BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT PUDUCHERRY
THURSDAY, the 5th day of May, 2016
FIRST APPPEAL No. 11/2015
G.Sivaranjini, W/o Ganapathy,
Proprietrix of M/s Sarasu Papers,
Anandapuram Road, Ariyur,
Villianur Commune, Puducherry ……… Appellant
Vs.
The Divisional Manager,
United India Insurance Co. Ltd.,
Divisional Office, 46, J.N.Street,
Puducherry. ………. Respondent
(On appeal against the order passed in C.C.No.29/2012, dt.30.04.2015 by District Forum, Puducherry)
C.C.No.29/2012
G.Sivaranjini, W/o Ganapathy,
Proprietrix of M/s Sarasu Papers,
Anandapuram Road, Ariyur,
Villianur Commune, Puducherry ……… Complainant
Vs.
The Divisional Manager,
United India Insurance Co. Ltd.,
Divisional Office, 46, J.N.Street,
Puducherry. ………. Opposite Party
BEFORE:
HON’BLE THIRU JUSTICE K.VENKATARAMAN,
PRESIDENT
TMT. K.K.RITHA,
MEMBER
THIRU.S.TIROUGNANASSAMBANDANE,
MEMBER
FOR THE APPELLANT:
Tvl.G.Murugaiyan & S.Pragash,
Advocates, Puducherry.
FOR THE RESPONDENT:
Thiru K.Ravikumar,
Advocate, Puducherry.
O R D E R
(By Hon'ble Justice President)
This appeal is directed against the order passed by the District Consumer Disputes Redressal Forum, Puducherry in consumer complaint No.29/2012 on 30.04.2015.
2. The complainant therein is the appellant and the opposite party therein is the respondent in this appeal.
3. The parties are referred to in the same position in the District Forum.
4. The case of the complainant before the District Forum, in nutshell, is stated hereunder:
The complainant is the proprietrix of M/s Sarasu Papers, manufacturer of Mill Boards and started manufacturing business from 23.03.2011. She has taken a Standard Fire and Special Perils Policy from the opposite party insurance company on 10.06.2010 for a total value of Rs.25,00,000/-. Later, she had renewed the policy for another one year from 10.06.2011 for the same amount. Due to Thane cyclone, the complainant's unit was completely damaged and the entire stock, building, machinery with motors and furniture were uprooted. Immediately she informed about the damage to the opposite party insurance company. A surveyor of the opposite party visited the complainant's factory on 02.01.2012. She submitted the claim form to the opposite party. Though she has been assured that due amount will be paid to her for the damage caused due to Thane cyclone, the opposite party came forward to settle only Rs.1,62,997/-. Since it was a meager amount, she refused to receive the same. She has caused a lawyer's notice on 7.4.2012 calling upon the opposite party to pay the actual loss incurred by her. However, the opposite party neither replied the same nor paid the amount claimed. Hence, the complainant preferred complaint before the District Forum.
5. The reply version has been filed by the opposite party and the same, in nutshell, is stated hereunder:
The complainant had filed the claim petition on 12.02.2012 for a sum of Rs.11,00,000/- with some documents. On 03.01.2012, survey has been conducted by OR KAY EE Associates and the report was submitted on 23.03.2012 assessing the loss sustained to the building at Rs.1,72,868/- and the loss sustained by the finished goods at Rs.51,200/-. As per the assessment of the surveyer, the actual value of the building was Rs.12,50,000/- and the complainant wantonly under-insured the building at Rs. 10,00,000/-. 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. In the same manner, the average stock of finished goods maintained by the record was Rs.3,06,955/-, but, the complainant wantonly insured the finished goods at Rs.2,00,000/-. After applying the correct position, the liability was fixed and the amount was offered, but the complainant though originally was willing to receive the same, failed to come forward to receive the said amount. Thus, the opposite party sought for the dismissal of the complaint.
6. On the side of the complainant, the complainant examined herself as CW1 and documents Exs.C1 to C20 were marked on her side. On behalf of opposite parties, the Senior Manager Mr.Anbalagan was examined as RW1 and Exs.R1 to R6 were marked. One Mr.R.K.Elango was examined as RW2.
7. Three points were framed by the District Forum. They were:
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. On point No.1, the District Forum found that the complainant is a consumer to the opposite party as per the Consumer Protection Act, 1986. On point No.2, it has been found that the amount offered by the opposite party is fair and there is no deficiency in service on the part of opposite party. On point No.3, the District Forum found that the complaint is liable to be dismissed and accordingly dismissed the same.
