State Consumer Disputes Redressal Commission
Sri Harimaharalayam Company vs New India Assurance Company Ltd., on 19 October, 2012
The complainant-firm is the appellant BEFORE A.P STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT HYDERABAD F.A.No.749 OF 2011 AGAINST C.C.NO.232 OF 2010 DISTRICT FORUM GUNTUR Between: Sri Harimaharalayam Company rep. by its Partner, AVS Guhan S/o A.V.Sethupathy, D.No.5-37-59 Anitha Complex, 3rd Floor, 4/7 Brodiepet Guntur-2 Appellant/ complainant A N D New India Assurance Company Ltd., rep. by its Divisional Manager D.No.21, RVR, Complex, Guntur-7 Respondent/opposite party F.A.No.748 OF 2011 AGAINST C.C.NO.233 OF 2010 Between: Sri Harimaharalayam Company rep. by its Partner, AVS Guhan S/o A.V.Sethupathy, D.No.5-37-59 Anitha Complex, 3rd Floor, 4/7 Brodiepet Guntur-2 Appellant/ complainant A N D New India Assurance Company Ltd., rep. by its Divisional Manager D.No.21, RVR, Complex, Guntur-7 Respondent/opposite party Counsel for the Appellant M/s A.Ravi Kiran Counsel for the Respondents M/s S.N.Padmini QUORUM: SRI R.LAKSHMINARSIMHA RAO, HONBLE MEMBER
& SRI THOTA ASHOK KUMAR, HONBLE MEMBER FRIDAY THE NINETEETH DAY OF OCTOBER TWO THOUSAND TWELVE Oral Order ( As per R.Lakshminarsimha Rao, Member) ***
1. The appellant firm is the insured and filed both appeals against the same respondent insurance company. The only difference between the two cases is in regard to the two different insurance policies issued by the respondent insurance company and as such they have been taken for discussion and disposal of in view of F.A.No.748 is heard today i.e., 19.10.2012 and F.A.No.749 of 201 is posted for orders today. A perusal of the record revealed that the matter in F.A.No.748 of 2011 has bearing of the same facts obtained in F.A.No.749 of 2011. For convenience sake F.A.No.749 of 2011 is taken as lead case.
2. The complainant-firm filed appeal. The appeal is field challenging the order of the District Forum on the premise that it had filed along with the claim statement , the stock statement and other relevant documents and the surveyor not raised any objection that the appellant has not submitted relevant documents. It is contended that the appellant has specifically mentioned in the notice issued to the respondent-insurance company about the quantum of loss sustained by it.
3. The appellant filed complaint seeking for payment of an amount of `20 lakh with interest on the premise that the insured stocks in its godown were damaged due to cyclone. The appellant obtained insurance policy bearing number 621000/11/7/1300000662 on 29.02.2008 for the stocks at its godown at Guntur. It is submitted that due to heavy cyclone from 21.03.2008 till 23.03.3008, its stocks were damaged and the appellant informed the respondent about the incident and requested the respondent to depute a surveyor to assess the loss. The appellant submitted weather reports to the surveyor. The surveyor mentioned in his report on 30.07.2008 that the stocks were damaged due to normal rain. The appellant submitted that the surveyor is prejudiced and as the respondent repudiated the claim, the appellant suffered mental tension.
4. The claim is resisted on behalf of the respondent-insurance company on the premise that the risk covered under the insurance policy is as regards to the damage caused to the stocks due to cyclone, typhoon, tempest, hurricane, tornado, flood or inundation excluding those resulting from earth quake. During 21.03.2008, 22.03.2008 and 23.03.3008 there were rains an no storm. The stocks of the appellant-firm were affected due to normal rains. It is submitted that the appellant had not taken proper care to protect the stocks during the normal rains. Taking advantage of the rains, the appellant fabricated records to show that the stocks were damaged due to cyclone.
5. On behalf of the appellant, its Partner filed his affidavit and the documents, ExA1 to A12. On behalf of the respondent-insurance company, its Administrative Officer filed his affidavit and the documents, ExB1 to B4.
6. The District Forum dismissed the complaint on the premise that the appellant failed to submit sales tax returns and purchase bills etc.
7. The point for consideration is whether the order of the District Forum suffers from misappreciation of facts or law?
8. The dispute between the parties is in regard to the amount claimed by the appellant-firm on the premise that the respondent-company has not settled the claim though the appellant is entitled to the sum of Rs.20 lakh whereas the respondent-companys contention is that the appellant has not suffered any loss due to cyclone and the loss caused to its stocks is in regard to the damage due to normal rain.
