BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT PUDUCHERRY

Dated this the 8^th day of  February, 2018

Consumer Complaint No.4/2014

M/s A.S. Modern Rice Mill

Rep. by its Managing Director A. Selvarangam

Rural Industrial Estate            

Manapet Post, Kattukuppam,          

Pondicherry – 605 007.

………                                  Complainant

                                                               vs

1. Vice President     

    Bajaj Allianze General Insurance Co. Ltd.,                                        

    No.30, Vaithiyaraman Street, T. Nagar   

    Chennai.

2. The Manager

     Bajaj Allianze General Insurance Co., Ltd.,

     No.87/91, LA Complex

    1^st Floor, Siddhanandha Nagar,

    Pondicherry – 605 005.

                                                          ……….                          Opposite Parties

………                          

BEFORE:

HON’BLE JUSTICE Thiru K. VENKATARAMAN,    

PRESIDENT

 Thiru S. TIROUGNANASSAMBANDANE,

MEMBER

FOR THE COMPLAINANT:

Thiru R. Udayakumar, Advocate             

FOR THE OPPOSITE PARTIES

Thiru K. Ravikumar, Advocate

ORDER

(By Justice Thiru K. Venkataraman, President)

          The complainant filed the present complaint u/s 12 and 13 of Consumer Protection Act, 1986 directing the opposite parties to award the well calculated compensation with précise details on the strength of documents and other records as estimated by the complainant to the tune of Rs.52,83,000/- with interest of 12% per year less Rs.10,53,385/- already received by the complainant with protest;  to provide a sum of Rs.5,00,000/- towards the compensation for damages caused to the complainant by means of his mental agony and sufferings as well as for the service deficiency and for costs.

          2. The gist of the complaint is set out hereunder. 

          The complainant is the A.S. Modern Rice Mill represented by its Managing Director.  Due to Thane cyclone, the mill was completely damaged and the cost of damage was estimated to the tune of Rs.55,82,700/-.  Though the complainant has submitted the claim form by furnishing all required documents to enable the opposite parties to make a full and final settlement, proper settlement has not been made.  A Surveyor has been appointed to survey the entire mill to assess the value of damage.  Though he has surveyed the mill, a copy of the same has not been furnished to the complainant.  A sum of Rs.5.00 lakhs was settled as interim settlement on 13.01.2012.  Thereafter, after an inordinate delay of 10 months, the Opposite Parties through E-mail dated 09.07.2012 informed that a balance of Rs.5,52,920/- was settled to the complainant.  Thus, totally a sum of Rs.10,53,385/- was settled to the complainant.  It is only a meagre amount.  Though several times, the opposite parties were approached to settle the just and reasonable compensation, they have not done so.  By a communication dated 18.01.2013, the Opposite Parties have informed the complainant that they made full and final settlement and nothing further is liable to be paid.  Therefore, the complainant has approached the State Consumer Disputes Redressal Commission, Puducherry for awarding a sum of Rs.52,83,000/- with interest at 12% per annum after adjusting a sum of Rs.10,53,385/- already paid by the opposite parties; to order a sum of Rs.5.00 lakhs towards compensation for damages caused to the complainant by means of mental agony and sufferings as well as for deficiency of service and to pay the actual cost of the complaint.

          3. On behalf of the respondents, counter statement has been filed and the nutshell are stated hereunder.

          a) The complaint is purely a money claim and hence, the complaint will not lie before the State Consumer Disputes Redressal Commission, Puducherry.  The Consumer Protection Act will not be applicable to the claim made by the complainant;

          b) The complaint is liable to be dismissed on the ground of limitation.  Though the Thane cyclone crossed Puducherry on the intervening night of 29.12.2011 and 30.12.2011, the complainant alleged that the cause of action arose on 31.12.2011 and the complaint filed after two years is liable to be dismissed on the ground of limitation;

          c) The complainant has received the payment made by the Opposite Parties without any protest and hence, they can claim no more amount from the opposite parties;

          d) The Surveyor appointed by the Opposite Parties visited the unit on 31.12.2011, 03.01.2012, 15.04.2012 and on 15.05.2012 and submitted reports and basing on the same, the entire amount has been settled to the complainant;

          e) The complainant has undervalued the building, plant and machinery and the stock and has taken the policy and hence, the complainant is not entitled to more than what has been paid to it;

Thus, the counter statement of the opposite parties seeks for the dismissal of the complaint. 

