B.A. Shaikh, Judicial Member:
1. This appeal is preferred by the original Opposite Party (for short OP) against the order dated 10/5/2010 passed in consumer complaint bearing CC No. 229/2009 by the District Forum, Yavatmal by which the complaint has been partly allowed.
2. The case of the complainant, as set out in the complaint, in brief is that he is an agriculturist and he owns agriculture land admeasuring 6 hactares and 59 Rs. and another admeasuring 2 hactare and 64 Rs at village Hivara. He personally cultivates the same. He had sown and cultivated cotton and Tur crop in the said lands during the year 2008-09. His both the said lands are duly irrigated. He harvested both the said crops. He got 22000 kgs of yield of raw cotton and 16000 kgs of Tur. He stored the same in his godown in the said land. He insured the said agricultural product by taking insurance policy from the OP for the period from 14/1/2009 to 17/7/2009 i.e. for a period of 7 months by paying requisite premium to the OP. The said agricultural product stored in the said godown caught fire during the midnight of 24/4/2009 and 25/4/2009 and it was totally burnt to ashes in that fire. The complainant lodged report of that incident with the police on 25/4/2009 and gave its intimation to the OP. Police prepared spot panchnama on 25/4/2009 and recorded statements of witnesses. The said incident of fire was also published in newspaper. The complainant sustained loss of Rs.12,13,000/- due to loss of the aforesaid cotton and tur under fire. He also sustained loss of Rs.1,50,000/- due to the damage caused to the godown in that fire. The surveyor Shri.K.R.Mahajan appointed by the OP paid visit to the said land of the complainant on 26/4/2009 and he inspected the same. He gave list of 11 documents to the complainant for supplying to him the same. The complainant supplied the said documents alongwith other documents to the said surveyor on 3/6/2009.However, at that time, the surveyor returned the map of that place, the claim form and the statement of the lost agricultural products and submitted that the map and the claim form be submitted later on, and assured that the complainant will get the compensation, if the complainant acts as per his advice. The complainant, then sent the same documents to the surveyor by courier also. The surveyor then demanded the documents namely map of the godown from Architect/Engineer, claim form alongwith list of burnt agricultural product, the bills of payment to labourers and seeds, electricity bill of motor pump, the income of the field and the bills of the agriculture product of last three years and accounts of the said income of the complainant during last three years. The surveyor demanded the documents afterthought as the complainant was unable to provide the same, for the reasons stated in the complaint. The OP avoided to settle the claim though complainant made request to it from time to time. Therefore, lastly, the complainant filed consumer complaint on 1/8/2009 and prayed that direction be given to the OP to pay him compensation of Rs.14,62,000/- with interest @12% p.a., towards loss sustained by him and further compensation of |Rs.5000/- towards mental harassment and cost of Rs.3500/-.
3. The OP resisted the complaint by filing written version. It is the case of the OP, in brief, that the complainant did not provide the necessary documents to the surveyor appointed by it for settlement of claim. It also submitted that the agriculture product of the complainant caught fire due to natural reason and as per terms and conditions of the policy if loss is caused due to natural fire, no compensation can be paid and, therefore, it is prayed that the complaint is liable to be dismissed.
