State Consumer Disputes Redressal Commission
M/S Raja Construction Company vs United India Insurance Company Ltd. on 21 August, 2024
Appeal No. M/s Raja Construction Company 21.08.2024
11 of 2014 Vs.
The United India Insurance Company
Limited
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, UTTARAKHAND, DEHRADUN
Date of Institution : 27.01.2014
Date of Final Hearing : 24.07.2024
Date of Pronouncement : 21.08.2024
First Appeal No. 11 / 2014
M/s Raja Construction Company
Through its partner Sh. Rambir Gupta
Having its offices at 412-A, Mandavali, New Delhi
at C-6 (Basement), RDC, Raj Nagar, Ghaziabad, U.P.
and at S.F. 95 Shashtri Nagar, Ghaziabad
(Through: Sh. J.S. Aswal, Advocate)
....Appellant
VERSUS
The United India Insurance Company Limited
Through its Divisional Manager
Divisional Office, Mitra Vatika
Ranipur Mod, Haridwar, Uttarakhand
(Through: Sh. J.K. Jain, Advocate)
.....Respondent
Coram:
Ms. Kumkum Rani, President
Mr. B.S. Manral, Member
ORDER
(Per: Ms. Kumkum Rani, President):
This appeal under Section 15 of the Consumer Protection Act, 1986 has been directed against judgment and order dated 24.12.2013 passed by the learned District Consumer Disputes Redressal Forum, Haridwar (hereinafter to be referred as the District Commission) in consumer 1 Appeal No. M/s Raja Construction Company 21.08.2024 11 of 2014 Vs. The United India Insurance Company Limited complaint No. 182 of 2011 styled as M/s Raja Construction Company Vs. The United India Insurance Company Ltd., wherein and whereby the complaint was dismissed.
2. The facts of the case are that the appellant - complainant had filed a consumer complaint No. 182 of 2011 before the District Commission, Haridwar on the ground that M/s Raja Construction Company (complainant company) had insured it's construction site with respondent - opposite party under C.A.R. Insurance Policy (Contractors All Risk Insurance Policy) for the period from 17.04.2008 to 16.04.2009, which was further extended from 16.04.2009 to 16.07.2009 for the insured amount of Rs. 24,72,90,000/- (Rupees Twenty Four Crore Seventy Two Lac Ninety Thousand only). During the subsistence period of said insurance policy, a child of about 14 years old met with an accident by the appellant's vehicle on dated 27.05.2009 and died; in consequence of that the village people attacked the complainant's project site and damaged / set on fire the complainant's vehicle, machinery and project site office whereby the complainant company's vehicles, machines and equipments were extensively damaged, thus causing substantial loss to the complainant's project site. Several fire tenders of the fire brigade were deployed for extinguishing the fire at the project / insured site, a FIR was also lodged regarding the same. The complainant immediately dispatched by mode of courier service on dated 03.06.2009, the intimation letter alongwith relevant annexures informing regarding the said incident to the insurance company was sent with the request to appoint a surveyor for assessing the loss sustained and for indemnification of the same. The insurance company did not appoint any surveyor at the project site and did not respond. The appellant company further dispatched a legal notice upon the insurance company, in response thereof, the insurance company replied the said legal notice with a fabricated false story for shifting the burden of their inaction 2 Appeal No. M/s Raja Construction Company 21.08.2024 11 of 2014 Vs. The United India Insurance Company Limited of not conducting the survey of the project site upon the complainant's company. The complainant's company empathically stressed on the fact that they never received any claim form from the insurance company. The complainant filed the bills etc. of the goods damaged due to said accident, but no compensation was ever granted to the complainant, hence the complaint was submitted before the District Commission concerned.
