Punjab

Hoshiarpur

CC/14/143

M/s Golden Star Food Ltd. - Complainant(s)

Versus

United India Insurance Company Ltd. - Opp.Party(s)

Sh. Sanjiv Bhardwaj

21 Jan 2015

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM HOSHIARPUR

(3RD FLOOR, DISTRICT ADMINISTRATIVE COMPLEX, HOSHIARPUR)

C.C. No. 143/08.07.2014

Decided on : 21.01.2015

M/s Golden Star Food Ltd., Krishna Nagar, Bharwain Road, Gagret, Tehsil Amb, Distt. Una (H.P.) through its Managing Director Anil Sood.

Complainant

vs.

1. United India Insurance Company Ltd., Divisional Office, Jalandhar Road Hoshiarpur through its Divisional Manager.

2. United India Insurance Company Ltd., Regd. Head Office 24 Whites Road Chennai through its Manager.

Opposite parties

Complaint u/s 12 of the Consumer Protection Act, 1986.

 

Quorum: Sh. Ashok Kumar,President.

              Mrs. Sushma Handoo,Member.

 

Present: Sh.Kanwar Navdeep Singh, counsel for the complainant.

               Sh.Brij Thakur, counsel for the OPs.

 

ORDER

PER ASHOK KUMAR, PRESIDENT

1. The complainant has filed the present amended complaint under Section 12 of the Consumer Protection Act,1986 against United India Insurance Company Ltd. through its Divisional Manager and another (hereinafter referred to as OP No.1 & OP No.2 respectively, for short) praying for a direction to the OP to pay the insurance claim of

   Rs.8,02,405/- and further to pay Rs. 50,000/- as damages for inconvenience and harassment suffered by him and Rs. 50,000/- as litigation costs.

2. Briefly stated, the case of the complainant is that complainant firm deals in manufacturing process of fruit products and vegetables juice, corrugated boxes, packing and packed materials, pet bottles, pet perform, injection mouldings, condiment factories (including fruit pulp making). OP No.1 is the Divisional Office of the United India Insurance Company Ltd. at Hoshiarpur and OP No.2 is the head office and OP No.1 works under the instructions and guidelines of OP No. 2. Complainant got insured the building, plant machinery and accessories, furniture, fixtures and fittings, category 1 stocks under the name of Bank of India Jalandhar M/s Golden Star Food Ltd. Complainant got the Standard Fire and Special Perils Policy by depositing Rs.42,135/- on 22-05-2013 . The policy was issued on 23-05-2013 valid till midnight of 22-05-2014. It is further averred that on 22-07-2013, the boundary wall and Boiler Plant E.T.P. got damaged with land slide due to heavy rainfall. The application with regard to damage due to land sliding was given by the complainant to the Gram Pardhan, Gagret, Una. The information in this respect was also given by the complainant to the Divisional Manager, United India insurance Company Ltd. vide letter dated 24-07-2013. Thereafter, an application dated 23-08-2013 was also given to the Senior Divisional Manager, United India Insurance Company Ltd., Hoshiarpur regarding the loss of the property in factory of the complainant which occurred due to heavy rain and flood. Actually the loss was due to land slide by heavy rain in the area of the factory of the complainant which is a hilly area. In the application dated 23-08-2013, the complainant clearly stated that being a layman about words he could not write the word land slide in the intimation letter dated 24-07-2013. It is further averred that vide letter dated 23-08-2013, the complainant clearly mentioned that the loss occurred due to the land slide by heavy rain and also requested to rectify the words and to depute the surveyor to assess the loss of said factory. In the loss claim form , the cause of loss has been mentioned as land slide. On 26-08-2013, the surveyor and loss assessor M.L. Mehta & Company visited the factory premises at Gagret and inspected the spot. A registered letter dated 27-08-2013 issued by M/s M.L. Mehta & Company was received by the complainant in which the loss assessor asked to submit the documents which were duly submitted by him. Again the letter dated 19-10-2013 in regard to deficiency of documents was given by the loss assessor to the complainant. Thereafter, Pankaj Sood Engineer, Surveyor, Loss Assessor & Valuer visited the spot and prepared the estimate of Rs. 4,91,454/- for loss of boundary wall and Rs.1,73,950/- for the loss of effluent treatment plant and the same was supplied to OPs. It is further averred that complainant visited the office of OP No. l many a times and requested to pay the claim but to no use. Thereafter, complainant received a registered letter dated 15-04-2013 from OP No.1 vide which it repudiated the claim of the complainant mentioning therein that as per the survey report, loss occurred due to flood and the risk of flood is not covered under the said policy and the liability of the company does not exist. The observation taken by the OP is totally wrong. It is further averred that as per policy, the material damage caused due to fire, lightening, explosion-implosion, aircraft, riot, strikes, malicious damages, storm, cyclone, typhoon, tempest, hurricane, tornado, flood and inundation, impact damages, land slide including rock sliding, bursting and/or overflowing of water tanks, apparatus and pipes, missile testing operations, leakage from automatic sprinkler installations, bush fire are covered. The complainant suffered loss of Rs. 6,65405/- alongwith Rs. 37,000/- on dismantling and refitting of boiler, tank and E.T.P. unit complete with material including labour charges and as such the complainant is entitled for the insurance claim of the loss due to land slide which comes under the insurance policy. As the OPs have wrongly repudiated the claim of the complainant so, complainant is entitled to the claim amount. Hence this complaint.

