Andhra Pradesh

Chittoor-II at triputi

CC/48/2016

Baiggari Chand Basha, S/o Basha Miya, Prop. KGN Company, - Complainant(s)

Versus

SBI General Insurance Co. Ltd., By its Authorised Signatory - Opp.Party(s)

G.Ramaiah Pillai

16 Nov 2017

ORDER

Filing Date: 23.05.2016

Order Date:16.11.2017

 

 

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II,

CHITTOOR AT TIRUPATI

 

 

      PRESENT: Sri.M.Ramakrishnaiah, President ,

        Smt. T.Anitha, Member

 

 

 

THURSDAY THE SIXTEENTH DAY OF NOVEMBER, TWO THOUSAND AND SEVENTEEN

 

 

 

C.C.No.48/2016

 

 

Between

 

 

Baiggari Chand Basha,

S/o. Basha Miya, Muslim, Aged 56 years,

Prop.KGN Company,

D.No.19-8-213, Hathiramji Colony,

Bairagipatteda,

Tirupati,

Chittoor District.                                                                              … Complainant.

 

And

 

 

1.         S.B.I.General Insurance Co. Ltd.,

            By its Authorised Signatory,

            Penumadi Towers, 3^rd Floor,

            20-3-124, Yerramitta,

            Near Leela Mahal Circle,

            Akkarampalle Road,

            Tirupati.

 

2.         S.B.I. General Insurance Co. Ltd.,

            By its Authorised Signatory,

            Regd. Company, Nataraj 101, 201, 301,

Junction of Western Express High Way,

Andheri Kurla Road,

Andheri (East),

Mumbai – 400 069.                                                              …  Opposite parties.

 

 

 

 

            This complaint coming on before us for final hearing on 16.11.17 and upon perusing the complaint and other relevant material papers on record and on hearing Sri.G.Guru Prasad, counsel for complainant, and Sri. Prem Kumar Karanam, counsel for opposite parties, and having stood over till this day for consideration, this Forum makes the following:-

ORDER

DELIVERED BY SRI. M.RAMAKRISHNAIAH, PRESIDENT

ON BEHALF OF THE BENCH

           

            This complaint is filed by the complainant under Sections –12 and 14 of C.P.Act 1986, against the opposite parties 1 and 2 for the following reliefs 1) to direct the opposite parties to pay the damages of Rs.11,09,486.16, which was covered under the insurance policy for the insured amount of Rs.40,00,000/- less Rs.2,00,000/- which was already credited as per bank account, 2) to direct the opposite parties to pay Rs.2,00,000/- towards compensation for causing mental agony, and 3) to pay Rs.2,000/- towards legal expenses and to pass such other reliefs as the Forum deems fit and proper in the circumstances of the case.  

2. The brief averments of the complaint are:-  That the complainant under self employment maintaining petrol filling station to earn his livelihood. He also obtained certificate from the Additional District Magistrate, Collectorate Office, Chittoor, in Dis.No.C4/5899/4-12-2004 for storage of KLS of MS and 40 KLS of HSD, at S.No.269, Tiruchanoor, Tirupati rural mandal.

3.  That the complainant obtained general insurance business package insurance policy No.0000000003094901 for I.D. value of Rs.40,00,000/- to cover the risk from 23.07.2015 to 22.07.2016 in respect of stock and stock in trade identifying from the loss due to storm and allied perils to be settled basing on the market value within 30 days. Further the policy covered under Clause-VI for loss due to distraction or damage directly caused by storm, cyclone, typhone, tempest, hurricane, tornado, flood or inundation or other convulsions of nature.  

4.  That on 15.11.2015 due to heavy cyclone, the said filling station covered under the policy No. 0000000003094901 was closed. On the next day i.e. on 16.11.2015, it was opened and found that tanks were inundated with rain water and entire diesel and petrol was mixed up with rain water and got damaged. The above impact was informed to the Manager, Bharat Petroleum Corporation Ltd., Chennai, who came and spot inspection was made and opined that due to cyclone effect incessant rain fall in the town, the rain water entered into the tank and it is not an adulteration but submersible turban pump (STB). It is assessed and found on 16.11.2015 that HSD Dip 54 water contaminated stock 4597 ltrs and MS Dip 49.5 water contaminated stock of 3008 ltrs. Thereafter the complainant submitted his claim form under standard fire and special peril policy to the extent of loss for HSD – Rs.3,94,030/- and for MS – Rs.7,15,456.16, totaling Rs.11,09,486.16.

