Orissa

Cuttak

CC/92/2020

M/s Lingaraj Supply Agency,Propriertor Dinesh Kumar Agarwal - Complainant(s)

Versus

Branch Manager,United India Insurance Company Ltd - Opp.Party(s)

R K Pattanaik

12 Jan 2023

ORDER

IN THE COURT OF THE DIST. CONSUMER DISPUTES REDRESSAL COMMISSION,CUTTACK.

C.C.No.92/2020

 

M/s. Lingaraj Supply Agency, represented

Through its Proprietor Dinesh Kumar Agarwal,

s/O:Late Roshan Lal Agarwal,Resident of Plot No. N 2/106,

I.R.C Village, Nayapalli,Bhubaneswar-15,

And having its Godown(Insured Premises) situated at Mouza-Alkar,

Radhacharapur,Janla,Dist:Khordha-752054..                          ... Complainant.

 

                                                                Vrs.

1. United India Insurance Company Ltd.

Represented through its Branch Manager,

Banadurga Seva Sadan,Link Road,

Link Road,Badambadi,Cuttack,Odisha.

 

2. Chairman-Cum-Managing Director,

United India Insurance Company Ltd.,

24,Whites Road,Chennai-600014.

 

3. Branch Manager,

HDFC Bank Ltd.,Jatni Branch,

At:Ramchandrapur Bazar,Main Road,P.O:Jatni,

Dist: Khurda.                                                                                                      ...OPP parties

 

 

Present:               Sri Debasish Nayak,President.

                                                Sri Sibananda Mohanty,Member.

 

               Date of filing:     24.08.2020

Date of Order:    12.01.2023

 

For the complainant:           Mr. R.K.Papttnaik,Adv. & Associates.

For the O.Ps. 1 & 2   :           Mr.J.Mioshra,Adv,. & Associates.

For the O.P No.3:                  Mr. R.Roy,Adv. & Associates.

 

Sri Debasish Nayak,President

          Case of the complainant as made out from the complaint petition bereft unnecessary details in short is that he had stored molasses in concrete pits which were damaged due to heavy torrential rain in the cyclone “Fani” and the claim of the complainant towards the insurance policy which he had obtained from the O.Ps, was unilaterally and arbitrarily settled for a scanty amount for which the complainant has filled this case demanding the balance amount of Rs.3,89,83,649/- from the O.Ps, they being the insurer.  In order to cover the stock, from cyclone, earth quake, fire and allied perils, the complainant had preferred “Standard Fire and Special Perils” policy in order to secure the stock of molasses vide policy no.2603021118P106902353 effective from 3.9.18 to 2.9.19 and the assured sum was of Rs.4,00,00,000/-.  The complainant had paid the premium to the tune of Rs.63,314/-.  On 3.5.2019 the cyclone “Fani” resulted in torrential rain thereby damaging the stock of molasses within the godown premises of the complainant and out of 9 storage tanks containing molasses, 8 of those were damaged and the roof of each of the said tanks being constructed with asbestos sheets were blown off resulting in gushing of the rain water and dust into the said storage tanks.  Besides this there was several other damages sustained by the complainant at his godown premises.  On 5.5.19, the matter was reported to the O.P Insurance Company who had deputed their surveyor to assess the loss.  The said surveyor of the O.Ps had visited the godown premises of the complainant on 6.5.19 and had noticed the damages thereof, taken photographs also and had instructed the complainant to file the claim in “claim form”.  Accordingly, the complainant had applied through the claim form taking into account the loss of his molasses worth of Rs.5,30,37,235/-.  The molasses of the complainant which were damaged, were sent for testing to M/s. Spectra Analytical Labs Ltd.,New Delhi as per the instruction of the said Surveyor and the complainant was advised by the surveyor to wait for the testing report.  The test report dt.17.5.19 as issued by the M/s. Spectra Analytical Labs Ltd.,New Delhi which had not indicated the financial loss for which the complainant as per the instruction of the surveyor had requested the said M/s. Spectra Analytical  Labs Ltd.,New Delhi to assess the financial loss to which they had denied through their letter dt.29.5.19.  The O.Ps had settled the claim of the complainant for a sum of Rs.1,40,61,086/-.  According to the complainant, the said amount is only 20% of his claim amount which was of Rs.5,30,37,235/-.  The surveyor had deducted a sum of Rs.84,85,958/- towards dead stock.  The complainant has vehemently objected to such deduction since because there can be no dead stock of molasses.  The complainant had written to the O.Ps for reconsideration of his claim and ultimately when no fruitful result had yielded being disgusted fully, the complainant had to file this case against the O.Ps for balance amount of claim of Rs.3,89,83,649/- together with interest thereon @ 9% per annum to the tune of Rs.5,30,496/- and another sum of Rs.3,00,000/- towards his mental agony and harassment and the cost of his litigation to the tune of Rs.50,000/- from the O.Ps.

