M/S Forg & Forg Ltd. vs The New India Assurance Co.Ltd. on 31 January, 2011

[Cites 2, Cited by 0]

State Consumer Disputes Redressal Commission

M/S Forg & Forg Ltd. vs The New India Assurance Co.Ltd. on 31 January, 2011

                           1


   BEFORE THE CONSUMER DISPUTES REDRESSAL
                 COMMISSION
         GUJARAT STATE, AHMEDABAD


              COMPLAINT NO.55/97 to 62/97


Complainant      : M/s Forg & Forg Ltd.
                   Kudawda Road
                   Rajkot.


                         Versus


Respondent       : The New India Assurance Co.Ltd.
                   Nagindas Chambers
                   Dhebar Road
                   Rajkot.


                 COMPLAINT NO. 63/97

Complainant      : M/s Star Forgings Pvt.Ltd.
                   Survey No.98-P, Nr. GIDC Phase-I
                   At Bamanbore, Ta.Chotila.
                   Dist. Rajkot-360001.

                         Versus


Respondent       : The New India Assurance Co.Ltd.
                   Nagindas Chambers
                   Dhebar Road
                   Rajkot.
                                     2


Before :
            N.A. Acharya. Presiding Member

Bharat Joshi, Member Appearance:

Mr. S.J. Mehta, Learned advocate for the Complainant. Mr. H.M. Bhagat, Learned advocate for the Opponent. Order: Mr. Bharat Joshi [ Date: 31.01.2011]

1) In all the above Complaint, Complainant and Opponent are common and all claims under Machineries Insurance Policy.

2) The brief facts of the complaint are as under : Complaint No.55/97

The brief facts in the aforesaid complaint that complainant is the company registered under the Companies Act, 1956 who had insured its machineries installed at its factory premises with the opponent Insurance company under policy no.4421120131306, all the machineries installed at the factory premises is fully insured with the opponent insurance company for the year 1991-92 and 1992-93 with sum insured Rs.78.00 lacs and policy period from 7.4.1991 to 6.4.1992. 3 As per the contract of insurance, the opponent is liable to indemnify and reimburses the complainant in case of any loss, damage or repair of any of the machinery for the total cost of loss damage or repair.

During the validity period of the policy on 1.10.1991 Piston Rod of 10 Ton Hammer was accidentally damaged/broken since the machine was insured, the complainant lodged claim for the Piston Rod with the opponent for an amount of Rs.4,21,000/-.

The opponent Insurance company after long delay by letter dated 18.07.1996 rejected the claim for non production of documents which complainant have protested against the said act of the opponent being arbitrarily and filed the complaint before the learned State Commission with the prayer to pay Rs.4,21,000/- as a loss worked out in claim bill along with 18% interest till filing of the complaint being Rs.4,38,000/-

and Rs.1,00,000/- towards compensation for gross deficiency in service with further prayer cost of complaint and further 18% interest from the date of complaint dated 21.05.1997 till realization. As repudiation was made on 18.07.1996 on the ground of non-submission of claim papers 4 to the surveyor M/s Bhatwadekar & Co. to whom, the complainant in para-3 of the complaint have stated that documents have been provided and reason and non-settlement of claim and wrongful repudiation amounts to deficiency in service.

Rejoinder against the opponent reply have been filed and produced at 48 and 49 and have denied the contents of reply.

The complainant in support of claim have filed expert surveyor opinion alongwith affidavit from page-125 to 130 and on 133 where assessment amount is opined Rs.2,33,753/-. Complaint No.56/97

The brief facts in the aforesaid complaint that complainant is the company registered under the Companies Act, 1956 who had insured its machineries installed at its factory premises with the opponent Insurance company under policy no.4421120131306, all the machineries installed at the factory premises is fully insured with the opponent insurance company for the year 1991-92 and 1992-93 with 5 sum insured Rs.78.00 lacs and policy period from 7.4.1991 to 6.4.1992. As per the contract of insurance, the opponent is liable to indemnify and reimburses the complainant in case of any loss, damage or repair of any of the machinery for the total cost of loss damage or repair.

During the validity period of the policy on 17.03.1992 Piston Rod of 10 Ton Hammer was accidentally damaged/broken since the machine was insured, the complainant lodged claim for the Piston Rod with the opponent for an amount of Rs.4,44,000/-.

The opponent Insurance company after long delay by letter dated 18.07.1996 rejected the claim for non production of documents which complainant have protested against the said act of the opponent being arbitrarily and filed the complaint before the learned State Commission with the prayer to pay Rs.4,44,000/- as a loss worked out in claim bill along with 18% interest till filing of the complaint being Rs.4,22,000/- and Rs.1,00,000/- towards compensation for gross deficiency in service with further prayer cost of complaint and further 18% interest from the date of complaint dated 21.05.1997 till realization. As repudiation was 6 made on 18.07.1996 on the ground of non-submission of claim papers to the surveyor M/s Bhatwadekar & Co. to whom, the complainant in para-3 of the complaint have stated that documents have been provided and reason and non-settlement of claim and wrongful repudiation amounts to deficiency in service.

Rejoinder against the opponent reply have been filed and produced at 21 and 22 and have denied the contents of reply.

The complainant in support of claim have filed expert surveyor opinion alongwith affidavit from page-36 to 41 and on 44 where assessment amount is opined Rs.2,33,753/-. Complaint No.57/97

The brief facts in the aforesaid complaint that complainant is the company registered under the Companies Act, 1956 who had insured its machineries installed at its factory premises with the opponent Insurance company under policy no.4421120132307, all the machineries installed at the factory premises is fully insured with the 7 opponent insurance company for the year 1992-93 with sum insured Rs.11.00 lacs and policy period from 07.04.1992 to 06.04.1993. As per the contract of insurance, the opponent is liable to indemnify and reimburses the complainant in case of any loss, damage or repair of any of the machinery for the total cost of loss damage or repair.

During the validity period of the policy on 25.08.1992 Piston Rod of 2 Ton Hammer was accidentally damaged/broken since the machine was insured, the complainant lodged claim for the Piston Rod with the opponent for an amount of Rs.2,90,077/-.

