State Consumer Disputes Redressal Commission
Kapoor Sons vs State Bank Of India General Insurance ... on 18 November, 2020
FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH.
Consumer Complaint No.168 of 2018
Date of Institution : 06.03.2018
Order Reserved on : 30.10.2020
Date of Decision : 18.11.2020
M/s Kapoor Sons Chawa Road, Samrala, through its Proprietor
Amandeep Kaur wife of late Sakinder Singh resident of Village Ajlod,
Teh.Samrala, District Ludhiana (Punjab).
....Complainant
Versus
1. SBI General Insurance Company Ltd., 101, 201 & 301, Junction
of Western Express Highway & Andheri Kurla - Road, Andheri
(East) Mumbai (400 069), through its General Manager.
2. SBI General Insurance Company Ltd., Servicing Branch Office at
Ground Floor, Sahni Plaza, Near Dada Motors & Indian Oil Petrol
Pump, G.T. Delhi Road, Dholewal Chowk, Ludhiana, through its
Branch Manager.
.....Opposite parties
Consumer Complaint under Section 17 of
the Consumer Protection Act, 1986.
Quorum:-
Mr. Rajinder Kumar Goyal, Presiding Member
Mrs. Kiran Sibal, Member Present:-
For the complainant : Sh.M.S.Saini, Advocate For the opposite parties : Sh.Inderjit Singh, Advocate RAJINDER KUMAR GOYAL, PRESIDING MEMBER:
The complainant has filed this complaint under Section 17 of the Consumer Protection Act, 1986 (in short "the Act"), against the opposite parties seeking following directions to them:-
i) to pay Rs.5,00,000/- on account of trauma and mental harassment;Consumer Complaint No.168 of 2018 2
ii) to pay Rs.31,00,000/- against the Insurance Policy No.1258385-01 dated 24.09.2014 along with interest @12%.
iii) to pay Rs.55,000/- as cost of litigation. Facts of the Complaint
2. Brief facts, as set out in the complaint are that the complainant-
firm is in the business of sale and purchase of confectionary goods and General merchant / daily use goods for earning its livelihood. It has been stated that earlier the proprietor late Sh.Sakinder Singh raised a loan from State Bank of Patiala for expanding the business of the firm and on 31.03.2015 the loan of Rs.24,75,638.55 is still pending on the firm against the stock. The stock of Rs.31,00,000/- was insured with opposite party No.2 vide policy No.1258385-01 dated 24.09.2014 which was valid upto 23.09.2015. Unfortunately on 15.08.2015, the proprietor Sh.Sakinder Singh expired and the whole family was in deep sorrow. Further submitted that when the family was trying to come out from the jolt of sudden demise of Sakinder Singh then on 20.09.2015 another tragedy took place as someone informed them at 7:00 am that a Fire took place at their business premises. They immediately called Fire Brigade and police but the damage was done by the fire in that time. The fire was controlled by the fire brigade staff however, the stock and other material worth more than Rs.35,00,000/- turned into ash. The premises was closed at the time of fire and it was due to some short circuit of electricity. A DDR dated 21.09.2015 was lodged with the police. The surveyor appointed by opposite party No.2 investigated the spot and took some pictures of the loss suffered. The Consumer Complaint No.168 of 2018 3 opposite parties sent an email dated 11.07.2016 on the email ID of the firm wherein an amount of Rs.1,56,658/- was passed by the opposite parties as the claim against the policy. The complainant met the officials of opposite party No.2 and requested that the actual loss suffered by them is more than Rs.35,00,000/- but the opposite parties kept on lingering the matter on one pretext or the other. A representation dated 07.01.2017 was also given with the request to enhance the claim as per loss suffered. As the claim of the complainant was not settled, the complainant filed the complaint seeking all the reliefs as prayed for. Earlier the complainant filed a complaint bearing No.124 of 2018 but the same was withdrawn and liberty was granted to file a fresh vide order dated 22.02.2018. Defence of the Opposite Parties
