State Consumer Disputes Redressal Commission
M/S Mittal Traders. vs Oriental Insurance Co. Ltd. on 17 August, 2018
H. P. STATE CONSUMER DISPUTES REDRESSAL
COMMISSION SHIMLA
First Appeal No. : 51/2018
Date of Presentation: 30.03.2017
Order Reserved on : 31.05.2018
Date of Order : 17.08.2018
......
M/s. Mittal Traders r/o Village and Post Office Ner Chowk near
SBOP Ner Chowk Tehsil Balh District Mandi H.P. through its
Partner Shri Rajender Kumar
...... Appellant/Complainant
Versus
The Oriental Insurance Company Limited through its Divisional
Manager Vidya Bhawan Palace Road Mandi District Mandi
H.P.
......Respondent /Opposite party
Coram
Hon'ble Justice P.S. Rana (R) President
Hon'ble Mr. Vijay Pal Khachi Member
Whether approved for reporting?1 Yes.
For Appellant : Mr. Rohit Advocate vice
Mr. Naveen K. Bhardwaj Advocate.
For Respondent : Ms. Rajvinder Sandhu Advocate.
JUSTICE P.S. RANA (R) PRESIDENT:
O R D E R :-
1. Present appeal is filed under section 15 of Consumer Protection Act 1986 against order dated 15.11.2016 passed by Learned District Forum in consumer complaint No.166/2015 titled M/s. Mittal Traders Versus The Oriental Insurance Co. Ltd.
1 Whether reporters of the local papers may be allowed to see the order? Yes.
M/s. Mittal Traders Versus Oriental Insurance Co. Ltd. (F.A. No.51/2018) Brief facts of Consumer Complaint:
2. Complainant filed consumer complaint under section 12 of Consumer Protection Act 1986 pleaded therein that complainant is partner of M/s. Mittal Traders Ner Chowk District Mandi H.P. and is dealing in footwear and wholesale trading. It is pleaded that shop-cum-godown of M/s Mittal Traders was situated at Village Ner Chowk near State Bank of Patiala Branch Ner Chowk District Mandi H.P. It is further pleaded that stock in trade of complainant was insured with opposite party w.e.f. 28.11.2013 to 27.11.2014 and premium was paid by complainant to the opposite party. It is further pleaded that stock of complainant was financed from Punjab National Bank Ner Chowk Branch District Mandi H.P. It is further pleaded that in the intervening night of 13.08.2014 and 14.08.2014 there was heavy rain in the area due to which there was excessive water in the drains, streets, rivulets and river. It is further pleaded that rain water with mud entered into the shop-cum-godown of complainant situated at village and post office Ner Chowk and more than 90% stock in trade was destroyed. It is further pleaded that complainant sustained huge loss due to flood relating to stock in trade. It is further pleaded that report was also lodged in police station. It is further pleaded that opposite party was informed. It is further pleaded that surveyor of opposite party 2 M/s. Mittal Traders Versus Oriental Insurance Co. Ltd. (F.A. No.51/2018) visited the spot. It is further pleaded that opposite party did not settle the claim of complainant and committed deficiency in service. Complainant sought relief of payment of Rs.2000000/- (Twenty lacs) on account of insurance claim alongwith interest @12 % per annum. In addition complainant sought compensation and damage for mental tension, torture and harassment. Prayer for acceptance of consumer complaint sought.
3. Per contra version filed on behalf of opposite party pleaded therein that complaint is not maintainable. It is further pleaded that insurance company is liable to indemnify the complainant for the stock in trade kept in the shop and is not liable to indemnify for the stock in trade kept in the godown located in the basement floor. It is further pleaded that surveyor was appointed by the insurance company. It is further pleaded that claim of complainant was repudiated strictly in accordance with law and strictly as per terms and conditions of the insurance policy. It is further pleaded that complicated facts are involved in the present consumer complaint and complainant be relegated to civil court. It is admitted that in the intervening night of 13.08.2014 and 14.08.2014 there was heavy rain in the area due to which rain water with mud entered in the godown of complainant. It is further pleaded that shop of complainant was located in the 3 M/s. Mittal Traders Versus Oriental Insurance Co. Ltd. (F.A. No.51/2018) upper floor of building and damage was caused in the godown located in the basement floor. It is further pleaded that surveyor-cum-loss assessor has assessed loss to the tune of Rs.88759/- (Eighty eight thousand seven hundred fifty nine).
It is further pleaded that opposite party did not commit any deficiency in service. Prayer for dismissal of consumer complaint sought.
4. Complainant filed rejoinder and reasserted the allegations mentioned in the complaint.
5. Learned District Forum ordered complainant to approach competent civil court for adjudication of his claim.
6. Feeling aggrieved against order passed by Learned District Forum complainant filed present appeal before State Commission.
