DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)
Consumer Complaint No. 86 of 2016
Date of institution: 11.02.2016 Date of decision : 23.02.2017
Handa Brick Industries, Village Joula Kallan, Tehsil Dera Bassi, District SAS Nagar, Punjab through its sole proprietor Shri Vivek Handa.
……..Complainant
Versus
1. United India Insurance Company Limited, Office at SCO 183-185, Sector 17-C, Chandigarh 160017 through its authorised person.
2. United India Insurance Company Ltd., Divisional Office-I, SCO 127-128, 4th Floor, Sector 17-C, Chandigarh 160017 through its authorised person.
3. United India Insurance Company Limited, Head Office -24, Whites Road, Chennai 100014 through its authorised person.
………. Opposite Parties
Complaint under Section 12 of
the Consumer Protection Act.
Quorum
Shri Ajit Pal Singh Rajput, President Shri Amrinder Singh Sidhu, Member.
Mrs. Natasha Chopra, Member
Present: Shri Tapas Sharma, counsel for the complainant.
Shri Navin Kapur, counsel for the OPs.
ORDER
By Ajit Pal Singh Rajput, President
Complainant Handa Brick Industries has filed this complaint through its owner Shri Vivek Handa against the Opposite Parties (hereinafter referred to as the OPs) under Sections 12 to 14 of the Consumer Protection Act. The brief facts of the complaint are as under:
2. The complainant is engaged in manufacturing of bricks. The complainant availed the Standard Fire and Special Perils Policy by paying due premium to OP No.1. The policy was for the period from 16.02.2015 to 15.02.2016 and was to cover any loss caused to the extent of Rs.15.00 lakhs to the stock of bricks in finished and/or semi finished and all kinds of raw materials used for the manufacturing of bricks while in process/kept/stored/lying at the premises of the complainant. Heavy rain occurred in the intervening night of 1st and 2nd March and during the day time on 2nd March 2015 leading to inundation and accumulation of water at the premises of the complainant causing loss of approximately 12 lakh semi finished bricks to the tune of Rs.12.80 lakhs. The complainant informed OP No.1 on 03.03.2015 about the loss. OP No.1 appointed the surveyor who submitted report dated 13.04.2015 by wrongly assessing the liability of the insurance company as Rs.6,75,830.00 whereas the complainant had claimed Rs.12,79,800.00 towards loss. The OPs tried to put pressure on the complainant so as to discourage him to demand the full claimed amount. The OPs sent letter dated 08.05.2015 to the complainant by giving 15 days notice for cancellation of the above said policy in which the claim has arisen. The OPs also appointed second surveyor just to harass the complainant. Ultimately vide letter dated 15.07.2015 the OPs intimated the complainant to issue discharge voucher in advance in a specified prescribed format acknowledging receipt of Rs.6,66,330.00 as full and final settlement duly signed by him as well as by his bank alongwith certain other documents subsequent to which only then the needful shall be done by the OPs. The complainant having no alternative but to yield to coercion and pressure applied by the OPs submitted the discharge voucher on 15.07.2015 duly signed, stamped and dated etc. by the bank of the complainant. The amount of Rs.6,66,330/- was deposited in the account of the complainant on 20.07.2015.The complainant vide letters dated 21.07.2015, 11.08.2015, 14.08.2015 and 03.09.2015 requested the OPs to pay it the remaining amount of the claim which the OPs have till date not paid to the complainant. Hence this complaint for giving directions to the OPs to pay to it Rs.4,33,800/- on account of loss of 3 lakhs semi finished sun dried bricks; to pay it Rs.84,600/- towards variance @ 10% wrongly deducted by the surveyor; to pay it Rs.2500/- for making repeated visits and phone calls; to pay Rs.2,00,000/- for harassment and mental agony and Rs.31,000/- as legal expenses alongwith interest @ 18% on the total amount so granted from the date of lodging of the claim i.e. from 03.03.2015 till actual payment.
3. The complaint is contested by the OPs by filing reply, in which they have pleaded in the preliminary objections that the complainant has already been fully indemnified to the extent of loss suffered by it. After having accepted the said amount of Rs.6,66,330/- by way of cheque dated 16.07.2015 in full and final settlement of his claim and also by issuing discharge voucher with free will and consent, the complainant is stopped from raising any further claim under the insurance policy. The documents sought under RTI by the complainant alongwith claim form were duly supplied to him through registered AD well before settlement of the claim and receipt of amount. On merits the OPs have denied that the complainant had suffered loss of Rs.12.80 lakhs due to inundation and accumulation of water at its premises. The loss suffered due to peril has already been indemnified to its full extent and nothing remains due from the OPs. Thus, denying any deficiency in service on their part, the OPs have sought dismissal of the complaint.
4. In order to prove the case, the complainant tendered in evidence affidavit of Vivek Handa, its Prop. Ex. CW-1/1; copies of cover note Ex.C-1; policy Ex.C-2; intimation letter Ex.C-3; certified copy of surveyor report Ex.C-4; letter Ex.C-5; copy of police cancellation letter Ex.C-6; letter of surveyor Ex.C-7; letter from the OPs Ex.C-8; discharge voucher Ex.C-9; bank loan account statement Ex.C-10; letters Ex.C-11 to Ex.C-14; noting of contractors Ex.C-15 to C-19. In rebuttal the OPs tendered in evidence affidavit of Kulwinder Singh Ahuja, Sr. Divisional Manager Ex.OP-1/1; affidavit of Balwinder Singh of M/s. Duggal Gupta Surveyor Ex.OP-1/2; affidavit of Sanjay Gupta, Surveyor Ex.OP-1/3; copy of cheque dated 16.07.2015 Ex.OP-1; discharge voucher Ex.OP-2; PAN Card Ex.OP-3; insurance policy Ex.OP-4 and survey report Ex.OP-5.
