State Consumer Disputes Redressal Commission
Padma Rice Mill vs Cholamandalam M/S. General Insurance ... on 7 July, 2016
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR (C.G.)
Complaint Case No.CC/2015/29
Instituted on : 02.11.2015
Shri Padma Rice Mill, Prop. Shri Uttam Chand Jain,
Through : Power of Attorney Holder Nikesh
Kumar Jain, Aged 32 years,
R/o : Sadar Bazar,
Dhamtari (C.G.) ... Complainant.
Vs.
1. Cholamandalam M.S. General Insurance Co. Ltd.
Through : Branch Manager/Competent Authority,
First Floor, Hinduja Complex,
Near Paras Nagar Railway Line, Devendra Nagar,
Raipur (C.G.)
2. Central Bank of India,
Through : Branch Manager/Competent Authority,
Prabhu Market, Sihawa Chowk,
Dhamtari (C.G.) ... Opposite Parties
PRESENT: -
HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT
HON'BLE MS. HEENA THAKKAR, MEMBER
HON'BLE SHRI D.K. PODDAR, MEMBER
HON'BLE SHRI NARENDRA GUPTA, MEMBER.
COUNSEL FOR THE PARTIES:
Shri Rajesh Pandey, for the complainant.
Shri Manoj Prasad, for the O.P.No.1.
Miss Radharani Gupta, for the O.P.No.2.
ORDER
Dated : 07/07/2016 PER :- HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT. The complainant filed this consumer complaint under Section 17 of the Consumer Protection Act, 1986 against the OPs, seeking following reliefs :-
// 2 //
(a) To direct the OPs to jointly and severally pay total amount of claim to the tune of Rs.38,30,590/- (Rupees Thirty Eight Lakhs, Thirty Thousand and Five Hundred Ninety) to the complainant, along with interest @ 18% p.a.
(b) To direct the OPs to pay a sum of Rs.5,00,000/- (Rupees Five Lakhs) to the complainant towards compensation for mental agony.
(c) To direct the OPs to pay a sum of Rs.5,00,000/- (Rupees Five Lakhs) to the complainant towards deficiency in service and unfair trade practice.
(d) To direct the OPs to pay a sum of Rs.50,000/- (Rupees Fifty Thousand) towards cost of litigation and advocate fees and any other relief, as this Commission deems fit.
2. Brief facts of the complaint are that the complainant is doing business of processing, purchasing and selling of the various variety of rice and paddy and other connected product for livelihood in the name of Shri Padma Rice Mill. The above rice mill is situated at Village Tarsiwa, District Dhamtari, where the processing, storage and purchase sale of the various variety of paddy is being carried out. The Rice Mill of the complainant is construed in about 50,620 sq. ft. land at Village Tarsiwa out of which in 10,984 sq. ft. land one mill // 3 // shed and office of two floor and labour quarter has been constructed. The complainant installed various machines in the Rice Mill and with the help of above machines, the production in rice mill is carried out. The complainant is also doing work of storage of rice in the godown of the C.G. Government by taking paddy and doing its milling. The complainant started to lift the paddy from the C.G. Government from November, 2013, under which the Government is providing three types of paddy i.e. mota, patla and sarana to the complainant milling of which is done by the complainant and he is preparing common rice of grade 2 and also "A" grade rice and is returning the same to the Government. The complainant is having current account with O.P.No.2 through which the transaction relating to Rice Mill is done. The complainant obtained Insurance Policy No.2130/00031553/000/02 from the O.P.No.1, which was effective for the period from 28.09.2013 to 27.09.2014 for the sum assured Rs.82,00,000/-. The said insurance policy was issued on 27.09.2014. According to B-1, on 02.06.2014, the complainant was having stock of paddy and stock of rice process 35.435.09 qtls valuing Rs.5,31,52,635/- and besides it kanki, kodha valuing Rs.2,75,000/-, thus total stock of Rs.5,34,27,635/- was stored in which stock of Rs.1,11,88,200/- was also included and information regarding which was sent to O.P.No.2 on 02.06.2014. On 02.06.2014, the rice mill of the complainant was properly running, all of a sudden about 2.10 P.M. the weather was changed and storm and raining was // 4 // started due to which the shed of the mill flown away. The rain was continued for about one hour due to which in a very short time, 6-7 inch water was stored in the shed of the mill and due to rainy water the bags of paddy, loose rice, kanki, kodha and nakkhi, resulting to which the stock was badly damaged. Due to natural calamity i.e. storm and heavy rain, the 1400 qtls. Paddy which was stored in the rice mill was damaged resulting to which the complainant suffered loss and 150 qtls. loose rice valuing Rs.3,15,000/- was badly damaged and it was not suitable for eating of the men and the same is able to sale @ Rs.250/- per qtls. besides it 540 qtls. rice which were kept in the bags were also damaged due to wet. The above rice was given by the complainant to the Government through F.C.I. Dhamtari and were came back because the same was rejected, due to which the complainant suffered loss @ 11/- per kg to the tune of Rs.5,94,000/-. Besides it, due to heavy rain and storm, the shed, factory, building and office building of the