DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, BARNALA, CAMP COURT, AT AMRITSAR, PUNJAB.

Complaint Case No : RBT/CC/431/2022.

Date of Institution   : 15.01.2018/29.11.2021.

Date of Decision    : 20.06.2022.

 

1.M/s Omkar Processors carrying on its business at Gali Banke Bihari, Batala Road, Amritsar, through its partner Manmohanjit Singh S/o Sh. Harbans Singh resident of 321, Green Avenue, Amritsar.

2.Manmohanjit Singh S/o Sh. Harbans Singh partner of M/s Omkar  Processors carrying on its business at Gali Banke Bihari, Batala Road, Amritsar. 

                 …Complainant Versus

New India Assurance Company through its Divisional Manager, Amritsar Division, 80, Court Road, Divisional Office, Amritsar.  

                  …Opposite Party

 

Complaint Under Section 11 & 12 of Consumer Protection Act, 1986. As Amended Upto Date.

Present: Sh. Naresh Maini Adv counsel for complainant.

Sh. Sanjay Kapoor Adv counsel for opposite party.

Quorum:-

1. Sh. Ashish Kumar Grover : President

2.Smt. Urmila Kumari : Member

 

(ORDER BY ASHISH KUMAR GROVER, PRESIDENT):

1. The present complaint has been received by transfer from District Consumer Commission, Amritsar in compliance of the order dated 26.11.2021 of the Hon'ble State Consumer Disputes Redressal Commission, Punjab, Chandigarh. The complainant has filed the present complaint Under Section 11 & 12 of the Consumer Protection Act, 1986 (as amended upto date) against the New India Assurance Company (hereinafter referred as opposite party)

2. Brief facts of the case are that the complainant is a partnership firm and Sh. Manmohanjit Singh is the active and registered partner of complainant firm. It is alleged that the complainant purchased one policy No. 36050011150100000277 and has been paying the regular premium of Rs. 15,618/- and the policy indemnify the machine in question. The complainant is running a processing unit and they have installed processing unit in their premises as mentioned in head note and they have installed a processing unit stenter machine of make Harish Enterprises i.e. the machine which is indemnified under said policy. The said unit/panel consist of various drives and all the drives are fitted in one panel box measuring 8ftx13ft having 15 different drives fitted in the said panel box to compact and save various wires, MCB, Kitkat and drives and for smooth working as they are connected with the machine and they are working independently as the said drives are fitted into a single panel for the purpose of safety as well as for the purpose of saving the space. All the drivers are separately connected with their own MCB and CHOKES from the main supply. 

3. It is further alleged that on 29.5.2016 unfortunately there was a fire breakout in one of the MCB due to short circuit which destroyed the Kitkat and caused fire to the drive (takeoff role) and as a result the fire further broke out resulting in burning and destroying the other derives of the other motors without destroying the other MCB and Kitkat. The intimation regarding said fire breakout was given by the complainant to opposite party and a claim No. 36050111601900000002 was issued to the complainant. On 27.10.2016 the complainant received a letter whereby the opposite party relying upon incorrect and bogus report of Mr. Raman Kumar Khanna who refused to accept the claim of the complainant as being no “claim”. The complainant sent replied the said letter on 7.12.2016. The opposite party further intimated the complainant that the date was wrongly mentioned on the letter as 27.9.2016 further clarifying that the report of the surveyor was submitted on 4.10.2016 but the opposite party already made its mind to reject the claim of the complainant. The complainant further on 23.12.2016 submitted reply to letter dated 13.12.2016 that report of the surveyor R.K. Khanna is a bogus.  It is further alleged that the complainant also furnished a report dated 22.12.2016 of Deepak Sharma and report dated 27.1.2017 of Rajesh Sahu authorized engineer of company M/s Harish Enterprise which clearly reflects that there was 9 drives which were damaged due to Fire breakout. The opposite party vide letter dated 6.1.2017 has admitted the fact that although due to short circuit in one A/C drive has caused damaged to the other drives but they refused to accept the claim of the complainant. Thereafter, vide letters dated 11.1.2017, 27.3.2017 and 12.4.2017 the complainant remained requested the opposite party to settle the claim, but of no use. The cost of the said 9 drives was Rs. 2,83,153/- and a sum of Rs. 30,500/- was also paid by the complainant as labour for the re-installation for the said drives. Ultimately the complainant again vide letter and e-mail dated 2.5.2017 requested the Higher Authorities to have a personal visit. The official of opposite party vide email dated 3.5.2017 assured the complainant that they will depute another surveyor, but the same was never done. Due to the above said act of the opposite party the complainant suffered mental agony and harassment which amounts to deficiency in service and unfair trade practice on the part of opposite party. Hence, the present complaint is filed for seeking the following reliefs.- 

i)To pay a sum of Rs. 3,13,653/- being the amounts of insurance payable/claimed under the aforementioned insurance policy alongwith interest @ 18% per annum.

ii)To pay Rs. 50,000/- as compensation for mental agony and harassment.  

