PER BHARATKUMAR PANDYA, MEMBER 1. This appeal arises from order of the Chhattisgarh Consumer Disputes Redressal Commission (State Commission) dated 21.04.2014. The State Commission dismissed the Consumer Complaint 19/2011 holding that there is no merit in the complaint. The complaint before the State Commission involved an insurance claim under Standard Fire and Special Peril (SFSP) policy issued by the appellant. The complainant claimed to have suffered loss due to damage of stocks on account of flooding/inundation of godown. The State Commission dismissing the complaint observing as under: 29. In this case it seems that complainant has not obeyed the terms and conditions of the insurance policy. The complainant has tried to say that he has sent the claim form to OP No. 1 but no surveyor was appointed. As it has been stated above that OP No. 1 has appointed OP No. 2 as surveyor but the surveyor has not inspected the spot and from the report of the Sourabh Shukla it is clear that the complainant has not proved that there was 3 to 4 feet water in the godown for which the goods were damage and which was thrown in the Nala by complainant 30. On the basis of above discussion the complainant has been totally failed to prove that the flood water has been entered in the godown for 3 to 4 feet and because of that the complainant has suffered loss. There is no evidence regarding the loss due to flood and the OPs has produced the evidence that Shri S.K. Kesharwani went for survey and he was stop from doing the survey in this way the loss was not calculated and for this complainant himself is responsible. Therefore the complainant is not entitled for any relief and complaint is liable to be dismissed. 2. The same has been challenged by the appellant by raising the following main contentions: (1) That the order passed by the State Commission is devoid of law as State Commission has not perused the documents and affidavit filed by the complainant properly and therefore is liable to be set aside. (2) That there was heavy rain from 13.07.2009 to 15.07.2009 and rain water entered into the factory thereby damaging the stocks of the complainant due to which complainant suffered heavy losses. (3) That the intimation of the incident was given in writing on 15.07.2009 to the opposite party but no spot surveyor was appointed and State Commission overlooked this important fact. (4) That OP insurer did not appoint any surveyor to assess the loss suffered by the complainant and thereby violated the guidelines issued by the IRDA regarding appointment of surveyor. (5) That after 9 days of the incident, surveyor was sent by the insurer and surveyor was not having any order of his appointment from the insurance company. (6) That State Commission overlooked the important fact that surveyor could have brought his order of appointment given to him by the insurer and instead gave findings which are erroneous and not according to law. As surveyor was appointed after 48 hours of the incident, no calculation was done regarding the loss suffered by the complainant. (7) That the request of the complainant to appoint surveyor, who can assess the loss and the amount of claim be paid accordingly, was overlooked by the State Commission. (8) That State Commission overlooked the fact that surveyor has to be appointed within 48 hours and due to appointment of surveyor at latter stage no calculation could be done regarding the loss suffered by the complainant. (9) That complainant submitted his claim form along with all the documents but State Commission overlooked this fact and passed an illegal order which is not maintainable and deserves to be set aside. (10) That complainant filed all the proofs regarding damage of products due to heavy rain but State Commission totally ignored all these facts. (11) That cross examination of the surveyor, Branch Manager and Investigator cleared that they had not performed their duty as per the guidelines of IRDA and State Commission gave its observations against the norms of law. (12) That investigator went to the factory of the complainant after many days of the incident and State Commission’s finding regarding the level of the water is erroneous. (13) That the finding of the State Commission that complainant has not allowed the surveyor to inspect the spot, is against the insurance Act and against the norms of law. 3. We have heard the learned counsel for the parties and perused the records carefully. Insurance Co. has filed its short synopsis of arguments. 4. It has been contended by the Insurance Company that as per the complaint due to heavy rain in the Raipur city from 13.07.2009 to 15.07.2009, appellant suffered huge losses as it was a flood like situation. But when on 24.07.2009 insurer sent its surveyor to assess the loss, the appellant did not allow him to inspect the premises. As per insurance company, appellant knowingly created the obstruction so that size and type of godown, real water level, proof regarding the quantity of goods available and damaged, sale and purchase registers, builty, receipt, challan, stock register, damaged goods and its chemical test, debris, difference of the weight of the wet goods and dry goods, etc. could not be assessed or known or ascertained. Appellant discarded the goods in the Rawabhata Nala and that too without intimating the insured and without inspection by the surveyor. Since surveyor was not allowed to inspect the premises, the assessment of loss of goods turned out to be zero. No claim could be culled out as no goods or debris could be assessed. A highly exaggerated and unsubstantiated claim of loss suffered was made in order to obtain huge money but neither the proof of debris nor the proof of material which was lost, was given. OP insurer again requested the appellant on 04.08.2009 as also on 06.08.2009 to give them an opportunity to inspect their premises so that exact loss could be assessed but no such permission was granted. As neither the surveyor was allowed to inspect premises of the appellant nor any evidence was produced to substantiate that flood water entered the godown and water was up to the height of 3 - 4 feet, the claim for Rs.48 lakhs appears to be false, baseless and frivolous. As per the report of Mr. Sourabh Shukla, investigator, rain water which gathered between 13.07.2009 to 15.07.2009 was only one feet and the same was taken out immediately, Moreover, no proof or photographs regarding the damage of goods due to water in the godown were produced. Surveyor visited the premises of the appellant thrice but he was not allowed to enter the premises to assess the actual loss suffered by the appellant. Thus, it was pleaded that the State Commission rightly dismissed the complaint. 