3. On notice, OPs filed joint contested written statement taking preliminary objections that the present complaint is not maintainable against the O.P. Insurance Company; complainant is estopped by its act and conduct to file the present complaint; the present complaint is bad for non-joinder of party ; involvement of intricate question of law and facts which require lengthy full scale trial and recording of evidence of numerous witnesses requiring reference to the Civil Court and that complainant has no locus standi to file the present complaint alone. On merits, it is denied that the complainant got insured the building, plant machinery, furniture, fixtures and other articles. It is admitted that the complainant intimated the loss dated 22-07-2013 of the boundary wall and boiler plant vide letter dated 24-07-2013 according to which the loss occurred due to heavy rain and flood . It is denied that the loss in dispute was due to land slide and not due to flood. The said plea was taken by the complainant in the letter dated 23-08-2013 after going through the letter of the O.P. Insurance company dated 29-01-2013 that the risk of flood is not covered under the policy in dispute. The plea that the loss was due to land slide and not due to flood was taken to get false compensation from the OP by playing fraud. It is admitted that after the intimation, an independent Govt. approved surveyor M/s M.L. Mehta & Co. was deputed to assess the loss and the said surveyor visited the factory premises at Gagret and inspected the spot and wrote letter to the complainant to supply the documents required for the settlement of the claim but it is denied that the complainant submitted all the documents required for the settlement of the claim. It is further replied that as per the survey report, the loss was caused to the insured property due to flow of water and not due to land slide as alleged and loss was assessed at Rs.77,283/-. It is denied that Pankaj Sood surveyor visited the spot and prepared the estimate of construction of boundary wall and other heads as alleged . It ls also denied that the said surveyor is competent to assess the loss in dispute. It is further denied that the loss in dispute is covered under the policy as alleged. It is further replied that as the loss has occurred due to heavy rain and no premium was paid by the complainant or was charged by the OP to cover the risk of flood hence, the claim is not payable in any manner and the same was rightly repudiated vide letter dated 15-04-2014. So, complaint filed by complainant is liable to be dismissed with costs.

4. Both the parties wanted to lead evidence to prove their respective pleadings and proper opportunity was given to them. The complainant tendered in evidence affidavit Ex. C-1, insurance policies Mark C-2 & Ex.C-3, claim form Mark C-4, photograph Mark C-5, estimates Mark C-6 & Mark C-7, site plan Mark C-8, estimates Mark C-9 & Mark C-10, site plan Mark C-11, letters Ex. C-12 to Ex. C-17, affidavits of - Amarjit Singh Ex. C-18, Pankaj Sood Ex. C-19 and closed the evidence.

5. In order to rebut the evidence of the complainant , the OP tendered in evidence affidavit of Sh. Paramjit Singh Klair, Sr. Divisional Manager Ex.OP-1, Insurance policy with conditions Ex. OP-2, repudiation letter dated 15.4.2014 Mark OP-3, letter of the complainant dated 24.7.2013 Mark OP-4, letter of the insurance company dated 29.7.2013 Mark OP-5, letter of the complainant dated 23.8.2013 Mark OP-6, survey report Mark OP-7, claim form Mark OP-8, affidavit of M.L. Mehta Ex. OP-9 and closed the evidence.

6. We have heard learned counsel for the parties and have very carefully gone through the affidavits and documents on the file.

7. Learned counsel for the complainant has vehemently argued that complainant firm was insured with the OP. On 22-07-2013, the boundary wall and Boiler Plant E.T.P. of complainant firm got damaged due to land slide as result of heavy rainfall. The OP was informed in this respect vide letter dated 24-07-2013. On 26-08-2013, the surveyor and loss assessor M.L. Mehta & Company visited the factory premises at Gagret and inspected the spot. A registered letter dated 27-08-2013 issued by M/s M.L. Mehta & Company was received by the complainant in which the loss assessor asked to submit the documents which were duly submitted by him. Thereafter, Pankaj Sood Engineer, Surveyor, Loss Assessor & Valuer visited the spot on behalf of complainant and prepared the estimate of Rs. 4,91,454.80/- for loss of boundary wall and Rs.1,73,950.02/- for the loss of effluent treatment plant totalling Rs.6,65,405/- . The said estimate was supplied to the OP but it wrongly repudiated the claim of the complainant mentioning therein that as per the survey report, loss occurred due to flood which is not covered under the said policy. So, complainant is entitled to the relief claimed.