The opponent Insurance company after long delay have offered Rs.31,498/- against the loss of Rs.2,90,077/- by letter dated 18.07.1996 by calling for giving consent which was not accepted as assessment of the surveyor was arbitrarily and illegally against the evidence provided by the complainant. The complainant have protested against the said act of the opponent being arbitrarily and filed the complaint before the learned State Commission with the prayer to pay Rs.2,90,077/- as a loss worked out in claim bill along with 18% interest till filing of the 8 complaint being Rs.2,66,423/- and Rs.1,00,000/- towards compensation for gross deficiency in service with further prayer cost of complaint and further 18% interest from the date of complaint dated 21.05.1997 till realization.

Rejoinder against the opponent reply have been filed and produced at 14 and 15 and have denied the contents of reply.

The complainant in support of claim have filed expert surveyor opinion alongwith affidavit from page-29 to 37 where assessment amount is opined Rs.1,11,360/-.

Complaint No.58/97

The brief facts in the aforesaid complaint that complainant is the company registered under the Companies Act, 1956 who had insured its machineries installed at its factory premises with the opponent Insurance company under policy no.4421120132310, all the machineries installed at the factory premises is fully insured with the opponent insurance company for the year 1992-93 with sum insured Rs.11.00 lacs and policy period from 20.04.1992 to 19.04.1993. As per 9 the contract of insurance, the opponent is liable to indemnify and reimburses the complainant in case of any loss, damage or repair of any of the machinery for the total cost of loss damage or repair.

During the validity period of the policy on 01.09.1992 Die Holder of 10 Ton Hammer was accidentally damaged/broken since the machine was insured, the complainant lodged claim for the Piston Rod with the opponent for an amount of Rs.3,73,285/-.

The opponent Insurance company after long delay have offered Rs.1,17,437/- against the loss of Rs.3,73,285/- by letter dated 18.07.1996 by calling for giving consent which was not accepted as assessment of the surveyor was arbitrarily and illegally against the evidence provided by the complainant. The complainant have protested against the said act of the opponent being arbitrarily and filed the complaint before the learned State Commission with the prayer to pay Rs.3,73,285/- as a loss worked out in claim bill along with 18% interest till filing of the complaint being Rs.3,20,715/- and Rs.1,00,000/- towards compensation for gross deficiency in service with further 10 prayer cost of complaint and further 18% interest from the date of complaint dated 21.05.1997 till realization.

Rejoinder against the opponent reply have been filed and produced at 39 and 40 and have denied the contents of reply.

The complainant in support of claim have filed expert surveyor opinion alongwith affidavit from page-117 to 122 where assessment amount is opined Rs.2,07,085/-.

Complaint No.59/97

The brief facts in the aforesaid complaint that complainant is the company registered under the Companies Act, 1956 who had insured its machineries installed at its factory premises with the opponent Insurance company under policy no.4421120132307, all the machineries installed at the factory premises is fully insured with the opponent insurance company for the year 1992-93 with sum insured Rs.20.00 lacs and policy period from 07.04.1992 to 06.04.1993. As per the contract of insurance, the opponent is liable to indemnify and 11 reimburses the complainant in case of any loss, damage or repair of any of the machinery for the total cost of loss damage or repair.

During the validity period of the policy on 18.12.1992 Piston Rod of 3.15 Ton Hammer was accidentally damaged/broken since the machine was insured, the complainant lodged claim for the Piston Rod with the opponent for an amount of Rs.10,20,938/-.

The opponent Insurance company after long delay have offered Rs.10,390/- against the loss of Rs.10,20,938/- by letter dated 18.07.1996 by calling for giving consent which was not accepted as assessment of the surveyor was arbitrarily and illegally against the evidence provided by the complainant. The complainant have protested against the said act of the opponent being arbitrarily and filed the complaint before the learned State Commission with the prayer to pay Rs.10,20,938/- as a loss worked out in claim bill along with 18% interest till filing of the complaint being Rs.8,27,062/- and Rs.1,00,000/- towards compensation for gross deficiency in service 12 with further prayer cost of complaint and further 18% interest from the date of complaint dated 21.05.1997 till realization.

Rejoinder against the opponent reply have been filed and produced at 17 and 18 and have denied the contents of reply.

The complainant in support of claim have filed expert surveyor opinion alongwith affidavit from page-39 to 44 and 47 where assessment amount is opined Rs.5,61,052/-. Complaint No.60/97

The brief facts in the aforesaid complaint that complainant is the company registered under the Companies Act, 1956 who had insured its machineries installed at its factory premises with the opponent Insurance company under policy no.4421120132307, all the machineries installed at the factory premises is fully insured with the opponent insurance company for the year 1992-93 with sum insured Rs.20.00 lacs and policy period from 07.04.1992 to 06.04.1993. As per the contract of insurance, the opponent is liable to indemnify and 13 reimburses the complainant in case of any loss, damage or repair of any of the machinery for the total cost of loss damage or repair.

During the validity period of the policy on 02.02.1993 Piston Rod of 3.15 Ton Hammer was accidentally damaged/broken since the machine was insured, the complainant lodged claim for the Piston Rod with the opponent for an amount of Rs.10,06,938.13/-.

The opponent Insurance company after long delay by letter dated 18.07.1996 rejected the claim for non production of documents which complainant have protested against the said act of the opponent being arbitrarily and filed the complaint before the learned State Commission with the prayer to pay Rs.10,06,938.13 as a loss worked out in claim bill along with 18% interest till filing of the complaint being Rs.7,76,062/- and Rs.1,00,000/- towards compensation for gross deficiency in service with further prayer cost of complaint and further 18% interest from the date of complaint dated 21.05.1997 till realization. As repudiation was made on 18.07.1996 on the ground of non-submission of claim papers to the surveyor M/s Dilip M. Shukla to 14 whom, the complainant in para-3 of the complaint have stated that documents have been provided and reason and non-settlement of claim and wrongful repudiation amounts to deficiency in service.

Rejoinder against the opponent reply have been filed and produced at 31 and 32 and have denied the contents of reply.

