BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM RAICHUR.
COMPLAINT NO. (DCFR) CC. 75/2011.
THIS THE 28th DAY OF AUGUST 2012.
P R E S E N T
1. Sri. Pampapathi B.sc.B.Lib. LLB PRESIDENT.
2. Sri. Gururaj, B.com.LLB. (Spl) MEMBER.
3. Smt. Pratibha Rani Hiremath,M.A. (Sanskrit) MEMBER.
*****
COMPLAINANT :- Sri. Shantangouda S/o. Basangouda Jagirdar
Proprietor of Mahesh Electricals, R/o. Akshita Nilaya, PWD, Camp Sindhanoor, Tq. Sindhanoor, Dist: Raichur.
//VERSUS//
OPPOSITE PARTIES :- 1. The Branch Manager, Karnataka State Financial
Corporation, Branch Raichur Udaya Nagar, Raichur.
2. The Branch Manager, IFFCO TOKYO General
Insurance Company Ltd., Sudeva Plaza, 3rd floor, Dajiban Peth, Opp: Laxmi Temple, Hubli- 5800029.
CLAIM : For to direct the opposite to pay an amount
of Rs. 6,50,000/- with interest and cost.
Date of institution :- 02-11-11.
Notice served :- 22-11-11.
Date of disposal :- 28-08-12.
Complainant represented by Sri. T.M. Swany, Advocate.
Opposite No-1 represented by Sri. Gururaj Joshi, Advocate.
Opposite No-2 represented by Sri. M.Nagaraj, Advocate.
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This case coming for final disposal before us, the Forum on considering the entire material and evidence placed on record by the parties passed the following.
JUDGEMENT
By Sri. Pampapathi President:-
This is a complaint filed by one Shantanguda against opposite Nos. 1 & 2 U/sec. 12 of Consumer Protection Act, for to direct the opposites to pay an amount of Rs. 6,50,000/- with interest and cost.
2. The brief facts of the complainant’s case are that, he is the proprietor of Mahesh Electricals situated at PWD Camp in Sindhanoor, he is manufacturing electrical transformer. He established the said unit with financial assistance of opposite No-1 KSFC. Opposite No-2 is the insurer of the complainant’s unit, the policy was taken by opposite No-1 from opposite No-2 by paying installments in the loan account for assured sum of Rs. 45,00,000/- (Forty Five Lakhs). Thereafter, he noticed that, opposite No-1 not properly insured his unit as requested by him, thereafter on 24-07-2010 at 5:30 PM, his unit electrocuted due to short circuit. Machinery and equipments burnt in the fire accident and thereby he sustained loss of Rs. 6,50,000/-. The fire accident was informed to opposite No-1, as well as the opposite No-2 Insurance Company, opposite No-2 appointed surveyor, but he not properly surveyed and assessed the loss sustained by him, but he assessed the loss to the extent of Rs. 54,300/- only. The said amount was paid to him by opposite No.2, he received the said amount with protest, thereafter, he made several representations to opposite Nos- 1 & 2, but they shown their negligence in settling his claim and thereby, both opposites found guilty under deficiency in their services, hence he filed this complaint for the reliefs as noted in it.
3. Opposite No-1 appeared in this case through its Advocate, filed written version by denying the entire allegations against it. It denied the receipt of request letter of complainant dt. 03-05-2010 and also subsequent letters, it acted as per the request of complainant, no deficiency in its service. Accordingly, it prayed for to dismiss the complaint among other grounds.
4. Opposite No-2 Insurance Company filed its written version by contending that, the unit of the complainant was insured vide proposal form dt. 06-05-2010. As per his request, the unit of complainant was insured for a standard fire special peril policy, the commencement of risk for a period from 06-05-2010 to 05-05-2011. The policy covered the risk of building, plant & machinery. After the receipt of the information regarding the fire accident, it appointed surveyor and surveyor assessed the loss to the extent of Rs. 54,435/-. The said amount was paid to complainant. Hence there was no deficiency in service on the part of Insurance Company. Accordingly, it prayed for to dismiss the complaint among other grounds.
5. In-view of the pleadings of the parties. Now the points that arise for our consideration and determination are that:
1. Whether the complainant proves that, he got insured his unit by name Mahesh Electricals situated at PWD Camp Sindhanor from opposite No-2 Insurance Company under “standard fire and special peril policy” bearing No. 11449096 dt. 06-05-2010 for assured sum of Rs. 45,00,000/- (Forty Five Lakhs) and he further proves that on 24-07-2010 at 5:30 PM, his unit caught fire due to electrocution and thereby he suffered loss of Rs. 6,50,000/- due to damage caused to his unit in the fire accident.?
