National Consumer Disputes Redressal
Vitthalsai Sahakari Sakhar Karkhana vs New India Assurance Co Ltd., on 14 December, 2022
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 26 OF 2011 1. VITTHALSAI SAHAKARI SAKHAR KARKHANA THROUGH ITS MANAGING DIRECTOR, SHRI MAHADEO S/O. BHIMAPA ATHANI., MURUM, TQ. OMERGA OSMANABAD, ...........Complainant(s) Versus 1. NEW INDIA ASSURANCE CO LTD., The Chairman/Managing Director, B-7, M.G. Road, Fort, Mumbai - 400 001. 2. New India Assurance Co. Ltd. The Deputy General Manager, Sharda Centre, 2nd Floor, Near Nal Stop, Karve Road, Pune, Maharashtra 3. New India Assurance Co. Ltd. The Divisional Manager, Hutatma Smruti Mandir, Complex Park Chowk, Solapur, Maharashtra 4. Director Of Insurance Office of Directorate Of Insurance, Maharashtra State, Grih Nirman Bhavan, (MHADA), 264, First Floor, Opp Kalyanagar, Bandra (E), Mumbai - 400 051. ...........Opp.Party(s)
BEFORE: HON'BLE MR. SUBHASH CHANDRA,PRESIDING MEMBER
For the Complainant : Mr Sudhanshu P Choudhari, Advocate with
Mr Mahesh P Shinde, Advocate with
Mr M Veeraragavan, Advocate For the Opp.Party : Mr K K Bhat, Advocate
Dated : 14 Dec 2022 ORDER
PER MR SUBHASH CHANDRA
1.This complaint is filed against the repudiation of a Standard Fire and Peril Insurance policy held by the complainant by the opposite party in respect of damage to the building and stocks in the sugar factory registered under the Maharashtra Cooperative Societies Act 1960, located at village Murum, Taluk Omerga, District Osmanabad, Maharashtra.
2. The facts of the case are that the complainant had availed an insurance policy no.151300/11/07/12/00000141 valid from 14.04.2007 to 13.04.2008 covering godown nos.1 and 2 and the sugar stocks stored therein for a sum of Rs.12.50 crores in respect of godown no.1, Rs.18.75 crores for godown no.2 totalling to Rs.31.25 crores. The co-insurer was Maharashtra State Insurance Fund, Maharashtra who had 60% share in the premium and had liability of the claim amount. The Opposite party nos.1 to 3 had to share 40% of the premium and the liability, if any.
3. It is the complainant's case that due to a storm followed by heavy rain on 08.06.2007 at about 07 - 07.30 p m leading to collapse to the roof of godown no.2, the entire sugar stock kept in gunny bags in godown no. 2 was damaged. The opposite parties and the Tehsildar were informed about the same on 09.06.2007 and on the same day a surveyor Mr A T Kulkarni was appointed by the opposite parties 1 to 3 who inspected the premises. In his report dated 11.06.2007, the said surveyor reported that the godown was damaged along with sugar stocks due to the storm accompanied with rain. A panchnama was drawn up by the Tehsildar on 26.09.2007 which also recorded similarly that due to the heavy rainfall preceded by the storm lead to the collapse of the roof. The complainant approached the Indian Meteorological Department (IMD), Murum on 23.03.2008 seeking meteorological details of the storm and accompanying rain on 08.06.2007. Vide its reply dated 10.04.2008, the IMD informed that since there was no observatory located at Murum, the details could not be supplied. It is contended by the complainant that in a similar case, relating to another sugar factory located at Hirebevnoor Taluk Indi, District Bijapur, Karnataka which occurred within a period of 48 hours of the storm at Murum, the opposite party had allowed the claim and therefore, treating the present claim differently was not justifiable. It is also averred that the opposite party no.3 in his report dated 05.09.2008 had recommended approval of the claim as it was beyond his authorised limit. Opposite party no. 4, MSIF, has also sent several communications to opposite parties no.1 to 3 to settle the claim in order to enable it to satisfy its part of the liability. The complainant issued a legal notice on 19.04.2010 which was replied to by the opposite party vide letter dated 25.05.2010 repudiating the claim on the ground that rain, however heavy, is not covered under the purview of the policy and the claim. The complainant has claimed Rs.1,21,51,048.30 towards insurance along with 18% interest till realisation along with compensation for mental agony and Rs.1,00,000/- and litigation cost of Rs.1,00,000/- on the ground that there has been deficiency in service in not settling the claim under the policy. It is also argued that the report of the surveyor indicates that there was storm followed by rain resulting in the damage to the godown and stock which was also confirmed by the panchnama drawn up by the