State Consumer Disputes Redressal Commission
M/S Satnam Enterprises vs Sbi General Insurance Company Ltd. on 22 March, 2018
2nd Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH
Consumer Complaint No. 412 of 2016
Date of Institution : 29.12.2016
Date of Reserve : 12.03.2018
Date of Decision : 22.03.2018
M/s Satnam Enterprises, Shop No. 10, New Grain Market,
Jalalabad (W) through its Proprietor Harjinder Singh son of
Gurcharan Singh, resident of Basti Bhagwanpura, Jalalabade (W),
District Fazilka, Punjab
....Complainant
Versus
1. SBI General Insurance Company Limited, First Floor, State
Bank of India, Above SBI Main Branch, Near Skylark Hotel,
Jallandhar through its Authorised Signatory.
2. State Bank of Patiala, Lawrence Road, Jalalabad (W), District
Fazilka through its Branch Manager.
....Opposite parties
Consumer Complaint under Section 17 of
the Consumer Protection Act, 1986.
Quorum:-
Shri Gurcharan Singh Saran, Presiding Judicial Member.
Shri Rajinder Kumar Goyal, Member
Present:-
For the complainant : Sh. D.S. Khurana, Advocate
For opposite party No.1: Sh. Inderjit Singh, Advocate
For opposite party no.2: Sh. H.S. Bhatia, Advocate
Consumer Complaint No. 412 of 2016 2
GURCHARAN SINGH SARAN, PRESIDING JUDICIAL MEMBER
ORDER
Complainant has filed this complaint against the opposite parties (hereinafter referred as Ops) under Section 17 of the Consumer Protection Act, 1986 (for short the Act) on the averments that the complainant firm deals in sale and purchase of Bardana having its office at Shop No. 10, New Grain Market, Jalalabad (W) and having its godown at F.F. Road i.e. Link Road F.F. Road at Mohkam Arain, Jalalabad (W). The complainant firm had taken the insurance policy No. 0000000001277177-02 for the period 27.9.2015 to 26.9.2016 of his property, F.F. Road, Jalalabad (West), sum insured of Rs. 25 lacs and assets description trading of Bardana, Sutle and related items of insured business, after paying premium of Rs. 13,680/-. On 11.11.2015, the godown of the complainant caught fire and roof of the godown had fallen down and stocks of bardana completely burnt. Immediately on 12.11.2015, intimation was given to the Ops. Due to fire, the stock worth Rs. 25 Lacs was burnt. Ops appointed the Surveyor, who assessed the loss. The complainant had completed all the formalities and provided all the requisite documents for the purpose of settlement of claim to the Ops i.e. copy of the fire report, police report, copies of newspaper cutting, photographs etc., however, the Ops vide order dated 7.3.2016 wrongly and illegally repudiated the genuine claim with the following observations:- Consumer Complaint No. 412 of 2016 3
"Old and used Bardana" took place at the "godown"
located at "Mohkam Arain Road, Jalalabad, while subject policy under which claim has been intimated is covering your "shop" located at FF Road, Jalalabad West, Ferozepur", with cover occupancy of "other retail sale of new goods in specialized stores". Thus "occupancy" and "effected location" and "material effected" is not covered in cited policy".
Alleging deficiency in service on the part of Ops, this complaint has been filed by the complainant with a direction to Ops to pay sum insured of Rs. 25 lacs on account of loss of stock, a sum of Rs. 5 Lacs on account of fall of roof of the godown, a sum of Rs. 2 Lacs on account repudiation of genuine claim, Rs. 2 Lacs on account of causing harassment, mental agony to the complainant or any other relief which this Hon'ble Court deems fit.
