Haryana

Yamunanagar

CC/707/2010

Radha Swami Traders - Complainant(s)

Versus

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

Satpal Saini

30 Jan 2017

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, YAMUNA NAGAR.

 

                                                                                         Complaint  No.  707 of 2010.

                                                                                         Date of Institution:29.07.2010

                                                                                         Date of Decision: 30.01.2017

Radha Swami Traders, Radaur Road, Camp, Yamuna Nagar, Distt. Yamuna Nagar, through its Proprietor Shri Ashok Kumar.

                                                                                                          

                                                                                                                  ... Complainant.

                                                            Vs.

1. United India Insurance Company limited, Branch Office: Yamuna Nagar, through its Branch Manager. 
2. Punjab National Bank, Saharanpur Road, Yamuna Nagar, through its Branch Manager.

                                                                                                     ... Respondents.

 

BEFORE         SH. ASHOK KUMAR GARG, PRESIDENT,

                         SH. S.C.SHARMA, MEMBER.

 

Present:-         Sh. Satpal Singh Saini, Advocate, counsel for complainant.

                         Sh. Rajiv Gupta Advocate, counsel for respondent No.1

                         Sh. Mukesh Sehgal, Advocate, counsel for respondent No.2.   

 

ORDER:

 

1.                     Complainant has filed the present complaint under section 12 of the Consumer Protection Act. 1986, praying therein that respondents ( hereinafter referred as OPs) be directed to make the payment of Rs. 10,00,000/- alongwith interest as claim amount and further to pay compensation as well as litigation expenses.

2.                     Brief facts of the present complaint, as alleged by the complainant firm, are that complainant is a proprietorship firm in the name and style of M/s Radha Swami Traders, and Sh. Ashok Kumar is its proprietor who is well aware about the workings and liabilities of the complainant firm. The complainant firm is dealing in purchase of scrap and new material and the stock is properly maintained in the stock register by the complainant. The stock of the complainant firm is insured with the Op no.1 vide insurance cover note  928836 dated 15.01.2009 valid w.e.f. 23.01.2009 to22.01.2010 for a sum of Rs. 39,00,000/-. Unfortunately, on 25.04.2009 a fire broke out in the godown of the complainant firm and the intimation of which was given to fire brigade and fire was controlled but it took approximately three (3) hours in its control and a lot of material was burnt and damaged. The matter was reported to the police immediately. The rough estimate was prepared regarding the loss to the tune of Rs. 10,00,000/- and the loss was intimated to the OP No.1 Insurance Company and they appointed surveyor to assess the loss. One Sh. Vishal K. Aggarwal of Ambala Cantt. Surveyor and loss Assessor assessed the loss to the tune of Rs. 8,96,605/- though on the lower side. The complainant submitted all the copies required by Surveyor such as copy of bill of purchase, copy of loss account/balance sheet, copy of report of fire brigade and receipt of fire-fighting charges, police report, stock statement of bank for last 4 months and stock register. After surveyed by the said Vishal Kumar Aggarwal, another surveyor Mr. Ashok Sood, also surveyed the loss and submitted his report to the Insurance Company but copy of which was not provided to the complainant despite of the fact that the request was made to the OP No.1 even in writing. The complainant visited the office of OP Insurance Company for the last more than one year but the OP No.1 Insurance Company is not making the payment of loss occurred to the complainant firm and have been lingering on the matter on one pretext or the other. Lastly, on 07.07.2010 when the complainant visited to Op No.1 Insurance Company to make the payment of compensation but they inspite of making the payment simply stated that it will take some more time to settle the claim of the complainant. The Op No.1 Insurance Company did not make the payment of claim despite repeated requests and demands. Hence this complaint.

