receipt of SOUTHCO submitted by the complainant are completely forged and are manipulated for purpose of the claim. On further enquiry from the office of SOUTHCO it is found that the complainant has not paid electric dues since April 2012 for which the electric supply connection was permanently disconnected. After physical verification of Dal Mill and perusal of policy conditions, the surveyor came to know that the insurance is covered only for the stock of Dal i.e. raw material and finished products. During inspection of Mill by the surveyor the complainant submitted photocopies of stock register along with photocopies of some bills showing sale and purchase of Dal. But in spite of the request made by the surveyor for producing bank stock statement and original documents, the complainant failed to comply the same. Since there was no stock of Dal in the Mill premises at the time of inspection by the surveyor and insured has not provided the original documents in spite of request made by it and failed to justify her claim, it was difficult for the surveyor to assess loss. Accordingly the Surveyor submitted its report without assessment. It is also noticed by the surveyor that the same godown was used by the M/s Sai Ram Enterprises, i.e. the Dal Mill having proprietorship of Mrs. Rita Kumari Patro W/o Sri Pratap Chandra Patro and M/s Tara Tarini Rice Mill having proprietorship of Mr. Pratap Chandra Patro with common electric meter. There was no clear cut demarcation in the godown for both the units which is also violation of policy conditions. No stock was available for inspection by the surveyor. In such a situation the O.P. has no liabilities in connection with the above claim. Accordingly the claim of the complainant declared as ‘no claim’ by the O.Ps and intimated the same to her. The complainant with a mala fide intension to grab the public money has played fraud with the O.Ps. She has also created some fraud documents for getting wrongful gain. The O.P. has rightly repudiated the claim of the complainant. The complainant is not a consumer within the definition of Consumer Protection Act, 1986. The complaint filed by the complainant is otherwise not maintainable under law. This Hon’ble Forum has got no jurisdiction to hear the matter. Hence the O.Ps prayed to dismiss the complaint with exemplary cost in the interest of justice.
4. On the date of final hearing of the consumer dispute, we heard the learned counsel for all parties and have also gone through the complaint and written version/ arguments and have also verified the vital documents placed on the case record like policy document, estimate of loss of the complainant, intimation letter, electricity bills of the Dal Mill and payment receipts of electric, status report of power supply to the Mill and the Report of the Surveyor / Loss Assessor placed on the case record as Annexures marked as A-H series.
During the course of hearing the learned counsel for the complainant submitted that the complainant was insured her Dal Mill with O.Ps on payment of Rs.2,981/- towards premium for a sum assured of Rs.12,82,000/- with regard to raw materials and finished products. Due to cyclone Philine occurred on 12.10.2013, the stocks of Dal Mill along with building was damaged for which the complainant intimated the loss in writing to the O.P. No.1 on 11.11.2013 and after receipt of the claim the O.Ps deputed their surveyor/loss assessor. The Surveyor assessed the loss of the complainant on 13.11.2013 and asked for some documents and the complainant submitted all required documents as per the needs of the Surveyor but the O.Ps repudiated the claim of the complainant on 31.01.2014 as ‘No Claim’ vide their letter No.163201/M.Cl/2610/2014. Hence, the complainant has filed this consumer dispute to direct the O.Ps to compensate the loss as per her prayer in the complaint.
On the contrary, the learned counsel for the O.Ps submitted that there is no dispute that the O.P. No.2 has received the premium as stated above from the complainant through Bank of Baroda for insurance cover for raw materials and finished products of her Dal Mill. It is also submitted that there is no dispute that the policy was valid but the complainant has intimated the loss after one month of occurrence of the Philine i.e. on 11.11.2013 through her banker. As per policy conditions, the insured has to give intimation of loss to the insurer immediately after occurrence so that they can effectively assess the loss by a surveyor. On receipt of the intimation, the O.Ps deputed the Surveyor and assessed the loss on 13.11.2013. On physical verification of the Dal Mill, the Surveyor verified the stock register, stocks of raw materials and finished products, electricity bills, books of account of the Mill and asked for documents from the complainant. The complainant submitted the photocopies of relevant documents which were manipulated and when asked for originals she failed to produce the same. On spot verification, it is also found that the same godown was used by M/s Sai Ram Enterprises, Dal Mill having proprietorship of Smt. Rita Kumari Patra, W/o Sri Patrap Chandra Patra and M/s Tara Tarini Rice Mill having proprietorship of Sri Pratap Chandra Patra with common electric meter. There was no clear cut demarcation in the godown for both the units which is also violation of policy conditions. There was no stock available for inspection by the Surveyor. In such a situation the O.Ps have no liabilities in connection with the claim. Accordingly, as per the Survey Report, the O.Ps repudiated the claim of the complainant on 31.01.2014 as ‘No Claim’. The complainant with a mala fide intention to grab policy money has played fraud with the O.Ps and has also created some fraud documents for getting wrongful gain. In support of his pleadings, the learned counsel for O.Ps has also cited two authorities one from Andhra Pradesh State Consumer Disputes Redressal Commission, Andhra Pradesh in the case of Pratapa Ram Kiran Vs. Kotakki Lakshmi & Ors reported in II (2015) CPJ 108 (AP) and another from Supreme Court of India in the case of Oriental Insurance Co. Ltd. Vs. Munimahesh Patel vide Case No. Appeal (Civil) 4091 of 2006 decided on 12.09.2006. Hence, consideration the facts and taking into account the Survey Report, the O.Ps prayed that the Hon’ble Forum may be pleased to dismiss the complaint of the complainant with exemplary cost in the interest of justice.