complainant, suffered loss to the tune of Rs.2,50,000/-. The complainant immediately informed the O.P.No.1 regarding the incident and submitted claim before the O.P.No.1, in response to which the O.P.No.1, the authorized Surveyor of the O.P.No.1 vide letter dated 03.06.2014 directed the complainant to submit various documents. The complainant submitted above documents on 06.06.2014 to the Surveyor. During investigation, the Surveyor recorded statement of the complainant on 11.06.2014 and the // 5 // complainant provided all relevant documents to the Surveyor on 17.06.2014. The complainant provided the particulars in respect of loss suffered by him to the tune of Rs.38,30,590/- to the Surveyor on 17.06.2014. The O.P.No.2 has provided financial assistance to the complainant and the insurance policy has been obtained by the complainant from the O.P.No.1 through O.P.No.2, and the premium was also paid by the O.P.No.2 through account of the complainant, hence the complainant provided all information to the O.P.No.2 in respect of claim submitted by it before the O.P.No.1. The O.P.No.1 sent an email on 15.07.2014 to the complainant in which it is mentioned that "All the goods belonging to the third party can only be covered by taking coverage for "Goods held in trust" under the policy, whereas in this policy, this coverage has not been taken. Hence in absence of "Goods held in trust" coverage, the entire amount of stock has been excluded from assessment. The net payable loss amount in this claim is Rs.1,07,331/-". The O.P.No.1 sent discharge voucher along with above email with a direction to sign the same and provide the same so that claim amount can be paid. The complainant immediately contacted the O.P.No.1 and O.P.No.2 and requested to reconsider its decision. The O.P.No.1 refused to reconsider its decision. The complainant informed the O.P.No.2 that the O.P.No.1 is ready to pay compensation to the tune of Rs.1,07,331/- to the complainant and requested the O.P.No.2 to interfere and help the complainant. The // 6 // OPs did not help the complainant which comes in the category of deficiency in service, due to which the complainant is facing financial loss and mental agony. Hence the complainant filed consumer complaint seeking reliefs as mentioned hereinabove.
3. The O.P.No.1 filed its written statement and averred that the complaint is neither maintainable in law nor on facts and no cause had arisen to the complainant to prefer this complaint. The complaint of the complainant is not maintainable for want of cause of action. The claim of the complainant has already been settled as repudiated which are not payable on the ground that "All the goods belonging to the third party can only be covered by taking coverage for "goods held in trust" under the insurance policy, whereas in this policy, this coverage has not been taken. Hence in absence of "goods held in trust"
coverage, the entire amount of the stock has been excluded from this assessment. Net payable loss amount was Rs.1,07,331/- only. The O.P.No.1 sent a discharge voucher for payment of the amount as mentioned above and sent a cheque for the same to the complainant. The claim of the complainant has also been rejected by the Food Corporation of India vide letter dated 11.06.2014 by mentioning that some bags found water effected in respect of final analysis / in section. Therefore, the F.C.I. advised to lift the stock from their premises otherwise the complainant shall be liable to pay storage charges. The claim was settled after proper application of mind and the complaint // 7 // filed by the complainant is baseless and flagrant abuse of process of law to harass the O.P.No.1 and is liable to be dismissed with compensatory cost. The complaint filed by the complainant before this Commission is also not maintainable as the complainant is a company involved in commercial activities and thus is not a consumer. This Commission is having no jurisdiction to entertain the present complaint and hence the complaint is liable to be dismissed with compensatory cost. The complainant is engaged in commercial activities and hence this Commission is having no jurisdiction to entertain such type of complaint. The claim of the complainant is not payable as the complainant was not the owner of goods i.e. Paddy. The owner of the goods was Food Corporation of India (F.C.I.) and the same was not insured with the O.P.No.1. The paddy was received by the complainant only for its milling purposes from the Government Department and hence the complainant sent back the paddy to the F.C.I. and net payable amount was found by the loss assessor on account of loss which is only for establishment. The complainant has failed to disclose all the correct facts and intentionally has not come with clean hand and such the complainant cannot be allowed to gain from the same and hence not this Commission has no jurisdiction to entertain and adjudicate upon the dispute involved in the complaint. The dispute raised by the complainant in the present complaint is manifestly outside the purview of the Consumer Protection Act, 1986.
