State Consumer Disputes Redressal Commission
The New India Assurance Co.Ltd. vs Kailash Traders Through Proprietor ... on 2 June, 2016
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR (C.G).
Appeal No.FA/2015/432
Instituted on : 26.11.2015
The New India Assurance Company Limited,
Through : Divisional Manager, Divisional Office,
Rama Trade Centre, Bus Stand, Bilaspur,
Tehsil and District Bilaspur (C.G.) ... Appellant
Vs.
1. Kailash Traders,
Through : Proprietor Kailash Rohra,
New Bus Stand, Sindhi Colony, Mungeli,
Tehsil and District Mungeli (C.G.)
2. State Bank of India,
Through : Branch Manager, Branch Office Mungeli,
District Mungeli (C.G.) ... Respondents
PRESENT: -
HON'BLE JUSTICE SHRI R.S. SHARMA, PRESIDENT
HON'BLE MISS HEENA THAKKAR, MEMBER
HON'BLE SHRI D.K. PODDAR, MEMBER
HON'BLE SHRI NARENDRA GUPTA, MEMBER
COUNSEL FOR THE PARTIES: -
Shri T. Arif, for the appellant.
Shri Mukesh Sharma, for the respondent No.1.
Shri N.K. Bisen, for the respondent No.2.
ORDER
Dated : 02/06/2016 PER :- HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT. This appeal is directed against the order dated 21.07.2015, passed by the District Consumer Disputes Redressal Forum, Mungeli (C.G.) (henceforth "District Forum") in Complaint Case No.CC/2012/167 (Bilaspur) CC/2015/01 (Mungeli). By the impugned order, the // 2 // complaint of the respondent No.1 (complainant) has been partly allowed and appellant (O.P. No.1) has been directed to pay compensation to the respondent No.1 (complainant,) which are mentioned as below:-
(a) The appellant (O.P.No.1) with pay to the respondent No.1 (complainant) within a period of one month from the date of order a sum of Rs.16,23,650.60 (Rupees Sixteen Lakhs Twenty Three Thousand Six Hundred and Twenty Five and Sixty Paise), in which if any amount has been paid earlier , will be adjusted.
(b) The appellant (O.P.No.1) will pay a sum of Rs.2,00,000/-
(Rupees Two Lakhs) to the respondent No.1 (complainant) towards compensation for mental agony.
(c) The appellant (O.P.No.1) will pay a sum of Rs.5,000/-
(Rupees Five Thousand) to the respondent No.1
(complainant) towards cost of litigation.
(d) The respondent No.2 (O.P. No.2) will bear his own cost.
2. Briefly stated the facts of the complaint of the respondent No.1 (complainant) are that the respondent No.1 (complainant) is operating his business in the name of Kailash Traders and the respondent No.2 (O.P. No.2) provided financial assistance to the respondent No.1 // 3 // (complainant). The respondent No.2 (O.P.No.2) got insured the stock of the respondent No.1 (complainant) with the appellant (O.P.No.1) under Fire Insurance Policy No.452000/11/09/00001458, which was effective for the period from 06.10.2009 to 05.10.2010 under which the building was insured for Rs.20,00,000/- and the stock was insured for Rs.70,000,000/-. On 29.05.2010, there was heavy rains with storm in Mungeli, due to which the business premises and stock of the respondent No.1 (complainant), was damaged. The respondent No.1 (complainant) intimated the appellant (O.P.No.1) and respondent No.2 (O.P.No.2) regarding the incident. The appellant (O.P.No.1) deputed Shri Tavinder Pal Singh, Surveyor to assess the loss, who assessed the loss and submitted his report before the appellant (O.P.No.1). The appellant (O.P. No.1), for settlement of the claim of the respondent No.1 (complainant) instructed the respondent No.1 (complainant) to obtain report from Government of India Meteorological Department in respect of the storm. The above report has been received by the respondent No.1 (complainant) from office of Government of India vide letter dated 16.12.2010 which was submitted by the respondent No.1 (complainant) before the appellant (O.P.No.1). Even after submitting the above report by the respondent No.1 (complainant) to the appellant (O.P. No.1), the claim has not been settled, which comes in the category of deficiency in service. Hence the respondent No.1 (complainant) filed // 4 // consumer complaint before the District Forum and prayed for granting reliefs as mentioned in the complaint.
3. The appellant (O.P.No.1) has filed its written statement and denied the allegations made by the respondent No.1 (complainant) in the complaint against it. The appellant (O.P.No.1) vide letter dated 18.11.2010 demanded Report of Meteorological Department. The appellant (O.P.No.1) vide letter dated 02.12.2010 again demanded documents, which were not submitted by the respondent No.1 (complainant) till date. The respondent No.1 (complainant) did not submitted duly filled up claim form, therefore, for want of document, the appellant (O.P. No.1) could not take any action. The complaint is liable to be dismissed with cost.