3. The said consumer complaint was duly contested by the respondent
- opposite party by submission of the written statement wherein the respondent - opposite party resisted the said consumer complaint on a false ground that they had received the said information letter dated 03.06.2009 through the appellant company's messenger and that the respondent - opposite party had got a claim form received by the alleged messenger and that as the appellant did not file the claim form alongwith relevant documents, thus as per the procedure of the insurance company the surveyor was not deputed for assessing the loss. Thus, the respondent also denied having received the appellant company's letter dated 04.12.2009. It is further alleged that the appellant has not complied with the terms and conditions and has not completed the required formalities, hence the complaint is premature and is liable to be dismissed.
4. The District Commission after hearing both the parties and after taking into consideration the entire pleadings, facts and material placed on record passed the impugned judgment and order on dated 24.12.2013 and dismissed the consumer complaint.
5. On having been aggrieved by the aforesaid judgment and order of the District Commission, the appellant - complainant has preferred the present appeal before this Commission.
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6. We have heard learned counsel for both the parties and perused the material on record available before us.
7. It is alleged in the appeal that the impugned judgment and order is arbitrarily, against the facts and circumstances of the case, therefore, it is not sustainable in the eyes of law; it is further averred that the District Commission has passed the impugned judgment and order beyond the pleadings and evidence and has acted beyond its jurisdiction, hence it is liable to be set aside. It is further averred that the District Commission has pathetically ignored the fact and not considered the evidence on record that the appellant company had immediately informed the respondent insurance company by way of its letter dated 03.06.2009 alongwith relevant annexures which was only dispatched by mode of DTDC courier service and thereafter it was incumbent on the part of the respondent insurance company to have deputed a surveyor for visiting the captioned site for assessing the damage sustained at the insured site. It is further averred that the District Commission has pathetically ignored the fact that the appellant company had duly conveyed letter dated 03.06.2009 and 04.12.2009 to the respondent - insurance company regarding the claim matter, but the insurance company has failed to reply to the said letters. As per Fire Brigade report filed by the appellant in evidence, it is apparent that there was a loss of about Rs. 60 Lacs due to the said incident, but the District Commission has rejected the appellant's claim and alleged that there was no police report in the record, which revealed that the appellant had suffered any loss. Thus, such finding is contrary to the facts and merits of the case. It is further contended on behalf of the appellant that the District Commission has also ignored the fact that the respondent insurance company has received the preliminary intimation dated 03.06.2009 through the messenger and that the insurance company has got a copy of claim form received by the said messenger although the said letter was never sent 4 Appeal No. M/s Raja Construction Company 21.08.2024 11 of 2014 Vs. The United India Insurance Company Limited through the messenger, but only by mode of courier service to the respondent insurance company. The respondent - insurance company has not filed any reliable evidence in support of the fact that it had got the claim form received by the alleged messenger. Thus, the impugned judgment and order is highly biased and prejudiced against the appellant company and reveals the arbitrariness of the District Commission; the impugned judgment and order is perverse and is based on conjunctures and surmises, therefore, it is liable to be set aside and the appeal should be allowed.
8. It is an admitted fact that the appellant is a partnership firm, which undertakes contract for construction of civil work, building work, supply of material and other allied work of construction in Government and Private Sector. It is also undisputed that during the alleged accident, the appellant company was insured with the respondent company. It is also an admitted fact that during the project term of the appellant company, a child of about 14 years met with an accident on dated 27.05.2009 at about 6:30pm. on the construction site and died on the spot by the appellant company's vehicle (Dumper No. UP14AT/3242). It is also not disputed that in consequence of such incident, the villagers of Bhadasna Village came to the said project site and attacked the appellant company's premises and thereby damaged / set on fire.
9. Learned counsel for the appellant has contended that the information about the said occurrence was given to the respondent company through DTDC courier service and inspite of receiving the information of the alleged accident and inspite of the request, the insurance company did not appoint the surveyor to settle the claim, hence the consumer complaint was submitted before the District Commission.
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10. The rival contention has submitted on behalf of the respondent that the insurance company has received the information letter dated 03.06.2009 through messenger of the appellant company and the respondent had conveyed and gave the claim form to the said messenger apprising that the said claim form should be duly filled and signed alongwith estimate which was required to process the claim procedure, but the same was not sent. For want of claim form and estimate of loss, the respondent company could not appoint the surveyor for assessing the loss sustained.