The complainant in support of claim have filed expert surveyor opinion alongwith affidavit from page-38 to 46 where assessment amount is opined Rs.5,61,052/-.

Complaint No.61/97

The brief facts in the aforesaid complaint that complainant is the company registered under the Companies Act, 1956 who had insured its machineries installed at its factory premises with the opponent Insurance company under policy no.4421120132307, all the machineries installed at the factory premises is fully insured with the opponent insurance company for the year 1992-93 with sum insured Rs.20.00 lacs and policy period from 07.04.1992 to 06.04.1993. As per 15 the contract of insurance, the opponent is liable to indemnify and reimburses the complainant in case of any loss, damage or repair of any of the machinery for the total cost of loss damage or repair.

During the validity period of the policy on 18.03.1993 Piston Rod of 3.15 Ton Hammer was accidentally damaged/broken since the machine was insured, the complainant lodged claim for the Piston Rod with the opponent for an amount of Rs.10,06,938/-.

The opponent Insurance company after long delay have not settled and paid the claim and for such long delay and not making payment of claim it was filed under gross negligence and deficiency in service to the settlement and payment of the claim. Complainant have protested against the said act of the opponent being arbitrarily and filed the complaint before the learned State Commission with the prayer to pay Rs.10,06,938/- as a loss worked out in claim bill along with 18% interest till filing of the complaint being Rs.7,65,382/- and Rs.1,00,000/- towards compensation for gross deficiency in service 16 with further prayer cost of complaint and further 18% interest from the date of complaint dated 21.05.1997 till realization.

Rejoinder against the opponent reply have been filed and produced at 35 and 36 and have denied the contents of reply.

The complainant in support of claim have filed expert surveyor opinion alongwith affidavit from page-42 to 50 where assessment amount is opined Rs.5,61,052/-.

Complaint No.62/97

The brief facts in the aforesaid complaint that complainant is the company registered under the Companies Act, 1956 who had insured its machineries installed at its factory premises with the opponent Insurance company under policy no.4421120132307, all the machineries installed at the factory premises is fully insured with the opponent insurance company for the year 1992-93 with sum insured Rs.20.00 lacs and policy period from 07.04.1992 to 06.04.1993. As per the contract of insurance, the opponent is liable to indemnify and 17 reimburses the complainant in case of any loss, damage or repair of any of the machinery for the total cost of loss damage or repair.

During the validity period of the policy on 19.03.1993 damage of NKH 2 Ton Drop Hammer including foundation was accidentally damaged/broken since the machine was insured, the complainant lodged claim for the Piston Rod with the opponent for an amount of Rs.3,32,625/-.

The opponent Insurance company after long delay have not settled and paid the claim and for such long delay and not making payment of claim it was filed under gross negligence and deficiency in service to the settlement and payment of the claim. Complainant have protested against the said act of the opponent being arbitrarily and filed the complaint before the learned State Commission with the prayer to pay Rs.3,32,625/- as a loss worked out in claim bill along with 18% interest till filing of the complaint being Rs.2,52,375/- and Rs.1,00,000/- towards compensation for gross deficiency in service 18 with further prayer cost of complaint and further 18% interest from the date of complaint dated 21.05.1997 till realization.

Rejoinder against the opponent reply have been filed and produced at 38 and 39 and have denied the contents of reply.

The complainant in support of claim have filed expert surveyor opinion alongwith affidavit from page-45 to 53 where assessment amount is opined Rs.1,75,744/-.

Complaint No.63/97 M/s Star Forging Pvt.Ltd.

The brief facts in the aforesaid complaint that complainant is the company registered under the Companies Act, 1956 who had insured its machineries installed at its factory premises with the opponent Insurance company under policy no.4421120131325, all the machineries installed at the factory premises is fully insured with the opponent insurance company for the year 1992-93 with sum insured Rs.33.00 lacs and policy period from 19.01.1992 to 18.01.1993. As per the contract of insurance, the opponent is liable to indemnify and 19 reimburses the complainant in case of any loss, damage or repair of any of the machinery for the total cost of loss damage or repair.

During the validity period of the policy on 15.11.1992 Piston Rod of 6.25 Ton Hammer was accidentally damaged/broken since the machine was insured, the complainant lodged claim for the Piston Rod with the opponent for an amount of Rs.2,60,000/-.

The opponent Insurance company after long delay have offered Rs.1,08,146/- against the loss of Rs.2,60,000/- by letter dated 18.07.1996 by calling for giving consent which was not accepted as assessment of the surveyor was arbitrarily and illegally against the evidence provided by the complainant. The complainant have protested against the said act of the opponent being arbitrarily and filed the complaint before the learned State Commission with the prayer to pay Rs.2,60,000/- as a loss worked out in claim bill along with 18% interest till filing of the complaint being Rs.2,38,000/- and Rs.1,00,000/- towards compensation for gross deficiency in service with further 20 prayer cost of complaint and further 18% interest from the date of complaint dated 21.05.1997 till realization.

Rejoinder against the opponent reply have been filed and produced at 29 and 30 and have denied the contents of reply.

The complainant in support of claim have filed expert surveyor opinion alongwith affidavit from page-36 to 43 where assessment amount is opined Rs.2,06,598/-.

The complainant submitted list of document page 9 to 29, Ex.12.

2. The opponent Insurance company served with the notice and filed reply. The brief facts of relevant for the defence of the complaint are as under:

Written reply of Complaint No.55/1997

1. Complaint No. : For recovery of Rs.9,59,000/-

2. Policy No. : 44211201 31306

3. Sum insured : Rs.78 Lakhs 21

4. Policy Period : 7.4.91 to 6.4.92

5. Date of Loss : 1.10.1991

6. Nature of loss : Damage to piston rod of 10 ton stamping hammer.

7. Surveyed by : P.C.Gandhi & Associates, Bombay

8. Claim amount : Rs.4,00,000/- (Intimated by insured on 1.10.1991

9. Cause of damage : Not known & under investigation as per Surveyor's report dated 21.10.1991

10. Previous damage to : Previously damaged on 8.1.90, 16.1.90, the Rod and 16.4.90.

11. Repaired by : Rod was fabricated indigenously by M/s Galaxy Castings (P) Ltd. Sister Concern of our insured.

12. Loss assessed : 1. Rs.7.30 Lakhs (if imported new)

2. Finally it was fabricated for Rs.4.21 lakhs for which assessment not rece-

ived from Surveyor, as there was a dispute inmachining charges, as per insured machining charges are 22 Rs.2.65 lakhs and our surveyor has Assessed for Rs.1.35 lakhs.

