Punjab

Ludhiana

CC/14/192

Aabhas Spinners - Complainant(s)

Versus

National Ins.Co.Ltd. - Opp.Party(s)

10 Nov 2014

ORDER

                        ORDER

 

(S.P.GARG, MEMBER)

 

1.                The present complaint under section 12 of The Consumer Protection Act, 1986 (herein after in short to be referred as ‘Act’ has been filed  by Sh. M/s Aabhas Spinners Pvt. Ltd., C-90, Phase-V, Focal Point, Ludhiana, through its Executive Sh.Gurmeet Singh (hereinafter to be referred as ‘complainant’) against National Insurance Co. Ltd., Branch office no.7, G.T.Road, Dhandari Kalan, Ludhiana, through its Branch Manager Sh.R.K.Mahendru and others (hereinafter to be referred as ‘OPs’)-directing them to pay the balance claim amount of Rs.4,57,103/- out of total claim of Rs.5,60,587/- alongwith interest @ 12% p.a. from 2.1.10 to 1.2.14 amounting to Rs.2,19,360/-, damages for unnecessary harassment of Rs.1 lac and Rs.50,000/- as litigation expenses to the complainant.

2.                Brief facts of the complaint are that the present complaint has been filed by Sh.Gurmeet Singh, Executive of the company, who has been duly authorized by a Resolution of the company dated 10.11.11, Annexure-III duly passed by the complainant to file and prosecute the present complaint against the OPs and therefore is a competent and authorized to file and persue the present complaint. The complainant company purchased three Insurance Policies from OP1 first bearing nos.401314/11/08/31/00000597 effective from 17.3.09 to 16.3.10 was for Rs.1,90,00,000/-, which covered risk of factory building at C-90, Phase-V, Focal Point, Ludhiana for Rs.35,00,000/-, and covered risk of Plant/Machinery and Accessories for Rs.75,00,000/- and covered risk of stocks lf all kinds of Yarn, Fabrics, Hosiery Goods, Packing Materials, Finished Goods and other goods of insured trade against earthquake and fire for Rs.80,00,000/-, second policy bearing no.401314/11/09/31/00000106 effective from 25.5.09 to 28.05.10 for Rs.80,00,000/- got covered risk of building for Rs.55,00,000/- and risk of stocks for Rs.25,00,000/- and vide third policy bearing no.401314/46/09/75/0000045 effective from 29.5.09 to 28.05.10 for Rs.25,00,000/- got covered risk of their more stocks of Yarn against Burglary. On 02.01.10, early in the morning at about 2.00 am, a fire broke out in the factory premises of the complainant situated at C-90, Phase-V, Focal Point, Ludhiana due to electric short circuiting and stocks of raw material i.e. Lurex/Polyster Yarn 541 Kgs @ 156 per kg worth of Rs.84,396/-, Filament/Polyster yarn 529 Kgs @ 95/- per kg worth of Rs.50,255/-, waste collection machine-cum-dust collector bag system worth of Rs.298903/-, electric cables worth of Rs.92,702.69p and 13 fire extinguisher cylinders of 10 kgs and 12 of 5 kgs of Rs.21,584/- totaling Rs.5,60,587/- were damaged. On intimation to the OPs, OPs appointed M/s J.S.Khurana and Associates as Surveyor and Loss Assessors, who inspected the factory of complainant and checked all the record on the day of occurrence and took the photographs of the damaged goods. The complainant also submitted the requisite documents as demanded by the OPs. The said surveyor and loss assessor did not wait for the documents and made the claim of the complainant as ‘no claim’ in haste, on false allegation, reasons, arbitrarily, illegally, with malafide intention not sustainable and is liable to be set aside. The intimation of ‘no claim’ was given to the complainant through letter dated 18.3.10 by the said Surveyor as well as by OP, vide letter dated 26.3.10. The said surveyor also submitted interim report Annexure-XI in which he assessed interim loss of Rs.2,50,000/- finally and assessed estimate loss of Rs.5 lacs. Complainant challenged the decision of ‘no claim’ of the claim of the complainant by filing the complaint in this Forum and the same was registered as complaint no.901 dated 27.12.12 was decided on merits on 27.12.12 directing the complainant to submit the requisite documents within 15 days from the receipt of the order and directed the OP to settle and pay the claim within 45 days. Thereafter, the complainant submitted all the requisite documents to the OPs, but despite that Ops failed to settle and pay the claim. Ultimately the complainant had to file execution u/s 25 and 27 of Consumer Protection Act on 5.6.13. On notice of the execution, the OPs settled the claim in the sum of Rs.1,03,484/- only against claim of Rs.5,60,587/- on the basis of Surveyor report dated 14.03.13 Annexure-XVI without intimation of the settlement and deposit. The complainant came to know for the first time in his execution application fixed for the date 24.09.13 that the OPs have deposited the said amount of Rs.1,03,484/- in the Forum on 23.09.13. The complainant himself through counsel withdrew the execution on 15.10.13, which was allowed with liberty and permission to file fresh complaint on fresh cause of action and statement made for withdrawal of the execution by his counsel and this Forum granted permission to file fresh complaint for the recovery of the balance amount of claim vide order dated 15.10.13. Hence this complaint. Complainant further submitted that sum assured under different policies were quite high, as detailed in para 11 (F), yet the said surveyor did not consider his own interim report 4.1.10, vide which, he had assessed the loss of Rs.2,50,000/- finally as interim loss and assessed Rs.5,00,000/- as estimated loss. The surveyor who himself assessed interim loss to the tune of Rs.2,50,000/- and reduced the amount in the sum of Rs.1,03,484/- in his final report, which proves the malafide on the part of the OPs. Claiming the above act as deficiency in service on the part of the OPs, the complainant has filed this complaint.