4. The respondent No.2 (O.P.No.2) filed its written statement and averred that the complaint of the respondent No.1 (complainant) is barred by time, hence is not maintainable. No cause of action has accrued to the respondent No.1 (complainant) against the respondent No.2 (O.P.No.2), therefore, the complaint is not maintainable. The owner of the godown Smt. Mamta Rohra gave intimation to the Incharge, Police Station, Mungeli in writing copy of which had been provided to the respondent No.2 (O.PNo.2). Certified of the report made in concerned Police Station regarding the loss of stock of Kailash Traders, has not been submitted. The respondent No.1 (complainant) obtained loan for stock to the tune of Rs.57,50,000/- under C.C. Limit // 5 // from State Bank of India, Branch Mungeli. The liability of the getting shop and stock is of the borrower. The respondent No.1 (complainant) got insured his shop and stock with appellant (O.P.No.1) New India Assurance Co. Ltd. If any loss is occurred, then it is the liability of the respondent No.1 (complainant) to submit document, to prove the same and to obtain claim from the Insurance Company. No damage was cause to the business premises of the respondent No.1 (complainant) and to the stock. It is the responsibility of the respondent No.1 (complainant) to obtain insurance policy regarding the shop and goods kept therein. Acceptance or rejection of the claim by the Insurance Company, does not come in the category of deficiency in service. No damage was caused to the business premises and stock of Kailash Traders, therefore, the respondent No.1 (complainant) is not entitled for getting any compensation from the respondent No.2 (O.P.No.2). The unit of M/s Kailash Traders and Smt. Mamta are separate. The account is different. The godown of Smt. Mamta is at the distance of four furlong from the godown of M/s Kailash Traders at Thakkar Bapa Ward . No cause of action has accrued to the respondent No.1 (complainant) against the respondent No.2 (O.P.No.2). The complainant is liable to be dismissed
5. The respondent No.1 (complainant) has filed document. Documents are intimation given by the respondent No.1 (complainant) to the appellant (O.P.No.1) regarding loss occurred in the godown, // 6 // application dated 18.10.2010 submitted by the respondent No.1 (complainant) before the appellant (O.P.No.1) for clearance of his claim, letter dated 29.05.2010 sent by the respondent No.1 (complainant) to the respondent No.2 (O.P.No.2) giving intimation regarding the loss occurred to the material kept in the godown, letter dated 30.05.2010 sent by the respondent (complainant) to Incharge, Police Station, Mungeli giving information regarding loss occurred in the storm, details of estimated loss, details of estimated loss, details of stock as on 29.05.2010 at Shop, details of stock as on 29.05.2010 at Godown, letter dated 10.06.2010 sent by Smt. Mamta Rohra to Shri Arora, letter dated 28.08.2010 sent by the respondent No.1 (complainant) to Shri Arora, Estimate dated 05.06.2010 of Supreme Steel Works, Bilaspur (C.G.), Estimate of Civil work at Godown of Mamta Rohra, Mungeli, Standard Fire and Special Perils Policy, letter dated 02.12.2010 sent by Divisional Manager, The New India Assurance Company Limited, Bilaspur (C.G.) to Kailash Traders, letter dated 29.05.2010 sent by Proprietor, Kailash Traders, Mungeli to the Branch Manager, State Bank of India, Mungeli, Fire Insurance Claim Form, letter dated 31.01.2011 sent by the Proprietor Kailash Traders, Mungeli to The New India Assurance Co. Limited, Bilaspur, letter dated 31.01.2011 sent by the respondent No.1 (complainant) to the appellant (O.P.No.1), letter dated 16.12.2010 sent by Assistant Meteorologist - (Climatological Section), Government of India, India Meteoroglical // 7 // Department, Nagpur to M/s Kailash Traders, Mungeli, photocopy of the intimation given by the respondent No.1 (complainant) on 30.05.2010 to the Police Station, Mungeli regarding the loss occurred to the establishment, Profit and Loss Account, Purchase Account, Sales Account, Stock Summary of Kailash Traders, Mungeli, for the period from 01.04.2010 to 29.05.2010, newspaper cuttings, Profit & Loss Account, Sales Accounts, Purchase Accounts, Balance Sheet, Loans (Liability), Current Liabilities Sundry Creditor, Fixed Assets, Deposits (Assets) of Kailash Traders for the period 01.04.2009 to 31.03.2010, Certificate dated 12.06.2010 issued by State Bank of India, Branch Mungeli (Bilaspur), Statements of Goods Hypothecated, Tax Invoices issued by ACC Limited, photocopy of bills dated 10.05.2010 issued,, bill dated 21.05.2010 issued, bills dated 16.06.2010 issued, bills dated 13.06.2010 issued, bills dated 13.06.2010 issued, bill dated 13.07.2010 issued, bills dated 13.07.2010 issued, Tax Invoice dated 16.12.2010 issued by KIhandelwal Pesticides Pvt. Ltd. in favour of Kailash Traders, Mungeli, Tax Invoice dated 25.01.2010 issued by Khandelwal Pesticides Pvt. Ltd. in favour of Kailash Traders, Mungeli, Tax Invoice dated 20.04.2010 issued by Khandelwal Pesticides Pvt. Ltd. in favour of Kailash Traders, Mungeli, bills issued on 07.06.2010, Tax Invoice dated 11.03.2010 issued by Coomandel International Limited in favour of Kailash Trader, Mungeli, Tax Invoice dated 15.03.2010 issued by Paradeep Phosphates Limited in favour of Kailash Traders, VAT // 8 // Invoice dated 22.03.2010 issued by Coromandel International Limited in favour of Kailash Traders, Mungeli, VAT Invoice dated 22.05.2010 issued by Coromandel International Limited in favour of Kailash Traders, VAT Invoice dated 11.06.2010 issued by Coromandel International Ltd. in favour of Kailash Traders, Mungeli, Tax Invoice dated 26.06.2010 issued by Paradeep Phosphates Limited in favour of Kailash Traders, bills issued on 24.04.2010, 22.04.2010, and 19.04.2010, bills issued on 02.06.2010, 09.06.2010 .
