PER SMT.T.SUNEETHA, LADY MEMBER:
This complaint is filed under section 12 of the Consumer Protection Act, 1986 seeking direction on opposite parties to pay Rs.18,23,124/- towards the loss of tobacco, with interest, labour charges, compensation and costs.
2. The brief facts of complaint are as follows:
The complainant is doing business under the name and style of M/s.Mahindra Tobacco. He stored the tobacco in his godown situated at NH5 opposite to Arabic School, Kopppuravuru village. The complainant obtained policy bearing No.62/001/11/09/11/00000339 for an amount of Rs.20,00,000/- with 1st opposite party and renewing the policy from time to time. The opposite party also collected premium amounting to Rs.10,479/-. While so during the recent Lila cyclone heavy rains occurred in the district from 20th to 22nd of May, 2010 and goods were badly damaged. Immediately i.e., on 22-05-10, the complainant has sent a letter to 1st opposite party to depute a surveyor to assess the loss. The opposite party appointed surveyor by name Ramesh Chowdary who took photographs and requested the complainant to segregate the stocks for the purpose of assessing loss. Thereafter on many occasions, the complainant requested the 1st opposite party to depute the surveyor as the stocks were segregated in this regard. Inspite of periodical requests and phone calls, there is no action either from the surveyor or from the opposite parties. The complainant has sent registered notice to opposite parties 1 and 2 for settlement of claim at Rs.16,72,020/-. The opposite party sent a reply on 24-11-10 repudiating the claim as per the surveyor’s report. As per terms and conditions of policy and after deducting the 5% salvage, the opposite parties have to reimburse the entire loss to the complainant including Hamali/labour charges at Rs.25,000/- and interest at 24% p.a. to a tune of Rs.18,23,124/-. Thus there is deficiency of service on the part of opposite parties. Hence, the complaint.
3. The 2nd opposite party filed its version and the same is adopted by 1st opposite party, which is in brief as follows:
Complainant is not a consumer as defined under the CP Act. There is no consumer dispute as defined under the CP Act. The claim of the complainant is already repudiated and hence the complaint is not entitled to file the complaint. Further the complainant is a business concern and the policy obtained is for business purpose regarding commercial goods and hence the complaint is not maintainable. Further the Forum is not a recovery mechanism for complainant to claim its amount.
On receipt of claim intimation from the complainant dt.22-05-10, immediately the opposite parties have deputed the surveyor to investigate the cause of loss and extent of damage to the insured and to submit his report duly assessing the amount payable to the insured. Except giving the letter dt.22-05-10 complainant neither contacted the opposite parties nor respond to the surveyor oral, telephonic and written requests to segregate the stock or furnish the relevant documents to inspect the damaged stock if any and to assess the loss, if any payable. Despite informed, complainant failed to be present at least, when the surveyor visited the business place of the complainant. Surveyor informed the opposite parties his findings, his efforts to get the details from the complainant and the non-cooperation of the complainant. Finally the surveyor submitted his report stating the above said facts and his opinion that no property of complainant was damaged due to Lila Cyclone, only leftovers and the scrap was left in the open area of the premises which is of no use and all the stock was packed and kept in the godowns only as such the surveyor opined that the apparent loss in within policy excess of Rs.10,000/- and may be treated as no claim.
Complainant intentionally failed to file the required documents relating to the alleged cause as there are no stocks and no damage to any stocks. Documents now filed by the complainant along with the complaint are self serving documents prepared just before filing the complaint. Complainant never submitted the claim form to the opposite parties. The certificate said to be issued by the Tahsildar is not a valid and binding document and it seems to be obtained so as to suit the convenience of the complainant only.
There is no damage to the stock of the complainant. Therefore, there is no deficiency of service on the part of opposite party. Hence, the complainant is not entitled to claim any interest Hamali charges, or any compensation for pain/suffering and cost of proceedings.
4. Both parties have filed their respective affidavits. Ex.A1 to A12 are marked on behalf of complainant and Ex.B1 to B4 on behalf of opposite parties.
