State Consumer Disputes Redressal Commission
Shree Ganesh Edibles Pvt. Ltd. & Anr. vs Branch Manager The Oriental Insurance ... on 6 March, 2024
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH.
First Appeal No.854 of 2022
Date of institution : 10.10.2022
Reserved On : 21.12.2023
Date of decision : 06.03.2024
1. Shree Ganesh Edibles Pvt. Ltd., Amloh Road, Shahpur, Tehsil
Amloh, District Fatehgarh Sahib, through its Managing Director
Varinder Kumar;
2. Varinder Kumar, Managing Director, Shree Ganesh Edibles Pvt.
Ltd., Amloh Road, Shahpur, Tehsil Amloh, District Fatehgarh
Sahib.
....Appellants/Complainants
Versus
1. Branch Manager, The Oriental Insurance Co. Ltd. G.T. Road,
Khanna, District Ludhiana.
2. Divisional Manager, Oriental Insurance Co. Ltd., 4-5-6, Caliber
Market, Patiala Road, Rajpura.
3. Ahmadgarh Tanker Transport, Heera Nagar, Street No.4, G.T.
Road, Ludhiana through its Partner/Proprietor.
....Respondents/OPs
First Appeal under Section 41 of the
Consumer Protection Act, 2019 against the
order dated 07.06.2022 passed by the
District Consumer Disputes Redressal
Commission, Ludhiana.
Quorum:-
Hon'ble Mrs. Justice Daya Chaudhary, President
1) Whether Reporters of the Newspapers
may be allowed to see the Judgment? Yes/No
2) To be referred to the Reporters or not? Yes/No
3) Whether judgment should be reported
in the Digest? Yes/No
Present:-
For the Appellants : Sh.Abhimanyu Kalsy, Advocate
For Respondents No.1 & 2 : Sh. J.P. Nahar, Advocate
For Respondent No.3 : None.
First Appeal No.854 of 2022 2
JUSTICE DAYA CHAUDHARY, PRESIDENT
Appellants/Complainants have filed the present Appeal
under Section 41 of the Consumer Protection Act, 2019 against the
order dated 07.06.2022 passed by the District Consumer Disputes
Redressal Commission, Ludhiana (in short, "the District Commission"),
whereby the Complaint filed by the Complainants was dismissed.
2. It would be apposite to mention here that hereinafter the
parties will be referred, as have been arrayed before the District
Commission.
3. Briefly, the facts of the case as made out by the
Respondents/Complainants in the Complaint filed by them before the
District Commission are that they had purchased one 'Marine Open
Declaration Policy' bearing No.21/11/7 for an amount of ₹10 Crores
on 13.05.2010. The Complainants used to transport edible oil from one
place to other. They had engaged OP No.3 i.e. Ahmadgarh Tanker
Transport for transportation of edible oil vide GR No.30471 dated
09.08.2010 through tanker. However, the tanker met with an accident
at Ludhiana on 11.08.2010 and the Complainants had suffered the
loss of oil load to the extent of ₹11,70,000/-. The matter was reported
to the Police and FIR No.239 was registered with Police Station Focal
Point, Ludhiana. The Complainants had informed the OPs regarding
the loss occurred on 11.08.2010 and also lodged the claim on that day
itself. OPs No.1 & 2 had deputed the Surveyor to assess the loss and
First Appeal No.854 of 2022 3
had completed all the necessary formalities. However, the claim was
not settled despite repeated requests. The Complainants were not
having any option except to file the Complaint before the District
Commission.
4. Stating to be a case of 'deficiency in service' and 'unfair
trade practice' on the part of the OPs, the Complaint was filed with
the prayer for issuance of directions to the OPs to reimburse the claim
of ₹11,70,000/- along with interest at the rate of 12% per annum from
the date of loss till its realization. Further directions were sought to pay
litigation expenses of ₹22,000/- to the Complainants.
5. Upon issuance of notice in the Complaint to the OPs,
written version was filed on behalf of OPs No.1 & 2, wherein certain
preliminary objections were raised by stating that the Complaint was
not maintainable against them. It was also mentioned that as per
version of the transporter, the tanker was driven by the driver without
his knowledge and the Damage Certificate was not issued by the
transporter. The claim was repudiated as 'No Claim', being not
maintainable.
6. OP No.3 had initially appeared through Counsel before the
District Commission but failed to file the written reply despite availing a
number of opportunities and even the cost imposed was not paid and
thereafter the OP No.3 was proceeded ex parte vide order dated
29.02.2016.
First Appeal No.854 of 2022 4
7. By considering the contents of the Complaint and reply
thereof filed by OPs No.1 & 2 and on hearing the oral arguments
raised by learned Counsel for the parties, the Complaint was
dismissed by the District Commission vide impugned order dated
07.06.2022.
8. Said order dated 07.06.2022 passed by the District
Commission has been challenged by the Appellants/Complainants by
way of filing the present Appeal by raising a number of arguments.
9. There was a delay of 43 days in filing of the Appeal. Misc.
Application No.1364 of 2022 was filed for condonation of delay, which
was supported by an affidavit. Said application was allowed vide order
dated 12.10.2022 and the delay in filing of the Appeal was condoned.
The M.A. was disposed off.
10. Mr. Abhimanyu Kalsy, learned Counsel for the
Appellants/Complainants has submitted that the District Commission
has dismissed the Complaint without considering the averments made
in the Complaint. The surveyors appointed by OPs No.1 & 2 had given
the contradictory reports (Annexures A-6 to A-9). Learned Counsel has
further submitted that as per Section 3 of the Marine Insurance Act,
1963, in case the goods were sold to the buyer till its reaching to the
factory of the buyer, the sellers/Complainants were having the
insurable interest. Learned Counsel has further submitted that the
Appellants had been non-suited on the ground of general terms as
First Appeal No.854 of 2022 5
mentioned in the invoice but no reasoning whatsoever has been given.
