State Consumer Disputes Redressal Commission
Balvant Shukla vs The Oriental Insurance Co.Ltd. Through ... on 25 August, 2015
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR (C.G.)
Complaint Case No.CC/14/21
Instituted on : 04.08.2014
Balwant Shukla, Age 59 years,
S/o Late Kashinath Shukla,
R/o : Premnagar, Post - Basantpur,
Tehsil : Wadrafnagar, District Balrampur (C.G.)
Through : General Power of Attorney Holder
Rajesh Kumar Jaiswal, S/o Bhagwan Das Jaiswal,
R/o : Namnakala, Ambikapur,
Tahsil and District Surguja (C.G.) ... Complainant.
Vs.
The Oriental Insurance Company Limited,
Through : Branch Manager,
Branch Office : Ambikapur,
Manendragarh Road, Near Ambedkar Chowk,
Ambikapur, District Surguja (C.G.) ... Opposite Party
PRESENT: -
HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT
HON'BLE MS. HEENA THAKKAR, MEMBER
HON'BLE SHRI D.K. PODDAR, MEMBER
HON'BLE SHRI NARENDRA GUPTA, MEMBER
COUNSEL FOR THE PARTIES:
Shri R.K. Bhawnani, for the complainant.
Shri Shishir Bhandarkar, for O.P.
ORDER
Dated : 25/08/2015 PER :- HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT. The complainant filed this consumer complaint under Section 17 of the Consumer Protection Act, 1986 against the OPs seeking following reliefs :-
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1. To direct the O.P. to pay a sum of Rs.25,00,000/- to the complainant along with interest.
2. To direct the O.P. to pay a sum of Rs.1,00,000/- to the complainant towards compensation for deficiency in service, unfair trade practice and mental agony.
3. To direct the O.P. to pay any other compensation, as this Commission deems fit.
2. Brief facts of the complaint are that : the complainant is doing business of sale - purchase of tendu leaves for earning livelihood of himself and his family by self employment. The complainant purchased tendu leaves from the Forest Department, which was kept in the godown of Smt. Aju Jaiswal, which is situated at Prem Nagar. The complainant gave a proposal to the O.P. (Insurance Company) to insure the said tendu leaves and thereafter the O.P. Insurance Company conducted physical verification and issued Standard Fire & Special Perils insurance policy No.191400/11/2015/19 dated 21.04.2014 for total value Rs.64,58,000/- of the tendu leaves for which premium of Rs.8,617/- was received by the O.P. (Insurance Company). In the month of April, 2014 the leaves of the godown was being removed, then the complainant came to know that some tendu leaves were deteriorated and the complainant examined the tendu leaves of the // 3 // entire godown then he came to know that the tendu leaves valuing Rs.25,00,000/- become deteriorated regarding which the complainant gave intimation to the O.P. on 30.04.2014. The O.P. demanded documents relating to insurance and compensation, which were provided by the complainant to the O.P. The O.P. appointed Surveyor and the leaves were examined and physical verification was also done through Surveyor. Whatever information and documents the Surveyor sought, the same was provided to the Surveyor. The O.P. was not making payment of the claim amount, then the complainant sent written letter to the O.P. on 30.04.2014 and requested to make payment of the claim amount. The O.P. vide letter dated 06.06.2014 informed the complainant regarding repudiation of his claim in which reasons for repudiation of the claim, have been mentioned :-
1. Damage of stock of bidi leaves did not occur due to any insured peril.
2. Deterioration of insured stock is outside the scope of the insurance policy.
The O.P. has received premium for insurance of the tendu leaves, but the O.P. deliberately repudiated the claim of the complainant, whereas as per the terms and conditions of the insurance policy, the complainant is entitled to get sum of Rs.25,00,000/-. The O.P. committed deficiency in service by repudiating the claim of the complainant on unjustified // 4 // grounds. The complainant had submitted all relevant documents regarding his claim before the O.P. and the complainant has proved that he suffered loss and he is entitled to get compensation from the O.P., but O.P. did not pay the claim amount to the complainant and thus the O.P. committed unfair trade practice. Due to repudiation of claim of the complainant by the O.P. on unjustified grounds, the complainant is not earning his livelihood properly and he suffered mental agony and financial loss. The complainant is entitled to get compensation to the tune of Rs.1,00,000/- for mental agony. The O.P. repudiated the claim of the complainant on unjustified grounds, therefore, the complainant was required to file the present complaint seeking reliefs as mentioned in the relief clause of the complaint.
