Delhi

New Delhi

CC/838/2013

J.B. Overseas - Complainant(s)

Versus

M/S. United India Insurance Company Ltd. - Opp.Party(s)

14 Sep 2022

ORDER

 

 

                                  CONSUMER DISPUTES REDRESSAL COMMISSION-VI(DISTT. NEW DELHI),

‘M’ BLOCK, 1^STFLOOR, VIKAS BHAWAN,

I.P.ESTATE, NEW DELHI-110002.

 

Case No.CC. 838/2013                                              

In the matter of:

        M/s J.B. Overseas

        KD-20, MIG Flats, Pitampura,

        Delhi-110034

      Through its Power of Attorney Mr. Gagan Chaturvedi

 

                                                            ...COMPLAINANT

VERSUS

United India Insurance Co. Ltd.

8^th Floor, Kanchanjunga Building,

18, Barakhamba Road,

New Delhi-110001.

                                                                                                .....OPPOSITE PARTY

 

 

             Quorum:

             Ms. PoonamChaudhry, President

            Sh. Bariq Ahmad, Member

            Ms. Adarsh Nain, Member

                                                                                                Dated of Institution :14.09.2013

                                                                                                Date of Order           : 14.09.2022

 

 

 

O R D E R

ADARSH NAIN, MEMBER

1. The complainant is a Partnership firm and has filed the present complaint through its Power of Attorney  against United India Assurance Co. Ltd, the opposite party (in short OP) under Consumer Protection Act, 1986.
2. The Facts of the case, as averred in the complaint, are as below:

1. The complainant purchased the imported chickpeas from M/s Kundan Rice Mills Ltd. under on High Seas Sales Agreement and stored the stock in the godown at Kolkata to supply/ sale the same to the local vendors.
2. The complainant stated that the above chick peas could be used even after 2 years if not contaminated due to contact of water.
3. The complainant approached the OP for the insurance of above stock and the OP after due delibrations issued the Insurance policy on 02.03.2011 and thereafter renewed the same on every quarter. The details of the policy had also been given.
4. The complainant was  regularly selling the aforesaid goods and the stock was stacked in such a way in the godown that no space was left to inspect the lower layer of stock. When the stock reduced due to delivery, the complainant came to know that the flooded water has damaged the chickpeas stacked in the godown.
5. It is further stated  that the complainant took all the required safety measures for storage of goods like chickpeas and there was no chance of any leakage/ seepage.
6. It is further stated that due to heavy rainfall in the month of June, 2011, there was water logging on the roads in kolkata and the water entered in the premises including the godown of the complainant.
7. Vide email dated 29.11.2011, the complainant informed the OP i.e. immediately after they come to know that chickpeas after coming into contact with water has contaminated and become unfit for human consumption.
8. The complainant filed their Insurance claim on 29.12.2011 for a claim of Rs.16,68,420/- stating loss of stocks due to water inundation and requested for deputing the surveyor.
9. The Surveyor, appointed by the OP to assess the loss, in its report, concluded after inspecting the premises and book of accounts that there was huge stock of chickpeas during the period of rain and at that time, it was impossible for the complainant to inspect the lower layer of of the stacking chick peas whether the same has been contaminated or not.
10. The surveyor underestimated the loss to the tune of Rs.10,69,035/- and concluded that there was delay in intimation of the loss and 10% of loss has been adjusted towards aggravation of loss while the actual loss suffered by the complainant was Rs.16,68,420/-.
11. The Op vide letter 26.04.2013 wrongly repudiated the claim of the complainant stating that loss was intimated to the Op after a period of six months leading to violation of condition no.6(1) of the policy.

