State Consumer Disputes Redressal Commission
United India Ins. Co. Ltd vs Krishna Hardware on 21 September, 2021
Details DD MM YY
Date of disposal 21 09 2021
Date of filing 26 08 2014
Duration 26 01 07
BEFORE THE CONSUMER DISPUTES REDRESSAL COMMISSION
GUJARAT STATE, AHMEDABAD.
COURT NO: 04
Appeal No. 1574 of 2014
United India Insurance Co. Ltd.
Valsad, Through its Regional Office,
Suraj Plaza II, 5th floor,
Sayaji Gunj, Vadodara. ... Appellant
V/s.
Proprietor of Krishna Hardware,
Rajendra Kalyanji Dudhaiya,
Nr. Patel Chambers,
Kailash Road,
Valsad Ta. & Dist. Valsad. ...Respondent.
BEFORE: Dr. J.G. Mecwan, Presiding Member.
APPEARANCE: Mr. V.P. Nanavaty, L.A. for the appellant.
Mr. P.K. Shukla, L.A. for the respondent.
Order by Dr. J.G. Mecwan, Presiding Member.
JUDGMENT
1. Being aggrieved by and dissatisfied with the judgment and order rendered by the learned District Consumer Disputes Redressal Commission, Valsad on 29.04.2014 in Complaint No. 85 of 2013 the original opponent has filed the present appeal under Section 15 of the Consumer Protection Act, 1986 before this Commission. For the sake of the convenience, parties are hereinafter referred to by their original nomenclature.
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R.I. DESAI A/14/1574
2. The facts given rise to the present appeal in a nutshell are as under: It is the case of the complainant that the complainant had taken Standard Fire and Special Perils policy from the opponent United Insurance Co. Ltd., for the period 27/11/2010 to 26/11/2011 for Rs. 5,00,000/- through India Bank, Valsad, the complainant was having bank account with India Bank, Valsad and therefore the policy was taken through Indian Bank, Valsad. It is further the case of the complainant that the policy was taken for covering the risk of the goods stored and kept in the premises of complainant namely Krishna Hardware, near Patel Chamber, Kailash Road, Valsad. It is submitted by the complainant that the complainant was not explained terms and conditions of the policy. It is further submitted by complainant that on 29/08/2011 there was a heavy rain in Valsad and because of this the Chhipwad and Kailash road area were flooded in the water and the water had entered into the premises of the complainant, as a result the goods stored in the premises and other documents kept therein were heavily damaged. It is further the case of the complainant that due to the heavy rain, the complainant in all sustained loss to the tune of Rs. 7,44,872/- and thereafter the complainant had given written intimation to the opponent Insurance Company on 30/08/2011. Thereafter the opponent Insurance Company had appointed a surveyor who visited the premises on 30/08/2011 and took the Page 2 of 11 R.I. DESAI A/14/1574 photographs of the damage caused and went away and after that the surveyor has never come again and has never contacted the complainant. It is further the case of the complainant that the Gram Panchayat of the Pardi Sandhpore had also issued certificate dated 12/09/2011 regarding the damage caused to the goods of the complainant and thereafter the complainant had also taken photographs of the damage. The complainant had filed claim for the reimbursement of the damage caused. Thereafter the opponent Insurance Company has demanded the various required documents related the claim and also demanded the stock statement prepared by Chartered Accountant which was also sent by the complainant to the opponent Insurance Company and thereafter as and when demanded sent required documents to opponent Insurance Company but though the complainant has sent all the required document demanded by opponent Insurance Company, the opponent Insurance Company repudiated the claim vide letter dated 03/12/2012 and therefore the complainant has filed this Consumer Complaint before the learned District Commission Valsad for deficiency in service and unfair trade practice against the opponent Insurance Company.
3. Being dissatisfied with the deficiency in service and unfair trade practice committed by the opponent Insurance Company, complainant has filed Consumer Complaint before the ld. District Page 3 of 11 R.I. DESAI A/14/1574 Commission Valsad and prayed for the claim of Rs. 5,00,000/- with 9% interest from 29.08.20211 and Rs. 15,000/-towards compensation for the mental torture along with Rs. 10,000/- costs for expenditure of the complaint.
4. After hearing learned advocates for both the parties and after considering the documents and evidences, the ld. District Commission partly allowed the complaint of the complainant.
5. Being aggrieved by the impugned order of the ld. District Commission, Valsad the original opponent has filed the present appeal against the original complainant before this Commission on the ground stated in the appeal memo.
