State Consumer Disputes Redressal Commission
M/S Kapil Timber. vs Oriental Insurance Co. Ltd. on 27 March, 2018
H. P. STATE CONSUMER DISPUTES REDRESSAL
COMMISSION SHIMLA
First Appeal No. : 151/2017
Date of Presentation: 12.04.2017
Order Reserved on : 13.03.2018
Date of Order : 27.03.2018
......
M/s. Kapil Timber through its Prop. Shri Kapil Dev son of late
Shri Bala Ram resident of village Jhiri P.O. Nagwain Sub Tehsil
Aut District Mandi H.P.
...... Appellant/Complainant
Versus
The Oriental Insurance Company Ltd. Office at Palace Colony
Mandi Town District Mandi H.P through its Divisional
Manager.
......Respondent /Opposite party
Coram
Hon'ble Justice P.S. Rana (R) President
Hon'ble Mr. Vijay Pal Khachi Member
Whether approved for reporting?1 Yes.
For Appellant : Mr. Sunny Rawat vice Mr. Sumeet Raj
Sharma Advocate.
For Respondent : Mr. Bunesh Pal Advocate.
JUSTICE P.S. RANA (R) PRESIDENT:
O R D E R :-
1. Present appeal is filed under section 15 of Consumer Protection Act 1986 against order dated 27.02.2017 passed by Learned District Forum in consumer complaint No.394/2014 title M/s. Kapil Timber Traders Versus The Oriental Insurance Company Ltd. 1 Whether reporters of the local papers may be allowed to see the order? Yes. M/s. Kapil Timber Traders Versus The Oriental Insurance Company Ltd.
(F.A. No.151/2017) Brief facts of consumer complaint:
2. M/s. Kapil Timber filed consumer complaint under section 12 of Consumer Protection Act 1986 pleaded therein that complainant deals in sale of Timber. It is pleaded that complainant is a firm constituted in order to earn livelihood by way of self employment. It is pleaded that the firm was under hypothecation of Himachal Gramin Bank branch Nagwain District Mandi H.P. It is further pleaded that hypothecated bank insured the timber merchants premises every year. It is further pleaded that bank insured the business premises of complainant for standard fire and special perils policy in consideration amount of Rs.850000/-
(Eight lac fifty thousand) operative w.e.f. 25.09.2011 to 24.09.2012. It is pleaded that premium to the tune of Rs.9737/-(Nine thousand seven hundred thirty seven) was also paid. It is pleaded that on the intervening night of 22.06.2012 and 23.06.2012 fire took place in business premises of complainant at about 12.00 A.M and stock of sleepers reduced into ashes. It is further pleaded that matter was also reported to police agency. It is pleaded that complainant suffered loss to the tune of Rs.278605/-(Two lac seventy eight thousand six hundred five) and opposite party repudiated the claim on 18.03.2013 on the ground that risk was covered relating to stock kept in Saw Mill only whereas loss occurred to complainant qua wood sleepers kept in open 2 M/s. Kapil Timber Traders Versus The Oriental Insurance Company Ltd.
(F.A. No.151/2017) space which did not cover in the insurance policy. It is pleaded that opposite party committed deficiency in service. Complainant sought relief for payment of Rs.278605/-(Two lac seventy eight thousand six hundred five) with interest @ 12% per annum from the date of incident till realization. In addition complainant also sought relief of payment of Rs.100000/- (One lac) as compensation for mental tension. In addition complainant also sought additional relief of payment of Rs.10000/-(Ten thousand) as litigation costs. Prayer for acceptance of consumer complaint sought.
3. Per contra version filed on behalf of opposite party pleaded therein that opposite party did not commit any deficiency in service. It is pleaded that opposite party is not under legal obligation to indemnify the loss sustained by insured qua wood sleepers stock which was kept in open space outside the timber premises. It is further pleaded that Himachal Gramin Bank Nagwain is necessary party. It is pleaded that complex question of facts are involved in the present consumer complaint and same could not be disposed of in summary manner. It is pleaded that opposite party hired service of Shri Yog Raj Surveyor cum loss assessor to conduct preliminary inquiry. It is further pleaded that opposite party also hired service of Shri Surinder Soni surveyor cum loss assessor. It is pleaded that surveyor cum loss assessor has assessed the loss to the tune of 3 M/s. Kapil Timber Traders Versus The Oriental Insurance Company Ltd.