Learned Counsel has further submitted that the insurance premium
had been paid by the Complainants and as such they were having
vested right to recover the insurable interest from the Insurance
Company but it had acted in a malafide manner since the very
beginning. The claim had wrongly been rejected on the ground that the
Insurance Policy was on 'FOR' basis. The District Commission by
relying upon the judgment of the Hon'ble Apex Court reported as
Contship Container Lines Ltd. v. D.K. Lall-II (2010) CPJ 12 (SC)
had dismissed the Complaint, whereas the said judgment was not
applicable to the facts and circumstances of the present case. The
terms and conditions of the policy have not been taken into
consideration, whereas the loss so occurred was covered by the
policy. Learned Counsel has further submitted that the findings
recorded by the District Commission are contradictory in itself, as in
case, the Complainants were not having the insurable interest, then
why the OPs had deputed the surveyor for assessing the loss so
caused to the goods of the Complainants at the very beginning. As per
the survey report dated 15.08.2010 prepared by M/s Suresh Vashisht
& Company, it was clearly mentioned that "Subject Matter Insured-
Rice Bran Oil 275.30 Qtl. in tanker No.PB-10-CE-2902 as per Invoice
150". It is clear from the words as mentioned in the said Clause and
also apparent from the Survey Report that as per the terms and
First Appeal No.854 of 2022 6
conditions of the Insurance Policy, the goods were covered and the
loss so occurred should have been paid to the Complainants. Learned
Counsel has further submitted that the Complainants themselves had
submitted the Declaration Form of the goods to OP No.1. In case the
Insurance Policy was not for the goods in transit, then why the
Insurance Company had asked for all the documents. Learned
Counsel has further submitted that the finding qua to the seller's lien
over the goods in terms of Sections 46 and 47 of the Sale of Goods
Act, 1930 had stood terminated immediately after the delivery of the
goods to the carrier and in the absence of any such contractual
stipulation between the parties, the same is perverse and against the
record. The order passed by the District Commission is not only
contrary to the evidence but the same has also been passed on the
basis of conjectures and surmises and as such the same is liable to be
set aside.
11. Mr. J.P. Nahar, learned Counsel for the Respondents
No.1 & 2/OPs No.1 & 2 has vehemently submitted that there is no
force in the arguments raised by learned Counsel for the Appellants,
as the order passed by the District Commission is based on proper
appreciation of the terms and conditions of the policy as well as facts
and circumstances of the case. He has further submitted that the
Marine Policy was covering the insurable interest in the goods in
transit and not the goods, as the Appellants had mentioned in Para-
First Appeal No.854 of 2022 7
22 of the grounds of Appeal that the insurance was on 'FOR' basis and
the term 'FOR' does not mean that the insurable interest of
seller/Appellants had ceased once the goods were delivered/handed
over to the carrier but this argument raised by the Complainants is
contrary to the law as laid by the Hon'ble Supreme Court in the case of
Contship Container Lines Ltd. (supra). Learned Counsel has further
submitted that the District Commission had discussed the said
judgment in Para-10 of the impugned order and by relying upon said
judgment had dismissed the Complaint. The Complainants have not
referred to any other judgment of the Hon'ble Supreme Court
overruling the said judgment. The Appeal filed by the Complainants is
liable to be dismissed.
12. I have heard the arguments raised by learned Counsel for
the Appellants and Respondents No.1 & 2. Respondent No.3 has not
appeared in the Appeal despite service of notice. We have also
carefully perused the impugned order passed by the District
Commission and all other documents available on the file.
13. Facts regarding filing of the Complaint by the Complainants
before the District Commission, Reply thereto filed by the OPs No.1 &
2, dismissal of said Complaint and thereafter filing of the present
Appeal by the Appellants/Complainants before this Commission are
not in dispute.
First Appeal No.854 of 2022 8
14. It is also not in dispute that initially the Complainants had
filed the Complaint i.e. CC No.41 of 2013 under Section 12 of the
Consumer Protection Act, 1986, which was partly allowed by the
District Commission vide order dated 31.12.2014 and OPs No.1 & 2
were directed to reopen and reconsider the claim of the Complainants
by passing a fresh order after considering the judgment of Contship
Container Lines Ltd. (supra) as well as after going through the
documents available on record as submitted by the Complainants as
well as the report of the Surveyors and Loss Assessors &
Investigators. However, OPs No.1 & 2 had again repudiated the claim
of the Complainants vide letter dated 28.04.2015. Thereafter, again
the Complainants had filed the Complaint before the District
Commission, which was dismissed vide impugned order dated
07.06.2022, which is the subject matter of the present Appeal.
15. Undisputedly, the Complainants had purchased the
'Marine Open Declaration Policy' bearing No.21/11/7 from OPs No.1
& 2 for a sum assured of ₹10 Crore on 13.05.2010. The Complainants
used to transport the edible oil from one place to other. The
Complainants had engaged OP No.3 for transportation of edible oil
vide GR No.30471 dated 09.08.2010 through tanker. It is also not in
dispute that it was done during the continuation of the Insurance Policy
issued by Insurance Company. The tanker, through which the edible
was being transported, had met with accident on 11.08.2010 and the
First Appeal No.854 of 2022 9
Complainants had suffered loss of oil to the extent of ₹11,70,000/-.
The matter was reported to the Police and FIR No.239 was registered
at Police Station Focal Point, Ludhiana. The Complainants had
informed the OPs regarding the loss so occurred on the same day
i.e.11.08.2010. OPs No.1 & 2 had deputed the Surveyor to assess the
loss, who had verified the loss and declaration and had also prepared
his report. However, the claim was repudiated on the ground of
concealment of material facts and also change of driver on the basis of
report submitted by M/s Royal Associates. The Complainants had filed
CC No.41 of 2013 before the District Commission, which was disposed
off/partly allowed vide order dated 31.12.2014 with the direction to
OPs No.1 & 2 to reopen and reconsider the claim of the Complainants
and pass a fresh order after considering the judgment of case
Contship Container Lines Ltd. (supra).
