Karnataka
Chitradurga
CC/554/2019
M/s Kumar Electrical - Complainant(s)
Versus
The Manager, SBI General Insurance Com.Ltd., - Opp.Party(s)
Sri N.Thippeswamy
20 Sep 2021
ORDER
COMPLAINT FILED ON: 20/09/2019
DISPOSED ON: 20/09/2021
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, CHITRADURGA.
CC.NO:554/2019
DATED: 20st September 2021
PRESENT: - Smt. H.N. MEENA. B.A., LL.B., PRESIDENT
Sri. G. SREEPATHI, B.COM. LL.B., MEMBER
Smt. B.H. YASHODA. B.A., LL.B., MEMBER
…COMPLAINANT/S | Sri. Kumar Electrical, Opp., IDBI Bank, Bharath Petroleum above New India Davanagere Road, Chitradurga, Repted., by it’s Proprietor, Kumaraswamy P. S/o Parameshwarappa, Holalkere Road, Chitradurga.
(Rep., by Sri. N. Thippeswamy, Advocate) |
V/S | |
….OPPOSITE PARTY/S |
|
:ORDER:
Smt. B.H. Yashoda, Lady Member.
The above complainant has filed complaint under section 12 of the Consumer Protection Act 1986 for the relief to direct the Ops to pay remaining amount of 10,00,000/- and direct the Ops to pay Rs3,00,000/- to the complainant towards mental agony and for other expenses and losses with 12 % interest within 30 days of the receipt of the order passed by this Hon’ble Commission and such other reliefs as deems fit to grant under the circumstances of the case in the interest of Justice.
THE BRIEF FACTS OF THE COMPLAINT:-
The Complainant is running a business under the name and style as Kumar Electrical in Chitradurga and he was obtained the insurance policy for the said business from OP.1 on 28/06/2018 through the Op.2. The said policy number is 000000000932880 under SME fire business package policy. It is also stated that at the time of obtaining the said policy, the Op No.2 has received the premium amount of Rs. 10,200/- under receipt No. 8341679 and as per policy terms and conditions, the Ops have assured the said policy for a sum of Rs. 25,00,000/- (Rupees Twenty five Lakhs only). The said policy period for one year i.e., from 28/06/2018 to 27/06/2019. Further, the complainant has obtained the said policy for the risk coverage for retail sale of hardware items and equipment and electrical items the details stated in the summary of particulars of property insured and fire and allied perils insurance as per the above conditions the policy was also accepted by the Ops and issued policy in favour of the complainant. Hence the complainant is the consumer of the Ops.
Further, the Complainant submits that on 10/02/2019, at about 1.30 A.M. due to electric short Circuit, the insured items are totally burned, in this regard, the complainant also lodged the complaint before the Kote Police Station, Chitradurga and same was registered under the station F.A. No. 3/2019 and Fire Office, Chitradurga also issued certificate for the said incident. After that the complainant has submitted the documents along with claim form before the Op No.3, after receiving the said documents to the Ops have deputed the surveyor one Bhadriprasad and he visited the spot and assess the loss of property. Further, the said person has reported false survey report to the above Ops. Further, the Ops have pressurized to the complainant that, to issue NOC from the Hypothecated Bank for depositing assured amount to the loan account of complainant. The Ops have instead of settle the claim amount of Rs. 25,00,000/- without observing the loss from the said incident and intentionally to cheat the complainant, the Ops have deposited only Rs. 15,64,774/- to the loan account of complainant. For the negligent act of Ops, the complainant has stopped the said business and suffered heavy loss.
It is further submits that the Ops have instead of settle the claim amount sum of Rs. 25,00,000/- as assured by them to the complainant S.B. Account as per the terms of insurance Policy, in order to escape from their obligation they have intentionally without observing the loss from the said incident they have deposited only Rs. 15,64,000/- to the loan account of complainant. In this regard, the complainant orally several time requested the Ops to pay remaining assured amount of Rs.10,00,000/- as per assurance given by them, but, Ops have only assured to the complainant that, “as soon as possible remaining assured amount will be deposited to the complainant account, but the complainant will waiting till today for remaining assured amount of Rs.10,00,000/- but Ops have postpone the same for one or other pretext. In this regard on 16/08/2019, the complainant issued a legal Notice through his counsel to the Ops address. After receiving the said notice, the Ops have not settled the claim of the complainant. The said attitude of the Ops clearly shows that, the Ops have made deficiency in service and done unfair trade practice towards the complainant, hence, the complainant has filed this complaint before this Hon’ble Commission.
