PER SHRI. S.B.DHUMAL - HON’BLE PRESIDENT IN CHARGE :
1) In brief consumer disputes is as under – that the Complainant is a manufacturers of Cattle Feed and use raw material as husk wheat, bean, pulsar and malaises all thus raw material are mixed and put it in machine called pall tiger and converted into pallet. In order to protect themselves from the unexpected loss from any event like fire, theft, flood, etc. the Complainant had obtained insurance policy from the Opposite Party for the period from 12/04/2005 to 11/04/2006 and has paid premium for the same. Sum assured under the said policy is Rs.20,00,000/-. The Complainant has produced photo copy of the said policy alongwith the complaint at Exhibit-‘A’.
2) It is the case of the Complainant that due to the heavy rain on 11th & 12th September, 2005, the city of Kalyan, Mumbai, Thane & New Mumbai all were flooded. This flood caused damaged to the goods, food grains, pulses, etc. in the factory of the Complainant. The Complainant’s factory is surrounded by the hills. The Complainant lodged the claim of Rs.17,00,000/- with the Opposite Party. Thereafter the Opposite Party appointed Mr.Parimal Shah, as a surveyor. The surveyor carried out inspection of damaged goods and submitted report to the Opposite Party. The Opposite Party by letter dated 18/07/2007 repudiated claim of the Complainant stating that “From the survey report they came to know that the loss/damage occurred due to the rain water from roof and not on account of flood and as such, the same is not covered by the policy in question. It is further alleged that inspite of repeated reminders, the Complainant did not submit the details required by the surveyor. Though, it is presumed that the Complainants are not interested in pursuing the claim and therefore, they have no other option than to repudiate their liability and close the filed as ‘no claim’.”
Thereafter by letters dated 28/03/2006 and 10/06/2006 Complainant’s advocate demanded the copy of survey report to the Opposite Party but Opposite Party has failed to supply the copy of survey report to the Complainant. Opposite Party has not followed rules and regulations framed by the I.R. & D.A. The Complainant’s advocate by letter dated 10/06/2006 placed true fact on record that loss is caused due to flood and documentary evidence submitted to the surveyor are not considered. According to the Complainant the Opposite Party has repudiated claim of the Complainant on the ground that loss is occurred due to the rain water from roof and not on account of flood and therefore, repudiation of the claim on the false ground amounts to deficiency in service on the part of Opposite Party. The decision taken by the Opposite Party is against the rules and regulations framed by the I.R.D.A. The Opposite Party has repudiated claim of the Complainant without application of mind therefore, the Complainant has filed this complaint. The Complainant has prayed to direct the Opposite Party to pay compensation of Rs.17,00,000/- to the Complainant with interest @ 12% p.a. from 14/09/2005 till payment of entire amount. The Complainant has claimed Rs.1,00,000/- as compensation for mental torture and harassment, loss of income, etc. The Complainant has claimed Rs.25,000/- towards the advocates fees.
3) Opposite Party has filed written statement and thereby resisted claim of the Complainant interalia contending that there is no deficiency of service on the part of Opposite Party so the complaint is liable to be dismissed with cost. After receipt of the claim form of the Complainant, the Opposite Party immediately appointed surveyor Mr.Parimal Shah to survey and assess the loss. Inspite of repeated reminders, the Complainant has not produced documents, as required for assessing the loss by the surveyor so adverse inference may be drawn and complaint may be dismissed.
4) It is contended that as per survey report, there was no damage due to flood (Inundation/Water level rising), but due to leakage from the roof and the same was not covered under the policy. Hence, the claim was repudiated on 18/07/2006. Opposite Party denied the allegations made by the Complainant and contended that the loss occurred due to the rain water leakage from the roof and the same is not covered under the said policy. Therefore, Opposite Party has repudiated the claim. There is no deficiency in service on the part of Opposite Party, therefore, the complaint deserves to be dismissed with cost.
5) Alongwith the complaint, the Complainant has produced documents as per list of documents. Complainant has produced photographs of the damaged goods. The Complainant has filed Rejoinder and thereby denied the allegations made by the Opposite Party. At the time of argument the Complainant has produced original certificate of dumping the damaged goods, copy of stock statement and certificate of damaged goods, copy of statement of the damaged goods dumped by the Navi Mumbai Municipal Corporation, copy of letter dated 12/02/2007 of State Bank, I.T.Return, etc.
6) The Complainant has filed written argument. Opposite Party has also filed written argument. Heard oral submission of Advocate Mr.Trivedi for the Complainant.