4. The District Forum below, after hearing advocates of both the parties and considering evidence brought on record came to the conclusion that though the complainant wanted to submit in all 14 documents on 3/6/2008 to the surveyor Shri.Mahajan, he accepted only 11 documents and, therefore, the complainant sent all those documents by courier to him, which was received by him. Moreover, the Forum also found that the remaining documents which were not expected to be kept by the complainant, were demanded by the surveyor, and hence, non settlement of claim on that basis is not proper. The Forum also observed that in the policy, the area of the godown is mentioned and it is also mentioned that the raw cotton worth Rs.6 lacs and Tur worth Rs.6 lacs were insured by the complainant with the OP. The Forum also observed that the complainant in support of the complaint, filed copies of FIR, spot panchnama, 7/12 extract, newspaper clippings, certificates of Gram Panchayat of village Hiwara, and the panchnama prepared by Sarpanch of village Hiwara, and the photographs of the burnt godown showing the burnt agriculture product. The Forum also observed that the investigator Shri.S.U.Shah appointed by the OP also found in the enquiry that the godown of the complainant had caught fire during the midnight of 24/4/2009 and 25/4/2009. The Forum also considered the affidavits of two persons namely Narayanji Ramji Warange and Bondirao Dastrao Borudkar who also proved that the godown had caught fire during that night. Therefore the repudiation of the claim by the OP vide letter dated 21/8/2009 (during pendency of complaint) amounts to deficiency in service provided by the OP to the complainant. The Forum also observed that in that fire, 220 quintals of cotton and 160 bags of tur were burnt to ashes. The Forum, therefore, directed the OP to pay to the comp-lainant within 30 days of that order, compensation of Rs.11,07000/- with interest @6% p.a. from the date of complaint i.e. from 1/8/2009 till its full realization and in case of default, the said amount shall carry interest @9% p.a. from 1/8/2009 till its realization and also to pay him Rs.5000/- as compensation towards mental harassment and Rs.1500/- towards cost of complaint.
5. Feeling aggrieved by that order the OP has preferred this appeal.
We have heard advocates of both parties and perused the written notes of arguments and the documents filed by them.
6. The learned advocate of the appellant has drawn our attention to the exclusion clause in the policy and submitted that as the fire was occurred due to natural heating, the complainant is not entitled to compensation. He further submitted that material documents namely, map of spot, claim form and document for assessment of loss, bill of grains, expenses incurred for cultivation, last 3 years receipts about sell of grains and cotton, bills of seeds purchased and cotton sold in market, were not submitted by the complainant to the surveyor. Hence the complainant is not entitled to any compensation. She has relied upon observations made in the following cases.
i. Zoomin Aura Architectural signs pvt.ltd.Vs.New India assurance Co.Ltd., II (2008) CPJ 186 Union Terrotories CBRC Chandigarh. It is observed that surveyors are the best persons to assess the loss and the claim based on surveyors report to be awarded.
ii. M/s Hindustan Ferro Alloys Ltd. Vs.M/s oriental Insurance Co.ltd. and Ors.,II (1992) CPJ 457 (NC). It is held that necessary intimation and papers were not furnished by the complainant to the OP to enable surveyors to furnish their survey reports and hence it is held that the complainant is not entitled to claim damages.
iii. Polymat India Pvt.Ltd.and Anr. Vs.National Insurance Co.Ltd.and Ors., IV (2004) CPJ (nc), It is observed that terms of contract to be construed strictly without altering nature of contract.
iv. New India Assurance Co.Ltd. Vs. Rabindranarayan, I (2010) CPJ 80 (NC). It is observed that surveyors report being important piece of evidence, it be given weight and relied upon, unless proved unreliable.
It is, thus argued by the learned advocate of the appellant that the Forum below has not considered all these facts and the legal position and hence the impugned order is illegal and it may be set aside.
7. On the other hand, the learned advocate of the respondent supported the impugned order and relied upon the observations made in following cases.
i. New India Assurance Co.Ltd. Vs. Pradeepkumar 2010(I) CPC 387. It is held by Honble Supreme Court that the report of surveyor is always not last and final word for settlement of claim nor it is binding on insurer or insured.
ii. Rameshchandra Agrawal Vs. Regency Hospital Ltd.and Ors. 2010 (I) CPC 1. |The Honble Supreme Court held that the expert opinion is admissible in evidence only if it is supported by scientific evidence.
iii. M/s Saraya Suger Mills Ltd. Vs. United India Insurance Co.Ltd.,(1999) NCJ (NC), It is held that the fire need not necessarily be accompanied by flame. As molasses was burnt and solidised due to auto heating and spontaneous combustion, the repudiation of the claim was deficiency in service.
iv. National Insurance Co. Vs.Shyam Intermediates, II (2002) CPJ 391 Gujrat SCDRC Ahmedabad. It is observed that exclusion clause can not defeat the main purpose of policy.