13. Claim form, estimate, actual bills not submitted till 21.9.93.

Insured was informed on 21.9.1993 by Regd. A.D. letter.

14. Letters sent by surveyor to insured for requirements: 25.10.91, 22.11.91, 14.12.91, 18.9.92, 19.12.92, 1.2.93.

15. Letters sent to insured for requirement: 8.12.91 & 21.9.93.

There is no deficiency of service on the part of the opponent, as in each and every claim the Insurer and its surveyors have acted promptly and in a co-operative manner which is clear from the various correspondence they have on file. It should be noted that the opponent had deputed seven different surveyors. The opponent heavily relies on the terms and conditions of the said policy for the examination of complainant's claim and opponent's liability. Hence, the complaint is liable to be dismissed with exemplary costs. Written reply of Complaint No.56/1997

1. Complaint No. : For recovery of Rs.9,66,000/- 23

2. Policy No. : 44211201 31306

3. Sum insured : Rs.78 Lakhs

4. Policy Period : 7.4.91 to 6.4.92

5. Date of Loss : 17.03.1992

6. Nature of loss : Damage to piston rod of 10 ton stamping hammer. Piston rod broken into 2 pieces.

7. Surveyed by : Bhatawadekar & Co., Ahmedabad

8. Claim amount : Rs.2,00,000/- (Intimated) Rs.4.44 lakhs(claim bill dtd. 28.04.1994

9. Cause of damage : Not known.

10. Previous damage to : Previously damaged on 8.1.90, 16.1.90, the Rod and 16.4.90.

11. Repaired by : Rod was fabricated indigenously by M/s Galaxy Castings (P) Ltd. Sister Concern of our insured.

12. Loss assessed : 1. Rs.7.30 Lakhs (if imported new)

2. Finally it was fabricated for Rs.4.21 lakhs for which assessment not rece-

ived from Surveyor, as there was a dispute inmachining charges, as per insured machining charges are Rs.2.65 lakhs and our surveyor has Assessed for Rs.1.35 lakhs.

13. Claim form, estimate, actual bills not submitted till 21.9.93.

Insured was informed on 21.9.1993 by Regd. A.D. letter.

14. Letters sent by surveyor to insured for requirements: 25.10.91, 22.11.91, 14.12.91, 18.9.92, 19.12.92, 1.2.93.

15. Letters sent to insured for requirement: 8.12.91 & 21.9.93.

1. Complaint No. : For recovery of Rs.6,56,500/-

2. Policy No. : 44211201 31307

3. Policy Period : 7.4.91 to 6.4.92 (specific part for Rs.11.00 lakhs i.e. 2 ton hammer)

4. Date of Loss : 25.08.1992

5. Nature of loss : Die holder of 2 ton hammer, was damaged broken into 2 pieces.

6. Surveyed by : Shankar Dhavan, Bombay.

7. Claim amount : Rs.1,50,000/- appx.

8. Cause of damage : As per surveyor, die holder was broken as a result of metal failure due to acid-

ental stresses causes by uneven impact.

9. Repaired by : As per surveyor-it is irrepairable and so it should be replaced by new. Instead of obtaining the replacement of the damag-

ed Die holder from the manufacturer, 26 insured has purchased a Die Block of much bigger size from Calcutta. After machining and heat treatment total cost of the Die Holder has been claim for Rs.2,90,000/-.

10. Loss assessed : Loss is assessed on the basis of quota-

tion or original manufacturer (i.e. N.K. Forging and Rolling Inds. Ludhiana).

After considering under insurance and Deductable franchise it has been assess-

ed for Rs.31,498/-.

11. Insured was asked to submit a consent letter for above amount and as he failed to submit the same, file was closed as No Claim on 18.7.96.

12. Letters sent by surveyor to insured for requirements: 7.10.92, 17.5.93, 21.9.93, 19.10.93, 18.7.96.

13. Letters sent to insured for requirement: 8.12.92 & 2.1.93, 6.12.94.

1. Complaint No. : For recovery of Rs.7,94,000/-

2. Policy No. : 44211201 32310

3. Sum Insured : Rs.1,10,00,000/-

4. Policy Period : 20.4.92 to 19.4.93

5. Date of Loss : 1.9.92

6. Nature of loss : Die holder of 10 ton hammer, was broken.

7. Surveyed by : Shankar Dhavan, Bombay.

8. Claim amount : Rs.3,78,285/-

9. Cause of damage : Fretting Corrossion.

10. Previous damage to the : Previously damaged on 16.1.90, 8.1.90, Rod. 16.4.90, 1.10.91 & 17.3.92.

11. Repaired by : Insured themselves have fabricated the rod.

12. Loss assessed : Loss is assessed by the surveyor after deducting depreciation, salvage & D.F. is Rs.1,17,438/-.

13. Insured was informed to submit consent letter for Rs.1,17,438/-

by letter dated 6.10.95.

14. Insured has asked for voucher vide letter dated 7.7.96 (recd. On 18.7.96) We had closed the file as no claim on 18.7.96.

15. Letters sent by surveyor to insured for requirement: 7.10.92.

16. Letter sent to insured for requirement: 7.10.92.

There is no deficiency of service on the part of the opponent, as in each and every claim the Insurer and its surveyors have acted promptly and in a co-operative manner which is clear from the various correspondence they have on file. It should be noted that the opponent 29 had deputed seven different surveyors. The opponent heavily relies on the terms and conditions of the said policy for the examination of complainant's claim and opponent's liability. Hence, the complaint is liable to be dismissed with exemplary costs. Written reply of Complaint No.59/1997

1. Complaint No. : For recovery of Rs.9,66,000/-

2. Policy No. : 44211201 32307

3. Policy Period : 7.4.91 to 6.4.92

4. Date of Loss : 18.12.1992

5. Nature of loss : Damage to piston rod of 3.15 ton hammer.

6. Surveyed by : K G Chanlani, Ahmedabad.

7. Claim amount : Rs.10,21,000/-.

8. Cause of damage : Miss-alignment on Anvil & Tub. If metal parts with temperature less than required is forged, then also it can damage the rod.

