State Consumer Disputes Redressal Commission
Oriental Insurance Company Ltd. vs M/S New Bharat Overseas on 7 April, 2017
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB,
First Appeal No.657 of 2016
Date of institution : 31.08.2016
Date of reserve : 15.03.2017
Date of decision : 07.04.2017
1. The Oriental Insurance Company Ltd., 32 G.T. Road,
Amardeep Building Jalandhar & OIC, GT Road, Batala through
MANAGER, OIC Ltd., Surendra Building, SCO 109-111, Sector
17-D, Chandigarh - 160017
....Appellants/Ops
Versus
M/s New Bharat Overseas (Partnership Firm), Faizpur Road,
Batala through its Partner Munish Khosla, Gurdaspur, Punjab.
....Respondent/Complainant
First Appeal against the order dated
9.6.2016 of the District Consumer
Disputes Redressal Forum, Gurdaspur.
Quorum:-
Shri Gurcharan Singh Saran, Presiding Judicial Member
Shri Harcharan Singh Guram, Member
Present:-
For the appellants : Shri S.S. Sidhu, Advocate
For the respondent : Shri A.S. Khara, Advocate
GURCHARAN SINGH SARAN, JUDICIAL MEMBER
ORDER
The appellants/Ops (hereinafter referred as Ops) have filed this appeal against the order dated 9.6.2016 passed by the First Appeal No. 657 of 2016 2 District Consumer Disputes Redressal Forum, Gurdaspur (hereinafter referred as the District Forum) in consumer complaint No. 71 dated 9.2.2016 vide which the complaint filed by respondent/complainant (hereinafter referred as the complainant) was partly allowed with the direction to Ops to pay the insurance claim of Rs. 7,77,240/- (as per surveyor report) alongwith interest @ 6% p.a. from the date of filing of the present complaint. It was further directed to pay Rs. 10,000/- as cost of litigation. It was also directed to pay this amount within a period of 30 days from the date of receipt of copy of the order, otherwise aggregate awarded amount shall attract interest @ 9% p.a. from the date of order till actual payment.
2. Complaint was filed by complainant under the Consumer Protection Act, 1986 (in short 'the Act') against Ops on the averments that complainant is partnership firm carrying on its business for sale and purchase of rice under the name and style of M/s New Bharat Overseas Faizpur Road, Batala in the premises of M/s Khosla International, Near Shahabpura, Jalandhar Amritsar Bye Pass Road, Batala. Complainant got insured the stocks of Rice, Paddy, Bardana, Wheat and all other goods with Ops for sum insured of Rs. 1,25,00,000/- for the period 30.1.2006 to 29.1.2007 vide Policy No. 2006/538 dated 30.1.2006. The complainant had taken a credit facility from ICICI Bank. The complainant purchased 4701 quintals of Basmati Rice vide Bill Nos. 1401, 1404, 1405, 1431 and 1432 dated 23.1.2006, 24.1.2006 and 28.1.2006. The complainant pledged 4701 quintals First Appeal No. 657 of 2016 3 of Basmati Rice valuing Rs. 1,17,52,500/- with ICICI Bank, with credit facility of Rs. 88,14,375/-. The stock was under the lock and key of the bank. From 1.9.2006 to 4.9.2006, the entire State of Punjab experienced torrential rain and in the town of Batala from 2.9.2006 to 3.9.2006, as a result of that, the stocks of Basmati Rice of the complainant got damaged due to rain water, which entered in the godown of the complainant and it suffered a loss of Rs. 8,81,928/-. When the complainant came to know about the loss on 4.9.2006, Chowkidar of ICICI Bank opened the said godown to verify the position of the pledged stock. Intimation was given to Ops, who appointed M/s Vij Engineers Enterprises, Surveyors and Loss Assessors, BMC Chowk, Jalandhar City, who visited the spot at 11.30 a.m. on 5.9.2006 and the said person, after visual examination of the Basmati Rice, requested Munish Khosla, a partner of the complainant to segregate the damaged stock to arrive at the quantity of the rice damaged. Complainant paid a sum of Rs. 53,26,077/- and got released the aforesaid Basmati Rice under pledge from the Bank. On 11.9.2006, the said person again visited the said godown and got segregated the damaged and undamaged stocks and also clicked the photographs. M/s Khosla International had also got their stocks insured from United India Insurance Co. Ltd. Vide Policy No. 200202/11/05/11/0000187 dated 31.10.2005 and due to damage in the torrential rain, they got a claim of Rs. 86,231/- from the said Company. The complainant had been demanding the claim of Rs. 8,81,928/- but Ops were postponing the payment on one pretext or First Appeal No. 657 of 2016 4 the other, however, vide letter dated 24.4.2007, they repudiated the claim on false, frivolous and fake grounds. The complainant requested the Ops to review his claim, although they assured but went on postponing the review with an oblique motive so that the period to file the complaint may lapse. Alleging deficiency in service on the part of Ops, complaint was filed before the District Forum seeking directions to the Ops to pay the claim amount of Rs. 8,81,928/- alongwith interest @ 24% p.a., pay Rs. 1 Lac as compensation and Rs. 15,000/- as litigation expenses.
