Punjab

Ludhiana

CC/19/129

Purish Singla - Complainant(s)

Versus

Shriram Gen.Ins.Co.Ltd - Opp.Party(s)

Varun Govind Adv.

07 Aug 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, LUDHIANA.

                                                Complaint No:129 dated 06.03.2019.                                                         Date of decision: 07.08.2023.

 

Purish Singla son of Shri Ashok Singla, Proprietor of Charika Industries, 495, Industrial Area-B, Ludhiana.                                                                                                                                                              ..…Complainant

                                                Versus

1. Shriram General Insurance Company Limited, Regional office, SCO 18-19, Third Floor, Jhandu Tower, Ludhiana-141003 through its Regional Manager.
2. Shriram General Insurance Company Limited, Head Office E-8, EPIP, RICCO Industrial Area, Sitapura, Jaipur, Rajasthan-302022 through its Managing Director.                                                                                                                                                    …..Opposite parties 

Complaint Under Section 12 of the Consumer Protection Act, 1986.

QUORUM:

SH. SANJEEV BATRA, PRESIDENT

SH. JASWINDER SINGH, MEMBER

 

COUNSEL FOR THE PARTIES:

For complainant             :         Sh. Varun Govind Sharma, Advocate.

For OPs                          :         Sh. Vyom Bansal, Advocate.

 

ORDER

PER SANJEEV BATRA, PRESIDENT

1.                Briefly stated, the facts of the complaint are that the complainant deals in manufacturing and trading of Hammers and other forging accessories under the name and style of Charika Industries at 495, Industrial Area-B, Ludhiana and being its Proprietor is earning livelihood for his family members by means of self employment. The complainant purchased the Planner machine for consideration of Rs.12,00,000/- and purchased Business Protector Policy vide policy No.105029/48/17/000152 from the opposite parties with cover note dated 21.11.2016 w.e.f. 21.11.2016 to 20.11.2017 on payment of premium of Rs.30,995/- for an insured value of Rs.12,00,000/- of each kind of perils described in the policy like fire and machinery breakdown etc.

                   The complainant further stated that on 18.11.2017, the planner machine was damaged due to accidently fall of Anvil bock (job) while unloading due to sip from Crane. Suddenly job fell down and hitted harshly and forcely to the Table/BED/Tralli of Planner Machine which immediately broken its Table/Bed and damaged Main Gear Box and affected its slides and alignment. The machinery has broken down and the same was required to be repaired. On the same day, the complainant reported the same and lodged the claim with the opposite parties by submitting all the necessary documents upon which the opposite parties deputed surveyor namely Taarani Associates, Surveyor and Loss Assessors. There continued series of communications between the complainant and the surveyor via emails and the complainant supplied all the documents to the surveyor. The complainant further stated that as per directions of the surveyor, he approached Gurnam Tech. Industries, Gobind Nagar, Bhullar Road, Batala for repair of the machine. The Engineer of the said company visited the spot and inspected the Planner machine and prepared estimate of Rs.1,68,100/- besides other charges. The surveyor also advised the complainant to get the Planner machine repaired and as such, the complainant got repaired the machinery as per direction of the opposite parties only.  The complainant submitted final estimate with photographs to the surveyor but the opposite party failed to pay the claim to the complainant in spite of requests. The complainant had paid the bill amount to Gurnam Tech. Industries and submitted the copy of final bill and receipts to the opposite party. The complainant further stated that vide email dated 15.06.2018, the opposite party informed him that their assessed liability under the policy comes to Rs.61,858.80 which is subject to the consent of the complainant to which the complainant gave his consent and completed all the formalities by furnishing the cross cancelled cheque also. However, vide email dated 07.07.2018 and 09.07.2018 the surveyor and opposite party informed the complainant that the higher excess value has been opted which is 10% of sum assured of Rs.12,00,000/- which works out Rs.1,20,000/- which was earlier calculated as Rs.12,000/- while assessing the claim of Rs.61,858,80 earlier passed cannot be released as the amount falls under 10% excess clause which is Rs.1,20,000/- on insured amount and rejected the claim. The complainant sent email dated 10.07.2018 requesting the opposite party to settle and pay the compensation of full claim of repair and machinery to the tune of Rs.1,98,358/- inclusive of al taxes and also withdrew the consent for Rs.61,858.80 and further to relook into the matter for proper claim assessment and for payment of full claim but with no result. The complainant served a legal notice dated 25.09.2018 upon the opposite party but no reply has been received till date. The complainant further stated that he is entitled to compensation on account of deficiency in service and unfair trade practice adopted by the opposite parties. In the end, the complainant prayed for directing the opposite parties to pay a sum of Rs.1,98,358/- on account of breakdown of the machinery and also to pay Rs.25,000/- towards deficiency in service and Rs.25,000/- as loss of profit besides Rs.20,000/- as litigation expenses.