3.  The complainant filed the present consumer complaint for the redressal of its grievances and for appropriate relief and compensation from OP, alleging deficiency in service on the part of OP by not settling the claim within time.
4. The complainant has prayed for claimed amount of Rs.16,68,420/-alongwith interest as well as  for compensation for mental agony and loss of business due to undue delay in settlement of claim and litigation expenses.
5. OP has contested the case and filed their written version taking preliminary objections that no deficiency in services is attributable against the OP as claim has been duly repudiated under the terms and conditions of the policy. It is stated that the present claim was intimated to the company after six months of loss which is violation of condition no.6 (i) of the policy.
6.  On merits, it has been averred that the complainant had the knowledge that in the month of june, flood water had entered in the premises, contacted the lower layer of the stock and loss has occurred. The claim was intimated to the company with a delay of 6 months after the loss, leading to the violation condition no.6(i) of the policy, hence, no deficiency in service on the part of OP.
7. Complainant has not filed any rejoinder to the reply affidavit, but adduced his evidence by affidavit. In his affidavit, the complainant reiterated the contents of the complaint and in support of his contentions, inter alia relied upon the copies of High Seas Sale Agreement, Insurance Policies, Claim form, Newspaper cuttings and Photographs of inundation of Rain water in kolkata, extracts of Survey Report and Repudiation letter.
8. OP also filed evidence by affidavit reiterating therein the averments made in WS/reply. The OP, in support of its contentions, has relied on copies of relevant Insurance policy, Letter of Repudiation, Survey Report and the claim form.
9. We have heard the learned counsel for parties and perused the record.
10.  It is evident from the material placed on record that it is an undisputed fact that the the OP company had issued a Standard fire and special peril policy at the request of the complainant bearing no. 200700/11/11/11/00000228 for a period 01.06.2011 to 31.08.2011
11. The case of the complainant is that the flooded water damaged the chickpeas stacked in the godown which was insured with OP and OP has wrongly repudiated the claim of the complainant stating that loss was intimated to the OP after a delay of six months leading to violation of condition no.6(1) of the policy while it was  not possible for the complainant to check the lower layer of the stock due to lack of space in Godown as the godown was full of stock and bags were staged in such a manner leaving no space to shift the bag to view/ inspect the same. In support of their contentions, the complainant has relied upon the report of the Surveyor appointed by the OP.
12. According to the insurance company, there was no deficiency on their part as the complainant committed breach of the condition no. 6(1) of the policy by not giving immediate intimation of the alleged loss to the insurer which stipulates as under;

  "6. (i) On the happening of any loss or damage the insured shall forthwith give notice thereof to the company and shall within 15 days after the loss or damage, or such further time as the company may in writing allow in that behalf, deliver to the company.

13. In support of his contentions, the complainant has relied upon the survey report submitted by the the surveyor appointed by the OP company. However, the complainant alleged that the surveyor underestimated the loss to the tune of Rs.10,69,035/- while the actual loss suffered by the complainant was Rs.16,68,420/-.
14.  OP has also relied upon the survey report. However, it is contended that the surveyor’s  report is prepared on the basis of available records and imagination of time of loss.
15.  On perusal of the report, it is observed that the surveyor had  confirmed the incident of  “very heavy rainfall” during the month of June,2011 as the same had been broadcasted through electronic media. Further, the surveyor also confirmed that during the interrogation, the surveyor was informed that the complainant could not inspect the stock as the godown was full of stock and the said fact was confirmed from the book of accounts. In his report, the surveyor stated that although at the time of survey, the rain water had drained out but it appeared from the mark of water on the wall as well as on bags that the water inside godown was about 2 ft. In view of above findings, the contention of the OP does not hold ground that the actual survey could not be performed and the same was based on imagination. The surveyor concluded that delay in intimation cannot be considered motivated as per circumstantial evidence. The surveyor has assessed the loss to the tune of Rs.10,69,035.00/- as Net Loss under the terms and conditions of the policy after deducting the salvage realized and compulsory excess. The surveyor has also adjusted 10% of loss towards aggravation which might have accrued on account of delay  and other necessary deductions under the policy and recommended the same to be payable subject to terms and conditions of the policy.
16.  In above context, the Ld. Counsel for the complainant has relied upon the case titled S.K.Exports Pvt. Ltd. Vs. New India Assurance Co. Ltd III (2004) CPJ 74 wherein Hon’ble  NCDRC held – “There is nothing in the affidavits filed on behalf of the insurance company that the said assessment was in any way erroneous. In view of this matter, on the basis of surveyor report, the complainant is entitled to have at least the said amount of Rs.1,45,00,000/.”
17.  Further, the perusal of the record shows that the Insurance Company has not repudiated the claim on the ground that the claim was not genuine. The claim has been repudiated on account of breach of condition no.1 which provides for delayed intimation.
18. In support of his contentions, the Ld. Counsel for the complainant also placed the reliance on the decision of Hon’ble Supreme Court in the matter titled Om Prakash Vs. Reliance General Insurance and Anr. dated Oct 4,2017 wherein it was held  “ It is also necessary to state here that it would not be fair and reasonable to reject a genuine claim which has already been verified and found to be correct by the investigator. The condition regarding delay shall not be a shelter to repudiate the insurance claims which have been otherwise proved to be genuine”
19.  It is to be noted that here reliance may very well be placed on a decision of Hon’ble Supreme Court passed in the case titled Jaina Construction Company vs. Oriental Insurance Company limited and Another 2022 SCC Online SC 175, The relevant extract of the same is as under:-