11. We have perused the original record summoned from the Commission below.
12. As per the policy documents, the appellant company and its project was insured with the respondent company on the date of occurrence.
13. Learned counsel for the respondent has vehemently argued that the appellant had not given any FIR to the concerned police station to lodge the report regarding the occurrence. In the original record of the District Commission concerned, the appellant (complainant) has submitted a copy of chik FIR which has clearly proved that the incident has happened on dated 27.05.2009 at about 6:30pm. and on the very same day, i.e. 27.05.2009 at about 19:45pm, a report was lodged in the Police Station, Mundapandey, Sadar, District Moradabad regarding the occurrence in Crime No. 288A/2009 FIR No. 118/2009 under Section 147, 148, 149, 336, 436 & 427 IPC (paper No. 5/19 of the District Commission's record). So the version of respondent is unsustainable that the appellant has not reported the occurrence to the police station concerned and no FIR was ever lodged to this effect.
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14. According to the complaint, information about occurrence was given to the respondent on dated 03.06.2009 by the courier service, whereas the respondent has pleaded in its written statement as well as in its evidence in the Commission below that the information of the occurrence was given to the respondent on dated 03.06.2009 by the special messenger, who delivered the copy of the intimation letter to the respondent company. The insurance company has not produced any such officer or employee in evidence, who received the intimation letter from the appellant's messenger and what was his name to whom the employee or officer had delivered the claim form with the direction to return back it after filling in it for the purpose of appointing surveyor in this matter whereas the appellant has submitted the original receipt of courier service (DTDC) (paper No. 14/10 of the District Commission's record) on record to prove his contention.
15. From the pleadings of both the party to this effect, it is proved that the intimation letter dated 03.06.2009 was actually received by the respondent company through courier service by the special messenger.
16. Learned counsel for the appellant has further contended that as per the terms and conditions of the insurance policy, the insured was required to complete the following formalities, which was fully completed by the appellant.
17. The appellant has submitted the terms and conditions of the Contractor's All Risk Insurance Policy (paper No. 5/8 to 5/11 of the District Commission's record).
18. Thus, as per the terms and conditions of the said insurance policy, the following formalities to be completed by the appellant - complainant:-
7Appeal No. M/s Raja Construction Company 21.08.2024 11 of 2014 Vs. The United India Insurance Company Limited "5. In this event of any occurrence, which might give rise to a claim under this Policy, the Insured shall:-
a) Immediately notify the Company by Telephone or Telegram as well as in writing giving an indication as to the nature and extent of loss or damage;
b) take all steps within his power to minimize the extent of the loss or damage;
c) preserve the parts affected and make them available for inspection by a representative or Surveyor deputed by the company;
d) furnish all such information and documentary evidence a the Company may require;
e) inform the police authorities in case of loss or damage due to theft or burglary.
The Company shall not in any case be liable for loss, damage or liability of which no notice has been received by the Company within 14 days of its occurrence.
Upon notification being given to the Company under this condition the Insured may carry out the repair or replacement of any minor damage not exceeding Rs. 2,500/-. In all other cases a representative of the Company shall have the opportunity of inspecting the loss or damage before any repairs or alterations are affected. If a representative of the Company does not carry out the inspection within a period of time which could be considered as adequate under the circumstances the Insured is entitled to proceed with the repairs or replacement."
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19. As per the above terms and conditions of the said insurance policy, the information about the occurrence was immediately given within 14 days of its occurrence to the office of the Insurance Company. It was than incumbent on the insurance company to send its representative / surveyor for inspecting the loss or damage before any repair and alteration are effected & for preparing spot survey report which was not done as the policy condition inspite of receiving information about the occurrence. In the policy terms and conditions, it is also provided that if the representative of the Company does not carry out the inspection within a period of time which could be considered as adequate under the circumstances the Insured is entitled to proceed with the repairs or replacement.
