State Consumer Disputes Redressal Commission
Shri Babu A. Sirsat, vs National Insurance Company Ltd., on 30 August, 2013
BEFORE GOA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PANAJI GOA FA No. 51/13 Shri Babu A. Sirsat, s/o late Anand Sirsat 42 years of age, Married, businessman, Presently residing at C/o Joao Fernandes Villa, Cleto AB Clercy Gen. Store, H. No.6/24/A, 2nd Floor, Mala, Panaji Goa. ..Appellant V/s. National Insurance Company Ltd., Having its office at First Floor, 101,Govinda Building, M. G. Road, Panaji, Goa. ...Respondents Appellant/Complainant is represented by Adv. V. Bhandare Respondent / OP ex-parte Coram: Shri. Justice N.A. Britto, President Smt. Vidhya R. Gurav, Member Dated: 30/08/2013 ORDER
[Per Justice Shri. N. A. Britto, President] The Complainants complaint filed on 29/12/10 has been dismissed by the Lr. North Goa District Forum at Porvorim by order dated 11/06/2013 and this appeal has been filed by the Complainant assailing the same.
2. We have heard Shri V. Bhandare, the lr. advocate on behalf of the complainant, and perused the record. The Respondent/OP has chosen to remain absent. The OP was duly served but failed to appear before this Commission on 05/08/2013. However, on that day, Shri Francis DSouza, Manager of the OP of their Branch at Vasco-da-Gama was present and he was directed to convey the next date to his counterpart at Panaji. We assume that the said Francis DSouza conveyed the next date to the Manager of the OP at Panaji but on 23/08/13 the OP again remained absent and as such was ordered to proceed exparte.
3. The Complainant is a businessman doing business of selling readymade garments and has a shop styled as `Sirsat Stores situated in the Municipal Market at Panaji. Complainants shop is having municipal no.36 (old) and has been registered in Form III under the Shops and Establishment Act and the Rules framed thereunder vide certificate dated 06/12/88 renewed from time to time. The establishment is registered under Shop No.36 (document on page 59).
4. The Complainant had a current account with overdraft facility with Canara Bank, Panaji Branch with overdraft facility to the extend of Rs.4,35,028/- (document at Pg. 73) and while availing the overdraft facility the Complainant was required and had obtained 2 insurance policies from the OP known as Standard Fire and Special Perils Policies to the extent of Rs.2 lacs and Rs.3.54 lacs respectively. The first policy was effective from 23/03/08 and the second policy was effective from 08/08/09, for a period of one year therefrom. The first policy covered the shop no.36 and the second policy covered the stock of readymade garments.
5. The Complainant claims that on 24/11/08 at around 21.15 hours 4 shops caught fire, probably due to short circuit, and one of the shops was M/s. Sirsat Stores belonging to the Complainant. This was reported on Tarun Bharat dated 26/11/07 (copy of report at page 10.) It refers to the shop of the Complainant as one of shops which had caught fire.
6. The Complainant stated that he informed the Police, fire brigade, Canara Bank Official and the agent of the OP by name Mr. Kamat.
7. The Complainant claims that fire fighting operations were conducted as the fire was spreading rapidly and reinforcements were called from Old Goa Fire Station and the fire was brought under control and the Complainant suffered heavy losses. The Complainant has produced a fire report dated 04/12/08 (copy at page 11) wherein the shop of the Complainant has been referred to having shop nos. 243/244.
Complainant also produced a scene of fire accident panchanama conducted by the police on 25/11/08 (copy at page 14) wherein `Sirsat Stores has been referred to as Stall no. 36. The report of fire services refers to damage caused to the Complainant as Rs.2.4 lacs while the police panchanama refers to the damage as Rs.1.9 lacs.
