BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PONDICHERRY

C.C.No.29/2012

Dated this the 30^th day of April 2015.

G. Sivaranjini, W/o.Ganapathy

Proprietrix of M/s.Sarasu Papers

R.S.No.5/2, Ayyanar Koil Street,

Anandhapuram Road, Ariyur,

Villianur Commune, Puducherry.                                                 ….       Complainant

Vs.

The Divisional Manager,

United India Insurance Co. Ltd.,

Divisional Office

No.46, Nehru Street, Puducherry-605 001.                                 ….     Opposite Party

BEFORE:

            THIRU.A.ASOKAN, B.A., B.L.,

            PRESIDENT 

Tmt. PVR. DHANALAKSHMI, B.A.,B.L.,

           MEMBER

FOR THE COMPLAINANT                     :  Thiru.G.Murugaiyan, Advocate.

FOR THE OPPOSITE PARTIES             :  Thiru.K.Ravikumar, Advocate.

O R  D  E  R

(By Thiru.A.ASOKAN, President)

This is a complaint filed by the complainant under section 12 of the Consumer Protection Act, 1986 praying to:

1. Grant compensation for a sum of Rs.11,00,000/- (Rupees eleven lakhs only) towards the actual loss incurred by the complainant in her manufacturing unit as per the claim form submitted by the complainant to the opposite party.
2. Direct the opposite party to pay compensation for a sum of Rs.1,00,000/- (Rupees one lakh only) towards negligent act and deficiency of service by the opposite party.
3. Direct the opposite party to pay a sum of Rs.25,000/- (Rupees twenty five thousand only) towards the litigation cost.
4. Pass such other orders as this Forum may deems fit and proper in the interest of justice.

2.  The case of the complainant is as follows:

            The complainant is the proprietrix of M/s.Sarasu Papers Manufacturer of Mill Boards and started manufacturing business from 22.03.2011. She availed a loan from the Pondicherry Industrial Promotion Development and Investment Ltd. (PIPDIC) and also registered with District Industries and Commerce and received licence under registration for running the unit.   She has taken a Standard Fire and Special Perils Policy in the opposite party company for the first time on 10.06.2010 to midnight 09.06.2011 vide policy no.011700/11/10/11/00000125 for the total value of Rs.25,00,000/- (Building –Rs.10,00,000, Plant/Machinery and Accessory-Rs10,00,000/- Furniture & Fixtures-Rs.2,00,000/-, stocks and raw materials -Rs.50,000/- stocks of semi finished goods Rs.50,000/-, stocks of finished goods Rs.2,00,000/-).  Subsequently, the complainant has renewed the policy for the period from 10.06.2011 to 09.06.2012 under policy no.011700/11/11/11/00000131 for the same amount of Rs.25,00,000/- and paid premium amount of Rs.2096/-.  Whileso, due the "Thane" cyclone hit in Puducherry on 30.12.2011, the complainants unit was completely damaged and the entire stocks, building, machinery with motors and furniture were uprooted and immediately the complainant informed the damages to the opposite party and the surveyor from the opposite party company visited the complainant's factory on 02.01.2012, took photographs and assessed the damages.  The complainant visited the opposite party company on 04.01.2012 and received a claim form for fire allied perils and submitted the claim form on 12.01.2012 alongwith necessary enclosures.

2.         It is further submitted that the complainant's total loss as per the statement of accounts furnished to a tune of Rs.11,00,000/- and the opposite party company assured to dispersed the claim amount after receipt of surveyor's report.  The complainant closed down the business from 30.12.2011 and resumed the manufacturing only from 25.03.2012. During the closure of business the complainant sustained heavy loss to a tune of Rs.4,50,000/- and to meet out the loss and expense, the complainant had already indebted more than Rs.5 lakhs and the complainant spent nearly Rs.8 lakhs towards repairing of machineries, re-roofing and for replacement of machineries and other building material.   The complainant was called by the opposite party on 02.04.2012 for disbursement of claim amount in respect of policy No.011700/11/11/11/00000131 and the complainant came to know that only a sum of Rs.1,62,997/- was sanctioned.  When the complainant enquired about such low amount was sanctioned, the opposite party staff shouted at the complainant and directed her to receive the cheque for a sum of Rs.1,62,997/-.   The above said amount sanctioned to the complainant is very meager and the same will not compensate the complainant to the extent of actual loss sustained by her.  The complainant was constrained to send a lawyer's notice on 07.04.2012 calling upon the opposite party to come forward to pay the actual loss incurred by her.  Though the lawyer notice was received by the opposite party, it has neither chosen to reply nor to pay the actual claim amount. Hence this complaint.

3.         The reply version of the opposite party being is as follows:

            The opposite party denies all the averments narrated in the complaint except those that are specifically admitted in the reply version.  The complainant had obtained a Standard Fire and Special Perils Policy No.011700/11/11/11/00000131, insuring the building in M/s.Sarasu Papers, R.S.No.5/2, Ayyanar Koil Street, Anandapuram Road, Ariyur, Villianur, Puducherry for Rs.10,00,000/- for a period from 10.06.2011 to 09.06.2012.  On 12.01.2012, the complainant had filed claim form  for Rs.11,00,000/- alongwith relevant documents. On 03.01.2012, survey had been conducted by OR KAY EE Associates and submitted its report on 23.03.2012 assessing the loss sustained by the building at Rs.1,72,868/- and the loss sustained by the finished goods at Rs.51,200/-.

