State Consumer Disputes Redressal Commission
Managing Director Chhattisgarh Rajya ... vs United India Insurance Co.Ltd on 6 October, 2017
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR (C.G.)
Complaint Case No.CC/2017/37
Instituted on : 15.05.2017
1. Managing Director,
Chhattisgarh Rajya Laghu Vanopaj Sahkari Sangh Maryadit,
Address : A-25, V.I.P. Estate, Shankar Nagar,
Raipur (C.G.)
2. Managing Director,
Jila Laghu Vanopaj Sahkari Union Maryadit,
Rajnandgaon (C.G.) ... Complainants
Vs.
United India Insurance Company Limited,
Divisional Office No.02, 10 Dharampeth Extension,
Shankar Nagar Chowk,
Nagpur 440010 (Maharashtra) ... Opposite Party
PRESENT: -
HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT
HON'BLE SHRI D.K. PODDAR, MEMBER
HON'BLE SHRI NARENDRA GUPTA, MEMBER
COUNSEL FOR THE PARTIES:
Shri Vinod Pradhan, Advocate for the complainants.
Shri P.K. Paul, Advocate for the opposite party.
ORDER
Dated : 06/October/2017 PER :- HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT. The complainants have filed this consumer complaint under Section 17 of the Consumer Protection Act, 1986 against the O.P. seeking following reliefs :-
1. To direct the opposite party to pay to pay total sum insured Rs.54,00,000/- (Rupees Fifty Four Lakhs) to the complainant.
// 2 //
2. To direct the O.P. to pay compound interest @ 12% p.a. on the above amount from the date of incident of fire till realisation.
3. To direct the O.P. to pay compensation for mental agony of Rs.1,00,000/- (Rupees One Lakh) to the complainant, as inspite of making efforts continuously for 6 years, the O.P. did not pay sum insured, due to which the tendu leave collectors suffered mental agony.
4. To direct the O.P. to pay cost of litigation of Rs.20,000/- (Rupees Twenty Thousand) to the complainants.
5. Any other relief which the Hon'ble Commission may feel deem fit.
2. Briefly stated the facts of the complaint of the complainant are that the complainants are registered Co-operative Society, which are run by the Government and the O.P . is Insurance Company, which insure the articles of the complainants. The complainant No.1 keeps control over all Districts Societies of the State and the O.P. No.2 is registered Co-operative Society at District Level. An agreement to purchase the Tendu Leaves was executed between the complainants and trader Bandopant Shankar Rao Mallewar, R/o Subhash Ward, Gadchiroli, Maharashtra in which all terms and conditions were accepted. The purchase price was fixed on the basis of contract at Rs.2,461/- (Rupees Two Thousand Four Hundred Sixty One) per // 3 // standard bag. To keep the Tendu Leaves, a tripartite rent agreement was prepared and the Tendu Leaves were kept in the godown of Hemant Tiwari, situated at Panika Road, Rajnandgaon which was under double locks of complainants and the trader. On 02.07.2010 at about 9.30 P.M. fire was caught in the godown, immediately Fire Brigade was called and complaint was lodged to Police Station Basantpur, District Rajnandgaon. On 03.07.2010, the Officer Incharge of , Police Station Rajnandgaon registered Crime No.187/2010 under Section 435 I.P.C. After investigation in the matter, offender could not be traced out, therefore Khatma No.25/2010 dated 30.11.2010 was submitted before Judicial Magistrate First Class which was accepted by the concerned Court. The goods which were kept in the godown were insured. The O.P. is insurer and the O.P. received premium. Insurance was mainly got done to cover the loss / damage from fire, therefore, the O.P. is liable to indemnify the loss. The trader/purchaser had deposited a sum of Rs.10,45,925/- towards E.M.D and Bank Guarantee with the complainant. The O.P. obtained premium in respect of insurance policy No.230200/11/10/11/000000782 which was effective for the period from 01.05.2010to 30.04.2011 and the insurance policy was mainly issued for fire incident During the subsistence of policy, the incident occurred. The sum insured was Rs.54,00,000/. The complainants submitted insurance claim on 12.07.2010, but inspite of lapse of long period, the O.P. has not paid the amount. The complainant made several correspondence with the O.P. for obtaining sum insured but // 4 // the O.P. wrote a letter dated 16.04.2016 to the trader, which was related to repudiation of claim in which it was mentioned that the ash, was not of Tendu Leaves, therefore, the claim is not acceptable. M/s Alok Shankar & Company, was appointed by the O.P. (Insurance Company) as Surveyor. The Surveyor mentioned in page No.10 of his Survey Report that he has to obtain information regarding the chemical composition of tendu leaves from Indian Standard Bureau, various persons and Agencies but information could not be obtained. Thereafter the Surveyor mentioned that the chemical composition is based on nature of soil and atmosphere, therefore, it could not be obtained. The Surveyor himself proved that the report of the Laboratory is false and based on presumption and assumption, from which conclusion cannot be drawn, therefore, the ground of repudiating the claim is false. There is relationship