This complaint coming up before us for final hearing on                      02-09-11 in the presence of Sri K.V.R.H.Prasad, Advocate for complainant and of Sri P.Vijaya Kumar, Advocate for opposite party, upon perusing the material on record, hearing both sides and having stood over till this day for consideration, this Forum made the following: 

O R D E R

Per Sri M.V.L.Radha Krishna Murthy, Member:

                This complaint is filed under section 12 of the Consumer Protection Act, 1986 praying to pass order in favour of the complainant and against the opposite party for an amount of Rs.3,19,096/- (comprising the value of chilies gutted Rs.2,14,800/-, value of the shed Rs.50,000/- and interest of Rs.54,296/-) with subsequent interest at 12% p.a. from the date of complaint till realization and for costs.

The averments of complaint in brief are as follows:

                Complainant is a partnership firm carrying on business as commission agent in chilies in plot No.25B in Agricultural Market Committee since more than 33 years.  Complainant insured shed in plot No.25B of Agricultural Market Yard, Guntur and dry chilly bags for Rs.50,000/- and Rs.2,25,000/- respectively with the opposite party for the period from 29-03-08 to 28-03-09. 

                While so, on 03-05-08 a major fire accident occurred in the Agricultural Market Committee Yard, Guntur in which huge quantity of chilly bags and also sheds were burnt.  At the time of fire accident 179 chilly bags belonging to farmers were kept in the shop of complainant and the shed was completely burnt. Complainant immediately informed the same to opposite party through telegram on 03-05-08 and furnished claim form to opposite party. The opposite party appointed a surveyor and assessed the loss but did not settle the claim of the complainant. 

                Agricultural Market Committee through its letter                dt.13-07-09 informed the opposite party that the chilies worth Rs.2,25,000/- and the shed constructed by the complainant was gutted. As per the instructions of opposite party, complainant furnished entire information to opposite party.  But opposite party through its letter dt.27-01-10 intimated the complainant that the claim of complainant was repudiated because complainant did not submit the claim forms within time as stipulated by District Administration.  It is amusing to note that the complainant informed the opposite party about the fire accident and furnished all information.  Hence, the entire information is available to the opposite party.  The Agricultural Market Committee, Guntur also informed and issued the certificate about the loss sustained by complainant.  Complainant also furnished entire information on 07-12-09.  The certificates issued by Agricultural Market Committee are important document and they were submitted to opposite party immediately.  Hence, there is no necessity to opposite party to repudiate the claim of complainant on the ground that particulars were not furnished to them in time. The opposite party did not returned documents as mentioned in their letter dt.27-01-10. The repudiation of claim by opposite party amounts to deficiency of service.  Hence, the complaint.

Opposite party filed its version, which is in brief as follows:

                The material allegations mentioned in complaint are false and untenable under law.  The complaint is not supported by specific documentary proof with regard to the alleged loss. As such the claim is not tenable. Merely issuing a telegram dt.03-05-08 intimating about the accident will not entitle the complainant to make any claim against the opposite party based on the alleged policy. If the claim of complainant is true and genuine, the complainant who pretty well knows about various efforts put forward by opposite party for settlement of genuine claims ought to have processed its claim within the time stipulated by the District Administrative Authority in terms of minutes of Joint Review Meeting dt.21-10-09 convened by the Collector and District Magistrate, Guntur with the Insurance Authorities, Commission Agents and the Chairman, Agricultural Market Committee, Guntur. As per the minutes dt.21-10-09 while discussing various aspects of settlement of claim at the earliest point of time by the insurance company it was specifically observed and made it clear that the insurance company has to settle the claims of the Commission Agents on or before 30-11-09 and has to receive the pending claims on or before 31-10-09.  The complainant never processed its claim by submitting necessary documents within the time stipulated by the District Administrative Authority, Guntur as per the minutes of Joint Review Meeting held on 21-10-09.  The complainant finding fault with the insurance company without submitting its claim within the stipulated period i.e., on or before 31-10-09 and alleging deficiency of service on the part of opposite party is not tenable under law.  The opposite party repudiated the claim of complainant on proper and tenable ground.  There is no deficiency of service on the part of opposite party as alleged by complainant.  Hence, the complainant is not entitled to any claim and complaint is not maintainable in law. Hence, the complaint may be dismissed with costs.

