Complainant by filing this complaint has alleged that complainant is a private limited company, incorporated under the Companies Act having its godown to stock its goods and materials at M/s Prathamesh Warehousing Bhame Compound, at Val Goan, Bhiwandi-421302 in the District of Thane, Maharastra and said godown was taken vide agreement for lease for goods space on 01.07.2007.

          During course of business complainant used to keep its stocks and other articles in that space according to the relevant laws in this regard and only to protect the said goods, took several insurance policies including Fire Accident Insurance Policy from the ops.  It is further asserted that complainant purchased two Fire Insurance Policies from op no.1 National Insurance Co. Ltd. vide Policy No. 101800/11/09/3100000350 and also took another Insurance Policy No.510601/11/09/13/00000196 from op no.3 New India Assurance Co. and have been paying premium to that effect for implementation of the said policies without any delay and default as and when occasion may demand and or any accident occurs beyond and behind the control of the complainant and or its men and agents.

          Fact remains both the policies are current and up to date and valid.  During the continuation of the validity of the said two Fire Accident Policies on or around 05.10.2009, a devastating fire broke out at the said ware house at Val Goan, Tal Bhiwandi where the complainant had taken the space on lease to stock his goods/articles.  But due to said fire the entire stock of the complainant stored in the said godown house (ware house) was badly damaged and burnt and estimated value of the stocks, destroyed by fire was to the tune of Rs.21,70,000/- and the matter was intimated forthwith to the ops vide letters dated 06.10.2009 and 07.10.2009 with a request to appoint a surveyor to assess the loss.

          In terms of request of the complainant, op no.1 deputed one Mr. Navin Jain as the surveyor after completion of survey, submitted its report and assessed the loss to the tune of Rs.15,77,271/- and in the said report surveyor also pointed out that since the complainant apart from the Fire Insurance Policy with the op no.1 a sum of Rs.1 crore has also taken another standard fire and special perils policy from the op no.3 for the sum of Rs.3.25 crores.  Sometime on or around 27.08.2011, complainant received a copy of a proforma receipt from the op no.1 wherefrom it appears that the op no.1 has released a sum of Rs.3,38,041/- for full and final settlement of the claim of the complainant in respect of the property of the complainant damaged due to fire and complainant was required to sign on the said proforma receipt and send the same to the op no.1 who will then issue the cheque for the said amount.

          Complainant after perusal of the said receipt, sent by the op no.1 to the complainant was astonished in view of the fact that the surveyor assessed loss of Rs.15,77,271/-.  But in fact op did not release the assessed amount of Rs.15,77,271/- and when surveyor assessed the loss of Rs.15,77,271/-, then there is no reason on the part of the op no.1 to release only meager amount of Rs.3,38,041/- and thereafter complainant sent several notices requesting to release the said amount, but op did not release the entire assessed amount of Rs.15,77,271/- for which the present complaint was filed.

          Against that op by filing written statement submitted that entire fact as alleged in the complaint is quite correct except  it is specifically asserted by the op that op released the proportionate amount as per Clause-11 of the Insurance Contract in between the parties when from the surveyor’s report, it is clear that complainant had the insurance coverage of Rs.4.25 crores from two different insurance companies namely National Insurance Co. Pvt. Ltd. with a coverage of Rs.1 crore and New India Assurance Co. had the coverage of Rs.3.25 crores which is admitted by the complainant and the surveyor after applying proportionate loss or damage under insurance assessed the loss to the tune of Rs.15,77,271/- and it is to be noted that New India Assurance Co. although had the coverage of Rs.3.25 crores but has been let off from reliable share of the loss of Rs.15,77,271/-  as assessed by the surveyor.

          Further op no.1 has alleged in respect of the averment made in para- 10, 11 & 12 that this op admits the fact of releasing of Rs.3,38,041/- towards the loss sustained by the complainant.  But it is revealed in the survey report that the insured has taken two no Standard Fine and Special Perils Policies of National Insurance Co. Pvt. Ltd. of Rs.1 crore (sum assured) whereas from New India Assurance Co. of Rs.3.25 crores (sum assured), then total sum assured is Rs.4.25 crores.  Then the surveyor assessed the loss caused by fire at Val Goan, Tal to the extent of Rs.15,77,271/- which is covered by two insurance companies’ two policies.  So the loss caused by fire is to be divided according to the ratable share of insurance coverage and according to the policy condition, general exclusion Clause-II if there be any subsisting insurance company covering the same property, this company shall not be liable to pay or contribute more than its ratable proportion of such loss or damage.  So following clause-11 of the policy condition the op settled the claim of Rs.3,71,123/- on the basis of following formula:

Assessed loss Rs.15,77,271/- x sum assured Rs.1 crore i.e total sum insured divided by Rs.4.25 crores.  On the basis of that Formula, New India Assurance Company’s liability stands Rs.12,06,148/-.