3. The O.P. filed written statement and denied the allegations made by the complainant in the complaint against the O.P. The O.P. averred that the complainant did not give General Power of Attorney to Shri Rajesh Kumar Jaiswal for filing the complaint. The complainant is not doing business of sale and purchase of the tendu leaves for earning his livelihood by self employment. The complainant does not come within the definition of the "consumer" as defined in the Consumer Protection Act, 1986. The complainant is obtaining contracts from the Forest Department at a large scale for tendu leaves for commercial purpose. The complaint is not maintainable before this Commission and Shri Balwant Shuka, has not legally authorized Shri Rajesh Kumar Jaiswal // 5 // as Power of Attorney Holder to file the present complaint, therefore, the complaint has not been filed by a competent and authorized person, hence the same is not maintainable, therefore, the complaint is liable to be dismissed at preliminary stage. The complainant did not purchase the tendu leaves from the Forest Department, which were kept in the godown of Smt. Anju Jaiswal, situated at Premnagar The O.P. did not conduct physical verification of the tendu leaves and insure the tendu leaves for Rs.64,58,000/- and did not issue insurance policy No.191400/11/2015/19 dated 22.04.2014 in the name of the complainant. The tendu leaves were kept in the godown prior to more than two years, which were purchased on "as is where is basis" from the Forest Department under agreement dated 28.03.2014, which was insured under Utmost Good Faith without conducting physical inspection / verification. For insurance of the said goods, the M.D. C.G. State M.F.P. (T & D) Co-Op. Federation Limited executed a contract with the O.P. under which the O.P. issued Standard Fire & Special Perils Policy No.191400/11/2015/19 for the period from 21.04.2014 to 31.07.2014 in favour of M.D. C.G. State M.F.P. (T &D) Co- Op. Fed. Ltd. From the above, it is clear that the complainant is not "consumer" of the O.P, and he is also not entitled for getting any compensation regarding the loss suffered to the tendu leaves. In the month of April, 2014, the tendu leaves were not removing from the godown and the complainant did not come to know regarding // 6 // deterioration of some of the tendu leaves. The complainant did not inspect the entire tendu leaves, which were kept in the godown and he did not receive information regarding deterioration of the tendu leaves to the tune of Rs.25,00,000/-. The complainant himself mentioned in his letter dated 30.04.2014 that the bidi leaves, were stored in the godown since last two years, which were insured on 22.04.2014. The complainant did not mention in the said letter that the bidi leaves which were stored in the godown since last two years were received by him in the current year and at the time of removal of the tendu leaves, it was found that the stored tendu leaves, were damaged. The bidi leaves were kept in the godown prior to two years from the coverage of the bidi leaves, which were purchased on "as is where is basis" for commercial purpose without conducting physical verification and the bidi leaves were deteriorated prior to insurance coverage. The above fact is confirmed by the preliminary survey conducted by Shri Arunendra Pratap Singh, Surveyor, who was appointed by the O.P. , who found in his preliminary survey that the godown in question was of one Smt. Anju Jaiswal. On investigation the roof of the godown, wall and doors were found in good condition. The Surveyor during investigation found that no storm/ tempest or rain reported in the area from inception of the policy under consideration and on the date of loss. No inundation in the area from inception of the policy under consideration and on the date of loss. Therefore, the Surveyor // 7 // mentioned in his Preliminary Survey Report that the bidi leaves were in the godown from 2012. When insured started to remove the stock for trading from 22.04.2014 onwards noticed the bottom stacks of bidi leave damaged and claim for the loss which has occurred prior to inception of the policy which was not covered under the Standard Fire & Special Perils Policy No.191400/11/2015/19. The Power of Attorney Holder of the complainant, is husband of the owner of the godown. The O.P. repudiated the claim of the complainant vide letter dated 06.06.2014 and did not commit any deficiency in service or unfair trade practice.
4. On the basis of averments of both the parties, the points for determination are :-
1. Whether Shri Rajesh Kumar Jaiswal, is competent and authorized to file complaint on behalf of Balwant Shukla ?
2. Whether the complainant is consumer of the O.P. ?
3. Whether the complainant is entitled to get compensation from the O.P., if yes then to what extent ?
5. The complainant has filed documents. A-1 is copy of insurance policy dated 22.04.2014 issued by the O.P., A-2 is letter dated 12.02.2014 written by the Conservator of Forest, Ambikapur in respect of contract for the year 2012, A-3 is Agreement dated 10.02.2014 executed between the complainant and the Conservator of Forest, A-4 is letter dated 30.04.2014 written by the complainant to the O.P., A-5 is // 8 // letter dated 06.06.2014 written by the O.P. to the complainant, A-6 is copy of power of attorney, A-7 is letter dated 245.01.2014 written by the Forest Department to the complainant.