5. We have carefully considered the submissions made by learned counsel for the complainant as well as for O.Ps and have gone through the documentary evidence on record including survey report and other documents as discussed above. The points to be decided by this Forum, whether the present complainant is entitled for the insurance claim? And whether the O.Ps are justified by repudiating the claim of the complainant?
To address the first question, we would like to say that on perusal of materials on case record it is found that the complainant was insured her raw materials and finished products under the said policy for a sum of Rs.12,82,000/- on payment of Rs.2,981/- towards net premium of the said policy in dispute. The risk was covered for standard fire and special perils. It is not in dispute that the policy of the complainant as stated above is valid from 07.02.2013 to 06.02.2014 i.e. during the occurrence of the Philine on 12.10.2013 but it is a fact that she has intimated the claim to the O.P. No.1 (insurance company) at a belated stage i.e. on 11.11.2013 after elapse of one month of the incident. It is also beyond dispute that the O.Ps deputed the surveyor/loss assessor on receipt of the claim of the complainant and also assessed the loss of the complainant on 13.11.2013 and submitted the Survey Report to the O.Ps. On perusal of the survey report of S.S. Rayet, Surveyor/ Loss Assessor, it appears that the complainant had removed all her alleged stocks of Dal Mill at the time of physical verification by the Surveyor and it was reported to the surveyor that stocks were disposed off /sold to avoid further loss without intimation and knowledge of the O.Ps. It is also mentioned in the survey report that the books of account and Dal stocks are not maintained properly and bills and vouchers of sale and purchase is doubtful. The forged electric bills and payment receipts leads to believe that the Dal Mill was not operational and hence storage of 182 Qts of Dal worth Rs.6,76,000/- is not justified and the Mill was not functional due to disconnection of power supply. Hence, the O.Ps repudiated the claim of the complainant on 31.01.2014 on the ground that Dal Mill was not operational from Dec 2011 onwards till the date of Philine so the stock of pulses in Dal Mill was not available during Philine. Therefore, the O.Ps intimated to the complainant as her claim as ‘No Claim’.
6. During the course of hearing of the consumer dispute, we also perused aforesaid facts as reported in the Survey Report with the help of documents and also corroborated the fact on verification of the materials placed on the case record. On careful verification of documents we found that the complainant has manipulated the electric bills and payment receipts which were also confirmed from the competent authority of SOUTHCO, Berhampur and the complainant has also admitted the fact during the course of hearing. It is also found that the bills and vouchers of sale and purchase made by the complainant was manipulated and not maintained properly. From the above discussion it is crystal clear that the Dal Mill of the complainant was not operational during the period of Philine since the power supply was disconnected before December 2011 and the alleged stocks were not available and was prepared by the complainant by making manipulation of stocks and sale registers so as to put a claim before the insurance company. That apart, in this case we would also like to point out that the policy of the complainant is covered only for raw materials and finished products and the present policy in dispute does not cover machinery, tools or buildings so the complainant is not entitled for the loss of her building or machineries during the Philine. In the light of aforesaid discussions and taking into account to the facts and circumstance of the case as well as considering the Survey Report of the Loss Assessor, we are of view that the claim of complainant can’t be allowed since the Survey Report does not disclose any loss of the complainant rather it has reported about manipulation of documents and electric bills which was also established on verification of the material documents during the course of hearing of the case. The Survey Report is an important document which we can’t be brush aside. Accordingly, we feel that the claim of the complainant is not a genuine claim. Where the version of complainant is not reliable and where complainant has not come to this Forum with clean hands, we can’t allow the claim of the complainant whatsoever. In our considered view, we would like to say that a frivolous claim submitted by the complainant before the insurance company can’t be allowed. Hence, the complainant is not entitled for the insurance claim since her claim is not a genuine one.
7. In this case the learned counsel for the O.Ps has citied two authorities in support of their case one is of Hon’ble Supreme Court of India and another is from Hon’ble State Commission, Andhra Pradesh as discussed above where it was held that where matter involves examination and cross-examination of witnesses and appreciation of documentary evidence, disputed question of fact can’t be decided in summary proceedings by this Forum and parties are required to be relegated to Civil Court for proper adjudication of matter. In this context, we would like to say that though in this case the documents are manipulated by the complainant but there is no disputed fact involved in the present case since the complainant during the course of hearing has admitted that the documents are manipulated and it is also established from the stock register, bills and vouchers and receipts. When a fact is already admitted there is no need to relegate it to the Civil Court for examination and cross examination of documentary evidence and for proper adjudication of the case. Therefore, we are, not inclined to accept the contentions of the learned counsel for the O.Ps and not accepted the citations submitted by him as it is not applicable in the present dispute in view of the factual difference of the case.
8. With regard to the second question, we would like to say that where the claim of the complainant is not genuine and a frivolous one, the O.Ps are justified by repudiating the claim of the complainant. Insurance company can’t be held liable to indemnify frivolous claim of the complainant. Hence, we reject the claim of the complainant and the O.Ps are absolved from their liability in view of the discussions made herein above.
9. Consequently, the complaint filed by the complainant is dismissed due to devoid of any merit. However, in the present fact and circumstances of the case, we are not inclined to pass any order as to cost. The consumer complaint of the complainant is disposed of accordingly.
10. The order is pronounced on this 26th day of December 2016 under the signature and seal of this Forum. The office is directed to supply copies of this order to the parties free of cost as per rules and a copy of order be sent to the server of
