Haryana

Ambala

CC/344/2017

Aahar Enterprises - Complainant(s)

Versus

OIC - Opp.Party(s)

P.K. Goel

10 Dec 2018

ORDER

BEFORE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMBALA.

                                                        Complaint No. 344 of 2017.

                                                        Date of Instt:   06.10.2017.

                                                        Date of decision:10.12.2018.

 

Aahar Enterprises 4436/D, Dal Mandi Road, Ambala Cantt. through its sole proprietor Smt.Usha Rani.

                                                                        ...Complainant.

Versus

1.The Oriental Insurance Company Limited Branch Office, Ground Floor LIC Building, Ambala City through its Branch Manager.

2.The Oriental Insurance Company Limited, LIC Building, 2^nd Floor, Jagadhari Road, Ambala Cantt.

3.The Oriental Insurance Company Limited, Registered & Head Office: Oriental House, Asaf Ali Road, New Delhi-110002.

                                                                    …Opposite parties.

Complaint under section 12 of

 

BEFORE:  SH. DINA NATH ARORA, PRESIDENT.  

                DR.SUSHMA GARG, MEMBER             

               

Present: -  Sh.P.K.Goel, Adv. for complainant.

                Sh.R.K.Vig, Adv. for OPs.

 

ORDER

 

                Brief facts of the present complaint are that complainant had obtained insurance policy (Standard Fire Policy) from OP No.1 for Rs.50 lacs and got insured stocks of all kind of dealing goods against risk of fire as well as earth quake which includes loss arising out of Act of God Perils vide cover note No.260000246227 and policy No.261101/11/2011/146 having validity for the period from 14.05.2010 to 13.05.2011 and also paid the premium to the tune of Rs.7389/-.  The complainant has purchased another policy for building from Op No.1 for Rs.10 lacs vide cover note No.260000246228 dated 26.07.2009 and policy No.261101/11/2010/106 for the period from 14.05.2010 to 13.05.2011.On 05.07.2010 due to heavy rains in Ambala and surrounding areas the flood water was logged and also entered in dal mandi in the early morning when the shops were closed. There were not much time for removal of stocks therefore, it suffered huge loss of goods in the shape of stock lying in its shop.  The loss of stock of goods of complainant firm was estimated at about Rs.10 lacs and the matter was reported to Op No.1 on 09.07.2010 through letter. As per list the damaged stock was having value of Rs.11,42,954/- while that of saved stock was Rs.47,75,327.52. At the ending of year the stock value was Rs.49,96,472.45 and the purchases from 01.04.2010 to 06.07.2010 were of Rs.1,79,59,493.32 and good sold for amounting to Rs.1,71,11,028.76. The items saved in flood were not in good condition and thus these were sold by the firm on 18.07.2010 vide sale invoice No.9619 Rs.50,169/-, thus net loss was caused to the tune of Rs.10,90,785/-. The OPs had deputed M/s Kumar Raj & Associate, Ist Surveyor and Sh.Rajan Sharada IInd Surveyor but no inspection at the complainant’s premises was made even on 23.07.2010 in report it has been falsely mentioned that loss of stock being accounted by Sh.R.K.Bhola who came firstly on the premises after then loss due to flood.  On 08.07.2010 said surveyor had visited the premises and took 2-3 photographs in hurry by saying that he can give only 15-20 minutes to one firm and even did not inspect the total stock of complainant firm. The complainant had submitted all the requisite documents and information including all statement of accounts, copies of bills but the complainant was not paid the amount of loss of stocks destroyed in flood and the said surveyor prepared his report on wrong basis and rejected the claim of the complainant without affording any opportunity to complainant vide letter dated 22.11.2010. The complainant sought information under RTI and found the same false as Mr.Rajan Sharda visited the premises after few days which he had not visited by that time when water had receded but still water marks were visible lying even height of 1.5’ in height from floor level and even admitted that stock was kept on floor of premises and huge stock was also lying even being confirmed from the stock register. Fully damaged stocks of goods were already removed out for cleaning and saving from health hazards & epidemic etc. and how it is possible when huge stock was lying on ground and floor water has already been logged into premises at height of 1-1/2 to 2 feets and mere 6 bags of gur were got damaged. The first surveyor conducted the preliminary survey  did not consider this fact that how much stock was laying into premises prior to flood and even did not tally the stock of sale, purchase and closing stock otherwise the loss could have been measured easily. The partial damaged stocks items were sold already on 18.07.2010 which also amounts to more than Rs.52,421/- while the second surveyor never came and inspected the premises on 23.07.2010. The flood had caused immense damage to other firm which was being run by husband of Smt.Usha Rani under the name and style of M/s S.S.Enterprises represented by its sole prop.Sh.Sushil Kumar at premises No.4425/A, Dal Bazar, Ambala Cantt. and regarding this claim to the tune of Rs.3,39,000/- has already been passed. The complainant had earlier filed a complaint and as per directions of this Forum had submitted all the documents as per order dated 24.03.20017 but the OPs have rejected the claim of the complainant vide letter dated 08.08.2017 as the surveyor had confirmed the loss assessment as Rs.8700/- as per previous assessment and claim is not maintainable as the loss falls within excess clause of Rs.10,000/- as per policy terms and conditions. The act and conduct of the OPs clearly amounts to deficiency in service on their part. In evidence, the complainant has tendered affidavit Annexure CW1/A and documents Annexure C1 to Annexure C55.

