Haryana

Ambala

CC/201/2020

M/s Optimal Agro - Complainant(s)

Versus

Tata Aig Gen Insurance Co ltd - Opp.Party(s)

B.S.Behgal

11 May 2022

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, AMBALA.

 

                                                          Complaint case No.:  201 of 2020.

                                                          Date of Institution           :    24.09.2020.

                                                          Date of decision    :    11.05.2022

 

M/s Optimal Agro Producer Company Limited, Village Konkpur, Tehsil & District Ambala, through its Director, Sh. Jagmohan Singh, s/o Sh. Jagat Singh, r/o Village Konkpur, P.O. Barola, Tehsil & District Ambala.

                                                                                       ……. Complainant.

                                                Versus

 

1.       Tata AIG General Insurance Company Limited, 3^rd Floor, Shanti       Complex, Jagadhari Road, Opposite Civil Hospital, Ambala Cantt.,     through its Manager.

2.       Axis Bank, Branch Konkpur, Tehsil & District Ambala, through its  Manager.

                                                                                  ..…. Opposite Parties.

         

Before:        Smt. Neena Sandhu, President.

                   Smt. Ruby Sharma, Member.

Shri Vinod Kumar Sharma, Member.         

                            

Present:       Shri B.S. Behgal, Advocate, counsel for complainant.

Shri Mohinder Bindal, Advocate, counsel for OP No.1.

Shri Rahul Vig, Advocate, counsel for OP No.2.

 

Order:        Smt. Neena Sandhu, President

Complainant has filed this complaint under Section 35 of the Consumer Protection Act, 2019 (hereinafter referred to as ‘the Act’) against the Opposite Parties (hereinafter referred to as ‘OPs’) praying for issuance of following directions to it:-

1. To pay/reimburse the amount of Rs.2,89,284/-, spent on repair of the damaged parts of the pack-house, along with interest @ 12% per annum.
2. To pay Rs. 1,00,000/- as compensation for the mental agony and physical harassment suffered by the complainant.
3.  To pay Rs.30,000/-, as cost of litigation.
4. To pay Rs. 30,000/- as compensation for the deficiency in service and         unfair trade practice committed by the OPs.

 

382.  

 

                    Any other relief which this Hon’ble Commission may deem fit.

 

Brief facts of the case are that the complainant in order to earn his livelihood, by means of self-employment, got installed an integrated Pack-house under the name and style ‘M/s Optimal Agro Producer Company Limited’, in his village Konkpur (Ambala). The pack-house consists of cold room and Ripening Chambers for storage of fruits and vegetables. The integrated pack-house, having 7 Ripening Chambers/Cold Room, 1 pre-cooling room and one 100 Mt Cold Room, alongwith sorting grading lines, conveyer belt, 2 Gen Sets Solar System of 60 KW. Office-cum-residence of the company is also a part of the said premises. OP No.2 got insured the pack-house/plant from the OP no.1 for the period 15.05.2020 to 14.05.2021 vide policy No. 2270493395 dated 16.05.2020. In the evening on 03.06.2020, due to heavy storm  and rain, in the region,  27 solar panels, 5 roof top GSW sheets and the Exhaust fan, fitted on the roof of the pack-house/plant got damaged. Since, the damage occurred during the subsistence of the policy, therefore, complainant lodged a complaint on the toll free number 16002667780 of OP No.1 on 04.06.2020. In pursuance of the complaint, OP No.1 appointed a surveyor, who visited the premises on 10.06.2020 and submitted his report Ref. MY/DLH/20/001494 dated 11.06.2020, and reported loss of the following items:

A)      5  roof top GSW sheets.

B)      27  solar panels installed on the roof

C)      One roof top exhaust fan.

