State Consumer Disputes Redressal Commission
State Bank Of India vs Anil Kumar & Anr. on 27 August, 2012
H H.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION, SHIMLA. First Appeal No : 224/2011. Date of Decision : 27.08.2012. State Bank of India, Jai Singhpur, District Kangra, Through its Manager. .Appellant Versus 1. Anil Kumar, Son of Sh. Jagan Nath, Resident of Village and Post office Sandhol, Tehsil Sarkaghat, District Mandi, H.P. Proprietor Bandana Cloth House. 2. New India Assurance Company Mandi, Through Divisional Manager . Respondents Coram Honble Mr. Chander Shekhar Sharma, Presiding Member Honble Mrs.Prem Chauhan, Member Whether approved for reporting?[1] For the Appellant : Mr. Arvind Sharma, Advocate For the Respondent No.1: Mr. Manoj Chauhan, Advocate For the Respondent No.2: Mr. Ratish Sharma, Advocate ORDER:
Mr. Chander Shekhar Sharma, Presiding Member (oral) .
This appeal is directed against the order dated 01.07.2011, passed in Consumer Complaint No. 256/2010, by the ld. District Consumer Disputes Redressal Forum Mandi, H.P., whereby, the complaint was allowed and the OP No. 2 was directed to Pay Rs. 1,63,000/- to the complainant, alongwith interest at the rate of 9% per annum from the date of filing of the complaint till realization. The opposite party No.2 was further directed to pay Rs. 5,000/- as compensation for harassment and litigation costs had been quantified at Rs. 3,000/- . The parties are referred as per their status in the complaint.
3. Factual matrix of the case, within the narrow compass are that the complainant had started business at Jai Singhpur, District Kangra, under the name and style of Bandana Cloth House by raising a loan from the opposite party No.2 and C.C. limit was to the tune of Rs.3,00,000/-. The stock lying in the shop was got insured with the opposite party No.1 by the opposite party No.2 on 25.08.2007.
Thereafter, the business was shifted by him from Jai Singhpur to Sandhole, Tehsil Sarkaghat, District Mandi, H.P. and the opposite party No. 2 was informed accordingly. It was told by the Bank (opposite party No.2) that the insurance company had already been intimated about the shifting of the business. On 30.05.2008, the shop of the complainant was destroyed in the fire. Intimation was also given to the Police.
4. Further averments are to the effect that opposite party No.1 deputed a surveyor to assess the loss. The complainant supplied documents, which were demanded vide letter dated 18.07.2008 by the surveyor. When loss was not settled, legal notice was served upon the opposite party No.1. In response thereof, the opposite party No.1, gave reply that the matter was still under investigation. It is averred that, if the opposite party No.2 had not informed the opposite party No.1 about the shifting of the business, then the former is liable to indemnify him. Hence, deficiency in service had been alleged on the part of the OPs.
5. In this background, a complaint under section 12 of the Consumer Protection was filed, wherein, insurance of a sum of Rs. 3.00 lacs had been claimed and cost of litigation was demanded.
6. Opposite parties had contested and resisted the present complaint and opposite party No.1 submitted that neither the opposite party No.2 nor the complainant had informed it, about shifting of the business and this is violation of the terms and conditions of the policy. After the incident of fire, the surveyor was appointed and he had assessed the loss at Rs. 1,63,000/-. In view of the violation of the terms and conditions of the policy, the complainant was informed vide letter dated 04.12.2009 that the claim was not payable. The opposite party No.2 had also contested the complainant and it was alleged that the stock in trade was got insured with the opposite party No.1 and the complainant informed the insurer about the shifting of the place of business. It is submitted that the complainant filed an affidavit on 09.04.2008 for giving permission to change the place of business. However, there was no question of shifting of the place of business, because it had already been changed. It is further submitted that the opposite party No.2 had intimated the complainant to inform the opposite party No.1, about the change of the business, so that necessary endorsement in the policy can be done. The complainant was under obligation to inform the bank and the insurer before change of the place of business from jai Singhpur to Sandhol. Even after the incident, the complainant informed the opposite party No.2 on 03.06.2008 and it had also informed the opposite party No.1 alongwith the requisite documents. Hence, it was pleaded that there is no deficiency in service on the part of OPs. Rejoinder to the complaint was also filed, wherein the averments of the complaint have been reiterated.
7. Brief resume of the evidence led by the parties in nutshell is that the complainant in support of his case has filed his own affidavit and has placed reliance upon number of documents viz. insurance cover notice, letter dated 16.03.2009 addressed to the complainant by the insurance company, copy of the notice etc.
8. OP No.1 in support of its case has filed affidavit of Sh. Santosh Kumar competent authority of New India Insurance Company. The OP No. 2 in support of its case has filed affidavit of Sh. Sushil Kumar Rana and affidavit of Mr. Ramesh Chand, Field Officer of the bank and had placed reliance upon number of documents viz. letter dated 03.06.2008 addressed to the branch Manager, State Bank of India, Jaisinghpur by the complainant, copy of affidavit dated 09.04.2008, copy of the letter dated 11.04.2008 addressed to the complainant by the bank.