9. As stated already, challenging the said order, the present appeal is laid.
10. The District Forum mainly found that the documents relied on by the complainant, namely Exs.C12 to 18, are not supported by any evidence. That apart, the District Forum found that the complainant did not examine the author of the documents Exs.C4 and C5. Thus, the District Forum held that the non-examination of relevant witnesses is fatal to the case of the complainant and opined that the loss sustained by the complainant has not been proved. Perhaps that is the reason made the complainant to file the application in M.P.No.59/2015 before this Commission seeking permission to adduce additional evidence before this Commission. In the application, the complainant sought for examination of the following witnesses, namely,
1. Managing Director, PIPDIC, Romain Rolland Street, Puducherry
2. The Proprietor, Victory Steel Agencies, No.39, villaga Street, Sathuma
Nagar, Kaladipet, Chennai.
3. The Proprietor, PKP Engineering Works, No.364, Vazhudavour Road,
Shanmugapuram, Puducherry – 605 009.
4. The Proprietor, Ragul Pipes and Sheet Mart, Shop No.2, Pondy Main
Road, Villianaur, Puducherry – 110.
5. The Proprietor, Udhayam Heavy Electricals, No.84, Pondy-Villupuram
Main Road, Ariyur, Puducherry.
11. The said application was allowed on 19.11.2015. Thereafter, one Mr.Kannan, the Proprietor of PKP Engineering Works was examined and the counsel for the opposite party cross-examined him. He spoke about Exs.C13 and C14, which were marked before the District Forum. However, his evidence is not helping the case of the complainant. On a specific question in the cross-examination by learned counsel for O.P, he has stated he has not brought any file or document to show that he is the proprietor of PKP Engineering Works. He has also stated as follows:
"……Ex.C13 is in the letter head of PKP Engineering Works and Ex.C14 is the cash bill of PKP Engineering Works. It is correct to state that we will hand over the original cash bill to the concerned person and we will keep the office copy. No copy has been taken for Ex.C13. I had not brought any documents pertaining to Exs.C13 and C14."
12. The above evidence of Mr.Kannan, makes us to feel that his evidence is not cogent and helpful to the complainant. Another witness namely, Palanivel was examined on the side of complainant as CW2, but he has not brought any document to prove Ex.C16. However, his evidence also does not help the case of the complainant. In his cross-examination, he has stated
"….I have not filed any documents to show that I am the proprietor of Udhayam Heavy Electricals. The witness adds that he is having visiting card and he has given the cash receipt Ex.C16. Ex.C16 does not contain my name. However, it contains my mobile number. It is not correct to state that the cell number found in Ex.C16 is not mine. In Ex.C16, there is nothing to show about the purchase of any materials by me. As far as Ex.C16 is concerned a copy is with me but I have not brought the copy to-day. I have not got any bills to show that I have purchased any materials for repairing the motors of appellant. Below the name of the appellant, the columns have not been filled up by me."
13. The above evidence of Mr.Palanivel, as stated already, does not help the complainant. As far as the other witnesses cited by the complainant in his application is concerned, either they have not responded to the notice or the complainant has not taken necessary steps to summon them.
14. In view of the above stated position, we are of the view that the complainant did not let in any evidence regarding the loss sustained by her.
15. However, the District Forum in para 17 of its order has held that in the absence of any material and cogent evidence of the complainant, it is not able to ascertain the damage with the exhibits filed by the complainant. It has further held that the opposite party has established its case vide Ex.R1 and that the damage was assessed as per the policy conditions and as per the All India Fire Tariff, Special Condition No.9 and thus found that the loss of damage assessed by the opposite party as Rs.1,62,941/- is just and reasonable. But, however, we are of the view that the District Forum did not consider the plea that has been taken by the complainant that she has taken a Standard Fire and Special Perils Policy also with the opposite party for a total value of Rs.25,00,000/- (Rs.10,00,000/- for value of the building; Rs.10,00,000/- towards plant and machinery and accessories; Rs.2,00,000/- for furniture and fixtures; Rs.50,000/- for stocks of raw materials; Rs.50,000/- for semi-finished goods and Rs.2,00,000/- for finished goods) and paid a premium of Rs.2,096/- and that has to be taken into account while assessing the damage. No doubt, it is contested on behalf of the opposite party that the actual value of the building was Rs.12,50,000/- and the complainant wantonly under-insured the building at Rs.10,00,000/-. Even in respect of stocks maintained by the company, it is stated that though the average stock of finished goods maintained by the Company was at Rs.3,06,955/-, the company wantonly insured the finished goods at Rs.2,00,000/- and hence 68% of the loss sustained to the finished goods is to be compensated. Therefore, it is contended on behalf of the opposite party that as per the policy conditions and as per the All India Fire Tariff, Special Condition 9, only 80% of loss sustained to the building and 68% of loss sustained to the finished goods has to be compensated by the opposite party. Therefore, the District Forum held that the compensation sought to be given by the opposite party to the complainant, namely, 1,62,941/- is just and reasonable compensation.
