Delhi

StateCommission

CC/884/2015

HINDUSTAN ICE & COLD STORAGE - Complainant(s)

Versus

UNITED INDIA INSURANCE CO. LTD. - Opp.Party(s)

23 Aug 2017

ORDER

IN THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION : DELHI

(Constituted under Section 9 of the Consumer Protection Act, 1986)

                                                                    Date of Arguments:  23.08.17

          Date of Decision:      05.09.17

 

Complaint No. 884/2015

In the matter of:

R.K.Puri Prop.

Hindustan Ice & Cold Storage

C 25, Lawrence Road Indl. Area

New  Delhi-35.                                                                                                                   …..Complainant   

                       

                                                                        Versus

1.         United India Insurance Co. Ltd.

            Direct Agent Branch : 60, Janpath

            New Delhi.                                                                                          …..Opposite Party 1

 

2.         Shri Ashok Singhania (Authorised Agent)

            E-15/115, Sector-8

            Rohini

            Delhi-110085.     (Given up on 29.09.16)                                           …….Opposite Party 2                                                  

                

CORAM

Hon’ble Sh. O.P.Gupta, Member(Judicial)

Hon’ble Sh. Anil Srivastava, Member

 

1.Whether reporters of local newspaper be allowed to see the judgment?  Yes/No

2. To be referred to the reporter or not? Yes/No

 

  SHRI O.P.GUPTA, MEMBER(JUDICIAL)

 

JUDGMENT

          The case of the complainant is that he has been taking the fire and other insurance policies from OP 1 through OP 2 in respect of his firm and cold storage at C-25, Lawrence Road Industrial Area, New Delhi-35 till April 2011. He never filed any claim with OP 1.  He renewed policy under Standard Fire and Special Perils Insurance w.e.f. 13.04.11 to 12.04.12.  He got insured his firm’s property covering cold storage, tin sheds building, boundary walls additional coverage sheds supported by angles irons, wooden battas with stone plates on the first floor roof top and on the Mezanine Floor rested with kanchies of angle irons  for support of tinshed for Rs. 1,10,00,000/- and further his plant and machinery, ECT installation, fixture and fittings/furnitures stocks etc. etc. as per policy for Rs. 2,00,00,000/- only including cold storage building.

2.       There was a heavy storm/thunder storm with heavy rain on 22.05.11 in Delhi all over with the result that number of buildings in the capital witnessed wall collapse, damage to the building and tin in the city,  falling of sheds, huge trees/uprooting of trees from heavy shower and storm, thunder storm uprooted 39 trees and besides this number of buildings collapsed and house roofs and the tin sheds were blown up/ away by the strong winds/thunderstorm followed by heavy rain.   The same was reported in North Delhi and Central Zone in Delhi.  As per MCD officials high tension wire broke at some places in the city.

3.       Again on 23.05.11 the same process as mentioned above was repeated in the city with huge loss as above.  Due to thunderstorm on 22.05.11 tin shed building of the complainant got damaged on 22.05.11.  Due to strong wind of the thunder storm on 23.05.11 followed by heavy rain with quite big cracks in the tin shed building and walls with the danger of its fall any time with the bending of the tin shed, iron angle and kanchies.

4.       Complainant immediately on 23.05.11 morning sent a letter to OP 1 with a copy to OP 2 informing damage to his building on 22.05.11 stating that cracks in the tin sheds building and walls have been noticed in rear portion of the main building, tin shed building due to a very strong wind and thunder storm.  Tin sheds were constructed/built during 1998. Complainant informed that he feared collapse and fall any time.  He requested OP 1 to send claim forms because the same were to be repaired/reconstructed after rain/thunder storm is over.  OP 1 did not provide claim forms to the bearer of the letter who submitted the letter in its office on23.05.11.  This is the grossest kind of deficiency by the OP 1. It is nothing but unfair trade practice in which OP 1 should be liable to be punished heavily.

5.       Due to very strong winds/thunder storms on 22.05.11, 23.05.11 and on the night of 23.05.11 and 24.05.11 entire tinshed building collapsed and fell down on 24.05.11 including cracked walls.

