State Consumer Disputes Redressal Commission
The New India Assurance Company Ltd., vs Kamal Kumar Son Of Tarlok Chand on 31 October, 2012
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB,
SECTOR 37-A, DAKSHIN MARG, CHANDIGARH
First Appeal No. 1077 of 2008
Date of institution : 25.9.2008
Date of Decision : 31.10.2012
1. The New India Assurance Company Ltd., SCO 46-47, Phase-2, SAS
Nagar, Mohali, through its Manager.
2. Sh. Charanjit Singh, Assistant Manager (Development), The New India
Assurance Co. Ltd., SCO 46-47, Phase-2, SAS Nagar, Mohali.
....Appellants.
Versus
1. Kamal Kumar son of Tarlok Chand R/o 23, Sector 41, Chandigarh.
Shop No. 319, Janta Market, Phase 3B1, Mohali.
2. Harminder Singh son of Jaspal Kaur Shop No. 319, Janta Market,
Phase 3B-1, Mohali.
...Respondents.
First Appeal against the order dated 7.7.2008 of
the District Consumer Disputes Redressal Forum,
Ropar.
2nd Appeal
First Appeal No. 1078 of 2008
Date of institution : 25.9.2008
1. The New India Assurance Company Ltd., SCO 46-47, Phase-2, SAS
Nagar, Mohali, through its Manager.
2. Sh. Charanjit Singh, Assistant Manager (Development), The New India
Assurance Co. Ltd., SCO 46-47, Phase-2, SAS Nagar, Mohali.
....Appellants.
Versus
Jaspal Kaur, Shop No. 126, Janta Market, Phase 3-B-1, Mohali.
...Respondent.
First Appeal against the order dated 7.7.2008 of
the District Consumer Disputes Redressal Forum,
Ropar.
Before:-
Shri Piare Lal Garg, Presiding Member.
Shri Jasbir Singh Gill, Member.
Present:-
For the appellant : Sh. Ravi Kumar, Advocate for
Sh. Puneet Sharma, Advocate
For the respondent : Sh. J.C. Batra, Advocate
First Appeal No. 1077 of 2008 2
PIARE LAL GARG, PRESIDING MEMBER:
This order will dispose of two appeals i.e. First Appeal No. 1077 of 2008(The New India Assurance Company Ltd. & Anr. Vs. Kamal Kumar and Anr.) and First Appeal No. 1078 of 2008(The New India Assurance Company Ltd. & Anr. Vs. Jaspal Kaur) as the dispute in both the complaints was the same and the same were decided by order of even date i.e. 7.7.2008 by the learned District Consumer Disputes Redressal Forum, Ropar(in short 'the District Forum'). Both the appeals are disposed off in a single order as in both the appeals the dispute and the question of law involved is same. The facts are taken from 'First Appeal No. 1077 of 2008' and the parties would be referred by their status in this appeal.
2. Brief facts of the case are that respondent No. 1-Kamal Kumar was owner in possession of Shop No. 319, which was let out to respondent No. 2-Harminder Singh through an oral tenancy for the stock of cloth and material etc. Respondent No. 2 was in occupation of the said shop as a tenant and had kept his stock of cloth/fabric in the said shop/khokha. Appellant No. 2 offered the standard fire and special perils policy for the insurance of his stock and khokha to respondent No. 2 but the insurance policy was issued in the name of respondent No. 1-Kamal Kumar as the ownership of the shop/khokha was in his name. Respondent No. 2 paid the premium of Rs. 891/- and insured his stock as well as khokha. Policy No. 352300/11/00000442 dated 23.2.2007 was issued by the appellants, which was valid for 22.2.2007 to 21.2.2008 vide which the stock was insured for Rs. 1,15,000/- and khokha for Rs. 10,000/-. On 1.6.2007, unfortunately fire broke out in the market of the respondents in which their entire stock as well as khokha were burnt and reduced into ashes. Intimation regarding the loss suffered by the respondents due to fire was given to the First Appeal No. 1077 of 2008 3 appellants, who assured that after processing their claim the claim will be paid but failed to do so. Representations were also made in this regard to the appellants but of no avail. This act of the appellants amounts to deficiency in service and the complaint was filed with the prayer that the appellants may be directed to pay the insurance amount as well as compensation for mental tension and physical harassment.
