State Consumer Disputes Redressal Commission
United India Insurance Company Ltd vs Shri Raman Chandrakant Govitrikar & ... on 19 April, 2011
BEFORE THE HON
BEFORE THE HON'BLE STATE CONSUMER DISPUTES REDRESSAL
COMMISSION, MAHARASHTRA, MUMBAI
First Appeal No. A/10/199
(Arisen out of Order Dated 16/01/2010 in Case No. 114/2009 of
District Raigarh)
1. UNITED INDIA INSURANCE COMPANY LTD
R/14, NEAR S T BUS STAND, ALIBAG, RAIGAD
...........Appellant(s)
Versus
1. SHRI RAMAN CHANDRAKANT GOVITRIKAR
2. SMT.RITUJA RAMAN GOVITRIKAR
ALL R/O AT 30A SHENDURMALAI, WAKI BUDURUK,
TAL. MAHAD, DIST. RAIGAD.
3. BANK OF MAHARASHTRA
BIRAWADI BRANCH, AT POST BIRAWADI,
TAL.MAHAD, DIST.RAIGAD
...........Respondent(s)
AND
First Appeal No. A/10/200
(Arisen out of Order Dated 16/01/2010 in Case No. 115/2009 of
District Raigarh)
1. UNITED INDIA INSURANCE CO LTD
R-14, NEAR ST BUS STAND, ALIBAGH, RAIGAD
...........Appellant(s)
Versus
1. SHRI RAMAN CHANDRAKANT GOVITRIKAR
2. SMT.RITUJA RAMAN GOVITRIKAR
ALL R/O 30A, SHENDURMALAI, WAKI BUDURUK,
TAL. MAHAD, DIST. RAIGAD.
3. BANK OF MAHARASHTRA
BIRAWADI BRANCH, AT POST BIRAWADI, TAL.
MAHAD, DIST. RAIGAD
...........Respondent(s)
BEFORE:
Hon'ble Mr. S.R. Khanzode PRESIDING MEMBER
Hon'ble Mrs. S.P.Lale Member
PRESENT:
H G MISAR , Advocate for the Appellant
Mr.L.K. Jadhav,
Advocate, for D.G.SANT, Advocate for the Respondents
ORDER
Per Shri S.R. Khanzode, Honble Presiding Judicial Member
1. Appeal No.199/2010 arises out of an order dated 16/01/2010 passed in consumer complaint No.114/2009 Raman Chandrakant Govitrikar & Anr. V/s. United India Insurance Co. Ltd. & Anr. and Appeal No.200/2010 arises out of an order of even date passed in consumer complaint No.115/2009 Raman Chandrakant Govitrikar & Anr. V/s. United India Insurance Co. Ltd. & Anr. Both the impugned orders were passed by District Consumer Disputes Redressal Forum, Raigad (the Forum in short).
2. Both these appeals are disposed of by this common order since they involve identical facts and a common question of law.
3. The undisputed facts are that respondents/org. complainants (hereinafter referred to as complainants) had Hi Tech Agriculture Green House Project for production of carnation cut flowers under the Polly house at village Shendurmalai, Waki Buduruk, Taluka Mahad, District Raigad. They had financially assisted for their project from respondent/org. opponent No.2-Bank of Maharashtra. They had raised a green house and accessories for growing carnation cut flowers. The project including green house, plant machineries and accessories as well as integrated irrigation system, plant shed net and plant beds were insured under the Standard Fire and Special Perils Policy for period from 10.00 hrs. of 20/07/2007 to midnight of 19/07/2008 with the appellant/Insurance Company (hereinafter referred to as Insurance Company). Unfortunately, on 07/12/2007 due to heavy cyclone followed by rains, damage was caused to the green house and the plants which were grown under it. The damage was reported immediately to the Insurance Company and the insurance claim was made. Insurance Company appointed the surveyor and initially, tried to settle the claim offering `21,725/- and later on after re-assessment, offered `97,701/- in full settlement of the insurance claim. Complainant did not agree to the same and filed a consumer complaint. When processing of first insurance claim was in progress, the project of the complainant was again hit by another heavy cyclone and rains occurred on 21st and 22nd March 2008.
Due to second cyclone, all the remaining 50,000 carnation plants which survived earlier dated 07/12/2007 were got totally damaged. Simultaneously, the Green House which was repaired also got damaged. The incident was reported and since, the claim was not settled by the Insurance Company, the consumer complaint was filed.
