Complaint No. :476/2008 Filed on :05/11/2008 Decided on :03/04/2010 Duration : 01 year 04 months 28 days BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM COLLECTOR OFFICE, ROOM NO. 214, IIND FLOOR, THANE) M/s. New Life Orthopaedic Rehabilitation 3, Venus Society, Ground Floor, Bhanu Nagar, Kalyan(West), Dist – Thane 421 301. ..Complainant V/s. The Manager The National Insurance Company Ltd., Kalyan Divisional Office, Second Floor, Jairaj Commercial Complex, Chitroda Nagar, Vallepeer Rd., Kalyan, Dist – Thane. ..Opponent
CORUM : HON'BLE PRESIDENT : MRS. SHASHIKALA S.PATIL HON'BLE MEMBER : MRS. BHAVANA PISAL HON'BLE MEMBER : MR. P. N. SHIRSAT Complainant through Adv. Shankar C. Bodduila Opposite Party through Adv.Amit S. Choudhari J U D G E M E N T (3rd April 2010) HON'BLE MEMBER : MR. P.N.SHIRSAT 1. This complaint is filed as per section 12 Under Consumer Protection Act 1986 and the brief facts of the complaint are narrated as under:- That the Complainant is insured with the Opponents under STANDARD FIRE AND SPECIAL PERILS POLICY vide policy no. 253200/11/05/3100759 covering period from 07/06/2005 to 06/06/2006 for the sum assured for Rs.5,52,000/- by paying insurance premium of Rs.1,490/- covering risks for Plant and Machinery and Equipments. That the Complainant is conducting the practice of Prosthotic, orthothich and rehabiliation styled as M/s. New Life Orthopaedic Rehabiliation Centre since 1993, prior to completing his 3½ years Diploma course in 1996 by earning Income for his livelihood. The plant, machinery and equipment such as a) Fracture Brace machine b) Contineous passive motion machine c) Lonoporosis machines d) Servical and pelvic intermitant traction machine with 45 kg was hypothicated with shamrao cittal Co-operative Bank, Kalyan Branch against the loan of Rs.5,52,000/-. .. 2 .. Due to heavy rainfall on dt.25/07/2005 to 28/07/2005 the entire area of Mumbai, Thane and Kalyan was flooded with dirt, dust chemical organic and unorganic materials entered into the premises of the Complainant. The water level in the area was initially 6 to 7 feet gradually increased to 12 feet, causing heavy loss and damage to the Machinery and equipments of the Complainant. The flood news was widely covered in the local and national newspaper including the television channels. The Complainant has taken the photographs of the damaged plant, machinery and equipments and informed the incidence to the Tahsildar, Kalyan enclosing the apprioximates estimates of the loss. The Complainant has also given intimation of the flood damage of Rs.5,52,000/- to the Opponent on dt.22/08/2005 duly filing claim form stating therein the loss of Rs.5,52,000/- of the plants, machinery equipments alongwith all necessary papers including statement of accounts and balance sheets for the year 2003-2004, 2004-2005 and 2005-2006. The Opponent has appointed its surveyor Mr.Shripad Mate who personally visited the premises and assessed the loss/damage by obtaining documents/papers from the Complainants vide surveyors report of dated 25/06/2006 not assessed the loss properly. He relied on unwanted issues on following aspects of professional person namely:- a)Whether the Complainant is really a qualifies doctor or not? b)Whether the Complaianant is authorised to practice rehabilitation work? The Complainant states that the loss/damage of the plant machinery and equipment is genuine which is caused due to natural calamity but the Opponent deliberately not settled the claim of the Complainant stating vide his letter dt.16/11/2006 that the claim of the Complainant is repudiated on NO CLAIM by the Opponent. The Complainant has produced the certificate from Dr. Shridevi Hospital Dr. Dilip Khoparde, orthopaedic Surgeon and Dr. Dinesh Afbakpurkar and .. 3 .. Dr.M.A.Mahadik, Orthopaedic Surgeon stating that the Complainant is using the machinery and equipments for rehabiliation work. Being aggrieved and dissatisifed by the attitude of the Opponent, the Complainant filed the complaint in the Forum stating therin that the complaint is filed which is within the limitation period as well as within pecuniary jurisdiction. Therefore this forum has pecuniary and teritorrial jurisdiction to adjudicate and decide this complaint. The prayer of the Complaianant is as follows: 1.The Opponent to pay Rs.5,52,000/- towards loss/damages to plant, Machinery and equipment. 2.The Opponent to pay Rs.1,49,040/- towards interest p.a w.e.f 25/07/2005 till the disposal of the complaint. 3.The Opponent to pay Rs.25,000/- to the Complainant towards mental harassment/Agony. 4.The Opponent to pay Rs.2,500/- to the Complainant towards miscelleneous expenses.
