BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION.
KAMRUP
C.C.No. 31/2020
Present: I) Shri A.F.A.Bora, M.Sc.,L.L.B.,A.J.S(Rtd.) -President
II) Smti Archana Deka Lahkar,B.Sc.,L.L.B. -Member
III) Shri Tutumoni Deva Goswami, B.A.L.L.B. - Member
M/SPrag Electricals Private Ltd. - Complainant
Registered office at Industrial Estate,
Bamunimaidam, P.O. Bamunimaidam
P.S. Chandmari, Guwahati-781021
Dist: Kamrup (M), Represented by its Proprietor,
Sri Manoj Kanti Deb
-vs-
1) The United India Insurance Company Ltd. -Opposite parties
Represented by the Chief Regional Manager
Regional Office, Chibber House, Christian Basti,
G.S.Road,Guwahati-781005
Dist: Kamrup (M), Assam
2) The Branch, United India Insurance Company Ltd.
Branch, A.T.Road, Adabari,Guwahati-781014
Dist: Kamrup (M),Assam
Appearance:
For the complainant Sri Debajit Handique Learned advocate .
For the opp.parties Sri Alok Niranjan Das Learned advocate .
Date of filing written argument :- 1.1.2021, 3.2.2022
Date of oral argument :- 3.3.2022
Date of judgment: - 29.3.22
JUDGMENT
1) The case of the complainant namely M/S Prag Electricals Private Ltd. represented by Sri Manoj Kanti Deb was admitted on 4.6.2022 and notice were served upon the opp.party No. 1 the United India Insurance Company Ltd. Represented by the Chief Regional Manager and another. Accordingly written statement was filed on 21.8.2020. The complainant on 2.11.2020 filed his evidence on affidavit . On 19.4.2021 opp.party No. 1 & 2 filed their evidence on affidavit. Both the parties have filed their written argument as well as forwarded their oral argument .
2) The case of the complainant is that the complainant being the Managing Director of M/S Prag Electrical Pvt.Ltd. is duly authorized by the Board of Directors to institute the present complaint. The Assam State Electricity Board awarded contract for construction and commissioning of 1 no. new 1X2.5 MVA, 33/11 KV Sub Station at Sarthebari within Sarukhetri Block under Barpeta District of Assam along with construction of associated incoming 33 KV line on PSC Pole: including civil works etc. on Trunkey Basis by reference No. CGM (RE) /RGGVY/LAEDCL -1/2008-09/BAR-1/E/2 dated 13-2-2009 for contract price of Rs. 97,69.219/- (Rupees ninety Seven Lakh lakh sixty nine thousand two hundred nineteen )only including Inland Freight & Insurance Charges, Erection charges and service Tax. After getting the aforesaid award of contract the complainant has insured his materials with the opp.party i.e. the United India Insurance Co.Ltd.as Storage cum Erection Insurance Policy vide policy No. 130106/44/11/04 40000003 from 18.33 hrs of 11.08.2011 to midnight of 10.8.2012. Accordingly the said policy was issued up to the limit of sum assured of Rs. 58,00,800/- ( Rupees fifty eight lakh eight hundred only)only .
3) The complainant states that on 8.7.2012 the workman of the complainant found that some insured stringing conductors along with some other line materials has been stolen from the construction site and accordingly an F.I.R. was lodged on 12.7.2012 in the Borpeta P.S. On the same day the complainant intimated/claimed lodged along with documents before the opp.party for an amount of Rs.7,07,000/-
4) The complainant further states that Borpeta Police station submitted Final Report of the aforesaid case on 31.12.2012
5) The complainant states that he requested the opp.party to settle the claim without further delay and thereafter by letter dtd. 27.3.2018 the opp.party No. 2 requested the complainant to submit the Charge Sheet and Final Report to settle the claim of the complainant. As Hon’ble Court had not accepted the Final Report the complainant verbally intimated the same to the opp.party No 2 . Thereafter by another letter dtd. 7.5.2018 the opp.party No. 2 intimated the complainant that the claim has been closed due to value at risk is less than the sum insured and hence after average claim and excess applied claim amount settlement found nil . The complainant on 16.5.2018 requested the opp.party to furnish a copy of the claim note reflecting computation of claim assessment and copy of the policy reflecting the policy excess. The opp.party No.2 on 22.5.2018 furnished the said copies to the complainant .
6) The complainant received the Final Report in the said case on 31.12.2012 and acceptance order on 22.1.2019 . The opp.party has illegally close the claim of the complainant before accepting the Final Report by the concerned Hon’ble Court. The op.party have closed the claim without any valid reason and thereby causing irreparable loss and injury as well as mental agony for deficiency in service. The complainant have suffered a loss amounting to Rs. 7,07,000/- , cost of litigation and compensation due to loss of health and mental agony along with interest thereon.
7) The op.party No.1 & 2 contested the case by filing written statement in which they stated that claim petition is not at all maintainable under the terms and conditions of the policy. The petition is filed by the complainant to gain undue advantage from the opp.parties . The opp.party No. 1 & 2 states that there is no cause of action as alleged and the complaint petition is barred by the principle of estoppels and waiver and acquiescence. The claim petition is bad in law for non-joinder and mis-joinder of necessary parties as the A.S.E.B. being the owner of the project is a necessary party in this case. The complaint petition is barred by limitation as it has not been filed as per the Section 24 A Consumer Protection Act 1986 which mandates that the complaint has to be filed within 2 years from the date on which the first cause of action arisen. The op.party further states that no explanation given for delay in filing the complaint petition condoning the same .