9. Repaired by : Rod was replaced by another one.

Supplier has already supplied extra rods At the time of original machine (hammer) was delivered.

10. Loss assessed : After deducting depreciation, salvage, under insurance excess etc., net payable is Rs.10,390/-.

11. Insured has not accepted the assessed amount as per their letter dated 16.4.96, due to non submission of consent letter from insured, file was closed as no claim on 18.7.96.

12. Letters sent by surveyor to insured for requirements: 22.12.92 & 24.8.93.

14. Letters sent to insured for requirement: 21.7.93 & 21.9.93.

There is no deficiency of service on the part of the opponent, as in each and every claim the Insurer and its surveyors have acted promptly and in a co-operative manner which is clear from the various correspondence they have on file. It should be noted that the opponent had deputed seven different surveyors. The opponent heavily relies on 31 the terms and conditions of the said policy for the examination of complainant's claim and opponent's liability. Hence, the complaint is liable to be dismissed with exemplary costs. Written reply of Complaint No.60/1997

1. Complaint No. : For recovery of Rs.19,00,000/-

2. Policy No. : 44211201 31307

3. Sum Insured : Rs.20 lakhs

4. Policy Period : 7.4.92 to 6.4.93

5. Date of Loss : 2.2.1993

6. Nature of loss : Damage to piston rod of 3.15 ton pneumatic hammer.

7. Surveyed by : Dilip M. Shukla, Ahmedabad.

8. Claim amount : Rs.10,67,000/- appx.

9. Cause of damage : Not known, it appears that survey report has not been received from sur-

veyors, as he has not received necessary clarifications and claim papers from insured.

10. Previouse damage : Previously damaged on 18.12.92.

to the rod.

11. Insured has not accepted the assessed amount as per their letter dated 16.4.96, due to non submission of consent letter from insured, file was closed as no claim on 18.7.96.

12. Letters sent by surveyor to insured for requirements: 22.12.92 & 24.8.93.

14. Letters sent to insured for requirement: 21.7.93 & 21.9.93.

1. Complaint No. : For recovery of Rs.18,72,000/-

2. Policy No. : 44211201 32307

3. Policy Period : 7.4.91 to 6.4.92

4. Date of Loss : 18.3.93

5. Nature of loss : Piston Rod of 3.15 ton hammer was damaged.

6. Surveyed by : Transocean Marine & General Survey Agencies, Ahmedabad.

7. Claim amount : Rs.10,07,000/-.

8. Cause of damage : Process itself is responsible for this kind of fatigue fracture of Rod. As per Sur-

vey report, the cause of loss is due to effect of continuous usage, gradually developing cracks, defects, flaws etc.

9. Repaired by : Replaced by another Rod by insured.

10. Loss assessed : Surveyor has assessed at NIL value. As cause of damage is exclusion under M B 34 policy.

Surveyor has consulted few technical experts of M/s Bharat Forge & M/s Kalyani Steel before giving his final Opinion.

11. Letters sent by surveyor to insured for requirements: 22.3.93.

12. Letters sent to insured for requirement: 21.9.93.

1. Complaint No. : For recovery of Rs.6,85,000/-

2. Policy No. : 44211201 32307

3. Policy Period : 7.4.92 to 6.4.93

4. Date of Loss : 19.3.1993

5. Nature of loss : Damage to 2 MT Die holder.

6. Surveyed by : Transocean Marine & General Survey Agencies, Ahmedabad.

7. Claim amount : Rs.3,33,000/-.

8. Cause of damage : Not Known.

9. Repaired by : At the time of survey, the damaged die holder was installed in 2 MT forging machine and was under operation. After stopping the machine, the survey was carried out and only a hair-line-crack was found on it, The Photographs were taken. No repairs were carried out. Insu-

red has claimed for manufacturing new die holder.

10. Loss assessed : As per the recommendations of Survey-

or, claim file was closed as No Claim presuming that insured is not interested in claim as they have not submitted required documents till April-94 on 15.4.94.

11. Letters sent by surveyor to insured for requirements: 22.3.1993.

12. Letters sent to insured for requirement: 14.7.93 & 21.9.93.

1. Complaint No. : For recovery of Rs.5,98,000/-

2. Policy No. : 44211201 31325

3. Policy Period : 19.1.92 to 18.1.93

4. Date of Loss : 15.11.1992

5. Nature of loss : Damage to piston rod of 6.5 ton hammer.

6. Surveyed by : Kiraj Consultants, Ahmedabad.

7. Claim amount : Rs.2,60,000/-.

8. Repaired by : Rod was fabricated by manufacturer M/s Galaxy Castings Pvt.Ltd.(Sister Concer of Insured).

9. Loss assessed : After deducting salvage and considering under insurance of 60.65% net loss is assessed for Rs.64,310/-. Revised to Rs.1,08,146/-.

10. Letters sent by surveyor to insured for requirements: 1.12.92, 30.12.92, 2.2.93, 4.9.93.

3. The opponent have also submitted the following documents:

i. Copies of policy of each complaint.


      ii.    Opponent's letter to the complainant dtd.5.10.98

      iii.   Survey report dated 6.1.98

      iv.    Affidavit of surveyors.

Findings:

4) We have gone through the documentary evidence, survey reports, affidavits submitted by both the parties, terms & conditions of the policy. Shri S.J. Mehta, Learned advocate, for the complainant submitted written arguments. Shri H.M. Bhagat, Learned advocate for 39 the opponent also filed written arguments, which are discussed in our findings.