2. The Forum issued notice to the Opponent vide Exhibit no.5. The Complaint has filed service report vide Exhibit no.6. Therefore the Forum has passed the following order – sufficient time was given to Opponent to file W/s on affidavit but fails to file hence no reasonable reason to adjourn the said matter. No w/s order passed against the Opponet and matter is fixed for ex-parte hearing on next date. The Opponent has filed vakalatnama vide Exhibit no.7, written statement vide Exhibit no.8 and affidavit vide Exhibit no.9. The Complaianant has filed rejoinder vide Exhibit no.10. Written argument vide Exhibit no.11 and list of documents vide Exhibit no.12. The Complainant has filed application for discarding the written statement of the Opponent vide Exhibit no. 13. The Forum has passed the following order:- The Opponent has not filed say on said application. Hence this issues may be kept as final issue. The said issue will be decided at the time of order/judgment. .. 4 .. The Complainant has filed application vide Exhibit no.14 to file a paper on record the Forum has passed the following order:- for interest of justice application is allows to decide the matter on merit. The Opponent objected for the same. The Opponent has filed affidavits vide Exhibit no.15, 16, 17 and 18. The Opponent has filed an application vide Exhibit no.19 to reflect the Opponents by filing written statement as per article 14 and 21 of the Indian Constitution. The Opponent filed aplication vide Exhibit no.20 and filed documents vide Exhibit no. 21 and filed written agruments vide Exhibit no.22. The Complainant has filed application vide Exhibit no.23 and filed documents vide Exhibit no. 24. The Complainant has filed legal citation vide Exhibit no. 25 and 26. The Complainant has field the following documents alongwith the complaint. a.Policy of Insurance alongwith proposal form. b.Letter from Kalyan-Ambernath manufacturer's Association with Registration certificate dt.17/07/1993. c) Photographs of the damaged plant, machinery and equipments. d)Purchase receipts of machinery and equipments alongwith balancesheet for 2003-2004, 2004-2005, 2005-2006. e) Surveyor's report. f) Opponents repudiation letter dt.16/11/2006. g)Report and certificate issued by Tahsildar, Kalyan. h)Orthopaedic surgeons and corporator of KDMC letter. The Complaianant also filed rejoinder, affidavit and written argments and the Opponent also filed written statement, affidavits, documents and written arguments filed on records. We have carefully perused and scrutinised all the submissions of the contesting parties. In this complaint the contentions of the submissions of the contesting parties. In this complaint the contention of the Opponent in their written statement and written arguments are as under:- Complaint is false, frivolous, vexatious, malafide and not maintenable in law or in facts. The Complainant has suppressed the material facts .. 5 .. from the Forum. The Complainant has falsely stated that he his a doctor by profession. Para 4 of the written statement of the Opponent states that believing upon the representation of the Complainant the Opponent states that believing upon the representation of the Complainant the Opponent insured the said machinery for the sum assured of Rs.5,52,000/- vide policy no.253200/11/05/3100759 dt.07/06/2005 valid upto dt.06/06/2006. The Complainant lodged his claim on 20/09/2005 for which the Opponent appointed surveyors M/s.Shripad G. Mate who has personally visited the place, plant, machinery and equipments etc but not settled claim as per clause no.8 of the policy. Therefore the claim is repudiated on 16/11/2006 as NO CLAIM. The rest of the contents of the complaints are denied by the Opponents. Therefore the complaint be dismised with cost throughout.
