State Consumer Disputes Redressal Commission
Tara Chand vs Universal Sompo General Insurance ... on 31 August, 2017
STATE CONSUMER DISPUTES REDRESSAL COMMISSION UTTARAKHAND, DEHRADUN
FIRST APPEAL NO. 216 / 2013
1. Sh. Tarachand (deceased) S/o Sh. Jaggan
R/o Village Jaitpur, Tehsil Laksar, District Haridwar
1/1. Sh. Teluram S/o Late Tarachand
R/o Village Jaitpur, Tehsil Laksar, District Haridwar
......Appellant / Complainant
Versus
1. Universal Sompo General Insurance Co. Ltd.
Through Manager
Office: over Nainital Bank, Rajpur Road, Dehradun
2. Universal Sompo General Insurance Co. Ltd.
Registered office: 201-208, opposite Crystal Plaza
Infinity Mall, Link Road, Andheri (West) Mumbai
.......Respondent Nos. 1 & 2 / Opposite Party Nos. 1 & 2
3. Indian Overseas Bank, Laksar
Through Manager
Indian Overseas Bank, Laksar, District Haridwar
.......Respondent No. 3 / Opposite Party No. 3
Sh. Ravindra Singh, Learned Counsel for the Appellant
Sh. Suresh Gautam, Learned Counsel for Respondent Nos. 1 & 2
None is present on behalf of Respondent No. 3
Coram: Mr. D.K. Tyagi, H.J.S., Member
Mrs. Veena Sharma, Member
Dated: 31/08/2017
ORDER
(Per: Mr. D.K. Tyagi, Member):
This appeal, under Section 15 of the Consumer Protection Act, 1986, has been preferred by the complainant-appellant against the order dated 24.07.2013 passed by the District Forum, Haridwar in consumer complaint No. 248 of 2011, whereby the District Forum has dismissed the consumer complaint.2
2. Briefly stated the facts of the case, as mentioned in the consumer complaint are that the complainant installed / established the poly house named Saini Floriculture at Village Jaipur, Teshil Laksar, District Haridwar, for which he obtained a loan of Rs. 14,26,000/- from the opposite party No. 3-Indian Overseas Bank, Laksar. This amount was spent for starting nursery of Jerbera Flowers. The complainant had taken insurance of his nursery of Jerbera of Poly House Saini Floriculture on 12.11.2009 from the opposite party Nos. 1 & 2 through the Indian Overseas Bank, Laksar-opposite party No. 3. The policy was supplied to the complainant by the opposite party Nos. 1 & 2 through opposite party No. 3. The number of insurance policy is 2114/50297487/00/000, which is available at the office of opposite party No. 3. Copy of the policy was supplied to the complainant by the Bank-opposite party No. 3 and opposite party No. 3 had paid the first premium to the opposite party Nos. 1 & 2 from the account of complainant. The complainant's Poly House was insured for a period from 12.11.2009 to 11.11.2010. For the construction of Poly House Saini Floriculture, the complainant had purchased bricks for a sum of Rs. 1,37,500/- from M/s Jagdish Prasad Prajapati & Sons, Basedi, Laksar, Haridwar and insecticides and pesticides for a sum of Rs. 55,165/- were purchased from M/s Uttaranchal Plant Health Clinic, Gughal Road, Dheerwali, Jwalapur, Haridwar and generator set, motor and cooler etc. were purchased from Rajeev Electrical and Electronics for a sum of Rs. 3,36,000/- and Iron pipes and other iron items were purchased from M/s Beni Prasad Puranchand, Haridwar Road, Laksar for a sum of Rs. 2,45,000/- and also purchased Plots of Jerbera Flowers for a sum of Rs. 5,66,000/- from Himgiri Krishi Vikas Evam Gramodhyog Sansthan, Deerwali, Jwalapur, Haridwar. He had also purchased polythin sheet for a sum of Rs. 1,71,000/- from M/s Reeta Horticulture Service Center, Gughal Road, Dheerwali, Jwalapur, Haridwar and spring lock etc. for a sum of Rs. 1,40,120/- were purchased from Kissan Engineering Works, Delhi Road, Sitapur, Haridwar. On 20.09.2010 and 21.09.2010, there was a heavy rain in the area and due to flood, the Poly House of the complainant 3 damaged and the complainant suffered a heavy loss due to destruction of nursery of Jerbera Flowers. The complainant immediately informed about the loss to the Tehsil Laksar through application dated 27.09.2010. SDM, Laksar ordered for enquiry to the Sub-ordinate officials of Tehsil, who submitted their report and found total damage of nursery of Jerbera Flowers. Report was submitted to the SDM Laksar. The complainant also informed the opposite party No. 3-Bank about the total loss of his nursery of Jerbera Flowers in the Poly House. The opposite party No. 3 found the complaint of complainant correct and informed the opposite party Nos. 1 & 2 about the loss of nursery of Jerbera Flowers in the Poly House. The complainant had suffered a loss of Rs. 15,00,000/- in the incident, for which the opposite parties are responsible to compensate the complainant. The complainant time and again sent information verbally as well as in writing to the opposite parties, but opposite parties did not hear the complainant. Due to loss in the Poly House, the complainant could not pay the installments of loan taken from the opposite party No. 3-Bank. The Bank has also imposed interest on the loan amount on 21.09.2010 and in this way, the complainant suffered a total loss of Rs. 17,00,000/- for which the opposite party Nos. 1 & 2 are responsible to pay the amount. The complainant had also sent a legal notice dated 20.07.2011 through his advocate to the opposite parties, which was served on them, even then the opposite party Nos. 1 & 2 did not pay the amount of loss to the complainant. The complainant has also suffered physical and mental agony, for which opposite parties are responsible to pay the compensation of Rs. 2,00,000/- alongwith amount of loss in the Poly House, which is of Rs. 15,00,000/-. By not paying the compensation, the opposite party Nos. 1 & 2 have committed deficiency in service.