          4. On behalf of the complainant, one Mr. S. Aravindan was examined as CW1 and through him, seven documents were filed were marked as Exs.C1 to C7.  On behalf of the Opposite Parties, one Mr. K. Ravikumar, the Assistant Manager of the Insurance Company, Chennai and
D. Venkataraman, the Surveyor were examined as RW1 and RW2 and eight documents were filed and they were marked as Exs.R1 to R8.

          5. We have gone through the pleadings, evidence adduced by both the parties, the documents filed by both the parties and also heard the oral arguments advanced by both the Counsels and also perused the written arguments filed by both the Counsels. 

          6. The points for determination are :

          a) Whether the complainant is a Consumer under the Consumer Protection Act?

          b) Whether the complaint is barred by limitation?

          c) Whether the complainant is entitled to more than the amounts paid by the opposite parties?

          d) Whether there is any deficiency of service on the part of the opposite parties?

          e) Whether the claimant is entitled to a sum of Rs.5.00 lakhs towards compensation for damages caused to it by means of mental agony and sufferings as well as deficiency of service?

          f) Whether the claimant is entitled to interest and cost.

          g) To what other relief the complainant entitled to?

          7.  Point No.1:

          It is the case of the complainant that it has taken a policy from the opposite parties and that though it has suffered huge loss due to Thane Cycle, the opposite parties have paid only meager amount and hence, they have approached the State Commission seeking for more compensation and hence, the complaint is perfectly valid before the State Commission.  However, it is the case of the opposite parties that the claim made by the complainant is purely a money claim and does not come under the purview of the Consumer Protection Act.  At best, according to the opposite parties, the complainant has to seek remedy before the Civil Court.

          8. We have carefully considered the submissions made by both the Counsels.  It is not in dispute that the complainant has taken the policy from the opposite parties and that it has suffered a loss due to the Thane cycle.  The complainant having taken the policy from the opposite party is undoubtedly a Consumer and the claim comes within the purview of the Consumer Protection Act.  We are not able to accept the contention raised on behalf of the opposite parties that the State Commission has no jurisdiction to entertain the present complaint and has to return the complaint for presentation of the same before the appropriate civil court.  Therefore, while rejecting the case of the opposite parties, we are considered to hold that the complaint preferred by the complainant is perfectly valid before the State Commission and that the complainant is a Consumer under the Consumer Protection Act. 

          9. Point No.2:

          The second point that has to be considered is whether the complaint is barred by limitation?

          It is not in dispute that the Thane cyclone crossed Pondicherry on the intervening night of 29.12.2011 and 31.12.2011.  Immediately after the said incident, the complainant approached the opposite parties about the damage sustained by it and had sought for a claim.  Thereafter, the Opposite Parties immediately appointed Rank Surveyors Private Limited to survey the complainant's unit and even according to the opposite parties, the Surveyor has visited the unit on 31.12.2011, 03.01.2012, 15.04.2012 and 15.05.2012.  On the basis of the report submitted to the opposite parties by the Independent Surveyor, a sum of Rs.5.00 lakhs was settled to the complainant on 13.01.2012 as an interim settlement and thereafter, the complainant was intimated through Email dated 09.12.2012 about the discharge of a voucher for Rs.5,52,920/- and thus a sum of Rs.10,53,385/- was settled to the complainant for the damage caused due to Thane Cyclone. 

          10. The complainant, thereafter, had sent reminders pleading for enhancement of the compensation and finally on 18.01.2013, the opposite parties informed the complainant that they have already settled the amount as full and final settlement and there is nothing left, payable to the complainant.  Thus, it could be seen, the final settlement was closed by the opposite parties on 18.01.2013 by informing the complainant that no more amount is payable to the complainant.  The cause of action starts only from that date and the complaint was laid on 31.12.2013 which is well within the time.  Therefore, we are unable to accept the contentions raised on behalf of the opposite parties that the complaint filed by the complainant is barred by limitation.   

11. Point No.3:

          The third point that has to be decided is whether the claimant is entitled to more than the amount paid by the Opposite Parties.

          It is the case of the opposite parties that the claimant has undervalued the building, plant and machinery and the stock at the time of  taking the policy.  It is not the case of the opposite parties that it assessed the value of the building, plant and machinery and the stock before issuing the policy.  It will be useful to extract the evidence of RW1 in this regard.