16. Thereafter, in compliance of the direction issued by the
District Commission, the claim was reconsidered and thereafter it was
repudiated vide letter dated 28.04.2015 on the ground that the seller
was having no insurable interest in the goods as the goods were
loaded in the tanker of the carrier. Thereafter, the Complainants had
filed CC No.372 of 2015 before the District Commission, which was
dismissed vide order dated 07.06.2022. Said order dated 07.06.2022
has been challenged by the Complainants by way of filing the present
appeal.
First Appeal No.854 of 2022 10
17. By considering the oral arguments raised by both the sides
and also on perusal of the documents/evidence available on the record
as well as the terms and conditions of the policy and also the order
passed by the District Commission, certain links were missing, as the
goods were transported through transporter/carrier i.e. OP No.3 but no
reply was filed by OP No.3-Carrier for the reasons best known to him
and subsequently the carrier was proceeded ex parte. Further, the
purchaser of the goods was also the necessary party but it was not
impleaded. The agreements executed between the Complainants and
carrier and the purchaser have not come on record. In absence
thereof, it cannot be ascertained as to who would be entitled or liable
for the loss of the oil occurred during transportation.
18. Further, in the Insurance Policy, it was mentioned "From
Khanna to Anywhere in India" against the column of 'Risk Details'.
However, in the Cover Note, it was mentioned that the consignment
was on 'FOR Basis'. Further, in the invoice, it was mentioned that the
goods were sent on 'FOR Basis' and Condition No.3 of the terms and
conditions mentioned on the invoice is relevant, which is reproduced
as under:
"Our responsibility ceases after handing over the goods to
carrier."
19. Said invoice was signed by the driver of the tanker and the
Complainants. Further, the OPs had produced on record the copy of
Registered Letter/Notice dated 11.08.2010 before the District
First Appeal No.854 of 2022 11
Commission (Ex.R-15). The Complainants had claimed the loss of the
oil from the transporter, occurred in the said accident. It appears that
there might be some understanding or agreement between the
Complainants and the carrier. However, what happened to said letter
and what was the response of the transporter has not come on the
record.
20. All the facts and circumstances as mentioned above are
required to be ascertained for reaching to the right conclusion and in
absence thereof, the chain of events is not complete. However, the
District Commission had decided the Complaint without verifying all
these facts and circumstances. Without impleading the purchaser as
party and without taking reply/evidence of the carrier, the controversy
involved in the present case cannot be adjudicated effectively.
Therefore, we deem it appropriate to remand the case to the District
Commission for fresh decision of the Complaint after impleading the
purchaser as party.
21. Accordingly, finding force in the contentions raised by
learned counsel for the Appellants/Complainants, the appeal is
allowed and the impugned order dated 07.06.2022 passed by the
District Commission is set aside. The case is remanded to the
District Commission with the direction to the Complainants to
move appropriate application for impleading the purchaser of the
goods as party and the District Commission shall pass
First Appeal No.854 of 2022 12
appropriate order thereon in view of the aforesaid observations
made by us. Respondent No.3/OP No.3-Transporter was ex parte
before the District Commission and it has also not appeared in
the appeal before this Commission. The District Commission
shall also issue fresh notice to OP No.3. In case the transporter
and the carrier fail to appear or to file/adduce reply/evidence, the
District Commission shall make every effort to call for their
records pertaining to the transaction in dispute. Thereafter, the
Complaint shall be decided by the District Commission afresh on
the basis of contents of the Complaint as well as written
version/evidence of the parties as well as the oral arguments to
be raised by the parties.
22. The Appellants and Respondents No.1 & 2 through
counsel are directed to appear before the District Commission on
22.04.2024.
23. Since the main case has been disposed off, so all the
pending Miscellaneous Applications, if any, are accordingly disposed
off.
24. The Appeal could not be decided and pronounced within
the statutory period due to heavy pendency of Court cases.
(JUSTICE DAYA CHAUDHARY)
PRESIDENT
March 06, 2024.
(Gurmeet S)
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH.
1) First Appeal No.25 of 2023
Date of institution : 12.01.2023
Reserved On : 12.02.2024
Date of decision : 05.03.2024
1. Tata AIG General Insurance Company, Peninsula Business
Park, Town-A, 15th Floor, GK Marg, Lower Parel, Mumbai-
400013.
2. Tata AIG General Insurance Company Ltd., 2nd Floor, RK House,
Dalhousie Road, Pathankot, through its General Manager, PIN
Code-145001.
Now through Legal Manager.
....Appellants/OPs
Versus
Salma w/o Hrun Khan R/o Mirpur Colony, Model Town, Pathankot,
Tehsil and District Pathankot, PIN Code-145001.
....Respondent/Complainant
1) First Appeal No.26 of 2023
Date of institution : 12.01.2023
Reserved On : 12.02.2024
Date of decision : 05.03.2024
1. Tata AIG General Insurance Company, Peninsula Business
Park, Town-A, 15th Floor, GK Marg, Lower Parel, Mumbai-
400013.
2. Tata AIG General Insurance Company Ltd., 2nd Floor, RK House,
Dalhousie Road, Pathankot, through its General Manager, PIN
Code-145001.
Now through Legal Manager.
....Appellants/OPs
Versus
First Appeal No.25 of 2023 2
Salma w/o Hrun Khan R/o Mirpur Colony, Model Town, Pathankot,
Tehsil and District Pathankot, PIN Code-145001.
....Respondent/Complainant
First Appeals under Section 41 of the
Consumer Protection Act, 2019 against the
similar orders dated 18.08.2022 passed by
the District Consumer Disputes Redressal
Commission, Gurdaspur.
Quorum:-
Hon'ble Mrs. Justice Daya Chaudhary, President
Ms. Simarjot Kaur, Member
1) Whether Reporters of the Newspapers may be allowed to see the Judgment? Yes/No
2) To be referred to the Reporters or not? Yes/No
3) Whether judgment should be reported in the Digest? Yes/No Present:-
For the appellants : Sh. Sahil Abhi, Advocate For the respondent : Sh. N.K. Wadehra, Advocate.
