Date of Filing ::02-05-2011
Date of Disposal ::17-07-2015
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM::ONGOLE
Friday, this the 17th day of July, 2015
PRESENT: Sri P.V. Krishna Murthy, B.A.,B.L., President
Sri K. UMAMAHESWARA RAO, M.A.,B.L., Member
C.C.No.72/2011
Dasari Sridhar,
Son of Narayana,
Aged 35 years,
East Bazaar,
Ward No.1,
Nandanavanam Village,
Jarugumalli Mandal,
Prakasam District. … Complainant
Vs.
1) Bajaj Allianz General,
Insurance Company Limited,
Rep. by Branch Manager,
CMB Compound,
VIP Road, Peejay Plaza,
Visakhapatnam.
2) The Superintendent,
Auction Plot Form No.27,
Tobacco Board,
Kandukur, Prakasam District. … Opposite Parties
This complaint coming on 29-06-2015 before us for hearing in the presence of Sri P.L. Govindaiah, advocate for the complainant and Sri K. Srinivasulu, advocate for the first opposite party and second opposite party remained ex-parte and having stood over for consideration till this day and this Forum made the following:
ORDER
(ORDER BY Sri P.V. KRISHNA MURTHY, PRESIDENT)
1. The brief averments of the complaint are as follows:
The complainant is a tobacco grower and is having a barn within the limits of the second opposite party. The complainant raised tobacco for the year 2009-2010. There was heavy cyclone on 19th and 20th May, 2010, called LIALA Cyclone. The tobacco barn of the complainant collapsed and the complainant informed the same to the second opposite party. The Government of Andhra Pradesh declared the Prakasam District as cyclone hit area. The second opposite party paid Rs.25,000/- to the complainant for the damage. The second opposite party obtained group insurance policy to the tobacco growers. The second opposite party obtained a policy from the first opposite party for the barn of the complainant, during the year 2009-2010. In the sale note dated 27-03-2010, an amount of Rs.627-46 Ps was deducted from the sale proceeds of the complainant for the insurance coverage. The stocks of the complainant were damaged due to the cyclone. The first opposite party did not pay compensation in spite of claim of the complainant. Thus, the opposite parties committed negligence. The complainant got issued a legal notice to the opposite parties. The second opposite party has to take responsibility in settlement of the claim and pursue the matter with the first opposite party. Hence, the complaint for Rs.2,00,000/- towards damages, for costs and compensation.
2. The brief averments of the counter of first opposite party are as follows:
The complaint is not maintainable. The allegations made in the complaint are not correct. The complainant is not a consumer. Hence, this Forum has no jurisdiction to entertain the complaint. The second opposite party has obtained a special contingency policy from 01-11-2009 to 31-10-2010, covering fire and special perils under certain terms and conditions. The opposite party does not know that the complainant is a tobacco grower. The complainant informed the first opposite party about the cyclone damage to his barn. Soon this opposite party appointed an independent surveyor to assess the loss. The surveyor assessed the loss after inspection and the loss was within an amount of Rs.10,000/-. The total loss was assessed at Rs.9,730/-. Hence, nothing was payable to the complainant and the same was informed to the tobacco barrower. The claim is subject to a minimum of Rs.10,000/-. The first opposite party is not aware of the other allegations. This opposite party was not negligent and has not committed any deficiency of service. The first opposite party is not liable to the claim. Hence, the complaint may be dismissed.
3. The 2nd opposite party did not contest the matter.
4. Now the point for consideration is “Whether the opposite parties committed a deficiency of service?”
5. The complainant filed his chief affidavit and marked Exs.A1 to A5. On behalf of the opposite parties the Junior Legal Executive and Independent Surveyor filed their affidavits as R.W.1 and R.W.2. Exs.B1 to B2 were marked for the first opposite party.
6. POINT:- Most of the facts are admitted. The complainant is a tobacco grower. The tobacco barn was damaged in the cyclone that occurred in May, 2010. The claim by the complainant for compensation to the opposite parties was admitted. The appointment of surveyor to assess the loss and file a report was also admitted. The complainant alleged that the opposite parties did not settle the claim in spite of the report of the surveyor. The stand of the opposite parties is different. The first opposite party contended that the surveyor assessed the loss and as the amount of loss assessed by the surveyor was less than Rs.10,000/-, nothing is payable to the complainant. The contract of insurance between the complainant and the first opposite party was routed through the second opposite party.
