BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM RAICHUR.
COMPLAINT NO. (DCFR) CC. 31/2012.
THIS THE 20th DAY OF JULY 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 :- M/s. Sri. Jyothi Cotton Ginners, Plot No. R-6
to R-20, Industrial Estate, Yeramarus Tq. & Dist: Raichur. Represented by its Proprietor, Sri. Gopal S/o. K. Savareppa, Age; 35 years, R/o.Raichur.
//VERSUS//
OPPOSITE PARTIES :- The Divisional Manager, United India
Insurance Company Ltd., Divisional Office, V.V. Sukhani Complex, 1st floor, near Gandhi Chowk, Raichur.
CLAIM :- For to direct the Insurance Company to
pay sum assured of Rs. 17,56,000/- towards damages and Rs. 10,000/- as a compensation along with interest at the rate of 12% and cost of the suit.
Date of institution :- 19-04-12.
Notice served :- 11-05-12
Date of disposal :- 20-07-12.
Complainant represented by Sri. M. Mallangouda, Advocate.
Opposite Nos. 1 & 2 represented by Sri. A.S. Malipatil, Advocate.
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. Gururaj, Member:-
This is a complaint filed by complainant M/s. Sri. Jyothi Cotton Ginners through its proprietor Sri. Gopal S/o. Savareppa against the opposite the Divisional Manager, United India Insurance Company Ltd., under section 12 of Consumer Protection Act for to direct the Insurance Company to pay sum assured of Rs. 17,56,000/- towards damages and Rs. 10,000/- as a compensation along with interest at the rate of 12% and cost of the suit.
2. The brief facts of the complainant’s case are that, the complainant is the proprietor of the M/s. Sri. Jyothi Cotton Ginners and got insured his factory i.e, building, plant & machinery and stock of Raw materials with the opponent Insurance Company under the scheme of standard fire and special perils policy vide Policy No. 240200/11/09/0001150, valid from 22-01-2010 to 21-01-2011 by paying annual premium amount of Rs. 82,764/- covering the risk of total assured sum of Rs. 1,50,000/-.
Further, it is the case of the complainant that, on 18-05-2010 due to heavy wind and rain the factory building covered under the insurance has fallen/damaged. The entire factory building was collapsed and due to which the machinery and stock of cotton and other materials stored in the factory building have damaged and he sustained huge loss of Rs. 19,66,000/-. That immediately after the incident that, on 18-05-2010 the complainant informed the opponent about the incident through letter dt. 18-05-2010 and the said incident was also appeared in Sanjay Vani & Raichur Vani Daily Kannada Papers on 19-05-2010. After the receipt of the letter from the complainant the opposite Insurance Company through letter dt. 09-07-2010 and 13-07-2010 informed to submit the claim form and other relevant documents for the settlement of the damages. The opposite instead of settling the claim all of suddenly on 29-03-2012 forced the complainant to receive a sum of Rs. 2,10,000/- through a cheque bearing No. 292636 dt. 29-03-2012 accordingly the complainant received the said cheque amount under protest as the amount paid by the opponent was very meager, low, without any base and against the actual loss.
Further it is the case of the complainant that, after receipt of the said cheque amount he has written a letter dt. 02-04-2012 to the opposite stating that, the amount paid by the opposite that, very meager and against the actual loss as such, he has received the said amount under protest, the said letter was served upon the opposite but not settled the claim and also not replied to the said letter intentionally.
Further, it is contended that, the opposite being the insurance it is bounded duty to assess the actual loss, and to make good of the same as per the terms and conditions of the policy but the opposite without assessing the actual loss and without offering any opportunity to the complainant has paid very meager amount as per his vims and fancies, which has caused great loss to the complainant, this attitude of the opposite amounts to deficiency in service and unfair trade practice. Hence he sought Rs. 17,56,000/- after deducting the Rs. 2,10,000/- from total damage of Rs. 19,66,000/- with interest at the rate of 12% and Rs. 10,000/- towards deficiency in service along with cost.
3. Opposite Insurance Company appeared through its counsel and submitted written version by denying the allegations of the complainant about the heavy wind and rain on 18- 05-2010 and entire factory building was collapsed due to rain and machinery and stock of cotton and other materials stored in the factory building were damaged and for which the complainant sustained huge loss of Rs. 19,66,000/-. Further it is contended that, the said building of the complainant is under construction the same fact is very much clear from the photos therefore question of damage to machinery and stock, cotton and other materials stored in the factory building does not arise.