Tehsildar. The report of the Tehsildar who is the local revenue authority, according to the complainant, needs to be given due weightage, since the IMD has categorically stated that there was no local observatory at Murum. It is averred that as the surveyor's report is a colourable exercise of power as it refers to the weather report of Solapur and Osmanabad which are located at a distance of 75 kms and 90 kms respectively from Omerga. It is disputed that the godown building was structurally defective and had collapsed on account of accumulation of rain water on the roof. It is stated that since the opposite party had inspected the godown and the stock therein prior to the issuance of the insurance policy, they cannot now take a view that the structure was not structurally safe. It is the complainant's case that the structural stability of the godown had been approved by an independent Government authority and the Executive Engineer, PWD Osmanabad, Commissioner of Sugar at Pune and the Government approved architect had issued certificates regarding the same. Mr Anirudha Deshingkar who is ME (Structures)/ Structural Engineer has also issued a certificate certifying the stability of the superframe structure. Therefore, it is contended that the joint report of the two surveyors appointed by opposite parties nos. 1 to 3 that the damage to the roof structure of godown no.2 was on account of heavy rainfall due to the inability of the structure to withstand the load is incorrect and should not be accepted. The loss of 63,239 bags of sugar has not been disputed by the opposite party. Therefore, it is submitted that the peril was due to the storm which preceded the rain.
4. Complainant had also filed an IA No.15851 of 2017 seeking amendment of the consumer complaint mentioning that there were two policies which were purchased by the complainant i.e., policy no.151300/11/07/12/00000141 which covered the sugar stock in godown nos.1 and 2 and policy no. 151300/11/07/11/00000144 which covered the main factory building, sugar godown nos.1 and 2 electrical installations for a sum of Rs.5,63,68,000/-. The complainant had preferred the present complaint (Consumer Complaint no. 26 of 2011) before the Hon'ble Commission in respect of policy no.151300/11/07/12/00000141. Complaint no. 6 of 2012 was filed before the Maharashtra State Consumer Disputes Redressal Commission, Circuit Bench at Aurangabad with regard to claim under the insurance policy no.151300/11/07/11/00000144 which was dismissed on the ground that two complaints on the same issue were not maintainable. The complainant had preferred FA no. 82 of 2015 challenging this order which was disposed on 23.05.2017, directing the complainant, if he so desired, to file an appropriate application in the pending complaint no. 26 of 2011. Accordingly, the complainant has stated vide IA no.15851 of 2017 that a claim of Rs.72,03,263/- towards compensation under the policy no. 151300/11/07/11/00000144 with interest @ 18% from 08.06.2017 till realisation along with compensation of Rs.2 lakh for mental agony, Rs.2.00 lakh towards litigation cost be also allowed. On 27.08.2021 the opposite party was directed to file its reply on IA no.15851 of 2017. The opposite party in reply to this IA has stated that in the absence of any provision for amendment of a complaint in the Act, amendment of pleadings can only be under Order VI, Rule 17 of the Civil Procedure Code (CPC) which lays down that no application for amendment be allowed after commencement of the trial. Since there was lack of due diligence on part of the complainant, the IA for amendment should be disregarded.
5. The contentions of both parties in IA no.15851 of 2017 have been considered. It is contended that CC No. 06/2012 before the State Commission was dismissed in view of pendency of the instant complaint before this Commission. Complainant had stated that while complaint number 26 of 2011 had been preferred with reference to the claim under insurance policy no.151300/11/07/12/00000141 for Rs.1,21,51,048.30 with interest, claim under policy no. 151/11/07/11/00000144 for Rs.72,03,263 had been filed before the Maharashtra State Consumer Disputes Redressal Commission, Mumbai, Circuit Bench at Aurangabad which dismissed complaint no. 06 of 2012 on the ground that two complaint's on the same issue were not maintainable and vide this order dated 23.05.2017 permitted filing of an appropriate application. By way of IA no. 15851 of 2017, the complainant has sought to amend the present complaint through an additional prayer.