3.                     Upon notice, OPs appeared and filed its written statement separately. OP No.1 filed its written statement by taking some preliminary objections such as complaint is not maintainable against the Op No.1; there is no negligence or deficiency in service on the part of OP No.1 Insurance Company. In this case intimation was received by the Op Insurance Company that a fire has taken place in the premises of complainant on 23.04.2009. On receipt of said intimation, the OP Insurance Company desired the complainant to submit the necessary and desired document and deputed Sh. Ashok Kumar Sood, Independent Surveyor and Loss Assessor to survey and assess the loss if any. The said surveyor visited the premises of the complainant on 25.04.2009 and contacted the insured and the insured was desired by him to submit the inventory of the loss and other necessary documents for assessment of the loss. It was found by the surveyor that the insured firm is engaged in the business of purchase of old scrap items and vide his report dated 20.02.2010 the said surveyor assessed the net loss to the tune of Rs. 3,94,520.80. The loss was assessed under the ten different heads which included waste gutta, fiber plastic pipe, plastic liner waster, plastic drums, roller machine, copper cable with plastic, ACSR cord scrap lot, lather & other scrap, Plastic cable, loss to 2 No. scrap cars i.e. total claimed amount Rs. 8,96,605/- and assessed amount of Rs. 5,68,151/- and after assessing the amount of Rs. 5,68,151/- an amount of Rs. 1,13,630/- were deducted as 20% for variance in rate & quantity. After assessing the loss of Rs. 4,54,520/- an amount of Rs. 50,000/- was deducted as salvage value of scrap of copper and aluminium which is recoverable from the ashes of copper cable and ACSR cord scrap as well as Rs. 10,000/- on account of less policy clause and the surveyor and loss assessor has assessed the net loss of Rs. 3,94,520/-. It was further observed by the surveyor in his report that the insured obtained two separate policies for the stock of Rs. 69,00,000/- i.e. Rs. 39,00,000/- under insurance from United India Insurance Company and Rs. 30,00,000/- insured from Bajaj Allianz General Insurance Company. Therefore, the surveyor proportionately assessed the share of the abovesaid two insurance companies and proportionately loss under the head of United India Insurance Company was assessed to the tune of Rs. 2,22,983.15. The said loss was assessed by the surveyor subject to the terms and conditions of the insurance policy. On receipt of the report of surveyor the OP Insurance Company further processed the claim and it was observed by the OP Insurance Company that the complainant has obtained standard fire and special perils policy bearing No. 110101/11/08/11/00001354, valid from 23.01.2009 to 22.01.2010 for a sum of Rs. 39,00,000/-. The risk covered was code No. 075 for Engineering Workshop- Structural Steel Fabricators, sheets metal, fabricators, hot/cold rolling, pipe extruding stamping, pressing, forging mills, metal melting, foundries, galvanizing works, metal extraction, Ore Processing (other than aluminium, copper, zinc) at their premises at camp Mauja Mamidi, Yamuna Nagar. Meaning thereby, U.I.I. has insured for engineering workshop. The complainant provided photo copy of DDR No.13 dated 25.04.2009, has provided stock statement, list of bills on their letterhead, photo copy of certificate dated 15.05.2009 regarding fire report dated 25.04.2009 from Fire Station Officer, Yamuna Nagar Claim form, besides numerous other documents to Sh. Ashok Kumar Sood. All these documents show that the fire was broken out in the godown/open premises, where the complainant was doing business of trading scrap ( business of Kabari) and not of engineering workshop. Therefore, keeping in view the facts that the OP No.1 Insurance Company had not insured the scrap business of the insured whereas as per the policy, the Op Insurance Company had covered the light engineering work only and as such the OP Insurance Company vide its registered letter dated 02.08.2010 legally and justifiably repudiated the claim of the complainant and on merit controverted the plea taken in the complaint and reiterated the stand taken in the preliminary objections and lastly prayed for dismissal of complaint.

