National Consumer Disputes Redressal
United India Insurance Co. Ltd. vs Raman Chandrakant Govitrikar & 2 Ors. on 27 August, 2020
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 3409 OF 2013 (Against the Order dated 30/04/2013 in Appeal No. 177/2012 of the State Commission Maharashtra) 1. UNITED INDIA INSURANCE CO. LTD. R/14 NEAR BUS STAND, ALIBAUG, RAIGAD,
THROUGH ITS DY. MANAGER, RAIGAD MAHARASTRA 2. UNITED INDIA ASSURENCE CO LTD., REGIONAL OFFICE NO-I., 8TH FLOOR, KANCHAN JUNGA, BUILDING, 18, BARAKHAMBA ROAD, NEW DELHI ...........Petitioner(s) Versus 1. RAMAN CHANDRAKANT GOVITRIKAR & 2 ORS. FLAT NO. 412, AKASHDEEP APARTMENTS, GANESH NAGAR, DHAYARI SINHGAD ROAD, OPP. MUKTAI MANGAL KARYALAY, PUNE-411041 MAHARASTRA 2. SMT. RITUJA RAMAN GOVITRIKAR, 30A, SHENDURMALAI WAKI BUDUDUK TAL MAHAD, RAIGAD MAHARASTRA 3. BANK OF MAHARASTRA, BIRAW BRANCH AT POST BIRAWADI MAHAD, RAIGAD MAHARASTRA ...........Respondent(s) REVISION PETITION NO. 3410 OF 2013 (Against the Order dated 30/04/2013 in Appeal No. 178/2012 of the State Commission Maharashtra) 1. UNITED INDIA INSURANCE CO. LTD. R/14 NEAR BUS STAND,ALIBAUG RAIGAD,
RAIGAD MAHARASTRA 2. UNITED INDIA INSURENCE CO LTD., THROUGH ITS DY.MANAGER,, REGIONAL OFFICE-I, 8TH FLOOR, KANCHAN JUNGA BUILDING,, 18 BARAKHAMBA ROAD, NEW DELHI ...........Petitioner(s) Versus 1. RAMAN CHANDRAKANT GOVITRIKAR & 2 ORS. FLAT NO. 412, AKASHDEEP APARTMENTS, GANESH NAGAR, DHAYARI SINHGAD ROAD, OPP. MUKTAI MANGAL KARYALAY, PUNE-411041 MAHARASTRA 2. SMT. RITUJA RAMAN GOVITRIKAR, 30A SHENDURMALAI WAKI BUDUDUK TAL MAHAD, RAIGAD RAIGAD MAHARASTRA 3. BANK OF MAHARASTRA, BIRAW BRANCH OF POST BIRAWADI MAHAD, RAIGAD MAHARASTRA ...........Respondent(s)
BEFORE: HON'BLE MR. PREM NARAIN,PRESIDING MEMBER
For the Petitioner : Mr. A.K.De , Advocate
Ms. Ananya De, Advocate For the Respondent : For the Respondents Nos.1& 2 : Ms. Rutuja Govitrikar, R-2 in person
For the Respondent No.3 : Nemo
Dated : 27 Aug 2020 ORDER
1. The brief facts of the cases are that complainant/ respondent nos.1 and 2 had an agricultural business of growing carnation flowers for which they had erected a greenhouse under loan of Rs.41,15,000/- from OP no.2/ respondent no.3 - Bank of Maharashtra, Raigad at village - Shendurmalai, Waki Budruk, Taluka Mahad, District Raigad. The complainants also got insured the green house with the opponent/ petitioner - insurance Company for Rs.41,15,000/- and the policy was operative from 20.07.2007 till 19.07.2008. On 07.12.2007, because of rain and storm there was a damage to the greenhouse which resulted in destroying of flowers seedlings and other articles of the greenhouse which the complainants reported to the Insurance Company as well to local Revenue Officer and to the Bank and raised a claim of Rs.7,34,654/- for reimbursement with the insurance company. The insurance company appointed a surveyor and based on the survey report tried to settle the claim at Rs.21,725/- vide their letter dated 15.05.2008 which the complainants refused to accept and after due notice filed a complaint before the District Forum, Raigad, bearing no. 115/2009 agitating for appropriate settling of their claim. Meanwhile, the surveyor revised its assessment of loss from Rs.21,725/- to Rs.97,701/- and this amount was again offered by the Insurance Company vide their letter dated 13.06.2008 but it was also not accepted. When the above complaint was being processed, there was a second storm with heavy rains on 21st and 22nd March 2008 which destroyed all greenhouse, UV films and about 50000 carnation flowers seedlings. The complainants promptly informed everyone including the opponent Insurance Company. Again the opponent Insurance Company appointed a surveyor to survey and assess the loss. The complainant filed claim of Rs.18,01,401/- with the opponent insurance company. In the second case, the surveyor assessed the loss to the tune of Rs.1,28,870/- and the Insurance Company offered this amount to the complainants but the same was also refused and filed an independent complaint no.114/2009 before the District Consumer Disputes Redressal Forum, Raigad. OP no.1 resisted both the complaints and submitted that after reassessment of loss, amount was offered to the complainant which was not accepted by the complainant. It was further submitted that greenhouse of complainant was for commercial purposes; so, dispute was not covered under the Consumer