Reserved
State Consumer Disputes Redressal Commission
U.P. Lucknow.
Complaint Case No.116 of 2011
M/s Marshal Tractors Ltd. Regd Office at
‘Mars House’, 1-A, Ashok Nagar, Rajajipuram,
Lucknow through its Director Shri B.N. Tiwari.
…Complainant.
Versus
1- The New India Insurance Co. Ltd.,
25, Chandralok, Aliganj, Lucknow through
Its Branch Manager.
2- Uco Bank, Branch Hazratganj, Lucknow
through its Branch Manager. …..Oppositeparties.
Present:-
1- Hon’ble Sri Rajendra Singh, Member.
2- Hon’ble Sri Sushil Kumar, Member
Sri V.S. Bisaria, Advocate for the complainant.
Sri B.P. Dubey, Advocate for the opposite parties.
Date :11.04.2022
JUDGMENT
Sri Rajendra Singh, Member-This complaint has been filed by complainant under section 17(1)(a) of the Consumer Protection Act, 1986 that the complainant is one of the field of ‘Mars Group’ for set up to manufacture of Tractors and its equipments. The factory was set up at about 5 k.m. from Budheshwar Mandir Tiraha or Mohan Road, Lucknow. The complainant had its account with the opposite party no.2 who had granted CC limit for smooth running of the business. The opposite party no.2 to insure his money get the insurance from opposite party no.1 for Rs.2,00,00,000.00 and paid Rs.25,815.00 as premium amount to opposite party no.1. The opposite party no.1 insured plant/machinery and accessories
(plant, machinery, dyes, tools, tools furniture fixture, office equipments) for Rs.65,00,000.00 and raw material (material, iron, channels, steel, road, tyres, tubes, rims, hardware, engine, electrical parts, battery etc. for Rs.1,35,00,000.00). The insurance was covered for the period 4.4.2007 to midnight of 3.4.2008. The standard fire and special perils policy nos.420402/11/07/11/00000003 and 420402/11/07/11/ 00000009 were issued. Due to the heavy storm at Lucknow and it nearby areas on 9.5.2007, the complainant had suffered heavy damages towards factory building and machinery plant. The information of damages were given to the opposite party no.1 in the evening on same day. The complainant on 9.5.2007 i.e. same day informed about the incident of storm to the opposite party no.2, Police Station Kakori, Lucknow and also to the Power House, Fatehganj to disconnect the connection of 20 H.P. as the large area of building was demolished in the storm damaging the line and meter. The opposite party no.1 deputed Shri Yogendra Kumar as their surveyor who inspected the site on 11.5.2007 who vide his letters dated 18.5.2007, 18.6.2007 and 22.9.2007 to the complainant required the documents to settle the claim.
The complainant vide its letter dated 12.12.2007 in reply to the letter informed that some time be required for the preparing of estimate of loss of building, plant and machinery. The complainant unable to provide the entire required document inspite of the sincere effort due to other disturbance cause after the storm damaged the building, plant and machinery paralysed the manufacturing which effect the problems from the bank, market from where the materials were taken and their employees. The complainant on 5.3.2009 submitted all the documents with the opposite party no.1 and requested to settle the claim. The complainant had suffered Rs.11,23,550.00 towards the construction of factory building and Rs.14,00,330.00 towards plant and machinery in total Rs.25,23,880.00. The opposite party vide its letter dated 12.3.2009 informed the complainant that the claim have already closed as ‘no claim’ due to non available of required papers/documents but it was further stated that now the papers will be forwarded to their surveyor Shri Yogendra Kumar for further investigation.
The complainant vide its letter dated 20.6.2009 informed the opposite party no.1 that their surveyor Shri Yogendra Kumar has denied to receive any document regarding their claim from opposite party no.1. The complainant since then sent several letters dated 11.11.2009, 25.1.2010, 29.3.2010, 3.5.2010 and lastly on 9.6.2010 to settle the claim but all gone in vain. The opposite party no.1 did not response or sent any letter to the complainant. The complainant then sent the legal notice to opposite party no.1 on 16.9.2010 to settle the claim but no reply was received from the opposite party no.1. The complainant is liable for the damages and loss suffered due to non settlement of the claim by the opposite party no.1 for such a long time.The opposite party no.1 has committed gross deficiency of services by not settlement of the claim for such a long period since 5.3.2009 when all the required documents were furnished to them. The opposite party no.1 has to decide the claim within three months from the date of receipt of all relevant papers. Therefore the complainant prayed for following reliefs:-
- The opposite party no.1 be directed to pay Rs.25,23,880.00 with 18% interest from 5.3.2009 i.e. the date of submitting the required papers till the date of payment towards the loss of factory building, plant and machinery.
