State Consumer Disputes Redressal Commission
M/S. National Traders Kapada vs The New India Assurance Co.Ltd And 3 ... on 25 September, 2008
BEFORE THE A BEFORE THE A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION: HYDERABAD F.A.No.1430/2005 against C.D.No.212/2003 , Dist.Forum,Cuddapah. Between M/s. National Traders, Wholesale and Retail Kirana Merchants , Rep.by its proprietor Sri K.M.Jeelani Basha, S/o.K.Khaja Hussain aged about 41 yrs. 17/127 , Mundi Bazar, Kadapa. Appellant/ Complainant And 1.The New India Assurance Co.Ltd., Rep.by its Regional Manager, Regional Office, D.No.104, Block A, B and E, Surya Towers, Sardar Patel Road, Secunderabad-03. 2. The New India Assurance Co.Ltd, Rep. by its Divisional Manager, Divisional Office, Chinna Chowk, Kadapa-516 002. 3.The New India Assurance Co.Ltd., Rep. by its Branch Manager, 19/91, Madras road, Kadapa-516 001. 4. Syndicate Bank , Main Branch, Rep. by its Branch Manager, 7 Roads Kadapa-516 001. Respondents/ Opp.parties .. Counsel for the appellant : M/s.V.R.N.Prashanth Counsel for the respondents : M/s.K.Aruna-R1 to R3 . CORAM :THE HONBLE JUSTICE SRI D.APPA RAO , PRESIDENT, SMT. M.SHREESHA,HONBLE MEMBER
AND SRI G.BHOOPATHI REDDY , HONBLE MEMBER.
THURSDAY, THE TWENT FIFTH DAY OF SEPTEMBER, TWO THOUSAND EIGHT.
Oral Order : (Per Sri G.Bhoopathi Reddy, Honble Member) **** This is an appeal filed by the appellant/complainant under Section 15 of the Consumer Protection Act,1986 to set aside the dismissal order passed by the District Forum, Cuddaph in C.D.No. 212/2003 dt.28.7.2005.
Appellant herein is the complainant before District Forum. He filed complaint under Section 12 of the Consumer Protection Act,1986 to direct the opp.parties to pay Rs.5,66,956/- with 24% future interest from the date of the complaint till realization and to award costs of Rs.20,000/-.
The case of the complainant is as follows:
The complainant started a Kirana shop at D.No.17/127 in Mundi Bazar, Kadapa under P.M.R.Y Scheme after obtaining loan of Rs.60,000/- from opp.party no.4 bank and its stock point is at D.No.17/189 . The opp.party no.4 sanctioned Rs.5,50,000/- as cash credit loan in the year 2000 under working capital to the complainant. All the stocks in the trade are hypothecated to the opp.party no.4 who in turn insured with opp.party no.3 under policy no.4861120105448 dt.10.1.2001 . Period of policy is from 19.1.2001 to 18.1.2002 . On 16.10.2001 there was unprecedented rains and due to it the town was sub merged with water on account of the flood and there was 6 feet level of water entered into the shop. The stock kept in shop D.no.17/127 and also in the godown bearing D.no.17/189 was completely damaged . The complainant preferred claim on 19.10.2001 with opposite party no.3.
The MRO , Kadapa visited the complainants shop and godown and witnessed the damage and issued a certificate stating that the flood water entered in the shop of the complainant and godown and estimated the loss at more than Rs.3 lakhs. . VAO prepared Panchanama mentioning the particulars of damaged stock . The surveyor of opp.party no.3 inspected the premises on 19.10.2001 and assessed the damage . The opp.party no.3 informed the opp.party no.4 through the letter dt.21.2.2002 that the file was closed because flood water did not enter the shop of the complainant and no stock was damaged and there was no liability on their part. The complainant sent a notice to the opp.party no.2 that it had not conducted any enquiry and requested to pursue the official records causing the damage.
The opp.party no.2 informed that the flood water had not entered in the shop at an earliest point of time to entertain the claim. The opposite party no.2 had stated that the bank was the holder of the subject policy and not the complainant and hence the complainant had no locus standi to file the complaint and as per the surveyors report the shop no.17/127 was situated at 3 feet above the road level and so the flood water had not entered the shop and there was no loss under the policy . But it was admitted by the M.R.O. in his certificates regarding the floods and damage to the stock. Therefore the insurance policy was not taken with liability with regard to sock kept in another premises bearing no.17/189 stocks were both in the shop rooms as evidenced by the official records. Hence the complainant approached the District Forum to direct the opp.parties to pay compensation amount with interest totaling to Rs.5,66,956/- with 24% future interest from the date of complaint till the date of realization and to award costs of Rs.20,000/- .
The opp.party no.2 filed counter contending that the complainant had no locus standi to file the complaint and they have issued a policy in favour of opp.party no.4 and so the complaint would have been filed by the opp.party no.4 but not by the petitioner and there was no contract of insurance in between them and the complainant under the subject policy. The surveyor visited the premises and submitted a report that the shop bearing no.17/127 was situated 3 ft. above the road level and flood water did not enter into the said shop and not affected the stock and there was no loss of the stock in the said shop. The complainant stored the stocks in D.No.17/189 and there was no insurance for the said stock in the said premises and there was no policy to that effect. The said premises was located at the ground level and the stocks kept in the said premises were damaged due to floodwater.
