Karnataka

Bellary

CC-14/2014

SRINIVASA TRADERS ITS PROPRIETOR SRI SREEDHARMURTHY - Complainant(s)

Versus

THE DIVISIONAL MANAGER,THE ORIENTAL INSURANCE COMPANY LTD - Opp.Party(s)

H.M.ANKALAIAH

19 Feb 2015

ORDER

FILED ON:	22-01-2014
ORDER ON:	19-02-2015

 

                                                                                                                                                                                                                                                                                                                                                                          

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AT BELLARY

 

C.C.No.14 of 2014     

 

 

 

 

 

 

  

   

 

  Present :  

 

 

 

 

 

 

 

 

  (1)   Shri. R.Bandachar,

                                          B.Com, LL.B.  (Spl) ……    President

                                                                                            (in-charge)

   

  (2) Smt Mary Havila,

                                          B.A.                       ……        Member

 

 

 

 

                                 

 

DATED THIS THE 19^TH DAY OF FEBRUARY 2015

  

 

 

 

 

 

 

 

COMPLAINANT   By- Shri H M Ankalaiah,        Advocate, Bellary.           //VS//	M/s Srinivasa Traders, by its Proprietor, Y Sreedhar Murthy, S/o Y Ramappa Setty, age: 61 years, Business in J K Tyres and other Companies, No.890/E, Near Ford showroom,  Beside Taranath Govt. Ayurvedic Medical college, Ananthapur road, Bellary-583101.
RESPONDENT       By-Shri P Satyanarayana,         Advocate, Bellary.	The Divisional Manager, Oriental Insurance Company Ltd., Parvathi Nagar Main road, SLV Towers, Bellary.

         

      

        

 

// O R D E R //

 

 

 

           

 

 

Per Shri R.Bandachar.   

 

 

 

         The complainant filed the complaint against the respondent U/Sec-12 of the Consumer Protection Act 1986.   

 

 

 

 

 

             2. The brief facts of the case are that the complainant insured the stock of tyres worth Rs.25,00,000/- with the respondent’s insurance company under the standard and fire special perils policy bearing No.472300/11/2011/10 which was valid from 30-4-2010 to 29-04-2011 and also the burglary standard policy bearing No.472300/48/2011/122 valid from 29-04-2010 to 28-04-2011.  On 15-11-2010 between 9.30 p.m. and early hours of           16-11-2010 the tyres worth Rs.8,10,000/- were stolen.  On the next morning, the complainant lodged the complaint about the theft before the Rural Police Station, Bellary and the Police asked the complainant to wait for search and to trace culprits.  Even after 2-3 days, the Police did not trace culprits.  A case was registered under crime No.281/2010 for the offence u/sec-457 and 380 of IPC against the unknown persons and conducted the spot panchanama on            22-11-2010 and assessed the value of stolen goods worth Rs.8,10,000/-. On 16-11-2010 the complainant informed the respondent’s insurance company about theft and they deputed a surveyor Mr.Ravindra who visited the spot and assessed the loss of theft to the extent of Rs.8,10,000/-.  The complainant submitted the required documents to the respondent to settle the claim.  But on 08-07-2013 the respondent’s officer Shamasundar sent an email directing the complainant to prove the balance sheet of previous year and he also produced the same before the respondent. But the respondent postponed to settle the claim of the complainant on one or the other reason, which amounts to deficiency in service on his part.  Therefore, the complaint.  

 

               

 

 

        3.  The respondent filed the written version stating that the complaint is false on facts, bad in law and is liable to be dismissed in limine.  All the allegations made in the complaint, except those which are expressly admitted, are denied.  The complaint is barred by limitation.   The complainant has suppressed the material facts.   The insured shall give complaint to the Police immediately in case of theft and burglary takes place. But in the present case the alleged burglary is shown between 15^th night 16^th morning in November 2010 whereas FIR was registered on 21-11-2010. The spot panchanama is to be done by the independent, reputed, respectable and knowledgeable persons of the locality whereas the insured has participated in the alleged panchanama which is said to be made after 7 days of the alleged incident.  The complainant submitted the insurance claim on 27-07-2011 without clear details and all most after 8 months from the date of the alleged incident.  One                        P. Ravindra, Surveyor was deputed for enquiry and report about the alleged incident who submitted his report on 08-10-2012 which in incomplete and not on scientific accounting and other aspects as such the said report is not accepted by the respondent’s insurance company. Therefore, the respondent deputed another surveyor Venkateshwara Prasad who calculated the closing stock for a sum of Rs.33,75,446/- on the basis of the statement of accounts submitted by the complainant and the complainant insured the stock worth Rs.25,00,000/-.  For that reason the net loss assessed by the surveyor Venkateshwara Prasad is at Rs.5,99,283/-. The respondent sent an offer to the complainant with discharge voucher for the amount of Rs.5,76,662/- for settlement of the claim.   There is no cause of action to file the complaint. There is also no deficiency in service on the part of the respondent’s insurance company.   Hence, the complaint be dismissed.   

