State Consumer Disputes Redressal Commission
Punjab National Bank vs M/S Maha Kaleshwar Furnitures & Another on 18 October, 2012
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, UTTARAKHAND, DEHRADUN
FIRST APPEAL NO. 92 / 2008
Punjab National Bank
Branch office at Gurukul Kangri
District Haridwar
Through its Senior Manager
Shri Vivek Kumar Gupta
......Appellant/Opposite Party No. 1
Versus
1. M/s Maha Kaleshwar Furnitures
Near Bharat / Pushpak Gas Agency
P.O. Gurukul Kangri, Haridwar
Through its Proprietor Smt. Rajesh Devi
W/o Sh. Rakesh Kumar
......Respondent No. 1/Complainant
2. The Oriental Insurance Company Ltd.
Zonal Office, Near Railway Road
Post Office, Jwalapur, Haridwar
Through its Zonal Manager
......Respondent No. 2/Opposite Party No. 2
Mr. Vijai Kumar Gupta, Learned Counsel for the Appellant
Mr. Man Singh, Learned Counsel for the Respondent No. 1
Mr. M.K. Kohli, Learned Counsel for the Respondent No. 2
Coram: Hon'ble Mr. Justice B.C. Kandpal, President
Mr. C.C. Pant, Member
Dated: 18/10/2012
ORDER
(Per: Mr. C.C. Pant, Member):
This appeal, under Section 15 of the Consumer Protection Act, 1986, is directed against the judgment and order dated 02.04.2008 passed by the District Forum, Haridwar allowing the consumer complaint No. 483/2006 and directing the opposite party No.1-Punjab National Bank to pay to the complainant a sum of Rs. 57,719/- together with interest @ 9% per annum, pendentelite and future as compensation and Rs. 2,000/- towards cost of litigation within a month from the date of the order.2
2. The facts of the case, in brief, are that the complainant-Smt. Rajesh Devi is a proprietor of the firm M/s Maha Kaleshwar Furnitures, Near Bharat / Pushpak Gas Agency, P.O. Gurukul Kangri, Haridwar and deals in furniture. She had taken a loan from Punjab National Bank, Gurukul Kangri, Kankhal, Haridwar-opposite party No.1 for her business. As per the terms and conditions of the said loan, the stock in trade was insured with The Oriental Insurance Co. Ltd, Divisional Office, Railway Road, Jwalapur, Haridwar- opposite party No.2 for the period from 28.02.2006 to 27.02.2007. On 16.05.2006, due to heavy rain, water entered into the shop and it damaged the stock of furniture worth Rs. 1,04,210/- kept in the basement of the shop. The complainant informed about the loss to the opposite parties on 17.05.2006 and requested them to indemnify the loss. The spot inspection was done by the surveyor of the opposite party No.2, who took photographs. However, the opposite party No.2 intimated the complainant vide letter dated 03.08.2006 that the nature of the loss sustained by the complainant falls under the exclusion clause of the policy and, therefore, the opposite party No.2 is not liable to indemnify the loss and that the complainant's claim has been closed as "No Claim". The complainant requested the opposite parties to reconsider the claim, but they expressed their inability in doing so. This led the complainant to file a consumer complaint before the District Forum, Haridwar. The District Forum, after an appreciation of the facts of the case, allowed the consumer complaint against the opposite party No. 1 and directed it to pay to the complainant compensation, interest and litigation expenses as stated above. However, the consumer complaint was dismissed against the opposite party No.2, The Oriental Insurance Co. Ltd. Aggrieved by the order, the opposite party No.1-Punjab National Bank has filed this appeal.
3. We have heard the learned counsel for the parties and perused the material placed on record.
4. The learned counsel for the appellant-bank contended that the appellant is not a service provider to the complainant-respondent No.1 and, hence, the District Forum has erred in holding it liable to pay the compensation to the complainant-respondent No.1. He further argued that the appellant-bank in 3 no way is responsible to get the stock of the complainant's shop insured and it was for the opposite party No.2-respondent No.2 to see as to which of the perils were necessary to be covered under the insurance policy. He drew our attention to clause No.10 of the agreement in respect of the loan sanctioned to the complainant and submitted that as per this clause, the complainant was required to get the goods insured against fire and such other risks as may be required by the bank or be required by law. Further, as per this clause, it is the borrower, who shall pay the premium and the borrower is required to pay the premium due on the policy at least one week before the same has become due or payable and hand over the receipt to the bank. Thus, the District Forum has failed to consider the terms and conditions of the loan and has wrongly held that it was the bank, who had to ascertain whether the goods in trade were duly insured against all the probable perils.
5. The learned counsel for the complainant-respondent No.1 reiterated the facts of the case and argued in support of the impugned order.
6. The learned counsel for the respondent No.2-The Oriental Insurance Co. Ltd. submitted that the goods in trade have been damaged due to rain water and the policy does not cover the said risk. Therefore, the insurance company is not liable to pay any compensation to the complainant- respondent No.1.
7. We considered the submissions made by the learned counsel for the parties. After a careful perusal of the record, we find that the cause of damage to goods in trade is heavy rain water. The rain water had seeped through the main entrance of the shop and entered into the basement and the furniture kept there got damaged. Besides this cause, no other cause has been mentioned either in the consumer complaint or in the pleadings advanced by the learned counsel for the complainant-respondent No.1. The surveyor, deputed by the insurance company, has also observed that it was the rain water, which had seeped through the main entrance of the shop and got collected in the basement of the shop. The complainant has not controverted this finding of the surveyor. We went through the insurance policy, which is at Paper No. 22/2 of the District Forum's file. The policy is named as 4 "Standard Fire and Special Perils Policy". Though, the cover note has not specified cleared the perils against which the goods are insured and have used codes such as "L1, O1, B1" and "1, 3,7" etc., but none of the parties explained as to what these codes stand for. However, it is evident that the policy covers the perils like "Earthquake (Fire and Shock)" and also "Lightening, STFI and Subsidence and Landslide including Rockslide". At Paper Nos. 22/3 and 22/4 of the District Forum's file, the perils that are cover under this type of policy have also been enumerated as Fire, Lightning, Explosion/Implosion, Aircraft Damage, Storm, Cyclone, Typhoon, Tempest, Hurricane, Tornado, Flood and Inundation, Impact Damage, Subsidence and Landslide including Rockslide etc., but the complainant has failed to prove as to how her case of damage due to rain water, is covered under one of these perils. If the goods are not insured against such a peril and also that the damage due to rain water, is beyond the scope of such a policy, then the appellant cannot be blamed, that it did not take care to get the goods insured against such a peril. The District Forum has also not discussed this aspect of the case. The appellant cannot be held liable to compensate the loss in such a case. Since, the loss due to rain water is not covered under the policy, the insurance company-respondent No.2 also cannot be held liable to pay the compensation to the complainant-respondent No.1. It is a case, where the complainant-respondent No. 1 will have to bear the loss herself.
8. For the aforesaid reasons, the appeal is allowed. The impugned order dated 02.04.2008 passed by the District Forum, Haridwar is set aside and the consumer complaint No. 483/2006 is dismissed. No order as to costs.
(C.C. PANT) (JUSTICE B.C. KANDPAL)