16. In our considered view, the District Forum has not concentrated on the following points, namely;-
a) Admittedly, the complainant has taken the policy for a total value of Rs.25,00,000/-, out of which, the building was valued at Rs.10,00,000/- and stocks was valued at Rs.2,00,000/-. When the complainant has stated so and has taken the policy and paid premium for the same, it is the duty of the opposite party to ascertain before entertaining the policy whether the statement stated by the complainant for taking the policy is correct. It is an admitted case that the opposite party failed to do so. RW1 one Mr.Anbazagane, Sr.Assistant of opposite party insurance company has stated as follows:
"The complainant has taken two policies from our company during the year 2010 and 2011 for the value of Rs.25,00,000/- each. Based upon the proposal form given by the complainant, we have issued policy. We have not visited the factory premises of the complainant before issuance of the policy. We have not verified the total value arrived by the complainant for issuance of the policy and we have not visited the factory premises for any personal verification and the value is declared value by the complainant. "
Thus, the opposite party accepted the value given by the complainant and allowed her to take the policy without even visiting the factory premises of the complainant before issuance of the policy. Therefore, it is too late for the opposite party to say that the complainant has assessed the value of the land and stocks for a lesser amount.
b) A lawyer's notice was issued on behalf of the complainant on 07.04.2012, as could be seen under Ex.C19. However, the reply was given by the opposite party only on 25.07.2012 under Ex.R2, after the complainant filed the complaint before District Forum. No reason has been assigned on behalf of the opposite party why the reply has been sent so belatedly.
c) It is to be seen that the complainant had given the claim form on 12.01.2012, but it is stated that the surveyor visited the factory premises on 03.01.2012 itself. RW2 one Mr.Elango, whose report was relied on by the opposite party, has stated in the cross-examination that on 02.01.2012 he received information from the opposite party and that he has visited the site on 03.01.2012. He further adds that he received relevant papers with regard to survey only from the complainant. It creates a doubt in our mind that when the complainant herself has given the claim form on 12.01.2012 with relevant documents, how the surveyor would have visited the premises on 03.01.2012 and that too with all the documents said to be furnished by the complainant. Further more, it has to be seen that RW1, the Senior Assistant of Opposite Party has stated that he do not know the date of intimation given by the complainant to the company.
d) The surveyor in his evidence has stated that he has not enclosed any separate record for the assessment of the building and valuing of the factory premises of the complainant at Rs.12,50,000/-. He has further added that he has not enclosed any guideline register for the assessment of the building at market value. This shows that the valuation of the building at Rs.12,50,000/- is without any basis.
e) The judgment cited by learned counsel appearing for the complainant in "2009 SAR (Civil) 784 in the case New India Assurance Co.Ltd Vs. Pradeep Kumar" clearly applicable to the facts of the case on hand. In the said judgment Their Lordships have held that assessment of loss of the surveyor is not the last and final word.
f) The judgments cited by learned counsel appearing for the opposite party are not at all relevant for the purpose of this case.
17. Thus, considering the over all discussions made above, we are of the view that though the opposite party's assessed the damage caused to the complainant's factory in a manner known to law, as far as the value of the building and stocks are concerned, the opposite party's contention that it has been valued lesser, cannot be accepted. In our considered view, the opposite party failed to establish those aspects in a manner known to law, as discussed above. Considering the same, we are of the view that the opposite party has to calculate the loss on the basis of the value of the building shown by the complainant while taking the policy and also for the value of the stock shown by her in the policy and thereafter assess the loss on the basis of the same and disburse the amount to the complainant within one month the date of receipt of this order.
18. Though it is stated that the opposite party was prepared to pay the complainant a sum of Rs.1,62,941/- for the loss sustained to the building and a sum of Rs.51,200/- for the loss sustained to the finished goods and made the cheque ready, it has not disbursed the same to the complainant even after the notice issued by her and even while sending reply to the complainant. Therefore, for the said amount, the opposite party has to pay interest at 12% p.a. from 07.04.2012, the date of issuance of notice by the complainant under Ex.C19. That apart, the opposite party has to pay interest at 12% p.a. for the amount to be arrived at by the opposite party as set out in Para 17 of our order and interest shall be payable from the date of complainant, namely, from 16.05.2012 within one month from the date of receipt of this order.
Dated this the 5th day of May, 2016
(Justice. K.VENKATARAMAN)
PRESIDENT
(K.K.RITHA)
MEMBER
(S.TIROUGNANASSAMBANDANE)
MEMBER
LIST OF APPELLANT'S WITNESSES:
1. CW1 – Mr.Kannan, Proprietor of PKP Engineering Works, Puducherry
2. CW2 – Mr.Palanivel, Proprietor of Udhayam Heavy Electricals Ltd., Ariyur
LIST OF APPELLANT'S EXHIBITS: -NIL-
LIST OF RESPONDENT'S WITNESSES: -NIL
LIST OF RESPONDENT'S EXHIBITS: -NIL-
(Justice. K.VENKATARAMAN)
PRESIDENT
(K.K.RITHA)
MEMBER
(S.TIROUGNANASSAMBANDANE)
MEMBER
