KUNDAN KUMAR KUMAI
This is a case filed under Section 12 of the Consumer Protection Act 1986.
Brief facts of the complainant case are that, the complainant no. 1 is a Private Ltd. Company and had taken over charge of the complainant no. 2 cold storage, from the previous owner, for a consideration, in the month of January 2015 or there abouts. One Standard Fire and Special Perils Policy had been done by the previous owner. The OP No. 1’s agent having agency code No. 11789009 submitted a proposal form, filled up by the said agent, after which, the proforma OP No. 3, visited the complainant no. 2 premises, for inspection and after being satisfied, the OP No. 1 issued the Standard Fire and Special Perils Policy, being No. 153900/11/14/3400000728, through their agent, proforma OP No. 3, on payment of Rs. 2,51,250/- (Two lakh fifty-one thousand two hundred fifty) only, for the period 06/03/2015 to 05/03/2016.The policy also covered ‘Earthquake (Fire and Shock)’ to the tune of Rs. 14,50,00000/- (fourteen crore fifty lakh) only. On 25/04/2015 an earthquake measuring 6.7 in the Richter scale, struck Nepal, Siliguri including Khoribari and other parts of India, causing heavy loss of life and caused heavy damages to the properties. The cold storage building of the complainant also suffered heavy damages. The OP No. 1 had been informed and OP No.1 deputed one IRDA Licensed Surveyor Mr. Indranil Bhattacharya, who visited the spot immediately, after getting his appointment and inspected the cold storage and earthquake affected area and damages. He also took photographs of the damaged portion and recorded statements of the Director and the other persons, including worker, staff, of the cold storage. He then submitted his report which was not disclosed to the complainant nor any copy given to the complainant. Another Surveyor, had been appointed, who also visited the cold storage and inspected the cold storage and earthquake affected areas and damages. He also took photographs of the damaged portion and recorded statements of many persons including the Director of the complainant no. 1 Company. Second Surveyor also submitted his report, which was not disclosed to the complainant nor any copy given to the complainant. For the third time, another Surveyor being OP no. 2 had been appointed for the survey of the spot, but in this case the OP No. 2 visited on 01/09/2015 to carry out the survey to verify and asses the loss. The reason for such delay of about four months and six days could not be known by the complainant, nor the necessity of such appointment of OP No. 2. The OP No. 2 had inspected on 01/09/2015, with a team of experts and witnessed the damages. It was his duty to inspect the spot, machines and buildings etc. to assess the loss, but if the assessment is based on documents only, then there was no need for such physical survey. Required documents, as far as feasible and available had been submitted to the Ops, through proforma OP No. 3, who also informed that the claim was pending for final decision, as because the Divisional Manager had been transferred and the new Manager was reluctant to deal with cases of high claims. The complainant relying on the proforma OP No. 3 wrote a letter OP No. 2, which had been received on 27/06/2016, but there was no response. Again on 17/10/2016, the complainant wrote a letter, which was delivered on 19/06/2016, but there was no response again. The proforma OP No. 4 also wrote a letter to OP No. 1 on 07/03/2016, but there was no response. The OP No. 1 vide his letter dated 27/09/2016 to proforma OP No. 4 demanded certain documents to be sent to the OP No.2, but the said documents had already been submitted to the OP No. 2 Surveyor, therefore, no action had been taken against the above letter and the same had been intimated to the OP No. 1, through proforma OP No.3. A legal notice, where, it was asked to settle the matter within ten days from the date of receipt of the legal notice, had been sent on 16/11/2017, and which had been received by the OP no. 1, on 16/11/2017 itself, but there was no response. The complainant further wrote a letter under registered post with AD, on 02/05/2018 to the OP No. 1 and 2 and proforma OP No. 4, but there was no response. The complainants’ Advocate, sent another notice on 12/08/2019, asking to settle the matter immediately within ten days on receipt, failing which necessary legal action would be taken. It was also mentioned in the notice, that the previous Divisional Manager had tried to settle the matter, through proforma OP No. 3, for a sum of Rs. 50,00000/- (Fifty lakhs) only against the loss of Rs. 1,47,75,500/- (One crore forty-seven lakhs seventy-five thousand five hundred) only. But the said matter could not be settled as the complainant demanded Rs. 1,00,00000/- (One crore) only. Since then, there has been no response nor any refutation or repudiation letter had been received from either OP No. 1 or OP No. 2. The complainant thereafter filed this case with the prayers as stated therein. Hence this case.
