DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMRITSAR

Consumer Complaint No. 827-12

Date of Institution : 16.11.2012

Date of Decision : 09.04.2015

Khanna Paper Mills Limited having its Registered Office at Fatehgarh Churian Road, Amritsar Punjab (India) through its Authorized signatory Sh.Sanjay Jain

...Complainant

Vs.

United India Insurance Co.Ltd., Divisional Office No.1, Situated at 3, Madan Mohan Malviya Road, Amritsar Punjab through its Manager/Officer In Charge

....Opp.party

Complaint under section 12/13 of the Consumer Protection Act, 1986

Present : For the complainant : Sh. Sandeep Kapoor,Adv

For the opposite party : Sh. P. N.Khanna,Adv.

Quorum : Sh. Bhupinder Singh, President, Ms.Kulwant Kaur Bajwa,Member & Sh. Anoop Sharma, Member

Order dictated by :-

Bhupinder Singh, President

-2-

1 Present complaint has been filed by Khanna Paper Mills through its authorized signatory Sh. Sanjay Jain under the provisions of the Consumer Protection Act alleging therein that complainant company has obtained IAR (Industrial All Risk) policy covering the risk of Rs 465 Crores by paying requisite premium to the opposite party. The said policy has an excess clause of Rs. 5,00,000/-. It was a renewal of earlier policy and was valid from 1.4.2007 to 31.3.2008. The said policy covered the risk (1) Rs. 25 crores above plinth level including foundation (2) Rs. 350 crores covering entire plant and machinery installed in the insured mill excluding pipe fittings but electric fittings/coils/tubes are covered (3) Rs. 90.00 crores against the stocks of all kinds including stock in process. Complainant has alleged that except cover note, no copy of the policy or schedule has ever been supplied to the complainant. According to the complainant on 26.2.2008 at 7.55 p.m, 10.5 M.W . turbine caught fire under which control cables as well as RTD's have been damaged. The complainant informed the opposite party in the morning of 27.3.2008 and the opposite party appointed Mr. Rohit Kapoor from Amritsar. Opposite party again appointed another surveyor M/s. Kaypsens of Delhi and all the documents were supplied to him alongwith the request to settle the claim. Complainant lodged claim of Rs. 14,50,000/- with the opposite party but the surveyor assessed the loss to the tune of Rs. 2,77,330/- only. The surveyor did not include one item namely Governor Control 505 E 10.5 MW totalling Rs. 9,67,782/- including taxes to be paid. The surveyor claimed that since the amount is less than Rs. 5 lacs, therefore, excess clause will apply and therefore, recommended the claim as “No claim” vide letter dated 2.9.2009. Complainant has alleged that since the claim was for more than Rs. 5 lacs as such there was no question of it being covered under the excess clause. Complainant has further alleged that as per the instructions of the IRDA, the copy of the survey report is to be supplied within two months of its receipt but in this case the copy has been supplied vide letrter dated 7.10.2011 though the same was issued on 31.8.2009. In addition to th amount of Rs. 14,50,000/- the complainant is entitled to interest @ 18% p.a from the date of fire i.e. 28.2.2008 till the payment of entire amount, the details of which is as under :-

a) Claim amount Rs.14,50,000/-

b) Interest @ 18% p.a from

28.2.2008 till the date of

filing of complaint Rs.11,74,500/-

Rs.26,24,500/-

c ) Cost of litigation Rs. 75,000/-

Total Rs.26,99,500/-

2. Complainant has alleged that as the survey report was supplied vide letter dated 7.10.2011, as such the complaint is well within time. Before filing the present complaint, complainant has filed the complaint before the State Consumer Disputes Redressal Commission, Punjab Chandigarh but the same was returned vide order dated 3.10.2012 for presenting the same before the District Forum having jurisdiction. The complainant has received the copy of orders on 17.10.2012, as such the present complaint is within the time . Alleging the same to be deficiency of service complaint was filed seeking directions to the opposite party to award Rs. 26,99,500/- alongwith interest @ 18% p.a. Litigation expenses were also demanded.

3. On notice, opposite party appeared and filed written version in which it was submitted that the present complaint is not maintainable because the opposite party has already informed the complainant that the opposite party is not liable to pay any claim because as per final survey carried out by M/s. Kaypsens, loss was assessed to the tune of Rs. 2,26,078/-. However after applying excess clause which is Rs. 5 lacs, the net loss payable was confirmed as NIL. Therefore, it was recommended by the surveyor that since the claim falls within excess clause, the same may be filed as “No Claim” . The opposite party vide letter dated 2.9.2009 informed the complainant that as the assessment of loss carried out by the surveyor falls within the excess clause, therefore, no claim is payable by the opposite party. It was submitted that complaint is hopelessly barred by limitation because in the present case the date of loss has been mentioned as 27.3.2008 whereas the present complaint has been filed in the year 2012, as such the complaint is barred by limitation. It was further submitted that complaint involves complicated questions of facts which cannot be decided in a summary manner . While denying and controverting other allegations, dismissal of complaint was prayed.

