State Consumer Disputes Redressal Commission
M/S J.K. International. vs G.M. Oriental Insurance Co. Ltd. & Ors. on 20 April, 2016
H.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
SHIMLA.
Consumer Complaint No.12/2015
Date of Presentation: 22.09.2015
Date of Decision: 20.04.2016
.......................................................................................
M/s. J.K. International,
18, JKI House, Industrial Area, Bain Attarian,
Tehsil Indora, District Kangra (H.P.),
Through its Partners
Shri Joginder Singh, Son of Shri Bhag Singh
& Shri S.S. Kang, Son of Shri Amar Singh Kang.
Through their Special Power of Attorney,
Shri Sanjeev Mahajan, Son of Shri Ved Prakash Mahajan.
....Complainant.
Versus
1. The General Manager,
Oriental Insurance Company Limited,
A-25/27, Asif Ali Road, New Delhi.
2. The Branch Manager,
Oriental Insurance Company Ltd.,
B.O.2, SCO-50, PUDA Complex,
Opposite Tehsil Complex, Jallandhar (Punjab).
3. The Manager,
Oriental Insurance Company Ltd.,
Dharamshala, District Kangra.
....Opposite parties.
.......................................................................................
Coram
Hon'ble Mr. Justice Surjit Singh, President
Hon'ble Mrs. Prem Chauhan, Member
Hon'ble Mr. Vijay Pal Khachi, Member
Whether approved for reporting?1
For the Complainant: Mr. Ajay Vaidya, Advocate.
For the Opposite Parties: Mr. Jagdish Thakur, Advocate.
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1
Whether Reporters of the local papers may be allowed to see the order?
M/s. J.K. International Vs. G.M. Oriental Insurance Co. Ltd. & Ors.
(C.C. No. 12/2015)
O R D E R:
Justice Surjit Singh, President (Oral) This complaint, under Section 17 of the Consumer Protection Act, 1986, has been filed by M/s J.K. International, seeking a direction to the opposite parties, who are Oriental Insurance Company and its functionaries, to pay a sum of `25.00 lacs, with interest at the rate of 18%, per annum, towards indemnification for the loss of insured stock, plus damages to the tune of `3.50 lacs, on account of mental harassment & mental agony and `1.00 lac, as litigation cost.
2. Complainant's case may be noticed. Complainant runs a factory at a place called Industrial Area, Bain Attarian, Tehsil Indora, District Kangra (HP). Complainant is in the business of converting raw-glass into finished glass. He had insured his stock of raw-glass and finished goods, kept in the factory premises, in the sum of `1.00 crore, with the opposite parties, vide insurance policy, Annexure OP-1. Policy was effective for the period from 18.03.2013 to 17.03.2014.
2 M/s. J.K. International Vs. G.M. Oriental Insurance Co. Ltd. & Ors.
(C.C. No. 12/2015)
3. On the night, intervening 8th/9th August, 2013, there was heavy rain in and around the area, where the factory of complainant is located and also in the catchment area of a Khad, which runs close to the factory of complainant. Because of heavy rain, flooding was caused by the adjoining Khad. According to the complainant, water of the Khad entered the factory premises, by breaking nine feet high boundary wall and damaged the stock, kept in the factory premises. Damage to the stock was to the tune of `25.00 lacs.
4. Intimation of the incident and loss, caused to the insured property, was given to the opposite parties, who deputed a spot surveyor, by the name of Shri Ashok Kumar Sharma. He gave report dated 20th August, 2013, copy Annexure OP-4. Complainant,as per para-2(iv) of the complaint, took this report to be final and shifted the damaged raw-glass from the factory to a site, just outside the boundary wall of factory. Opposite parties then deputed another surveyor, 3 M/s. J.K. International Vs. G.M. Oriental Insurance Co. Ltd. & Ors.
(C.C. No. 12/2015) who submitted some report to the opposite parties. On the basis of the report of said surveyor, opposite parties repudiated the claim on two grounds, namely most of the stock, which was alleged to have been damaged, had been kept outside the factory premises and hence, it was not covered under the policy and also the loss was not caused due to flood, but was caused by heavy rains, as the wall, per report of the surveyor, had collapsed not on account of over- flowing water of the adjoining Nallah, as claimed, but due to subsiding of the site under the wall, due to rain.
