Haryana

StateCommission

CC/638/2018

M/S KHADI UDYOG, JATHLANA - Complainant(s)

Versus

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

SIKANDER BAKSHI

21 Dec 2021

ORDER

 

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

HARYANA PANCHKULA

                  

                                                Consumer Complaint  No.638 of  2018

Date of the Institution:22.11.2018

Date of Decision: 21.12.2021

 

M/s Khadi Udhyog, Jathlana, Jagadhari Road,village Manglai,Ambala through its Secretary Sh.Rajesh Singla.

                                                                   .….Complainant

Versus

1.      The United India Insurance Company Limited, Triloki Chambers, Opp Municipal committee Road, Punjabi Mohalla Ambala 133001, Haryana through its Divisional Manager.

2.      The United India Insurance Company Limited, Regional Office : SCO 123-124, Sector 17 B Chandigarh, 160017.

                                                .….Opposite Parties

CORAM:    Mr.Ram Singh Chaudhary, Judicial Member.

 

Present:-    Mr.Sikander Bakshi, Advocate for complainant.

Mr.D.P.Gupta, Advocate counsel for opposite parties.

 

O R D E R

RAM SINGH CHAUDHARY, JUDICIAL MEMBER:

 

          The brief facts given rise for the disposal of the present complaint are that  the complainant is running a trust registered and is running as per norms and style of Khadi Udyog where the basic aim is to give labour and employment to the rural area and the villagers and is having nine members in total Sh.Rajesh Singla as Secretary. The raw material of most of the product was cotton and the stock items were insured with the OPs. The  complainant had purchased standard Fire and Special Perils Insurance Policy from the OP No.1, which was valid from 23.12.2015 to 22.12.2016. The sum assured for Rs.30/- lacs for machinery, Rs.One crore for stock and Rs.Two lacs for machinery and got insured machinery used in the insured trade, stock of all kinds of khadi Udhyog raw material like as cotton yarn, handloom goods, polyster yarn, leather, cotton and clothes finished/unfinished honey leather goods and all goods related to the insured trade and entire building including 5 sheds lantered boundary walls gate etc. above plinth level and the complainant paid premium of Rs.26,416/-.  Unfortunately, on 29/30.04.2016 a fire had broken out due to fire broke out from the generator.  Fire brigade was informed  and the workers of the fire brigade were worked hard to control the fire broke out in the insured premises.  Information about this incident was also given to the OPs on the same day.   DDR No.024 dated 30.04.2016 was also registered. Some of the officials of the OPs reached at the spot.  In the fire, the estimate of stock loss of Rs.56,94,238/- for loss to cotton yarn (Soot) as per claim bill were destroyed.   Surveyor was appointed to assess the loss occurred because of fire and Royal Associates investing and detective agency was also deputed to investigate the case of claimant.  The photographs of the spot were also taken by the surveyor. The claimant submitted all the documents required by the OPs vide letter dated 08.06.2016, but, the claim of the complainant was rejected. The complainant sought information under RTI from the respondent, which was supplied.  Copy of letter dated 25.08.2017 reply under RTI is annexed herewith as Annexure C-13. A stock of Rs.56,94,238/- was destroyed in the fire. Besides this, the complainant had incurred expenses on account of clearing the debris etc. to the extent of Rs.3,06,000/- as such there was a total loss of Rs.60,00,000/- to which the complainant is entitled but the same has been withheld by the OPs. The complainant requested the O.Ps. to pay the claim amount, but, OPs knowingly and willfully avoid the payments.   Thus there was deficiency in service as well as unfair trade practice on the part of the O.Ps.

2.                Notice of the complaint was issued against the O.Ps. and the reply was filed, wherein the averments taken in the complaint were strongly denied and refuted and prayed for dismissal of the complaint.

3.                While taking the preliminary objection it has been alleged that  complainant is a trust and therefore does not fall within the definition of complainant.  Other preliminary objections about non-joinder of necessary party, maintainability etc. were also raised and requested to dismiss the complaint.