of consumer and service provider between the complainant and O.P. The O.P. has repudiated the claim of the complainant on false and frivolous ground and thus committed deficiency in service due to which complainant suffered financial loss. The complainants is an institution working on no loss no profit basis, therefore, comes in the category of consumer. The complainant is not having knowledge that as and when the O.P. received the sample which was sent to laboratory. The O.P. was required to take the sample of the ash in the presence of the complainant and other five persons but by not doing so, the O.P. create situation of doubt. Thus the main report has been made on false ground, which was supported by the Surveyor of the Insurance // 5 // Company. The affidavits of Security Guard and Godown Incharge have been filed, who were present at the time of incidence who stated that at the time of incident, in the godown except tendu leaves no other goods were there. Hence the complainant filed instant complaint.
3. The O.P. has filed its written statement and averred that a Standard Fire & Special Perils Policy No.230200/11/10/11/00000082 has been issued by the O.P. in the name of the insured Managing Director, C.G. State M.F.P (TND) District Union, Rajnandgaon A/c Shri B.S. Mallewar, Subhash Ward, Gadchiroli Maharashtra, covering risk on Stock of beedi leaves and/or such other goods packed in gunny bags LOT No.244, Gotatola, for a sum insured of Rs.54,00,00/- (Rupees Fifty Lakhs), for a period from 01.05.2010 to 30.04.2011 subject ofcourse to the terms and conditions annexed and appended thereto forming an essential and inherent part of the policy document and binding on the contracting parties thereto. A Purchaser's Agreement was entered into between the Governor of Chhattisgarh acting through the Conservator of Forests on the one part and the purchaser Bandopant Shankar Rao Mallewar S/o Shri Shankar Rao Mallewar, R/o Subhash Road, Gadchiroli (M.S.) in the capacity of the purchaser on the other part, who also happens to be the beneficiary under the captioned policy. The above purchaser being a necessary party has not been impleaded as party by the complainants. The inclusion thereof will have a definite bearing on the present case and as such the non-joinder would render this complaint inchoate and hence is liable to be // 6 // dismissed on this score itself. The due compliance of the terms and conditions of the above agreement is not known to the O.P. The purchase rate was fixed at Rs.2,461/- per standard bag. The above purchase price excludes the Value Added Tax, Forest Development Class and other Taxes/Cesses as leviable on the purchase price from time to time. The tripartite agreement as mentioned in para 4 of the complaint is not placed on record nor has been provided to the O.P. The fire brigade was not promptly intimated and a complaint pertaining thereto was not lodged with Police Station Basantpur, District Rajnandgaon. Documents regarding the same is not placed on record. On the other hand, perusal of the First Information Report reveals that information about the alleged fire accident was made on 07.08.2010, i.e. more than a month after the date of the alleged accident. No reason whatsoever has been forwarded by the complainants to justify the above delay. All the stocks kept in the godown was not insured. The O.P. would stress hereby that only the subject matter i.e. stock of Beedi Leaves stored in gunnies were insured and the premium in respect thereof was received. The O.P. is not liable to indemnify the loss occasioned as a result of the alleged unfortunate incident. The strict adherence to the terms and conditions governing the policy is a condition precedent for indemnification of any loss. As soon as the accident was intimation to the O.P., the O.P. promptly deputed Mr. Sudhir Joshi, a licensed Surveyor to conduct a preliminary survey of the subjected premises. The O.P. was not at fault at any point of time. The submission of the claim form per se does not amount to // 7 // admission of claim by the insurer, in this case, the O.P. The complainants did not initiated several correspondences at their end. Immediately after preliminary survey, the Final Surveyor was deputed by the Head Offices of the insurer, O.P., to inspect and assess the damage accordingly. After thorough inspection of the godown and the debris of the burnt materials, the samples of ash and debris along with fresh Tendu leaves and fresh Rice Bran were sent to an ISO 9001 : 2008 certified laboratory which was approved by Food and Drug Administration and Agmark. As per the Lab Report which has been reproduced in page 8 & 9 of the Final Survey Report, the quantum of basic components found in ash and the real Tendu leaves varied astronomically . To confirm further samples were collected again and sent to National Test House (NTH), Mumbai, a Government of India Laboratory. Test report of National Test House also confirmed wider variations in the tests of tendu leaves and sample of debris. Based on the above test reports, the Surveyor contended