Haryana

StateCommission

A/630/2015

NEW INDIA ASSURANCE CO. LTD. - Complainant(s)

Versus

SARASWATI BRIGUEDED INDUSTRIES - Opp.Party(s)

B.S.TAUNQUE

28 Feb 2017

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

                                                 

                                                         First Appeal No.630 of 2015

Date of Institution: 20/28.07.2015

                                                               Date of Decision: 28.02.2017

 

1.      New India Assurance Company Limited,  Regional Office, SCO No.36-37, Sector 17-A, Chandigarh through its Manager, (Legal)

2.      The New India Assurance Company Limited, Kaithal, its Branch Manager.

….. Appellant

Versus

 

M/s Saraswati Briqueded industries village Peedal (Cheeka), Tehsil Guhla, District Kaithal through its Partner Rajesh Jain S/o Sh.Nirmal Jain.

                                      …..Respondent

 

CORAM:             Mr. R.K.Bishnoi, Judicial Member.

                             Mrs. Urvashi Agnihotri, Member.                                                                                                                                        

Present:               Shri B.S.Taunque, Advocate for appellants.

                             Shri Ravi Kant, Advocate for respondent.

 

                                                   O R D E R

R.K.BISHNOI, JUDICIAL MEMBER:-

          It was alleged by complainant that he obtained insurance policy of Rs.75/- lacs for complete building and Rs.75/- lacs for plant and machinery valid from 31.10.2011 to 30.10.2012.  On 01.06.2012 at about 09.00 P.M. fire erupted in the factory and he suffered loss to the tune of Rs.12,87,500/- as detailed below:-

“i.       Popular wood fatti 2200 sq. feet @ Rs.400/- Rs.8,80,000/-.

                   ii.       8 coils @ Rs.35,000/- per coil Rs.2,80,000/-

                   iii.      4 Blower @ Rs.10,500/- per blower Rs.42,000/-.

                   iv.      4 P.D. @ Rs.14,500/- per P.D.Rs.58,000/-.

                   v.       140 Steam pipes @ Rs.125/- per pipe Rs.17,500/-.

                   vi.      Building damages approximate    Rs.10,000/-

                                                Total                              Rs.12,87,500/-“

Surveyor deputed by O.Ps. wrongly assessed the loss to the tune of Rs.1,69,187/- which was deposited in it’s account without any information.  No consent was ever given to deposit above-said amount.

2.      O.Ps. filed reply controverting averments of insured and  alleged that the fire took place when process of heating and drying  was in process because no other cause of fire could be ascertained.  As per surveyor complainant was entitled for compensation to the tune of Rs.1,69,187/- only which was deposited in his account as full and final settlement.  Objections  about maintainability of complaint, Applicability of Consumer Protection Act, 1986 (In Short “Act”) etc. were also raised and requested to dismiss the complaint.

3.      After hearing both the parties, learned District Consumer Disputes Redressal Forum, Kaithal (In short “District Forum”) allowed the complaint vide impugned order dated 05.06.2015 and directed as under:-

“In view of above discussion, we allow the complaint and direct the OP to pay Rs.8,80,000/- as loss of stock insured under the policy No.3536041111030000008 dt. 31.10.2011 and further to pay Rs.10,000/- as compensation for harassment, mental agony and Rs.3,000/- as cost of litigation charges.”

4.      Feeling aggrieved therefrom O.Ps. -appellants have preferred this appeal.

5.      Arguments heard and file is perused.

6.      Learned counsel for the appellant vehemently argued that  as per clause  1 (a) (ii) damage due to heating or drying process was excluded. In the present case complainant alleged that ‘Burada’ (saw dust)  caught fire due to heat in the chamber. It shows that drying and heating process was going-on and exclusion clause is applicable. So complainant is not entitled for any compensation.  Even otherwise as per report of surveyor Rs.1,69,187/- are already deposited in his account as full and final settlement.  He did not raise any objection qua the same, so complaint was not maintainable. Impugned order be set aside and appeal be allowed.

7.      This argument is devoid of any force. Complainant no-where alleged in Ex.C-6 that saw dust caught fire during heating and drying process. He has only suspected that fire might have taken place due to this reason. Unless specifically stated by complainant it cannot be presumed that heating and drying process was going on.  This is a question of fact and is to be proved beyond any shadow of doubt.  It is well settled proposition of law that benefit of doubt is to be given to consumer in such like cases as opined by Hon’ble National Commission in Revision petition No.4544 of 2012 decided on 27.11.2013 titled as National Insurance Company Ltd. Vs. Gopanaboina Sathyam and revision petition No.3236 of 2013 decided on 07.08.2014 titled as Sh. Abhishek Jain Vs. HDFC Standard Life Insurance Co. Ltd. When this fact is not proved it cannot be opined that exclusion clause  No.1 (a) (ii) of Annexure A-3 mentioned as under is applicable:-

                   “1. Fire

Excluding destruction or damage caused to the property insured by

1. (ii) its undergoing any heating or drying process.”

When the exclusion clause is not applicable the complainant is entitled for compensation.

8.      Now the question comes about amount of compensation. Complainant has not produced any cogent  evidence to show that he suffered loss to the tune of Rs.12,87,500/-.  He has submitted claim only on the basis of presumption. It was his bounden duty to show that how much wood was stored in the chamber and what was value.  In the absence of any document the loss mentioned in report of surveyor Ex.R-3 is to be awarded. The loss assessed by surveyor was to the tune of Rs.4,49,301/-, but, he deducted 41.21% qua plant and machinery and 43.30% qua building as under insurance factor, whereas the same were not under insured.  The deductions made by surveyor are not proper. So in these circumstances complainant is held entitled for compensation to the tune of Rs.4,49,301/- (round figure Rs.4,50,000/-) as total loss to building, plant and machinery besides other relief granted by Learned District forum.  Impugned order dated  05.06.2015 is modified to this extent.

9.      The statutory amount of Rs.25,000/- deposited at the time of filing the appeal be refunded to the appellant against proper receipt and identification in accordance with rules.

 

February 28th, 2017   Urvashi Agnihotri                    R.K.Bishnoi,                                                                           Member                                  Judicial Member                                                                     Addl. Bench                            Addl.Bench                

S.K.

 

Reference to this effect can be made to the opinion of Hon’ble National Commission in United India Insurance  Company Ltd. & Anr. Vs. Subhash Chandra III (2010) CPJ  5 (NC), HSBC Limited & Anr. Vs. Sridhar Gajula & Ors. III (2010) CPJ 8 (NC), Sushila Devi Vs. LIC of India 1 (2016) CPJ 351 (NC) and Renu Pandey Vs. Lal Nursing Home & Ors. 1 (2016) CPJ 353 (NC) (case law cited by the complainant’s counsel) .