Orissa

StateCommission

CC/26/2021

M/s. Radha Raman Cotgin (Pvt. ) Ltd., - Complainant(s)

Versus

The Oriental Insurance Co. Ltd., - Opp.Party(s)

M/s. U.C . Mohanty & Associates.

13 Jun 2023

ORDER

IN THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION
ODISHA, CUTTACK
 
Complaint Case No. CC/26/2021
( Date of Filing : 29 Dec 2021 )
 
1. M/s. Radha Raman Cotgin (Pvt. ) Ltd.,
represented through its Director., Mr. Adarsh Agrawal, S/o- Binod Kumar Agrawal, At- Kapani, Belapada, Kantabanjhi, Dist- Bolangir, Odisha.
...........Complainant(s)
Versus
1. The Oriental Insurance Co. Ltd.,
Having its Head Office at- Oriental House, A-25/27, Asaf Ali Road, New Delhi 110002, represented through its Chairman-cum-Managing Director, CMD
2. The Regional Manager, Oriental Insurance Co. Ltd.,
regional office-I, 1st Floor, R.K. Plaza, Panchpedi naka, Ring Road-1, Raipur, Chhatisgarh.
3. The Oriental Insurance Company Ltd.,
represented through its Senior Divisional Manager, Division Office, 1st Floor, Shivanath Complex, G.E. Road, Supela, Bhilai, Chhatisgarh.
............Opp.Party(s)
 
BEFORE: 
 HON'BLE MR. JUSTICE Dr. D.P. Choudhury PRESIDENT
 HON'BLE MR. Pramode Kumar Prusty. MEMBER
 HON'BLE MS. Sudhiralaxmi Pattnaik MEMBER
 
PRESENT:M/s. U.C . Mohanty & Associates., Advocate for the Complainant 1
 M/s. P.K. Mahali & Assoc., Advocate for the Opp. Party 1
Dated : 13 Jun 2023
Final Order / Judgement

               Heard learned counsel for both the parties.

2.        Here is a complaint case filed under Section 47(1) of the Consumer Protection Act, 2019 (herein called ‘The Act’) by alleging deficiency in service and unfair trade practice on the part of opposite parties.

FACTS

3.        The factual matrix of the complainant’s case is that  it has purchased a policy namely “Standard Fire & Special Perils Policy” covering the period from 23.12.2017 to 22.12.2018 from the opposite parties for covering the risk of the factory, plant, building, godown and other parts of the factory including the premises.

4.        It is alleged inter alia that on 30.4.2018, due to short circuit there was fire to the plant, machinery, building and the stocks stacked in the godown. Thereafter, the matter was informed to the police on 1.5.2018 and also to the insurer. The insurer took time to depute the surveryor. On 1.5.2018, the Asst. Director of Factories and Boilers Bolangir Zone inspected the site and submitted preliminary investigations to the Director of Factories and Boilers Odisha, Bhubaneswar. . It is alleged that on 5.5.2018, the opposite party appointed Mr.Rohit Kumar Singla, Surveyor, who visited the plant and examined all the documents etc. He also called for certain documents from the complainant. Even if the Surveyor has got documents, yet they did not settled the claim. The complainant requested on many occasion to settle the claim for Rs. 9,30,67,844.66. Since the matter was not settled by the opposite parties, the complaint was filed.

5.        Per contra, opposite parties 1 to 4 filed written version admitting that the policy in question was produced by the complainant for the period as stated above. The Surveyor has been appointed and he has assessed the loss at Rs. 1,40,44,726/-. It is also stated that the Surveyor has objected to settle the claim due to violation of the policy condition that the documents of the claim do not tally each other and he found that there is fraudulent representation. Therefore, there is no deficiency in service on their part and the complaint petition is not maintainable.

ISSUES

6.        After going through the pleadings of both the parties, two issues involved for  consideration:

  (I)   Whether the complainant has proved the case and proved the deficiency in service on the part of the opposite parties?

   (II)    Whether the complainant has proved the case to get any compensation, if so, the quantum of compensation?

ISSUE NO.I 

7.        Learned counsel for the complainant submitted that in respect of the policy being valid and the matter being informed, the Surveyor did not make the survey properly and no survey report was given to him. Further, he submitted that consent letter for Rs.1,40,00,000/- has been obtained in duress from the accountant of the complainant. According to him, the loss computed and compensation have not been settled.

8.        On the other hand, learned counsel for the opposite parties submitted that they have no deficiency in service because immediately after the matter is reported, they have deputed the License Surveyor who has made details survey, but the complainant did not provide all the documents and the documents so provided did not tally each other. However, they have computed the loss and have also obtained the consent of complainant to seller in the matter of such amount.

9.        After going through the pleadings and submissions of both the parties, we find that as per settled law, the complainant has to prove the entire case and deficiency in service on the part of the opposite parties. In this case, the complainant has examined one witness and produced documents whereas the opposite parties in order to rebut the case of the complainant has examined one witness and also produced documents. It is settled law that the facts admitted need not be proved. On going through the evidence of the complainant-C.W.1, it appears that they have insured the policy which admitted that the occurrence of fire accident took place and the matter was  reported to the authorities, the police and the insurer immediately.

10.      The evidence of C.W.1 shows that they have produced all the documents before the Surveyor but the opposite party did not provide any information in order to settle the claim. Rather they have obtained one document from the accountant of their company to show that the claim has been settled at Rs.1,40,00,000/-.