3. Upon notice, the appellants replied by taking preliminary objections that the complaint was not maintainable due to mis-joinder and non-joinder of necessary parties, respondent No.2-Harminder Singh had no locus-standi to file the complaint as the policy was issued in the name of Kamal Kumar. On merits, it was denied that appellant No. 2 mis- represented the respondents and respondent No. 1 never informed that the stock in his khokha belongs to his tenant-Harminder Singh. It was pleaded that respondent No. 1 was their consumer being insured but respondent No. 2 had no right to file the complaint as he was not a consumer of the appellants. It was admitted that fire broke out in the khokha market on 1.6.2007 but it was denied for want of knowledge that the entire stock of respondent No. 1 was burnt in the fire. It was pleaded that the fire broke out in the market from the opposite side of khokha of respondent No. 1 and till the fire came to khokha of respondent No. 1 all stock was removed from the khokha and was saved from the fury of fire by respondent No. 1. Appellants investigated the matter and report was prepared on 23.7.2007 after thoroughly scanning all the aspects of claim raised by respondent No. 1 and he was intimated vide letter dated 13.8.2007 that his claim was not payable as the stock burnt in fire did not belong to him. It was also intimated that no claim was payable qua the khokha as the claim amount had fallen under excess clause of the policy. As such, as per terms and conditions of the policy, claim of respondent First Appeal No. 1077 of 2008 4 No. 1 was not payable. All other allegations were denied and dismissal of the complaint was prayed.
4. Learned District Forum after hearing the learned counsel for the parties and going through the record, partly allowed the complaint and directed the appellants to pay Rs. 1,15,000/- towards the claim amount of the stock insured of Shop No. 319 to Harminder Singh-respondent No. 2 alongwith interest @ 9% from the date when the survey report was submitted by the Surveyor till realization of the amount and also directed to pay Rs. 1,000/- as litigation expenses.
First Appeal No. 1078 of 2008
5. Brief facts of the case are that the respondent was owner of Shop No. 126. Appellant No. 2 offered the standard fire and special perils policy for the insurance of her stock and khokha. Respondent paid premium of Rs. 2495/- and insured her stock and khokha for Rs. 3,25,000/- and Rs. 25,000/-, respectively. Policy No. 352300/11//06/11/00000441 was issued, which was valid from 22.2.2007 to 21.2.2008 . On 1.6.2007, unfortunately fire broken out in the market in which her entire stock as well as khokha were burnt and reduced into ashes. Intimation regarding the loss suffered by her was given to the appellants but the claim amount was not paid. This act of the appellants amounts to deficiency in service and the complaint was filed with the prayer that the appellants may be directed to pay the insurance amount as well as compensation for mental tension and physical harassment.
6. Upon notice, the appellants replied by taking same preliminary objections as raised in Complaint No. 65 dated 2.4.2008 and admitted that the shop of the respondent was insured with it. The plea taken for rejection of the claim of the respondent was that the stock lying in the Khokha in dispute relates to Harminder Singh, who was running the business under First Appeal No. 1077 of 2008 5 the name and style of M/s Fashion Centre and was keeping his stock in three shops in the same market i.e. Shops No.125, 126 and 319. The entire stock belonged to Harminder Singh so the claim was settled for Rs. 2,91,440/- as per the recommendations of the Surveyor, which was paid to Harminder Singh as per his consent letter Ex. R-3 as full and final vide receipt Ex. R-4.
7. Learned District Forum after hearing the learned counsel for the parties and going through the record, partly allowed the complaint and directed the appellants to pay Rs. 2,91,440/- as claim qua Shop No. 126 to the respondent alongwith interest @ 9% from the date the survey report was submitted till realization of the amount and also directed to pay Rs. 1,000/- as litigation expenses.
8. Hence, these appeals.
9. We have gone through the pleadings of the parties, grounds of appeals, perused the record of the learned District Forum and heard the arguments of the learned counsel for the parties.
First Appeal No. 1077 of 2008
10. The appeal is filed by the appellants on the grounds that the order of the District Forum is against the terms and conditions of the policy, as such, the order of the District Forum is liable to be set-aside.
11. There is no dispute that the respondent Kamal Kumar had insured his Khokha and stock of all type of cloths and Drsimiler goods for an amount of Rs. 1,15,000/- and wooden khokha No. 319 in Janta Market, Ph 3B1, Mohali for an amount of Rs. 10,000/- with the appellants for the period of 22.2.2007 to 21.2.2008 against the payment of Rs. 891/- as premium.