Further, the complainant submits that the cause of action arose on 28/06/2018 for this complaint, when the policy was obtained by the complainant from the Ops with respect to the electric items in the complainant shop and on 10/02/2019, the electric short Circuit incident happened to the said items and the complaint filed by the complainant is within time. As such, the complainant has prayed this Hon’ble Commission to seek the suitable redress.
After registering the complaint, issued notice to Ops and duly served to the Ops. After receipt of notice from this Commission, the Ops have appeared through their counsel and filed their written version by denying the allegations made by the complainant.
DEFENSE:-
According to the version filed by the Ops it was categorically denied that the Ops has no Branch Office within the jurisdiction of this Hon’ble Commission and in Karnataka only five branches that are at Bengaluru, Gulbarga, Hubli, Managlore and Mysore. Further it is alleged in the complaint that the complainant is a business entitle dealing with sale to hardware goods, apparently, a Commercial purpose, which is expressly excluded by the Act from the purview of ‘Consumer’, and this Act is meant for the protection of individual Consumer or speedy and cost effective adjudication and further the Ops contended that the adjudication and further the Ops contended that the complaint is misconceived, untenable and un warranted as the claim of the complainant was duly settled by the answering Op according the assessment of the statutory surveyor and the policy terms and conditions, so it is not maintainable in law and dismiss the complaint.
Further, while replying to the alleged paras of the complaint, it is admitted that the complainant has taken a Business package Insurance policy from the answering Op Insurance Company covering the risk of stocks held in the specified risk location for as sum insured of Rs. 25,00,000/-. The policy was issued under certificate No. 932880 for the period 28/06/2018 to 27/06/2019, subject to policy terms and conditions. The claim was lodged in the above mentioned policy by the complainant alleging damage to stock due to fire in the insured premises on 10/03/2019 and after receipt of the claim, the op appointed an independent statutory surveyor as per section 64 UM of the Insurance Act. Herein Mr. M.H. Badri Prasad, surveyor has assessed the loss and thereof conducted spot inspection and quantified the actual loss to the stock and also collected documents in support of the claim and also assessed that the net claim was Rs. 15,66,906/- as per the surveyor report.
The Opposite parties also taken contention that from the assessment and books of accounts of the complainant, the actual Value of stocks held at the time of loss was for Rs. 35,43,119/- whereas the stock was only insured for Rs. 25,00,000/- thus a crystal clear case of under insurance and average clause of the policy was attracted.
The Op has further contended that the statutory rightly worked out the under insurance 35.7134% considering the sum insured Rs. 25,00,000/- value at risk Rs. 35,43,119/-. Therefore, the ratable portion of the loss up to 35.7134% should be borne by the insured i.e., Rs. 9,16,284/-. Since the policy it is beyond the policy preview and as per the police complaint lodged by the complainant dated;10/03/2019, it is admitted that there is a loss of above Rs. 39,70,000/-. So it is clear that the actual stock to about Rs. 35,00,000/-. The Survey report submitted by the statutory surveyor herein is a comprehensive documents with details assessment and computation of loss as per the policy. The Complainant has not brought out any material to disprove the assessment of loss, whereas there is only mere blind folded allegation.
The op strongly contended that after receipt of the Survey Report intimated the complainant the assessment of the loss. Subsequently, the complainant has accepted the claim of Rs. 15,66,906/- towards full and final settlement of the claim, there of issued a discharge voucher dated 27/06/2019 and also a letter to that effect in their letter head. Accordingly, the claim was settled in full to the Bank Account of the complainant.
In this regard, the Ops have mentioned the Hon’ble Supreme Court Survey Report is an important document it should not be brushed aside unless and until there is any material infirmity. In united India Insurance Company and others versus Roshan Lal Oil Mills limited. And other (2000) 10 SCC 19, Hon’ble Supreme Court has observed thus.