5.  with reference to the above claim, the complainant was required to send certain documents numbering 1 to 10 mentioned in the letter dt:23.11.2015 sent by R.Kalyana Sundaram, Chennai, of insurance company. The complainant complied the same on 26.11.2015. But the complainant was not informed about the settlement of the claim for the total value of Rs.11,09,486.16 covered under the policy. That the complainant found a sum of Rs.2,00,000/- was credited in his S.B.Account No.33913272577 on 17.12.2015, but it was not mentioned whether it relates to settlement of claim under business package insurance policy, issued by opposite party No.1, as such he got issued a legal notice on 02.04.2016 requesting opposite party No.1, to inform whether the said amount of Rs.2,00,000/- pertains to the insurance claim, if so, to pay the balance amount within 7 days. Though the notices were served on the opposite parties, they did not comply. Thus, there is deficiency in service on the part of the opposite parties. Hence the complaint.     

6.  Opposite party No.2 filed the written version and the same is adopted by opposite party No.1, denying parawise allegations of the complaint and further contended that one KGN Company, who is doing retail business of petrol and diesel insured his stock in trade with the opposite party as BUSINESS PACKAGE IN INSURANCE POLICY for a period of one year commencing from 23.07.2015 to 22.07.2016 with policy No.0000000003094901 to cover the risk of his stocks from natural calamities. That the complainant business centre was affected by the cyclone, as his petrol bunk was flooded with rain water and the tanks of the said bunk was filled with rain water and his entire existing stock was damaged. The complainant intimated the same to the opposite party on 16.11.2015. The opposite party inturn entrusted the matter to M/s. Kalyana Sundaram and Co., Chartered Engineers, surveyors, loss assessors and valuers of Chennai, who conducted the survey and assessed the loss. After the said assessment, the opposite parties paid a sum of Rs.2,00,000/- and communicated the same to the complainant by way of letter dt:25.01.2016, duly intimating the surveyors assessment also. The surveyor issued his final report assessing the actual damage occurred to the stock in trade as Rs.2,00,000/-

7.  That the complainant got issued legal notice dt:02.04.2016 to the opposite party No.1, and opposite party No.1 gave reply to the said notice vide letter dt:16.05.2016. That immediately after receipt of the information from the complainant, opposite parties deputed independent surveyor to assess the damages. On receipt of the documents, the surveyor assessed the damages in the presence of complainant and assessed the damaged stock as 1810 ltrs of petrol and 2275 ltrs of diesel, on the basis of values prevailing on the date of incident and calculated the damages suffered by the complainant and submitted his report. Basing on the report given by the surveyor, opposite party deposited a sum of Rs.2,00,000/- in the account of the complainant (by way of account payment). The opposite party furnished the details of settlement sent to the complainant. The complainant got issued legal notice after lapse of 5 months, after crediting the amount of Rs.2,00,000/- to his account and about 4 months after receipt of settlement letter, as if he is not aware of the settlement of his claim. That after receipt of the surveyor report, basing on the papers submitted by the complainant, opposite parties settled the claim and amount also deposited in the account of the complainant and informed the same to the complainant, as such there is no deficiency in service on the part of the opposite parties. There is no cause of action for filing the complaint. This Forum has no jurisdiction to entertain the complaint. That the complainant is not entitled for any compensation or damages and prays the Forum to dismiss the complaint with exemplary costs.

8.  The complainant filed his evidence affidavit as P.W.1 and got marked Exs.A1 to A5. One Akhil Kulhari, National Manager, consumer litigations of opposite party, filed his evidence affidavit as R.W.1 and got marked Exs.B1 to B5. Both parties have filed their respective written arguments. Heard the counsel for both parties.

 

9.  Now the points for consideration are:-

(i).  Whether there is deficiency in service on the part of the opposite parties?

(ii).  Whether the complainant is entitled for the alleged balance amount of

        Rs.9,09,486.16 and compensation as prayed for?           

(iii). To what relief?