// 8 // The proceeding initiated by the complainant under Consumer Protection Act, 1986 is without jurisdiction. The definitions of "Complainant", "Complaint", "Consumer Dispute" and "Service" as defined in Section 2(1) of the Consumer Protection Act, 1986 do not cover the claims arising under the present dispute and that from the aforesaid definitions, the complainant is not "consumer" and the controversy involved in the complaint is not a "consumer dispute".
The claim of the complainant is pending and the O.P.No.1 has not committed any deficiency in service. The insurance was done subject to terms and conditions of the insurance policy. The complainant is disputing the quantum and filed the present complaint for recovery of amount and this Commission is having no jurisdiction to entertain the present complaint. Hence the complaint filed by the complainant is liable to be dismissed on this sole ground. The O.P.No.1 has not committed any deficiency in service. The complainant is not entitled to get any compensation, as the complaint filed by the complainant is not maintainable. The complaint filed by the complainant is liable to be dismissed with compensatory cost.
4. The O.P.No.2 has filed its written statement and averred that the complainant obtained insurance policy from the O.P.No.1. The contract has been executed between the complainant and O.P.No.1. The O.P.No.2 debited the amount of premium from the account of the complainant as per his instruction. The complainant has given stock // 9 // statement to the O.P. No.2. It is the matter between the complainant and the O.P.No.1 that how much stock was kept in the place of occurrence and how much stock was damaged. The matter of assessment of loss relates to the complainant and the O.P.No.1. It has no relation with the O.P.No.2. The complainant did not obtained insurance policy from the O.P.No.1 through O.P.No.2. As per instructions of the complainant, the O.P.No.2 debited the amount from the account of the complainant. The O.P.No.2 is always ready to cooperate the complainant. It is not obligatory for the complainant to obtain policy from the O.P.No.1. Purchase and issuance of policy is a contract executed between the complainant and O.P.No.1. The O.P. No.2 always cooperated the complainant and is giving assurance to cooperate the complainant in future also. The O.P.No.2 did not commit any deficiency in service due to which the complainant is suffering financial loss and mental agony. The complainant has unnecessarily impleaded O.P.No.2 as party in the complainant, therefore, the complainant is liable to pay a sum of Rs.5,00,000/- to the O.P.No.2 as compensation. The complaint of the complainant is liable to be dismissed with cost.
5. The complainant has filed document. Annexure 1 is authority letter, Annexure 2 is Standard Fire and Special Perils Policy Schedule, Annexure 3 is letter dated 02.06.2014 sent by Shree Padma Rice Mill to the Branch Manager, Central Bank of India, Dhamtari, Annexure 4 is // 10 // letter dated 03.06.2014 sent by Er. H.K. Tiwari, Surveyor / Loss Assessor to M/s Shree Padma Rice Mill, Annexure 5 is letter dated 06.06.2014 sent by Shree Padma Rice Mill to Shri H.K. Tiwari, Surveyor, Annexure 6 is CMR Analysis Report (2013-14) issued by C.G. State Civil Supplies Corporation Ltd., Annexure 7 is Rejection Slip dated 11.06.2014 issued by Food Corporation of India, District Office, Raipur (C.G.), Statement of Nikesh Kumar Jain, dated 11.06.2014, Annexure 9 is letter dated 17.06.2014 sent by Shree Padma Rice Mill to Shri Ram Manohar Gupta, Surveyor, Annexure 10 is letter dated 17.06.2014 sent by Shree Padma Rice Mill to Shri Ram Manohar Gupta, Surveyor, Annexure 11 is bill dated 11.07.2014 in respect of repairing of the shed etc., Annexure 12 is email sent by the O.P.No.1 to the O.P.No.2 on 15.07.2014 and Standard Fire and Special Perils Endorsement Schedule, Annexure 13 is Voucher for Full and Final Discharge of Claim, Annexure 14 is email sent by the O.P.No.1 to O.P.No.2 on 02.08.2014 and Annexure 15 is Application for Electronic Funds Transfer to Repairer's Bank Account.
6. The O.P.No.1 filed documents. Annexure OP-1 is Final Survey Report dated 17.06.2014 of Shri Ram Mohan Gupta, Surveyor and Loss Assessor, Annexure OP-2 is Standard Fire and Special Perils Policy Schedule.
