State Consumer Disputes Redressal Commission
Bajaj Allianz General Insurance ... vs Bhupinder Singh Son Of S. Teja Singh, on 21 April, 2011
2nd Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB,
SCO NOS.3009-12, SECTOR 22-D, CHANDIGARH.
First Appeal No. 170 of 2006
Date of institution : 7.2.2006
Date of Decision : 21.4.2011
1. Bajaj Allianz General Insurance Company Ltd., GE Plaza Airport Road
Yerawada, Pune, through Shri Vipin Kapoor, Area Manager, SCO No.
139-140, Sector 8-C, Chandigarh.
2. Bajaj Allianz General Insurance Company Ltd., SCO 147, Feroze
Gandhi Market, Ludhiana, through Shri Vipin Kapoor, Area Manager,
SCO No. 139-140, Sector 8-C, Chandigarh.
....Appellants.
Versus
1. Bhupinder Singh son of S. Teja Singh, Proprietor of M/s Bhupindra
Tyre Works, Head Office VPO Bhunerheri, Sub Office at Devigarh,
District Patiala.
2. Punjab & Sind Bank, Branch at Bhunerheri, through its Branch
Manager.
...Respondents.
First Appeal against the order dated 19.12.2005 of
the District Consumer Disputes Redressal Forum,
Patiala.
Before:-
Shri Inderjit Kaushik, Presiding Member.
Shri Piare Lal Garg, Member.
Present:-
For the appellants : Sh. Mrigank Sharma, Advocate for Ms. V.A. Talwar, Advocate For respondent No.1 : Sh. R.K. Shukla, Advocate For respondent No.2 : Not served. PIARE LAL GARG, MEMBER:
This is an appeal filed by Bajaj Allianz General Insurance Co. Ltd. (hereinafter called 'the appellants') against the order dated 19.12.2005 of the District Consumer Disputes Redressal Forum, Patiala (hereinafter called, the 'District Forum') by which the complaint of respondent No. 1/complainant (hereinafter called 'respondent No.1') was allowed by the District Forum.First Appeal No. 170 of 2006 2
2. Brief facts of the case are that the respondent was sole proprietor of M/s Bhupindra Tyre Works, Bhunerheri having Sub Office at Devigarh. It was further pleaded that loan facility was availed by respondent No. 1 from respondent No.2 and hypothecated goods lying at Bhunerheri as well as Devigarh with respondent No. 2 were insured by respondent No. 2 and paid the premium to the appellant and the same was debited to the account of respondent No. 1. Appellants after examining the stock statement from the bank issued a Shopkeeper Package Policy bearing No. OG-05-1203-4092-00002378 for the years 2004-2005. On 20/21.12.2004, the goods lying at Sub Office Devigarh were stolen and FIR No. 135 dated 21.12.2004 in this regard was registered at P.S. Julkan but the police failed to recover the stolen goods. It was pleaded that he had suffered a loss to the tune of Rs. 3 lacs. Intimation regarding the theft was given to the appellants. Claim of loss was also lodged with the appellants but the same was repudiated without any justification. Complaint was filed alleging that the appellants were deficient in service and prayed that appellants may be directed to pay the claim amount with interest. Compensation and costs were also prayed.
3. Upon notice, appellants replied by taking preliminary objections that the District Forum has no jurisdiction to try and decide the complaint as the Head office of the appellant is located at Pune and Branch Office is located at Ludhiana. On merits, it was admitted that respondent no. 1 had applied for the loan to respondent No. 2 and respondent No. 2 got the entire goods of the firm insured with appellant No.2, whose Head Office is at Pune and Branch Office at Ludhiana. No reason was given in the reply as to why the claim was not paid to respondent No. 1.
First Appeal No. 170 of 2006 3
4. Upon notice, respondent No. 2 admitted that the goods were hypothecated by respondent No. 1 with the appellants and were got insured as per banking norms with the free consent of respondent No. 1. Respondent No. 1 sanctioned C.C. (hypothecation) limit of Rs. 4 lacs. It was also admitted that intimation regarding theft of the insured goods was received. It was further admitted that premium for the period covering the theft was paid, as such, appellants were liable to pay the amount of loss, if all the formalities were fulfilled. It was prayed that the complaint may be dismissed against the answering respondent.
