Orissa

Cuttak

CC/136/2015

Sri K P Krishnan,M/s Hotel Vijay - Complainant(s)

Versus

Senior Divisional Manager,The Oriental Insurance Company Limited - Opp.Party(s)

A K Samal

07 Jun 2022

ORDER

IN THE COURT OF THE DIST. CONSUMER DIUSPUTES REDRESSAL COMMISSION,CUTTACK.

                                                                C.C.No.136/2015

M/s.  Hotel Vijay,

At:Ice Factory Road,

Patra Sahi,PO.O:College Square,

Town/Dist:Cuttack,Pin-753003,

Represented by its Partner,Sri K.P.Krishnan.                                ... Complainant.

        

                                                Vrs.

1.        Sr. Divisional Manager,

The Oriental Insurance Company Ltd.,

              Divisional Office,At:Mangalam Nivas,

Infront of HDFC Bank,Bajrakabati Road,

 

2.        Managing Director,

The Oriental Insurance Company Ltd.,

Regd. & Head Office:A-25/27,Asaf Ali Road,

New Delhi-110002.                                                                               ...Opp. Parties.

                       

Present:               Sri Debasish Nayak,President.

                                Sri Sibananda Mohanty,Member.

 

Date of filing:    03.12.2015

Date of Order:  07.06.2022

 

For the complainant:            Mr. A.K.Samal,Adv. & Associates.

For the O.Ps.       :                  Mr. A.A.Khan,Adv. & Associates

 

Sri Debasish Nayak,President                                                         

            Case of the complainant in short is that the complainant has a hotel business and he had taken insurance through Oriental Insurance Company Ltd. thereof which was valid with effect from 26.8.2012 till 25.8.2013 vide policy No.345100/11/2013/105.  By virtue of such insurance policy, the building of the hotel as well as its boundary wall were covered against Standard Fire and Special Perils by the insurer who are the O.Ps in this case.  The sum insured was Rs.45,00,000/- and the required premium amount was of Rs.5,580/- which was paid.  Due to torrential rain, the boundary wall of the said hotel measuring of 50ft. in length and 8 ft. in height had fallen down on 19.7.13 in between 11.30 am to 2.30 pm.  On the very next day i.e., on 20.7.13, the matter was informed to the O.Ps by registered post.  O.P No.1 had deputed a surveyor namely Er. Sanjeeb Kumar Mohanty to inspect the premises of the complainant and accordingly on 24.7.13 the said surveyor had surveyed the site and had taken photographs, estimated the loss of boundary wall and prepared his report wherein he had reflected about the loss of damaged boundary wall to be of Rs.73,000/-.  The complainant through his letter dt.8.8.13 had submitted the estimate and on 6.10.13, the said surveyor asked the complainant to submit the claimform alongwith the photographs etc.  The complainant has intimated about his loss to the O.P No.1 and the said surveyor through his letter dt.14.12.13. On 7.7.14 the complainant obtained report from the Indian Meteorological Department and submitted the same with a forwarding letter to the O.P No.1 for doing the needful.  The complainant through his letter dt.2.9.14 has requested the O.P to settle the claim but the O.P No.1 through his letter dt.8.9.14 asked for the approved plan of the building and boundary wall along with map and photographs and so also copies of the balance sheet of the hotel for the last 3 years.  Again on 22.9.14, the complainant requested to expedite the claim and settle it but the O.P No.1 through his letter dt.26.9.14 had intimated the complainant that the said surveyor during his site visit had not noticed any water logging and the photographs as submitted also don not show any water logging  or damage to the boundary wall.  Thus being deprived of the claim as made, the complainant has filed this case seeking direction to the O.Ps to settle the insurance claim and to pay a sum of Rs.73,000/- towards his claim from the  insurance policy, along with interest @ 12% per annum from the date of initiating  the claim till the date when actual payment is made and cleared and also for an amount of Rs.25,000/- towards the financial loss and his mental agony.  The complainant has prayed to allow the petition with cost and also claimed for any relief as deemed fit and proper.

            To support his claim, the complainant has submitted copies of certain documents.

2.         Both the O.Ps have contested this case and have filed their written version jointly.  As per the written version of the O.Ps, the case of the complainant is liable to be dismissed being not maintainable.  The O.Ps admit to have issued policy bearing No. 345100/11/2013/105 in favour of M/s. Hotel Vijay which was valid with effect from 26.8.12 till the midnight of 25.8.13 against “Standard Fire and Special Perils”.  According to them, the complainant of this case alleged on 23.7.13 that due to torrential rain his boundary wall had fallen down on 19.7.13 to the extent of 50ft in length and 8ft. in height.  They also admit about the deputation of Er. Sanjeeb Kumar Mohanty for assessing the loss.  It is alleged by the O.Ps that the partner of the complainant namely Mr. K.P.Krishnan was present during the survey assessment who was asked to submit some key documents such as report from the concerned Office of the Meteorological Department and/or local Revenue Authority Certificate, the year wise capital block account of the Unit i.e. the Building, Electrical Installation and other capital assets with the Books of Accounts and the related Insurance Coverage taken thereof from the under writer for the year under which the claim was occurred, approved plan of Hotel Building and Compound Wall and any other documents/photographs confirming the water logging in the premises.  It is further alleged by the O.Ps that inspite of several letters and reminders given to the complainant in order to provide sufficient opportunity to substantiate their claim, the complainant had not cooperated for which the surveyor had to submit his report on 31.3.14 showing “nil assessment”.  The O.Ps have further averred in their written version that O.P No.1 had sent letter dt.25.8.14 to the complainant regarding submission of the documents and again another letter was sent to the said complainant on 8.9.14 in this aspect.  Ultimately on 26.9.14, the claim of the complainant was repudiated due to non-submission of documents/evidence in support of his claim and such fact of repudiation was communicated to the complainant vide letter dt.18.3.15.  Thus both the O.Ps through their written version have prayed to dismiss the complaint petition with cost as it is not maintainable.