20. The contention of the respondent company is as to that a copy of claim form was given to the messenger of the appellant company to fill in the same and to send it with estimate to the office of the insurance company, but the said compliance was not done by the appellant. The respondent company has not submitted documentary and reliable evidence to this effect that who was the employee of the appellant company, who had delivered the claim form to the messenger of the complainant or whether it was sent thereafter by the registered post addressed to the complainant. Thus, it is not proved that the claim form was ever sent to the complainant to send it back to the office of respondent after completing it.
21. The respondent company has submitted documentary evidence vide list (paper No. 16/1 of the District Commission's record) wherein in paper No. 16/2 of the District Commission's record, a letter of the appellant company to the Divisional Manager of the Insurance Company has shown that on its giving the information letter from the appellant company, there is an endorsement directing Sh. Sanjeev "pl. ask for the details and send the claim forms." But such employee was never examined in the 9 Appeal No. M/s Raja Construction Company 21.08.2024 11 of 2014 Vs. The United India Insurance Company Limited Commission below by the Insurance Company to clarify the factum that he has actually given the claim form to the messenger with the direction to the appellant company to send it back after completing it alongwith estimate.
22. Apart from it, there was a negligence on the part of the Insurance Company because if the claim form was required to be submitted by the appellant company, then the insurance company should sent the claim form to the insured by the registered post, so that it might by proved that the appellant has actually obtained the claim form with the direction to send it back alongwith estimate of the loss and he has not completed the formalities.
23. Apart from it, it is pertinent to mention that it is the bounden duty of the Insurance Company that after obtaining the information of the occurrence, the Insurance Company should appoint its surveyor / loss assessor to make spot inspection, so that the fact of the actual loss may be determined immediately after the occurrence, but the same duty was not discharged by the Insurance Company.
24. The appellant has also submitted a copy of the legal notice (paper No. 5/44 of the District Commission's record) and reply of notice from the Insurance Company (paper No. 5/47 of the District Commission's record). The legal notice was dispatched by the insured to the office of the insurer on dated 08.06.2010 and its reply by the insurance company was given to the insured vide letter dated 18.06.2010 alleging that the insured has not submitted the claim form alongwith estimate of loss to the insurance company inspite of the direction, therefore, this claim is premature.
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25. Here it is pertinent to mention that the occurrence took place prior to one year from the date of reply notice dated 18.06.2010 of the insurance company, whereas it was the bounden duty of the Insurance Company to immediately convey the appellant by registered notice alongwith claim form with the direction to fill in and thereafter to return it to the Insurance Company, but the same duty was not done by the Insurance Company. Apart from it, the Insurance Company had not sent claim form to the appellant. Thus, in this respect, the Insurance Company has not provided adequate service to the insured. Besides it, the Insurance Company had not sent its surveyor on the spot to make spot inspection, therefore, it cannot be said that there was gross fault on the part of the Insurer. In such circumstances, we are of the considered opinion that the Insurance Company has not applied its part and cannot blame the appellant that the claim form was given to the messenger of the appellant company with the direction to send it back with the estimate and the same was not applied with by the appellant company.
26. In such circumstances we are of the considered opinion that the complaint is not premature because as per the cited case law Oriental Insurance Co. Ltd. vs. S.K. Jewellers, IV (2005) CPJ 89 (NC), it is held by the Hon'ble National Commission that "considering that the matter is pending since years and the Surveyor was not appointed by the insurance company at the relevant time, there is no reason not to believe the say of the complainant that the loss suffered by him was for more than Rs. 4 lakhs. Hence, in our view, it would be just and proper to direct that insurance company to pay a sum of Rs. 2,50,000/- to the complainant with 9% interest from 01.01.1994. Order accordingly. The amount shall be paid after adjusting the amount of Rs. 3 lakhs paid by it as per our order dated 03.12.2003 stated above. The appeal stands disposed of accordingly. There shall be no order as to costs."
