State Consumer Disputes Redressal Commission
Branch Manager, New India Assurance Co. ... vs Saroj Kumar Mohanty on 1 October, 2008
STATE CONSUMER DISPUTES REDRESSAL COMMISSION:ORISSA:CUTTACK STATE CONSUMER DISPUTES REDRESSAL COMMISSION:ORISSA:CUTTACK FIRST APPEAL NO.794 OF 2006 From an order dated 29.08.2006 passed by the District Consumer Disputes Redressal Forum, Koraput in C.D. Case No.117 of 2005 Branch Manager, New India Assurance Co. Ltd., Jeypore, Koraput, being represented by Senior Divisional Manager, New India Assurance Co. Ltd., D.O.II, Cantonment Road, Town/Dist- Cuttack. Appellant. -Versus- 1. Saroj Kumar Mohanty, Prop. M/s. Kamala Traders, near Block Colony, At/P.O/P.S- Malkangiri, District- Koraput. 2. Branch Manager, State Bank of India, At/P.O/P.S- Malkangiri, Dist- Koraput. Respondents. For the Appellant : M/s.S.K. Sarangi & Assoc. For the Respondent no.1 : M/s. A.K. Samal & Assoc. P R E S E N T : THE HONBLE SMT. BASANTI DEVI, MEMBER A N D SHRI SUBASH MAHTAB, MEMBER. O R D E R
DATE:-
1ST OCTOBER, 2008.
Being aggrieved against the order dated 29.08.2006 of the District Forum, Koraput, at Jayepur in C.D. Case No.117 of 2005 directing him to pay rupees 1,40,250/- towards fire insurance claim with interest @10% per annum on the said amount from 10.05.2003 till date of payment and cost of litigation rupees 2,000/- to the complainant, the Branch Manager, New India Assurance Co. Ltd., opposite party No.1 in the C.D. Case has filed this appeal.
2. Appellant has challenged the impugned order of the District Forum as illegal being contrary to the risk covered under Insurance Policy fire on jute stock having taken place in the truck in the process of transit.
3. We have heard the learned counsels appearing from both sides and perused the materials including xerox copies of documents filed by the parties.
4. Facts of the case in brief is that through financier State Bank of India, Malkangiri, represented by its Branch Manager, opposite party No.2 (respondent No.2), the complainant entered into Insurance Fire Policy for rupees 6,00,000/- bearing No.550102/11/02/00554 from 27.05.2002 to 26.05.2003. Risk covered Building having stocks viz. Fertilizers and Seasonal good paying annual premium of rupees 1733/-. Complainant was doing seasonal business of Jute, oil seeds etc. It is stated by the complainant in the complaint that on 09.05.2003 due to sudden parking of electric shock from heavy current line at the time of loading of the jute truck towards the shifting of stocks from house premises / business premises to the hired godown of OSWC, Malkangiri the stored jute stocks burnt into ashes, as a result of which the stocks of the jute were completely damaged. Complainant intimated about this incident to the Insurance Company viz. appellant (opposite party No.1) and opposite party No.2 on 10.05.2003. He lodged insurance claim of rupees 1,40,250/- before the appellant. But when appellant did not respond, he filed the above mentioned C.D. Case claiming financial loss and damage for mental and physical harassment. Besides challenging the aforesaid claim as barred by limitation and not maintainable, complainant being not a consumer, opposite party No.1 / appellant has contended that since the fire / mishap took place to the jute stock when the jute stock were in loaded condition in the truck, which is beyond the risk covered under the Insurance Policy, and no damage of jute stock in the insured godown, the Insurance Company is not liable to insurance claim. Thus, opposite party No.1 had prayed to dismiss the C.D. Case, opposite party No.2 had neither filed written version nor had contested the case of the complainant.
5. The District Forum came to a finding that as the complainant entered into the Insurance Policy as per the approval of the opposite party No.2, he is a beneficiary and, therefore, is a consumer. It was also decided by the District Forum that even though complainant was doing business of fertilizers and seasonal goods for commercial purpose, yet insurance policy taken by commercial organization would not come under the definition of commercial purpose under the Consumer Protection Act, 1986, in short the C.P. Act. Though appellant challenges these findings as improper in facts and law, yet he seriously challenges the orders of the District Forum settling insurance claim in favour of the complainant and heavy amount of litigation expenses to the extent that the District Forum wrongly arrived into a finding ignoring the report of the Surveyor / Loss Assessor, that 255 Qtls. of Jute in the godown and while loading for transportation from the godown, it caught fire and reduced to ashes.
6. Now, main point for determination arose before us as to whether 255 Qtls. of Jute stock in the godown covered under said policy was burnt due to fire accident or not.
7. The appellant has filed the xerox copy of the insurance policy which shows that insurance policy covers risks of stock(s) / contents viz. Fertilizers and Seasonal goods in the building. The building according to the complainant is a godown, where size has been staled by the Surveyor as 30 width x 20 length. Whether aforesaid Jute stocks was kept earlier in the said godown or not is immaterial for us in view of the facts available in the record that after the Jute stock were loaded in the truck for transportation from insured godown to hired OSWC godown, the Jute stock met with fire accident due to electric short circuit outside the godown. In the complaint petition, complainant has stated that at the time of loading of the Jute stock from the house premises / business premises in the truck fire accident took place. But vide written intimation dated 15.05.2003, complainant has informed appellant that 255 Qtls. of Jute are burnt due to fire accident caused by electricity short circuit in front of his business centre / godown and in spite of attempts made by public and fire brigade, the entire stock of 255 Qtls. of Jute was burnt. But, any how the godown was saved. This shows that the aforesaid jute stock when was kept loaded in the truck at the front of his business centre / godown was set with fire due to electricity short circuit. The surveyor / loss assessor, who had visited the spot on 15.05.2003 has also reported (xerox copy of report filed) that as the fire mishap took place when the Jutes were in the truck there is no damage or loss to the godown. The surveyor, on whom confidence can be reposed safely supported to the aforesaid version of the complainant that the said entire jute stock after was loaded in the truck in front side of the godown, the jute stock was accidentally set with fire. It is thus clear that said jute stock has not been burnt when stacked inside the godown / building covered under said fire policy. Said fire policy covers the godown containing stock(s) / contents viz. Fertilizers and Seasonal goods. As said jute stock were damaged due to fire at the verge of transit and not when kept inside the godown / building, complainant is not entitled to fire claim. Moreover, complainant has not covered risk of jute during transit. Therefore, opposite party No.1 / appellant has caused no wrong in repudiating the fire loss claim of the complainant. The District Forum, therefore, has passed palpably a wrong order directing appellant to give insurance fire claim to the complainant, losing sight of the aforesaid fact. In this end of the view, we find the appellant has a good case.
8. In the result, the appeal is allowed on merit without cost in the circumstance of the appeal. The aforesaid impugned order dated 29.08.2006 of the District Forum is hereby set-aside and the C.D. Case No.117 of 2005 stands dismissed.
Records received from the District Forum may be sent back forthwith.