Orissa

Jajapur

CC/43/2015

M/S Sarada Krishi Udyog - Complainant(s)

Versus

Sr.Divisional Manager,The New India Assurance Co.Ltd - Opp.Party(s)

Dilip Kumar Das,Ramakanta Ghadai

06 Dec 2017

ORDER

IN THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, JAJPUR.

                                                        Present:      1.Shri Jiban ballav Das , President

                                                                            2.Sri Pitabas Mohanty, Member,

                                                                            3.Miss Smita Ray, Lady Member.                     

                                             Dated the 6^th day of Decembermber,2017.

                                                      C.C.Case No.43 of 2015

M/S Sarada Krishi Udyog Represented through its

Proprietor Rajanikanta kar

At. Ankula ,P.O.Jajpur Town,  

Dist.-Jajpur.                                                                            …… ……....Complainant .                                                                   .                                     

                                                  (Versus)

Sr. Divisional Manager, The New India Assurance Co.Ltd, Divisional Office

At.Jajpur Road, Dist.Jajpur

                                                                                                                          ……………..Opp.Parties.                  

                                                                                                                            

For the Complainant:                            Sri D.K.Das, Sri R.K.Ghadei,   Advocates.

For the Opp.Parties :                              Sri A.K.Das,Advocate.

                                                                                                     Date of order:   06.12.2017.

SHRI JIBAN BALLAV DAS  ,PRESIDENT.

            The petitioner has filed the present dispute against the O.P due to unilateral  settlement of insurance claim as against  the insurance claim which was claimed by the petitioner due to damage of fertilizers  on 5.8.14  by over flood  water of Baitarani .

            The facts of the present dispute shortly are  that the petitioner being an unemployed youth in order to maintain his livelihood has opened a whole selling fertilizer shop at- Ankula near RMC market complex which was running in the name  and style  as  M/S Sarada krishi   Udyog and deals with various types of fertilizers and pesticides . The said shop was insured with the O.P  as standard  fire   and special perils  policy bearing policy no.55070011130100000155  and was valid from 25.11.13 to 24.11.14 for  a sum assured  of Rs.10,00,000/-. During subsistence  of policy the insured fertilizer which was kept in the go down of the petitioner  got damaged on 5.8.14 at 5.15 p.m by the over flooding of  water of Baitarani river . Accordingly on 6.8.14 the petitioner intimated the insurer regarding the incident and submitted all relevant paper regarding damage  of fertilizers  for settlement of claim .

            After receipt of the intimation ,  the Insurance Company deputed Er. S.K.padhi the Aero   Mechanical Engineer as  surveyor   for inspection and the surveyor after detailed inspection estimated the loss amounting to Rs.5,07,138/- /- but finally assessed the loss amounting to  Rs.60,000/-  only . Accordingly the O.P  vide his letter dt. 20.2.15 intimated the petitioner that the insurance claim amounting to Rs.59,954/- has been assessed by the Surveyor  as per assessment of Insurance claim  applying under Insurance and policy condition and due to the deduction of Rs.4,21,405/-  towards under Insurance and policy excess which is  not applicable to the policy of the petitioner .Owing to the above facts and circumstance ,  the petitioner has filed the present dispute with the prayer to direct the O.P  to pay Rs.6,01,938/ towards  Insurance claim and compensation of Rs. 20,000/-  and cost of Rs.5,000/-  for litigation charge.

            After receipt of  notices   the O.P entered appearance and filed written version  taking the defense  as stated  below

1. At the time of inspection by the surveyor the petitioner did not co-operate the  surveyor for which the surveyor has assessed the loss taking the stock position as per sales Tax Return from the net which was submitted by the petitioner to the sales Tax Department of Govt. of Odisha .
2. The petitioner violating the term and condition  of policy as against the  assured value of  Rs.10,00,000/. had kept the stock of fertilizer ,pesticides  and seeds amounting to Rs.59,15,  306/- for which the surveyor has applied under  the insurance clause for assessing the loss .
3. The petitioner has narrated some fabricated things in the entire body of the application which deserves  for no consideration .This O.P strictly denied  all these  aspects .  

In view of the above defense from the  side of the O.P  it is prayed to dismiss  this  case with proper cost .

      Subsequently as per petition dt.13.02.17 from the side of  the petitioner  the surveyor Er.S.K. Padhi who conducted  the above survey  was cross  examined by  the learned  advocate of the petitioner  on dt 17.5.17 .

      On the date of hearing we heard the argument from the learned advocate of both the sides. After perusal of the  record  along with the documents  filed from both the sides as well as  from  the cross examination of the surveyor it is observed that

1.It is undisputed fact that the alleged fertilizer go down was insured by the O.P  vide  policy No. 55070011130100000155 and was valid from  the period of  25.11.13  to 24.11.2014 for a  sum of Rs,10,00,000/- .