6. The O.P. has also filed document. Document Ex. OP-1 is Standard Fire & Special Perils Endorsement Schedule, Ex. OP-2 is Agreement executed between executed between Conservator of Forest / Officiating General Manager, C.G. State M.F.P. (T & D) Co. Opp. Fed. Ltd. and Balwant Shukla, Ex. OP-3 is letter dated 30.04.2014 sent by Balwant Shukla, to the Divisional Manager, The Oriental Insurance Company Limited, Divisional Office, Ambikapur, Ex. OP-4 is Preliminary Survey Report dated 10.05.2014 of Shri Arunendra Pratap Singh, Surveyor & Loss Assessor, Ex. OP-5 is letter dated 06.06.2014 sent by the Divisional Manager, Divisional Office, Ambikapur (C.G.) to MD. CG. State MFP (T & D) Co. Opp. Fed. Ltd.
Discussions and its conclusion:
Question No.1. Whether Shri Rajesh Kumar Jaiswal, is competent and authorized to file complaint on behalf of Balwant Shukla ?
7. Firstly we shall consider whether Shri Rajesh Kumar Jaiswal, is competent and authorized to file complaint on behalf of Balwant Shukla?
8. Shri Shishir Bhandarkar, learned counsel appearing for the O.P. has argued that in the instant case, Standard Fire & Special Perils Policy // 9 // No.191400/11/2015/19 was issued for the period from 21.04.2014 to 31.07.2014 in favour of M.D. C.G. State M.F.P. (T &D) Co-Op. Fed. Ltd. and it appears that the said insurance policy has not been issued in favour of Balwant Shukla, the complainant. The complaint has been filed by Shri Rajesh Kumar Jaiswal, who is not duly authorized by the competent person, therefore, the complaint is not maintainable.
9. On the contrary, Shri R.K. Bhawnani, learned counsel appearing for the complainant has argued that Balwant Shukla, purchased the tendu leaves from the Forest Department and an agreement was executed between Conservator of Forest / Officiating General Manager, C.G. State M.F.P. (T & D) Co. Opp. Fed. Ltd. and Shri Balwant Shukla. Shri Rajesh Kumar Jaiswal, filed a copy of power of attorney and according to para 4 of the the power of attorney, it is crystal clear that Rajesh Kumar Jaiswal, has been duly authorized by Shri Balwant Shukla, for filing the instant complaint.
10. Shri Rajesh Kumar Jaiswal, has filed his affidavit in which he specifically pleaded that he is General Power of Attorney Holder of Shri Balwant Shukla and he is authorized by Balwant Shukla. Shri Balwant Shukla, also filed his affidavit in which he stated that he has authorized Shri Rajesh Kumar Jaiswal for filing the complaint on his behalf.
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11. From bare perusal of Power of Attorney and affidavit of Shri Balwant Shukla, it appears that Shri Rajesh Kumar Jaiswal, is duly authorized by Shri Balwant Shukla, who is competent person, therefore, Shri Rajesh Kumar Jaiswal, is competent to file the complaint on behalf of Shri Balwant Shukla.
Question No.2. Whether the complainant is consumer of the O.P. ?
12. Now, we shall consider whether the complainant is consumer of the O.P. ?
13. Shri Shishir Bhandarkar, learned counsel appearing for the O.P. has argued that the complainant purchased the tundu leaves for commercial purpose and the insurance policy has been obtained for commercial purpose, therefore, the complainant is not "consumer", and the dispute between the parties is not a "consumer dispute", therefore, the complaint is not maintainable and is liable to be dismissed.
14. Shri R.K. Bhawnani, learned counsel for the complainant has opposed the above contention of the learned counsel for the O.P. and submitted that on the basis of order of Hon'ble National Commission in M/s. Harsolia Motors vs. M/s. National Insurance Co. Ltd. & Ors. 2005 (1) CPR 1 (NC), the complainant is a "consumer" and the O.P. is "service provider".