(F.A. No.151/2017) Rs.190306/-(One lac ninety thousand three hundred six). It is further pleaded that if loss was sustained by the complainant qua material kept in the premises then loss comes to the tune of Rs.39479/-(Thirty nine thousand four hundred seventy nine). It is pleaded that opposite party did not commit any deficiency in service. Prayer for dismissal of consumer complaint sought.
4. Complainant filed rejoinder and reasserted the allegations mentioned in the complaint. Learned District Forum dismissed complaint filed by complainant. Feeling aggrieved against order passed by Learned District Forum complainant filed present appeal before State Commission.
5. We have heard learned advocates appearing on behalf of parties and we have also perused entire record carefully.
6. Following points arise for determination in present appeal.
1. Whether appeal filed by appellant is liable to be accepted as mentioned in memorandum of grounds of appeal?
2. Final order.
Findings upon point No.1 with reasons:
7. Complainant filed affidavit in evidence. There is recital in affidavit that deponent is proprietor of firm M/s.
Kapil Timber Traders. There is recital in affidavit that firm was under hypothecation of Himachal Gramin Bank branch 4 M/s. Kapil Timber Traders Versus The Oriental Insurance Company Ltd.
(F.A. No.151/2017) Nagwain District Mandi H.P. There is further recital in affidavit that complainant is running firm in order to earn his livelihood by means of self employment. There is recital in affidavit that opposite party issued standard fire and special peril insurance policy in favour of complainant in consideration amount of Rs.850000/-(Eight lac fifty thousand) which was operative w.e.f. 25.09.2011 to 24.09.2012. There is further recital in affidavit that deponent has paid premium to the tune of Rs.9737/-(Nine thousand seven hundred thirty seven) to the opposite party. There is recital in affidavit that on the intervening night of 22.06.2012 and 23.06.2012 fire took place in the business premises of complainant during midnight and stock of wood sleepers were reduced into ashes. There is further recital in affidavit that opposite party also deputed surveyor cum loss assessor. There is recital in affidavit that deponent suffered loss to the tune of Rs.278605/-(Two lac seventy eight thousand six hundred five) in massive fire. There is recital in affidavit that opposite party did not settle the claim and committed deficiency in service.
8. Complainant also filed affidavit of Chander Prakash in evidence. There is recital in affidavit that on the intervening night of 22.06.2012 & 23.06.2012 at about 12.30 A.M to 01.00 A.M major fire took place in the business 5 M/s. Kapil Timber Traders Versus The Oriental Insurance Company Ltd.
(F.A. No.151/2017) premises of complainant. There is further recital in affidavit that complainant sustained loss to the tune of Rs.4.00 lac. There is recital in affidavit that wood sleepers kept in the premises were burnt.
9. Complainant also filed affidavit of Moti Ram in evidence. There is recital in affidavit that in the intervening night of 22.06.2012 and 23.06.2012 at about 12.30 A.M to 1.00 A.M complainant suffered loss to the tune of Rs.4.00 lac due to massive fire incident. There is further recital in affidavit that complainant sustained loss of Rs.4.00 lac on account of burnt of wood sleepers kept in the premises.
10. Opposite party filed affidavit of Ashok Sharma Branch Manager. There is recital in affidavit that deponent is Branch Manager. There is recital in affidavit that complainant has sustained loss qua wood sleeper stock kept in the open space area. There is further recital in affidavit that stock was not kept in the premises of the insured. There is further recital in affidavit that opposite party is not liable to indemnify complainant qua stock of wood sleepers kept on open space nearby N.H-21.
11. Opposite party also filed affidavit of Yog Raj surveyor cum loss assessor. There is recital in affidavit that services of deponent were hired by opposite party to conduct 6 M/s. Kapil Timber Traders Versus The Oriental Insurance Company Ltd.