2. Whether complainant proves that, opposite No-1 KSFC not got Insurance of the unit of the complainant from opposite No-2 Insurance Company, for the amount mentioned in his request letter dt. 03-05-2010 and for that reason opposite No-2 Insurance Company paid meager amount of Rs. 54,300/- under the policy thereafter, he requested opposite Nos. 1 & 2 to make the payment of actual loss sustained by him, in fire accident but opposites shown their negligence in settling his claim and thereby opposite Nos. 1 & 2 found guilty under deficiency in their services?
3. Whether complainant is entitled for the reliefs as prayed in this complaint.?
4. What order?
6. Our findings on the above points are as under:-
(1) In the affirmative
(2) In negative against opposite No-1. In affirmative against opposite No-2.
(3) In view of our findings on Point Nos-1 & 2, the complainant is not maintainable against opposite No-1 and complaint is allowed in part against opposite No-2 and complainant is entitled for the amount as noted in the body of the judgment and as noted in the final order.
(4) In-view of our findings on Point Nos. 1 to 3, we proceed
to pass the final order for the following :
REASONS
POINT Nos.1 & 2 :-
7. To prove the facts involved in these two points, affidavit-evidence of complainant was filed, who is noted as PW-1. The documents Ex.P-1 to Ex.P-23 are marked. On the other hand affidavit-evidence of opposite No-1 was filed, who is noted as RW-1. His documents Ex.R-1 & Ex.R-2 are marked. Affidavit-evidence of opposite No-2 was filed, who is noted as RW-2. His documents Ex.R-3 to Es.R-5 are marked.
8. In the instant case opposite No-1 is the financier, who financed for the establishment of complainant. Admittedly opposite No-2 is the insurer of the establishment of the complainant by name Mahesh Electricals situated at PWD Camp, Sindhanoor.
It is a fact that, the unit of the complainant was insured with opposite No-2 under the policy of “standard fire and special peril policy” for assured sum of Rs. 45,00,000/- (Forty Five Lakhs).
9. It is undisputed fact that, the unit of the complainant got fire on 24-07-2010 at 5:30 PM and thereafter, he filed complaint before this police regarding the fire accident and also intimated the opposite Nos. 1 & 2 about fire accident and the loss sustained by him in the fire accident. These are all undisputed facts, as such we have not referred the relevant documents field by the parties related to these facts.
10. The main point for our consideration is Point No-2.
11. As admitted by the complainant-himself, the risk under the policy is to the extent of Rs. 45,00,000/- (Forty Five Lakhs).
12. As per the case of complainant, he sustained loss of Rs. 6,50,000/-. In view of these facts, now, let us see whether opposite No-2 has justified in assessing the damage and loss to the extent of Rs. 54,300/-, which was received by the complainant under protest.
13. Ex.P-4 policy shows the description of the properties covered under the risk as noted in the policy are (1) building (2) plant & machinery. This policy reveals that, it is restricted only to the extent of building, plant & machinery. Sum assured is of Rs. 45,00,000/- (Forty Five Lakhs). Surveyor’s reports shows the loss and damage to the extent of Rs. 54,300/- in the fire accident. We have gone through the contents of complaint and affidavit-evidence of complainant PW-1 and document Ex.P-5, which is a complaint filed by the complainant before the police regarding the incident and mahazar prepared by the police (Ex.P-6) and representation given to Tahasildar at Ex.P-7. The complainant himself stated regarding the damage to 9 transformers, core winding assembly sets (36) aluminum insulation wires, heating chamber and SLV violation insurance wire thereby he sustained loss of Rs. 6,48,400/- towards damage to heating chamber. But the list of loss of materials prepared by the complainant-himself as per Ex.P-9 shows the loss of Rs. 6,36,898/- and Ex.P-10 is the list of articles damage.
14. In support of the claim of complainant, he relied on the following rulings:
(1) 2010 CJ 190 (NC) United Insurance Company Ltd., V/s. SMS Telecommunication & Others.
(2) New India Insurance Company Ltd., V/s. M/s. Vimala through its proprietor Vikarmadityapal. 11 (1999) CPJ 34 (NC)
(3) Xerox copy of the judgment in Appeal No. 4101/2009 of the Hon’ble Karnataka State Commission.
(4) Xerox copy of the judgment in Appeal No. 1084/2010 of the Hon’ble Karnataka State Commission.
15. We have gone through the principles of the rulings referred at Sl.No. 1 & 2 and we are of the view that, the first allegation against opposite No-1 KSFC, has no much importance from the facts and circumstances of this case, for the reason that, the insured sum under the policy issued by opposite No-2 is for Rs. 45,00,000/- (Forty Five Lakhs). The alleged loss as pleaded by him is to the extent of Rs. 6,50,000/-, so, the allegations against opposite No-1, for not insuring the unit of the complainant for higher value, has no significance accordingly we ignored the said allegation against opposite No-1.
