DATE OF FILING: 27.3.2014
DATE OF DISPOSAL: 13.6.2016
Dr. N.Tuna Sahu, Member:
The complainant has filed this complaint under Section 12 of Consumer Protection Act, 1986 alleging deficiency in insurance service against the Opposite Parties (in short, the O.Ps.).
2. Briefly stated the case of the complainant in short is that the complainant has installed a Godown at village Ralaba under Konisi Tahasil in Ganjam district and stored fish feeds, Aqua feeds and medicines such as AMMONIL 500 Grams worth of Rs.81,738/-, AERBEX-5 Grams worth of Rs.23,790/-, 02 Gen. 1 Kg packets worth of Rs.54,120/-, Killer Ag. 5LB worth of Rs.40,700/-, Live food-52 worth of Rs.30,600/-, Pond clun 56 worth of Rs.6000/-, Killer Ag. IL worth of Rs.8250/-, Disinfeet IL Worth of Rs.8,500/- , Qualimin-S- 10 kg packets worth of Rs.21,120/- and soil Recharger 25 kg. Packets worth of Rs.20,075/- in total worth of Rs.3,85,893/-. The entire stock of the godown was insured with the O.P.No.1, the Divisional Manager, United India Insurance Co. Ltd., Berhampur Division, Berhampur under the administrative control of O.P. No.2, the Regional Manager of the said company in insurance vide policy bearing No.260500/11/12/11/00000082 for assured sum of Rs.15,00,000/- for the covering period from 24.5.2012 to 23.5.2013 on payment of Rs.3405/- as premium amount covering the risks of loss of stocks as mentioned above for perils specified in the said policy such as fire, lightening, storm, cyclone, Typhoon, Hurricane, Tornada and inundation, impact damages, subsidence, etc. Unfortunately, in the night hour of 9 & 10/10/2012 the roof of the said stock godown blown away and a portion of asbestos roof broken and fell down with top portion of damaged wall inside the stock room and heavy rain water poured inside the stocks godown of the complainant and the same were completely damaged and destroyed by drenching in rain water on account of the Tarnado and heavy rain occurred during night hour for which the covers of the stock materials found inconsistent and manufacturing dates, expiry dates, batch numbers etc. were destroyed due to effect of drenching in rain water and fall of broken asbestos and other dirty materials from the roof of stock room/ godown where the said insured items were stocked. Soon after the said incident, on 9/10.10.2012 the complainant intimated the said to the O.P.No.1 and lodged the claim loss of Rs.3,85,893/-. The O.P.No.1 appointed Mr. S.B. Choudhury, the surveyor for inspection and assessment of loss. The surveyor inspected the stocks and prepared a report on damage, loss and destructions caused to the said stocks on 31.10.2012 and submitted report to the O.P.No.1. It is also stated that after that the O.P No.1 again appointed final surveyor M/s. N.R. Associates represented by Mr. S.K.Panda who inspected the damaged stocks in the godown at Village Ralaba and collected all the documents like stock register, vouchers in support of purchasing, aqua fish, aqua medicines, aqua feeds, copy of insurance policy, copy of claim application, weather report dated 9.10.2012, certificate issued by Sarapanch, Rangipur Gram Panchayat in support of happening of tornado for settlement of the claim of the complainant. But instead of submitting inspection report by the final surveyor to the O.P.No.1, he used to issue letter for clarification of unwarranted matters with mala fide intention not to settle the legitimate claim of the complainant. It is also contended that the appointment of final surveyor Mr. S.K.Panda was not required as the claim of the complainant is not within the purview of such a huge claim. With an intention not to settle the legal claim of the complainant, he intentionally and deliberately caused him wrongful loss, harassment and frustration. Again on 28.11.2012 the final surveyor Mr. S. K. Panda issued a letter to the complainant to submit documents that was already received by him. The final surveyor asked the complainant to submit a declaration regarding financial assistance if any from any financial institution, financial transaction with bank, sales tax return, income tax return, audited balance sheet for last 2 years etc. Basing on that, the O.P.No.1 also issued a letter on 21.1.2013 to the complainant to furnish said papers. The complainant replied the letter of O.P. No.1 on 9.2.2013 mentioning that he has not taken any kind of loan from any financial institution, so no question of stock statement arises. The trade of the complainant was a seasonal business. The Oriental Bank of Commerce, Berhampur, banker of the complainant was not concerned with his business. It is also stated that the complainant started his business on 3.4.2012 and he has not obtained sales tax registration. The complainant and his firm have not obtained PAN number and no Income Tax return was filed. There was no audited balance sheet maintained by the complainant as