3. The opposite party Nos. 1 & 2-Universal Sompo General Insurance Co. Ltd. have filed written statement before the District Forum and have pleaded that the claim petition is based on wrong and concocted facts and is wholly misconceived, groundless and unsustainable in law and is liable 4 to be dismissed. The complainant is not a consumer as defined under Section 2(1)(d) of the Consumer Protection Act, 1986 as the designated work was carried out for commercial purpose and therefore the petition of the petitioner is liable to be dismissed. As soon as the information of the mishap was received in the month of August, 2010 that the insured property got damaged by the flood, an independent and IRDA approved Surveyor was appointed on 01.09.2010 who in turn visited the insured premises on 02.09.2010. Again an information regarding the damages between 20.09.2010 to 26.09.2010 to the insured premises was received and thereafter again on receiving the information the surveyor again visited the insured premises in the first week of October, 2010. The Surveyor visited the insured premises and inspected the premises very minutely, met the concerning authorities and local peoples, collected the photographs and all relevant documents regarding the mishap and prepared a detailed survey report and submitted the same to the answering opposite parties. As per the independent surveyors report, the net loss assessed after deduction of salvage, depreciation and items not covered under the policy is Rs. 4,17,045/-. This assessed loss has already been paid to the bankers and credited to the account of the complainant. As per the policy schedule and as brought about by the surveyor there is no coverage for the plants in the present policy and, hence, the complainant is not entitled for the loss of Jerbera Flowers and pesticides. The answering opposite parties perused the report of the Surveyor very minutely and went through the records and policy, satisfied with the report of the Surveyor and as per opinion of Surveyor, a payment of Rs. 4,16,896/-in favour of the complainant was made. The said amount was forwarded to the Indian Overseas Bank and M/s Saini Floriculture, Haridwar vide Cheque No. 018984 dated 29.06.2011. Inspite of the fact that the amount was tendered to the complainant in relation to his claim, the present complaint has been filed by the complainant before the District Forum with ulterior motives. Even the fact that the said amount has been received by the complainant has nowhere been disclosed in the complaint by the complainant. The 5 complainant never complained to answering opposite parties that he is not satisfied with the amount tendered to him, which shows his implied consent and, therefore, no cause of action has arisen to the complainant to file and maintain the present complaint. In these circumstances the claim has finally been settled and the claimant has no grievance with the said amount tendered in his favour. There is no deficiency in service on the part of the answering opposite parties and the complaint is liable to be dismissed against the answering opposite parties.
4. The opposite party No. 3-Indian Overseas Bank has not filed any written statement before the District Forum and, therefore, vide order dated 01.12.2011, the consumer complaint was proceeded ex-parte against the opposite party No. 3.
5. The District Forum, on an appreciation of the material on record, dismissed the consumer complaint vide impugned order dated 27.04.2013 in the above manner. Aggrieved by the said order, the complainant- appellant has filed the present appeal.
6. We have heard Sh. Ravindra Singh, learned counsel for the appellant and Sh. Suresh Gautam, learned counsel for respondent Nos. 1 & 2. None appeared on behalf of respondent No. 3. We have also gone through the entire record of the District Forum and have also perused the material placed on record.