9. We have heard the ld. Counsel for the parties and have gone through the record of case file minutely.
10. Mr. Arvind Sharma, Ld. Counsel for the appellant argued that the order of the ld. Fora below is not legally sustainable. As per him, insurance policy in the present case is in the name M/s Bandana Cloth House, whereas, the complaint had been filed by Sh. Anil Kumar. He had also led emphasis on the affidavit of the complainant Sh. Anil Kumar dated 09.04.2008, wherein no date of transfer of stock from Jaisinghpur to Sandhol has been given and even reliance has been placed upon the letter dated 11.04.2008, which is addressed to Bandana Cloth House, whereby, the proprietor was clearly informed that since the place of business had been changed as per the affidavit dated 09.04.2008 from Jaisinghpur to Main Bazar Sandhol, as such, direction had been given to the proprietor to get the necessary endorsement done to this effect in the insurance policy from the New India Insurance Company immediately, which was for his own benefit and bank will not be responsible for any risk and consequences in case the proprietor fails to get the aforesaid endorsement done within time. Moreover, the complainant is not a consumer, hence he laid emphasis on the point that the Ld. Fora below had wrongly fastened the liability of the insurance sum upon his client, which is not legally warranted.
11. Mr. Manoj Chauhan, Ld. vice counsel for the respondent No.1 and Sh. Ratish Sharma, Ld. Counsel for the respondent No.2 have supported the order of the Ld. Fora below. As per them, since the intimation about the change of the insured business place had not been given to the insurance company by the bank, to whom, the information was given about the change of place of business, the bank was duty bound to inform the insurance company about the change of place of business, as such, the ld. Fora below had rightly allowed the complaint in the present case. Mr. Ratish Sharma, ld. Counsel for the respondent No.2 has also laid emphasis on the point that in case the intimation is not given about the change of the business place, where the fire had occurred, since the insurance policy in the present case was relating to the stock which was lying at Jaisinghpur and the place where the fire had occurred that business premises is at Sandhol, as such, as per the terms and conditions of the policy insurance company is not liable and the Ld. Fora rightly fastened the liability upon the bank in the present case. He had also placed reliance upon number of judgments viz. (i) National Insurance Co. Ltd. reported as II (2011) CPJ 120 (NC); (ii) Lalita Shivaji Jagtap Vs. Bank of India & Anr. reported as III (2006) CPJ 226 (NC); (iii) Sadhu Ram Mittal Vs. United India Insurance Company Ltd. And Anr. reported as III (2010) CPJ 368 (NC).
In all the judgments, it is held that where the insured has changed the business premises and no intimation is given to the insurance company about the change of place, then there is clear violation of terms and conditions of the policy and the insurer is not liable to any amount. There is no dispute about legal preposition laid down in these judgments.
12. After hearing the Ld. counsel for the parties and going through the record of case carefully, we are of the considered view that, there is no infirmity in the order of the Ld. Fora below and it does not call for any interference in the appeal and the ld. Fora below had rightly allowed the appeal directing the appellant to pay Rs. 1,63,000/- to the complainant alongwith interest at the rate of 9% per annum from the date of filing of the complaint till realization and compensation amounting to Rs. 5,000/- and litigation costs of Rs. 3,000/- had rightly been awarded in the present case. Reasons being, that in the present case the business premises were got insured by the OP No.2 and the policy was also taken by the bank and C.C. Limit was to the tune of Rs. 3,00,000/. This fact is also clear from the record that the intimation relating to the change of business premises from Jaisinghpur to Sandhol which was insured earlier was given to the bank by the complainant which fact is also evident from the affidavit dated 09.04.2008. Even in annexure O1-D, it is clearly evident that the bank had permitted the complainant to shift his shop from Jaisinghpur to Sandhol on his former request on the basis of the affidavit and there is a clear admission in this document that the due to the audit of the branch, bank could not disclose about the change of the business premises to the insurance company immediately. Even letter dated 11.04.2008, which is at page 63 of the complaint file which is addressed to the proprietor of Bandana Cloth House, whereby the complainant was directed that since the place of business has been changed, as per the affidavit of the complainant from jaisinghpur to Main bazaar Sandhol, hence the complainant is directed to get the necessary endorsement done to this effect in the insurance policy from the concerned insurance company immediately and in case it is not done then it is all at the risk of the complainant, but it appears that in the version which is submitted in reply to the complaint there is no reference of this letter. Only in the affidavit later on filed by the bank official reference has been made about this document, as such, no reliance can be placed this document.
Even from the perusal of annexure O-1/E, the insurance company vide letter dated 27.03.2009 had written to the Manager, State bank of India to clarify why the fact of shifting of the shops from Jaisinghpur to Sandhol was not disclosed to them for necessary endorsement in the policy, as such, from the contents of this letter it is clearly evident that the insurance company was also expecting that information relating to the change of place which was given by the complainant to the bank was to be given to the Insurance Company by the bank, as such, the bank was duty bound after receiving information relating to change of business to inform the Insurance Company in this regard, since the insurance was got done by the bank. However, there is no iota of evidence on record to show that any intimation about the change of place of business was given by the bank to the insurance company, which amounts to clear deficiency on the part of the bank. As such, the Ld. Fora below has rightly allowed the compliant. There is no force in the arguments of the Ld. Counsel for the appellant that the policy is in the name of Bandana Cloth Chouse, whereas the complaint had been filed by Anil Kumar proprietor of Bandana Cloth House. The order of the ld. Fora below is based upon sound and convincing reasons which does not call for any interference in the appeal.
13. In view of the above discussion and facts & circumstances of the case, there is no merit in the present appeal, as such, the same stands dismissed and as a sequel thereof the order of the Ld. Fora below passed in Consumer Complaint No. 256/2010 passed by the ld. District Consumer Disputes Redressal Forum Mandi, H.P., is maintained. No order as to costs.
14. Copy of this order be sent to each of the parties, free of cost, as per Rules.
(Chander Sherkar Sharma) Presiding Member (Prem Chauhan) Member August 27,2012.
(GAURAV) [1] Whether reporters of the local papers may be allowed to see the order?