OP no. 1, appeared to contest the claim by filing written version wherein, they have stated that the initial Surveyor had done preliminary investigation and had submitted a report on 10/08/2015 and thereafter the OP No. 2 had been appointed and he had submitted his report dated 28/09/2016, wherein the loss had been assessed, at Rs. 24,63,350/- (Twenty-four lakhs sixty-three thousand three hundred fifty) only. Thereafter, they had denied the complainant case. Additional Written version had also been filed wherein, they had annexed the preliminary investigation report and stated that the estimate of damages prepared by Apurba Kulacharya was exorbitant. Mr. Bhattacharya had also visited the location again and found that there was no leakage of ammonia. It is also mentioned that the OP No. 2 had sent repeated reminders through mail and annexed a copy of the same, along with a copy of the final survey report and the copy of the letter, written by the complainant, dated 03/02/2017, and also copy of the letter dated 25/05/2018, wherein the Insurance Company had decided to close the claim file.
The OP no. 2 had also appeared to contest the claim and filed the written version, wherein he had admitted having been appointed as a surveyor and had assessed the loss, at Rs. 24,63,350/- (Twenty-four lakhs sixty-three thousand three hundred fifty) only. He has further mentioned that, he had sent reminder letter demanding certain documents repeatedly, but the complainant had not complied with the same.
Both the parties have examined one witness each and filed certain documents, which are kept with the record.
Decision with reason
Ld. Advocate for the complainant had submitted at the time of final hearing, that due to the earthquake which occurred on 25/04/2015, the complainant’s cold storage suffered heavy damage and for which a claim had been filed and on basis of such claim one preliminary surveyor had been appointed to asses the loss by the OP No. 1, but the said surveyor had visited the spot, after 16 days of the occurrence and the second surveyor had visited, after a lapse of 129 days. The complainant had submitted one estimate report of Apurba Kulacharya, Siliguri Municipal Corporation, License No. A-17 and who had estimated the loss at Rs. 1,45,32,100/- (one crore forty-five lakhs thirty-two thousand one hundred) only, based on PWD(WB) Schedule. But the said preliminary surveyor had not stated, that the same was exorbitant. He had not assessed the loss but on the direction of the OP no. 1, he mentioned in his own hand writing, that the extent of damage was 14 to 20 lakhs, on 14/08/2015 on the estimate, even though, the report had been submitted in July 2015. Thereafter, a second surveyor OP No. 2 had been appointed and who submitted his report on 28/09/2016. In this regard, it has been argued, that the duty of the surveyor was to approach any Govt. Semi Govt. or Pvt. Authority for any information for proper assessment of the loss, but in this regard, the surveyor insisted on unnecessary documents for delaying the matter. Despite OP No. 2’s inability to submit a report, the OP No. 1 Company appointed Mythcon, but the budgetary estimate which had been submitted was not filed in this Commission. None of the above authority questioned, the estimate of Apurba Kulcharya dated 30/06/2015, as wrong. It was further argued, that the Mythcon had stressed, for repairing of the entire building i.e. 16,50,000 sq.ft by strengthening by chicken mesh. Even, as per the report of the second surveyor, deplastering of 40,000 sq.ft and replastering would entail, the cost of Rs. 60 Lakhs, @ Rs. 50/- per sq.ft for 1,20,000 sq.ft. Hiring charges would be Rs. 8,69,000/- (Eight lakh sixty-nine thousand) only, with the total coming to Rs. 68 lakhs 69 thousand only. But the surveyor had calculated the depreciation @ 12% amounting to Rs. 23 lakhs. But such depreciation was not applicable, as the goods i.e., cement, sand, bricks etc. we’re not available at depreciated values. Moreover, it has been pointed out that the second surveyor had personally discussed with one Mr. Bimal Roy, who was the contractor doing repairing work, but he did not ask for the estimate from him. The progress of the repairing work along with the photographs had been sent to the second surveyor.