2.                     OPs appeared and filed their joint reply wherein it has been submitted that the company after order dated 24.03.2017 read with order dated 18.09.2017 examined closely the documents and the surveyor again examined the documents tendered by the complainant &  finally concluded the loss to the tune of Rs.8700/- which was found not maintainable as per policy terms and conditions. After due examination of the claim by two surveyors it was found to be a case of NO CLAIM. The surveyor Rajan Sharda in his report dated 09.11.2010 has assessed the total loss of Rs.8700/-. Since there was excess clause of Rs.10,000/-, therefore, the present claim was not maintainable. The premium was only paid subject to the terms and conditions of the policy and the facts and circumstances of two cases always differ and if S.S.Enterprises has satisfied the surveyor with the help of record then that goes to show that the proper procedure like the one followed in the complaint’s case was also followed in that case. Other contentions have been controverted and prayer for dismissal of the complaint has been made. In evidence, the OPs have tendered affidavits Annexure RA & Annexure RB and documents Annexure R1 to Annexure R6.

3.                     We have learned counsel for the parties and gone through the case file very carefully.

4.                     The complainant has claimed loss of goods due to flood amounting to Rs.11,42,954 vide Annexure C-5 dt. 6.7.2010 and thereafter some scrap/ damaged goods were sold on 18.7.2010 amounting to Rs.50,169/- vide Annexure C-19 sale bill and net loss amounts to Rs.10,92,785 as stated in para no.5 of complaint/affidavit. The loss of Rs.1142954 as claimed in annexure C5 is shown in P&L a/c attached with balance sheet annexure C20 which is upto 31.03.2011 and net loss 1092785 is shown in annexure C20 in balance sheet in column of assets B. loan & advances under head insurance claim recoverable. Huge stock is also proved from balance sheet of firm upto 31.03.2010 as annexure C7 (total stock value of Rs. 49,96472.45/-. Many items were saved as Stock by flood on 6.7.2010 and their list is attached as Annexure C-6 and list of damaged goods is shown in Annexure C-5.  The items are same in both lists which itself shows that the complainant tried to save its stock from flood and shown in right way with duly audited report.  The P/L Account is shown in Annexure C-8. The OP was directed by Court to consider documents Annexure C-1 to C-45 and then to submits is fresh report of valuation Annexure C-52 dt. 24.03.2017 vide order dated 24.03.2017 passed by this Forum in the earlier complaint No. 89/12 but OP has not considered it and submitted old report on old basis.  The OP in reply and affidavit has stated that it submitted all documents of complainant to its both surveyors but both surveyors in their cross examination have admitted that they were not given any of document of complainant, bill ledger, balance sheet, stock register, P&L a/c which means that the fresh rejection Annexure C-46, is made on the basis of old report. Further, the first surveyor stated that he took photographs of flood of complainant’s shop but did not produce it on record and adverse inference is drawn against insurance co. for withholding best evidence. Thus plea of OP regarding submitting documents annexure C1 to C45 as stated in WS in para no. 1,4 of prel. Objection to its surveyors is proved to be false. Thus no documents were considered by OP. There is no plea of OP that the premises is small and huge stock cannot be maintained in it. The surveyors neither considered the report nor visited the premises of the complainant and both the reports are false. Second surveyor stated that he prepared his report only on the basis of first report and also stated that he did not see any of documents from C1 to C45 by saying that he has no concern with these documents and even did not know about building of firm. There is no date of visit in the report of first surveyor. The loss of Rs.1142954 as claimed in annexure C5 is shown in P&L a/c attached with balance sheet annexure C20 and net loss 1092785 is shown in annexure C20 in balance sheet in column of assets B. loan & advances under head insurance claim recoverable. Huge stock is also proved from balance sheet of firm upto 31.03.2010 as annexure C7 thus the OP has rejected the claim on false basis and complaint be allowed as prayed for in it.  

