BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE
Dated this the 31ST MAY, 2016
PRESENT
SMT. ASHA SHETTY : PRESIDENT
SMT.LAVANYA M. RAI : MEMBER
COMPLAINT NO.186/2013
(Admitted on 09.06.2011)
Mr.Abhinandan Padival,
S/o Dharmapal,
Aged about 60 years,
Prop: Padival Food and species,
142/3, Akshatha Complex,
Sullia. …….. COMPLAINANT
(Advocate for the Complainant: Sri M.R.Ballal)
VERSUS
The New India Assurance Co.Ltd.,
Divisional Office,
2nd floor, Centenary Building,
G.H.S. Road, Mangalore – 575001,
Rep. by its Divisional Manager.
……. OPPOSITE PARTY
(Advocate for Opposite Party: Sri S.K.Ullal)
***************
ORDER DELIVERED BY HON’BLE PRESIDENT
SMT. ASHA SHETTY:
I. 1. This complaint is filed under Section 12 of the Consumer Protection Act alleging deficiency in service as against the Opposite Parties claiming certain reliefs.
The brief facts of the case are as under:
The Complainant stated that he is the proprietor of Paduval Food and Spices and obtained Insurance Policy for the Plant, Machinery, Computer, Furniture, Fixtures and Bamboo Mat and also the stock in progress and fishing goods total worth Rs.10,00,000/- belonging to him under the standard fire and special perils policy bearing No. 670800/11/89/1100000893 valid from 24.07.2009 to midnight of 23.07.2010. It is stated that on 30.09.2009 at about 6.00 pm accidentally the fire broke out at the Complainant’s said unit at Door No.5-82, K.V. Compound, Nagapatna, Mithadka, Aletti, Sullia and the case was registered. It is stated that before they could extinguished the fire the stocks in trade as well as the drier, A.C. Sheets, mats and channels were totally destroyed by fire. The loss suffered by the Complainant due to fire was estimated at Rs.9,50,000/-. It is stated that after the accident the Complainant informed the Opposite Party and submitted all the documents pertaining to the accidents but the Opposite Party not settled the claim till this date. It is stated that the Complainant has running the business by availing a bank loan and the stocks and materials stated above were hypothecated to the above said Bank. It is stated on account of loss suffered by the Complainant and the delay in settlement of this claim, he has compelled to close down his business. Feeling aggrieved by the above, the Complainant issued a legal notice to the above Opposite Party and called upon to pay the amount of Rs.9,50,000/- and the Opposite Party not complied. Hence, the above complaint filed by the Complainant under Section 12 of the Consumer Protection Act, 1986 (herein after referred to as ‘the Act’) seeking direction from this Forum to the Opposite Party to pay a sum of Rs.9,50,000/- towards loss suffered by the Complainant with interest from the date of accident till the date of payment and compensation plus cost of the litigation expenses.
II. 1. Version notice served to the Opposite Party by R.P.A.D.
The Opposite Party appeared through counsel and filed version stating that the Complainant/ insured had insured the stock in process and finished goods in property situated at 3/142(3), Akshatha Complex, Sri Ram Pete, Sullia, so also Plant and Machinery for the period from 24.07.2009 to 23.07.2010. Under the above said policy it is stated that at any point of time the business address of the Complainant not been informed to this Opposite Party. That after the intimation of fire accident this Opposite Party appointed a surveyor to assess the loss. The surveyor submitted the preliminary survey report that the a property where the alleged fire broke out is not the described property in the insurance policy and the drier, A.C. sheets, mats and buildings which are caused damage are also not covered under the subject policy. It is stated that Opposite Party called upon the Complainant to submit inter state stock transfer, sales tax, opening stock, purchase and deduction from 01.04.2009 to August. 2009 and the Opposite Party further deputed Mr.C.A. K.Surendra Nayak to assess the loss. After scrutinizing the surveyor report, this Opposite Party assessed the net liability at Rs.60,369/- as against Rs.9,50,000/- claimed by the Complainant and contended that the claim was properly processed and assessed the net liability and there is no deficiency and the Opposite Party depositing Rs.60,369/- and denied the deficiency and prayed for dismissal of the complaint.