15. Section 2(1)(d) of the Consumer Protection Act, 1986 runs thus :-
// 11 // "(d) "consumer" means any person who,-
(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment, when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or
(ii) [hires or avails of] any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who [hires or avails of] the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person [but does not include a person who avails of such services for any commercial purpose];"
Explanation:- For the purposes of this clause, "commercial purpose" does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self- employment;"
16. Section 2(1)(o) of the Consumer Protection Act, 1986 runs thus :-
"(o) " "service" means service of any description which is made available to potential [users and includes, but not limited to the, provision of] facilities in connection with banking, financing insurance, transport, processing, supply of electrical or other energy, board or lodging or both, [housing construction,] entertainment, amusement or the purveying of news or other information, but does not include the // 12 // rendering of any service free of charge or under a contract of personal service;"
17. In the instant case, both the parties have filed copy of the insurance policy. In the insurance policy the name and address of the insured is mentioned MD, CG. State MFP (T & D) Co. - Opp. Fed. Ltd. East Surguja Divi. A/c Balwant Shukla, At Prem Nagar, P.O. Basantpur, District Balrampur (C.G.). The location of the risk is mentioned Smt. Anju Jaiswal Godown Premnagar, P.O. Basantpur, District Balrampur (C.G.).
18. From bare perusal of the agreement executed between Conservator of Forest / Officiating General Manager, C.G. State M.F.P. (T & D) Co. Opp. Fed. Ltd. and Balwant Shukla and the insurance policy, it appears that the Standard Fire & Special Perils Policy No.191400/11/2015/19 has been obtained by the MD CG State MFP (T & D) Co.-Opp. Fed. Ltd. for Balwant Shukla. It appears that Balwant Shukla is duly insured with the O.P. The contract of insurance is contract of indemnity and therefore, obtaining insurance policy is not covered within purview of commercial transaction and insurance policy is for indemnifying the loss and insured who takes insurance policy cannot carry on any commercial activity with regard to the insurance policy taken by him.
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19. In The Divisional Manager, L.I.C. vs. Shri Bhavanam Srinivas Reddy, 1991 (2) CPR 144 (NC), Hon'ble National Commission, observed thus :-
"3. The first point of objection raised by the Insurance Company before the State Commission and reiterated before us namely is that no dispute arising out of a contract of insurance can be made subject matter of adjudication under the Consumer Protection Act. This contention cannot be sustained in view of decision of this Commission dated July 28, 1989 in Shri Umedilal Aggarwal v. United India Assurance Company Ltd., F.A. Nos.3 and 4 of 1989 (Reported in I (1991) CPJ-3, 1991 (1) CPR 217 (NC), wherein we have held as follows :-
"We find no merit in the contention put forward by the insurance company that a complaint relating to the failure on the part of the insurer to settle the claim of the insured within a reasonable time and the prayer for the grant of compensation in respect of such delay will not fall within the jurisdiction of the Redressal Forums constituted under the Consumer Protection Act. The provision of facilities in connection with insurance has been specifically included within the scope of the express 'service' by the definition of the said word contained in Section 2(i)(o) of the Act. Our attention was invited by Mr. Malhotra, learned counsel for the Insurance Company to the decision of the Queen's Bench in National Transit Insurance Company Ltd. vs. Customs and Central Excise Commissioner, (1975) (1) all England Reports Page 303) The observations contained in the said judgment relating to the scope of the expression 'insurance' occurring the schedule of the enactment referred to therein are of no assistance at all to us in this case because the context in which the expression is used in the English // 14 // enactment considered in the case is entirely different. Having regard to the philosophy of the Consumer Protection Act and its avowed object of providing cheap and speedy redressal to consumers affected by the failure on the part of persons providing "service" for a consideration, we do not find it possible to hold that the settlement of insurance claims will not be covered by the expression "insurance" occurring in Section 2(1)(d). Whenever there is a default or negligence in regard to such settlement of an insurance claim that will constitute a 'deficiency' in the service on the part of the Insurance company and it will be perfectly open to the concerned aggrieved consumer to approach the Redressal Forums under the Act seeking appropriate relief. We, accordingly over the objection raised by the Insurance Company regarding the jurisdiction of the State Commission to adjudicate upon the complaint.