- The opposite party be directed to pay Rs.10,00,000.00 as damages to the complainant.
- The opposite party be directed to pay Rs.50,000.00 as litigation charges to the complainant.
- Any other relief as the court deems proper.
The opposite party no.1 in its written statement has stated that the complainant has filed the complaint u/s 17(1)(a) of the Consumer Protection Act, 1986 appears to be on a wrong advice and it is only can termed to be a misguided missile or the guided missile with some hidden agenda and ulterior motive or in endeavor to achieve success by trivializing the issue and to get something for which it is not entitled to get.
The perusal of the entire contents of the Complaint under reply and by way of counter, clearly goes to show that nothing substantial and radical have been put forward, to establish its prima-facie case that it has been denied what was the legitimate to it, even after the proper claim has been lodged, rather on the other hand all the contents are absolutely appears to be not, but established to be ornamental in nature and does not have any relevance even in the remotest sense with the subject matter of the case, the deniability is well within the periphery of acceptability by the
judicial parlance, as the claim so having been lodged and so having been ventilated in the instant Complaint, was not at all tenable and sustainable within the ambit of Terms & Conditions of the Policy, for which the Complainant was agreed to it at the time of taking the policy of the Insurance, under the currency of which the alleged loss having been so purported to have been caused is not at all permissible to be made good. As it is to be kept in mind that the Terms, Conditions & Policies are framed, not to be followed in breach and one thing has to be kept in mind above all that the prohibited cannot be permitted and the permitted cannot be prohibited. Since the claim in the manner as has been alleged to be lodged since found vague evasive and non-east as such it has been repudiated by Letter dated 12-07-2008, duly sent by the Registered Post to the Complainant.
The details would be reduced in writing, when the chronological Order would be brought in, in the sequence of events, that how the sequence of events taken place in the instant Complaint/Claim indicating and rather fully establishing the fact, that whether the duty cast upon to the insured/complainant having been discharged by it, as it was suppose to cooperate with the Opp. Party in pursuit to get the claim adjudicated as per the Terms & Conditions of the Policy. The reply of each and every paragraph of the complaint are being given as under. With the preamble that the complaint in question is not at all maintainable as it is devoid of merits and having no substance in it and rather it is an exercise to extort the money under the garb of the provisions of the Consumer Protection Act, 1986, after getting fully convinced that according to the Terms & Conditions of the Policy the claim is not payable at all and the Complaint is liable to be dismissed with the exemplary costs, putting the additional burden on the exchequer of Opp. Party. With an ulterior motive the complainant wants to turned the directed of the wind, as it is only a thing which is in its domain as he is lacking to substantiate the claim having been lodged by him and after getting the same repudiated, the complainant has approached to his Hon’ble Commission to claim a huge amount of money, on the premise of deficiency in services by not settling the claim for such long period since 5.3.2009 why this particular date has been mentioned while the alleged loss having been caused on 9.5.2007 and the claim having been lodged by the complainant on 19.6.2008 than why the grace period has been given by the complainant by referring to the date of 5.3.2009.
It is difficult to spell it out that whether any loss has been caused in it or whether there was any kind of change in weather, inclusive of the heavy storm at Lucknow. While the fact of the matter remains that such type of heavy storm has not been experienced by the resident of the Lucknow city and adjoining areas as well, but the complainant is entitled and free to take any of the change in weather as a heavy or light storm, the fact of the matter remains that the answering opposite party does not have any check over the expression of the complainant, giving the report to the police station Kakori and to the power house, Fatehganj do not have any relevance with the subject matter of the present complaint and the fact of the matter remains that theaverments ought to have been made by the complainant within the ambit of the subject matter of the dispute between the parties. At the moment the intimation has been received by the answering opposite party immediately Mr. Yogendra Kumar, Surveyor has been appointed to assess the loss as has been reported to the answering opposite party and the immediately he has inspected the site as has been admitted by the complainant. The complainant has gone to the extent of mentioning the dates of the letter having beensent by the said Surveyor Shri Yogendra Kumar but has forgotten to make the reference of the letter dated 20.8.2007 but it is a matter of great surprise that what was the hidden agenda which restrained the complainant not to get all these 5 letters, to substantiate its point of view as has been observed that all the 5 documents as have been referred to the para no.3 to 5 were not much of relevance with the subject matter.
