PER SHRI.S.S. PATIL – HON’BLE MEMBER
1) This is the complaint regarding deficiency in service and unfair trade practice adopted by the Opposite Party by repudiating the insurance claim of the Complainant on invalid ground.
2) The facts of the case as stated by the Complainant are that, the Complainant is carrying on the business at Vapi, Dist. Valsad, Gujarat and Opposite Party is the Insurance Company. The Complainant has obtained an Insurance Policy No.02900/11/04/00447 valid from 31/08/04 to 30/08/05 covering the loss/damage, due to flood, fire, etc. On 02/07/05 and 03/07/05 there was a damage/loss caused due to flooding at Plot No.148. A/DCIDC Vapi, Dist. Valsad, Gujarat (Here the Complainant has failed to mention as what was lost or what was damaged).
3) The information about the loss was given to the Opposite Party vide its letter dtd.03/07/05 of the Complainant.
4) The sum insured was Rs.10 Lacs.
5) The claim of Rs.6,05,570/- was submitted to Opposite Party. Here also the Complainant has not mentioned when he submitted the claim ?).
6) The surveyor made a false statement that the Complainant is not interested in the claim vide letter dtd.04/08/05. The same reasons for rejection of the claim was given by the Opposite Party vide its letter dtd.04/04/06. After receipt of this letter, the Complainant, through his advocate communicated the above facts to the Opposite Party vide its letter dtd.07/07/05. However, the Opposite Party has not settled the said claim till date. It is submitted by the Complainant that the Opposite Party or the surveyor is required to obtain in writing from the insured that he (insured) is withdrawing his claim and then give the reason that the Complainant is not interested in the claim. Here the surveyor has unilaterally stated in his letter that the Complainant is not interested in his claim.
7) The Complainant has further stated that it suffered a heavy loss due to the flooding. Therefore, the Complainant has filed the claim for Rs.3,07,000/- fixed assets and Rs.2,98,470/- for stock. Total amount being Rs.6,05,470/- with interest and compensation as well as cost of this complaint.
8) The Complainant has attached the xerox copies of the following documents in support of its complaint. Insurance Policy document, letter dtd.04/08/05, 03/07/05, 05/11/05, 04/04/06, 07/07/06, particulars of loss suffered.
9) It is noted that, the Complainant has mentioned in his list of document as Exh.‘B’ – copies of letter dtd.28/03/06 and 10/06/06, but these documents are not found alongwith the complaint.
10) Complaint was admitted and notice was served on the Opposite Party who appeared through its Ld.Advocate and filed the written statement wherein it denied almost all the allegations made by the Complainant and specifically stated that, this Forum has no jurisdiction as the entire cause of action has arisen in the state of Gujarat.
11) It is specifically averred by the Opposite Party that the claim is against the basic principles of law as there is no privity of contract between the Opposite Party and the Complainant as the insured has transferred his premises alongwith all the parts parcels to M/s.Uma Industries w.e.f.15/03/05 as per circular GIDC/DM/VPI/FTI/ 12641. This material fact was suppressed by the Complainant.
12) It is also submitted that non furnishing the necessary requirements to surveyor is also one of the ground for repudiation as per the terms and conditions which state that in non pursuance of claim the insurance company has to draw adverse inference. It is further vehemently denied by the Opposite Party that the Complainant is presently carrying on business in its own name at the above given address.
13) The Opposite Party has further stated that the Complainant should strictly prove that there was flood on 2nd and 3rd July, 2005 and the loss of Rs.6,05,570/- was caused to the insured’s property. It was submitted that there was no loss to the insured’s property. The surveyor has stated in his letter that the claim is nominal and this statement of the surveyor was accepted by the Opposite Party.
14) It is also averred by the Opposite Party that the loss is not covered under the policy as the plot stands transferred in the name of M/s. Uma Industries before the date of event i.e. 02/07/05 and 03/07/05.
15) It is also stated by the Opposite Party that on the basis of the surveyor’s report, the claim was rejected. It was also rejected on the ground that the Complainant has failed to furnish all the necessary requirements.
16) The Opposite Party has also stated that the details of loss given in Exh.‘D’ to the complaint is not supported by any documentary evidence such as stock as on date of loss, statement of repairs/replacement to be carried out on building, balance sheet of current year, trading account upto the date of loss, police complaint, Panchanama of the place of incident, etc.
17) Finally the Opposite Party has prayed that the complaint be dismissed with exemplary cost. The Opposite Party has attached the xerox copies of the letter of Divisional Manager, GIDC, regarding the transfer of Plot 148/A, Letter dtd.02/06/06.
18) The Complainant then filed a reply to the written statement of the Opposite Party and submitted that Mr.D.V. Gajabe has not produced authority letter with the written statement. It is also submitted that this Forum has the jurisdiction to entertain the complaint as the office of the Opposite Party is situated in the local jurisdiction of this Forum.
19) In para 5 of this reply the Complainant stated that the “Firm was carrying the business on the same name and style and we will produce the income tax returns copies as and when requires”. (However, the Complainant has failed to produce these returns till date). Further the Complainant has submitted that “when the surveyor had visited the premises, the stock was lying in the premises only and therefore, it is not correct to say that the plot was transferred before the date of event”.
20) Both the parties have filed their written arguments. We perused all the above papers and our findings are as follows –
The Complainant has obtained a Fire Insurance Policy bearing No.02900/11/04/00447 valid from 31/08/04 to 30/08/05. The Complainant’s averment is that it is doing the business. Here the Complainant stops. It does not disclose what business he is doing. It is stated that the Complainant was doing the business on the address 148 GIDC, Vapi, Dist. Valsad, Gujarat. This plot has been transferred to M/s.Uma Industries with effect from 15/03/05 (office order of Divisions Manager, GIDC, Vapi).