4.         As per the policy conditions and as per the All India Fire Tariff, Special Condition No.9, it is provided that 'if the property hereby insured shall at the time of the operation of a peril insured hereunder, be collectively of greater value that the sum insured thereof, then the insured shall be considered as being his own insurer for the difference and shall bear a rateable proportion of the loss accordingly.  Every time, if more than one, of the policy shall be separately subject to this condition'.  As per the assessment of the surveyor, the actual value of the building was Rs.12,50,000/- and the complainant had wantonly under insured the building at Rs.10,00,000/-.  As per the All India Fire Tariff, special condition 9, only 80% of the loss sustained by the building is to be compensated by the opposite party.  In the same manner, the average stock of finished goods maintained by the record was Rs.3,06,955 but the complainant had wantonly insured the finished goods at Rs.2,00,000/- (68%).   After applying the Under Insurance Quotient of 0.80 on the building, assessed the liability at Rs.1,38,294/- and after applying the Under insurance Quotient of 0.68 on the finished goods, assessed the liability at Rs.34,681/-.  And after reducing the compulsory excess of Rs.10,000/- computed the liability at Rs.1,62,975/- and reduced Rs.34/- towards reinstatement value premium for the rest of the period of insurance and fixed the liability at Rs.1,62,941/-. 

5.         On 30.03.2012, the opposite party was ready to settle the claim and the complainant had agreed to receive the said amount.  The complainant's representative had received the voucher.  After issue of settlement voucher, the opposite party had prepared an Indusind Bank Cheque No.481115 for Rs.1,62,941/- but the complainant had not come forward to receive the said cheque. On 07.04.2012, the complainant issued a legal notice and the same was replied by the opposite by reply notice dated 25.07.2012. This opposite party had properly calculated the compensation as per the policy terms and conditions and the special condition of the All India Fire Tariff and the assessment of the surveyor.  There is no fault on the part of the opposite party in assessing the loss and there was no deficiency on the part of the opposite party. Hence, prayed to dismiss the complaint with cost.

6          On the side of the complainant, she has chosen to examine himself as PW.1 and marked Exs.C1 to C20.  On the side of the opposite party, One Anbazagane, Senior Assistant has been examined as RW.1 and Exs.R1 to R6 marked and R.K.Elango has been examined as RW.2.

7.         Points for determination are:

1. Whether the complainant is the consumer
2. Whether any deficiency in service and unfair trade practice attributed by the opposite party
3. To what relief the complainant is entitled for

8.         Point No.1:

            The complainant availed service from the opposite party by taking policy vide Ex.C7 dated 09.06.2011 and paid premium of Rs.2,096/- vide Ex.C8 dated 09.06.2011.  Hence the complainant is the consumer to the opposite parties as per Consumer Protection Act.

9.         Point No.2:

            We have perused the pleadings, reply, exhibits filed by both the parties, evidence adduced by both the parties and written argument filed by the complainant.  From the records and evidence, there is no dispute that the complainant is the insured. 

10.       The submission of the complainant is that she is running Board manufacturing mill and hence taken a Standard Fire and Special Perils policy from the opposite party for the first time from 10.06.2010 to 09.06.2011 for the value of Rs.25,00,000/-.  The complainant renewed the said policy from 09.06.2011 to 09.06.2012 under Ex.C7 for the sum of Rs.25,00,000/- and paid Rs.2096/- as premium.

11.       The complainant further pleaded that the manufacturing mill was completely damaged during the "Thane" cyclone hit in Pondicherry on 30.12.2011.  The complainant submits that she had informed the damages to the opposite party and the surveyor from the opposite party company visited the mill on 02.01.2012 and took the photos and assessed the damages in person and directed the complainant to submit the claim form with the opposite party.  The complainant filed the claim form Ex.C11 to the opposite party on 12.01.2012 with relevant records and claimed to the tune of Rs.11,00,000/-.  The averment of the complainant is that she had closed her mill from 30.12.2011 and resumed the factory only from 25.03.2012.

12.       The further allegation of the complainant is that the opposite party has sanctioned only a sum of Rs.1,62,997/- and prepared to disburse the amount and she expressed her unwillingness to receive the same.

13.       The opposite party has submitted that on 03.01.2012 conducted survey by its surveyor OR KAY EE Associates and the surveyor had submitted a report on 23.03.2012 assessing the loss sustained by the building at Rs.1,72,868/- and the loss sustained by the finished goods at Rs.51,200/-.   As per the policy conditions and as per the All India Fire Tariff, Special Condition No.9, it is provided that if the property hereby insured shall at the time of the operation of a peril insured hereunder, a collectively of greater value that the sum insured thereof, then the insured shall be considered as being his own insurer for the difference and shall bear a rateable proportion of the loss accordingly.  Every item, if more than one, of the policy shall be separately subject to this condition.

