Jammu and Kashmir

Jammu

CC/205/2017

VARDAN RESORTS - Complainant(s)

Versus

oriental insurance - Opp.Party(s)

BB GUPTA

19 May 2018

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,JAMMU

(Constituted under J&K Consumer Protection Act,1987)

                                                          .

 Case File  No                469/DFJ           

 Date of  Institution       08-03-2017

 Date of Decision          03-05-2018

 

Vardan Resorts Pandora Enclave,

Patnitop Distt.Udhampur,

Head Office 8-9 Trikuta Nagar

Ext.-A Sector 9,Jammu

Through B.B,.Gupta S/O Des Raj Gupta,

Chairman-cum-Managing Director.

                                                                                                                                                                Complainant

                     V/S

Oriental Insurance Company Ltd.

Through its Divisional Manager,

Town Hall,Jammu.

                                                                                                                                                                Opposite party

CORAM

                  Khalil Choudhary            (Distt.& Sessions Judge)  President

                  Ms.Vijay Angral                                                               Member

                  Mr.Ghulam Sarwar Chauhan                                       Member

 

In the matter of: Complaint under section 10 of J&K Consumer

                              Protection Act 1987.

 

Mr. K.K.Jandyal ,Advocate for complainant, present.

Mr.Sumeet Bhatia,Advocate for OP,present.

 

 

                                                                      ORDER

                              Facts relevant for the disposal of complaint on hand are that complainant Mr.B.B.Gupta is the Chairman-cum-Managing Director of Vardaan Resorts Pandora Enclave Patnitop and the firm of complainant was insured by OP vide Policy No. 262100/11/2016/127 and during the currency of insurance policy a flash flood occurred at Patnitop on,12-05-2016and caused damage to the firm of complainant. According to complainant, he informed OP on the same day,i.e.12-05-2016 vide written communication and also requested OP to depute a surveyor and assessed the loss caused to the firm due to flash flood. Allegation of complainant is that he repeatedly approached OP for appointment of surveyor and after great insistence a surveyor came to be deputed by the OP who came on spot and assessed the loss caused to the firm due to flash flood, but no steps have been initiated to settle the insurance claim and the complainant on his own got the loss assessed from the competent Engineer authorized to assess the loss and the loss caused to the firm had been assessed at Rs.6,47,000/-,but,OP failed to indemnify the loss.Therefore,same constitutes deficiency in service, Hence for remissness on the part of OP to indemnify the loss, complainant approached this Forum and prays for indemnity to the tune of Rs.6,47,000/- and in addition, also prays for compensation to the tune of Rs.2.00 lacs.

              On the other hand,OP filed written version and resisted the complaint on the ground that there is neither any deficiency  nor any undue denial of service on the part of OP.That the present complaint involves complicated question of acts requiring detailed and prolonged trial by this Forum, including examination of numerous witnesses by both the parties. That the Op on being intimated about the loss dated 12-05-2016 pertaining to M/S Vardaan Resorts,Patnitop immediately deputed duly licensed surveyors and loss assessors K.B.& Company to conduct survey and thereafter the said duly licensed surveyor and loss assessor vide their report dated 17-02-2017 assessed the loss for an amount of Rs.5,48,245.20/-,further adjusted at Rs.3,55,000/-after deduction of necessary deductibles as warranted under the policy, copy of said assessment report is annexed as Annexure-R1.It is admitted that M/S Vardaan Resorts,Pandora Enclave Patnitop was insured with the OP for the period 14-07-2015 to 13-07-2016.It is pertinent to mention that the complainant has not provided registration certificate in the name of Vardaan Resorts, which establishes that complainant has no insurable interest in the subject matter of insurance. That the complainant has provided to the surveyors and loss assessors K.B.& Company certificate of Incorporation pertaining to V.INNS and Resorts Pvt.Ltd.and memorandum of Association and Articles of Association of V.Inns & Resorts Pvt.Ltd.Further complainant has provided certificate of registration of Hotel/Guest House in the name of Brij Bhuhsan Gupta under the name of  unit as M/S Vinns and Resors (P)Ltd.(Patnitop)renewed upto 31-12-2009.It is further submitted that insurance claim of complainant could not be settled because complainant did not submit requisite documents for the settlement of claim. Rest of the contents are denied.

           Complainant adduced evidence by way of duly sworn evidence affidavit and affidavit of Kewal Sharma Manager of Vardan Resorts Pandora Enclanve Patnitop,Distt.Udhampur.Complainant has placed on record copy of policy schedule, copies of communications exchanged between the parties, copy of estimate of damages, copy of cutting of Daily Excelsior newspaper, copy of certificate issued by Chartered Accountant, copy of Board Resolution passed in the Board Meeting Held on 01-04-2008 and copy of notice.

               On the other hand,OP adduced evidence by way of duly sworn evidence affidavits of P.S.Thakur Sr.Divisional Manager, Oriental Insurance Co.Ltd.and K.B.Manchanda Surveyor and Loss Assessor,respectively.OP has placed on record copy of policy, copy of surveyor report, copy of certificate of registration of Hotel/Guest House, copy of memorandum, copies of photographs and copies of communications exchanged between the parties.