4.                On merits,  a trust could not file a complaint under CP Act.  The copy of insurance policy Annexure C-5 filed with the complaint and copy of which has been supplied to the OPs was not legible. It does not show that it was a copy of insurance policy No.1101001115P111249639.  It was denied that Annexure C-5 was a copy of the alleged policy.  However, as per the said policy number the sum insured for building was Rs.30.00 lacs, for stocks Rs.1.00 crore and Rs.2.00 lacs for machinery for the period 23.12.2015 to 22.12.2016.  An intimation was received that there was theft on the night intervening 29/30.04.2016.  It was denied that any official of the OPs had reached the spot on that date.  On receipt of the intimation of loss, OPs appointed surveyor, who submitted his report.  It was denied that all the documents as required by the OPs and the surveyor were provided by the complainant.  Moreover, from the audit report and balance sheets and copies of stock storage/books maintained it could not be determined as to the quantum of loss suffered by the complainant in the alleged fire.  It was also denied that there was a loss of Rs.56,94,238/- on account of loss to cotton yarn.  The surveyor has ruled out that there could be fire by any short circuiting or on account of any chingari from the DG set. The surveyor found that there were remains of cotton waste and  there were no remains of burnt yarn. The report of the surveyor has already been supplied to the complainant.  The complainant did not show the records of purchases and sales done by it. The complainant did not show the purchase bill of raw material. The complainant was informed of said decision of the OPs through letter dated 17.04.2017, which was received by the complainant on 24.04.2017. The complainant is not entitled for any claim amount.  Thus there was no deficiency in service  as well as unfair trade practice on the part of the O.Ps.

5.                When the complaint was posted for recording evidence of the parties, the complainant in his evidence has tendered the affidavit Ex.CA/1 that of Sh.Rajesh Singla vide which he has reiterated all the averments taken in the complaint and further tendered the documents Ex.C-1 to Ex.C-20 and closed his evidence.

6.                On the other hand in order to rebut the evidence led on behalf of the complainant the O.Ps. had also tendered the affidavit Ex.RA-1 that of Mr.Gursharan Singh Deputy Manager, Sh.Vishal Aggarwal  surveyor and loss assessor and Sh.Kashmir Singh   prop of M/s Royal associates alongwith documents Ex. OP-1 to x. OP-4 and  close the evidence on behalf of the OPs.

7.                The arguments have been advanced by Sh.Sikander Bakshi the learned counsel for the complainant as well as Mr.D.P.Gupta, the learned counsel for the opposite parties.  With their kind assistance the entire record including documentary evidence as well as whatever the evidence had been led during the proceedings of the complaint had also been properly perused and examined.

8.                Learned counsel for the complainant vehemently argued that cotton yarn and other stocks, which were insured from 23.12.2015 to 22.12.2016 with the OPs, finished due to fire on 29/30.04.2016. The claimant had suffered a loss of Rs.56,94,238/- on account of fire in stocks.   Some of the bills relating to jute were also burnt. Upon intimation, surveyor was appointed, who inspected the site.  DDR was also registered. Fire brigade was also informed, they worked hard to control the fire broke out in the insured premises. The OPs were illegally rejected the claim of the complainant.  Learned counsel for the claimant has referred the judgement of  Hon’ble Supreme Court titled  Administrator Smt. Tara Bai Desai Charitable Opthalmic Trust Hospital, Jodhpur Vs. Managing director Supreme Elevators India Pvt.ltd. &Ors. Decided on 04.10.2019

9.                Learned counsel for the opposite parties vehemently argued that a trust have no right to file the complaint before this Commission, hence, the complaint be dismissed as prayed for.  Further argued that Annexure C-5 was not a copy of the alleged policy,  however, as per the said policy number the sum insured for building was Rs.30.00 lacs, for stocks Rs.1.00 crore and Rs.2.00 lacs for machinery for the period 23.12.2015 to 22.12.2016.  It was specifically argued that an intimation was received that there was theft on the night intervening 29/30.04.2016.  Upon receipt of the intimation of loss, OPs appointed surveyor, who  rejected the claim of the complainant.  Moreover, from the audit report and balance sheets and copies of stock storage/books maintained it could not be determined as to the quantum of loss suffered by the complainant in the alleged fire.  There was no loss of Rs.56,94,238/- on account of loss to cotton yarn.  The surveyor has ruled out that there could be fire by any short circuiting or on account of any chingari from the DG set. The surveyor found that there were remains of cotton waste and  there were no remains of burnt yarn. The report of the surveyor has already been supplied to the complainant.  The complainant did not show the records of purchases and sales done by it.  The  complainant is not entitled for the claim amount. The complaint be dismissed as prayed for.

