IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KOLLAM
DATED THIS THE 27th DAY OF OCTOBER 2022
Present: - Sri. E.M.Muhammed Ibrahim, B.A, LLM. President
Smt.S.Sandhya Rani. Bsc, LLB ,Member
Sri.Stanly Harold, B.A.LLB, Member
CC.No.70/2019
Narayan Bharathan,
Proprietor, M/s Malayalam Export Enterprises,
Pookkadai, Kappiyarai P.O.,
K.K.District, Tamilnadu,
Residing at Nakshathra,
Contonment, Kollam. : Complainant
V/s
The Branch Manager,
M/s HDFC Ergo General Insurance Company Ltd.,
5th Floor,Bishop Jerome Nagar,
Chinnakkada, Kollam 691001. : Opposite party
(By Adv.S.Dileep Kumar)
ORDER
Sri.Stanly Harold, B.A.LLB, Member
This is a case based on a complaint filed U/s 12 of the Consumer Protection Act 1986.
The averments in the complaint in short are as follows:-
The complainant is engaged in the business of cashew nuts processing and conducting a firm in the name and style as M/s Malayalam Export Enterprises. The said Malayalam Export Enterprises have various branches over Kerala and Tamilnadu. One of the cashew factory is situated at Pookkadai, Tamilnadu which was insured for Rs.1,45,70,800/- valid from 27.06.2018 to 26.06.2019 as per standard fire and special perils insurance with the opposite party. There was a powerful lightning struck the Borma and other electrical appliances in the cashew factory at Pookkadai. Due to this complainant has sustained a loss of Rs.42050/- the said incident is covered under the policy and the matter was reported before the opposite party as per claim No.C211118000457 which was registered by the
opposite party. Survey was conducted by the opposite party by their surveyor Mr.Manikanda Nathan with regard to this. Relevant documents photographs, statement of loss etc. were duly furnished to the opposite party within right time. But the surveyor deputed by the opposite party did not assess loss in a proper manner. The complainant had received an email message dated 26.10.2018 from the opposite party stating that the policy covers only the stock and the electrical appliances will not come under the purview of the policy. The complainant had intimated the opposite party the stock policy was already taken separately and item No.1 policy covers Building, Machineries its electrical appliances and requested to them to reconsider the claim. But the opposite party was not amenable for the same. The surveyor deputed by the opposite party intimated the complainant on 30.10.2018 the failure of the electrical fittings and borma is due to the electrical short circuit and that will not get the coverage under the policy. In the said email the surveyor also stated that he has discussed the matter with the factory manager and rejected the claim on the ground that the damage to electrical items are due to short circuit during the period of lightning and also stated that claim made by the complainant is not admissible under the standard fire and special peril policy. In the circumstances complainant has issued a notice dated 15.11.2018 stating the entire actual facts of the loss sustained to the complainant. Even after repeated requests the opposite party failed to take appropriate steps to settle the claim of the complainant. The non-settlement of claim by the opposite party the factory had to keep idle for so many days. It resulted in the loss of various business commitments of the complainant and complainant had to incur a very huge loss. The complainant had been conducting the business with the assistance of financial credit from the Federal Bank @ 14.5% interest per month. The complainant has to face much mental agony and stress due to the recalcitrant attitude of the opposite party. The opposite party is bound with an obligation to settle the claim of the complainant and the non-settlement of claim amounts to unfair trade practice and deficiency in service on the part of the opposite party. Hence the complaint.