The certificate issued by the MRO was not tenable. The opp.party no.2 stated that there was no deficiency in service on their part and prayed for dismissal of the complaint.
The opp.party no.3 filed a memo adopting the counter of opp.party no.2.
The opp.party no.4 filed a separate counter stating that the loan was granted to the complainant and he was asked to insure the goods with opp.parties 2 and 3 . The license issued by AC.T.O. and D.S.O, Kadapa clearly mentioned that the stocks are in the D.No.17/189 . The opp.party stated that they have not taken the policy and there was no necessity for them to take the policy. The policy was taken only by the owner of the goods and not by the bank. Therefore the liability was not on the part of the opp.party no.4 and the liability was only on opp.parties 1 and 3. The opp.party no.4 prayed for dismissal of the complaint.
The complainant filed rejoinder contending that there was deficiency in service on the part of all the opp.parties . Opp.party no.4 was only agent and hence it was included as part of the proceedings and the liability was on all the opp.parties. When the claim form filed by the complainant before the opp.party insurance company they never raised any objection that the opp.party no.4 had to make the claim. The MRO certificate clearly show that the stocks were stored in two premises and damaged. There was no value to the surveyors report because the surveyor stated that there was no damage to the stock in D.No.17/127 . . The surveyor conducted inspection on 19.10.2001 and submitted his report with three months delay on 15.1.2002 and there can be no legal evidentiary value for the surveyors report. The complainant prayed to allow the complaint.
The complainant filed evidence affidavit and Exs.A1 to A21 documents . The opp.parties filed evidence affidavit and Ex.B1 document . Based on the evidence adduced and pleadings , the District Forum dismissed the complaint without costs.
Aggrieved by the dismissal order of the District Forum the appellant/ complainant preferred this appeal contending that the order of the District Forum is illegal, improper and contrary to law and material irregularity. The Dist.Forum committed error in holding that stocks in D.no.17/189 were not insured overlooking Ex.A18 wherein the 4th opp.party has categorically intimated the 3rd opp.party that D.No.17/189 was only an address for communication and that the total stocks situated in D.No.17/189 have also been insured and has further requested for correcting the insurance policy accordingly. The Dist.Forum failed to note of the fact that the complainant through the opp.party no. 4 got insured the stocks and the same are situated in D.No.17/189 also and in fact this was intimated to the 3rd opposite party by the 4th opposite party. The 3rd opposite party is seeking to take shelter under the said inadvertent clerical error committed by the 4th opp.party so as to deprive the insurance amount to the complainant . The Dist.Forum has not considered Exs.A2 to A5 . The said documents evidence the total loss of stock caused due to the floods . The District Forum ought to have seen that the stocks situated in D.No.17/127 as well as D.No.17/189 were insured with the 3rd opposite party in the background of the unrebutted EX.A18. The appellant/complainant prayed to set aside the order of the Dist.Forum and allow the appeal.
The points for determination arise in this appeal are Whether there was deficiency in service on the part of the insurance company? Whether the appellant is entitled for the insurance claim amount.?
Point nos.1 & 2 : The appellant submits that he got insured the stocks which are situated in shops in D.No. 17/127 and also in D.No.17/189 through the 4th opposite party with the 3rd opposite party and on account of the flood water the stocks stored in the said premises completely damaged and the opp.party insurance company repudiated his claim which is illegal and the order of the Dist.Forum may set aside. . The respondents 1 to 3 contended that there was no insurance policy for the stocks kept in the premises D.No.17/189 and there was no damage to the stocks kept in the premises D.No.17/127 and they have rightly repudiated the claim of the complainant and order of the District Forum may be confirmed . There is no dispute that the appellant has obtained loan under PMRY scheme from opp.party no.4 to run kirana shop in Mundi Bazaar ,Kadapa and started a shop in D.No.17/127 with stock points at D.No.17/189 of Mundi Bazaar, Kadapa. For the said stocks the 4th opposite party obtained insurance policy dt. 10.1.2001 from the 3rd opposite party which is valid from19.1.2001 to 18.1.2002. The 4th opposite party debited the premium from the bank account of the complainant and paid to the 3rd opposite party and the policy was issued in the name of the complainant .On account of the heavy rains the stocks stored in the shop bearing D.no.17/127 and also godown bearing no.17/189 were completely damaged. The complainant has submitted claim on 19.10.2001 with the third opposite party. After receiving the claim of the complainant , the opp.party no.3 appointed a surveyor who inspected the premises on 19.10.2001 and assessed the damage after taking inventory . The MRO also visited the shop and godown on 20.10.2001 . The insurance company repudiated the claim of the complainant on the ground that the goods stored in D.No.17/127 were not damaged as the flood water was not entered into the shop and also stating that there was no policy for the premises D.No.17/189 and stock kept in the said premises was not insured with them . There is no dispute that the policy Ex.A1 has been obtained by the 4th opposite party in favour of the complainant . The stocks are stored in the godown situated in D.No.17/189 and these goods are periodically put in shop of the complainant situated in D.No.17/127. The appellant submits that as and when the goods in the shop D.No.17/127 are sold , the same would be replaced by the goods in Godown D.no.17/187. Ex.A10 certificate of registration evidences the said fact.
