State Consumer Disputes Redressal Commission
National Insurance Co. Ltd. vs M/S Krishna Trader. & Anr. on 26 December, 2018
H. P. STATE CONSUMER DISPUTES REDRESSAL
COMMISSION SHIMLA
First Appeal No. : 285/2017
Date of Presentation: 08.11.2017
Order Reserved on : 04.09.2018
Date of Order : 26.12.2018
......
National Insurance Company Limited Divisional Office Baijnath
Road Palampur Tehsil Palampur District Kangra H.P. through
its Administrative Officer (Legal) National Insurance Company
Ltd. Divisional Office Himland Hotel Circular Road Shimla.
...... Appellant/Opposite Party No.1
Versus
1. M/s. Krishna Trader Village and Post Office Rajpur Tehsil
Palampur District Kangra H.P through its Proprietor Shri
Vikash Sood son of Shri Sohan Lal R/o. Village and Post
Office Rajpur Tehsil Palampur District Kangra H.P.
......Respondent No.1/Complainant
2. State Bank of India ADB Branch near Shitla Mata Mandir
Palampur District Kangra H.P through its Branch
Manager.
......Respondent No.2/opposite party No.2
Coram
Hon'ble Justice P.S. Rana (R) President
Hon'ble Mr. Vijay Pal Khachi Member
Whether approved for reporting?1 Yes.
For Appellant : Mr. Jagdish Thakur Advocate.
For Respondent No.1 : Mr. Shashi Bhushan Advocate.
For Respondent No.2 : Mr. Anil God vice Mr. Arvind
Sharma Advocate.
1
Whether reporters of the local papers may be allowed to see the order? Yes.
National Insurance Company Ltd. Versus M/s. Krishna Trader & Anr.
(F.A. No.285/2017)
JUSTICE P.S. RANA (R) PRESIDENT:
O R D E R :-
1. Present appeal is filed under section 15 of Consumer Protection Act 1986 against order dated 05.10.2017 passed by Learned District Forum in consumer complaint No.117/2015 titled M/s. Krishna Traders Versus National Insurance Company Ltd. & Anr.
Brief facts of consumer complaint:
2. M/s. Krishna Trader filed consumer complaint under section 12 of Consumer Protection Act 1986 pleaded therein that complainant is proprietor of M/s. Krishna Trader village and post office Rajpur Tehsil Palampur District Kangra H.P. It is pleaded that complainant is running grocery goods and other general items shop for the last more than 20 years.
It is pleaded that complainant availed cash credit limit of Rs.500000/-(Five lac) from opposite party No.2. It is pleaded that complainant obtained standard fire and special perils policy operative w.e.f. 08.07.2014 to 07.07.2015 from National Insurance Company Ltd. i.e. opposite party No.1. It is further pleaded that on 21.08.2014 at about 7.45 A.M shop of complainant suddenly collapsed due to heavy rain, storm & inundation and all stock and goods of shop were buried under the debris of shop. It is pleaded that complainant submitted the claim before opposite party No.1 but opposite party No.1 2 National Insurance Company Ltd. Versus M/s. Krishna Trader & Anr.
(F.A. No.285/2017) did not settle the claim and committed deficiency in service. Complainant sought relief of payment of Rs.1108414/-(Eleven lac eight thousand four hundred fourteen) alongwith interest @ 12% per annum from the date of damage of shop, stocks and goods of complainant till its realization. In addition complainant sought relief of payment of Rs.500000/-(Five lac) for collapse of shop. In addition complainant sought relief of payment of Rs.50000/-(Fifty thousand) for mental agony and harassment. In addition complainant sought relief of payment of Rs.20000/-(Twenty thousand) as litigation costs. Prayer for acceptance of consumer complaint sought.
3. Per contra version filed on behalf of opposite party No.1 pleaded therein that insurance company did not commit any deficiency in service. It is pleaded that insurance company appointed surveyor cum loss assessor namely Shri Sanbir Mehta who assessed the loss to the tune of Rs.264332/-(Two lac sixty four thousand three hundred thirty two). It is pleaded that insurance company also hired services of Shri Rakesh Sood investigator. It is pleaded that loss was caused to complainant due to heavy rain and leakage of rain water due to which mud structure collapsed. It is pleaded that claim of complainant was repudiated by insurance company strictly in accordance with law. It is further pleaded that complainant is estopped to file the 3 National Insurance Company Ltd. Versus M/s. Krishna Trader & Anr.
(F.A. No.285/2017) present consumer complaint due to his act and conduct and complainant has no locus standi to file the present consumer complaint. Prayer for dismissal of consumer complaint sought.