The opposite party filed detailed version resisting the averment in the complaint and contended that complaint is not maintainable either in law or on facts and further contended that the complaint is bad for non-joinder of necessary party. The complainant has not impleaded the bank who has submitted the proposal form and the declaration for the insurance policy as against whom the policy has been assigned in this case. The complainant has approached this Hon’ble Commission with unclean hands by suppressing material facts regarding the case. The complaint is filed only to vex and harass the opposite party by misusing the authority of this Hon’ble Commission. It is an admitted fact the opposite party has issued a Standard Fire and Special Perils Insurance policy to the complainant with an assignee clause in favour of HDFC Bank Ltd. As per the policy issued by the opposite party the stock kept inside the cashew factory premises is covered to the sum insured for Rs.1,45,70,800/- for a period commencing from 27.06.2018 to 26.06.2019. The details are specified in the policy schedule. The complainant had never opted insurance coverage for the electrical appliances installed in the factory premises and no such coverage has been given by the opposite party in the insurance policy issued in the name of the complainant. The complainant has preferred a claim before the opposite party that the electrical appliances attached with the borma unit in the factory premises suffered damages due to short circuit. The opposite party had deputed a Surveyor and Loss Assessor for inspecting the damages and for assessing the nature of loss sustained on account of the reported incident. The surveyor after detailed inspection had submitted a report the temperature and voltage meter were failed the control main switch to the borma is melted due to high voltage and tube light fittings in the peeling room, grading room and cooling room were also affected due to electrical surge. The final assessment of the surveyor is that damages is
suffered due to the short circuiting by the electrical surge during the time of lightning. The electrical equipments suffered damages due to the reported incident are not covered under the policy. It is contended by the opposite party they had issued a repudiation letter with the electrical appliances suffered damages due to short circuit which will not come under the policy coverage. It is specifically mentioned in the repudiation letter that the electrical appliances installed in the factory premises fall outside purview of the policy and the policy covers only stock in the factory premises. The claim of the complainant is baseless and against the concluded terms of the nature of coverage mentioned in the policy schedule itself. The complainant has no manner of cause of action to claim any benefits under the policy for the damages suffered to the electrical appliances on whatever reasons, those are excluded from the purview of the insurance policy issued by the opposite party. The claim before the opposite party and preferred the present complaint before this Hon’ble commission with a wrong assumption that the policy issued by the opposite party includes coverage for electrical appliances also. It is an admitted fact the nature of item covered under the policy and the sum insured under the policy are specifically endorsed in the schedule of the policy itself and the complainant is not entitled to claim anything more than that of the coverage given under the policy schedule of the concluded terms of the insurance contract. The opposite party further contends that the complainant is not entitled to seek any relief and the compensation claimed by the complainant against the opposite party is not payable and the same is lacking any legal bearings further the loss is due to direct peril of lightning hence the peril short circuit is not covered with it the scope of the policy. The quantum of loss claimed by the complainant in this complaint is absolutely baseless and there is no deficiency in service on the part of the opposite party and repudiating the claim preferred by the complainant in accordance with the terms and conditions of the policy. The opposite party further prays to dismiss the complaint with its costs.
In view of the above pleadings the points that arise for consideration are:-
- Whether the complainant is entitled to get the claim amount under the insurance policy as per the terms and condition in the policy?
- Whether there is any deficiency in service and unfair trade practice on the part of the opposite party?
- Whether the complainant is entitled to get any compensation?
- Reliefs and costs?
No oral evidence has been adduced on the part of complainant and opposite party. But both of them produced documentary evidence. Ext.P1 to P6 were got marked on the side of the complainant and Ext.D1 and D2 were marked on the side of the opposite party. Complainant and opposite party filed notes of argument. Heard the counsel for the opposite party. Complainant filed to advance any argument though sufficient opportunity was granted.