Protection Act. It was further submitted that insurance coverage did not cover the flowers, seedlings and the plants and rightly offered amount of compensation. Denying any deficiency on their part, prayed for dismissal of the complaints. OP no. 2 was proceeded ex parte. District Forum after hearing both the parties, allowed complaints and directed OP to pay Rs.5,00,000/- in first complaint and Rs.15,00,000/- in second complaint along with compensation of Rs.50,000/- and cost of Rs.10,000/- in each complaint. OP no.1 filed appeals before the State Commission and the State Commission vide order dated 19.04.2010 allowed appeals partly and remanded the matter back to District Forum to give opportunity to the parties to lead evidence pertaining to quantum of compensation and decide compensation afresh. District Forum again allowed complaints and awarded same compensation, but deleted compensation of Rs.50,000/- for mental torture and reduced cost to Rs.5,000/- in both the complaints and dismissed complaints against OP No.2. Appeals filed by OP no.1 were dismissed by State Commission vide impugned order dated 30.04.2013. These revision petitions have been filed against the order of the State Commission.
2. These two revision petitions were decided by this Commission vide order dated 2nd February 2017 whereby the matter was remanded to the State Commission treating the State Commission's order as a non-speaking order. The respondent complainant approached the Hon'ble Supreme Court in Special Leave Petition (Civil Diary No.(s) 33307/20017, Raman Chandrakant Govitrikar & anr. Vs. United India Insurance Co. Ltd. & ors. and the Hon'ble Supreme Court vide order dated 24.11.2017 set aside the order of this Commission and ordered that the matter be decided on merits by this Commission. The order of the Hon'ble Supreme Court reads as under:-
"Upon hearing the counsel the Court made the following
O R D E R
Heard.
Delay condoned.
We find that the State Commission has passed a speaking order which is clear from para 14 onwards in the order. In these circumstances, the observations by the National Commission, in the impugned order, that the order of the State Commission was not speaking order and was required to be set aside on that ground are uncalled for.
Accordingly, we set aside the impugned order and remand the matter to the National Commission for fresh decision on merits in accordance with law.
The petitioners are directed to appear before the National Commission for further proceedings on 19th January, 2018. They will serve a copy of this order on the respondents.
Since this order is being passed ex-parte, the respondents will be at liberty to move this Court, if aggrieved.
The special leave petitions are, accordingly, disposed of.
Pending application (s) if any, shall also stand disposed of."
3. Accordingly, both the parties were heard on merits. The learned counsel for the petitioner argued that the State Commission has dismissed the appeals filed by the petitioner herein without even looking at the justification for the award of compensation by the District Forum. The District Forum has awarded compensation of Rs.5 lakhs for the incident of 7th December 2007 and Rs.15 lakhs for the incident of 21st/22nd March 2008. The District Forum has not given any reasoning for awarding the compensation in these two cases. The District forum has also not given any reasoning for rejecting the report of the surveyor in both the cases. Actually both the surveyors have not assessed the loss to the carnation plants and carnation flowers as they are not covered under the policy. Even if the surveyors had considered carnation plants and carnation flowers as covered under the policy, then also, the compensation cannot reach up to this level, if one considers the surveyor reports for other items. The survey reports are the basic document on which the insurance claims are supposed to be settled unless there are cogent reasons for not accepting the same. The District Forum has not considered the various items for allowing the total insurance claim under these two complaints. In these cases, very specific claims have been made by the complainant on specific items and lump-sum settlement of insurance claim cannot be ordered. The District Forum should have given clear calculation for awarding Rs.5 lakhs in the first case and Rs.15 lakhs in the second case.