4. Per contra separate version filed on behalf of opposite party No.2 pleaded therein that complainant has no cause of action and locus standi to file the present consumer complaint against opposite party No.2. It is pleaded that opposite party No.2 obtained insurance policy from opposite party No.1. It is pleaded that opposite party No.2 has provided best services to complainant and opposite party No.2 did not commit any deficiency in service. Prayer for dismissal of consumer complaint against opposite party No.2 sought.
5. Complainant filed rejoinder and reasserted the allegations mentioned in the complaint. Learned District Forum ordered opposite party No.1 to pay a sum of Rs.1059372/-(Ten lac fifty nine thousand three hundred seventy two) to complainant alongwith interest @ 9% per annum from the date of complaint till realization. In addition learned District Forum ordered opposite party No.1 to pay compensation to complainant for mental harassment to the tune of Rs.25000/-(Twenty five thousand). In addition learned District Forum ordered opposite party No.1 to pay litigation costs to complainant to the tune of Rs.3000/-(Three 4 National Insurance Company Ltd. Versus M/s. Krishna Trader & Anr.
(F.A. No.285/2017) thousand). Feeling aggrieved against order passed by Learned District Forum insurance company filed present appeal before State Commission.
6. We have heard learned advocates appearing on behalf of parties and we have also perused entire record carefully.
7. Following points arise for determination in present appeal.
1. Whether appeal filed by insurance company is liable to be accepted as mentioned in memorandum of grounds of appeal?
2. Final order.
Findings upon point No.1 with reasons:
8. Complainant filed affidavit Ext.CW1 in evidence.
There is recital in affidavit that complainant is proprietor of M/s. Krishna Traders village and post office Rajpur Tehsil Palampur District Kangra H.P. There is recital in affidavit that complainant is running grocery goods shop and other items shop for last more than 20 years. There is recital in affidavit that complainant also availed cash credit limit of Rs.500000/-(Five lac) from opposite party No.2 and opposite party No.2 in order to secure the limit obtained insurance policy from opposite party No.1. There is recital in affidavit that opposite party No.2 deducted premium of Rs.5618/-(Five thousand six hundred eighteen) from cash credit limit 5 National Insurance Company Ltd. Versus M/s. Krishna Trader & Anr.
(F.A. No.285/2017) account of complainant and all goods, stocks including building was duly insured with opposite party No.1 vide insurance policy which was operative w.e.f. 08.07.2014 to 07.07.2015. There is recital in affidavit that on dated 21.08.2014 at about 7.45 A.M shop of complainant collapsed due to heavy rain and storm and all stocks and goods of shop were buried under the debris of shop. There is recital in affidavit that matter was immediately reported to Gram Panchayat local authority and police officials of police station Panchrukhi. There is recital in affidavit that Halqa patwari and Tehsildar have also given the collapse report of shop on dated 23.08.2014 due to rain and storm. There is recital in affidavit that matter was also informed to opposite party No.1. There is recital in affidavit that insurance company did not settle the claim. There is recital in affidavit that relief sought by complainant in relief clause of complaint be granted. State Commission has carefully perused all the annexures filed by complainant.
9. Opposite party No.1 filed affidavit of Shri Khushal Chand Branch Manager in evidence. There is recital in affidavit that complaint filed by complainant is not maintainable against opposite party No.1 and opposite party No.1 did not commit any deficiency in service. There is recital in affidavit that opposite party No.1 hired services of surveyor 6 National Insurance Company Ltd. Versus M/s. Krishna Trader & Anr.
(F.A. No.285/2017) cum loss assessor namely Shri Sanbir Mehta who has assessed the loss to the tune of Rs.264332/-(Two lac sixty four thousand three hundred thirty two). There is recital in affidavit that thereafter opposite party No.1 hired services of Shri Rakesh Sood investigator who has submitted investigation report on dated 17.02.2015. There is recital in affidavit that Shri Rakesh Sood investigator has specifically mentioned in his investigation report that loss was caused to complainant due to heavy rain and leakage of water from mud structure. There is recital in affidavit that loss was not caused to complainant due to flood inundation and storm. There is recital in affidavit that loss was sustained to complainant due to heavy rain and leakage of rain water and same loss is not covered under the insurance policy.
10. Opposite party No.1 also filed affidavit of Shri Rakesh Sood investigator in evidence. There is recital in affidavit that deponent was engaged by insurance company to conduct the investigation. There is recital in affidavit that deponent conducted the investigation and submitted investigation report on 17.02.2015. There is recital in affidavit that contents of report dated 17.02.2015 be read as part and parcel of affidavit.
11. Opposite party No.2 filed affidavit of Shri Arjun Dogra in evidence. There is recital in affidavit that deponent 7 National Insurance Company Ltd. Versus M/s. Krishna Trader & Anr.
