CONSUMER DISPUTES REDRESSAL COMMISSION

MAHARASHTRA STATE



FIRST APPEAL NO.977/2008 Date of Filing:-10/07/2008

@ M.A.NO.1347/2008

IN CONSUMER COMPLAINT NO.376/2006 Date of Order:-13/04/2009

DISTRICT CONSUMER FORUM, SOUTH MUMBAI



M/s.R.T.Enterprises,

Proprietor Shri Rodmal T.Gupta,

Having his office at Bombay

Marble Compound, S.N.Dube Road,

Dahisar(East),

Mumbai-400 068 ... Appellant (Org.Complainant)

-Versus –



The New India Assurance Company Limited,

having its office at New India Building,

87, M.G.Road, Fort,

Mumbai-400 023 ... Respondent (Org. Opponent)





Corum :- Mr.P.N.Kashalkar,Hon’ble Presiding Judicial Member,

Mr.S.R.Khanzode, Hon’ble Judicial Member



Present :- Mr.V.N.Solanki, Adv. for the Appellant.

Mr.D.R.Mahadik, Adv. instructed by Mr.S.R.Singh,

Adv. for the Respondent.



O R D E R

Per Mr.P.N.Kashalkar,Hon’ble Presiding Judicial Member



1) Being aggrieved by the judgment and award passed by the District Consumer Forum, South Mumbai whereby while allowing the complaint in Consumer Complaint No.376/2006, the Forum below directed payment of Rs.49,194/- towards insurance claim and Rs.10,000/- towards mental agony and Rs.5,000/- towards cost and turned down the other prayers of the complainant, the complaint has filed this appeal.

2) There is a delay of 31 days in filing appeal. The delay is properly explained in the condonation of delay application supported by affidavit. The medical certificate is also attached at Exh.A. So, relying on the same, we are inclined to condone the delay.



3) Facts to the extent material may be stated as under



4) M/s.R.T.Enterprises is the proprietary concern. It is having business in edible oils and it has its plant machineries etc. at its business place at Dahisar. The O.P./insurance company insured its plants, machineries, accessories and stock of oil under fire and special peril policy for a period 5/8/2004 to 4/8/2005. The sum assured was Rs.30 Lakhs and the premium was paid accordingly. Due to heavy rains of July-2005, the complainant suffered heavy loss of stock of edible oil, weighing machines, scales, furniture accessories etc. which was valued at Rs.8,90,993.50/- by the complainant. He lodged the claim with the O.P./insurance company. The insurance company appointed Surveyor M/s.Bhaskar & Company submitted survey report after eight months. The copy of survey report was not given to the complainant and it was told by the O.P. that they were appointing another Investigator/Surveyor. However, the O.P. sent letter dated 25/4/2006 and told him that his claim was rejected and matter was closed as ‘No Claim’. The complainant then sent registered notice on 21/7/2006. The O.P. confirmed that it had repudiated the claim. According to the complainant, repudiation was wrongfully done and he was entitled to get total claim of Rs.8,90,993.50/- with interest and other reliefs.

5) The O.P./Insurance Company filed written statement. According to the insurance company, the complainant suffered loss because of proprietor’s willful act or omission and policy conditions were violated by the complainant. Hence, the file was closed as ‘No Claim’. The O.P. denied that the complainant suffered loss to the properties and to the stock totally amounting to Rs.8,90,993.50/-. There was no delay in submitting the survey report by M/s.Bhaskar & Company. In fact, the complainant had not furnished the certain documents. Ultimately, survey report dated 16/11/2005 was submitted by M/s.Bhaskar & Company. Due to some anomalies M/s.Decent Investigators was appointed and Investigator submitted report on 8/1/2006. It was found that there was no proof of neighbours premises having got flooding of that area at Dahisar nor produced by the complainant nor there was any trace of oil spreading in the compound or near the premises of the complainant. As per Investigator no loss except edible oil stored in the tank was seen. The O.P. pleaded that it was impossible to believe that 700 oil tins would be washed away when the premises was flooded upto the height of 2 or 3 feet as per water mark found on the premises of the complainant. Therefore, to arrive at the decision, the O.P. had appointed third surveyor M/s.Ashok Chopra & Company who recommended that claim was not payable for breach of policy condition. The insurance company therefore pleaded that the claim was rightly denied by giving letter to that effect to the complainant. The O.P. therefore pleaded that it was not guilty of deficiency in service and complaint should be dismissed with cost.



6) On the basis of affidavits and documents placed on record, the Forum below held insurance company guilty of deficiency in service and directed the insurance company to pay amount of Rs.49,194/- to the complainant towards the policy and also directed payment of Rs.10,000/- to the complainant towards mental harassment and Rs.5,000/- towards cost. But, not satisfied with the amount awarded, the complainant filed this appeal.



7) We heard submissions of Mr.V.N.Solanki, Adv. for the appellant and Mr.D.R.Mahadik, Adv. instructed by Mr.S.R.Singh, Adv. for the respondent.



8) We perused the impugned award and survey report. M/s. Bhaskar & Company, the Surveyor, assessed loss of the complainant of Rs.49,800/-. M/s. Descent Investigators came to the conclusion that there was no flow of fierce water as it slowly inundated from the front road only which can not cause tilting or dislodging of tins kept in a bounded trays. Moreover spilling of oil in the compound was also not reported to him by the shopkeepers’ who are in the row with the shop of the insured. The gates of the insured shop were also reported to be closed at all the time of rains. The water which entered in the underground tank meant for storing was emptied next day by an electric motor pump and therefore he recommended that no claim should be paid to the complainant.



9) M/s. Ashok Chopra & Company was entrusted with the investigation for further survey and it was of the view that insured accounts have been manipulated and falsified to throw up a higher opening stock on 1/4/2005. The very existence of 40 tins (600 Kg.) as stock is completely doubtful. Thus, the surveyor opined that Rs.994/- would be payable as loss occasioned to the complainant. However, the Forum below not agreed with the findings recorded by the Investigator and second surveyor and granted amount of Rs.49,194/- as compensation to the complainant mostly relying on first survey report of M/s.Bhaskar & Company and partly allowed the complaint. On the whole, we are finding that the Forum below has given some relief to the complainant as per first survey report and discarding the investigation report of M/s.Decent Investigators and third surveyor M/s.Ashok Chopra & Company. We are, therefore, finding that the order passed by the Forum below is appearing to be just and proper and we can not grant enhance compensation for the alleged loss suffered by the complainant in the heavy floods of July-2005. The order passed by the Forum below deserves to be confirmed. There appears to be no merit in the appeal preferred by the original complainant. Hence, the following order.

O R D E R

1) M.A.No.1347/2008 for condonation of delay is allowed.

2) Delay is condoned.

3) Appeal stands dismissed.

2) Parties are left to bear their own costs.

3) Copies of this order be sent to the parties free of cost.





( S.R.Khanzode ) ( P.N.Kashalkar )

Judicial Member Presiding Judicial Member