5. Learned District Forum after hearing the learned counsel for the parties and going through the record, partly allowed the complaint with costs of Rs. 500/- and directed the appellants to make the payment of Rs. 2,99,000/- the claim amount with interest @ 9% P.A. from two months after the submission of the claim till payment.
6. Hence, the appeal.
7. We have gone through the pleadings of the parties, perused the record of the learned District Forum and heard the arguments of the learned counsel for the parties.
8. The present appeal is filed by the appellants on the grounds that only the articles lying in the godown at Bhunerheri were insured as per the policy. The goods which were stolen from the godown situated at Devigarh were not insured. As such, the order of the District Forum regarding the payment of Rs. 2,99,000/- as claim amount with interest @ 9% after two months of the submission of the claim till payment as compensation and Rs. 500/- as costs is against the terms and conditions of the policy and the appellants are not liable to pay the same.
9. There is no dispute between the parties regarding the theft of the articles from the godown of respondent No. 1 situated at Devigarh. First Appeal No. 170 of 2006 4 Information was also given by respondent No. 1 to the appellants, who appointed the Surveyor to assess the loss suffered by respondent No. 1.
10. The claim of respondent No. 1 was repudiated by the appellants vide letter Ex. C-6 dated 10.2.2005 on the ground that the articles lying in the godown situated at Devigarh were not insured.
11. We have perused the cover note Ex. R-10 by which the articles of respondent No. 1 were insured under Shopkeeper's Package Policy Schedule but nowhere in the said cover note it is mentioned that only the articles lying in the godown of Bhunerheri were insured and the articles of respondent No.1 lying in the godown at village Devigarh were not insured. No description of the articles was also mentioned in the cover note. There is a special condition mentioned in the cover note regarding the insurance of the articles of respondent No. 1, which is reproduced:-
"Special Condition : Hypothecation :- P.S.B., Bhunerheri"
12. So from the above cover note it is established beyond doubt that the articles which were hypothecated by respondent No. 1 with Punjab & Sind Bank, Bhullarheri were insured by the appellants.
13. We have also perused the Form No. 190 Ex. R-6 in which the details of stock in godown and compound of M/s Bhupinder Tyre Works is given and on the back of the said form, the stock of Rs. 2,54,700/- of the respondent-firm lying at Bhullarheri and stock of Rs. 5,60,700/- lying at Devigarh godowns were mentioned.
14. We have also perused the hypothecation of goods to secure a demand cash credit Ex. R-7. In the said hypothecation deed, all the products, goods and immovable property of any kind belonging to the borrowers i.e. respondent No. 1 which now are hereafter and from time to time during security shall be stored or to be stored or about the borrowers premises or godowns at Bhullarheri and Devigarh were hypothecated. The First Appeal No. 170 of 2006 5 respondent No. 2 i.e. the Punjab & Sind Bank insured the goods excluding jewellery and valuables worth Rs. 6.00 lacs for burglary and paid Rs. 1350/- as premium for the said risk to the appellants on behalf of respondent No. 1. Total amount of Rs. 2790/- was paid by respondent No. 2 to the appellants as premium for the insurance cover for the goods of respondent No. 1 lying at Bhullarheri and Devigarh to the appellants and the said amount of Rs. 2790/- was debited by respondent No. 2 in the account of respondent No. 1 on 16.12.2004 as per statement of account No. CC-21 Ex. R-11 of respondent No. 1.
15. We have also perused the affidavit Ex. R-5 of Sh. Updesh Singh, Manager, Punjab & Sind Bank, Branch of Bhullarheri i.e. respondent No. 2 and in paras No. 2&3 it is stated that the respondent bank insured the entire hypothecated goods of respondent No. 1 with the appellant and the goods were insured by the appellants only after due inspection of loan documents including stock statements, hypothecation with respondent No. 2 bank and physical verification of stocks at both the premises of respondent No. 1 i.e. Bhullerheri and Devigarh and the same were covered under the shopkeepers package policy schedule vide policy No. OG-05-1203-4092-00002378 (Ex. C-3) w.e.f. 20.12.2004 to 19.12.2005 for an amount of Rs. 6.00 lacs in the name of respondent No. 1. Previously policy No. OG-04-1203-4092-00001629 was also purchased on behalf of respondent No. 1 by respondent No. 2 from the appellants for the period of 16.12.2003 to 15.12.2004 and in both the policies the column of special condition was mentioned:-
"Hypothecation : P.S.B., Bhullarheri"
16. We have also perused the reply filed by the appellants to the complaint filed by respondents No. 1. In para No. 2 of on merits, it is admitted by the appellants that the Punjab & Sind Bank, Bhullerheri got the First Appeal No. 170 of 2006 6 entire goods of the firm of respondent No. 1 insured with the appellants, whose Head office is at Pune and Branch at Ludhiana.
