Punjab

StateCommission

CC/110/2018

M/s Nirdosh Bros. - Complainant(s)

Versus

SBI General Insurance Company Ltd. - Opp.Party(s)

L.D.Gupta

06 Feb 2019

ORDER

                                                               FIRST ADDITIONAL BENCH

 

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,      PUNJAB

          SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.

 

 

                   Consumer Complaint No.110 of 2018

 

 

                                                          Date of Institution   : 15.02.2018       

                                                        Order Reserved on : 04.02.2019

                                                          Date of Decision     : 06.02.2019

 

1.       M/s Nirdosh Brothers through its Sole Proprietor Kuldip Kumar Singla, 1232/2, Street No.12/8, Dashmesh Nagar, Opp. Railway Down, Ludhiana-141003.

2.       Kuldip Kumar Singla, Prop. M/s Nirdosh Bros. 1232/2, Street No.12/8, Dashmesh Nagar, Opposite Railway Down,Ludhiana-141003 r/o H.No. 671-D, Model Town Extn. Ludhiana.

3.       Saroj Singla w/o Sh.Kuldip Kumar Singla r/o H.No. 671-D, Model Town Extn. Ludhiana.

                                                                                                                                                                                                 ….Complainants

 

                                      Versus

 

1.       SBI General Insurance Company Limited, Regd. and Corporate Office :- “NATRAJ” 101, 201 and 301, Junction of Western Express Highway and Andheri Kurla Road, Andheri Mumbai -400069, through its Authorized Signatory.

2.       SBI General Insurance Company Limited, Ground Floor, Sahni Plaza, Near Dada Motors and Indian Oil Petrol Pump, G.T Road, Delhi Road, Dholewala Chowk, Ludhiana, through its Branch Manager.

3.       State Bank of India Branch Model Town Extn. Ludhiana through its Branch Manager.

4.       United India Insurance Company Limited, B-17, Phase-II, Focal Point, Ludhiana-141010, through its Branch Manager.

 

                                                                                  ….Opposite parties

 

 

Consumer Complaint U/s 17(1)(a) of the Consumer Protection Act, 1986 (as amended up to date).

 

Quorum:-

          Shri J. S. Klar, Presiding Judicial Member.

              Shri. Rajinder Kumar Goyal, Member.

Present:-For the complainant                   :  Sh.Hitesh Sood, Advocate

          For opposite partiesno.1&2        :  Sh.Inderjit Singh, Advocate

          For opposite party no.3             :  Ex-parte

          For opposite party no.4             :  Sh.Nitin Gupta, Advocate

         

J. S. KLAR, PRESIDING JUDICIAL MEMBER:-

                                     