10.              As per the ratio laid down by the Apex Court in Administrator Smt. Tara Bai Desai Charitable Opthalmic Trust Hospital,Jodhpur Vs. Managing Director Supreme Elevators India Pvt. Ltd.& Ors (supra), it has been categorically observed that trust considering  to be person and while maintaining his cause of action though the issue has been referred to the larger bench and the judgement is  yet to be announced and whatever the contention has  been raised  in Civil Appeal No.3560 of 2008 in Pratibha Pratisthan Vs. Manager, Canara Bank decided on 07.03.2017 which does not apply to the facts and circumstances of the present case.   Infact the the dispute is  squarely covered by the decision of Administrator Smt. Tara Bai Desai Charitable Opthalmic Trust Hospital,Jodhpur Vs. Managing Director Supreme Elevators India Pvt. Ltd.& Ors (supra).  The relevant portion of the judgement is reproduced as under:-

“In the circumstances, we find it difficult to accept that a “trust” would not come within the definition of a “consumer”. In our view, the issue requires to be revisited and the matter requires re-consideration. We, therefore, request the Hon’b’le Chief Justice of India to constitute a bench of such strength as the Hon’ble Chief Justice of India May consider proper.”

As per the contention raised by learned counsel for the complainant, though the intimation was given o the insured and in this regard DDR No.024 dated 30.04.2016 was also recorded       on the same day, however there is a specific reference about causing the loss to the complainant due to fire. Though the surveyor was deputed by the insurance company but the reasons are best known to him as to why the surveyor was not associated with the proceedings and it appears that he was having  some ulterior motives by not joining the complainant and assessed the major loss of Rs.56,94,238/- for loss to cotton yarn (Soot), whereas as per the allegations/averments taken on behalf of the complainant on the relevant date of causing  the fire, there was a stock available more than Rs.60,00,000/- (Sixty lacs only) as per the Balance Sheet Ex-C-10 prepared by the Chartered Accountant. The surveyor has tried to create a misnomer, since there was a loss of the cotton yarn (soot) which has been referred in the balance sheet prepared by the Chartered accountant. Since there was a loss of the cotton yarn (Soot), cotton etc, whereas it is quite possible that the bills of these commodities might have burnt in the fire set out in the premises  belonging to the complainant but there was no reason to  discard the balance sheet, which has been prepared by the qualified chartered accountant. The reasons given by the surveyor to display the version of the complainants appears to be not applicable as he has given imaginary reasons that there was marks of the fire only upto 2-3 feet which itself reflect that the surveyor was biased against the complainant.  He has specifically referred generator installed in the premises of the complainant it was not working, even a small instinct of the fire can goes a loss to the generator which may not be operative at the time of visiting of the surveyor.  This Commission is restraining to comment upon the work and conduct of the surveyor but it is merely advice to him that the business people are facing great hardship due to heavy financial losses and even insurers are not adopt such a hard yardstick to assess the actual loss if caused to the assured. The report submitted by the surveyor Ex.C-12 does  not  inspire any confidence and is not worth, reliance and reliable. The appellant Insurance Company is liable to indemnify the policy holder when the insurer has obtained policy for the loss caused to the insurer. The respondent submitted that even assuming that there was a breach of condition of the insurance policy, the appellant Insurance Company ought to have settled the claim on non-standard basis. The Insurance Company cannot repudiate the claim in toto in case of loss of the cotton yarn (Soot), cotton and etc.  It is also admitted that as per the surveyor report the fire was extinguished.  In a case of this nature, the Insurance Company in our view should settle the claim on non-standard basis, instead of paying the entire claim  amount assessed by the claimant.   In the interest of justice and equity, thus the amount of the compensation is assessed on non standard basis. The complaint is allowed and direct the Insurance Company-O.Ps. to pay 75% of Rs.56,94,238/-  i.e. Rs.42,70,678/- to the complainant alongwith interest on that amount at the rate of 9% per annum from the date of occurrence till the date of payment.  The amount as allowed above is directed to be paid within stipulated period of 45 days and in case of non-compliance, the complainant is further be entitled to get the interest @ 12% per annum from the defaulting period. The complainant is also entitled of Rs.1,00,000/- for compensation for mental agony and physical harassment. In addition, the complainant is also entitled of Rs.55,000/- as litigation expenses.  It is also made clear that for non-compliance, the provisions enshrined under section 72 of the C.P.Act would also be attractable.

 

December 21st, 2021                              Ram Singh Chaudhary,                                                                          Judicial Member                                                                                       Addl.Bench                 

S.K.