The undisputed facts in the present complaints are that the complainant is a registered under the Companies Act, 1956 and covered under the definition of Consumer Protection Act, 1986. The complainant had insured under the Machinery Insurance Policy with the opponent, New India Assurance Co. Ltd. The machineries are installed in the factory premises of the complainant since 1991. Due to the damage in the machinery at different time, the complainant had lodged the claim with the opponent Insurance company time to time and out which some of the claims have been repudiated and some of the claims have been offered by the opponent with less amount. The detailed particulars are as under :-

Complaint No.55/97

a. Damage Particulars : Piston Rod of 10 ton hammer was accidently Damaged/Broken on 1.10.91.

b. Ins. Policy No. & : 4421120131306 & Rs.78.00 lakhs. Sum insured.

c. Claim lodged for : Rs.4,21,000/- + 18% interest from 21.5.97 and Rs.1,00,000/- compensation.


d. Date of Repu-       : 18.7.96 on the ground of non production of
  diation & Reason.      Documents.

e. Assessed amount     : Rs.2,33,753/-.



Complaint No.56/97

a. Damage Particulars : Piston Rod of 10 ton hammer was accidently Damaged/Broken on 17.3.92.

b. Ins. Policy No. & : 4421120131306 & Rs.78.00 lakhs. Sum insured.

c. Claim lodged for : Rs.4,44,000/- + 18% interest from 21.5.97 and Rs.1,00,000/- compensation.


d. Date of Repu-       : 18.7.96 on the ground of non production of
  diation & Reason.      Documents.

e. Assessed amount     : Rs.2,33,753/-.



Complaint No.57/97

a. Damage Particulars : Piston Rod of 2 ton hammer was accidently Damaged/Broken on 25.8.92.

b. Ins. Policy No. & : 4421120132307 & Rs.11.00 lakhs. Sum insured.

c. Claim lodged for : Rs.2,90,000/- + 18% interest from 21.5.97 and Rs.1,00,000/- compensation.

d. Date of Offer       : 18.7.96 & Rs.31,498/-.
   & Amount.

e. Assessed amount     : Rs.1,11,360/-.



Complaint No.58/97

a. Damage Particulars : Die Holder of 10 ton hammer was accident-

tally damaged/broken on 1.9.92.

b. Ins. Policy No. & : 4421120132310 & Rs.11.00 lakhs. Sum insured.

c. Claim lodged for : Rs.3,73,285/- + 18% interest from 21.5.97 and Rs.1,00,000/- compensation.

d. Date of Offer       : 18.7.96 & Rs.1,17,437/-.
   & Amount.

e. Assessed amount     : Rs.2,07,085/-.



Complaint No.59/97

a. Damage Particulars : Piston Rod of 3.15 ton hammer was accident-

ally Damaged/Broken on 18.12.92.

b. Ins. Policy No. & : 4421120132307 & Rs.20.00 lakhs. Sum insured.

c. Claim lodged for : Rs.10,20,938/- +18% interest from 2.5.97 42 and Rs.1,00,000/- compensation.

d. Date of Offer       : 18.7.96 & Rs.10,390/-.
   & Amount.

e. Assessed amount     : Rs.5,61,052/-.



Complaint No.60/97

a. Damage Particulars : Piston Rod of 3.15 ton hammer was accident ally Damaged/Broken on 2.2.93.

b. Ins. Policy No. & : 4421120132307 & Rs.20.00 lakhs. Sum insured.

c. Claim lodged for : Rs.10,06,938.13- + 18% interest from 21.5.97 and Rs.1,00,000/- compensation.


d. Date of Repu-       : 18.7.96 on the ground of non production of
  diation & Reason.      Documents.

e. Assessed amount     : Rs.5,61,052/-.



Complaint No.61/97

a. Damage Particulars : Piston Rod of 3.15 ton hammer was accident ally Damaged/Broken on 18.3.93.

b. Ins. Policy No. & : 4421120132307 & Rs.20.00 lakhs. Sum insured.

c. Claim lodged for : Rs.10,06,938/- + 18% interest from 21.5.97 and Rs.1,00,000/- compensation.

                                   43



d. Repudiation         : On the ground of non production of
   & Reason.             Documents.

e. Assessed amount     : Rs.5,61,052/-.



Complaint No.62/97

a. Damage Particulars : NHK-2 ton drop hammer was accidentally Damaged/Broken on 19.3.93.

b. Ins. Policy No. & : 4421120132307 & Rs.20.00 lakhs. Sum insured.

c. Claim lodged for : Rs.3,32,625/- + 18% interest from 21.5.97 and Rs.1,00,000/- compensation.


d. Repudiation         : On the ground of non production of
   & Reason.             Documents.

e. Assessed amount     : Rs.1,75,744/-.

Complaint No.63/97 M/s Star Forging Pvt.Ltd. a. Damage Particulars : Piston Rod of 6.25 ton hammer was accident ally Damaged/Broken on 15.11.92.

b. Ins. Policy No. & : 4421120131325 & Rs.33.00 lakhs. Sum insured.

c. Claim lodged for : Rs.2,60,000/- + 18% interest from 21.5.97 and Rs.1,00,000/- compensation.

                                     44


d. Date of Repu-         : 18.7.96 on the ground of non production of
  diation & Reason.        Documents.

e. Assessed amount       : Rs.2,06,598/-.

In view of the above discussions with our findings, we pass following order.

ORDER Complaint No.55/97 The complainant had lodged the claim for Rs.4,21,000/-. The opponent Insurance company had repudiated the claim on 21.9.93 on the basis of non-submission of required documents and confirmed the same vide letter dated 18.7.96. The opponent had taken contention that the complaint is time barred. However, we have referred the letter dated 16.9.94 of M/s P.C. Gandhi & Associates, addressed to the complainant, which proved that the complainant had provided relevant documents subsequent to 21.9.93 and the complaint was filed on 26.5.97 which is within limitation period under the Consumer Protection Act, 1986. Therefore, the opponent's contention of time barred is not accepted. However, we have perused the survey report dated 25.10.91 of M/s P.C. Gandhi & Associates, surveyor of the 45 opponent, who had provisionally assessed the loss amount between Rs.2.50 to Rs.3.00 lakhs. We have also perused the detailed report dated 5.12.2005 of the complainant's surveyor Shri Bhaskar G. Bhatt, who had verified the paid bills of the respective parts etc. and suggested the opponent to indemnify Rs.2,33,753/-.