                    The complainants have filed this complaint U/s 17(1) (a) of the Consumer Protection Act 1986 (in short the "Act) against opposite parties (in short OPs) on the allegations that complainant no.2 is the sole proprietor of complainant no.1 concern. He purchased three plots i.e. plots-one plot measuring 300 sq. yard, one plot measuring 100 sq. yards in his own name and another plot  measuring 100 sq. yard in the name of his wife/complainant no.3 and all the plots are adjacent to each other. He constructed  this small unit on all these plots totally measuring 500 sq. yard as single unit with one gate for ingress and egress without any physical partition or bifurcation thereof. The machinery has been installed in this building and goods are manufactured, finished goods and raw material are stored in the entire building of this manufacturing unit of complainant no.2. The complainant no.2 has bank account of this unit in OP no.3/bank for availing cash limit from OP no.3/bank. The officials of OP no.3/bank purchased insurance policy from its subsidiary /OP no.2 without the consent of the complainant for complainant no.1. The officials of OP no.2 filled in the proposal form of their own for obtaining this insurance policy after ascertaining the address of the factory goods, manufactured in this factory of the complainant. Complainant no.2 has not signed any proposal form and official of OP no.2 filled the address of the factory as 1232/2 Street no.12/B Opposite Railway Down Dashmesh Nagar Ludhiana and premium of Rs.16,205/- was deducted from the account of complainant no.1 by OP no.3/Bank. The insurance policy under Standard Fire and Special Perils  (Material Damage)  bearing no.000000000239531801 was purchased for the coverage of Rs.34 lac for the period 31.12.2015 to midnight of 30.12.2016 by deducting the premium of Rs.16,205/- from the account of complainant no.1 by OP no.3/Bank. This policy covered the loss or damage of every type of material i.e. stock, raw material, finished goods, semi-finished goods, spares, tools, fixtures, consumables etc of this unit. Unfortunately, at 12.15 am of 19.04, a heavy fire broke out in the factory premises and services of fire brigade Ludhiana were requisitioned to put it out. The fire brigade could barely manage the extinguishment of fire after 22 hours, but readymade stock, raw material, machinery, CCTV Cameras, computers, TVs, furniture etc were destroyed in the conflagration. Huge damage to the building of the factory was also caused, besides cracks in the roof and pillars of the factory building and plaster of the walls peeled off due to this incident of fire. Machinery at the first floor was completely destroyed and huge stocks were also destroyed in the fire. Intimation was also given about this loss at police station Gill Road Ludhiana, vide FIR no.17 dated 19.04.2016. The complainant lodged insurance claim no.257346  with OP no.2 for loss caused to it by fire under the above policy. OP no.2/insurer appointed M/s Puri Crawford Insurance Surveyors and Loss Assessors India Pvt. Ltd surveyor to assess the loss and damage arising from this claim. The said surveyor without looking into any documents relating to this factory  and fire and without recording any statements of concerned persons/witnesses observed that OPs no.1 and 2 are not liable for payment of any claim under this policy. The complainant remonstrated about this matter, whereupon the surveyor asked him to supply certain documents, which were duly supplied to him. The surveyor recommended the claim of complainant for repudiation and repudiation letter sent by insurer/OP no.2 is dated 30.08.2016. The complainant challenged arbitrary repudiation of general claim by the insurer without any rhyme or reason. The complainant lodged complaint, which was dismissed without any reasons by OPs, vide letter dated 19.05.2017. Even copy of report of surveyor  was not supplied to him by OP no.2, which was obtained by complainant no.2 under RTI Act. Even in repudiation letter dated 30.08.2016, OP no.2 has mentioned two grounds for repudiation of this claim, one ground is regarding address of this factory and second ground is regarding goods being manufactured in the affected factory. The entire building of this factory has been constructed on all these three plots as one unit with only one gate for entry and exit without any physical partition or bifurcation thereof by complainant no.2. The complainants have neither signed the  proposal form of this policy nor policy itself. The complainants are engaged in manufacturing of all types of packing material as wooden boxes for packing of heavy goods, corrupgated cartoons, sheets etc. The complainants have already purchased four policies from OP no.4/United India Insurance Company. OP no.4 appointed its surveyor to investigate the matter and to assess the loss. OP no.4 /United India Insurance Company has already paid the amount of claims to complainants, whereas action of OP no.2/insurer in repudiating the claim is unwarranted. The complainants sustained huge loss due to incident of fire in the insured factory premises. The complainants have, thus, filed complaint and prayed for below noted reliefs against OPs:-

1. OP no.1 be directed to accept the claim and pay the claim amount of Rs.34 lac with interest @ 18% per annum from the day, when the claim was lodged and till the claim amount was paid.
2. OPs be also directed to pay Rs.2 lac as compensation for mental harassment and Rs.75,000/- as costs of litigation to complainants.

2.                 Upon notice, OPs no.1 and  2 appeared and filed written reply and contested the complaint of the complainant vehemently by raising preliminary objections that complaint is frivolous and vexatious and liable to be dismissed. The complainants have not come to this Commission with clean hands and suppressed the true facts.  The complaint is not maintainable for want of cause of action against OPs no.1 and 2. The complainant has unnecessarily dragged the OPs into uncalled for litigation. The claim of the complainant has been rightly repudiated by OPs, vide letter dated 30.08.2016. The matter needs to be relegated to Civil Court only for adjudication after protracted trial. The loss has been assessed by the independent surveyor i.e. Puri Crawford Insurance Surveyor & Loss Assessor India Pvt. Ltd, vide survey report dated 24.08.2016 as Rs.2,17,896/-. As per policy, it was specifically covered manufacturing of wooden containers such as plywood chests, wooden boxes, barrels, vats, tubs, packing cases stored/lying at plot no.1232/2. On merits, OPs no.1 and 2 have not disputed this fact of issuing Standard Fire and Special Perils policy  to complainant. As per investigation made by OPs, it was evident that both plots were independent of each other with manufacturing units. The claim of the complainant was rightly repudiated, vide letter dated 30.08.2016. It was averred that liability of OPs cannot exceed the amount than as assessed by the surveyor i.e. Puri Crawford Insurance Surveyor & Loss Assessors India Pvt. Ltd, vide survey report dated 24.08.2016 as Rs.2,17,896/-. Any deficiency in service or unfair trade practice was denied by replying OPs. The above OPs denied the other averments of the complainant and they prayed for dismissal of the complaint.