7. Shri Rajesh Pandey, learned counsel appearing for the complainant has argued that the complainant is doing business of // 11 // processing, purchase, sale of the various variety of rice and paddy and other connected product for livelihood in the name of Shri Padma Rice Mill. The complainant started to lift the paddy from the C.G. Government from November, 2013 under which the Government is providing three types of paddy i.e. mota, patla and sarana to the complainant for milling. The complainant is having current account with O.P.No.2 through which the transactions relating to Rice Mill, is done. The complainant obtained insurance policy No. 2130/00031553/000/02 from the O.P.No.1, which was effective for the period from 28.09.2013 to 27.09.2014 and the sum assured is Rs.82,00,000/-. On 02.06.2014, the complainant was having stock of paddy and stock of rice process at 35,435.09 qtls. valuing to Rs.5,31,52,635/- and besides it kanki, kodha valuing Rs.2,75,000, thus total stock of Rs.5,34,27,635/- was there. On 02.06.2014, heavy rain and storm was started due to which the shed of mill flown away. The rain was continued for one hour due to which in a very short time, 6-7 inch water was stored in the shed of the mill and due to rainy water the bags of paddy, loose rice, kanki, kodha abnd nakkhi, were badly damaged. The complainant sent intimation to the O.P.No.1 regarding the incident and submitted claim before the O.P.No.1. The O.P.No.1 appointed Surveyor, who inspected the premises of the complainant and assessed the loss. The Surveyor admitted that the cost of paddy is Rs.1,500/- per qtl. Hence keeping in view it, he assessed stock to the // 12 // tune of Rs.5,35,17,620/- and assessed loss to the tune of Rs.35,49,000/- but without giving any proper and justifiable reasons, the Surveyor deducted salvage value of 1400 qtls. @ Rs.1,000/ per quintal to the tune of Rs.14,00,000/-, Salvage value of 150 qtl. @ Rs.250/- to the tune of Rs.37,500/-, Salvage value of 540 qtls. @ 1,000/- to the tune of Rs.5,40,000/- and he assessed net loss to the tune of Rs.1,07,331/- only, which is erroneous. The complainant is entitled for getting a sum of Rs.35,49,000/- from the O.P. No.1. The Surveyor has erroneously deducted Salvage Value. The assessment made by the Surveyor is erroneous, therefore the report of the Surveyor, is not acceptable, hence the complainant, is entitled to get the amount, as prayed by him in the complaint.
8. Shri Manoj Prasad, learned counsel appearing for the O.P.No.1 has argued that goods of the complainant was insured by the O.P.No.1 under Standard Fire and Special Perils Policy under terms and conditions. As per averment of the complainant the complainant is obtaining paddy from the Food Corporation of India and after milling, the same is provided to the Food Corporation of India. The complainant is not owner of the goods, therefore, the claim of the complainant is not payable. The complainant is not owner of the goods, therefore, the claim of the complainant is not payable. The actual owner of the goods is Food Corporation of India, therefore, the complainant has no insurable interest. The claim of the complainant // 13 // has been repudiated by the O.P. No.1 on the ground that "All the goods belonging to the third party can only be covered by taking coverage for "Goods held in trust" under the policy, whereas in this policy, this coverage has not been taken. Hence in absence of "Goods held in trust" coverage, the entire amount of stock has been excluded from assessment." Ram Mohan Gupta conducted Survey and submitted his report. He assessed the loss to the tune of Rs.1,66,059/-. He further argued that the Report of the Surveyor is reliable and he has rightly deducted the Salvage Value. The complainant is only entitled to get a sum of Rs.1,66,059/- from the O.P.No.1. He placed reliance on Suraj Mal Ram Niwas Oil Mills (P.) Ltd. vs. United India Insurance Company Limited & anr. IV (2010) CPJ 38 (SC), Appeal (Civil) No.6277 of 2004 - United India Insurance Co. Ltd. Vs. M/s. Harchand Rai Chandan Lal, decided by Hon'ble Supreme Court vide order dated 24.09.2004 and First Appeal No.240 of 2010 - United India Insurance Co. Ltd. & Others Vs. East Indian Produce Ltd. and Others, decided by Hon'ble National Commission vide order dated 09.12.2014.
9. Miss Radha Rani Gupta, learned counsel appearing for the O.P.No.2 has argued that the contract has been executed between the complainant and O.P.No.1. The O.P.No.2 debited the amount of premium from the account of the complainant as per his instructions. The complainant has given stock statement to the O.P.No.2. It is the // 14 // matter between the complainant and the O.P.No.1. The O.P.No.2 did not commit any deficiency in service, therefore, the complaint is liable to be dismissed against the O.P.No.2.
10. We have heard learned counsel appearing for the parties and have perused the documents filed by them in the complaint.