In view of the above facts, the opponent had wrongly repudiated the claim on the ground of non-production of documents. Both the surveyor have suggested the nearby figure for the damage loss. Therefore we believe that the amount suggested by the complainant's surveyor Rs.2,33,753/- is just & proper.

Complaint No.56/97

The complainant had lodged the claim for Rs.4,44,000/- for the accidental damage loss. The opponent Insurance company had repudiated the claim on 18.07.1996 on basis of non-submission of required documents to the surveyor M/s Bhatwadekar & Co. The opponent had failed to submit provisional report of the surveyor. Wherein the complainant had submitted the report dated 5.12.2005 of 46 Shri Bhaskar G. Bhatt, supported by an affidavit, who had stated that this being an accidental fault, which falls under Machinery Break down policy and stated loss of Rs.2,33,753/-.

That the opponent has not submitted the report of the Surveyor M/s Bhatwadekar & Co. Therefore, we accept the surveyor's report of the complainant, in which he had stated total loss of Rs.2,33,753/-.

The opponent failed to access the loss, which proved the deficiency in service.

Moreover, the opponent's contended that the complaint is time barred because the claim was repudiated on 18.7.96 and the complaint was filed on 21.5.97. We are of the opinion that the complaint is filed within time limit and contention of the opponent for the time barred is not accepted.

As the opponent had taken more than sufficient time to decide the claim, which proved their deficiency in service. 47

In view of the above discussion and the complainant had proved his case by the cogent evidence and established the deficiency in service.

Complaint No.57/97

The complainant had lodged the claim for Rs.2,90,077/-. The opponent Insurance company had asked the complainant to submit a consent letter for the settlement of claim of Rs.31,498/-. Shri Shankar Dhavan, surveyor in his report dated 8.7.95 for the accidental damage to the Die holder, recommended Rs.39,052/-. The complainant had not given consent. Therefore, the file was closed as 'No Claim' vide letter dated 18.7.96.

That M/s Shankar Dhavan had stated in the report asunder :

"Instead of obtaining the replacement for the damaged DIE HOLDER from the manufacturer, the insured purchased a DIE BLOCK of a much bigger size from M/s Chembot Associates, Calcutta". 48

We have perused quotation of M/s N K Forgings & Rolling Industries, Ludhiana (Original manufacturer) dated 23.6.1994 for Rs.2,80,000/- (The prices are Ex.works, all Govt. taxes extra). Whereas the Bill dated 5.11.92 of M/s Chembit Associates, Calcutta reveals total Rs.2,33,452.85.

From the above fact, it appears that the price of M/s Chembit Associates, Calcutta is lower than M/s N K Forgings & Rolling Industries. We are of the opinion that it is the discretion of the complainant to purchase the DIE BLOCK, from open market. There is no such condition in the policy to purchae the DIE BLOCK from the original manufacturer. Therefore, the contention of the surveyor regarding purchase of 'DIE BLOCK' and recommendation of Rs.3,9,055/- only is too low. Therefore, it is not acceptable.

The complainant had submitted the report of Shri Bhaskar G. Bhatt, Surveyor, supported by the affidavit, wherein it is stated that all the payments made towards material and labour charges through cheque. Therefore, we are of the opinion that amount Rs.1,11,360/- 49 stated by Shri Bhaskar G. Bhatt, Surveyor is reasonable. The opponent's surveyor had not given detailed reason for the loss assessed. Further, date of loss on 25.8.92, the Surveyor had submitted his report on 8.7.95, the opponent had repudiated the claim on 16.4.96. The time by the opponent for deciding the matter was more than sufficient time, which proved their deficiency in service.

Complaint No.58/97

The complainant had lodged the claim for Rs.3,73,285/-. The opponent Insurance company had repudiated the claim on 21.9.93 on the ground of non submission of required documents and subsequently repudiated the claim on 18.7.96 for non-production of consent letter for Rs.1,17,437/- on the ground of non-submission of required documents. Which shows the different grounds for repudiation. Further the time taken by the insurance company was more than sufficient time which proved deficienty in service. The opponent had appointed surveyor Shri Shankar Dhavan, who had given final survey report dated 4.8.95 with an affidavit, wherein it is stated that the nature of loss damage to Piston Rod of 10 Ton Double action drop hammer M 2150 and the amount 50 suggested towards loss assessed Rs.1,17,437/-. Wherein complainant's surveyor Shri Bhaskar G. Bhatt had assessed loss to Rs.2,07,085/- in his report dated 14.9.2005, supported by affidavit.

While perusing both report of Shri Shankar Dhavan had stated that the insured have also claimed for the Bush, Alluminium Gasket and Brass Seams since these components were not presented for survey, the cost claimed for them is not indemnifiable. However, Shri B.G. Bhatt had stated in his report that the insured had paid all the charges through Corporation Bank for the items referred by Shri Shankar Dhavan. Therefore, we do not accept the opinion of M/s Shankar Dhavan.

Complaint No.59/97

The complainant had lodged the claim for Rs.10,21,000/- towards damage of the Rod. The opponent closed the file as 'No Claim because the insured had not accepted the offer of the loss assessed amount as per their letter dated 16.4.1996. The opponent had appointed surveyor Shri K G Chablani, who had visited the site on 21.12.92. The surveyor 51 in his report dated 18.3.1996 with the affidavit, had assessed the loss of Rs.10,390/-. Wherein the complainant's surveyor Shri Bhaskar G. Bhatt had assessed loss to Rs.5,61,052/-.

While perusing both report of Shri K G Chablani had stated that the insured have claimed for the damage of Piston Rod of Rs.9,94,933.00. The insured had imported the same from Russia on 26.2.92. We are of the opinion that Shri B G Bhatt had considered that the latest cost of the piston. Therefore, it is on higher side. So, we are of the opinion that the detailed report of opponent surveyor Shri K G Chablani is genuine.

Complaint No.60/97

The complainant had lodged the claim for the damage to piston Rod of 3.15 ton hammer for Rs.10,67,000/-. The opponent Insurance company had repudiated the claim vide letter dated 18.7.96 on the ground of non-submission of required documents to the surveyor Shri Dilip Shukla. But Shri Shukla not provided provisional report, so there is no question of submit documents.