3. Complaint was contested by Ops. They filed the reply taking preliminary objections that the transaction is commercial in nature, therefore, the Hon'ble Forum has got no jurisdiction to entertain the complaint; complaint is bad for mis-joinder and non- joinder of parties. Op No. 2 has been unnecessarily impleaded whereas Head Office has not been impleaded; the Hon'ble Forum has got no jurisdiction as the insurance took place at Jalandhar; complaint is time barred and that the complainant is guilty of suppression of material facts. On merits, it has been stated that the complainant firm is the sister concern of M/s Khosla International, Batala as it was under the management of M/s Hanuman Dass & Sons. The statement of account, if any, prepared by the complainant firm is result of collusion and conspiracy of complainant firm with M/s Hanuman Dass & Sons. The complainant firm failed to submit the relevant record before the Surveyor M/s Vij Engineer's Enterprise, BMC Chowk, Jalandhar despite demand. The certificate issued by M/s First Appeal No. 657 of 2016 5 Hanuman Dass & Sons, Jalandhar had absolutely no relevancy. As per the report made by Tehsildar, Batala on 29.9.2008 on the application moved by the complainant, it is clear that no rain took place on 1.9.2006 and 4.9.2006 and negligible rain took place on 2.9.2006 and 3.9.2006 i.e. 97 mm and 74 mm, respectively. As per the report of the Surveyor, there was no sign of flood water entered into the premises. There was moisture in the insured godown but as per the policy, no claim of moisture can be made by the complainant firm, therefore, there is no loss as alleged by the complainant as there was no entry of flood water/ inundation. It was denied that the complainant firm suffered a loss of Rs. 8,81,928/-. The complainant firm propounded a baseless story. The publication in the newspaper, if any, has got no relevancy. Complaint is without merit, it be dismissed.
4. Before the District Forum, the parties were allowed to lead their respective evidence.
5. In support of his allegations, the complainant had tendered into evidence affidavits of Manoj K. Aggarwal Ex. C-92, affidavit of Deba Singh Ex. C-93, affidavit of Munish Khosla Ex. C- 94 alongwith documents Exs. C-1 to C-93. On the other hand, Ops had tendered into evidence affidavit of Pawan Kumar Gupta Ex. RW-1/A, affidavit of Jasjit Singh Ex. RW-2/B, affidavit of R.K. Bansal Ex. RW-3/C alongwith documents Exs. R-1 to R-66.
6. After going through the allegations in the complaint, written version filed by the Ops, evidence and documents brought on the record, the complaint was allowed as referred above. First Appeal No. 657 of 2016 6
7. Aggrieved with the order passed by the learned District Forum, the appellant/Ops have filed the present appeal.
8. We have heard the learned counsel for the appellants Sh. S.S. Sidhu, Advocate and learned counsel for respondent Sh. A.S. Khara, Advocate.