          It is alleged that it is peculiar fact that complainant had insurance coverage of Rs.3.25 crores of New India Assurance Co. who has been excused to meet its responsibilities and obligations and complainant has not prayed any claim against New India Assurance Co.  Though they were made party in this case but subsequently their names were deleted.  In the above circumstances, op has submitted practically there is no fault, no negligence on the part of the op for which the present complaint may be dismissed and when complainant himself refused to accept the amount as it was released.  

                                                     Decision with reasons

          On proper consideration of the argument as advanced by the Ld. Lawyers of both the parties and also considering the admitted position that fire broke out in the warehouse of the complainant at around on 05.10.2009 and no doubt the stock of the complainant in the said godown was burnt and damaged.  It is also admitted fact that forthwith after receipt of the information op deputed surveyor/loss assessors to assess the loss and fact remains surveyor assessed loss to the extent of Rs.15,77,271/-.  But it is admitted fact that insured complainant has taken two number of Standard Fire and Special Perils Policies one from the present op no.1 to the extent of Rs.1 crore and another policy from the New India Assurance Co. to the extent of Rs.3.25 crores.  So in respect of the same same property complainant took total sum assured of Rs.4.25 crores by two different policies and admitted fact is that the complainant has not prayed for any relief against M/s New India Assurance Company.  But they were made parties and the name of that company was subsequently deleted by the complainant on 31.10.2012.

          It is also admitted fact that op released the total sum of Rs.3,38,041/- as compensation but complainant did not agree to receive that and did not send the paper for receiving the cheque.  Now the question is whether op no.1 is bound by the contract to release the entire assessed loss by the surveyor to the extent of Rs.15,77,271/- or not.

          No doubt as per policy condition caluse-11 it reveals that the language of the said term is as follows- “if at the time of any loss or damage happening to any property hereby insured thereby any other subsisting insurance or insurances whether effected by the insured or by the any other person or persons covering the same property, this company was not liable to pay or contribute more than its ratable proportionate of such loss or damage” and in fact at the time of queries made by this Forum, Ld. Lawyer for the complainant admitted that the complainant and op are guided by the term of contract and there is no scope to go outside that term and ratable theorization is already discussed above and considering the entire legal position and terms and conditions of the insurance policy and particularly the legal spirit of said Clasuse-11 of the said policy we are confirmed that complainant has not prayed for any relief against another insurance company op no.3 New India Assurance Co. or op no.4, though they were made parties but subsequently their names were deleted as per prayer of the complainant on 31.10.2012 vide order No.5.  Then it is clear that complainant for some other purposes claimed entire assessed loss amount from the op no.1 but which is not at all legal.  In view of the fact that complainant cannot go beyond the terms and conditions of the policy as enumerated in Clause-11 of the said policy contract.  Though complainant had his scope to pray for relief in respect of balance part of the loss assessed from New India Assurance Co. but complainant prayed relief against op no.1 only.  But truth is that applying the ratable assessment of the loss theory as enumerated in Clause-11 of the contract, op released that amount and sent letter for signing and acceptance of it, but complainant did not receive it for that reason invariably op no.1 is not anyway at fault.  Fact remains complainant tried to make this Forum in doldrums to get the entire relief submitting part of the insurance contract.  But his attempt has been frustrated due to submission of the entire contract terms and conditions of the contract of the policy.

          So, in the circumstances, we are very much confirmed that this Forum cannot allow any amount more than Rs.3,38,041/- as per Clause-11 of the policy contranct and that is the settled principal of law when op released it and complainant did not accept it anyway the ops cannot be made accused for that.  But fact remains that complainant received that receipt from op no.1 for a sum of Rs.3,38,041/- on 27.08.2011 but complainant did not accept it and challenged before this Forum for redressal.  Then invariably over that amount complainant is entitled to further interest @ 8% p.a. what op no.1 shall have to pay but not more than that when negligence or deficiency in rendering service by op nos. 1 & 2 are not at all proved. 

          In the result, the complaint succeeds in part.

          Hence, it is

                                                              ORDERED

          That the complaint be and the same is allowed on contest against the op nos. 1 & 2 with cost of Rs.2,000/-.

          Op nos. 1 & 2 jointly and severally are directed to pay the released amount of Rs.3,38,041/- and also 8% interest  over the said amount with effect from 27.08.2011 till full payment of the same by the op nos. 1 & 2 jointly and severally within one month from the date of this order failing which for disobeyance of the Forum’s order, op nos. 1 & 2 shall have to pay punitive damages @ Rs.300/- per day till full satisfaction of the decretal amount including cost as awarded to the complainant.

          Op nos. 1 & 2 are hereby directed to comply the order very strictly within one month from the date of this order failing which legal prosecution may be started against them for which they shall be liable.