            Both complainant and O.Ps in this case have filed their supportive documents to prove their respective stand.

3.         Keeping in mind the averments as made from either sides in the complaint petition and written version as well, this Commission feels it proper to settle the following issues in order to arrive at a proper conclusion.

            i.          Whether the case of the complainant is maintainable?

            ii.         Whether the complainant had any cause of action to file this case?

            iii.        Whether there was deficiency in service on the part of O.Ps.?

            iv         Whether the O.Ps had adopted unfair trade practice?

            v.         Whether the complainant is entitled to the relief as claimed?

Issue No.3 & 4.

            For the sake of convenience issues no.3 & 4 are taken up together first for consideration.  Admittedly, the complainant and his partner own a hotel namely and styled as “Hotel Vijay”.  It is not disputed that the complainant had insured his hotel building with boundary walls,furniture,fixtures,fittings and electrical installations to the tune of Rs.45,00,000/- in total through the O.Ps.  The O.Ps also do not dispute about the damage of boundary wall of the complainant on the alleged day.  The O.Ps suspect the extent of damage of the wall since because the photographs did not show the water logging nearby the damaged boundary wall.  They also have mentioned that the assessing surveyor namely Er. Sanjeeb Kumar Mohanty has not mentioned about such waterlogging, if any, near the damaged boundary wall and site.  While thinking about the same, it is noticed that the boundary wall of the hotel of the complainant was damaged on 19.7.13 in between 11.30 am to 2.30 p.m and it is said by the complainant that the said damage of his hotel boundary was due to torrential rain for days together.  The surveyor Er. Sanjeeb Kumar Mohanty had visited the site and damaged boundary wall for making survey on 24.7.13 i.e, 6 days after the occurrence.   Thus expecting water logging after elapse of 6 days is quite ridiculous.

            The Policy of insurance in between the insurer and the insured is an agreement which remains valid for the period agreed upon and in this case the insurance policy of the complainant was valid with effect from 26.8.12 till 25.8.13.  The damage of the boundary wall was well within the said validity of the insurance policy.  The premium when paid by the complainant and accepted by the O.Ps makes the policy enforceable and both the parties(the insured and the insurer) are bound by the terms and conditions of the said policy.  The complainant besides mentioning in his complaint petition has also submitted copies of the estimate report of his damaged boundary wall as assessed and submitted by the Jr. Enginer,Construction in the DPP Office,OUAT,Bhubaneswar.  The said report reflects the estimate cost of the damaged boundary wall of the complainant to be of Rs.73,000/-.  The surveyor Er. Sanjeeb Kumar Mohanty besides demanding the claim form and photographs has also demanded the lay out plan of the hotel premises which has been duly approved by the concerned authority along with a report from the concerned Meteorological Department along with quotations and other documentary evidence in support of the rates, amounts, values for repairing the damaged portion of the boundary wall.  Here it would be worthwhile to opine that the Hon’ble Apex Court is very much clear in deciding that the surveyor should not claim documents which are not in actual terms related or required for assessing the damage.  Here in this case when the complainant failed to meet all the queries and provide all the documents as desired by the assessing surveyor, the surveyor had submitted a nil assessment report.  Thus, the said surveyor being an agent of the O.Ps to this case it can well be said here that both the O.Ps have adopted unfair trade practice and definitely there was deficiency in service by not indemnifying the loss caused to the boundary wall of the hotel of the complainant.  As such, these two issues are answered against the O.Ps in this case.

Issues No.1 & 2.

            From the above discussions, it can safely be concluded here that when the complainant had insured the boundary wall of the hotel and had paid the premium to the O.Ps and when he sustained damage to his boundary wall which was not indemnified by the insurer/O.Ps, he has definite cause of action to file this case and his case is definitely maintainable.  Accordingly these two issues are answered in favour of the complainant.

Issue no.5.

            Thus from the above discussions, it can be concluded that the complainant of this case is entitled to the reliefs as claimed.  Hence it is so ordered;

                                                               ORDER

            The case is decreed on contest against the O.Ps.  Both the O.Ps are jointly and severally liable.  The O.Ps are directed to reimburse the estimated cost of Rs.73,000/- to the complainant immediately together with interest @ 9% per annum with effect from 24.7.13 till when the final payment is made.  The O.Ps are further directed to pay the complainant an amount of Rs.25,000/- towards his mental agony and harassment and also to pay a sum of Rs.20,000/- towards litigation cost.

Order pronounced in the open court on the 7^th day of June,2022 under the seal and signature of this Commission.

                                                                                                                                                                                                                                                 

                                                                                                                              Sri Debasish Nayak

                                                                                                                                        President

                                                                                                                       

                                                                                                                            

                                                                                                                         Sri Sibananda Mohanty

                                                                                                                            Member.