3. In this complaint the following 3 questions are arises for our consideration namely:- A)Whether the Complainant has proved that the Opponent is guilty of deficiency/negligency in service?Answer - Yes. B) Whether the Opponents is justified to repudiate the claim of the Complainant inspite of the circular/directives issued by IRDA? Answer – No. C) Whether the Complainant is entitled for compensation on account of mental harassment and also legal expenses? Answer – Yes, for the following reasons:- A.Explanation:- In this complaint the Opponent has issued a Insurance policy known as STANDARD FIRE AND SPECIAL PERILS POLICY vide policy no. 253200/11/05/3100759 covering period 07/06/2005 to 06/06/2006 for the sum assured for Rs.5,52,000/- by paying Insurance premium of Rs.1,490/- covering for the risks for plant and machinery and equipment. It is evident that there is PRIVITY OF CONTRACT between the parties and also there is a valuable consideration. As there was natural calamity of heavy .. 6 .. rainfall on dt.25/07/2005 to dt.28/07/2005 the entire area of Kalyan, Thane and Mumbai was flooded with dirt, dust, chemical organic and unorganic materials entered into the premises of the Complainant causing heavy loss and damage to the plant and machinery and equipment of the Complainant as the water level in that premium ws more than 6 to 7 feet gradually increasing to 12 feet high cause heavy damage/loss to Complainants plant, machinery and equipments. This flood news was widely covered in the local and national newspaper including the news in the television channels. The Opponents has appointed surveyors vide M/s. Shripad Mate who has personally visited the premises and assessed the loss by obtaining documents/paper from the Complainant. On dt.25/06/2006 surveyors not assessed the loss to the property of the Complainant but relied on the report of the professional expert by asking following 2 question. 1. Whether the Complainant is really a qualified doctor or not? 2. Whether the Complainant is authorised to practice rehabilitation work? The above two questions are irrelevant as far as loss/damage to the property is concerned. Moreover the surveyor was not authorised to appoint any expert professional whose opinion can be taken as valid evidence. The loss/damage to the plant & Machinery and equpment was sent to the Opponent on dt.20/09/2005 alongwith claim form as other relevant documents. Before that, the incidence was reported to Tahsildar enclosing the approximate estimated loss. The Opponent has reudiated the claim of the Complainant vide their letter of dt.16/112006. The Complaianant filed the loss/damage claim after ascertaining from Tahsildar on dt.20/09/2005 ie late by 1 month and 15 days. It may be considered as a reasonable delay whereas the repudiation of the claim of the Complainant by Opponent is delayed by 1 year and 4 months which is illegal and against the principles of natural justice as well as of Insurance's i.e UTMOST GOOD FAITH. The Complainant has filed following legal citations:- .. 7 .. I(1993 CDJ 8 (NC) M/s. Super Teak Wood Industries V/s Oriental Insurance Co. Ltd. FA No. 7 of 1992 decided on 19/10/1992 . National Consumer Disputes Redressal Commmission, Chennai. Original Petition No.189 of 2002 - decided on 09/03/2007 in National Chlorides V/s United India Insurance Co. Ltd. IV(2008) CPJ 66 Maharashtra State Consumer Disputes Redressal Commission, Mumbai Choiseshoe Mart V/s New India Assurance Co. Ltd. First appeal in 1101 of 2007 decided on 02/08/2008 the above citation are application in this particular case. Therfore the claim of the Complaianant is fully justifiable.
B)Explanation:- The Complaianant had taken STANDARD FIRE AND SPECIAL PERILS POLICY from the Opponents for the sum assured for Rs.3,38,410/-. The surveyors duly to access the damage and submit the report to the Insurance company. The surveyors has no business to appoint the professional expert. The Insurance Co. has to follow CIRULAR NO.IRDA/CIR/GEN/020/AUG05 dt.02/08/2005 regarding:- handling of Insurance claims arising out of Natural calamities in the western region and settle the claim accordingly also IRDA has given PRESS RLEASE on dt.04/08/2005 clearly stating in the last 4 lines Quote “This news item is speculative in nature and there is absolutely no truth in it. Neither the IRDA nor the general insurance companies are contemplating withdrawal of the flood cover as part of STANDARD FIRE AND SPECIAL PERILS POLICY for homes and commercial establishments. C.S.Rao Chairman.” Hence it is necessary on the part of Opponent to settle the claim of the Complainant for Rs.5,52,000/-. Non settlement of the claim is deficiency negligency in service and the same is against the principle of natural justice as well. C)Explanation:- The complaint has filed his claim form and inform the governmental authorities and the Opponents alongwith the relevant documents. The Opponent has repudiated the claim as per clause 8 of the policy but not providing any valid and justifiable reasons. The Opponents has voilated the circular and PRESS RELEASE OF THE .. 8 .. IRDA as well as they have also voilated the PRINCIPLE OF GOOD FAITH which has caused lot of mental harassment/agony to the Complainant. Therefore the Opponent is legally bound to compensate the Complainant. Therefore the Opponent is legally bound to compensate the Complainant appropriately. With this view we pass the following final order. ORDER 1. Complaint no. 476/2008 is partly allowed and disposed off.
2.The Opponent to pay Rs.5,52,000/-(Rs. Five Lakhs Fifty Two Thousand Only) to the Complainant towards insurance claim alongwith 9% p.a interest from the date of filing the complaint. 3.The Opponent to pay Rs.5,000/-(Rs. Five Thousand ONly) to the Complainant towards compensation on account of mental harassment/agony 4.The Opponents to pay Rs.2,000/-(Rs.Two Thousand Only) to the Complainant towards litigation/ miscellaneous charges. 5. The Opponent to follow this order within 30 days from the date of receipt of this order through direct payment or else additional penal interest @ 3%p.a shall be payable from the passing of this order. 6.Certified copies be furnished to the parties free of charges.
THANE DATE : 03/04/2010
(SAU. SHASHIKALA S. PATIL) PRESIDENT
(MR. P. N. SHIRSAT) (MRS. BHAVANA PISAL) MEMBER MEMBER
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