14.       It is further submitted by the opposite party that as per the assessment of the surveyor the actual value of the building was Rs.12,50,000/- and the complainant had wantonly under insured the building at Rs.10,00,000/-, thereby insuring only 80% of the building.  Hence as per the policy conditions and as per the All India Fire Tariff, Special Condition No.9, only 80% of the loss sustained by the building is to be compensated by the opposite party.  As per the stock register submitted by the complainant for the period from 01.04.2011 to 29.12.2011, the average stock of finished goods maintained by the complainant Rs.3,06,955/- and the complainant had wantonly under insured the finished goods at Rs.2,00,000/-, thereby insuring only 68% of the finished goods.  Hence as per the policy conditions and as per the All India Fire Tariff, Special Condition No.9, only 68% of the loss sustained by the building is to be compensated by the opposite party.  After applying the Under Insurance Quotient of 0.80 on the building, assessed the liability at Rs.1,38,294/- and after applying the Under Insurance Quotient of 0.68 on the finished goods, assessed the liability at Rs.34,681/-.  After reducing the compulsory excess of Rs.10,000/- computed the liability at Rs.1,62,975/- and reduced Rs.34/- towards reinstatement value premium for the rest of the period of insurance and fixed the liability at Rs.1,62,941/-. 

15.       The opposite party further submitted that it was ready to settle the claim amount for an amount of Rs.1,62,941/- on 30.03.2012 and informed the same to the complainant.  The complainant had agreed to receive the said amount of Rs.1,62,941/- and had deputed a representative to get the voucher form the opposite party and the said representative had received the voucher.  After the issue of the settlement voucher, the opposite party had prepared an Indusind Bank Cheque No.481115 dated Rs.1,62,941/- and was waiting for the complainant to receive the same.  Instead of receiving the cheque, the complainant had issued a legal notice on 07.04.2012, for which this opposite party issued reply notice on 25.07.2012 stating that there is no fault on the part of the opposite party.  Compensation had been calculated as per the policy terms and conditions and special condition of the All India Fire Tariff and the assessment of the surveyor, who is an independent person approved by IRDA and there was no deficiency in service on the part of the opposite party.

16.       From the above facts it is clear that the complainant had under insured the value.  The documents relied by the complainant, the Exs.C12 to C18 are not supported by any evidence.  The complainant did not examine the author of the documents Exs.C4 and C5.  The Ex.C12 to C18 are obtained after the surveyor report the Ex.R1.  The Exs.C12 to C18 were marked with objection raised by the opposite party.  The complainant did not examine any witnesses to establish the genuinety of the Exs.C3, C4 and C5.  Moreover the Ex.C3 does not having any date.  Exs.C4 and C5 also prepared after the visit of the surveyor.  The complainant filed the bills for the renovation work.  The opposite party has assessed the actual damages caused to the industry and calculated as per the terms and conditions agreed by the parties.  The complainant did not examine any independent expert to give evidence regarding the loss sustained by her.

17.       In the absence of any material and cogent evidence of the complainant this Forum is unable to ascertain the damages with the exhibits filed by the complainant, which is objected by the opposite party.  The opposite party has established their case vide Ex.R1 and calculated as per the policy condition and as per the All India Fire Tariff, Special condition No.9 and assessed the loss and damages of the industry and the liability of the opposite party as Rs,1,62,941/-.  The opposite party prepared to issue the settlement voucher and the cheque no.481115 of Indusind Bank Ex.R5.  The opposite party has clearly stated that it had properly calculated the compensation as per the policy terms and conditions and the Special condition of the All India Fire Tariff and as per the assessment of the surveyor, who is an independent person approved by IRDA and had offered to settle the amount.

18.       As per the decisions reported in (i) 2014(1)CPR 166 (NC) – New India Assurance Co. Ltd., Vs. Dr.Gurbaksh Chaudhary. (ii) 2014(3) CPR 557 (NC) – M/s.B.R.Exports through its Partner, Mr.Ravmeet Bagga Vs.United India Insurance Co. Ltd.,  (iii)2014(4) CPR 205 (NC) – Rajendra Singh Yadav Vs.National Insurance Co. Ltd., the surveyor report is final.  The insurance claim should be allowed as per surveyor report.  The report of surveyor is an important document and it should be considered before arriving at a judgment being the report has significant evidentiary value.  Hence there was no deficiency in service on the part of the opposite party.

19.       Point No.3:

            In view of the decision taken in point no.2, this complaint is hereby dismissed. No cost.

Dated this the 30^th day of April 2015.

1. ASOKAN)

PRESIDENT

(PVR. DHANALAKSHMI)

MEMBER

COMPLAINANTS WITNESS:  

CW.1             14.03.2014                Tmt.G.Sivarajani

OPPOSITE PARTY S WITNESS: 

RW.1              21.05.2014                Thiru.N.Anbazagane

RW.2              13.11.2014                Thiru.R.K.Elango

COMPLAINANTS  EXHIBITS:

OPPOSITE PARTY S EXHIBITS: Nil

1. ASOKAN)

PRESIDENT

(PVR. DHANALAKSHMI)

MEMBER