20. In The Divisional Manager, L.I.C. vs. Uma Devi, 1991 (1) CPR 662 (NC), Hon'ble National Commission, observed thus :-
"8. The very fact that the Insurance Act provides for a machinery for remedy for grievances arising out of repudiation of a claim under section 45 leads to show that the Corporation has to satisfy a Court that the repudiation was justified. Accordingly, it is for the consumer to choose a forum convenient to him to seek remedy for the loss suffered because of deficiency in service. As the provisions of this Act are in addition to and not in derogation of any other law for the time being in force, the State Commission has the jurisdiction to entertain the complaint and to investigate whether the repudiation was justified or not and to grant such relief as deems fit if it is satisfied that there was deficiency in service. We therefore, cannot uphold this contention in view of the decision of this Commission in Revision Petition No.12 of 1990 (New India Assurance Co. Ltd. v. Vipro Electronics Pvt. Ltd., // 15 // 1991 (1) C.P.R. (NC) 531, where the identical point has been elaborately discussed".
21. In The New India Assurance Co. Ltd. vs. M/s Vipro Electronics Pvt. Ltd., 1991 (1) C.P.R. (N.C.) 531, the Hon'ble National Commission, observed thus :
"We are not impressed with the contention raised by Shri S.K. Paul, learned counsel appearing on behalf of the Petitioner that merely because of Insurer had totally repudiated his liability in respect of the claim, no proceedings could be validly initiated under the Consumer Protection Act by the insurer. This contention squarely falls within the ruling given by this Commission in Ummedilal Agrawal v. United India Assurance Co. Ltd. (O.P.No.3 & 4 of 1989, decided on 28.7.1989". In that decision this Commission has observed that it is not possible to hold that settlement of a disputed insurance claim will not be covered by the expression "service" occurring in Section 2(d) of the Act. It was laid down that whenever there is default or negligence in regard to service that will constitute "deficiency in service" on the part of the insurer and it is perfectly open to the aggrieved party for seeking appropriate relief under the Act.
In the result, the Revision Petition has no merits and it is accordingly dismissed".
22. In M/s. Harsolia Motors vs. M/s. National Insurance Co. Ltd. & Ors., (Supra), Hon'ble National Commission, has observed thus :-
"13. In Halabury's Laws of England Vol. 25, 4th Edition, the origin and common principles of insurance is discussed and in paragraph 3 it has been discussed and in paragraph 3 it has been mentioned that it is based on principle of indemnity. Thereafter, relevant discussion is to the effect that most of contract of insurance belong to general category // 16 // of contracts of indemnity. In the sense that insurers' liability is limited to the actual loss which is , in fact, proved. The contract is one of indemnity and, therefore, insured can recover the actual amount of loss and no more.
14. In this view of the matter, taking of the insurance policy is for protection of the interest of the assured in the articles or goods and not for making any profit or trading for carrying on commercial purpose.
16. We would refer to few relevant judgments :
In Regional Provident Fund Commissioner vs. Shiv Kumar Joshi, (2000) 1 SCC 98, the Court elaborately considered the provisions of Sections 2(1)(d) and 2(1)(o) as well as earlier decisions and held that :-
"The combined reading of the definitions of 'consumer' and 'service' under the Act and looking at the aims and object for which the Act was enacted, it is imperative that the words "consumer" and "service" as defined under the Act should be construed to comprehend consumer and services of commercial and trade-oriented nature only. Thus any person who is found to have hired services for consideration shall 'be deemed to be a consumer notwithstanding that the services were in connection with any goods or their user. Such services may be for any connected commercial activity and may also relate to the services as indicated in Section 2(1)(o) of the Act."
The aforesaid ratio makes it abundantly clear that the services may be for any connected commercial activity, yet it would be within the purview of the Act."
23. The Standard Fire & Special Perils Policy No.191400/11/2015/19 was purchased by the insured for protection of the interest of his // 17 // property, therefore, the complainant is a "consumer" and dispute between the parties comes within purview of "consumer dispute". Question No.3. Whether the complainant is entitled to get compensation from the O.P., if yes then to what extent ?