3.                 OP no.3 was set exparte in the complaint, vide order dated 04.04.2018   passed by this Commission.

4.                 OP no.4 appeared and filed its separate written reply and contested the complaint of the complainant by raising preliminary objections that  the complaint has not been framed and thereafter filed in accordance with the provisions of Consumer Protection Act 1986, hence is liable to be rejected on this ground alone. The complaint is bad for           mis-joinder of parties. On merits, it was averred that  complainants had purchased the insurance policy from OP no.4 to insure building, stocks, paint and machinery.  OP no.4 has already paid claim to complainants as assessed by M/s Josan & Associate surveyor and approved by the competent authority of OP no.4, vide claim note dated 22.09.2017.  Any deficiency in service was denied by OP no.4 and it prayed for dismissal of the complaint.

5.                 The complainant no.2 tendered in evidence his affidavit Ex.C-A along with copies of documents Ex.C-1/1 to Ex.C-1/12 and Ex.C-1/12/1 to Ex.C-1/4 and closed the evidence. As against it; OPs no.1 and 2 tendered in evidence affidavit of Sh. Jitendra Dhabhai Manager of OPs as Ex.OP-1/A, affidavit of Sh.Kashmir Singh Investigator Royal Associate Investigating & Detective Agency as Ex.OP-1/B, affidavit of Sh.Sukrat Bhardwaj Surveyor and Loss Assessor as Ex.OP-1/C along with copies of documents Ex.OP-1/1 to Ex.OP-1/9 and closed the evidence. OP no.4 tendered in affidavit Ex.OP-4/A along with copies of documents Ex.OP-4/1 to Ex.OP-4/10 and closed the evidence.

6.                 We have heard learned counsel for the parties and have also examined the record of the case. The evidence on the record has also been analyzed by us. Kuldip Kumar Singla  sole proprietor of complainant no.1 /M/s Nirdosh Brothers has entered into witness box and deposed that he purchased three plots, out of which one plot measuring 300 sq. yard and one plot measuring 100 sq. yard in his own name and one plot measuring 100 sq. yard in the name of his wife/Saroj Singla. All the above-referred plots were adjacent to each other with one ingress and egress thereto.  He constructed his factory as a single unit on the above three plots. Municipal Corporation Ludhiana allotted property no.1232/1 and 1232/2 street no.12/8 Dashmesh Nagar Ludhiana to the above plots of complainant and his wife, vide site plan of ground floor, first floor and second floor Ex.C-1/1 to Ex.C-1/3. The property numbers allotted by Municipal Corporation Ludhiana to them are Ex.C-1/4 to Ex.C-1/5. He further testified that he constructed his factory as single unit on the 500 sq. yard plot and cost of the construction and location of each floor prepared by M/s Sekhon and Associates is Ex.C-1/6 and photo of front side of his factory is Ex.C-1/7 and no objection was raised by his wife, vide Ex.C-1/8. He has further deposed in his testimony that his factory is engaged in manufacturing of boxes, which are required/used  for packaging of cycle parts and other finished goods. These boxes are made from card board, plywood and also from corrugated sheets. Corrugated boxes are made of craft paper.  He obtained only one MS category connection in his entire factory from PSPCL, vide Ex.C-1/9. OP no.2 repudiated his insurance claim on account of loss caused by fire to his factory primarily on the ground that the loss took place at unit no. 1232/1, whereas it was not insured premises by complainant for the lost articles. The income tax department assessed factory as single unit, vide Ex.C-1/10 and GST department assessed it vide Ex.C-1/11. Even department of VAT of Government of Punjab has certified that M/s Nirdosh Brothers do not have any other place of business, other than the place in hand. He further maintained in his statement that on account of eruption of fire, heavy loss was caused to his stock, raw material, finished and semi-finished goods, building, machinery and equipments of this factory, as assessed by surveyor appointed by OP no.4 United India Insurance Company, vide Ex.C-1/13. OP no.3/Bank got insurance policy for complainant no.1 without getting proposal form filled by him and neither any proposal form was got signed from complainant by sole proprietor of complainant no.1. The officials of OP no.2 filled the address of the factory as 1232/2, street no.12/8 opposite Railway Down Dashmesh Nagar Ludhiana at their own end. The premium of Rs.16,205/- was deducted from his account by OP no.3/Bank. He asserted in his statement that the loss took place at a single unit of his factory, but OP no.2 only contrived that it was divisible into two parts 1232/1 to 1232/2 just to repudiate his loss. The policy risk location address has been mentioned as Street no.12/8, 1232/2 Railway Down Dashmesh Nagar Ludhiana and covered risk has been mentioned as “Manufacturing of wooden containers such as plywood chests, wooden boxes, barrels, Vats, tubes , packing cases. He detailed his loss in his testimony caused by fire, which necessitated the requisitioning of services of fire brigade to put it out. Report of fire brigade regarding this factum is Ex.C-3 and police report bearing FIR no.17 dated 19.04.2016  at police station Shimlapuri Gill Road Ludhiana is Ex.C-4 about this incident of fire. The claim was lodged with OPs no.1 and 2 for Rs.50 lac for reimbursement of loss under policy no.0000000002395318-01 issued by OP no.2 in the name of the complainant concern, vide Ex.C-5. The surveyor was appointed namely M/s Puri Crawford Insurance Surveyor and Loss Assessors India Pvt. Ltd, as surveyor to assess the loss. The complainant submitted documents to surveyor, vide letter dated 22.04.2016, vide Ex.C-5/1. The surveyor demanded scores of documents from complainant, which were also supplied to him, vide Ex.C-5/2 to Ex.C-5/4. The complainant sought permission from the said surveyor to sell of burnt material, vide email Ex.C-5/5 to Ex.C-5/6. OP no.2/insurer repudiated the claim of the complainant, vide letter dated 30.08.2016 Ex.C-6. The repudiation letter stated that reported loss took place in the unit engaged in items of “manufacturing of corrugated cartons viz craft paper etc” at plot no.1232/1 and part 1^st and IInd floor of 1232/2. The cited policy is covering items/occupancy as manufacturing of wooden containers viz plywood chests etc located at street no.12/8 opposite 1232/2, Railway Down Dashmesh Nagar Ludhiana. The complainant challenged the repudiation letter by sending letter Ex.C-7 dated 01.04.2017. The survey report was not supplied to complainant and he has to obtain it under RTI Act, vide Ex.C-9 and Ex.C-10. The complainant also took policy from OP no.4 /United India Insurance Company and claim has been granted to him by it.

