State Consumer Disputes Redressal Commission
Sks Ispat & Power Limited vs Chairman Cum Managing Director & Others on 16 May, 2014
1CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR (C.G.)
Complaint Case No.12/01
Instituted on : 24.01.2012
SKS Ispat & Power Limited,
Having Its Factory at 18th Milestone,
Bilaspur Road, Village - Siltara, Raipur (C.G.)
Acting Through its authorized Signatory
Shri B.B. Shrivastava S/o Awadh Bihari Shrivastava,
Aged about 58 years, resident of V.I.P. Karishma Apartment,
Shankar Nagar, Raipur (C.G.). ... Complainant.
Vs.
1. Chairman Cum Managing Director,
The New India Assurance Company Limited,
87, M.G. Road, Fort, Mumbai 400 001
2. Deputy General Manager, Regional Office,
The New India Assurance Company Limited,
Block No.3, IInd Floor, Prayavas Bhawan,
Area Hills, Bhopal - 462011 (Madhya Pradesh)
3. General Manager, Grievance Department,
The New India Assurance Company Limited,
87, M.G. Road, Fort, Mumbai 400 001
4. Divisional Manager, Raipur Divisional Office - 1,
The New India Assurance Company Limited,
1st Floor, Madina Building, Medical College Road,
Raipur 492 001 (Chhattisgarh) ... Opposite Parties
PRESENT: -
HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT
HON'BLE MS. HEENA THAKKAR, MEMBER
COUNSEL FOR THE PARTIES: -
Shri Nikhil Agrawal, for complainant.
Shri Shishir Bhandarkar, for opposite parties.
// 2 //
ORDER
Dated : 16/05/2014 PER :- HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT. The complainant has filed this complaint under Section 17 of the Consumer Protection Act, 1986 against the opposite parties for seeking direction to the opposite parties : (a) to indemnify complainant's loss of the insured item to the extent of Rs.76,18,050/- (Rupees Seventy Six Lakh Eighteen Thousand and Fifty only), (b) to pay interest @ 18% p.a. on the above amount from the date of loss to the date of payment, (c) to pay compensation of Rs.10,00,000/- (Rupees Ten Lakhs only) towards mental, physical and financial loss (d) saddle the cost of litigation expenses, lawyer's fees on the opposite parties for instituting the instant complaint and approaching before this Commission and (e) grant any other relief, which this Hon'ble Commission deems fit and just under the circumstances of the case and in the interest of justice.
2. Brief facts of the complaint as per the complainant are : that the complainant is a public limited company having its registered office at 501-B, 5th Floor, Elegant Business Park, J.B. Nagar, Andheri - Kurla Road, Andheri (East), Mumbai and Factory at the above mentioned address. The complainant deals in manufacturing, sale and purchase of various products like Sponge Iron, Ingot, Billets, Rolled products, Ferrous Alloys, Power etc. The O.P.No.1 is India's one of the biggest General Insurance Service providers. Company's Head Office, which handles and manages business of whole of India and also at the // 3 // Overseas. The O.P.No.2 is the Regional Head of Bhopal Circle, who also manages and monitors business of O.P.No.4. The O.P. No.3 is Company's Head Grievance Redressal Department which also covers office of O.P.No.4 and the O.P.No.4 is the Divisional Manager, office for Raipur Division I which manages business within the territorial limits of Raipur including complainant's place of business. The complainant is one of the premium and loyal customer of the O.P.No.4 from past many years and have availed number of insurance policies from O.P.No.4 and still holds number of valid policies issued by O.P.No.4 pertaining to General Insurance. The complainant obtained insurance policy under Standard Fire and Special Perils Policy for "Stock of Coal and Iron Ore" for the security from Spontaneous Combustion and Earthquake (Fire and Shock) for the sum of Rs.10,00,00,000/- from the O.P.No.4 The New India Assurance Company Limited, Raipur and the policy No. is 450300/11/09/11/00000336 for the period from 08.08.2009 to 07.08.2010. The complainant also took another insurance policy from National Insurance Company Limited for the same stock for sum insured Rs.9.00,00,0000/- and the policy No.268200 / 11 /10 /33000000081 for the period from 14.05.2010 till 13.0.2011. On 26.05.2010, Security Incharge Mr. D.D. Singh of Complainant's factory at about 6.00 P.M. observed flames of fire in the coal stake of coal stored at outside shed of plant. All the concerned persons present at the place of incident took all their best efforts to control fire and // 4 // minimize the loss but even then they could not be able to stop fire which resulted in loss of two stakes of Coal (B grade) and intimation of the same was given to O.P.No.4 