24. Now, we shall whether the complainant is entitled to get compensation from the O.P., if yes then to what extent ?
25. Shri R.K. Bhawnani, learned counsel appearing for the complainant has argued that the complainant has obtained Standard Fire & Special Perils Policy No.191400/11/2015/19 from the O.P., which was effective for the period from 21.04.2014 to 31.07.2014. The complainant has deposited a sum of Rs.8,617/- with the O.P. towards premium. The sum insured of the insured property was Rs.64,58,000/-. When the complainant was removing the tendu leaves in the month of April, 2014 in the godown, then he found that that some tendu leaves were deteriorated and then he inspected all tendu leaves and found that the tendu leaves valuing Rs.25,00,000/- were deteriorated and the same were not usable. The complainant intimated the O.P. regarding deterioration / damages to the tendu leaves. The O.P. appointed Preliminary Surveyor, but the Preliminary Surveyor did not conduct survey properly . The Preliminary Survey Report of Shri Arunendra Pratap Singh, Surveyor & Loss Assessor, is not reliable and // 18 // he is not competent person to conduct preliminary survey. Shri Arunendra Pratap Singh, is not competent to decide whether the subject matter comes within purview of the insurance policy. In the instant case the Preliminary Surveyor has wrongly observed that the incident occurred prior to the inception of the policy. Therefore, the Preliminary Survey Report of Shri Arunendra Pratap Singh, is not reliable and is not acceptable. Shri R.K. Bhawnani, further argued that the complainant cross examined Shri Arunendra Pratap Singh, Surveyor and Shri P.C. Kuldeep, Divisional Manager, The Oriental Insurance Company Limited, by delivering questionnaires to them. The answers given by both of them to the questions asked, were not satisfactory and on the basis of the affidavits and agreement executed between Conservator of Forest / Officiating General Manager, C.G. State M.F.P. (T & D) Co. Opp. Fed. Ltd. and Balwant Shukla, it is established that the complainant purchased tendu leaves from the Forest Department and before issuing insurance policy in favour of the insured, the O.P. verified the stock of the complainant and after their satisfaction issued the insurance policy in favour of the complainant / insured, therefore, the finding recorded by the Preliminary Surveyor, is erroneous. The complainant proved his case. On the basis of the affidavits of Shri Balwant Shukla, the complainant and Shri Rajesh Kumar Jaiswal, it is established that the tendu leaves valuing Rs.25,00,000/- were deteriorated. Shri R.K. Bhawnani, further argued // 19 // that according to the agreement executed between Conservator of Forest / Officiating General Manager, C.G. State M.F.P. (T & D) Co. Opp. Fed. Ltd. and Shri Balwant Shukla. As per clause 16 (I) & (II) of the said agreement, if the purchaser wishes then he/she for the loss occurred due to other natural or invisible calamities e.g. rain, storm, flood disease, earthquake or any other reason he got insured on his own expenses and the Union shall not be responsible for the loss occurred due to above reasons The purchaser he got insured in his own expenses for the amount which is higher than the insurance done by the Union. It appears that the complainant obtained Standard Fire & Special Perils Policy for coverage of the tendu leaves from the natural or invisible calamities e.g. rain, storm, flood disease, earthquake or any other reason and the Preliminary Surveyor did not consider the above facts and he did not obtain any whether report from Meteorological Department. The O.P. illegally repudiated the claim of the complainant, therefore, on the basis of the facts of the case and evidence adduced by the complainant, the complainant is entitled to get compensation from the O.P., as mentioned in the relief clause of the complaint.
26. Shri Shishir Bhandarkar, learned counsel appearing for the O.P. has argued that the tendu leaves were already kept in the godown prior to issuance of the insurance policy in favour of the complainant and under utmost good faith the insurance policy was issued in favour of // 20 // the complainant. The complainant has not been able to prove that loss to stock of tendu leaves was covered under Standard Fire & Special Perils Policy and the causes of deterioration of tendu leaves are outside the scope of the insurance policy. Shri Arunendra Pratap Singh, Preliminary Surveyor is a competent person and he specifically mentioned in his reply given in respect of the questionnaire delivered to him that he obtained documents from the complainant and he visited the spot and after inspection, and holding discussions with the complainant he gave his Preliminary Survey Report. The Surveyor is an independent person and licence was given to him under provisions of The Insurance Surveyors and Loss Assessors (Licensing, Professional Requirements and Code of Conduct) Regulations, 2000. Merely for the reason that Shri Arunendra Pratap Singh, did not file his licence, it can not be said that he is not competent person to conduct preliminary survey. The complainant has not been able to prove that Shri Arunendra Pratap Singh is prejudiced to the complainant and except affidavit of Shri Rajesh Kumar Jaiswal and Shri Balwant Shukla, no other evidence has been produced by the complainant which indicates that the complainant suffered loss.
27. Shri Shishir Bhandarkar, further argued that from the bare perusal of the agreement executed between Conservator of Forest / Officiating General Manager, C.G. State M.F.P. (T & D) Co. Opp. Fed. Ltd. and Balwant Shukla, prima facie, it appears that the tendu leaves // 21 // were stored in the godown much prior to issuance of the insurance policy, therefore, the O.P. has rightly repudiated the claim of the complainant.