7. Learned counsel for the complainant-appellant has submitted before this Commission that the impugned judgment and order dated 27.04.2013 is against the facts, law and evidence on record. The District Forum has wrongly appreciated the fact that the amount of Rs. 4,16,896/- has been paid to the Bank-respondent No. 3-opposite party No. 3. The appellant had never given any consent regarding amount of Rs. 4,16,896/- and the amount, if any, was deposited in the account of Bank-respondent No. 3, if this amount of Rs. 4,16,896/-, which is adjusted in the claim amount of 6 Rs. 19,00,000/-, even then the amount of Rs. 14,83,104/- is outstanding against the respondent Nos. 1 & 2-opposite party Nos. 1 & 2, which was not ordered to pay by the District Forum. Therefore, the impugned judgment and order passed by the District Forum is illegal. The Forum below had dismissed the consumer complaint on the grounds that Rs. 4,16,896/- was deposited in the account of Bank, which was without consent of the appellant. Therefore, order passed is against the facts and law. The District Forum has failed to appreciate the evidence filed by the appellant. The Forum below has failed to appreciate the fact that the consumer complaint was proceeded ex-parte against the Bank-respondent No. 3, as the Bank had not filed any written statement before the Forum. The District Forum has failed to appreciate the fact that the survey report was not prepared in the presence of the appellant. The Surveyor had not inspected the Poly House of the appellant in the present of appellant. No information was given to the appellant by the Surveyor before survey. The District Forum has failed to appreciate the report of Revenue Officer; like Tehsildar and SDM, according to the report of Revenue Officer it was a big loss of appellant during the incident of flood. The District Forum has also not appreciated the fact that the legal notice dated 20.07.2011 was never replied by the respondent Nos. 1 & 2, despite service of the notice.
8. In the consumer complaint, the complainant-appellant has stated that on 20.09.2010 and 21.09.2010, there was a heavy rain in the area, resulting damage of his Poly House as well as nursery of Jerbera Flowers. The Insurance Company, in the written statement, has clearly mentioned that information regarding mishap was received in the month of August, 2010 that the insured property got damaged by the flood, for which an independent Surveyor was appointed on 01.09.2010 who visited the premises of the insured on 02.09.2010. Insurance Company has also stated in the written statement that again an information regarding damages between 20.09.2010 to 26.09.2010 to the insured premises was received and thereafter again on receiving information, the Surveyor again visited 7 the insured premises in the first week of October, 2010. This fact has not been rebutted by the appellant through any replication. In the written statement, the Insurance Company has reproduced the Surveyor's report. In the Surveyor report, it is clearly mentioned that the insured has claimed Rs. 3,00,000/- towards the loss of Jerbera Flowers, however, there is no coverage for the plants. Hence, loss is not considered by the Surveyor. This fact has also not challenged by the appellant through any replication before the District Forum. The appellant has not challenged the Surveyor report (paper Nos. 15/3 to 15/13 on the District Forum's record) before the District Forum. Therefore, report of Surveyor and Loss Assessor is unrebutted.
9. We have perused the Surveyor report filed by the respondent Nos. 1 & 2- Insurance Company on the record of District Forum. The Surveyor has assessed the total loss of Rs. 7,09,173/- and after deduction of value of salvage, i.e. Rs. 2,70,178/-, he assessed the loss of Rs. 4,38,995/- (Rs. 7,09,173.00 - Rs. 2,70,178.00= Rs. 4,38,995.00) and after less excess of Rs. 21,950/- net liability of Insurance Company was fixed at Rs. 4,17,045/-. In the written statement as well as in the affidavit of Sh. Ashwani Gaba, Head Claims, Universal Sompo General Insurance Co. Ltd., it is clearly deposed in para No. 8 that satisfied with the report of the Surveyor and as per opinion of Surveyor, a payment of Rs. 4,16,896/- in favour of the complainant-appellant was made. It is also stated that the said amount was forwarded to the Indian Overseas Bank and M/s Saini Floriculture, Haridwar vide Cheque No. 018984 dated 29.06.2011. This fact of payment by the Insurance Company to the Bank and appellant's account, is also not challenged by the appellant by filing any rejoinder affidavit. This proves that the appellant admits the fact that on the basis of Surveyor's report loss assessed was Rs. 4,17,045/- and the Insurance Company has deposited an amount of Rs. 4,16,896/- in the account of appellant in Indian Overseas Bank. So far damage and loss of Jerbera Plants and Flowers in the Poly House is concerned, the appellant has not 8 proved this fact that that Plants of Jerbera were also insured by the Insurance Company through insurance policy. There is no evidence on record to show that due to flood, Structure, Electrical Items, Generator, Motors, Cooler, Exhaust Fan etc. were ever damaged. The Insurance Company has paid the amount of actual loss, as assessed by the Surveyor and Loss Assessor.
10. Thus, in these circumstances, we are of the view that the District Forum has properly considered the facts and circumstances of the case and has passed a reasoned order, which does not call for any interference and the appeal being devoid of merit, is liable to be dismissed.
11. For the reasons aforesaid, the appeal is dismissed. Impugned judgment and order dated 27.04.2013 passed by the District Forum, Haridwar in consumer complaint No. 248 of 2011 is hereby confirmed. No order as to costs.
(MRS. VEENA SHARMA) (D.K. TYAGI)