State Consumer Disputes Redressal Commission
Sunrise Goods Carriers & Anr. vs Nic Ltd. & Ors. on 9 January, 2018
Daily Order IN THE STATE COMMISSION: DELHI (Constituted under Section 9 of the Consumer Protection Act, 1986) Date of Decision:09.01.2018 Complaint Case No. 345/2011 In the matter of: M/s Sunrise Goods Carriers 19A, Shyam Enclave Opposite Geeta Press Gyani Border, Ghaziabad Uttar Pradesh Sh. Ashwini Sharma Managing Partner 2502/192, Onkar Nagar-A Trinagar, Delhi-110035 .........Complainants Versus National Insurance Company Ltd. Registered and Head Office at 3, Middleton Street, Kolkatta 700 071 National Insurance Company Ltd. Through its Branch Manager Having its Branch Office at Delhi Road, near Madhusudan School Rewari. Haryana National Insurance Company Ltd. Through its Branch Manager Delhi Regional Office-II 2-E/9, Jhandewalan Extension New Delhi-110055 ..........Opposite Parties CORAM N P KAUSHIK - Member (Judicial) Counsel for Appellant - Sh. ArvindPandey Advocate Counsel for Respondent - Sh. KapilChawla Advocate 1. Whether reporters of local newspaper be allowed to see the judgment? Yes 2. To be referred to the reporter or not? Yes N P KAUSHIK - MEMBER (JUDICIAL) JUDGEMENT
Case in brief is that the complainant is engaged in the business of transportation of consignments. It had taken an insurance cover from National Insurance Company Ltd. (in short the OP) for an amount of Rs. 2 crores. Premises no. 19-A Shyam Enclave Gyani Border Ghaziabad measuring 400 sq. yards were taken on lease by the complainant. Complainant used to keep the consignments in his godown till the time a complete truck load was dispatched to its destination.
The policy valid for the period from 30.12.2009 to 29.12.2010 covering the risk of Rs. 2 crores was known as Standard Fire andInsurance of 'Perils' policy. Complainant had also taken a separate theft policy from the OP.
On the night intervening 17/18.05.2010, a fire broke out in the godown of the complainant at the premises insured. One of the walls had given way. Complainant contended that the fire caused damage to the building, its installation, raw material and semi-finished/finished goods. Fire department gave a prima-facie assessment of the loss. Complainant informed the OP of the incident on the morning of 18.05.2010. Surveyor of the OP named 'AtulKapoor and Company' visited the site after a period of three days i.e. on 21.05.2010. Contention of the complainant is that the surveyor did not visit the site after 21.05.2010 for assessing the damage and the salvage. Complainant contended that he retained the salvage for several days in view of the directions given to him by the surveyor. Salvage was lying in open and the complainant found it difficult to retain the same for long. Only on 10.06.2010, surveyor called the complainant to his office and handed him over the letter dated 10.06.2010, calling upon him to furnish certain documents and information. Submission of the complainant is that he furnished the requisite documents/information to the surveyor vide his letter dated 22.06.2010.
Complainant applied to the OP for the loss and damage and claimed an amount of Rs. 48,99,945/-. Receiving no response, he sent a reminder dated 01.11.2010. OP asked the complainant to explain why his claim should not be repudiated. Complainant vide his letter dated 01.12.2010 informed the OP that all the requirements of the surveyor had been fulfilled. Complainant received a letter dated 11.03.2011 from the OP vide which he was asked to convey his consent for settlement of the claim on sub-standard basis. Complainant vide his letter dated 21.03.2011 gave his consent and also submitted that the proposal was acceptable to him without prejudice to his rights. Finally OP vide its letter dated 13.05.2011 repudiated the claim stating as under:-
"CLAIM IS REPUDIATED DUE TO BREACH OF CONDITIONS OF FIRE POLICY"
In its written version OP submitted that the complainant gave some information and documents and did not give all the requisite information/documents. OP referred to its letter dated 03.07.2010 calling upon the complainant to furnish information/documents. In its letter dated 03.07.2010, OP asked the complainant to provide proof of payments made by him to the various persons whose consignments were destroyed in fire. Besides this, different balance sheet alongwith auditor's report and ITR return for the period 2009-10 was also called for. Provisional trading account from 01.04.2010 till that date was also required to be furnished. Ld. Counsel for the complainant Sh. ArvindPandeyadvocate stated at the bar that the reply to the said letter was however not filed by the complainant.
Complainant placed on record its rejoinder reiterating the averments made in the complaint. Parties filed their affidavits towards evidence. Written arguments too were filed.
I heard at length the arguments addressed by the counsel for the complainant Sh. ArvindPandey and counsel for the OP Sh. KapilChawla.
Relevant portion of the report of the surveyor is given below:
"In absence of records, a deduction @ 10% has been made for possible variations. Further, as per photos attached there was the possibility of some apparently intact items but as the stocks were not shown to us after removal of building debris/segregation (as stated earlier), thus deduction @ 25% has been made for stocks possible saved for the purpose of our indicative assessment. Further, salvage @ 10% has been estimated and deducted from the claim as detailed in the attached Annexure.
As stated earlier during the survey we had requested the insured to remove the building debris and then segregate the claimed stock physically and preserve the same for our further physical verifications. This was also confirmed in the written statement of the insured at time of survey (See Encl-3 Pg 4) where they had specifically confirmed that they would safely keep the stocks till they obtain permission from the insurers. However despite the above the insured failed to segregate and preserve the claimed items (after removal of building debris) and the same were disposed off without informing us/insurers (See insured's confirmation attached at Encl-5 that they did not preserve the material). In view of this the insured has apparently violated the policy terms and has failed to establish their loss. Accordingly the insurers are advised to consider repudiation of the claim."
Claim has been repudiated on the grounds that the complainant had not provided to the OP the requisite documents. OP has however not specifically indicated the documents expected from the complainant while repudiating the claim. On the contrary, stand taken by the complainant is that all the documents were destroyed in fire. Complainant had furnished a claim for an amount of Rs. 48,99,945/-. Surveyor in the absence of records made a deduction of 10% for possible variations. Deduction @ 25% was further made by the surveyor for the reason that the stocks were possibly saved. Further salvage @ 10% had been estimated and deducted from the claim. Thus an amount of Rs. 17,50,654/- was assessed by the surveyor. Finally the surveyor advised the OP to consider the repudiation of the claim. Surveyor had observed that the insured had failed to segregate and preserve the items. The same were disposed of without informing the OP. It is an admitted case of the OP that no representative of the OP visited the site after 21.05.2010. Complainant has been waiting for the surveyor to visit the site after segregation of the various goods. He waited for the surveyor for a reasonable period. Since the goods were lying in open, the complainant was justified in disposing of the debris and the burnt goods. For unburntgoods, surveyor has already made a deduction of 25% of the amount. Surveyor had done physical verification on his only visit. There are, therefore, no reasons to interfere in the report of the surveyor. I am, therefore, of the considered opinion that the surveyor rightly assessed the claim @ Rs. 17,50,654/-. Complaint is accordingly allowed and the OP is directed to pay to the complainant as under:
to pay an amount of Rs. 17,50,654/- alongwith interest @ 12% p.a. w.e.f. 13.05.2011 till the date of its realization.
to pay compensation to the tune of Rs. 3,00,000/- to the complainant for causing him harassment, inconvenience and mental agony.
The abovesaid amount shall be paid by the OP to the complainant within a period of sixty days from today failing which it shall carry interest @ 24% p.a. Copy of the orders be made available to the parties free of costs as per rules and thereafter the file be sent to Records.
(N P KAUSHIK) MEMBER (JUDICIAL)