5. Complainant felt aggrieved by repudiation of its claim and filed a complaint, under Section 12 of the Consumer Protection Act, 1986, before the Learned District Forum, seeking a direction for payment of `19.00 lacs, on account of damage caused to the insured property, with interest at the rate of 18%. Learned District Forum, Kangra, returned the complaint with the order that since the amount claimed, inclusive of the interest, exceeded the upper limit of its 4 M/s. J.K. International Vs. G.M. Oriental Insurance Co. Ltd. & Ors.
(C.C. No. 12/2015) pecuniary jurisdiction of `20.00 lacs, it lacked jurisdiction. Thereafter, complainant filed the present complaint with this Commission alongwith an application, under Section 14 of the Limitation Act, seeking exclusion of time, spent in pursuing the matter before the Forum.
6. Opposite parties, despite having been afforded an opportunity to file reply to the application for exclusion of time spent in pursuing the matter before the Learned District Forum, did not file any reply. However, it contested the complaint. In reply to the complaint, it is alleged that most of the insured material, claimed to have been damaged due to flood, had been stacked outside the factory and since the policy insured the stock, kept inside the premises, opposite parties are not liable to indemnify the complainant for such stock. Also, it is stated that it was not a case of damage by flooding. It was stated that boundary wall of the factory collapsed not on account of flood water of the adjoining Khad, but because of subsiding of the wall, due to heavy and incessant rains, resulting in loosening 5 M/s. J.K. International Vs. G.M. Oriental Insurance Co. Ltd. & Ors.
(C.C. No. 12/2015) of soil, but the policy covers only the risk of damage due to flood.
7. Parties have adduced evidence in the form of two reports, one submitted by the spot surveyor and other by the final surveyor, the estimate, which, the complainant submitted to the surveyor, letter of repudiation and affidavits of the complainant & authorised functionaries of the opposite parties.
8. We have heard learned counsel for the parties and gone through the record.
9. Application for exclusion of time spent in pursuing the matter before the learned District Forum, is not contested by the opposite parties. It is not denied by the opposite parties that a complaint had been filed before the District Forum on 18th October, 2014, or say well within the time limit and the same was ordered to be returned by the Learned District Forum, vide order dated 21.08.2015. Present complaint was filed on 22.09.2015. Now, if the time spent before the Forum in pursuing the complaint filed there, is excluded, the complaint is within time. Since the 6 M/s. J.K. International Vs. G.M. Oriental Insurance Co. Ltd. & Ors.
(C.C. No. 12/2015) prayer for exclusion of time, is not opposed, we allow the application and consequently, admit the complaint and proceed to dispose of it, on merits, evidence having already been adduced by the parties.
10. Spot surveyor deputed by the opposite parties visited the spot on 13.08.2013, per his report, Annexure OP-4. Incident leading to damage to the stock of complainant, took place on the night intervening 8th/9th August, 2013. That means, within five days of the occurrence of incident, spot surveyor went to the spot. It may also not be out of place to mention that intimation of the incident, resulting in damage to the stock, was given to the opposite parties on 12.08.2013. Spot surveyor reported that glass sheets, which had been kept on the road-side, on the front side of the factory, had been damaged, because the flood water, level of which was about 1ft., entered between the layers of glass sheets. Spot surveyor further reported that only twenty-four sheets, three sheets of 8mm thickness and twenty-one of 12mm thickness, kept inside in one of the rear 7 M/s. J.K. International Vs. G.M. Oriental Insurance Co. Ltd. & Ors.
(C.C. No. 12/2015) rooms, had been broken, due to the collapse of rear wall of the factory. Now, as per this report, out of the total stock, damaged due to flood water, only twenty-four glass sheets, three 8mm thick and twenty-one, 12mm thick, were lying inside the factory premises, while rest of the glass sheets were lying on the road-side, in front of the factory.