 

 

         4.  The complainant to prove his case, as his evidence, filed his affidavit, which is marked as P.W.1 and got marked 10 documents as Ex.P.1 to Ex.P.10. The respondent as his evidence, filed one affidavit, which is marked as R.W.1 and got marked 27 documents as Ex.R.1 to Ex.R.27.  

 

 

     5.   The written arguments are filed by the complainant as well as by respondent and heard arguments on both sides. 

 

      

     6.  The points that arise for our consideration are;

 

1.	Whether the complainant has proved deficiency in service on the part of the respondent towards him, as alleged in the complaint?
2.	Whether the complainant is entitled for the reliefs prayed for in the complaint?
3.	What order?

     

                   

    

 

 

 

 

          7.  The findings on the above points are as under.  

 

 

       

Point No.1:	In the affirmative.
Point No.2:	Partly in the affirmative.
Point No.3:	As per final order.

 

 

// R  E A S O N S //

Point No.1 : -

 

 

                8.  There is no dispute that the complainant insured the stock of tyres worth Rs.25,00,000/- with the respondent’s insurance company under the standard and fire special perils policy bearing No.472300/11/2011/10 which was valid from 30-4-2010 to                     29-04-2011 as well as the burglary standard policy bearing No.472300/48/2011/122 valid from 29-04-2010 to 28-04-2011.  There is also no dispute that occurrence of the alleged theft on               15-11-2010.     

 

                9.  It is the case of the complainant that on 16-11-2010 he informed the respondent’s insurance company about the theft and they deputed a surveyor Mr.Ravindra who visited the spot and assessed the loss of theft to the extent of Rs.8,10,000/-, he  submitted the required documents to the respondent to settle the claim, but on 08-07-2013 the respondent’s officer Shamasundar sent a email directing the complainant to prove the balance sheet of previous year and he also produced the same before the respondent, but the respondent postponed the claim of the complainant on one or the other reason, which amounts to deficiency in service on his part.   

 

                 10. The respondent contended that earlier one                        P. Ravindra, Surveyor was deputed for enquiry who submitted his report on 08-10-2012 which is incomplete and not on scientific accounting and other aspects and further the said Surveyor reported to be died before getting explanation about the incident as such the said report is not accepted by the respondent’s insurance company and the company deputed another surveyor Venkateshwara Prasad,  who calculated the closing stock for a sum of Rs.33,75,446/- on the basis of the statement of accounts submitted by the complainant and the complainant insured the stock worth Rs.25,00,000/- and for that reason the net loss assessed by the surveyor Venkateshwara Prasad is at Rs.5,99,283/-. Further it is contended that the respondent sent an offer to the complainant with discharge voucher for the amount of Rs.5,76,662/- for settlement of the claim  and therefore, there is no deficiency in service on the part of the respondent’s insurance company.                  

 

                11.  On the basis of the rival contentions of both parties, the only point for our consideration is whether the report of the first surveyor is to be taken into consideration or not. We have perused the survey report of P.Ravindra which is marked as Ex.R.4. In the said report, the Surveyor has given the detail explanation as to how he assessed the loss at Rs.7,81,709/-, details of the stolen items with numbers, cause of loss and also the recommended loss.   The survey report Ex.R.4 was given on 16/08/2011.  The respondent has not stated as to on which date the said surveyor expired.  In this regard, we have relied on the decision reported in 2013(3) CPR 655 (SC) (Sri Venkateswara Syndicate Vs. Oriental Insurance Company Ltd., and another) delivered by Hon’ble Justice Shri H L Dattu J, wherein it is held thus;    

 

 

Surveyors are appointed by insurance company under provisions of Insurance Act and their reports are to be given due importance and one should have sufficient grounds not to agree with assessment made by them – insurance company cannot go on appointing Surveyors one after another so as to get a tailor made report to satisfaction of concerned officer of insurance company – if for any reason report of surveyors is not acceptable insurer has to give valid reason for not accepting report – there is no prohibition in Insurance Act for appointment of second surveyor by Insurance Company, but while doing so Insurance Company has to give satisfactory reasons for not accepting report of first surveyor and need to appoint second surveyor.