10.  Point No.(i):- The ownership of the complainant over the filling station in question is not in dispute, floods that occurred on the night of 15.11.2015 was also not in dispute, but the quantity of damaged petrol and diesel is in dispute. Insurance of filling station with the opposite party for a sum of Rs.40,00,000/- is also not in dispute. The policy No.0000000003094901 is also not in dispute and the policy was in force on the date of the incident. The licensed surveyor deputed by the opposite party i.e. Manager, Bharath Petroleum Corporation Ltd., Chennai, inspected the spot and opined that due to cyclone effect incessant rain fall in the town, the rain water entered into the tank and it is not an adulteration but submersible turban pump, and it was assessed and found on 16.11.2015 that HSD Dip 54 water contaminated stock 4597 litres and MS Dip 49.5 water contaminated stock of 3008 litres. Thereafter the complainant submitted his claim form under standard fire and special peril policy to the extent of loss of Rs.3,94,030/- for HSD (diesel) and Rs.7,15,456.16 for MS (petrol), for a total sum of Rs.11,09,486.16, but the complainant has not mentioned the stock available on the date of inundation i.e. quantity of diesel and quantity of petrol in the filling station in his complaint specifically. The quantity as assessed by the surveyor deputed by BPCL was alone mentioned in the complaint and no other quantity was referred to in the complaint. If the quantity as assessed by the surveyor, so far as HSD Dip 54 (diesel) water contaminated stock of 4597 litres and MS Dip 49.5 (petrol) water contaminated stock of 3008 litres, is taken into consideration, the loss will be Rs.3,87,458-32, because the cost of the diesel as on the date of incident is Rs.45.98 per litre and cost of petrol as on the date of incident is Rs.58.54 per litre. As per Ex.A2 also, the remarks column shows as 3008 litres so far as petrol is concerned and water contaminated stock of diesel is shown as 4597 litres. Accordingly the loss can be estimated.

11.  The complainant with the same quantity of diesel as 4597 litres and petrol as 3008 litres,  made claim of Rs.3,94,030/- for diesel and Rs.7,15,456.16 for petrol. How the complainant has arrived at this cost / claim is not specified anywhere in his complaint or in evidence affidavit or in any of the documents relied on by him. The opposite parties as per final survey report, it was assessed that MS (petrol) is assessed to 1810 litres and HSD diesel is assessed to 2275 litres, which was finally found to be damaged. It was valued at Rs.1,05,957.40 towards cost of the damaged petrol and Rs.1,04,604.50 towards cost of the damaged diesel and finally it was assessed to Rs.2,00,000/- only after deducting 10%  as was mentioned in the report. Having admitted by the opposite parties that the damaged or inundated quantity of petrol as 3008 litres and diesel as 4597 litres, that should have been assessed. After the final assessment, the opposite parties have admittedly deposited a sum of Rs.2,00,000/- into the bank account of the complainant on 17.12.2015 as per the complainant and the said amount was shown in his S.B.Account No.33913272577. According to the opposite party, the amount was deposited within the stipulated period.

12.  The complainant did not mention the reasons as to how he could assess the value of the diesel as Rs.3,94,030/- and value of petrol as Rs.7,15,456.16/- said to have been damaged, in his complaint, without questioning the quantity of damaged petrol and diesel assessed by the opposite parties. If the claim of the complainant for Rs.3,94,030/- for diesel and Rs.7,15,456.16 for petrol is taken into consideration, then the prevailing market rate of the diesel as on the date of incident would be Rs.85.71 per litre and the petrol will be at Rs.237.85 per litre, which was never seen in the market. Therefore, the claim of the complainant cannot be accepted and it appears to be abnormal and unsustainable. Similarly, the assessment made by the surveyor, so deputed by the opposite party for Rs.2,00,000/- is also not proper, as the surveyor himself admitted the quantity of water contaminated stock as 4597 litres of diesel and 3008 litres of petrol. So, if the market rate of the diesel (HSD) at the rate of Rs.45.98 per litre is taken into consideration, its cost will be 4597 x 45.98 = Rs.2,11,370/- If the prevailing market rate of the petrol as on the date of incident is taken into consideration, it will be 3008 x 58.54 = Rs.1,76,088-32, the total cost comes to Rs.3,87,458-32. If the amount already paid is deducted, the amount comes to Rs.1,87,458-32 i.e. (Rs.3,87,458.32 – Rs.2,00,000 = Rs.1,87,458.32). Under the above circumstances, we are of the opinion that there is deficiency in service on the part of the opposite parties. Accordingly, this point is answered.