The surveyor reported that the insurance policy dated 16.05.2020 related to H.No. 62, village Konkpur but pointed out that the claim was inadmissible as ‘Loss Location’ was not covered under the policy. At the same time, surveyor also asked the complainant to make certain additional documents available to him. Complainant vide e-mail dated 22.06.2020 informed the Surveyor that the location was covered under the policy and also sent all the desired documents for process of the claim. On 24.06.2020, Surveyor again visited the site and reported that the solar panels were not covered under the policy and no damage had been caused to the plant. Vide letter dated 02.07.2020, complainant conveyed the Surveyor that an amount of Rs. 2,89,284/- was required to be the reimbursed/paid as claim, under the insurance policy dated 16.05.2020. On 04.07.2020, Surveyor replied that the claim filed by the complainant is not payable as the solar panels were not covered under the insurance policy. The OP No.1 vide email dated 20.07.2020, intimated the complainant that the claim has been declined, in view of the report of the surveyor. Compliannt wrote an email dated 20.07.2020, to the Surveyor that solar panels are part of the ‘plant & machinery’ and the claim lodged by him was covered under the insurance policy. Surveyor told the complainant to take up the matter with the Insurer. Complainant telephonically contacted the OP no.1, but it refused to budge from its stand and refused to entertain the claim. Complainant got replaced/rectified the damaged items, by paying Rs. 2,89,284/-. The Plant and the Machinery are covered under the insurance policy, the roof top, JSW sheets, the solar panels and the roof top exhaust fan are the integral and inseparable parts of the plant. The plant/cold storage is functioning 24X7, which is feasible only due to JSW sheets and the solar panels. The plant/cold storage cannot be made functional without the installation of roof top, JSW sheets, solar panels and exhaust fan, installed at the roof top. The Surveyor initially, reported that claim was not admissible as loss location was not covered under the policy. However, when relevant documents were provided him to show that the loss location is covered under the policy, then, he reported that solar panels are not covered under the insurance policy. The loss suffered by the complainant is fully covered under the policy and the OPs by not paying the claim amount, have committed deficiency in service and indulge into unfair trade practice. Hence the present complaint.

2.                Upon notice, OP No.1 appeared through counsel and filed written version and raised preliminary objections regarding cause of action,  jurisdiction, suppression of material facts etc. On merits, it is stated that after receiving the intimation from the complainant on 05.06.2020 about the alleged damage, caused on 03.06.2020 to some of the solar panels and roof top sheets etc.,due to storm and heavy rain in the region, one IRDA approved/licensed impendent surveyor M/s Mclarens insurance Surveyors and Loss Assessors was immediately deputed to inspect and assess the loss as per insurance byelaws. The said surveyor visited and inspected the site in the presence of the representative of the complainant. As reported by the representative of the complainant that due to severe storm accompanied with rain, in Ambala in the evening of 3^rd June, 2020 at about 06:00 pm, 5 roof top JSW sheets, 27 solar panels, installed on the roof top and one roof top exhaust fan got damaged. The surveyor inspected the site and also visited the banker of the insured/complainant and also sought documents from the bank as well as from the insured/complainant. After analyzing and scrutinizing, all the papers and documents in the light of the coverage, scope and terms of the insurance policy, the surveyor observed that the solar panels accounted for a separate head in the fixed assets schedule of balance sheet, whereas the policy was covering the ‘Plant and Machinery’ which had a separate head in assets. Therefore, as per designation of property clause in the policy, the separate head of solar panels were not to be taken as part of ‘Plant and Machinery’ and thus, found the same, not covered under the policy. The surveyor informed the complainant through email dated 26.06.2020 about the scope and purview of the policy and exclusion of solar panels from the policy and asked the complainant to revert back, in case having any difference in opinion regarding the coverage of the solar panels and also inform the answering OP about the same. Since, the complainant failed to respond to the surveyor, within the stipulated period, so the surveyor proceeded further and finalized the report and submitted the report with the answering OP, on 02.07.2020, whereby assessed the legal loss against the damages caused to the complainant within the parameters of the insurance policy by applying appropriate coverage clause under the insurance policy, to the tune of Rs. 9,838/-. Since, the excess clause as per policy was Rs. 10,000/-, thus, no payable loss was found and recommended not to pay any amount to the complainant against the said storm loss. However, for the sake of calculation of loss, the surveyor assessed the loss of the solar panels, to the tune of Rs. 2,49,401/-. After scrutinizing the records and the evidence and elaborating the whole facts, situation, the competent authority held that the reported claim of the complainant is not admissible qua the loss of the solar panels as reported by the surveyor, being not falling under the scope and purview of the insurance policy. No amount was found payable regarding the loss of the roof top JSW sheets and Turbo fan being found less than excess clause amount, as the surveyor assessed the loss to the tune of Rs. 9,838/-, whereas, the excess clause under the policy was Rs. 10,000/-. Thus, the claim was held not payable and the complainant was duly informed about the fate of his claim in detail, vide letter dated 22.07.2020. Complainant himself was convinced with the report of the surveyor, however, in order to put undue pressure, he has filed this false complaint by exploiting the process of law. Rest of the allegations levelled by the complainant were denied and prayer has been made by OP No.1, for dismissal of the present complaint against it with costs.

3.                Upon notice, OP No.2 appeared through counsel and filed written version and raised preliminary objections regarding maintainability, mis-joinder of parties, no privity of contract and no locus standi to file the present complaint etc. On merits, it is stated that the policy has been issued to the complainant, by the OP No.1 and there is no privity of contract between the complainant and the answering OP. The answering OP is merely a Bank and working as per the Banking Regulation Act, 1949.  Bank acts as a facilitator/referral agent and actually, insurance policy is to be issued by the insurance company. Thus, there is no deficiency in service on the part of the answering OP. Rest of the allegations levelled by the complainant were denied and prayer has been made by OP No.2, for dismissal of the present complaint against it with costs.

