Haryana

Ambala

CC/319/2019

M/s Oyster Herbocare - Complainant(s)

Versus

The New India Assurance Co Ltd - Opp.Party(s)

Harjot Singh

08 Sep 2022

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, AMBALA.

Complaint case No.	:	319 of 2019
Date of Institution	:	03.10.2019
Date of decision	:	08.09.2022.

M/s Oyster Herbocare, #81-82, Industrial Area, 1st Floor, Ambala Cantt-133001 through its authorized person Sh. Vijay Kansal, H.R.

                                                                                       ……. Complainant.

                                                Versus

The New India Assurance Co. Ltd., # 5406, Shree Complex, 2^nd  Floor, Cross Road No.3, Punjabi Mohalla, Ambala Cantt-133001    

                                                                               ….…. Opposite Party.

Before:        Mrs. Neena Sandhu, President.

                             Mrs. Ruby Sharma, Member.

          Shri Vinod Kumar Sharma, Member.           

 

Present:       Shri Harjot Singh, Advocate, counsel for the complainant.

                             Shri Mohinder Bindal, Advocate, counsel for the OP.

Order:        Smt. Neena Sandhu, President.

1.                Complainant has filed this complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) against the Opposite Party (hereinafter referred to as ‘OP’) praying for issuance of following directions to it:-

i)       To pay claim amount of Rs.4,22,143/­­- alongwith interest at the         rate of 18% per annum from 07.06.2019 till realization

ii)      To pay Rs.50,000/- as compensation for the deprivation, mental        agony and physical harassment suffered by the complainant.

iii)     To pay Rs.20,000/- as cost of litigation. 

2.             Brief facts of the case are that the complainant is a partnership firm situated at 81-82, Industrial Area, 1st floor, Ambala Cantt., which is taken on rent from M/s Oyester Labs Ltd. The complainant is engaged in manufacturing and marketing of pharmaceuticals/medicines for the domestic and international market and is having licence for manufacturing & sale of medicines. The complainant got the 'Standard Fire & Special Perils Policy No.35350111180100000137 dated 08.06.2018, for plot No.81-82, Industrial Area, 1st Floor, Ambala Cantt., on making payment of premium, for total sum insured of Rs.20,00,000/-, which was valid for the period from 08.06.2018 to 07.06.2019. The complainant as per this policy was to be indemnified against any loss arising out of the goods/stock lying in the above mentioned premises & allied perils. On 07.06.2019 at about 10.00 am, the complainant firm caught fire from a short circuit on 1st floor in which the goods/stocks were lying. Immediately thereafter the employees of the complainant firm extinguished the fire with the help of water and the fire extinguisher installed in the premises of the complainant. The goods/stock lying in the premises besides other material & equipments were totally damaged due to the fire. The complainant thereafter immediately intimated the OP personally as well as through letter dated 07.06.2019 about the loss of the goods/stock for indemnifying the loss and also got lodged a DDR No.14 dated 08.06.2019 in this regard. Thereafter the surveyor of the OP visited the premises of the complainant. As per the directions of the OP, the complainant submitted the desired documents, details of loss suffered and also additional documents & completed all other necessary formalities required by the OP, through e-mail dated 11.06.2019 alongwith claim form dated 14.06.2019. However, the OP slept over the matter and did not settle the claim of the complainant in spite of personal visits of the representative of the complainant. When the complainant pressed hard for settlement of claim, the OP issued a letter dated Nil, which was received in the office of complainant in the month of August 2019, vide which the claim of the complainant was rejected for the reason that the complainant has shifted the premise to plot No.82 first floor and no intimation to that effect was given to the OP to make necessary endorsement in policy of insurance. The act and conduct of the officials of OP from the day-one, when the information of the loss was lodged was negative just to harass and humiliate the complainant for one reason or the other to unnecessary find fault for settlement of the claim on flimsy grounds.  Hence, the present complaint.
3.           Upon notice, the OP appeared and filed written version, raised preliminary objections with regard to cause of action, not come with clean hands and suppressed the material facts. On merits, it is stated that the location where the alleged incident has taken place is not covered under the insurance policy in question. The policy annexed by the complainant along with the present complaint clearly shows that at Sr.No 6, it has been specifically mentioned that 81-82, is the location covered under the policy. After receiving intimation with regard to the loss, the OP deputed Surya Insurance, Surveyors & Loss Assessors Pvt. Ltd to assess the loss and the said surveyor assessed the loss to the tune of Rs.59,036/-, vide survey report. While processing the claim of the complainant it was observed by the OP that the complainant had taken coverage of location i.e. 81-82, Industrial Area, Ambala, Cantt. whereas the actual location of the insured / spot of the incident is at 82, 1st floor, Industrial Area. Ambala. Cantt. which was never informed to the OP which is a condition precedent in settlement of such like cases and further the surveyor has also pointed out the said issue in his survey report dated 14.03.2019, at Sr. No 20. Rest of the averments of the complainant were denied by the answering OP and prayed for dismissal of the present complaint.
4.           Learned counsel for the complainant tendered affidavit of Shri Vijay Kansal, H.R. & Authorized person of M/s Oyster Herbocare, # 81-82, Industrial Area, 1^st Floor, Ambala Cantt-133001 as Annexure CW1/A alongwith documents as Annexure C-1 to C-31 and closed the evidence on behalf of complainant.  On the other hand, learned counsel for the OP tendered affidavit of Sh. Kamal Kishore Sachdeva, Sr. Divisional Manager of the New India Assurance Company Ltd., Divisional Office, 172-C, Laxmi Niwas, Ambala Cantt., and affidavit of Shri Jaswant Dhawan, surveyor and Loss Assessor & Director M/s Surya Insurance Surveyors & Loss Assessors Pvt. Ltd., having its office at SCO No.99-100, 2^nd Floor, Sector 17-B, Bank Square, Chandigarh as Annexure OP-A and OP-B alongwith documents Annexure OP-1 to OP-3 and closed the evidence on behalf of OP.
5.           We have heard the learned counsel for the parties and carefully gone through the case file.
6.           Learned counsel for the complainant submitted that since the complainant neither shifted its insured premises nor any evidence in this regard has been placed on record by the OP and on the other hand, it is clearly evident from the insurance policy that the address of the insured premises mentioned therein was 81-82, Industrial Area, 1^st Floor, Ambala Cantt. Ambala, Haryana 133001, as such, the OP was deficient in providing service and adopted unfair trade practice, in repudiating the genuine claim of the complainant on flimsy grounds.
7.           On the other hand, learned counsel for the OP submitted that since the complainant has got insured the stocks kept at premises/plot no.81-82, Industrial Area, Ambala Cantt. Ambala, Haryana 133001 only and not for the stock lying at Plot No.81-82, 1^st Floor, Industrial Area, Ambala Cantt. Ambala, Haryana 133001 and also at the same time, it failed to give intimation regarding shifting of the insured premises to 1^st floor at premises/plot No.82, as such, its claim was rightly rejected by the OP.
8.           Admittedly, the claim of the complainant was repudiated by the OP vide letter Annexure C-22, relevant contents of which are reproduced hereunder: -