17. So from the admission of the appellants itself regarding the insurance of entire goods of the firm by respondent No. 2 of respondent No. 1, and above discussion, the repudiation of the claim by the appellants is not correct/legal and the evidence produced by the appellants as well as respondent No. 2 proves beyond doubt that respondent No. 1 is entitled for the claim of loss which he had suffered due to theft in his godown situated at Devigarh.
18. Now the dispute regarding the amount for which respondent No. 1 is entitled for the loss of goods which he had suffered.
19. It was contended by the learned counsel for the appellants that the learned District Forum has awarded Rs. 2,99,000/- to respondent No. 1 against the report of the Surveyor, who had assessed Rs. 2,04,920/- to respondent No.1.
20. Respondent No. 1 in his complaint has alleged that he had suffered loss of about Rs. 3.00 lacs as mentioned in the FIR.
21. There is no dispute that on the information regarding the theft the appellants has appointed Deepak Malhotra to assess the loss, who assessed the loss as Rs. 2,04,920/- (Rs. Two Lac Four Thousand Nine Hundred and Twenty Only) as per Annexure A-3 attached by the appellants with the appeal but the District Forum has ordered to pay Rs. 2,99,000/- as claim amount to respondent No.1 on the ground that the appellants have produced only first page of the report dated 14.4.2005 of the Surveyor and the last page of the Surveyor report was not produced by the appellants in the District Forum. The appellants have filed the copy of the complete report dated 14.4.2005 of the Surveyor-Deepak Malhotra as Annexure A-3 in the appeal.
First Appeal No. 170 of 2006 7
22. We have perused the report of the Surveyor, who assessed Rs. 2,04,920/- as loss suffered by respondent No.1. The relevant portion of the report of the Surveyor is reproduced:-
"Loss Assessed 286805.00
The average clause is applied as under:-
286805.00 X 600000.00 204920.00
839756.00
So net loss is assessed for Rs. 204920/- (Rs. Two lac four thousand nine hundred & twenty only).
This Loss is assessed without prejudice & subject to terms and conditions of policy."
As such, there is force in the version of the counsel for the appellants.
23. The order of the District Forum directing the appellants to pay Rs. 2,99,000/- with 9% interest is not as per terms and conditions of the insurance policy as such, needs modification. Accordingly, the order passed by the District Forum under appeal dated 19.12.2005 is modified only to the extent that respondent No. 1 is entitled only for Rs. 2,04,920/- as per report of the Surveyor; as respondent No. 1 has not challenged the report of the Surveyor anywhere.
24. With this modification, the appeal is partly accepted and the remaining order under appeal is upheld. No order as to costs.
25. The arguments in this appeal were heard on 7.4.2011 and the order was reserved. Now the order be communicated to the parties.
26. The appellants had deposited an amount of Rs. 25,000/- with this Commission at the time of filing of the appeal and Rs. 2,75,000/- in compliance with the order dated 1.5.2006 and as per report of the Accounts Branch, the payment of Rs. 3,00,000/- was made vide cheque No. 075796 dated 21.7.2006 to respondent No.1/complainant. First Appeal No. 170 of 2006 8
27. Respondent No. 1 is directed to deposit the excess amount with the appellants within one month from the date of receipt of the copy of the order. However, if respondent No. 1 fails to deposit the same with the appellants then the appellants will be at liberty to recover the same under Section 25 & 27 of the Consumer Protection Act, 1986 with interest @ 7.5% after one month from the date of passing of the order.
28. The appeal could not be decided within the statutory period due to heavy pendency of Court cases.
(Inderjit Kaushik)
Presiding Member
April 21, 2011. (Piare Lal Garg)
as Member