Haryana

Yamunanagar

CC/631/2011

M/s Narwal Wood Craft - Complainant(s)

Versus

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

J.S.Sagri

20 Apr 2017

ORDER

BEFORE THE PRESIDENT DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, YAMUNA NAGAR AT JAGADHRI.

                                                                                                Complaint No. 631 of 2011.

                                                                                                Date of institution: 14.06.2011

                                                                                                Date of decision: 20.04.2017.

M/s Narwal Wood Craft, National Highway No. 73, Village Mandoli, Post Office Kalanaur, District Yamuna Nagar through its Proprietor Balinder Singh.                                                                                                                                                           

                                                                                                                       …Complainant.

                                    Versus

1. United India Insurance Company Limited, Near Telephone Exchange Jagadhri Road, Yamuna Nagar through its Branch Manager.
2. United India Insurance Company Limited, Head Office-24, Whites Road, Chennai-600014, through its Chairman.

                                                                                                            …Respondents.

BEFORE:       SH. ASHOK KUMAR GARG, PRESIDENT.

                        SH. S.C.SHARMA, MEMBER.

                        SMT. VEENA RANI SHEOKAND, MEMBER.

 

Present: Sh. J.S.Sagri Advocate, counsel for complainant.

              Sh. Rajiv Gupta, Advocate, counsel for respondents.  

 

ORDER (ASHOK KUMAR GARG PRESIDENT)

 

1.                     Complainant  firm has filed the present complaint under section 12 of the Consumer Protection 1986.  

2,                     Brief facts of the present complaint as alleged by the complainant firm, are that complainant is a proprietorship firm under the name and style of Narwal Wood Craft and Sh. Balinder Singh is sole proprietor of the firm. The firm is dealing in the business of manufacturing of wood products and machinery, generator set etc. The complainant has got insured his whole factory with the Ops Insurance Company vide three separate insurance cover note bearing No. 950363/930363 dated 10.06.2009 valid from 14.06.2009 to 13.06.2010 amounting to Rs. 7,00,000/- for machinery, building and stock etc. and vide cover note No. 967259 dated 18.12.2009 valid from 22.12.2009 to 21.12.2010  amount insured of Rs. 10,00,000/- for stock and vide cover note bearing No. 950365 valid from 20.06.2009 to 19.06.2010 for amount of Rs. 3,62,000/- for generator set. On 04.06.2010, a heavy storm came due to which a great loss was caused to the factory of the complainant. The Tin Shed of the factory due to heavy wind and storm collapsed causing damage to machinery and other articles. Moreover, when the Tin Shed collapsed, the short circuit took place due to which the whole of the factory of the complainant caught fire and changed into ashes. The complainant, with the help of labour controlled the fire. News was published in various news papers and a rapat was also lodged with the Halqa Patwari bearing No. 719 dated 04.06.2011. After that complainant informed the Ops insurance company regarding the loss in question and a surveyor and loss assessor visited the spot and assessed the loss while taking photographs etc. After that, the official of the Ops Insurance Company also visited the complainant and asked to get the factory machinery, building generator set etc. repaired and all the amount of loss would be reimbursed to him. On asking of the official of the Ops Insurance Company, the complainant got assessed the loss, the estimate of which is as under: (i) loss caused to the machinery and generator set Rs. 2,07,270/- ( Rs. 63,500+53225+61600+28945) (ii) Loss to building Rs. 1,88,800/- ( 43300+71500+70000) (iii) Loss of stock Rs. 2,96,400/- i.e. Total Rs. 6,92,770/-. The complainant filled the claim form and completed all the formalities and handed over the same to the official of the Ops Insurance Company to indemnify the loss but the official of the Ops Insurance Company put off the matter on one pretext or the other and started demanding one paper or other. It was great surprise that till date the official of the Ops have neither settled the claim of the complainant nor paid any amount despite repeated requests. Hence, there is a deficiency in service and unfair trade practice on the part of the Ops Insurance Company. Lastly, prayed for directing the Ops Insurance Company to pay a sum of Rs. 6,92,420/- on account of loss suffered by him and also to pay compensation as well as litigation expenses. Hence, this complaint.