JUSTICE DAYA CHAUDHARY, PRESIDENT Two First Appeals i.e. First Appeal No.25 of 2023 and First Appeal No.26 of 2023 shall be disposed off vide this common order of ours, as similar questions of law and facts are involved therein and the same have been filed by the appellants/OPs against the similar orders dated 18.08.2022 passed by the District Consumer Disputes Redressal Commission, Gurdaspur (in short, "the District Commission"). However, the facts are being extracted from First Appeal No.25 of 2023.First Appeal No.25 of 2023 3 First Appeal No.25 of 2023
Appellants/OPs i.e. Tata AIG General Insurance Company and another have filed the present Appeal under Section 41 of the Consumer Protection Act, 2019 being aggrieved by the order dated 18.08.2022 passed by the District Commission, Gurdaspur, whereby the Complaint filed by the respondent/Complainant had been partly allowed.
2. It would be apposite to mention here that hereinafter the parties will be referred, as had been arrayed before the District Commission.
3. Briefly, the facts of the case as made out by the Respondent/Complainant in the Complaint filed by her before the District Commission are that she was running a Saloon under the name and style of M/s Khans Unisex Saloon. The Complainant had purchased Insurance Policy i.e. 'My Business My Choice' bearing No.2270189730 from the OPs, by which any loss occurred due to 'Fire and Special Perils' as well as 'Burglary' was covered for a sum assured of ₹5 lac each. Said policy was valid for the period w.e.f. 15.05.2019 to 14.05.2020. It was mentioned in the Complaint that before issuance of the said policy, the agent of the OPs had visited the premises of the Complainant and had physically verified the entire stock lying there. The stock of the Complainant was hypothecated with Bank of Baroda, Branch at Pathankot and the physical inspection of First Appeal No.25 of 2023 4 the stock was also conducted by the officials of the Bank on 15.05.2009. Thereafter, the policy was issued by the OPs through Bank of Baroda being the Financer/Agent/Broker. In the intervening night of 5/6.06.2019 at about 1.30 a.m., a fire broke out at the saloon of the Complainant and all the articles i.e. furniture and fixtures, electronic goods and other related items were destroyed. DDR No.36 was lodged with the police on 08.06.2019. The OPs were also intimated and they appointed the surveyor, who personally inspected the premises on 07.06.2019 and prepared the Report dated 26.11.2019. All the required documents as demanded by the surveyor were supplied by the Complainant through emails dated 03.07.2019 and 08.07.2019 as well as speed post letter dated 04.07.2019, which were duly acknowledged by the surveyor. Thereafter, surveyor again demanded some more documents on 29.07.2019 and the Complainant sent the reply through email and letter dated 07.08.2019. However, still the claim of the Complainant was not settled. A legal notice dated 14.01.2020 was served upon the OPs but without any effect. The Complaint was filed with the prayer for issuance of directions to the OPs to pay the insurance claim of ₹5 lac along with interest at the rate of 18% per annum from the date of fire incident till its realization.
4. Upon issuance of notices to the OPs, they had appeared through Counsel before the District Commission and filed written reply, wherein certain preliminary objections on maintainability of the First Appeal No.25 of 2023 5 Complaint, absence of any cause of action, the Complaint being false and frivolous etc. were raised. Other averments as made in the Complaint were denied and prayer was made in the reply that the Complaint be dismissed with costs.
5. By considering the contents of the Complaint and reply thereof filed by the OPs, the Complaint was partly allowed by the District Commission vide impugned order dated 18.08.2022. The relevant portion of said order as mentioned in Paras-7 & 8 is reproduced as under:
"7. We observe that the OP insurers have failed to produce any cogent evidence to prove their charge of violation of clause 4. The uncontested visit by the OP appointed Surveyor to the Site on 07.06.2019 i.e., the very next day of the fire-incident and his initial queries of 10.06.2019 do prove that the OP insurers were duly intimated of the incident on the very next day of the fire-incident, itself. Further, the Complainant's cooperation is very much vivid from the exhibited e-mail copies the inter-se exchange of communication(s). Thus, the allegations as put forth by the insurers are mere bald-statements in the absence of any cogent evidence. Further, the Surveyor's Assessment of Loss Report has been filed sans the mandatory affidavit as such the same shall not be admissible in evidence. Moreover the report does not disclose the basis of valuation of stocks/stores vide which the loss has been assessed. The Complainant has duly filed the Banker's Certificate confirming the joint inspection (by the banker as well as the insurer) of the stocks and its valuation @ Rs.5.0 Lac on the date of purchase of the related policy. Thus, we set-aside the OP insurers' arbitrary rejection/repudiation of the fire-loss claim since that amounts to but an evidence of employ of unfair practices and also leads to affirm deficiency in service on their part and that surely attracts an adverse statutory award to their favor.
8. In the light of the all above, we partly allow this Complaint and ORDER the OP insurers to withdraw the impugned repudiation of the impugned claim and pay the same in terms of the policy to pay the fire-loss claim, in full, besides to pay her Rs.10,000/- in lump sum as cost and compensation within 45 days of receipt of the certified copy of these orders otherwise the awarded amount shall attract interest @ 9% PA from the date of the Complaint till paid, in full."First Appeal No.25 of 2023 6
6. Said order dated 18.08.2022 passed by the District Commission has been challenged by the Appellants/OPs by way of filing the present Appeal by raising a number of arguments.
7. There was a delay of 80 days in filing of the Appeal. Misc. Application No.158 of 2023 was filed for condonation of delay, which was supported by an affidavit. Said application was allowed vide order dated 06.02.2023 and the delay in filing of the Appeal was condoned subject to cost of ₹5,000/- to be deposited in the Consumer Legal Aid Account of this Commission within a period of 4 weeks.
