Consumer Complaint No. 181 of 2016
Date of filing: 18.10.2016 Date of disposal: 21.4.2017
Complainant: M/s. M.R. Agro Industries, Partner:- Sk. Raj Kumar & Sk. Majibar Rahaman, Vill: Narja, PO: Karjana Chatti, PS; Bhatar, District: Burdwan, PIN – 713 102.
-V E R S U S-
Opposite Party: 1. The Divisional Manager, National Insurance Co. Ltd., 548 G. T. Road, Bhangakuthi, Kundu Mansion, 1st Floor, PO., PS. & Dist: Burdwan, PIN – 713 101.
2. National Insurance Co. Ltd., Regd. Office P.O. Box – 9229, 3 Middleton Street, Kolkata – 700 071, represented by Divisional Manager.
Present: Hon’ble President: Sri Asoke Kumar Mandal.
Hon’ble Member: Smt. Silpi Majumder.
Hon’ble Member: Sri Pankaj Kumar Sinha.
Appeared for the Complainant: Ld. Advocate, Ali Imam Shah.
Appeared for the Opposite Party (s): Ld. Advocate, Shyamal Kr. Ganguli.
J U D G E M E N T
This complaint is filed by the Complainant u/S. 12 of the Consumer Protection Act, 1986 alleging deficiency in service, as well as, unfair trade practice against the OPs as the OPs have repudiated its legitimate insurance claim as ‘No claim’ whimsically, illegally and arbitrarily.
The brief fact of the case of the Complainant is that being the partners of their Firm Complainant with a view to obtain an insurance policy submitted the proposal form to the OP-2 and after acceptance of the same an insurance policy was issued extending the coverage for the risk of Rice Mill (Building, Chimney, P & M Stock of paddy, Rice, Rice bran, Broken Rice, Gunny bag for earthquake (fire and shock) for which premium was paid to the tune of Rs.68,764=00 and the policy was valid for the period from 10.02.2015 to midnight of 09.02.2016. In the said policy the value of Rice Mill building including building, chimney etc was covered for Rs.80,00,000=00, plant, machinery & accessories including P & M for Rs.40,00,000=00 and stock of paddy, rice, broken rice etc was covered for Rs.2 crores. The OP-1 and 2 after assessing the value of the plant, machinery, stock in trade have assessed above value and based on which the insured paid the amount of Rs.68,764=00 on 08.02.2015 as assured premium for standard fire and special package. Unfortunately while on operation on 07.02.2016 at about 9 a.m. fire broke out at dryer when about 450 bags of paddy were under heating treatment. In fact it was noticed that huge flames with smoke was coming out from the dryer and one of the partners was informed by the mechanic who was engaged on duty at the said dryer at that time. The partner immediate rushed at the spot and noted that fire broke out and huge smoke was coming from the dryer and instantly ordered for stop of operation of dryer with disconnection of machine. Thereafter with the help of the employees and laborers water and gas was sprayed to subside the fire but found that there was no sign of complete subsiding of fire and accordingly information was given to the Department of Fire Brigade for rescue operation. The fire brigade official with their vehicle and equipments tried to control the fire and after doing hard work the fire the fire was controlled after two hours of operation. They advised to remove burnt paddy which was inside the dryer to stop fire completely. One of the partners of the firm lodged one GD, which was registered as no-506 dated 08.02.2016 at Bhatar Police Station. The OP-1 was also intimated about the incident of fire occurred on 07.02.2016 and consequential loss of about 10-12 lacs arising out of destruction of 900 bags of paddy and burning of substantial quantity. In the said letter it was also requested to depute the investigator to take stock of the 900 bags of paddy which was kept under water tank as a part of process and may fermented if the same were still kept in the tank for a longer period. On 08.02.2016 the OP-1 deputed Mr. Bhaskar Sen, the licensed loss assessor/surveyor for assessing the damages due to fire. The surveyor surveyed the magnitude of loss by way of his personal visits and verification in presence of the partners of the firm. The surveyor directed to submit the claim form along with repairing estimate, photograph, FIR, FB report, newspaper cutting, list of damage of the items mentioning its value, statement of the witness about the occurrence, stock statement before and after broke out of fire, balance sheet & P/L for last three years, pollution certificate, bank loan certificate, bank stock statement between 01.04.2015 to 31.01.2016. The claim was lodged by the Complainant in the prescribed fire claim form provided by the OP-1 stating the detail of loss and damage along with estimated repairing charges, labour charges of the dryer together with wastage of stock of paddy of 400 bags and total claim lodged was for Rs.10, 79,883=00. The required documents as mentioned before were submitted along with the claim form including the certificate issued by the officer-in-Charge of the Department of Fire Brigade, West Bengal. The partners of the firm received a letter dated 31.05.2016 from the OP-1 and came to know that the claim has been repudiated by the Insurance Company due to policy exclusion clause as ‘No Claim’. In the said letter it was mentioned that the loss of paddy occurred while the paddy was undergoing heating and drying process and due to malfunctioning of dryer caused due to overheating with high temperature have consequently burnt out the paddy inside the dryer. Upon receipt of the said repudiation letter finding no other alternative the Complainant approached to the Assistant Director, CA & FBP, Burdwan and submitted a letter on 12.07.2016, which was received by the said Department. As the grievance of the Complainant had not been redressed, hence being compelled the Complainant has approached before this Ld. Forum by filing this complaint praying for direction upon the OPs to pay a sum of Rs.12, 00,000=00 towards damage caused due the fire in the firm, Rs.2, 00,000=00 as compensation due to mental agony, pain, harassment and loss of business and litigation cost of Rs.40, 000=00 to the Complainant.