3.                     Upon notice, OPs Insurance Company appeared and filed its written statement by taking some preliminary objections as such complaint is not maintainable; there is no deficiency or negligence in service; the Ops Insurance Company had received an intimation dated 05.06.2010 from the complainant that due to storm on dated 04.06.2010 he has suffered loss upon which Sh. S.K.Aggarwal, Civil Engineer, Surveyor & Loss Assessor was deputed to survey and assess the loss in the insured premises, if any. The said surveyor immediately proceeded to the insured factory and inspected the damaged shed, saw machine and generator cable etc. Burnt stock of finished wooden item was also inspected and dimension of the shed was noted down. The insured was appraised of the documents required by the surveyor and insurance company. As per insurance policy, the shed of the firm in question was insured for Rs. 1,00,000/- besides this one saw machine was also insured for Rs. 1,00,000/- alongwith stock of Rs. 5,00,000/- vide policy bearing No. 110101/11/09/11/00000323 dated 14.06.2009 to 13.06.2010. Besides this, the complainant firm had also taken one insurance policy for a sum of Rs. 10,00,000/- on the stock vide policy valid from 22.12.2009 to 21.12.2010. The said surveyor and Loss Assessor vide his report dated 18.11.2010 had assessed the loss of the building to the tune of Rs. 40530/-, loss to the machinery Rs. 15,360/- and loss to the stock Rs. 66,900/- i.e. net loss of Rs. 1,12,790/- was assessed after applying the excess clause of Rs. 10,000/-. On receipt of the said report, the Ops Insurance Company informed to the surveyor vide its correspondence dated 30.11.2010 that there were certain discrepancies in his report and surveyor was desired to clarify the same to enable the insurance company to proceed further i.e. the following quarries were sought from the surveyor “(1) Average Clause applied by you on building is not correct (2) You have allowed fittings for Rs.1930/- whereas as per policy we have covered only building (3) As per cover note/policy, we have covered only one saw mill whereas have assessed the loss for 3 saw machine (4) you have deducted depreciation @ 10% depreciation on machinery without confirming the date of purchase/ installation of machinery in the factory (5) Balance sheets for last 3 years not obtained by you (6) list of machinery installed in the factory with date and current value, copy of building lay out plan, valuation report etc. not obtained and submitted to us”. After that, Surveyor & Loss Assessor, in pursuance of the quarry letter dated 30.11.2010 and 03.12.2010, submitted a revised report dated 01.05.2011 after taking into account the relevant depreciation and average clause and subject to terms and conditions of the insurance policy and loss was assessed as building Rs. 38,300/-, Machine Rs. 4,014/-, Stock Rs. 66,900/- total Rs. 1,09,214/- after deducting excess clause of Rs. 10,000/- net loss was assessed Rs. 99,914/-. After that, the Ops Insurance Company on receipt of the supplementary surveyor report further processed the claim and vide its letter dated 16.05.2011 desired the complainant to submit the storm report issued by revenue department and the same was submitted to the company vide report of Halka Patwari on dated 29.05.2011 and on receipt of the same, the Ops Insurance Company immediately settled the claim of the complainant for a sum of Rs. 99203/- and vide its letter dated 06.06.2011 informed the complainant that his claim has been settled for Rs. 99203/- and he was requested to submit the discharge voucher to unable the Ops Insurance Company to release the cheque of the claim amount. However, the complainant has not come forward till date and has not submitted the discharged voucher and on merit all the contents of the complaint were controverted and reiterated the stand taken in the preliminary objections and lastly prayed for dismissal of complaint as there was no deficiency in service or unfair trade practice on the part of the Ops Insurance Company.

