State Consumer Disputes Redressal Commission
M/S.Cavinkare Private Limited, Having ... vs 1. The Branch Manager, United India ... on 27 February, 2013
BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI BEFORE : HONBLE THIRU.JUSTICE R.REGUPATHI PRESIDENT THIRU.A.K.ANNAMALAI JUDICIAL MEMBERF.A.NO.982/2011
(As against the order in CC.No.74/2009 on the file of DCDRF, Chennai (South) DATED THIS THE 27th DAY OF FEBRUARY 2013 M/s.Cavinkare Private Limited, Having their registered office at Cavin ville, No.12, Cenotaph Road, Chennai 600 018, M/s.M.Selvaraju Rep by its Treasury Manager, Counsel for Appellant / Complainant Mr.R.Suresh Kumar.
-vs-
1. The Branch Manager, United India Insurance Co.Ltd, 13-A, Netaji Road, SBI complex, Manjakuppam, Cuddalore 607 001.
2. The Managing Director, United India Insurance Co.Ltd, No.24, Whites Road, Chennai 600 014.
3. The Regional Manager, United India Insurance Co.Ltd, M/s.K.S.Narasimhan No.134, Greams Road, Counsel for Respondent / Opposite Chennai 600 006. parties The Appellant as the complainant filed a complaint before the District Forum against the opposite parties praying for a direction to the opposite parties to pay Rs.14,28,888/- with interest at 18% per annum from 10.1.2006 and to pay Rs.1,00,000/-as compensation for mental agony and to pay Rs.25,000/- as costs. The District Forum dismissed the complaint. Against the said order, this appeal is preferred by the appellant to set aside the order of the District forum in CC.74/2009 dated 14.3.2011.
This appeal coming before us for hearing finally on 01.2.2013, Upon hearing the arguments on either side, perusing the documents, lower court records, and the order passed by the District Forum, this commission made the following order.
A.K.ANNAMALAI, JUDICIAL MEMBER The unsuccessful complainant is the appellant.
2. The complainant had taken marine, cargo open policy under policy No.012401/21/04/00015 dated 31.12.2004 with the first opposite party for his business purpose for a sum of Rs.50 crores for a period from 1.1.2005 to 31.12.2005. The risk coverage for the goods insured during transit at Rs.15,00,000/- per transit and for goods stored in the wherehouse at Rs.30,00,000/-. Due to heavy rain and thereby caused damages to the stocks stored covered under the policy. The complainant submitted a claim form for Rs.30,49,147/- but the opposite parties issued a cheques for Rs.2,54,200/-, 65,987/- and for Rs.3,50,000/- on various dates belatedly after assessed the surveyor report without any details. The complainant sent several letters to the opposite party seeking information. But the opposite parties reduced all other claim without following the terms and conditions of the policy. Hence the complainant filed a complaint before the District Forum, but the district forum dismissed the complaint as no merits and so this consumer complaint filed by the appellant/complainant before this commission praying reliefs as sought for.
3. Before the District Forum in their written version of the Respondents / opposite parties contended that as per the policy conditions the goods in transit would not be exceed at Rs.15,00,000/- per consignment and that the goods in storage would not be exceed of Rs.30,00,000/-. But the complainant stored huge quantity of stocks kept in storage, the complainant had chosen to take the policy only for Rs.30,00,000/-. The complainant had failed to protest and preserve all rights of recovery without repudiating the claim in full accepted the settlement. Hence, the complaint is dismissed.
4. The District Forum after an enquiry dismissed the complaint by contending of the opposite party. Aggrieved by the impugned order the appellant/complainant contended that even though the goods lost for damages were covered under the terms and conditions of the policy taken from the opposite parties and after the surveyor investigated and recommended the claim to the accident as estimated by the complainant, the opposite parties reduced the same and granted only part amount. On the basis of surveyors report other two claims also restricted and settled the claim to be fully settled. But the district Forum erroneously dismissed the complaint stating that the complainant already received the claim amount by way of settlement and thereby no further claim could be made. But whereas the complainant have received those amounts and continued correspondence for the settlement on remaining amount for which the opposite party has not given. The Learned counsel for the respondent insurance company contended that the policy covered with the terms and conditions and even though the entire value of Rs.50,00,000/- for each claim of storage as basis and for the storage of more than 90days and on that basis of the surveyors report the claim was settled since the storage exceeded the limit of Rs.30,00,000/- and the claim was settled. We have carefully considered both sides contentions and materials placed before us it is not dispute that the complainant have made 3 claims under Ex.A10 for Rs.12,21,347/- Rs.2,99,375/-Rs.4,91,481/- almost as near to the amount claimed by the complainant. As per the surveyor report under Ex.A5, A7, A7 for those claims the opposite prties had sanctioned Rs.3,50,000/-, Rs.63,000/-, Rs.1,61,000/- in total Rs.5,47,600/- and thereby receiving a balance of Rs.14,37,603/-. This disputed amount claimed by the complainant through this complaint. The opposite parties have contended that they have relied upon the surveyors report and on that basis also the amount was settled and relied upon the rulings reported in 2009 AIR SCW 4353 in the case of Sikka Papers Ltd vs- National Insurance Co. Ltd & Ors in which it is held that (A)Insurance Act (4 of 1938), Pre., S.64 UM (2) Machinery insurance policy-Diesel Generation set purchased by complainant broke down-Complainant claimed reimbursement of entire repairs cost from insurer-Insurance policy did not provide for protection against normal wear and tear-Parts which had suffered due to wear and tear on account of constant use, although replaced could not form part of claim for reimbursement under terms of policy-Surveyor in its report cannot be said to have wrongly rejected such claim-Order of national Consumer Commission accepting Surveyors report is proper. Whereas the appellant contended that in the earlier case of the same nature they have settled the entire claim for which for the action taken place at Bombay, without any apportionment. On the basis of the surveyor report and in this case since the goods damaged the surveyor apportionment the claim under Ex.A5. On the basis of the same the other two claims were apportionment it is not correct this is covers Rs.30,00,000/- for each claim of storage and since the claims were made below that amount not exceeding Rs.30,00,000/-, the claim has honoured. When we considered the contention regarding the terms and conditions of the policy under Ex.B1 it is no way mentioned regarding the apportionment of the claim and settling the claim or furnished of loss of goods proportionately claim made. Hence, the opposite parties with wrong notion on the basis of earlier surveyor report under Ex.A5 who had uniquely apportionment the claim amount certainly for which having no basis as per the terms and conditions of the policy and relied upon the same the other two claim also. The claim to apportioned and settled cannot be accepted. In those circumstances we are of the view that the complainants are entitled for the claim as made and the district forum without giving deep into the details wrongly dismissed the complaint by stating since the settlement was made it is not for entire claim has made by the claimant the complaint was erroneously dismissed. Hence in those circumstances the appeal to be accepted and accordingly.
In the result, the appeal is allowed by setting aside the order of the District Forum in CC.No.74/2009 dated 14.3.2011 and the complaint filed by the complainant/appellant hereby allowed by directing the opposite parties to pay the balance claim amount of Rs.14,28,888/- with 9% interest from the date of repudiation.
The opposite parties are directed to pay a sum of Rs.5000/- as costs to the complainant.
The above directions shall be complied within six weeks from the date of this order.
No separate order as to costs in this appeal A.K.ANNAMALAI R.REGUPATHI (J) MEMBER PRESIDENT INDEX : YES / NO VL/D;/RRJ/ORDERS