National Consumer Disputes Redressal
Oriental Insurance Co. Ltd. vs Sunil Bansal on 16 August, 2012
OP 10/1998 NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 3355 OF 2006 (From the order dated 07.08.2006 of the Chhattisgarh State Consumer Disputes Redressal Commission, Raipur in First Appeals No. 170 of 2006 and 193 of 2006) Divisional Manager Oriental Insurance company Ltd. Divisional Office, Malviya Nagar Durg, Chhattisgarh Through The Chief Manager Oriental Insurance company Ltd. Head Office, Hansalaya (10th Floor) 15, Barakhamba Road New Delhi - 110001 Petitioner versus Sunil Bansal S/o Satya Prakash Bansal Director, Bajrang Agrotech India Pvt. Ltd. Samoda, Dhamdha Road Durg, Chhattisgarh Respondent BEFORE: HONBLE MR. ANUPAM DASGUPTA PRESIDING MEMBER HONBLE MR. SURESH CHANDRA MEMBER For the Petitioner Mr. Rahul Sharma, Advocate with Ms. Uzma Ashraf, Advocate For the Respondent Mr. B.S. Sharma, Advocate for Mr. Lakhan Lal Sharma, Advocate Pronounced on 16th August 2012 O R D E R
ANUPAM DASGUPTA This revision petition impugns the order dated 07.08.2006 of the Chhattisgarh State Consumer Disputes Redressal Commission, Raipur (in short, the State Commission) in First Appeals No. 170 of 2006 and 193 of 2006. By this order, the State Commission dismissed the appeal filed by the petitioner/insurance company against the order dated 24.04.2006 of the District Consumer Disputes Redressal Forum, Durg (in short, the District Forum) and partly allowed the appeal filed by the respondent/complainant by enhancing the rate of interest (6% per annum) ordered by the District Forum to 9% per annum.
2(i) The undisputed facts are that the respondent had insured his rice milling plant along with stocks and other assets situated at Village Samoda, Dhamdha Road for the period 15.06.2004 to 14.06.2005 under a Standard Fire & Special Perils Policy for the sum of Rs.1.70 crore. On 09.07.2004, one of the 40-ton hoppers full of paddy fell off from its stand causing damage to various adjacent machines. The insured intimated the insurance company (petitioner) on 10.07.2004, whereupon the latter appointed a surveyor who visited the insured premises on the same day.
(ii) The complainant/insured claimed indemnification of the loss of Rs.4,37,623/-. In his report to the petitioner, the surveyor assessed the net loss at Rs.3,41,220/-. However, he observed that the claim was not payable because at the time of his first visit to the insured premises on 10.07.2004, the firms staff informed him that the accident on 09.07.2004 occurred because one of the elevators had got stuck and when the operator tried to reverse and forward it repeatedly to get it released, the resultant vibrations in the elevator and the supporting structures led to the hopper (full of paddy) collapsing with the structure on the adjoining machines. However, in the claim form the complainant/insured stated that the hopper collapsed because of the impact of a reversing truck on a wall of the mill building. The surveyor emphatically reported that the cause of the accident reported subsequently, i.e., impact of a reversing truck on the wall supporting the hopper structure was not true because it was contrary to the information collected by him at the time of his visit on 10.07.2004 to the insured premises immediately after the accident of 09.07.2004. On this basis, the petitioner/insurance company repudiated the insurance claim by its letters dated 14.10.2004 and 26.10.2004.
(iii) On the claim being repudiated, the insured approached the District Forum with a consumer complaint alleging deficiency in service on the part of the insurance company. The insurance company resisted the complaint.
(iv) On appraisal of the pleadings and evidence, the District Forum, however, partly allowed the complaint and directed the OP/insurance company to pay the net assessed loss of Rs.3,41,220/- to the complainant/insured within one month, failing which to also pay interest thereon @6% per annum. In addition, the District Forum directed the OP/insurance company to pay Rs.5,000/- as compensation for mental agony and Rs.500/- towards cost.
(v) As stated above, both the parties filed cross appeals before the State Commission challenging the order of the District Forum and by its impugned order the State Commission partly allowed the appeal filed by the complainant and enhanced the rate of interest from 6% per annum to 9% per annum.
3. We have heard Mr. Rahul Sharma, learned counsel for the petitioner and Mr. B. S. Sharma, Advocate for the respondent/complainant and perused the documents on record.
4(i) The documents produced before the District Forum show that the insured/complainant claimed to have informed the Police Outpost, Jewara Sirsa about the accident by letter dated 10.07.2004. However, two letters, both of 10.07.2004, purporting to be addressed to the Officer-in-charge of the Police Outpost, Jewara Sirsa were produced on record on behalf of the complainant.
(a) One of the letters stated that at 1.30 p.m. as a result of falling of the tank in the mill, various items of machinery got damaged because the tank fell over the machinery.
(b) The other letter, however, stated that at about 12.30 p.m. a truck no. CG 07 ZC 0722 came to the mill for carrying away paddy husk and while reversing, it collided against the wall of the mill because of which the running hopper of the mill fell off on top of various types of machinery. This letter, also signed by the same person who had signed the other letter, added that the accident did not cause any loss of life but only damage to property and they did not wish to register any report nor initiate any legal action against the truck owner.
