BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI
BEFORE : Hon’ble Thiru.Dr Justice S. TAMILVANAN PRESIDENT
Tmt Dr. S.M.LATHA MAHESHWARI MEMBER
F.A.NO.363/2014
(Against order in C.C.NO.102/2011 on the file of the DCDRF, Chennai (South)
DATED THIS THE 25th DAY OF JUNE 2019
M/s. Iffco Tokio General Insurance Co. Ltd.,
Re. by Senior Manager
Old No.195, New No.28
North Usman Road
T. Nagar
Chennai – 600 017 Appellant / Opposite party
Vs.
M/s. OPG Energy (P) Ltd.,
Rep. by its General Manager
No.117, P.S. Sivasamy Salai
St. Ebba’s Avenue, Mylapore
Chennai – 600 004 Respondent/ Complainant
Counsel for Appellant/opposite party : M/s M.B.Gopalan Associates
Counsel for Respondent/complainant : M/s K.Ramaswamy
The Respondent as complainant filed a complaint before the District Forum against the opposite party praying for certain direction. The District Forum allowed the complaint. Against the said order, this appeal is preferred praying to set aside the order of the District Forum dt.12.9.2014 in CC. No.102/2011.
This appeal coming before us for hearing finally on 13.6.2019 and upon hearing the arguments of the counsel on bothsides, perusing the documents, lower court records, and the order passed by the District Forum, this commission made the following order:
Dr. JUSTICE S. TAMILVANAN, PRESIDENT
1. This appeal is preferred against the order dt.12.9.2014 in CC.No.102/2011 of the District Forum, Chennai (South).
2. The opposite party, before the District Forum is the appellant herein.
3. The Respondent as complainant filed a complaint before the District Forum, alleging deficiency in service on the part of the appellant/ opposite party as follows:
The complainant is a power generating company through wind mills and Gas and was supplying power to its customers. The complainant had taken an Industrial All Risk Insurance Policy with the opposite party, covering risk of damage caused by fire and material damage due to breakdown of machinery for the factory situated at Komal Road, Maruthur Village, Therishandur 609 808. The insurance policy coverage was between 15.3.2008 to 14.3.2009 and the insured value is at Rs.44 crores.
4. On 6.9.2008 at about 15.30 hours one of the insured Machinery namely DG #3 Double Gear Bearing Bush had suddenly stopped from its working condition which was duly intimated to the opposite party. The opposite party had deputed a surveyor and a preliminary survey report also has been filed. Claim form also submitted by the complainant by claiming a sum of Rs.15,00,000/- with supported purchase bills and invoices.
5. While so on 26.2.2010, the complainant had suddenly received a message by email from the opposite party that claim had been approved for a sum of Rs.4,10,290/- and requested the complainant to discharge the loss voucher in full and final settlement of claim. Due to the financial crunch, the complainant had received the said amount on 31.3.2010 in order to avoid further delay, but immediately on 1.4.2010 wrote a letter to the opposite party that he accepted the said amount under protest, and reserving right to claim the balance amount. The complainant had submitted that the insurance company did not explain as to how the amount of loss was arrived at Rs.4,10,290/-, and also did not disclose the entire survey report. The opposite party forwarded the details of the settlement as stated in the complaint. According to the statement, the Gross Assessment Loss was arrived at Rs.12,12,447.74/- against the estimated loss of Rs.15,00,000/-. The amount deducted towards Policy excess at Rs.5 lakhs, and the under insurance claim at Rs.4,57,903.96/- are all unjustified. Therefore, the complainant filed a complaint, praying for the refund of Rs.9,57,903/- towards the balance amount alongwith compensation and cost.
6. The Appellant/ opposite party, though served and filed their version before the District Forum, having failed to take part in further proceedings by way of filing document and proof affidavit in order to prove their case, had been set exparte before the District Forum, and an exparte order was passed by allowing the complaint, with a direction to the opposite party, to refund Rs.9,57,903/- alongwith interest and cost of Rs.5000/-.
7. By impugning the order passed by the forum below, the opposite party is before us now, by way of filing this appeal, praying to set aside the order passed by the District Forum, by allowing this appeal.
8. We have heard the learned counsel appearing on either side, perused the documents filed by the complainant, and the order impugned. The Point for consideration is
1.Whether there is deficiency in service on the part of the opposite party?
2. Whether the appeal has to be allowed on the ground raised by the appellant/opposite party?
3. What relief the parties are entitled to?
Point No.1 and 2:-
9. It is an admitted fact that the respondent/complainant is a power generating company by using wind mills and also supplying sufficient power to customers which had taken an Industrial All Risks policy for the period between 15.3.2008 and 14.3.2009 under which a claim was made for breakdown of machinery. The opposite party had appointed a surveyor who assessed a gross loss at Rs.15,19.402/- before deduction of air freight charges Rs.47,999/-, notional salvage Rs.1624/- under insurance Rs.5,82,460/-.
