BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM, JALANDHAR.

Complaint No.106 of 2016

Date of Instt. 09.03.2016

Date of Decision: 17.12.2019

M. K. Power Solution, 424/17, Krishna Nagar, Near Adarsh Nagar, Jalandhar City through Manjinder Kaur wife of Inderjit Singh its Proprietor.

..........Complainant

Versus

1.       United Insurance Co. Ltd. Divisional Office-II, Syal House, Lajpat Nagar Market, Jalandhar through its Senior Divisional Manager.

2.       Sh. P. S. Vij, M.S. Vij Engineer’s Enterprises Surveyors and Loss Assessors, B. M. C. Chowk, Jalandhar City.

….….. Opposite Parties

Complaint Under the Consumer Protection Act.

Before:        Sh. Karnail Singh           (President)

Smt. Jyotsna                   (Member)

Present:       Smt. Harleen Kaur, Adv. Counsel for the Complainant.

Sh. R. K. Sharma, Adv. Counsel for the OP No.1.

OP No.2 exparte.

Order

Karnail Singh (President)

1.                The instant complaint has been filed by the complainant, wherein alleged that the complainant is proprietorship concern under the name and style M. K. Power Solutions and Manjinder Kaur is the proprietor of this firm. The complainant had taken Standard Fire and Special Perils Insurance Policy, vide cover note No.444956 dated 24.06.2011 to 23.06.2012 through authorized agent/representative of OP No.1. The insurance policy covered risk against Generator set of 82.5 K. V. Kirloskar for sum insured of Rs.6,65,000/- besides property (dwelling) house No.424/17 situated at Kirshna Nagar, Jalandhar as per description fully described in schedule of insurance policy. The composite premium for risk coverage each for generator set dwelling house was Rs.27,61,000/- sum insured and limit for sum insured was incorporated in the insurance policy schedule. The complainant paid the insurance premium as consideration against the risk covered to the OP.

2.                The Generator set was purchased and installed in the premises of Punjab National Ban Zonal Audit Office, Railway Road Jalandhar on rental basis to earn livelihood. The complainant had taken loan from Punjab National Bank, New Grain Market, Jalandhar. The OP No.1 had undertaken to indemnify and make good of financial loss suffered as a result of damage and destruction by fire or other specified perils during the period of insurance, subject to the sum insured against fire, earthquake etc. The OP No.1 had not issued/delivered policy document to the complainant throughout the period of insurance. Not supplying policy document to the insured amounts to deficiency in rendering service and unfair trade practice on the part of the OPs. That to misfortune of the complainant on 05.05.2012 fire broke out due to short circuit, which destroyed the generator set within the period of insurance, which covered peril of any loss of the generator set due to fire. The accident of the fire was immediately reported to the securing agent on 05.05.2012 of OP No.1. The OP appointed a Surveyor namely Sh. P. S. Vij to assess the damage to the insured generator. However, Sh. P. S. Vij being a Civil Engineer professionally, is incompetent to assess the exact nature and cause of loss and damages caused to the generator due to fire. He is not well equipped qualification to investigate inquire, examine verify and check upon the causes and circumstances of the loss and damage to the insured generator and determine the quantum and extent of loss with fairness. The Surveyor submitted survey report dated 18.09.2012 to OP No.1 after about 4 months of fire mishap. The survey report is vague ambiguous and uncertain based on presumption and guess did not establish as to how cause of fire determined and arrived at opinion as stated in survey report. On the face of it, survey report was tainted with material irregularities, cryptic non speaking indefinite regarding assessment of cause and reason for loss and damages to insured generator. Such report cannot be put to trust and lacked credibility and totally unsustainable. The OP No.1 has erroneously discarded and ignored the detailed reasoned report dated 05.05.2012 and estimate of repairs of Rs.6,01,201/- of physical inspection and examination conducted by Dynamic qualified engineering as well as Surveyor which showing the total loss. This survey was conducted on the very same day of mishap of fire took place i.e. on 05.05.2012 and the same was provided to OP No.1. In the said report, it has been specifically and categorically established and opined that fire totally covered and engulfed the engine body and that engine was over heated due to fire and because of which the internal parts were jammed (ceased). But OP No.1 has blindly relied upon and accepted survey report dated 18.09.2012 submitted by the OP No.2 i.e. Sh. P. S. Vij and ultimately, the claim of the complainant has been wrongly and illegally repudiated on 16.10.2015 by the OP, which caused mental tension and harassment to the complainant and accordingly, a cause of action accrued to file the present complaint with the prayer that the complaint of the complainant may be accepted and OP No.1 be directed to pay sum insured of Rs.6,65,000/- own damage total loss claim of fire loss and damages to the complainant with interest @ 18% per annum from the date of said fire accident and further, OP No.1 be directed to pay compensation to the tune of Rs.1,00,000/- to the complainant for causing harassment, mental tension, pain and agony and be also directed to pay Rs.10,000/- as litigation expenses.

