State Consumer Disputes Redressal Commission
Maa Shanti Cabel Network vs Universal Sampo General Insurance ... on 11 October, 2017
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR (C.G.)
Complaint Case No.CC/2017/21
Instituted on : 11.04.2017
Maa Shanti Cable Network,
Prop. Sandeep Kumar Gupta,
Near Bus Stand,
Kunkuri, Jashpur, District Jashpur (C.G.). ... Complainant.
Vs.
1. Universal Sompo General Insurance Co. Ltd.,
Through : Branch Manager, Near T.V. Tower,
Anupam Nagar, Shankar Nagar,
Raipur (C.G.)
2. Allahabad Bank,
Through : Branch Manager,
Branch Kunkuri, Jashpur (C.G.)
3. Cunnningham Lindsey International Insurance
Surveyors and Loss Assessors Pvt. Ltd.,
Through : J.K. Patra,
C/o : Orbit Tower, 3rd Floor, Sunder Nagar,
Raipur (C.G.) 492013 ... Opposite Parties
PRESENT: -
HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT
HON'BLE SHRI D.K. PODDAR, MEMBER
HON'BLE SHRI NARENDRA GUPTA, MEMBER
COUNSEL FOR THE PARTIES:
Shri S. Pandya, Advocate for the complainant.
Shri Dipesh Kumar Thawait, Advocate for the O.P. No.1.
None for the O.P. No.2.
None for the O.P. No.3.
ORDER
Dated : 11 /October/2017 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 :-
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(a) The O.P. No.1 & O.P. No.1 be directed to jointly and severally pay a sum of Rs.31,80,607/- (Rupees Thirty One Lakhs Eighty Thousand Six Hundred Seven) which is the amount of loss suffered by the complainant in the incident along with interest @ 18% p.a.
(b) The O.P. No.1 & O.P. No.2 be directed to jointly and severally pay a sum of Rs.1,00,000/- (Rupees One Lakh) towards compensation for mental agony to the complainant.
(c) The O.P. No.1 & O.P. No.2 be directed to jointly and severally pay a sum of Rs.50,000/- (Rupees Fifty Thousand) towards cost of litigation and on all above amounts, interest @ 18% p.a. may also be awarded.
(d) To award any other relief, which this Commission deems fit.
2. Briefly stated the facts of the complaint of the complainant are that the complainant is a Cable Operator and is running business in the name and style of Maa Shanti Cable Network. The complainant is running cable Company to telecast various channels and is receiving rent on the basis of the services provided by him. The complainant obtained Shopkeepers Package Policy (Fire & Allied Perils Building and/or Contents II - Burglary and Robbery) No.2939/54595779/01/00 from O.P. No.1 through O.P. No.2 and the complainant also obtained loan from O.P.No.2 for establishing Cable Control Room. The said insurance policy was effective for the period // 3 // from 26.11.2015 to 25.11.2016. On 31.10.2016, the fire caught in the Cable Control Room of the complainant, due to incident of fire, Cable Control Room of the complainant was completely damaged/burnt. The Cable Control Room was established by the complainant with the financial help of the O.P. No.2 The matter was reported to concerned Police Station as well as to the O.P.No.1 & O.P. No.2. The O.P. No.1 appointed O.P. No.3 as Surveyor and Loss Assessor. The O.P. No.3 demanded documents regarding saleable goods. The relevant documents regarding Cable Control Room and T.V. Cable, were provided to the Surveyor. The Surveyor assessed the loss suffered by the complainant, but the O.P. No.1 repudiated the claim of the complainant on the ground that the networks cable electric shop does not come within definition of saleable item and the same was not covered under the insurance policy. The complainant suffered loss of Rs.31,80,607/- in the incident, but the O.P. No.1 did not provide the above amount to the complainant. Hence the instant complaint.
3. The O.P. No.1 filed its written statement and pleaded that the complainant obtained Shopkeepers Package Policy. After receiving intimation regarding the incident from the complainant, the O.P. No.3 was appointed as Surveyor and Loss Assessor by the O.P. No.1 and the O.P. No.3 sought list of saleable items from the complainant, but the complainant did not provide the same to the Surveyor. Only saleable items are covered under the said insurance policy. The Cable Net is not covered under the insurance policy, therefore, the O.P. No.1 has // 4 // rightly repudiated the claim of the complainant and by doing so, it did not commit any deficiency in service. The complaint is liable to be dismissed.
4. In the instant complaint, the notices were sent to the O.P. No.2 & O.P. No.3, but in spite of due service of notices, they remained absent.
