PER SHRI. S.M. RATNAKAR – HON’BLE PRESIDENT
1) By this complaint the Complainant has prayed that it be held and declared that the Opposite Party is guilty of deficiency in service and unfair trade practices as provided under the Consumer Protection Act, 1986 (hereinafter referred to as the Act). The Complainant has also prayed to direct the Opposite Party to pay Rs.4,49,087/- being the loss suffered by the Complainant with interest @ 18% p.a. from 30/06/2007 i.e. the date of lodging of the claim till its realization. It is also prayed that the Opposite Party be directed to pay Rs.1,00,000/- towards compensation for mental agony, stress and hardship suffered by the Complainant due to unreasonable repudiation of their genuine claim and cost of Rs.50,000/- towards this complaint.
2) According to the Complainant, on 18/06/2007, the Complainant submitted its proposal for Standard Fire and Special Peril Policy alongwith cheque of Rs.3,894/- dtd.18/06/2007 in favour of the Opposite Party. The Complainant desired to ensure its goods lying in the eight different warehouse/godowns from 22/06/2007 to 21/12/2007. Accordingly, the Complainant mentioned the period of insurance coverage in the proposal form from 22/06/2007 to 21/12/2007. It is submitted that the Opposite Party assured the Complainant the insurance coverage will commence from 22/06/2007 and accepted the cheque for the Rs3,894/- dtd.18/06/2007 towards the premium. The copy of the proposal form it at Exh.‘C-1’.
3) According to the Complainant, in spite of the above fact the Opposite Party issued Standard Fire and Special Perils Insurance Policy No.201400/11/07/11/13/ 00000218 with the insurance coverage from 25/06/2007 to 24/12/2007. It is submitted that the issuance of policy coverage from 25/06/2007 to 24/12/2007 itself is deficiency in service and unfair trade practice on the part of the Opposite Party. The copy of the said policy is marked as Exh.‘C-2’.
4) According to the Complainant, on 30/06/2007 there was heavy deluge and M/s. New Kedarnath warehouse which was located in MIDC Industrial Area, Turbhe, Vashi, Navi Mumbai were totally flooded with 1.5 to 2.5 feet. It is submitted that 6533 bags of Green Peas been stocked at the warehouse premises were submerged under the dirty and acidic inundating water for several hours. Dirty water ingress into the bags and inner contend of pulses got soaked due to the said water. Thereafter the Complainant by its letter dtd.30/06/2007 dully lodged its claim to the Opposite Party as per the copy at Exh.‘C-3’
5) It is alleged that the Opposite Party appointed Mahendra C. Bhatt, Surveyors, Valuers for accessing the loss. According to the Complainant, the Surveyor visited the Complainant’s godown premises on 30/06/2007 and 01/07/2007to survey and assess the loss and damages caused to the Complainant’s stock at godown premises due to deluge. The Complainant submitted the required documents to the Surveyor to enable him to assess the loss. It is alleged that the Surveyor surveyed the said damaged cargo of food-grains lying in M/s. New Kedarnath Warehouse due to deluge. It is submitted that however, the copy of the survey report was not furnished to the Complainant. According to the Complainant, after laps of 14 months from the date of loss the Opposite Party appointed M/s. V.B. Associates investigator for the investigation. The said Investigator visited the Complainant’s godown premises. M/s. New Kedarnath warehouse on 11/08/08 and 12/09/08 for investigation. The Complainant gave his full cooperation to the Investigator to carry out his investigation. According to the Complainant, the Complainant personally visited the Opposite Party’s office for settlement of his pending claim and through letters and e-mails dtd.25/11/2008, 18/12/2008, 30/12/2008, 05/02/2009 and 04/06/2009. The copies of the said correspondence is marked as Exh.‘C-4’ colly.
6) According to the Complainant, the Complainant finally through its advocate sent notice dtd.17/06/2009 and reminder dtd.17/07/2009, however, the Opposite Party did not reply to it. The copies of the said correspondence are marked as Exh.‘C-5’ colly. It is submitted that the Opposite Party failed and neglected to give any reply to the correspondence made by the Complainant. Lastly the Complainant took recourse of Right to Information Act, 2005 by letter dtd.30/09/2009 and called for Survey Report, Investigation Report, Status of claim and other information. It is alleged that the Opposite Party by its letter dtd.30/10/2009 issued following documents to the Complainant –
A) Survey report issued by Mahendra C. Bhatt alongwith enclosures.