21) As per the complaint only, the information regarding the loss/damage to the property was given by the Complainant to the Opposite Party vide its letter dtd.03/07/05. As per this letter, the Complainant has also requested the Opposite Party to appoint the surveyor. It is also seen from this letter that Mr.Dilip Solanki, the signatory of this letter was informed by somebody that the assets of the Complainant were affected to a large extent due to rain, flood & cyclone. He could not reach to the site (Vapi) due to suspended Railway Service. This shows that Mr.Dilip Solanki, the signatory of the letter was not having personal knowledge of the rains & flood. Even he has mentioned the cause as cyclone, which was not thereon 2nd & 3rd July, 2005.
22) As per the above letter and as per the provision of Sec.64 UM, the Opposite Party appointed the surveyor, M/s. Shilon & Co. this surveyor has visited the site and sent a letter dtd.04/08/05 i.e. within one month to the Opposite Party informing that flood water level was about 1 feet and damages suffered by the insured is nominal. He has further added that the insured was not interested in pursuing its claim. On the strength of this letter, the Opposite Party repudiated the claim vide its leter dtd.04/04/06, giving the same reason for rejecting the claim. In the complaint the Complainant has mentioned in para 3.2 (g) – Date of receipt of denial letter – 04/04/06 and in next column (i) The Complainant mentions – Letter from United India Insurance Co. Ltd. dtd.04/04/06 received in August 2006. if this letter dtd.04/04/06 of Opposite Party is received by the Complainant in August, 2006 then how the Advocate of the Complainant in its letter dtd.07/07/06 addressed to Opposite Party gives reference of this letter (dtd.04/04/06) ? This clearly indicates the Complainant has received the letter dtd.04/04/06 of Opposite Party before 07/07/06 and he has made a wrong (false) averment in the complaint in para 3.2,-1) that letter dtd.04/04/06 from Opposite Party was received in August, 2006.
23) On the receipt of this letter dtd.04/04/06 which rejected the claim of the Complainant, the Advocate of the Complainant has written letter dtd.07/07/06 to the Opposite Party to settle the claim. Before 07/077/06 the surveyor has sent a report to the Opposite Party that the plot of the Complainant was already transferred in the name of M/s. Uma Industries since 15/03/05 and the event of loss occurred on 2nd and 3rd July, 2005. In enquiry with the Gujarat Electricity Board, the surveyor found that the Complainant was having 70 H.P. electricity connection under Consumer No.06101/00015/0. The electric connection of the Complainant was permanently disconnected since 06/02/97 and the Complainant had not applied for reconnection and the electric connection remained disconnected till the time of visit of the surveyor to the GEB Office at Vapi on 23/06/06. The surveyor has thus reported that “It means after 06/02/97, there was no electric supply in the factory till the date of loss (for almost 8 years).
24) We carefully scrutinized all the papers submitted by the Complainant but we do not find a single document to show that the Complainant was running business at Plot No.148/GIDC, Vapi, Dist.Valsad – Gujarat on 2nd & 3rd July, 2005. The Opposite Party has specifically stated in its written statement that the Complainant had not submitted any proof like stock on 2nd and 3rd July, 05, statement of repairs/replacement of items of property damaged, balance sheet, any document to show the stock and its price but even during the course of pleading before this Forum, the Complainant has miserably failed to produce any such documents to establish the loss of the property which were owned by him on the date of peril (02/07/05 & 03/07/05). The Complainant has not filed the copy of the claim form allegedly containing the property lost/damaged in the said peril.
25) Ld.Advocate of the Complainant has mentioned on behalf of the Complainant in written argument in para 3, that that the Complainant had informed about the loss and damage suffered and accordingly lodged the claim on 03/07/05. However, the letter dtd.03/07/05 of the Complainant shows that only he had informed the Opposite Party that his assets are affected. Then where is the claim of Rs.6,05,570/- ? When it was lodged ? On 03/07/05 even the Complainant was not at the place of incident. Somebody else had informed him that there was a rain, flood and cyclone and on this hearsay information he had written the letter dtd.03/07/05 to the Opposite Party. Then how the Complainant knew that the loss was worth Rs.6,05,570/- ? Who assessed the loss ? What was the property which was damaged in the flood ? The Complainant has not given any answer to these questions in his complaint, in his reply to written statement and in written argument also.
26) The Complainant has filed the complaint before this Forum on 17/06/08. Even in this complaint it is stated that the damage by flood was of Rs.6,05,570/-. He has annexed Exhibit ‘E’ to the complaint stating the loss of Rs.6,05,570/- as follows
Fixed assets - - Rs.3,07,000/-
Stock - - Rs.2,98,470/-
Total .. .. Rs.6,05,470/-
The Complainant failed to describe what the fixed assets were and what the stock which was damaged/lost during the flood on 2nd & 3rd July, 2005. Thus, the Complainant has miserably failed to establish that the property worth Rs.6,05,570/- was lost/damaged on 2nd & 3rd July, 2005 due to flood and hence, this complaint deserves to be dismissed with cost of Rs.10,000/- to be paid to the Opposite Party as this complaint is not only frivolous but it is vexatious within the meaning of Sec.26 of the Consumer Protection Act, 1986 as elaborately discussed. Therefore, we pass the order as follows –
O R D E R
i)Complaint No.105/2008 is hereby dismissed for want of merits and for placing misleading facts before the Forum,
hence, the Complainant is directed to pay the cost of Rs.10,000/- (Rs. Ten Thousand Only) to the Opposite Party
within one month from the receipt of this order.
ii)Copy of this order be furnished to both the parties.