“……This refers to your above subject claim preferred with regard to the loss, we have examined the documents related to the claim case and after considering the same on all aspects, we regret to inform you that your reported claim is not maintainable / payable and same has been repudiated by the competent authority due to the reasons and violations of the terms and conditions of the insurance policy.

That on perusal of the claim documents while processing the claim we have observed that the location as insured under the policy is 81-82, Industrial Area, Ambala Cantt whereas you have shifted the premises to Plot No.82, First Floor and no intimation to the effect was ever given to underwriters enabling to make necessary endorsement in policy of insurance which is a gross violation of terms and conditions of the insurance policy.

We regret our inability to consider your claim on the above ground. Hence, your claim is not payable and does not require any further……”

 

9.           Thus, under above circumstances, the first question which needs consideration of this Commission is, as to whether, the OP was justified in repudiating the claim of the complainant on the ground that the complainant failed to inform regarding shifting of the insured premises or not? It may be stated here that a bare perusal insurance policy in question, Annexure C-5 clearly goes to show that the complainant has got the stock insured kept at the premises/plot no.81-82, first floor, as the insured address therein has been mentioned as 81-82, Industrial Area, 1^st Floor, Ambala Cantt. Ambala, Haryana 133001. Not only as above, it is also evident from various documents, referred to below, that the complainant was carrying on its business of the insured goods, from 81-82, Industrial Area, 1^st Floor, Ambala Cantt. Ambala, Haryana 133001:-
   1. Rent agreement dated 17.08.2016, Annexure C-2;
   2. Manufacturing licence dated 14.03.2014, issued by the  State Licencing Authority, Panchkula, Annexure C-4.

 

10.           Thus, it can easily be said that the stock kept at premises/plot no.82, Industrial Area, 1^st Floor, Ambala Cantt. Ambala, Haryana 133001 were also insured under the policy in question. It is not the case of the OP that though the location of insured stock was at premises/plot no.81-82, first floor or even only at premises/plot no.81-82, yet, the complainant has shifted the stocks to some other plot number. Thus, even for the sake of arguments, if the contention of the OP is  considered that though the complainant has got the stocks insured at premises/plot no.81-82, yet, it was found that it was shifted by it on first floor of premises/plot no.82, even in that case also, the OP should not have rejected the claim of the complainant, in view of ratio of law laid down by the Hon’ble National Commission in New India Assurance Company Limited Vs. Atlantic Technologies, RP No.2544 of 2006m decided on 02.08.2010 wherein under similar circumstances, i.e. where the facts were same except of minor variation here and there, it was held that since the insured premises were not restricted to any floor, as such, the insurance company cannot repudiate the claim on that ground, especially, if the SCO/shop no./sector/state is same. Relevant part of the said order is reproduced hereunder:-