4. Initially, one and same consumer complaint was filed for both the causes of action vis--vis events but subsequently, complaint covering cause of action dated 07/12/2007 and cause of action dated 21&22/03/2008 were separated. Consumer complaint No.114/2009 covered the later incident dated 21&22/03/2008 and claim of `18,01,401/-
plus cost of `50,000/-;
while consumer complaint No.115/2009 covered the earlier incident dated 07/12/2007 wherein claim of `7,34,654/-
towards loss due to cyclone and `10 Lakhs towards punitive damages and `50,000/- as cost were claimed. In respect of consumer complaint No.115/2009 relating to the earlier incident, the Forum partly upholding the claim awarded compensation of `5 Lakhs towards loss suffered by cyclone and rains, `50,000/- as compensation towards mental torture and `10,000/- as costs. In respect of consumer complaint No.114/2009, the Forum partly allowing the claim awarded compensation of `15 Lakhs towards loss suffered by the cyclone, `50,000/- as compensation for mental torture and `10,000/- as costs. Feeling aggrieved by both the orders, the Insurance Company preferred these two appeals.
5. We heard both the parties and perused the record.
6. The first objection taken by the Insurance Company is about the maintainability of these consumer complaints due to arbitration clause in the policy. As settled law, since the remedy before the Consumer Fora under the Consumer Protection Act, 1986 (hereinafter referred to as the Act) is an additional remedy, mere existence of arbitration clause in the policy would not take away the jurisdiction of the Consumer Fora.
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 property 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 House
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 Shed Net; Plant Bed. Both these references in the backdrop of the consumer complaints, refer to botanical plants i.e. carnation cut flowers. Therefore, taking into 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--vis Green House and other stocks for which the insurance cover is taken.
9. Referring to the rejection as appeared in both these consumer complaints, it could be seen that on 31/10/2009 i.e. first day of hearing the complainant was present. The Insurance Company appeared and asked for time to file their written version and matter was accordingly adjourned to 25/11/2009. On 25/11/2009 written versions in both complaints were filed on behalf of the Insurance Company. There is a reference to the affidavits and documents filed in evidence, but perusal of the record shows that the affidavit on record is nothing but a verification affidavit to the written version filed and the documents are simply produced as per the list. Unless those documents are admitted or undisputed documents, they cannot be taken into consideration unless tendered in evidence. The documents are neither admitted nor they are tendered in evidence as per the provisions of Section 13(4) of the Act. Similarly, evidence on affidavits from both the parties is to be called as per Section 13(4) of the Act. The course of events recorded in both the consumer complaints which has perhaps simultaneously recorded, do not speak for the fact that these mandatory provisions are observed and followed. Furthermore, mere filing of the survey report without tendering in evidence as aforesaid unless that is an admitted document cannot be considered in evidence.
10. We have considered undisputed document of policy and recorded the same. However, thereafter, coming to the issue of compensation which needs to be awarded as per provisions of Section 14 of the Act for the deficiency in service on the part of the Insurance Company, it is for both the parties to lead their evidence as per provisions of Section 13(4) of the Act, but both the parties failed to do so. Quantum of compensation which would be just and proper in the given circumstances needs to be assessed only after such material is placed on record. Insurance Company wants to rely upon report of the Surveyor, but the material placed on record shows that the loss to the carnation flower plants was not at all assessed by the surveyor on the ground that the same is not covered under the policy. Moreover, this report cannot be taken into consideration unless there is an affidavit of the author of the survey report. Therefore, we find that both the parties need to be given an opportunity to lead their respective evidence on the limited issue of quantum of compensation and for which we propose to remand the matter in order to do the substantial justice to the cause.
11. For the reasons stated above and the observations made and finding arrived by us, we pass the following order :-
-:
ORDER :-
1.
Appeal No.199/2010 & Appeal No.200/2010 are partly allowed.
2. Finding as far as maintainability of the consumer complaints and on the issue of Insurance Company guilty for deficiency in service for arbitrary repudiation of the insurance claim is maintained. However, the impugned orders as far as quantum of compensation and cost of the proceedings awarded are concerned, stand set aside. Both the consumer complaints are remitted back to the Forum in the light of the observations made in the body of order to hear both the parties after giving an opportunity to them to lead their respective evidence on limited issue of quantum of compensation to be awarded and thereafter, settle these disputes according to the law.
3. In the given circumstances, both the parties to bear their own costs.
4. Both the parties shall appear before the Forum on 24/05/2011 and both the complaints be expeditiously heard and shall be disposed of within three months from the date of appearance before the Forum.
5. Both the appeals stand disposed of.
6. Record & Proceedings be sent back to the Forum.
7. Copies of the order be furnished to the parties.
Pronounced Dated 19th April 2011.
[Hon'ble Mr. S.R. Khanzode] PRESIDING MEMBER [Hon'ble Mrs. S.P.Lale] Member dd