9. The respondent-company repudiated the claim on the premise that there was no storm during the relevant period. The surveyor has reported in his letter dated 29.03.2008 about the weather condition at Guntur during the relevant period as under:
As per your information the chilies bags are drenched due to rains. After inspection of your premises, I have gone through the weather bulletins from 20.03.2008 to 24.03.2008 in the Hindu newspaper and found that the rains are occurred due to low pressure area which formed over South-East Arabian Sea and adjoining Lakshadweep Area of Kerala Coast and as per the weather reort a low pressure area Is not further strengthen but weakened and it is not declared as storm/cyclone. As per policy conditions any damage due to storm, cyclone, flood and inundation are covered and not due to heavy rains and or rains due to low pressure. Hence you are hereby requested to obtain an official copy of weather report for Guntur area for the dates 21st, 22nd and 23rd March 2008 from the Meteorological Department, Hyderabad. The contact address of Meteorological Department at Hyderabad is as given below:
M/s Meteorological Center Hyderabad Airport Hyderabad Ph.Nos.27906172, 27905927 Please submit the report within ten days on receipt of this letter. This is for your kind information and immediate action Thanking you sir,
10. In response to the request of the surveyor the appellant-firm had submitted the weather report dated 11.07.2008 obtained from the Director, Meteorological Centre, Hyderabad which shows the wind speed and rainfall at Guntur in tabular form as follows:
Sub: Weather Report of BAPATLA observatory for 21st March 2008.
Weather data recorded on 21/03/2008 at BAPATLA OBSERVATORY.
Time of Observation (IST) Wind Direction Wind Speed in KMPH Rainfall in mms. Since last Observation 0230 CALM 000 000.0 0530 CALM 000 000.0 0830 SOUTHERLY 006 012.0 1130 SOUTHERLY 008 001.5 1430 SOUTHERLY 008 014.5 1730 SOUTHERLY 006 000.0 2030 CALM 000 000.0 2330 CALM 000 004.0 Sub: Weather Report of BAPATLA observatory for 22nd March 2008.
Weather data recorded on 22/03/2008 at BAPATLA OBSERVATORY.
Time of Observation (IST) Wind Direction Wind Speed in KMPH Rainfall in mms. Since last Observation 0230 CALM 000 000.0 0530 CALM 000 000.0 0830 CALM 000 000.5 1130 EASTSOUTHEASTERLY 006 009.5 1430 SOUTHSOUTHEASTERLY 010 000.0 1730 SOUTHEASTERLY 006 000.0 2030 SOUTHSOUTHEASTERLY 004 TRACE 2330 SOUTHSOUTHEASTERLY 004 000.0 Sub: Weather Report of BAPATLA observatory for 23rd March 2008.
Weather data recorded on 23/03/2008 at BAPATLA OBSERVATORY.
Time of Observation (IST) Wind Direction Wind Speed in KMPH Rainfall in mms. Since last Observation 0230 CALM 000 000.0 0530 CALM 000 000.0 0830 SOUTHEASTERLY 006 000.0 1130 SOUTHEASTERLY 012 000.0 1430 SOUTHEASTERLY 016 000.0 1730 SOUTHEASTERLY 018 000.0 2030 SOUTHEASTERLY 014 022.0 2330 SOUTHEASTERLY 012 014.0
11. The District Forum has come to conclusion that there was cyclone during 21.03.2008 to 23.03.2008 at Guntur. In paragraphs 13 to 15 of the order the District Forum has expressed its opinion as under:
13. For Ex.A-3 letter the complainant did not seek any time to furnish the information required by the opposite party under Ex.A-2. Therefore the decision relied on by the complainant reported in National Insurance Company Limited vs. Kanta Kansal and others 2009 (4) CPR 329 is not applicable to the facts of the case.
14. Prior to filing this complaint the complainant issued a notice to the opposite party on 11-05-10 (Ex.A-11). Ex.A11 did not disclose the quantity of stock said to have been damaged during thunder storm occurred on 21,22 and 23-03-08. The relevant portion Ex.A-11 is extracted below for better appreciation:
As already submitted, the repudiation of the claim is against the weather report submitted by weather Department of India. As per the claim form, our client claimed an amount of Rs.20,10,865/- towards damages to stock and detailed statement is enclosed to the claim form.
15. The complainant failed to mention the details of stock available and its value per quintal or ton as the case may be to arrive the figure mentioned by the complainant.
12. Thus, in the light of the weather report and the surveyor expressing his opinion not basing on the weather report, the inference that can be drawn is the there was cyclone during 21.03.2008 to 23.03.2008 at Guntur and due to the storm, the stocks of the appellant was damaged.
13. Once, the damage of the insured stocks and the cause of the damage is held covered by the terms of the insurance policy, the next question comes to fore that is as to the quantum of amount payable to the appellant by the insurance company. The appellant has not produced relevant documents as pointed out by the District Forum. The District Forum in paragraphs of the order referred to the documents that ought to have been filed by the appellant as follows:
The complainant filed Ex.A-8 copy of claim statement submitted to the surveyor of the opposite party. It is a self interested statement. When the complainant insured the godown for a sum of Rs.1,30,00,000/-, it ought to have been submitted sales tax returns every month to the Commercial Tax Authorities. That could be considered as a genuine statement because the cyclone or thunder storm was not expected. When the opposite party disputed the claim of the complainant regarding the available stock, the complainant even did not evince interest to file authenticated copies of statement i.e., one submitted to the Commercial Tax Authorities and purchase bills etc., even before this Forum. Therefore the contention of the opposite party about the complainant inflating value of stock stands to reason.
