Per:- Mr. Deshpande, President Place : BANDRA JUDGMENT The Opposite Party No.1 is an insurance company dealing in general insurance, while the Opposite Party No.2 is an agent of the Opposite Party No.1 – Insurance Company. The Complainant runs business of supply of A.C. Copper wire, D. C. Wire, aluminum and solder wire and other electrical goods & material. The Complainant had taken an insurance policy from the Opposite Party No.1 – Insurance Company; covering risk of goods stored in his shop and the sum assured was of Rs.10,00,000/-. [2] It is alleged by the Complainant that on 26/7/2005, there were unprecedented rains at Mumbai and flood water gushed into his shop and the rain-water damaged goods worth Rs.5,73,076.60ps., stored in and lying on the ground on the floor of his shop. Since the water had accumulated in the shop, the Complainant could not remove the material. [3] On 28/7/2005, the Complainant submitted an application to the Opposite Party No.1 and mentioned that approximately he has suffered loss in sum of Rs.4,00,000/-. The Opposite Party No.2, on behalf of the Opposite No.1 – Insurance Company; visited the shop of the Complainant on 6/8/2005 and conducted the inspection and found that the water level had risen up to 18 inches in the said shop. The Opposite Party No.2 also took photographs of the damaged goods as well as condition of the floor of the shop. The Opposite Party No.2 then, asked the Complainant to submit certain documents, which the Complainant complied with. There had been correspondence between the Complainant, on one hand and the Opposite Party No.2, on the other with regard to the claim lodged by the Complainant. In the meantime, the Complainant sold damaged material as scrap goods to M/s. Mahavir Enterprises for sum of Rs.2,01,719/-. The Opposite Party No.1 – Insurance Company; paid Rs.50,000/-, by a cheque on 14/9/2005. On having long correspondence with the Complainant and collecting number of documents, the Opposite Party No.1 – Insurance Company; passed an order on 10/2/2006 to allow the claim to the extent of Rs.3,000/- only, beyond Rs.50,000/-, which was already paid by the Opposite Party No.1 – Insurance Company; to the Complainant. The Complainant then, served a legal notice on the Opposite Party No.1 and then, filed present complaint seeking recovery of compensation in sum of Rs.5,23,076.61ps., towards the insurance claim and sum of Rs.2,00,000/- as compensation towards mental agony and hardship. [4] The Opposite Party No.1 – Insurance Company; contested the complaint by filing written version and admitted that the Complainant has insured his shop with the Opposite Party No.1 – Insurance Company; and the insurance policy was valid and active. However, the Opposite Party No.1 – Insurance Company; denied the allegations in the complaint that goods worth Rs.5,73,076.61ps., were stored in the Complainant’s shop when the rain-water flooded into shop. The Opposite Party No.1 – Insurance Company; referred to letter dtd.28/7/2005, sent by the Complainant to the Opposite Party No.1, whereunder he had stated that goods worth Rs.4,00,000/- approximately were damaged. The Opposite Party No.1 – Insurance Company; relied upon report submitted by the Opposite Party No.2, as a surveyor, and took stand that the claim was excessive & malafide. It thus justified its assessment of claim to the extent of Rs.53,000/- out of which, an amount of Rs.50,000/- was paid on account as an advance. [5] The Opposite Party No.2 despite due service of notice of appearance issued by this Forum, chose to remain absent and did not file its written version on the record as called for by this Forum and as such, it was set ex-parte. [6] The Complainant has filed his affidavit of evidence and documents. The Opposite Party No.1 – Insurance Company; also relied upon certain documents. The Complainant filed his rejoinder to the written version filed by the Opposite Party No.1 – Insurance Company. [7] We have heard the oral arguments of learned advocates representing the parties to the complaint proceeding. [8] We take the points that arise for our consideration and record our findings there-against as below:- Sr. No. | Points for consideration | Findings | 1. | Whether the Complainant has proved that by allowing his claim only to the extent of Rs.53,000/-, the Opposite Party No.1 – Insurance Company; has shown deficiency in service? | YES | 2. | Whether the Complainant is entitled to recover an amount of Rs.5,23,076.61ps., towards the insurance claim? | NO. However, he is entitled to recover from the Opposite Party No.1 – Insurance Company; an amount of Rs.3,18,521/- together with interest thereon. | 3. | What order? | The complaint is partly allowed. |
