| ORDER | BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMRITSAR. Consumer Complaint No. 489 of 2014 Date of Institution: 08-09-2014 Date of Decision: 02-09-2015 M/s.Shri Vishnu Industries, 29-Old Cloth Market, Purani Market, katra Ahluwalia, Amritsar through its proprietor, Harsh Rawelly. Complainant Versus The Oriental Insurance Company Limited, 28, 2nd Floor, Dharam Singh Market, Amritsar through its Branch Manager. Opposite Party Complaint under section 12 & 13 of the Consumer Protection Act, 1986 as amended upto date. Present: For the Complainant: Sh. Updip Singh, Advocate For the Opposite Party: Sh. P.N.Khanna, Advocate Quorum: Sh.Bhupinder Singh, President Ms.Kulwant Kaur Bajwa, Member Mr.Anoop Sharma, Member Order dictated by: Sh.Bhupinder Singh, President. - Present complaint has been filed by the complainant under the provisions of the Consumer Protection Act alleging therein that on 17.8.2013 the stock of the complainant concern, which was insured with Opposite Party vide insurance policy No. 235302/11/2014/164 valid from 18.7.2013 to 17.7.2014, got damaged due to heavy rain in the area of factory premises of the complainant. The loss was Rs.1,93,150/-, covered within terms and conditions of the policy issued by Opposite Parties, accordingly, the same was reported to the office of Opposite Party who lodged the claim vide claim No. 235302/11/2014/000005 and deputed Er.J.S.Malhotra, Surveyor to assess the loss. Complainant further alleges that despite the surveyor completed the survey and whatever record has been demanded by him, had already been supplied to him, said surveyor after making himself satisfied with the record pertaining to loss, assessed the loss, but no report of surveyor submitted by him with Opposite Party has been supplied to the complainant nor payment of the claim has been made, rather now vide letter dated 18.3.2014 as well as further e-mails on the subject, again Opposite Party has started demanding further irrelevant record which has got nothing to do with the settlement of the claim, still proper reply to the queries raised by Opposite Party has been answered by the complainant, but the claim has not been settled so far. Due to non settlement of the claim for long, the salvage has been totally destroyed and is now having zero value, rather complainant shall have to make payment of labour charges for its disposal and lifting from the site. Alleging the same to be deficiency in service, complaint was filed seeking directions to the opposite party to pay Rs.1,90,150/- actual loss with interest @ 18% per annum from the date of claim till date of payment. Compensation and litigation expenses were also demanded.
- On notice, Opposite Party appeared and filed written version in which it was submitted that on receipt of intimation regarding the loss suffered by the complainant, Mr.J.S.Malhotra, Surveyor was deputed and said surveyor vide his letter dated 29.8.2013 demanded number of documents
 , but the same were not supplied and as such, the said surveyor submitted his report dated 3.3.2014 on the basis of documents produced by the complainant concern before him. However said surveyor has also given reference of the intimation letter written by the complainant concern to the Opposite Party regarding the loss suffered by them with respect to their stocks and in the said intimation letter dated 19.8.2013, it has been clearly confirmed by the complainant that on account of heavy rain, there was leakage of water in the shed on 18.8.2013 and resulting in damage of yarn etc. and approximate loss was also stated as Rs.2 lacs. However, when Mr.J.S.Malhotra, Surveyor visited the site, the complainant concern stated that “due to heavy and continuous rain, the main road sewerage got blocked and the rain water level at road roses up and entered into the insured premises through main gait causing huge loss to stock lying there.” The information was totally contrary to the intimation letter and as such, although the said surveyor quantified the loss to the tune of Rs.61,883.66, yet the said surveyor has clearly referred in his report that as per intimation letter the insured has mentioned that the loss has occurred due to leakage of rain water in the shed, but during his visit, they stated that the loss has been caused on account of rain water due to blockage of road sewerage which is totally contrary to the first information given by the insured to the company. From this remarks as well as intimation letter dated 19.8.2013 written by the complainant, it is clear that in fact the alleged loss if any was caused on account of leakage which is not covered under the Fire Policy and the complainant having knowledge of this fact subsequently tried to change its version in order to get wrongly claim which is not payable, has hanged its stand regarding the cause of loss from leakage of the shed to entering of rain water in the premises. In fact under the Fire Policy on the basis of which the present complaint has been filed, any loss caused on account of leakage/ seepage is not payable. Even otherwise, the present complaint is pre-mature because the complainant concern did not supply the relevant documents demanded by the surveyor, therefore, the complainant concern has failed to make the compliance which it is obliged to fulfill the same and as per the terms and conditions of the policy, it has been clearly agreed that if the insured fails to make the compliance of the obligation placed upon him, he loses all benefits under the policy and can not get any relief from the court on the basis of said policy. While denying and controverting other allegations, dismissal of complaint was prayed. - Complainant tendered into evidence his affidavit Ex.C1 alongwith documents Ex.C2 to Ex.C9 and closed the evidence on behalf of the complainant.
- Opposite Party tendered into evidence affidavit of Sh.R.K.Sharma, Divisional Manager Ex.OP1 alongwith documents Ex.OP2 to Ex.OP6 and closed the evidence on behalf of the Opposite Party.
- We have carefully gone through the pleadings of the parties; arguments advanced by the ld.counsel for the parties and have appreciated the evidence produced on record by both the parties with the valuable assistance of the ld.counsel for both the parties.