The petition of complaint have been challenged by the OP-1 & 2 by filing written version stating that the complaint is not maintainable before this Ld. Forum and repudiation of the claim was done properly, legally as per the exclusion clause as mentioned in the concerned policy. As the information of repudiation of the claim was duly intimated to the Complainant by issuing letter, hence repudiation of any claim cannot be termed as deficiency in service as well as unfair trade practice on their behalf. At the time of issuance of the policy as the Complainant as well as the Insurance Company adopted the terms and the conditions of the subject policy and put their signatures, hence neither the Complainant nor the OPs can travel beyond the said terms and the conditions of the policy. According to the OPs as there is no deficiency in service and unfair trade practice on their part, the Complainant is not entitled to get any relief as sought for and prayer is made by the OPs for dismissal of the complaint with exemplary cost.
The Complainant has adduced evidence on affidavit along with some documents in support of its contention. The Ld. Counsel for the OPs has placed reliance on the recent judgment passed by the Hon’ble NCDRC in the case of AMBRISH KUMAR SHUKLA & 21 Others Vs. FERROUS INFRASTRUCTURE Private. Limited, dated, 07 Oct 2016 during advancing argument.
We have carefully perused the record; documents filed by the complainant, insurance policy and the ruling as relied on by the Ops and heard argument at length advanced by the ld. counsels for the contesting parties. It is seen by us that admittedly the complainant being the partner of a firm obtained an insurance policy covering the risk for rice mill (building, chimney,P&M, stock of paddy, rice, rice bran, broken rice, gunny bag for earthquake (fire and shock) ) for which premium amount was paid to the tune of Rs. 68,764=00 for the period from 10.02.2015 to 09.02.2016. It is also stated by the complainant in the petition of complaint (para 4) that as per the policy the value of rice mill building including building chimney etc. was covered for Rs. 80,00,000=00, plant machinery and accessories including P&M for Rs. 40,00,000=00 and stock of paddy rice, broken rice etc. was covered for two crore. The ld. Counsel for the Ops have stated that as the cost of the service of the complainant has exceeded the pecuniary jurisdiction of this ld. Forum hence, the complaint is not maintainable before this ld. Forum. It is seen by us from the photocopy of the policy that admittedly the cost of the service is involved in this case for Rs. 80,00,000 + Rs. 40,00,000 + 2 crore. It is needles to mention that admittedly the above-mentioned total amount will exceed the pecuniary jurisdiction of this ld. Forum. Upon careful perusal of the recent judgment passed by the Hon’ble larger Bench of NCDRC it is seen by us that in the case of AMBRISH KUMAR SHUKLA & 21 Others Vs. FERROUS INFRASTRUCTURE Private. Limited, dated: 07 Oct 2016, wherein it is mentioned that the order dated 11.08.2016, passed in First Appeal No. 166 of 2016, First Appeal No. 504 of 2016 and First Appeal No. 505 of 2016, the following issues were referred, by a single Member Bench of this Commission to the larger Bench:
(i) In a situation, where the possession of a housing unit has already been delivered to the complainants and may be, sale deeds etc. also executed, but some deficiencies are pointed out in the construction/ development of the property, whether the pecuniary jurisdiction is to be determined, taking the value of such property as a whole, OR the extent of deficiency alleged is to be considered for the purpose of determining such pecuniary jurisdiction.
(ii) ……………………………………
(iii)…………………………………… etc.
The Hon’ble Commission has been held that ‘It is evident from a bare perusal of Sections 21, 17 and 11 of the Consumer Protection Act that it’s the value of the goods or services and the compensation, if any, claimed which determines the pecuniary jurisdiction of the Consumer Forum. The Act does not envisaged determination of the pecuniary jurisdiction based upon the cost of removing the deficiencies in the goods purchased or the services to be rendered to the consumer. Therefore, the cost of removing the defects or deficiencies in the goods or the services would have no bearing on the determination of the pecuniary jurisdiction. If the aggregate of the value of the goods purchased or the services hired or availed of by a consumer, when added to the compensation, if any, claimed in the complaint by him, exceeds Rs. 1.00 crore, it is this Commission alone which would have the pecuniary jurisdiction to entertain the complaint. For instance if a person purchases a machine for more than Rs.1.00 crore, a manufacturing defect is found in the machine and the cost of removing the said defect is Rs.10.00 lacs, it is the aggregate of the sale consideration paid by the consumer for the machine and compensation, if any, claimed in the complaint which would determine the pecuniary jurisdiction of the Consumer Forum. Similarly, if for instance, a house is sold for more than Rs.1.00 crore, certain defects are found in the house, and the cost of removing those defects is Rs.5.00 lacs, the complaint would have to be filed before this Commission, the value of the services itself being more than Rs.1.00 crore.
Having regard to the abovementioned judgment we are of the view that as the total cost of the plot of the Complainants and total compensation as sought for by them has crossed the pecuniary jurisdiction of this Ld. Forum, hence, it is
O r d e r e d
that the Consumer Complaint being no-181/2016 filed by the complainant is hereby dismissed on contest. However considering the facts and circumstances of the complaint there is no order as to cost. The complainants are at liberty to approach before the appropriate court/forum/commission, if not barred otherwise.
Let plain copies of this order be supplied to the parties free of cost as per provisions of law.
(Asoke Kumar Mandal)
Dictated and corrected by me. President
DCDRF, Burdwan
(Silpi Majumder)
Member
DCDRF, Burdwan
(Pankaj Kumar Sinha) (Silpi Majumder)
Member Member
DCDRF, Burdwan DCDRF, Burdwan