11. Complainant in para-2(iv) of its complaint has itself stated that it had taken the report of spot surveyor as final and thereafter, it moved the damaged stock outside the godown rooms and heaped them near the gate of factory, by the time the spot surveyor Shri N.S. Sidhu, visited the spot on 13.09.2013. Complainant does not challenge the report of spot surveyor that most of the stock, that was damaged due to flood, was kept on the road-side, outside the factory premises. It has taken the stand that it shifted the broken glass sheets and heaped them outside the gate of factory, after the spot surveyor visited the spot, but before the final surveyor Shri N.S. Sidhu, came to the spot on 13.09.2013. 8 M/s. J.K. International Vs. G.M. Oriental Insurance Co. Ltd. & Ors.
(C.C. No. 12/2015)
12. From the above discussion, one thing is very clear that the complainant admits the correctness of report of the spot surveyor with regard to the location of damaged glass sheets, when the alleged incident of flood took place. As per this report, only twenty-four sheets were inside the factory premises and the rest of the damaged glass was outside the factory. Policy, Annexure OP-1, covers the risk of stock, kept inside the premises and not the stock, kept outside the premises. Hon'ble Supreme Court in Polymat India Private Ltd. & Anr. Versus National Insurance Company & Ors. (2005) 9 Supreme Court Cases 174, has held that if the policy specifies that goods, kept inside the factory alone are covered under the policy, then the goods, kept outside the premises of factory, would not be covered under the policy and the insurer would not be liable to indemnify the insured, if such goods are damaged.
13. Net result of the above discussion is that out of the total damaged stock only twenty- four glass sheets, three of 8mm thickness and 9 M/s. J.K. International Vs. G.M. Oriental Insurance Co. Ltd. & Ors.
(C.C. No. 12/2015) twenty-one of 12mm thickness, were covered under the policy.
14. The next question is whether the damage to the aforesaid twenty-four glass sheets was caused due to flood, which risk is admittedly covered by the policy or on account of collapse of the wall, due to subsiding of the site under it. Conditions of the policy, Annexure OP-2, cover both the kinds of risk i.e. damage caused by flood, as also damage caused due to subsidence of the site. Otherwise also, it is made out from the report of final surveyor itself, which report is Annexure OP-7, that this was a case of flooding. Surveyor in para 11.1 of his report very categorically stated that there were water marks upto 1ft.-1.5fts. height on the outer walls of the factory premises, which means that it was the flood water, which resulted in the collapse of a part of the boundary wall.
15. Now coming to the question, as to what was the cost of twenty-four sheets, which were damaged due to flood inside the factory premises. Complainant itself, per estimate, Annexure OP-9, 10 M/s. J.K. International Vs. G.M. Oriental Insurance Co. Ltd. & Ors.
(C.C. No. 12/2015) which he submitted to the final surveyor, stated that the value of three 8mm thick sheets was `13,699/-, which he purchased against bill dated 17.05.2013. He also claimed that the cost of eighteen 12mm thick glass sheets was `1,17,794/-, per bill dated 02.05.2013. On the basis of this bill, cost of twenty-one 12mm thick sheets can be worked out. It comes to `1,37,426/-. With the addition of cost of three 8mm thick sheets, the total cost of twenty four sheets, damaged inside the factory premises, comes to `1,51,125/-.
16. As a result of above stated position, we partly allow the complaint and direct the opposite parties to pay a sum of `1,51,125/-, less `10,000/-, on account of excess clause, with interest at the rate of 9% per annum, from the date of filing of complaint before the learned District Forum, i.e. 18.10.2014, to the date of payment of aforesaid amount of money and also to pay `10,000/-, on account of compensation for not paying the claim at-least to the extent of damage, caused to a part of the stock, kept inside 11 M/s. J.K. International Vs. G.M. Oriental Insurance Co. Ltd. & Ors.
(C.C. No. 12/2015) the factory premises. In addition, the opposite parties are directed to pay `5,000/-, on account of litigation cost.
17. One copy of the order be sent to each of the parties, free of cost, as per Rules.
(Justice Surjit Singh) President (Prem Chauhan) Member (Vijay Pal Khachi) Member April 20, 2016.
GAURAV} 12