4.                     To prove the case, counsel for the complainant tendered into evidence short affidavit of Vijay Kumar Proprietor of Vijay Electrical as Annexure CA, Affidavit of Pawan Kumar meson as Annexure CB, Affidavit of Gajjan Singh Proprietor of Gajjan Industries as Annexure CC and affidavit of complainant as Annexure CD and documents such as photo copy of insurance cover note bearing No. 950363 amounting to Rs. 7,00,000/- as Annexure C-1, Photo copy of cover note bearing No. 950365 for a sum insured of Rs. 3,62,000/- as Annexure C-2, Photo copy of storm report issued by Patwari as Annexure C-3, Photo copy of bills prepared on letter pad of M/s Pawan Contractor as Annexure C-4, Photo copy of repair bill amounting to Rs. 71,500/- as Annexure C-5, Photo copy of bill of Vijay Electrical amounting to Rs. 63,500/- as Annexure C-6, Photo copy of bill of Gajjan Industries as Annexure C-7, Photo copy of bill of Sharan Radio & Electricals as Annexure C-8, Photo copy of estimate of Royal Power Sollutions as Annexure C-9, Photo copy of bill of loss amounting to Rs. 2,96,400/-as Annexure C-10, Photo copy of Fard Jamabandi for the year 1998-99 as Annexure C-11, Photo copy rough site plan as Annexure C-12, Photo copy of reply dated 15.04.2011 of the quarry letter as Annexure C-13, Photo copy of claim form as Annexure C-14, Photo copy of letter issued by the surveyor dated 04.03.2011 alongwith ledger account as Annexure C-15, Photo copy of ledger account from 01.04.2010 to 04.06.2010 as Annexure C-16 and closed the evidence on behalf of complainant.

5.                     On the other hand, learned counsel for the Ops tendered into evidence affidavit of Ajay Sareen Asstt. Manager UIIC as Annexure RW/A, Affidavit of Sh. S.K. Aggarwal, Surveyor & Loss Assessor as Annexure RW/B and documents such as Photo copy of surveyor report dated 18.11.2010 as Annexure R-1, Photo copy of enquiry letter issued to the surveyor as Annexure R-2, Photo copy of letter dated 05.12.2010 issued by the Surveyor to the complainant firm as Annexure R-3, Photo copy of revised surveyor report dated 01.05.2011 as Annexure R-4, Photo copy of letter demanding storm report dated 16.05.2011 as Annexure R-5, Photo copy of Storm Report issued by Patwari as Annexure R-6, Photo copy of intimation regarding settlement of claim dated 06.06.2011 as Annexure R-7, Photo copy of insurance policy alongwith its terms and conditions as Annexure R-8 and closed the evidence on behalf of Ops Insurance Company.

6.                     We have heard the learned counsel for both the parties and have gone through the pleadings as well as documents placed on file very minutely and carefully.

7.                     It is not disputed that the complainant firm was insured for Rs. 1,00,000/- on account of factory shed and also insured for Rs. 1,00,000/- on account of saw machine and it was also insured for Rs. 5,00,000/- on account of stock vide insurance policy bearing No. 110101/11/09/11/00000323 valid from 14.06.2009 to 13.06.2010 which is duly evident from the copy of insurance policy Annexure R-8 and cover note Annexure C-9. It is also not disputed that the complainant firm had also taken one another insurance policy of Rs. 10,00,000/- on stocks valid from 22.12.2009 to 21.12.2010. It is also not disputed that due to storm dated 04.06.2010, the complainant firm had suffered a loss on account of stock as well as machinery and shed and a surveyor and loss assessor was deputed by the Ops Insurance Company who submitted his report dated 18.11.2010 Annexure R-1  and assessed the loss to the tune of Rs. 1,12,790/- which is duly evident from the copy of surveyor report Annexure R-1. It is also not disputed that surveyor and loss assessor submitted his revised surveyor report vide which he assessed the net loss of Rs. 99,214, which is also duly evident from the copy of revised surveyor report Annexure R-4.