6.       On 25.05.11complainant sent e-mails to OP 1 informing the incident and requested to register claim but to no use.  On 26.05.11 he sent  e-mail to the same effect.  This type of practice by insurance company is against law and natural justice.  OP 1 took six days to visit site.  OP 1 must be very heavily penalized with sum of Rs. 5,00,000/- atleast for such negligence.  The surveyor visited the site on 28.05.11 and prepared his report.  Surveyor directed the complainant to start his work.  On his assurance to approve the claim as per documents filed and received by him, complainant started his work. In the report submitted by surveyor it is mentioned that due to heavy storm on 22.05.11 and 23.05.11 tin shed building in the open space which was constructed during 1998-2000 were damaged and collapsed.  Surveyor sent e-mail asking some queries after one month of his report which clearly shows negligence on the part of OP 1.

7.       To the surprise of the complainant OP 1 sent letter dated 21.11.11` that they have closed his file as claim did not come under the perils covered under the fire policy and hence claim was closed.  This was done when without giving copy of surveyor report.  They (may be surveyor/OP 1) mentioned that there was no thunder storm on 24.05.11. They forgot that the letter of complainant mentioned that due to thunder on 22.05.11 and 23.05.11 damage was caused to the tin shed building.  OP 1 is guilty of suppresso very suggestion falsi.

8.       Complainant wrote on 20.03.12 to OP 1 requesting to OP 1 to appoint 2^nd surveyor.  OP 1 never replied.  Complainant has spent sum of Rs. 21,15,875/- on dismantling of the damaged tin shed building, angle iron, kanchies, girders and construction of the same as per details attached separately.  Bills of purchase of the material through bank cheque are available with the complainant and can be produced as and when required. Neither OP 1 nor OP 2 informed the policy details to the complainant at the time of selling the policy and issue of cover note. Cause of action arose on 21.11.11 when OP 1 sent letter of refusal to pay the bonafide claim of complaint to the complainant.  Hence this complaint for direction to OP 1 to pay Rs. 21,15,875/- instead of estimate of Rs.17,29,413/- given by complainant.  OP 1 may be directed to pay interest @ 18% per annum w.e.f. 28.05.11 till date because OP charges 18% from their customers for their late payment etc. Further compensation and damages of Rs.5,00,000/-lakhs for illegal, deliberate, unlawful and unjustified action not to pay the claim to a very senior citizen has also been prayed.  Litigation cost of Rs. 22,000/- is also one of the prayer.

9.       OP 1 was served for 29.09.16.  Shri Ravi Sabharwal, counsel for OP 1 appeared and filed memo of appearance.  Copy of complaint was supplied to him.  He was directed  to file WS within 30 days.  On the next date I.e. 19.12.16 none appeared for OP 1.  Since it had failed to file WS though statutory period had expired, its right to file WS was closed.

10.     OP 2 did not appear despite service of dasti notice on 29.09.16.  However complainant gave up OP 2 on the said date.

11.       Complainant filed his affidavit in evidence and written arguments.

12.       We have gone through the material on record and heard arguments. 

13.       At the very outset it may be mentioned that according to complainant cause of action arose on 21.11.11 as mentioned in para 28 of the complaint. The complaint has been filed on 24.09.15 which is clearly barred by limitation.   Complainant has filed application for condonation of delay dated 22.10.15.  According to him he has filed complaint before District Forum, Shalimar Bagh on 27.08.12 but the same was dismissed on 31.07.15 on the ground that relief claimed by complainant was more than Rs. 20,00,000/- which was beyond pecuniary jurisdiction of the said forum.  If the District Forum had no jurisdiction, complaint should have been rejected on the first hearing.  But after admitting the complaint, rejection of the same after three years is bad.  Complainant is entitled to benefit of period for which complaint was pending before the District Forum u/s 14 of the Limitation Act as held by Division Bench of Hon’ble High Court of Delhi in RFA(OS) No. 66.2011 titled as Super Auto Centre vs. BSES Rajdhani Power Ltd..

