PER SHRI. S.M. RATNAKAR – HON’BLE  PRESIDENT

1)        By this complaint the Complainant has claimed Rs.14,60,000/- with interest @ 18% p.a. from 26/07/2005 till realization of the said payment.  The Complainant has also prayed Rs.5,00,000/- as compensation towards mental torture and agony from the Opposite Party and cost of this complaint. 

2)        According to the Complainant, the Complainant is Proprietorship Company being merchant exporter.  It is alleged that the Complainant has availed services of the Opposite Party No.3 by obtaining Standard Fire and Special Perils Insurance Policy for the period 28/03/2005 to 27/03/2006 vide Policy No.250501/46/04/3101027 under which the indemnity against loss sustained due to flood, fire, earth quack, etc. for the building, electric installation, furniture, fixture and fittings and stock were covered as shown in the policy document to the tune of Rs.30,00,000/- filed at page 13 with the complaint. It is submitted that due to heavy rain dtd.26/07/2005 in Mumbai, flood water entered in the insured premises of the Complainant and the damages were caused.  The information about it was given to the Opposite Party No.3 and lodged the claim as per the document at Exh.‘B’ to the tune of Rs.14,60,000/-.  It is alleged that the Opposite Party No.3 appointed Mrs. Garg & Associates as Surveyor to assess the loss.  The Complainant had submitted the statement of stock to the said Surveyor on 10/12/2005 as per letter at Exh.‘C’.  It is alleged that the said Surveyor in spite of furnishing various documents called by him was seeking extraneous monitory consideration from the Complainant which was not accepted by the Complainant.  The Surveyor therefore, intentionally delayed the survey report. The Complainant therefore, made complaint to the Opposite Party No.1 & 2 regarding the conduct of the Surveyor.  The Opposite Party No.2 vide it’s letter dtd.05/09/2005 informed the Opposite Party No.3 to waive the important documents such as (a) Police Panchanama (b) Metrological Report (c) Original Insurance Policy, etc.  By the said letter the Opposite Party No.2 instructed the Opposite Party No.3 not to insist of surrender of salvage and give instruction to simplify the procedure for property damages claim.  It is submitted that the Opposite Party No.2 also instructed the Opposite Party No.3 to arrange for payment as there was delay in finalizing survey report.  It is submitted that the Complainant had submitted all the documents to the Surveyor who ought to have made recommendation for prompt settlement of claim but for reasons known only to the Surveyor the claim was not settled by the Opposite Party Nos.1 to 3.  It is thus, submitted that the Opposite Parties have not acted in consonance with the terms and conditions of insurance policy under the Insurance Act, 1938.  The Complainant has filed various letters written to the Surveyor at Exh.‘D’ colly. furnishing various documents with the request to recommend the claim to the Opposite Party Nos.1 to 3.  The Complainant had also made correspondence with various authorities as per the documents at Exh.‘E’ & ‘F’.  The Opposite Party No.3 by letter at Exh.‘G’ informed the Surveyor that the claim lodged by the Complainant be considered in the right manner and try to release the report at an early date.  It is alleged that the Complainant had given full co-operation to the Surveyor and demanded the survey report to the Opposite Party No.3, however, the copy of the survey report was not made available to the Complainant till the filing of the complaint and thereby the Opposite Parties No.1 to 3 indulged in unfair trade practice which amounts to deficiency in service.  It is alleged that the Complainant had waited for payment of his claim for nearly 13 months and finally on 10/01/2006 the claim of the Complainant was rejected by the Opposite Party No.3 stating the reason “As per survey report”. The Complainant has therefore, filed this complaint for the reliefs stated in para 1 of this order. 

3)        The Opposite Party Nos. 1 to 3 filed the written statement and contested the claim.   It is contended that there is no deficiency in service and there is no delay in dealing with the claim of the Complainant by the Opposite Parties.  It is submitted that the Complainant was having a policy and he has lodged the claim for damages due to flood.  The Opposite Party No.3 had immediately appointed the Surveyor – U.C. Garg to survey and assess the loss.  It is contended that in spite of repeated reminders the Complainant has not produced the documents as required for assessing loss by Surveyor.  The Opposite Party Nos.1 to 3 are therefore, not liable to pay the claim made in the complaint.  It is contended that the Complainant has failed to satisfy the Surveyor to substantiate his claim by giving supporting documents as asked by the Surveyor.   The Opposite Party Nos.1 to 3 denied the claims made by the Complainant and prayed for dismissal of the complaint.

4)        The Complainant has filed affidavit of Amrut Mehta, Proprietor of the Complainant.  The Opposite Party Nos.1 to 3 filed affidavit of Mr. Satish G. Shinde, Branch Manager, of Opposite Party.  The Complainant and the Opposite Party Nos.1 to 3 have filed written arguments and documents in support of their contentions.  We heard Shri. N.B. Sarpate, Ld.Advocate for the Complainant and Smt. Bhakti Barve, Ld.Advocate for the Opposite Party Nos.1 to 3.  We have perused the documents placed on record.

