State Consumer Disputes Redressal Commission
M/S Matri Shakti Stone Crusher. vs National Insurance Co. Ltd. & Anr. on 15 November, 2017
H. P. STATE CONSUMER DISPUTES REDRESSAL
COMMISSION SHIMLA
Consumer Complaint No.:09/2016
Date of Presentation : 12.07.2016
Order Reserved On : 25.07.2017
Date of Order : 15.11.2017
......
M/s. Matri Shakti Stone Crusher Baker Khad (Patnauni) District
Hamirpur Himachal Pradesh through its sole proprietor Shri
Surinder Kumar s/o Shri Shakti Chand r/o VPO Patnaun Tehsil
Bamson at Tauni Devi District Hamirpur H.P.
...... Complainant
Versus
1. National Insurance Company Limited SCO No. 337 - 340
Sector 35B Chandigarh through its Divisional Manager.
2. National Insurance Company Limited Branch Office
Sujanpur Road Hamirpur District Hamirpur through its
Branch Manager.
...... opposite parties
Coram
Hon'ble Justice P.S. Rana (R) President
Hon'ble Mr. Vijay Pal Khachi Member
Hon'ble Ms. Meena Verma Member
Whether approved for reporting?1 Yes.
For Complainant : Mr. Vinod Thakur Advocate.
For Opposite Parties: Mr. Jagdish Thakur Advocate.
JUSTICE P.S. RANA (R) PRESIDENT:
O R D E R :-
1. Present consumer complaint is filed under section 17 of Consumer Protection Act 1986 against opposite parties pleaded therein that complainant obtained insurance policy 1 Whether reporters of the local papers may be allowed to see the order? Yes. M/s. Matri Shakti Stone Crusher Versus National Insurance Co. Ltd. & Anr.
(C.C. No.09/2016) from opposite parties and insured crusher plant. It is pleaded that crusher plant is running to earn livelihood of complainant by way of self-employment. It is further pleaded that crusher plant is the only source of earning of complainant. It is further pleaded that opposite parties are service providers and fall within the jurisdiction of State Commission. It is further pleaded that plant was insured with opposite parties vide policy No. 42120311133100000525 to the tune of Rs.8729000/- (Eighty seven lac twenty nine thousand) which includes plant, machinery, other accessories, furniture, fixtures and fittings etc. It is further pleaded that complainant also paid premium to the tune of Rs.13485/- (Thirteen thousand four hundred eight five). It is further pleaded that due to heavy rain on dated 14.08.2014 and due to cloud burst in the area crusher installed by the complainant washed away and complainant suffered heavy loss to the tune of Rs.10000000/- (One crore) and it is further pleaded that crusher plant of complainant became non- functional and completely washed away with the flood alongwith stock extracted. It is further pleaded that FIR was also lodged. It is further pleaded that complainant filed claim before opposite parties but opposite parties did not pay claim and committed deficiency in service. Complainant sought relief for payment of Rs.8729000/-(Eighty seven lac twenty nine thousand) alongwith interest @18% per annum from the 2 M/s. Matri Shakti Stone Crusher Versus National Insurance Co. Ltd. & Anr.
(C.C. No.09/2016) date of filing of claim. In addition complainant also sought additional relief of payment of Rs.600000/- (Six lac) on account of compensation for deficiency in service. Complainant also sought relief of payment of Rs.200000/- (Two lac) for mental pain and sufferings. In addition complainant also sought relief of payment of Rs.100000/- (One lac) as litigation costs. Prayer for acceptance of complaint sought.
2. Per contra version filed on behalf of opposite parties pleaded therein that complainant is not consumer as per section 2(1)(d) of Consumer Protection Act 1986. It is pleaded that complainant has purchased policy for commercial purpose and it is further pleaded that State Commission has no jurisdiction to entertain and decide the complaint. It is further pleaded that stone crusher was insured under 'Standard Fire and Special Perils Policy' in consideration amount of Rs.8729000/- (Eighty seven lac twenty nine thousand). It is further pleaded that insurance policy was effective w.e.f. 24.09.2013 to 24.09.2014. It is further pleaded that plant, machinery and accessories were insured for Rs.6000000/- (Sixty lac). It is further pleaded that furniture, fixtures and fittings were insured for Rs.1340000/- (Thirteen lac forty thousand). It is further pleaded that shed was insured for Rs.1389000/- (Thirteen lac eighty nine 3 M/s. Matri Shakti Stone Crusher Versus National Insurance Co. Ltd. & Anr.