12. There is also no dispute that in the said market on 1.6.2007 fire broke out and the entire market was burnt and the khokha of First Appeal No. 1077 of 2008 6 respondent No. 1 lying in the same market was also burnt. The claim of the same was submitted by respondent No. 1 with the appellants disclosing that he has given his shop on rent to Sh. Harminder Singh son of Jaspal Kaur orally and the stock lying in the khokha belongs was of Harminder Singh. On receiving information regarding the fire, Sh. Sanjay Gupta was appointed as Surveyor to survey the spot and to report regarding the loss suffered by the insured.
13. The Surveyor inspected the spot and vide his report dated 23.7.2007 recommended to close the claim file as the insured was not entitled for the claim. The relevant para of the same is reproduced:-
"Claim of the Insured The insured had claimed a sum of Rs. 1,25,000.00 by way of the entire sum insured of the policy as the entire assets in the shop had been destroyed and the loss was to the extent of total value of the goods insured. However, it has come to our knowledge that the insured Mr. Kamal Kumar has lent his shop No. : 319 to M/s Fashion Centre which is run by Mr. Harminder Singh and all the stocks, if any, in the insured's premises belonged to M/s Fashion Centre and that the insured did not have any insurable interest in the stocks. In view of the above the claim of the insured for the stocks is not maintainable under the policy and the insurer is not liable to pay for the loss to the same, if any. Since the Khokha belongs to the said insured which was damaged beyond repair and the loss to the same was to the extent of the total value of the Khokha. The insurer is liable to pay only for the damages to the structure of the Khokha under the above policy.
Assessment
Si. No. ITEM QTY Estimate Assessed
Rs. Rs.
Stocks 1,15,000.00 00.00
Khokha 10,000.00 10,000.00
Less Salvage -250.00
Total Liability of the insurer 9,750.00
Less Excess -10,000.00
Net liability of the insurer 00.00
Since the claim of the insured falls within the compulsory excess to be borne by the insured, it is recommended that the insurer may close the file as no claim."
14. So from the admission of respondent No. 1, the stock lying in the khokha was not belonging to him, as such, he is not having any First Appeal No. 1077 of 2008 7 insurable interest in the policy and is not entitled for any claim of the stock, which was burnt in the fire. The claim of respondent No. 1 was rightly repudiated by the appellants as the stock of respondent No. 1 was only insured and there was no contract of insurance between the appellants and respondent No. 2-Harminder Singh at the time of occurrence of fire. As such, the order of the District Forum is against the terms and conditions of the policy as well as settled law. The order under appeal is not sustainable.
15. Accordingly, the First Appeal No. 1077 of 2008 is accepted and the order under appeal is set-aside. Consequently, the complaint filed by the respondents/complainants is dismissed. No order as to costs. F.A. No. 1078 of 2008
16. The appeal is filed by the appellants on the grounds that the District Forum failed to appreciate that the appellants settled the claim of the respondent whereas the respondent has no insurable interest in the stock of Harminder Singh and ignoring the basic principle of law, appellants held liable to pay Rs. 2,91,440/- illegally, as such, the order of the District Forum is liable to be set-aside.
17. There is no dispute that the respondent had insured her shop/khokha No. 126 at Janta Market, Phase 3B-1, Mohali for an amount of Rs. 3,50,000/- vide policy Ex. R-6 for a period of 22.2.2007 to 21.2.2008. As per the policy, the stock was insured for an amount of Rs. 3,25,00/- as well as the khokha for an amount of Rs. 25,000/-.
18. There is also no dispute that the shop of the insured was burnt on 1.6.2007 in the fire, which is also corroborated by the report of the Surveyor dated 28.7.2007.
First Appeal No. 1077 of 2008 8
19. The appellants appointed Sh. Sanjay Gupta to inspect the spot and to assess the loss suffered by insured Jaspal Kaur, who submitted his report Ex. R-2 dated 28.7.2007.
20. We have perused the same. The surveyor has assessed a loss of Rs. 2,91,440/- belonging to shops No. 125 and 126 assuming that the whole stock in the said shops was belonging to one Harminder Singh s/o Jaspal Kaur-respondent. But the Surveyor had not discussed any document to come to this conclusion that the stock lying in shop No. 126 of Jaspal Kaur was of Harminder Singh. No consent was also given by Jaspal Kaur that the stock lying in shop No. 126 was of her son and the claim amount may be paid to her son Harminder Singh and she will be bound for the same.
21. It is mentioned in the report that the sum insured is adequate for the khokha as Rs. 25,000/- but since most of the stock had burnt, the quantum of stocks in the shop of the insured at the time of fire cannot be judged on the basis of the physical assessment.
