PER JUSTICE MR. A.P.BHANGALE, HON’BLE PRESIDENT.
1) Heard the submissions of advocates of both parties and also perused the written submission tendered on record. The complaint is filed by Veekay Enterprises through proprietor Shri Vinay Hajarilal Agrawal against the opposite party/insurance company on the ground that the complainant is carrying out its proprietary business had insured the stock containing coal product and such other goods for total sum of Rs.53,00,000/- under insurance policy with duration during 28/04/2010 to 27/04/2011. In the cover note description of list has been stated. It was issued to the complainant. The case of the complainant is that complainant was not made aware of alleged conditions, warranties endorsement by the opposite party.
2) On or about 09/08/2010, while laborers were lifting the coal for unloading it in the truck had noticed fire which was reported to Manager, Shri Tiwari who was on the site on behalf of the complainant. Thereafter, when complainant was informed, he had rushed to the site and seen that fire was spreading like anything. He had called for fire extinguishers, but could not save the stock. He had reported the matter to Police Station at Kamtee. It was the case of sudden fire to the coal worth sum of Rs.25,00,000/- due to which complainant suffered sum of Rs.25,00000/- as a result of fire incident. 3) According to opposite party a letter was issued to Punjab National Bank to disown the liability as insurance was taken at the instants of Punjab National Bank on behalf of complainant, mentioned as broker in the Standard Fire and Special Perils Policy. The cover note of the policy indicated that for consideration of premium in the sum of Rs.33,920/-, the sum insured was Rs.53,00,000/-. It appears that survey report was under taken by one Shri K.B.Chandak dated 28/09/2010 who noted that one Mr.Pankaj Agrawal, partner of the insured concerned accompanied him and gave related information about the loss. According to learned advocate for opposite party the said Pankaj Agrawal is not made a party to the proceeding nor complainant has impleaded him as a party. It appears that the surveyor Shri K.B.Chandak on the basis of statement made by Shri Pankaj Aagrawal, appears to have said thus “As because of loss in a spontaneous combustion which is not covered in a policy, there is no liability of insured in the loss as the insured has not submitted plain form and other papers, quantum of loss could not be assessed, I am submitting this report as no claim”
4) On this basis it appears that the opposite party contended that there was no evidence that the complainant was sole proprietor and contended that the policy was in the name of firm and not individual’s policy.
5) Material on the facts indicate that the policy was undertaken in the name of the proprietor of the complainant Vinay Agrawal through the broker/Punjab National Bank and in the course of correspondence repudiated letter was sent to Punjab National Bank and not to the complainant who was proprietor of his proprietary firm described as Veekay Enterprises. According to opposite party/insurance company original policy of the insurance was not handed over to the complainant, only cover note was handed over. Therefore can not be argued that the complainant was well aware of the terms and conditions of the insurance policy. On the pretext that sudden combustion resulting in fire could not entitle the complainant to claim compensation for loss of the stock. Further according to the opposite party/insurer, incident of fire occurred on 09/08/2010 which was reported to insurer on 12/08/2010 and thereafter insurer has deputed the surveyor to visit the stock in order to assess the loss and made partner described as one Pankaj Agrawal. Thus it is contended that the complaint is not filed within period of two years from the date of cause of action. In our view, it thus appears that the incident was immediately reported to policy chouky in charge Kapsi which was under the local limits of Kamptee Policy Station, Nagpur Gramin. On the basis of documents produced on behalf of the opposite party/insurer, it appears that police had noted the incident of fire reported by the complainant whereby coal on the site was turned in to ashes which was to the tune of 600 tons valued at Rs.18,00,000/-. We must note that complainant has not filed any documents recording the spot panchanama inrespect of the incident drawn by police. This appears to be only policy document which is filed by opposite party/insurer.
6) Regarding the objection as to bar of the limitation, in our view unless the loss reported to the opposite party No.1 and claim is repudiated or denied by addressing a letter to the complainant infact no cause of action could occur to file the complaint. But since the complainant suffered losses as a result of fire and made a police complaint and letter dated 11/06/2013 was addressed by the opposite party No.1 to Senior Manager, Punjab National Bank to deny the liability under insurance policy which was broker in the insurance contract. In our view, the question of limitation inrespect of this complaint filed on 30/05/2015 does not suffer from the bar of limitation. As according to the complainant for the first time complainant came to know on 27/07/2013 about the repudiation of the claim pursuant to letter dated 25/07/2015 addressed to the broker/Punjab National Bank. Thus in clause No.19 of the complaint pleading is made specifically to the effect that there is no bar of limitation under the circumstances. The ruling therefore in Harbhajan Sharma…….V/s……Haryana Urban Development Authority, reported as 2015 CJ 419 (NC) is not attracted in the facts and circumstances of the present case. As the cause of action arose infavour of the complainant when he came to know about the denial by the insurer through a letter address to the borker/Punjab National Bank. It is Standard Fire and Special Perils Policy in the list of item perils covered (a) is a fire. According to learned advocate for the opposite party No.1 combustion of fire could not be covered in the peril. However, except the report of the surveyor which is merely interested word ‘mere reference in the document that police must have enquired to the incident is not enough’. The only police document which is coming on the record produced by opposite party No.1 does indicate that the incident of fire had occurred on 09/08/2010 and police had visited the spot indicating in report made by the complainant has reported about loss of 600 ton coal which turned in to ashes resulted in the aggregate total loss of Rs.25,00,000/-(Twenty Five Lakhs only).
7) Considering the losses covered under the insurance policy to the tune of Rs.53,00,000/- inrespect of all kind of coal and coal dust, coal products and such other goods for which premium was paid in the sum of Rs.23,920/- with sum insured maximum to the extent of Rs.52,00,000/- under the policy of insurance read together with document referred to us in the course of submission. In our view, in the interest of justice, considering the facts and circumstances of the case, we are inclined to award 75% of the sum of Rs.25,00,000/- i.e. sum of Rs.18,00,000/- on non-standard basis as approximate loss in the police report addressed to Incharge Police Chowki, Kapsi which appears noted by Police Inspector, Police Station, Kamtee, Nagpur Gramin. By not paying the losses accordingly know to the opposite party No.1, there was a deficiency in service on the part of opposite party No.1/insurer. Therefore we partly allowed this complaint as under.
// ORDER //
1) The opposite party No.1 is liable to compensate 75% of the sum of Rs.25,00,000/- i.e. sum of Rs.18,00,000/- reported by the complainant to the police for loss of about 600 tons coal, as per police report dated 11/08/2010 acknowledged by Police Inspector, Police Station Kamptee, Nagpur Gramin. The said amount be paid with interest @ 9% p.a. from the date of the complaint till realisation.
2) In addition opposite party No.1 shall pay sum of Rs.25,000/- as compensation for mental and physical harassment caused to the complainant and sum of Rs.5,000/- towards cost of the complaint.
3) We accordingly allow the complaint partly.
