State Consumer Disputes Redressal Commission
Himalaya Hydro Private Limited, ... vs United India Insurance Co. Ltd. on 3 April, 2014
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, UTTARAKHAND, DEHRADUN
CONSUMER COMPLAINT NO. 03 / 2011
Himalaya Hydro Private Limited
Hydro Power Project Motighat
District Pithoragarh
Through its General Manager - Sh. A.K. Pathak
.......Complainant
Versus
United India Insurance Co. Ltd.
Bank Road, Pithoragarh
Through its Divisional Manager
......Opposite Party
Ms. Anupama Gautam, Learned Counsel for the Complainant
Mr. J.K. Jain, Learned Counsel for the Opposite Party
Coram: Hon'ble Mr. Justice B.C. Kandpal, President
Mr. C.C. Pant, Member
Dated: 03/04/2014
ORDER
(Per: Mr. C.C. Pant, Member):
M/s Himalaya Hydro Private Limited, Hydro Power Project Motighat, District Pithoragarh has filed this consumer complaint through its General Manager-Sh. A.K. Pathak (hereinafter referred as "complainant" or "company") under Section 12 read with Section 18 of the Consumer Protection Act, 1986 against the United India Insurance Company Ltd., Bank Road, Pithoragarh (hereinafter referred as "opposite party" or "insurance company"), alleging deficiency made by the opposite party by not indemnifying the actual loss suffered by the company.
2. The facts of the case, as stated in the consumer complaint, are that the complainant is a company duly incorporated under the Companies Registration Act and takes up works related to Hydro Power Projects. The company has 2 taken one such work at Motighat, Village Sheraghat, P.O. Sheraghat, Tehsil Munsyari, District Pithoragarh. Since the site of the project was not free from accidents, the company took a Storage-cum-Erection Insurance Policy from United India Insurance Co. Ltd. bearing policy No. 080903/44/08/04, Endorsement No. 080903/44/10/83000002 valid for the period from 14.07.2010 to 14.10.2010 covering a risk of Rs. 18,15,61,000/- and paid a premium of Rs. 3,94,516/-. The complainant has stated in its consumer complaint that the project suffered severe accidental damages on 28.07.2010 due to heavy rain. The complainant has narrated the details of damages as follows:-
a. RCC damage to the tune of Rs. 9,56,097/- b. PCC damage to the tune of Rs. 1,75,810/- c. RR Wall (1.6) damage to the tune of Rs. 4,45,620/- d. Dry Wall damage to the tune of Rs. 14,624/- e. Reinforcement damage to the tune of Rs. 7,36,073/- f. Bolder Filling damage to the tune of Rs. 1,07,936.73 g. Boulder Collection for aggregate damage to the tune of Rs. 4,00,000/-
h. Aggregate 20mm damage to the tune of Rs. 15,00,000/- i. Block Masonary damage to the tune of Rs. 45,237.50 j. Plater (1.6) damage to the tune of Rs. 20,460/- k. Steel for HR Pipe Line & Penstock damage to the tune of Rs. 25,70,391/-
Total: Rs. 69,72,250/-
3. A timely intimation with regard to above damages was given by the company to the opposite party and the opposite party appointed the Surveyor.
The complainant has alleged that the Surveyor malafidely brought down the actual loss of Rs. 69,72,250/- to Rs. 14,20,896/-. It has also been stated by the complainant that the Surveyor had sought company's consent for an assessed loss of Rs. 38,72,819/-, but he malafidely brought it down to Rs. 14,20,896/-.
3Accordingly, the Insurance Company sent a letter to the complainant, which was received on 11.03.2011, asking it to receive a sum of Rs. 14,18,698/-. The complainant lodged a protest against the said letter vide its letter dated 25.03.2011, but the opposite party did not reply the same. Thus, the complainant has alleged that the opposite party has committed deficiency in service by offering an amount which much less than the actual loss and insufficient to indemnify the complainant. Hence, through this consumer complaint, the complainant has sought the following reliefs:-
(i) That the respondent be directed to make good the amount of Rs. 69,72,250/- i.e. the loss and damage suffered by the complainant.
(ii) That the respondent be directed to pay Rs. 20,00,000/- on account of damages for the deficiency committed by the respondent which has caused mental pain and agony and deprivation to the complainant.
(iii) Rs. 2,00,000/- towards the cost incurred for seeking legal advice and other litigation expenses.
(iv) Full cost of the complainant.
(v) Any other relief to which the complainant is found entitled may also be granted to the complainant.
4. In support of the allegations made against the opposite party, the complainant has filed the affidavit of Sh. A.K. Pathak, General Manager of the company, copies of the insurance policies, copies of the premium paid to the opposite party, Surveyor's report and copies of the correspondence between the parties as stated in the consumer complaint.
5. The insurance company has filed its written statement, which are at Paper Nos. 50 to 56 and has pleaded that the insurance company has not committed any deficiency in service, because it had offered compensation to the company according to the survey report. The insurance company has also 4 pleaded that the dispute pertains to quantum of compensation and, therefore, this Commission has no jurisdiction to adjudicate the dispute between the parties. The complainant may move to Civil Court or approach IRDA or arbitration. The opposite party has also stated that the complainant has failed to show the basis of valuation of the consumer complaint at Rs. 91,72,250/-. It has also been pleaded that the complainant is a Company and the cause for which the complainant has availed the services of the opposite party, is commercial and hence the complainant is not a consumer, as defined in Consumer Protection Act, 1986.