11. In Suraj Mal Ram Niwas Oil Mills (P.) Ltd. vs. United India Insurance Company Limited & anr. (Supra), Hon'ble Supreme Court has observed thus :-
"22. Before embarking on an examination of the correctness of the grounds of repudiation of the policy, it would be apposite to examine the nature of a contract of insurance. It is trite that in a contract of insurance, the rights and obligations are governed by the terms of the said contract. Therefore, the terms of a contract of insurance have to be strictly construed, and no exception can be made on the ground of equity. in General Assurance Society Ltd. (supra), a Constitution Bench of this Court had observed that :-
"In interpreting documents relating to a contract of insurance, the duty of the Court is to interpret the words in which the contract is expressed by the parties, because it is not for the Court to make a new contract, however reasonable, if the parties have not made it themselves."
[See also : Oriental Insurance Co. Ltd. v. Sony Cheriyan, VI (1999) SLT 565 = (1999) 6 SCC 451; Vikram Greentech (supra); Sikka Papers Limited v. National Insurance Company Limited & Others, III (2009) CPJ 90 (SC) = (2009) 7 SCC 777; New India Assurance Company Limited v. Zuari Industries Limited & Others., IV (2009) ACC 390 (SC) = IV (2009) CPJ 19 (SC) = VII (2009) SLT 122 = 2009 9 SCC 70; Amravati District Central Cooperative Bank Limited v. United India Fire and General Insurance Company Limited, III (2010) SLT 232 = (2010) 5 SCC 294.
// 15 //
23. Similarly, in Harchand Rai Chandan Lal's case (supra), this Court held that :-
"The terms of the policy have to be construed as it is and we cannot add or subtract something. However liberally we may construe the policy but we cannot take liberalism to the extent of substituting the words which are not intended."
24. Thus, it needs little emphasis that in construing the terms of a contract of insurance, the words used therein must be given paramount importance, and it is not open for the Court to add, delete or substitute any words. It is also well settled that since upon issuance of an insurance policy, the insurer undertakes to indemnify the loss suffered by the insured on account of risks covered by the policy, its terms have to be strictly construed to determine the extent of liability of the insurer. Therefore, the endeavour of the Court should always be to interpret the words in which the contract is expressed by the parties.
25. Having considered the instant case on the touchstone of the aforenoted broad principles to be borne in mind while examining the claim of an insured, we are of the opinion that the claim of the appellant must fail on the short ground that there was a breach of the afore-exacted special condition incorporated in the cover note. The special condition viz "each and every consignment" must be declared before dispatch of goods is clear and admits of no ambiguity. The appellant was obliged to declare "each and every consignment" before it left the appellant's factory premises and there is nothing in the policy to suggest that the insured had liberty to pick and choose the dispatches which they wanted to declare to the insurer, not even at the instance of the consignee, who otherwise is a stranger to the contract between the insurer and the insured. We have no hesitation in rejecting the plea of the appellant that they were required to declare only those dispatches in which they had an insurable interest. It bears repetition that notwithstanding any request by the consignee, the policy of insurance postulated // 16 // declaration in respect of each and every dispatch by the appellant. Therefore, the fact that purchasers did not want an insurance cover on certain dispatches had no bearing on the obligation of the appellant to declare each and every dispatch under the policy. It is a settled proposition of law that a stranger cannot alter the legal obligations of parties to the contract."
12. In United India Insurance Company Ltd. vs. M/s Harchand Rai Chandan Lal, 2005 (1) CPR 64 (SC); Hon'ble Supreme Court, has observed thus :-
"6. The terms of the policy have to be construed as it is and we cannot add or subtract something. Howsoever liberally we may construe the policy but we cannot take liberalism to the extent of substituting the words which are not intended. It is true that in common parlance the term 'burglary' would mean theft but it has to be proceeded with force of violence. If the element of force and violence is not preset then the insured cannot claim compensation against theft from the insurance company. (Para 6). It is not open to interpret the expression appearing in policy in terms of common law; but it has to give meaning to the expression reproduced the terms of the policy as also the definition of burglary and / or housebreaking as defined in the policy."
13. Now we shall consider whether the goods were belonging to the third party and were excluded from the insurance policy ?
14. In the Standard Fire and Perils Policy Schedule (Annexure 2), it is mentioned thus :-
Policy No. 2130//00031553/000/02
Insured Name Padma Rice Mill
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Period of insurance From 00.00 on 28/09/2013
To 23/09/2014
Warranties
1. Kutcha construction warranty.
2. a. Storage of husk shall be separated from rest of the blocks of the
3. mill and there shall be no opening between the husk storage block and other blocks
4. b. No boiling done in open.
Applicable Clauses & Clauses.