that the ash found from the affected godown is not of tendu leave. The Surveyor on the basis of above findings inferred that condition no.8 of the policy was infringed and thereby further recommended for closing the claim file on a "No Claim Basis"". The upshot of the above lead to repudiation of the above claim which was duly intimated to the insured vide letter dated 26.04.2016. The Surveyor nowhere establishes that the lab reports were incorrect. Rather recommendations of the Surveyor are based on reliance on the above two reports which are objective based by any stretch of reasoning. The totality of the cited facts and the // 8 // reality of the ground report as assessed by the Surveyor based o his on the spot inspection substantiates the fact that the complainants have developed a concocted and a fraudulent case to befool the insurer O.P. and thereby the captioned claim falls within the four corners of the clause No.8 of the policy. The O.P. has not committed any deficiency in service nor the insurer is liable to make good the loss incurred by the insured on account of the above alleged fire accident. The repudiation was backed by sound scientific tests conducted by institutions of repute, experience and expertise duly endorsed by the Final Surveyor. The Survey Report dated 18.09.2011 is issued by concerned Surveyor without prejudice to the rights of the insurer and terms and conditions of the policy issued to and held by the insured complainant. The Surveyor has adopted a standard and well accepted procedure. The Surveyor in his pursuit of an indepth appraisal of the alleged damage, has ensured transparency to the fullest possible extent. Since cause of fire could not be ascertained with exactitude and ambiguity regarding the above was required to be cleared away and as abnormality was found on inspection of the burnt material, the Surveyor himself suggested the complainant insured to collect the samples of the debris from the entire godown and send the same to the laboratory. The Surveyor has tried to adhere to the well laid guidelines of the IRDA and there was no deviation whatsoever from the prescribed norms. The lab reports were not baseless. The Surveyor in his report has not commented that no plausible inference can be drawn on the basis of the above quoted lab test reports. The // 9 // affidavits of the Godown Keeper and hat of the godown guard assumes less significance and relevance as both were appointed by the complainant. The complainants have no cause of action against the O.P. The complaint of the complainants be dismissed against the O.P.
4. The complainants have filed documents. Annexure 1 is affidavit dated 22.02.2017 of Incharge of Godown Shri F.P. Chaurasiya, Annexure 2 is affidavit dated 14.022017 of Security Guard Shri Omprakash Sharma, Annexure 3 is affidavit dated 17.02.2017 of Security Guard Shri Lokesh Markandey, Annexure 4 is affidavit dated 17.02.2017 of Security Guard Shri Dinesh Markandey, Annexure 5 is affidavit dated 15.02.2017 of Security Guard Shri Surendra Kumar Ramteke, affidavit dated 17.02.2017 of Security Guard Khemchand Markandey, Annexure 7 is Kreta Niyukti Patra, Annexure 8 is letter dated 28.01.2010 sent by Executive Director (Trade / Finance), Chhattisgarh State Minor Forest Produce (T & D) Co- operative Federation Ltd. to Mr. Bandopant Shankarrao Mallewar, Annexure 9 is Purchase Agreement dated 11.02.2010, Annexure 10 is Fire Cover Note issued by the O.P., Annexure 11 is letter dated 03.07.2014 sent by F.P. Chaurasiya, Deputy Ranger, District Union, Rajnandgaon to Officer Incharge, Police Station (Basantpur) Rajnandgaon, Annexure 12 is Standard Fire and Special Perils Police issued by United India Insurance Co. Ltd. for the period from 01.05.2010 to 30.04.2011 along with terms and conditions, Annexure 13 // 10 // is Claim Form for Fire and Allied Perils, Annexure 14 is letter dated 28.09.2011 sent by the O.P. to the complainant, Annexure 15 is email dated 25.08.2011 sent by Kishore Panda to Alok Shankar, email dated 28.07.2011 sent by Parasuram Barik to Alok Shankar, email dated 14.07.2011 sent by Narendra Mallewar, Annexure 16 is letter dated 12.09.2013 sent by Ajay Nigam, Insurance Consultant and Insurance Claim Investigator to the Competent Office (D.F.O./ Asstt. D.F.O /Forest Ranger), District Rajnagaon, Annexure 17 is affidavit of Chudamani Singh dated 31.01.2014, Annexure 18 is Final Survey Report dated 18.09.2011 of Alok Shankar & Company, Surveyor, Annexure 19 is letter dated 26.04.2016 sent by Sr. Divisional Manager, United India Insurance Company Limited to Shri B.S. Mallelwar, Annexure 20 is First Information Report, Annexure 21 is Final Report, Annexure 22 and 23 are newspaper cutting, Annexure 24 is letter dated 20.09.2016 sent by Managing Director, Jila Vanopaj Sahkari Union Maryadit, Rajnandgaon, sent to O.P., Annexure 25 is letter dated 29.11.2016 sent by Officer Incharge of Police Station Basantpur, District Rajnandgaon (C.G.) to Managing Director, Jila Vanopaj Sahkari Union Maryadit, Rajnanandgaon, Annexure 26 is Order dated 31.12.2016., Tripartite agreement.