6. In rebuttal, the complainant has filed the affidavit of Sh. Inder Dev Pathak, Assistant Manager of the company.
7. The opposite party has filed an affidavit of Sh. Loveleen Awasthi, Manager and has filed a copy of the insurance policy, photocopy of the settlement intimation voucher & cheque dated 16.12.2010 and copy of Surveyor's report in support thereof.
8. The parties have also submitted their written arguments and we also heard oral arguments placed by the learned counsel for the parties and perused the record.
9. The basic plea taken by the opposite party that the complainant is a company and cause for hiring the services of the opposite party is commercial and hence the consumer complaint is not maintainable under the provisions of Consumer Protection Act, 1986, is not tenable, because the insurance policy has not been taken for the commercial purpose. The activity of the complainant may be commercial, but insurance policy is not for the commercial purpose and the same has been taken for indemnification of loss. Similarly, the plea that this Commission has no jurisdiction to adjudicate the present dispute is also not tenable, because if the insurance company offers an inadequate compensation, then it is also deficiency in service on their part.
5However, in such cases the burden lies on the complainant to prove that the compensation is inadequate. In the instant case, the complainant has narrated in its consumer complaint that it suffered a loss of Rs. 69,72,250/-, but the complainant has failed to adduce any documentary evidence in support of its claim. In the case of M/s Gobind Pharma Chem Pvt. Ltd. & Ors. vs. National Insurance Co. Ltd. & Ors.; (2012) 4 CPR (NC) 662, the Hon'ble National Commission has observed that the very basis on which the amounts have been worked out, cannot be taken on its face value. Per contra, the Surveyor has made detailed calculations for the assessment of loss. The complainant has failed to point out, as to where the fallacy lies in these calculations. In the case of Ankur Surana vs. United India Insurance Co. Ltd. & Ors.; (2013) 1 CPR (NC) 233, the Hon'ble National Commission has observed that the report of Surveyor appointed by insurance company is an important document and same should not be rejected by Fora unless cogent reasons have been recorded for doing so. The Hon'ble National Commission has also made similar view in the following decisions:-
(i) Khimjibhai & Sons vs. New India Assurance Co. Ltd.; IV (2011) CPJ 458 (NC)
(ii) National Insurance Co. Ltd. vs. M/s Jyothi Tobacco Traders; (2012) 4 CPR (NC) 48
10. The Orissa State Consumer Dispute Redressal Commission, in the case of National Insurance Co. Ltd. & Anr. vs. Gouri Shankar Agarwalla & Ors.; (2010) 1 CPR 57, has made a view that in case of quantum dispute, Surveyor's report should be given due weightage unless and until anything contrary is brought on record to show that the Surveyor's report is palpably wrong. We are also of the same view and in the instant case since the complainant has failed to point out any fallacy in the calculations made by the Surveyor for the assessment of loss, we have no option but to accept it. So far as deduction of Rs. 15.00 lacs is concerned, it is very clearly printed on the policy under the head "EXCESS" that-
6"3. For AOG claims as per Memo 6: 10% of the claim amount subject to a minimum of Rs. 15,00,000/- each claim"
11. The photocopy of the policy has been submitted by the complainant itself, which is at Paper No. 9. So the complainant cannot say that the opposite party had not shown this clause to it and it was not in its knowledge that a deduction of Rs. 15.00 lacs can be made in the cases of AOG claims. The word "AOG" or "Act of God" is generally referred to such acts of Nature, which cause disaster or which is ruinous. If rain was so heavy or torrential that it caused damage to the complainant's project to the tune of about Rs. 69.00 lacs, as claimed by the complainant, then it may be termed as an "Act of God" and the insurance company was justified to make a deduction of Rs. 15.00 lacs under the EXCESS clause. Therefore, after an appreciation of all the facts and circumstances of this case, we are of the view that the loss assessed by the Surveyor, is just and proper. Since, the Surveyor had assess the loss to the tune of Rs. 14,20,896/-, there was no justification on the part of the insurance company to offer a sum of Rs. 14,18,698/- to the complainant in full & final settlement of its claim vide cheque dated 16.12.2010 of the said amount, copy whereof is paper No. 76. Hence, the complainant is entitled to sum of Rs. 14,20,896/-. It is true that the insurance company has offered a sum of Rs. 14,18,698/- to the complainant vide above mentioned cheque, although, thus, there was no justification for offering the said amount and making deduction from the amount of loss of Rs. 14,20,896/- assessed by the Surveyor, which the complainant refused to accept, but since the insurance company was ready to pay the said amount and hence the insurance company ought to have deposited the said amount before the Commission on receipt of the notice of the consumer complaint or at the time of filing their written statement in the matter. As such, this is also a deficiency in service on the part of insurance company and hence the complainant is entitled to interest on Rs. 14,20,896/- @ 7% per annum from 16.12.2010 till payment.
712. For the aforesaid reasons, the consumer complaint is partly allowed and the insurance company is directed to pay to the complainant a sum of Rs. 14,20,896/- together with interest @ 7% per annum from 16.12.2010 till payment. No order as to costs.
(C.C. PANT) (JUSTICE B.C. KANDPAL)