The authorized representative had filed a consumer complaint on behalf of Terna Shetkari Sahakari Sakhar Karkhana Ltd. (hereinafter referred to as ‘complainant’) on 14/10/2005 against the New India Assurance Co. Ltd. through its Branch Manager, Shivaji Chowk, Osmanabad and the New India Assurance Co. Ltd., through its Divisional Manager, Hutatma Smrati Mandir, Solapur (hereinafter referred to as ‘opponents’) under the Consumer Protection Act, 1986.
2. The facts leading to this complaint can be summarized as under :-
The complainant had taken an insurance policy for fire and special perils from the opponents styled as “Standard Fire & Special Perils Policy”. The policy number is 11 151305 02696. The policy was valid for a period of one year from 02/02/2001 to 01/02/2002 and the insured amount was `60 Lakhs. Accordingly, complainant had paid the premium amount of `8,977/-. On 04/02/2001 around 2.30 p.m. fire took place due to unknown reasons at the factory site and stock of bagasse bales which were insured under the policy was engulfed by the fire and thereby caused the loss. It is contended by the complainant that the incident was reported to the concerned Police Station and Fire Fighting Agency. The complainant informed about the incident to the opponents also. It is the contention of the complainant that bagasse bales around 20000 MT. were got destroyed in the fire.
3. Accordingly, complainant lodged F.I.R. in the Police Station and informed the opponents orally as well as in writing by letter dated 05/02/2001. The complainant submitted an insurance claim of `60 Lakhs to the opponents along with stock details and other necessary documentary evidence. Accordingly, opponents appointed Surveyor Mr.S.Y. Korke & Mr.R. Sangam jointly and Standard Surveyors Pvt. Ltd. and S.H. Rizbud & Co. Chartered Accountant to assess the damages. As per requirements of the Surveyor and Valuer, the complainant has submitted all the documents which were asked by the Surveyor from time to time. It is submitted by the complainant that Surveyor & Valuer had assessed the loss to the extent of `22,35,820/- by the Interim Report dated 25/05/2001 and accordingly, opponents have offered the claim amount as per the provisional assessment of the Valuers. The Surveyor valued the loss as 11021.120 MT. @ `195.30 per MT. The complainant strongly protested the valuation of the damage and requested for valuation @ `300/- per MT. Accordingly, Surveyor & Assessor has modified the assessment of loss to `27,12,267/- by letter dated 11/12/2001 and offered the complainant the assessed amount. The complainant refused the offer as the amount offered was arbitrary and unreasonable and insisted for proper assessment of the loss. It is contended by the complainant that they have tried to satisfy all the queries of the Surveyor and Assessors. However, opponents had not paid any heed to the request. The complainant contending that this amounts to deficiency in service on the part of opponents had filed consumer complaint claiming `60 Lakhs along with interest @ 18% p.a. from the date of fire amounting to `4,86,000/- and compensation and damages of `5 Lakhs and `25,000/- as costs.
4. Accordingly notices are served to the opponents. Opponents have challenged the complaint by filing written version contending that they have not repudiated the claim of the complainant under the policy. So, there is no cause of action for filing complaint. They further stated that loss has been assessed and quantified by the Surveyor and set out in the detail Survey Report and accordingly the extent of indemnity has been worked out to aggregate of `27,12,267/-. They further contended that in fact the complainant vide their letter dated 31/05/2002 addressed to the opponents gave their consent for accepting the sum of `27,12,267/- as full and final settlement. They further contended that the contract of insurance contained in a marine or fire policy is a contract of indemnity and indemnity only. They further submitted that complainant cannot expect to recover the amount what they feel ought to be indemnified to them but as per the principle of indemnity which is as per the computation of loss set out in the Survey Report. In their written version they have referred to the decisions of the National Commission in the cases of National Insurance Co. Ltd. V/s. Shree Laxmi Textile Industries & Anr., 1986-2002 Consumer Cases (Part IV) 2000 Vol. X, Page-5269 and The New India Assurance Co. Ltd. V/s. Mr.Firoz M. Bhambal decided on 20/12/2006 and contended that in deciding the loss, Surveyor is the competent authority who rightly arrived at the loss occasioned by the fire. They further contended that the policy was issued on 02/01/2001 and the incident occurred 04/02/2001 and such types of claims are called “Close Proximity Claims”. Therefore, the opponents have prayed that there is no cause of action as they have not repudiated the claim and hence, the complaint may please be dismissed.
5. The complaint was admitted after hearing both the parties on 17/01/2008. The complainant has filed an application for interim relief No.30/2007. After hearing both the parties, the State Commission vide interim order dated 21/09/2007 directed the opponent/Insurance Company to deposit amount of `27,12,267/- in the State Commission. Accordingly, opponents have deposited the demand draft amounting to `27,12,267/- on 19/10/2007 and after furnishing bank guarantee by the complainant, amount was paid to the complainant vide order dated 19/10/2007. Thereafter, complaint was adjourned sine-die on 05/02/2009.