4. The main emphasis of the complainant has been that the carnation plants and carnation flowers are covered under the insurance under the item of greenhouse. The fact is that greenhouse is only a building or a structure which is used for growing plants under regulated conditions like temperature and humidity etc. A greenhouse can be used for growing any kind of plants and therefore in the insurance of greenhouse, no plants can be covered. From the policy also, it is clear that the greenhouse has been insured as a building and therefore, there is no question of carnation plants or carnation flowers having been covered under the insurance of greenhouse.
5. All other items of insurance mentioned in the list of property insured are specific items and loss of carnation plants or carnation flowers cannot be considered against them.
6. The learned counsel for the petitioner also argued that the District Forum as well as the State Commission have relied on the report of the revenue machinery the Tahsildar for the loss suffered by the complainant whereas the rule is that the Forum and the State Commission should have relied on the reports of the surveyors as they are appointed under the provisions of Insurance Act 1938 and their report forms the basis for deciding the insurance claim. The reports of the surveyor cannot be brushed aside without any cogent reasons. It was also stated by the learned counsel that the word 'plant' used under the phrase 'plant and machinery' cannot be interpreted as sapling, rather, it only means combination of machinery as plant and machinery is a normal phrase used for insuring the industrial and commercial units. It was further stated that the word 'greenhouse' is not defined in the policy, however, it's natural meaning is very clear that it is only a building or a structure and this Commission in its previous judgment dated 2nd February, 2017 in this very case RP 3409 of 2013 & RP 3410 of 2013, United India Insurance Co. Ltd. Vs. Raman Chandrakant Govitrikar which has now been set aside by the Hon'ble Supreme Court, has discussed the dictionary meaning of the word greenhouse which also reveals that a greenhouse is only a structure.
7. On the other hand, the learned counsel for the respondent complainant stated that the State Commission in its first order dated 19.4.2010 has clearly observed that the carnation flowers and carnation plants are very well covered under the policy. The District Forum has also vide their order dated 28.12.2011 found that the word plant in the list of items insured covers carnation plants and flowers. Thus, both the fora below have given concurrent findings on this aspect that carnation plants and flowers are covered under the policy.
8. In the second order of the State Commission dated 30.4.2013, the State Commission has observed that the State Commission has already taken a view in its earlier order regarding the coverage of different items under the insurance policy and the matter was only remanded to the District Forum for considering the amount of compensation in the light of evidence to be filed by both the parties before the District Forum. In fact, the State Commission has observed the following in its order dated 30.4.2013 and the Hon'ble Supreme Court has also referred to this para in their order 24.11.2017:-
"14. In the present case, the State Commission while passing order dated 19th April, 2010 has already discussed all the issues at length and came to the conclusion that there is deficiency in service on the part of the Appellant/original Opponent in repudiating the claim of the Complainant and that they are bound to compensate loss caused by the incidence of storm and rain dated 07.12.2007 and on 21/22 March, 2008 under the Standard Fire and Special Perils Policy which was operative on the date of incidence issued by the appellant/Opponent Insurance Company. The only issue that was to be considered in its direction of remand, by the District Forum was the amount of compensation to be awarded to the present Respondent/original complainant."
9. The learned counsel for the respondent further stated that this was a high-tech agriculture project on which huge loan was taken from the bank and therefore, it was necessary to insure each and every item under the policy. Clearly carnation plants and carnation flowers are part of the greenhouse and therefore they are covered under the heading 'greenhouse' of the policy.
10. It was further stated by the learned counsel for the respondent that the policy document is not an independent document and it has to be read along with the project report which was submitted to the bank for loan. Under the project, the greenhouse has been constructed for raising carnation plants and flowers and therefore they are covered under the policy. Even the cover note of the policy says that plant beds are covered.
11. The learned counsel for the respondent also stated that the insurance company did not file the surveyor's report before the District Forum even though the State Commission in its remand order had given opportunity to do so. In the absence of surveyors' reports both the fora below relied upon the report of the revenue agency.