“……In our opinion, the orders of two Fora below are not only well-founded but are based on material on record. The cover notes of previous years which are at pgs. 193-94 of the revision show that the coverage in those policies was with reference to the second floor of SCO No.35, Sector 20-C, Chandigarh, whereas the cover under the current policies was in respect of SCO No.35, Sector 20-C, Chandigarh. In the said cover notes, the premises are not restricted to any floor and if the policy was issued only in respect of the second floor, the Insurance Company should have certainly mentioned the said fact in the current polices like it was mentioned in the previous policies. Reliance placed by the Counsel for the petitioner on the certificate issued by the owner, which is at pg. 103 does not in any manner help the Insurance Company, but on the contrary, it would support the case of the OP. The said certificate only states that the ground floor of SCO No.35, Sector 20-C, Chandigarh was taken on rent by the complainant in the month of September, 2002 and the complainant shifted to the ground floor in November, 2002 due to renovation going on second floor. The polices in question were taken in the first week of September, 2003 when the complainant had already taken the ground floor on rent and he was yet to shift from second floor which shifting was done in November, 2002. In such a situation, the complainant would obviously insure the entire premises. Even if there was any ambiguity, the same has to be interpreted in favour of the complainant insured in view of the settled position of law. Of course, we do not find that there is any ambiguity on the issue that the entire premises had been covered under the said policies…”

 

11.           Now the next question which falls for consideration is, as to what amount, the complainant is entitled for the loss suffered in the said fire incident at the insured premises. It may be stated here that though the complainant has claimed loss to the tune of Rs.4,22,143/- yet, we have perused the surveyor report dated 07.08.2019, Annexure OP-3 who assessed the total loss to the tune of Rs.59,036/-. On the other hand, to prove that the complainant has suffered loss to the tune of Rs.4,22,143/-, he has placed on record, the income tax return Annexure C23 & C24 and GST return Annexure C25, but the complainant neither has placed on record any documents showing the details of purchase and sale of articles nor has placed on record the document with regard to stock lying in the insured premises. Thus, the complainant has failed to place on record any cogent and convincing evidence to establish that he has actually suffered the loss to the tune of Rs.4,22,143/-. We have gone through the survey report and find that the same is a detailed one and has been prepared keeping in mind all the aspects of the matter, as such, the same being a  crucial and significant document, cannot be brushed aside. Our this view finds support from the ratio of law laid down by the Hon’ble Supreme Court of India in  Sri Venkateswara Syndicate vs. Oriental Insurance Company Limited &Anr., (2009) 8 SCC 507, wherein it was held as under:-

 

"31. The assessment of loss, claim settlement and relevance of survey report depends on various factors. Whenever a loss is reported by insured, a loss adjuster, popularly known as loss surveyor, is deputed who assesses the loss and issues report known as surveyor report which forms the basis for consideration or otherwise of the claim. Surveyors are appointed under the statutory provisions and they are the link between the insurer and the insured when the question of settlement of loss or damage arises. The report of the surveyor could become the basis for settlement of a claim by the insurer in respect of the loss suffered by the insured.

32. There is no disputing the fact that the surveyor/surveyors are appointed by the insurance company under the provisions of the Insurance Act and their reports are to be given due importance and one should have sufficient grounds not to agree with the assessment made by them.

 

12.           Since, the complainant has failed to provide any sufficient ground, not to agree with the survey report, as such, we are of the considered opinion that the complainant is entitled to an amount of Rs.59,036/- as assessed towards loss suffered by it in the said fire incident. Since, the complainant is a partnership firm, therefore, it is not entitled to get compensation on account of mental agony and physical harassment.
13.           In view of the aforesaid discussion, we hereby partly allow the present complaint and direct the OP, in the following manner:-

1. To pay the claim amount of Rs.59,036/-  to the complainant alongwith interest @ 4% p.a. from the date of repudiation of the claim, till realization.
2. To pay Rs.5000/- as litigation costs.

          The OP is further directed to comply with the aforesaid directions within the period of 45 days from the date of receipt of the certified copy of this order, failing which the OP shall pay interest @ 6% per annum on the awarded amount besides litigation costs, for the period of default, till realization. Certified copies of the order be sent to the parties concerned as per rules.  File be annexed and consigned to the record room.

Announced on:- 08.09.2022

 

 

(Vinod Kumar Sharma)	(Ruby Sharma)	(Neena Sandhu)
Member	Member	President