4.       Learned counsel for the complainant tendered affidavit Annexure CA  alongwith documents Annexure C-1 to C-21 and closed the evidence on behalf of complainant. On the other hand, learned counsel for OP No.1 tendered affidavit of Sh. Amit Chawla, Authorized signatory, Tata AIG, General Insurance Co. Ltd., Noida and of Sh. Rahul Kaundal, Surveyor and authorized signatory of M/s Mclarens insurance surveyors and loss assessors India Pvt., Ltd, having its office at 106, Swastik Bhawan, Commercial Complex, Ranjit Nagar, New Delhi  as Annexure OPA and OPB respectively, alongwith documents Annexure OP-1 to Annexure OP-5 and closed the evidence on behalf of OP No.1 and learned counsel for OP No.2 tendered Affidavit of Sh. Ashish Kumar, Branch Manager, Axis Bank, Konkpur as Annexure OP2/A and closed the evidence on behalf of OP No.2.

5.                We have heard the learned counsel for parties and carefully gone through the case file and also the written arguments filed by the learned counsel for the complainant and OP No.1.

6.                The learned counsel for the complainant has submitted that due to heavy storm and rain on 03.06.2020, 27 solar panels, 5 roof top GSW sheets and the exhaust fan, affixed on the roof top of duly insured pack-house, got damaged.

 

Complainant informed the insurance company regarding the same and it deputed a Surveyor, who, after inspecting the premises on 10.06.2020, who with bad intention  and under the pressure of insurance company, has submitted his report dated 11.06.2020, Annexure C-2 that the claim is not admissible, since the loss location is not covered under the policy. On 24.06.2020, surveyor again visited the site and nullified the objection raised earlier, regarding the location of the plant, which is apparently, the proof of his bad intention and again submitted his report dated 02.07.2020 Annexure OP-3. Although, he has assessed the loss of Rs. 2,89,284/- for the damaged items yet he has opined that the claim does not fall under the policy. Complainant spent Rs. Rs. 2,89,284/- for the repair/replacement of the damaged parts valid bills and payment to the repairer was released through bank. By not paying the said amount, the Ops has committed deficiency in service.

7.       On the contrary, the learned counsel for the OP No.1 has submitted that OP No.1, after receiving the information from the complainant, about the damage of 5 roof top JSW sheets, 27 solar panels and one roof top exhaust fan etc. installed on the roof of the pack-house, on 03.06.2020 due to storm and heavy rain in the region, appointed an IRDA approved surveyor M/s Mclarens insurance Surveyors and Loss Assessors. The said surveyor after visiting/inspecting the site, and after scrutinize all the documents, has observed that the solar panels accounted for a separate head in the fixed assets schedule of balance sheet, whereas the policy was covering the ‘Plant and Machinery’ which had a separate head in assets. Therefore, as per definition of property clause in the policy, the separate head of solar panels were not taken to be as part of ‘Plant and Machinery’ and thus, found them not covered under the policy. The said Surveyor finally submitted his report dated 02.07.2020 with the OP No.1, whereby assessed the legal loss against the damage caused to the complainant within the parameters of the insurance policy to the tune of Rs. 9,838/-, but the excess clause as per policy was Rs. 10,000/-, as such, there was no payable loss was found and recommended that no amount is payable to the complainant. However, for the sake of calculation of loss only, the said surveyor assessed the loss of the solar panels to the tune of Rs. 2,49,401/-. After scrutinizing records and the evidence and elaborating the whole facts & situation, the competent authority held that the reported claim of the complainant is not admissible, qua the loss of the solar panels as detailed by the surveyor being not falling under the scope and purview of the insurance policy in question and further, no loss found payable for the  loss  of the roof top JSW sheets and Turbo fan being found less than excess clause amount as the surveyor assessed the loss to the tune of Rs. 9838/- and the excess clause under the policy was Rs. 10,000/-. Thus, the claim was held not payable and the complainant was duly informed about the fate of his claim in detail vide letter dated 22.07.2020.

8.       The Learned counsel for the OP No.2 has submitted that that the insurance policy in question was issued by the OP No.1 and there is no privity of contract between the complainant and the OP No.2. The OP No.2 is merely a Bank and working as per the Banking Regulation Act, 1949. Bank acts as a facilitator/referral agent and actually, insurance policy has to be issued by the insurance company.