(C.C. No.09/2016) thousand). It is further pleaded that there was delay of 7-8 days in intimating the opposite parties. It is further pleaded that complainant submitted bills and bills were verified by the surveyor and surveyor had not found the bills genuine. It is further pleaded that survey report submitted by surveyor is annexure OP-4 (colly). It is further pleaded that surveyor has assessed loss to the tune of Rs.1408778.75/- (Fourteen lac eight thousand seven hundred seventy eight rupee and seventy five paisa). It is further pleaded that thereafter opposite parties appointed another investigator and surveyor namely Kamlesh Kumar Chadda. It is further pleaded that insurance company has repudiated claim vide letter dated 01.02.2016 annexure OP-7 in accordance with law. It is further pleaded that complaint is bad for non-joinder of necessary parties. It is further pleaded that crusher was hypothecated with Kangra Central Cooperative Bank Limited Tikker Khatrian District Hamirpur H.P. and it is further pleaded that Kangra Central Cooperative Bank is necessary party in order to dispose of complaint. It is further pleaded that present complaint involves complicated questions of law and facts and could not be disposed of in summary proceedings. Prayer for dismissal of complaint sought.
3. Complainant also filed rejoinder and reasserted the allegations mentioned in the complaint. 4
M/s. Matri Shakti Stone Crusher Versus National Insurance Co. Ltd. & Anr.
(C.C. No.09/2016)
4. We have heard learned advocates appearing on behalf of parties and we have also perused entire record carefully.
5. Following points arise for determination in present complaint.
1. Whether complaint filed by complainant under section 17 of Consumer Protection Act 1986 is liable to be accepted as mentioned in memorandum of grounds of complaint.
2. Final order.
Findings upon point No.1 with reasons:
6. Complainant filed affidavit of Surinder Kumar Proprietor and partner of M/s. Matri Shakti Stone Crusher in evidence. There is recital in the affidavit that deponent is one of the partners and is also general attorney of other partners of firm namely M/s. Matri Shakti Stone Crusher. There is further recital in the affidavit that deponent is running business of crusher plant at Baker Khad (Patnaun) District Hamirpur H.P. There is further recital in the affidavit that above firm obtained insurance policy from opposite parties and insured crusher plant. There is further recital in the affidavit that plant was run by deponent to earn livelihood by way of self-employment. There is further recital in the affidavit that the same was only source of earning of deponent. There 5 M/s. Matri Shakti Stone Crusher Versus National Insurance Co. Ltd. & Anr.
(C.C. No.09/2016) is further recital in the affidavit that opposite parties are service providers. There is further recital in the affidavit that crusher plant was insured with opposite parties vide policy No.42120311133100000525 in consideration amount of Rs.8729000/- (Eighty seven lac twenty nine thousand) which includes plant, machinery, other accessories, furniture, fixtures and fittings, other stocks like sheds etc. There is further recital in the affidavit that premium was also paid by complainant to the opposite parties regularly. There is further recital in the affidavit that on dated 14.08.2014 due to heavy rain and cloud burst in the area flood emerged and washed away the crusher plant installed at the site. There is further recital in the affidavit that complainant sustained loss to the tune of Rs.10000000/- (One Crore). There is further recital in the affidavit that plant of complainant became non-functional and completely washed away with flood alongwith stock. There is further recital in the affidavit that FIR was also lodged in the police station and concerned Pradhan was also informed. There is further recital in the affidavit that deponent filed claim before opposite parties to the tune of Rs.15000000/- (One crore fifty lacs) under various heads. There is further recital in the affidavit that claim of complainant was repudiated by opposite parties. There is further recital in the affidavit that opposite parties committed 6 M/s. Matri Shakti Stone Crusher Versus National Insurance Co. Ltd. & Anr.
(C.C. No.09/2016) deficiency in service. Complainant also filed documents annexures C-1 to C-7.
7. Opposite parties filed affidavit of Narender Kumar in evidence. There is recital in the affidavit that Narender Kumar is working as Administrative Officer of opposite parties. There is further recital in the affidavit that version filed by opposite parties alongwith annexures OP-1 to OP-9 be treated as part and parcel of affidavit. There is further recital in the affidavit that bills submitted by complainant were not genuine.