Warranties. 1. Agreed Bank Clauses.
2. Earthquake (Fire and Stock).
3. Terrorism Damage Coverage Endorsement.
4. Sanctions Limitation And Exclusion Clause.
Total Sum Insured (In 82,00,000/- Rs.)
15. It appears that the complainant has obtained Standard Fire and Perils Policy from the O.P.No.1 in which Kutcha Construction and Mill Stock, were insured and the sum assured under the policy is Rs.82,00,000/-.
16 The O.P.No.1 deputed Ram Mohan Gupta as Surveyor, who inspected the premises and assessed the loss. The O.P.No.1 has filed Final Survey Report dated 17.06.2014 of Shri Ram Mohan Gupta, Surveyor and Loss Assessor, in which it is mentioned thus :-
"Adequacy of the Factory Building - As stated earlier, the area of factory shed is 10984 sft. And office building and labour quarters is 1080 sft. The height of the production shed is about 22 feet. Looking to the nature of construction, the reinstatement value of the shed is about Rs.550/- per sft. And office is about Rs.600/- of ground floor and first floor is about Rs.500/- per sft. Keeping this in view, we value the building as on the date of occurrence as under :-
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- Factory shed 10984 sft. @ 550/- Rs.60,41,200.00
- Office Block 540 sft. @ Rs.600/-
(Ground Floor). Rs. 3,24,000.00
- Office Block 540 sft @ 500/-
(First Floor) Rs. 2,70,000.00
- Total value of the Factory Shed &
Office. Rs.66,35,200.00
The Sum Insured under the policy for Building is Rs.37.00 lakh hence, factory building is not adequately Insured and average clause will be applicable. Stock - As stated earlier, the total value of the Stock as on 02.06.14 was Rs.5,35,17,620/-. The Sum Insured under the policy for stock is only Rs.20.00 lakh hence, stock is also highly under Insured and average clause will be applicable.
......
As per our physical inspection and discussion held with the Insured's representative Shri Nikesh Jain, we noted that the sound value of Dhan (Paddy_ is Rs.1,500/- per quintal. The quality of paddy got deteriorated due to wetness and submerging in inundated rain water and therefore, there is a fall of quality @ Rs.500/- per quintal in 1400 quintal paddy. Similarly 150 qtl. of rice which lying loose was badly damaged and the sound value of the rice is Rs.2100/- per quintal. This rice become cattle feed and not fit for human consumption and could be sold only for Rs.250/- per quintal. The Rice of 540 qtl. which was rejected by FCI and delivered after the incident in damaged condition, this rice could be sold at Rs.1100/- per quintal. The sound value of the rice is Rs.2100/- per quintal. Hence, keeping in view, we assess the loss as under :
Cost of 1400 qtl. @ Rs.1500/- per quintal. Rs. 21,00,000.00
Cost of Rice 150 Qtl. @ Rs.2100/- p. qtl. Rs. 3,15,000.00
Cost of Rice 540 Qtl. @ Rs.2100/- p. qtl. Rs. 11,34,000.00
// 19 //
Total : Rs.35,49,000.00
Less : Salvage Value of 1400 Qtl.
@ Rs.1000/- Rs.1400000/-
Salvage Value of 150 Qtl.
Q Rs.250/- Rs. 37500/-
Salvage Value of 540 Qtl.
@ Rs.1000/- Rs. 540000/- Rs.19,77,500.00
Net Loss Assessed : Rs.15,71,500.00
After applying under insurance, the loss is calculated as under :- Rs.15,71,500 / 5,35,17,620 x 20,00,000 = Rs.58,728.00.
Summary of Loss :
Particulars. Sum Gross Less For Less for Net Loss
Insured Loss Salvage Under
Assessed Insurance
Building 3700000 222410 12000 93079 117331
Stock 2000000 3549000 1977500 1512772 58728
Total 3771410 1989500 1605851 176059
Less : For Policy 10000
Excess Clause
Net Adjusted Loss 166059
Payable
Thus, we recommend that Rs.1,66,059/- may be compensated to Insured to indemnify the above loss, subject to terms and conditions of the Policy. The loss is well covered under the policy and we did not observe any breach of policy terms/ conditions/ warranties. Further the incident of storm is widely known in the area and news of storm was published in every local newspapers. Therefore, there is no need to obtain the certificate from Met. Deptt. Further there is no Met. Deptt. Lab in Dhamtari district, as informed by the Insured hence, the recorded wind velocity at the remote place is not possible. However, the newspaper cutting confirms that there was a heavy storm occurred on 02.06.14 and it is also confirmed by the local inhabitants of the area on our enquiry. Hence, loss is caused due to storm which is an insurable peril under the policy and loss is covered under the policy."