3.                On notice of the complaint, OP1 and OP3 filed written statement taking preliminary objections that the present complaint is not maintainable, since he had already filed complaint on 27.12.11, which was decided by this Forum on 27.12.12 with a direction to the complainant to submit/handover all necessary documents as required by the OPs or their surveyor with further directions to the Ops to settle and pay the claim of the complainant within 45 days as per terms and conditions of the policy. Thereafter, Ops deputed J.S.Khurana and Associates Surveyor to assess the loss. The complainant supplied some documents. On receipt of the documents loss was assessed by the surveyor and the amount of Rs.1,03,484/- as per the report of the surveyor was paid to the complainant, which was infact a full and final payment. The complainant has wrongly interpreting the final survey report in order to take benefit of the same. On merit, denied the contents of the complaint and further submitted that the fire has originated from the some electric cable, as per policy terms and conditions the same is not covered and prayed for the dismissal of the present complaint.

4.                Notice of the complaint was sent to OP2, which was served. But despite service of the notice, none had come present on behalf of OP2. As such, OP2 was proceeded exparte, vide order dated 02.04.14 of this Forum.

5.                Ld. counsel for complainant has adduced the evidence by way of duly sworn affidavit of Sh.Gurmit Singh, Executive of M/s Aabhas Spinners Pvt. Limited, C-90, Phase-V, Focal Point, Ludhiana Ex.CA, wherein the same facts have been reiterated as narrated in the complaint and also submitted the documents Ex.C1 to Ex.C20. On the other hand, Ld. counsel for OPs has adduced the evidence by way of duly sworn affidavit of Sh.Parmod Jain, Branch Manager, BO-7, Dhandari Kalan, Ludhiana Ex.RA, vide which, he has deposed that the contents of the written statement have been drafted at his instance. He put his signatures thereon after reading, admitting and understanding the same to be correct. The contents of the written statement are not being repeated here for the sake of brevity and the same may kindly be read as part of this affidavit and also submitted the affidavit of Sh.Jagdarshan Singh Khuranan Surveyor of M/s J.S.Khuran and Associates, SCO-5, Near Koacher Market, Ludhiana Ex.RA, vide which, he has deposed that he has prepared his survey report dated 14.3.14 after going through the documents. The same is correct and also submitted the documents Ex.R1 to Ex.R43.

6.                The OP1 and OP3 filed their written arguments on 30.09.14 averring that the complainant had filed complaint no.901 dated 27.12.11 on the same facts and same cause of action. The said complaint has already been decided by the Forum, vide order dated 27.12.12 directing the complainant to submit/handover all necessary documents as required by the OPs or their surveyor which are material and necessary for the settlement of the claim within 15 days from the receipt of order and further directed to re-open and re-examine the claim filed of the complainant, after receiving the documents from the complainant and thereafter OPs were directed to settle and pay the claim of the complainant as per terms and conditions of the policy within 45 days. The OPs deputed J.S.Khurana & Associates Surveyor to assess the loss. The complainant supplied some documents. But the said surveyor demanded certain documents, vide letter dated 25.1.13, 6.2.13, 9.2.13, 23.2.13 for further processing of the claim. On receipt of the documents, the said surveyor submitted his report on 15.3.13 to the OPs. On receipt of the complete final survey report, the OPs applied their mind and after going through the complete final survey report alongwith documents. The said final survey report reflects that insurance in question is under insurance as per stocks of the complainant. Firstly on receipt of court order of the complaint, the OPs had deposited the amount in the Forum. Thereafter on receipt of final survey report, the OPs deposited an amount of Rs.1,03,484/- as per survey report in the Forum in compliance of the order dated 27.12.12 and satisfied the claim and nothing is due. The amount has been admittedly disbursed to the complainant and the complainant has already withdrawn the execution of the complaint. In this manner, there is no deficiency in service in the complaint. There is not provision in the Consumer Protection Act to file second complaint on the same facts and same cause of action. The proper remedy is to file an appeal before the Hon’ble State Commission and the same is also time barred. The complainant has already received the claim as full and final. So, present complaint is liable to be dismissed on this score only.