4. Upon notice of this complaint, the opposite party appeared and filed written version by taking preliminary objections interalia on the grounds that the present complaint is not maintainable as the alleged machinery was used for commercial purpose, not come with clean hands, no locus-standi and cause of action, act and conduct etc. It is further alleged that this type of loss is covered under MACHINERY BREAKDOWN INSURANCE POLICY and not under Fire Policy and since complainant has produced fire policy and this type of claim are not payable under fire policy and this loss falls within the general exclusion No. 7 of the policy. On merits, it is submitted that the complainant purchased standard fire and special perils policy from 22.2.2016 to 21.2.2017 and the complainant is not a consumer as defined under the Act because this policy has been purchased and used for commercial purpose. After receiving information the opposite party deputed Mr. R.K. Khanna the surveyor and loss assessor and as per the surveyor report the alleged loss falls within exclusion No. 7 of the policy and the control panel which was burnt due to voltage fluctuation. It is denied that due to short circuit in one A/C drive has caused damaged to the other drives as alleged. It is denied that cost of the alleged 9 drives was Rs. 2,83,153/- and a sum of Rs. 30,000/- was also paid by the complainant as labour charges. All other allegations of the complaint are denied and prayed for the dismissal of complaint. 

5. The complainant also filed rejoinder to the written version filed by the opposite party and denied the averments made in the written version. 

6. In support of his case the complainant tendered into evidence his own affidavit Ex.C1 alongwith documents Ex.C-2 to Ex.C-49, copy of certificate Ex.C-50, affidavit of complainant Ex.C-51 and closed the evidence.  

7. On the other hand, to rebut the case of the complainant the opposite party tendered into evidence affidavit of Sh. S.K. Sharma Sr. Divisional Manager Ex.O.P1, copy of insurance policy Ex.O.P2, terms and conditions Ex.O.P3, copy of report of surveyor and loss assessor Ex.O.P4, copy of photographs Ex.O.P5 to Ex.O.P13, copy of letter dated 27.9.2016/26/10.2016 Ex.O.P14, copy of letter of the surveyor dated 4.10.2016 Ex.O.P15, copy of letter dated 1.12.2017 Ex.O.P16, copy of letter dated 13.12.2016 Ex.O.P17, copy of letter dated 6.1.2017 Ex.O.P18 and closed the evidence.     

8. We have heard the Ld. Counsel for the parties and have gone through the documents placed on record by the parties.   

9. Ld. Counsel for the complainant argued that the complainant purchased one policy bearing No. 36050011150100000277 and has been paying the regular premium of Rs. 15,618/- and the policy indemnify the machine in question. Ld. Couns for complainant also argued that the complainant is running a processing unit and they have installed a processing unit stenter machine of make Harish Enterprises i.e. the machine which is indemnified under the above said policy and the said unit/panel consist of various drives and all the drives are fitted in one panel box measuring 8ftx13ft having 15 different drives fitted in the said panel box to compact and save various wires, MCB, Kitkat and all the drivers are separately connected with their own MCB and CHOKES from the main supply. Ld. Counsel for complainant further argued that unfortunately on 29.5.2016 there was a fire breakout in one of the MCB due to short circuit which destroyed the Kitkat and caused fire to the drive (takeoff role) and as a result the fire further broke out resulting in burning and destroying the other derives of the other motors without destroying the other MCB and Kitkat and the intimation regarding said fire breakout was given by the complainant to opposite party and a claim No. 36050111601900000002 was issued to the complainant by the opposite party. Ld. Counsel for complainant also argued that on 27.10.2016 the complainant received a letter whereby the opposite party refused to accept the claim of the complainant as being no “claim”. It is further argued by the Ld. Counsel for complainant that the complainant also furnished a report dated 22.12.2016 of Deepak Sharma and report dated 27.1.2017 of Rajesh Sahu authorized Engineers of company M/s Harish Enterprise which clearly reflects that there was 9 drives which were damaged due to Fire breakout. Ld. Counsel for complainant also argued that the cost of the said 9 drives was Rs. 2,83,153/- and a sum of Rs. 30,500/- was also paid by the complainant as labour for the re-installation for the said drives and the complainant vide letter and e-mail dated 2.5.2017 requested the Higher Authorities to have a personal visit and the official of opposite party vide email dated 3.5.2017 assured the complainant that they will depute another surveyor, but nothing has been done in this regard. 