3.                Notice of the complaint was given to the OPs and accordingly, OP No.2 was duly served, but despite service miserably failed to appear and ultimately, OP No.2 was proceeded against exparte. OP No.1 duly served and appeared through its counsel and filed written reply, whereby contested by the complaint by taking preliminary objections that the instant complaint is not maintainable qua OP No.1 as the complainant is not a consumer under the provision of Consumer Protection Act, as admittedly the Generator set insured with the OP No.1 was given on hire to Punjab National Bank and is commercial transaction, as such the same is liable to be dismissed. The complainant is doing the business of giving Generator set on hire and providing power solution. The insurance of the Generator set insured under the Standard Fire and Special Peril Policy for a period 24.06.2011 to 23.06.2012 was at 424/17 Krishna Nagar, Jalandhar whereas admittedly the loss occurred to the insured Generator set when the same was installed in the premises of Punjab National Bank, Zonal Audit Office, Railway Road, Jalandhar, as such there is no liability of the answering OP No.1 as the loss did not take place to the Generator set where it was insured. Otherwise also, the loss did not occur due to short circuit, but due to jamming of alternator bearing, which got over heated, thus flame occurred and engulfed the generator set and the Surveyor and Loss Assessor stated the cause of loss due to breakdown of alternator and the loss is outside the scope of the fire policy and accordingly, by invoking General Exclusions Clause 7, the claim of the complainant has been rightly and legally repudiated. It is further averred that there is neither any negligence in service nor any deficiency in service and even there is no unfair trade practice on the part of the OPs and as such, the complaint is without merits, the same is liable to be dismissed. On merits, it is admitted that the Generator set was got insured and incident was also took place and claim of the complainant was also admittedly repudiated and the other allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits, the same may be dismissed.

4.                In order to prove the case of the complainant, counsel for the complainant tendered into evidence two affidavits Ex.CA and Ex.CB along with some documents Ex.C-1 to Ex.C-18 and further tendered an other affidavit Ex.CC and then closed the evidence.

5.                Similarly, counsel for the OP No.1 tendered into evidence affidavit of Sh. Rakesh Sharma, Divisional Manager as Ex.OA and affidavit of Sh. P. S. Vij, Surveyor & Loss Assessor as Ex.OB alongwith some documents Ex.O-1 to Ex.O-5 and closed the evidence.

6.                We bestowed our thoughtful consideration to the submissions made by learned counsel for the respective parties and also gone through the case file very minutely.

7.                First of all, we like to discuss the legal lacunas referred by OP No.1 in its written statement, wherein took a plea that the complainant is not a consumer because the Generator set insured with the OP, was given on hire to Punjab National Bank and this act of the complainant is apparently covered under the definition of Commercial Transaction, if so, then the complainant is not a consumer. However, this aspect has been thoroughly considered and find that the complainant himself alleged in the complaint that he purchased one Generator set and the same was got insured with the OP and Generator set was given to Punjab National Bank on rent basis to earn his livelihood. So, the case of the complainant is apparently falls under the exception of the General Clause of Consumer Protection Act and therefore, we hold that the complainant is a consumer and the plea raised by the OP is not sustainable in the eyes of law.