8.                     The only version of the complainant firm is that complainant firm suffered the loss to the tune of Rs. 6,92,470 i.e. loss caused to the machinery and generator set to the tune of Rs. 2,07,270/- and loss to the building of Rs. 1,88,800/-  and loss to the stock Rs. 2,96,400/- but the Ops Insurance Company settled the claim of the complainant to the tune of Rs. 99,214/- which is totally wrong and illegal. Learned counsel for the complainant draw our attention towards the bills issued by the respective persons for repairing of wall  shed etc. Annexure C-4 to C-10 and argued that from the perusal of these bills it is clear that complainant firm has suffered loss to the tune of Rs. 6,92,470/-. Learned counsel for the complainant further draw our attention towards the affidavit of various persons namely Vijay Kumar, Pawan Kumar and Gajjan singh Annexure CA, CB and CC, who issued the bills Annexure C-6, C-4 and C-7 respectively. Learned counsel for the complainant argued that the complainant submitted all the documents which were required by the surveyor as well as officials of the Ops Insurance Company, however, genuine claim of the complainant has been wrongly and illegally withheld by the Ops Insurance Company. Learned counsel for the complainant also referred the case law titled as National Insurance Co. Ltd. Versus Giriraj Proteins, 2012(4) CPJ Page 151 (NC) wherein it has been held that Insurance- Surveyor’s Report- Report of Surveyor is not the last and final word- It is not a conclusive proof- It can be ignored if it is perverse or arbitrary, based on mere inferences or surmises and/or in suspicion.

9.                     On the other hand, learned counsel for the Ops argued at length that claim of the complainant firm has been rightly settled by the Ops Insurance Company as per Surveyor and Loss Assessor report dated 18.11.2010 Annexure R-1 and supplementary surveyor report dated 01.05.2011 Annexure R-4 and an amount of Rs. 99203/- was assessed and was offered to the complainant firm subject to submission of discharge voucher duly signed but the complainant failed to submit the same. Learned counsel for the Ops Insurance Company draw our attention letter dated 06.06.2011 Annexure R-7 vide which an amount of Rs. 99,270/- assessed by the surveyor was offered to the complainant as settlement of the claim. Learned counsel for the Ops further argued that the claim of the complainant has been rightly settled as per coverage of the insurance policy and further subject to the terms and conditions of the policy in question. Learned counsel for the Ops insurance company further draw our attention towards the bills placed on file by the complainant and the same were submitted to the Insurance Company Annexure C-4 to    C-10 and argued that all these bills of repair etc. have been prepared on the plain papers and neither supporting documents has been placed on file nor submitted to the insurance company. Accordingly, these bills have no weightage in the eye of law.  Lastly, learned counsel for the Ops Insurance Company argued that the claim of the complainant has been rightly settled by the Ops Insurance Company as per surveyor report and complainant has totally failed to controvert the said report and point out any ambiguity or discrepancy in the surveyor report and referred the case law titled as United India Insurance Co. Ltd. and Others Versus Roshan Lal Oil Mills & Others, 2001(2) CPC page 340(Supreme Court) wherein it has been held that important document including surveyors report not considered properly resulting in miscarriage of justice- Impugned order set aside- case remanded to National Commission for fresh decision.

            Further referred the case law titled as United India Insurance Co. ltd. Versus Bhriguram Mondal & Others, 2014(1) CLT page 255 (NC) wherein it has been held that Insurance Claim- Survey report-Claim is to be allowed on the basis of survey report alone- Complainant was under an obligation to the documents to rebut survey report otherwise survey report being an authentic document is to be relied.

            And referred the case law titled as M/s Narain Cold Storage and Allied Industries Limited Versus Oriental Insurance Company Limited 1004(1) CPC page 308 (NC) wherein it has been held that No cogent evidence produced by complainant in support of his claim nor any evidence showing that surveyor’s report was arbitrary- Surveyor’s report being an important document cannot be brushed aside- Claim allowed as assessed by second surveyor with 12% interest with compensation of Rs. 50,000/- for delaying the settlement.