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27. In the record of the District Commission and this Commission, the appellant has submitted the repair bills.
28. We have perused the repair bills (paper Nos. 61 to 80 of the District Commission's record). It is also established on record that a fire report was prepared by the concerned department wherein the estimate costs was assessed.
29. Paper Nos. 61 to 65 regarding the furniture, computer and inverter etc. amounting to Rs. 2,26,415/-, paper Nos. 66 to 68 regarding the laboratory equipment of Rs. 2,86,330/- and paper Nos. 73 to 78 regarding the bills of diesel and spare parts including battery etc. of Rs. 46,610/-, which are available on record and their total amount comes to the tune of Rs. 5,59,355/-.
30. The appellant has sought Rs. 1 Lakh for approximate loss of stationary, computer, software and other office accessories which were burnt and damaged in the said incident. Because the appellant has not submitted the relevant bills to get the said compensation in the head of stationary, computer, software and other office accessories etc. therefore, such amount cannot be granted to the appellant.
31. So far as the loss of machine Tarex Vietra is concerned, the appellant has averred and filed the documentary evidence that the said machine was damaged in the said occurrence and because it was completely damaged and was not worth of repair, therefore, it was sold by the appellant for Rs. 1,10,000/-.
32. We have perused the record. The original bill of such Tarex Vietra machine has not been submitted, therefore, the compensation in the head 12 Appeal No. M/s Raja Construction Company 21.08.2024 11 of 2014 Vs. The United India Insurance Company Limited of Tarex Vietra machine cannot be awarded. So far as the loss of the Drum Mix Plant is concerned, its original bill has been submitted on the record and the appellant has said that such machine was partially damaged, therefore, its repair costs was shown to the tune of Rs. 1,56,860/- and its relevant bill is available on record vide paper No. 80.
33. As per bill (paper No. 79), the said Drum Mix Plant was purchased by the appellant on dated 27.02.2005. After calculating all the above bills paper Nos. 61 to 68 and paper Nos. 73 to 78 and paper No. 80, the total repair costs comes to the tune of Rs. 7,16,215/-.
34. In our opinion, it is appropriate to deduct the 25% amount from the above said amount for salvage and other necessary deductions. Thus, the claim amount comes to Rs. 5,37,161.25ps.
35. In our opinion, the appellant is entitled to get Rs. 5,37,161.25ps. as claim amount from the Respondent - Insurance Company. The complaint was pending in the District Commission since 30.05.2011, therefore, the appellant is entitled to get simple interest @ 6% per annum from the date of 30.05.2011 till its actual realization alongwith Rs. 20,000/- as litigation charges. We also found that there was the gross deficiency on the part of the respondent company, thereby the appellant has to file the complaint in the court of District Commission.
36. We hold that the District Commission has passed the impugned judgment arbitrarily and not in accordance with law with the mandate principle of law, hence it is perverse and liable to be set aside. The District Commission has not exercised its jurisdiction which was vested in it and has committed material illegality and irregularity while passing it, hence the appeal is also liable to be allowed.
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37. The appeal is hereby allowed. The impugned judgment and order dated 24.12.2013 is set aside. The complaint of the appellant - complainant is hereby allowed directing the respondent-Insurance Company to pay Rs. 5,37,161/- (Rupees Five Lakh Thirty Seven Thousand One Hundred Sixty One only) to the appellant - complainant alongwith simple interest @ 6% per annum from the date of filing of the consumer complaint, i.e. 30.05.2011 till its actual realization alongwith litigation charges of Rs. 20,000/-.
38. A copy of this Order be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986 /2019. The Order be uploaded forthwith on the website of the Commission for the perusal of the parties. The copy of this order alongwith original record of the District Commission, Haridwar be sent to the concerned District Commission for record and necessary information.
39. File be consigned to record room along with a copy of this Order.
(Ms. Kumkum Rani) President (Mr. B.S. Manral) Member Pronounced on: 21.08.2024 14