4.                     Op No.2 filed its written statement by taking some preliminary objections such as complaint is not maintainable against the OP No.2 Bank as there is no deficiency in service on its part; the complainant has intentionally and deliberately dragged the OP Bank in this false and frivolous litigation as the matter of settlement of claim is between the complainant and OP No.1 only; complainant has no locus standi to file and maintain the present complaint qua OP No.2 Bank and on merit it has been admitted to the extent that the complainant firm is dealing with the old and new scrap and the complainant firm has also maintained its stock register. The said stock was insured by OP Bank with Op No.1 Insurance Company. In this regard, the Op No.1 issued cover note No. 928836 w.e.f. 23.01.2009 to 22.01.2010 for securing a sum of Rs. 39,00,000/- on stock of all kind of ferrous and non ferrous metal existing in the firm regarding any fire in the said firm. In this regard, the OP No.2 Bank has paid a sum of Rs. 5369/- to the Op No.1 Insurance Company. It has been admitted to the extent that on 25.04.2009, a fire breakout in the premises of complainant’s firm and Op No.2 was intimated immediately on the same day and the OP No.2 Bank intimated to the OP No.1 vide letter dated 25.04.2009. It has also been admitted that the complainant is having an account No. 2140008700001199 INR 214000 with the OP No.2 Bank and a sum of Rs. 24,85,446.17 including interest up to 31.03.2013 is outstanding against the complainant firm. If the complainant firm succeed in proving the breakout fire in its firm, in that case, OP No.1 may kindly be directed to pay compensation to the OP No.2 Bank, so, that the loan account can be satisfied towards the loss of hypothecated goods in the loan account obtained by the complainant. Lastly, prayed for dismissal of complaint against the OP No.2 Bank.    

5.                     In support of the case, counsel for the complainant tendered into evidence affidavit of Ashok Kumar, Proprietor of M/s Radha Swami Traders as Annexure CW/A and documents such as Photo copy of report dated 24.05.2009 of Vishal Kumar Aggarwal as Annexure C-1, Photo copy of certificate dated 25.04.2009 issued by Fire Station Officer, Yamuna Nagar as Annexure C-2, Photo copy of No Objection Certificate dated 02.03.2009 issued by Fire Station Officer, Yamuna Nagar as Annexure C-3, Photo copy of bill No. 94 dated 16.05.2009 for Rs. 6000/- issued by Fire Controller India as Annexure C-4, Photo copy of Insurance cover note No. 928836, 822320, 928837, 928838 as Annexure C-5 to C-8, Photo copy of newspaper cutting as Annexure C-9, Photo copy of receipt of Rs. 4000/- of Municipal Council as Annex. C-10, Photo copy of statement of Ashok Kumar regarding fire taking place in his godown as Annexure C-11, Photo copy of letter written to Fire Officer, Yamuna Nagar as Annexure C-12, Photo copy of DDR No. 13 dated 25.04.2009 as Annexure C-13, Photo copy of list of loss of goods as Annexure C-14, Photo copy of stock statement as Annexure C-15, Photo copy of Invoice of Starion India Pvt. Ltd. as Annexure C-16, Photo copy of Goods dispatch note as Annexure C-17 to C-20, Photo copy of invoice issued Starion India Pvt. Ltd. as Annexure C-21 to C-23, Photo copies of receipt for cheque issued by Haryana Roadways, Yamuna Nagar as Annexure C-24 to C-36, Photo copy of letter dated 14.07.2008 written by Taxation Inspector, Jagadhri (Yamuna Nagar) to G.M. Roadways, Yamuna Nagar as Annexure C-37, Photo copy of gate pass of UHBN as Annexure C-38, Photo copy of Goods dispatch note issued by HSEB as Annexure C-39, Photo copy of Vat-G4 as Annexure C-40 to C-42, Photo copy of invoice issued by Starion India Pvt. Ltd. as Annexure C-43, Cash memo dated 12.12.2008 as Annexure C-44 and copy of invoice issued by Starion India Pvt. Ltd. as Anenxure C-44 to C-51, Photo copy of receipt as Annexure C-52, Photo copy of Invoice issued by Starion India Pvt. Ltd. as Annexure C-53, Photo copy of receipt as Annexure C-54, Photo copy of receipt as Annexure C-55, Photo copy of Insurance policy of Bajaj Allianz General Insurance Company ltd. as Annexure C-56, Photo copy of report of Vishal Kumar Aggarwal as Annexure C-57, Photo copy of cheque of Rs. 1,70,474/- as Annexure C-58 and closed the evidence on behalf of complainant.

6.                     On the other hand, counsel for the OP No.1 tendered into evidence affidavit of Sh. Ashok Kumar Sood, Surveyor and Loss Assessor as Annexure RW/A, Affidavit of Swaran Singh, Assistant Manager, UIIC as Annexure RW/B and documents such as photo copy of Insurance policy as Annexure R-1, Photo copy of carbon copy of repudiation letter as Annexure R-2, Photo copy of Surveyor & Loss Assessor report as Annexure R-3, Photo copy of DDR as Annexure R-4, Photo copy of letter dated 25.04.2009 for reporting breaking out of fire written by PNB as Annexure R-5, Photo copy of certificate issued by Fire Station Officer, Yamuna Nagar as Annexure R-6 and closed the evidence on behalf of OP No.1.