8. Learned counsel for the OPs has however repelled the aforesaid contentions of the learned counsel for the complainant on the ground that intricate question of law and facts are involved in the complaint which require lengthy full scale trial and recording of evidence of numerous witnesses therefore, the matter be referred to the Civil Court. Otherwise also, in case the insured finds the amount allowed by the surveyor to be meagre , his such stand cannot be put to adjudication and dealt with in summary proceedings being a quantum dispute. It is further contended that the complainant intimated the loss dated 22-07-2013 of the boundary wall and boiler plant vide letter dated 24-07-2013 according to which the loss occurred due to heavy rain and flood . It is denied that the loss in dispute was due to land slide and not due to flood. The said plea was taken by the complainant in the letter dated 23-08-2013 as an afterthought. M/s M.L. Mehta & Co. was deputed to assess the loss who assessed it as Rs.77,283/-. The OP has denied the visit of Pankaj Sood surveyor at the spot and preparation of the estimate of construction of boundary wall and other heads . Moreover, the said surveyor is not competent to assess the loss in dispute. As the claim is not payable under the policy so, the same was rightly repudiated vide letter dated 15-04-2014. The complaint filed by complainant is liable to be dismissed with costs.

9. We have anxiously considered the rival contentions in the light of evidence on record.

10. The complainant has not challenged the survey report either in his complaint or affidavit Ex.C-1 vide which the surveyor has assessed the loss at Rs.77,283/- vide his report Mark OP-7 rather he has relied upon estimate reports of Pankaj Sood who has prepared the estimate of Rs. 4,91,454.80/- for loss of boundary wall and Rs.1,73,950.02/- for the loss of effluent treatment plant totalling Rs.6,65,405/-. In such a situation , it is the report of the surveyor which has to be given due weightage but since difference in amount allegedly payable by the complainant for repair under aforesaid estimate reports of Pankaj Sood Mark C-6, Mark C-7 and the amount assessed by the surveyor as payable to the complainant vide his survey report Mark OP-7 is apparently very wide so, dispute between both the sides which has come to the fore on account of this, can well be said to have involved quantum dispute . As per the settled position of law as enunciated by Hon'ble National Commission in Champalal Verma vs The Oriental Insurance Co. Ltd. 2008(3) CPR 22 (NC), Consumer Forums cannot go into the question of quantum dispute as it involves a detailed investigation , which cannot be done in summary proceedings expected from the Forum under the Consumer Protection Act. In the said judgment, it was held that where case involves quantum dispute , Consumer Forum cannot go into question as it would involve a detailed investigation which cannot be dealt in summary proceedings as expected under the Consumer Protection Act. Complainant be given liberty to approach Civil Court/ other Forums to seek redressal of his grievance . In the case before the Hon'ble National Commission as aforesaid, insured truck met with an accident . Claim of the complainant was repudiated by the Insurance Company on the ground that since accident has taken place before taking policy, claim was not payable. Complaint was dismissed by the District Forum. However, appeal filed by the complainant was allowed by the State Commission who awarded compensation of Rs.12,829/-, the loss assessed by the surveyor alongwith interest against expenditure of Rs.1,94,922.82/- incurred by the complainant towards repair of the truck. In revision filed by the complainant before the Hon'ble National Commission, the sole contention was that complainant had already incurred Rs.1,94,922.82/- towards repair of truck but the State Commission has awarded far short amount of Rs.12,829/- with interest as assessed by the surveyor . It was in that situation, Hon'ble National Commission held that case involved quantum dispute which Consumer Forum could not decide and petitioner was given liberty to approach Civil Court/other Forums. In our considered view, the principle laid down by the Hon'ble National Commission aforesaid is fully applicable to the peculiar situation with which we are faced in so far as the present complaint is concerned. So, we need to pass appropriate order in the light of principle laid down by the Hon'ble National Commission in Champalal case supra.

11. In view of our above observations and findings, complainant is relegated to have recourse to Civil Court for redressal of his grievance. In doing so, if limitation comes in his way, he can take advantage of decision of Hon'ble Supreme Court in the case of Laxmi Engineering Works vs. P.S.G.Industrial Institute II (1995) CPJ 1. The instant complaint stands disposed of accordingly with no order as to costs. Copy of the order be sent to the parties free of cost. File be consigned to the record room.

Announced.

21.01.2015

 

(Mrs. Sushma Handoo)             (Ashok Kumar )

Member                                       President

SS