State Consumer Disputes Redressal Commission
:The New India Assurance Company ... vs Fa.999 Of 2011:.K.Jaipal Reddy, ... on 11 October, 2013
BEFORE THE A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION : HYDERABAD F.A.No.999/2011 against C.C.No.33/2008, District Forum, Khammam. Between: The New India Assurance Company Limited, Rep. by its Divisional Manager, Old No.114, New No.204, Kutchery Road, Mylapore, Chennai 4. Appellant/ Opp.party no.1 And 1.K.Jaipal Reddy, S/o.Yadav Reddy, H.No.4-123, Jannmabhoomi Nagar, Post Mancherial, Adilabad District, Andhra Pradesh- Pin 504 208 Respondent/ Complainant 2. Divisional Forest Officer (DFO), Kothagudem, Khammam District. Respondent/ Opp. Party no.2 Counsel for the Appellant : Mr.Katta Laxmi Prasad. Counsel for the respondent : M/s.P.Gopal Das-R1. G.P. for State-R2 F.A.No.1000/2011 against C.C.No.34/2008, District Forum, Khammam. Between: The New India Assurance Company Limited, Rep. by its Divisional Manager, Old No.114, New No.204, Kutchery Road, Mylapore, Chennai 4. Appellant/ Opp.party no.1 And 1. B.Ramesh Reddy, S/o.Raja Reddy, H.No.4-123, Jannmabhoomi Nagar, Post Mancherial, Adilabad District, Andhra Pradesh Pin 504 208 Respondent/ Complainant 2. Divisional Forest Officer (DFO), Kothagudem, Khammam District. Respondent/ Opp. Party no.2 Counsel for the Appellant : Mr.Katta Laxmi Prasad. Counsel for the respondent : M/s.P.Gopal Das-R1. G.P.for State-R2 F.A.No.1004/2011 against C.C.No.32/2008, District Forum, Khammam. Between: The New India Assurance Company Limited, Rep. by its Divisional Manager, Old No.114, New No.204, Kutchery Road, Mylapore, Chennai 4. Appellant/ Opp.party no.1 And 1.C.V.Ram , S/oNarayana Reddy, H.No.4-123, Jannmabhoomi Nagar, Post Mancherial, Adilabad District, Andhra Pradesh Pin 504 208 Respondent/ Complainant 2. Divisional Forest Officer (DFO), Kothagudem, Khammam District. Respondent/ Opp. Party no.2 Counsel for the Appellant : Mr.Katta Laxmi Prasad. Counsel for the respondent : M/s.P.Gopal Das-R1. G.P.for state-R2 QUORUM: SMT. M.SHREESHA, HONBLE INCHARGE PRESIDENT, AND SRI S.BHUJANGA RAO, HONBLE MEMBER.
FRIDAY, THE ELEVENTH DAY OF OCTOBER, TWO THOUSAND THIRTEEN.
Oral Common Order:(Per Sri S.Bhujanga Rao, Honble Member) *** All these three appeals are filed by the New India Assurance Company Ltd. , the 1st opposite party in C.C.Nos.32/2008 , 33/2008 and 34/2008, against the orders dt.15.07.2011 of the District Consumer Forum, Khammam made in the said three complaints filed by the 1st respondents herein in all the three appeals, claiming damages based on the policies issued by the appellant herein, in their favour.
All the complaints are similar in nature and the complainant in each complaint sought similar reliefs in all the three C.Cs. on similar grounds. The appellant and the 2nd respondent in all the three appeals are one and the same and all the appeals are filed on similar grounds. Under these circumstances, all the three appeals are heard together and are being disposed of by this common order.
The common case of all the complainants as set out in their respective complaints is as follows:
The complainant (C.V.Ram) in C.C.No.32/2008 purchased Beedi Leaves from opposite party no.2 Corporation by executing agreement on 12.3.2005 with regard to the Unit No.21 , Burgampad of 2005 season. The complainant (K.Jaipal Reddy) in C.C.No.33/2008 purchased Beedi Leaves from opposite party no.2 Corporation by executing agreement on 11.3.2005 with regard to the Unit No.30, Ramavaram of 2005 season. The complainant (B.Ramesh Reddy ) in C.C.No.34/2008 purchased Beedi Leaves from opposite party no.2 Corporation by executing agreement on 11.3.2005 with regard to the Unit No.15, Chintur of 2005 season. The opposite party no.2 has taken insurance policies covering the Beedi leaves procured and kept in open Khallas for curing purpose and also for drying purposes against the risks of fire, ACT, Storm, Tempest, flood and inundation (STFI) perils with the opposite party no.1 in favour of all the three complainants under policy nos.712600/11/05/00089, 712600/11/05/00091 & 712600/11/05/00085 respectively, for the period from 2.5.2005 to midnight of 1.6.2005, by paying premiums .
