State Consumer Disputes Redressal Commission
Yash Site Development vs United India Insurance Company Limited on 18 January, 2016
Daily Order FIRST ADDITIONAL BENCH STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB SECTOR 37-A, DAKSHIN MARG, CHANDIGARH. First Appeal No.682 of 2014 Date of Institution: 06.06.2014 Date of Decision: 18.01.2016 Yash Site Development Private Limited Registered Office at 100/60 ft. Road, Guru Teg Bhadur Nagar, Bathinda, through Yash Bosh Mittal duly Authorized Director. ...Appellant/Complainant Versus 1. United India Insurance Company Limited Dhanaula Road, Barnala, through its Branch Manager. 2. V.P Singhal & Company, D-148, Sector 27, Noida, through V.P Singhal. ..Respondents /Opposite Parties First Appeal against order dated 21.04.2014 passed by the District Consumer Disputes Redressal Forum, Barnala Quorum:- Shri J. S. Klar, Presiding Judicial Member.
Shri. H.S. Guram, Member Present:-
For the appellant : Sh.Mukand Gupta, Advocate For the respondent no.1 : Sh.Paul S. Sain and Sh. Parminder Singh, Advocates. For the respondent no.2 : Ex-parte. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . J.S KLAR, PRESIDING JUDICIAL MEMBER :-
The appellant of this appeal (the complainant in the complaint) has directed this appeal against the respondents of this appeal (the opposite parties in the complaint), challenging order dated 21.04.2014 of District Consumer Disputes Redressal Forum Barnala, dismissing the complaint of the complainant. The instant appeal has been preferred against the same by the complainant now appellant.
2. The complainant/company has filed the complaint U/s 12 of The Consumer Protection Act, 1986 (in short, "the Act") against the OPs on the averments that it purchased insurance cover from OP No.1 for their work order-cum-contract allotted by the AIRTEL work OFC Cable at 115 Km from Rewari to Ateli to Bahu for Bharti Airtel Ltd, vide insurance certificate no.200405/44/08/04/40000011 valid from 01.01.2009 to 30.09.2009 by paying a premium a sum of Rs.50,785/- to OP. OP No.1 issued only insurance certificate without issuing complete policy to complainant. The details of the losses pertaining to work of the complainant are as under :-
i) Under Ground OFC Cable Cut of BSNL at 9 KM Near Village Ghari at Mandi Ateli-Kanina and Rewari Narnal Road on 20.01.2009 to the amounting to Rs.1,50,000/- vide demand note no.WP-2140/GMTD/RWR/III/90 dated 11.02.2009.
ii) Under Ground OFC Cable Cut of BSNL at 10 KM Mandi Ateli to Ghari, Mandi Ateli-Kanina and Rewari Narnal Road on 22.01.2009 to the amounting to Rs.1,50,000/- vide demand note no.WP-2140/GMTD/RWR/III/90 dated 11.02.09.
iii) Under Ground Cable Cut of BSNL at Bhojwas-Kanina Area on 28.01.2009 to the amounting to Rs.2,17,500/- vide demand note no.WP-2140/GMTD/RWR/11/89 dated 11.02.09.
iv) Under Ground OFC Cable Cut of BSNL at Danoda Mode on Rewari- Narnol Road in Mandi Ateli-Kanina and Rewari Narnal Road on 2.2.2009 to the amounting to Rs.1,50,000/- vide demand note no.WF-2140/GMTD/RWR/III/90 dated 11.02.09.
v) Under Ground OFC Cable Cut of BSNL at Apna Hotel on Rewari Jhajjar Road Route Rewari Gurawara on25.02.2009 to the amounting to Rs.1,50,000/- vide demand note no.WF-2140/GMTD/RWR/III/93 dated 12.03.09.
vi) Under Ground OFC Cable cut of BSNL at near R.C Green Field School at Rewari Gurawara Road on 2.3.2009 to the amounting to Rs.1,50,000/- vide demand note no.WF-2140/GMTD/RWR/III/93 dated 12.03.09. The BSNL also lodged the police report for cable damage at the time of digging to the BSNL in this area at the time of spreading OFC cable for Bharti Airtel by the complainant/company. Demand notice of BSNL was also lodged with the claims to OPs by the complainant. The damage of BSNL is duly insured under above-said policy and relevant documents submitted to OPs. The surveyor of OP No.2 surveyed the spot on 20.08.2009 and checked the loss after verifying the same. The total loss was of Rs.9,67,500/- vide survey report nos.11/5/89, 11/5/91, 11/5/93, 11/5/90 and 11/5/88 dated 20.05.2011 and reference no.11/04/27 dated 07.04.2011 and admitted that the loss is most reasonable. The surveyor/OP NO.2 recommended all the losses and charged Rs.8,074/- per survey from the complainant and complainant deposited Rs.49,000/- in the Bank account of ICICI Bank at Bathinda of OP No.2. OP No.2 did not pay any heed and issued "No Claim Letter" on 26.03.2012 in an illegal and arbitrary manner. The complainant has, thus, filed complaint against OPs praying insurance claim of Rs.9,67,500/- on account of loss of transformer and Rs.49,000/- as surveyor fee paid to OP No.1 by the complainant along with interest @ 18% p.a and Rs.1lac for mental harassment and Rs.50,000/- as costs or litigation.