8. The Appellants/OPs had filed M.A. No.49 of 2023 for placing on record the affidavit of the surveyor by way of additional evidence stating therein that the affidavit of the surveyor could not be produced on record before the District Commission despite due diligence, as the Counsel for the Appellants was not advised to produce the same to prove the survey report. However, the Affidavit of the surveyor was necessary for reaching to the right conclusion.
9. For the reasons recorded in the application, M.A. No.49 of 2023 is allowed and the affidavit of the surveyor is taken on record.
10. Mr. Sahil Abhi, learned Counsel for the appellants/OPs has vehemently submitted that the District Commission had partly allowed the Complaint by interpreting that there was no delay in giving intimation of loss as well as by relying upon the terms and conditions of the policy. However, the claim was closed vide email dated First Appeal No.25 of 2023 7 28.05.2020 being violative of Condition No.4 of the policy. Learned Counsel has further submitted that it was a case of wrong interpretation and great prejudice has been caused to the OPs and as such the impugned order is liable to be set aside. Learned Counsel has further submitted that the District Commission had also ignored a material fact that the Complainant Salma was not insured under the policy. The survey report was an important and material document and it could not be brushed aside without assigning any reason as per the law laid down in various judgments of the Consumer Protection Act. Learned Counsel has further submitted that the insured had neither filed any objection to the survey report nor challenged the said report. The survey report could not have been brushed aside only on the ground that the mandatory affidavit had not been filed. The Survey Report had been proved on record by way of affidavit of Chief Manager of the Appellant-Insurance Company and as such no separate affidavit was required. Further, it has been submitted that the survey report was very detailed and had disclosed the details of the assessment made therein and the valuation of the stock for assessment of the stock but still the District Commission had ignored this material fact, as no document was produced by the insured to substantiate the loss i.e. the purchase bills and the bills showing the sale of product. Learned Counsel has further submitted that the surveyor had rightly assessed the loss of ₹60,660/-. However, the First Appeal No.25 of 2023 8 District Commission had wrongly relied upon the Banker's Certificate, whereas the Bank had no right to assess the value before the purchase of the policy without joining the Insurance Company and thereby by issuing the certificate about the alleged loss. Further it has been submitted that the District Commission has given a wrong finding that the stock was verified on the date of purchase of the policy as mentioned in the order, whereas as per certificate dated 29.06.2019, the inspection was done on 15.05.2019. However, the Insurance Policy was obtained for insuring the stock on 15.05.2019. The stock was worth ₹5 lac. The alleged fire had taken place in the intervening night of 5/6-06-2019, which was after the gap of 21 days. The saloon had remained in operation and during this period the stocks might have been utilized. All these facts and circumstances were not taken into consideration by the District Commission and the impugned order is liable to be set aside.
11. Mr. N.K. Wedehra, learned Counsel for the respondent/ Complainant has submitted that the order passed by the District Commission is well reasoned and the same has been passed by considering the relevant documents/evidence produced by both the parties. The detailed findings had been recorded by the District Commission by discussing all the documents/evidence produced by the both the sides and no interference is required. First Appeal No.25 of 2023 9
12. We have heard the arguments raised by learned Counsel for the parties. We have also carefully perused the impugned order passed by the District Commission and all other relevant documents available on the file.
13. Facts regarding filing of the Complaint by the Complainant before the District Commission, reply thereto filed by the Appellants/OPs, partly allowing of said Complaint and thereafter filing of the present Appeal by the Appellants/OPs before this Commission are not in dispute.SS
14. Admittedly, the Respondent/Complainant had obtained the Insurance Policy from the OPs for the period w.e.f. 15.05.2019 to 14.05.2020, under which the loss occurred due to 'Fire and Special Perils' as well as 'Burglary' was covered for the sum assured of ₹5 lac each. The fire incident had occurred during the intervening night of 5/6.6.2019 at the premise of the saloon of the Complainant. As per the version of the Complainant, the entire furniture/fixtures/stock/ stores/consumables and other items were burnt. A DDR was lodged with the police on 08.08.2016 and intimation of loss was also given to the OPs immediately.
15. The claim of the Complainant was denied by the OPs on the ground of violation of Condition No.4 of the policy, which is reproduced as under:
"On the happening of any loss or damage, the insured shall forthwith give notice thereof to the Company and shall within 15 days after the First Appeal No.25 of 2023 10 loss or damage, or such further time as the Company may in writing allow in that behalf, delivery to the Company."
16. The fire incident had taken place on 5/6.6.2019 and the OPs themselves had admitted in their reply that the intimation of fire incident was given to them on 06.06.2019. Strangely the OPs had denied their liability as per Condition No.4 of the policy, whereas the intimation of loss was given immediately. This act of the Insurance Company is not appreciable in the eyes of law.
17. Another ground raised by the OPs was that the Complainant had not supplied the documents establishing insurable interest of Mrs. Salma in Khan Unisex Saloon. As per the certificate issued by Bank, Mrs. Salma was Prop. of Khan Unisex Saloon, whereas as per the affidavit, she was the Prop. of Khan Men Saloon and Mr. Anish Khan was the Prop. of Khan Women Saloon.
18. It is also relevant to mention that the Insurance Policy (Ex.C-1) was issued in the name of Khan Unisex Saloon. As per the Certificate dated 29.06.2019 issued by Bank of Baroda, Mrs. Salma was the Prop. of Khan Unisex Saloon. The Complainant had also clarified vide email dated 18.09.2019 that Khan Unisex Saloon was a brand name, under which the Men Saloon was being operated on the First Floor and Women Saloon was being operated on the Ground Floor. Therefore, the Complainant Mrs. Salma being the Proprietor of Brand name 'Khan Unisex Saloon' was competent to file the First Appeal No.25 of 2023 11 Complaint. The claim of the Complainant had wrongly been denied by the OPs on the baseless grounds.
