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Judgment
Heard Mr. Suresh Tripathy, counsel for the complainant and Mr. K.K. Bhat, Advocate, for the opposite parties.
M/s. Shree Ganesh Natural Fibres (the Insured) has filed above complaint has been filed for directing New India Assurance Company (opposite party) to pay Rs.47669567/- as insurance claim and any other relief, which is deemed fit and proper in the facts of the case.
The complainant stated that it was a registered partnership firm and engaged in the business of ginning cottons and manufacturing cotton bales from raw cotton. The complainant had 24 ginning machines and one cotton baling press machine at its factory premises situated at Pulgaon Road, Arvi, district Wardha, Maharashtra. Raw cotton and finished goods are stored in factory compound, in the sheds and open places both. The complainant obtained Standard Fire and Special Perils Policies mentioned below for total sum of Rs.95000000/-:-
Policy No. and Validity
Interest
Sum Insured
16060011160100000923
(Validity:28.10.16 to 27.10.17)
On the Stock of Kappas &/or Loose Cotton &/or F.P.Cotton Bales &/or Cotton Seed &/or etc property assured whilst stored &/or lying in anywhere in the compound &/or in Pala House &/or godown of insured factory situated at Pulgaon Road, Arv.
Rs.5000000/-
16060011160100001014
(Validity:22.11.16 to 20.06.17)
On the Stock of Kappas &/or Loose Cotton &/or F.P.Cotton Bales &/or Cotton Seed &/or etc property assured whilst stored &/or lying in anywhere in the compound &/or in Pala House &/or godown of insured factory situated at Pulgaon Road, Arv.
Rs.10000000/-
16060011160100001101
(Validity:05.12.16 to 30.06.17)
On the Stock of Kappas &/or Loose Cotton &/or F.P.Cotton Bales &/or Cotton Seed &/or etc property assured whilst stored &/or lying in anywhere in the compound &/or in Pala House &/or godown of insured factory situated at Pulgaon Road, Arv.
Rs.10000000/-
16060011160100001117
(Validity:09.12.16 to 30.06.10.17)
On the Stock of Kappas &/or Loose Cotton &/or F.P.Cotton Bales &/or Cotton Seed &/or etc property assured whilst stored &/or lying in anywhere in the compound &/or in Pala House &/or godown of insured factory situated at Pulgaon Road, Arv.
Rs.10000000/-
16060011160100001247
(Validity:12.01.17 to 30.05.17)
On the Stock of Kappas &/or Loose Cotton &/or F.P.Cotton Bales &/or Cotton Seed &/or etc property assured whilst stored &/or lying in anywhere in the compound &/or in Pala House &/or godown of insured factory situated at Pulgaon Road, Arv.
Rs.10000000/-
16060011160100001304
(Validity:20.01.17 to 30.06.17)
On the Stock of Kappas &/or Loose Cotton &/or F.P.Cotton Bales &/or Cotton Seed &/or etc property assured whilst stored &/or lying in anywhere in the compound &/or in Pala House &/or godown of insured factory situated at Pulgaon Road, Arv.
Rs.10000000/-
16060011160100001316
(Validity:24.01.17 to 01.06.17)
On the Stock of Kappas &/or Loose Cotton &/or F.P.Cotton Bales &/or Cotton Seed &/or etc property assured whilst stored &/or lying in anywhere in the compound &/or in Pala House &/or godown of insured factory situated at Pulgaon Road, Arv.
Rs.10000000/-
16060011160100001329
(Validity:27.01.17 to 30.04.17)
On the Stock of Kappas &/or Loose Cotton &/or F.P.Cotton Bales &/or Cotton Seed &/or etc property assured whilst stored &/or lying in anywhere in the compound &/or in Pala House &/or godown of insured factory situated at Pulgaon Road, Arv.
Rs.10000000/-
16060011160100001408
(Validity:13.02.17 to 31.03.17)
On the Stock of Kappas &/or Loose Cotton &/or F.P.Cotton Bales &/or Cotton Seed &/or etc property assured whilst stored &/or lying in anywhere in the compound &/or in Pala House &/or godown of insured factory situated at Pulgaon Road,Arv.
Rs.10000000/-
16060011160100001481
(Validity:22.02.17 to 31.03.17)
On the Stock of Kappas &/or Loose Cotton &/or F.P.Cotton Bales &/or Cotton Seed &/or etc property assured whilst stored &/or lying in anywhere in the compound &/or in Pala House &/or godown of insured factory situated at Pulgaon Road, Arv.
Rs.10000000/-
Total sum insured for stocks
Rs.95000000/-
In the intervening night of 14.03.2017/15.03.2017 at about 3:15 hours, the fire was broke out in the factory premises of the complainant. The workers of the complainant tried to control the fire, but it spread soon and took devastating nature. The management informed Fire Service Station from where the fire brigades were deputed on the spot and they could control the fire up to 16:00 hours of that day. Due to the fire and the water spread by the fire brigade, the stock of raw cotton and finished material, machinery, buildings etc. were damaged. The complainant intimated the incident as well as loss to the Insurer on 15.03.2017, on which the officers of the Insurer visited the factory premises on the same day. The Insurer appointed Mr. Navin Jain, Surveyor & Loss Assessor, Navi Mumbai, as the surveyor. The surveyor visited factory premises on 16.03.2017 and on subsequent dates. He prepared inventory and took the photographs. As desired by the surveyor, the complainant supplied all the material and evidence to surveyor for assessing the loss. The surveyor submitted Final Survey Report dated 12.07.2017, assessing the loss to Rs.37282123/-. A copy of the report was also supplied to the complainant. The complainant vide e-mail dated 01.09.2017 requested the Insurer to settle the claim in terms of the survey report. However, the complainant did not receive any response from the opposite party. Then several reminders were given vide e-mail dated 07.09.2017, 16.09.2017, 18.09.2017, 25.09.2017, 04.10.2017 and 09.10.2017 inasmuch as several reminders upto 05.01.2018, but the Insurer did not respond to any of the letters given by the complainant. Then this complaint was filed on 08.03.2018 claiming deficiency in service.