The complainant had submitted the report of surveyor Shri Bhaskar G. Bhatt dated 5.12.05 with affidavit, wherein it is stated the net total loss assessed is Rs.5,61,052/-.

In view of the above facts, we have considered the detailed survey report of Shri Bhaskar G. Bhatt dated 5.12.2005, as the opponent failed to provide the provisional report from Shri Dilip Shukla. It proved the deficiency in service for not deciding the claim upto 18.7.1996. We, therefore, direct the opponent to pay Rs.5,61,052/- with 9% interest p.a. from 18.7.1996 till realization. Complaint No.61/97

The complainant had lodged the claim for Rs.10,07,000/- for damage to piston Rod of 3.15 ton hammer. The opponent Insurance company closed the file as 'No Claim' vide letter dated 18.7.1996 as the surveyor has assessed as NIL value. As cause of damage is exclusion under Machinery Break-down policy. The complainant is not entitled for the claim amount.

The complainant had submitted the report of surveyor Shri Bhaskar G. Bhatt dated 5.12.05, wherein he had opined that the exact cause of this break down is not known and failure of the piston rod is because of either faulty material or faulty design of the OEM. In our view, the complainant or his surveyor failed to prove that the loss was due to accident.

We have perused both the reports. The detailed report of opponent's surveyor Trans Ocean Marine and General Survey 'Agencies dated 4.1.1994 (page-8) wherein they have stated that incident occurred on 18.3.93 and visited on 20.3.93. Further, that cause of loss is due to effect of continuous usage, gradually developing cracks, defects flaws etc. i.e. Fatigue failure of material & nature of the rod. This is an exclusion in Machinery Break-down policy.

In view of the above, as the damage is due to fatigue, which is an exclusion as per policy condition. Therefore, the opponent had rightly repudiated the claim.

Complaint No.62/97

The complainant had lodged the claim of Rs.3,32,625/- for the damage to NKH 2 ton drop hammer including foundation was accidentally damaged/broken. That the opponent had closed the file as 'No Claim' on 15.4.1994 due to non-submission of the documents to the surveyor Trans Ocean Marine & General Agencies.

The complainant had submitted the report of surveyor Shri Bhaskar G. Bhatt dated 5.12.2005, wherein it is stated the net total loss assessed is Rs.1,75,774/-.

We have gone through the correspondence between the complainant and the opponent's surveyor. The surveyor of the opponent had observed vide letter date 13.7.1994 that the Die holder was having a heir line/small crack on it. Even though the same die holder was in use on 20.3.1993. From the correspondence, it is also observed that it required repairing. We have to consider the complainant's surveyor report because the Die Holder Block was in stock which was replaced after the accident. They have paid labour 55 charges to M/s P. Narandas & Co. and erection charges to M/s Dhulesia Pravin, all of them were paid by cheque. Therefore, opponent had wrongly repudiated the claim, which proves the deficiency in service. Complaint No.63/97

The complainant had lodged the claim of Rs.2,70,000/- for the damage to piston Rod of 6.25 ton hammer for Rs.10,67,000/-, which was accidentally damaged/broken on 15.11.1992. The opponent Insurance company had closed the file vide letter dated 18.7.1996 as 'No Claim' on the ground of non-submission of consent letter for Rs.1,08,146/-, Kirj Consultant, Ahmedabad.

The final report of the surveyor M/s Kirj Consultant, Ahmedabad was not submitted. In the provisional report, details were not given as to how they had arrived the conclusion of Rs.1,08,146/-, which proves their deficiency in service, where as the complainant's surveyor had submitted the report dated 5.12.2005 on affidavit and stated the net total loss of Rs.2,06,598/-.

In view of the above facts, we have considered the detailed survey report of Shri Bhaskar G. Bhatt dated 5.12.2005.

We pass following orders in all the above referred complaints as under:

1) Complaint No.55/97:

a) The complaint is partly allowed.

b) The opponent is directed to pay Rs.2,33,753/- with 9% p.a. interest from 18.7.96 till realisation with cost of this litigation Rs.10,000/-.

2) Complaint No.56/97:

a) The complaint is partly allowed.

b) The opponent is directed to pay Rs.2,33,753/- with 9% p.a. interest from 21.5.97 till realisation with cost of this litigation Rs.10,000/-.

3) Complaint No.57/97:

a) The complaint is partly allowed.

b) The opponent is directed to pay Rs.1,11,360/- with Interest @ 9% p.a. from 18.7.96 till realization with cost of this litigation Rs.5,000/-.

4) Complaint No.58/97:

a) The complaint is partly allowed.

b) The opponent is directed to pay Rs.2,07,085/- with Interest @ 9% p.a. from 18.7.96 till realisation with cost of this litigation Rs.10,000/-.

5) Complaint No.59/97:

a) The complaint is partly allowed.

b) The opponent is directed to pay Rs.10,390/- with 9% p.a. interest from 16.4.96 till realisation.

6) Complaint No.60/97:

a) The complaint is partly allowed.

b) The opponent is directed to pay Rs.5,61,052/- with Interest @ 9% p.a. from 18.7.96 till realisation with cost of this litigation Rs.10,000/-.

7) Complaint No.61/97:

a) Complaint no.61 of 1997 is hereby dismissed. 58

b) Parties have to bear their own costs.

8) Complaint No.62/97:

a) The complaint is partly allowed.

b) The opponent is directed to pay Rs.1,75,774/- with Interest @ 9% p.a. from 15.4.94 till realisation with cost of this litigation Rs.5,000/-.

9) Complaint No.63/97:

c) The complaint is partly allowed.

d) The opponent is directed to pay Rs.2,06,598/- with Interest @ 9% p.a. from 18.7.96 till realisation with cost of this litigation Rs.10,000/-.

[ BHARAT JOSHI ]                         [ N.A. ACHARYA]
Member                                   Presiding Member

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M/S Forg & Forg Ltd. vs The New India Assurance Co.Ltd. on 31 January, 2011