          In order to substantiate his case, the complainant has filed copies of several documents alongwith his complaint petition.

2.       Out of the three O.Ps as arrayed in this case, O.Ps no.1 & 2 have filed their written version jointly whereas O.P no.3 has filed his written version separately.  According to the written version of  O.Ps no.1 & 2,the case of the complainant is not maintainable.  Ofcourse they admit about the insurance policy issued in favour of M/s. Lingaraj Supply Agency of the complainant covering stock of liquid molasses for an assured sum of Rs.4,00,00,000/- effective from 3.9.18 to 2.9.19 and the premium amount of Rs.63,314/- was collected to that effect.  On 3.5.19, they were informed by the claimant about the cyclone “Fani” which had blown away the Asbestos Sheets of the roof of the tanks containing molasses thereby lowering the gravity of molasses and turning those all to inferior quality.  On getting such information, they had deputed surveyor from M/s. Esen Insurance Surveyors & Loss Assessors Pvt. Ltd. who had submitted report after assessing the loss.  On 25.7.2019 as per the assessment of the net loss from the Surveyor’s report was of Rs.1,40,61,086/- and accordingly a sum of Rs.1,40,53,586/- was credit to the account of the complainant on 2.12.19.  According to them, the complainant after receiving the mail towards settlement of the loss vide e.mail dt.28.11.19 had not raised any objection and accordingly, the amount was credited to the account of the complainant on 2.12.19.  Thus, the O.Ps no.1 & 2 through their written version have urged that there was no deficiency in service on their part and the complaint petition as filed is liable to be dismissed.

          In order to establish their stand, the O.Ps have filed copies of several documents also.

          The written version filed on behalf of the O.P no.3 when perused, it is claimed therein that O.P no.3 is not a necessary party and the complaint case as filed against them is not maintainable which is liable to be dismissed with exemplary cost.

3.       Keeping in mind the averments as made in the complaint petition and the contents of the written versions of O.Ps, this Commission thinks it proper to settle the following issues in order to arrive at a proper conclusion.

i.          Whether the case of the complainant is maintainable?

ii.         Whether there was any deficiency in service on the part of the O.Ps?

iii.        Whether the complainant is entitled to the reliefs as claimed by him?

Issue no.II.

Out of the three issues, issue no.ii  being the pertinent issue is taken up  first for consideration here in this case.

Admittedly, here in this case, the complainant owns M/s. Lingaraj Supply Agency and was dealing with molasses by keeping stock in his storage godown.  According to him, he had 9 tanks of Asbestos roof wherein he was storing molasses.  It is also not in dispute that he had insured his godown premises by obtaining ‘Standard Fire and Special Perils” policy from the O.Ps 1 & 2 and had paid the premium amount.  The said policy was effective from 3.9.18 to 2.9.19 and the sum assured was of Rs.4,00,00,000/-.  It is also not in dispute that due to the torrential rain on 3.5.19 due to “FANI” cyclone the Asbestos roof of the tanks of the complainant at his store godown were blown off and the rain water with dust had gushed inside 8 of tanks thereby adulterating the molasses therein.  The matter was reported by the complainant to the O.Ps no.1 & 2 and accordingly Surveyor-cum-Loss Assessor was deputed by the O.Ps from M/s. Esen Insurance Surveyors  & Loss Assessors Pvt. Ltd. who had assessed the loss by going to the spot and had submitted their report dt.25.7.19.  As per the said report, the loss of the complainant was assessed to be of Rs.1,40,61,086/-.  The same was intimated to the complainant through mail on 28.11.19 and finally on 2.12.19 the loss amount as assessed  was credited to the account of the complainant.  The complainant was dissatisfied to receive such a scanty amount since because, according to him, his loss was of Rs.5,30,37,235/-.