(F.A. No.151/2017) the survey of loss sustained by complainant due to fire which took place in the intervening night of 22.06.2012 and 23.06.2012. There is further recital in affidavit that wooden logs/sleepers kept on the open area of NH-21 were damaged due to fire.
12. Opposite party also filed affidavit of Surinder Kumar surveyor cum loss assessor. There is recital in affidavit that complainant has sustained loss qua wooden sleepers stock kept on the open space i.e. Nearby National Highway. There is further recital in affidavit that deponent has assessed the loss to the tune of Rs.190306/-(One lac ninety thousand three hundred six) on account of fire incident. There is recital in affidavit that after applying average clause and excess clause liability of insurance company would come to Rs.39479/-(Thirty nine thousand four hundred seventy nine). State Commission has perused all the annexures placed on record on behalf of the parties carefully.
13. Submission of learned Advocate appearing on behalf of complainant that learned District Forum did not properly appreciate evidence adduced by way of affidavits and annexures and on this ground appeal be allowed is decided accordingly. It is proved on record that standard fire and special perils policy was issued through Himachal Gramin 7 M/s. Kapil Timber Traders Versus The Oriental Insurance Company Ltd.
(F.A. No.151/2017) Bank Nagwain in favour of complainant M/s. Kapil Timber Traders w.e.f. 25.09.2011 to 24.09.2012 vide annexure-C1 placed on record. Saw Mills and stock un scanled timber log of different spieces finished & unfinished goods such as furniture steel, planner, welding set & drilling machine were insured in consideration amount of Rs.850000/-(Eight lac fifty thousand). It is proved on record that insurance company appointed Yog Raj surveyor cum loss assessor who submitted his report annexure-R2. Shri Yog Raj has specifically mentioned in the report that insured claimed loss of stock of wooden logs/sleepers of different species to the tune of Rs.278605/-(Two lac seventy eight thousand six hundred five) due to fire. Yog Raj surveyor cum loss assessor has specifically mentioned in his report that Kapil Dev son of Sh. Bala Ram is sole proprietor of M/s. Kapil Timber Traders for the last 15 years and H.P Forest issued registration certificate to M/s. Kapil Timber Traders vide letter No.82/03-04 dated 27.06.2003 for sale/purchase of Timber which was renewed upto 31.12.2012. Yog Raj surveyor cum loss assessor has specifically mentioned in his report that during midnight of 22.06.2012 fire took place in M/s. Kapil Timber Traders and stock of wooden logs/sleepers lying in open area of NH-21 extensively damage due to fire. Surveyor cum loss assessor also prepared inventory list.
8
M/s. Kapil Timber Traders Versus The Oriental Insurance Company Ltd.
(F.A. No.151/2017)
14. Thereafter insurance company appointed another surveyor cum loss assessor namely Surinder Kumar Soni who has assessed loss to the tune of Rs.190306/-(One lac ninety thousand three hundred six) but limited liability of Insurance Company to the extent of Rs.39479/- after deducting amount of average clause and excess clause. No reason assigned by the insurance company as to why insurance company appointed another subsequent surveyor when insurance company already appointed surveyor namely Yog Raj. Appointment of subsequent surveyor is deprecated by Hon'ble Apex Court of India in ruling reported in 2008(8) SCC 507 titled Sri Venkaeswara Syndicate Versus Oriental Insurance Company Ltd. It was held by Apex Court that appointing Surveyor one after another so as to get a tailor made report to the satisfaction of insurer is impermissible. It was held that Insurer cannot appoint second surveyor as a matter of course. It was held that Insurer must specify cogent and satisfactory reasons for not accepting report of first surveyor and need to appoint second surveyor. In the present matter also insurer did not mention any reason for appointment of second surveyor cum loss assessor. It is well settled law that loss assessment report submitted by first surveyor cum loss assessor is substantial piece of evidence and same should be relied upon for assessment of damage. See 2012(4) CPJ 103 NC National Insurance Company Ltd. Versus Jyothi Tobacco 9 M/s. Kapil Timber Traders Versus The Oriental Insurance Company Ltd.