2.                Upon notice, the opposite parties appeared and filed joint written statement by taking preliminary objections that the complaint is not maintainable; lack of cause of action, lack of territorial and pecuniary jurisdiction etc.

                   Under the column of factual submission & objections, the opposite parties stated that M/s. Charika Industries had availed a Business Protector Policy for the period 21.11.2016 to 20.11.2017 from them thereby covering the Plant & Machinery against the perils covered under the Policy No. 105029/48/17/000152 for the sum insured as detailed in the Policy Schedule. The benefits under the policy are governed by the terms and conditions of the Policy and the liability of the opposite party is limited to the insured perils occurring within the policy period subject to conditions and exceptions as mentioned in the terms and condition of the policy and applicable tariff. The complainant intimated a claim for damage to Planner Machine with the opposite parties on 18.11.2017 which was duly registered at claim No. 10000/48/18/C/000310 and the claim was allotted to IRDA approved independent surveyor namely "Taarani Insurance Surveyors & Loss Assessors Pvt. Ltd." for survey of Loss assessment in the said claim as per policy term and conditions. The said Surveyor visited the premises of the complainant, collected documents and photographs of the machinery etc. and thereafter submitted his report dated 14.06.2018 wherein net loss assessed was Rs. 61,960/-. That the total sum insured of the machinery under the policy was Rs. 48 Lacs and the Planner Machine damaged was model 2012 year and the same was proportionately insured for Rs. 12 Lacs from the total sum insured. The opposite parties further stated that upon receipt of the said survey report and after application of mind by the authorized officials of the company it was noted that the surveyor has wrongly applied the excess under the policy and the calculation of net assessed loss was not in consonance with the policy terms and conditions. The excess under the Policy in question was 10% (which comes to Rs. 1,20,000/- of insured amount) and as such the present claim was found not payable as the assessed loss was within the purview of excess clause, which is reproduced as under:-

"Excess clause denotes deductibles under general insurance. The excess amount is the minimum amount the policy holder is ready to bear in case of any claim. Hence, whenever there is a claim under the policy, only if the claim amount exceeds the "excess clause amount" it is payable. Only the claim amount over & above the "excess amount" is paid."

Intimation of the claim being not payable under the policy was sent to the Insured vide Email dated 07.07.2018 & 09.07.2018. Thus the claim of the complainant, has been after through application of mind and in terms of the coverage under the policy been found to be not falling under the purview of the policy and thus not tenable. The opposite parties have denied any deficiency in service on their part. The opposite parties stated that the complainant has leveled frivolous, bald and vague allegations without any base against them and with sole intention to harass them by instituting such false and frivolous claims.

                   On merits, the opposite parties reiterated the crux of averments made in the preliminary objections. The opposite party has denied that there is any deficiency of service and has also prayed for dismissal of the complaint.

3.                In support of his claim, the complainant tendered his affidavit Ex. CA in which he reiterated the allegations and the claim of compensation as stated in the complaint. The complainant also tendered documents Ex. C1 is the copy of insurance policy, Ex. C2 to Ex. C8, Ex. C11 to Ex. C19 are the copies of emails, Ex. C9 is the copy of final estimate, Ex. C10 is the copy of Engineering Inspection report, Ex. C20 is the copy of registration certificate, Ex. C21 is the copy of tax invoice/bill dated 26.05.2018 of Gurnam Technical Industries, Ex. C22 is the copy of reminder, Ex. C23 and Ex. C24 are the postal receipts and closed the evidence.