6. Heard ld. Adv. Mr. Darshil Parikh on behalf of ld. Adv. Mr. V.P. Nanavaty for the appellant and ld. Adv. Mr. P.K. Shukla for the respondent at length. Perused the record of the case, order of the ld. District Commission and judgments submitted by both the parties.
7. First of all ld. Adv. for the appellant Mr. Darshil Parikh has argued out that learned District Commission ought to have considered that the sum insured of stock was Rs. 5,00,000/- whereas as per the admission on the part of the insured-complainant, on the date when the stock was damaged due to heavy rain, the same was valued at Rs. 22,54,630/- out of which the insured-complainant has further admitted that loss to the tune of Rs.7,44,872/- was Page 4 of 11 R.I. DESAI A/14/1574 damaged. Learned Advocate Mr. Parikh has further submitted that the learned District Commission has also ought to have perused the following condition as appearing on the policy of insurance:
10. "if the property hereby insured shall at the breaking out of any fire or at the commencement of any destruction of or damage to the property by any other peril hereby insured against the collectively of greater value than the sum insured thereon, then the insured shall be considered as being his own insurer for the difference and shall bear a rateable proportion of the loss accordingly. Every item, if more than one, of the policy shall be separately subject to this condition"
8. It is further submitted by learned Advocate Mr. Parikh that learned District Commission ought to have dismissed the complaint as the complainant failed to provide the documents sought by the surveyor for assessment of loss and without considering the said facts; learned District Commission has passed the order which is not just and proper. It is further submitted by learned Advocate Mr. Parikh that after receipt of the judgment and order of the learned District Commission it has sought the opinion of the surveyor on the basis of the documents forwarded by the complainant and accordingly the surveyor has assessed the final loss in the sum of Rs. 1,08,417/- on account of under -insurance of 77.82%
9. Learned Advocate Mr. Parikh concluded that the order passed by the learned District Commission is not just and proper and therefore it should be quashed and set aside by allowing this Page 5 of 11 R.I. DESAI A/14/1574 appeal. In support of his arguments learned Advocate Mr. Parikh has submitted following judgment:
I (2018) CPJ 6 (SC).
10. Upon service of the notice learned Advocate Mr. P.K. Shukla has appeared on behalf of the respondent and vehemently argued out that the complainant has submitted all the required documents which were demanded by the opponent Insurance Company but vide letter dated 03.12.2012 it has been informed by the opponent Insurance Company that the complainant's claim file has been closed as "NO CLAIM". Learned Advocate Mr. Shukla further submitted that the opponent Insurance Company has appointed the surveyor but the report of the said surveyor was not submitted during the proceeding of the Compliant before the learned District Commission and it has only been submitted before this State Commission here and therefore the said report should not be considered.
11. Learned Advocate Mr. Shukla concluded that the order passed by the learned District Commission is just and proper and therefore it should be confirmed by dismissing this appeal. In support of his arguments learned Advocate Mr. Shukla has submitted following judgments:
(I) 2019 (0) AIJEL-SC-64066, (Civil Appeal no. 3912 of 2019) (II) 2020 (0) AIJEL-HC 65757, (Civil Appeal no. 10409 of 2016) (III) 2020 (0) AIJEL-HC 242802,( Civil Appeal no. 01 of 2020) (IV) 2021 (0) AIJEL-HC 242575,( Civil Appeal no. 01 of 2010).Page 6 of 11
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12. In the instant case the repudiation letter of the opponent Insurance Company is on record at page no. 64 wherein the reason for the repudiating the claim is shown has under:
Inspite of letters/reminders sent to you, you have not complied with the required papers/documents.
We are closing your claim-file on account of the following reason:- AS PER REGD.A.D. LT. NO. 25 DTD 23.05.2012, 829 DTD. 28.06.2012, 479 DTD. 08.08.2012 AND VARIOUS REMINDERS LETTER FROM SURVEYOR, YOU HAVE NOT SUBMITTED REQUIRED PAPERS HENCE CLOSE YOUR FILE AS NO CLAIM.
13. In the instant case it is the case of the complainant that though all the required documents has been submitted to the opponent Insurance Company, the claim of the complainant was repudiated by the opponent Insurance Company for not supplying the documents. Furthermore, it is an admitted fact that survey report was not submitted during the proceeding of the Complaint before the learned District Commission but it has just been submitted before this Commission in the present Appeal.