The appellant had appointed joint surveyors in terms of section 64 UM (2) of the Insurance Act, 1938. Their report has been placed on the record in which a detailed account of the factors on the basis of which joint surveyors had come to the conclusion that there was no loss or damage caused on account of the fire was given and it was on this basis that the claim was not found entertainable. This is an important document which was placed before the Commission but the Commission, curiously has not considered the report. Since the claim of the respondent was repudiated the appellant on the basis of the joint survey, the Commission was not justified in awarding the insurance amount to respondent without adverting itself to the contents of the joint survey report especially the factors enumerated therein. In our opinion not consideration of this important document has resulted in serious miscarriage of justice and vitiates the judgment passed by the Commission.
Further, the Ops have also produced another citation to defend their case. In D.N. Badoni V/s Oriental Insurance Company limited 1 (2012) CPJ 272 (NC) it was observed that it is well settled that a surveyor has significant evidentiary value unless it is proved otherwise which the petitioner has failed to do so in the instant case. In Khimjibhari and sons New India Assurance Company Limited IV (2011) CPJ 458 (NC). Hon’ble National Commission observed that.
It is to be noted that it is in accordance with the requirement of law that a surveyor is required to be appointed by the Insurance Company and when such a surveyor who is licensed professional to assess such loss gives a report with reasons to support the same such report can be discredited only on the basis of specific ground which are required to be record in the order.
Furthermore, the Ops have produced another citation to defend their case. In the case of Ankur Surana V/s United India Insurance Company Limited 1 (2013) CPJ 440 (NC) Hon’ble National Commission observed that:
It is well established by now that the report of surveyor is an important document and the same should not be rejected by the for a below unless cogent reasons are recorded for doing so. The State Commission has stated that it did not see any legal aground before the District Forum to reject the report of surveyor. The report of the surveyor should have been rebutted on behalf of the complainant/Petitioner since the respondents/Ops had filed the surveyor’s report as their Evidence.” Further the Ops replied to para wise allegations made in the complaint and humbly prays to this Hon’ble Commission to dismiss the complaint with cost.
The complainant got himself examined as Pw-1 by filing his affidavit as a part of examination in chief and the documents EX A-1 to A-9 were got marked and closed their side evidence.
On behalf of Ops on Leo John S/o Mr. Andrews V.L. Deputy Manager, got himself examined as Dw-1 by filling his affidavit as part of examination in-chief and also got Ex B-1 to Ex B-5 marked and closed their Evidence.
Both complainant and the Ops have filed their written Arguments through their counsels. Heard arguments both side.
On perusal of the facts of the complaint, documents and version, and also written Arguments filed by the complainant and Ops. Now. the points that arise for our determination for decision of above complaint are:
- Whether the complainant proves that deficiency of
Service on the part of Ops?
- Whether the complainant proves that he is entitled for the relief as sought for?
- What order?
Our findings on the above points are as follows:
- Point No.1:- Negative.
- Point No.2:- Negative.
- As per final order.
::REASONS::
Point No.1 and 2:- That there is no dispute between both the parties, that, the complainant has obtained the Insurance Policy for the said business from Op No.1 on 28/06/2018 through the Op No.2. It is alleged by the complainant that on 10/02/2019 at about 1.30 A.M. due to electric short circuit, the insured items are totally burned. In this regard, the complainant also lodged the complaint before the Kote Police station, Chitradurga and same was registered under the station F.A. No. 03/2019 and Fire Office, Chitradurga also issued Certificate of the said incident. After that the complainant has reported the same to the Op No.3 with documents along with claim form, as such, the Op No.3 has deputed the surveyor by name Badari Prasad and he visited the spot and assess the loss of property. Further, it is alleged by the complainant that the Ops have instead of settle the claim amount of Rs. 25,00,000/ without observing the loss from the said incident and the Ops have paid only Rs. 15,64,774/- to the loan account of complainant. Hence the complainant has alleged that there is deficiency of service on the part of Ops by producing the supporting documents i.e., Ex A-1 to Ex A.9.