3. Upon notice, OP no.1 appeared and filed written reply by raising legal objections that complainant has no cause of action and locus standi to file the complaint and complaint is bad for non-joinder of necessary parties and is not maintainable. The complainant is estopped from filing the complaint by his act and conduct. The complainant is not a 'consumer' of the answering OP, as defined under the Consumer Protection Act. The intricate question of facts and law are involved in the present complaint, which cannot be adjudicated in the summary proceedings by the Consumer Forum, as voluminous evidence and entailing cross-examination would be required. On merits, OP no.1 averred that complainant purchased storage-cum-erection insurance policy for cable laying (030205) on cable laying 115 Km from Rewari to Ateli to Bahu for Bharti Airtl Ltd for the period from 01.01.2009 to 30.09.2009 for site of erection at Shahbad. It was denied that the policy documents with detailed terms was not issued. It was admitted that policy for the period from 01.01.2009 to 30.09.2009 along with terms and conditions of the policy were duly explained to the insured at the time of issuance of the said policy. It was further averred that alleged loss was not intimated to OP within 14 days of its detection, as per terms and conditions of the insurance policy. It was further averred that alleged loss took place on 20.1.2009, but intimation with regard to the same was received by OP on 22.04.2009. It was further submitted that alleged loss took place on 22.1.2009, but intimation with regard to the same was received by the OP on 22.4.2009. It was further submitted that alleged loss took place on 28.01.2009, but intimation with regard to the same was received by the OP on 22.4.2009. It was further submitted that alleged loss took place on 2.2.2009, but intimation with regard to the same was received by the OP on 22.4.2009. It was further submitted that alleged loss took place on 25.2.2009, but intimation with regard to the same was received by the OP on 22.4.2009. It was further submitted that alleged loss took place on 25.2.2009, but intimation with regard to the same was received by the OP on 22.4.2009, as pleaded in the complaint. As per the reports of OP No.2, the authorities of BSNL failed to provide a detailed breakup of the amounts and further failed to provide any evidence along with bills and estimates and name of the repairing agency, which might have carried out the job at Shahab, place of erection, as per insurance policy. OP No.2 mentioned in his report that he wanted to know, as to whether any contract was in force for compensation to BSNL, but the complainant failed to reply to the request made by OP No.2, rather confirmed that BSNL is repairing the alleged OFC cut on their own, as per internal circular being their standard practice. The complainant also failed to provide any receipt of the amount alleged to have been paid by him to BSNL authorities and no chance was ever given to the OP to verify the loss at the site after alleged loss. It was further submitted that survey report submitted by OP No.2 were not complete, the answering OP vide letter no.SLG: 2012:32 dated 17.4.2012 requested OP No.2 to send his report complete in all respects upon which OP No.2 submitted its reply dated 19.05.2012 to answering OP. OP No.1 again vide letter no.SLG:ENG:CL:2012/146 dated 29.05.2012 requested OP No.2 to submit his report as per terms and conditions of the insurance policy and OP No.2 vide its reply dated 12.6.2012 stated that policy did not allow guaranteed compensation in case of pre-payment/promise/admission/offer made by the insured directly. Also policy restricts itself to the limited compensation only. It was further submitted that, as per condition exclusion to Section 1 the answering OP shall not be liable for any loss or damage due to faulty design, defective material or casting, bad workmanship other than faults in erection and the company would also not be liable in any case for any loss, damage or liability of which no notice has been received by the company within 14 days of its detection, as per terms and conditions of the insurance policy. OP No.2 (the surveyor) recommended deduction of amount towards excess clause, as mentioned in the insurance policy as each storage erection claim was subject to an excess of 5% of the claim, subject to a minimum of Rs.20,000/- for storage and erection claims and Rs.80,000/- for testing period claims. It was further submitted by OP No.2 that the claim of the complainant has been settled as 'No Claim', as no notice has been received by OP within 14 days of the detection. OP no.1 prayed for dismissal of the complaint.