the said business is under category of Small Scale Unit, hence no audited balance sheet was required for the firm. Even after receipt of the said compliance letter by O.P.No.1, he did not settle the claim of the complainant, so, the complainant on 10.10.2012, 21.11.2012, 9.2.2013, 23.3.2013 and on 10.7.2013, sent letters to O.Ps requesting to settle his claim. At last, on 16.7.2013, O.P.No.1 issued a letter to the complainant intimating him that his claim was closed as “NO CLAIM”. Therefore, on 2.8.2013 the complainant issued a protest letter to the O.P.No.1 to re-opening and settlement of his claim as early as possible. The O.P. No.1 received the same, but maintained silence. Finding no other alternative the complainant issued legal notice to the O.Ps through his Advocate by registered post on 20.9.2013 to settle the claim of the complainant within 30 days of receipt of the same failing which the complainant take shelter under Consumer Protection law for realization of claim amount with interest, compensation and cost of dispute. However, the O.Ps received said claim notice and maintained silence without settling claim of the complainant. Alleging deficiency in insurance service on the part of the O.Ps the complainant prayed to direct the O.Ps to pay Rs.3,85,893/- towards insured stocks with 12% interest from the date of loss till payment, compensation and cost in the best interest of justice.
3. Upon notice the O.Ps filed written version/written argument through his learned counsel Mr. P.C. Panigrahi. It is stated, the averments made in the petition are all not true and correct. The complainant has to prove the same which are not specifically admitted herein and they are deemed to be denied. The complainant took a policy vide No. 260500/11/12/11/00000082 valid from 24.5.2012 to 23.5.2013 for the stock of his business establishment situated at Ralaba, PO: Rangipur, Via -Berhampur. While the matter stood thus on 10.10.12 the O.P. got a written intimation from the complainant where he stated that on 9/10.10.12 at night hour the stock room roof blown away and heavy rain water inserted inside the stock room on account of Tornado and subsequent heavy rain and all stock got damaged. Some of the stock he has removed at good condition and sold them to minimize the loss. This O.P. after getting such intimation, as per settlement of claim procedure on same day deputed Sri D. B. Choudhury who is under IRDA panel for preliminary survey of loss but not for making their assessment. The said surveyor after conducting the survey submitted their report to this O.P. The surveyor in his report has mentioned that he had been to the insured godown situated at village Nuagaon of Ganjam as identified by the insured. The surveyor personally investigated the matter from local people as well as from neighbor of the godown and found that no such incident of storm/ cyclone on 9/10.10.2012 in Nuagaon village. However, said surveyor found some damaged article amounting to 10% of the aqua feed stored in the godown as per the list prepared in presence of the complainant and the same is duly signed by him. It is also stated that the surveyor after physical investigation and taking into circumstantial evidence has come to conclusion that the claim reported by the insured appears to be suspicious. As per settlement of the claim procedures after deputation of preliminary surveyor, the O.P. deputed M/s NR Associates to assess the alleged damaged property for final survey. The said surveyor contacted the complainant to visit the site for making survey and assessment of loss over telephone. But the insured did not allow the said surveyor to survey and assess the alleged loss. So, the surveyor vide their letter dated 16.10.2012 intimated the fact to this O.Ps with a copy to the complainant. Finally, the surveyor was allowed to conduct survey by the complainant on 31.10.12. The surveyor prior to finalize his report had requested to the complainant to submit relevant documents for finalize the report vide his letter dated 28.11.2011 and 14.1.2013 with a copy to this O.P. After receipt of above letter, this O.P. vide its letter dated 21.1.2013 also requested the complainant to provide necessary papers as desired by the final surveyor with in a stipulated period. The complainant after getting the above letter though submitted some documents but they are not according to requirement of final surveyor. However, this O.P. vide its letter dated 8.3.2013 advised the complainant to directly submit the requirement to the final surveyor by making a copy to them. In the said letter he requested the complainant to submit the original purchase bills at their office for their verification but the complainant did not compile the same. This OP after perusal of the final survey report came to know that the claim lodged by the complainant is purely artificial and created