12. I have carefully considered the arguments advanced by both the parties and have examined the record. First of all, it is seen that there is a delay of 59 days in filing of the present revision petitions. The learned counsel for the petitioner has stated that the delay has happened in obtaining higher orders after inter departmental consultation which mainly included taking legal advice and then obtaining orders from the head office of the company. It has been stated that the petitioner has a strong case on merit and therefore it has been requested to condone the delay. On the other hand the learned counsel for the complainant opposed the condonation of delay in filing the present revision petitions. It was stated that no details along with dates are given in the application for condonation of delay and only general things have been mentioned. The petitioner being a Government of India company has to take a decision keeping in view public money involved in the matter. Hence, the process of examination becomes more thorough and the same may take more time. The Hon'ble Supreme Court in Manoharan Vs. Sivarajan & Ors, Civil Appeal No.10581 of 2013, decided on 25.11.2013 (SC) observed the following:-
"9. In the case of State of Bihar & Ors. v. Kameshwar Prasad Singh & Anr., it was held that power to condone the delay in approaching the Court has been conferred upon the Courts to enable them to do substantial justice to parties by disposing the cases on merit. The relevant paragraphs of the case read as under:
"11. Power to condone the delay in approaching the Court has been conferred upon the Courts to enable them to do substantial justice to parties by disposing of matters on merits. This Court in Collector, Land Acquisition, Anantnag v. Mst. Katiji (1987)ILLJ 500 SC held that the expression 'sufficient cause' employed by the legislature in the Limitation Act is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice-that being the life purpose for the existence of the institution of Courts. It was further observed that a liberal approach is adopted on principle as it is realised that:
1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.
2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.
3. 'Every day's delay must be explained' does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational common sense pragmatic manner.
4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.
5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.
6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so."
13. In The Municipal Corporation of.. Vs. Manish Enterprises Ltd., AIR 1993, Guj, 145 the Hon'ble High Court of Gujarat have observed the following:-
"7. In my opinion, the Court has to bear in mind the principle of 'substantial justice' and if the expression 'sufficient cause' has to receive liberal construction, in the facts and circumstances of the case, sufficient cause can be said to have been made out by the applicant. For that purpose, in my opinion, it is altogether immaterial whether the advocate could have telephoned the officer concerned; whether the said officer could have immediately rushed to the advocate in the High Court; or whether the appeal could have been filed little earlier. The question is whether there is inaction, negligence or want of bona fides as observed by the Supreme Court. According to me, it cannot be said that any of the above elements is present in the instant case. 'Sufficient Cause' has been made out by the applicant Corporation in approaching this Court in filing the appeal and accordingly delay is required to be condoned.
8. In my judgment, the legal position cannot be disputed that the provisions of the law of limitation must be applied to all persons equally and uniformly. Government departments and local authorities cannot claim any privilege in that regard and they must be treated on par with private individuals. However, as observed by the Supreme Court, the realities of life also cannot altogether be ignored. Whereas a private individual takes a decision one way or the other almost instantaneously, a democratic government or a bureaucratic department hesitates and halts, discusses and debates, considers and consults, peeps through papers and files, speaks through notes and drafts, moves horizontally and vertically till at last it gravitates towards a conclusion, unmindful and oblivious of urgency and emergency.
9. Looking to the principles laid down by the Hon'ble Supreme Court arid applying them to the case on hand keeping in mind, the hard realities, I have no hesitation in holding that there is no inaction, want of bona fides or negligence on the part of the applicant Corporation in approaching this Court and delay of 38 days should be condoned in the larger interest of justice."
14. The Hon'ble Supreme Court in another case N. Balakrishnan Vs. M.Krishnamurthy, (1998) Supp. 1 SCR 403, has laid down the following:-
"11. Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life-span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim Interest reipublicae up sit finis Mum (it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time.
12. A court knows that refusal to condone delay would result in foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the court is always deliberate. This Court has held that the words "sufficient cause" Under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice vide Shakuntala Devi Jain V. KuntalKumari, MANU/SC/0335/1968: [AIR 1969 SCR1006 and State of West Bengal Vs. The Administrator, Howrah Municipality, MANU/SC/0534/1971: [1972]2SCR874a.