4. OP No.2 was set exparte before District Forum, vide order dated 14.10.2013.
5. The complainant tendered in evidence, his affidavit Ex.C-1 along with copies of documents Ex.C-1 to Ex.C-17. As against it; OP NO.2 tendered in evidence affidavit of S.L Gupta Senior Branch Manager United India Insurance Company Branch Barnala Ex.OP-1/10 along with copies of documents Ex.OP-1/1 to Ex.OP-1/9. On conclusion of evidence and arguments, the District Forum Barnala, dismissed the complaint of the complainant by virtue of order of dated 21.04.2014. Dissatisfied with the order of the District Forum Barnala dated 21.04.2014, the complainant now appellant has preferred this appeal against the same.
6. We have heard learned counsel for the parties and have also examined the record of the case as respondent no.2 in this appeal is exparte. There is no dispute about this fact that complainant now appellant is a contractor specialist in telecommunication and it purchased insurance cover from OP for their work order-cum-contract assignment allotted by the AIRTEL work of OFC cable at 115 Km from Rewari to Ateli to Bahu for Bharti Airtel Ltd and complainant paid premium of Rs.50,785/-. The complainant laid OFC Cable and purchased the Storage-cum-Erection Insurance Policy for cable laying in the above mentioned area. The submission of counsel for the complainant is that while laying the OFC Cable, underground cables of BSNL already laid down were allegedly damaged for which the BSNL lodged the police complaint and also lodged the claim with the Bharti Airtel Ltd alleging that due to laying down of OFC Cables from Rewari to Ateli to Bahu Cables of BSNL were got damaged, therefore, BSNL charged Rs.9,67,500/- from Bharti Airtel Ltd and Bharti Airtel Ltd deducted the same amount from the complainant, as penalty without providing the details of loss suffered by them. It was argued by Sh. Mukand Gupta Advocate counsel for the appellant that claim was lodged with the OP and it appointed the surveyor V.P Singhal, who investigated and conducted the spot verification on 20.08.2009. The surveyor prepared the final report on 21.5.2011 for all the six claims separately and complainant paid Rs.49,000/-, as fee of the surveyor. The surveyor recommended the loss of the complainant to the tune of Rs.9,67,500/-. The OP disagreed with report of the surveyor and repudiated the claim of the complainant on 26.03.2012 on the ground that there is delay in intimation and hence complainant is not liable to be reimbursed.
7. We have to examine the evidence on the record to determine the dispute in this case. The District Forum dismissed the complaint of the complainant now appellant on the ground that it is not able to explain the delay in giving notice to OP and it deprived OP of its valuable right to investigate the matter within 14 days from the date of loss as per terms and conditions of the policy. The District Forum also observed that BSNL failed to provide any detailed breakup of the amounts and further failed to provide any evidence along with bills and estimate and even failed to disclose the name of the repairing agency, which was involved by the BSNL to carry out the repairs of its cable line damaged by the complainant.
8. We have to evaluate the evidence on the record led by the parties. Ex.C-1 is affidavit of Yash Bosh Mittal duly authorized Director of Yash Site Development Pvt. Limited in support of the averments of the complainant. Ex.C-2 is resolution authorizing Yash Bosh Mittal to conduct the proceedings of the case on 25.07.2013. Ex.C-3 is the insurance cover of completion of project of cable laying (030205) of 115 Km from Rewari to Ateli to Bahu for Bharti Airtel Ltd. Ex.C-4 is demand note of Rs.4,50,000/-. Ex.C-5 is demand note of Rs.30,0000/-. Ex.C-6 is demand note of Rs.21,7500/-. Ex.C-7 is bill amount by the contractor. Ex.C-8 is police report no.24 dated 2.03.2009. Ex.C-9 is pay in slip. Ex.C-10 is the letter addressed to complainant for sending the claim form duly certified. Ex.C-11 to Ex.C-16 are reports of the Surveyor V.P Singhal & Company. Ex.C-17 is letter addressed to complainant treating the claim as "No Claim". To refute this evidence, the OP relied upon the policy document Ex.OP-1/1. Ex.OP-1/2 is letter addressed by OP to surveyor V.P Singhal & Company. Ex.OP-1/3 is letter addressed to OP by surveyor. Ex.OP-1/4 is letter dated 29.05.2012 addressed to surveyor by the OP. Ex.OP-1/5 is letter dated 12.06.2012 addressed to OP by the surveyor. Ex.OP-1/6 is letter dated 17.09.2012 addressed to V.P Singhal & Company Surveyor by the OP. Ex.OP-1/7 is letter of surveyor addressed to OP. Ex.OP-1/8 is letter of OP addressed to surveyor V.P Singhal & Company. Ex.OP-1/9 is letter addressed to OP by the surveyor. Ex.OP-1/10 is affidavit of S.L Gupta Senior Branch Manager/OP. Ex.OP-1/11 to Ex.OP-1/16 intimation letters dated 22.4.2009 addressed to Branch Manager United India Insurance Co. Ltd/OP by Yash Site Development Pvt. Ltd/complainant company.