// 20 //
17. Now , we shall consider whether Surveyor Report of Shri Ram Mohan Gupta, is acceptable in toto ?
18. In Oriental Insurance Co. Ltd. Vs. Pavan Enterprises & Anr. I (2016) CPJ 503 (NC), Hon'ble National Commission has observed thus :-
"12. I see no reason to discard the report of the Surveyor. He appears to be a guideless witness. No motive was ever attributed to him. There must be some reasonable ground or doubt to reject his report. The report of the Surveyor carries infinite significance as was held in Roshan Lal Oil Mills Ltd. & Ors., 2014 (SLT Soft) 1 = 2014 (CPJ Soft) 1 = (2000) 10 Supreme Court Cases 19 and in D.N. Badoni v. Oriental Insurance Co. Ltd., I (2012) C.P.J. 272 (NC)."
19. In United India Insurance Company Limited Vs. Shree Sunder Marbles, 2016 (1) CPR 66 (NC), Hon'ble National Commission has observed that "Surveyor report being important document under Insurance Act should be main point of consideration for assessing loss and deciding insurance claim."
20. In New India Assurance Co. Ltd., vs. Pave Infrastructures Pvt. Ltd., 2015 (3) CPR 577 (NC), Hon'ble National Commission has observed that "Loss of assessment by approved Surveyor can be discarded only on cogent reasons".
// 21 //
21. In Garg Acrylics Ltd., Through Sh. Anish Bansal G.M. (G.M.) Authorised Representative vs. United India Insurance Co. Ltd., 2015 (1) CPR 273 (NC), Hon'ble National Commission has observed thus :-
"11.................. This is settled Law that the report of the surveyor is to be given much more weightage than any other piece of evidence. See the Law laid down in United India Insurance Co. Ltd. & Others Versus Roshan Lal Oil Mills Ltd. & Ors. (2000) 10 Supreme Court Cases 19 & in D.N. Badoni Vs. Oriental Insurance Co. Ltd. I (2012) C.P.J. 272 (NC)".
22. In The Oriental Insurance Co. Ltd., Through its Regional Manager vs. Ishwar Singh, 2015 (1) CPR 157 (NC), Hon'ble National Commission has observed thus :-
"17. Counsel for the petitioner has also drawn our attention to the Apex Court Judgment in the case Sri Venkateswara Syndicate vs. Oriental Insurance Company Ltd., and Another, (2009) 8 Supreme Court Cases 507 wherein the Apex Court has held as under :-
"There is no disputing the fact that the surveyor/surveyors are appointed by the insurance company under the provisions of the Insurance Act and their reports are to be given due importance and one should have sufficient grounds not to agree with the assessment made by them".
23. In Shankarlal Virji Thakkar vs. United India Insurance Co. Ltd. 2015 (1) CPR 821 (NC), Hon'ble National Commission has observed thus :-
"7. The report of the Surveyor appears to be quite reasonable and just. There is no evidence whatsoever to 501 affected bags + other bags which were // 22 // not counted. Thos bags must have fetched some amount. There is no reason to discard the report of the Surveyor. It is a balanced report. It has considered all the factors. It is well settled that the report of the Surveyor has to be given due weightage in view of the celebrated authorities of the Hon'ble Apex Court in United India Insurance Co. Ltd. & Others Versus Roshan Lal Oil Mills Ltd. & Ors. (2000) 10 Supreme Court Cases 19, para 7, D.N. Badoni Vs. Oriental Insurance Co. Ltd. I (2012) CPJ 272 (NC).
24. In New India Assurance Company Ltd. vs. Balaji Emporium, I (2015) CPJ 588 (NC), Hon'ble National Commission has observed thus :-
"9. We are of the considered view that the report made by the Surveyor appears to be correct. It is bolstered by sold and unflappable evidence. He has also considered the income tax reports and entries in the stock registered. The conclusion of the State Commission is vague, evasive and leads us nowhere."
25. In Iffco Toko General Insurance Company Limited Vs. Beena Raghav, III (2015) CPJ 75 (NC); Hon'ble National Commission has observed that "respondent failed to explain her reluctance and refused to get the car repaired and thereafter claiming cost incurred based on actual bills for repair. No cogent reason for dismissing survey report as untrustworthy. Total loss not established."
26. In M/s. Hinafil India Limited vs. United India Insurance Company Limited & Another, 2015 (3) CPR 35 (NC), Hon'ble // 23 // National Commission, has observed that "Surveyor being a third person, report submitted by him is entitled to a great weight and should ordinarily be accepted."