4. Complainant tendered into evidence affidavit of Vikas Kapoor, authorized signatory of complainant firm Ex.C-2 alongwith documents Ex.C-1,C-3 to C-19.

5. Opposite party tendered into evidence affidavit of Sh.Surinder Singh, Divisional Manager Ex.OP/1, affidavit of Mr.Rohit Kapoor spot surveyor Ex.OP/2, spot survey report of Mr.Rohit Kapoor Ex.OP/3, affidavit of Mr.Kalyan Parshad Sen of M/s. Kaypsens Surveyors & Loss Assessors Ex.OP/4, survey report of M/s. Kaypsens Surveyors & Loss Assessors Ex.OP/5, no claim letter dated 2.9.2009 Ex.OP/6, certified copy of insurance policy with terms and conditions Ex.OP/7..

6. We have carefully gone through the pleadings of the parties, arguments advanced by the ld.counsels for both the parties and have appreciated the evidence produced on record by both the parties with the valuable assistance of the ld.counsels for both the parties.

7. From the record i.e. pleadings of the parties and the evidence produced on record by both the parties, it is clear that complainant got IRA (Industrial All Risk) Policy covering the risk of 465 Crores from the opposite party for which the premium as demanded by the opposite party was paid . There is a excess clause of Rs. 5 lacs in the aforesaid policy. The renewal of earlier policy had been valid from 1.4.2007 to 31.3.2008 covering the risk (1) Rs. 25 Crore above plinth level including foundation (2) Rs.350 Crores covering entire plant and machinery installed in the insured mill excluding pipe fittings but electric fittings/coils/tubes are covered (3) Rs.90 Crore against the stocks of all kinds including stock in process. The policy also include the risk of fire. The complainant further alleged that no terms and conditions of the policy were ever supplied to the complainant by the opposite party. On 26.2.2008 at 7.55 p.m., 10.5 M.W., turbine caught fire . Resultantly the control cables as well as RTDs were known to have been damaged., Opposite party was informed in the morning on 27.3.2008. Opposite party appointed Mr. Rohit Kapoor from Amritsar as surveyor. Thereafter the opposite party again appointed another final surveyor M/s. Kaypsens of Delhi . The complainant supplied all the requisite documents to the surveyor. The complainant lodged claim with the opposite party of Rs. 14,50,000/- including four items as given in the claim bill as well as surveyor report. But the surevyor assessed the loss to the tune of Rs. 2,77,330/- against the claim of Rs. 14,50,000/- without giving any cogent reasons. The surveyor did not include the item namely Govornor Control 505 E 10.5 MW totalling Rs. 9,67,782/- including taxes to be paid nor the surveyor gave any reason for not including this item or for reducing the claim of the complainant. The surveyor submitted that since the amount is less than Rs. 5 lacs, therefore, excess clause will apply and as such he recommended the claim of the complainant as “No Claim” and the opposite party blindly following the aforesaid surveyor report, repudiated the claim of the complainant by treating it as “No claim”vide letter dated 2.9.2009 Ex.C-10.The complainant alleges that opposite party did not supply the copy of survey report to the complainant and in this regard he approached the Regional office of the opposite party at Ludhiana about the non-cooperation and non supply of survey report, who vide letter dated 7.10.2011 sent only the copy of the survey report to the complainant but did not supply the other documents. Ld.counsel for the complainant submitted that as per instructions of IRDA copy of the surveyor report is to be supplied to the insured within 2 months on its receipt but the same was supplied to the complainant on 7.10.2011 even though it was issued on 31.8.2009 by the surveyor which amounts to deficiency of service on the part of the opposite party qua the complainant. The complainant further submitted that opposite party is liable to pay the claim amount alongwith interest @ 18% p.a from the date of fire till the payment of entire amount alongwith interest and litigation and as such the complainant claimed Rs. 14,50,000/- from the opposite party alongwith interest @ 18% p.a from the date of filing of the complaint till payment is made to the complainant as well as cost of litigation.

8. Whereas the case of the opposite party is that the final survey carried out by M/s. Kaypesens and they assessed the actual loss to the tune of Rs. 2,77,330/- less under insurance of 18.48% Rs. 51,251/- and the gross adjusted loss amounts to Rs. 2,26,078/- vide their report Ex.OP5 dated 31.8.2009.After applying excess clause which is Rs. 5,00,000/-, the net loss payable was confirmed as NIL. So the opposite party filed the claim of the complainant as “No Claim” vide letter dated 2.9.2009 Ex.OP6. The complainant filed complaint even before the Hon'ble State Commission on 6.6.2012 i.e after a lapse of about 3 years and thereafter the present complaint was filed by the complainant in this Forum on 16.12.2012 . No application for condonation of delay has been filed by the complainant. As such the complaint is also barred by limitation. Ld.counsel for the opposite party further pointed out that the complainant obtained the insurance policy for commercial purpose. Further the complainant has nowhere alleged in his pleadings that he is consumer qua the opposite party, as such the present complaint is also not maintainable as the complainant is not the consumer under the Consumer Protection Act. Ld.counsel for the opposite party submitted that opposite party has rightly repudiated the claim of the complainant.