The Ops contended that they have appointed a independent statutory surveyor as per Section 64 UM of the Insurance Act. Here in, Mr. M.H. Badari Prasad bearing License No. SLA 54292 assessed the loss and there of conducted spot inspection and quantified the actual loss to the stock, also collected documents support of the claim and further informed that the statutory rightly worked out Under Insurance @ 35.7134% considering the Sum Insured Rs 25,00,000/- value at risk Rs.35.43,119/-. Therefore ratable portion of the loss up to 35.7134% should be borne by the Insured i.e., Rs. 9,16,284/- since the policy it is beyond the policy preview. Moreover, the Ops have strongly contended that it is admitted that there is a loss of about 39,70,000/- if we consider the stock alone is coming to about Rs. 35,00,000/- . It is prime-faciely shows that actual stock at risk was more than the sum insured. Then, the complainant is not eligible to get more than the amount insured in his policy.
The Ops, strongly contended that the surveyor Report submitted by the statutory surveyor herein is a comprehensive documents marked as Ex B-3 with detailed assessment and computation of loss as per the policy. But, the complainant has not brought anything material to disprove the assessment of loss, where as there is only mere blind foled allegation.
The Ops after receipt of the survey report intimated the complainant the assessment of the loss. Subsequently accepted the claim amount of Rs. 15,66,906/- towards full and final settlement of the claim and without protest for this complainant has issued a discharge vouchers marked as Ex B-4 and also a letter to that effect which is marked as Ex B-5. That as per the citation of Hon’ble N.C. reported in CPR then there is no question for furtherance of proceedings by the complainant against the Ops. As per the documents submitted by the Ops. It is Crystal clear that there is no deficiency on the part of the Ops. It is also noted and come to the conclusion after verifying the documents of both the parties it of Hon’ble National Commission reported in CPR clearly proves that the complainant by taking undue advantage of Insurance policy has filed the present complaint against the Ops with intention to grab the public money and thereby he has wasted the precious time of the Commission which should be punishable Under law. For this, the Ops have submitted the proper citations to adhere that when by executing discharge voucher accepted the amount towards full and final payment by the complainant. Further the complainant is not entitled for any relief.
For this, the complainant submitted the Supreme Court Judgment in Civil Appeal No. 1156 of 2008 that according to National Insurance, a short circuit in the machine disentitled the insured from making a claim which reads as follows:
“On the merits of the case, the only issue is whether the loss or damage to the insured machine was caused by an explosion or by a short circuit. According to National Insurance a short circuit in the machine disentitled the insured from making a claim. The National Commission held, on a consideration of the Evidence that an explosion had occurred in the machine and that result in a short circuit and consequent loss or damage to the machine”.
“Having gone through the Evidence on record. We find that the view taken by the National Commission is not only based on the evidence on record, but is in any event a possible view. In the absence of any material error in appreciation of the Evidence, we do not think it proper to substitute the view taken by the National Commission with our view. Accordingly, the Hon’ble Supreme Court of India has dismissed the Appeal preferred by the Insurance Company i.e., Ops. But, in this case, the Chitradurga Fire Brigade Office has assessed that the electrical goods were partially burnt and survey Report Ex B-3. Loss assessed to 15,66,906/-. Accordingly, the Op Insurance Company has settle the claim of the complainant. Moreover, the complainant has also accepted and received the amount Rs. 15,66,906/- as per Ex B-4 Discharge Voucher and as per Ex B-5. The complainant has given confirmation of the processing in his office letter Head. As such, change of facts and circumstances of this case is quite different. So, the citation submitted by the complainant is not applicable in this case.
Further, the complainant has submitted another citation-State Consumer Disputes Redressal Commission, Uttar Pradesh, Lucknow- CC NO. 25/2010 M/s Saharanpur cloth Merchant V/s The New India Assurance Company Limited.
“ In the light of the aforesaid discussions, we are of the view that the report of the surveyor we not based on the true facts, is liable to be rejected and the complainant is entertained to get the full risk coverage of Rs. 30.00 lakhs being the part held by him to the tune of Rs. 35,80,000/- and which have been found completely is burnt in the shop of the complainant what so ever may be closed alleged to have been saved by the fire brigade, that have also been reported to the half burn, which cannot be said to be of worth sale therefore, it shall be deemed a case to have been of total loss. Therefore, we find this complaint to be allowed for the loss to the complainant up to the coverage of risk to the tune of Rs. 30,00,000/- to be paid by the insurance/Op.