28. We have heard learned counsel for both the parties and have perused the documents filed by them in the complaint case.
29. Both the parties have filed copy of the insurance policy. In the insurance policy the name and address of the insured is mentioned MD, CG. State MFP (T & D) Co. - Opp. Fed. Ltd. East Surguja Divi. A/c Balwant Shukla, At Prem nagar, P.O. Basantpur, District Balrampur (C.G.). The location of the risk is mentioned Smt. Anju Jaiswal Godown Premnagar, P.O. Basantpur, District Balrampur (C.G.).
30. Shri Arunendra Pratap Singh, Preliminary Surveyor had gone to the godown where the tendu leaves were kept and he inspected the godown and gave his report i.e. Annexure O.P.4. Shri Arunendra Pratap Singh has been cross examined by the complainant through delivery of questionnaire. In reply of the question no.1, Shri Arunendra Pratap Singh stated that it is not necessary. In reply of question no.2 Shri Arunendra Pratap Singh stated that the Survey Report has been prepared after complete inspection. In reply to question no.20 he stated that the alleged loss relates to inception of the insurance policy and the same was not covered under Standard Fire and Peril Policy, therefore, it was not necessary to assess the loss.
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31. Shri P.C Kuldeep, Divisional Manager, The Oriental Insurance Company Limited, has been cross examined by the complainant through delivery of the questionnaire. In reply to question no.2 Shri P.C. Kuldeep, stated that proposal form is taken which is filled up and given by the insured. In reply to question No.3, Shri P.C. Kuldeep, stated that physical verification was not done. This fact is mentioned in the written statement also. In reply to question No.7, Shri P.C. Kuldeep, stated that before issuing new insurance policy, proposal form is taken. In reply to question No.15 Shri P.C. Kuldeep, stated that as per Ex. OP-3 it was so informed, but in the survey it was found false.
32. In Chapter IV Duties and Responsibilities of a Surveyor and Loss Assessor of The Insurance Surveyors and Loss Assessors (Licensing, Professional Requirements and Code of Conduct) Regulations, 2000 the duties and responsibilities of a Surveyor and Loss Assessor read thus :-
"(1) A surveyor and loss assessor shall, for a major part of the working time, investigate, manage, quantify, validate and deal with losses (whether insured or not) arising from any contingency, and report thereon, and carry out the work with competence, objectivity and professional integrity, by strictly adhering to the code of conduct expected of such surveyor and loss assessor.
(2) The following, shall inter alia, be the duties and responsibilities of a surveyor and loss assessor :-
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(i) declaring whether he has any interest in the subject-matter in question or whether it pertains to any of his relatives, business partners or through material shareholding.
Explanation - For the purpose of this clause 'relatives' shall mean any of the relatives as mentioned in Schedule 1A to the Companies Act, 1956;
(ii) maintaining confidentiality and neutrality without jeopardising the liability of the insurer and claim of the insured;
(iii) conducting inspection and re-inspection of the property in question suffering a loss;
(iv) examining, inquiring, investigating, verifying and checking upon the causes and the circumstances of the loss in question including extent of loss, nature of ownership and insurable interest;
(v) conducting spot and final surveys, as and when necessary and comment upon franchise, excess / under insurance and any other related matter;
(vi) estimating, measuring and determining the quantum and description of the subject under loss;
(vii) advising the insurer and the insured about loss minimization, loss control, security and safety measures, wherever appropriate, to avoid further losses;
(viii) commenting on the admissibility of the loss as also observance of warranty conditions under the policy contract;
(ix) surveying and assessing the loss on behalf of insurer or insured;
(x) assessing liability under the contract of insurance;
(xi) pointing out discrepancy, if any, in the policy wordings;
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(xii) satisfying queries of the insured / insurer and of persons connected thereto in respect of the claim/loss;
(xiii) recommending applicability of depreciation and the percentage and quantum of depreciation;
(xiv) giving reasons for repudiation of claim, in case the claim is not covered by policy terms and conditions;
(xv) taking expert opinion, wherever required; (xvi) commenting on salvage and its disposal wherever necessary; (3) A surveyor or loss assessor shall submit his report to the insurer as expeditiously as possible, but not later than 30 days of his appointment.
Provided that in exceptional cases, the afore-mentioned period can be extended with the consent of the insurer and the insurer."
33. From the bare perusal of above duties and responsibilities, it is established that the Surveyor is competent to decide whether the articles come within the purview of the insurance policy or not and he is also competent to give opinion regarding liability under the contract of the insurance and he has also right to give reasons for repudiation of the claim of the insured in case the claim is not covered by policy terms and conditions.