8. Opposite parties also filed affidavit of Kamlesh Kumar Chadha investigator and surveyor in evidence. There is recital in the affidavit that deponent verified bills No.0214 and 0215 dated 30.09.2014 amounting to Rs.452645/- (Four lac fifty two thousand six hundred forty five) from M/s. Sonu Electrical Works (Maghakra) Daulatpur Kangra H.P. and also verified bill No.102 dated 30.09.2014 amounting to Rs.2547950/- (Twenty five lac forty seven thousand nine hundred fifty) from M/s. Jai Mal Engineering Works near Punjab National Bank Hamirpur and deponent also verified bill No.3615 amounting to Rs.1510337/- (Fifteen lac ten thousand three hundred thirty seven) and bill No.3616 amounting to Rs.2689137.50/- (Twenty six lac eighty nine thousand one hundred thirty seven rupee and fifty paisa) 7 M/s. Matri Shakti Stone Crusher Versus National Insurance Co. Ltd. & Anr.
(C.C. No.09/2016) from Dhiman Engineering Works Devi Nagar Sector-3 Panchkulla Haryana. There is further recital in the affidavit that deponent informed that bills were given out of friendship and no material was supplied. There is further recital in the affidavit that bills submitted by complainant were found fake and were not genuine.
9. Opposite parties also filed affidavit of Jasvinder S. Josan in evidence. There is recital in the affidavit that deponent conducted survey of stone crusher plant on dated 23.08.2014. There is further recital in the affidavit that deponent submitted report annexure OP-4 (colly). There is further recital in the affidavit that deponent has assessed loss to the tune of Rs.1408778.75/-(Fourteen lac eight thousand seven hundred seventy eight rupee and seventy five paisa). There is further recital in the affidavit that deponent has assessed loss to the tune of Rs.1408778.75/- (Fourteen lac eight thousand seven hundred seventy eight rupee and seventy five paisa) after deducting sum of Rs.110000/- (One lac ten thousand) on account of salvage and after deducting Rs.74146.25/- (Seventy four thousand one hundred forty six rupees and twenty five paisa) on account of excess clause as per terms and conditions of policy.
10. Submission of learned advocate appearing on behalf of complainant that complainant is legally entitled for a 8 M/s. Matri Shakti Stone Crusher Versus National Insurance Co. Ltd. & Anr.
(C.C. No.09/2016) sum of Rs.8729000/- (Eighty seven lac twenty nine thousand) alongwith interest @18% from the date of claim and on this ground complaint be allowed is decided accordingly. State Commission has carefully perused insurance policy. It is proved on record that stone crusher was insured in the sum of Rs.8729000/- (Eighty seven lac twenty nine thousand). It is also proved on record that premium to the tune of Rs.13485/- (Thirteen thousand four hundred eighty five) was also paid by complainant to the opposite parties. It is proved on record that plant, machinery, accessories, furniture, fittings and other stocks were insured with opposite parties. It is proved on record that insurance policy was operative w.e.f. 24.09.2013 to 23.09.2014. It is proved on record that insurance company has appointed surveyor and loss assessor Josan & Associates and also appointed surveyor and investigator namely Kamlesh Chadha. It is proved on record that surveyor and loss assessor Josan & Associates has submitted affidavit placed on record and has also submitted report annexure OP-4 (colly) placed on record. State Commission has carefully perused report submitted by surveyor and loss assessor Josan & Associates. Josan & Associates has specifically mentioned in the report that it conducted number of visits to the site and had inspected the damage at the site. Surveyor and loss assessor Josan & Associates specifically mentioned in the report that on 9 M/s. Matri Shakti Stone Crusher Versus National Insurance Co. Ltd. & Anr.
(C.C. No.09/2016) 14/15.08.2014 heavy rain fall took palce in the shape of flood in the river which caused heavy damage to the stone crusher of the insured. Surveyor and loss assessor Josan & Associates has also sought report of meteorological department of Village Panchayat Patnoun and also took certificate dated 12.11.2014 and there is recital in the certificate that due to heavy rain, heavy loss had occurred to the crusher. Surveyor and loss assessor Josan & Associates has specifically mentioned in the report that intimation was also given to the police department vide report No. 18 dated 15.08.2014. Surveyor and loss assessor Josan & Associates has specifically mentioned in the report that cause of incidence was flood. Surveyor and loss assessor Josan & Associates has specifically mentioned in the report that cause of loss is covered under the policy. Surveyor and loss assessor Josan & Associates has assessed loss to the tune of Rs.1408778.75/- (Fourteen lac eight thousand seven hundred seventy eight rupee and seventy five paisa). Surveyor and loss assessor Josan & Associates has also annexed photographs with its report. State Commission is of the opinion that report submitted by surveyor and loss assessor Josan & Associates is trustworthy, reliable and inspires confidence of State Commission. There is no reason to disbelieve the report submitted by surveyor and loss assessor Josan & Associates. Complainant did not file any counter expert report on record. 10
M/s. Matri Shakti Stone Crusher Versus National Insurance Co. Ltd. & Anr.