on the 31.05.2010. The O.P.No.4 upon receiving aforesaid intimation from complainant deputed a Preliminary Surveyor Mr. H. Chitalia, who was also duly appointed by National Insurance Company Limited, who after thorough inspection and upon receiving all the mandatory documents from complainant submitted his report accepting the loss of two stakes of coal (B grade), total quality about 3,000 metric tons due to Spontaneous Combustion. In due course of time Mr. Tuteja - Final Surveyor deputed by O.P.No.4 also surveyed the place of accident and after procuring all the required documents from the complainant submitted his Final Survey Report to O.P.No.4. In the meantime all the relevant papers and documents, as required by the Preliminary Surveyor Mr. H. Chitalia and Final Surveyor Mr. Tuteja, were delivered in time for processing and settling the claim. The complainant's net loss of coal (B grade) as assessed by Preliminary Surveyor Mr. H. Chitalia and also affirmed by complainant due to spontaneous combustion is 3,000 metric ton, out of which the OPs as per their proportion of sum insured, are liable to pay and compensate complainant for 1650 metric tons and the value of same as per the then market price i.e. Rs.4,617/- is Rs.76,18,050/- (Rs. Rupees Seventy Six Lakh Eighteen Thousand and Fifty only). Thus, the OPs are jointly and severally liable to compensate Rs.76,18,050/- to the // 5 // complainant but to utter shock and surprise for complainant that even after lapse of more than a year from the date of submission of claim, till the date, OPs failed to disburse the aforesaid claim amount for the reasons best known to them. The complainant on innumerable occasions contacted OPs through all forms of communications and requested to disburse its aforesaid claim amount but at all times OPs linger upon the aforesaid matter by giving lame, whim and fancy excuses and made complainant to run from post to pillars without any fault of its own for all these months and all the hard mid-night turmoil of complainant on requesting OPs for disbursing aforesaid claim amount when into vein, moreover complainant once again addressing to O.P.No.4 on 18.05.2011 mailed a letter "to know the status of the said claim" but as expected O.P.No.4 Failed to provide any satisfactory reasons in not disbursing the said claim amount neither disbursed the aforesaid claim amount. The act of the OPs amounts to deficiency in services on its part and as such the complainant is consumer within the purview of Section 2(1) (g) of the Consumer Protection Act, 1986. The complainant filed complaint against the OPs before this Commission.
3. The OPs in their written statement pleaded that Shri B. B. Shrivastava, is not a competent person to file instant complaint and neither he is able to depose to the facts of the case nor he has been duly authorized to sign and make averment on behalf of the complainant, therefore, the complaint is liable to be dismissed. On 26.05.2010, no // 6 // incident was taken place and the complainant had not suffered any loss or damage due to spontaneous combustion. No such incidence of spontaneous combustion in the heap of coal had occurred. Had there been any such incidence the complainant would have given immediate intimation to the OPs. The intimation was given to the OPs on 31.05.2010. It is after five days, which raises doubt about the occurrence of any such incidence. Under the terms and conditions of the insurance policy immediate intimation, without loss of time, was required to be given by the insured, and as no immediate intimation was given to the O.P.No.4 and the complainant has not only breached the terms of the policy but also deprived the OPs from getting first hand and immediate access to information about actual cause and nature of the alleged incident. Shri Hitesh Chitalia was not deputed by the OPs for conducting preliminary survey. The report of Shri Hitesh Chitalia was not binding on the OPs and the report of Shri Hitesh Chitalia, is not acceptable. The complainant had approached the National Insurance Company for the processing and settlement of alleged loss of coal and the National Insurance Company had deputed Shri H. Chitalia for preliminary survey, but it is pertinent to mention here that since the said preliminary surveyor Shri Chitalia was not deputed by the O.P.No.4. Therefore the report of Shri Hitesh Chitalia was not binding on the OPs. In this regard it is further submitted that even otherwise the job of preliminary surveyor was not to assess the // 7 // amount of loss but to prima facie ascertain the probable cause of nature of damage. It is in fact