14. The surveyors inspection and his findings forms the basis for coming to conclusion as to the amount payable to the appellant firm. The surveyor in his report dated 20.05.2008 has dealt with the inspection of the damaged items and the damage assessed at Rs.1,75,000/- under the head Observations as sunder:
1.0 OBSERVATIONS 1.1 I went to the insured premises, Guntur on 28.03.2008 and inspected the open stock of chillies that are spread on platform in the presence of the insured. The insured informed that due to heavy rains stock of chillies spread on open flatform are drenched and rainwater penetrated deep into the chillies in bags in different heaps and decayed.
1.2 During my inspection of the chilly stocks, the insured is segregating the damaged/wet chillies form the open stocks of chillies. I found the open stock are marginally in wet condition and the stock in peripheral bags is partially drenched.
1.3 The colour of the drenched chillies changed form dark red to pale white with spots and is giving different odor.
But the damage to the chillyh stocks is due to heavy rains only.
1.4 On the day of my inspection fo the insured open stock of chilly, I informed the insured about the policy conditions and as per the policy conditions any damage due to cyclone, storm, flood and inundation can be considered for allowing loss but no loss will be admissible if the damages are occurred due to heavy rains and or rain due to depression.
1.5. All the above facts are personally informed to the insured and I have requested the insured to obtain weather report from the Meteorological Department, Hyderabad in order to ascertain whether the rains are due to cyclone or low pressure.
1.6. But the insured did not respond to my letter and based on the material facts, I confirm that the rains are not due to cyclone or storm but due to Low Pressure.
1.7. Hence as per the circumstantial evidence, the insured stock is affected due to rains and not due to any insured peril. Based on my physical inspection of stocks the loss to the insured may be around Rs.1,75,000/- and definitely not more than this amount because the insured is in the process of segregation of the drenched qty from the affected tock at the time of inspection
15. Thus, the appellant-firm is entitled to the amount of `1,75,000/- payable by the respondent-insurance company. The order of the District Forum is liable to be set aside.
16. In F.A.No.748 of 2011, the Surveyor had submitted his report stating that he has assessed the loss caused to the stocks and the assessment thereof in the following terms:
OBSERVATIONS
1. I went to the insured premises, Guntur on 28.03.2008 and inspected the open stock of chillies that are spread on platform in the presence of the insured. The insured informed that due to heavy rains stock of chillies spread on open flat form are drenched and rainwater penetrated deep into the chillies in bags in different heaps and decayed.
2. During my inspection of the chilly stocks, the insured is segregating the damaged/wet chillies form the open stocks of chillies. I found the open stock are marginally in wet condition and the stock in peripheral bags is partially drenched.
3. The colour of the drenched chillies changed form dark red to pale white with spots and is giving different odor. But the damage to the chillyh stocks is due to heavy rains only.
4. On the day of my inspection fo the insured open stock of chilly, I informed the insured about the policy conditions and as per the policy conditions any damage due to cyclone, storm, flood and inundation can be considered for allowing loss but no loss will be admissible if the damages are occurred due to heavy rains and or rain due to depression.
5. All the above facts are personally informed to the insured and I have requested the insured to obtain weather report from the Meteorological Department, Hyderabad in order to ascertain whether the rains are due to cyclone or low pressure.
6. But the insured did not respond to my letter and based on the material facts, I confirm that the rains are not due to cyclone or storm but due to Low Pressure.
7. Hence as per the circumstantial evidence, the insured stock is affected due to rains and not due to any insured peril. Based on my physical inspection of stocks the loss to the insured may be around Rs.45,000/-
and definitely not more than this amount because the insured is in the process of segregation of the drenched qty from the affected tock at the time of inspection
17. Thus, the appellant-firm is entitled to the sum of `45,000/- as assessed by the surveyor though the appellant failed to submit the relevant documents and accordingly the appeal deserves to be allowed.
18. In the result, the appeal F.A.No.749 of 2011 is allowed setting aside the order of the District Forum. Consequently, the complaint is allowed directing the respondent/opposite party to pay an amount of rs.1,75,000/- with interest 9% per annum from the date of filing of the complaint till payment
19. F.A.No.748 of 2011 is allowed setting aside the order of the District Forum. Consequently, the complaint is allowed directing the respondent/opposite party to pay an amount of `45,000/- with interest @ 9% per annum from the date of filing of the complaint till payment.
20. The costs of the proceedings quantified at `3,000/-. Time for compliance four weeks.
Sd/-
MEMBER Sd/-
MEMBER Dt.19.10.2012 KMK*