9. From the entire above discussion, we have come to the conclusion that the complainant lodged claim of Rs. 14,50,000/- alongwith interest and cost of litigation total amounting to Rs.26,99,500/- under the Insurance policy Ex.OP7, with the opposite party. Opposite party appointed surveyor M/s. Kaypesens , who assessed the loss and submitted his final survey assessment report Ex.OP5. The said report is quite detailed one and the surveyor has surveyed each and every item thoroughly and assessed the loss to the tune of Rs. 2,77,330/- less under insurance 18.48% Rs. 51,251/- with the gross adjusted loss Rs. 2,26,078/- and submitted that since the gross adjusted loss of Rs. 2,26,078/- is coming well within the applicable deductible/excess of Rs. 5,00,000/-, the net adjusted loss comes to Nil.The complainant could not point out any defect in the survey report . The only plea of the complainant is that the surveyor has not taken into consideration the item namely Governor Control 505E for 10.5 MW totalling loss Rs. 9,67,782/-.We have gone through the surveyor report Ex.OP5. This point has been discussed by the surveyor and was rejected with details. The survey report is the genuine document on which the claim case of the complainant/insured can be settled. Moreover, the quantum of amount cannot be disputed before the Consumer Fora. It has been held by the Hon'ble National Commission in case Champa Lal Verma Vs. Oriental Insurance Co.Ltd. III(2008) CPJ 93 (NC) that where the loss assessed by the surveyor awarded by the State Commission, it was held that surveyor's report to be given due weightage. The Consumer Fora cannot go into quantum dispute. In such cases the complainant is free to approach Civil Court/IRDA/Arbitration. As the net loss assessed by the surveyor vide its final survey report Ex.OP5 amounts to Rs. 2,26,078/- which comes well within the excess clause of Rs. 5,00,000/- , as such net adjusted loss comes to NIL.

10. Consequently we hold that opposite party was justified in treating the claim of the complainant as “No claim” vide letter dated 2.9.2009 Ex.OP6.

11. The opposite party repudiated the claim of the complainant vide letter dated 2.9.09 Ex.OP6 which was duly received by the complainant. But the complainant approached the Hon'ble State Commission for the first time against this repudiation of its claim on 6.6.2012 and the Hon'ble State Commission directed the complainant to approach the District Forum first as the claim of the complainant is less than Rs. 20 lacs and the complainant filed the present complaint in this Forum on 16.11.2012 . Even the complainant filed complaint before the Hon'ble State Commission after a lapse of a period of 2 years and 9 months and before this Forum on 16.11.2012 i.e. after a lapse of a period of more than three years.. The complainant did not file any application for condonation of delay. As such the present complaint is also barred by limitation.

12. Apart from this ld.counsel for the opposite party submitted that the complainant is running its business in crores of rupees and it has employment having employees in hundreds which is a big establishment and they are doing their business for gains to earn profit and the complainant has obtained the services of the opposite party for its business i.e. for commercial purpose and not to earn livelihood by way of self employment . Moreover the complainant has nowhere claimed itself the consumer qua the opposite party in the complaint.So the complainant is not a consumer under the Consumer Protection Act. Ld.counsel for the complainant could not rebut this plea/averment of the counsel for the opposite party. Rather he admitted that the complainant company is one of the top ten papers mills in India and its business is running into crores of rupees having large employment of Executives, engineers, staff , etc..Ld.counsel for the complainant also admitted that the services of the opposite party have been obtained for the business of the complainant company.

13. So from the entire above discussion, it stands fully proved on record that the complainant obtained the services of the opposite party for its business which is being carried out to earn profits. As such the complainant does not fall within the definition of consumer. It has been held by the Hon'ble Supreme Court of India in case U.P. Power Corporation and Others Vs. Anis Ahmad 2013(3) CLT 227 that where the complainants have electric connections for Industrial/commercial purposes, as such they have obtained the services of the opposite party for commercial purpose.So they do not come within the meaning of Consumer as defined u/s 2(1)(d) of the Consumer Protection Act, 1986. Resultantly this complaint is also not maintainable.

14. In view of the above discussion, we do not find any merit in this complaint case and the same is hereby dismissed with no order as to costs. Copies of the orders be furnished to the parties free of costs. File is ordered to be consigned to the record room.

15. Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Forum.

09.04.2015 ( Bhupinder Singh )

President

( Kulwant Kaur Bajwa) (Anoop Sharma)

/R/ Member Member