III. 1. In support of the complaint, Abhinandan Padival (CW1) – Complainant filed affidavit reiterating what has been stated in the complaint and answered the interrogatories served on him and got marked Ex C-1 to C-4. One Walter Fernandes (RW-1) filed affidavit and answered the interrogatories served on him. On behalf of Opposite Parties one Sri Gopikrishna Rao M., Administrative Officer, Oriental Insurance Co. Ltd., Divisional Office, Mangalore (RW-1) filed counter affidavit and answered the interrogatories served on him and Sri Dinesh Kamath (RW-2), Chartered Engineer and Approed Valuer, General Insurance Loss Assessor, Karkala filed counter affidavit and answered the interrogatories served on him and another C.A.K.Surendra Nayak (RW-3) Chartered Account, Udupi and got marked as Ex.R-1 to Ex.R-7.
In view of the above said facts, the points now that arise for our consideration in this case are as under:
- Whether the Complainant proves that the Opposite Party has committed deficiency in service?
- If so, whether the Complainant is entitled for the reliefs claimed?
- What order?
We have considered the notes/oral arguments submitted by the learned counsels and also considered the materials that was placed before this Forum and answer the points are as follows:
Point No.(i): Affirmative.
Point No.(ii) & (iii): As per the final order.
REASONS
IV. 1. POINTS NO. (i) TO (iii):
In the instant case the facts which are admitted that the Complainant obtained standard fire and peril policy bearing No. 670800/11/89/1100000893 valid from 24.07.2009 to midnight of 23.07.2010. It is also not in dispute that on 30.09.2009 accidentally the fire broke out at the Complainant’s business unit at Door No.5-82, K.V. Compound, Nagapatna, Mithadka, Aletti, Sullia.
Now the points are in dispute between the parties before the Fora is that the Complainant contended in the above said accident loss suffered by him was estimated at Rs.9,50,000/- and thereafter all the documents pertaining to the accidents submitted to the Opposite Party for an early settlement of his claim but the Opposite Party not settled the claim. Hence this complaint.
The Opposite Party on the contrary contended that after the fire accident they have deputed the surveyor to assess the loss after scrutinizing the report of the surveyor, the net liability has been calculated as Rs.60,369/- as against the claim of Rs.9,50,000/- made by the Complainant and denied the deficiency and prayed for the dismissal of the complaint.
On perusal of the oral as well as documentary evidence available on records, we find that the Complainant obtained a Standard Fire and Special Perils Policy. During the validity of the policy, accidentally the fire broke out at the Complainant’s unit Door No. Door No.5-82, K.V. Compound, Nagapatna, Mithadka, Aletti, Sullia of D.K. Dist. However after the accident the Opposite Party deputed a surveyor by name Dinesh Kamath who in turn assessed the loss after scrutinizing all the relevant papers required by him to assess the net loss and submitted preliminary report on 21.11.2009 and subsequently submitted final report on 26.02.2010. The said report reveals that the Complainant has been running a Coca Processing Unit in the name and style of M/s Padival Food and Spices Sullia with its retail shop on the ground floor of Akshata Kala Mandir Complex, Sriram Pete, Sullia bearing Door No.III-142/3 of Town Panchayath, Sullia and processing unit consisting dryer from a leased premises at Door No.5-82 K.V. Compound, Nagapatna Mithadka since 2003 and the said business is proprietorship concern. On receipt of the instruction from the insured the Opposite Party deputed M.Dinesh Kamath who is a licensed Chartered Engineer approved Valuer, General Insurance Loss Assessor assessed the net loss at Rs.3,09,690/- after adjusting the loss and deducting the depreciation of 50% towards its usage since 2003. On scrutiny of the survey report the value of the closing stock held by the Complainant on 31.08.2009 according to the stock statement submitted to the bank is Rs.7,57,105/- fwhereas the value of the same complied from the books of account and shown in this stock