2. Upon notice, Ops appeared and filed their written version. Op No. 1 in its version have taken the preliminary objections that the complaint is false, frivolous and vexatious to the knowledge of the complainant as there is no deficiency in services on the part of Ops, therefore, it be dismissed with costs; the complainant has not come to the Commission with clean hands and has suppressed the true and correct facts. The loss took place at godown located at "Mokham Arian Road, Jalalabad" whereas the policy under which the claim has been filed is covering the shop located at "FF Road, Jalalabad West, Firozpur" vide policy No. 1277177-02; there was no effort by the complainant/insured to Consumer Complaint No. 412 of 2016 4 control the fire and minimize the loss. As per fire brigade report, the fire was controlled on 12.11.2015 but during the visit of the Surveyor on 13.11.2015, it was still raging and no steps were being taken for putting of the fire. The insured was advised to immediately call fire brigade and take reasonable steps, however, no corrective/preventive measures were taken to curtail the loss. In the fire brigade report, cause of the fire is given as unknown and as per the report affected godown was having no electricity fitting, therefore, the possibility of the fire due to electricity short circuit is ruled out; there was no labour inside the godown at night, thus, fire due to smoking is also ruled out; although it was Diwali night but considering the location of the godown being not in a residential area, it does not appear that the fire could have caused by fire cracker; it involves complicated questions of law and facts, which include quantum dispute, which require appreciation of pleadings and lengthy evidence, which cannot be decided in summary procedure, therefore, the matter be referred to the Civil Court. The claim was rightly repudiated vide letter dated 7.3.2016, otherwise, loss was assessed by the independent Surveyor i.e. Mittal Independent Insurance Surveyor and Loss Assessors Pvt. Ltd. vide survey report dated 23.2.2016 as Rs. 16,56,260/-; there is no unfair trade practice or deficiency in services on the part of Ops, therefore, no cause of action for the complainant to file this complaint. It has been filed just to harass the Ops, therefore, it be dismissed. On merits, it has been stated that the complainant is trying to project the addresses of the location in a wrongful manner. Consumer Complaint No. 412 of 2016 5 The loss took place at godown located at Mokham Arian Road, Jalalabad West whereas the policy is covering loss located at Jalalabad West, therefore, the policy was not covering the place of occurrence. On receipt of the report, the Surveyor was appointed. With regard to the possibility of the fire, the submissions made in the preliminary objections were reiterated. It was again reiterated that the loss assessed by the Surveyor is Rs. 16,56,260/-. Complaint is without merit, it be dismissed.
3. Op No. 3 in its reply took the preliminary objections that main grievance of the complainant is against Op No. 1. This Op is a bank and the complainant is having loan account with this bank. All the stocks destroyed in the fire were hypothecated with Op No. 2. There is no deficiency in services on the part of this Op. On merits, it was again reiterated that the allegations are only against Op No. 1, therefore, no detailed reply is required from Op No. 2 except the fact that the loan was granted to the complainant by this Op. Otherwise, this Op has supported the claim of the complainant vide its letter dated 6.3.2016 confirming the value of the stock available on 6.11.2015. It was denied that Op No. 2 had repudiated the claim. Since the policy was issued by Op No. 1 and claim is to be made by Op No. 1, therefore, it was repudiated by Op No. 1. At the end, it has been stated that there is no merit in filing this complaint against this Op. It is without merit, it be dismissed.
4. In support of their contentions, the parties tendered their respective evidence. Complainant in his evidence has tendered affidavit of complainant as Ex. C-A and documents Exs. Consumer Complaint No. 412 of 2016 6 C-A1 to C-104. On the other hand, Op No. 1 had tendered affidavit of Jitendra Dhabhai, D.M. Ex.OP/A and documents Exs. Op-1 to Op-9, affidavit of Parmod Mittal, Surveyor Ex. Op-B and affidavit of Kashmir Singh Ex. Op-C. Op No. 2 had tendered affidavit of Inderpal Singla, Chief Manager as Ex. Op-2/A.
5. We have heard the counsel for the parties and have carefully gone through the averments made in the complaint, written reply filed by the Ops, evidence and documents on the record.