REASONS FOR FINDINGS [9] There is no dispute between the parties as regards the fact that the Complainant’s shop was insured with the Opposite Party No.1 – Insurance Company; and the insurance policy was valid on the day of alleged incident. There is also no dispute about the fact that on 25/7/2005, there had been unprecedented rains at Mumbai and there was blockage of rain-water in the low areas and there is also no dispute about the fact that the rain-water had entered into the Complainant’s shop. The dispute between the parties pertains to extent of value of goods damaged due to rain-water. [10] The Complainant has produced copies of all bills under which he purchased different types of goods before 25/7/2005 to show that goods worth Rs.5,73,076.61ps., were stored in his shop when the rain-water entered into the shop. At page (40) of the compilation of the complaint, the Complainant has filed a statement giving particulars of different types of goods purchased by him from the month of November-2004 onwards. Most of the goods were enamel copper wires & copper strips. Those were in bundles. Cost of the goods as per this statement was worth Rs.5,73,076.61ps. At Exhibit-I, page (70) of the compilation of the complaint, there is copy of closing stock statement dtd.11/2/2006, which shows that closing stock was worth Rs.5,98,415.59ps. At page (71) of the compilation of the complaint, there is copy of trading and profit & loss account for the period ending on 26/7/2005, which show that in the trading account, the Complainant had shown loss of stock due to flood at Rs.5,73,076.61ps. In the Capital Account, page (73) of the compilation, net loss was shown at Rs.5,28,508.69ps. All these accounts were certified by a Chartered Accountant. The Opposite Party No.1 – Insurance Company; denied averments in the complaint that stock in the shop was worth Rs.5,73,076.61ps. The Opposite Party No.1 – Insurance Company; has not produced any documentary evidence in rebuttal to show that goods worth less than the above amount were stored in the Complainant’s shop. [11] The Complainant has produced certain photographs, at Exhibit-C, at pages (60), (61) & (62) of the compilation, which show that entire floor of the Complainant’s shop was covered with mud and drench, which was clogged there due to drain water. No doubt, in the photographs certain bundles of wires appear to be neatly arranged, but fact remains that the Opposite Party No.2 – Surveyor; had visited the Complainant’s shop on 6/8/2005 i.e. after 15 days of incident. In the affidavit of rejoinder filed by the Complainant, it is stated by the Complainant that due to sudden accumulation of water in the premises, the Complainant shifted as many goods as possible on the loft and on the drawer and the heavy articles remained on the floor. The Complainant could not lift & shift the same to the loft. Those articles or wires, which were on the loft, were not damaged, but rest of the bundles of wires, which were on the floor were extensively damaged. In the meantime, the Complainant could not keep the shop closed and before the visit of the Opposite Party No.2 on 6/8/2005, he had cleared the mud as well as spoilt goods. Keeping the shop in same condition could have been hazardous to the health of the Complainant as well as his servants. That could have further caused loss due to closing of business. In the complaint as well as in the affidavit of rejoinder the Complainant has deposed that most of the material was consisting of bundles of super enamel copper wires and the coating of the wires was damaged due to rain-water and once the coating is damaged, wires become waste material. Thus, such material was completely spoilt and had become waste material. [12] The Opposite Party No.1 – Insurance Company; on the other hand, has not filed an affidavit of the Opposite Party No.2 – Surveyor; to substantiate the contention that the goods worth Rs.53,000/- only were damaged and the claim was excessively exaggerated. It was possible for the Opposite Party No.1 – Insurance Company; to substantiate its contention that the goods as mentioned in the complaint were not actually spoilt or damaged. Thus, no evidence in rebuttal has been adduced by the Opposite Party No.1 – Insurance Company. [13] The Opposite Party No.1 – Insurance Company; has relied upon the letter dtd.28/7/2005, a copy of which is produced on the record at Exhibit-B, written by the Complainant to the Opposite Party No.1 – Insurance Company; in which the Complainant had stated that goods worth Rs.4,00,000/- were damaged. The incident in question had taken place on 25/7/2006 and this letter was written on 28/7/2005. Before that the Complainant had not made actual assessment of loss. Obviously, the statement in this letter was on approximation, and therefore, it cannot be taken as final