3. Upon notice, opposite parties appeared and filed their written statement taking preliminary objections that the complaint is frivolous and vexatious and is liable to be dismissed as the complainant has failed to make out a case of deficiency in service and unfair trade practice against the opposite parties. The complainant has no locus- standi to file the present complaint as the complainant failed to produce any document showing that she was the sole proprietor of the M/s Kapoor Sons. It is submitted that the complainant failed to submit the documents sought from her through letter dated 28.07.2016 which included "Legal Heir Certificate" in respect of 'proprietor'. After receiving the intimation authorized surveyor Sh.Suresh Vashisht & Co. was appointed who assessed the liability as Rs.1,56,668/-, after inspecting the record and visit the location, vide addendum survey Consumer Complaint No.168 of 2018 4 report dated 20.06.2016. The complaint has been filed with mala fide and dishonest intention and not only concealed the material facts from this Commission but has also twisted and distorted the same. The complainant has filed a complaint for exaggerated and excessive amount which beyond and contrary to record. The complaint is liable to be dismissed as it involves the complicated questions of law and facts which include quantum dispute and same requires appreciation of evidence and pleadings. The opposite parties are still ready and willing to remit/pay the amount as assessed by the surveyor. The complaint is liable to be dismissed on the ground of non-joinder of the necessary parties. On merits, all the contentions as detailed in the preliminary objections have been reiterated. The other averments as averred by the complainant in her complaint have been denied. It is submitted that there is no deficiency in service or unfair trade practice on the part of the opposite parties and prayed for dismissal of the complaint with costs.
Evidence of the Parties
4. The complainant tendered in evidence her affidavit as Ex.C-A along with documents as Ex.C-1 to Ex.C-9, Ex.C-10(colly) to Ex.C- 12(colly).
5. On the other hand, opposite parties tendered in evidence the affidavits of Sh.Jitendra Dhabhai, Deputy Manager as Ex.OP-A & Ex.OP-C, affidavit of Sh.Suresh Vashisht as Ex.OP-B along with documents i.e. copy of policy as Ex.OP-1, copy of survey report dated 10.06.2016 as Ex.OP-2, copy of survey report dated 20.06.2016 as Ex.OP-3, copy of letter dated 28.07.2016 as Ex.OP-4, copy of mail Consumer Complaint No.168 of 2018 5 dated 18.08.2016 as Ex.OP-5, copy of claim form as Ex.OP-6, copy of statement as Ex.OP-7 and copy of Power of Attorney as Ex.OP-8. Contentions of the Parties
6. We have heard the learned counsel for the parties and have gone through the complaint, written statement and evidence filed by the parties.
7. Learned counsel for the complainant argued that initially Sakinder Singh was the proprietor of the firm. The complainant-firm is in the business of sale/purchase of confectionery goods for earning its livelihood. Late Sakinder Singh availed a loan of Rs.24,75,638.55 for business purposes and got insured the stocks with opposite party No.2 for Rs.31,00,000/- vide policy No.1258385-01 dated 24.09.2014. However, on 15.08.2015, Sakinder Singh expired. Thereafter, the business was taken care of by his wife. On 20.09.2015 at 7:00 a.m. a fire broke out in the business premises due to electricity short circuit. Fire brigade controlled the fire. A DDR was also lodged to the concerned police station. The claim was lodged with the opposite parties, who deputed the surveyor to assess the loss. The surveyor assessed the loss to the tune of Rs.1,56,658/- which was not accepted by the complainant as the loss suffered by the complainant was much more than the assessed. The complainant requested the opposite parties to enhance the claim and also gave representation which they refused to do so. This act and conduct of the opposite parties amounts to deficiency in service and unfair trade practice. Finally it was prayed to allow the complaint by granting all the reliefs as prayed for. Consumer Complaint No.168 of 2018 6
8. Per contra, learned counsel for the opposite parties argued the complaint is liable to be dismissed as complicated questions of law and facts are involved. Moreover, the complainant has failed to make out any deficiency in service or unfair trade practice against the opposite parties. It is argued that the complainant has failed to submit the complete documentations as demanded to remit the amount into the account of the complainant. The documents, which the complainant placed on record by way of additional evidence, were never supplied to the opposite parties. The claim filed by the complainant was exaggerated and excessive which is beyond and contrary to record. The complainant has not made State Bank of India as a party to the complaint, to which the stocks were hypothecated. The complainant has unnecessarily dragged the opposite parties just to get undue advantage. There is no deficiency in service or unfair trade practice on the part of the opposite parties. It is prayed to dismiss the complaint with costs.