statements prepared on the bvasis of the books of account is Rs.9,36,200/-. The same value has been shown under opening stock for the month Setp. 2009. In for former the quantity was not sh own whereas in the later the quanitity shown was 4,100/- Kg. Raw Coca valued at Rs.1,43,500/-Hand Rs.5,0960/ Kgs. Valued at Rs.7,93,700 in all Rs.9,36,200/- Further in the month of Sept.. The value for the closing stock is Rs.9,37,765/- as per the statement submitted to the bank etc. The surveyor found discrepancy as per the value of the stock shown in the above statements but had given explanation stating that it is inter transfer of the one location to other but both belonging to the claimant and there are two delivery notes bearing No.3679634 dated 25.08.2009 and 3680974 dated 04.09.2009 about the transfer of Coca beans 4,058/- Kgs. Valued at Rs.3,35,000/- and Rs.1,812.5 Kgs. Valued at Rs.1,80,000/- respectively and this is inter transfer of stock from one location to other but it belongs to Complainant and the Complainant satisfied the surveyor that the value shown in the delivery note was not the actual cost and is only an approximate cost since it was only the inter transfer of the stock. By discussing in detail and considering the various documents the surveyor assessed the loss according to terms and conditions of the policy i..e Rs.3,09,690/- appears to be genuine. It is settled position of law that the survey report is important piece of material evidence to consider the claim of the Complainant. But the Complainant claimed Rs.9,50,000/- but there is no material evidence to consider the above claim .
Further the Opposite Party in this case appointed second surveyor i.e RW-3 one Mr.Surendrar Nayak who calculated net liability at Rs.60,369/- which appears to be perverse. Because the second surveyor has not assessed the loss that was caused to the building and machinery. However the Opposite Party admits the policy but no documents are produced either to show that the factory at Door No. 5/82 is not proposed to be covered under the policy nor there was a proposal excluding the Door No.5/82. The Opposite Party appointed a second surveyor without any justifiable reason. The report of RW-3 is hereby set aside. The first report of the surveyor is upheld and the Opposite Party is liable to pay Rs.3,09,639/- to the insured herein the Complainant Since the Opposite Party not settled the claim till this date amounts to deficiency in service as well as unfair trade practice.
In view of the aforesaid reasons, we hold that the Opposite Party is directed to pay Rs.3,09,639/- alongwith 12% per annum from the date of complaint till the date of payment and also pay Rs.3,000/- as cost of the litigation expenses without 30 days from the date of receipt of this order.
Interest considered by this For a.
Copy of this order as per statutory requirements, be forward to the parties and file shall be consigned to record room.
(Page No.1 to 6 dictated to the Stenographer typed by him, revised and pronounced in the open court on this the 31st day of May, 2016).
PRESIDENT MEMBER
(SMT. ASHA SHETTY) (SMT. LAVANYA M.RAI)
D.K. District Consumer Forum D.K. District Consumer Forum
Mangalore. Mangalore.
ANNEXURE
Witnesses examined on behalf of the Complainant:
CW1 – P.V.Ravindran – Complainant.
CW2 – Mayyadi S/o Ibrahim, Kotepura, Ullal, Mangalore –
Documents produced on behalf of the Complainant:
Ex C1 – Copy of the Registration Certificate.
Ex C2 – Copy of the Insurance Policy.
Ex C3 – Office copy of the legal notice with postal receipt.
Ex C4 – Postal Acknowledgement
Witnesses examined on behalf of the Opposite Parties:
RW-1: Gopikrishna Rao M. S/o Late Muralidhar Rao M.
Documents produced on behalf of the Opposite Parties:
Ex R1 – Survey Report with all its annexure including statements of crew,
weather report etc.
Ex R2 – Receipt dated 22.08.2010 by Noorsha
Ex R3 – Receipt dated 22.08.2010 by Mr.K.Ismail.
Ex R4 – Receipt dated 30.05.2011 by Mayyadi
Ex R5 – Receipt dated 30.05.2011 by Janardana
Ex R6 – Receipt dated 30.05.2011 by Hussain
Ex R7 – Insurance Policy with terms and conditions
(Original is with the Complainant)
Dated:31-05-2016 PRESIDENT