The letter dated 18.5.2007 which has been sent by the said surveyor under copy to the answering opposite party and duly addressed to the complainant pursuant to which as many as 9 documents has been asked by the said surveyor making the reference of his visit having been made on 11.5.2007 at the site of the alleged loss, as has already been admitted by the complainant, when the reply has not been received even after the lapse of one month the reminder has been sent on 18.6.2007 with the same, similar and identical contents duly addressed to the complainant and thereafter waiting for a long period of time for more than two months as such the reminder-II dated 20.8.2007 and thereafter, on 22.9.2007 the final reminder having been sent with the same request. In reply of all these 4 letters/reminders, the complainant has written a letter dated 12.12.2007 duly addressed to the surveyor making the reference of the last letter dated 22.9.2007 and the earlier letters have not been mentioned in it. The surveyor has inspected the site on 11.5.2007 and even after the 7 months 1 day from the date of inspection of the site and 7 months 3 days from the alleged accident the estimate has not been got prepared, looks to be very strange and moreover in the said letter dated 12.12.2007 no specific date has been given and rather on the other hand it has been expected to get the matter expedite, what a contradictory statement having been so made in the said letter which is very vague and evasive on all the count whatsoever that the Surveyor by way of 4 letters asking to furnish the documents as many as 9 in number and the complainant seeking time on the premise that the same are in the process and on the other had expecting early carrying out the exercising this regard.
The final reminder dated 17.12.2007 has been duly addressed to the complainant having been sent by the said surveyor asking the same documents which were already to be furnished vide its earlier letter dated 18.6.2007, 20.8.2007 and 22.9.2007 under copy to the answering opposite party and this time the date of 27.12.2007 has been fixed so that the surveyor report could be submitted in the office but getting no reply to it, it has been thought proper in the interest of the complainant to sent a final reminder again on 14.3.2008 reiterating the same contents in the same manner and in fashion and since the surveyor has failed as such in such a compelling circumstances the said surveyor has submitted the status report dated 15.3.2008 to the answering opposite partyindicating all the state of affair that no document having been submitted by the complainant even after the various letters and reminders having been made on phone thereafter the Branch Manager of the answering opposite party has written letter dated 17.3.2008 duly addressed to the complainant making the reference of the status report dated 15.3.2008 and requested to provide the relevant documents to the loss assessor at the earlier to enable him to complete his assignment. The said surveyor Sri Yogendra Kumar again written the final reminders dated 15.4.2008 and 22.5.2008 and has gone to the extent of demeaning the word ‘final’ as a number of time the final reminders have been sent by the said surveyor to the complainant under copy to the answering opposite party but it was the complainant who did not bothered to respond even the various letters/reminders having been written by the said surveyor in the discharge of its assigned duties and as a last resort having no other option the said surveyor Sri Yogendra Kumar submitted his surveyor report dated 14.6.2008 touching each and every issue and it the observation so made by him substantiating the various letters/reminders and the telephonic conversation the complainant has not submitted any documents justifying the claim and hence opined to declared the same as ‘no claim’.
The complainant has submitted the fire claim form on 19.6.2008 for the alleged loss having been caused on or about 1.30 to 2.00 p.m. on 19th of May, 2007 and indicating and not annexing any of the document supporting the content of the claim form and alongwith it he has also sent a letter to the
said surveyor Sri Yogendra Kumar on 19.6.2008 itself with the heading of ‘compensation in regard to the loss caused by storm’ and further elaborated and making the reference of the reminder dated 15.4.2008, meaning thereby after a gap of 2 months 4 days and pursuant to this letter he has mentioned that he is submitting the claim form and the documents in regard to the substantiate the claim bill, project report, the photocopy of the application sent to the Tehsildar Sadar, layout plan of the factory and the valuation report and the stock statement of the last 4 months and has expected that the said surveyor would be in agreement with the documents made available for the purposes of disposal of its claim at an early date and if something more additionally required in that case kindly let it know.
The said surveyor Sri Yogendra Kumar has been pressed into service and he has again send the final reminders dated 5.7.2008 and 11.7.2008 and the complainant has been required to get the claim form filled for building for building repairs, report of metrological department or SDM report about this loss caused to storm etc. in the factory area, valuation form the registered/Govt. approved valuer, statement of owner/manager giving details of incidents and the copy of FIR and the newspaper cutting etc.