13.  Point No.(ii):-  In order to answer this point, it is to be said that in view of our discussion on point No.1, the complainant is entitled to the balance amount of Rs.1,87,458-32 only but not for Rs.9,09,486-16, as the complainant failed to produce any documentary evidence or oral evidence to show that the stock damaged in the floods on 15.11.2015 night is equivalent to that of Rs.3,94,030/- of diesel and           Rs. 7,15,456.16/- of petrol. His document Ex.A2 also does not show the stock of diesel and petrol is equivalent to that of the claim made by the complainant. As per Ex.A2 as on 15.11.2015 the opening stock is 8201 and closing stock is 7307, on 16.11.2015 the opening stock is 7298 and closing stock is 10953, receipts is for 4000, total 11298. So, immediately after opening the filling station, it was found that the tanks were flooded with water. After verifying the stock register, contaminated stock in the remarks column it was shown as 3008 litres of petrol is available. Similarly, on 15.11.2015 opening balance of the diesel is shown as 11,157 and closing balance was shown as 7641, sales is shown as 3516, at the bottom of the page, it is mentioned as water contaminated stock is 4597 litres. So, this will be the actual contaminated stock, but the complainant did not mention the actual stock of diesel and actual stock of petrol and quantity of water flood into underground tanks. Therefore, in our opinion the complainant failed to establish that stock of diesel and stock of petrol during the night of 15.11.2015 was equivalent to that of his claim and not specified the quantities in litres anywhere in his complaint or evidence affidavit. When the alleged stock, which is equivalent to his claim, was not mentioned in the complaint, his claim for Rs.11,09,486.16 cannot be accepted.             

14.  The learned counsel for the complainant relied on a decision reported in IV (2009) CPJ 230 (NC) – this decision is in respect of motor accident claim, wherein their Lordships held estimated cost of repairs given by authorized garage, not accepted by surveyor, contention, authorized garages normally give inflated estimate, not acceptable, surveyor required to give sound and cogent reasons for disallowing estimated claim, no reasons given by surveyor disallowing estimated claim given by authorized garage, consent given on basis of surveyor’s report, no consent in facts and circumstances of the case, claim allowed by State Commission after 10% depreciation on estimated amount, order upheld in revision. Here in this case, the estimated claim of complainant is not on par with the stock available in the filling station, quantity of oil is quite different from that of the estimated value in respect of both diesel and petrol. So, this decision is not applicable. The learned counsel for complainant also relied on another decision reported in II (2012) CPJ 131 – Gujarat State Commission – this case is in respect of fire broke out due to short circuit, damage in flour mill, their Lordships held approved surveyor report may be basis or foundation for settlement of claim by insurer in respect of loss suffered by the insured but surely such a report is neither binding upon the insurer nor the insured. It can be ignored if it is perverse or arbitrary based on mere inferences or surmises. In the case on hand, nowhere it is contended by the complainant that the surveyor report is baseless, perverse or surmises. The complainant since failed to mention in his complaint or in his evidence affidavit, the exact quantity of stock of diesel and petrol that was available on the date of incident in his filling station, necessarily the complaint should contain the details of stock that was available as on the date of incident i.e. during the night of 15.11.2015, because on the same night itself there was heavy rain due to which the underground tanks of the filling station inundated with rain water. The same was found on the next day morning i.e. on 16.11.2015 itself. If the complainant mentioned the closing stock by the time he closed the filling station on the night of 15.11.2015 specifically, such stock can be taken into consideration. The surveyor appointed by the opposite parties has inspected the filling station on 16.11.2015 itself in the presence of complainant and assessed the quantity of diesel as 4597 litres and petrol as 3008 litres, it was not disputed by the complainant and except this quantity no other quantity also mentioned in his complaint. Therefore, the surveyor report was not challenged by the complainant. In the final report submitted by the surveyor, they have finally assessed the quantity of diesel as 2275 litres and petrol as 1810 litres. The surveyor has not specifically mentioned the reasons for reducing the quantity from 3008 to 1810 and from 4597 to 2275 liters. Therefore, the complainant is only entitled for the cost of the stock that was available as 3008 litres of petrol and 4597 litres of diesel and not for any other amount as claimed by the complainant. Accordingly this point is answered.