B) Investigation report of M/s. V.B. Associates alongwith enclosures.
C) Status of claim: Claim stands repudiated.
D) Legal opinion of A.R. Broacha & Co.
The copies of the said documents are marked as Exh.‘C-6 to C-9’ respectively.
7) It is submitted that the Opposite Party after laps of 29 months by its letter dtd.09/10/2009 on flimsy grounds repudiated the claim of the Complainant. The copy of the said letter is marked as Exh.‘C-10’. It is submitted that the Surveyor – Bhatt in his report opined that insured’s loss on stock is assessed at Rs.4,49,087/-. He further opined that all the terms, conditions and warranties prescribed in the policy verified and there is no breach of warranty and the insured claim is thus, tenable under the policy and the liability there under. The legal advisor of the Opposite Party A.R. Broacha & Co, in its opinion dtd.11/08/2009 have also opined that there would be liability for captioned claim under the policy. It is submitted that in spite of that the Opposite Party with an alterative motive repudiated the claim. It is submitted that the Opposite Party has caused great mental agony and torture to the Complainant as the Opposite Party on frivolous ground repudiated the claim. It is submitted that the Opposite Party with malafide intention has caused wrongful loss by rejecting bonafied claim of the Complainant. The Complainant has therefore prayed for the reliefs against the Opposite Party as mentioned in para one of this order.
8) The Opposite Party has filed the written statement and contested the claim. It is contended that the complaint is bad-in-law as the investigation carried out by the Investigator of the Opposite Party is based on whether report and from the said report it revealed that the rainfall was heavy on 24/06/2007 and not on 30/06/2007 i.e. before inception of policy to the Complainant. It is contended that the Opposite Party has decided not to pay the claim after scrutinizing the documents, considering the investigation report and proper application of mind and therefore, there is no deficiency of service as alleged by the Complainant. The Opposite Party has denied all the parawise allegations made in the complaint. It is contended that the premium cheque was realized on 27/06/2007, however, the Opposite Party has considered the policy from 25/6/2007 i.e. from the date of deposit of the cheque. It is submitted that the Opposite Party was more diligent in its duty. According to the Opposite Party, as per whether report there was heavy downpour on 24/06/2007 the loss had already occurred before the cheque was deposited on 25/06/2007 the Opposite Party has relied the report of Metrological Department, dtd.26/03/2009. The Opposite Party has denied that there was deluge on 30/06/2007 at Turbhe and at M/s. Kedarnath Warehouse located at MIDC Area Turbhe, Vashi, Navi Mumbai and it was flooded. It is denied that 6533 bags of green peace had been stocked at the warehouse premises and were submerged with dirty and acidic water for several hours because of rain on 30/06/2007. It is contended that since the loss occurred in the close proximity of the policy, the Opposite Party had to appoint Investigator M/s. V.B. Associates to investigate the genuineness of the claim. It is contended that the opinion of the legal advisor is not binding on the Insurance Company as he had not studied all the necessary papers before drawing the conclusion. It is contended that the Opposite Party after studying the documents repudiated the claim. It is denied that the Complainant had suffered any mental agony. The Opposite Party has denied the reliefs claimed by the Complainant and prayed for dismissal of the complaint with cost.
9) The Complainant on 05/04/2011 in view of the judgement of the Apex Curt in the case of Kandimalla Raghavaiah V/s. National Insurance Co. Ltd., III (2009) CPJ 75 (SC) filed application for condonation of delay and the said application was allowed by this Forum vide order dtd.07/08/2013 in view of the decision of the Hon’ble State Commission in the case M/s. Jyoti Impex V/s. New India Assurance Co. Ltd. in Case No.152/2009 decided on 29/04/2013 and accordingly this complaint proceeded further.
10) The Complainant has filed the affidavit in support of the complaint and rejoinder and affidavit in reply of the Complainant. The Opposite Party did not file the affidavit in support of their contention. Both the parties filed their written arguments. We heard Shri. Abhijit Gondwal, Ld.Advocate for the Complainant and Shri. K.C. Sanil, Ld.Advocate for the Opposite Party. We have perused the documents filed by both sides.
11) While considering the claim made in the complaint and the contention raised by the Opposite Party, it appears that the Opposite Party has repudiated the claim by letter dtd.09/10/2009 at Exh.‘C-10’ wherein it is informed to the Complainant as under –
“It is evident from the whether report issued by Regional Metrological Centre, Mumbai that the loss took place on 24/06/2007 before inception
of the policy and not on 30/06/2007, since the rainfall was heavier on 24/06/2007. Hence, your claim is repudiated.