5)        While considering the claim made in the complaint, it is necessary to be seen that the Opposite Parties by letter dtd.10/01/2006 informed the Complainant as follows and repudiated the claim as under –

            1.  In spite of letters/reminders sent to you, you have not complied with the  papers/documents.

            2. As you have withdrawn your claim by giving consent through your letter.

                Now we are closing claim file as ‘No Claim’.   

           3.  We are closing your claim file, on account of following reason :-

                 ‘As per survey report’

                 We absolve ourselves from any further liabilities arising out of this claim which please note.

6)        In this case according to the Complainant, the Complainant had lodged claim of Rs.14,60,000/- to the Opposite Party No.3.  However, from the survey report dtd.19/12/2005 which is pertaining to the Insurance Policy No.250501/11/04/3101027 it appears that the Complainant had preferred the following claims -

            1.  Building                      - Rs.2,09,500/-.

            2.  Computers                 - Rs.1,80,995/-.

            3.  Electrical work              - No details.

            4.  Furniture & Fixture     - Rs.2,00,000/-.

            5.  Stock of sample           - No details.

            Upon going through the above claim as mentioned in the survey report, it appears that the case made out by the Complainant that the Complainant had lodged claim of Rs.14,60,000/- to the Opposite Party No.3 as alleged in the Complainant it totally false.  It is also supported by the document which is filed on record by the Complainant alongwith the complaint at page 19 (Exh.‘D’) i.e. the notice issued on behalf of the Complainant through advocate M.R. Nair, dtd.28/02/2006 wherein it is specifically mentioned that “my clients state that they have preferred a claim for Rs.5,90,495/- with National Insurance Co. Ltd. (NICL), for losses suffered by them in their office premises at Goregaon (W), Mumbai, during the flooding in Mumbai on 26/27 July, 2005.”  In our view thus, the claim made in the complaint is totally contrary to the claim lodged by the Complainant to the Opposite Party No.3.  The Surveyor – Garg & Associates in the report dtd.19/12/2005 which is placed on record in this complaint had recorded his findings that the claim lodged by the Complainant was not genuine and the Complainant had failed to produce the required documents even after final reminder dtd.16/12/2005.

7)        It is undisputed that the Complainant had obtained two policies from the Opposite Party Nos.1 to 3 bearing Policy No.250501/11/4/3101027 covering the location 45, Paras Vijay, opposite Sahara India, Goregaon (W), Mumbai i.e. office premises under which sum assured was Rs.30,00,000/- and the other Policy No.25051/11/05/3100000103 for covering the location at Vasai having address – 3, Ruby Industrial Estate, Chinchpada, Vali under which the sum assured was of Rs.25,00,000/-.  The Complainant had also lodged the claim for the loss sustained due to flood with the Opposite Party Nos.1 to 3 and in respect of the said claim of Vasai location and for which the different survey report was submitted by Garg & Associates dtd.22/07/2006.  The copy of which is also filed on record.  It is also undisputed that for the said claim the Complainant has filed claim before the Hon’ble State Commission, Mumbai and the same is pending before the said Commission.  The submission made by the Complainant’s Advocate Shri. Sarpate that as per the minutes of the meeting dtd.09/01/2006 the Opposite Party Nos.1 to 3 concluded the meeting with a decision that approximately claim will be around Rs.15,00,000/- which insured had agreed and therefore, the repudiation letter dtd.10/01/2006 is improper and arbitrary and the Complainant is entitled for at least an amount of Rs.5,90,495/- in this complaint from the Opposite Party Nos.1 to 3 and the claim in respect of that amount may be granted in this complaint in our view cannot be said legal and proper. Because the said minutes of the meeting which are placed on record by the Complainant alongwith list of documents filed on 24/03/2011 at page 12 does not pertain to the claim made in this complaint as in the minutes of the meeting dtd.09/01/06 it was agreed to be settled in respect of the loss suffered by the Complainant at Vasai location i.e. which was regarding the claim lodged under Policy No.250101/11/05/3100000103. In the survey report dtd.22/07/2006 of Vasai location there is also reference of the consent letter given by the insured.  We therefore, hold that as the Complainant has not come out with clean hands and the claim made by the Complainant is totally exorbitant than it was lodged to the Opposite Party No.3 as mentioned in the survey report in respect of the policy in question dtd.19/12/2005 filed on record with the affidavit of the Complainant dtd.24/03/2011. We also hold that considering the observation of the surveyor in surveyor reported dtd.19/12/2005 as the Complainant did not satisfy as to how he had sustained loss of Rs.5,90,495/- and did not recommend the said claim, thus, in our view as in this complaint the Complainant made exorbitant claim which is also not supported by any documents, the Complainant is not entitled for the claim made in this complaint.  We hold that the repudiation letter dtd.10/01/2006 issued by the Opposite Party which is at Exh.‘G’ cannot be said deficiency of service on the part of the Opposite Party Nos.1 to 3. In our view the Complainant has failed to prove the Opposite Party Nos. 1 to 3 have adopted any unfair trade practice while repudiating the claim made in this complaint.  In the result the submissions made by the Advocate for the Complainant Shri. Sarpate on the basis of documents placed on record and as discussed above cannot be accepted.  We therefore, pass the following order -

O R D E R

i.        Complaint No.407/2006 is dismissed with no order as to cost.

ii        Certified copies of this order be furnished to the parties.