State Consumer Disputes Redressal Commission
M/S Tarvind Sales vs 1. National Insurance Company Limited & ... on 20 February, 2014
First Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB,
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH.
First Appeal No.805 of 2010
Date of institution:11.05.2010
Date of Decision :20.02.2014
M/s Tarvind Sales through its Prop Sh.Gurinder Pal Singh, Plot
No.3905/1, Street No.5, Hargobindpura, Ludhiana.
........Appellant.
Versus
1. National Insurance Company Limited, through its Regional
Officer, SCO No.332-34, Sector 34-A, Chandigarh.
2. National Insurance Company Limited, through its Branch
Manager, Office No.07, G.T.Road, Dhandari Kalan, Ludhiana.
.........Respondents.
First Appeal against the order dated
12.03.2010 of the District Consumer
Disputes Redressal Forum, Ludhiana.
Before:-
Shri Inderjit Kaushik, Presiding Judicial Member
Shri Jasbir Singh Gill, Member.
Present:-
For the appellant : Sh.Parminder Singh, Advocate For respondent No.1:Sh.Vinod Gupta, Advocate For respondent No.2:Ex-parte JASBIR SINGH GILL, MEMBER This is an appeal filed by the appellant/complainant (hereinafter called 'the appellant') under Section 15 of the consumer protection act against the order dated 12.03.2010 of the District Consumer Disputes Redressal Forum, Ludhiana (hereinafter called the 'District Forum') vide which the complaint of the appellant/complainant was dismissed by the District Forum.First Appeal No.805 of 2010 2
2. Brief facts of the case are that the appellant is a consumer and he had purchased insurance policy bearing No.401314/11/04/3100521 on dated 17.12.2004 and he was the sole proprietor of his concern without employing any employee. For the purpose of self employment he is running his small business. He pleaded that on 24.5.2005, a fire broke out in his unit and he suffered entire loss of his unit duly insured with the respondent. The loss of the appellant's stock, card boxes, other items and goods were insured as provided in the policy. He lodged the claim with the respondent No.2 and reported the matter that a fire broke up in his unit and to assess the loss and to clear his claim. He further pleaded that respondent appointed Yogesh Kumar as a Surveyor to assess the loss caused to the unit of the appellant. The documents which were available with the appellant were handed over to the surveyor and had been cooperating with him. Thereafter, the Surveyor Yogesh Kumar started harassing the appellant for his personal benefit and he had gone to such an extent that he started demanding 50% of the share in the loss occurred to the appellant with regard to which a claim was to be paid by the respondents. The appellant immediately brought to the notice of the respondent that Yogesh Kumar is harassing the appellant on flimsy grounds and has been raising a demand of the documents which had already been supplied and which were not in existence. The respondents inconnivance with Yogesh Kumar refused the claim to the appellant as per the information supplied by the counsel for the respondents to the notice dated 6.6.2006. The respondents instead of changing the surveyor who was demanding ransom from the appellant, dislodged the claim of the appellant. Thereafter, appellant was again asked to supply the documents. If the claim of the appellant was First Appeal No.805 of 2010 3 disallowed, then the question of handing over the documents again did not arise at all and it clearly shows the connivance of the surveyor and respondents. The claim was again processed by them. Thus, the respondents were conniving with the surveyor who is not an independent person. The surveyor time and again has been asking the appellant to fulfill his illegal demand pertaining to which separate action is being taken by the appellant. The appellant filed the complaint against the respondents. At that time, the claim of the appellant was not settled by the respondent and vide order dated 24.09.2008, the appellant was directed by the District Forum to supply the documents to the respondents within fortnight and the respondents were directed to decide the claim within a period of two months. The appellant in compliance to the order dated 24.09.2008 furnished the documents and respondents vide letter dated 27.11.2008 informed the appellant that the application is not maintainable and the competent authority has repudiated the claim on account of non-existence of insurable interest. Hence, the appellant filed the complaint with the prayer that respondent may be directed to pay claim amount of Rs.6,32,920/- with 12% interest and litigation cost of Rs.10,000/-.