5. The complainant has filed documents. Annexure A-1 is Shopkeepers Package Policy Schedule, Annexure 2 is Fire Insurance Claim Form, Annexure 3 is letter sent by the complainant to General Manager, Universal Sompo Insurance Company Limited, Annexure 4 is letter sent by the complainant to Cunningham Lindsey International Insurance Surveyors and Loss Assessors Pvt. Ltd., Annexure 5 is letter sent by the complainant to the O.P., Annexure 6 is letter dated 01.11.2016 sent by the complainant to Officer Incharge, Police Station, Kunkuri, District Jashpur (C.G.), Annexure 7 is Capital Account for the year ending 31st March, 2016 of the complainant, Annexure 8 is Indian Income Tax Return Acknowledgement in respect of income tax return filed by Sanddep Kumar Gupta for the Assessment Year 2015-16 and Assessment Year 2016-17, Annexure 9 is Statement of Purchase (New Assets of Digital Head End) of Maa Shanti Cable Network, Tax Invoices etc., Annexure 10 is letter dated 04.11.2016 sent by Cunningham Lindsey International Insurance Surveyors and Loss Assessors Pvt. to M/s Maa Shanti Cable Net Works, Annexure 11 is letter sent by the complainant to Zee Entertainment Pvt. Ltd., Annexure 12 is letter sent by the complainant // 5 // to Star India Private Limited, Annexure 13 is letter sent by the complainant to Sony Entertainment Private Limited, Annexure 14 is statement of Sandeep Gupta, Prop. Maa Shanti Cable Network.
6. The O.P. No.1 has filed documents. The documents are Shopkeepers Package Policy Schedule issued by Universal Sompo General Insurance Co. Ltd., terms and conditions of the Shopkeepers Insurance Policy, Annexure D-2 is Proposal Form, Annexure D-3 is Final Survey Report.
7. The O.P. No.2 & O.P. No.3 have not filed any documents.
8. Shri S. Pandya, learned counsel appearing for the complainant has argued that the complainant is a Cable Operator and is running business in the name and style of Maa Shanti Cable Network. The complainant is running cable Company to telecast various channels and is receiving rent on the basis of the services provided by him. The complainant obtained Shopkeepers Package Policy (Fire & Allied Perils Building and/or Contents II - Burglary and Robbery) No.2939/54595779/01/00 from O.P. No.1 through O.P. No.2 and the complainant also obtained loan from O.P.No.2 for establishing Cable Control Room. The said insurance policy was effective for the period from 26.11.2015 to 25.11.2016. On 31.10.2016, the fire caught in the Cable Control Room of the complainant, due to incident of fire, Cable Control Room of the complainant was completely damaged/burnt. The Cable Control Room was established by the complainant with the financial help of the O.P. No.2 The matter was reported to concerned // 6 // Police Station as well as to the O.P.No.1 & O.P. No.2. The O.P. No.1 appointed O.P. No.3 as Surveyor and Loss Assessor. The O.P. No.3 demanded documents regarding saleable goods. The relevant documents regarding Cable Control Room and T.V. Cable, were provided to the Surveyor. The Surveyor assessed the loss suffered by the complainant, but the O.P. No.1 repudiated the claim of the complainant on the ground that the networks cable electric shop does not come within definition of saleable item. The complainant suffered loss of Rs.31,80,607/- in the incident, but the O.P. No.1 did not provide the above amount to the complainant. Shri Pandya further argued that in the insurance policy, it is specifically mentioned that Fire and Allied Perils Building and/or Contents are insured and the sum insured amount is Rs.10,00,000/-. From bare perusal of Insurance Policy, it appears that the parts of cable T.V. are insured and it was completely burnt. The complainant suffered loss of Rs.31,80,607/-. The complaint of the complainant be allowed and the reliefs as prayed in the relief clause of the complaint be awarded to the complainant. He placed reliance on United India Insurance Co. Ltd. Vs. M/s Pushpalaya Printers, 2004 STPL 4136 [AIR 2004 SC 1700 = (2004) 3 SCC 694 = JT 2004 (4) SC 352 = (2004) 2 Scale 684 - 2004 AIR (SCW) 1140 = (2004) 2 Supreme 225 = 2004 (120) CompCas 132]; United India Insurance Co. Ltd. Vs. Great Easter Shipping Co. Ltd. III (2007) CPJ 3 (SC); Satyanarayan Jiwanram Vs. National Insurance Co. Ltd. 2006 STPL 3287 (NC); New India Assurance Co. Ltd. Vs. M/s. Kassa Finvest Pvt. Ltd. 2016 CJ (NCDRC) 242.