the Final Surveyor who assessed the exact amount of loss after thorough inspection of damaged material. But in the present case Shri Tuteja could not trace of fire flame or the damaged stock during his survey. It is further denied that all the relevant papers and the documents were delivered in time to Shri Tuteja or any preliminary Surveyor for processing and settling the claim. The true facts are that on receipt of intimation, the O.P.No.4 had appointed Shri T.S. Tuteja, Surveyor to conduct survey to assess the exact amount of loss, if any. Shri T.S. Tuteja, on being so instructed, visited the spot on 15.06.2010 but could not find any evidence of fire flame in and around the spot. During his inspection Shri Tuteja requested the insured to show the portion of affected material. But despite persuation, the insured could not show the affected material for inspection nor could show the debris or left over to him. The Surveyor, therefore, could not find any damaged material to assess any loss. In the meantime, it has been learnt by the O.P.No.4 that the complainant was pursuing claim with National Insurance Company Ltd. but no intimation was given to the O.P.No.4. Even the complainant suppressed the above facts from the O.P.No.4. On enquiry, it was further learnt that the National Insurance Co. Ltd. had appointed one Shri S.R. Das, Surveyor for survey of the complainant's claim arising out of alleged incidence dated 26.05.2010 and Shri S.R. Das had accordingly visited the site on // 8 // 05.06.2010 to 09.06.2010 and during his visit he had met and discussed with so many people including Vice President Shri P.P. Gupta, Senior AGM (QC), Shri Deepak Mehta and Sr. Manager Finance and Account Shri R.K. Tiwari and enquire about the damaged material. Neither Shri S.R.Das nor Shri T.S. Tuteja was able to find any damaged material for assessment of any loss, whereas as per the terms of policy, it was incumbent upon the insured to keep and retain the damaged material safely for the inspection of the Surveyors and as there was no left over material or debris were present on the spot, it was not possible for the Surveyor to assess the loss. The OPs therefore cannot be held guilty for any deficiency in service for not settling the claim, hence the complainant is not entitled for any compensation from the OPs and the complaint is liable to be dismissed.
4. Shri Nikhil Agrawal, learned counsel appearing for the complainant argued that the complainant had obtained policy No. 268200/11/10/3300000081 from the National Insurance Company, which was effective for the period from 14.05.2010 to 13.05.2011 and also obtained insurance policy No. 450300/11/09/11/00000336 for the period from 08.08.2009 to 07.08.2010 from the New India Assurance Company Limited, which was effective from 08.08.2009 to 07.08.2010. He further argued that on 26.05.2010 at about 6.00 P.M. Security Incharge of complainant's factory Mr. D. D. Singh observed flames of fire in the Coal stake of coal stored at outside shed of plant and the // 9 // matter was immediately reported to the complainant and the employee of the complainant company tried to minimize the fire and all efforts to control the fire has been made by the complainant, but could not stop the fire and due to fire two stakes of coal (B grade) was burnt . The matter was reported to the Insurance Company and Mr. Hitesh Chitalia, was appointed as Surveyor by the New India Assurance Company Limited which was also consented by the National Insurance Company Limited and Shri Hitesh Chitalia, visited the premises of the complainant and he found that near about 3,000 metric tons of coal (B grade) was lost due to spontaneous combustion . The report was accepted by the complainant. The Surveyor was appointed by the Insurance Company, therefore, the Survey Report submitted by Shri Hitesh Chitalia is binding upon the Insurance Company hence the complainant is entitled for compensation for 1,650 metric tons of coal @ 4,617/- per metric ton and the total loss is Rs.76,18,050/-. Shri Nikhil Agrawal, further argued that the complainant provided all relevant documents to the Surveyor, Tuteja but Shri Tuteja could not assess the loss suffered by the complainant in proper way and the Insurance Company wrongly declared the case of the complainant as no claim case. The complainant is entitled for getting compensation as mentioned in relief clause of the complaint. He placed reliance on M/s Tanda Textiles and Processing Mills Pvt. Ltd. vs. United India // 10 // Insurance Co. Ltd. and Others (Original Petition No.257 of 1998) decided 09.02.2007 by Hon'ble National Commission.