7.                     Counsel for Op No.2 tendered into evidence affidavit of Sanjeev Suri, Senior Manager, PNB Saharanpur Road, Yamuna Nagar as Annexure RW2/A and documents such as Photo copy of insurance cover note as Annexure R2/1, Photo copy of letter issued to UIIC by PNB for reporting breaking out of fire at Radha Swami Traders as Annexure R2/2, Photo copy of letter dated 23.04.2010 issued by UIIC to Bajaj Allianz Gen. Ins. Co. as Annexure R2/3, Photo copy of account ledger inquiry as Annexure R2/4 and closed the evidence on behalf of OP No.2.

8.                     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.

9.                     It is not disputed that complainant firm was insured with Op No.1 vide insurance cover note No. 928836 dated 15.01.2009 valid from 23.01.2009 to 2201.2010 for a sum of Rs. 39,00,000/- ( Annexure C-5) on account of loss caused due to fire. It is also not disputed that the firm in question was also insured for the same amount of Rs. 39,00,000/- vide cover note No. 822320 valid from 23.01.2009 to 22.01.2010 (Annexure C-6) on account of Burglary with Op No.1 Insurance Company. It is also not disputed that on 25.04.2009 a fire broken out in the godown of the complainant firm and on intimation fire brigade controlled the fire taken place in the godown which is duly evident from the receipt of the Municipal Committee, Yamuna Nagar (Annexure C-10) and further from the news published in the news paper, Jagaran City of dated 26.04.2009 (Annexure C-9). Further from the perusal of copy of DDR No.13 dated 25.04.2009 (Annexure C-13). Further, it is also not disputed that on intimation to the OP No.1 Insurance Company a surveyor and loss assessor Sh. Ashok Kumar Sood was deputed who submitted his report dated 20.02.2010 (Annexure R-3) assessing the loss of Rs. 2,22,983.15  ( out of total amount of Rs. 3,94,520.80) after deducting the share of the other insurance company i.e. Bajaj Allianz Insurance Company amounting to Rs. 1,71,537.65 as the firm in question was also insured with that Insurance Company i.e. Bajaj Allianz Insurance Company for the same period, was assessed as net liability of the United India Insurance Company Ltd. i.e. Op No.1 Insurance Company. It is also not disputed that other insurance company i.e. Bajaj Allianz had already paid his share amounting to Rs. 1,71,537.65 to the complainant which is duly evident from the copy of cheque dated 23.11.2009.

10.                   The only grievances of the complainant is that Op No.1 Insurance Company has wrongly and illegally repudiated the genuine claim of the complainant on the false ground vide letter dated 02.08.2010 Annexure R-2. Learned counsel for the complainant draw our attention towards the cover note bearing No. 928836 Annexure C-5 and argued that stock of all of ferrous and non-ferrous, metal in said light Engineering Wrokshop for amounting to Rs. 39,00,000/- was covered on account of loss due to fire. Learned counsel for the complainant further argued that surveyor Sh. Ashok Kumar Sood has specifically mentioned in his report at page No.3 that the stock of the waste gutta, fiber plastic pipe, plastic liner waste, roller machines, ASR cord scrap, condemn leather and other spare parts and plastic cable, scrap of motorcycle and cars lying stored in the insured godown premises got burnt and sustained damages due to heavy fire that erupted in the insured godown premises. Lastly, prayed for acceptance of complaint.