19. The OPs had appointed the surveyor i.e. Crawford Insurance Surveyors & Loss Assessors India Pvt. Ltd. The documents demanded by the OPs or the surveyor were supplied by the Complainant, as is apparent from the emails which are part of the record. The surveyor had visited the place of fire incident on 07.06.2019 and had submitted the Final Survey Report dated 26.11.2019 (Ex.OP-1/5), wherein the Net Adjusted Loss was assessed to the tune of ₹60,660/-. However, the surveyor had mentioned the gross loss of the stocks to the tune of ₹71,753/-, against the Adjusted Loss of ₹69,857/-. As per the stand of the Complainant, all the bills/record of purchase etc. were burnt in the fire. As per the Certificate dated 29.06.2019 issued by Bank of Baroda (Ex.C-7), the stocks worth ₹5 lac were lying in the saloon of the Complainant at the time of Inspection dated 15.05.2019.
20. As per version of the surveyor, the fire has taken place due to short circuit of electricity. As per version of the OPs, the only reason for assessing the aforesaid loss was that the fire had taken place on 5/6/.6.2019 i.e. after a gap of 21 days of the date of issuing the policy and the stocks might have been used/utilized within the said period. However, no cogent and convincing evidence was produced by the OPs to prove this fact. Mere bald statement in the absence of any First Appeal No.25 of 2023 12 authentic proof cannot be relied upon. Although the affidavit of the surveyor has been produced on record with the Appeal by way of additional evidence but the Surveyor had not explained as to on what basis, the assessment of loss had been made by him. The surveyor had further observed that the fire had occurred in switch panel on the First Floor which had travelled on the ground floor through open spaces/toughened glass windows, which had resulted into damages to assets/contents fixed/installed on both the floors of the showroom. However, the deduction @ 50% was applied by the surveyor towards the claim of the Complainant without any basis. The assessment made by the surveyor in the Survey Report cannot be relied upon in absence of any documentary evidence.
First Appeal No.26 of 2023
21. Appellants/OPs have filed M.A. No.50 of 2023 for placing on record the affidavit of the surveyor by way of additional evidence. It has been mentioned in the application that the affidavit of the surveyor could not be produced on record before the District Commission despite due diligence, as the Counsel for the Appellants was never advised to produce the same to prove the survey report. The Affidavit of the Surveyor is necessary for reaching to the right conclusion.
22. For the reasons recorded in the application, M.A. No.50 of 2023 is allowed and the Affidavit of the surveyor is taken on record. Main Case:
First Appeal No.25 of 2023 13
23. In the said Appeal, the Complainant had purchased a policy i.e. 'My Business My Choice' bearing No.2270190278 from the OPs, under which the loss caused due to 'Fire and Special Perils' as well as 'Burglary' was covered and it was for the total sum assured of ₹62,01,000/- for which a premium of ₹10,998/- was paid. Said policy was valid for the period w.e.f. 21.05.2019 to 20.05.2020. Before issuing the said policy, the agent of the OPs had visited the premises of the Complainant and had physically verified the entire stock lying there. The stock of the Complainant was hypothecated with the Bank of Baroda, Branch at Pathankot and the physical inspection of the stock was also conducted by the officials of the Bank on 15.05.2009. Thereafter, the policy was issued by the OPs through Bank of Baroda being the financer/Agent/Broker. In the intervening night of 5/6.06.2019 at about 1.30 a.m., the fire had broken out at the saloon of the Complainant and all the articles i.e. furniture and fixtures, electronic goods and other related items were destroyed. DDR No.36 was lodged with the police on 08.06.2019. The OPs were also intimated and they had appointed the surveyor, who had personally inspected the premises on 07.06.2019 and had prepared the Survey Report dated 26.11.2019.
24. Upon issuance of notices, the OPs had appeared and filed written reply on the similar lines of the reply as mentioned in First Appeal No.25 of 2023.
First Appeal No.25 of 2023 14
25. By considering the contents of the Complaint and reply thereof filed by the OPs, the Complaint was partly allowed by the District Commission vide impugned order dated 18.08.2022. The relevant portion of said order as mentioned in Paras-7 & 8 is reproduced as under:
7. We observe that the OP insurers have failed to produce any cogent evidence to prove their charge of violation of clause 4. The visit by the OP appointed Surveyor to the Site on 07.06.2019 i.e., the very next day of the fire-incident and his initial queries of 10.06.2019 do prove that the OP insurers were duly intimated of the incident on the very next day of the fire-incident, itself. Further, the Complainant's cooperation is very much vivid from the e-mail copies the inter-se exchange of communication(s). Thus, the allegations as put forth by the insurers are mere bald-statements in the absence of any cogent evidence. Further, the Surveyor's Assessment of Loss Report has been filed sans the mandatory affidavit as such the same shall not be admissible in evidence. Moreover the report does not disclose the basis of valuation of stocks/stores vide which the loss has been assessed. The Complainant has duly filed the Banker's Certificate confirming the joint inspection (by the banker as well as the insurer) of the insured assets valued @ Rs.65 Lac (approximately) on 15.05.2019 i.e. before the purchase of the related policy. Thus, we set-aside the OP insurers' arbitrary rejection/repudiation of the fire-loss claim since that amounts to but an employ of unfair practices and also leads to re-affirm deficiency in service on their part and that surely attracts an adverse statutory award.
8. In the light of the all above, we partly allow this Complaint and ORDER the OP insurers to withdraw the impugned repudiation of the impugned claim and to pay the fire-loss claim, in full, besides to pay her Rs.10,000/- in lump sum as cost and compensation within 45 days of receipt of the certified copy of these First Appeal No.25 of 2023 15 orders otherwise the awarded amount shall attract interest @ 9% PA from the date of the Complaint till paid, in full.