figure or an admission on the part of the Complainant to hold that initially he had admitted that loss in sum of Rs.4,00,000/- was caused to him. In any case, the Opposite Party No.1 – Insurance Company; does not admit that loss in sum of Rs.4,00,000/- was caused to the Complainant. Thus, the Opposite Party No.1 – Insurance Company; also does not accept that statement in the letter, and therefore, no weight could be attached to the same. [14] The Complainant, in the complaint, has alleged that goods worth Rs.5,73,076.61ps., were stored in the shop and those were damaged. According to the Complainant, he received sum of Rs.50,000/- from the Opposite Party No.1 – Insurance Company; as an advance and on deducting that amount, the Complainant has claimed compensation in sum of Rs.5,23,076.61ps. However, in the Capital Account, which is produced on the record at page (74) of the compilation, the Complainant has mentioned total loss in sum of Rs.5,28,508.69ps. We go by the figure and entry recorded in the Capital Account. [15] Admittedly, the Complainant has sold scrap material to M/s. Mahavir Enterprises on 10/8/2005. This was after the visit of the Opposite Party No.2 – Surveyor; which was admittedly held on 6/8/2005. It is alleged in the complaint that the damaged goods were of no use and the Opposite Party No.2 also had suggested the Complainant to dispose of the scrap material and accordingly, scrap material was sold to M/s. Mahavir Enterprises, for sum of Rs.2,01,719/-. The Opposite Party No.1 – Insurance Company; objected this transaction of sale of scrap material on the ground that the Complainant tampered with the evidence and did not preserve the goods. However, admitted fact is that the Complainant sold this material after the visit of the Opposite Party No.2 – Surveyor. It is possible that during the course of inspection, the Opposite Party No.2 – Surveyor; might have noticed the same and pursuant to the discussion between the Complainant and the Opposite Party No.2 – Surveyor; the Complainant might have decided to dispose of the damaged goods. No fault could be found with that act of the Complainant. The Complainant has not concealed the said fact. However, while making arithmetical calculations, the Complainant has not deducted the income or returns, which he received from the sale of scrap. Since the Complainant has received certain amount from the disposal of scrap material, that amount will have to be deducted from the value of the damaged goods i.e. from Rs.5,28,508.69ps. [16] Reverting to the receipts produced by the Complainant, at Exhibit-E page (64) of the compilation, there is a receipt dtd.10/8/2005 in favour of M/s. Mahavir Enterprises issued by the Complainant for sale of scrap material for sum of Rs.2,07,351/-. Added to this, there is another receipt at page (65) of the compilation, also in the name of M/s. Mahavir Enterprises for sum of Rs.2,636/-. Total amount, which the Complainant received from sale of scrap material to M/s. Mahavir Enterprises, comes to Rs.2,07,351/- + Rs.2,636/- = Rs.2,09,987/-. This amount will have to be deducted from the net loss in sum of Rs.5,28,508.69ps., has shown in the Capital Account. On deducting this amount, the balance comes to Rs.3,18,521/-. Out of this, the Complainant has already received a sum of Rs.50,000/- from the Opposite Party No.1 – Insurance Company, and therefore, that amount will also have to be deducted. Balance amount comes to Rs.2,68,521/-. The Complainant is entitled to recover this amount from the Opposite Party No.1 – Insurance Company; as the value of the damaged goods under the insurance policy. [17] So far as claim of compensation towards mental agony & hardship is concerned, we are going to award interest @ 9% p.a., as from the date of complaint, and therefore, we are not inclined to award any separate amount by way of compensation. In the result, we proceed to pass the following order:- ORDER The complaint is partly allowed. The Opposite Party No.1 – Insurance Company; is hereby directed to pay to the Complainant sum of Rs.2,68,521/- together with interest thereon @ 9% p.a., as from 29/Sept/2007 till realization of entire amount by the Complainant. The Opposite Party No.1 – Insurance Company; shall also pay to the Complainants, costs in sum of Rs.5,000/-. The Opposite Party No.1 – Insurance Company; shall comply with the foregoing order within a period of four weeks from the date of receipt of this order. The complaint, as against the Opposite Party No.2, stands dismissed. Rest of the claims of the Complainant stands rejected. Parties shall be informed accordingly, by sending certified copies of this order.
| | [HONABLE MRS. Mrs.DEEPA BIDNURKAR] Member[HONABLE MR. Mr. J. L. Deshpande] PRESIDENT[HONABLE MR. MR.V.G.JOSHI] Member | |