13. It must be remembered that in every case of delay there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put forth as part of a dilatory strategy the court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time then the court should lean against acceptance of the explanation. While condoning delay the Court should not forget the opposite party altogether. It must be borne in mind that he is a looser and he too would have incurred quiet a large litigation expenses. It would be a salutary guideline that when courts condone the delay due to laches on the part of the applicant the court shall compensate the opposite party for his loss."
15. On the basis of the above authorities, I deem it appropriate to condone the delay of 59 days in filing the revision petitions at a cost of Rs.35,000/- in each case.
16. The insurance company had appointed surveyors in both the cases and the surveyors have submitted their reports. For the first incident that happened on 7th December 2007, the surveyor had earlier assessed net loss to be Rs.21,725/- however, the same was reviewed and the surveyor submitted addendum to his earlier report enhancing the net loss to be Rs. 97,701/-. In the second incident, the surveyor has assessed the net loss of Rs.1,28,870/-. Surveyors are appointed under the provisions of the Insurance Act 1938 and their report forms the basis of settlement of the insurance claim. In both these cases, the surveyors have not assessed the loss of carnation plants and carnation flowers treating them as not covered. In fact, the District Forum has recorded the following observations in its judgment dated 28th December 2011 as follows:-
"14. When we read the letter dated 15.05.2008 of opposite party and revised estimated letter dated 03.05.2008 of Shri Sule in together, it seems that Shri. Sule has not considered the loss of flowers plants as it was not covered within insurance contract and same difference was also seen in the opposite party letter dated 16.5.2008. In respect of this, the complainant has filed the copy of insurance policy which was kept on page No.19,20, 21 and same was read by the Forum and found following points which are as under:
Sr. No. Particulars Amount Rs.
1.
Green House - Plant Machinery & Accessories' 20,40,000/-
2. Plant & Machinery 9,95,000/-
3. Irrigation System 2,80,000/-
4. Other Stock
--------
5. Plant Shed Net 1,80,000/-
6. Plant Bed 6,20,000/-
The opposite party in repudiating the claim of the complainant, Carnation Plants was not considered as within Insurance Contract. As per the above table, Green House was separate considered as well as the cover shed of Green House was separately considered. The Submission of the Insurance Company was totally wrong and not proper whereas Insurance contract includes Green House as well as all the materials, Machinery and apart from this, the flowers and bed as well Carnation Plants were also included. If the plant and machinery and other materials were included as per the above said table and therefore there is no need to show separate serial No.2 as Plant & Machinery. Therefore, as per serial No.2, Green House was separately considered and it includes flower plants, machinery and other parts and for that purpose insured for Rs.9,95,000/-. In and all when we read the insurance policy contract, it seems that that its High-tech Green House and therefore all the materials of Green House was to be considered within the Insurance Policy. Therefore the decision of opposite party as well as argument was not proper as the Carination Plants were not included in the insurance policy contract. The Hon'ble State Commission has also mentioned same remark in the Para 8 of the judgment. We have decided and considered that the opposite party has not considered the loss and compensation of flower plants as well as carination plants and therefore the estimated loss of compensation in both the complaints were wrong."
17. It is seen that the District Forum has, first of all, wrongly recorded the details of the property insured and then has wrongly interpreted the "plant machinery and accessories" as covering the botanical plants like carnations plants and flowers. This interpretation is against the details given in the policy.
18. The State Commission vide its order dated 19th April, 2010 has observed the following:-
"7. In the instant case, the main contention of the Insurance Company, leave apart the maintainability of these consumer complaints on the ground of arbitration clause, is that the carnation plants are not covered under the insurance policy. According to the Insurance Company, if the carnation plants were to be covered then the insured ought to have taken policy for flowery culture i.e. "LOP". The copy of policy document on record is not in dispute. The relevant portion i.e. risk cover and the description of the properly insured (as per policy) is as under:-