                On the other hand learned counsel for the OPs has argued that the claim of the complainant was again considered by the investigator namely Sh.R.K.Bhola as well as Sh.Rajan Sharda, surveyor and in their report wherein they have assessed the loss of Rs.8700/- which was not payable as per excess clause of Rs.10000/- and the OPs have rightly repudiated the claim vide letter dated 08.08.2017 Annexure C46.

                        On the application of the complainant investigator and surveyor were allowed to be cross-examined and during cross-examination the surveyor had admitted that he had never seen the stock register, balance sheet, purchased bill P/L account and document regarding claim whenever the company had specifically mentioned in the repudiation letter that we have sent the claim of the complainant to the surveyor to reassess the flood loss as per order of this Forum dated 24.03.2017. Meaning thereby the surveyor namely Rajan Sharda has not assessed the loss after going through the documents submitted by the complainant after order of this Forum. This witness has further admitted except the report dated 14.10.2010 he had not prepared any other report regarding the loss in question. The observation and assessment made by surveyor Rajan Sharda is as under:

        On receipt of instructions we visited the premises of insured situated at Dal Mandi Ambala Cantt. The flood water had already reached but water marks were visible on the walls of shops which were approx.1.5 feet high from floor level. The insured submitted us the list of stock damaged in flood water. The insured informed that stock of Gur, Soap, Sugar, Oil etc. all were kept on floor and which got submerged in flood water and got damaged. We asked the insured that how the stock of oil can be damaged in flood water as the same are packed in pouches and tin which do not got affected in water. The insured could not give any reply. We than asked the insured to show us the damaged stock for our verification. The insured informed that the damaged stock has been thrown as considerable time has passed since the flood and our visit. However, he informed us that M/s Kumar Raj & Associates preliminary surveyor visited the site and inspected the damaged and taken the photographs.

                 The preliminary surveyor have mentioned in his report that only 6 bags Gur were damaged in flood water and other packing cartons of RB refind and SF refind oil were damaged. We have assessed the loss keeping in view the quantities of items recommended by preliminary surveyors. The insured has claimed loss to Gur in the claim list @ Rs.1200/- per bag. The same have been found reasonable and agreed. A lum sum amount of Rs.1500/- have been allowed on account of damaged card board cartons.

