State Consumer Disputes Redressal Commission
Smt. Jaswantiben Kantilal Shaha, vs The Mahad Co-Op. Urban Bank Ltd., & Anr. on 15 October, 2009
BEFORE THE HON
BEFORE THE
HONBLE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, MAHARASHTRA, MUMBAI
FIRST APPEAL NO. 1486 OF 2008 Date of
filing: 25/11/2008
IN CONSUMER COMPLAINT NO.14/2007 Date of order:
15/10/2009
DISTRICT CONSUMER FORUM: ALIBAG
Smt. Jaswantiben Kantilal Shaha,
Green Park, Ladawali,
Taluka - Mahad, District: Raigad,
.. Appellant
(Org. Complainant)
V/s.
1.
2.
The Manager,
The Mahad Co-op. Urban Bank Ltd.,
Mahad, District : Raigad.
The New India Assurance Co. Ltd.,
Head Office: 87, M.G. Road,
Fort, Mumbai.
..Respondents/
(Org. Opposite Parties.)
Corum: Shri S.R. Khanzode, Honble Presiding
Judicial Member.
Smt. S.P. Lale, Honble Member.
Present: Shri S. S. Jinsiwale, Advocate for Appellant.
Shri R.A. Ghate, Advocate for Respondent No.1.
Shri A.S. Vidyarthi, Advocate for Respondent No.2.
-: ORDER :-
Per Shri S. R. Khanzode, Honble Presiding Judicial Member.(1)
This appeal arises out of order/award dated 13.10.2008 passed in Consumer Complaint No. 14/2007, between Smt. Jaswantiben Kantilal Shah V/s. The Manager, Mahad Co-op. Urban Bank Ltd. & Anr., by Consumer Disputes Redressal Forum, District Alibaug, Forum below, in short.(2)
This case pertains to one of the claims to the damaged caused to the stock insured due to heavy flood on 26th July, 2005.
The stock stored was hypothecated with Respondent/Opposite Party No.1 The Manager, Mahad Co-op. Urban Bank Ltd., hereinafter referred to as the Bank. Said stock was insured as per the insurance policy taken by the Bank for and on behalf of trader, late Kantilal Shaha with the Respondent/Opposite Party No.2 The New India Assurance Co. Ltd., hereinafter referred to as the Insurance Company, in short. Tea and edible oil are the only commodities which were covered under the Insurance Policy (Tea insured at sum of Rs.3,80,000/- and edible oil insured at sum of Rs.20,80,000/-, total amounting to Rs.24,60,000/-). Due to flood total loss to the insured goods was claimed and accordingly insurance claim was made. Insurance Company repudiated the claim on the ground of falsity. Insurance Companys assessment was based on Surveyors report and Inspection carried out by the Surveyor. Being aggrieved thereby consumer complaint was filed. Same was partly allowed, allowing the claim for damaged caused to the stock of tea only to the extent of Rs.3,80,000/- and in addition to it, Rs.5,000/- were awarded as compensation towards mental and physical torture and Rs.3,000/- as costs. However, not satisfied with the impugned order/award original Complainant filed this appeal.(3)
We heard Advocate Shri S. S. Jinsiwale, for the Appellant, Advocate Shri R.A. Ghate for the Bank and Advocate Shri A.S. Vidyarthi for the Insurance Company. Perused record and the material placed before us.(4)
In the instant case, in support of its claim Complainant did not adduce any evidence except filing copies of the documents which remained unproved. Complainant heavily relied upon the statement of trader late Kantilal Jagjivan Shaha, recorded on 08.08.2005 and the alleged panchanama. However, said panchanama cannot be held as the panchanama drawn by Revenue Officer soon after the incident. Admittedly, Complainant and her husband late Kantilal Shaha were not present at the time of incident and it appears that late Kantilal Shaha had made a statement on 08.08.2005, supra, giving the details as to the stock which inter alia included tea powder, soap, chilly powder, tamarind powder, oil drums, rava and maida etc. Same details were incorporated in the panchanama and which per se, therefore shows that it is not the panchanama recorded soon after the incident to assess the loss and the damage caused due to flood, but, it is the panchanama recorded after the statement of late Kantilal Shaha dated 08.08.2005. Hence, it could be inferred that no panchanama of the Revenue Officer of the actual incident, if drawn, is available. The certificate given by Grampanchayat -
Ladavali dated 08.08.2005 considering its formal nature and vagueness, is of no use to the Complainant. Besides that, the panchanama and the certificate of the gram panchanyat, supra, are not tendered in evidence u/sec. 13 of the consumer Protection Act, 1986, so it is the case of alleged photographs.
(5)On the contrary, the fact that on lodgment of the claim, the insurance company appointed the surveyor who actually visited the spot, carried out the investigation and arrived at conclusion that the claim is falsely made. The surveyor noticed that there was no actual damage caused to the stock, no business activities including movement of the goods or storing of any stock was noticed prior to the event and accordingly, considering the relevant aspects as per its factual findings, by its report dated 02.08.2006, informed the insurance company that the claim was not genuine. Said report is duly supported by affidavit of the Surveyor - Mr. V.B. Kulkarni. Against this there is no evidence in rebuttal adduced on behalf of the Complainant.
(6)Admittedly, the Insurance Policy was taken for, the goods which were hypothecated with the Bank. As per the hypothecation deed, as far as its Clause 12 is concerned, the trader was supposed to handover monthly statement of the stocks with the bank. Against this the Bank in its written statement and as supported by the Affidavit by its Manager Ankush Dattatraya Takke, claimed that they were totally unaware of alleged stock of tea powder worth Rs.3,80,000/- and edible oil worth Rs.20,80,000/-. Had there been any stock at the place this Bungalow No. 157 at Ladivali, the Bank would have certainly furnished the details thereof on the basis of its record. Complainant also failed to produce any records of actual stock on the day of incident of flood. In the circumstances, we find that the report of surveyor remained unimpeached and thus, the repudiation of the claim by the Insurance Company cannot be faulted as arbitrary and without any basis. Thus, no deficiency in service on the part of the insurance company could have been alleged.
(7)Insurance Company has not preferred any appeal and also the bank. This appeal is for enhancement of the claim awarded. Complainant miserably failed to substantiate her said claim. In the circumstances, we find the appeal is devoid of any substance. We hold accordingly and pass the following order:
O R D E R
1.
Appeal stands dismissed. Appellant to bear her own costs and pay to each one of the Respondents Rs.5,000/- as costs.
2. Copies of the order be furnished to the parties.
(S. P. Lale) (S. R. Khanzode) Member Presiding Judicial Member ep