11.      It is revealed from his statement that the document has been obtained from the Accountant of the Comp any by duress. The letter of repudiation has not been received by them as per the statement of C.W.1. Rather, it is revealed from the evidence that they have called several experts including the Civil Engineer who have already found the loss to be at Rs.9,00,00,000/-. Since the matter has not been settled according to the letter and no intimation with regard to the report of the Surveyor, there is deficiency in service on the part of the opposite parties. The statement of the complainant only to be considered for the sake of whether there is settlement of the claim but when there is no letter with regard to claim of repudiation received by the complainant, he has proved that he is waiting for settlement of claim. Therefore, the documents as per the complaint petition vide Annexures 1 to 23, the evidence that the statement of claim has not been obtained, but one consent letter has been obtained showing payment of Rs. 1,40,00,000/-. During course of argument, it is found that the aforesaid amount has not been received by them. When the amount has not been received but survey has been made, it amounts to non-settlement of the claim. It is settled law that non-settlement of the claim after obtaining a consent letter from the Accountant of the Company with duress is also unfair trade practice on the part of the opposite parties.

12.      The opposite parties in order to rebut the case of the complainant also adduced evidence and the documents to show that the matter has been settled but it is repudiated because of the observation of the Surveyor. The opposite parties have proved the documents vide Annexures A to E. The statement also shows that policy condition no.1 and 8 which related to fraudulent practice or misuse of any disclosure of material particulars by the complainant are the reason to repudiate the claim. Had there been repudiation of claim, the question of obtaining a consent letter that complainant agreed to receive a sum of Rs.1,40,00,000/- is a question mark on the part of the opposite parties. Had there been total repudiation, there should not have any sort of consent for the settlement of the claim. Therefore, the conduct of the opposite parties is certainly a deficiency in service and unfair trade practice on their part. Without going in detail, it must be observed that fraudulent act of substance must be proved by detail evidence which has not been adduced by the opposite parties. Mere taking of plea of fraudulent action will not justify them to sit over the matter of settlement after obtaining a letter of consent from the accountant of the Company.

13.      Be that as it may, the evidence of opposite parties does not dispel the truth. On the other hand it is not dispute that by evidence and filing of documents, the complainant has proved the  deficiency in service and unfair trade practice on the part of the opposite parties.

Section – 2(11) of the Act defines “deficiency” which is as follows:-

“xxx   xxx   xxx

(g) “deficiency” means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service and includes.”

Section 2(47) of the Act defines Unfair Trade Practice which is as follows:-

“xxx    xxx    xxx

(r) “unfair trade practice” means a trade practice which, for the purpose of promoting the sale, use or supply of any goods or for the provision of any service, adopts any unfair method or unfair or deceptive practice including any of the following practices namely;-

xxx              xxx             xxx”

 

14.      After going through the above provisions and the proved facts, we are of the view that as per the policy conditions, the complainant has proved the deficiency in service and unfair trade practice on the part of opposite parties. The Issue no. II is answered accordingly.

15.      In view of the findings in Issue No.I, the complainant is entitled  to compensation but the quantum of the compensation to be decided. It is true that the Surveyor’s report is always taken as a document for computation of loss unless that document is challenged to be bias. At the same time, we have gone through the Surveyor’s report with the consent of both the parties, we have found that he has computed the loss at  the last part of his report which is as follows:-

COMPUTATION OF NET LIABILITY:

Based upon the above, the net liability become as under:

Sl.No.

Description

Refer Annexure

Amount

 

1.

Gross Assessed Loss

A

Rs.19562570

2.

 

 

3.

 

4.

Depreciation, Salvage, Underinsurance and

Other deductions

Adjusted loss, as per Annexure ‘A’

Less policy excess

 

A

 

 

A

 

A

Rs.  4778648

 

Rs.14783922

 

 

Rs.  739196

 

                Net Liability

 

Rs.14044726

 

16.       It is found that the Surveyor has computed the loss at Rs.47,78,648/- after adjustment of salvage, underinsurance and policy excess etc. But their entire details have not been  adduced. Thus, we do not agree with that. Therefore, net loss as computed by Surveyor is Rs. 1,95, 62,570/- and the complainant is entitled to such amount, ofcourse  the policy excess of Rs7,39,196/-. We are of the view that Rs.1,95,62,570/- minus policy excess is payable by the opposite party to the complainant with interest.

17.       It appears from the  record that although the opposite parties have obtained a consent letter from the accountant of the company, no payment has been made so far as settlement made between the parties. Moreover, also the repudiation letter has not been issued as per the submission of the learned counsel for the complainant. Learned counsel for the opposite party vehemently opposed the same. The fact remains that the written version is not clear to show that the repudiation letter has been issued. It is submitted by the learned counsel for the opposite parties that since the consent letter has been obtained on 15.11,2019, from that date the amount is payable to the complainant.

18.       Therefore, in view of the aforesaid analysis, we are of the view that complaint petition should  be allowed and it is allowed on contest against  O.P. Therefore, the opposite parties are directed jointly and severally to pay Rs. 1,88,23,374/- with interest @10% p.a. from 15.11.2019 till the date of payment is made. Further, the opposite parties are directed to pay Rs.1,00,000/- to the complainant  towards compensation towards mental agony as per evidence of complainant and Rs.15,000/- towards litigation cost. The entire payment shall be made within a period of 60 days from today, failing which the entire amount will be payable with 18% interest from the date 15.11.2019 till the date of payment.

            Supply free copy of this order to the respective parties or the copy of this order be downloaded from Confonet or Website of this Commission to treat same as copy supplied from this Commission.  

 
 
[HON'BLE MR. JUSTICE Dr. D.P. Choudhury]
PRESIDENT
 
 
[HON'BLE MR. Pramode Kumar Prusty.]
MEMBER
 
 
[HON'BLE MS. Sudhiralaxmi Pattnaik]
MEMBER
 

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