The further common case of the complainants is that due to Alpapeedana Dhroni in Bay of Bengal, heavy wind rain and gale weather, the Beedi Leaves stored in open khallas, pertaining to the Unit No.21- Burgampad, Unit No.30-Ramavaram and Unit No.15-Chintur were damaged. Immediately the complainants informed the loss to the opposite party no.1 on 06.05.2006 through telegram, to the opposite party no.1, on that, the opposite party no.1 deputed a surveyor by name Sri Venkatachalam, Bhatwadekar & Co. for inspection and assessment of loss . The said surveyor has written to the complainants to submit various documents and accordingly all the three complainants submitted all the required documents to the surveyor.
Despite several requests, made to the opposite party no.1 orally and in writing by the complainants, the opposite party no.1 has not settled their claims, which amounts to deficiency in service. Atlast, on 3.10.2006, the opposite party no.1 sent separate letters to the complainants repudiating their claims, on the ground that the Beedi leaves damaged due to rain peril are not covered under the policy and that operation peril started before the commencement of the policy. The complainants have paid their respective charges, along with insurance coverage to the opposite party no.2 under whose custody , the property was at risk. The entire units mentioned above were damaged and their values are Rs.10 lakhs , Rs.9 lakhs and Rs.10 lakhs respectively. The complainants incurred heavy loss due to Dhroni in Bay of Bengal, heavy wind rain and gale weather. At the time of taking the policies, there was no rain at all. The complainants claimed the above said amounts towards damages of their respective units and compensation of Rs.2 lakhs each towards mental agony and Rs.30,000/- each towards costs of the litigation. Hence the complaints.
The appellant/opposite party no.1 resisted all the three complaints admitting that the complainants informed the loss through telegrams on 06.5.2005, to this opposite party no.1, that due to the Dhroni, in Bay of Bengal, heavy wind rain and gale weather occurred and Beedi Leaves were damaged in their respective units. This opposite party contended that on receipt of the intimation, from the complainants, they appointed a surveyor, who inspected the units, to assess the damage and submitted reports on 31.7.2006. The surveyor observed that the rain continued till 04.05.2005, whereas the complainants claimed loss, in respect of collection of Beedi Leaves from 29.04.2005 to 06.5.2005 and the insurance policies were valid from 02.05.2005.
This opposite party further contended that the claims of the complainants are pertaining to 19 khallas each and their insurance policies cover only 5 khallas. Before the commencement of the insurance policies, the rain has started on 29.04.2005, therefore the damage is only due to rain and not on account of peril. At the time of taking policy, there was rain at the places of complainants units. Therefore, after rain started on 29.4.2005, the complainants approached to obtain policies from opposite party no.1 by taking undue advantage that the office of opposite party no.1 is at Chennai. The complainants have suppressed the material facts, non disclosure of material fact and withholding of information renders insurance contract voidable. Therefore, the opposite party no.1 has rightly repudiated the claims. In the light of these material grounds, there is no deficiency in service and there is no unfair trade practice, on the part of the opposite party no.1. In the light of afore said reasons, the complaints are liable to be dismissed.
During the course of enquiry, before the District Forum, in order to prove their respective cases, the complainant in C.C.No.32/2008 filed Exs.A1 to A18, the complainant in C.C.No.33/2008 filed Exs.A1 to A17 and the complainant in C.C.No.34/2008 filed Exs.A1 to A17.
However, they did not file their respective evidence affidavits. On behalf of the opposite parties only one document i.e. Ex.B1 Surveyors report is filed in all the three complaints. They did not file evidence affidavits in support of their case.
Upon hearing the counsel for both the parties and on consideration of the material on record, the District Forum allowed the complaints in C.C.No.32/2008, C.C.No.33/2008 and C.C.No.34/2008, in part, directing the opposite party no.1 to pay an amount of Rs.10 lakhs, Rs.9 lakhs and Rs.10 lakhs respectively, to the complainants, covered under their respective policies, together with interest at 9% p.a. from the date of repudiation i.e. 03.10.2006 till the date of deposit. The opposite party no.1 in all the complaints was further directed to pay an amount of Rs.5000/- in each complaint towards the costs of the litigation. The claim against opposite party no.2, in all the three complaints, is dismissed as it is a formal party to the proceedings.
Aggrieved by the said orders of the District Forum made in three complaints, the opposite party no.1 in all the complaints preferred the above three appeals, questioning the legality and validity of the order on various grounds, mentioned in the appeal grounds of the appeals.