6. On application of the complainant, the complaint was taken on Board from sine-die list on 28/07/2011. The written version of the opponents, evidence of the opponents on affidavit, affidavit of the complainant and rejoinder filed by the complainant were already on record. On 13/10/2011 Advocate for the complainant submitted that her rejoinder affidavit be treated as her evidence on affidavit. Both Advocates filed pursis on 06/02/2012 closing their evidence. Both parties have filed their brief notes of arguments under Regulation 13(2) of Consumer Protection Regulations, 2005.
7. We heard Mrs.Anita Marathe, Advocate for the complainant and Mr.Sanjeet Shenoy, Advocate for the opponents.
8. Admittedly, the complainant had taken a Standard Fire and Special Perils Policy from the opponents and the policy was in operation from 02/02/2001 to 01/02/2001. It is also an admitted fact that there was incident of fire to the factory premises wherein the bagasse bales were stored. It is also not in dispute that opponents were informed about the incident and similarly, the Police Station and the Fire Fighting Agency. It is also on record that complainant has filed F.I.R. in the concerned Police Station. It is also on record that complainant had submitted a claim of `60 Lakhs to the opponents and opponents appointed Mr.S.Y. Korke & Mr.R. Sangam jointly & Standard Surveyors Pvt. Ltd. and S.H. Rizbud & Co. Chartered Accountant for assessing the loss caused by fire. It is also on record that Surveyor & Assessor has provisionally assessed the loss to `22,35,820/- vide their report dated 25/05/2001. As the complainant was not satisfied with the assessment of the loss, quantity of damaged goods and the rate of bagasse bales per MT., the complainant claimed a loss of 20000 MT. After exchange of correspondence between the parties, Surveyor modified the assessment of loss to `27,12,267/- vide letter dated 11/12/2001. Still the complainant was not satisfied. In a complaint the complainant has prayed for a claim of `60 Lakhs along with interest @ 18% p.a., compensation of `5 Lakhs and cost of `25,000/-. However, they have not filed any new evidence for the same. The Surveyor and Assessor after going through the evidence has assessed the claim for `27,12,267/-. The Surveyor is an independent agency. The complainant could not point out how the assessment of the Surveyor is wrong.
9. The complainant vide letter dated 31/05/2002 addressed to the opponent No.2 given their consent to an amount of `27,12,267/- as claim amount. Letter is at page-64 of the complaint compilation. In the letter, it is stated that on 20/11/2001 there was a meeting between Representative of Insurance Directorate Maharashtra State, the Surveyor appointed by the opponents and the Representative of the complainant and in the meeting it was finally decided that claim of `27,12,267/- was finalized and the complainant has given its consent for the amount as full and final settlement of the claim. It is also stated that as they have not received the claim amount, they are facing financial crisis. In the said letter, complainant had requested that they may please be paid amount of `27,12,267/- which is finalized in the meeting along with interest @ 24% p.a. from 28/11/2001 to 31/05/2002. The opponents have not taken any action for payment of said amount.
10. The opponents have admitted in their written version that complainant vide their letter dated 31/05/2002 addressed to the opponents gave their consent for accepting a sum of `27,12,267/- as assessed by the Surveyor. However, the opponents have not paid the claim amount to the complainant, as appears, they have agreed to said settlement of claim at `27,12,267/-. In view of these facts, it is a clear-cut and established deficiency on the part of the opponents. There is no reason to withhold the amount. Vide our interim order dated 21/09/2007 we had directed the opponents to deposit an amount of `27,12,267/- and accordingly opponents had deposited the same through bank draft on 19/10/2007 and after taking bank guarantee from the complainant, said amount was paid to the complainant on 19/10/2007. At least the opponents should have paid the amount of `27,12,267/- after receipt of letter of the complainant dated 31/05/2002. After receiving consent of the complainant to the insurance claim amount of `27,12,267/- as assessed by the Surveyor, we do not find any reason for the opponents to with hold the payment of the legitimate claim of the complainant. The opponents have utilized the amount of legitimate claim of the complainant from 31/05/2002 for their business. The opponents have not shown any reason for not paying the amount. No doubt, the amount is paid to the complainant on 19/10/2007.
11. Looking into the aforesaid facts and circumstances of the case, complainant is entitled for interest on the amount due to the complainant from 01/06/2002 to 19/10/2007. From the aforesaid facts, it is clear that there is deficiency on the part of the opponents. Interest at the rate of prevailing rate will be just and proper in the circumstances of the case. We therefore observe that interest @ 9% p.a. will be just and proper to the complainant from 01/06/2002 to 19/10/2007. We hold accordingly and pass the following order :-
-: ORDER :-
1. Complaint is partly allowed.
2. Opponents/Insurance Company are directed to pay interest @ 9% p.a. from 01/06/2002 to 19/10/2007 on the amount of `27,12,267/- (which was already paid to the complainant by interim order dated 05/10/2007) within period of two months. If the opponents fail to pay the same within a period of two months, the amount shall carry penal interest @ 11% p.a. till realization of amount.
3. Opponents/Insurance Company are directed to pay costs of `20,000/- to the complainant and bear their own costs.
4. Copies of the order be furnished to the parties.
Pronounced
Dated 14th December 2012.