34. Shri Arunendra Pratap Singh, has been appointed as Preliminary Surveyor by the O.P. He submitted his Preliminary Survey Report dated 10.05.2014 Ex. OP-4, in which it is mentioned thus :-
// 25 // "Sub : Preliminary Survey Report in respect of reported damages to the stock of Bidi Leaves (Tendu Leaves) kept and stored in Godown of Smt. Anju Jaiswal at Village Premnagar, tehsil - Wadrafnagar, Dist.- Balrampur (C.G.) of the insured pertaining to lot Numbered. 875B - Vijaynagar of East Surguja Forest Division due to water on 28th day in the month of April, 2014 A/c. Shri Balwant Shukla Ambikapur (C.G.) Covered under Standard Fire & Special Perils Policy No.191400/11/2015/19 operative from 22.04.2014 to 31.07.2014. Claim No.-
Ref : Advice from Divisional Office, The Oriental Insurance Co. Ltd.
Ambikapur on 30.04.2014.
In pursuance to above instructions, the undersigned visited the godown at Premnagar tehsil -Wadrafnagar Dist.- Balrampur to inspect the affected tendu patta; Bidi leaves kept / stored in one of the godowns belonging to Smt. Anju Jaiswal of Ambikapur.
On reaching there met Sri Rajesh Kumar Jaiswal the representative of insured & the husband of owner of the godown. Inspected the godown & took details and enclosed photographs of the godown as well as reported damaged bidi leaves. Though the Bidi leaves found damaged but Observations : 1. No damages were seen in the godown; roof, walls & doors found intact.
2. No storm/tempest or rain reported in the area from inception of the policy under Consideration & on the date of loss.
3. No inundation in the area from inception of the policy under consideration & on the date of loss.
Hence the loss does not come under purview of the insurance policy condition. On discussions with him it was revealed that stock of bidi leaves damaged was collected in the year 2012 & the contractor was M/S Chetan Raj Jaiswal. But // 26 // since the stock of bidi leaves was not claimed by the contractor in stipulated time rather did not pay the cost of bidi leaves to forest department, it was seized by the MD CG State MFP (T & D) Co.-Op. Fed. Ltd. Forest Department called for tender to repurchase the seized bidi leaves in the Oct. 2013 & insured being the highest bidder was allotted the tender on 24.01.2014. Total 3255.400 std bags @ Rs.1539.00 amounting to Rs.5010060.00. Copy of tender document attached. Hence the Bidi leaves were in the godown from 2012. When insured started to remove the stock for trading from 22.04.14 onwards he noticed the bottom stacks of Bidi leaves damaged and claimed for the loss which has occurred prior to inception of the policy."
35. Shri Arunendra Pratap Singh, the Surveyor mentioned in his Preliminary Survey Report that no damages were seen in the godown; roof, walls & doors found intact. No storm/tempest or rain reported in the area from inception of the policy under consideration and on the date of loss. In rebuttal of Preliminary Survey Report of Shri Arunendra Pratap Singh, the complainant could not file any document / whether report which indicate that the rain water entered in the godown and due to rain water tendu leaves were damaged.
36. Shri Arunendra Pratap Singh, Preliminary Surveyor mentioned in his Preliminary Survey Report that the damage of stock of bidi leaves did not occur due to any insured peril and the deterioration of the insured stock is outside the scope of the insurance policy, therefore, it is not essential for the O.P. to appoint any Final Surveyor for assessment of the loss.
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37. The complainant has not been able to prove that the stock of the tendu leaves, which was damaged comes within purview of the insurance policy condition or covered under the insurance policy. The complainant has also not been able to prove that the damaged tendu leaves was insured with the O.P.
38. On the basis of Preliminary Survey Report of Shri Arunendra Pratap Singh, Surveyor & Loss Assessor, it appears that the damage of stock of bidi leaves did not occur due to any insured peril and the deterioration of insured stock is outside the scope of the insurance policy. The O.P. has rightly repudiated the claim of the complainant and the complainant is not entitled to get any compensation from the O.P.
39. Therefore, the complaint of the complainant is liable to be and is hereby dismissed. No order as to the cost of this complaint. (Justice R.S. Sharma) (Ms. Heena Thakkar) (D.K. Poddar) (NarendraGupta) President Member Member Member /08/2015 /08/2015 /08/2015 /08/2015