27. We have perused the report of the Surveyor.
28. In Survey Report, the Surveyor mentioned that the total number of bags observed in the mill at the time of our inspection, was 57,750 bags of Paddy and approximately 8311 Quintal rice. In his report, the Surveyor has also mentioned that "We have also verified from the records and also on physical inspection, that there was a stock of approx. 8000 qtl. (20000 bags) in the shed at the time of occurrence of storm. Due to this storm and rain water which got entered on account of uprooting of the sheets, approx 3500 bags got damaged by water. Each bag contains 40 kg. of paddy hence the total quantity affected of the paddy bags is 1400 quintal." The Surveyor also mentioned that the sound value of Dhan (Paddy) is Rs.1500/- per quintal. Cost of 1400 qtls. assessed @ Rs.1500/- per quintal to the tune of Rs.21,00,000/-.
29. The Surveyor assessed total loss to the tune of Rs.35,49,000/- and deducted Salvage Value to the tune of Rs.19,77,500/-. The Surveyor assessed Net Loss to the tune of Rs.15,71,500/-. Thereafter applying under insurance, the loss is calculated as under :-
// 24 // Summary of Loss :
Particulars. Sum Gross Less For Less for Net Loss Insured Loss Salvage Under Assessed Insurance Building 3700000 222410 12000 93079 117331 Stock 2000000 3549000 1977500 1512772 58728 Total 3771410 1989500 1605851 176059 Less : For Policy 10000 Excess Clause Net Adjusted Loss 166059 Payable
30. Now, we shall consider, whether, the insurance complainant obtained by the complainant is under insurance ?
31. In Sikka Papers Limited Vs. National Insurance Company Limited, & Others, 2010 NCJ 9 (SC), Hon'ble Supreme Court has that observed that "if the sum assured is less than amount required to be insured than insurer will pay in such proportion as sum insured bears to amount insured." In the instant case, the value of the insured goods was declared by the complainant and the employees of the O.P. No.1 after inspection and verification, accepted the value of the insured articles kept in premises of the complainant and thereafter the insurance policy was issued by the O.P. No.1 in favour of the complainant, therefore, it cannot be presumed that the insurance policy obtained by the complainant, is under insurance, therefore, the deductions made by the Surveyor under the head "under insurance" is not acceptable.
// 25 //
32. Initially, the loss was assessed by the Surveyor to the tune of Rs.35,49,000/- and salvage value to the tune of Rs.19,77,500/- was deducted and net loss assessed to the tune of Rs.15,71,500/-. Therefore, the further deduction made by the Surveyor for under insurance is not acceptable, hence the complainant is entitled to get compensation to the tune of Rs.15,71,500/-.
33. The complainant is not entitled for getting amount as prayed by him in the complaint. He is only entitled for getting Rs.15,71,500/-.
34. The complainant prayed for granting interest @ 18% p.a., which is on higher side. Looking to the facts and circumstances of the case, the complainant is entitled for getting interest @ 9% p.a. from the filing of the complaint i.e. 02.11.2015 till realisation on Rs.15,71,500/-. The complainant has also prayed for granting Rs.5,00,000/- towards compensation for mental agony and harassment suffered by the complainant and a sum of Rs.5,00,000/- for deficiency in service and unfair trade practice as well as Rs.50,000/- towards cost of litigation and advocate fees.
35. In our view, the complainant is not entitled for getting compensation towards mental agony and compensation towards deficiency in service and unfair trade practice, therefore, his prayer for granting compensation for mental agony and compensation for deficiency in service and unfair trade practice, are turned down. The // 26 // complainant is entitled to get a sum of Rs.10,000/- (Rupees Ten Thousand) towards cost of litigation and advocate fees.
36. The complainant is entitled to get above amount from the O.P.No.1 Cholamandalam M.S. General Insurance Company Limited. The O.P.No.2 Central Bank of India, has not committed any deficiency in service, hence the complainant is not entitled to get any compensation from the O.P.No.2.
37. Therefore, we partly allow the complaint and it is directed that the O.P.No.1 will pay a sum of Rs.15,71,500/- (Rupees Fifteen Lakhs Seventy One Thousand and Five Hundred) to the complainant along with interest @ 9% p.a. from the date of filing of the complaint i.e. 02.11.2015 till realisation. The O.P.No.1 will also pay a sum of Rs.10,000/- (Rupees Ten Thousand) to the complainant towards cost of litigation and advocate fees.
(Justice R.S. Sharma) (Ms. Heena Thakkar) (D.K. Poddar) (Narendra Gupta) President Member Member Member 07 /07/2016 07 /07/2016 07 /07/2016 07 /07/2016