for wrongful gain. In fact, there was no tornado on the day of the alleged incident. The final surveyor in their report has mentioned that there was no tornado as alleged by the insured. It is also contended that the surveyor have opined that except manufacturing and expired date and MRP batch number of the packing all are intact. Further, they have opined that such type of disappearance of the vital information from all the packing will take place only when one is intentionally peeled the particular portion of the labels contains the vital information. Apart from that, the surveyor observed that the insurer did not produce bills and vouchers to establish the genuineness of purchase and its register. After thorough examination of both survey reports pertains to the alleged claim and non compliance of required documents as well as want of report from the statutory authority relating to occurrence of tornado, the O.P. closed the claim as no claim and intimated the same to the insured vide its letter dated 16.7.2013. After getting notice from the Hon’ble Forum and going through the complaint filed by the complainant, this O.P. came to know that the complainant for the first time submitted some bills in support of purchase of alleged stock. In order to confirm the genuine of the said bills, the O.P. through their advocate send a letter along with photocopies of invoice supplied by the complainant to the concern shops mentioned in the alleged invoice by speed post with A.D. But the letters issued to advanced aqua biotechnology and Jagannath Distributor, Bhubaneswar, were returned by postal department with an endorsement that no such address is found. Similarly, Kala Enterprises after received letter issued by the O.P. has given reply through its advocate that no such tax invoice i.e. receipts issued in favour of Anmol Enterprises of Berhampur at any of time. Besides, this O.P. has also deputed its investigator for verification of so called copies of invoice submitted by the complainant. The said investigator after due verification opined that no such shops are exist in the locality mentioned in the so called invoice. From the above fact it is confirmed that the complainant has created fake invoice for purpose of wrongful gain. The O.P. in order to know about occurrence of the alleged tornado/cyclone applied to the concern Block through its investigator Sri Prafulla Nahak under RTI Act. The Welfare Extension officer of Panchayat Samiti of Rangeilunda in its letter dated 20.11.2015 addressed to the PIO, Rangeilunda has informed that no such cycle has been occurred at Rangipur GP during the month of 09/12 and 10/12. Similarly, the letter dated 20.11.2015 of Welfare Extension Officer addressed to the PIO, Rangeilunda and sent to Sri Prafulla Nayak has also been filed. In fact there was no tornado/cyclone as alleged by the complaint. The complainant has also created a Panchayat Certificate. It is also contended that the complainant through a letter dated 4.9.2012 informed to the O.P. that the tornado sustained on 3.9.2012 at about 6.30 P.M. to 7.15 P.M. and subsequent heavy rain water entered to the room, where the stocks kept. But the complainant did not persecute the same as because no such tornado occurred by then. The complainant has played fraud with an intention to grab the public money. There is no truth behind the story of damage of the alleged insured articles on account of the alleged tornado. The learned counsel also contended that the complainant has created the alleged stock register, sales and purchase register by inserting false and fabricated bills and vouchers. Since, this is a case of fraud it requires more investigation and the same can’t be disposed off in summery procedures. Hence, this Forum has got no jurisdiction to dispose of the case. The complainant has to approach to the Civil Court to establish his claim. Therefore the O.Ps prays to dismiss the complaint with exemplary cost.
4. On the date of final hearing of the consumer dispute, we heard the argument at length from the learned counsel for the complainant as well as for the O.P. We have also gone through the case record and perused the complaint of the complainant, written argument filed by both parties and verified the vital documents like policy document, claim form submitted to O.P., report of the surveyors, weather report, report of the Sarapanch, Rangipur Gram Panchayat, reply letter submitted to the O.P. and details of claim for damages submitted by the learned counsel for the complainant. We have also verified the materials placed in the case record submitted by the learned counsel for the O.P. such as, preliminary survey report, survey report by second surveyor, bills of advanced Aqua Biotechnology, the associated scientific company, Kala Enterprises, Jaganath distributors, cyclone report of P.S, Rangeilunda etc. obtained through R.T.I.