- From the record i.e. pleadings of the parties and the evidence produced on record by the parties, it is clear that the complainant got the insurance policy regarding the stock from Opposite Party vide insurance policy No. 235302/11/2014/164 valid from 18.7.2013 to 17.7.2014 Ex.OP6. On 17.8.2013, the stock of the complainant concern got damaged due to water entering into factory premises as a result of heavy rain and the complainant suffered loss to the tune of Rs.1,93,150/-. The matter was reported to the Opposite Party vide claim No. 235302/11/2014/000005. Opposite Party deputed Er.J.S.Malhotra, Surveyor to assess the loss. The complainant supplied all the relevant documents to the surveyor who finally submitted his report, but the Opposite Party did not settle the claim of the complainant. Ld.counsel for the complainant submitted that all this amounts to deficiency of service on the part of the opposite party.
- Whereas the case of the Opposite Party is that on receipt of intimation regarding the loss suffered by the complainant, Mr.J.S.Malhotra, Surveyor was deputed to assess the loss and said surveyor vide his letter dated 29.8.2013 Ex.OP4 demanded certain documents from the complainant which were not supplied. However, he has submitted his report dated 3.3.2014 Ex.OP5 assessing the loss to the tune of Rs.61,883.66. Said surveyor clearly referred in his report that as per the intimation letter, the insured has mentioned that loss has occurred due to leakage of rainy water in the shed, but during his visit, the complainant stated that loss has been caused on account of rain water being entered in to premises of the complainant due to blockage of road sewerage which is totally contradictory to the first information given by the insured to the Opposite Party. The complainant has changed his stand regarding the cause of loss. Resultantly, the claim is not payable being not covered under the Fire Policy. Ld.counsel for the opposite party submitted that there is no deficiency of service on the part of the Opposite Party.
- From the entire above discussion, we have come to the conclusion that the complainant firm got the insurance policy Ex.OP6 from the Opposite Party valid for the period from 18.7.2013 to 18.7.2014 covering material stored in the godown premises of the complainant firm. The policy covers the loss to the stock stored at the premises of the complainant firm due to Storm, Cyclone, Typhoon, Tempest, Hurricane, Tornado, Flood and Unundation. On 17.8.2013, the stock of the complainant concern got damaged due to water entering into factory premises as a result of heavy rain. The matter was reported to the Opposite Party and the Opposite Party deputed Er.J.S.Malhotra, Surveyor to assess the loss. Er.J.S.Malhotra, Surveyor submitted his report Ex.OP5 assessing the loss to the tune of Rs.61883/-. The complainant could not point out any defect in the surveyor report nor could point out what matter has been left unconsidered by the surveyor in his report. It has been held by the Hon'ble National Commission in case Hind Auto Center Vs. National Insurance Co.Ltd IV(2014) CPJ 356 (NC) that where the complainant has not led any cogent and convincing evidence to rebut report of surveyor, mere assumption and presumption by way of affidavit of complainant cannot be taken as trustworthy and the District Forum and the Hon'ble State Commission basing the decision on survey report was held to be genuine. Same view has been taken by the Hon'ble National Commission in case Rajendra Singh Yadav Vs. National Insurance Co.Ltd. IV(2014) CPJ 269 (NC) as well as in case Champalal Verma Vs. Oriental Insurance Co.Ltd. III(2008) CPJ 93 (NC). The Hon'ble National Commission in case Chanan Preet Singh Vs. United India Insurance Co.Ltd. & Ors 2012(3) CLT 119(NC) has held that the report of the surveyor is a credible document which must be relied upon unless controverted by credible proof of any infirmity in its findings. Same view has been taken by the Hon'ble National Commission in case New India Assurance Co.Ltd. & Anr. Vs. New Good Luck Retrading Works III(2009) CPJ 262 (NC).However, the policy in question duly covers the damage to the stock of the complainant concern due to Storm, Cyclone, Typhoon, Tempest, Hurricane, Tornado, Flood and Unundation. However, the Opposite Party did not settle the claim of the complainant only on the ground that surveyor has mentioned in his report Ex.OP5 that as per intimation letter dated 19.8.2013 Ex.OP3 given by the complainant the complainant has stated that on account of rainy water there was leakage of water in the shed resulting into yarn etc. and approximate was upto Rs.2 lacs whereas during the visit of surveyor, the complainant has stated tht loss has been caused on account of rain water being entered into the premises due to blockage of road sewerage which is contradictory to the first information given by the insured. The Opposite Party was not justified in not settling the claim of the complainant on this ground because stock of the complainant was damaged due to entering of water into the premises of the complainant concern as a result of heavy rain, may be due to blockage of road sewerage or otherwise.
- Resultantly, we hold that the complainant is entitled to the amount of loss as assessed by the surveyor vide his report Ex.OP5 to the tune of Rs.61,883/-. Consequently, we partly allow the complaint with costs and the Opposite Party is directed to pay this amount of Rs.61,883/- as assessed by the surveyor to the complainant, within one month from the date of receipt of copy of this order, failing which the Opposite Party shall be liable to pay interest @ 9% per annum on the aforesaid amount from the date of filing the complaint till the payment is made to the complainant. The Opposite Party is also directed to pay the litigation expenses to the complainant to the tune of Rs.2,000/-. Copies of the order be furnished to the parties free of cost. File is ordered to be consigned to the record room. Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Forum.
Dated: 02-09-2015. (Bhupinder Singh) President hrg (Anoop Sharma) (Kulwant Kaur Bajwa) Member Member | |