3. Upon notice the respondent filed the reply by taking preliminary objections that the complaint is not maintainable and is barred under section 26 of the Consumer Protection Act, 1986 and also that the allegations against the surveyor for demand of illegal gratification as alleged by the appellant in his complaint against the surveyor cannot be entertained by this Forum. On merits, it was admitted that the appellant has taken the policy which covers the stock of card board, paper, boxes, raw material, packing material, finished unfinished goods etc. but the appellant was carrying trading of Fiber First Appeal No.805 of 2010 4 waste which is not covered by the terms of the policy. They have also alleged that incomplete documents were submitted to insurance company which were required for preparing his survey report and assessing the loss allegedly caused to the appellant but till date appellant has failed to supply the requisite information and documents sought by the surveryor. It was denied that surveyor has gone to such an extent that he started demanding 50% of the share in the loss occurred by the appellant with regard to which a claim is to be paid by the respondents. Other allegations were denied and it was prayed that the complaint may be dismissed.
4. Parties led evidence in support of their respective contentions by way of affidavits and documents.
5. After going through the documents and material placed on file and after hearing the learned counsel for the parties, the learned District Forum dismissed the complaint.
6. Aggrieved by the impugned order dated 12.03.2010, the appellant has come up in appeal.
7. The appeal was filed by the appellant on the ground that the District Forum has illegally dismissed the complaint of the appellant without appreciating the fact that appellant had taken policy with regard to all kinds of card board paper boxes, raw-material, packing material, finished, unfinished goods and all kinds of such similar nature connected with insured trade lying and stored and the same was destroyed in the fire that broke-up in the unit. It was further submitted that District Forum vide its order dated 14.09.2008 directed the appellant to submit the requisite documents to enable the respondents to finalize his claim. Thereafter, appellant submitted all the documents to the respondents and even thereafter, respondents illegally First Appeal No.805 of 2010 5 repudiated the genuine claim of the appellant. It was further submitted that District Forum illegally dismissed the complaint by holding that appellant could have obtained copies of invoices from the dealers to whom he supplied and sold finished goods to prove that he was manufacturer. District Forum did not take into consideration that appellant has produced audited copy of trading and balance sheet from previous years and this clearly shows that appellant is regularly purchasing the raw material and selling the finished goods after manufacturing. It was further submitted that District Forum dismissed the complaint of the appellant without appreciating the fact that the appellant is continuously giving stock statement to the bank. The stock statement given to bank on 10.03.2005 shows total stocks of Rs.4,51,000/-. The closing stock as on 31.03.2005 as per Trading and Profit and Loss account is Rs.4,42,800/-. This clearly shows that appellant is having stock worth more than Rs.4 Lacs in his godown and same has been fully insured with respondent. As such, order of the District Forum is liable to be set-aside and appeal filed by the appellant is liable to be accepted.
8. We have gone through the pleadings of the parties, perused the record of the learned District Forum and heard the arguments of the learned counsel for the parties.
9. We have perused the document Ex.C-1 as per which the policy was from 17.12.2004 to 16.12.2005 and insurance provided coverage for stock of cardboard, raw-material, packing material, finished, unfinished goods and other similar nature goods of the insured trade lying/stored at above address. The fire broke-up on 24.5.2005 within the insured period. DDR was lodged to the police Division No.7 which is Ex.C-2 and certificate to this effect was given by the Municipal First Appeal No.805 of 2010 6 Fire Officer and the same is Ex.C-3 in which it was stated that the all the material became ash due to the fire.
10. Surveyor-Jogesh Kumar was appointed to assess the loss. He visited the spot on 25.5.2005 and submitted the letters to supply the requisite information and documents detailed in the said letter. The appellant supplied the documents but the surveyor had submitted his report dated 10.11.2008 in which he has recommended the repudation of the claim on the following grounds :-
"on account of non-existance of your insurable interest as damaged stock do not pertain to your Firm."
11. As per the appellant on 24.5.2005 in fire entire stock including the account books, bill books were destroyed but after making efforts the appellant get Xerox copies of the bills from the persons from whom the appellant purchased the goods. The trading account alongwith profit and loss account for the year ending is Ex.C-49. On 24.5.2005, there was a closing stock of Rs.4,38,670/- as referred in Ex.C-54. All documents were submitted to the surveyor but he was not processing the claim and he was insisting to supply the record which was already intimated to the company that the same has been destroyed in the fire.
12. It is also admitted by the respondents in their reply Ex.RW1/A that the appellant has supplied the documents in compliance with the order of the District Forum and after the submission of the documents, the claim papers were handed over to the surveyor Jogesh Kumar. After the receipt of the letter dated 20.03.2006, the appellant also sent the certain documents to the surveyor directly vide letter dated 28.4.2006. This fact was also admitted by the surveyor in his First Appeal No.805 of 2010 7 affidavit Ex.RW/2A that he has received certain documents from the insured vide letter dated 28.4.2006 and the copy of the same is Ex.R-4.