8. The Complainant filed the claim form on or about 15/12/08 and the OP on the same day appointed a Surveyor Shri M. N. Khandeparkar to conduct a survey and who visited the shop of the Complainant on the same day and submitted a report dated 15/01/09 stating that it was the adjacent shop which had caught fire and fire fighting operations reportedly damaged the stocks in the Insureds premises and the damaged stocks were reportedly taken away by the municipal authorities. Shri Khandeparkar stated that the affected stocks were not available for inspection and thus he was unable to carry out any physical inspection of the affected stocks and therefore the claim may be treated as no claim and may be repudiated. (copy of report at page 34)
9. The OP by letter dated 28/01/09 addressed to the Complainant sought certain clarifications and the Complainant by his letter dated 24/06/09 (copy at page 44) explained to the OP that right from inception his shop was having no.36 and some years back the municipality has changed the shop numbers of the shops and had given new numbers to every sq. mt. and since his shop was of 4 sq.mts. the concerned shop was renumbered as 161 and 162 and the back side was numbered as 243 & 244. The Complainant enclosed the copy of the lease deed. (copy at page 45)
10. The OP then appointed M/s. Fact Finders to investigate the matter and on 28/05/09 the said Fact Finders submitted their report dated 28/05/09. The said Fact Finders referred to the documents of Panaji Police Station, Panaji Fire Station, the case history and instead of relying on the same, based their conclusions on some inquiries, which they stated, they had conducted in the market area, without mentioning the names of the persons from whom the said inquiries were made.
Fact Finders also recorded in their report that some eye witnesses had given to them 3 letters i.e. Panaji Municipal Tenants Association, M/s. T. K. Stores and M/s. Siddhi Stores (their shops also had caught fire) stating that the shop of the Insured had also caught fire and the goods were damaged but observed that on physical inspection they had found that there were no burnt marks.
This position was later explained by the Complainant by stating that by then he had already carried out repairs to his shop. However, the report concluded that there was fire in M/s. Siddhi Stores and M/s. T. K. Stores but conceded that the items of the Complainants shop no.36, which was situated adjacent to the said two shops were damaged not basically due to fire but due to water sprayed by the fire brigade. At the same time the report records that the Complainant had shown them some partially burnt readymade garments. The report also records that the Complainant had claimed that the burnt goods which were lying on the pathway, they were taken away by the Municipality.
11. Eventually, by letter dated 24/07/09 the OP repudiated the claim of the Complainant on the ground that :
i) The policy covered shop no.36 but the contents were damaged of shop no.243/244,
ii) Delay in reporting the claim, and
iii) Mis-representation, non-disclosure and distortion of material facts.
12. The Complainant filed the complaint to recover compensation of Rs.9.4 lacs.
13. The question is whether the OP was justified in repudiating the claim of the Complainant?
In our view, the Complainant has produced overwhelming evidence to prove that the OP was not at all justified in repudiating the claim.
14. To counter the first ground of repudiation, the Complainant had produced the evidence that his establishment M/s. Sirsat Stores was registered under no.36 (copy at page
59). The OP had issued the two policies to the Complainant with address of shop no.36. The Complainant had filed the affidavit of T. K. Mohamed. This is the gentleman who had alerted the State Fire and Emergency Services, as stated in report dated 04/12/2008. The said T. K. Mohamed has his own shop opposite the shop of the Complainant. He had clearly stated that the Complainants stall was having nos. 161, 162, 243 & 244 where he was dealing in the business of readymade garments and the Complainants old shop number was 36. He had also stated that on 24/11/08 at about 21.15 hours four shops caught fire probably due to short circuit and the shop of the Complainant was amongst them.
He had also stated that he had called the fire brigade who had brought he fire under control and the Complainant had suffered huge loss as most of his stock was gutted in fire. He had also stated that the fire service had conducted a detailed panchanama of the shops which included the shop of the Complainant and the Police Department also conducted a Scene of Offence Panchanama. He had confirmed that municipality had cleared the burnt remains on the next day and had further stated that soon after the incident the Complainant had carried out repairs and renovation of his shop He had also stated that one Mathew Peris of Facts Finders had visited his shop in the last week of January 09 and he and one Umesh Govekar (his shop was also damaged due to fire as per report on Tarun Bharat) had told him regarding the incident and damages caused by fire to the shop of the Complainant. Shri T. K. Mohamed was cross-examined by the OP on interrogatories, and, we must say, that the OP was not able to make any dent into his evidence on affidavit.