We heard the counsel for both the parties and have gone through the entire material placed on record, including the written arguments submitted by both the parties.
Now the point of consideration is whether the impugned orders of the District Forum made in C.C.No.32/2008, C.C.No.33/2008 & C.C.No.34/2008 are vitiated for misappreciation of fact or law?
The undisputed facts are :
One C.V.Ram, the complainant in C.C.No.32/2008 entered into an agreement, with opposite party no.2, the Divisional Forest Officer, on 12.03.2005 for purchase of Beedi Leaves under unit no.21, Borgampad of 2005 vide Ex.A6 agreement. The opposite party no.2 has taken insurance policy bearing no.712600/11/05/00089 vide Ex.A2, in the account of complainant, covering the Beedi Leaves procured and kept in open Khallas, for curing purpose and also drying purpose against the risks of Fire, ACT., Storm, Tempest, Flood, Inundation (STFI), Perils with the opposite party no.1 insurance company for the period from 02.05.2005 to midnight of 01.6.2005, for the unit no.21.
One Sri Jaipal Reddy, the complainant in C.C.No.33/2008 entered into an agreement, with opposite party no.2, the Divisional Forest Officer on 11.03.2005 for purchase of Beedi Leaves under unit no.30 , Ramavaram of 2005 vide Ex.A5 agreement. The opposite party no.2 has taken insurance policy bearing no.712600/11/05/00091 vide Ex.A2, in the account of complainant, covering the Beedi Leaves procured and kept in open Khallas, for curing purpose and also drying purpose against the risks of fire, ACT., Storm, Tempest, Flood and Inundation(STFI) Perils, with the opposite party no.1 insurance company for the period from 02.05.2005 to midnight of 01.6.2005, for the unit no.30 at Ramavaram.
One Sri B.Ramesh Reddy, the complainant in C.C.No.34/2008 entered into an agreement, with opposite party no.2, the Divisional Forest Officer on 11.03.2005 for purchase of Beedi Leaves under unit no.15 , Chintoor of 2005 vide Ex.A6 agreement. The opposite party no.2 has taken insurance policy bearing no.712600/11/05/00085 vide Ex.A2, in the account of complainant, covering the Beedi Leaves procured and kept in open Khallas, for curing purpose and also drying purpose against the risks of fire, ACT., Storm, Tempest, Flood and Inundation(STFI) Perils, with the opposite party no.1 insurance company for the period from 02.05.2005 to midnight of 01.6.2005, for the unit no.15 at Chintoor.
After taking the policies, the Beedi Leaves were stored by the complainants in their respective open Khallas, at the places mentioned above. It is the case of the complainants that due to heavy wind rain, gale weather, the beedi leaves were damaged. Immediately, the complainants have informed the loss, through individual telegrams vide Ex.A1 in all the three complaints, on 06.05.2005 to opposite party no.1 insurance company, that due to the Alpapeedana Dhroni in Bay of Bengal, heavy wind rain, gale weather occurred since last two days , the said Beedi Leaves damaged in the unit Nos. 21, 30, and 15 respectively. The opposite party no.1 insurance company admitted that they have received the original telegrams of Ex.A1 from the complainants, and on receipt of those telegrams, a surveyor was appointed by them and the surveyor inspected the places and assessed the loss. These facts are also not in dispute.
The claims of the complainants are repudiated by the opposite party vide letter dt.3.10.2006 which is marked as Ex.A4 in C.C.No. 34 and as Ex.A16 in C.C.No.32/2008 addressed by the opp.parties to the complainants , on account of the following reasons:
Beedi Leaves damaged due to rain peril is not covered under the policy. Operating peril has started before the commencement of the policy policy.
It is necessary to refer to the relevant Clause no.6 of the terms and conditions of the policy , which reads as under:
VI.STROM, CYCLONE, TYPHOON, TEMPEST, HURRICANE, TORNADO, FLOOD AND INUNDATION:
Loss, destruction, or damage directly caused by Storm, Cyclone, Typhoon, Tempest, Hurricane, Tornado, Flood or Inundation, excluding those resulting from earthquake, volcanic eruption or other convulsions of nature(wherever earthquake cover is given as an add on cover the words excluding those resulting from earthquake, volcanic eruption or other convulsions of nature shall stand deleted.