5. Shri Shishir Bhandarkar, learned counsel appearing for the OPs (Insurance Company) argued that the complaint has not been filed by a competent authority, therefore, the complaint is liable to be dismissed. He further argued that the complainant took insurance policy from The New India Assurance Company Limited and The National Insurance Company Limited for the same stock and complaints filed for the same cause of action. One complaint case is against the New India Assurance Company Limited and another complaint case is against the National Insurance Company Limited. In both the complaint cases, the complainant prayed for granting compensation for the same incident for same insured stock. Two separate complaint cannot not be filed against the same incident. If the single complaint is filed for the incident take place, the total value of the prayed amount is more than Rs.1 crore and this Commission has no pecuniary jurisdiction, therefore, the complainant has mala fidely filed two separate complaints for one incident and he wants to take advantage of pecuniary jurisdiction of this Commission with mala fide intention and ulterior motive. Shri Shishir Bhandarkar, further argued that Shri Hitesh Chitalia, was not appointed as preliminary surveyor by the OPs, therefore, his report is not binding upon the OPs. He further argued that the OPs appointed Shri Tuteja, as Surveyor and Shri Tuteja visited // 11 // the premises of the complainant and he inspected the premises of the complainant with one Mr. R.K. Tiwari and he met with Mr. P.P. Gupta, Vice President of the complainant company and also met with Mr. Deepak Mehta in the laboratory. Shri T.S. Tuteja, was not able to find any damaged material for assessment of any loss. It was incumbent upon the insured to keep and retain the damaged material safely for the inspection of the Surveyors but as there was no left over material or debris were present on the spot, therefore, Shri T.S. Tuteja could not assess the loss. Hence the OPs cannot be held guilty for any deficiency in service. The complainant filed this complaint with ulterior motive and has suppressed material facts because the complainant wants to recover money from the Insurance Companies for same set of incident, therefore, the complaint is liable to be dismissed.
6. The complainant has filed documents. Document annexure C-1 is Board resolution, document annexure C-2 is Standard Fire and Special Perils Policy issued by National Insurance Company Limited, document Annexure C-3 is Standard Fire and Special Perils Policy issued by New India Assurance Company Limited, document Annexure C-4 is intimation letter dated 31.05.2010, document Annexure C-5 is Claim Form, document Annexure C-6 is Fire Report, document Annexure C-7 is Test Report of Burn Coal, document Annexure C-8 is Statement of Security Manager, document Annexure C-9 is Test Report of Burn Coal by Chhattisgarh Ispat Bhumi Ltd., document Annexure C-
// 12 // 10 is Estimate of Loss of Coal by complainant, document Annexure - 11 is Test Report by Central Institute of Mining and Fuel Research, Bilaspur, document Annexure - 12 is Trial Balance and Stock Position Report by CRSH & Associates, dt. Postal acknowledgement, document Annexure C-13 is Assessment Cum Confirmation letter, document Annexure C-14 is letter sent by the complainant to O.P.No.4 on 18.05.2011, document Annexure C-15 is legal notice dated 22.11.2011, document Annexure C-16 is postal receipts, document Annexure C-17 is postal acknowledgement, document Annexure C-18 is reply of legal notice, document Annexure C-19 is letter sent by Shri Hitesh H. Chitalia to the complainant company dated 20.01.2011.
7. The OPs have also filed document. Document OP-1 is Certificate in respect of compliance of Section 64 VB of Insurance Act, 1938 and Standard Fire and Special Perils Policy, document OP-2 is Status Report dated 13.09.2010 sent by Trilochan S. Tuteja, the Surveyor to the New India Assurance Company Limited, Divisional Office Unit No1, Raipur, Annexure OP-3 is a Note, Annexure OP-4 is letter dated 21.06.2010 sent by Shri S.R. Das, Surveyor, to the complainant.
8. We have heard learned counsel for both the parties and have perused the documents.
9. The complainant filed document Annexure C-1. Document C-1 is Authority to Represent the Company in Court Cases. In the said // 13 // authority letter the name of Shri B.B. Shrivastava, General Manager (Taxation & Legal) is mentioned. In the said letter it is mentioned that Shri B.B. Shrivastava, General Manager (Taxation & Legal) of the Company be and are hereby severally empowered to file and sign all papers, applications, plaints, Written Statements, Criminal Complaints, petitions, reviews, appeals and all other documents, Vakalatnama etc., as well as affidavits as may be required to be filed and to lead evidence in the Hon'ble Supreme Court, / Hon'ble High Court 'Hon'ble Small Causes Court, Hon'ble Metropolitan Magistrate Courts / Hon'ble District Court / Hon'ble City Civil Court or before any other Government Authority, Tribunal and / or Local authorities in any state / in India in connection with any Legal proceedings by or against the company and to represent the Company in all other matters incidental thereto as may be considered necessary and expedient. In document Annexure C-1 it is further resolved that Mr. Gopal Garg, General Manager (Finance & Accounts) and Mr. B.B. Shrivastava, General Manager (Taxation & Legal) be and are hereby severally authorized to do followings act, deeds and things, as may be required, for work of the Company related to direct or indirect taxation :-
1. To apply for registration, renewal / amendment of registration certificates as may be necessary for the business of the Company under the provisions of Central Excise Act, Finance Act, Custom Act, Income Tax Act, State Sales Tax / VAT, Central Sales Tax Act, 1956, Entry // 14 // Tax And Professional Tax Act and any other Act of similar nature of taxes.