6. An objection has been taken that complicated questions of law and facts are involved, therefore, the matter cannot be adjudicated in the summary procedure under this Act, therefore, the matter be referred to the Civil Court. However, it is a matter of record that fire and peril policy was taken by the complainant from Op No.1 and fire broke out in the godown of the complainant. The main dispute between the parties is location of the insured property, whether the property where the fire had taken place was insured under the policy in question or not? Otherwise, Surveyor was appointed by Op No.1 and Surveyor had assessed the loss to the tune of Rs. 16,56,260/-. It can be ascertained on the basis of documents whether the property where the fire had broken is covered under the policy. It can be decided by this Commission on the basis of appreciation of documents on the record, therefore, we do not see any complicated questions to decide this complaint. With regard to lengthy evidence, most of the documents are bills and once after making the assessment of all the bills, stock register Consumer Complaint No. 412 of 2016 7 and other returns submitted by the complainant firm to the Ops, the Surveyor had assessed the loss then the bills etc. are not of much significance to decide this complaint. The benches of this Commission are headed by retired High Court Judges/retired District & Session Judges, who have long experience at their back and are fully competent to decide such like matters. It was held by the Hon'ble National Commission in "Shiv Kumar Agarwal versus Arun Tandon and another", 2007(2) CLT 287. In that case a plea that case involves complicated questions of fact and law and will need expert evidence, which is not possible in the summary proceedings adopted by the Consumer Fora repelled - Consumer Forum which is headed by Senior Judicial Officers, are capable of dealing with even complex questions. When both the parties have completed their evidence then it is not proper to relegate the matter to the Civil Court and the District Forum should have decided the matter. Therefore, we do not agree with the plea of the Ops that the matter in dispute cannot be decided before the Consumer Fora or that it should be relegated to the Civil Court. A reference can be made to the judgment of the Hon'ble Supreme Court in the case of "Dr. J.J. Merchant and others Vs. Shrinath Chaturvedi", 2002(6) SCC 635 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'. Consumer Complaint No. 412 of 2016 8
7. It is a matter of record that policy No. 1277177-02 was taken by the complainant from Ops for the period 27.9.2015 to 26.9.2016. The policy document has been placed on the record as Ex. C-A1 and Ex. Op-9, which shows the policy period from 27.9.2015 to 26.9.2016. In the risk location address, it has been mentioned as "FF Road Jalalabad West, Jalalabad (W), Firozpur, Punjab - 152024" and in the column of fire and allied perils insurance, the description of the property 'trading of bardana, sutle and related items of insured business' with sum insured of Rs. 25 lacs. It is also a matter of record that the fire had taken place in the property of the complainant in which DDR No. 23 dated 14.11.2015 was recorded, otherwise, information was given to the Ops on 12.11.2015 in which it has been referred with regard to damage to 3 Lacs bags of bardana. The fire report is Ex. CB-2 given by Punjab Fire Service M.C. Fazilka, in its report also the loss has been assessed to the tune of Rs. 25 Lacs. The Surveyor report is Ex. Op-2 and fire had taken place in the premises of the complainant and he assessed the loss to the tune of Rs. 25 Lacs sum insured, otherwise, the insured stocks were to the tune of Rs. 25,43,877/- and after taking out excess clause and the quality rates, the loss has been assessed as Rs. 16,56,260/-.
8. Now the main question is whether the location is insured under the policy referred above or not? In the repudiation letter dated 7.3.2016 Ex. CB-96/ OP-1, it also shows that the claim has been repudiated on the ground of location of the insured property that is 'reported loss of "Old & used" Bardana" took place Consumer Complaint No. 412 of 2016 9 at your "Godown" located at "Mokham Arian Road, Jalalabad". While subject policy under which claim has been intimated is covering your "Shop" located at "FF Road, Jalalabad West"
Firozpur", with covered occupancy of "Other Retail Sale of New Goods in specialized stores". Thus, "Occupancy" & "affected location" & "Material Affected" is not covered in cited policy.
9. As per the policy document Ex. Op-9, the risk location address is "FF Road, Jalalabad West, Jalalabad (W), Firozpur, Punjab - 152024" and the type of cover 'Business Package", therefore, in the policy, it is nowhere mentioned that shop property is located at Mokham Arian Road. It is also admitted fact that this property was on rent with the complainant firm and the complainant firm has placed on the record the rent deed between the complainant firm and Mr. Sahil Juneja in which the rented property has been shown into 42' x 54' on Mohkam Arain Road, Jalalabad (West), District Fazilka. Alongwith that the site plan is also attached as Ex. C-B5. In case we go through this site plan, the godown is located at Mohkam Arain Road, which is link road from FF Road. Further there are certificates issued by Executive Officer, Municipal Council, Jalalabad that M/s Satnam Enterprises godown is on FF Road, Mokham Arain Road, Jalalabad and another certificate was issued by Excise and Taxation Officer, Jalalabad that Satnam Enterprises Tin No. 03382088060 for only one godown from FF Road, Mohkam Arain Road, Jalalabad. In the Survey report Ex. Op-2 given by Mittal Independent Insurance Surveyors & Loss Assessors (P) Ltd., who has assessed the loss to the tune of Rs. Consumer Complaint No. 412 of 2016 10 16,56,260/- and further observed in opinion of the Investigator the godown of the complainant firm was situated in FF Road, Jallalabad in a rented premises in 42' x 54' and firm is dealing in Bardana, having CC limit of Rs. 35 lacs of SBOP. Apart from the godown, the insured is having shop-cum-office inside lane of road at Grain Market Jalalabad. In the complaint, it has also been stated Shop No. 10, New Grain Market, Jalalabad. In case the property insured would have been a shop then shop number and that it is located in Grain Market, Jalalabad would have been mentioned, therefore, the plea taken by the Ops in the repudiation letter that the policy pertains to the shop is not a correct plea. It seems that the property insured is godown at FF Road, Mohkam Arain Road is a link road from FF Road. Actually the godown is located at Mohkam Arain Road, it is a link road to FF Road. Instead of referring Mohkam Arain Road in the policy, it has been mentioned as FF Road, therefore, it shows that full description has not been given by the insurer at the time of issuing the policy, otherwise, in case the insurance would have been of some other property then Ops must have come with some evidence that apart from this godown, the insured was having another godown to store the bardana. Bardana is stored at a higher scale and the entire bardana cannot come at the shop. Only such bardana comes to the shop which is likely to be sold and the other bardana is stored at the premises of the godown. Therefore, evidence on the record clearly establishes that insured location is godown, FF/Mokham Arian Road. The confusion occurred for not referring Mokham Arian Consumer Complaint No. 412 of 2016 11 Road in the policy document. In the absence of any other evidence on the record by the Ops that the insured had another property to store the goods then no plea can be taken by the Ops that the insured property is a different location. The claim is payable, therefore, repudiation of the claim is not justified.