In the light of the above clause of the policy, the question for determination is whether the Beedi Leaves were damaged due to heavy wind rain and gale weather on account of Alpapeedana Dhroni in Bay of Bengal, as contended by the complainants or due to only rain as contended by the opposite party. It is an undisputed fact that soonafter the damage of the Beedi Leaves, the complainants informed the loss to the opposite party insurance company, through individual telegrams dt. 06.05.2005 that due to Alpapeedana Dhroni in Bay of Bengal heavy wind gale weather since last two days, Beedi Leaves damaged in Unit no.21 Burgampadu, Unit No.30 of Ramavaram and Unit No.15 of Chintoor. The copies of the telegrams dt.06.05.2005 are marked as Ex.A1 in all the three complaints. The opposite party admitted to have received the originals of Exs.A1 telegrams sent by the complainants. In all the three telegrams, the complainants have categorically stated that the Beedi Leaves were damaged due to heavy wind rain gale weather since last two days due to Alpapeedana Dhroni in Bay of Bengal from 04.05.2005 to 06.05.2005. The opposite party did not dispute the contents of all the three telegrams.
Further, the complainants filed the certificates given by the Thasildars concerned, to prove that the Beedi Leaves units were washed away, due to Bay of Bengal cyclone gale, storms and following cyclone rains, occurred w.e.f. 4.5.2005 to 6.5.2005, in the entire mandals of Khammam District. In C.C.No.32/2008, the complainant filed Ex.A12 the certificate issued by Thasildar, Chintoor. In C.C.No.33/2008 the complainant filed Exs.A14 to A16 certificates issued by the Thasildars of Aswapuram, Chintur , Vararamachandrapuram. In C.C.No.34/2008 the complainant filed Exs.A13 to A15 certificates issued by the Thasildars, Vararamachandrapuram, Aswapuram and Chintur respectively.
All these certificates are issued by Government officials. There is no reason as to why these certificates should not be believed. These certificates support the case of the complainants that there were rains in Khammam District, due to cyclone, in Bay of Bengal w.e.f. 04.05.2005 to 06.05.2005.
In support of its contention, the opposite party insurance company filed Ex.B1, the copy of the surveyors report. According to the surveyor, the cause of loss/damage to the leaves is due to exposure to water continuously. As the leaves are in open/continuous rain is the cause of the exposure to water. Hence, it appears that the cause of loss is due to rains. From Ex.B1, it is evident that the Beedi Leaves at most of the khallas were damaged, due to rains.
The Honble Supreme Court in New India Assurance Co.Ltd. vs. Pradeep Kumar reported in (2009) 7 Supreme Court Cases 787 held although assessment of loss by approved surveyor is a pre-requisite for payment or settlement of claim of Rs.20,000/- or more by insurer, yet surveyors report is not the last and final word. It is not that sacrosanct that it cannot be departed from; it is not conclusive. The approved surveyors report may be basis or foundation for settlement of the claim by the insurer in respect of loss suffered by insured but such report is neither binding upon the insurer nor insured . The surveyor, nowhere in Ex.B1, has stated that the rains were not due to cyclone in Bay of Bengal. He did not deny the contents of the telegrams Ex.A1. Therefore, we are unable to accept the submission, based on Ex.B1, of the learned counsel for the appellant that there was only rain and no peril as covered under the policy issued .
In view of the above facts and circumstances, the complainants in all three cases have established that the damage to Beedi Leaves at the subject khallas was due to Alpapeedana Dhroni in Bay of Bengal, heavy wind rain and gale weather and not due to only rains. Therefore, we are of the view that the claims of the complainants fall within the purview of the policies .
The learned counsel for the respondents submitted that Ex.A12 certificate does not certify the loss to the insured product, that as per Ex.A12 certificate, the alleged damage is not in respect of the insured or covered locations and Ex.A12 certificate of the Thasildar, Chintoor does not cover the risk under the policy as the certificate deals only with areas not covered by the policy and it is issued only in respect of the units in 1) Chintur, 2) Lakkavaram and 3) Kunduluru units from village of Chintur mandal and not in respect of the units covered under the policy schedule i.e. Circle as Khammam; Division as Paloncha; Range as Aswapuram;
Unit no.21 and the name of the Unit Burgampad.
It is true that as per the schedule to Ex.A1 policy , only five khallas in the unit no.21 of Burgampad are covered under Ex.B1, whereas the certificate Ex.A12 is issued by the Thasildar in respect of the units in Chintur, Lakkavaram and Kunduluru Units from village of Chintur mandal. On that ground, the complainants claim in C.C.No.32/2008 cannot be rejected for the reason that on receipt of Ex.A1 telegram from the complainant in C.C.No.32/2008, the surveyor was appointed to assess the loss of Beedi Leaves at Khallas in Unit no.21, Burgampad. As seen from Ex.B1, surveyors report, the surveyor visited and inspected the khallas in Unit No.21, Burgampad and found the Beedi Leaves placed at the Khallas were damaged and the assessment of the loss is restricted to five khallas, as the policy covers only five locations (khallas), though the claim of the complainant insured pertains to 19 khallas .