5. The O.P. has filed documents. OP-1 is Standard Fire and Special Perils Policy with Terms and Condition Vide No.230200/11/10/11/00000082, OP-2 Claim form for file & allied perils, OP-3 is First Information Report, OP-4 is Report of Spot // 11 // Surveyor Shri Sudhir Joshi, OP- is Report of Final Survey of Surveyor Alok Shankar & Co., OP-6 is letter of Shri Narendra Shankarrao Mallelwar, OP-7 is Report of Qualichem Laboratories Nagpur dated 16.01.2011, OP-9 is Test Certificate of National Test House (WR), Mumbai, OP-9 is email correspondence, OP-10 is repudiation letter dated 26.04.2016.
6. Shri Vinod Pradhan, learned counsel appearing for the complainant has argued that the complainants are registered Co- operative Society which are run by the Government. The complainant No.1 keep control over all Districts Societies of the State and the O.P. No.2 is registered Co-operative Society at District Level. An agreement to purchase the Tendu leave was executed between the complainants and the trader Bandopant Shankar Mallewar. The purchase price was fixed on the basis of contract at Rs.2,461/- per standard bag. The tendu leaves were kept in the godown of Hemant Tiwari, situated at Panika Road, Rajnandgaon and it was duly locked by the trader in double lock. The godown and tendu leaves were insured with the O.P. and insurance policy No.230200/11/10/11/000000782 was issued by the O.P. which was effective for the period from 01.05.2010 to 30.04.2011. On 02.07.2010 at about 9.30 P.M. fire was caught in the godown. Fire brigade was called immediately and report was lodged in Police Station, Basantpur, District Rajnandgaon. On 03.07.2010, Officer Incharge of Police Station, Basantpur, District Rajnandgaon registered Crime No.187/10 // 12 // under Section 435ipc. The offender could not be trade, then Khatma No.25/10 dated 30.11.2010 was submitted before Judicial Magistrate First Class and the same was accepted by the concerned Court. Due to incident of fire, the complainants suffered heavy loss. The intimation regarding the incident was given to the O.P. The O.P. appointed M/s Alok Shankar & Company as Surveyor and Loss Assessor. The Surveyor gave its report but the Surveyor could not obtain information from various agencies. The Surveyor himself proved that the report of laboratory is false. The report is based on presumption and assumption. The sample was not collected by the Surveyor according to law and sample was taken in absence of employees of the complainant and trader, therefore, the said report is not acceptable and O.P. wrongly repudiated the claim on the basis of laboratory test report. The complainants submitted their claim before the O.P., but the O.P. wrongly repudiated the claim of the complainants. Hence, the complainants have filed the instant complaint. The complainants are entitled to get compensation of Rs.54,00,000/- which is sum insured along with interest @ 12% p.a. and Rs.1,00,000/- towards compensation for mental agony and Rs.20,000/- towards cost of litigation. The complaint be allowed.
7. Shri P.K. Paul, learned counsel for the O.P. has argued that the claim submitted by the complainants is vexatious and frivolous. The complainants have not made purchaser and trader as party, therefore, for want of necessary party, the complaint is liable to be dismissed.