Consideration of the Contentions
9. We have give our thoughtful consideration on the contentions raised by learned counsel for the parties and have carefully gone through the record.
10. First of all, we would like to decide the objection raised by the opposite party that disputed question of facts are involved in the present complaint which cannot be adjudicated in a summary procedure and requires detailed evidence, therefore, the Commission cannot decide the matter. In case we go through the pleadings of the parties, the complainant obtained an insurance policy for his stocks, Consumer Complaint No.168 of 2018 7 fixtures and furniture of his shop and paid the premium. The policy contained various terms and conditions and it is only the interpretation of terms and conditions of policy; then to see whether there is any deficiency in service on the part of the opposite parties or not. We do not see any complicated questions of law and facts are involved, which cannot be adjudicated by this Commission. In this regard, we are fortified by the judgment of 'Dr.J.J.Merchant and Ors. V. Shrinath Chaturvedi' 2002(6) SCC 635, wherein it was held that the State Commission and District Forum are headed by retired High Court Judges and Officers of District Judge level and in our view, this is not such a case which cannot be decided by the 'Consumer Fora' after obtaining evidence and if need be after getting an expert opinion. Accordingly, the objection raised by the opposite parties is hereby rejected.
11. Brief facts as per the complaint are that the complainant-firm M/s Kapoor Sons doing business in Confectionery and FMCG goods raised a loan from State Bank of Patiala now SBI against stocks and further insured the stocks amounting to Rs.31,00,000/- with the opposite parties/Insurance Company vide Business Package Insurance Policy bearing No.0000000001258385-01 for the period 23.09.2014 to 22.09.2015, Ex.C-3 for a sum insured for Rs.31,00,000/- . On 20.09.2015, a fire broke out in the insured premises. Fire Brigade was called and the fire was controlled as per report of the Fire Brigade, M.C. Samrala, dated 23.09.2015, Ex.C-5. Also a DDR was lodged with the local police, Ex.C-4. A claim bearing No.203764, was lodged with the opposite parties-Insurance Company and the opposite parties Consumer Complaint No.168 of 2018 8 deputed M/s Suresh Vashisht & Co., Insurance Surveyor & Loss Assessors on 23.09.2015, who submitted their final survey report dated 10.06.2016, vide Ex.OP-2 and addendum report dated 20.06.2016 as Ex.OP-3. There is no dispute regarding the Insurance Policy and the fire incident. The surveyor has assessed the total loss after salvage and excess amounting to Rs.1,56,668/-. The fire incident occurred on 20.09.2015. However, the surveyor in the survey report has not considered the closing stocks and sales records for the year ending 31.03.2015 and as on 20.09.2015 before fire incident stating that documents not received from insured/Bank. There is no evidence as to stocks lying in the shop before the fire accident.
12. Learned counsel for the complainant during arguments stated that the complainant is wife of insured Sikandar Singh, Proprietor of M/s Kapoor Sons who suddenly died on 15.08.2015 and the family was trying to come out from jolt of sudden demise of Sikandar Singh, the fire incident occurred on 20.09.2015, the certain documents could not be provided which can be provided now. The surveyor has also stated in notes that in the absence of bills and other documents etc. the assessment has been made, however, it may change if actual documents received, which itself proves that the assessment made by the surveyor is only on presumptions, which can be changed after getting the relevant documents.
13. Therefore, we are of the view that the claim of the complainant is required to be reviewed and it should not be decided for want of certain documents which could not be provided by the insured to the surveyor during investigation.
Consumer Complaint No.168 of 2018 9
14. Sequel to the above discussions, the complaint is disposed of and the complainant is directed to submit the documents, if any, as required by the opposite parties, within 15 days of the receipt of the certified copy of the orders and the opposite parties are directed to settle the claim afresh within one month from the receipt of documents.
15. Arguments in this case were heard on 30.10.2020 and the order was reserved. The certified copies of the order be communicated to the parties, as per rules.
16. The complaint could not be decided within the statutory period due to heavy pendency of court cases.
(RAJINDER KUMAR GOYAL) PRESIDING MEMBER (KIRAN SIBAL) MEMBER November 18,2020 parmod