14.1 The report of fire services had stated that:
On arrival at the place of incident it was observed that fire had caught to the garments shop belonging to one Shri Babu Sirsat alongwith other shops in the vicinity.
Immediately fire fighting operation commenced and as fire was spreading rapidly reinforcement was also sought from Fire Force Headquarters and Old Goa Fire Station, the fire was brought under control and was completely extinguished thereafter with the help of special fire fighting equipments.
The loss incurred to the owner of Garment Shop, Shri Babu Sirsat, Shop No.243, Panaji, Goa is estimated to the tune of Rs.2,40,000/-.
14.2 Scene of fire accident Panchanama dated 25/11/08 recorded that the Complainant, Proprietor of Sirsat Stores, had informed them that the items like undergarments, gents and ladies garments, kids garments kept in the shop which were gutted and damaged due to occurrence of fire and they saw some readymade garments like undergarments, gents and ladies garments, kids garments lying on the floor totally `exhausted and some garments were seen damaged due to occurrence of fire and the Complainant informed them that the total loss would be to the tune of Rs.1.9 lacs approximately.
14.3 The Complainant had also produced a letter dated 06/02/09 of Panjim Municipal Market Tenants Association stating that one of the shops where fire had taken place belonged to the Complainant and the same was gutted by fire damaging his ready made goods and as the damaged goods were lying on the pathway the Corporation collected the same to clear the public pathway.
14.4 If the report of fire services referred to the Complainants garment shop as shop no.243/244 and the Police Panchanama to shop no.36, the Complainant had produced overwhelming evidence to prove that shop no. 36 (old) was having corresponding shop nos. 161, 162, 243 & 244 (new). The Complainant had produced a certificate from the Municipal Commissioner to that effect (copy at page 72) as well as the Lease Deed dated 17/08/2000 (copy at page 45) by which the Complainant was granted lease to occupy shop nos. 161 & 162 and 243 & 244. The Complainant had also produced membership form for membership of Panjim Municipal Market Tenants Association dated 12/01/85 (copy at page 51) which clearly gave old shop no.36 and new shop nos.161, 162, 243 & 244. OPs own Facts Finders had referred to Complainants shop no. 36, and the policies were obtained by the Complainant against shop no.36.
14.5 The Facts Finders as well as the OP ought to have placed greater reliance on the fire report as well as Scene of fire accident Panchanama, documents which were contemporaneously prepared by public authorities and therefore the facts stated therein were to be accepted as true unless proved to the contrary. As already observed, the Complainant had produced overwhelming evidence to show that old shop no.36 was having new shop nos.161, 162, 243 & 244 and this was confirmed by no other than the Municipal Commissioner himself and was further confirmed by both reports when read together. It further stood confirmed by the affidavit of the said Mohamed and the application dated 12/01/85 (copy at page 51). Therefore the OP was not at all justified in repudiating policy on the specious ground that the policies covered shop no.36 but the damage was caused to shop nos. 243/244, in a way impliedly admitting that damage was caused. As far as the loss caused to the Complainant, the same was abundantly proved by the Complainant with his own affidavit, the fire report, fire accident panchanama, evidence of the said Mohamed, Certificate of Tenants Association (copy at page 16) and the letters dated 29/01/09 given by owners of M/s. T. K. Stores and M/s. Sidhi Stores (referred to in the report dated 28/05/09 of Facts Finders but not produced by OP). It is rather unfortunate that Facts Finders chose to discard public documents and the said letters and go by hearsay evidence. In between the Inspection report dated 25/11/08 (copy at page 17) and letter dated 21/05/09, both issued by Canara Bank, it is the former which had to be preferred to the latter. If the goods of the Complainant were damaged by water sprayed by Fire Brigade, this would have been mentioned on report dated 25/11/08. Moreover, the Complainant has explained that after the incident the relation between the Complainant and the Manager were strained on account of the said loan transaction, which the Complainant had cleared, and that even there was exchange of bad words between them.