5. It is further contended by the appellant that due to continuous rainfall from 13.07.2009 to 15.07.2009 flood water entered in the factory and damaged various stocks kept therein leading to a loss of Rs.48 lakhs. Appellant immediately informed the insurance company on 15.07.2009. No spot surveyor was immediately sent by the insurance company. On 24.07.2009 one surveyor came but as he could not produce any appointment order from the insurance company, he returned back to bring the same. The wet stock kept in the godown was creating problem to the nearby residing people and, therefore, the same was to be thrown by the appellant in the Rawabhata Nala. Then on 27.07.2009, OP 2 surveyor came to the factory of the appellant but without doing any survey he went from the factory. On 04.08.2009, appellant wrote a letter to OP 1, who sent the claim form to the appellant on the same day, which was filled by the appellant and submitted to OP 1 on the very same day. Insurer appointed Mr. Sourabh Shukla, Advocate as Investigator to inspect the factory of the appellant. Investigator conducted inspection of the factory and asked questions in the form of questionaries, which were replied by the appellant. On 24.03.2010 OP insurer intimated the appellant they are repudiating their claim and are closing the same as “No claim”. Being aggrieved, appellant filed a complaint before the State Commission for deficiency in service and unfair trade practice. 6. We have gone through the impugned order as also the evidence on record. Many of the facts of the case as discussed by the State Commission appears to be indisputable. From various letters i.e. dated 04.08.2009 (page 114 of the complaint), dated 06.08.2009 (page 115 of the complaint) and letter dated 07.08.2009 (page 116 of the complaint) written by the insurance company to the appellant, it is very clear that appellant did not allow the surveyor Mr. S.K. Kesarwani to inspect and assess the loss. On 04.08.2009 surveyor visited appellant’s godown with appointment, but neither was he allowed inspection and to assess the loss nor was he given entry into the premises. Vide letter dated 21.08.2009, insurance company deputed Mr. Saurabh Shukla, Advocate as investigator to conduct inspection of the premises of appellant and to submit his investigation report along with relevant documents in support thereof. Investigator submitted his report on 18.02.2010, which is annexed at page no. 204 of the complaint. As per investigation report, statements of various nearby working persons were obtained e.g. Fulasram Sahu (servicing the vehicles), Salma Bai Khan (Tea stall owner), Ramesh Patel (Director, Umiya Board Mill), Amatlal Pandey (Manager, Harish Petrol Pump), Owner of Bihari Tea Stall and Buddha Restaurant and various labourers at Bhanpuri and Rawabhatha. But none of them confirmed about the heavy rainfall between 13.07.2009 to 15.07.2009 and gathering of 3 to 4 feet water or dumping of any material in the Nala. Appellant stated that damaged goods were loaded on a Truck No. CG-04-4359 and thrown at the Nala by the driver named Pramod Mene. An affidavit of the said driver was submitted but a complete inability was shown in respect of license of the driver. However, the report of the investigator states that only one feet water was recorded to be gathered due to rainfall around the area where the godown of appellant is situated. Moreover, on observation of the wall condition it was found that there were no water marks to indicate or prove the level of water gathered in the godown to be between 3 to 4 feet height, though in genuine cases, if the water did accumulate and stayed in godown premises, such marks on the wall are to be expected. 7. During investigation of the appellant’s godown an electric meter and a 6-inch high cement strip was found inside and outside the warehouse. Electric meter was installed at the height of 2 feet inside the warehouse. Still, however, there were no signs of water being filled anywhere on the walls of the said place, which could prove the facts relating to appellant’s statement that water was filled in the warehouse upto the height of 4 feet. 8. Also it has been stated in the order of the State Commission that the proof of heavy rain during the alleged period of incident was very crucial and it was the duty of the appellant to file certificate of the Met Department to prove that actually there was a heavy rain on those particular dates, which was not done. State Commission in its impugned order has dismissed the complaint of the complainant by categorically observing that the complainant/appellant did not obey or honour the terms and conditions of the insurance policy. Insurance company appointed its surveyor who was not allowed to inspect the spot. Report of the investigator clearly indicates that complainant has not proved that there was 3 to 4 feet water in the godown or that the alleged loss occurred due to such water-logging. There is no evidence regarding the fact or the quantum of loss due to flood and surveyor could not assess or calculate the loss and for this appellant himself is responsible. State Commission has also very rightly stated that complainant/appellant in any condition cannot destroy or dispose off the damaged goods until the permission is given by the insurance company. The appellant has not filed any affidavit of the employee or driver of the truck to prove that damaged stock was thrown away and nor there is any affidavit of the person living nearby, nor has he filed any evidence on the basis of which it can be proved that in the godown there was water up to 3 to 4 feet and consequently a particular quantity of goods were damaged. 9. The paramount fact established on record is that there is complete and palpable failure of the insured in establishing the cause and quantum of alleged loss. There is no plausible explanation for or credible evidence of the disposal of damaged goods. It is the obligation of the Insured to provide effective and full assistance and facilitation to the Insurer in assessing the alleged loss and in investigating the genuineness of the cause and quantum of loss. We therefore find that the State Commission has arrived at its decision on the basis of relevant facts and evidence on record. There is no illegality, infirmity of perversity in the findings given by, and in the decision arrived at by, the State Commission. The Complaint having been rightly dismissed, the appeal too deserves to be dismissed. The appeal is accordingly dismissed. O R D E R In view of the aforesaid discussion, the appeal is dismissed. | 
No comments:
Post a Comment