8) The opp.party states that the Insurance policy is issued on the principle of utmost good faith . The insured declared value is determined by the insured to suit his requirement. However adequacy of sum insured has to be maintained to avoid under insurance . It is a requirement of storage cum erection insurance that the sum insured shall not be less than the completely erected value of the property inclusive of freights, customs duty, erection cost service tax etc. The policy states that if, in the event of occurrence of loss, or damage it is found that the sum insured representing the completely erected value of the property and /or of particular items involved is less that the amount required to be insured, the amount recoverable by the insured under the policy shall be reduced in such proportion as the sum insured bears to the amount required to be insured. From the policy wording it is clear that the clause of average will be applicable in this claim, but it will be applicable at the end of the claim assessment i.e. after deduction of policy excess , as mentioned in the policy schedule, from the assessed amount.
9) (i) The opp.party states that complete contract value for supply contract is Rs. 209,29,767/- vide (Ref.No. CGM(RE)/ rggvy/laedcl-1/2008-09/bar-1/s/2 dated 13.02.2009)
(ii) Complete contract value for Erection contract.Rs.97,67,219/- vide (Ref.No. CGM(RE)RGGVY/LAEDCL-1/2008-09/BAR-1/E/2 dated 13.2.2009)
(iii) Additional cost of material approved for Rs.6,40,139/= (vide Ref.No. CGM (RE) /RG GVY /LAEDCL-1/2008-09/BAR-1/S/PT dated 22.9.2011) Total Rs.313,47,125/-
10) The opp.party states that there has no deficiency in service and unfair trade practice in their part in the process of settlement of claim rather complainant failed to declare actual and adequate sum insured against the project. The answering opp.party is no way liable to pay any compensation, damages interest etc. since the claim is not payable under the insurance . In this way opp.party contested the proceedings by filing w.s.
11) Points to be decided:-
I) Whether the complaint petition as alleged by the opp.parties is barred by limitation ?
II) Whether the opp.party No. 1 & 2 rightfully closed the claim lodged by the complainant on the ground that the sum insured is less than the completely erected the value of the property inclusive of freights , customs duty , erection cost etc. ?
III) Whether the complainant is entitled for the claim and compensation for deficiency of service on the part of the opp.party, if so to what extent ?
Reasons for decision:-
12) After going through the provision of Section 24 A of Consumer Protection 1986 we have found that in the said section there is no mentioned about the word “First” cause of action. This provision read as under :-
The District Forum, the State Commission or the National Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen.
13)The complainant insured his materials with the opp.party and the policy commenced from 18-33 hoursof 11.8.2011 to midnight of 10. 8.12 . Complainant lodged F.I.R. for the theft on12.7.2012. Concerned Police stationhas submitted Final Report on the said case on 31.12.2012 and the same was accepted by the Hon’ble Court on 22.1.2019 . The complainant filed his case on 6.5.2020 before this commission. Therefore , issue No. Iis decided in negative as filing of caseafter acceptance the final report by the complainant as well within the period of limit.
14)Now we have taken issue No. II and issue No. III jointly for convenience of discussion as the facts are analogues for both the issues.
The opp. party has repudiated the claim of the complainant and the said repudiation letter was proved in this case as Ext-5 & 10. The objection that has been raised by the opp. party is that “found for the reason that value at risk is less than the sum insured and hence after average clause and excess applied claim amount settlement found nil.” .The repudiation order was issued on 7/5/2018. Our observation in the matter is that the insurance policy was issued in favour of the complainant & other on 11/8/2011 and was valid till 10/08/2012. Here the point raised by the opp. party for repudiation of the claim is value at risk is less than that the sum insured.
15) The policy was issued to the complainant -Prag Electrical along with ASEB, Bijulee Bhawan .It was a joint policy and the point raised by the opp. party for repudiation of the claim must have affect the interest of the ASEB, Bijulee Bhawan as well . But so far non-joinder of necessary party is concerned we are of the clear opinion that the policy was issued in favour of the complainant - Prag Electrical & ASEB, Bijulee Bhawan jointly then ASEB, Bijulee Bhawan have a role to play for determining the claim of loss or damage caused but complainant had not made ASEB, Bijulee Bhawan as a party to this proceeding or ASEB had joined as complainant which is found fatal for claim made by the complainant.
16) Another point raised by the opp. party in the pleading is that the LOA proved as Ext-2 at Point-18 indicates that there is a provision of settlement of dispute by arbitration and secondly another document as Ext-3 testified by the complainant himself proved that the policy was issued jointly in the name of the complainant - Prag Electrical & ASEB, Bijulee Bhawan. As such the complainant is not the exclusive beneficiary of the policy and in case of any claim or any loss the other partner of the policy must be an interested party to the proceeding and in his absence proceeding may suffer from violating the principles of natural justice and equity.
17) Having heard both the parties we are of the opinion that without proper participation of all the beneficiaries/ the insured, it is difficult to give any opinion that sum insured is less than the value of the property and hence it is observed and held that no opinion can be drawn that opp.party have closed the claim rightly and wrongly. In the result, issue is decided against the complainant .
18) The evidence already discussed and the argument placed on record it is found that there is no deficiency of services on the part of the opp.party and hence issue No. 3 is also decided in negative.
19) In the result case is dismissed as it had no merit. The parties will bear their own cost.
Judgment is written in separate sheets and kept with record.
Given under our hand and seal of the District Commission, Kamrup, this the 29th day of March /2022.
( Shri A.F.A.Bora )
President,DCDRC,KAMRUP
( Smti Archana Deka Lahkar )
MemberDCDRC,KAMRUP
( Shri Tutumoni Deva Goswami )
Member DCDRC,KAMRUP
Dictated and corrected by me
( Shri A.F.A.Bora )
President,
District Consumer Commission, Kamrup.
Typed by me
(Smt Juna Borah )
Stenographer,
District Consumer Commission, Kamrup.