The New India Assurance Co. Ltd. has finally sent a letter dated 12.7.2008 under the registered post to the complainant with reference: damage to factory building, indicating therein further “The above case Mr. Yogendra Kumar, Surveyor have been deputed for assessment of the loss. We are in receipt of his letter Ref:Y.K./R-75/2008 dated 5.7.2008. Wherein he has stated that despite of repeated reminders the required documents have not submitted by you as a result of which he is unable to complete his assignment. If you are fail to provide the relevant documents within 15 days it would be presumed you are not interested in the claim we will left no option but to treat it as ‘No Claim’. This is called the generosity and a pious feeling to serve its valued customer. And from this letter itself which has been written after a gap of one year two months and three days of the alleged loss, the answering opposite party even keeping its door open for 15 days to get your problems resolved once for all. The letter dated 18.5.2007 which have been alleged to have been annexed and in this letter alone have mentioned the figure of Rs.11,23,550.00 for repairing the factory building and a sum of Rs.14,00,330.00 for repairing of plant & machinery, there are only the contents of letter but nothing in regard to its physical sense having been made available or submitted by the complainant at no point in time.
The opposite party has informed the complainant vide its letter dated 21.3.2009, in reply of the letter dated 5.3.2009 which has been sent by the complainant, communicating that claim of the complainant has already been closed as ‘No Claim’, as you have failed to submit the required and warranted papers and documents. But again the generosity having been exhibited by the answering opposite party that in view of the letter dated 5.3.2009 the matter is being again referred to Mr. Yogendra Kumar for further investigation and has comments/ remarks with the hope that this time the complainant will cooperate with the said investigator.
It is thus, established beyond any doubt that the complainant was not having any cogent, clinching and impeachable piece of evidence, to substantiate the claim and its entitlement over it, mare reducing the story concocted in nature in writing cannot confer the right being entitled for getting the legitimate.
We have heard the learned counselSri V.S. Bisaria, for the complainant and Sri B.P. Dubey, Advocate for the opposite parties. We have also perused the pleadings, evidence and documents on record .
In this case the complainant has stated that due to heavy rains and storm at Lucknow on 09 May 2007, he suffered heavy damages towards factory buildings and machinery. According to the complainant, he informed the opposite party no 1 on the same day. It is also alleged that the opposite party has appointed the surveyor who visited the spot on 11th May 2007. Thereafter he wrote many letters to the complainant for furnishing the required documents for the settlement of claim. As per complainants averment he submitted all the documents on 05 March 2009 . What does it mean? You have informed the opposite party on 11th May 2007 and you are submitting your documents in March 2009 . No explanation of this delay has been furnished by the complainant. If the complainant was really suffered, he had a duty to inform the opposite party with all the facts and figures showing his loss amounting to about ₹ 25 lakhs. The complainant after informing the opposite party on 11 May 2007 went asleep and woke up in March 2009. The appointed surveyor has sent many letters to the complainant for furnishing the required documents but the complainant did not submit any document in time.
In Consumer Protection Act, time is the essence of this act whether it is related to file the complaint, or to file the appeal, or to file the written statement. If you are careless to such an extent why should the act will come for your rescue? The complainant again came into action in 2009. Before that he did not care to provide any documents to the opposite party. We are of the Clearview that this is extreme carelessness on the part of the complainant and complainant himself has admitted in his complaint that on 5 March 2009 he submitted the document to the opposite party. The opposite party on 12 July 2008 has repudiated his claim. So many reminders have been sent by the opposite party to the complainant but the complainant did not think it proper to inform the opposite party or to see the OP and put his version. The law is not for the sleeping person. The opposite party/surveyor wide its letter dated 24 July 2009 has informed the complainant that your claim file has been closed as ‘ no claim’.
So in the circumstances we are of the view that complainant failed to prove his case and he was sleeping for such a long time and now in a spur of moment he sent the documents of the opposite parties but the claim has already been repudiated. The complaint case has no solid ground to be permitted it is liable to be dismissed.
ORDER
The complainant is dismissed with cost.
The stenographer is requested to upload this order on the Website of this Commission today itself.
Certified copy of this judgment be provided to the parties as per rules.
(Sushil Kumar) (Rajendra Singh)
Member Presiding Member
Judgment dated/typed signed by us and pronounced in the open court. Consign to Record Room .
(Sushil Kumar) (Rajendra Singh)
Member Presiding Member
Dated April 11 , 2022
Jafri, PA II
Court 2