2. ..............
3. To collect all types of statutory Forms from the Appropriate Authorities of State Government or Central Government and to delegate to any subordinate, the power to collect all types of statutory forms, any document, cheques, drafts etc. from any person, bank or any State / Central Government Authority.
4. .................
5. To receive summons, notices etc. and to sign, submit and verify various statements, applications, affidavits, declarations, undertakings, Forms, Returns and other requisite documents whatsoever and file them in any Court, Tribunal or Office in connection with Central Excise Act, Finance Act, Customs Act, Income Tax Act, the State Sales Tax / VAT Act, Central Sales Tax Act, Entry Tax Act, Professional Tax Act."
10. Looking to the above document, it appears that Shri B.B. Shrivastava, General Manager (Taxation & Legal) of the complainant company has been authorized to file consumer complaint before this Commission the present complaint has been signed and verified by Shri B.B. Shrivastava, General Manager (Taxation & Legal) of the complainant company. Shri B.B. Shrivastava, has been duly authorized by the complainant company M/s S.K.S. Ispat and Power Limited, therefore, the complaint filed by Shri B.B. Shrivatava on behalf of the complainant company is maintainable and Shri B.B. Shrivatava, is // 15 // competent to verify and sign the complaint and therefore, the complaint is maintainable.
11. The complainant filed consumer Complaint Case No.12/01 against the New India Assurance Company Limited. In the insurance policy description of risk is mentioned as STOCK OF COAL & IRON ORE and the sum assured is 10,00,00,000/- (Spontaneous Combustion) and Rs.10,00,00,000/- [Earthquake (Fire & Shock)]. The complainant also filed consumer Complaint Case No.12/04 against National Insurance Company Limited. The sum assured is Rs.9,00,00,000/- and insured property is Storage of Coal and Sponge Iron at Factory premises and the sum assured is Rs.5,00,00,000/- and insured property is storage of stores and spares at factory (includes chemicals and fuels) storage of stores & spares). In both the insurance policies, it appears that stock of coal and iron ore were insured and according to the complainant the incident took place on 26.05.2010 at about 6.00 P.M. In both the complaint cases, the coal was burnt due to spontaneous combustion of coal.
12. Looking to the complaints, it appears that the complainant prayed to direct the OPs to indemnify complainant's loss of the insured item i.e. coal. Therefore, it is essential for the complainant to file a single complaint against both the Insurance Companies and both the complaints is in respect of same cause of action. Had the claim sought // 16 // by the complainant in both the complaints, pecuniary jurisdiction of this Commission ousted apparently. If the complainant files single complaint for relief sought by him in both the complaints, the total amount of the compensation will more than Rs.1 crore, which is apparently ousted the pecuniary jurisdiction of this Commission, therefore, it appears that the complainant has intentionally filed two separate complaints for same cause of action taking the complaint within pecuniary jurisdiction of this Commission.
13. Document OP-3 is a note of Deepak Mehta, Director / Authorized Signatory of SKS Ispat and Power Limited. In the said document it is mentioned that "Also the reaction is chain type with catching of fire in subsequent heaps and deterioration of Quality. This burning material was also shown to the primary surveyor at site on 26th May 2010. In consultation, this burning material was consumed in Kiln to avoid further spreading of fire in other coal heaps and minimize losses. Due to consumption of same, left over material of coal was not available afterwards physically at site."
14. Document Annexure OP-4 is letter dated 21.06.2010 written by Shri S.R. Das, Surveyor to Shri P.V.S. Chandra Sekhar, Vide President (Comm.) SKS Ispat & Power Limited, Siltara Industrial Growth Centre, Raipur. In the said document it is mentioned that "You are, therefore, under the circumstances requested to put your point of view as to how // 17 // to ascertain the quantum of damaged materials as there was no left over for reference to substantiate your claim. While on the subject "Analysis of remains Attached" as mentioned in the note has not been received. Please arrange to send me the same."