9. From evaluation of above-referred evidence on the record and hearing respective submissions of counsel for the parties, our attention has been drawn by the OPs to Clause 5 of the terms and conditions of the insurance policy Ex.OP-1/1 to the effect that company shall not in any case be liable for loss, damage or liability of which no notice has been received by the company within 14 days of its detection. On account of breach of Clause 5 of general conditions of the policy, the claim of the complainant has been rejected. The submission of Sh. Mukand Gupta counsel for appellant is that terms and conditions of the policy were not conveyed to the complainant. The complainant is a company and it is not credible that they were not conveyed the terms and conditions by the OP, as the company takes such policies frequently. We are mainly concerned with this matter, as to whether there is breach of Clause 5 of the general conditions of the policy in this case or not. From perusal of Ex.OP-1/11 to Ex.OP-1/16, we find that the intimation was sent to OP on 22.4.2009 in which demand of Rs.1,50,000/- was raised on account of damage to underground cables. Vide Ex.OP-1/12 notice was issued for damage to underground cables of Rs.1,50,000/- to complainant on 12.03.2009. Similarly, vide Ex.OP-1/13 notice for damage of Rs.2,17,500/- to underground cables to complainant on 11.02.2009. Similarly, vide Ex.OP-1/14 notice for damage of Rs.1,50,000/- to underground cables to complainant on 12.03.2009. Similarly, vide Ex.OP-1/15 and Ex.OP-1/16 complainant company raised the amount of Rs.1,50,000/- for damage to underground cables to complainant on 12.03.2009. We find that the terms and conditions of the insurance policy have to be strictly interpreted by us. We cannot give any relaxation of our own thereto. Consequently, notice was not given to OPs within 14 days, as per condition no.5 of general condition of the insurance policy Ex.OP-1/1.
10. We also agree with the findings of the District Forum that in the complaint nowhere it is described, as to how the loss took place to complainant, while doing cable work in the above mentioned area. The complainant has not supplied the complete facts on this point and rather suppressed them. There is no specifications, as to how incident took place and what specific machinery was used by the complainant and as to whether this damage could have been avoided or not. Even BSNL authority failed to provide any detail of breakup of the amount to the complainant on the record and further failed to provide any evidence along with bills and estimate and failed to disclose the name of the repairing agency, which was involved by the Bharti Airtel to carry it. The submission of Sh. Mukand Gupta , counsel for the complainant now appellant is that the claim cannot be rejected on the mere ground of delayed intimation. In view of the instructions issued by the Insurance Regulatory Development Authority (IRDA) on 20.09.2011. The IRDA advised that all the insurers needs to develop a sound mechanism to handle such claims with utmost care and caution. Rejection of claims on purely technical grounds in a mechanical fashion will result in policyholders losing confidence in the insurance industry, giving rise to excessive litigation.
11. We conclude that report of the surveyor is valuable piece of evidence. The report of surveyor cannot be discarded by the Consumer Forum, unless there is valid ground to do so. We, thus, rely upon the report of the surveyor on the record in this case. Mere delayed intimation would not be sufficient ground to reject the claim as per latest instructions issued by IRDA on 20.09.2011, as reproduced in para no.7 of the grounds of appeal. Genuine claim should not be rejected on the ground of such delays. Consequently, we hold that the complainant now appellant is entitled to insured amount from the OPs, as assessed by the surveyor in the report. OPs are directed to release the amount of insurance to the complainant now appellant on the basis of the loss as assessed by the surveyor and to settle the same in accordance with the report of the surveyor Sh. V.P Singhal & Company. We also further award the amount of Rs.15,000/-, as costs of litigation to complainant, as complainant being a Private Limited Company is not a natural person and there is no question of awarding any compensation for mental harassment on this count to Private Limited Company. The OPs are directed to comply with the above directions within 45 days from the receipt of copy of this order, failing which OPs shall pay interest @ 9% per annum from the date of this order passed by this Commission till its actual payment.
12. As a result of our above discussion, we accept the appeal of the appellant and by setting aside the order of the District Forum Barnala dated 21.04.2014, we hereby accept the complaint of the complainant and direct the OPs to release the amount of insurance to the complainant now appellant on the basis of the loss, as assessed by the surveyor and to settle the same in accordance with the report of the surveyor Sh. V.P Singhal & Company. We also further award the amount of Rs.15,000/- as costs of litigation to complainant within 45 days from receipt of copy of this order, failing which OPs shall pay interest @ 9% per annum from the date of this order passed by this Commission till its actual payment.
13. Arguments in this appeal were heard on 13.01.2016 and the order was reserved. Copies of the order be communicated to the parties as per rules.
14. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(J. S. KLAR) PRESIDING JUDICIAL MEMBER (H.S.GURAM) MEMBER January 18, 2016 (ravi)