9. It was argued by the counsel for the Ops that as per the policy issued by Ops placed on the record as Ex. C-3, it covered the stock of the rice, paddy, Bardana, Wheat and all other goods pertaining to the insured trade while lying/stored/arranged at M/s Khosla International, Near Shahabpura, Jalandhar Amritsar Bye Pass Road, Batala for sum insured of Rs. 1,25,00,000/- for the period 30.1.2006 to 29.1.2007 vide Policy No. 2006/538 dated 30.1.2006, therefore, in case there is any damage to the stock while stored in the godown, it is covered under the policy. As per the report of the Surveyor, proved on the record as Ex. R-5, in which it was observed that they are not satisfied with the insured's supposed cause of loss as they did not find any signs of flood water into the insured premises. It is further corroborated on the basis of photographs taken on the record by the Surveyor in Exs. R-9 to R-60 and even the photographs placed on the record by the complainant as Exs. C-21 to Ex. C-71. As per the report of Tehsildar, Batala Ex. C-16, there was no rain on 1.9.2006 and 4.9.2006. The report in the newspaper, if any, is not an admissible evidence. Therefore, in case there is no apparent cause of any damage to the stock then the Ops are not liable to pay any loss of any damage caused to the stock of complainant firm. First Appeal No. 657 of 2016 7
10. Apart from the averments of the complainant Munish Khosla, Partner of the complainant firm, in which it has been reiterated that there was loss to the stock due to collection of water in the godown due to heavy rain, Mukesh Khosla, also filed the affidavit as partner of the complainant firm alongwith partnership deed of the firm Ex. C-1. This premises was on rent with the complainant firm from Khosla International vide rent agreement Ex. C-2. Then there is affidavit Ex. C-92 of Manoj K. Aggarwal of Partner of M/s Hanuman Dass & Sons, who has stated that as on 4.9.2006, 3389 bags of Basmati Rice being 2676 quintals valuing Rs. 66,90,000/- belonging to the complainant firm were lying stored in their godown and pledged with ICICI Bank and the stocks were got damaged due to rain water entered in the godown from 2.9.2006 to 4.9.2006. Then there is affidavit of one Deva Singh Ex. C-93, who has stated that from 1.9.2006 to 4.9.2006, the entire State of Punjab experienced torrential rain and the Town of Batala experienced torrential rain from 2.9.2006 to 3.9.2006, as a result of that water entered in the godown where the stock of the complainant firm was lying and it got damaged due to rainy water. Then there are photographs Exs. C-21 to C-71, which corroborate the version of the complainant with regard to the damage to the stocks. Even the Surveyor and Loss Assessor has also taken the photographs Ex. R-9 to R-60 and in various photographs damage has been shown to the stock. It is not that the entire stock has been damaged. It has been mentioned in the complaint that the stock worth Rs. 8,81,928/- was damaged. Therefore, reference of First Appeal No. 657 of 2016 8 the counsel for the Ops that some of the stock was lying in a good condition cannot be accepted because it is not the case of entire stock damage. The Surveyor in his report Ex. R-5 has assessed the loss to the tune of Rs. 7,77,240/- and the District Forum has allowed to that extent only. He has also referred to the survey report of M/s Khosla International and in that case, the Insurance Company paid a sum of Rs. 86,500/- as a loss and damage due to torrential rain. Although newspaper cuttings Exs. C-17, C-18 & C- 19 may not be a legal document but it corroborated the version of the complainant that there was torrential rain from 1.9.2006 to 4.9.2006 and specifically the report of the Tehsildar Ex. C-16 showing rain at Batala 97mm on 2.9.2006 and 74 mm on 3.9.2006. Although there may be no rain on 4.9.2006 but due to torrential rain on 2.9.2006 and 3.9.2006, the water had collected and then it entered in the godown of the complainant. Therefore, we do not agree with the plea raised by the counsel for the Op that there was no damage to the stock of the complainant as alleged by him.