15. Regarding the second ground of repudiation, namely the delay in reporting the claim to the OP, it may be stated that clause 6.1 of the terms and conditions of the policy, stipulated that 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 loss or damage, or such further time the Company may in writing allow in that behalf, deliver to the Company.
a) A claim in writing for the loss or damage containing as particular an account as may be reasonably practicable of all the several articles or items or property damaged or destroyed, and of the amount of the loss or damage thereto respectively, having regard to their value at the time of the loss or damage not including profit of any kind.
b) .
15.1. The Complainant in his affidavit in evidence has stated that he immediately informed the Police, the Fire Brigade, Canara Bank Officials and the Opponent Companys agent. This statement has not been specifically denied on behalf of the OP and therefore can be taken to be admitted. In any event, it must be stated that the OP can be taken to have waived the said condition when on or about 15/12/2008 it appointed Shri Khandeparkar, Surveyor, to investigate the matter and then again when it appointed Facts Finders to investigate the matter further. On facts of the case, therefore, in our view the OP was not at all justified in repudiating the claim on the ground that there was delay in reporting the claim to their office. It is to be noted that the Bank itself had prepared inspection report on 25/11/08 assessing the damage to the Complainants goods at 1.90 lacs, a copy of which was accepted by the OP. In any event the report and the panchanama prepared by the Public Authorities would prevail over said letter belatedly given.
16. Coming to the third ground of repudiation the OP had only vaguely stated that the Complainant misrepresented and distorted material facts, without elaborating the same. The Complainant had proved the damage to his shop with various documents including the fire report, Scene of fire accident Panchanama, Certificate of Panjim Municipal Market Tenants Association, Report dated 25.11.08, affidavit of said T.K. Mohamed, etc. Complainant had also produced overwhelming evidence to show that the shop no.36 against which the policies were obtained and shop nos. 161, 162, 242 and 243 were one and the same. Complainant had also proved that whatever had remained after the fire was put off was taken by the Municipality and this was proved by the Complainant with the evidence of the said T. K. Mohamed and the certificate issued by Tenants Association. The OP had failed to produce letter dated 06/03/09 allegedly issued by the Municipality to prove the contrary. If at all anybody tried to misrepresent the facts it is the said Surveyors appointed by the OP who instead of relying on public documents prepared by the public authorities, one of them tried to rely on some undisclosed enquiries made by them without naming the persons from whom such inquiries were made and came to the conclusion that there were no damages basically due to fire but due to water sprayed by the fire brigade. and this inspite of taking note of the public documents prepared by the public authorities.
17. Lastly, as regards the quantum of compensation, due to loss of goods the Complainant has sought in the complaint compensation of Rs.2.4 lacs. We have noted the estimate of damage given in the fire report as Rs.2.4 lacs, in the panchanama it is Rs.1.9 lacs and so also in report dated 25/11/08 it is Rs.1.9 lacs. Therefore we are inclined to award to the Complainant a sum of Rs.1.9 lacs as the loss suffered by him on account of the said fire to his shop. We are inclined to award to the Complainant a sum of Rs.50,000/- towards disappointment, frustration and mental stress. We have held in FA No.12/12 by order dated 04/10/12 in the case of Jet Airways (India) Ltd. and anr vs. Mrs. Urjita V. Damle, relying on L.D.A. vs. M. K. Gupta (AIR 1994 SC 787) and Mr. Alok Tandon vs. Scandinavian Airlines System (2009 CTJ 85) that the liability to pay compensation is an additional liability arising from charge of deficiency in service as defined by section 2 (1) (9) of the C.P. Act, 1986 under which compensation is awarded for harassment, emotional suffering, etc. We are also inclined to award to the Complainant a sum of Rs.5,000/- as costs of the complaint and another Rs.5,000/- as costs of this appeal, to be paid by the OP. The sums herein awarded shall be paid within 30 days and in case they are not paid they shall carry interest @ 9% until they are paid.
18. The Lr. District Forum has dismissed the complaint and has also dismissed it with costs of Rs.10,000/- to be paid by the Complainant. This is nothing short of rubbing salt to the wounds of the Complainant who had suffered loss on account of fire to his shop.
19. In view of the above discussion, we allow the appeal, set aside the impugned order dated 11/06/2013 and decree the complaint on the above terms.
[Smt. Vidhya R. Gurav] [Justice Shri N. A. Britto] Member President /lm