16. The role of opposite No-2 is to be considered from the pleadings and evidences adduced by both the parties with their respective documents. Ex.R-4 is surveyor’s report under which opposite No-2 Insurance Company is taking shelter for to defend its case. According to the submissions made by the learned advocate for opposite No-2 that, Insurance Company has settled the claim of complainant on the basis of the surveyor’s report at Ex.R-4, it is as per the terms and conditions of the Insurance Policy Ex.R-3 and materials insured.
17. The learned advocate for complainant submitted before us that, the claim of the complainant is in respect of the damage to his building, plant & machinery, but surveyor unilaterally conducted investigation and submitted his report with un-precedental deductions, as recoverable salvage value and less policy excess etc., and further submitted that, the affidavit-evidence of surveyor is not filed in support of the contention of the opposite No-2, the principles of the rulings referred at Sl.No. 2 & 3 of the Hon’ble Karnataka State Commission, the payment made by the opposite No-2 Insurance Company cannot be a proper, adequate indemnification by Insurance Company. Hence, he prayed for to award the amount has claimed in the complaint.
18. We have gone through the submissions made by both the advocates, the principles of the rulings noted at Sl.No. 3 & 4 and their respective documents. Admittedly the surveyor assessed the total loss of Rs. 3,99,663/- vide his report Ex.R-4, he deducted the amount under some heads including salvage value and he noted net amount payable is of Rs. 54,435/-.
19. We have gone through the entire loss to the building, plant & machinery as noted in Ex.R-4 and also as noted by the complainant in Ex.P-9. According to the complainant, he sustained loss of Rs. 6,36,898/- with regard to the building, plant & machinery.
20. As per the surveyor’s report on page No-3, the total loss is shown as Rs. 5,32,884/-, as those items comes under coverage of the policy. This contention of surveyor is more or less similar all the four items, shown are coming under the head of machinery which covers the risk under the policy. Admittedly the affidavit-evidence of the said survey is not filed to substantiate the deductions made in total loss of Rs. 5,32,884/-. Except Ex.R-5, no other acceptable evidences out coming from the side of the opposite No-2 to substantiate its contention. Keeping in view of the principles of the rulings of Hon’ble Karnataka State Commission noted at Sl.No. 3 & 4 and in view of the affidavit-evidences of the parties and their respective documents, we are of the view that, there is no exaggeration or falsehood in the claim of the complainant, as he sustained a loss to building, plant & machinery in the said fire accident to the extent of Rs. 6,50,000/-. Further Ex.P-9 is showing the loss round about Rs. 6,00,000/- as such we have taken the loss sustained by him to the extent of Rs. 6, 00,000/- in fire accident.
21. The contention of opposite No-2 that, it is a liable to pay only to the extent of Rs. 54,435/- under the policy is in correct and it amounts to deficiency in its service. Accordingly we answered point Nos. 1 & 2.
POINT NO.3:-
22. We have discussed entire facts in Point Nos. 1 & 2 in detail in reference to the documents relied by both parties, their affidavit-evidences and principles of the rulings referred relied by them and we come to a conclusion that, the allegation against opposite No-1 is not much importance, in view of the facts and circumstances of this case, hence we ignored it and this complaint against opposite No-1 is dismissed.
23. As regards to the claim of the complainant against opposite No-2 is concerned, the complainant is entitled to get a total sum of Rs. 6,00,000 – 54,300 (which is already received) = 5,45,700 (Rs. Five Lakh Forty Five Thousand Seven Hundred only). The complainant is also entitled to get lumpsum amount of Rs. 3,000/- from opposite No-2 towards deficiency in its service. The complainant is also entitled to get another lumpsum amount of Rs. 3,000/- towards cost of this litigation. Totally the complainant is entitled to get Rs. 5,51,700/- from opposite No-2. He also entitled to get interest at the rate of 9% p.a. on Rs. 5,51,700/- from the date of this complaint till realization of the full amount.
POINT NO.4:-
24. In view of our findings on Point Nos-1 to 3, we proceed to pass the following order:
ORDER
The complaint filed by the complainant is partly allowed with cost.
The complainant is entitled to get a total amount of Rs. 5,51,700/- from the opposite No-2.
The complainant is entitled to get interest at the rate of 9% p.a. on Rs. 5,51,700/-. from the date of this complaint till realization of the full amount.
One month time is given to opposite No-2 to make the payment
Complaint against opposite No-1 is dismissed.
Intimate the parties accordingly.
(Dictated to the Stenographer, typed, corrected and then pronounced in the open Forum on 28-08-2012)
Smt.Pratibha Rani Hiremath, Sri. Gururaj Sri. Pampapathi,
Member. Member. President,
District Consumer Forum Raichur District Consumer Forum Raichur District Consumer Forum Raichur.