As seen from the impugned order of the District Forum, Ex.B1 is filed by the respondent after the case undergone several adjournments for hearing the arguments of the opposite party, after availing several opportunities given by the District Forum. It is the case of the complainants that the copy of the surveyors report was not furnished to them, even after it is filed in the case. The opposite party insurance company did not place any evidence on record to show that the copy of Ex.B1 was furnished to the complainants. Therefore, there is no occasion for the complainants to file their objections to Ex.B1 report. The opposite party therefore cannot repudiate the claim on their own, without furnishing the survey report to the complainants. Under these circumstances, the point of limitation raised by the learned counsel for the appellant/opposite party does not arise.
The next ground on which the policy was repudiated by the opposite party insurance company is that the rain as per the reports had started on 29.04.2005 and lasted till 04.05.2005. The policy commences only from 02.05.2005. Thus the rain had started before commencement of the policy. As such , the claim does not fall within the purview of the policy.
Ex.A2, the copy of the policy, does not disclose the date on which the opposite party no.2 approached the opposite party no.1 for obtaining the policies, in favour of the complainants. Date of issue of Ex.A2 policy is not mentioned in Ex.A2. The policy period is from 02.05.2005 to 01.06.2005. However, it is not possible for the claimant, to go to Chennai and obtain policy for the period from 02.05.2005 to 01.06.2005 after rains started on 29.04.2005. It is not the complainant, who obtained the policy, it is opposite party no.2 who obtained the policy on the account of the complainants by virtue of agreement Ex.A5. In order to obtain policy, opposite party no.2 the forest official has to address a letter to opposite party no.1 and after completion of all formalities, opposite party no.1 to issue policy. Such a process cannot be completed within four days. That apart, we do not find any reason for public official like opposite party no.2, to act hastily in such a manner, beneficial to the complainants. Except Ex.B1 report which is not proved by the opposite party, the opposite party has not placed any evidence on record to show that the rains at the subject khallas started even prior to 02.05.2005. Basing on Ex.B1 report, it cannot be said that the rains were commenced from 29.04.2005 at subject khallas, without any supporting evidence. Under these circumstances, we are not inclined to accept the contention of the opposite parties that the rains started on 29.4.2005 and lasted till 04.05.2005.
For all the afore said facts, the opposite party is not justified in repudiating the claims of the complainants basing on Ex.B1 on the ground that the claims do not fall within the purview of the policy. Therefore, we are of the view that there is deficiency in service on the part of the opposite party insurance company in repudiating the claims of the complainants.
The complainants have not placed any cogent evidence on record, in support of their respective claims . The District Forum has not given any reasons, for awarding such huge amounts, in favour of the complainants. The complainants have not placed any evidence in proof of the value of the damage caused to the Beedi Leaves at their respective khallas. In the absence of such evidence, we have no option, except to rely on the assessment of damages made by the surveyor in his Ex.B1 report. Basing on the assessments of damage given in Ex.B1 report, we are inclined to award a sum of Rs.5 lakhs to the complainant in C.C.No.32/2008, Rs.4 lakhs to the complainant in C.C.No.33/2008 and Rs.4,25,000/- to the complainant in C.C.No.34/2008 with interest at 9% p.a. from the date of Ex.A1 telegram i.e. 06.05.2005 till the date of realization.
In the result, F.A.No.999/2011 is allowed in part. The appellant/opp.party insurance company is directed to pay a sum of Rs.4 lakhs with interest at 9% from 06.05.2005 till the date of realization. The impugned order of the District Forum made in C.C.No.33/2008 is accordingly modified. The rest of the order is confirmed. No order as to costs.
In the result, F.A.No.1000/2011 is allowed in part. The appellant/opp.party insurance company is directed to pay a sum of Rs.4,25,000/- lakhs with interest at 9% from 06.05.2005 till the date of realization. The impugned order of the District Forum made in C.C.No.34/2008 is accordingly modified. The rest of the order is confirmed. No order as to costs In the result, F.A.No.1004/2011 is allowed in part. The appellant/opp.party insurance company is directed to pay a sum of Rs.5 lakhs with interest at 9% from 06.05.2005 till the date of realization. The impugned order of the District Forum made in C.C.No.32/2008 is accordingly modified. The rest of the order is confirmed. No order as to costs INCHARGE PRESIDENT MEMBER Pm* Dt. 11.10.2013