(F.A. No.285/2017) is Branch Manager and Principal Officer of State Bank of India Palampur. There is recital in affidavit that complainant availed cash credit limit of Rs.500000/-(Five lac) from opposite party No.2. There is further recital in affidavit that bank has paid the premium amount to insurance company and has deducted the amount from account of complainant. There is recital in affidavit that complainant has impleaded the bank as opposite party without any cause of action.
12. Submission of learned Advocate appearing on behalf of insurance company that complainant sustained loss due to heavy rain and loss due to heavy rain is not covered under insurance policy and on this ground appeal filed by insurance company be allowed is decided accordingly. State Commission has carefully perused the report submitted by Pradhan Gram Panchayat Rajpur Annexure-G. Pradhan Gram Panchayat has specifically mentioned in his report that complainant sustained loss due to rain and storm. There is positive recital in the report of Pradhan Gram Panchayat Rajpur that complainant has sustained loss due to storm. Insurance company did not send any interrogatories to Pradhan Gram Panchayat Rajpur who has submitted certificate Annexure-G to complainant. No reasons assigned by insurance company as to why insurance company did not send any interrogatories to Pradhan Gram Panchayat Rajpur 8 National Insurance Company Ltd. Versus M/s. Krishna Trader & Anr.
(F.A. No.285/2017) who has submitted report that complainant has sustained loss due to rain and storm. Hence loss sustained by complainant due to storm is proved by report of Pradhan Gram Panchayat. State Commission is of the opinion that report of Pradhan could be used for corroborative purpose.
13. Even Patwari and Tehsildar have submitted report annexure-F and there is recital in the report that complainant has sustained loss due to rain and storm. Insurance company did not file any interrogatories to Patwari and Tehsildar who have assessed loss by way of rain and storm. Even in the report of Patwari and Tehsildar there is positive recital that complainant has sustained loss due to rain and storm. Hence loss sustained by complainant due to storm is proved by report of Patwari and Tehsildar. It is held that loss sustained by storm is covered under insurance policy. State Commission is of the opinion that report of Patwari and Tehsildar could be used for corroborative purpose.
14. Submission of learned Advocate appearing on behalf of insurance company that complainant did not obtain report of metrological department in order to prove intensity of storm and on this ground appeal filed by insurance company be allowed is decided accordingly. State Commission is of the opinion that insurance company did not file any application before learned District Forum in order seek report 9 National Insurance Company Ltd. Versus M/s. Krishna Trader & Anr.
(F.A. No.285/2017) of metrological department relating to intensity of storm. Objection was took by insurance company that loss was not caused to complainant due to storm. State Commission is of the opinion that onus was on objector/insurance company to prove the factum that complainant did not sustain any loss due to storm.
15. Submission of learned Advocate appearing on behalf of insurance company that construction of the building was not class-A construction and on this ground appeal filed by insurance company be allowed is decided accordingly. It is true that as per insurance policy construction loss of building was covered which was class-A construction. State Commission is of the opinion that in the absence of evidence on record that construction was A class complainant is not legally entitled for indemnification of loss sustained by complainant qua loss of construction damage. It is held that complainant is only legally entitled for compensation qua stock kept by complainant at the time of incident because trade stock is covered under insurance policy and complainant has obtained standard fire and special perils policy. It is held that in special perils policy insurance company is under legal obligation to indemnify the complainant qua loss sustained by complainant for stocks kept in the shop. It is proved on record that at the time of incident insurance policy was in operation. 10
National Insurance Company Ltd. Versus M/s. Krishna Trader & Anr.
(F.A. No.285/2017)
16. Submission of learned Advocate appearing on behalf of insurance company that complainant is not legally entitled to any claim on account of report submitted by Shri Rakesh Sood investigator is decided accordingly. Complainant has claimed loss exceeding Rs.20000/-(Twenty thousand). State Commission is of the opinion that insurance company was under legal obligation to appoint surveyor cum loss assessor and to obtain report of surveyor cum loss assessor as per section 64UM(2) of Insurance Act 1938 because loss was more than value of Rs.20000/-(Twenty thousand). There is no evidence on record that Shri Rakesh Sood investigator was registered under section 64UM(2) of Insurance Act 1938. It is proved on record that insurance company also appointed surveyor cum loss assessor namely Shri Sanbir Mehta who is licensed surveyor and his report is relevant report. It is held that report of Shri Rakesh Sood investigator will not override report of surveyor cum loss assessor who has been licensed under section 64UM(2) of Insurance Act 1938.
17. Submission of learned Advocate appearing on behalf of insurance company that surveyor cum loss assessor appointed under Insurance Act 1938 has assessed loss to the tune of Rs.264332/-(Two lac sixty four thousand three hundred thirty two) vide report annexure-C25 dated 11 National Insurance Company Ltd. Versus M/s. Krishna Trader & Anr.
