State Consumer Disputes Redressal Commission
National Insurance Company Limited vs Shree Jagdambe Paper Mills Ltd on 16 February, 2016
Daily Order STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA First Appeal No.1242 of 2014 Date of Institution: 29.12.2014 Date of Decision: 16.02.2016 National Insurance Company Limited, Sirsa through its Divisional Manager, Sirsa. Now represented through the authorized signatory of Regional Office-II, SCO No.337-340, Sector 35-B, Chandigarh. ..... Appellant Versus Shree Jagdambe Paper Mills Ltd, Begu Road, Sirsa through its Managing Director. .....Respondent CORAM: Mr. R.K.Bishnoi, Judicial Member.
Mrs. Urvashi Agnihotri, Member.
Present: Shri Nitin Gupta, Advocate for appellant. Shri Kamal Kant Verma, Advocate for respondent. O R D E R R.K.BISHNOI, JUDICIAL MEMBER:-
It is alleged by the complainant that for the year 01.05.2008 to 30.04.2009 it obtained insurance policy from New India Insurance Company Limited (in short "NIIC") for the insured value of Rs.12,59,50,000/- on re-instatement value and paid Rs.1,24,407/- as of premium. Due to persuasion of O.P. it purchased insurance cover for the period 01.05.2009 to 30.04.2010 from it. The insured value was Rs.2,59,050/- and the premium of Rs.1,22,461/- was paid. On 14.03.2010 incident of fire took place in the factory and there was loss to the tune of Rs.13,04,060.32 Paise. After receiving information Sh.P.S.Bhatt of M/s Mack Surveyors Private Limited reached the spot on 16.03.2010. Necessary documents were supplied to him, but, to utter surprise he assessed loss to the tune of Rs.64,177/- only. When the matter was agitated the same was increased to the tune of Rs.2,64,811/- and it asked for the consent. O.P. did not tell the reasons on the basis of which the loss was assessed to the tune of Rs.64,177/-. After his complaint, IRDA directed O.P. vide letter dated 12.11.2010 to resolve the matter within 15 days. Thereafter O.P. pressurized him to give consent for Rs.64100/-, but, he never agreed for the same. The O.P. be directed to pay Rs.13,04,060,32P as of loss, Two lacs for mental harassment etc. and Rs.33,000/- litigation expenses alongwith interest.
2. O.P. filed reply admitting the insurance policy but alleged that policy for the period 01.05.2009 to 30.04.2010 was on depreciation value basis which was accepted by the complainant because previously also complainant had received compensation on the basis of depreciation value. As per request of complainant the loss was again re-assessed and it was increased to the tune of Rs.2,64,811/-. Surveyor re-assessed loss on depreciated value basis etc. that is why the amount has decreased. Objections about maintainability of complaint, accruing cause of action etc. were also raised and requested to dismiss the complaint.
3. After hearing both the parties, learned District Consumer disputes Redressal Forum, Sirsa (In Short "District Forum") allowed the complaint vide impugned order dated 31.10.2014 and directed as under:-
"Resultantly, this complaint is hereby allowed, with a direction to the opposite party to pay Rs.11,24347/- (Rupees Eleven Lakhs Twenty four thousands, Three Hundred and forty Seven) to the complainant, with interest @ 10% per annum, from the date of loss i.e. 14.03.2010, till payment. The complainant is also hereby awarded compensation of Rs.50,000/- (Rupees Fifty thousands) for harassment, mental tension, disappointment etc. and litigation expenses of Rs.5500/- against the opposite party."
4. Feeling aggrieved therefrom the O.P. has preferred this appeal.
5. Arguments heard. File perused.
6. Learned counsel for the appellant/O.P. vehemently argued that previously also the complainant obtained insurance policies from it which are Ex.C-1 and C-2 for the period 01.05.2006 to 30.04.2008. They were on depreciation value basis. For the period 01.05.2008 to 30.04.2009 it obtained insurance policy Ex.C-3 from NIIC on reinstatement basis. For the year 01.05.2009 to 30.04.2010 complainant again obtained insurance policy Ex.P-5 from O.P. It is no where mentioned therein that the same was on re-instatement basis. In the absence of any agreement to this effect it cannot be presumed that this policy was on re-instatement basis. Even otherwise an incident took place in this factory on 03.05.2009, when this policy was in existence and Mr.N.K.Gupta Surveyor and loss assessor submitted report Ex.R-14 on depreciation value and assessed loss to the tune of Rs.34475/-. Complainant accepted Rs.33,967/- qua that incident which is clear from perusal of receipt dated 14.01.2010 Ex.R-18. Complainant sent letter Ex.R-9 wherein it was alleged that it was ready to accept the claim on depreciation value basis. It shows that the insurance policy was on depreciation basis and not re-instatement basis. Had it not been so the complainant would not have received Rs.33967/- vide receipt Ex.R-18, which was given on the basis of report Ex.R-14. Due to inadvertence these documents could not be produced before the District Forum and it was wrongly opined that insurance policy Ex.C-5 is on re-instatement basis. As per report of surveyor, complainant was entitled for compensation to the tune of Rs.2,64,811/- only, so impugned order be set aside.
