BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL FORUM, JALANDHAR.
Complaint No.374 of 2016
Date of Instt. 30.08.2016
Date of Decision: 16.05.2017
M/s Juneja Forgings, 5th Mile Stone, Kapurthala Road, Jalandhar through its Partner S. Sarabjit Singh S/o S. Harvinder Singh.
..........Complainant Versus
New India Assurance Company Limited (361002), Patel Chowk, Jalandhar through its Branch Manager.
….… Opposite party
Complaint Under the Consumer Protection Act.
Before: Sh. Karnail Singh, (President),
Sh.Parminder Sharma (Member)
Present: Sh. KC Malhotra, Adv Counsel for complainant.
Sh. AK Arora, Adv. Counsel for OP.
Order
Karnail Singh (President)
1. This complaint presented by the complainant, with the prayer that the complainant is a partnership concern dealing with manufacturing and trading of all kinds of Engineering Goods, Hand Tools, Pipe Fittings and other Forged Products, Soaps and Chemicals etc. S. Sarabjit Singh S/o S. Harvinder Singh is one of the partner of the complainant firm, who is conversant with the facts of the present case and as such the present complaint is filed through him.
2. The complainant has taken Electronic Equipment Policy No.36100244155800000002 for the period 02.07.2015 to 01.07.2016 covering risk of Yamazaki MAZAK Verticle Machine to the tune of Rs.42 lacs from the OP. Suddenly on 12.10.2015 the machine stopped functioning. The service engineer visited and inspected the machine and according to him the spindle cartridge was jammed and motor was also found to be not running smoothly. The damage to the machine was due to failure of lubrication system and because of which the bearing was broken and seized. Matter regarding the damage caused to the machine in question was insured with the OP, who have appointed Mr. Deepak Modak as their Surveyor, who has assessed loss to the tune of Rs.6,38,875 vide his survey report dated 23.01.2016 addressed to the company. Thereafter, it was found that the oil controller assembly of the said machine was also broken down and accordingly the OP was informed regarding the loss to the oil controller assembly of the machine, who has appointed Mr.Khanna Sanjiv as their surveyor, who has submitted his report dated 18.03.2016 with the company assessing loss to the tune of Rs.1,19,248/-. The total loss assessed by both the surveyors in respect of the machine insured with the OP comes to Rs.7,58,123/-. The OP has only paid a sum of Rs.4,87,700/- to the complainant through NEFT on 27.04.2016 and has not paid the remaining amount of Rs.2,70,423/- as per the loss assessed by the surveyors. The matter regarding the payment of remaining amount of Rs.2,70,423/- was taken up with the OP vide email dated 05.02.2016 alleging therein that the depreciation on spindle assembly is not applicable as per the policy as it is not for short life. The company has wrongly deducted the depreciation on the said spindle assembly while settling the claim. Mr. Deepak Modak, the surveyor appointed by the company vide his email dated 17.02.2016 addressed to the company has categorically stated that spindle assembly is not short life item hence no depreciation. The surveyor in his report dated 23.01.2016 has not deducted the depreciation taking into consideration the life of the spindle assembly. The OP has wrongly withheld an amount of Rs.2,70,423/-, the remaining amount of claim payable to the complainant as per the loss assessed by the surveyors, which the OP has no right to withhold. The complainant is under stress, strain and tension on account of the conduct of the OP for not making payment of Rs.2,70,423/- to the complainant and the services provided by the OP are deficient and defective in nature and as such the present complaint filed with the prayer that the complaint of the complainant may be accepted and OP may be directed to make payment of Rs.2,70,423/- alongwith interest @ 12% per annum from the date of filing of claim till realization and further directed to pay compensation of Rs.1,00,000/- and cost of complaint Rs.25,000/-.
3. Notice of the complaint was given to the opposite party who filed reply and contested the complaint by taking preliminary objections that there is no deficiency of service or unfair trade practice on the part of OP and that being so, the present complaint is not maintainable and further alleged that the OP had deducted a sum of Rs.2,70,423/- being the depreciation, since the part of the machine which was replaced are mechanical parts and are having relative movement with each other during the operation of machines. These general rotating/moving parts are having limited life and subject to depreciation. The machine was of 2007 model and was more than 5 years old. Sh. Deepak Modak, the Surveyor appointed in the present case has submitted his report dated 23.01.2016 with the company and has assessed loss of Rs.6,38,875/-. At the time of assessment of loss, the surveyor has failed to take into consideration the depreciation aspect and as such depreciation of Rs.2,70,423/- has been deducted at the time of making payment of claim to the complainant. That being so, the claim of the complainant has been rightly settled and paid and there is absolutely no cause of action in favour of the complainant to file the present complaint and as such the same is liable to be dismissed. On merits, the factum in regard to purchase of insurance policy as well as filing of insurance claim and partly settlement of the said claim is not denied by the OP but the other factum as made in the complaint are categorically denied and lastly prayed that the complaint of the complainant is without merit and the same may be dismissed.
4. In order to prove the case of the complainant, counsel for the complainant tendered into evidence affidavit Ex.CA alongwith some documents Ex. C-1 to Ex.C-17 and closed the evidence.
5. Similarly, counsel for opposite party tendered into evidence affidavits Ex.O-1 to Ex.O-3 alongwith some documents Ex.O-4 to Ex.O-6 and closed the evidence
6. We have heard the learned counsel for the respective party and also gone through the case file very minutely.
7. After taking into consideration the allegations of the complainant and plea taken by the OP, we find that the vertical machine of the complainant was insured with the OP for a sum of Rs.42 lakhs for the period 02.07.2015 to 01.07.2016 and copy of the insurance is proved on the file by the complainant Ex.C-2. The dispute in this case is only that the depreciation is to be deducted or not, the complainant alleged that the depreciation on spindle assembly is not applicable as per the policy as it is not for short life. To give strength to this submission, the counsel for the OP has referred the report of the Surveyor Deepak Modak and the same is Ex.O-6, wherein he assessed the total loss of Rs.6,38,875/- and he did not recommend for deduction of any depreciation purpose.
8. Apart from that the said Surveyor send email message to the complainant and copy of the same is proved on the file Ex.C-16, wherein he categorically mentioned that depreciation on spindle assembly is not applicable as per policy as it is not of short life. So, it is clear that the plea taken by OP in the written reply, the parts of the machine are having limited life is not true version and moreover, it is no where mentioned in the insurance policy Ex.C-2 that if any part of the machine having a short life then there will be depreciation. So, if there is no condition in the policy then the OP has wrongly deducted the depreciation from the total assessed amount by the Surveyor. As it is admitted that two surveyors were appointed one surveyor assessed the amount of Rs.1,19,248/- and second surveyor assessed the amount of Rs.6,38,875/- in total Rs.7,58,123/- and out of that total loss amount, the OP has only paid a sum of Rs.4,87,700/- through NEFT dated 27.04.2016 and as such there remains balance amount of Rs.2,70,423/- for which the complainant is entitled to recover the same alongwith interest and compensation.
9. In the light of above detailed discussion the complaint of the complainant is partly accepted and OP is directed to pay the remaining amount of Rs.2,70,423 with interest @ 9 % per annum from the date of the filing of the claim till realization and further directed to pay a compensation to the tune of Rs.10,000/- and litigation expenses of Rs.3000/-. The entire compliance be made within one month from the date of receipt of the copy of order. Complaint could not be decided within stipulated time frame due to rush of work.
10. Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.
Dated Parminder Sharma Karnail Singh
16.05.2017 Member President