// 13 // All the stocks which were kept in the godown was not insured. Only the stock of beedi leaves stored in gunnies were insured and premium in respect thereof was received. The complainants themselves sent Tendu Leaves and Ash to the National Test House (NTH), Mumbai, a Government of India Laboratory. The test report of said laboratory confirmed wider variations in the tests of tendu leaves and sample of debris. On the basis of above test reports, the Surveyor found that the ash found from the affected godown is not of tendu leaves. The claim of the complainants is suspicious. After verification, the Surveyor found that few bags which were stored near the first gate from where smoke was first observed emanating have been saved but not even a single bag could be saved from lot No.184B, Sangam which was said to other store on other corner of the godown. It is also pertinent to note here that during our first visit we had inspected entire premise and found that 400 bags pertaining to the insured, Shri N.S. Mallewar stored at another godown which has not been found effected. The Surveyor further commented that "On our subsequent visit, when it was possible to enter inside the godown, we have visited and thoroughly inspected the godown and debris of burnt material. It was surprised to note that at some places, small heaps of partial burnt materials were there and remaining area was full of burnt ashes only. The Surveyor found that the tendu leaves which was said to be recovered from affected godown is best option available to match the chemical composition of the burnt materials and in that results are varying and we may conclude sample of ash collected from the // 14 // affected godown is not entirely of tendu leaves. According to the Surveyor, he found that affected items were not Tendu leaves, as claimed by the insured and insured has fraudulently made the claim to be benefitted and therefore, he violated condition 8 of the policy. Shri Paul, further argued that on the basis of Surveyor's report, the O.P. has rightly repudiated the claim of the complainants and by doing so, the O.P. did not commit any deficiency in service and unfair trade practice. Hence the complaint is liable to be dismissed. He placed reliance on M/s. BHS Industries Vs. Export Credit Guarantee Corp. & Anr. 2015 NCJ 761 (SC); Bhai Bhagtu Cotton Factory & Another Vs. National Insurance Company Ltd. & Another, 1986-99 CONSUMER 3556 (NS); Surinder Pal Singh Vs. Nited India Insurance Company Ltd. and Ors. 2017 (3) CPR 249 (NC); Best Food International Vs. National Insurance Co. Ltd. & Anr. IV (2009) CPJ 77 (NC); Jaisri Mines Products Pvt. Ltd. Vs. New India Assurance Co. Ltd. II (2009) CPJ 123 (NC); and Rinku Sharma Vs. New India Assurance Company, 2017 (3) CPR 402 (NC).
8. We have heard learned counsel appearing for both the parties and have perused the documents filed by both the parties in the complaint case.
9. The complainants pleaded that the complainants are registered Co-operative Society and tripartite agreement was executed between the complainants and the trader. The tendu leaves were kept in the godown of Hemant Tiwari, situated at Panika Road, Rajnandgaon, and // 15 // the same were kept in double lock. The complainants further pleaded that the complainants obtained insurance policy No.230200/11/10/11/000000782 from the O.P. for the period from 01.05.2010 to 30.04.2011 for the sum insured Rs.54,00,000/-. On 02.07.2010 at about 9.30 P.M. the fire was caught in the godown. The fire brigade was immediately called and the matter was reported to Police Station, Basantpur, District Rajnandgaon, where Crim No.187/10 was registered for offence under Section 435 IPC. The offender could not be traced, then Police Station, Basantpur issued Khatma No.25/10, which was accepted by Judicial Magistrate First Class. The intimation regarding the incident was also given to the O.P. The O.P. appointed M/s Alok Shankar and Company as Surveyor. According to the complainant, the Surveyor himself mentioned in his report that chemical composition is based on nature of soil and atmosphere.
10. The O.P. appointed Shri Sudhir Joshi, as Spot Surveyor, who inspected the spot and took photographs. He mentioned in Spot Survey Report dated 31.07.2010 :-
"Observation : According to the instruction received from the insurers on 03.07.2010, he immediately rushed to the spot. As observed the stock inside the godown was in flames. Fir fighting job was in progress. Photographs were taken to cover the maximum extend of loss...
Clause of Loss : The undersigned inspected the entire area thoroughly, however, there was no evidence leading to the cause of fire. There is no electric connection in the godown. The fire was understood to have // 16 // observed from the area near the first shutter of the godown where materials of lot no.244 was kept. However, the flames were spread all over the godown, more concentration was observed near first shutter. It is also given to understand that some labours were working on the roof to quote primer on GI sheets, however, they had gone before 6.00 PM. Under these circumstances it is difficult to conclude the exact cause of loss. The police investigation and departmental investigation is under progress."