2.It is also undisputed fact that on 5.8.14 due to devastating flood and heavy rains about 3.5 feet  of flood water of river Baitarani entered into the fertilizer go down of the petitioner and subsequently damaged the fertilizers .

3. Similarly it is also not disputed  that after the date of occurrence on  the next date the petitioner has informed the local office of the insurer for which  the insurer has  appointed the surveyor Er. S.K. Padhi to conduct the necessary survey and submit his report .

4.It is also admitted fact that after completion of necessary survey ,   the surveyor has submitted  final report stating  that at the time of material loss the total amount of stock inside the go down was 59,15,306 / including the narrated brand of fertilizers,  pesticides and seeds against the insured value of Rs.10 lakhs  as per policy condition .

It is also the  fact that the insurer has alleged that the petitioner violating the term and condition of the insurance policy has kept the stock of fertilizer  amounting to Rs.59,15,306/-  As the above stock was not properly insured the “under insurance clause” and as per insurance policy scheduled was applied . Accordingly this office vide  letter dt.12.01.14,  23.01.15 and  20.02.15 intimated the petitioner about the fact  but no positive response  was made by the petitioner  and finally  the claim was treated as  “no claim”. which has been  intimated to the petitioner  on 23.3.15 by the O.P  also during the course of survey . The O.P also has stated that the petitioner did not cooperate the surveyor in giving the detail stock position at the time of survey  .On the other hand the petitioner has alleged that  :

1. The stand taken by the O.P  that the petitioner  did not cooperate  the surveyor is totally false in absence of any documentary evidence to this  effect.
2. At the time of issuance of  policy it is the liability of insurance company to supply the term and condition of  policy which the O.P  has not done at the time of issuance of the present policy to the petitioner .Apart from this in absence of any cogent evidence it is also not the fact that as against the insured value of Rs.10 lakh the petitioner had kept the stock of Rs. 59,15,306/- . Accordingly under insurance clause is not applicable as per observation of Hon’bleNational Commission reported in – 2013(1) CPR-326-N.C
3. The surveyor at the time of inspection has not taken into consideration  the inspection report of  Asst. Agriculture Officer, jajpur  dt.06.09.14 .

4. The surveyor report can not be accepted for settlement of insurance claim of petitioner since the said report is not supported by affidavit as per observation of Hon’ble National Commission  reported in 2012(1)-CPR-386-N.C

5. That at the actual stock on the date of damage i.e on 5.8.14 was within Rs.10 lakh  but the deputed surveyor without verifying  the stock ,  estimated the stock from the net which are not coming within the stock of the go down  .

6. The most important factual aspect relates to consider by this  fora is that how the surveyor come to conclusion that the insured has kept the stock of Rs. 59,15,306/-  as against the insured  amount of 10 lakh  though the surveyor himself admits in the cross examination  vide para-8 that:

“ it is a fact  that on 6.8.14 as the go down was water logged,  it was not possible to count the damage fertilizer bags”. This clearly establish that the surveyor  has submitted his report taking the stock from the register which is  no way connected with the damaged stock of the go down Hence the report of the surveyor is not binding to the insured in view of the observation of  Hon’ble  National Commission  reported in  2010 (1) - CLT-266- para-15 (SC)  original petition no.44/1991 )  

      Thereafter we have  verified the cross examination report of the surveyor  dt 17. 05.17 and observed that  in  para-8 of the report the surveyor himself admits  in the cross examination  that

“On 06.08.14 as the go down was water-logged, it was not possible to count the damaged fertilizer bags. “.  Hence we are inclined to hold that the report of the  surveyor  is not a vital report  which can not be  taken into consideration  to settle the insurance claim and it is not binding upon the insurer nor insured in view of the observation of Hon’ble  Supreme court reported in 2010(1) CLT-266-para-15 .

Owing to the above contradicting view of both the parties  we have  come across with the observation of Hon’ble Supreme court reported in  2002(2)-CLT-141_)S.C    United insurance company Versus  M/S Pupalaya printer wherein it is held that

“Insurance policy condition  if there is ambiguity or a terms is capable two possible interprets one beneficial to the  insured should be accepted consistent with the purpose of which the policy is taken namely to cover the risk  on the happening of certain events . “

            For the reasons stated  above as well as owing to  the fact and circumstance  of the present dispute it is clear that the law on the point is conclusively  in  the petitioner favour and as such the dispute is  here by allowed.  In  other words  the report of the surveyor  can not be the basis for the settlement of claim .

Hence this Order

The dispute is allowed against the O.P .The O.P  is directed to pay Rs.6,01938/- as  insurance claim of the petitioner vide policy No.55070011130100000155  within one month after receipt of the order, failing which the awarded amount will carry 9% interest from the date of filing of the dispute till the payment is made . No cost.

 

This order is pronounced in the open Forum on this the 6th  day of December,2017. under my hand and seal of the Forum.