8.                However, the OP also took so many other plea in the preliminary objection No.1 in written statement qua the Generator set was installed some other places, then the described in the schedule of insurance policy as well as some pleas, but we have to consider only the plea of the OP, which raised in the repudiation letter, after issuing a repudiation letter, the OP may took so many other pleas, but when the insurance claim is not repudiated on other pleas, then that plea is not relevant in the instant complaint. As per repudiation letter Ex.C-1 dated 16.10.2015, the claim of the complainant was repudiated on the ground that “the loss has been occurred due to jamming of alternator baring, which got overheated, thus, flame occurred and engulfed the entire generator set. So, loss occurred due to breakdown of alternator and this loss is outside the scope of fire policy, hence repudiated”.

9.                If we deeply gone through the repudiation letter, wherein the OP has not invoked any exclusion clause of the terms and conditions, whereas in the written statement, the said clause No.7 has been referred and moreover, the case of the OP is not that the terms and conditions were ever supplied to the complainant at the time of inception of the policy. However, the OP has brought on the file copy of the insurance Ex.O-1 and wherein Clause-7 is very much available and the Surveyor of the OP Sh. P. S. Vij alleged that he inspected the spot and assessed the loss and accordingly, placed on file his affidavit Ex.OB as well as his report Ex.O-5 and if we go through the report of Sh. P. S. Vij, then we can say without any hesitation that he himself decided the claim of the complainant by incorporating in his report the last line the loss is outside the scope of the fire policy. The surveyor    P. S. Vij was engaged by the OP just to find out the cause of the loss as well as to assess the loss, but he was not authorized to decide the insurance claim and while deciding the insurance claim itself, it is clear that he is favouring the OP, who has paid a fee to him and to the contrary, there is an other report brought on the file by the complainant of an other Surveyor i.e. Dynamic Engineering Services and that Survey was conducted by Tilak Raj Chugh, whose affidavit is available on the file Ex.CC and his report is Ex.C-5. If we go through the report of the Dynamic Engineering Services Ex.C-5, then it reveals that the loss caused to the Generator was due to fire, as total fire covered and engulfed the engine body and that engine was over heated due to fire and because of which the internal parts were jammed and accordingly, a loss was caused to the Generator. We find simply incorporating a word in the complaint that there was some short circuit and due to that fire was spread is not a sole evidence to prove the loss caused to the Generator rather we have to consider the report of the Surveyor and then to decide. If we compare the reports of both the Surveyors engaged by complainant as well as by the OP, then we can say without any hesitation that the report submitted by the Surveyor of the OP i.e. Sh.  P. S. Vij is itself smelling that it is favouring to the interested party i.e. OP, whereas the report of the other Surveyor i.e. Dynamic Engineering Services is seem to be an independent and pressure free report. So, if we considered the report of the Dynamic Engineering Services, then we can say that the case of the complainant is apparently covered under the policy and the claim of the complainant has been wrongly and illegally repudiated by the OP and hold that the complainant is entitled for the relief claimed.

10.              In view of the above detailed discussion, the complaint of the complainant is partly accepted and OP No.1 is directed to pay the loss amount assessed by the Dynamic Engineering Services i.e. Rs.6,01,201/- with interest @ 12% per annum from the date of repudiation i.e. 16.10.2015, till realization and further, OP No.1 is directed to pay compensation to the complainant for causing mental tension and harassment, to the tune of Rs.50,000/- and also directed to pay litigation expenses of Rs.5000/-. The entire compliance be made within one month from the date of receipt of the copy of order. This complaint could not be decided within stipulated time frame due to rush of work.

11.              Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.

Dated                                       Jyotsna                           Karnail Singh

17.12.2019                                        Memb+-er                      President