15. Looking to the facts and circumstances of the case, it appears that the complainant could not provide relevant documents and complainant could not substantiate his claim. Surveyor Shri S.R. Das, mentioned that the burning material was not available at the place of occurrence therefore, loss could not be determined.
16. In the instant case, the complainant could not comply with the terms and conditions of the insurance policy and when Surveyor had visited the place of occurrence, burning material was not available, therefore, the assessment of loss could not be assessed by the Surveyor.
17. Shri Hitesh Chitalia, was not appointed by the OPs as Preliminary Surveyor and Shri Hitesh Chitala has submitted his report. At page no.50 of the file, letter dated 20.01.2011 sent by Shri Hitesh H Chitalia to the complainant is annexed. In the said letter, it is mentioned that "I have conducted Preliminary Survey during above occurrence of fire in coal due to Spontaneous Combustion and assessed affected coal quantity in tune of 3000 M.Ton, for which your representative Ranjay Tiwari, Sr. Manager, F & A, had given verbal consent at that time.
// 18 // Now you are requested to issue an acceptance letter for quantity of loss, which agreed by you to settle the claim at the earliest."
18. In the said letter Shri Hitesh H. Chitalia, gave his preliminary survey report that due to spontaneous combustion, coal quantity in tune of 3000 M. Ton was lost and he wrote letter to the complainant that he accepted the report submitted by him and the complainant company accepted the loss assessed by Shri Hitesh H. Chitalia.
19. The OPs (Insurance Company) also filed Status Report dated 13.09.2010 of Shri Trilochan S. Tuteja. In the said Status Report, it is mentioned that :-
"Cause of fire :
In the course of visit made vide Dtd.15.6.2010, no fire flames found from the coal heap. Further it was brought to our knowledge by Mr. Tiwari that the reported fire appears to have been originated due to spontaneous combustion in coal.
Extent of fire :
The stock of coal lying in heaps in the coal yard in the insured's compound was inspected. It was verify difficult to ascertain exact quantity involved in the occurrence (reported) of fire. Since the date is furnished as 26th of May, while the visit is being made on 15.6.2010. It was asked and requested to make us available the quantity of affected portion but despite persuation and long pressure, at no stage the insured could make us available the quantity for inspection, also no debris shown.
Observation :
// 19 //
1. The reported occurrence of the fire is 26.5.2010.
2. The job was entrusted on 15.6.2010.
3. Immediately the premises was visited on 15.6.2010 itself.
4. During the course of the visit made no fire flames reflected /witnessed.
5. Photographs taken are enclosed herewith.
6. It was further intimated that the matter is being taken up with National Insurance Company Ltd. Mumbai."
20. In the case of Ashu Textiles v. New India Assurance Company & Anr., III (2009) CPJ 272 (NC), Hon'ble National Commission observed that the Surveyor's report has to be given more weightage than the report of Fire Brigade and compensation to be assessed on basis of detailed survey report.
21. In Khimjibhai & Sons v. New India Assurance Co. Ltd., IV (2011) CPJ 458 (NC), Hon'ble National Commission observed that "It is to be noted that it is in accordance with the requirement of law that a surveyor is required to be appointed by the Insurance Company and when such a surveyor who is licensed professional to assess such loss gives a report with reasons to support the same, such a report can be discredited only on the basis of specific grounds which are required to be recorded in the order."
// 20 //
22. In the case of Ankur Surana v. United India Insurance Co. Ltd., I (2013) CPJ 440 (NC), Hon'ble National Commission observed that "it is well established by now that the report of the surveyor is an important document and the same should not be rejected by the Fora below unless cogent reasons are recorded for doing so. The State Commission has stated that it did not see any legal ground before the District Forum to reject the report of the Surveyor. The report of the surveyor should have been rebutted on behalf of the complainant/petitioner since the respondents/OPs had filed the surveyor's report as their evidence."
23. In the instant case, Shri Hitesh H. Chitalia, was not appointed by the OPs (Insurance Company) as Preliminary Surveyor, therefore, the report of Shri Hitesh Chitalia, is not binding upon on the OPs. For the sake of argument, it if it is presumed that Shri Hitesh Chitalia was appointed by the OPs (Insurance Company), but he was only appointed for giving Status Report and he is not competent to assess the loss. Therefore, his Report is not taken into consideration for assessment of loss of coal due to spontaneous combustion. Shri T.S. Tuteja, Surveyor was appointed by the Insurance Company for assessment of loss and he had submitted his detailed report.