9.                It may be stated here that that the OP No.1 has repudiated the claim of the complainant, on the basis of the report of the surveyor. The Surveyor in the first instance vide letter dated 11.06.2020, Annexure C2, has reported that the claim is not admissible, since loss location is not covered under the policy. Thereafter, the said surveyor after approval of the loss location, in final surveyor’s report dated 02.07.2020 Annexure OP-3 has stated that the solar panels accounted for a separate head in the fixed asset schedule of balance sheet whereas the policy was cover the plant and machinery which had a  separate head in assets. Therefore, as per definition of property clause in the policy, the separate head of solar panels cannot be taken as part of plant and machinery and thus, does not cover under the policy.

10.     From the reasoning given, it is seen that the Surveyor is talking about capitalization of solar panels under the independent head. He has also stated that the definition of property clause in the policy, the separate head of solar panel cannot be taken as part of plant and machinery. Capitalization and fixed assets are two different things,  moreover, as per Company Law and Income Tax Law the rate of depreciation are different for different kind of machinery/plant, which fall under the heading plant and machinery. Machinery per se is entitled for depreciation @ 15% and electrical fitting are entitled for depreciation @15%. Furniture and fixtures are entitled for depreciation @ 10% and the solar panels are entitled for depreciation @ 40% under the Income Tax Law, therefore, it was requirement of company law as well as Income Tax Act, to separately account for assets falling under different rates of depreciation which though, fall under the definition of ‘Plant & Machinery’. From the perusal of documents reveal that the solar panels accounted for a separate head in a fixed assets schedule of the balance sheet, form an integral part of ‘Plant & Machinery’. Even otherwise, no document has been placed on record by the insurance company to show that the solar panels were not insured under the policy in question and were not covered under the heading ‘Plant & Machinery’. By no stretch of imagination, the solar panels could be excluded from definition of ‘Plant & Machinery’, if it is shown separately to claim depreciation at a higher rate as per the Income Tax Laws. The reasoning given by the learned surveyor for excluding solar panels from the ‘Plant & Machinery’ cannot be accepted and the insurance company cannot be said to be justified in repudiating the claim of the complainant and is thus, liable to pay the amount which the complainant spent for replacement of the solar panels, roof top JSW sheets, turbo fan. From the perusal of invoice dated 11.06.2020,Annexure C-10, it is evident that complainant paid Rs. 1,61,401/- for purchase of 17 solar panels and for installation & commissioning, vide invoice dated 15.06.2020, Annexure C-10, complainant paid Rs. 88,001/- for purchase of 10 solar panels and vide invoice dated 15.06.2020, Annexure C-10, complainant paid Rs. 39,884/- for purchase of Roof sheet JSW 0.5 mm and turbo fan. In total, complainant spent Rs. 2,89, 284/- (Rs. 88,001/- + Rs. 39,884/-+ Rs. 1,61,401/-) for the replacement/repair of the aforesaid items. The insurance company is thus liable to pay the said amount to the complainant alongwith interest. Since, the complaint has been filed by the juristic person, therefore, it is not entitled to get compensation on account of mental agony and physical harassment.

11.     Since, the insurance company i.e. OP No.1, being insurer has to indemnify the complainant for the loss suffered by him and not the Bank i.e. OP No.2,  therefore, the complaint filed against it is liable to be dismissed.

12.     In view of the aforesaid discussion, we hereby dismiss the present complaint against the OP No.2 and allow the same against OP No. 1 and direct it, in the following manner:-

1. To pay Rs. 2,89,284/-,, to the complainant alongwith interest @ 5 % per annum from the date of filing of complaint i.e. 24.09.2020 till the date of realization.  
2. To pay Rs.2,000/- as litigation expenses.

 

                   The OP No.1 is further directed to comply with the aforesaid directions within the period of 45 days from the date of receipt of the certified copy of this order. Certified copy of this order be supplied to the parties concerned, forthwith, free of cost as permissible under Rules. File be indexed and consigned to the Record Room.

 

Announced on :11.05.2022

 

 

          (Vinod Kumar Sharma)        (Ruby Sharma)                   (Neena Sandhu)

              Member                             Member                            President

 

Present:       Shri B.S. Behgal, Advocate, counsel for complainant.

Shri Mohinder Bindal, Advocate, counsel for OP No.1.

Shri Rahul Vig, Advocate, counsel for OP No.2.

 

 

Vide our separate detailed order of even date, the present complaint has been dismissed against the OP No.2 and allowed the same against OP No.1. File be consigned to Record Room, after due compliance.

Announced on: 11.05.2022

 

 

 

          (Vinod Kumar Sharma)  (Ruby Sharma)               (Neena Sandhu)

              Member                         Member                       President