5. On merit, it is not in dispute that the complainant procured an insurance policy from O.P. bearing No. 260500/11/12/11/00000082 covering risk for standard fire and special perils. The period of insurance policy covered from 24.5.2012 to midnight 23.5.2013 and under the said policy a sum of Rs.15,00,000/- was insured on payment of Rs.3405/- towards yearly premium vide receipt No.260500/81/12/0000000126 dated 23.5.2012. Under the said policy the complainant had insured for Rs.9,00,000/- towards stock of fish and aqua medicines and Rs.6,00,000/- was insured towards stock of fish, aqua feed. As contended, the aforesaid stocks of complainant was insured under the name and style of Anmol Enterprises under the proprietorship of present complainant and the godown is located at Ralaba, Po: Langipur , Dist: Ganjam.
6. During the course of hearing the learned counsel for the complainant submitted that while the policy is in force, on 9/10.10.2012 due to tornado and heavy rain, the insured stocks of the complainant was damaged on account of roof of the stock godown blown away by falling down branch of a tree. The matter was intimated to the O.P. on the same day claiming Rs.3,85,893/- towards loss of stocks of Aqua medicine and aqua feeds. On receipt of the claim intimation, the O.P. deputed the surveyor and the surveyor submitted its preliminary survey report on 12.11.2012. But after receipt of the survey report the O.P. did not settle the claim and again deputed second surveyor. The second surveyor on 31.10.2012 visited the stock godown and submitted its report. However, the O.P. did not settle the claim of the complainant. On the plea of stocks are not in consistence with the reported loss. Hence, the complainant filed this consumer dispute with a prayer to direct the O.P. to pay Rs.3,85,893/-towards insurance claim with interest @ 12% per annum from 11.10.12 till payment with cost and compensation.
On the contrary, the learned counsel for the O.Ps contended that it is an admitted fact the complainant took an insurance policy vide No.260500/11/12 /11/00000082 valid from 24.5.2012 to 23.5.2013 for the stock of his business establishment at Ralaba. It is also not in dispute that on 10.10.2012 the complainant intimated the matter to the O.P. that on 9/10.10. 2012 at night the stock room roof blown away due to tornado along with heavy rain and the stocks got damaged. It is also contended that the O.Ps deputed two surveyors Er.S.B.Choudhury and Er. B.K.Pand for preliminary and final survey respectively for assessment of the loss of the complainant. However, the final surveyor prior to finalize his report requested the complainant to submit relevant documents vide their letter dated 28.11.2011 and 14.1.2013 with a copy to this O.P. and the O.P. vide its letter dated 21.1.2013 also requested to the complainant to provide necessary documents. When the complainant not complied properly the requirements, the O.P. again on 8.3.2013 advised the complainant to directly submit the papers to the final surveyor. The O.Ps also requested the complainant to submit original purchase bills at his office for their verification but he did not do so. The O.P. after receipt of final survey report came to know that the claim lodged by the complainant is purely artificial and created for wrongful gain. The final surveyor in his report has mentioned that there was no tornado on the day of the alleged incident. The surveyor has also opined that except manufacturing and expired dates and MRP batch numbers of the stocks all are intact. Further he has opined that such type of disappearance of the vial information from all the stocks will take place when one is intentionally peel of the particular portion of the labels. Apart from that the Surveyor observed that insured did not produce the bills and vouchers to establish the genuineness of purchase and there was no stock register. The O.P. after thorough examination of both survey reports of the alleged claim and non-compliance of required documents closed the claim as no claim and intimated the same to the complainant on 16.7.2013. However, after receipt notice from the Hon’ble Forum, verified the genuineness of the bills and vouchers from the concerned shops through our advocate and we have also sought information through RTI from Panchayat Ssmiti, Rangailunda and after receipt of information from PIO, we could know that there was no tornado/cyclone on 9/10.10.2012. The complainant has played fraud with an intention to grab public money. There is no truth behind the story of damage of the alleged insured stocks on account of tornado. The complainant has created the alleged stock register, sales and purchase register by inserting false and fabricated bills and vouchers. So, this is a fraud case and it requires more investigation. The same cannot be adjudicated in summary procedure. Hence, this Forum has got no jurisdiction and the complainant has to approach to the civil court to establish his claim. In support of his arguments, he has also submitted two authorities one citation of Supreme Court of India vide Appeal (Civil) No. 4091 of 2006 in the case of Oriental Insurance Company Ltd Vs. Munimahesh Patel and another citation of Andhra Pradesh State Commission reported in II (2015) CPJ 108 (AP) in the case of Pratap Ram Kiran versus Kotakki Lakshmi and others.