11. Document Annexure OP-6 is letter dated 11.01.2011 which was sent by N.S. Mallewar, who is Beedi Leaves Contractor to the Qualichem Laboratories, Nagpur for testing the tendu leaves. Qualichem Laboratories sent its report in which it is mentioned that "The sample submitted complies / does not comply with the prescribed standards of quality as per test No." 12 Alok Shankar & Company was appointed by O.P. as Surveyor and Loss Assessor and he submitted his final report dated 18.09.2011. Both the parties have filed copy of Final Survey Report given by Alok Shankar & Company, which is marked as Annexure 18 and Annexure OP-5 respectively, in which it is mentioned thus :-
"7. Inspection and verification of damages :
(a) ..............
(b) ...............
(c) Cause of Loss : As per the witness, smoke was first observed at around 9.30 PM on 02.07.2010 emanating from the // 17 // godown. The godown was locked since long and nobody was present inside the premise except witness..... There was no electricity connection was provided and therefore chances of any short circuit was not possible. Chance of spontaneous combustion is also negligible as the green leaves were packed in small pack and there was no chance of any friction resulting in fire.
(d) ... It is most surprising that few bags which were stored near the first gate from where smoke was first observed emanating have been saved but not even a single bag could be saved from lot no.184 B, Sangam which was said to store on other corner of the godown. It is also pertinent to note here that during our first visit, we have inspected entire premise and found that 400 bags (220 of lot no. 127-A and 180 of lot No.127-B) pertaining to the insured, Shri N.S. Mallelwar stored at another godown which has not been found affected. Although as per description mentioned on wall of godown, record of insured and federation, entire material were stored at the affected location only.
(e) On our subsequent visit, when it was possible to enter inside the godown, we have visited and thoroughly inspected the godown & debris of burnt material. It was surprised to note that at some places, small heaps of partial burnt material were there and remaining area was full of burnt ashes only. As per our opinion, when fire was so // 18 // severe and had been for more than 10 days, how it is possible that some materials (in patches) could not be burnt. It is also observed that color of ash is also different at the places where patches of partial burnt materials were found. We had requested the insured to collect the sample of the debris from different places and sent to laboratory for testing.
(f) Affected materials : ..... It is most surprising that as per the record of federation, there were 2022.295 standard bags, however as per the insured records, it was 2019 standard bags. In our opinion, there should not be any difference in bags, had same materials stored at the affected godown. Out of total bags, 586 bags had been saved.
(i) .... It is to be noted that in entire process of drying up, packing up and transportation, there is no control of federation and as per our enquiry even after reaching the materials at godown, nobody is verifying the bundles.
(j) Test Reports : Since, case of fire could not be ascertained and create doubt in mind and from view of burnt materials, abnormality was found, we had suggested the insured to get the debris tested from laboratory. We had enquired about the laboratory who can do this type of testing and suggested the insured to collect the samples of debris from entire godown and // 19 // send the same to the laboratory. Accordingly, the insured had sent the samples of ash collected from affected godown, fresh tendu leaves and fresh rice bran. We have received the report directly from the laboratory i.e. Quatichem laboratories, Nagpur an ISO 9001 :
2008. As per the report, there are major variations found in all test conducted in comparison to original tendu patta leaves. Results of the tests are as under :-
Item description % Content in % Content from % Variation (% the ASH the un-burnt found MORE in collected from tendu patta unburnt tendu the burnt collected from the patta) material at site site Calcium 11.46 42.40 270% Iron 0.72 0.96 33.33% Magnesium 9.04 25.0 177% Sodium 0.57 4.10 619% Pottasium 13.53 18.48 37% To confirm further, we have once again collected samples and sent to National Test House (NTH), Mumbai, a Government of India laboratory. Test report of NTH has also confirmed wider variation in the entire 6 test of tendu leaves and samples of debris.
We are of the opinion that there should not be any variations in result of test as tendu leaves were also collected from the alleged saved stock and as per the insured, only tendu leaves were stored inside the premise before the fire...
// 20 // k. To confirm once again we have made contact with National Test House and requested them to visit the affected location and do one more test if required. Scientist of National Test House has requested us to get the chemical composition of the tendu leaves so that to ascertain once again... From the above, we can conclude that tendu leaves which was said to be recovered from the affected godown is best option to match the chemical composition of the burnt materials and in that results are varying and we may conclude that sample of ash collected from the affected godown is not entirely of tendu leaves.