            Further referred the case law titled as Ajay Gupta Proprietor M/s Punjab Plywoods Vs. the Manager, Allahabad Bank & others, 2001(1) CPC Page 342 (NC) wherein it has been held that Insurance Claim- Insurance claim under 5 different policies was delayed- Recommendation of loss caused to goods inside the premises of factory and damage to boiler by the surveyor- Whole claim wrongly repudiated by Insurance Company which cannot be sustained- Claim assessed by surveyor must be granted to complainant because surveyor is the best person to assess the loss which was done after detailed scrutiny of the facts in the present case- Complainant held entitled to Rs. 1,98,001/- as loss of stocks and Rs. 65,944/- as loss to the boiler- An interest at the rate of 9% also allowed.

10.                   After hearing both the parties, we are of the considered view that there is a deficiency in service and unfair trade practice on the part of the Ops Insurance Company as the Ops Insurance Company wrongly and illegally obtained the supplementary report Annexure R-1 from the Surveyor & Loss Assessor raising some manipulated and illegal clarifications. From the perusal of cover note Annexure C-1, it is clear that there was insurance of Rs. 1,00,000/- on account of machinery of saw mills and an amount of Rs. 15,360/- was assessed by the surveyor in his first report dated 18.11.2010 which later on has been reduced to the tune of Rs. 4,014/- vide second report dated 01.05.2011. In the cover note it is nowhere mentioned that 1 or 3 machinery of saw mill was covered as this fact is totally missing in the cover note. Meaning thereby that number of machinery of saw mill was not disclosed in the cover note. So, deductions on account of 2 machinery of saw mill in the second report are totally illegal. Further, deductions of Rs. 1930/- on account of fitting under the loss to the building has also been wrongly and illegally deducted in the second surveyor report by the Ops Insurance Company as it is settled law that fixtures and fittings is the part of the building. In the nutshell, the Ops Insurance Company has wrongly and illegally raised some quarries just to reduce the claim of the complainant and accordingly the amount of Rs. 1,12,790/- assessed by the Surveyor & Loss Assessor in his first report dated 18.11.2010 (Annexure R-1) was reduced from Rs. 1,12,790/- to 99,214/-. Further, on the other angle also, the alleged loss took place on 04.06.2010 and surveyor surveyed the factory on 05.06.2010 and submitted his first report on 18.11.2010 but the letter for intimating the settlement of claim was issued by the Ops Insurance Company on 06.06.2011 Annexure R-7 i.e. after a period of more than 7 months which is totally illegal as it has been held in so many authorizes by the Hon’ble National Commission as well as State Commission that to settle the claim 3 month’s period is sufficient.

11.                   The surveyor and loss assessor S.K.Aggarwal, Surveyor, Loss Assessor & Valuer  submitted his detailed report (Annexure R-1) in which he has assessed the loss on net liability as Rs. 1,12,790/-. It is a settled proposition of the law that credence should be given to the surveyor report. Hence, we hold that complainant is entitled to get an amount of Rs. 1,12,790/- on account of loss suffered by the complainant firm due to heavy storm.  

12                    Resultantly, we partly allow the complaint of complainant and direct the OPs Insurance Company to pay to the complainant firm Rs. 1,12,790/- assessed by the surveyor and loss assessor vide his report dated 16.11.2010 (Annexure R-1) alongwith interest at the rate of 7% per annum from the date of first surveyor report i.e. 18.11.2010 till its realization and further to pay Rs. 10,000/- as compensation for mental agony, harassment as well as litigation expenses. Order be complied within a period of 30 days after preparation of copy of this order failing which complainant shall be entitled to invoke the jurisdiction of this Forum as per law. Copies of this order be sent to the parties concerned free of costs as per rules. File be consigned to the record room after due compliance.

Announced in open court.20.04.2017.

 

                                                                               (ASHOK KUMAR GARG)

                                                                                PRESIDENT

                                                                                DCDRF, YAMUNANAGAR.

 

 

            (VEENA RANI SHEOKAND)                (S.C.SHARMA    )

             MEMBER                                                 MEMBER