(F.A. No.151/2017) Traders. State Commission did not reply upon the report of subsequent surveyor because insurance company has appointed subsequent surveyor without plausible reason.
15. Submission of learned Advocate appearing on behalf of insurance company that Himachal Gramin Bank Nagwain is the necessary party is decided accordingly. In the insurance policy annexure-R1 placed on record name of M/s. Kapil Timber Traders has been mentioned as beneficiary of insurance policy. As per section 2(d)(ii) of Consumer Protection Act 1986 beneficiary is included in the definition of consumer. Hence it is held that complainant fall within the definition of consumer as defined under section 2(d) of Consumer Protection Act 1986. Complainant did not seek any relief against Himachal Gramin Bank Nagwain. State Commission is of the opinion that Himachal Gramin Bank Nagwain has separate cause of action against the complainant if any for the recovery of loan amount. State Commission is of the opinion that it is not expedient in the ends of justice and on the principles of natural justice to club both different cause of action in the present consumer complaint.
16. Submission of learned Advocate appearing on behalf of insurance company that complicated facts are involved in present consumer complaint and complainant be 10 M/s. Kapil Timber Traders Versus The Oriental Insurance Company Ltd.
(F.A. No.151/2017) relegated to civil court is decided accordingly. State Commission is of the opinion that service has been defined under section 2(1)(o) of Consumer Protection Act 1986 and service means service of any description rendered by insurance company. State Commission is of the opinion that present complaint could be disposed of in summary manner and it is held that no complicated facts are involved in the present consumer complaint.
17. Submission of learned Advocate appearing on behalf of insurance company that stock of sleepers was not kept at Saw Mill i.e. In the premises where sawing was done but was kept in open space by the side of N.H and on this ground appeal be dismissed is decided accordingly. We have carefully perused General Exclusion Clause mentioned in Standard Fire & Special Perils Policy placed on record which cover act of god in exclusion clause.
18. State Commission is of the opinion that present case did not fall within the definition of Act of God peril because as per surveyor appointed by opposite party the fire took place due to short circuit. State Commission is of the opinion that short circuit does not fall within the definition of Act of God as mentioned in insurance policy.
19. There is no recital in insurance policy that stock of sleepers in open space would not be included in insurance 11 M/s. Kapil Timber Traders Versus The Oriental Insurance Company Ltd.
(F.A. No.151/2017) policy. It is well settled law that insurance company could not add any unilateral condition in the insurance policy detrimental to insured. See 2017(1) CPR 315 NC M/s. Krishna Kunj Versus Rabindra Nath Baba and other. State Commission is of the opinion that learned District Forum has not properly appreciate the evidence adduced by parties and did not properly appreciate terms and conditions mentioned in the insurance policy. State Commission is of the opinion that order of learned District Forum warrants inference by State Commission in the ends of justice and on the principle of natural justice. In view of above stated facts point No.1 is decided accordingly.
Point No.2: Final Order
20. In view of findings upon point No.1 above appeal is allowed and order of learned District Forum is set aside. It is ordered that opposite party would pay an amount of Rs.278605/-(Two lac seventy eight thousand six hundred five) to complainant alongwith interest @ 9% per annum from the date of complaint till realization. Loss cum assessment report submitted by Shri Yog Raj annexure-R2 will form part and parcel of order. It is further ordered that in addition opposite party would also pay compensation to complainant to the tune of Rs.10000/-(Ten thousand) for mental agony within one month from the date of receipt of order. It is further 12 M/s. Kapil Timber Traders Versus The Oriental Insurance Company Ltd.
(F.A. No.151/2017) ordered that in addition opposite party would pay litigation costs to complainant to the tune of Rs.5000/-(Five thousand) within one month from the date of receipt of order. File of learned District Forum alongwith certified copy of order be sent back forthwith and file of State Commission be consigned to record room after due completion forthwith. Certified copy of order be transmitted to parties forthwith free of costs strictly as per rules. Appeal is disposed of. Pending application(s) if any also disposed of.
Justice P.S. Rana (R) President Vijay Pal Khachi Member 27.03.2018 KD* 13