The complainant got issued a legal notice under Ex.A2 to the opposite parties. The legal notice was received by the opposite parties under acknowledgments, marked Ex.A4. Ex.A5 is photograph of the damaged barn of the complainant. The opposite parties filed Ex.B1, the copy of the insurance policy. Ex.B2 is the report of the surveyor. The surveyor in his report also filed photographs of the damaged barn of the complainant. The surveyor assessed the loss at Rs.9,730/-. The surveyor assessed the net loss as negative after deducting the policy excess of Rs.10,000/-. The opposite party is relying upon the contract of insurance in holding that it is not liable to pay any amount to the complainant. The insurance company is relying upon clause-XII(A) of the insurance contract in support of its contention. Even the surveyor in his report deducted policy excess and found that the complainant is not entitled to any amount.
Report of the surveyor has more evidentiary value. The surveyor is a qualified technocrat to assess the damage in a scientific manner. In Ex.B2, the surveyor dealt with the damages to the wall with measurements. He has mentioned the cubic feet of the walls damaged and has given depreciation also. As against this evidence there is no evidence from the complainant to establish that he sustained damage to an extent of Rs.2,00,000/-. The insurance company not settling the claim, commits a deficiency of service. Here is a case wherein the claim was settled on the basis of the surveyor’s report and the complainant was found not entitled to receive any compensation. As such, there is no deficiency of service. This Forum will enquire a deficiency of service. In the absence of deficiency of service the complaint is baseless. The complainant failed to make out any deficiency of service. The opposite party relied upon a decision of Hon’ble Supreme Court reported in 1999 NCJ 655 (RS. BAGGA Vs. M/s K.L.M. ROYAL DUTCH AIR LINES AND ANTOHER). The Hon’ble Supreme Court found, that there were deficiencies on part of the complainant and that he took contradictory stands. The Hon’ble Supreme Court dismissed the complaint in the above case. The other decisions of Hon’ble National Commission, relied upon by the opposite parties are also to the same effect. Since the complainant failed to establish any deficiency of service, is not entitled to the claim. The point is held against the complainant.
7. In the result, the complaint is dismissed, but without costs.
Dictated to the Stenographer, transcribed by him and corrected and pronounced by us in the Open Forum this the 17th day of July, 2015.
Sd/-xxx Sd/-xxx
MEMBER PRESIDENT
APPENDIX OF EVIDENCE
WITNESS EXAMINED FOR COMPLAINANT:
P.W.1 12-04-2013 Dasari Sridhar, son of Narayana, aged about
35 years, East Bazaar, Ward No.1, Nandanavanam Village, Jarugumalli Mandal,
Prakasam District.
WITNESS EXAMINED FOR FIRST OPPOSITE PARTY:
R.W.1 30-01-2012 G. Chandra Sekhar, son of late Rama Rao,
Hindu, aged 34 years, working as Junior Legal Executive, M/s Bajaj Allianz General Insurance Company Limited, Branch Office, Vijayawada.
R.W.2 30-01-2012 G.P. Penchala Reddy, son of Penchalareddy,
Hindu, aged 55 years, Insurance Licenced Surveyor-cum-Loss Assessor, O/o Upstairs of Jaya Enterprises, Trunk Road, Ongole-532 001.
EXHIBITS MARKED FOR COMPLAINANT:
Ex.A1 27-03-2010 Photostat copy of sale note of the
complainant.
Ex.A2 15-12-2010 Office copy of legal notice issued to the
opposite parties.
Ex.A3 Two Postal receipts.
Ex.A4 Two Postal acknowledgments.
Ex.A5 Four Tobacco barn photos.
EXHIBITS MARKED FOR THE FIRST OPPOISTE PARTY:
Ex.B1 Photostat copy of policy schedule with terms
and conditions.
Ex.B2 15-10-2010 Survey report along with four barn
photographs.
Sd/-xxx
PRESIDENT
Copies to:
1) Sri P.L. Govindaiah, advocate, Ongole.
2) Sri K. Srinivasulu, advocate, Ongole.
3) The Superintendent, Auction Plot Form No.27,
Tobacco Board, Kandukur, Prakasam District.
Date when free copy was issued:
//True Copy//