“ The District Forum allowed the said claim of the complainant by holding that the

complainant was entitled to the insured amount on non-standard basis, i.e., Rs. 12,79,399/-

as 75% of the IDV i.e., Rs. 17,05,865/- with interest @ 6% p.a. from the date of filing of the

complaint till realization from the Insurance Company. The District Forum also awarded

compensation of Rs.10,000/- and litigation expenses of Rs.5,000/- to the complainant. The

aggrieved Insurance Company preferred an appeal being Appeal No. 612 of 2015 before theState Consumer Disputes Redressal Commission (Haryana), Panchkula. The complainant also preferred an appeal being Appeal No. 537 of 2015 seeking enhancement of compensation. The State Commission dismissed the appeal filed by the Insurance Company and partly allowed the appeal filed by the complainant by increasing rate of interest awarded by the District Forum from 6% to 9% vide the Judgment and Order dated

16.12.2015. The aggrieved Insurance Company preferred the Revision Petition before the

NCDRC, which set aside the order of Hon’ble State Commission and District Commission. The appellant had thereafter preferred an appeal before Hon’ble Supreme Court. The Hon’ble Supreme Court set aside the order of the Hon’ble National Commission and affirmed the order of Hon’ble State Commission.

 

20.   It is evident from the above discussion that there is admittedly delay of about six months in lodging the claim before the Insurance company, however, the Insurance Company did not repudiate it on the ground that it was not genuine; it had repudiated it on the ground of delay. It is further evident that the surveyor has based his report on circumstantial as well as documentary evidence and assessed the loss after adjusting 10% of the loss on account of the aggravation due to delay in intimation and other adjustments under the terms of the policy, we are of the view that the survey report deserves to be relied upon and the contention of the complainant that the surveyor had underestimated the loss deserves to be dismissed in view of the fact that surveyor had assessed the loss after making necessary deductions on account of delay as well as under the terms of policy.
21.  It is further evident from the evidence on record that the complainant had been negligent in not being diligent enough to take reasonable care to find the damage or loss to his stocks in time, hence, he is not entitled to any compensation or costs.
22. Thus in view of the above judgments of Hon’ble Supreme Court and Hon’ble NCDRC and the above discussion, we are of the considered view that the Complainant is entitled to insured amount on non-standard basis i.e. 75% of Rs.10,69,035.00/- (Ten lacs sixty nine thousand and thirty five only) with interest @ 9% from the date of filing of complaint till realization. OP is liable to pay the same within a period of 4 weeks from the date of receipt of order. In case of delay in the payment beyond 4 weeks OP will be liable to pay interest @12% p.a. for the delayed period.
23. A copy of this order be provided to all parties free of cost. The order be uploaded on the website of this Commission.

 

File be consigned to record room along with a copy of the order.

 

POONAM CHAUDHRY

                                                                                              PRESIDENT

                                          

                                                                                          ADARSH NAIN

                                                                                               MEMBER