After filing of the complaint, the opposite party paid Rs.15000000/- to the complainant on 26.03.2018. The opposite party appointed J.C. Bhansali & Co., Pune as a second surveyor. The second surveyor also inspected the factory premises of the Insured and collected photographs and other papers. Second Surveyor submitted his report on 25.07.2018, in which, assessment of loss as done by previous surveyor has not been doubted in any manner. But for the reasons known to him an amount of Rs.1469266/- has been reduced from the assessment of loss. Thereafter, the Insurer sent an e-mail dated 10.04.2019, for releasing balance amount as per report dated 25.07.2018 with condition withdrawal of complaint, which was not accepted by the complainant.
The opposite parties filed their written reply on 18.05.2018, in which material facts have not been disputed. The opposite parties took plea that the complainant was a commercial unit as such the complaint is not maintainable. The Insurer has already paid Rs.15000000/- to the complainant. The opposite parties do not dispute that the surveyor in report dated 12.07.2017 assessed the loss to Rs.37282123/- and receipt of email dated 07.09.2017 from the complainant. The Insurer is not bound to abide by the surveyors report and entitled to apply its own mind and examine the record. While examining the papers relating to the claim and surveyor report some serious issues came in light, which need further probe and clarification. The complainant was called upon to discuss those issues and a joint meeting was held with the complainant, the surveyor and the competent authority of the Insurer. To resolve those issues, it was decided to depute an independent Charted Accountant. Accordingly Mr. J.C. Bhansali was deputed for examination of the papers and giving his opinion. The Insurer informed the Insured in respect of developments throughout. In order to mitigate any hardship Rs.15000000/- was released to the Insured on 26.03.2018. The claim of the Insured was under process and the complaint was pre-mature and no cause of action arose for the complaint. After receiving report of Mr. J.C. Bhansali dated 25.07.2018, the Insurer sent an e-mail dated 10.04.2019, for releasing balance amount as per report dated 25.07.2018 with condition withdrawal of complaint, which was not accepted by the complainant. The opposite parties are not liable to pay interest after 10.04.2019. The opposite parties stated that there is no unfair trade practice or deficiency in service.
The complainant filed Rejoinder Reply on 28.11.2018, in which the facts stated in the complaint were re-iterated. It has been stated that the contract of insurance is a contract of indemnity and not for any profit. The complainant filed Affidavit of Evidence of Dilip Agrawal. The opposite parties filed Affidavit of Evidence of Ms. Sharda Sharma and Mr. Navin Jain, the surveyor. The complainant filed written arguments.
We have considered the arguments of the counsel for the parties and examined the record. The opposite parties have stated that while examining the papers relating to the claim and surveyor report dated 12.07.2017, some serious issues came in light, which needed further probe and clarification. This is vague reason for taking second opinion on surveyor’s report. The opposite parties have not given any cogent reason for taking opinion on the report of the surveyor dated 12.07.2017. Mr. J.C. Bhansali, without assigning any reason, reduced Rs.1469266/- from the loss as assessed by the surveyor his report on 25.07.2018. Although Mr. J.C. Bhansali has reduced quantum of loss without any basis but the partner of the complainant, who was present in the Court on 14.09.2022 had agreed to accept that amount with interest as full and final settlement due to unreasonable delay. Therefore, the opposite parties will pay the amount as assessed in the report dated 25.07.2018.
On the basis of report dated 12.07.2017, the opposite party released Rs.15000000/- on 26.03.2018. Under Regulation 9 of Insurance Regulatory and Development Authority (Protection of Policyholder’s Interest) Regulations, 2002, six months maximum time from the date of report of loss has been provided to the Insurer to settle the claim. If it is not settled within that period, then the Insured is entitled to interest, 2% above the market rate of the interest. Loss has occurred on 15.03.2017. Six months expired on 15.9.2017. There is no allegation that the Insured caused delay in supplying evidence/papers.
The counsel for the opposite parties submitted that as the opposite parties, vide an e-mail dated 10.04.2019 had offered, for releasing balance amount as per report dated 25.07.2018 with condition withdrawal of complaint, which was not accepted by the complainant. The opposite parties are not liable to pay interest after 10.04.2019. We do not agree with this argument as the complainant was demanding the amount as assessed in report dated 12.07.2017, in the complaint and the opposite parties had put a condition for withdrawing the complaint. It was not a valid offer. Now due to unreasonable delay, the complainant agreed to accept lessor amount but did not waived claim of interest.
ORDER
In the result, the complaint is partly allowed with cost of Rs.50000/. The opposite parties are directed to pay Rs.35812857/- along with interest @9% per annum from 15.09.2017 till the date of payment, within two months from the date of this judgement. While making payment, the opposite party shall adjust the amount already paid and the interest after the date of payment on that amount.