26. As per the survey report, the Complainant had submitted the claim bill of ₹51,39,459/- as per the quotations/estimates towards the actual affected/damaged items. Copies of said quotations/ estimates were also submitted to the surveyor. Out of said total loss, the loss of contents was ₹44,16,119/-, the loss caused to the stocks was worth ₹7,23,340/-. Details the items/machinery/stocks insured under the policy were also given. However, the surveyor had assessed the Net Adjusted Loss to the tune of ₹15,39,206/-. However, no cogent and convincing evidence had been produced by the surveyor or by the OPs to prove as to how the loss had been assessed to the tune of ₹15,39,206/- against the claimed loss of ₹51,39,459/-, which was based on the quotations/estimates submitted by the Complainant. Moreover, the surveyor has also not explained as to on what basis, the assessment of loss had been made by him. Therefore, the assessment of loss by the surveyor in the Survey Report cannot be relied upon in absence of documentary evidence.
27. In view of the reasons as made above and also the facts and circumstances as discussed, the claim of the Complainant had been denied without any reasoning. The incident of fire was thoroughly investigated by the OPs through the surveyor and it was found to be genuine case. We are of the considered view that the impugned orders passed by the District Commission in both the Complaints are based First Appeal No.25 of 2023 16 on proper appreciation of the evidence and documents available on the file and as such no interference is required.
28. Accordingly, finding no force in the contentions raised by learned Counsel for the appellants/OPs, both the Appeals i.e. First Appeal No.25 of 2023 and First Appeal No.26 of 2023 are dismissed and the impugned orders dated 18.08.2022 passed by the District Commission is upheld.
29. Since the main cases have been disposed off, so all the pending Miscellaneous Applications, if any, are accordingly disposed off.
30. In First Appeal No.25 of 2023, the appellants had deposited a sum of ₹41,006/- at the time of filing of the Appeal. Another amount of ₹2,58,260/- was also deposited vide receipt dated 06.03.2023 in compliance of order dated 06.02.2023. Said amounts, along with interest which has accrued thereon, if any, shall be remitted by the Registry to the District Commission forthwith. The Respondent/Complainant may approach the District Commission for the release of the same and the District Commission may pass appropriate order in this regard in accordance with law.
31. In First Appeal No.26 of 2023, the appellants had deposited a sum of ₹30,55,655/- at the time of filing of the Appeal. Said amount, along with interest which has accrued thereon, if any, shall be remitted by the Registry to the District Commission forthwith. First Appeal No.25 of 2023 17 The Respondent/Complainant may approach the District Commission for the release of the same and the District Commission may pass appropriate order in this regard in accordance with law.
32. The Appeals could not be decided within the statutory period due to heavy pendency of Court cases.
(JUSTICE DAYA CHAUDHARY) PRESIDENT (SIMARJOT KAUR) MEMBER March 05, 2024.
(Gurmeet S) STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB, CHANDIGARH.
First Appeal No.26 of 2023
Date of institution : 12.01.2023
Reserved On : 12.02.2024
Date of decision : 05.03.2024
1. Tata AIG General Insurance Company, Peninsula Business Park, Town-A, 15th Floor, GK Marg, Lower Parel, Mumbai- 400013.
2. Tata AIG General Insurance Company Ltd., 2nd Floor, RK House, Dalhousie Road, Pathankot, through its General Manager, PIN Code-145001.
Now through Legal Manager.
....Appellants/OPs Versus Salma w/o Hrun Khan R/o Mirpur Colony, Model Town, Pathankot, Tehsil and District Pathankot, PIN Code-145001.
....Respondent/Complainant First Appeal under Section 41 of the Consumer Protection Act, 2019 against the order dated 18.08.2022 passed by the District Consumer Disputes Redressal Commission, Gurdaspur.
Quorum:-
Hon'ble Mrs. Justice Daya Chaudhary, President Ms. Simarjot Kaur, Member Present:-
For the appellants : Sh. Sahil Abhi, Advocate For the respondent : Sh. N.K. Wadehra, Advocate First Appeal No.26 of 2023 2 JUSTICE DAYA CHAUDHARY, PRESIDENT For detailed order, see order passed in First Appeal No.25 of 2023 (Tata AIG General Insurance Company & Anr. v. Salma).
(JUSTICE DAYA CHAUDHARY) PRESIDENT (SIMARJOT KAUR) MEMBER March 05, 2024.
(Gurmeet S) STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB, CHANDIGARH.First Appeal No.26 of 2023
Date of institution : 12.01.2023
Reserved On : 12.02.2024
Date of decision : 05.03.2024
1. Tata AIG General Insurance Company, Peninsula Business Park, Town-A, 15th Floor, GK Marg, Lower Parel, Mumbai- 400013.
2. Tata AIG General Insurance Company Ltd., 2nd Floor, RK House, Dalhousie Road, Pathankot, through its General Manager, PIN Code-145001.
Now through Legal Manager.
....Appellants/OPs Versus Salma w/o Hrun Khan R/o Mirpur Colony, Model Town, Pathankot, Tehsil and District Pathankot, PIN Code-145001.
....Respondent/Complainant First Appeal under Section 41 of the Consumer Protection Act, 2019 against the order dated 18.08.2022 passed by the District Consumer Disputes Redressal Commission, Gurdaspur.
Quorum:-
Hon'ble Mrs. Justice Daya Chaudhary, President Ms. Simarjot Kaur, Member Present:-
For the appellants : Sh. Sahil Abhi, Advocate For the respondent : Sh. N.K. Wadehra, Advocate First Appeal No.26 of 2023 2 JUSTICE DAYA CHAUDHARY, PRESIDENT For detailed order, see order passed in First Appeal No.25 of 2023 (Tata AIG General Insurance Company & Anr. v. Salma).
(JUSTICE DAYA CHAUDHARY) PRESIDENT (SIMARJOT KAUR) MEMBER March 05, 2024.
(Gurmeet S) STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB, CHANDIGARH.First Appeal No.26 of 2023
Date of institution : 12.01.2023
Reserved On : 12.02.2024
Date of decision : 05.03.2024
1. Tata AIG General Insurance Company, Peninsula Business Park, Town-A, 15th Floor, GK Marg, Lower Parel, Mumbai- 400013.