Further it is denied by the opponent that, the claim of the complainant has not at all settled till 29-03-2012 and opponent all of sudden on 29-03-2012 has forced the complainant to receive a sum of Rs. 2,10,000/- through cheque bearing No. 292636 dt. 29-03-2012 and complainant received said cheque amount under protest as the amount paid by the opponent very meager, low, without any basis and against the actual loss sustained by the complainant as they are false and baseless, it is also denied about the letter dt. 02-04-2012 to the opponent in this regard and amount has been received by the complainant under protest and about service of the letter and till the date of service of the letter, non-settlement of the claim and without assessing the actual loss, offering any opportunity to the complainant paid very meager amount as per the vims and fancies of this insurance company and thereby deficiency in service and unfair trade practice has been done against the complainant.
Further is contended that, after assessing the actual loss and giving sufficient opportunity the matter has been settled between the complainant and opposite accordingly the complainant received the said compensation amount on 31-03-2011 by way of cheque bearing No. 212775 dt. 31-03-2011 an amount of Rs. 2,10,000/- as full and final settlement. At the time of receiving the said cheque he has not field any under protest application, only after lapse of one year he has sent letter dt. 02-04-2012 stating that, the amount has been received under protest and claim settled by the opposite is meager. The said letter is just after thought. Therefore, once the complainant has received the entire compensation amount with full and final settlement he cannot claim any compensation or damages by filing the present complaint. Therefore, he sought for dismissal of the complaint as it is not maintainable and nothing is payable to the complainant by this opposite. The present complaint is just after thought and for to get the illegal compensation amount.
4. In-view of the facts and circumstances stated above. Now the points that arise for our consideration and determination are that:
1. Whether the complainant proves that, he has sustained loss of Rs. 19,66,000/- due to fallen of the factory building by heavy rain and wind on 18-05-2010, he has submitted his claim form to the opposite for to settle the claim but the opposite has not settled the claim till 29-03-2012 and on 29-03-2012 forced the complainant to receive a sum of Rs. 2,10,000/- through cheque bearing No. 292636 dt. 29-03-2012 and he received the said amount under protest as the amount paid by the opposite is very meager, low, without any base and against the actual loss sustained by him, further, the complainant has written a letter dt. 02-04-2012 to the opponent through RPAD stating that, the amount paid by the opposite is very meager and against the actual loss caused, as such, he received the said amount under protest. But even in spite of said letter the opposite has not settled the claim and thereby opposite found guilty under unfair trade practice and deficiency in its service?
2. Whether complainant is entitled for the relief’s as prayed in his complaint.?
3. What order?
5. Our findings on the above points are as under:-
(1) In negative
(2) In negative.
(3) In-view of the findings on Point Nos. 1 & 2, we proceed
to pass the final order for the following :
REASONS
POINT NO.1 :-
6. To prove the facts involved in these two points, affidavit-evidence of the complainant was filed, who is noted as PW-1. Totally forty documents Ex.P-1 to Ex.P-40 are marked. On the other hand, affidavit-evidence of Opposite No-1 was filed, who is noted as RW-1. Totally four documents Ex.R-1 to Ex.R-4 are marked.
7. On perusal of the facts pleaded by the parties, their respective affidavit-evidences and documents filed in this case. We have noticed the following undisputed fact between the parties.
1. It is undisputed fact that, the complainant has insured his factory building plant & machinery and stock of Raw materials with the opponent Insurance Company under the scheme of standard fire and special perils policy vide Policy No.240200/11/09/0001150, valid from 22-01- 2010 to 21-01-2011 by paying annual premium amount of Rs. 82,764/- covering the risk of total assured sum of Rs. 1,50,000/-.
8. With this undisputed fact between the parties now, we have to appreciate the facts in dispute between the parties by one by one.
9. The first point for our consideration is that, whether the complainant factory building has been collapsed due to heavy rain on 18-05-2010 and for which he has sustained huge loss of Rs. 19,66,000/- as contended in his complaint. The learned advocate for complainant is contending that, there is a heavy wind and rain on 18-05-2010 and entire factory building was collapsed and due to which the machinery and stock of cotton and other materials stored in the factory were damaged and complainant sustained huge loss of Rs. 19,66,000/-. But the learned advocate for opposite is contending that, the said building is under construction, same is very much clear from the photos hence, the question of damage to the machinery and stock of cotton and other materials stored in the factory building does not arise.