The submission made by the appellant is not sustainable. This plea is not taken in the complaint and evidence affidavit. D.No.17/187 is being used for the purpose of godown and as such no business activity is taking place in the said premises and all the business activity is taking place only in the shop D.No.17/127 . The appellant submits that finding of the District Forum that the stocks in D.No.17/189 were not insured overlooking Ex.A18 wherein the 4th opp.party has categorically intimated the 3rd opposite party that D.no.17/189 was only an address for communication and that the total stocks situated in D.No.17/189 also been insured and has further requested for correcting the insurance policy accordingly. The submission made by the appellant is not sustainable. The District Forum has elaborately discussed and given finding that there was no insurance policy for the damaged stocks.
The appellant submits that the copy of the surveyor report was not furnished to him and the surveyor report cannot be taken into consideration. The submission made by the appellant is not sustainable. Immediately after receiving the claim from the complainant surveyor was appointed and the surveyor has inspected the premises and given a report. We can rely on surveyor report. In view of the surveyor report, Exs.A2 to A5 documents filed by the complainant cannot be taken into consideration. With regard to the maintainability of the complaint is concerned the complainant being a beneficiary and having paid premium is entitled to file the complaint. The complaint filed by the complainant is maintainable. Ex.B1 is the surveyor report which discloses that the surveyor has inspected the premises which was affected by the floods . He has noticed down the stocks available and took necessary photographs. Thereafter the surveror has suggested the complainant to submit the documents stock statement as on 16.10.2001, estimate of loss, claim form duly filled , registration Certificate of the firm, purchase bills/invoices , sales bills, account books. , bank statement , salvage details occurrence report, Lease deed , balance sheet as on date 31.3.2001 and Sales Tax Returns . The complainant has only submitted the registration certificate and MRO certificate . Except the said documents he has not furnished any other details of the documents. Ex.A13 repudiation letter of the insurance company dt.5.9.2002 discloses that the surveyor has confirmed that there was no damage to the stock and therefore the branch office had informed about inability to entertain the claim .
The appellant submits that the complaint filed by him is maintainable. In support of his preposition he has relied on a decision of Kerala State Commission reported in III (1994) CPJ 137 PURUSHOTHAM GOCULDAS MARCH CO. vs. NEW INDIA ASSURANCE CO.LTD.
in which it was held that the policy has been taken in the joint names of the Indian Bank as mortgagee and the complainant as the mortgagor . The claim has been made by the Bank and the complainant jointly . Since the complainant being the owner of the stock destroyed, the complaint is made by him only and hence it is maintainable. The principle laid down in this case can be applied in our present case is concerned. In our present case is concerned the complainant has obtained a loan from the bank and the policy was obtained at the instance of the bank i.e. opp.party no.4 in favour of the complainant. The complainant is a owner of the stocks and the said stocks stored in the godown were damaged . The complaint filed is maintainable. The appellant submits that the stocks stored in the godown were damaged on account of flood waters hence the insurance company is liable to pay the claim amount. The submission made by the appellant is concerned there is no doubt that on account flood waters stocks stored in the godown were damaged , but the insurance policy was obtained for the shop no. 17/127 only and stocks in the said shop were not affected as the flood water not entered into the shop and for another shop wherein stocks were kept there was no insurance policy for it . As such the insurance company is not liable to pay the insurance amount. The District Forum has elaborately discussed and given finding that the insurance company is not liable to pay the insurance amount. To substantiate the claim of the complainant is concerned he filed Ex.A2 certificate issued by MRO stating that the shop no.17/127 was damaged due to floods occurred on 16.10.2001. Ex.A3 is the Certificate issued by MRO that the shop D.No.17/189 was damaged due to heavy rains on 16.10.2001.
Ex.A4 is certificate issued by MRO in which it is stated that the flood water entered into the National Traders, 17/127 & 17/189 , Mandy Bazar, Cuddapah Town and submerged all their stocks in the said shop and godown at Mandy Bazar Cuddapah. The complainant has taken completely inconsistent pleas . The MRO report is in respect of both the premises whereas the appellant himself admitted that the stocks are stored in door no.17/189 and requested the opp.party no.4 for correction of insurance policy. The stocks kept in the Door no.17/189 was not insured. The said door number is given only for correspondence purpose. There was no insurance policy for the stocks kept in the said premises which were damaged .
The MRO certificates cannot be taken into consideration. The District Forum has elaborately discussed and given finding holding that there was no deficiency in service on the part of the opp. parties The order passed by the District Forum is a well considered order. There are no reasonable grounds to interfere with the order passed by the District Forum In the result appeal is dismissed . In the circumstances without costs.
PRESIDENT LADY MEMBER MALE MEMBER Dt.25.9.2008