15.  Point No.(iii):-  In view of our discussion on points 1 and 2, we are of the opinion that the complainant is entitled for the balance amount of Rs.1,87,4580-32 with interest at 9% p.a. from the date of incident i.e. from 16.11.2015. He is also entitled for the compensation and costs, and complaint is to be allowed accordingly.

In the result, complaint is allowed in part directing the opposite parties 1 and 2 jointly and severally to pay the balance amount of Rs.1,87,458-32 (Rupees one lakh eighty seven thousand four hundred fifty eight and paise thirty two only) along with interest at 9% p.a. from the date of incident i.e. on 16.11.2015 till realization. Opposite parties 1 and 2 also directed to pay compensation of Rs.25,000/- (Rupees twenty five thousand only) towards deficiency in service on the part of the opposite parties and for causing mental agony to the complainant. Opposite parties also directed to pay Rs.2,000/ (Rupees two thousand only) towards costs of the complaint. Opposite parties 1 and 2 further directed to comply with the orders within six (6) weeks from the date of receipt of copy of this order, failing which the compensation amount of Rs.25,000/- shall also carry interest at 9% p.a. from the date of this order, till realization.                    

Dictated to the stenographer, transcribed and typed by him, corrected and pronounced by me in the Open Forum this the 16^th day of November, 2017.

 

       Sd/-                                                                                                                      Sd/-                                            

Lady Member                                                                                                      President

 

 

APPENDIX OF EVIDENCE

 

 

 

 Witnesses Examined on behalf of Complainant/s.

 

PW-1:  Baiggari Chand Basha (Chief Affidavit filed).

 

 

Witnesses Examined on behalf of Opposite PartY/S.

 

RW-1: Akhil Kulhari (Chief Affidavit filed).

 

 

EXHIBITS MARKED ON BEHALF OF THE COMPLAINANT/s

 

Exhibits (Ex.A)	Description of Documents
	Original policy of SBI General, Business Package Insurance- Policy Schedule bearing No. 0000000003094901 covering for the period from 23.07.2015 to 22.07.2016 covering the risk for Rs.40 lakhs for petrol filing station of KGN company represented by the complainant. Dt: 23.07.2015.
	Photo copy of Gmail letter from R. Kalyana Sundaram, Chennai, requiring the complainant to send certain documents for consideration of his claim. Dt: 23.11.2015.
	Photo copy of Statement of Account from 01.12.2015 to 12.02.2016 of SBI , Tirupati Main Branch(933) , SB account of the complainant bearing No.33913272577 containing particulars . Dt: 17.12.2015.
	Office copy of Legal notice issued by the complainant to the opposite party No.1 and 2 along with postal acknowledgements 2 in Number. Dt: 02.04.2016.
	Reply from Opposite party No.2. Dt: 16.05.2016, for the Legal notice. Dt: 02.04.2016 in Original.

 

 

EXHIBITS MARKED ON BEHALF OF THE OPPOSITE PARTY/s

 

Exhibits (Ex.B)	Description of Documents
	Photo copy of the policy issued to the complainant company with terms and conditions filed on behalf of the opposite parties. Dt: 23.07.2015.
	Photo copy of SBI General Insurance, Standard Fire and Special Perils Policy Claim form submitted by the claimant filed on behalf of the opposite parties.
	Photo copy of Letter addressed to the complainant by the opposite party filed on behalf of the opposite parties. Dt: 25.01.2016.

 

 

	Photo copy of Final Survey Report for the Claim No.215664 Policy No. 0000000003094901 submitted by the surveyor filed by the opposite parties. Dt: 21.01.2016.
	Photo copy of the reply notice filed by the opposite parties. Dt:16.05.2016.

 

 

 

 

                                                                                                                                     Sd/-  

                                                                                                                      President

   

     // TRUE COPY //

// BY ORDER //

 

Head Clerk/Sheristadar,

          Dist. Consumer Forum-II, Tirupati.

              

 

Copies to:-     1.  The complainant.

                        2.  The opposite parties.