10. Ld. Counsel for opposite party argued that this type of loss is covered under 'MACHINERY BREAKDOWN INSURANCE POLICY' and not under Fire Policy and the complainant has produced fire policy and this type of claim are not payable under fire policy and this loss falls within the general exclusion No. 7 of the policy. Ld. Counsel for opposite party also argued that the complainant purchased standard fire and special perils policy from 22.2.2016 to 21.2.2017. It is further argued by the Ld. Counsel for opposite party that after receiving information from the complainant the opposite party deputed Mr. R.K. Khanna the surveyor and loss assessor and as per the surveyor report the alleged loss falls within exclusion No. 7 of the policy and the control panel which was burnt due to voltage fluctuation and it is not occurred due to short circuit in one A/C drive which has caused damaged to the other drives. It is further argued by the Ld. Counsel for opposite party that the insured had not been able to provide any evidence to prove that the complainant had taken reasonable care of the short circuit, so the opposite party was not liable for the said indemnification. Ld. Counsel for opposite party argued that complainant has not produced any evidence to prove that the cost of 9 drives are Rs. 2,83,153/-. 

11. The main point in controversy before us is that whether the claim in question was payable (under the policy) due to the alleged incident of short circuiting or not. It is mentioned in the complaint that there was a fire breakout in one of the MCB due to short circuit which destroyed the Kitkat and caused fire to the drive and destroying the other derives of the other motors without destroying the other MCB and Kitkat. On the other hand, as per written version filed by the opposite party the control panel was burnt due to voltage fluctuation, as such the cause of damage is not attributable to an insured peril. The opposite party has also taken the stand that any damage on account of short circuit is a specific exclusion under clause 7 of the General Exclusion of the standard fire and the complainant has not been able to advance any reason for controverting the said version of the opposite party. Therefore, the opposite party has rightly repudiated the claim of the complainant based on on the exclusion clause. The opposite party also placed on record the report of Surveyor & Loss Assessor Mr. Raman Kumar Khanna B.E. (Electrical) Ex.O.P4 who inspected the spot and submit his report which is as under:-

“I went to the insured & inspected the Control Panel which was burnt due to voltage fluctuation. I inspected the “Harish” make Control Panel in which various types of AC Drives were fitted. Out of all the Drives; one Drive got fully shorted & flame produced which completely burnt & short circuiting current passed through other Drives also & burnt all Drives fitted I/S the “Harish” Control Panel. This type of loss is covered under Machinery Breakdown Insurance Policy & not in Fire Policy. Since insured has produced Fire Policy I/S of Machinery Breakdown Insurance Policy of this Machinery & this type of claim are not payable under “Fire Policy”. This loss falls within the general exclusion No. 7 of the Policy. Total nine different snaps were arranged to cover the loss. Hence, the claim may be filed as NO CLAIM”.

Ld. Counsel for the opposite party argued that the above mentioned Surveyor is qualified to submit the report and the complainant failed to rebut the same. The opposite party to prove that the above said claim is not payable under the Fire Policy and the same falls under Machinery Breakdown Insurance Policy has placed on record Ex.O.P3 General Exclusion Clause No. 7 which is as under;-

“Loss, destruction or damage to any electrical machine, apparatus, fixture, or fitting arising from or occasioned by over-running, excessive pressure, short circuiting, arcing, self heating or leakage of electricity from whatever causes (lighting included) provided that this exclusion shall apply only to the particular electrical machine, apparatus, fixtures or fittings so affected and not to other machine, apparatus, fixtures or fittings which may be destroyed or damaged by fire so set up”

The similar view has been taken by the Hon'ble National Consumer Disputes Redressal Commission, New Delhi, 2016(4) CLT 456 vide which it is held that;-

“Question as to whether the claim in question was payable due to the alleged incident or short-circuiting etc. It is mentioned in the complaint itself, the control panel outside the chamber and starter switch inside the chamber were burnt, but the damage at both the locations were confined within the control board and switch and it did not spread out of the control board or switch. As per the version of the Insurance Company, the short-circuit did not lead to fire and thus, the cause of damage is not attributable to an insured peril. Insurance Company has also taken the stand that any damage on account of 'short circuit' is a specific exclusion under Clause 7 of the General Exclusion of the Standard Fire and Special Perils Policy and as such, any claim on the basis of the same was not maintainable. Moreover, the complainants have not been able to advance any reason for controverting the said version of Insurance Company. Hence, Insurance Company rightly repudiated the claim of the complainants based on the exclusion clause. Appeal dismissed”.

12. In view of the above discussion and law laid down by the Hon'ble National Commission, New Delhi, we do not find any merits in the present complaint and the same is dismissed without cost. Copy of the order will be supplied to the parties free of costs by the District Consumer Commission, Amritsar as per rules. File be sent back to District Consumer Commission, Amritsar. 

ANNOUNCED IN THE OPEN COMMISSION:

       20th Day of June, 2022

 

 

            (Ashish Kumar Grover)

            President             

 

(Urmila Kumari)

Member