State Consumer Disputes Redressal Commission
Oriental Insurance Company Limited vs Pawan Kumar & Anr. on 23 May, 2014
H.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
SHIMLA.
First Appeal No: 213/2013
Date of Presentation: 16.08.2013
Date of Decision: 23.05.2014
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Oriental Insurance Company Limited,
Oriental House, Asif Ali Road, New Delhi,
Through its Senior Divisional Manager,
Oriental Insurance Company Limited,
Mythe Estate, Kaithu, Shimla-3, H.P.
.... Appellant
Versus
(1) Pawan Kumar, Son of Sh. Bhader Ram,
Resident of Village Handkali,
Post Office Thauna, Tehsil Sarkaghat,
District Mandi, Himachal Pradesh.
(2) Himachal Gramin Bank, Branch Office Chatter,
Tehsil Sarkaghat, District Mandi, H.P.
... Respondents
.........................................................................................
Coram
Hon'ble Mr. Justice (Retd.) Surjit Singh, President
Hon'ble Mrs. Prem Chauhan, Member
Whether approved for reporting?1 Yes.
For the Appellant: Mr. Jagdish Thakur, Advocate.
For the Respondent No.1: Mr. H.S. Rangra, Advocate.
For the Respondent No.2: Mr. Basant Thakur, Advocate vice
Mr. Ramakant Sharma, Advocate.
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O R D E R:
Justice (Retd.) Surjit Singh, President (Oral) Present appeal, under Section 15 of the Consumer Protection Act, 1986, by Oriental Insurance 1 Whether Reporters of the local papers may be allowed to see the order? Oriental Insurance Company Limited Vs. Pawan Kumar & Anr.
(F.A. No.213/2013).
Company, is directed against the order dated 08.07.2013, of learned District Consumer Disputes Redressal Forum, Mandi, whereby respondent-Pawan Kumar's complaint, under Section 12 of the Consumer Protection Act, 1986, has been allowed and a direction given to the appellant, to pay a sum of `8.00 lacs, on account of insurance money, with interest at the rate of 9% per annum, `5,000/-, on account of damages and `3,000/-, on account of litigation expenses.
2. Respondent-Pawan Kumar set-up a Flour Mill (Atta Chakki) in Village Thauna of Sarkaghat Tehsil of Mandi District, sometime, in the year, 2008. He raised a loan to the tune of `8.00 lacs, from Himachal Gramin Bank, impleaded as respondent No.2, in the present appeal and opposite party No.2, in the original complaint. The Flour Mill, was insured in the sum of `8.00 lacs with the appellant, for the period from 10.01.2009 to 09.01.2010. Insurance cover note, Annexure C-5, covered the following risks:-
(i) Building - `2.50 lacs;
(ii) Machinery, Fittings and furniture - `2.43 lacs; and
(iii) Stock of Wheat - `3.07 lacs.
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Oriental Insurance Company Limited Vs. Pawan Kumar & Anr.
(F.A. No.213/2013).
3. On the night, intervening 3rd & 4th June, 2009, fire broke out in the Mill. According to the respondent-complainant, fire was so devastating that insured building, the machinery and the stock of wheat and wheat flour, were completely destroyed. Intimation of incident was given to the appellant. A Preliminary Surveyor was deputed, who inspected the spot, on 06.06.2009 and submitted a report. A final Surveyor, was also deputed later-on, who submitted report of assessment of loss. However, claim was not settled by the appellant.
4. A complaint, under Section 12 of the Consumer Protection Act, 1986, was filed by the respondent-complainant, which was disposed of by the learned District Forum, vide order dated 20.05.2011, directing the appellant to settle the claim. Respondent-complainant was directed by the same order to furnish the documents, desired by the appellant, within fifteen days, from the date of passing of the order. Thereafter, respondent- complainant supplied the documents, but the claim was repudiated, vide letter dated 15.10.2011, Annexure C-1.
3
Oriental Insurance Company Limited Vs. Pawan Kumar & Anr.
(F.A. No.213/2013).
5. Respondent-complainant felt aggrieved by the repudiation of the claim and filed a fresh complaint, under Section 12 of the Consumer Protection Act, 1986, seeking a direction to the appellant, to pay a sum of `8.00 lacs (equivalent to the entire sum assured), with interest at the rate of 13% per annum, besides seeking damages and litigation expenses.
6. Complaint was contested by the appellant. It was stated that the claim made by the respondent- complainant was bogus and because of this reason it had been repudiated.