(C.C. No.09/2016) The report submitted by surveyor and loss assessor Josan & Associates remained unrebutted on record. There is no evidence on record in order to prove that surveyor and loss assessor Josan & Associates has hostile animus against complainant at any point of time.
11. Submission of learned advocate appearing on behalf of complainant that complainant is legally entitled for compensation to the tune of Rs.600000/- (Six lac) on account of deficiency in service and on this ground complaint be allowed is decided accordingly. Insurance company has repudiated the claim and did not pay the amount to the complainant. Complainant has to file consumer complaint and harassment was caused to the complainant. State Commission is of the opinion that complainant is legally entitled for reasonable amount on account of deficiency in service. State Commission is of the opinion that complainant has sought excessive harassment amount in the complaint.
12. Submission of learned advocate appearing on behalf of complainant that complainant is legally entitled for Rs.200000/- (Two lac) on account of mental pain and on this ground complaint be allowed is decided accordingly. State Commission is of the opinion that complainant is legally entitled for reasonable amount on account of mental pain. State Commission is of the opinion that complainant has 11 M/s. Matri Shakti Stone Crusher Versus National Insurance Co. Ltd. & Anr.
(C.C. No.09/2016) sought excessive mental pain to the tune of Rs.200000/- (Two lac) in the complaint from the opposite parties.
13. Submission of learned advocate appearing on behalf of complainant that complainant is legally entitled for Rs.100000/- (One lac) on account of litigation costs is decided accordingly. State Commission is of the opinion that complainant is legally entitled for reasonable amount on account of litigation costs because complainant has engaged advocate and also paid other litigation costs. State Commission is of the opinion that complainant has sought excessive litigation costs in the complaint from the opposite parties.
14. Submission of learned advocate appearing on behalf of opposite parties that complainant did not fall within the definition of consumer as defined under Consumer Protection Act 1986 and on this ground complaint be dismissed is decided accordingly. State Commission has carefully perused the insurance policy annexure OP-1 placed on record. As per insurance policy name of insured has been mentioned as KCCB and name of insured has also been mentioned as account holder M/s. Matri Shakti Stone. It is proved on record that insurance policy was obtained from the opposite parties for the benefit of M/s. Matri Shakti Stone. It is proved on record that M/s. Matri Shakti Stone is 12 M/s. Matri Shakti Stone Crusher Versus National Insurance Co. Ltd. & Anr.
(C.C. No.09/2016) beneficiary of insurance policy. As per Consumer Protection Act 1986 beneficiary can file consumer complaint. Consumer has been defined under section 2(d)(i)&(ii) and as per section 2(d)(i)&(ii) beneficiary has been included in the definition of consumer. In view of the fact that present consumer complaint has been filed by the beneficiary i.e. M/s. Matri Shakti Stone it is held that complainant falls within the definition of consumer as defined under Consumer Protection Act 1986.
15. Submission of learned advocate appearing on behalf of opposite parties that M/s. Matri Shakti Stone was insured for commercial purpose and on this ground complaint be dismissed is decided accordingly. Complainant has specifically mentioned in the complaint that he is running M/s. Matri Shakti Stone for earning his livelihood by way of self-employment. Insurance Company did not adduce any positive, cogent and reliable rebuttal evidence that complainant is not running M/s. Matri Shakti Stone for running his livelihood by way of self-employment. Consumer Protection Act was amended w.e.f. 15.03.2003 and explanation was added in Section 2(d) of Consumer Protection Act 1986 and there is specific recital in the explanation that commercial purpose would not include service availed exclusively for the purpose of earning livelihood by means of 13 M/s. Matri Shakti Stone Crusher Versus National Insurance Co. Ltd. & Anr.
(C.C. No.09/2016) self-employment. It is held that case of complainant covers under explanation mentioned in section 2(d) of Consumer Protection Act 1986.
16. Submission of learned advocate appearing on behalf of opposite parties that present complaint is bad for non-joinder of necessary party i.e. KCCB and on this ground complaint be dismissed is decided accordingly. Complainant did not seek any relief against KCCB. State Commission is of the opinion that KCCB has separate cause of action if any against the complainant. State Commission is of the opinion that KCCB is not necessary party in order to dispose of complaint properly and effectively. It is held that complaint can be disposed of properly and effectively without impleading KCCB as co-party.
17. Submission of learned advocate appearing on behalf of opposite parties that complicated questions of facts are involved in the present complaint and present complainant be relegated to civil court is decided accordingly. State Commission is of the opinion that as per section 2(o) of the Consumer Protection Act 1986 all disputes qua insurance should be disposed of under Consumer Protection Act 1986. As per section 2(o) service has been defined and as per section 2(o) service means service of any description given by insurance company. Hence it is held that case of complaint 14 M/s. Matri Shakti Stone Crusher Versus National Insurance Co. Ltd. & Anr.
