This complaint coming up before us for final hearing on                      25-04-11 in the presence of Sri M. Sravan Kumar, advocate for complainant and of Sri S.A. Khadar, advocate for OP, upon perusing the material on record, hearing both sides and having stood over till this day for consideration, this Forum made the following: 

O R D E R

Per Sri A. Hazarath Rao, President:-

        The complainant filed this complaint restricting his claim to Rs.20,00,000/- being the damage to dry chillies on account of cyclone that occurred between 21-03-08 and 23-03-08.   The claim is made up of Rs.20,10,864.54 (value of stock) Rs.7,39,286.05 ps (being the interest @18% p.a. from 21-03-08 to 30-05-10) and Rs.1,00,000/- towards mental agony.

2.    In brief the averments of the complaint are these:

        The complainant is doing business in chillies and insured their stocks at godowns in Guntur with the opposite party under policy No.621000/11/7/1300000662 dated 29-02-08.   Due to heavy cyclonic storm that occurred between 21-03-08 and 23-03-08 stocks of the complainant damaged.   The complainant informed the same to the opposite party on 24-03-08 for deputing a surveyor to assess the loss.   The opposite party appointed one V. Abbu Rao as surveyor to assess the loss.  The complainant submitted weather reports from Meteorological Department for the said period and submitted the same to the said surveyor.  Without considering the fact the surveyor of the opposite party on 30-07-08 mentioned that stocks were affected with normal rains.   Even before the letter dated 30-07-08 the surveyor of the opposite party on 30-05-08 itself repudiated the claim.  As per the claim form the complainant claimed Rs.20,10,865/- towards damage to stocks.  The surveyor from the beginning was prejudiced and somehow made up his mind to deny the liability.  The conduct of the opposite party amounted to deficiency of service.  Due to non payment of the amount the complainant suffered a lot mentally and financially for which it is entitled to damages.

3.      The contention of the opposite party in brief is hereunder:

        The complainant took fire policy vide policy No.621000/11/7/1300000662  to cover the risk of all dry chillies including packing materials and the said policy was valid from 29-02-08 to 28-05-08.  As per the policy the loss covered any destruction or damage directly caused by strong cyclone, typhoon, tempest, hurricane, tornado, flood or inundation excluding those resulting from earth quake.   Normal rains occurred during 21, 22 and 23-03-08.  The loss if any was not due to any cyclonic storms.   Taking advantage of that the complainant filed this complaint claiming loss of stock of chillies to an extent of Rs.20,00,000/- which is in correct.  The complainant is not a consumer.  The opposite party appointed a surveyor namely one V. Abbu Rao to inspect the premises and to assess the loss.  The said surveyor requested the complainant to obtain weather reports from Meteorological Department.  On those               3 days there were rains but there was no cyclone/storm.  The complainant’s stock was affected due to normal rains only.  The claim was therefore repudiated.  The complainant did not take any precautionary measures to protect his stocks even during normal rains.  Taking advantage from normal rains the complainant created records to show that his stock was damaged due to cyclone.  The opposite party did not commit any deficiency of service.  Rest of the allegations contra mentioned in the complaint are all false and   are created to suit his claim.

4.     Exs.A-1 to A-12 and Exs.B-1 to B-4 were marked on behalf of complainant and opposite party respectively.

5.     Now the points that arose for consideration in this complaint are:

1. Whether the complaint is a consumer under the purview of Consumer Protection Act?
2. Whether the damage to stocks were due to normal rains or cyclonic storm coupled with rains?
3. Whether the repudiation of claim by the opposite party is just and reasonable?
4. Whether the stock of chillies as claimed by the complainant was available?
5. Whether the complainant is entitled to compensation?
6. To what relief?

6. Undisputed facts in this case are these:

        i) The complainant took insurance policy bearing                                 No.621000/11/7/1300000662 for a sum of                                           Rs.1,30,00,000/- towards the stock kept in godowns

            as well as in open place (Ex.A-1).

ii) The opposite party appointed one V. Abbu Rao as surveyor.

iii) The opposite party requested the complainant to submit                      weather reports from Meteorological Department,                                Hyderabad in respect of those dates (Ex.A-2).

iv)The opposite party repudiated the claim on 30-05-08                            (Ex.A-3).

7.    POINT No.1:-    Section 2 (d) defines Consumer and it reads as follows:

        “Consumers” means any person who-

            i) buys any goods for a consideration which has been paid or          promised or partly paid and partly promised, or under any        system of deferred payment and includes any user of such     goods other than the person who buys such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods does not include a person who obtains such goods for release or for any commercial purpose: or   

            ii) (hires or avails of) any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who (hires or avails of) the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person (but does not include a person who avails of such services for any commercial purpose.)”      

8.     Since the complainant paid the required premium, the opposite party issued floater policy covered by Ex.A-1 in favour of the opposite party.  The complainant is doing business in chillies as per the averments made in the complaint.   Though the complainant is doing business acquiring the policy is not for commercial purpose.  We therefore opine that the complainant is a consumer under the purview of Consumer Protection Act.   Hence this point is answered in favour of the complainant.

9.   POINT No.2:-   The complainant insuring the goods under policy No.621000/11/07/1300000662 for the period from 28-04-08 to                    28-05-08 is not in dispute.    The opposite party on 13-03-09 (vide Ex.A-10) repudiated the claim contending that normal rains occurred during 21-03-08 – 23-03-08. The complainant on  11-07-08 furnished weather reports from Meteorological Department, Government of India for the period in question (Exs.A-6 to A-8).  