 On perusal of the materials/documents as available here in this case, it is noticed that the complainant had undertaken policy whose sum assured was of Rs.4,00,00,000/- only.  Thus, his claim anything beyond Rs.4,00,00,000/- from the O.Ps 1 & 2 is undesiring.  Moreso, the Surveyor-cum-Loss Assessor had gone to the spot to assess the loss of the molasses of the complainant due to the cyclone “Fani”.  It was assessed by the Surveyor-cum-Loss Assessor that the loss incurred by the complainant was worth of Rs.1,40,61,086/-.  The molasses which according to the complainant was damaged; sample of those were sent for testing to M./s. Spectra Analytical Labs Ltd.,New Delhi who could not assess the financial loss of the complainant but had submitted report as regards to the quality of the molasses after mixing of the rain water with those molasses.  The Surveyor-cum-Loss Assessor after taking into account all the facts and circumstances had assessed the loss and submitted report to the O.Ps no.1 & 2 which was also intimated by the said O.Ps the complainant through mail on 28.11.19.  On 2.12.19 the loss amount as assessed by the surveyor was credited to the account of the complainant by the O.Ps.  Subsequently, the complainant being dissatisfied had come up with this case before this Commission seeking redressal and intending to get his demanded amount towards the alleged loss of his molasses.

At present as noticed, even if this Commission thinks it proper to reassess the loss, there is no valid reason noticed to doubt the report of the Surveyor-cum-Loss Assessor as deputed by the O.Ps here in this case.    The complainant had made no immediate protest in writing to the O.Ps no.1 & 2  after knowing about the quantum of loss through mail on 28.11.19, but rather had remained silent then.   In this context it would be worthwhile to quote the decision as relied upon by the O.Ps no.1 & 2 of this case.  In the case of M/s. Bhagabati Prasad Pawan Kumar Vrs. Union of India reported in AIR 2006 Supreme Court 2331 wherein it is held that “ retention of cheque or encashment of cheque by appellant will automatically amount to full land final satisfaction of claim – Appellant/Offeree encashed cheques and later on sent protest to Railways- By conduct Appellant/Offeree must be, held to have accepted offer made by Railways- Claim application liable to be dismissed” and also in the case of Sikka Papers Ltd. Vrs. National Insurance Co. Ltd. & Ors. Reported in AIR 2009 Supreme Court 2834 wherein their lordships have held that “Complainant claimed reimbursement of entire repairs cost from insurer- Insurance policy did not provide for protection against normal wear and tear – Parts which had suffered due to wear and tear on account of constant use, although replaced could not form part of claim for reimbursement under terms of policy”.  Thus, the assessment made by M/s. Esen Insurance and Surveyors and Loss Assessors Ltd. cannot be simply discarded here in this case.  Accordingly, this Commission finds no deficiency in service on the part of the O.Ps1 & 2 and this issue thus goes in favour of the O.Ps no.1 & 2.

 

Issues no.i & iii.

From the discussions as made above, it can never be said here in this case that the case of the complainant is maintainable and the complainant is entitled to any of the reliefs as claimed by him.

ORDER

Case is dismissed on contest against the O.Ps and as regards to the facts and circumstances of the case without any cost.

Order pronounced in the open court on the 12^th  day of January,2023 under the seal and signature of this Commission.  

                                                                                                                   Sri Debasish Nayak

                                                                                                                             President

         

 

                                                                                                                      Sri Sibananda Mohanty

                                                                                                                              Member