24. Standard Fire & Special Perils Policy was issued in favour of the complainant by the OPs (Insurance Company). Condition No.6 of the policy is thus :-
// 21 // "6 (i) On the happening of any loss or damage the Insured shall forthwith give notice thereof to the Company and shall within 15 days after the loss or damage, or such further time as the Company may in writing allow in that behalf, deliver to the company-
(a) A Claim in writing for the loss or damage containing as particular an account as may be reasonably practicable, of all the several articles or items of property damaged or destroyed and of the amount of the loss or damage thereto respectively, having regard to their value at the time of loss or damage not including profit of any kind.
(b) Particulars of all other insurances, if any-
The insured shall also at all times at his own expense produce, procure and give to the Company all such further particulars, plans, specification, books, vouchers, invoices duplicate or copies thereof, documents, investigation reports (internal/external) proofs and information with respect to the claim and the origin and cause of the loss and the circumstances under which the loss or damage occurred, and any matter touching the liability or the amount of liability of the Company as may be reasonably required by or on behalf of the Company together with a declaration on oath or in other legal from of the truth of the claim and of any matters connected therewith. No claim under the policy shall be payable unless the terms of this conditions have been complied with."
(ii) In no case whatsoever shall the Company be liable for any loss or damage after the expiry of 12 months from the happening of the loss or damage unless the claim is the subject of pending action or arbitration; it being expressly agreed and declared that if the Company shall disclaim liability for any claim hereunder and such claim shall not within 12 calendar months from the // 22 // date of the disclaimer have been made the subject matter of a suit in a court of law then the claim shall for all purposes be deemed to have been abandoned and shall not thereafter be recoverable hereunder."
25. From the bare perusal of the terms and conditions of the insurance policy, it appears that the terms of the policy have to be construed as it is and Court or Forum or Tribunal can not substitute its own condition and Court or Forum or Tribunal can not substitute the words which are not intended.
26. In the case of M/s Vijay Concerns Vs State Bank of India, Through Branch Manager & anr, 2013(4) CPR 165(NC), Hon'ble National Commission, has observed thus :-
"9.....................The Courts should always try to interpret the "words"
in the insurance contract as they have been expressed by the parties. It is not open for the Court to add, delete or substitute any words. The words used in the Insurance Contract must be given paramount importance."
27. In the case of M/s Export Credit Guarantee Corporation of India Ltd. Vs M/s Garg Sons International, 2013 (4) CPR 373(SC), Hon'ble Supreme Court, has observed thus :-
"9. The insured cannot claim anything more than what is covered by the insurance policy.
// 23 // "The terms of the contract have to be construed strictly, without altering the nature of the contract as the same may affect the interests of the parties adversely."
28. In the case of United India Insurance Co. Ltd Vs M/s Harchand Rai Chandan Lal 2005 (1) CPR 64 (SC), Hon'ble Supreme Court, has observed thus :-
"6. The terms of the policy have to be construed as it is and we cannot add or subtract something. Howsoever liberally we may construe the policy but we cannot take liberalism to the extent of substituting the words which are not intended. It is true that in common parlance the term 'burglary' would mean theft but it has to be proceeded with force of violence. If the element of force and violence is not preset then the insured cannot claim compensation against theft from the insurance company. (Para 6).
It is not open to interpret the expression appearing in policy in terms of common law; but it has to give meaning to the expression reproduced the terms of the policy as also the definition of burglary and / or housebreaking as defined in the policy."
29. Looking to the Surveyor's Report, it appears that the complainant could not give any clarification asked by the Surveyor when the Surveyor reached to the place of occurrence. It also appears that the complainant had suppressed the material facts regarding the incident and loss suffered by him, therefore, the report of the Surveyor, is reliable and acceptable, On the basis of Surveyor's Report, the complainant could not establish his case beyond doubt and the // 24 // complainant has not been able to prove that he has suffered loss due to spontaneous combustion of coal, therefore, the OPs (Insurance Company) has rightly denied the claim of the complainant and complainant is not entitled for getting any compensation from the Insurance Company.
30. Therefore, the complaint of the complainant is liable to be and is hereby dismissed. No order as to the cost of this complaint.
(Justice R.S. Sharma) (Ms. Heena Thakkar)
President Member
/05/2014 /05/2014