NARENDRA KUMAR LAXMAN BHAI SAVsANI vs National Insurance Company

THE complainant is a partnership firm and doing cotton business. THE complainant had insured his cotton with the opposite party and the policy for Rs. 9,90,000/- was issued in favour of the complainant. It appears that during the continuance of the policy on or about 5.6.1992 to 12.6.1992 there was heavy rain with cyclone and on that account the cotton which was lying in the factory compound was severely damaged. According to the complainant the damage was due to flood, inundation caused by heavy rains. THE Insurance Company was informed on 9.6.1989 and was invited to see and survey the damages. THE Surveyor of the Company visited the premises on 13.8.1989 (it must be.13.6.1989) when the collected water had already dispensed. THE factory is situated near Manavadar station. Similarly the goods which were stored in another nearby Ginning Factory viz. Krishna Ginning Factory suffered same type of damages and the opposite party National Insurance Company has alleged to have paid the claim. However, the claim of the complainant, though on the same lines has not been paid by the Insurance Company and the complainant is thereby discriminated. THE complainant has therefore claimed Rs. 3,91,000/- for the damages with interest and cost.

THE Insurance Company has resisted the claim of the complainant and has also alleged that the damage by rain water is not covered under the policy. THEre were several misrepresentations and the demand made by the complainant is exorbitant etc. Mr. Mehta, the learned Advocate appearing on behalf of the Insurance Company has produced a copy of the survey report which was made in presence of the complainant and according to Mr. Mehta the complainant has also agreed to the extent of damage which according to Mr. Mehta was 15%. Mr. Mehta further relies upon the letter dated 9.6.1989 written by the complainant wherein the complainant himself has stated that the damage is approximately Rs. 1,50,000/- and requested the Insurance Company to carry out the survey. Mr. Mehta draws our attention to the copy of the letter dated 13.6.1989 produced by the complainant (in Gujarati). The relevant portion reads as under : "That big heap of cotton was covered by tarpaulin. Another small heap of cotton was partly cohered and a small heap of cotton was not covered. There was heavy rain on 10th and 11th which was about 15 to 20 inch and there was heavy wind. The water had collected outside the compound wall also but on account of good luck the water has not flown into the factory compound."

According to Mr. Mehta, the water which might have collected outside might not have entered the compound but the goods might have been spoiled on account of rain water. The last portion of the letter (in Gujarati) which reproduces the damage also being important is reproduced as under : "That the cotton worth Rs. 3,19,000/- was stored in the compound and on account of this about 15% damage has occurred."

According to Mr. Mehta even the complainant has demanded 15% which also shows that the Surveyor has assessed the damages on agreement of the party.

In the survey report dated 23.8.1989 the Surveyor has under the caption. The Loss and Damage has stated as under : Due to heavy rains, insured entire stock of kapas whilst stored lying in the compound was highly soiled/damaged. Insured furnished us their estimate of loss and damage. We verified the same and after discussions, the amount of loss was worked out as per the details given hereunder : Allowance at 15% towards damage Rs. 58,650/- Amount of loss Rs. 58,650/- (Agreed to by the Insured)

WE are, therefore, of the opinion that even if the complainant proves his case that the damage has occurred on account of inundation, storm, cyclone etc., the damage shall not exceed 15% which appears to have been agreed by the complainant himself. Mr. Mehta has faintly argued that the company is not liable for the damages but he could not deny that the Company has not paid for the same type of damages of Krishna Ginning Factory which was adjacent to the complainant''s factory. It may also be remembered that the Insurance Company is a state within the meaning of Article 12 of the Constitution of India; when both the parties are in same position, the Insurance Company should not make and discrimination. The survey report also does not point out that the goods have not been damaged due to inundation, cyclone, storm etc. We are therefore of the opinion that the complainant is entitled at least to the damage of Rs. 58,650/- as assessed by the surveyor. We, therefore, award Rs. 58,650/- as damages due to inundation, storm and cyclone to the goods of the complainant as assessed by the surveyor. The complainant has not produced any other evidence and, therefore, we are inclined to take this figure which appears to us agreed by the complainant also.

SINCE the amount has not been paid though the same was demanded, the Insurance Company is liable to pay the interest at least @ 12% p.a. SINCE the complainant has not remained present, we are not awarding any cost. The survey report is taken on record. ORDER The opposite party the National Insurance Company Limited shall pay Rs. 58,650/- with running interest @ 12% after three months from the date of survey i.e. from 13.9.89 till the payment is made. In the circumstances there will be no order as to costs. Complaint allowed.