 

                Undisputedly, the complainant has firstly challenged the repudiation letter which has been placed on the case file as Annexure C21 wherein it has been mentioned that This is reference to your letter dated vide which you have reported above loss. Mr.Rajan Sharda Surveyor was deputed for survey and assessment of loss. He has reported that assessment loss under this claim comes within the compulsory excess clause as per term and condition of the policy. As such there is no liability under this claim and hence filed as No Claim.    This Forum while disposing of earlier complaint No.89/2012 dated 16.03.2012 had directed to submit the requisite documents and complete legal formalities  within one month and thereafter the Ops were to decide the claim within two months.  The complainant had submitted the required documents vide speed post Annexure C47, Annexure C50 and Annexure C51 (postal receipts). The Ops were to decide the claim of the complainant afresh keeping in view the documents submitted by her as per directions of this Forum but it appears that the Ops were already made their mind to repudiate the claim again on the same notes because repudiation letter 08.08.2017 does not indicate that the claim of the complainant was ever reconsidered. The relevant portion of the repudiation letter dated 08.08.2017 (Annexure C46) is as under:

                With reference to above, we wish you we have sent your claim file to surveyor with the instructions to re-assess the flood loss claim of your stock as per directions of hon’ble Court. Now he after re-assessment submitted his report wherein he confirmed that the loss assessment comes to Rs.8700/- as per previous assessment. Hence, keeping in view the surveyor report, we again regret to inform you that your claim is not maintainable as the loss falls within excess clause of Rs.10000/- as per policy terms and conditions.  In the repudiation letter dated 08.08.2017 (Annexure C46) it has been not mentioned that on which date the surveyor had made another report keeping in view the documents submitted by the complainant after the directions given by this Forum. The insurance company has not produced the report prepared by their surveyor after submission of the documents by the complainant before this Forum. In general the insurance company treats the report of surveyor as per its own betterment and benefits and used the report as a weapon to repudiate the claim or to settle the claim on such a meager amount and the same has also happened in the present case.  On this point reliance can also be taken from the case law titled as United Insurance Company Limited Vs. N.T. Babu Proprietor Toy Palace, Court Road Palakkad RP No. 2868 of 2013 (NC) Date of Decision: 01.05.2014.   Perusal of the case file reveals that the insurance company has not proved on the case file that as to how it has assessed the loss on what terms and on which basis. The photographs clicked by the investigator placed on the case file as Annexure C45 & Annexure 46 but these photographs do not clear the actual scenario at the spot at the date of flood. The relevant documents from the date of incident, information, assessment and till repudiation are lying with the insurance company but it is strange that it has not produced the clear photographs on the case file. Moreover, as per complainant the incident had happened on 06.07.2010 and the perusal of report of the surveyor Annexure C24 reveals that the survey was conducted on 23.07.2010 i.e. after 17 days, therefore, there is every apprehension that the there may be moisture, foul smell being some perishable items lying in the shop due to flood water to 1-1/2 feet high as admitted by surveyor in his report. The act and conduct of the OPs clearly show that they are bent upon to repudiate the claim of complainant keeping in view the report of the surveyor but considering the above mentioned facts and circumstances we are of the view that surveyor’s report is not reliable. It is not disputed that the complainant had obtained an insurance policy ( standard fire policy from OP No.1 for value of Rs. 50 lacs  against risk of fire  as well as earth quake  cover which includes loss arising out of “Act  of God perils”  for the period 14.5.2010 to 13.05.2011 and occurrence took place within policy period i.e. on 06.07.2010.

                             Keeping in view the above facts and circumstances we come to the conclusion that the insurance company has wrongly and illegally repudiated the claim of the complainant, therefore, repudiation letter 08.08.2017 is hereby quashed. Accordingly, the present complaint is partly allowed with cost which is assessed as Rs.10,000/- The OPs are further directed to comply with the  following direction within thirty days of the receipt of copy of the order:-

1. To pay a sum of Rs.10,82,785/- (total damage Rs. 11,42,954 -50169 damage goods sold as per Annexure C-19)-10.000 as a excess clause .

 The awarded amount would carry simple interest @ 9% per annum from the date of filing of complaint till its actual realization. Copy of the order be sent to the parties concerned, free of costs, as per rules. File after due compliance be consigned to record room.

Announced on:10.12.2018.                                                                                                   

                                                                                                      (D.N. ARORA)

                                                                                PRESIDENT                         

(DR.SUSHMA GARG)

                     MEMBER