11.                   On the other hand, learned counsel for the Op No.1 Insurance Company Sh. Rajiv Gupta, argued at length that claim of the complainant has been rightly repudiated by the Op No. 1 Insurance Company vide its letter dated 02.08.2010 (Annexure R-2) as the claim of the complainant was not covered under the insurance policy in question because as per insurance policy bearing No. 110101/11/08/11/00001354 valid from 23.01.2009 to 22.01.2010 (Annexure R-1) the risk covered was code No. 75 for Engineering Workshop, Structural Steel Fabricators, sheets metal, fabricators, hot/cold rolling, pipe extruding stamping, pressing, forging mills, metal melting, foundries, galvanizing works, metal extraction, Ore Processing (other than aluminium, copper, zinc) at the premises of the complainant. Meaning thereby that Op No.1 Insurance Company has insured only for Engineering Workshop and as per report of the surveyor and Loss Assessor the fire was broken out in the godown/open premises, where the complainant was doing business of trading scrap ( business of Kabari) and not for the Engineering Workshop and lastly prayed for dismissal of complaint.

12.                   After hearing both the parties, we are of the considered view that there is a deficiency in service on the part of the OP No.1 Insurance Company as from the perusal of the cover note issued by the Op No.1 Insurance Company Annexure C-5, it is duly evident that at the time of issuing this cover note the OP No.1 Insurance Company has mentioned that the complainant firm is insured for Rs. 39,00,000/- on account of (on stock of all kind of ferrous and non ferrous metal in said light Engineering Workshop). Meaning thereby that the insured firm was insured for all kind of furnished or non furnished material lying in the said light engineering workshop and as per surveyor report of Sh. A.K.Sood, under the head of the property damaged by fire has been duly mentioned as stock of waste gutta, fiber plastic pipe, plastic liner waste, roller machines, ASR cord scrap, condemn leather and other spare parts and plastic cable, scrap of motorcycle and cars etc. Meaning thereby that, the stand taken by the OP No.1 Insurance Company seems not to be genuine. The plea of the OP No.1 Insurance Company that as per insurance policy Annexure R-1 only Engineering Workshop, Structural Steel Fabricators, sheets metal, fabricators, hot/cold rolling, pipe extruding stamping, pressing, forging mills, metal melting, foundries, galvanizing works, metal extraction, Ore Processing (other than aluminium, copper, zinc) etc. under code 075 was insured is not tenable as this language is mentioned in the policy in question only but is not mentioned in the cover note bearing No. 928836 (Annexure C-5) issued by the OP No.1 Insurance Company at the time of insuring the firm in question. It seems that OP No.1 Insurance Company suo moto have changed the language covering the risk on the stock of the complainant firm in the policy whereas the policy in question should be as it is as per initial document i.e. cover note issued by the Op No.1 Insurance Company. On the other angle also, the surveyor Sh. Ashok Kumar Sood has not mentioned a single iota of word in his report Annexure R-3 that claim of the complainant does not fall under the policy in question.

13.                   In the circumstances noted above, we are of the considered view that the OP No.1 Insurance Company has wrongly and illegally repudiated the claim of the complainant.

14.                   Now, the next question remains, as to what extent the complainant is entitled to get for loss suffered by him. Learned counsel for the complainant firm argued that complainant has suffered a loss of Rs. 10,00,000/- on account fire took place in the godwon but no cogent evidence by way of expert report has been filed by the complainant to prove that he is entitled to get the same whereas on the other hand, loss has been assessed by the surveyor and loss assessors to the tune of Rs. 2,22,983/- as net liability of OP No.1 Insurance Company vide his report (Annexure R-3) and it is settled proposition of the law credence should be given to the surveyor report being an authentic document and the same view has been held in case tiled as Kaur Singh Versus National Insurance Co. ltd. 2013(3) CLT page 126 wherein it has been held that Consumer Protection Act, 1986, Section 2(1)(g)- Insurance Claim (Vehicle)-Surveyor’s report-Survey report is an important document and cannot be brushed aside, particularly, when it is based on immediate spot survey.   

15                    Resultantly, we partly allow the complaint of complainant and direct the OP No.1 Insurance Company to pay a sum of Rs. 2,22,983/- alongwith interest at the rate of 6% per annum from the date of filing of complaint till its realization and OP No.1 Insurance Company is further directed to pay Rs. 5000/- as litigation expenses. Order be complied within a period of 30 days after preparation of copy of this order failing which the 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.30.01.2017.

                                                                                          (ASHOK KUMAR GARG)

                                                                                           PRESIDENT

 

 

                                                                                          (S.C.SHARMA)

                                                                                           MEMBER