2. Tata AIG General Insurance Company Ltd., 2nd Floor, RK House, Dalhousie Road, Pathankot, through its General Manager, PIN Code-145001.
Now through Legal Manager.
....Appellants/OPs Versus Salma w/o Hrun Khan R/o Mirpur Colony, Model Town, Pathankot, Tehsil and District Pathankot, PIN Code-145001.
....Respondent/Complainant First Appeal under Section 41 of the Consumer Protection Act, 2019 against the order dated 18.08.2022 passed by the District Consumer Disputes Redressal Commission, Gurdaspur.
Quorum:-
Hon'ble Mrs. Justice Daya Chaudhary, President Ms. Simarjot Kaur, Member Present:-
For the appellants : Sh. Sahil Abhi, Advocate For the respondent : Sh. N.K. Wadehra, Advocate First Appeal No.26 of 2023 2 JUSTICE DAYA CHAUDHARY, PRESIDENT For detailed order, see order passed in First Appeal No.25 of 2023 (Tata AIG General Insurance Company & Anr. v. Salma).
(JUSTICE DAYA CHAUDHARY) PRESIDENT (SIMARJOT KAUR) MEMBER March 05, 2024.
(Gurmeet S) STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB, CHANDIGARH.First Appeal No.26 of 2023
Date of institution : 12.01.2023
Reserved On : 12.02.2024
Date of decision : 05.03.2024
1. Tata AIG General Insurance Company, Peninsula Business Park, Town-A, 15th Floor, GK Marg, Lower Parel, Mumbai- 400013.
2. Tata AIG General Insurance Company Ltd., 2nd Floor, RK House, Dalhousie Road, Pathankot, through its General Manager, PIN Code-145001.
Now through Legal Manager.
....Appellants/OPs Versus Salma w/o Hrun Khan R/o Mirpur Colony, Model Town, Pathankot, Tehsil and District Pathankot, PIN Code-145001.
....Respondent/Complainant First Appeal under Section 41 of the Consumer Protection Act, 2019 against the order dated 18.08.2022 passed by the District Consumer Disputes Redressal Commission, Gurdaspur.
Quorum:-
Hon'ble Mrs. Justice Daya Chaudhary, President Ms. Simarjot Kaur, Member Present:-
For the appellants : Sh. Sahil Abhi, Advocate For the respondent : Sh. N.K. Wadehra, Advocate First Appeal No.26 of 2023 2 JUSTICE DAYA CHAUDHARY, PRESIDENT For detailed order, see order passed in First Appeal No.25 of 2023 (Tata AIG General Insurance Company & Anr. v. Salma).
(JUSTICE DAYA CHAUDHARY) PRESIDENT (SIMARJOT KAUR) MEMBER March 05, 2024.
(Gurmeet S) STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB, CHANDIGARH.First Appeal No.26 of 2023
Date of institution : 12.01.2023
Reserved On : 12.02.2024
Date of decision : 05.03.2024
1. Tata AIG General Insurance Company, Peninsula Business Park, Town-A, 15th Floor, GK Marg, Lower Parel, Mumbai- 400013.
2. Tata AIG General Insurance Company Ltd., 2nd Floor, RK House, Dalhousie Road, Pathankot, through its General Manager, PIN Code-145001.
Now through Legal Manager.
....Appellants/OPs Versus Salma w/o Hrun Khan R/o Mirpur Colony, Model Town, Pathankot, Tehsil and District Pathankot, PIN Code-145001.
....Respondent/Complainant First Appeal under Section 41 of the Consumer Protection Act, 2019 against the order dated 18.08.2022 passed by the District Consumer Disputes Redressal Commission, Gurdaspur.
Quorum:-
Hon'ble Mrs. Justice Daya Chaudhary, President Ms. Simarjot Kaur, Member Present:-
For the appellants : Sh. Sahil Abhi, Advocate For the respondent : Sh. N.K. Wadehra, Advocate First Appeal No.26 of 2023 2 JUSTICE DAYA CHAUDHARY, PRESIDENT For detailed order, see order passed in First Appeal No.25 of 2023 (Tata AIG General Insurance Company & Anr. v. Salma).
(JUSTICE DAYA CHAUDHARY) PRESIDENT (SIMARJOT KAUR) MEMBER March 05, 2024.
(Gurmeet S) STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB, CHANDIGARH.First Appeal No.26 of 2023
Date of institution : 12.01.2023
Reserved On : 12.02.2024
Date of decision : 05.03.2024
1. Tata AIG General Insurance Company, Peninsula Business Park, Town-A, 15th Floor, GK Marg, Lower Parel, Mumbai- 400013.
2. Tata AIG General Insurance Company Ltd., 2nd Floor, RK House, Dalhousie Road, Pathankot, through its General Manager, PIN Code-145001.
Now through Legal Manager.
....Appellants/OPs Versus Salma w/o Hrun Khan R/o Mirpur Colony, Model Town, Pathankot, Tehsil and District Pathankot, PIN Code-145001.
....Respondent/Complainant First Appeal under Section 41 of the Consumer Protection Act, 2019 against the order dated 18.08.2022 passed by the District Consumer Disputes Redressal Commission, Gurdaspur.
Quorum:-
Hon'ble Mrs. Justice Daya Chaudhary, President Ms. Simarjot Kaur, Member Present:-
For the appellants : Sh. Sahil Abhi, Advocate For the respondent : Sh. N.K. Wadehra, Advocate First Appeal No.26 of 2023 2 JUSTICE DAYA CHAUDHARY, PRESIDENT For detailed order, see order passed in First Appeal No.25 of 2023 (Tata AIG General Insurance Company & Anr. v. Salma).
(JUSTICE DAYA CHAUDHARY) PRESIDENT (SIMARJOT KAUR) MEMBER March 05, 2024.
(Gurmeet S)