Ex.A-5 revealed that thunder storm with rain and without rain occurred on 21-03-08.  Ex.A-6 revealed that thunder storm with rain and rain occurred on 22-03-08.  Thunder storm with rain and rain occurred on 23-03-08 (Ex.A-7). Storm is a general term used for a vide range of atmospheric disturbances i.e., thunder storms, ice storms, snowstorms etc., typhoons/hurricanes are one type of storms.  Therefore the contention of the opposite party that damage to stocks was not due to cyclonic storms is devoid of merit.   Hence, this point is answered in favour of the complainant.

10.  POINTS 3 & 4:-  The opposite party immediately appointed a surveyor under Ex.A-2.  The opposite party asked the complainant to submit weather reports from Meteorological Department, Hyderabad for the dates 21, 22 and 23-03-08.   In this the complainant on                    23-07-08 submitted completed claim forms, stock statements as on 21-03-08 and statement of claim and Meteorological Department reports for the said dates as seen from Ex.A-8.

11.   The opposite party on 30-05-08 itself repudiated the claim as ‘No claim’.   The relevant portion in Ex.A-3 is extracted below for better appreciation:

        “Please note that your file stands closed, on account of Sr.No.1 and 3 below:-

1. inspite of letters/reminders sent to you, you have not complied with the required papers/documents.
2. As you have withdrawn your claim by giving your consent through your letter dated__________ we are enclosing you claim-file as NO CLAIM.
3. We are closing your claim-file, on account of the following reasons:-

AS PER SURVEY REPORT THE DAMAGES WILL NOT COME UNDER PURVIEW OF THE POLICY.  HENCE CLOSED.

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

        In Ex.A-4 letter dated 03-07-08  no reference was made to     Ex.A-3 letter.  Ex.A-4 is extracted below for better appreciation:

        “Kindly refer to our letter dt. 24-03-08 in the above connection.  Subsequent to our letter we understand you have deputed your surveyor who visited the scene of occurrence of loss and took photographs of the affected stocks.

        So far we have not heard anything from you nor we have received the claim form for our submitting the same duly completed.   Therefore you are requested to send the claim form besides notifying the requirements if any for our complying the same.

        Since the claim is pending for quite some time your early action is highly appreciated”.

        The signed claim form was sent on 16-07-08 as seen from                   Ex.A-8 documents. Without sending the required documents the opposite party in our considered opinion cannot process the claim further.   Though the complainant filed Ex.A-3 letter dated 30-05-08 no reference was made to it in Ex.A-4 correspondence.

12.   In United India Insurance Company Limited vs. Sangeeta Singh 2010 CTJ 925 the National Consumer Disputes Redressal Commission held,

                “Though investigatory had assessed damages for Rs.2,00,000/- on ‘repair basis’ finally concluded that, liability of insurance company would be for Rs.1,15,000/- on exclusion of value of spare parts and if salvage value was to be deducted there from, liability, would be reduced to Rs.1,00,000/-.   Assessment of damages, however, made by surveyor would not ipso facto be construed to be acknowledgment of liability of insurance company, divorced of other attending circumstances of case.   Failure of respondent to make available relevant documents including driving licence, RC Book, etc, would render investigator handicapped to make investigation of claim as to whether the vehicle in question at the material time of accident was being driven by a person who held a valid driving license to ply the vehicle on road”.       

13.   For Ex.A-3 letter the complainant did not seek any time to furnish the information required by the opposite party under Ex.A-2.   Therefore the decision relied on by the complainant reported in National Insurance Company Limited vs. Kanta Kansal and others  2009 (4) CPR 329 is not applicable to the facts of the case.

14.     Prior to filing this complaint the complainant issued a notice to the opposite party on 11-05-10 (Ex.A-11).  Ex.A11 did not disclose the quantity of stock said to have been damaged during thunder storm occurred on 21,22 and 23-03-08.  The relevant portion Ex.A-11 is extracted below for better appreciation:

        “As already submitted, the repudiation of the claim is against the weather report submitted by weather Department of India.  As per the claim form, our client claimed an amount of Rs.20,10,865/- towards damages to stock and detailed statement is enclosed to the claim form”.

15.   The complainant failed to mention the details of stock available and its value per quintal or ton as the case may be to arrive the figure mentioned by the complainant.

16.    The complainant filed Ex.A-8 copy of claim statement submitted to the surveyor of the opposite party.  It is a self interested statement.   When the complainant insured the godown for a sum of Rs.1,30,00,000/-, it ought to have been submitted sales tax returns every month to the Commercial Tax Authorities.   That could be considered as a genuine statement because the cyclone or thunder storm was not expected.   When the opposite party disputed the claim of the complainant regarding the available stock, the complainant even did not evince interest to file authenticated copies of statement i.e., one submitted to the Commercial Tax Authorities and purchase bills etc., even before this Forum.   Therefore the contention of the opposite party about the complainant inflating value of stock stands to reason.   In the absence of any cogent evidence the contention of the complainant that stocks worth of Rs.20,10,864.54 ps was damaged cannot be believed.   In view of afore mentioned discussions these point are answered in favour of the opposite party.

17.   POINT No.5:-  In view of findings on point No.2 to 4, the complainant is not entitled to any compensation.  Hence, this point is answered in favour of the opposite party.

18.     POINT No.6:-   In view of the above findings in the result the complaint is dismissed without costs.

Typed to my dictation by Junior Steno, corrected by me and pronounced in the open Forum dated this the 9th day of May, 2011.

            MEMBER                                                                                 PRESIDENT

APPENDIX OF EVIDENCE

  DOCUMENTS MARKED

For Complainant:

For opposite party:        

                                                                                           PRESIDENT