Further, the complainant has submitted another Citation-Supreme Court of India New India Assurance Company Limited V/s Pradeep Kumar 9/04/2009. Civil Appeal No. 3253/2002 which reads as follows.
“On the face of the vouchers and bills for parts as well as Labour charges submitted to the complainant, all the three Consumer for a accepted the complainants claim and did not accept these survey Report. Pertinently the vehicle was not even 2 year old at the time of accident." Further “So for as the case in hand is concerned, the claim of the complainant has been accepted by the consumer for a as it was duly supported by original vouchers, bills and receipts. It has been held that the actual expense incurred by the complainant comes to Rs. 1,39,438/- in getting the truth repaired apart from the expenses on account of haulage of truck and carrying it to the workshop. Taking into account actual expenses incurred and the interest that the complainant had to pay to the Bank from which the loan was obtained for that amount the District Forum awarded a sum of Rs. 1,58,400/- to the complainant and insurance Company was directed to make that payment along interest at the rate of 12% per annum. At the first blush, we had some doubt whether the interest paid by the complainant to the Bank could have been awarded, but on deeper scrutiny we found that no such ground has been set up in the appeal. As a matter of fact, this aspect was not even raised before the National Commission
But, in this case, the complainant has accepted the claim amount of Rs. 15,66,906/- towards full and final settlement of the claim and for this complainant has issued a discharge vouchers to opponents, which as been marked as Ex B-4 and also a letter to that effect in their letter head marked as Ex B-5. Then there is no question of furtherance of proceedings by the complainant against the Ops. As per the documents submitted by the Ops. It is Crystal clear that there is no deficiency on part of the Ops.
The Ops submitted the following authorities to defend their case:
In United India Insurance Company Limited and others V/s Roushan Lal Oil Mills Limited and others (2000) 10 SCC 19.
“The appellant had appoint Joint Surveyors in terms of section 64 UM (2) of the Insurance Act 1938. Their report has been placed on the record in which a detailed account of the factors on the basis of which the joint surveyors had come to the conclusion that there was no loss or damage caused on account of fire, was given and it was on the basis that the claim was not found entertainable”
“This is an important document which was placed before the Commission, but the Commission, curiously has not considered the report. Since the claim of the respondent was repudiated by the appellant on the basis of the joint survey, the Commission was not justified in awarding the insurance amount to the respondent without adverting itself to the contents of the joint Survey Report especially the factors enumerated therein. In our opinion, no consideration of this important documents resulted in serious miscarriage of justice and vitiates the Judgment passed by the Commission. The case has, therefore, to be sent back to the Commission for a fresh hearing”.
Further, in D.N. Badoni V/s Oriental Insurance Company Limited, 1 (2012) CPJ 282 (NC).
It was observed that it is well settled that a Surveyor’s Report has significant evidentiary value, unless it is proved otherwise, which the petitioner has failed to do so in the instant case.
In khimjibhai and sons V/s New India Assurance Company Limited IV (2011) CPJ 458 (NC) the Hon’ble Commission observed that:
“It is to be noted that it is in accordance with the requirement of law that surveyor is required to be appointed by the Insurance Company and when such a surveyor who is licensed professional to assess such loss gives a report with reasons to support the same, such a report can be discredited only on the basis of specific grounds which are required to be recorded in the order”.
In the case of Ankur Surana V/s United India Insurance Company Limited I (2013) CPJ 440 (NC) Hon’ble National Commission observed that:
“It is well established by now that the report of the surveyor is an important document and the same should not be rejected by the for a below unless cogent reasons are recorded for doing so. The State Commission has stated that it did not see any legal ground before the District Forum to reject the report of surveyor. The report of Surveyor should have been rebutted on behalf of the complainant/Petitioner since the respondents/Ops had filed the surveyor’s report as their evidence”.
Citations filed on behalf of Ops:
- 2019 (2) CPR National Commission. Page 602
“The Insurance claim is to be settled on the basis of report of the loss assessor appointed by the Insurance Company.
“The Insurance claim is to be settle on the basis of report of the loss assessor appointed by the Insurance Company”.
The Insurance Company claim is basically to be settled on the basis of surveyors report until there are cogent reasons for not accepted the same.
“Report of the surveyor cannot be brushed aside rightly”
- 2019 (1) National Commission-706.