10. To decide this fact, we have referred material documents Ex.P-2, Ex.P-3 Ex.P-3(1), Ex.P-8(1) to Ex.P-8(16) and the documents filed by the opposite under Ex.R-1 and Ex.R-4 to Ex.R-4(9). On perusal of the Ex.P-2 the letter dt. 18-05-2010 written by the complainant to the Insurance Company, the Ex.P-3, Ex.P-3(1) i.e, xerox copy of the news papers it is noticed that, the complainant building has been collapsed and same has been intimated to the Insurance Company and about falling heavy rain with wind was also appeared in the news papers. Further, on perusal of the photos produced by the complainant and opposites under Ex.P-8 to Ex.P-16 and Ex.R-4 to Ex.R-9, it is very much clear that, no doubt that the complainant building was collapsed but it is under construction. Under these circumstances, and through the above said photos, even by naked eyes we can say that, no stock and machineries are found under the debris of the building and there is only construction material are found. Hence, the contention of the complainant regarding loss of stock of cotton and other raw materials, machineries holds no good. Therefore, we have rejected the allegation of the complainant in this regard. Further, it is also not proved from the said documents that, the complainant has sustained the huge loss as mentioned in his complainant. On perusal of Ex.R-1 i.e, survey report the surveyor has also categorically stated in his report that, the building is still under construction. No doubt on the date and time when the rain and wind has appeared, the building has been collapsed the same was also stated by the surveyor in his report. Hence collapsing of un completed building due to rain and wind is admitted and same was proved by Ex.P-2 to Ex.P-3(1) and Ex.R-1.
11. The second point for our consideration is that, whether the complainant has received an amount of Rs. 2,10,000/- from the opposite through cheque bearing No. 292636 dt. 29-03-2012 without any prior settlement or information and for which the opposite Insurance Company has forced to receive the said amount after the letter dt. 02-04-2012 and same was received under protest or as per the opposite, that amount has been paid by the opposite on 31-03-2011 through cheque bearing No. 212775 dt. 31-03-2011 after settlement of the claim amicably with the complainant and for which complainant has given his consent and there was no any protest for to receive the same as contended by the opposite. The learned advocate for complainant is contending that, even after submission of the claim form, the opposite Insurance Company has not settled the claim but all of sudden they have forced to receive the claim amount on 29-03-2012 and accordingly the complainant has received an amount of Rs. 2,10,000/- under protest as the amount paid by the opposite is very meager, low, without any base and against the actual loss. But the learned advocate for opposite is contending that, the claim of the complainant has been settled amicably and the complainant after his consent he has received an amount of Rs. 2,10,000/- as full and final settlement through cheque bearing No. 212775 dt. 31-03-2011, the other contention of the complainant regarding receipt of the amount of Rs. 2,10,000/- through cheque bearing No. 292636 dt. 29-03-2012 and same was received under protest are all false and baseless just in order to get extra monetary benefit, such contention has been taken by the complainant. In order to prove this point, we have referred major documents i.e, Ex.P-6 & Ex.P-7. After perusal of Ex.P-6 which is the letter dt. 29-03-2012, written by complainant to the opposite. It is very clear that, the complainant has received a cheque bearing No. 212775 dt. 31-03-2011 from the opposite and further it has been mentioned in that letter that, the said cheque has been lost due to over sight mis-placing and asked for another fresh cheque in place of missed one. But under the said letter, there is no single piece of word to show that, they have received the cheque bearing No. 212775 under protest as contended by the complainant. No doubt, at the right side bottom of the said letter after “Your’s faithfully”, there is a word “U/P” as per the complainant, he has written as it is under protest, apart from that, there is no any single piece of other evidence about the receipt of the cheque under protest and there is no in writing of any words for the same. Under such circumstances, the say of the complainant in this regard cannot be believed. It is worth while to note here that, the said letter has been written to the opposite after lapse of near about one year from the date of receipt of earlier cheque. Further in the said letter they have also asking for another cheque. From the said Ex.P-6, it is very clear that, the matter has been settled for an amount of Rs. 2,10,000/- long back. Accordingly the complainant has accepted the settlement for the said amount. Once the claim has been settled amicably, complainant lost his rights to make further any claim after lapse of one year. Under such circumstances, the contention of the complainant regarding receipt of the amount under protest as the claim is very less and meager and the opposite Insurance Company has not made the settlement till 29-03-2012 and after by force made by the opposite Insurance Company only he has received a sum of Rs. 2,10,000/- cheque bearing No. 292636 dt. 29-03-2012 are the contentions, nothing but, an after thought contentions only to get higher monetary benefit from the opposite. Therefore, the version of the complainant in this regard cannot be accepted. Hence, we have considered that the complainant has failed to prove his case against the opposite. Hence we have decided that, there is no deficiency in service or unfair trade practice on the part of the opposite. So we answered Point No-1 in negative.
POINT NO.2:-
12. In view of our finding on Point No-1, the complainant is not entitled for any one of the reliefs as prayed in its complaint, accordingly this point is answered in Negative.
POINT NO.3:-
13. In view of our findings on Point Nos-1 & 2, we proceed to pass the following order:
ORDER
The complaint filed by the complainant is dismissed
Intimate the parties accordingly.
(Dictated to the Stenographer, typed, corrected and then pronounced in the open Forum on 20-07-12)
Smt.Pratibha Rani Hiremath, Sri. Gururaj Sri. Pampapathi,
Member. Member. President,
District Consumer Forum Raichur. District Consumer Forum Raichur. District Consumer Forum Raichur.