10. Admissibility of Claim :
It has been established that affected items were not tendu leaves as claimed by the insured and insured has fraudulently made the claim to be benefitted and therefore has violated condition 8 of the policy. As per the condition no.8 of the policy, if the claim be in any respect fraudulent, or if any false declaration be made or used in support thereof or if any fraudulent means or devises are used by the insured or any one acting on his behalf to obtain any benefit under the policy, all benefits under this policy shall be forfeited. Since, it was also not established how this fire was occurred as there was no possibility to originated the fire at its own, the claim reported by the insured is not tenable and therefore, we recommend herewith closing the claim file on a "NO CLAIM BASIS".
// 21 //
13. In Devendra Malhotra Vs. United India Insurance Co. Ltd. & Anr. 2016 (3) CLT 525 (NC), Hon'ble National Commission, has observed thus :-
"Consumer Protection Act, 1986, Sections 2 (1) (g), 19 & 21 (a) (ii)- Insurance claim Surveyor report Held It is a established legal proposition that the report made by the surveyor, who is a professional in his field, cannot disbelieved, unless there are cogent and convincing reasons to do so."
14. In Oriental Insurance Co. Ltd. Vs. Pavan Enterprises & Anr. I (2016) CPJ 503 (NC), Hon'ble National Commission has observed thus :-
"12. I see no reason to discard the report of the Surveyor. He appears to be a guideless witness. No motive was ever attributed to him. There must be some reasonable ground or doubt to reject his report. The report of the Surveyor carries infinite significance as was held in Roshan Lal Oil Mills Ltd. & Ors., 2014 (SLT Soft) 1 = 2014 (CPJ Soft) 1 = (2000) 10 Supreme Court Cases 19 and in D.N. Badoni v. Oriental Insurance Co. Ltd., I (2012) C.P.J. 272 (NC)."
15. In New India Assurance Co. Ltd., vs. Pave Infrastructures Pvt. Ltd., 2015 (3) CPR 577 (NC), Hon'ble National Commission has observed that "Loss of assessment by approved Surveyor can be discarded only on cogent reasons".
16. In Garg Acrylics Ltd., Through Sh. Anish Bansal G.M. (G.M.) Authorised Representative vs. United India Insurance Co. Ltd., 2015 (1) CPR 273 (NC), Hon'ble National Commission has observed thus :-
// 22 // "11.................. This is settled Law that the report of the surveyor is to be given much more weightage than any other piece of evidence. See the Law laid down in United India Insurance Co. Ltd. & Others Versus Roshan Lal Oil Mills Ltd. & Ors. (2000) 10 Supreme Court Cases 19 & in D.N. Badoni Vs. Oriental Insurance Co. Ltd. I (2012) C.P.J. 272 (NC)".
17. In The Oriental Insurance Co. Ltd., Through its Regional Manager vs. Ishwar Singh, 2015 (1) CPR 157 (NC), Hon'ble National Commission has observed thus :-
"17. Counsel for the petitioner has also drawn our attention to the Apex Court Judgment in the case Sri Venkateswara Syndicate vs. Oriental Insurance Company Ltd., and Another, (2009) 8 Supreme Court Cases 507 wherein the Apex Court has held as under :-
"There is no disputing the fact that the surveyor/surveyors are appointed by the insurance company under the provisions of the Insurance Act and their reports are to be given due importance and one should have sufficient grounds not to agree with the assessment made by them".
18. The O.P. has filed email dated 24.08.2011 sent by Mr. Alok Shankar to Mr. K.K. Panda, which is marked as Annexure OP-9, in which it is mentioned thus :-
"This has reference to above referred claim. As informed earlier also, we would like to put in record once again that on our request samples of the burnt debris were sent to Laboratory at Nagpur by the insured himself and as per the report, there are major variations in all test // 23 // conducted in comparison to original Tendu patta leves. Results of the tests are as under :-
Item description % Content in % Content from % Variation (% the ASH the un-burnt found MORE in collected from tendu patta unburnt tendu the burnt collected from the patta) material at site site Calcium 11.46 42.40 270% Iron 0.72 0.96 33.33% Magnesium 9.04 25.0 177% Sodium 0.57 4.10 619% Pottasium 13.53 18.48 37% If we study the figures in the last column, we find that the quantum of basic components found in ash and the real Tendu leaves varies astronomically. One can understand the variation, if observed in the range of 5-10%, but in no case the variation in the % of basic components of the same material burning could ever be of the order of 33% to 277%. We are of the opinion that there should not be any variations in result of test as Tendu leaves were also collected from the saved stock & as per the insured, only tendu leaves were stored inside the premise before the fire. Our view is further strengthened due to fact that fire had occurred in mysterious condition and it was not established how this fire could originated. "
19. Alok Shankar and Company, Surveyor gave detailed survey report. The complainants have not filed any document to doubt or rebut the report submitted by the Surveyor Alok Shankar and // 24 // Company, therefore, the report of Surveyor, is reliable and acceptable. According to the Surveyor's Report, it has been established that affected items were not tendu leaves, as claimed by the insured and insured has fraudulently made the claim to be benefitted and therefore, has violated condition No.8 of the policy. 20 In M/s. BHS Industries Vs. Export Credit Guarantee Corp. & Anr. (Supra), Hon'ble Supreme Court has observed that "Mere payment of premium alone does not make insurer liable to indemnify loss or fasten liability on it." It has further been observed that "Contact of insurance are contracts of uberrima fides. Every material facts are required to be disclosed."