6. Learned District Forum, after having considered the material placed before it by the parties, has allowed the complaint of the respondent No.1 (complainant) by the impugned order.
7. The appellant (O.P. No.1) has filed an application under Order 41 Rule 27 CPC read with Section 151 CPC for taking documents on record as additional evidence at the appellate stage, which are letter 10.07.2015 sent to Shri Tavinderpal Singh Arora, Surveyor by the Divisional Manager, The New India Assurance Company Limited, Bilaspur (C.G.) and letter dated 04.01.2015 sent to Shri Tehkik Arif, Advocate, along with Survey Report of Shri Tavinderpal Singh Arora dated 28.09.2010, by the Divisional Manager, The New India Assurance Company Limited, Bilaspur (C.G.)
8. We have heard learned counsel for the parties on the application filed by the appellant (O.P.No.1) under Order 41 Rule 27 // 9 // CPC read with Section 151 CPC for taking documents on record as additional evidence at the appellate stage.
9. Learned District Forum para 10 of the impugned order has observed that on being intimation given by the respondent No.1 (complainant) regarding the incident to the appellant (O.P.No.1), the appellant (O.P.No.1) deputed Shri Tavinderpal Singh Arora, Surveyor for conducting spot inspection, who inspected the spot and submitted his report to the appellant (O.P. No.1), but the appellant (O.P.No.1) did not filed Survey Report, therefore, adverse inference has been drawn against the appellant (O.P.No.1).
10. The learned District Forum has specifically observed that the Survey Report of the Surveyor has not been filed by the appellant (O.P.No.1). The Surveyor's report is a material document and is reliable and dependable evidence. The Surveyor's report has significant evidentiary value, unless is proved otherwise. The Surveyor's report should be given due weightage and the same cannot be brushed aside lightly. Therefore, for just and proper adjudication of the case, it is essential to take the Surveyor's Report on record as appellate stage, therefore, the application filed by the appellant (O.P. No.1) under Order 41 Rule 27 CPC read with Section 151 CPC, deserves to be accepted subject to payment of cost.
// 10 //
11. Therefore, we allow the above application filed by the appellant (O.P.No.1) and take the above documents on record as additional evidence.
12. The appellant (O.P.No.1) has filed Survey Report of Shri Tavinderpal Singh Arora, and the same has been taken on record as additional evidence, therefore, it is essential to remit the case back to the District Forum for proper adjudication of the case on the basis of above Surveyor's Report.
13. Therefore, the appeal filed by the appellant (O.P. No.1) is allowed subject to payment of cost of Rs.5,000/- and the impugned order dated 21.07.2015, passed by the District Forum, is set aside. The matter is remitted back to the District Forum with a direction that the District Forum will take Surveyor's Report on record and if the respondent No.1 (complainant) wishes to file documents in rebuttal of the documents which have been filed by the appellant (O.P.No.1) at the appellate stage as additional evidence, then the District Forum will provide such opportunity to the respondent No.1 (complainant) and thereafter by providing opportunity of hearing to the parties, will decide the matter afresh its own merits. It is made clear that the appellant (O.P.No.1) will first of all deposit the amount of cost Rs.5,000/- before the District Forum, which is payable to the respondent No.1 (complainant). It is also made clear that only after depositing the amount of cost by the appellant (O.P.No.1) before the // 11 // District Forum, the District Forum will take into consideration, the documents which have been filed by the appellant (O.P.No.1) as additional evidence before us, otherwise, the District Forum, will decide the matter without taking into consideration above documents. Parties are directed to appear before the District Forum, Mungeli (C.G.) on 21.06.2016. The photocopies of the documents, which have been filed by the appellant (O.P.No.1) before us at the appellate stage as additional evidence along with application under Order 41 Rule 27 CPC read with Section 151 CPC, be sent forthwith to the District Forum, Mungeli (C.G.) along with record of the case.
(Justice R.S. Sharma) (Ms. Heena Thakkar) (D.K. Poddar) (Narendra Gupta) President Member Member Member 02 /06/2016 02 /06/2016 02 /06/2016 02 /06/2016