          "We insure only on the directions of the bank.  The bank is one of the channel partner.  Whatever the bank says about the value of the property, we will presume that it will be correct.  Before issuing the policy, the insurance company will not value the property.  It is correct to say that in the present case before issuing the policy, we have not received any proposal from the complainant.  The proposal came only from the bank".

While so, it is too late for the opposite parties to contend that the claimant has undervalued the building, plant and machine and the stock at the time of taking the policy.

          12. Secondly, RW2, the Surveyor has stated in his cross examination that "At the time of assessment, I received assistance from my Civil Engineer to assess the damages……, "I have not verified the approved plan of the building before assessing the value of loss".  Therefore, it is clear that the report of the Surveyor cannot be taken as full proof regarding the assessment of damage.

          13. Thirdly, it has to be seen that the report of the Surveyor was not furnished to the claimant.  RW1 in his cross examination clearly stated that "I have not given the copy of the final report to the complainant".

          14. With regard to the salvage, though the opposite parties have stated in their reply version that the Surveyor had assessed the salvage on building at Rs.2,03,075/-, the Surveyor in his cross examination as RW2 has stated that "I do not know about whether the claim has been made after adjusting or deducting or reducing the salvage value from the claim".

          15. Thus considering the overall discussions made above, we are of the view that proper assessment of damage was not made by the Surveyor and that the opposite parties have not properly assessed the damage caused to the complainants and paid the amount.  Therefore, the opposite parties are directed to assess the damage not on the basis that the complainants have undervalued the building, plant and machinery, but to arrive at a proper value of the damage and arrive at the proper amount for the damages caused to the building, plant and machineries and stocks of the complainant on the basis of value set out in the policy and settle the amounts within three months from the date of receipt of this order, failing which, the opposite parties are liable to pay interest at the rate of 12% per annum from the expiry of three months on such amount.

          16. Point No.4:

          On the 4^th point, whether there is any deficiency of service on the part of the opposite parties.

          We are of the view that in view of failure on the part of the opposite parties in assessing the damage caused to the complainant, undoubtedly, it is a deficiency on their part.  The opposite parties without assessing the damage properly as discussed above has paid a lesser amount to the complainant which definitely is a fault on the part of the opposite parties and that it is a deficiency of service which could have caused mental agony to the complainant.  

          17. On the 5^th point whether the claimant is entitled for Rs.5.00 lakhs towards compensation for damages caused to the complainant by means of mental agony and sufferings as well as for deficiency in service, we of the view that the just claim of the claimant has been erroneously rejected as discussed earlier, which is a deficiency of service which could have undoubtedly caused mental agony to the complainant.  Hence, we award a sum of Rs.2.00 lakhs on this count. 

          18. On the 6^th point "Whether the claimant is entitled to interest.  We are of the view that since a sum of Rs.2.00 lakhs has been awarded for mental agony, no interest could be awarded.  Hence, we are not awarding any interest. 

          19. As regard the cost, though the claimant has not specified any sum, we are inclined to award a sum of Rs.10,000/- towards costs.  Thus the complaint is disposed of by

1. Directing the opposite parties to assess the value of damage caused to the complainant without taking into account that the complainant has undervalued the building, plant and machineries and stocks and also to consider the salvage amount in a proper manner and the amounts so arrived shall be paid within three months from the date of this order.
2. If the amount is not settled within three months, it shall carry interest of 12% per annum from the expiry of three months till the complainant paid completely.
3. Also a sum of Rs.2.00 lakhs has to be payable by the Opposite Parties towards deficiency of service, mental agony caused to the complainant.
4. Rs. 10,000/- towards cost of this proceedings.

Dated this the 8^th day of February, 2018

(Justice K. VENKATARAMAN)

PRESIDENT

(S. TIROUGNANASSAMBANDANE)

MEMBER

LIST OF COMPLAINANT'S WITNESSES:

CW1           11.02.2016           S. Aravinthan

LIST OF OPPOSITE PARTYS' WITNESSES:

RW1           02.06.2016           R. Kalpana,  Assistant Manager

RW2           23.02.2017           D. Venkattaraman, Surveyor

LIST OF COMPLAINANT'S EXHIBITS:

LIST OF OPPOSITE PARTYS'  EXHIBITS:

(Justice K. VENKATARAMAN)

PRESIDENT

(S. TIROUGNANASSAMBANDANE)

MEMBER