It has been further stated that, during cross-examination OP No. 1 Officer, had stated that the case be reopened, if the relevant documents are submitted, but in the written version, it has been prayed for dismissal of the complaint. Local Police and Fire brigade had not been intimated, as there was no loss of life or injury to any person. Moreover, the Officers of the OP. 1 had visited the premises prior to the issuance of policy, for checking the cold storage building. Since the cold storage building is used for storage of tons of potatoes and hundreds of people, visited the storage, causing huge air pressure both inside and outside and therefore, it was important to strengthen the cold storage structure. He had further stated that, the report from Gram Panchayat trade license was not necessary to a company making the claim, as the policy could not have been issued, in the absence of the above documents. That apart, there is nothing in the Act, which demanded the submission of repairing bills, for preparation of the surveyor report or disbursement of the claim amount.
He has relied on the judgment passed in Sadeev Singh Sandhu & Sons Vs. United India Insurances Co. Ltd. by the Punjab State Commission II (1999), passed in Bajaj Allianz General Insurance Co Ltd. V Sonam Uden Bhatta by the National Commission in FA No.109/2014 decided on 26.11.2021, passed in United India Insurance Co. Ltd. V Jawahar Lal. By the M.P. State Commission - II (1997) CP) 361, passed in The New India Assurance Co. Ltd. V Cap. Dip Bahadur Chhetri by the WB SC in FA 705/2015 decided on 6.9.2018, passed in Rugharam V New India Assurance Co. Ltd. by the Hon’ble NATIONAL COMMISSION - II (2015) CPJ 132 (NC), passed in Royal Sundaram Alliance Ins. Co. Ltd. V Dr. Mobile & anr. By the Hon’ble NATIONAL COMMISSION - IV (2015) CPJ 150 (NC).
Ld. advocate for the respondent No. 1, at the time of final hearing had submitted in addition to the written argument had admitted, that the building of the cold storage was insured with the OP No. 1. He has further stated that immediately on receiving information, OP 1 had appointed Mr. Indranil Bhattacharya for preliminary inspection and on receipt on the inspection report, had appointed OP NO. 2 to survey and assess the loss, due to the earthquake. The OP No. 2 submitted his report, wherein he assesed the loss at Rs. 24,63,350/- (Twenty-four lakhs sixty-three thousand three hundred fifty) only.
He had then challenged the complaint, filed by the complainant, as the same had been filed, without a copy of the resolution and the complaint did not have any cause of action, as the claim had not been repudiated by the OP No.1, as because the claim had been closed for none submission of the required documents by the complainant. He has further stated that the claim of the complainant, that the terms and condition of the policy were not available was also not true, as the same was available in the website. www;irdai.gov.in. He has reiterated, that the complainants claim of Rs. 1,47,75,500/- (One crore forty-seven lakhs seventy-five thousand five hundred) only was false and made for illegal gain. The complainant had only filed one estimate prepared by Apurba Kulacharya and no other documents, in support of this claim. No audited accounts or resolution have been filed and also to support the story of forgoing the amount of Rs. 47,75,500/- (Forty-seven lakh seventy-five thousand five hundred) only. The complainant had been asked, to file documents through e-mail also, when the survey had been done and afterwards also, but the complainant failed to submit any documents in support of his claim. The complainant’s affidavit on oath, as evidence also differed from the main complaint and during cross-examination had contradicted the complaint. He has further stated that the during the cross-examination the witness of the OP No.1 had categorically stated that the claim of the complainant, could not be indemnified, as because the documents were not submitted.
He has relied in the judgment, passed by the Hon’ble NCDRC in New India assurance Co. Ltd. Vs. M/S Balaji Emporium, passed by the Hon’ble NCDRC in Iffco-Tokio General Insurance Co. Ltd. Vs. Beena Raghav, K.K. Jewels Impex Vs. Oriental Insurance Co. Ltd., passed by the Hon’ble NCDRC in Oriental Insurance Co. Ltd. Vs. Suresh Kumar Sharma.
This is a claim made by the complainant for damages, caused to the cold storage building, which had been covered under the Standard Fire and Special Perils Policy. But the OP No. 1, had failed to honour the claim application, inspite having made three surveys, to estimate the cost of damages, caused by the massive earthquake on 25/04/2015. This nonpayment of, the damages covered under the policy, is a case of unfair trade practice and thereby making the complainant, a consumer under the Consumer Protection Act, 1986.