7) Following points arises for our consideration and our findings thereon are as under -
SR.NO. |
POINTS |
FINDINGS |
1. |
Whether the complaint has proved deficiency in service on the part of Opposite Party ? |
Yes |
2. |
Whether the Complainant is entitled to recover compensation as claimed in his complaint from the Opposite Party ? |
Yes. |
3 |
What order ? |
As per final order |
Reasons :-
Finding of Point No.1 :-
The following facts are admitted that the Complainant a manufacturers of Cattle Feeds at A/144-3, MIDC, TTC, Industrial Area, Pawne, Navi Mumbai. The Complainant had obtained fire insurance claim policy from the Opposite Party. Photo copy of which produced at Exhibit-‘A’ alongwith the complaint. The said policy was for the period from 12/04/2005 to 11/04/2006. Sum assured under the said policy was Rs.50,00,000/-
It is the case of the Complainant due to the heavy rain fall on 11th & 12th September, 2005, goods, food grains, pulses, etc. stored in the factory of the Complainant were damaged due the flood. However, as per Opposite Party damaged was caused due to rain water leakage from the roof but it was not due to flood.
After the aforesaid incident of damage to the goods the Complainant had given information to the Opposite Party and Opposite Party had appointed Mr.Parimal Shah as a surveyor. Surveyors submitted his report to the Opposite Party. Copy of the survey report was not supplied to the Complainant. On the basis of said surveyor report the Opposite Party had repudiated the claim of the Complainant. Opposite Party has produced copy of the survey report of Mr.Piramal Shah, alongwith their written statement.
In this case, after receipt of claim from of the Complainant, Opposite Party has not appointed investigator, but appointed surveyor and on the basis of survey report the Opposite Party has repudiated the claim alleging that damage was caused due to leakage of rain water from roof. Surveyors report produced by the Opposite Party at Exhibit-‘A’, it is stated as follows –
“Affected Items Ram Materials and Plant & Machinery
Time, Day & Date of Loss 11th September, 2005
Causes “Flood & Inundation”
Nature & Extent of Damage Raw Material such as husk, wheat, bran, pulses and moiasis lying in insured’s premises was damage partially due to water logging on floor level and partially due to soaking of water
Water logging in premises was almost upto ½ to ¾ feet from floor level.
Chemical stored in the godown for the purpose of processing the raw materials were also reported to be affected.
Liability Under Policy Yes”
Nowhere in the surveyor report, surveyor has stated that he noticed that loss caused due the leakage of water from the roof. In the final survey report, surveyor has stated that “As reported, there was heavy and squally rainfall during the period after afternoon of 11/09/2005 to 12/09/2005, record rainfall was recorded and inundated large areas in Mumbai and Thane Districts. Heavy flooding and inundation reported in many low-lying areas of Mumbai and Navi Mumbai and Thane District. On 12/09/2005, at about 4 p.m. water started accumulating in the vicinity of the Insured’s Factory area at Navi Mumbai….. Insured reported that in their factory the flood was accumulated at the height of about ¼ to ¾ feet.” Surveyor Mr.Piramal Shah was only person who visited the factory of Complainant on behalf of Opposite Party on 20/09/2005. The Opposite Party has not explained on what basis they arrived at conclusion that the damage was caused due to rain water leakage from roof. Absolutely there is no evidence to support the allegation made by the Opposite Party that the loss is occurred due to the rain water leakage from the roof. Therefore, we do not find any substance in the aforesaid allegations made by the Opposite Party. The Opposite Party has repudiated the claim on the ground that the loss was caused due the rain water leakage from the roof but there is no evidence to support allegations of Opposite Party. It appears that Opposite Party has wrongly repudiated the claim without any basis and it amounts to deficiency in service on the part of Opposite Party and therefore, we answer point no.1 in the affirmative.
Finding of Point No.2 :- Under the insurance policy Complainant has claimed recovery of Rs.17,00,000/- for the loss caused. It is the grievance of the Opposite Party that the Complainant has not co-operated with their surveyor and has failed to produce required documents for assessing the loss. It is alleged that the Complainant did not produce Profit & Loss Account, Balance sheet, Stock statement, I.T. Returns, etc. therefore, there is no evidence to support Complainants claim for recovery of Rs.17,00,000/- towards the loss. Surveyor Mr.Piramal Shah in his final survey report has states that at his request the insured submitted the Insurance Policy copy, Copies of purchase bills, Dumping of affected stock weighment receipt with delivery challans, Repair bill for rewinding of electric motors, Statement of bills from April to September, 2005, Stock statement for the month of August, 2005 submitted to the bank However, the insured has not submitted Audited Balance sheet for last two years, Stock statement submitted to the Bank for last two years, Copies of Bank statement for last tow years, Stocks register for last two years, Item wise statement of claim stating item, qtly, rate and value thereof for the items affected, List of stocks saved, etc. After scrutiny of the documents submitted by the insured the surveyor notice that the insured had purchased 2,28,775 kgs. of material valued at Rs.15,77,374/-. When surveyor requested to the insured/Complainant to submit bifurcation of affected stocks into stock directly damage due to inundation and stocks affected due to rain water, the insured/Complainant submitted that the entire stock was affected and has developed the fungus and thus same cannot be used for trade and dumped in dump yard.