10. Accordingly the opposite party deducted the aforesaid amount towards freight charges , notional salvage and also for under insurance and only the balance amount was paid towards full settlement of the claim made by the complainant. The case of the complainant is that the opposite party was not empowered to deduct any amount towards under insurance or excess insurance. It is seen that the complainant in support of their claim marked Ex.A1 to A7. Ex.A1 is the copy of the Industrial All Risk Policy. Ex.A2 is the copy of the claim for a sum of Rs.15,00,000/-. As per the original of Ex.A5 the surveyor appointed by the opposite party has filed his assessment report wherein the gross loss is stated at Rs.12,12,447.54 before deduction of airfreight charges Rs.36,825.18 and notional salvage Rs.1895/-. Therefore the assessed loss is stated at Rs.11,73,727. In the statement the assessor appointed by the opposite party has stated Rs.4,57,903 as 39.01% towards gross under insurance. Similarly amount of Rs.5,00,000 excess for these under insurance and excess amount being deducted. There is no explanation in the side of the opposite party.
11. The learned counsel for respondent/complainant submitted that the complainant had taken Industrial All Risks policy for a total coverage of Rs. 44 Crores, the amount of compensation claimed is only Rs.15 lakhs and the opposite party settling the claim for payment of Rs.4,10,290/-. In the aforesaid circumstances, the claim was made only for the amount not paid by the opposite party on the ground of under insurance, a sum of Rs. 5,82,460/-, it is stated for 39.01% and another unreasonable deduction stating excess of Rs.5 lakhs.
12. It is seen that the opposite party remained exparte before the District Forum and no documents was filed on the side of the opposite party, for the reasons best known to them. However pleadings of both sides and the documents marked on the side of complainant is sufficient to decide the appeal on its merit. As the policy had admittedly taken for a sum of Rs.44 Crores and the assessed gross loss amount was assessed by the surveyor appointed. Similarly the surveyor appointed by the opposite party, deduction of Rs.5 lakhs towards policy Excess and Rs.5,82,460/- towards under insurance from the gross loss assessed was in accordance with the terms and condition of the policy. It is well settled that the insurance is a contract of indemnity. In the aforesaid circumstances, the complainant who insured for Industrial All Risks policy for Rs.44 Crores is entitled to claim compensation for actual loss, less legal deductions. It is not in dispute that the air freight charges Rs.47,999/-, notional salvage Rs.1624/- under insurance Rs.5,82,460/- was deducted as stated by the opposite party on the ground of under insurance which was totally improper not support by any law.
The learned counsel for Appellant/opposite party cited the decisions as follows:-
(2009) 7 Supreme Court cases 777
“Underinsurance occurs when the amount of insurance is less than the full value of property insured and means that the insured pays a smaller premium than that required as the rate is fixed on the basis of full values being insured. It leads to partial loss claims being scaled down by average(qv)
We are of the considered view that the aforesaid decision is not applicable to the facts of the case, as the opposite party had not paid the amount even as per the value assessed by the surveyor, less the deduction made towards air freight charges and notional salvages. In the afore said circumstances, the respondent/complainant had sent a letter on 1.4.2010, original of Ex.A.6, again another letter dated 7.4.2010 to the opposite party, however it is seen that there was no reply from the opposite party.
13. Having gone through the impugned order and the material papers submitted by both the counsels, we are of the considered view that the points No.1 and 2 have to be answered in favour of the respondent/complainant as against the appellant/opposite party.
Point No.3:-
Having gone through the grounds and materials and arguments, it is clear that there are no grounds available on the side of the appellant. Ex.A.5, the assessor has stated the deduction at 39.01% as under insurance and on what basis the percentage was stated when there is proper coverage of insurance of Rs.44 Crores, and the under insurance has not been explained. Hence we could find no reason to interfere with the order dated 12.9.2014 made in CC.No. 102/2011 passed by the District Consumer Disputes Redressal Forum, Chennai(South), accordingly the appeal was liable to be dismissed.
In the result, confirming the order passed by the District Consumer Disputes Redressal Forum, Chennai(South), in CC.No. 102/2011 dated 12.9.2014, the appeal is dismissed with cost of Rs.5000/- to be paid by the appellant/opposite party to the Respondent/complainant.
Sd/-xxxx Sd/-xxxx
S.M. LATHA MAHESWARI S. TAMILVANAN
MEMBER PRESIDENT