22. So from the report of the Surveyor, it is proved that the entire stock was burnt in the fire with khokha. The version of the appellants that the amount of the claim had already paid to the insured as pleaded in para No. 1 of preliminary objections, which is reproduced:-
1. "That the claim of the complainant was duly settled by the company as per the report of the surveyor. That the complainant has received the claim amount from the company in full and final settlement of the claim as such the present complaint filed by the complainant becomes non-
maintainable on this ground itself."
23. We have also perused the affidavit of Surinder Singh, Divisional Manager, which was tendered into evidence as Ex. R-A. In the said affidavit, it is mentioned that the entire stock belonged to Harminder Singh and the claim was settled for Rs. 2,91,440/- with Harminder Singh First Appeal No. 1077 of 2008 9 and the same was paid to him as per consent letter Ex. R-3 as full and final vide receipt Ex. R-4.
24. We have perused the consent letter Ex. R-3. The same is reproduced as under:-
" Consent Letter Re : My Claim of Loss to Khokha and Stocks of all type of cloth on account of fire covered vide policy No: 352300/11/06/11/00000440 Issued by New India Assurance Co: Ltd., Mohali I, Harminder Singh, R/o of House No. 93, Sector 70, Mohali, Do hereby agree to Accept a sum of Rs. 2,91,340.00 As Full and final settlement of my claim of Loss to Khokha and Stocks of all type of cloth on account of fire dt. 1.6.2007 covered vide policy No. 352300/11/06/11/00000440 Issued by New India Assurance Co. Ltd, Mohali.
I, Understand that the Liability of the insurer is subject to admissibility of the claim as per the terms and conditions of the policy.
I also affirm that the Consent is Voluntary and that the assessment is to my entire satisfaction and that I shall not take up the case in any forum for revision of the assessed amount."
25. So from the above consent letter, it is proved beyond any doubt that Harminder Singh had given the consent for Rs. 2,91,340/- only for the policy No. 352300/11/06/11/00000440 issued by the appellants. But the policy No. of the respondent Jaspal Kaur is 352300/11/06/11/00000441 and no consent for the same was given by Harminder Singh and no amount as claimed against the said policy was received by him. The appellants had not produced an iota of evidence to prove that any claim was paid by the appellants to the insurer against the policy No. 352300/11/06/11/00000441.
26. In view of the above discussion, we are of the view that the insured was entitled for insured amount i.e. Rs. 3,50,000/- for the stock as well as khokha but the District Forum had directed for the payment of Rs. 2,91,440/- qua Shop No. 126 to the respondent alongwith interest @ 9% from the date of Survey Report as well as Rs. 1,000/- as cost of litigation. First Appeal No. 1077 of 2008 10 But no appeal was filed by Jaspal Kaur insured for the enhancement of the same, as such, we are unable to enhance the amount awarded by the District Forum to the tune of Rs. 3,50,000/-.
27. The First Appeal No. 1078 of 2008 of the appellants being without any merit is dismissed with cost of Rs. 10,000/- and the impugned order of the District Forum is affirmed and upheld. The said amount is to be paid to the respondent by the appellants within one month from the receipt copy of the order.
28. The arguments in these appeals were heard on 22.10.2012 and the orders were reserved. Now the orders be communicated to the parties.
29. The appellants in First Appeal No. 1077 of 2008 had deposited an amount of Rs. 25,000/- with this Commission at the time of filing the appeal. This amount of Rs. 25,000/- with interest accrued thereon, if any, be remitted by the registry to appellant No.1 by way of a crossed cheque/demand draft after the expiry of 45 days under intimation to the learned District Forum.
30. The appellants in First Appeal No. 1078 of 2008 had deposited an amount of Rs. 25,000/- with this Commission at the time of filing the appeal. This amount of Rs. 25,000/- with interest accrued thereon, if any, be remitted by the registry to the respondent-Jaspal Kaur by way of a crossed cheque/demand draft after the expiry of 45 days under intimation to the learned District Forum and to the appellants. Remaining amount shall be paid by the appellants to the respondent within 30 days from the receipt of the copy of the order.
31. The appeals could not be decided within the statutory period due to heavy pendency of Court cases.
First Appeal No. 1077 of 2008 11
32. Copy of this order be placed on First Appeal No. 1078 of 2008(The New India Assurance Company Ltd. & Anr. Vs. Jaspal Kaur).
(Piare Lal Garg)
Presiding Member
October 31, 2012. (Jasbir Singh Gill)
as Member