4.                On the other hand, the counsel for the opposite party tendered affidavit Ex. RA of Sh. Amandeep Sharma, Senior Executive (Legal), Shriram General Insurance Company Limited, SCO 178, First Floor, Sector 38-C, Chandigarh along with documents Ex. R1 is the copy of insurance policy schedule, Ex. R2 is the copy of survey report dated 14.06.2018, Ex. R3 is the copy of breakup of the sum insured, Ex. R4 and Ex. R5 are the copies of email dated 07.07.2018 and 10.07.2018 and closed the evidence.

5.                We have heard the arguments of the counsel for the parties and also gone through the complaint, affidavit and annexed documents and written reply along with affidavit and documents produced on record by both the parties.      

6.                The complainant, Purish Singla, being Proprietor of M/s. Charika Industries at 495, Industrial Area-B, Ludhiana availed a  Business Protector Policy  Ex. C1 = Ex. R1 for a period of. 21.11.2016 to 20.11.2017 for a total sum assured of Rs.48,00,000/- against the perils coverage of plant and machinery under the policy itself. The Planner Machine (Model 2012) was proportionally insured for Rs.12,00,000/-. The benefits under the policy were governed by the terms and conditions of the policy. There was a clause of special exclusion in the policy which provides as under:-

          “SPECIAL EXCLUSIONS:

           The Company shall not be liable for-

1. The Excess, as stated in the Schedule, to be first borne by the Insured out of each and every claim; where more than one item is damaged in one and the same occurrence, the Insured shall not, however, be called upon to bear more than the highest Excess applicable to any one such item;
2. Loss of or damage to belts, ropes, chains, rubber tyres, dies, moulds, blades, cutters, knives or exchangeable tools, engraved or impression cylinders or rolls; objects made of glass, porcelain, ceramics, all operating media (e.g. lubricating oil, fuel, catalyst, refrigerant, dowtherm), felts, endless conveyor belts or wires, sieves, fabrics, heat resisting and anti-corrosive lining and parts of similar nature, packing material, parts not made of metal (except insulating material) and non-metallic lining or coating of metal parts; unless loss or damage to the equipments/machinery is indemnifiable in terms of the policy.
3. Loss or damage for which the manufacturer or supplier or repairer of the Property insured is responsible either by law or contract.

In any action, suit or other proceedings where the Company alleges that by reason of the provisions of the exceptions or exclusions above, any loss, destruction, damage or liability is not covered by this insurance, the burden of proving that such loss, destruction, damage or liability is covered shall be upon the Insured.

“Excess:     FIRE: Policies having Sum insured up to INR 10 cr per location – Excess: 5% of claim amount subject to a minimum of Rs.10000/- on each and every claim.

                   Public Liability: Excess: 0.5% of AOA limit.

                   MBD: Excess:10% of Sum insured subjected to a minimum of Rs.10000/-.”

7.                On 18.11.2017, the Planner Machine was accidently broke down and the claim was lodged with the opposite parties who deputed M/s. Taarani Associates, Surveyor and Loss Assessors for loss assessment. The said surveyor submitted his report on 14.06.2018 Ex. C8 = Ex. R2 assessing  the net loss to be of Rs.61,960/-, the details of which are reproduced as under:-