6. The opposite party has opposed the same on the ground that under Order VI Rule 17 of CPC,1908 of an application for amendment cannot be allowed after commencement of trial unless the court concludes that the party could not have raised the matter before the commencement of trial despite due diligence. It is contended that the complainant had continued to pursue the matter before the State Commission and that there was no lack of due diligence. It has relied upon the order of the Hon'ble Supreme Court in Ravajeetu Builders vs Narayanswamy and Sons (2009) 10 SCC 84 where it was held that:
63. On critically analysing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment:
(i) Whether the amendment sought is imperative for proper and effective adjudication of the case;
(ii) whether the application for amendment is bona fide or mala fide; (iii) the amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money; (iv) refusing amendment would in fact lead to injustice or lead to multiple litigation; (v) whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case; and (vi) As a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application.
There is merit in the contention of the opposite party since it is a fact that IA no. 15851 of 2017 has been filed much after the commencement of the proceedings before this Commission and only after the State Commission had passed the order dated 23.05.2017. The IA is, therefore, not allowed and averments in the IA are not considered in this complaint.
7. The complainant is before us in this consumer complaint with the prayer that:
(a) The complaint may kindly be allowed; (b) The opposite parties be directed to pay to the complainant a sum of Rs.1,21,51,048.30 towards compensation as per the insurance claim with 18% interest from the date of incident i.e. from 08.06.2007 till realisation of the said amount; (c) The opposite parties be directed to pay to the complainant Rs One Lakh towards mental torture and agony caused by the wrongful acts of the opposite parties; (d) The opposite parties be directed to pay to the complainant Rs One Lakh towards the professional cost of litigation; and (e) Any other relief deemed fit may please be granted.
8. The opposite party has resisted the complaint by way of reply. Parties led their evidence and filed written submissions. We have heard the learned counsel for both the sides and given thoughtful consideration to the arguments and the record.
9. The main issue in this case is whether the damage to the godown occurred on account of the storm or on account of accumulation of rainwater on the roof. The associated issue is whether the storm preceded the rain and whether there was the occurrence of a storm on the day of the incident. The complainant has contended that there was indeed a storm between 7 and 7:30 PM which was followed by heavy rain and that the roof of the godown collapsed due to the heavy winds of the storm which caused the rainwater to damage the sugar stocked in gunny bags. It is the contention of the complainant that the report of the surveyors was explicit in attributing the damage to the storm which was followed by heavy rain. On the other hand, it is contended by the opposite party that as per data of the meteorological department obtained from Solapur and Osmanabad there was no storm but only heavy rainfall and that the collapse of the roof was attributable to the weight of the accumulated water on the roof. It is contended that a storm of such a magnitude would have affected other buildings and property which was not the case. The damage to the roof was attributable, according to the opposite party, to faulty construction and structural defects. As per the insurance policy, the peril covered relates to loss on account of a storm but not on account of rainwater.
10. While it is contended by the opposite party that there was no storm, the complainant has filed the panchnama drawn up by the Revenue authorities which indicates that there was indeed an incident of a storm with high velocity winds followed by rain. It is also on record that the construction of the godown had been certified by structural engineer and therefore its collapse to heavy rainfall alone is doubtful. In the absence of any metrological centre near the godown it would be appropriate to consider the report of the revenue authorities with regard to the incidents of the storm which involved winds at high velocity. In any case date filed by the opposite party with respect to metrological condition at Solapur and Osmanabad which are far from Murum, need to be disconnected for this reason. In view of the foregoing it would be in order to consider the claim of the complainant to be valid and to allow the same.
11. For the foregoing reasons, the complaint is allowed. The opposite party is directed to pay the complainant a sum of Rs.1,21,51,048.30 as per the insurance claim with 6% interest p.a. from the date of incident i.e. from 08.06.2007 till realisation of the said amount. The opposite party shall also pay the complainant litigation cost of Rs.50,000/-. The order shall be complied within 8 weeks, failing which the rate of interest payable will be 9% per annum.
...................... SUBHASH CHANDRA PRESIDING MEMBER