"The risk(s) covered is/are as under
1. Green Houses/Algae/Spirulina and the like.
Description of the property
1. Building (s) only
1. Green Houses
2. Plant/Machinery and Accessories
1. Plant and Machinery
2. Irrigation system
3. Other Stocks
1. Plant Shed Net
2. Plant Bed"
8. It is tried to be argued on behalf of the Insurance Company is that the reference to word "plant Machinery" does not refer to carnation plants and the primary meaning of the word "plant" used therein is "machinery, apparatus, fixtures etc.". Plain reading of the policy, supra, would show that the risk cover is for Green House/Algae/Spirulina and the like, which referred to the Green House containing the carnation plant bed and the other botanical plants like Algae. Therefore, risk cover is not merely to the plant and machinery as tried to be inferred by the Insurance Company. Furthermore, the word "Plant and Machinery", not only appeared regarding risk cover of Green House, but also in the other heads like "Plant Shet Net' Plant Bed". Both these references in the backdrop of the consumer complaints, refer to botanical plants i.e. carnation cut flowers. Therefore, taking to consideration the phraseology used and contents of the risk cover, certainly, covers carnation cut flowers beds. Submissions of the Insurance company on this point thus, cannot be accepted. Hence, refusal on the part of the Insurance Company to consider the claim for loss and damage caused on these two occasions to the carnation cut flowers amounts to deficiency in service on the part of the Insurance Company and therefore, consumer complaint would certainly lie in respect of these two events of loss suffered by cyclone to the carnation cut flowers vis-a-vis Green House and other stocks for which the insurance cover is taken."
19. In para 14 of the impugned order of the State Commission dated 30th April 2013, the State Commission has again confirmed these findings and therefore has not re-examined the issue whether the carnation plants and flowers are covered under the policy or not. In this observation, the reasoning of the State Commission is that the risk covered includes the greenhouse and its contents like algae or spirulina and the like. The State Commission has treated carnation plants and flowers under the category of algae, spirulina and the like. Spirulina is also a kind of blue algae, therefore, carnation plants and cut flowers cannot be treated under the category of 'the like'. Moreover, the reference of "plant shed net" and "plant bed" in the list of insured property has also led the State Commission to believe that the plant and machinery may also include carnation plants and cut flowers as part of greenhouse. This interpretation is not correct as the details of property insured has been wrongly interpreted by the State Commission. In fact, the policy gives the following details of the risk covered as well as the property insured.
Risks covered Risk/ Rate Code No. Basic Rate per mille Net Rate (%) Sum Insured Rs.
Building:
100/051.25 1.125
20.40,000 Stock(s)/ Content (s):
1.571 1.571 20,75,000 The risk(s) covered as/are as under 1 100
Green Houses /Algae/Spirulina and the like Sr. Description of Property Sum Insured (Rs.) Esd (%) Escalation Premium (Rs.) 1 Building(s) only 0 1 GREEN HOUSE 20,40,000 0 0.00 2 Plant /Machinery And Accessories 0 1 PLANT AND MACHINERY 9,95,000 0 0.00 2 IRRIGATIONSYSTEM 2,80,000 0 0.00 3 Other Stocks 0 1 PLANT SHED NET 1,80,000 0 0.00 2 PLANT BED 6,20,000 0 0.00 Total Sum Insured (Rs.) 41,15,000
20. From the above, it is clear that greenhouse is insured only as a building and therefore no contents kept under the greenhouse are covered under the heading greenhouse which is insured for Rs.20,40,000. The surveyor Mr Bhupendra Bhandari in his survey report has stated that the cost of the greenhouse was Rs.20,40,000. As the greenhouse costed Rs. 20,40,000, the same was insured for this amount. Clearly this amount does not include any plants, flowers or fruits which are to be grown inside the greenhouse. Thus, clearly carnation flowers and plants cannot be covered under the insurance of greenhouse under the policy. The State Commission has wrongly interpreted that the plant and machinery figures twice in the list of insured property. The fact is that below the greenhouse at item No. 2, plant machinery and accessories is mentioned and under this broad item two items are listed. The first being the plant and machinery and the second is irrigation system. There cannot be any confusion that the plant machinery and accessories may also include the plants to be grown under the greenhouse. Clearly, this plant means a conglomeration of different machinery being treated as an industrial unit. Thus, there should be no confusion that the word 'plant' occurring in the plant and machinery may mean the carnation plants or any other plants which are to be grown within the greenhouse. Thus, the finding given by the State Commission in respect of carnation plants and flowers is against the provisions of the policy and cannot be accepted. The mention of 'greenhouse /algae/spirulina or the like' is the basic risk cover, however ,the details of the property insured has to be considered when considering a claim under the policy. Had the complainant wanted to take the policy for safety of the carnation plants and flowers, then separate crop insurance policy may have been taken or if they wanted to cover the loss then the policy relating to loss of profit may have been taken. Under the current policy which is basically a standard fire and special perils policy, items listed in the property insured are covered for the perils mentioned under the policy.