We are closing the file and absolve ourselves of any further liabilities, arising out of this claim which please note.”
The defence which is raised by the Opposite Party for repudiating the claim lodged by the Complainant in our view in view of the various documents placed on the record is totally arbitrary. The survey report filed at Exh.‘C-7’ shows that the Surveyor of the Opposite Party Mahendra C. Bhatt has assessed the loss to the tune of Rs.4,49,087/- by his report dtd.30/05/2008. In his report he has also in para 3 & 4 observed that time, day and date of loss at around 11.00 hrs. on Saturday, 30th June, 2007. He further observed that a non stop rain more than 6.00 hrs. on 30/06/2007, causing wide spread water logging in Mumbai, Navi Mumbai, Thane District, Raigad and Konkan. It is also mentioned in his report that Roads, Highway, Rail track and Airport were flooded due to accumulation of inundating water. This water could not be receded more than 6 – 7 hours as result road transport rails and air services were disrupted for 6 hours. He also observed that highest rainfall recorded 430 mm in Santacruz and in Colaba about 183 mm. From the report submitted by the said Surveyor it appears that he had verified the losses sustained by the Complainant and the terms and conditions of the policy very minutely and observed that all the terms and conditions and warranties prescribed and verified and there is no breach of warranties. The said Surveyor has also observed that the Insured’s loss to the stock was due to inundation a peril covered under Standard Fire and Special Insurance Policy. The Surveyor has recommended insured’s claim as tenable under the said policy and the Insurer could be liable there under. The Complainant besides that has produced on record the news paper reports at Annexure -‘G’ of Sunday Times dtd.01/07/2007 showing that on 30/06/2007 City Flounders as down pour evokes memories of 26/07/2005 and also the report of Sunday Time of India dtd.01/07/2007 showing that on 30/06/2007 there was heavy rainfall in the city. The Investigator has also not held that the claim lodged by the Complainant is not genuine. The Solicitor and Advocate A.R. Broacha, in the opinion dtd.11/08/2009 instructed the Opposite Party that there would be liability of the Opposite Party under the policy obtained by the Complainant. In spite of the above documents, the report of Metrological Department relied by the Opposite Party for rejecting the claim in our view is totally improper. In the said report also the rainfall is shown as 094.1 on 30/06/2007 in the area of Thane Belapur and on 01/07/2007 290.4. Thus, in our view the repudiation made by the Opposite Party is totally improper on the part of the Opposite Party and it amounts to deficiency in service and unfair trade practice on the part of the Opposite Party. The Hon’ble National Commission in the case relied by the Complainant’s Advocate reported in IV (2011) CPJ 503 (NC) Balaji Alliance General Insurance Co. Ltd. V/s. Atibir Industries Co. Ltd. in the similar facts held that the Metrological report given by the Centre in view of the copy of the local newspaper which indicated that the storm has occurred at the place at the industrial unit and obviously the report of Metrological Department could not have been of much importance to ascertain whether there was strong at that particular place or not. We thus, hold that the contention raised by the Opposite Party relying on metrological report is devoid of substance. We therefore, hold that the Complainant is entitled to an amount of Rs.4,49,087/- being the loss suffered by the Complainant with interest @ 9% p.a. from 30/06/2007 i.e. date of lodging of claim till its realization. The Complainant has claimed compensation of Rs.1,00,000/- for mental agony and hardship suffered by the Complainant but in our view the Complainant being partnership firm which is juridical person is not entitled for the compensation for mental agony and hardship as can be claimed by the individual person. We therefore, hold that the said claim cannot be allowed in favour of the Complainant. The Complainant is entitled for the cost of Rs.8,000/- towards this complaint. In the result we hold that the submissions made by the Advocate for the Complainant for grant of the above claim are legal and proper. We thus, pass the following order –
O R D E R
i. Complaint No.09/2010 is partly allowed against the Opposite Party.
ii. The Opposite Party is directed to pay Rs.4,49,087/- (Rs. Four Lacs Forty Nine Thousand Eighty Seven Only) with interest
@ 9% p.a. from 30/06/2007 till it’s realization and cost of Rs.8,000/- (Rs. Eight Thousand Only) towards this complaint to
the Complainant.
iii. The Opposite Party is directed to comply with the aforesaid order within one month from the date of service of this
order.
iv. Certified copies of this order be furnished to the parties.