14.       It may be mentioned that there is no provision for condonation of delay in filing suit in regular court.   It is true that section 24 (A) contains provision of condonation of delay for filing complaints also but the same is an exception as per decision of National Commission in RP No. 2618/02 titled as C H Vithal Reddy vs. Manager District Cooperative Central Bank decided on 04.12.2002.  Condonation of delay in filing complaint is a serious matter and it cannot be condoned lightly.

15.       On merits it may be mentioned that section 14 of Limitation Act comes into play only when the complainant/plaintiff has been pursuing the case before a forum not having the jurisdiction, under the bonafide belief that said forum had the jurisdiction.  We lay emphasis on use of word ‘bonafide’ in said section. The same shows that there must be some confusion about the jurisdiction.  In other words there must be scope for two views., one in favour of forum having the jurisdiction and other against the forum having jurisdiction.  It is only in said circumstances that a litigant can be heard to say tht he was pursuing his remedy  before a wrong forum under bonafide belief.

16.       In the instant case since the claim of the complainant was for Rs. 21,15,875/- alongwith interest, compensation of Rs. 5,00,000/-, Rs. 2,00,000/- for mental agony, torture and Rs. 22,000/- for cost of litigation as recited in order dated 31.07.15 passed by District Forum, Shalimar Bagh, New Delhi copy of which is at page 42 to 44 of the file.  The sum total of the relief comes to Rs., 28,37,815/- besides interest. Pecuniary jurisdiction of the district forum is Rs. 20,00,000/- which is a fact well known to all litigants and advocates.  Complainant  has not pleaded that he was not aware about the limits of pecuniary jurisdiction of district forum.  Moreover  ignorance of law is no excuse.  Hence complainant is not entitled to benefit of section 14 of limitation Act.   Consequently application for condonation of delay is dismissed.

17.       With this the complaint itself should stand dismissed as being barred by limitation.

18.       However, we have perused the complaint on merits.  The complainant heavily relies upon letter of repudiation dated 21.11.11 sent by OP 1 copy of which is at page 31.  He stressed that OP 1 rejected his claim as it took the date of thunder storm on 24.05.11 at 6.30 p.m.  Wind speed as on 24.05.11 was 37 km per hour only which does not come under storm as per meteorological department.  The case of the complainant was thunder storm/rain took place on 22.05.11 and 23.05.11.

19.       It appears that OP has taken the date 24.05.11 from part 1 of letter dated  25.06.11 written to OP 1 copy of which is at page 28.  Complainant mentioned that rain during night of 23.05.11 and 24.05.11 caused crash of old structure, walls and tin shed on 24.05.11 when entire structure fell down which caused crash of old walls, stones, slab, angle iron and garders.

20.       To some extent complainant may be right in contending that OP 1 rejected the claim due to misconception.  Still we have to see whether complainant has been able to prove his case.  The complainant has relied upon his own affidavit with cutting of newspaper.  Reports of newspaper do not carry presumption of authenticity. The complainant should have proved thunder storm and heavy rain by report from meteorological department.  He has failed to do so.

21.       Complainant has failed to substantiate his claim of spending Rs. 21,15,875/- spent by him on dismantling of the damaged tin shed building and construction of the  same.  He has failed to file bills for purchase of the material which he pleaded that he was possessed of.  He has not filed affidavit of labourers to whom he made payment.

22.       At this stage it may be highlighted that complainant himself gave estimate of Rs. 17,29,413/-.  That being so he cannot claim Rs.21,15,875/-.

23.       Request for appointment of second surveyor is not justified.  He has not made any complaint that first surveyor was prejudiced or biased against the complainant.

24.       It is very strange that on the one hand complainant alleged that he was not supplied  copy of report of first surveyor and on the other hand he states copy of surveyor report is attached with the complaint.  This is mentioned in para 25(i) of complaint at page 9.  If the report was not supplied, how he could file the same? It may also be added that our discerning eyes have failed to  find the copy of the surveyor report on the file.

            Complaint is dismissed.

            Copy of the order be sent to both the parties free of cost.

 

(ANIL SRIVASTAVA)                                                                                 (O.P.GUPTA)

MEMBER                                                                                              MEMBER(JUDICIAL)

 

 

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