21. There is no doubt that the plant beds are covered under the policy though the surveyor while assessing the loss in the second incident, has not considered the loss to plant beds. The complainant has submitted a claim of Rs.73,334 for loss of plant beds and this should have been agreed to by the insurance company. Though the surveyor has stated that fumigation charges have been considered, but in the final list of assessment, these charges are not reflected. Hence, in my view, the complainant is entitled to Rs.73,334 over and above the loss assessed by the surveyor. It is also seen that this surveyor, in his report, has taken 33.33% depreciation whereas the surveyor who was appointed to assess the first incident has taken only 5% depreciation, therefore, in my view, there is no justification for 33.33% depreciation as applied by surveyor Bhupendra Bhandari. If this correction is applied, then the loss assessed by Sri Bhandari becomes to Rs.1,82, 816/-instead of Rs.1,28, 870/-. Thus, for the second incident that happened on 21st/22nd March 2008, the insurance claim that could be admissible to the complainant would become Rs.2,56,150/-.
22. Similarly for the first incident that happened on 7th December 2007, the surveyor has revised his assessment to Rs.97,701. The surveyor has allowed Rs. 20,000 under the item 'plant beds' whereas the demand was for Rs.37,680/- and proper bills were also presented. It has been stated that the cost of nutrients has been deducted. In my view, when plant beds are completely covered under the policy, the total expenditure that was incurred on plant beds should have been allowed. Accordingly, the complainant would be entitled to Rs.17,680/- in addition to the amount of Rs.97,701/- as assessed by the surveyor.
23. In fact the complainant has demanded the following amounts for the first incident that happened on 7th December 2007.
Plants Value Rs.3,26,800.00 Uv Film Rs.2,39,484.00 Product Loss Rs.083,090.00 Bed Repairing Rs.0,37,680.00 Total Sellable value of 30,400 Carnation Flowers @ Rs.2/- per flower Rs.0,60,800.00 Total Rs.7,47,854.00
24. Similarly the claim submitted by the complainant in respect of the second incident which happened on 21st/22nd March 2008 is as follows:
Sl.No. Particulars Qt.
Rate per unit Amount in Rs.1
UV Poly film 3150 sq. mtrs Rs.270.50 per sq.mtr.
8,52,075 2 Carnation Plants 52000 Nos.
Rs.10.75 per plant 5,59,000/-3
Plants bed 74 Rs.991/- per bed 73,334/-4
Production Cost 1,50,000 flowers 3,16,992/-
Total 18,01,401
25. From the above, it would be clear that surveyors have considered the loss for all items except carnation plants and flowers as well as plant beds. Product loss is not covered under the policy. As examined above, carnation plants and flowers are not covered under the policy, hence, it was a right approach on the part of the surveyors for not assessing the loss relating to carnation plants and flowers. Plant beds are clearly covered in the policy and therefore their assessment has been taken care of in the above examination. For all other items, the assessments done by the surveyors seem to be reasonable. The surveyors are appointed under the provisions of the Insurance Act 1938 and their report forms the basis for settlement of the Insurance claim. Thus, there is no ground to interfere with the assessment of the surveyors for other items.
26. Based on the above discussion, both the revision petitions bearing Nos. 3409 and 3410 of 2013 are partly allowed. The insurance company is directed to pay Rs.1,15,381/- (rupees one lac fifteen thousand three hundred eighty one only) for the incident that happened on 7th December 2007 and Rs.2,56,150( rupees two lac fifty six thousand one hundred fifty only) for the incident that happened on 21st//22nd March 2008 instead of Rs. 5 lacs and Rs.15 lacs respectively awarded by the District Forum. These amounts will be paid by the insurance company along with interest at the rate 6% per annum from the data of filing of the complaint in both the cases. The orders of the fora below stand modified accordingly. The cost of Rs.5,000 awarded by the District Forum is maintained. The insurance company will also pay a cost of Rs.35,000/- for condoning the delay in each case.
...................... PREM NARAIN PRESIDING MEMBER