Point No. 1 to 3
For avoiding repetition of discussion of materials these three points are considered together. There is no dispute with regard to the issuance of standard fire and special perils insurance policy with an assignee clause in favour of HDFC Bank Ltd. to the complainant by the opposite party. According to the complainant on 26.10.2018 a powerful lightning struck the Borma and related electrical appliances in the cashew factory of the complainant and sustained a loss of Rs.42050/- said incident was covered under the policy and a claim was registered before the opposite party. The complainant had filed all the relevant documents, photographs, statement of loss etc. to the opposite party. But the opposite party did not conduct a proper survey and the opposite party closed the claim that the policy coverage is only for the stock and not for the electrical
appliances. Complainant has intimated the opposite party the stock policy has already taken separately and to reconsider the claim. Thereafter the complainant was informed by the surveyor that the failure of the electrical fitting and Borma is solely due to electrical short circuit and the same will not come under the policy. According to the complainant the surveyor of the opposite party told him that he has discussed with the factory manager about the incident actually no discussion was effected. In the circumstances complainant issued a notice dated 15.11.2018. The complainant has to suffer much loss due to the non-settlement of the claim and factory has to be in an idle stage for so many days. It is pertinent to note that complainant has availed credit facility from the Federal Bank for the cashew business which has to be repaid with 14.5% interest per month. Now it is to be considered whether the complainant is entitled to get the amounts sustained for the loss due to the fire damage. There is also no much dispute with regard to the fact that the complainant is the policy holder of the opposite party. According to the opposite party the complainant is having only policy coverage for the stock of cashew alone for a sum insured Rs.1,45,70,800/- . It is evident from Ext.D1 policy that the complainant had not opted any coverage for the factory premises or any of the electrical appliances installed within the factory or for any machinery and equipments within the factory premises. It is also to be noted that the complainant has not paid any extra premium seeking coverage other than stock of cashew nut covered under the Ext.D1 policy. However the opposite party has not issued any coverage other than the stock of cashew alone under Ext.D1 policy. It is crystal clear that the reported loss suffered to the complainant for the electrical appliances installed in the factory premises will not come under the purview of Ext.D1 policy issued by the opposite party. So it can be safely conclude that the loss suffered to the complainant is excluded from the Ext.D1 policy coverage
issued by the opposite party. According to the opposite party they are having no contractual liability to indemnify the complainant for the loss suffered to him for the electrical appliances which are not covered under the Ext.D1policy. It is pertinent to note that the damages suffered to the electrical appliances within the factory premises are not covered under the Ext.D1 policy and as such the opposite party has rightly repudiated the claim of the complainant stating specific reasons.
The learned counsel for the opposite party has argued that there is no evidence to prove that the complainant has taken a insurance policy for the electrical appliances installed in the factory premises. However the complainant had pleaded in paragraph No.3 of the complaint that item No.Policy covers building machineries its electrical equipments etc. It is also stated in ext.A5 letter sent to opposite party that a new policy covering the electrical appliances also has been issued for the same period. But no such policy has been produced before this commission. Ext.P1 policy copy produced would clearly indicate under the heading details of property insured that stock as per annexure. The said annexure is not seen produced by the complainant to prove that it includes electrical fitting also. It is further to be pointed out Ext.D1 series are the original policy of Ext.P1 copy and it would contain policy schedule also. The said schedule would contain a clause under the heading General Exclusion sub clause No.7 of the said general exclusion clause would clearly exclude loss or damage due to any electrical fitting, apparatus etc. In the light of the above clause in Ext.D1 series policy are find no merit in the case advanced by the complainant.
On evaluating the entire materials available on record we are satisfied that the complainant has miserably failed to establish that he had taken any additional policy as claimed in the complaint and Ext.P5 letter so as to cover the damage to electrical appliances in the factory premises due to lighting and Ext.D1
policy would cover only the stock in trade kept inside the factory premises. In the circumstances we are inclined to hold that the repudiation of the claim made by the opposite party as per Ext.D2 repudiation letter is perfectly justifiable and complainant is no way justified in attributing any unfair trade practice or deficiency in service against the opposite party as alleged in the complaint. Hence the complainant is not entitled to get any claim for the damages sustained in the factory premises due to the lightning on 26.10.2018. The point answered accordingly.
Point No.4
In the result complaint stands dismissed.
No costs.
Dictated to the Confidential Assistant Smt. Minimol S. transcribed and typed by her corrected by me and pronounced in the Open Commission this the 27th day of October 2022.
STANLY HAROLD:Sd/-
E.M .MUHAMMED IBRAHIMSd/-
S.SANDHYA RANI:Sd/-
Forwarded/by Order
Senior superintendent
INDEX
Witnesses Examined for the Complainant:-Nil
Documents marked for the complainant
Ext.P1 : Copy of policy No.2111202320206900000
Ext.P2 : Copy of email dated 26.10.2018
Ext.P3 : Copy of email dated 27.10.2018
Ext.P4 : Copy of email dated 30.10.2018
Ext.P5 : Office copy of notice dated 15.11.2018
Ext.P6 : A/D card
Witnesses Examined for the opposite party:-Nil
Documents marked for opposite party:-
Ext.D1 series : Policy Schedule
Ext.D2 : Repudiation letter