11. The counsel for the Op mainly stressed upon the report of the Surveyor Ex. R-5 in which it was mentioned that there was no loss to the stock of the complainant, therefore, it should be relied upon. The Hon'ble Supreme Court in its judgment 2010 AIR (SC) 3035 "The New India Assurance Co. Ltd. Versus M/s Protection Manufacturers Pvt. Ltd." Observed that the report of the Surveyor was without any factual base and without any foundation. The report of the investigator was discarded. A First Appeal No. 657 of 2016 9 reference has been made to judgment reported 2016 (3) C.P.J. 222 "The New India Assurance Company Limited versus M/s Prem Furniture & Fabrication" in which it was observed that Surveyor has even not considered the stock statement from the Bank. Surveyor has also raised the question that some of the items listed in the claim list may belong to the old firm of the same Proprietor. In case it was so, it was the duty of the Surveyor to have clearly found the answers to these questions. Therefore, with reasoning the report of the Surveyor can be differed with. The report of the Surveyor is not the last word. In case other evidence is available on the record then that evidence can be relied upon to check whether there was any damage to the stocks of the complainant firm due to torrential rain. In this regard already a reference has been made to the statement of the complainant Munish Khosla Ex. C-94, affidavit of Deva Singh Ex. C-93 and affidavit of Manoj K. Aggarwal Ex. C-92 and report of the Tehsildar Ex. C-16, photographs taken on the record by the complainant as well as Surveyor and press cuttings are sufficient evidence to say that there was torrential rain and damage to the stock was only due to the entry of rain water in the godown and not on account of any other reason. In this background, the report of the Surveyor that there was no damage due to entry of water in the godown of the complainant cannot be believed.
12. It was further argued by the counsel for the Op that the complainant firm is doing the commercial business, therefore, the complainant firm is not covered under the definition of the First Appeal No. 657 of 2016 10 consumer as defined under Section 2(1)(d) of the Act as it does not complete the ingredients as defined in explanation annexed to Section 2(1)(d) of the Act. The counsel for the appellants has relied upon the judgments 2010 (4) CPJ 178 "Sanjay D. Ghodawat versus R.R.B. Energy Ltd.", 2013(3) CPJ 261 "Morion Chemicals Ltd. Versus UCO Bank and another", 2016(2) CPR 219 "Rajesh Gulati and another versus DLF Commercial Complexes Limited"
and 2015(1) CPJ 760 "United India Insurance Co. Ltd. Versus Kishore Sharma". We have gone through these judgments. In these judgments, the complainant had engaged the services of Ops and the complainant was running the business for commercial purposes. Accordingly, it was held that complainant is not consumer as defined under the Act. Counsel for the Ops has further referred to 2011(1) SCC 525 "Birla Technologies Ltd. Versus Neutral Glass and Allied Industries Ltd.". In that case, the complainant purchased the goods for commercial purposes. Complaint was not maintainable after 2002 amendment but prior to Amendment Act, 2002, services avaioled of for any commercial purpose were not excluded from the purview of the Act. Complaint was filed in 2003, therefore, the complaint was not maintainable. Complainant was given liberty to file suit for the relief claimed taking benefit of Section 14 of the Limitation Act. The judgments relied upon by the counsel for the Op are distinguishable because in those cases services of OP were taken for commercial purpose and not for engagement of insurance services, which was never meant to gain any profit. This point has been fortified from the law First Appeal No. 657 of 2016 11 settled by the Hon'ble Delhi State Consumer Disputes Redressal Commission, New Delhi in II (2014) CPJ 24A (CN) "M.M. Knitwears Pvt. Ltd. versus Bajaj Allianz General Insurance Company Ltd. & Anr.", that availing of insurance services by firm or company is not hiring services for commercial purpose because insurance is indemnification of future loss whenever it is caused and insurance policy is not taken for making profit. Therefore, in view of the judgment referred above, we do not agree with the plea raised by the counsel for the Ops that the complainant firm is not covered under the definition of 'consumer'.
13. No other point was argued.
14. In view of the above, we find that the order passed by the learned District Forum is correct and we do not find any infirmity in the order passed by the learned District Forum and the same is affirmed.
15. Sequel to the above, we do not find any merit in the appeal and the same is dismissed with no order as to costs.
16. The appellant No. 1 had deposited an amount of Rs. 25,000/- and Rs. 5,77,146/- with this Commission in the appeal. These amounts with interest accrued thereon, if any, be remitted by the registry to the respondent/complainant by way of a crossed cheque/demand draft after the expiry of 90 days, from the despatch of the order to the parties; subject to stay, if any, by the higher Fora/Court.
First Appeal No. 657 of 2016 12
17. Remaining amount, if any due, shall be paid by the appellants to the respondent/complainant within 30 days from the receipt of the copy of the order.
18. The appeal could not be decided within the statutory period due to heavy pendency of Court cases.
19. Order be communicated to the parties as per rules.
(Gurcharan Singh Saran) Presiding Judicial Member (Harcharan Singh Guram) Member April 07, 2017.
as