“Bald assertion of coercion, fraud, etc., in executing discharge voucher will not entitle the complainant for any relief.”
“Refusing to release the amount unless discharge voucher for certain amount signed is no fraud”
The National Commission held, on a consideration of the evidence that an explosion had occurred in the machine and that resulted in a short circuit and consequent loss of damage to the machine and opined that having gone through the evidence on record, we find that the view taken by the National Commission is not only based on the evidence on record, but is in any event a possible view. In the absence of any material error in appreciating of the evidence we do not think it proper to substitute the view taken by the National Commission with our view and dismissed the appeal as it is meritless case.
The Opponents submitted the above authorities aptly applicable in this case.
It is also noted and come to the conclusion after verifying the documents of both the parties, it clearly proves that the complainant by taking undue advantage of Insurance policy has filed the present complaint against the Ops with intention to grab the public money and thereby he has wasted the precious time of the Commission which should be punishable Under law. For this, the opponents have submitted the proper citations to adhere that by executing discharge voucher by complainant and accepted full and final payment from Ops, further the complainant is not entitled for any relief.
Apart from the above as observed by the decisions of Hon’ble National and Hon’ble Supreme Court, reported in NCJ-2014 Page-277, a complainant has accepted amount in full and final satisfaction of claim, then no relief can be allowed later on.
CPR-2 Feb-2021:-
Report of Surveyor:- Report of Surveyor Can’t be simply brushed aside. N.C. New Delhi P-366 as per the decision reported by the Hon’ble National Commission, report of insurance Surveyors can’t be brushed aside without any cogent reason.
2020(3) CPR-64 (NC) New Delhi, Page-405
M/s Foot wear Centre-Petitioner V/s New Indian Assurance Company Limited, and Another-Responded.
It is observed that, having accepted cheque voluntarily and without any protest from insurer, complainant is estopped from claiming any additional amount from insurer.
CPR-March-2017- Report of surveyor or investigator can’t be discriminated.
Supreme Court of India-claim-Insurer appointing surveyor-Surveyor submitting report of loss- Insurer then appointing investigator-No reasons assigned-After investigation, Insurer repudiating the claim-If appointment of second surveyor/or Investigator is not explained report of first surveyor prevails.
As such, this point no.2 is taken into consideration as negative, as the complainant has not proved that he is entitled to get the relief from the Insurance Company.
As discussed on the above points and for the reasons stated there in we pass the following:-
ORDER
The present complaint against the Ops is dismissed with no cost.
(Dictated to the stenographer, and typed in the Computer and transcribed by him, verified and then pronounced in the Open Commission by us on this the 20th day of September 2021).
LADY MEMBER MEMBER PRESIDENT
: Annexures :
PW-1: Kumaraswamy P. S/o Parameshwarappa, complainant by way of affidavit evidence.
Witnesses examined on behalf of OP:
DW-1: Sri. Leo John s/o Andrews V.L, Deputy Manager, Chennai, by way of affidavit evidence.
Documents marked on behalf of Complainant:
01 | Ex-A-1:- | Original Policy copy |
02 | Ex-A-2:- | Xerox copy of Bank Statement |
03 | Ex-A-3:- | Xerox copy of Income tax returns details |
04 | Ex-A-4:- | Xerox copy of claim bill |
05 | Ex-A-5:- | Xerox copy of FA No. 3/2019 |
06 | Ex-A-6:- | Xerox copy of certificate issued fire office |
07 | Ex-A-7:- | Legal notice dated 16/08/2019 |
08 | Ex-A-8:- | Postal receipts dated 16/08/2019 |
09 | Ex-A-9:- | acknowledgment |
Witnesses examined on behalf of OP:
DW-1: Sri. Leo John s/o Andrews V.L, Deputy Manager, Chennai, by way of affidavit evidence.
Documents marked on behalf of OPs
01 | Ex-B-1:- | Business Package Insurance Policy |
02 | Ex-B-2:- | Standard Fire and special perils Policy |
03 | Ex.B-3:- | Survey Report |
04 | Ex.B-4:- | Discharge Voucher |
05 | Ex.B-5:- | Kumar electricals e-mail |
LADY MEMBER MEMBER PRESIDENT
Kms.
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