(ii) It is in this context that the insurance company has sought to rely on the reply dated 16.06.2006 of the office of the Senior Superintendent of Police, Durg to one Om Prakash Joshi, Advocate. This person (connection with the insurance company not stated) sought information under the provisions of the Right to Information Act, 2005 from the Superintendent of Police, Durg by his letter dated 19.05.2006. Joshis specific query was whether any information had been sent to the Police Outpost, Jewara Sirsa by the Director of Bajrang Agrotech India Pvt. Ltd. (the complainant/respondent) regarding the running hopper of the mill falling off on 09.07.2004 and damaging machinery due to impact against the mill wall of truck no. CG 07 ZC 0722 which was carrying paddy husk and was being reversed.
(iii) The reply from the office of the Senior Superintendent of Police, Durg stated that in the record of the said Police Outpost there was no entry of the incident mentioned in the letter of Om Prakash Joshi.
5(i) On the basis of this reply as well as the obvious discrepancies in the description of the accident in the two letters dated 10.07.2004 written by the Director of the insured firm to the Police Outpost, Jewara Sirsa, learned counsel for the petitioner/insurance company has sought to emphasise that the claim of the respondent/complainant that the accident was caused by the impact of truck no. CG 07 ZC 0722, while reversing, against a wall in the mill premises supporting the hopper structure was entirely false and the real cause was as reported in the surveyors report. Accordingly, he has contended that the repudiation of the claim by the insurance company was justified and could not be termed as deficiency in service.
(ii) On the other hand, it has been argued by the learned counsel for the respondent/complainant that the Police Outpost, Jewara Sirsa may not have made any entry of the intimation given by the insured regarding the accident on 09.07.2004 because the insured had informed that they did not wish to lodge any report or initiate legal action against the owner of the truck. Moreover, if, according to the surveyor, the cause of the accident was the vibrations caused by the upward and backward movements of the stock elevator, nothing prevented him from recording the statement of the employees of the insured, who allegedly gave him this information. Therefore, the District Forum was justified in returning a finding of deficiency in service against the insurance company for repudiating the claim of the respondent/complainant.
6. On careful consideration of the documents, we notice the following:
(i) It is settled position that the onus to prove the peril and its cause/s lies with the insured.
(ii) The insured has relied entirely on the second letter dated 10.07.2004 of its Director to the Police Outpost to establish the cause of the accident. However, the office of the Senior Superintendent of Police, Durg has denied there being any entry in the records of the Police Outpost regarding receipt of any such letter.
(iii) The insured could have produced before the District Forum an affidavit of the owner or driver of the truck in question in support its contention regarding the cause of the accident of 09.07.2004. It is thus rather strange for the State Commission to hold it against the surveyor that he did not record a statement of the driver of truck no. CG 07 ZC 0722 when, in para.
13 of his report, the surveyor specifically stated, The cause of damages narrated at the time of survey/inspection was clearly recorded by me as well was supported by Police information letter photocopy given to me by the Insured wherein they have not mentioned involvement of any third party in the mishap Thus do not come (sic) under the scope of any perils of the policy hence not payable. It is quite clear from this discussion that the Police information copy of which was given to the surveyor was the first letter dated 10.07.2004 that mentioned falling off of the tank with no reference to any truck and its impact against any wall, etc. Moreover, in para. 4 of the report, the surveyor stated, On the day of the inspection the claim form & estimate was not possible to collect (sic) being holiday hence asked the insured to call the claim form from the insurers office & submit with estimate at an early date. Thereafter I visited 4 times on the calls of the insured for detailed inspection, Then on 24.8.2004 I wrote a letter to insured for the claim form, estimate and Police Information Report which he submitted in office onwards received by me on 1.9.2004. On receiving the claim form it was understood that the cause of the damage was due to impact on side wall by a TP truck no. CG 07 ZC 0722, which is totally denied as I have already gone through minute check while my inspection & no such thing was even discussed by any of the staff or the owner/Director. The previous clause does not come under the scope of the Standard Fire & Special Perils Policy hence the claim is not payable. This makes it amply clear how the insured came to improve his case.
(iv) Finally, the insured has produced a copy of its own letter dated nil in reply to the letter/notice dated 06.06.2006 from the Officer-in-Charge, Police Outpost, Jewara Sirsa (written in the context of the letter dated 19.05.2006 seeking information under the RTI Act, 2005). This reply sated that the RTI Act, 2005 applied only to Government institutions and hence effectively refused to produce any documents to show that the insured had sent any communication to the Police Outpost in connection with the accident of 09.07.2004. If both letters dated 10.07.2004 had been written and delivered at the Police Outpost and copies bearing signatures/initials of a responsible person at the Police Outpost in token of receipt of the fair copies were filed with the complaint before the District Forum, there seems to be no good reason for the insured to reply the way it did to the Police Outpost letter of 06.06.2006, because by that time the order dated 24.04.2006 of the District Forum in favour of the insured was already available.
7. In view of the foregoing discussion, we conclude that the insured has not been able to establish that the cause of the accident of 09.07.2004 resulting in damage to its insured property was the impact of a truck. On the other hand, the surveyors report states that the actual cause of the accident was not within the scope of the standard fire and special perils policy and hence the claim was not payable. Taken together, the insurance company was justified in repudiating the claim.
8. The revision petition is, therefore, allowed, the impugned order is set aside and the complaint is dismissed. No order as to costs.
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(ANUPAM DASGUPTA) Sd/-
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(SURESH CHANDRA) Mukesh