7. Learned District Forum, vide impugned order has allowed the complaint and directed the appellant to pay a sum of `8.00 lacs, on account of insurance claim with interest and also to pay compensation and litigation expenses, as aforesaid.
8. We have heard learned counsel for the appellant & respondent No.1, as also the Advocate appearing vice counsel for respondent No.2 and gone through the record.
9. A bare reading of the order of learned District Forum shows that the evidence, adduced by the parties, has not been scrutinized, while working 4 Oriental Insurance Company Limited Vs. Pawan Kumar & Anr.
(F.A. No.213/2013).
out the money, payable on account of insurance claim and order has been passed for payment of the entire sum assured, just with the observation that plea taken by the appellant that the claim is bogus, is contrary to the report of the Preliminary Surveyor, who reported that incident of fire had taken place and the Patwari & Pradhan of the Panchayat gave reports that the loss sustained by the respondent-complainant, was worth more than `10.00 lacs.
10. Fire incident is alleged to have taken place on the night, intervening 3rd & 4th, June, 2009. Prompt intimation was given to the appellant. A Preliminary Surveyor was deputed, who submitted report, Annexure C-34. Undoubtedly, the Preliminary Surveyor did report that incident of fire had taken place, but at the same time it was stated that claim made by the respondent-complainant was over exaggerated, inasmuch as damage to the building was negligible, as only windows fitted with grills but without shutters, had been damaged and as regards machinery only a few items, listed in the report, were damaged. With regard to the furniture also damage was reported to be highly inflated. As regards stock of wheat and wheat flour it was reported that the total 5 Oriental Insurance Company Limited Vs. Pawan Kumar & Anr.
(F.A. No.213/2013).
stocking area being 3.5 meters x 2.5 meters x 1.2 meters, stock worth `2,89,500/-, as shown in the list, supplied by the respondent-complainant, could not have been stacked there.
11. Final Surveyor, who submitted report, Annexure C-35, assessed the loss. He worked out the total loss at `68,000/- and after making a cut of `10,000/-, on account of excess clause, recommended payment of `58,000/-. Preliminary Surveyor as also the Final Surveyor have reported that building consisted of un-plastered brick walls and slab and that the only damage, that was caused, was to the grilled windows. Number of windows, is not indicted, but learned counsel for the respondent-complainant submits that number of windows was two and their size was 5x6 ft. Windows were grilled, but without shutters. The value of two window frames, fitted with grills, cannot be said to be more than `10,000/-, in any case.
12. Respondent-complainant submitted report of an Architect, Annexure C-32, according to which, the building has outlived its age and its reconstruction would require a sum of `8,09,700/-. The building, admittedly was made of un-plastered brick walls with 6 Oriental Insurance Company Limited Vs. Pawan Kumar & Anr.
(F.A. No.213/2013).
slab roof having total area measuring 8.54 x 5.32 Meters or say about 450 Sq. Ft., area approximately. It had un-plastered walls with just two windows and those too without shutters and cemented floor. The total value could not have been more than the sum assured. Therefore, report, Annexure C-32, relied upon by the respondent-complainant, is no indicator for assessing the actual loss, caused to the building. So, we stick to our observation that loss to the building was not worth more than `10,000/-.
13. As regards damage to the machinery, respondent-complainant himself submitted the detail with the claim form, which is available at page-317 of Learned District Forum's record. The detail consists of the following:-
(i) Washing System (ii) Chanana (sieve) 1 No. (iii) Roller Machine 1 No. (iv) Separator 1 No. (v) Stitching Machine 1 No.
14. The amount claimed for the aforesaid items, as per list, at page-317, is `70,000/-. The voucher, against which the machinery was purchased, is Annexure C-29. Now, as per this document, 7 Oriental Insurance Company Limited Vs. Pawan Kumar & Anr.
(F.A. No.213/2013).
Washing Machine was worth `10,000/-, chanana (sieve) cost him `1,500/-, roller machine, including Atta Chakki machine was worth `20,000/-. Cost of separator and stitching machine, is not given separately. According to the respondent-complainant these items were included in miscellaneous tools, total cost of which was `15,000/-. In the absence of detail of price of each item of tools, we assume the cost of separator and stitching machine, forming part of set of tools to be `5,000/-. Thus, according to the respondent-complainant's own showing, per list at page-317, they are entitled to a sum of `36,500/- on account of damage to the machinery.