                Complainant and opposite party filed their respective affidavits in support of their versions reiterating the same.

                On behalf of complainant Exs.A1 to A11 are marked.  The documents produced by Agricultural Market Committee are marked as Exs.X1 to X3.  On behalf of opposite party Exs.B1 to B5 are marked.

Now the points for consideration are

1. Whether the complainant is entitled for the amount claimed for?
2. Whether there is any deficiency of service on the part of opposite party?
3. To what relief the complainant is entitled to?

POINTS 1 to 3

                The case of complainant is that they are carrying on business as Commission Agents in Agricultural Market Committee (herein after will be referred as AMC) Yard, Guntur in plot No.25B and that the shed and stocks are insured with the opposite party that on 03-05-08, the shed and 179 chilly bags belonging to farmers kept in the shop of complainant were gutted and that the incident was informed to opposite party through telegram on 03-05-09 and submitted the required documents but the opposite party has not settled the claim and repudiated the same even though the claim was genuine and the claim of complainant was in time and that thereby repudiation of claim made by opposite party amounts to deficiency of service.

                The case of opposite party is that there is no specific documentary proof with regard to the loss sustained by the complainant and that the complainant has not furnished the necessary documents within the stipulated time and that therefore the claim of complainant was repudiated on valid grounds.  Hence, there is no deficiency of service on the part of opposite party.

                It is not in dispute that the complainant is doing business as Commission Agent in the Agricultural Market Yard, Guntur in plot No.25B.  It is also not in dispute that the fire accident occurred in the Agricultural Market Committee Yard during the subsistence of policy on 03-05-08. The allegation of the complainant is that 179 chilly bags of farmers were kept in the shop of complainant at the time of accident and that they were gutted in fire accident. But the complainant has not placed any evidence in support of the said claim that there are 179 bags of chilies available in the shop of complainant at the time of fire accident except Ex.A2 affidavit of complainant to that effect.  Basing on the said affidavit (Ex.A8) the Selection Grade Secretary of Agricultural Marker Committee issued certificate to the effect that 179 chilly bags of complainant firm were burnt in the accident.  In Ex.X1 the Secretary of AMC, Guntur stated that the records for the period from 25-04-08 to 03-05-08 are only available and in those records the particulars of farmers mentioned in Ex.A8 affidavit of complainant are not available.

                Subsequent to the fire accident the opposite party appointed an insurance surveyor and he gave report, which is marked as Ex.B4.  In Ex.B4 the surveyor stated that as per the instructions of opposite party dt.12-05-08, he went to AMC on the same day and conducted survey and assessed the loss.  He assessed the net amount of loss to a tune of Rs.2,49,150/-.  Even though the surveyor has inspected the AMC premises and the shop of complainant on 12-05-08 he has not submitted any preliminary report.  He has submitted his report Ex.B4 on 14-12-09 i.e., after a long lapse of one year seven months from the date of his inspection he has submitted a report subsequent to the receipt of copies of documents sent by the opposite party on 08-12-09.  The surveyor stated in his report that at the time of survey he had taken necessary photos of the shop which was totally burnt along with the stocks, that the insured is not in a position to supply stock register and other stock accounts. He stated that the insured has only submitted policy copy, claim form, AMC issue license copy, shed loss estimation and that the insured has not submitted amanth receipts, producers, commission agent talk patties copies and stock register, which was said to be brunt in the fire accident and that the insured has produced an affidavit regarding the particulars of farmers chilies bags, which were not sold to traders and which were burnt in the fire accident and supplied a stock register copy which was prepared basing on the records available information in AMC Office and that the Secretary of AMC verified all the above said documents and filed in order, which were submitted to insurers and the insurers sent the documents for issue of survey reports.  Further the surveyor stated in his report that in this case, the insured sent documents to the insurers and copies to him through register post dt.08-12-09.   A perusal of said report of surveyor Ex.B4 reveals that it was prepared subsequent to 08-12-09 on receipt of documents from the insured/complainant.                   