(C.C. No.09/2016) also falls within the definition of service as defined under section 2(o) of Consumer Protection Act 1986. It is held that no complicated facts are involved in the present case and it is held that present complaint can be disposed of under Consumer Protection Act 1986 in effective manner.
18. Submission of learned advocate appearing on behalf of opposite parties that as per report submitted by Kamlesh Chadha complainant has submitted forged bills and on this ground complaint be dismissed is decided accordingly. Kamlesh Chadha with his report has submitted photostat copy of letter issued by Sonu Kumar Government Contractor on his letter pad. Opposite parties did not file affidavit of Sonu Kumar in the present case. It is well settled law that contents of any document should be proved only by way of affidavit of a person who has issued and signed the document. In the present case document dated 03.07.2014 was not issued by Kamlesh Chadha but was issued and signed by Sonu Kumar. No reason assigned by the opposite parties as to why affidavit of Sonu Kumar was not placed on record in order to prove the contents of documents. Hence it is held that report submitted by Kamlesh Chand is not trustworthy and is not reliable being derived knowledge from third person.
19. Insurance company has also not submitted affidavits of other persons who have issued other original 15 M/s. Matri Shakti Stone Crusher Versus National Insurance Co. Ltd. & Anr.
(C.C. No.09/2016) bills. It is well settled law that other original bills should be rebutted only by way of affidavits of persons who had issued and signed other original bills. Other original bills had not been issued by Kamlesh Chadha. It is held that it is not expedient in the ends of justice and on the principle of natural justice to dismiss the complaint filed by complainant simply on the report of Kamlesh Chadha. Surveyor and loss assessor Josan & Associates has submitted detailed report in positive cogent and reliable manner. No reason assigned by the insurance company as to why insurance company disbelieved the report submitted by surveyor and loss assessor Josan & Associates. It is well settled law that report submitted by surveyor and loss assessor appointed by insurance company is binding upon insurance company.
20. It is proved on record that insurance company firstly appointed Josan & Associates surveyor and loss assessor. Appointing surveyor one after another so as to get a tailor made report to the satisfaction of insurer is not permissible. Insurer cannot appoint second surveyor as a matter of course. Insurer must specify cogent and satisfactory reasons for not accepting report of first surveyor. See 2009 (8) SCC 507 Apex Court titled Sri Venkateswara Syndicate Versus Oriental Insurance Company Limited & Anr. Law laid down by the Hon'ble Apex Court of India is binding upon all 16 M/s. Matri Shakti Stone Crusher Versus National Insurance Co. Ltd. & Anr.
(C.C. No.09/2016) Courts, Tribunal and Commissions under Article 141 of Constitution of India.
21. It is well settled law that surveyor report in favour of consumer is valuable document and same should be given due credence by insurer. See 2012 (4) CPJ 103 NC National Insurance Co. Ltd. Versus Jyothi Tobacco Traders. See 2012 (1) CPJ 420 NC H.C. Saxena Versus New India Assurance Co. Ltd. In view of above stated facts point No.1 is answered partly in yes and partly in no.
Point No.2: Final Order
22. In view of findings upon point No.1 above complaint is partly allowed. It is ordered that opposite parties would pay a sum of Rs.1408778.75/- (Fourteen lac eight thousand seven hundred seventy eight rupee and seventy five paisa) alongwith interest @ 9% per annum from the date of institution of complaint till realization to the complainant. It is further ordered that in addition opposite parties would pay a sum of Rs.10000/- (Ten thousand) for deficiency in service to the complainant. It is further ordered that in addition opposite parties would pay a sum of Rs.10000/- (Ten thousand) for mental pain and sufferings to the complainant. It is further ordered that in addition opposite parties would pay a sum of Rs.10000/- (Ten thousand) as litigation costs to 17 M/s. Matri Shakti Stone Crusher Versus National Insurance Co. Ltd. & Anr.
(C.C. No.09/2016) the complainant. Report annexure OP-4 submitted by surveyor and loss assessor namely Josan & Associates will form part and parcel of order. File of State Commission be consigned to record room after due completion forthwith. Certified copy of order be transmitted to parties forthwith free of costs strictly as per rules. Complaint is disposed of. Pending application(s) if any also disposed of.
Justice P.S. Rana (R) President Vijay Pal Khachi Member Meena Verma Member 15.11.2017.
*GUPTA* 18