7. We have heard the above pleadings of parties and have gone through the case record, verified the vital materials placed on the record. After perusal of the case record, we found that the complainant has procured a weather report from India Metrological Department dated 7.2.2013 regarding weather report of Gopalpur on 9.10.2012 where there is no mention of heavy rain or tornado. However, it was mention that the south west monsoon has been active in Odisha. Total rain fall on 9.10.2012 was 000.6mm and on 10.10.2012 it was 000.3mm warning issued on 9.10.2012 at 12.30 hrs IST heavy rainfall may occur at one or two places over Odisha during next 48 hours. The Sarapanch, Rangipur Gram Panchayat has also issued a letter mentioning damage of stocks of complainant due to rain and cyclone who is also not a competent authority. On the contrary, we have also found that the O.P. has procured information from Panchayat Samiti, Rangeilunda where the W.E.O., Rangeilunda has informed vide in his letter No.3504 dated 20.11.2015 that as per record there was no such cyclone occurred at Rangipur Gram Panchayat during the month of 9/12 and 10/12. On perusal of the case record we also came to know that the bills and vouchers of Jagannath distributors, advance aqua biotechnology, Associated Scientific Company, Kala Enterprises are alleged found to be fake on verification by the advocate of the O.P. Above all, the final surveyor report has no mention of quantum of loss through assessment and there was also no report of admissibility of the claim of the insured.
8. We have carefully considered the submissions made by learned counsel for the respective parties in the light of the aforesaid peculiar fact and circumstances of the case and in view of contradictory and controverted documents filed by both parties, in our considered view, this Forum can’t adjudicate the matter properly since the matter involves adjudication of disputed question of facts. We have also perused the two citations filed by the learned counsel for the O.Ps and we are agree with the authority of Hon’ble Supreme Court decided in the case of Civil Appeal No.2066 of 2006 decided on 15.09.2006 where it was held “the nature of the proceedings before Consumer Forum /Commission are essentially in summary nature and the factual position is required to be established by documents”. In view of the above being the position of the present case, this Forum can’t adjudicate the case hence we are inclined to give opportunity to the complainant to approach competent court for proper adjudication of the matter. Our finding is fortified with the authorities as discussed above and we are very much agree with the authorities of Hon’ble Supreme Court of India and Hon’ble State Commission, Andhra Pradesh as decided therein while adjudicating the present case. In the present fact and circumstances of the case, we dismiss the case of the complainant with a direction to the complainant to approach any appropriate Forum/Court for his redressal.
9. In the result, the complaint of the complainant is dismissed with liberty to the complainant to approach the Civil Court or any other competent Forum. In the event the complainant approaches the Civil Court or any other Forum, the period spent between the filing of the claim and the disposal of the matter today will be excluded under Section 14 of the Limitation Act, 1963 in the light of the decision of the Hon’ble Supreme Court in Trai Foods Ltd. Vs. National Insurance Company Ltd and Others, reported in III (2012) CPJ 17. However, in the fact and circumstance of the case, we are not inclined to pass any order as to cost. The case of the complainant is disposed off accordingly.
10. The order is pronounced on this day of 13th June 2016 under the signature and seal of this Forum. The office is directed to supply copies of the order to parties free of cost as per rules.