7.                At the same time, written arguments was filed on behalf of the complainant averring that the complainant informed OP1 on the same day about the occurrence of fire and loss by fire vide written letter dated 2.1.10 tendered as Ex.C7 and informed estimate of loss of Rs.5,60,587/- through fire claim form tendered as Ex.C8 supported by purchase bills Ex.C8/A to Ex.C/8H showing the purchase price of yarn, machine, electric cable and cylinders. The OPs company appointed M/s J.S.Khurana and Associates, as surveyor and loss assessor to survey and assess the loss, who inspected the factory of complainant and checked all the record on the day of occurrence and took the photographs of the damaged goods. The complainant also submitted the requisite documents as demanded by the OPs. The said surveyor and loss assessor did not wait for the documents and made the claim of the complainant as ‘no claim’ in haste, on false allegation, reasons, arbitrarily, illegally, with malafide intention not sustainable and is liable to be set aside. The said surveyor also submitted interim report Annexure-XI in which he assessed interim loss of Rs.2,50,000/- finally and assessed estimate loss of Rs.5 lacs. Complainant challenged the decision of ‘no claim’ of the claim of the complainant by filing the complaint in this Forum and the same was registered as complaint no.901 dated 27.12.11 and decided on 27.12.12 directing the complainant to submit the requisite documents within 15 days from the receipt of the order and further directed the OPs to settle and pay the claim within 45 days. The OPs settled the claim in the sum of Rs.1,03,484/- only against claim of Rs.5,60,587/- on the basis of Surveyor report dated 14.03.13 Annexure-XVI without intimation of the settlement and deposit. The complainant came to know for the first time in his execution application fixed for the date 24.09.13 that the OPs deposited the said amount of Rs.1,03,484/- in the Forum on 23.09.13. The complainant withdrew the execution on 15.10.13 with liberty and permission to file fresh complaint on fresh cause of action for the recovery of the balance amount of claim. Ld. counsel for complainant has also relied upon the judgements passed in cases titled as Sanjeev Sood Vs Oriental Insurance Co. Ltd. and another-III (1998) CPJ 671, New India Assurance Co. Ltd. Vs Pradeep Kumar-IV (2009) CPJ 46 (SC) etc.

8.                We have gone through the pleadings of the complainant as well as defence taken by the OPs and also perused the entire record placed on file.

9.                It is evident that the present complaint has been filed again after the execution of the previous complaint, which was decided by this Forum on 27.12.12. The execution of which was also filed on 6.6.13 during the course of which an amount of Rs.1,03,484/- stood paid on 23.09.13 and thereafter Ld. counsel for the applicant/complainant has suffered a statement, which is as follows:-

“That the respondents have deposited a cheque of Rs.1,03,484/- on 23.09.13, vide Miscellaneous application no.99 of 23.09.13 in this Hon’ble Forum in compliance of the order dated 27.12.12. The respondents have not complied with the order within the stipulated period of 45 days and had deliberately disobeyed the order of this Hon’ble Forum by the Branch Manager of the Branch office and he is liable to be penalized or to be sentenced. As such, necessary action u/s 27 of Consumer Protection Act may kindly be taken against the respondents. He accept the amount of Rs.1,03,484/- under protest as the same is short, invalid and arbitrary. He withdraws the present execution application with liberty and permission to file fresh complaint against the respondents on the fresh cause of action for the recovery of the balance amount of the claim and to challenge the report of the surveyor of the respondents.”

 

                   Now again, after the elapse of 6 months, the present complaint has been filed to relegate the same issue as already decided. Since on withdrawal of the execution application on 15.10.13, it is very much clear that no further cause of action was to arise/accrue thereafter. It cannot be considered prudent on the part of the complainant to withdraw the case and again to file the fresh complaint, when no further cause of action accrued to him at any point of time and the case has attained finality. If the complainant was not satisfied, then what was the necessity to withdraw the execution application.

10.              Sequel to the above observation, the present complaint is hereby dismissed being devoid of any merit with no order as to costs. Copy of the order be supplied to the parties, free of costs. File be consigned to record room.

 

                   (S.P.Garg)                                         (R.L.Ahuja)

                     Member                                            President

Announced in Open Forum.

Dated:10.11.2014 

Hardeep Singh