7.                OPs also adduced evidence to refute this evidence of the complainant on the record. OPs no.1 and 2 relied upon affidavit of Jitendra Dhabhai Deputy Manager SBI General Insurance Company Ltd. Ex.OP-1/A on the record. He stated that insured suppressed the material facts from the insurer. A fire took place in the unit of complainant no.1, engaged in items of manufacturing of corrugated cartoons viz craft paper etc at plot no.1232/1 and part 1^st and 2^nd floor of 1232/2, whereas the policy covered manufacturing of wooden containers viz plywood chest etc at street no.12/8 opposite 1232/2 Railway Down Dashmesh Nagar Ludhiana. Thus, “affected items and occupancy” along with “affected location” is not covered under the policy no.2395318-01 and claim is falling outside the ambit of policy coverage in the case. OPs appointed surveyor i.e. Puri Crawford Insurance Surveyor & Loss Assessor India Pvt. Ltd on receipt of intimation of loss and to look into the matter. The surveyor submitted his report dated 24.08.2016 finding loss to the tune of             Rs. 2,17,896/- as per policy. The policy covering manufacturing of wooden containers such as plywood chests, wooden boxes, barrels, vats, tubs, packing cases stored/lying at plot no.1232/2 Dashmesh Nagar Ludhiana, where the incident of loss took place to stocks of corrugation material stored/lying partly on first and second floor of plot no.1232/2 Dashmesh Nagar Ludhiana. Thus, no valid claim can be tenable under the policy as there was no loss/damage to wooden material insured under the policy, as per case of OPs. The liability assessed by the surveyor is Rs.2,17,896/-  based upon the supposition that corrugation material stands covered at plot no.1232/2 Dashmesh Nagar Ludhiana. The gist of his statement is that risk location address is 1232/2 Railway Down Dashmesh Nagar Ludhiana and risk occupancy is manufacturing/manufacturing of wooden container such as plywood chests, wooden boxes, barrels, vats, tubs, packing cases. United India Insurance Company/OP no.4 dealt with their claim as per their coverage in the policy only. Kashmir Singh Investigator tendered his affidavit Ex.OP-1/B and deposed that during investigation, he recorded the statements of the witnesses. He also visited the police station during investigation and submitted report dated 07.06.2016 to this effect. Sukrant Bhardwaj Head Chandigarh Operations Puri Crawford Insurance Surveyors and Loss Assessors India Pvt. Ltd tendered his affidavit Ex.OP-1/C stating that in the incident, loss/damage  occurred to the stocks of corrugation material stored/lying partly on first and second floor of the plot 1232/2 Dashmesh Nagar Ludhiana. His report is Ex.OP-1/2 on the record and investigation report is Ex.OP-1/3 and statements of the witnesses recorded as also part of the report of investigation in this case.