5. Now the points for consideration are
- Whether there is any deficiency of service on the part of opposite parties?
- To what relief the complainant is entitled to?
6. POINTS 1 & 2
The claim of complainant is repudiated on the ground of non-compliance of requirements proposed by the opposite parties concluding that the loss is within policy excess. The premises where the stocks were stored was visited by the surveyor appointed by the opposite party on 23-05-10 and on subsequent dates. According to the surveyor report (Ex.B2), the surveyor asked the complainant to segregate the stocks into two varieties (wetted and un-wetted) so that the actual quantity can be arrived. The surveyor pointed out that the complainant did not go according to the condition No.6 of terms and conditions of standard fire and special perils policy:
6(i) On the happening of any loss or damage the insured shall
forthwith give notice thereof to the company and shall within 15 days after the loss or damage, or such further time as the company may in writing allow in that behalf, deliver to the company.
(a) A claim in writing for the loss or damage containing as particulars an account as may be reasonably practicable of all the several articles or items or property damaged or destroyed, and of the amount of the loss or damage thereto respectively, having regard to their value at the time of the loss or damage not including profit of any kind.
7. In the surveyor report (Ex.B2) dt.23-08-10 it is mentioned that, as insured has not shown interest in segregating the damaged stocks and insured has not submitted any of his records pertaining to his purchases, sales etc. as sought for by the surveyor by various letters and as insured has not yet submitted his claim form till today and as amount of the loss as per his physical estimation comes within policy excess and so treated as no claim.
8. The complainant alleged that he has segregated the stocks as per the instructions of the surveyor. Inspite of number of phone calls and requests, the opposite parties/surveyor have not visited the premises again. But the complainant has not produced any document to prove the same. The opposite parties in their version expressed that they have informed about the documents to be produced by the complainant, when he arrived at their office and also have informed the complainant through the reminder letters (Ex.B3 and B4). But the opposite parties have not filed any postal acknowledgements showing that they were posted to complainant.
10. Both the complainant and opposite parties have exchanged allegations on each other but they have not provided any documents to establish the same. In those circumstances, the Forum cannot find fault with the opposite parties. The Forum cannot ascertain deficiency of service on the part of opposite parties. The Forum opines that giving direction on opposite parties to process the claim on production of necessary documents by complainant would meet ends of justice.
In the result, the complaint is disposed of with the following directions:
1. The complainant is directed to submit the required documents as mentioned in Ex.B3 to the opposite parties within two weeks from the date of receipt of order copy.
2. The opposite parties are directed to peruse the documents submitted by the complainant and process the claim within three weeks from the date of receipt of documents from the complainant.
Typed to my dictation by the Junior Steno, corrected by me and pronounced in the open Forum, this the 13th day of September, 2011.
MEMBER MEMBER PRESIDENT
APPENDIX OF EVIDENCE
DOCUMENTS MARKED
For Complainant:
Ex.No |
DATE |
DESCRIPTION OF DOCUMENTS
|
A1 |
|
Copy of policy |
A2 |
22-05-10 |
Copy of letter to 1st opposite party by complainant |
A3 |
|
Copy of fire claim form |
A4 |
11-06-10 |
Copy of certificate from Tahsildar, Pedakakani Mandal |
A5 |
11-06-10 |
Copy of rain fall statement for the year 2010 |
A6 |
09-11-10 |
Copy of registered legal notice to opposite parties by complainant |
A7 |
|
Postal acknowledgements from opposite parties |
A8 |
24-11-10 |
Reply registered notice by opposite parties |
A9 |
09-11-10 |
Repudiation letter from opposite parties to complainant |
A10 |
|
Photographs showing damaged tobacco (28 in number) |
A11 |
|
Copy of form – E.B.3 |
A12 |
|
Copy of stock statement |
For opposite parties:
B1 |
|
Copy of policy along with conditions |
B2 |
23-08-10 |
Copy of surveyor report |
B3 |
10-06-10 |
Copy of reminder-I letter by the surveyor to complainant |
B4 |
26-06-10 |
Copy of reminder-II letter by the surveyor to complainant |
PRESIDENT