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9. Shri Dipesh Kumar Thawait, learned counsel appearing for the O.P. No.1 has argued that the complainant obtained Shopkeepers Package Policy. After receiving intimation regarding the incident from the complainant, the O.P. No.3 was appointed as Surveyor and Loss Assessor by the O.P. No.1 and the O.P. No.3 sought list of saleable items from the complainant, but the complainant did not provide the same to the Surveyor. Only saleable items are covered under the said insurance policy. The Cable Net is not covered under the insurance policy, therefore, the O.P. No.1 has rightly repudiated the claim of the complainant and by doing so, it did not commit any deficiency in service. The complaint is liable to be dismissed.
10. On 20.09.2017 when the case is fixed for final arguments, none appeared for the O.P. No.2 & O.P. No.3 inspite of service of the notices.
11. We have heard learned counsel appearing for the parties and have perused the documents filed by the parties in the complaint case.
12. The complainant has filed copy of Shopkeepers Package Policy Schedule, which is marked as Annexure 1. The O.P. has also filed copy of Shopkeepers Package Policy Schedule. The Insurance Policy is Shopkeepers Insurance Policy.
13. We have perused Shopkeepers Package Policy Schedule (Annexure 1) in which in Coverage Section it is mentioned that "Fire and Allied Perils Building and/or Contents" and in the column of Sum // 8 // Insured , the sum insured amount is mentioned as Rs.10,00,000/-. In the column of Particulars of Insured Interest Section, it is mentioned that details as per Annexure "A". In Annexure A to Coverage Section I in the column of Description "Saleable Items" is mentioned and in the column of Item Description "Net Works Cable Electrical Shop" is mentioned. Document Annexure D-2, is copy of Proposal Form submitted by the complainant before the O.P. No.1, in which also, it mentioned "Net Works Cable - Electricals Shop".
14. In United India Insurance Co. Ltd. Vs. Pushpalaya Printers (Supra), Hon'ble Supreme Court has observed thus :-
"6. ......It is also settled position in law that if there is any ambiguity or a term is capable of two possible interpretations, one beneficial to the insured should be accepted consistent with the purpose for which the policy is taken, namely, to cover the risk on the happening of certain event. Although there is no ambiguity in the expression "impact", even otherwise applying the rule of contra preferentem, the use of the word "impact in clause 5 in the instant policy must be construed against the appellant. Where the words of a document are ambiguous, they shall be construed against the party who prepared the document. This rule applies to contracts of insurance and clause 5 of the insurance policy even after reading the entire policy in the present case should be construed against the insurer..."
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15. In United India Insurance Co. Ltd. Vs. Great Eastern Shipping Co. Ltd. (Supra), Hon'ble Supreme Court has observed thus :-
"Marine Insurance Policy - Interpretation of - While interpreting policy, intention of parties and words used in policy to be given necessary weightage."
"15. Learned Counsel also invited our attention to a decision of this Court in General Assurance Society Ltd. v. Chundumull Jain & Anr., (1966) 3 SCR 500. In that case it was observed as follows :-
"In other respects there is no difference between a contract of insurance and any other contract except that in a contract of insurance there is a requirement of uberrima fides i.e., good faith on the part of the assured and the contract is likely to be construed contra proferentem that is against the company in case of ambiguity or doubt. A contract is formed when there is an unqualified acceptance of the proposal. Acceptance may be expressed in writing or it may even be implied if the insurer accepts the premium...."
16. Looking to the insurance policy Annexure 1 and Proposal Form Annexure D-2, it appears that the complainant obtained Shopkeepers Package Policy from the O.P. No.1 through O.P. No.2 and Net Works Cable Electric Shop was insured with the O.P. No.1 and the sum insured amount is Rs.10,00,000/-.
17. The complainant pleaded that on 31.10.2016, fire was caught in the Cable Control Room, which is situated at Baba Complex, Near Bus Stand, Kunkuri. The above fact has not been denied by the O.P. No.1. Document D-3 is Final Survey Report dated 02.01.2017 of Cunningham Lindsey International Insurance Surveyors & Loss // 10 // Assessors Private Limited. In the Final Survey Report, against the column "Route Cause", it is mentioned "Fire due to Electrical short circuit from Voltage Stabilizer. It appears that on 31.10.2016, the incident of fire took place in the Cable Control Room of the complainant, during existence of the insurance policy.