15. As regards furniture and fixtures, respondent-complainant claimed a sum of `48,000/- and submitted a voucher, Annexure C-30, against which the furniture was purchased. Surveyor reported that on the spot pipes of two burnt chairs were noticed. Other items of furniture, as per Annexure C-30, were table, almirah, counter (full size) and side wall fitting racks. May be that rest of the items were completely gutted in the fire and, therefore, we hold the respondent-complainant entitled to the entire sum 8 Oriental Insurance Company Limited Vs. Pawan Kumar & Anr.
(F.A. No.213/2013).
of `48,000/-, for which the furniture was purchased, against Annexure C-30.
16. As regards the claim for stock of wheat and the products, i.e. wheat flour and wheat bran, (chokkar), respondent-complainant claimed a sum of `3,07,000/-. In the list at page-317, he gave detail of the stock as follows:-
(a) Wheat= 2.5 tonnes worth `30,000/-
(b) Atta:
(i) 10 Kg. bags numbering 420;
(ii) 40 Kg. bags numbering 350; &
(iii) 5 Kg. bags numbering 200;
All valuing of `2,53,500/-.
(c) Chokkar = 50 bags of 20 Kg. each worth
`6,000/-.
17. Respondent-complainant claims that
figures with regard to the stock are corroborated by the statement of stock Annexure C-28, which he submitted to the bank on 30.05.2009. Statement was submitted by the respondent-complainant to the bank, on 30.05.2009, and as per endorsement by the bank, it was verified on the same date. Physical verification on the very day of submission of the report, could not have been possible, particularly 9 Oriental Insurance Company Limited Vs. Pawan Kumar & Anr.
(F.A. No.213/2013).
when the stock is stated to be so huge. It seems that bank officials just verified the figures, representing the money value of the stock vis-a-vis their quantity and against the total value shown as `5,98,211/-, they worked out the figure at `3,07,000/-, as is clear from the endorsement of verification, made by the bank.
18. Stock of wheat, on the date of fire, according to the respondent-complainant's own list, was only to the extent of 25 quintals, or say 2.5 tonnes. Stock of wheat flour, according to the respondent-complainant's aforesaid list, was 195 quintals or say 19.5 tonnes. Appellant has submitted electricity consumption bills, in respect of the electricity meter, installed in the Mill of respondent- Complainant. The same are available at pages-154 to
165. Bills pertain to the period from July, 2008 to June 2009. As per the detail, prepared by an Assistant Engineer of Electricity Board, which is available at Page-151, monthly consumption of electricity at the Mill of the respondent-complainant varied from twenty units to one hundred units per month. Low consumption of electricity falsifies the respondent- complainant's claim that he had such a huge stock of wheat flour. The units of electricity consumed show 10 Oriental Insurance Company Limited Vs. Pawan Kumar & Anr.
(F.A. No.213/2013).
that so much quantity of wheat flour, could not have been produced at the Mill of the respondent- complainant as is claimed by him even during the entire period from July, 2008, to the date of incident of fire. So, claim of the respondent-complainant with regard to loss of wheat flour and chokkar, has to be rejected, in its entirety, especially when Preliminary Surveyor reported that in the space, available for stocking the wheat and wheat flour, such a huge quantity, as claimed by the respondent-complainant, could not have been stocked. Wheat, which was available in the Mill, at the time of fire, was worth `30,000/-, according to the respondent-complainant's own list, available at Page- 317.
19. In view of the above discussion, we hold that the respondent-complainant is entitled to a sum of `10,000/-, on account of damage to the building, a sum of `36,500/-, on account of damage to the machinery, `48,000/-, on account of damage to the furniture and `30,000/-, on account of damage to the wheat stock all aggregating to `1,24,500/-.
20. As a result of the above discussion, appeal is partly allowed and it is ordered that the appellant shall pay to the respondent-complainant, a sum of 11 Oriental Insurance Company Limited Vs. Pawan Kumar & Anr.
(F.A. No.213/2013).
`1,24,500/- only, with interest at the rate of 9% per annum, from the date of filing of the complaint, i.e. 28.11.2012, to the date of payment of the aforesaid amount of money, on account of insurance claim plus compensation and litigation expenses, as awarded by the learned District Forum.
21. A copy of this order be sent to each of the parties, free of cost, as per Rules.
(Justice Surjit Singh) President (Prem Chauhan) Member May 23, 2014.
*dinesh* 12