State Consumer Disputes Redressal Commission
Yogi Enterprises vs United India Insurance Company Ltd. on 22 February, 2013
Daily Order
BEFORE THE HON'BLE STATE CONSUMER DISPUTES
REDRESSAL
COMMISSION, MAHARASHTRA, MUMBAI
Complaint Case No. CC/07/37
Yogi Enterprises
Through its
Proprietor
Mr. Ashwin Patel,
Business at Plot No.
7, Road No. 6,
Service Industrial
Area,
Sector No. 1(S), New
Panvel,
District Raigad,
Maharashtra
...........Complainant(s)
Versus
1. United India
Insurance Company Ltd.
Corporate Office at
Maker Bhawan 1, Sir
V. T. Marg,
Mumbai 400 020
And Divisional Office
at
5/6/12, Shanti
Centre,
Sector 17, Vashi,
Navi Mumbai - 400
703.
............Opp.Party(s)
BEFORE:
HON'BLE MR. S.R.
Khanzode PRESIDING MEMBER
HON'BLE MR. Dhanraj
Khamatkar Member
HON'BLE MR. Narendra
Kawde MEMBER
PRESENT:
None
......for the
Complainant
Mr.A.S.Vidyarthi-Advocate
......for the Opponent
ORDER
Per - Hon'ble Mr. Narendra Kawde,
Member This is a complaint filed in the year 2007.
However, by an order dated 11/12/2008 it was adjourned sine-die. Thereafter, the complaint was taken out from the sine-die list and was listed for hearing upon issuance of notices to both the parties.
The Complainant chose to absent while Adv. A. S. Vidyarthi appeared on behalf of the Opponent. Since this is an old complaint we heard Adv. A. S. Vidyarthi on behalf of the Opponent in absence of the Complainant and we are disposing of this complaint by this order.
[2] Mr. Ashwin Patel is the proprietor of Yogi Enterprises who has filed this complaint alleging deficiency in service on the part of the Opponent - United India Insurance Company Ltd. (hereinafter referred to as 'the Insurance Company' for the sake of brevity) in not settling the insurance claim of the Complainant to the extent of `39,07,773.50ps. Undisputed facts are as follows.
[3] The Complainant availed from the Insurance Company a 'Standard Fire and Special Perils Policy' bearing No.121300/11/04/01239 and said insurance policy was valid through 18/10/2004 to 17/10/2005. Insurance policy covered Complainant's assets such as plant, machinery and accessories, Category-I stocks, Category-II stocks, packing material and oil tank storage. Total sum insured was of `70,00,000/-. On 26/7/2005 viz. during the validity period of the insurance policy there were unprecedented rains in Mumbai city and its vicinity resulting into heavy damage to the lives and property. Due to inundation the Complainant's insured stock got damaged.
Intimation was given to the Insurance Company. Insurance Company appointed a surveyor, namely - J. B. Boda Surveyors Pvt. Ltd., who submitted Survey Report on 21/12/2005 and assessed the loss to the extent of `34,70,037/-. Since the Insurance Company had raised certain doubts about the assessment made by the first surveyor, they appointed M/s. G. Satapathy & Company, as second Surveyor and Loss Assessors, who submitted investigation report on 14/9/2006 and assessed the liability of the Insurance Company to the extent of `21,54,643.31ps. Insurance company offered to settle the claim of the Complainant for an amount of `9,32,000/- excluding loss of zeera and rai. Complainant refused to accept this amount and, therefore, the dispute between the parties started. On these main grounds, the Complainant has filed this complaint seeking direction as against the Insurance Company to pay him an amount of `34,70,037/- together with interest thereon @ 18% p.a. [4] Insurance Company contested the complaint by filing its written version inter-alia contending that the first surveyor, M/s. J. B. Boda Surveyors Pvt. Ltd., conducted preliminary survey and reserved their rights to incorporate detailed findings after their final survey. Meanwhile said surveyor requested the Complainant to submit all the relevant claim documents so as to enable them to carry out final survey. However, the Complainant failed to do so. Second surveyor was appointed to ascertain the accuracy of the loss reported by the first preliminary survey report particularly as to the stock of zeera and rai. It was observed that there was no evidence of the existence of stock of jeera and rai allegedly damage in the incidence. Moreover, destruction certificate in respect of goods allegedly damaged from the concerned authorities of Food and Drug Administration Department as sought by the Insurance Company was never submitted by the Complainant which is a mandatory requirement to settle the claim.