5. It has been argued by the learned counsel for the complainant that the surveyor of the OPs has illegally denied the full claim to it. The surveyor has wrongly denied the claim for 3 lakh semi finished sun dried bricks lying inside the kiln for heating by observing that these bricks lying stacked in the kiln have been damaged due to heavy down pour and trickling of rain water through chimney which is not an act of inundation and the damages due to rain water are not covered as these are not an insured peril. Learned counsel has further argued that deduction of Rs.84,600/- as variance; Rs.50,000/- as salvage value and Rs.35570/- as per 5% excess clause from the gross assessed amount of Rs.8,46,000/- is also illegal. The complainant is entitled to all these amounts. In support of his contention he has placed reliance on the decision of Hon’ble National Commission in case Oriental Insurance Co. Ltd., Vs. M/s. Sathyanarayana Setty & Sons, 2012(2) CPC 429 and Bajaj Allianz General Insurance Company Ltd. Vs. Gondamal Hardyal Mal, IV (2009) CPJ 165. Further, learned counsel for the complainant has argued that the OPs have under coercion obtained from the complainant discharge voucher Ex.C-9 which the complainant has to submit to the OPs as the complainant was under heavy debt. He has relied upon the decision of Hon’ble Supreme Court in National Insurance Company Ltd. Vs. Boghara Polyfab Private Ltd., (2009) I Supreme Court Cases 267.
6. On the other hand learned counsel for the OPs has argued that the complainant is not entitled to any further amount from the OPs as the discharge voucher Ex.C-9 was issued by it without any coercion or pressure. Even the documents sought by the complainant under RTI were duly supplied to it well before settlement of claim and submission of discharge voucher by the complainant.
7. We have gone through the pleadings, evidence and written arguments and heard the oral submissions addressed by the learned counsel for the parties. In our view, the surveyor has wrongly not allowed the claim of the complainant for 3 lakh semi finished sun dried bricks lying inside the kiln for heating. In case Bajaj Allianz General Insurance Company Ltd. Vs. Gondamal Hardyal Mal (supra) the complainant had also obtained a Standard Fire and Special Peril Policy and damage to goods was occurred due to heavy storm and rain due to which water entered inside the godown and insured goods were damaged. It was held in para No.9 that rainwater poured into the godown through the holes from the roof of the godown, thus, inundating or wetting the stock in the godown and the revision petition filed by the insurance company was dismissed. Similar was also taken by the Hon’ble National Commission in Oriental Insurance Co. Ltd., Vs. M/s. Sathyanarayana Setty & Sons,(supra). In view of these decisions of the Hon’ble National Commission, we also hold that the complainant is entitled to compensation for loss of 3 lakh semi finished sun dried bricks lying inside the kiln for heating.
8. With regard to submission of discharge voucher Ex.
C-9 by the complainant, the Hon’ble National Commission National Insurance Company Ltd. Vs. Boghara Polyfab Private Ltd. (supra), it has been held in Para No.49 as under :
“But what is of some concern is the routine insistence by some government departments, statutory corporations and government companies for issue of undated ‘no dues certificates’ or full and final settlements vouchers acknowledging receipt of a sum which is smaller than the claim in full and final settlement of all claims, as a condition precedent for releasing even the admitted dues. Such a procedure requiring the claimant to issue an undated receipt (acknowledging receipt of a sum smaller than his claim) in full and final settlement, as a condition for releasing an admitted lesser amount, is unfair, irregular and illegal and requires to be deprecated.”
9. In view of above decision of the Hon’ble National Commission, we hold that the complainant has to submit the discharge voucher Ex.C-9 under pressure from the OPs as he has no option either to submit the same to the OPs for taking the claim. Non payment of full claimed amount under the policy, thus is an act of unfair trade practice on the part of the OPs.
10. Accordingly, we direct the OPs to pay to the complainant the remaining amount of claim for 3 lakh semi finished sun dried backs to the tune of Rs.4,33,800/- (Four Lacs
Thirty three thousand eight hundred only) alongwith interest thereon @ 9% per annum from the date of payment of part amount i.e. 20.07.2015 till actual payment; to pay to it Rs.86,000/- (Rs. Eighty Six thousand only) as wrongly deducted variance charges alongwith interest thereon @ 9% per annum from the date of payment of part amount i.e. 20.07.2015 till actual payment. We also find that complainant is entitled to a lump sum of Rs.40,000/- (Rs. Forty thousand only) on account of mental agony, harassment and litigation cost. The present complaint stands allowed accordingly.
The OPs are further directed to comply with the order of this Forum within 45 days from the date of receipt of this order.
The arguments on the complaint were heard on 09.02.2017 and the order was reserved. Now the order be communicated to the parties. Copy of the order be sent to the parties free of cost and thereafter the file be consigned to the record room.
Pronounced
Dated: 23.02.2017
(A.P.S.Rajput)
President
(Amrinder Singh Sidhu)
Member
(Mrs. Natasha Chopra)
Member