21. In Bhai Bhagtu Cotton Factory & Another Vs. National Insurance Co. Ltd. & Others (Supra), Hon'ble National Commission has observed that "Serious doubt about claim raised by Insurance Co. - State Commission held that Insurance Company came to a bona fide conclusion that the claim of the Complainant was not tenable and was consequently repudiated. Findings arrived at after elaborate analysis of the material placed on record. Order justified."
22. In Best Food International Vs. National Insurance Co. Ltd. & Anr. (Supra), Hon'ble National Commission has observed that "Complainant supported his claim based on fabricated statements and fraudulent documents, no comes with clean hands. Repudiation of claim justified. No deficiency in service proved.
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23. The O.P. filed copy of Standard Fire and Special Perils Policy along with terms and condition. The Condition No.8 of the terms and conditions of the policy runs thus :-
"If the claim be in any respect fraudulent, or if any false declaration to be made or used in support thereof or if any fraudulent means or devices are used by the insured or any one acting on his behalf to obtain benefit under the policy or if the loss or damage be occasioned by the wilful act, or with the connivance of the insured, all benefits under this policy shall be forfeited."
24. Annexure OP-9 is email dated 24.08.2011 sent by Mr. Alok Shankar to Mr. K.K. Panda, in which it is mentioned that "samples of the burnt debris were sent to Laboratory at Nagpur by the insured himself and as per the report, there are major variations found in all test conducted in comparison to original Tendu patta leaves." Even National Test House (WR), Mumbai, who received sample and analyzed the sample also found that the sample was not upto mark.
25. Surveyor Alok Shankar & Company also mentioned in his Survey Report that the insured had sent the samples of ash collected from affected godown, fresh tendu leaves and fresh rice bran. The report was directly by the Surveyor from the laboratory i.e. Qualichem Laboratories, Nagpur an ISO 9001 : 2008 certified lab and approved by food and drug Administration and Agmark. As per the report, there are variations found in all tests conducted in comparison to original tendu patta leaves. It appears that the sample which was // 26 // sent to the laboratory was not sample of Tendu leaves. The Tendu leaves which was said to be recovered from affected godown is best option to match the chemical composition of the burnt materials and in that results are varying, therefore, the sample of ash collected from the affected godown is not entirely of tendu leaves. The Surveyor gave his finding that it was also not established how the fire was occurred as there was no possibility to originated the fire at its own, the claim reported by the insured is not tenable and therefore, we recommend herewith closing the claim file on a "No Claim Basis."
26. The report of the Surveyor is a reliable document, therefore, the Surveyor's report is genuine and dependable. The Report of the Surveyor should be given due weightage and it cannot be discarded lightly. The complainants have not filed any document and did not give any reason to discard the Surveyor's Report, therefore, the Final Survey Report given by the Surveyor, Alok Shankar and Company, is reliable.
27. Looking to the Spot Survey Report and Final Survey Report, it is established that the claim of the complainants, is not genuine. The complainants are unable to prove that the sample of burnt leaves which were sent for laboratory for test, were tendu leaves, therefore, prima facie it is established that the claim of the complainants is not genuine. Therefore, the complainants are not entitled to get any amount from the O.P. under the insurance policy and the complaint is liable to be dismissed.
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28. Therefore, the complaint filed by the complainants against the O.P. is dismissed. Parties shall bear their own cost.
(Justice R.S. Sharma) (D.K. Poddar) (Narendra Gupta)
President Member Member
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