18. The complainant cross-examined Mr. J.K. Patra (O.P. No.3) through questionnaire. The O.P. No.3 gave reply in the form of affidavit. In para 1, he gave reply that "Policy covers stock of saleable items of Net Works Cable - Electrical Shop. During our survey, it was observed that the insured was into the business of Cable TV services and the items damaged due to fire were not saleable items." In para 4, he stated that " Saleable item has not been defined in the policy. Saleable items normally refer to items related to the trade, which have physical existence and which are physically handed over to the customers through sale on a regular basis."
19. In Advanced Law Lexicon by P. Ramanatha Aiyar 3rd Edition 2005 at page 4208, saleable item is defined as "capable of being sold under Section 60 (1) of Code of Civil Procedure, 1908."
20. Section 60 of Code of Civil Procedure, 1908 runs thus :-
"60. Property liable to attachment and sale in execution of decrees - (1) The following property is liable to attachment and sale in execution of a decree, namely, lands, houses or other buildings, goods, money, bank notes, cheques, bills of exchange, hundis, promissory notes, Government securities, bonds or other securities for // 11 // money, debts, shares in a corporation and, save as hereinafter mentioned, all other saleable property, moveable or immovable, belonging to the judgment-debtor, or over which, or the profits of which, he has a disposing power which he may exercise for his own benefit, whether the same be held in the name of the judgment-debtor or by another person in trust for him or on his behalf."
21. Looking to the provisions of Section 60 of Code of Civil Procedure, 1908, it appears that the cable connection, parts, and other articles, which are used for operation of the cable networks com within purview of saleable item. Therefore, it appears that the Cable Control Room of the complainant and Cable T.V. of the complainant and parts, which are used for telecasting channels of various companies comes within saleabale goods, therefore, the same are insured with the O.P.
22. The complainant pleaded that he suffered loss of Rs.31,80,607/- in the incident of fire, therefore, he is entitled for getting the above amount from the O.P. No.1 and O.P. No.2. The above contention of the complainant is not acceptable. According to the insurance policy the insured items are Net Works Cable Electrical Shop and the sum insured is Rs.10,00,000/-, therefore, the complainant is not entitled for more than the sum insured amount.
23. The O.P. No.1 appointed Cunningham Lindsey International Insurance Surveyors and Loss Assessors Pvt. Ltd. as Surveyor, who submitted his Final Survey Report dated 02.01.2017 and assessed loss // 12 // to the tune of Rs.8,32,108.00. The report of the Surveyor is a reliable document, therefore, the Surveyor's report is genuine and dependable. The Report of the Surveyor can be given due weightage and it cannot be discarded lightly.
24. In Devendra Malhotra Vs. United India Insurance Co. Ltd. & Anr. 2016 (3) CLT 525 (NC), Hon'ble National Commission, has observed thus :-
"Consumer Protection Act, 1986, Sections 2 (1) (g), 19 & 21 (a) (ii)- Insurance claim Surveyor report Held It is a established legal proposition that the report made by the surveyor, who is a professional in his field, cannot disbelieved, unless there are cogent and convincing reasons to do so."
25. 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)."
26. In New India Assurance Co. Ltd., vs. Pave Infrastructures Pvt. Ltd., 2015 (3) CPR 577 (NC), Hon'ble National Commission has // 13 // observed that "Loss of assessment by approved Surveyor can be discarded only on cogent reasons".
27. 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)".
28. 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".
29. The Survey Report given by the Surveyor (O.P. No.3) is reliable and the complainant has not filed any document or evidence to rebut // 14 // the Report of the Surveyor, therefore, the Survey Report of the Surveyor is acceptable.
30. Therefore, on the basis of Survey Report of the Surveyor, the complainant is only entitled to get compensation of Rs.8,32,108/- (Rupees Eight Lakhs Thirty Two Thousand One Hundred Eight) from the O.P.
31. Therefore, the complaint of the complainant is partly allowed and it is directed that :-
(i) The O.P. No.1 will pay a sum of Rs.8,32,108/- (Rupees Eight Lakhs Thirty Two Thousand One Hundred Eight) within 45 days from the date of this order, to the complainant.
(ii) The O.P. No.1 will pay interest @ 9% p.a. on the above amount to the complainant from the date of filing of the complaint i.e. 11.04.2017 till realisation.
(iii) The O.P. No.1 will also pay a sum of Rs.10,000/-
(Rupees Ten Thousand) towards cost of litigation to the complainant.
(Justice R.S. Sharma) (D.K. Poddar) (Narendra Gupta)
President Member Member
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