13. The dispute regarding this case is that whether the loss of material occurred to the insured was belonging to the appellant or was of the tenant to whom the appellant had already sold his machinery for manufacturing of boxes and raw-material. The tenant had made a complaint to the police alleging that his goods caught fire and the policy taken from the respondents was against those goods. The Police dismissed his application vide letter Ex.C-68. Some documents submitted by the appellant in the shape of vouchers which are for the purchase of raw-material are to be verified as certain voucher are not in the name of the appellant firm for purchase of material stating therein.
14. The next question is whether as to what extent the goods of the appellant were destroyed in the fire which were not insured as all the stock book and all the important documents of the appellant were destroyed in the fire.
15. The appellant has policy in which the goods as well as the premises were covered for which the premium was paid and a valid contact has arisen between the parties. In our view Surveyor has falsely reported to the respondents that claimant has no insurable interest as the appellant has leveled the allegations against him. Whereas appellant produced the copies of the stock register, copies of bill and other relevant documents showing that on the day when the fire broke- up the appellant was having stock which has been lost due to fire. This fact that fire has taken place in the premises was not rebutted by the surveyor. He has also not mentioned what document was not given to him at the time of assessing the claim. The stock insured was for Rs.4,50,000/- as per the policy.
First Appeal No.805 of 2010 8
16. As stated above, the appellant has placed on file the insurance policy Ex.C-1 and has placed documents i.e. Balance Sheets, vouchers and various correspondence which are Ex.C-1 to C- 68 likewise the insurance company has relied upon similar documents including photographs from Ex.R-1 to R-122. Ex.R-122 is the order passed by the District Forum on 24.09.2008 as per which the respondent- insurance company was directed to consider the claim of the appellant on merits after receipt of the documents. The claim was repudiated on account of non-existence of insurable interest vide Ex.R- 56 observing that as per the balance sheet dated 31.3.2005, the machinery has been declared sold. As per the insurance policy Ex.C-1, stock of cardboard boxes, raw-material, packing material etc. was insured which was lying in the premises of M/s Tarvind Sales and one Harish Aggarwal lodged the complaint with the police claiming that his articles were lying there. The enquiry was conducted by DSP, Industrial Area II and vide Ex.C-68 his application was recommended to be filed. During the enquiry, it was found that said Harish Aggarwal has taken the shed on rent from Gurvinder Pal Singh and started his own work of manufacturing boxes and alongwith that the stock of the cardboard boxes belonging to Gurvinder Pal Singh was also lying there. Due to fire, the entire stock was burned. The stock of Gurvinder Pal Singh was insured whereas the stock of Harsh Aggarwal was not insured.
17. From the above, it is clear that the stock of the appellant was lying in the insured premises and he has not sold away the entire property. The appellant lodged the claim for a sum of Rs.4,38,670/- as per claim bill Ex.C-58. The respondent insurance company has also relied upon the similar documents as relied upon by the appellant First Appeal No.805 of 2010 9 including the bills Ex.R-77 to R-119 which belong to the appellant and as per those bills he has purchased the various articles for manufacturing the cardboard boxes and as per the bills relied upon by the Insurance Company Ex.R-77 to R-119, the total amount comes to Rs.4,01,179/- and the respondent insurance company is liable to pay the same. The District Forum has chosen an easy path by observing that voluminous evidence has to be led and the proceedings under the Act are summary proceedings. Finding of the District Forum is not at all tenable and are liable to be set-aside.
18. Accordingly, the appeal filed by the appellant is accepted and the order dated 12.03.2010 passed by the District Forum is set- aside. Consequently, the complaint filed by the appellant is allowed and the respondents are directed to pay Rs.4,01,179/- to the appellant on account of the loss suffered in the fire and to pay interest on this amount @ 7.5% from the date of repudiation of the claim till its realization. Respondent insurance company is also directed to pay Rs.20,000/- as litigation expenses. Both the respondents shall be liable jointly or severally.
19. The arguments in this appeal were heard on 06.02.2014 and the order was reserved. Now the order be communicated to the parties.
20. The appeal could not be decided within the statutory period due to heavy pendency of Court cases.
(Inderjit Kaushik)
Presiding Judicial Member
February 20, 2014. (Jasbir Singh Gill)
Lb/- Member