Referring to the report of the surveyor, it is submitted on behalf of the Complainant that the Complainant had cooperated with the surveyor and produced required documents i.e. Insurance Policy, Purchase bill, Record regarding dumping affected stock, Stock statement and Bank statement etc. However, the Opposite Party has falsely alleging that no documents were submitted to the surveyor. At the time of hearing the Complainant has produced original receipts of dumping charges paid to the Navi Mumbai Municipal Corporation, statement showing the date on which stock in the Complainants factory was taken to the dumping ground by the motor vehicles, particulars of the stock and its weight in tones, etc. It appears that total rate sent for disposal was 1,61,250 kgs. The Complainant has also produced certificate issued by the State Bank of India in which it is stated that State Bank of India, Chembur Branch has given credit facility to the Complainant and stock of Complainant was verified. As per their inspection on 20/09/05 stock was damaged by flood. The Complainant has also produced letter dated 05/09/2005 addressed to Manager, State Bank of India by which stock statement was given by the Complainant. The Chief Manager, State Bank of India, Chembur Branch in his letter dated 12/02/2007 has stated that ‘we further understand that the Insurance Company has not accepted the loss and documents produced by you. We advise that as per statement of stock submitted to us by you and inspection taken by our staff. The stock damaged is true and correct.” The Complainant has also produced I.T.Return, etc. Alongwith the complainant, the Complainant has produced photographs of the damaged stock and machinery alongwith with Exhibit-‘C’. Damaged stock and other material is seen in the photographs.
The Complainant has not produced evidence to prove that due to the flood goods worth Rs.17,00,000/- were damaged. It appears that during the relevant period credit facility was given to the Complainant by State Bank of India at Chembur Branch and staff of the aforesaid Bank inspected the damage stock. However, exact amount of loss is not stated. Panchanama was not prepared to assess value of the damaged stock. Surveyor appointed by Opposite Party, in his surveyor report has stated that he has noticed that the insured had purchased material worth Rs.15,77,734/-. On enquiry Complainant told that entire stock was affected due to the flood and has developed the fungus and thus same cannot be used for trade and so it was dumped. As mentioned above, the Complainant has produced documents regarding dumping of damaged stock. Considering aforesaid facts, value of the goods purchased stated by surveyor of the Opposite Party who was appointed to assess the loss can be taken into consideration. On the basis of aforesaid evidence we hold that the Complainant has proved the loss of Rs.15,77,734/- was caused due to the flood. Therefore, we think it just to direct the Opposite Party to pay Rs.15,77,734/- to the Complainant for loss of goods under the insurance policy.
Further the Complainant claimed interest @ 12 % p.a. from 14/09/2005 on aforesaid amount till realization of entire amount. We think it just to direct the Opposite Party to pay interest @ 9 % p.a. of Rs.15,77,734/- from the date of repudiation of claim i.e. from 18/07/2006 till realization of entire amount to the Complainant.
The Complainant has claimed compensation of Rs.1,00,000/- towards mental torture and harassment and loss of income. Complainant has not adduced reliable evidence to loss of his income. As mentioned above Complainants prayer for interest @ 9 % p.a. is granted from the date of repudiation of claim. Considering facts and circumstances of the case, we think it just to direct Opposite Party to pay Rs.5,000/- to the Complainant. The Complainant has claimed Rs.25,000/- towards advocates fees. Considering nature of proceeding, we think it just to direct Opposite Party to pay Rs.1,000/- towards the cost of proceeding. Hence, point no.2 is answer accordingly and as the reasons mentioned above we pass following order -
. O RD E R
i.Complaint no.455/2006 is partly allowed.
ii.Opposite Party shall pay an amount of Rs.15,77,734/- (Rs.Fifteen Lakh Seventy Seven Thousand Severn Hundred Thirty Four Only) to the Complainant with interest @ 9 % p.a. on aforesaid amount from 18/07/2006 till realization to the entire amount to the Complainant.
iii.Opposite Party shall pay an amount of Rs.5,000/-(Rs.Five Thousand Only) as a compensation and Rs.1,000/- (Rs.One Thousand Only) towards cost of proceeding to the Complainant.
iv.Opposite Party shall comply with the order within period of 1 month from the date of receipt of copy of this order.
v.Certified copies of this order be furnished to the parties.