1.       Cost of repair charges considered by us as

detailed in Annexure-A                                         : Rs.75500.00

          2.       Less under insurance @ 2.04%                                      : Rs.1540.20

                             Total                                                           : Rs.73959.80

          3.       Less excess as per policy @1%                                       : Rs.12000.00

          4.       Therefore net assessed loss                                    : Rs. 61959.80

                                      OR say                                              : Rs.61960.00

8.                During the process of the assessment, the complainant also got the Planner Machine inspected from Gurnam Tech. Industries, Gobind Nagar, Bhullar Road, Batala who estimated the loss to be of Rs.1,68,100/- besides the other charges. According to the complainant, the machinery was got repaired with the concurrence of surveyor as well as officials of the opposite parties. There is a trail of emails Ex. C2 to Ex. C8, Ex. C11 to Ex. C19 which were exchanged between the complainant and the representatives of the opposite parties from which it can be gathered that surveyor used in dominant position and prevailed upon the complainant to settle the claim at Rs.61,960/- instead of Rs.1,68,000/-. The complainant in pursuance of the said settlement completed the formalities and submitted documents as desired by the opposite parties. But vide emails dated 07.07.2018 and 10.07.2018, the said settlement of claim was unilaterally revoked by the opposite parties on the premise that the surveyor has wrongly applied the excess under the policy as 1% instead of 10% which comes out to be Rs.1,20,000/- on the assured amount and as such, no claim is payable. It is evident from the contents of the written statement, affidavit and documents on record that it is the opposite parties who appointed and deputed surveyor M/s. Taarani Associates, Surveyor and Loss Assessors and later on refused to accept his observations and thereby did not place reliance on the findings of the said surveyor. The complainant is also pointed out that it is the surveyor who persuaded him to give consent of the settled amount of Rs.61,858.80. In the given set of circumstances, when the parties hereto are assailing the report of surveyor so this Commission is left with no option to exclude the findings of the said surveyor.

9.                The opposite parties have not disputed the fact that the claim lodged by the complainant is not genuine one. They have interpreted the terms and conditions of excess clause so to deny any amount to the complainant. The opposite parties have also not picked holes in the assessment of losses and repairs prepared by Gurnam Tech. Industries, Gobind Nagar, Bhullar Road, Batala amounting to Rs.1,68,100/-  So taking into consideration of said amount and after applying the excess clause (10% of the sum insured), the payable amount is hereby worked out to be Rs.1,68,100/- - Rs.1,20,000/- = Rs.48,100/-. Therefore, it would be just and appropriate if the opposite parties are directed to pay a sum of Rs.48,100/- to the complainant along with composite costs of Rs.10,000/-.

10.              As a sequel of above discussion, the complaint is partly allowed with direction to the opposite parties to pay a sum of Rs.48,100/- to the complainant within 30 days from the date of receipt of copy of order failing which the opposite parties shall pay interest @8% per annum on the said amount from the date of order till its actual payment. The opposite parties shall further pay a composite costs of Rs.10,000/- (Rupees Ten Thousand only) to the complainant. Compliance of order be made within 30 days from the date of receipt of copy of the order. Copies of the order be supplied to the parties free of costs as per rules. File be indexed and consigned to record room.

 

 

 

11.              Due to huge pendency of cases, the complaint could not be decided within statutory period.

 

(Jaswinder Singh)                      (Sanjeev Batra)                            Member                                           President         

 

Announced in Open Commission.

Dated:07.08.2023.

Gobind Ram.

 

 

Purish Singla Vs Shriram General Insurance Company             CC/19/129

Present:       Sh. Varun Govind Sharma, Advocate for complainant.

                   Sh. Vyom Bansal, Advocate for OPs.

         

                   Arguments heard. Vide separate detailed order of today, the complaint is partly allowed with direction to the opposite parties to pay a sum of Rs.48,100/- to the complainant within 30 days from the date of receipt of copy of order failing which the opposite parties shall pay interest @8% per annum on the said amount from the date of order till its actual payment. The opposite parties shall further pay a composite costs of Rs.10,000/- (Rupees Ten Thousand only) to the complainant. Compliance of order be made within 30 days from the date of receipt of copy of the order. Copies of the order be supplied to the parties free of costs as per rules. File be indexed and consigned to record room.

 

                   (Jaswinder Singh)                      (Sanjeev Batra)                                                Member                                       President         

 

Announced in Open Commission.

Dated:07.08.2023.

Gobind Ram.