12.  We have also relied on the decision reported in 2013(1) CPR 221 (NC)(M/s R.R. International Vs. M/s New India Assurance Co.)  wherein it is held thus;

 

It is not clear from record when and under what circumstances second surveyor was appointed – if opposite party was not satisfied with first surveyor’s report, it should have given valid reasons for not accepting first surveyor’s report and only after that second surveyor should have been appointed which has not been done  and report of the second surveyor cannot be considered to defeat claim of complainant ……….merely by cooperating to second surveyor in assessing the loss complainant cannot be deprived of loss estimated by first surveyor………Insurance company has right to appoint second surveyor but second surveyor can be appointed only for valid and cogent reasons with allegation of non-application of mind, error or ill motive in preparation of report by first surveyor – opposite party has not placed any document containing cogent and valid reasons and imputing error, ill motive, non-application of mind by first surveyor  in preparing report – there was no occasion for opposite party to appoint second surveyor in disregard of first surveyor’s report.

  

              13.  In the present case, the respondent’s insurance company has not placed any document containing cogent and valid reasons and imputing error, ill motive, non-application of mind by first surveyor in preparing report and it is not clear from record when and under what circumstances second surveyor was appointed.  Further the respondent’s insurance company has not given satisfactory reasons for not accepting the report of first surveyor.  Therefore, on the basis of the principles held in the said decisions, the second surveyor’s report marked as Ex.R.15 assessing the net loss at Rs.5,76,622/-, is not worth relying. 

 

14.  However, we stick to the report of first surveyor Ex.R.4 assessing the net loss at Rs.7,81,709/- . Non-settlement of the claim of the complainant by the respondent’s insurance company amounts to deficiency in service.   We have perused the decisions relied on by the respondent’s counsel reported in (2011) CJ 429 (NC), (2013) CJ 778 (NC), 2013(4) CPR 4 (NC), (2012) CJ 169 (NC) and decisions rendered in Original Petition No.55/1995 and First Appeal No.381/1994 by the Hon’ble National Commission and the said decisions are not applicable to the facts of this case.     

 

 

               15.  Considering all the aspects discussed above, we are of the opinion that the repudiation made by the respondent’s insurance company of the claim made by the complainant is improper and illegal, which amounts to deficiency in service on his part.  Accordingly this point is answered in the affirmative.

 

 

 

 

 

Point No.2:-

 

    16.   As per Ex.R.4, the net loss assessed by the surveyor of the respondent’s company is Rs.7,81,709/-. Therefore, the complainant is entitled for the said amount towards the loss caused in the alleged incident with interest. Besides this, the complainant is entitled for compensation towards deficiency in service as well as cost of the proceedings, which shall be as per final order.  Accordingly, this point is answered partly in the affirmative.   

 

 

 

Point No.3: -

 

 

    17. In view of the discussions made under Point No.1 and 2, we pass the following; 

//ORDER//

 

 

 

 The complaint filed by the complainant is partly allowed. 

 

 The complainant is entitled to recover sum of Rs.7,81,709/- with interest @ 9% p.a. from the date of the complaint 22-01-2014 till its realization, from the respondent. 

 

 

       

             The complainant is entitled to recover sum of                Rs.3,000/- towards compensation for deficiency in service, from the respondent.

 

 

 

The complainant is also entitled to recover sum of Rs.2,000/- towards cost of the proceedings, from the respondent. 

 

 

 

 

 

The respondent is liable to pay the above said amounts to the complainant within two months from the date of this order.

 

 

 

Inform the parties accordingly.

 

(Dictated to the Stenographer, typescript edited, corrected and then pronounced in the open court this 19th day of February 2015)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

	(R.BANDACHAR) PRESIDENT.
	(MARY HAVILA) MEMBER

 

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