On these grounds, it is stated that there is no deficiency in service on the part of the insurance company. However, the Insurance Company admitted its liability limited only to the extent of `9,32,599/-.
[5] This Commission by an order dated 8/3/2007 directed the Insurance Company to deposit with this Commission an amount of `21,54,205/-. Accordingly, the Insurance Company deposited that order with the State Commission. Out of the said amount, the Complainant was permitted to withdraw an amount of `9,32,000/-. Accordingly, the Complainant withdrew that amount. Rest of the amount was directed to be invested in a nationalized bank.
[6] It is an admitted fact that M/s. J. B. Boda Surveyors Pvt. Ltd., first surveyor appointed by the Insurance Company assessed the loss caused to the Complainant at `34,70,037. However, the Insurance Company for the reasons best known to them appointed another surveyor - M/s. G. Satapathy & Company, to assess the loss caused to the Complainant. Even this second surveyor in his investigation report dated 14/9/2006 assessed the loss caused to the Complainant at `21,54,643.31ps.
When the first survey report was available, for no justifiable reasons there was a need for the Insurance Company to appoint a second surveyor. However, the Insurance Company appointed another surveyor who also assessed the loss caused to the Complainant to the extent of `21,54,643.31ps. Adv. Vidyarthi for the Opponent justified appointment of second surveyor by the Insurance Company and he relied upon the decision of the Hon'ble Supreme Court in Venkateswara Syndicate Vs. Oriental Insurance Company Ltd. ~ III-(2009)-CPJ-81-(SC); whereunder it is held that appointment of second surveyor is not prohibited under the Insurance Act. May the case as it may be, still the fact remains that even the second surveyor assessed the liability of the Insurance Company to the extent of `21,54,643.31ps., as against which the Insurance Company offered to the settle the claim of the Complainant to the extent of `9,32,599/-. Even the report of the second surveyor appears to have been prepared in good faith and with due application of mind and in the absence of any error or ill motive, the Insurance Company is not expected to reject the report of surveyor. In the given set of circumstances we find that decision taken by the Insurance Company to settle the claim of the Complainant at `9,32,599/- as against an amount of `21,54,643.31ps., as finally assessed by the second surveyor is arbitrary and not based on acceptable reasons and thus, there is deficiency in service on the part of the Insurance Company. Insurance Company is liable to pay to the Complainant an amount of `21,54,643/- towards settlement of insurance claim. We hold accordingly and pass the following order:-
ORDER The complaint is partly allowed.
The Opponent, United India Insurance Company Ltd., is directed to pay to the Complainant an amount of `21,54,643/-
towards settlement of insurance claim. Insurance Company has already deposited with this Commission an amount of `21,54,205/- out of which the Complainant has already withdrawn an amount of `9,32,000/-. Consequently, the office is hereby directed to release the balance amount in favour of the Complainant together with accrued interest thereon.
The Opponent is further directed to pay to the Complainant an amount of `25,000/- by way of compensation towards mental agony and harassment.
The Opponent shall bear its own costs and shall pay costs of `10,000/- to the Complainant.
Pronounced on 22nd February, 2013 [HON'BLE MR. S.R. Khanzode] PRESIDING MEMBER [HON'BLE MR. Dhanraj Khamatkar] Member [HON'BLE MR. Narendra Kawde] MEMBER kvs