14. It is an averment of the learned Advocate for the appellant that Insurance Company has not repudiated the claim of the complainant, but as complainant has not supplied the necessary documents to the Insurance Company and therefore in the absence of the required documents; the claim file was closed as "NO CLAIM". It is further an averment of the learned Advocate for the appellant that as per the Profit & Loss A/c. of the complainant, Page 7 of 11 R.I. DESAI A/14/1574 STOCK IN HAND shown as Rs. 22,54,630/- during the period of 01.04.2011 to 28.08.2011 i.e on the date of incident but sum insured for the Stock was only Rs. 5,00,000/-. Furthermore it is admitted by the complainant that the loss occurred to the tune of Rs. 7,44,872/- and therefore it is crystal clear that the present case is of under-insurance.
15. I have gone through the Profit & Loss A/c. of the complainant which is on record at page no. 55 wherein Rs. 22,54,630/- is mentioned as STOCK IN HAND. The policy terms and conditions is also on record at page no. 26 to 36 wherein Section 10 at page No. 32 is reproduced below:
10. "if the property hereby insured shall at the breaking out of any fire or at the commencement of any destruction of or damage to the property by any other peril hereby insured against the collectively of greater value than the sum insured thereon, then the insured shall be considered as being his own insurer for the difference and shall bear a rateable proportion of the loss accordingly. Every item, if more than one, of the policy shall be separately subject to this condition"
16. Looking to the above terms and conditions and the balance sheet; it is crystal clear that the complainant has taken under-insurance and therefore on the basis of the STOCK IN HAND Rs. 22,54,630/-
on the date 29.08.2011, 77.82% is under-insurance in the present case.
17. Opponent Insurance Company has appointed the surveyor and on the basis of the balance sheet of the complainant, surveyor has made calculation on the basis of the terms and condition i.e. under- Page 8 of 11
R.I. DESAI A/14/1574 insurance and in the report of surveyor following calculation has been shown:-
Total Assessed Loss - (A 106456.91+B 427434.25) = 533891.18 Less:
Insured shared under insurance -[77.82%] - 415474.12 118417.06 Less:
Excess - AS Per Policy condition -10000.00
108417.06
TENTATIVE ASSESSED LOSS = 108417.00
18. The survey report was not submitted during the preceding of the Complaint before the learned District Commission but it is submitted here before this State Commission however the calculation made by the surveyor on the basis of the under-insurance and on the basis of the balance sheet of complainant is a factual aspect and hence in the opinion of this Commission that calculation can be accepted in the present case. Therefore on the basis of this calculation due to under insurance condition of policy, complainant can get only Rs. 1,08,417/-
as a claim amount in this case.
19. It is submitted by ld. Adv. Mr. Parikh that complainant has not sent the required documents even after various reminders of the opponent Insurance Company and therefore opponent Insurance Company could not settled the claim. I have also gone through the record of this Appeal. The copies of reminders issued by opponent Insurance Company is on record regarding submission of the documents and therefore it seems that complainant has not produced the sufficient required documents to the opponent Insurance Company and hence in the opinion of this Commission the complainant himself is liable for the said delay for Page 9 of 11 R.I. DESAI A/14/1574 the settlement of claim amount. Therefore in the opinion of this Commission for the delay caused by complainant in submitting the documents, opponent Insurance Company cannot held liable for the payment of interest on the claim amount.
20. On the basis of the above discussion in depth, I am of the opinion that the order passed by the leaned District Commission is not just and proper and it is required to be modified and hence the following final order is passed.
ORDER
1. The present appeal is hereby partly allowed.
2. The order of learned District Commission, Valsad in C.C. no. 85/2013 on dated 29.04.2014 at serial no. 02 is modified as under:
"Opponent Insurance Company shall pay Rs. 1,08,417/- (Rupees one Lac eight thousand four hundred and seventeen only) to the complainant."
3. Rest of the order passed by learned District Commission Valsad is hereby confirmed.
4. Opponent Insurance Company shall comply with this order within 60 days from the date of this order.
5. No order as to cost.
6. Appellant is directed to apply to the Account Department of the State Commission with all details of Appeal No. 1574/2014 and C.M.A. no. 990/2014, Xerox copy of the Page 10 of 11 R.I. DESAI A/14/1574 receipt to withdraw the amount deposited in the State Commission. The office is hereby ordered to pay deposited amount with accrued interest on proper verification to the appellant by Account payee cheque and the cheque be handed over to the learned advocate for the appellant after obtaining receipt.
7. Registry is hereby instructed to send a copy of this order in PDF format by E-mail to learned District Commission Valsad for necessary action.
8. Office is directed to forward a free of cost certified copy of this judgment and order to the respective parties. Pronounced in the open Court today on 21st September, 2021.
[Dr. J.G. Mecwan] Presiding Member.
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