Relying upon the aforesaid decisions, the learned advocate of the respondent submitted that the appeal may be dismissed.
8. It is not disputed that the appellant issued the policy covering the risk of the agriculture product namely raw cotton and tur stored in the godown of the field of the respondent herein.
Moreover, it is also not disputed that under that policy, the sum assured for stock of cotton was Rs.6 lacs and for stock of Tur for Rs.6 lacs and that during the period of that policy the said agriculture product of the complainant was burnt to ashes under fire.
During the pendency of the complaint, filed by the respondent, the appellant repudiated the claim vide letter dated 21/5/2009 of which copy ios produced. The said claim is repudiated on three grounds namely, firstly the fire was occurred due to natural heating and hence exclusion clause is attracted. Secondly, the proposal form shows area of the godown as 20 feet by 20 feet whereas the godown which caught fire was having area of 50 feet by 50 feet and thirdly, there is variance in the date of fire in claim form, intimation letter, police report and certificate of gram panchayat.
9. We consider initially the first ground of repudiation. As per exclusion clause of that policy, no loss can be compensated if the property insured caught fire due to natural heating or spontaneous combustion. The appellant in the instant case, merely on the basis of the report of police head constable, drew an inference that the aforesaid agriculture product caught fire due to natural heating. There is no expert opinion to that effect. Moreover, the raw cotton and the tur stored in the godown of the complainant, admittedly, caught fire during the midnight and hence there is no question of natural heating during midnight. Thus, under the facts and circumstances of this case, no inference can be drawn that the exclusion clause as noted above is attracted in the present case.
10. As regards the second ground for repudiation of the claim, it is seen that in proposal form, policy submitted by the respondent, area of the godown was shown as 20 feet by 20 feet whereas the surveyor inspected the place of incident and measured that area where the incident of fire took place and reported the area of that place as 18 |X 12 feet. We find that the surveyor has not shown actual boundaries of area measured by him. He has shown area of 18 feet X 12 feet of the burnt debris only and hence, it can not be said that there is varience in the claim form and the area of the godown in which the incident of fire took place.
11. As regards the third ground of repudiation, we find that from the documents produced on record, it is proved that the incident of fire in the godown took place during the midnight of 24/4/2009 and 25/4/2009 only, therefore there is no substance in the contention of appellant that due to variance in the date, the claim is rightly repudiated.
12. We also find that the repudiation letter dated 21/8/2009 does not show that the respondent herein did not furnish the requisite documents so as to settle the claim. Hence the contention raised before us that the requisite documents were not submitted by the complainant is an afterthought and can not be accepted. On the contrary, we find that the complainant submitted all the requisite documents to the surveyor on the basis of which the claim could have been settled by him. The 7/12 extract of both the lands of the respondent produced by him prove that he had sown and cultivated cotton and tur crops in his aforesaid lands during the year 2008-09. The Panchnama prepared by police also prove that the raw cotton worth Rs.6 lacs and tur worth Rs.6 lacs were burnt to ashes under that fire. The certificate of gram panchayat produced by the respondent also proves that the raw cotton and the tur stored by the respondent in his godown caught fire and burntto ashes. The affidavits of Dhondbaji Baliramji Thakre, Sunil Devidas Borkar, Narayan Ramji Warange and Dhondiral Dattarao Borudkar produced by the respondent also support his case as discussed above.
13. The Forum below therefore, rightly considered the evidence brought on record and passed the just and proper order. The aforesaid decisions relied upon learned advocate of the appellant are not applicable to the facts and circumstances of the present case as they are totally different from those of the said cases. On the contrary the decisions relied upon by the learned advocate of the respondent are applicable to the present case since facts and circumstances of the present case are identical to those of said cases.
Thus, we find no merits in this appeal and it deserves to be dismissed.
i. The appeal is dismissed.
ii. No order as to cost in appeal.
iii. Copies of the order be supplied to the parties free of cost.