                The Collector and District Magistrate, Guntur convened a Joint Review Meeting for settlement of insurance claims to the commission agents for the loss of mirchy bags and sheds burnt in the fire accident occurred on 03-05-08 at Mirchy Yard, AMC, Guntur on      21-10-09 and the minutes of the said meeting is marked as Ex.B1. As seen from Ex.B1, in the said meeting the Divisional Managers of insurance companies agreed to settle the claims of the commission agents before 30-11-09 and to receive the pending claims before         31-10-09 and the representatives of commission agents are directed to submit all pending claims before 31-10-09, and if the commission agents failed to submit insurance claims within the stipulated time i.e., 31-10-09 they are personally liable for payment of compensation to the farmers who lost bags in their shops.  Thus the last date for submitting claims to the insurance companies by the commission agents is fixed as 31-10-09 in the meeting held on 21-10-09.           

                The allegation of complainant is that he has insured the shed in plot No.25B in AMC, Guntur and the chilly bags for Rs.50,000/- and Rs.2,25,000/- respectively with opposite party.  But as seen from Ex.A3 (Ex.B2) copy of policy, the materials in open are only insured for Rs.2,75,000/- but neither the shed nor the stocks in the shed are not insured. The materials in open are only insured to a tune of Rs.2,75,000/- as per the policy.  The clause 6(ii) of general conditions of the policy (Ex.B2) is as follows:

                In no case whatsoever shall the company be liable for any loss or damage after the expiry of 12 months from the happening of the loss or damage unless the claim is the subject of pending action or arbitration; it being expressly agreed and declared that if the company shall disclaim liability of any claim hereunder and such claim shall not within 12 calendar months from the date of the disclaimer have been made the subject matter of a suit in a court of law then the claim shall for all purposes be deemed to have been abandoned and shall not thereafter be recoverable hereunder.       

                In support of the said clause in the policy, the learned counsel for opposite party relied on the following decisions:

1.             (2009) 2 Supreme Court Cases 252 between Himachal Pradesh State Forest Company Ltd. Vs. United India Insurance Company Ltd., wherein it was held

                If the policy of insurance provides that if a claim is made and rejected and no action is commenced within the time stated in the policy, the benefits flowing from the policy shall stand extinguished and any subsequent action would be time-barred.  Such a clause would fall outside the scope of section 28 of the Contract Act.  This, in brief, seems to be the settled legal position.        

2.             (1997) 4 Supreme Court Cases 366 between National Insurance Company Ltd. Vs. Sujir Ganesh Nayak & Company Ltd. and another  

                “Condition in insurance policy relieving the insurer from liability for loss or damage unless the claim was raised before the expiry of specified period from the happening of loss or damage, even if the period specified in the condition was shorter than that prescribed by status for filing a suit for that purpose, held, not hit by Section 28 of Contract Act, 1872.”

                   Therefore, in view of the above decisions and in view of general clause 6(ii) of policy, the opposite party is not liable for any loss or damage when there is no claim before 12 months from the date of occurrence.  The date of fire accident is 03-05-08.  As per the above general condition of policy, the claim should have been made before 12 calendar months. But in the meeting held by the District Collector, Guntur, the last date for submitting claims by the insurance agents as already stated above was fixed to 31-10-09 (beyond the period fixed in the general clause 6(ii) of the policy) failing which the commission agents are personally held responsible for payment of compensation to the farmers.  But as seen from Ex.A9 dt.07-12-09, the complainant has submitted the necessary documents to the insurance company beyond the time fixed by the District Collector. Therefore, the opposite party has returned the said documents and repudiated the claim of complainant and informed the same under Ex.A11 dt.27-01-10.  Therefore, it can be safely concluded that the complainant failed to submit the claim along with necessary documents within the time stipulated in the general conditions of policy, as well as the subsequent date fixed by the District Administration in Ex.B1.  Thus the claim of complainant is beyond the period fixed by the District Administration and that therefore, according to Ex.B1, the opposite party is personally liable for the compensation payable to farmers.  Thus we find no deficiency of service on the part of opposite party in repudiating the claim of complainant. Therefore, the complaint is liable to be dismissed. Accordingly these issues are answered. 

                In the result, the complaint is dismissed without costs.   

Typed to my dictation by the Junior Steno, corrected by me and pronounced in the open Forum, this the 8^th day of September, 2011.     

       MEMBER                            MEMBER                            PRESIDENT

 APPENDIX OF EVIDENCE

                                        DOCUMENTS MARKED

For Complainant:         

For opposite party:

Documents marked by Forum:

                                                                                             PRESIDENT