                      We have perused case file and heard L/Cs for the parties at length.

                              After hearing L/Cs for parties and perusing the case file, the point for consideration is, as to whether or not OP is deficient in service in not settling the case of complainant.

                      Before heading further, it is to be noted that since parties have lead evidence in the shape of evidence affidavits, which are much or less reproduction of contents of their respective pleadings,therefore,we do not feel it necessary to represent the same again and if need arises, same would be referred hereinafter at appropriate stage.

              L/C for complainant vehemently argued that despite completion of all requisite formalities,OP did not indemnify the loss suffered to the firm, therefore, same constitutes deficiency in service. On the other hand, submission of L/C for OP is that despite repeated communications, complainant did not submit requisite documents for settlement of claim.

            Be it noted that in so far as insurance of firm in question and its loss during currency of policy is concerned, same are not in dispute. According to complainant, insured firm suffered loss due to devastating flood. In order to support his contention that loss to the insured firm suffered on account of devastating flood, complainant relied upon copy of clipping of Daily Excelsior newspaper dated 12^th May,2016.Complainant has also relied upon policy schedule, wherein name of firm is mentioned as M/S Vardaan Resorts. The case of the complainant is also strengthened by the estimate for damages, wherein total cost of damages has been assessed at Rs.6,47,000/-. As per certificate issued by Chartered Accountant it is certified that M/S Hotel Vardaan Resorts,Patnitop is a unit of M/S V.Inns & Resorts Private Limited having its registered office at H.No.8/9 Sector 9 Extn.Trikuta Nagar Jammu. On the other hand,OP placed on record copy of surveyor report dated,17-02-2017,whereby net loss assessed to the tune of Rs.3,55,000.

               Keeping in view nature of dispute raised in the complaint, in our opinion, same can be adjudicated on the basis of Loss Assessment Report, which reads as plausibility of cause of loss as under

        The cause of the loss is plausible and falls within the scope of the policy of insurance on which the claim has been preferred.

    Details of damages: The Hotel Building, fencing on the periphery of the hotel of insured damaged in contact with flood water which inundated the property of Insured. One room of the hotel has been damaged due to subsidence as the same has developed gigantic cracks on load bearing walls and is rendered unserviceable.Whitewash etc.on the ground floor has to be redone.

  Basis of assessment: The assessment is based on the physical verification and specifications prepared during our visits to the insured Hotel property.

            Once it has been shown that firm was comprehensively insured and it was damaged in a devastating flood during currency of Insurance Policy, in that event, Op is not expected to devoid the benefits of Insurance Policy to the insured on technical grounds, which are short of fundamental breach of contract of indemnity.

                 Otherwise also legally speaking it is settled law that the parties are always bound and governed by the terms and conditions of contract and whenever contract is entered into there is proposal made by one party in its unequivocal and unambiguous terms conveyed to the otherside and acted by otherside with the same response and in its understanding and knowledge leaving no scope of any future suspicion and incredibility in mind to come in the way of the said contract afterwards.

                       Further also to make it more clear, as for as the terms of the policy are concerned reliance can be had to judgment in case titled Indraprastha Gas Ltd.V/S New India Assurance Co.Ltd.& Ors. reported in 1(2015)CPJ 279(NC)wherein the relevant para it is laid down

        The court has to give material meaning to the document. It is not open to the court to make any addition to or subtraction from the terms and conditions contained in Insurance Policy.

                                     In this view of the matter, we are of the opinion that once OP received premium, contract of insurance become complete and Op cannot subsequently allowed to run from its contractual liability to reimburse the insured for the loss suffered during the currency of policy. Complainant in order to support his claim produced  estimate for damages and cutting of newspaper. The documents relied upon by complainant also find support from record produced by OP.

                          Although complainant prays for sum of Rs.6,47,000/-as loss caused to the firm, but perusal of Policy schedule reveals that sum insured under the policy is Rs.4,75,000/-.

                            Therefore, in view of the foregoing reasons the complaint filed by the complainant for redressal of his grievance is allowed and OP is directed to pay to the complainant the assessed amount of Rs.3,55,000/-alongwith interest @ 7% per annum w.e.f.17-04-2017(i.e. two months after surveyor report),till its realization. The complainant is also entitled to compensation of Rs.5000/-for causing unnecessary harassment and mental agony and litigation charges of Rs.5000/-.The OP shall comply the order within one month from the date of receipt of this order. Copy of this order be provided to both the parties as per requirement of the Act. On deposit of the amount in this Forum, the same shall be paid to the complainant through payees account cheque.The complaint is accordingly disposed of and file be consigned to records after its due compilation.

Order per President                                              Khalil Choudhary

                                                                         (Distt.& Sessions Judge)

Announced                                                              President

 03-05-2018                                                  District Consumer Forum

Agreed by                                                                Jammu.

 

Ms.Vijay Angral          

Member        

 

Mr.Ghulam Sarwar Chauhan,

Member