From the above it becomes clear, that the property in question had been insured by the OP No. 1 after following necessary formalities, required for such type of insurance. It is also not disputed that there was a massive earthquake and the property in question, had been damaged. With respect to such damages, the complainant had, independently got the damages assessed by one SMC licensed engineer Mr. Apurba Kulacharya, who submitted one estimate amounting to Rs. 1,47,75,500/- (One crore forty-seven lakh seventy five thousand five hundred) only. Thereafter, on the basis of the claim petition, the OP No. 1 had appointed one Mr. Indranil Bhattacharya, for preliminary inspection and on receipt on the inspection report, had appointed OP NO. 2, to survey and assess the loss due to the earthquake. The OP No. 2 submitted his report, wherein he assessed the loss at Rs. 24,63,350/- (Twenty-four lakhs sixty-three thousand three hundred fifty) only.
Now the point of dispute between the two sides is whether, the independent assessment of Mr. Apurba Kulacharya should be accepted or whether the estimates submitted by the OP No. 2 should be accepted. In this regard, the estimates submitted by Mr. Apurba Kulacharya, has not been challenged on merit, save and except, on the ground of the estimates, being exorbitant. That apart, the reason ascribed for closing the claim application and for not acting upon the estimates, submitted by the OP No. 2, has been given as non-production of documents, desired by the OP No. 1 and 2. In this regard the documents desired finally, as per the estimate report is as follows: -
- Report of your Banker about the loss
- Report of the Gram Panchayat
- Quotation of the Contractor with details of the Repair work & the types of Resin & Chemicals being used
- Claim Bill with supporting documents
In this regard, the documents as desired by the OP No. 2 appears to be frivolous, as no banker would be interested to assess the loss nor would they be under any such legal obligation to do so. The report of the Gram Panchayat could have been obtained by themselves and the purpose, it would serve is also not clear. As regards the third document, the OP No.2 had an interaction with him while, he had visited to assess the estimate and could have easily obtained, it from him. With regard to the fourth document, the estimate, from Mr. Apurba Kulacharya had already been made available. Hence from the above, the closure of the claim application, without repudiating, in the absence of the above documents, thus appeared to be a time-consuming strategy, rather than being a necessity, in the preparation of the estimates.
Even the report submitted by Mythcon, suggested that the entire building should be enveloped by strengthening first by a Chicken mess, but has conveniently not mentioned the estimate, for such recommendation. It is also not clear, as to why the OP No. 1 insisted on the services of Mythcon, when the Op no. 2 was competent enough for preparation of such estimates. That apart even after the recommendation made by Mythcon, was not to be acted upon, the reason for such appointment of Mythcon and the subsequent failure to implement recommendation made by it, is not understood.
Moreover, even though the estimate submitted by Mr. Apurba Kulacharya was Rs. 1,47,75,500/- (One crore forty-seven lakhs seventy-five thousand five hundred) only, the complainant had expressed his desired to forego the total estimate and only claim Rs, 1,00,00,000/- (One crore) only, the OP no. 1 has relied on technicalities, when they have insisted on the minutes on the board resolution, which is not essential for such types of claims. That apart, such action on the part of the complainant, also takes care of the allegation, of the estimates being exorbitant. Furthermore, the estimate of the survey, had been under taken by the OP No. 2, after more than three months and the estimated amount of Rs. 24,63,350/- (Twenty-four lakhs sixty-three thousand three hundred fifty) only, also appeared to be very low than the estimated claim amount. That apart, the OP No1, by resorting to numerous surveys and not disclosing the vital parts like estimates by Mythcon, the estimate by the initial surveyor, Mr. Indranil Bhattacharya, at a much later date, as an afterthought, makes the estimates of the OP No 2, rather suspicious and not reliable. On the contrary, there is nothing on record to prove that the estimates provided by Mr. Apurba Kulacharya, was technically wrong and inflated to benefit the complainants.
Under the circumstance, the complainant has been able to prove their case and therefore, the case succeeds. The OP No. 1 is liable to pay Rs. 1,00,00,000/- (one Crore) only, along with Rs. 50,000/- (Fifty thousand) only for legal expenses and Rs. 1,00,000/- (one lakh) only, as compensation for mental pain and agony.
It is therefore,
Ordered
That the case be and the same is allowed on contest without costs.
The OP No. 1 is directed to pay the complainant a sum of Rs. 1,01,50,000/- (one Crore One lakh fifty thousand) only, within one month from the date of this order, failing which, it would attract an interest @ 9% per annum till the payment is made.
Copy of this order be handed over to the parties free of costs.