(F.A. No.285/2017) 18.12.2014 and learned District Forum has granted damage to complainant to the tune of Rs.1059372/-(Ten lac fifty nine thousand three hundred seventy two) contrary to surveyor cum loss assessor report and on this ground appeal filed by insurance company be allowed is decided accordingly. It is well settled law that report of surveyor cum loss assessor appointed under section 64UM(2) of Insurance Act 1938 is a credible document and is a valuable piece of document and due credence should be given to the report of surveyor cum loss assessor appointed under section 64UM(2) of Insurance Act 1938. Surveyor cum loss assessor namely Shri Sanbir Mehta was appointed by insurance company and insurance company could not be allowed to disbelieve the report of its own surveyor cum loss assessor. See 2012(1) CPJ 420 NC H.C Saxena Versus New India Assurance Company Ltd. See 2012(4) CPJ 103 NC National Insurance Company Ltd. Versus Jyothi Tobacco Traders. See 2009(1) CPC 166 NC Pradeep Kumar Versus National Insurance Company Ltd. See 2010(3) CPJ 401 NC New India Assurance Company Ltd. Versus Pushpa Chhabra. See 2010(1) CPC 696 NC Champa Lal Verma Versus Oriental Insurance Company Ltd.
18. Submission of learned Advocate appearing on behalf of insurance company that learned District Forum has granted excessive compensation to complainant for mental 12 National Insurance Company Ltd. Versus M/s. Krishna Trader & Anr.
(F.A. No.285/2017) harassment to the tune of Rs.25000/-(Twenty five thousand) and on this ground appeal filed by insurance company be allowed is decided accordingly. State Commission is of the opinion that learned District Forum has granted reasonable compensation to the complainant and it is not expedient in the ends of justice and on the principle of natural justice to interfere in the order of compensation granted by learned District Forum for mental harassment.
19. Submission of learned Advocate appearing on behalf of insurance company that learned District Forum has granted excessive litigation costs to complainant to the tune of Rs.3000/-(Three thousand) and on this ground appeal filed by insurance company be allowed is decided accordingly. State Commission is of the opinion that learned District Forum has granted reasonable litigation costs to complainant and it is not expedient in the ends of justice and on the principle of natural justice to interfere in the litigation costs order of learned District Forum.
20. Submission of learned Advocate appearing on behalf of complainant that order passed by learned District Forum is in accordance with law and in accordance with proved facts is decided accordingly. Complainant did not file affidavit of persons who have issued controversial bills in favour of complainant. It is well settled law that controversial 13 National Insurance Company Ltd. Versus M/s. Krishna Trader & Anr.
(F.A. No.285/2017) bills are not perse admissible and it is also well settled law that contents of controversial document should be proved by way of affidavits of a person who has signed the document. Complainant did not file affidavit of person who had issued controversial bills. Even complainant did not file any counter surveyor cum loss assessor report. Surveyor report submitted by Shri Sanbir Mehta remained unrebutted on record. There is no evidence on record that Shri Sanbir Mehta has hostile animus against the complainant. Even complainant has not sent any interrogatories to Shri Sanbir Mehta surveyor cum loss assessor. No reasons assigned by complainant as to why complainant did not sent any interrogatories to Shri Sanbir Mehta relating to report submitted by him on dated 18.12.2014. Hence adverse inference is drawn against the complainant. In view of above stated facts point No.1 is decided accordingly. Point No.2: Final Order
21. In view of findings upon point No.1 above appeal is partly allowed. Order of learned District Forum that opposite party No.1 would pay an amount of Rs.1059372/-(Ten lac fifty nine thousand three hundred seventy two) to complainant alongwith interest @ 9% per annum from the date of complaint till realization is reduced to Rs.264332/- (Two lac sixty four thousand three hundred thirty two) 14 National Insurance Company Ltd. Versus M/s. Krishna Trader & Anr.
(F.A. No.285/2017) alongwith interest @ 9% per annum from the date of complaint till realization. Order of learned District Forum that opposite party No.1 would pay an amount of Rs.25000/- (Twenty five thousand) to complainant as compensation is affirmed. Order of learned District Forum that opposite party No.1 would pay an amount of Rs.3000/-(Three thousand) to complainant as litigation costs is also affirmed. Report of surveyor cum loss assessor annexure-C25 dated 18.12.2014 shall form part and parcel of order. Parties are left to bear their own litigation costs before State Commission. File of learned District Forum alongwith certified copy of order be sent back forthwith and file of State Commission be consigned to record room after due completion forthwith. Certified copy of order be transmitted to parties forthwith free of costs strictly as per rules. Appeal is disposed of. Pending application(s) if any also disposed of.
Justice P.S. Rana (R) President Vijay Pal Khachi Member 20.12.2018 KD* 15