8.                From hearing respective submissions of counsel for the parties and appraisal of evidence on the record, we find the complainant contended that proposal form has not been signed by him and the bank took the policy at its own. Proposal form is defined in Section 2(1)(d) of Insurance Regulatory and Development Authority Regulations 2002. It was submitted by him that proposal form is necessary to be taken but OPs/insurer has not taken any proposal from the complainant in this case. The report of fire brigade is Ex.C-3, where complainants apprised them that premises stood covered under SBI General Insurance Co. Ltd on 18.04.2016. The complainants have not intimated that this policy has been issued to them without their consent and without any proposal form from their behalf. The complainant moved for disposal of affected material to the insurer raising no objection about the validity of the policy. The complainant wrote letter to OP no.2, vide Ex.C-9 dated 03.05.2017 under RTI Act stating that they have insured the premises with SBI General Insurance policy. Strangely, the complainant took stand at the time of filing the complaint that their proposal form was not got filled by the bank, which procured policy for them. The complainant wants to  take benefit of the earlier policy and strongly pleaded that his proposal form was not got signed from him. We do not find any force in it. The policy no. 0000000002395318-01 is Ex.OP-1/1 on the record. The insured is M/s Nirdosh Brothers 1232/2 Street no.12/8 Dashmesh Nagar opposite Railway Down Ludhiana 141003 and affected premises of the insured is at 1232/1 Dashmesh Nagar Ludhiana. As per report of the surveyor and investigator appointed by OPs, the loss took place at the premises no. 1232/1 and not at premises no. 1232/2 in as much as Municipal Corporation, has also allotted two different properties numbers to them. Whatever the case may be, some of the insured material might have been placed in place no. 1232/2, it was the insured location of OP no.2. On this point, we are left with no other option but to accept the report of the surveyor appointed by OPs in this case, since both units are adjacent to each other and some of the insured material by complainant must have been lying in place no. 1232/2, which are the insured premises in this case. The surveyor found loss to the tune of Rs.2,17,896/- in this case.  There is no rebuttal evidence by the complainant to prove the report of surveyor as wrong. The report of surveyor has to be generally accepted as correct unless rebutted by contrary evidence on the record. Consequently, we are left with no other option but to rely  upon the report of the surveyor holding loss suffered by complainants to the tune of Rs.2,17,896/-.

9.                The complainant referred to law laid down by National Commission in “National Insurance Company Limited and others versus Shree Shyam Cold Storage” reported in 2008(3) CPJ 278 by National Commission, “M/s Kotak Mahindra Old Mutal Life Insurance Ltd. Versus Dr. Nishi Gupta reported in 2018(1) CLT 340” by National Commission, “Oriental Insurance Company versus Jagdish Chand Gupta” reported in 2018(1) CLT 338 by National Commission and judgment of this Commission in “Bhupinder Singh versus National Insurance Company Ltd” reported in 2013(2) CLT 395 and “National Insurance Company Limited and ors versus Iqbal Singh” reported in 2006(3) CPJ 333 by this Commission. We find that each of the authority has arisen out of its own facts. The law laid down in the above-referred authorities cannot be applied, if facts are not found are pari materia with the cited facts of the authorities.

10.               As a result of our above discussion, we partly accept the complaint of the complainant and direct OPs no.1 and 2 to pay the claim amount of Rs.2,17,896/- to complainant no.1 through complainant no. 2 as assessed by the surveyor in his report Ex.OP-1/2 along with interest @ 9% per annum from the date of repudiation of claim till its actual payment. The complainants no.1 and 2 are also held entitled to Rs.40,000/- as compensation for mental harassment and Rs.20,000/- as costs of litigation.

11.               Arguments in this complaint were heard on 04.02.2019 and the order was reserved. Certified copies of the order be communicated to the parties under rules.

12.               The complaint could not be decided within the statutory period due to heavy pendency of court cases.

 

                                                                          (J. S. KLAR)

                                                             PRESIDING JUDICIAL MEMBER

                               

                                                              (RAJINDER KUMAR GOYAL)

                                                                                MEMBER

February  6, 2019                                                          

(ravi)