10. What should be the claim to be paid to the complainant? The complainant has claimed for total loss and according to the balance sheet Ex. C-B-22 as on 11.11.2015, the complainant firm was having closing stock of Rs. 25,43,877.50p and it has been so corroborated by Surveyor in his report Ex. Op-2. After checking the quality rates and the excess clause, the assessment has been made to the tune of Rs. 16,56,260/-. The counsel for the complainant no doubt has placed on the record the balance sheet showing the closing balance but there is no independent damage report got assessed by the complainant and he has not denied with regard to the applicability of the excess clause and the quality clause. In that manner, the counsel for the complainant was not able to rebut the report of the Surveyor, therefore, the complainant firm will not be entitled to the sum insured but the amount as assessed by the Surveyor. Surveyor is technical person appointed by IRDA, therefore, he is an independent person. He is neither a person of the insured nor of the insurer and in normal circumstances, the report of the Surveyor should be accepted unless some tangible evidence is coming on the record that the assessment made by the Surveyor is not proper and is required to be differentiated with. A reference can be taken Consumer Complaint No. 412 of 2016 12 from the judgment of the Hon'ble National Commission in III(2008) CPJ 158 (NC) "Pradeep Kumar Sharma Vs. National Ins. Co." and I (2007) CPJ 278 (NC) "Suryachem Industries Vs. Oriental Ins. Co. Ltd." that Surveyor's report being an important document has to be given due relevance and importance unless it is rebutted by some cogent evidence. In the absence of any such evidence on the record the complainant/insured will atleast get the amount as assessed by the insured. In view of the above observations, we are of the opinion that the godown where the fire broke was insured premises. The claim was covered under the policy but it was wrongly repudiated by Op No.1 on a wrong assumption that it is not insured under the insurance policy. Therefore, the claim is payable alongwith the interest from the date of repudiation of the letter dated 7.3.2016 Ex. Op-1.
11. Op No. 2 does not have any role because it is a lending bank from where the complainant/insured had taken the loan. Otherwise, the complainant has not alleged any deficiency in service against Op No. 2 and insurance claim, if any, is to be made by Op No. 1.
12. No other point was argued.
13. Sequel to the above, the complaint against Op No. 2 is dismissed. We accept the complaint and direct Op No. 1 as under:-
(i) pay a sum of Rs. 16,56,260/- alongwith interest @ 9% p.a. w.e.f. 7.3.2016 till the date of policy.
(ii) pay Rs. 30,000/- as compensation on account of physical and mental harassment.Consumer Complaint No. 412 of 2016 13
(iii) pay Rs. 21,000/- as litigation expenses.
The above directions be complied by Op No. 1 within a period of 45 days from the date of receiving of the copy of the order, failing which the complainant shall be at liberty to execute the order by filing application under Sections 25 & 27 of the CP Act against the Ops.
14. The consumer complaint could not be decided within the statutory period due to heavy pendency of Court cases.
15. The counsel for the parties / concerned parties are directed to collect free certified copy of the order from the office of the Commission within a period of 15 days from the date of pronouncement.
(GURCHARAN SINGH SARAN) PRESIDING JUDICIAL MEMBER (RAJINDER KUMAR GOYAL) MEMBER March 22, 2018.
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