Assam

Kamrup

CC/30/2020

M/S Prag Electricals Pvt Ltd. - Complainant(s)

Versus

The United India Insurance Co Ltd, Represented by the Chief Regional Manager - Opp.Party(s)

Mr Debajit Handique

06 Apr 2022

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION
KAMRUP,GUWAHATI
 
Complaint Case No. CC/30/2020
( Date of Filing : 06 May 2020 )
 
1. M/S Prag Electricals Pvt Ltd.
Registered office at Industrial Estate, Bamunimaidam, P.O- Bamunimaidam, P.S-Chandmari,Guwahati-781021,Dist-Kamrup(M),Assam, Represented by its Proprietor Sri Manoj Kanti Deb, S/O- Late Kamakhya Charan Deb, Managing Director, Prag Electricals Pvt Ltd.
...........Complainant(s)
Versus
1. The United India Insurance Co Ltd, Represented by the Chief Regional Manager
Regional Office- Chibbar House, Christian Basti,G.S.Road,Guwahati-781005,Dist-Kamrup(M),Assam
2. The Branch Manager, United India Insurance Co Ltd. ,Pandu Branch
A.T.Road, Adabari,Guwahati-781014, Dist-Kamrup(M),Assam
............Opp.Party(s)
 
BEFORE: 
 HON'BLE MR. JUSTICE Sri Akhtar Fun Ali Bora PRESIDENT
 HON'BLE MRS. Smti.Archana Deka Lahkar MEMBER
 HON'BLE MR. Shri Tutumoni Deva Goswami MEMBER
 
PRESENT:
 
Dated : 06 Apr 2022
Final Order / Judgement

 BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION.

                                                          KAMRUP

                                                       C.C.No. 30/2020

 

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/S  Prag 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: -   6.4.22                             

 

                                                                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 1.2.2012 the workman of the complainant  found that some insured stringing conductors length about 2.0 k.m. amounting Rs.70,000/- only (along with some other line materials) has been stolen from the construction site and accordingly an F.I.R. was lodged on  2.2.2012 in the Borpeta P.S. On 6.2.2012 (the same day) the complainant intimated/claimed lodged along with documents before the opp.party for an amount of Rs.95,000/-

4)                    The complainant further states that Borpeta Police station submitted Final Report of the aforesaid case on  23.6.2012 .The complainant states further that in the month of April 2017 when the opp.party delayed the settlement of complainant’s claim, the complainant by letter dtd. 17.4.2017 requested the opp.party to settle the claim without further delay .

 5)                   That due to the unfair practice of the opp.parties  the complainant suffered irreparable loss amounting to Rs.95,000/- only including  the value of loss of materials of Rs.70,000/-only along with  erecting cost of Rs.25,000/- only.

6)                    That there is no efficacious alternative remedy available to the complainant , as such the complainant approaches this Hon’ble Forum u/s  12 of the Consumer Protection Act, 1986.

 7)                   The opp.party No. 1 & 2 contested the case by filing written statement in which they stated that claim petition is not at all maintainable in the present form of facts and law and also under the term and condition of the policy. The complaint petition is filed by the complainant just to gain undue advantage from the opp.parties.   The claim petition is bad in law for non-joinder and misjoinder of necessary parties. The ASEB being the owner of the project is a necessary party in this case. Participation of ASEB in this case is of utmost importance for the end of justice.

8)                    The petition  filed by the complainant  is barred by limitation as it has not been  filed within the period of limitation . 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 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 estoppel and waiver and acquiescence. It is further alleged that 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 .

9)                    As per policy condition   , 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. It is  further submitted that  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.

10)                   The opp.party submits that contract work was on three heads

                        (i)  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  value was Rs.313,47,125/-.

11)                  The opp.party again submitted  that there were  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. and pleadings.

12)      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:-

13)      After going through the provision of Section 24 A of Consumer Protection Act 1986  . 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.”

14)                  The complainant insured his materials with the opp.party and the policy commenced from 18-33 hours  of 11.8.2011 to midnight of 10. 8.12 . Complainant lodged F.I.R. for the theft on 2.2.2012 and the concerned Police station  has submitted Final Report on the said case on 23.6.2012 and the same was accepted by the Hon’ble Court on 26.11.2014 . The complainant filed his case on 6.5.2020 before this commission. Therefore , issue No. I  is decided in favour of the opp.party as filing of the case by the complainant after acceptance of Final Report by the Hon’ble Court was not within the period of limitation as it exceeded  mere than 2 years. Moreover there were no complaint filed before the insurance company nor any repudiation order in between.   

15)       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 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.”  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.

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 M/S Prag Electrical  and  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  and  going through   all exhibits of the both 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 No. II 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. III  is also decided in negative.

19)      In the result case is dismissed  as it has 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  6th  day of April /2022.

 

            (  Shri A.F.A.Bora   )

            President

            DCDRC,Kamrup

 

           ( Smti Archana Deka Lahkar  )

            Member 

            DCDRC,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.

           

 

 
 
[HON'BLE MR. JUSTICE Sri Akhtar Fun Ali Bora]
PRESIDENT
 
 
[HON'BLE MRS. Smti.Archana Deka Lahkar]
MEMBER
 
 
[HON'BLE MR. Shri Tutumoni Deva Goswami]
MEMBER
 

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