7. This argument is devoid of any force. It is no where mentioned in Ex.C-5 that this policy was issued on depreciation value basis. It was issued keeping in view the insurance policy Ex.C-3 of NIIC. The insured value in that policy was the same i.e. Rs.12,59,50,000/-. The premium received in Ex.C-3 was Rs.1,24,407/- whereas premium in Ex.C-5 was Rs.1,22,461/-. It is specifically mentioned that this policy has been issued as per previous policy. This remark denotes that insurance policy was issued keeping in view the policy issued by NIIC. When that policy was issued on re-instatement value basis, it is to be presumed that this policy was also issued on those very basis. Ordinarily nobody would like to leave the re-instatement value basis and switch over to depreciation value basis policy. When there is no specific remark to this effect it is to be presumed that this policy was issued on reinstatement basis. The O.P. has given reference to policy Ex.R-2 pertaining to the period 01.05.2010 to 30.04.2011 wherein insured value was Rs.12,59,50,000/-, but, after inspection report the same was reduced to Rs.9,66,80,000/-. It means that initially that policy was also issued on re-instatement value basis ,but, as per recommendation of surveyor that was converted to depreciation basis. It shows that the O.P. was issuing the policies on re-instatement basis. The O.P. is trying to take benefit of letter Ex.R-9, but, this letter was written by the complainant to the surveyor to assess the loss. In this letter it is no where admitted that insurance policy was issued on depreciation basis. Due to compelling circumstances he might have agreed to accept the compensation on the basis of depreciation value, when his matter was not being settled by the O.P. As Already mentioned above initially that very surveyor assessed loss to the tune of Rs.64,177/- but after representation of the complainant the same was increased to Rs.2,64,811/-. For ready reference the relevant portion of that letter is as under:-
"With reference to the discussions held with you regarding subject, it is kindly informed that we have since agreed to accept settlement of this claim on depreciated value basis as per coverage provided under the policy and its terms and conditions. Hence no details or documents are required for re-instatement basis."
More so, this letter was issued to the surveyor not to the insurance company. He never asked insurance company to assess the loss on depreciation value.
8. Further on the basis of receipt Ex.R-18 it cannot be presumed that this policy was issued on depreciation basis even if surveyor assessed the loss on these very basis as mentioned in report Ex.R-14. It has no where come in the evidence that either report Ex.R-14 or the grounds assessing this loss were conveyed to the complainant. He might have been under the impression that the loss assessed is correct. Had this report been sent to him then it could have been a different matter. So it cannot be presumed that this insurance policy was on depreciated value basis. It has been opined by Hon'ble National Commission in Asha Garg and Ors Vs. United India Insurance co. Ltd. and Ors. 2005 (4) CPJ (NC) 269 and United India Insurance Co. Ltd. & Anr. Vs. S.M.S.Tele Communications & Anr. 2009 (3) CPJ (N.C.) 246 that unless exclusion clause is highlighted and specifically brought to the notice of the insured that cannot be made applicable. So, O.P. cannot assess the loss on the basis of depreciation value. As already discussed above initially surveyor assessed loss to the tune of Rs.64,177/-. Lateron insurance company increased the same to the tune of Rs.2,64,811/- as mentioned in Ex.C-22. Complainant has also failed to establish the loss as claimed by him, because he did not supply the details or documents required for re-instatement basis. So loss can be assessed on the basis of presumption as per value mentioned in Ex.C-22 keeping in view the opinion of Hon'ble Supreme Court in M/s Chengalrayan Co-operative sugar mills vs. Oriental Insurance Co. Ltd. and Anr. 2000 (10) SCC 213. As per report Ex.C-22 surveyor deducted the amount to the tune of Rs.8,59,536/- which is added by learned District Forum with Rs.2,64,811/-. This depreciation seems to be on higher side because no logic has been given qua the same, so it is reduced to the tune of Rs.Five lacs. In this way, the complainant is held entitled of Rs.2,64,811+Rs.5,00,000/-=7,64,811/-.
9. With this modification, appeal stands disposed of.
10. The statutory amount of Rs.25,000/- deposited at the time of filing the appeal be refunded to the appellant against proper receipt and identification in accordance with rules, after the expiry of period of appeal/revision, if any.
February 16th, 2016 Urvashi Agnihotri R.K.Bishnoi, Member Judicial Member Addl. Bench Addl.Bench