7. We have heard learned advocates appearing on behalf of parties and we have also perused entire record carefully.
8. Following points arise for determination in present appeal.
1. Whether appeal filed by appellant is liable to be accepted as mentioned in memorandum of grounds of appeal?
2. Final order.
4
M/s. Mittal Traders Versus Oriental Insurance Co. Ltd. (F.A. No.51/2018) Findings upon point No.1 with reasons:
9. Complainant filed affidavit in evidence. There is recital in affidavit that deponent is partner of M/s. Mittal Traders Ner Chowk District Mandi H.P. and deals in footwear and wholesale trading. There is further recital in affidavit that shop-cum-godown of M/s Mittal Traders is situated at Village Ner Chowk near State Bank of Patiala Branch Ner Chowk District Mandi H.P. There is further recital in affidavit that stock in trade of complainant was insured with opposite party vide insurance policy No.263200/48/2014/2806 w.e.f. 28.11.2013 to 27.11.2014 and premium was paid by deponent to the opposite party to the tune of Rs.12658/-
(Twelve thousand six hundred fifty eight). There is further recital in affidavit that stock in trade of deponent was financed from Punjab National Bank Ner Chowk Branch District Mandi H.P. There is further recital in affidavit that in the intervening night of 13.08.2014 and 14.08.2014 there was heavy rain in the area due to which there was excessive water in the drains, streets, rivulets and river. There is further recital in affidavit that rain water with mud entered into the shop-cum-godown of complainant situated at village and post office Ner Chowk and more than 90% stock in trade was destroyed. There is further recital in affidavit that claim was submitted before the opposite party but opposite party did not 5 M/s. Mittal Traders Versus Oriental Insurance Co. Ltd. (F.A. No.51/2018) settle the claim of complainant and repudiate the claim in illegal manner.
10. Opposite party filed affidavit of Mohinder K. Sharma surveyor-cum-loss assessor in evidence. There is recital in the affidavit that deponent is qualified independent Surveyor and Loss Assessor duly licensed vide licence No. IRDA/I&D/SLA 3320 valid upto 23.10.2019. There is further recital in affidavit that deponent has conducted more than 5000 surveys. There is further recital in affidavit that opposite party engaged the deponent to conduct preliminary survey qua damage caused in the godown of M/s. Mittal Traders and during the preliminary survey it was observed that insured has insured shop and godown on upper floor of building located at Ner Chowk and has not insured godown located in the basement floor of the building. There is further recital in affidavit that deponent has submitted report dated 20.08.2014 to the opposite party which bears his signatures.
11. Opposite party also filed affidavit of Surender Kumar Soni Chartered Accountant, Surveyor-cum-Loss assessor in evidence. There is recital in the affidavit that deponent is independent surveyor-cum-loss assessor having Licence No.49806. There is further recital in affidavit that opposite party engaged deponent to carry out the final survey and assessment qua the flood loss occurred in the godown of 6 M/s. Mittal Traders Versus Oriental Insurance Co. Ltd. (F.A. No.51/2018) insured i.e. M/s. Mittal Traders at Ner Chowk Mandi H.P. There is further recital in affidavit that deponent assessed loss to the tune of Rs.88759/- (Eighty eight thousand seven hundred fifty nine). There is further recital in affidavit that stock in trade lying in godown located in the basement was out of purview of insurance policy.
12. Submission of learned advocate appearing on behalf of complainant that order passed by learned District Forum is contrary to law and contrary to proved facts is decided accordingly. It is proved on record that complainant obtained shopkeepers insurance policy annexure O-I from the opposite party. In the description of property covered under insurance policy word stock in trade has been written in positive manner and word premises has been mentioned. As per insurance policy stock in trade was insured within premises in consideration amount of Rs.2500000/- (Twenty five lac) and premium to the tune of Rs.7500/- (Seven thousand five hundred) was received by the insurance company to indemnify the complainant relating to stock in trade within premises.
13. Insurance company appointed surveyor-cum-loss assessor namely Surinder Kumar Soni under section 64UM of Insurance Act 1938. Shri Surinder Kumar Soni is duly licensed surveyor-cum-loss assessor and he has submitted 7 M/s. Mittal Traders Versus Oriental Insurance Co. Ltd. (F.A. No.51/2018) loss assessment report. State Commission has carefully perused the loss assessment report submitted by surveyor- cum-loss assessor namely Surinder Kumar Soni. Surveyor- cum-loss assessor has specifically mentioned in his report that shop of insured is situated at National Highway-21 and level of water from the rear side of the building rose and entered to the godown of the insured and damaged the stocks of footwear. Surveyor-cum-loss assessor has specifically mentioned in his report that flood entered to the shop and rose upto the level of about 1 foot from the floor level and caused the loss to the godown. Surveyor-cum-loss assessor has further specifically mentioned in his report that matter was also reported to the police. Surveyor-cum-loss assessor has assessed the loss as follows:
Particulars Amount Loss Gross (Estimated) 200000.00 Less Salvage 80000.00 Net Loss 120000.00 Less Excess Clause 10000.00 Net Loss Assessed 110000.00 Less Average Clause 21241.00 Net Loss Assessed 88759.00
14. Surveyor-cum-loss assessor has submitted that the complainant has sustained loss to the tune of Rs.88759/- (Eighty eight thousand seven hundred fifty nine). Surveyor- cum-loss assessor has mentioned in his report that claim is 8 M/s. Mittal Traders Versus Oriental Insurance Co. Ltd. (F.A. No.51/2018) not maintainable because stock in trade kept in the godown was not insured.
15. State Commission is of the opinion that surveyor- cum-loss assessor namely Surinder Kumar Soni has not carefully perused the terms and conditions of insurance policy and wrongly interpreted word stock in trade and wrongly interpreted words within premises. It has specifically been mentioned in description clause of insurance policy that stock in trade was insured with the opposite party in consideration amount of Rs.2500000/- (Twenty five lac). State Commission is of the opinion that words stock in trade and words within premises are very material for the just adjudication of present consumer complaint. State Commission is of the opinion that words 'stock in trade' mean goods in stock necessary for carrying business. State Commission is of the opinion that stock of goods kept in the godown comes within the definition of stock in trade for carrying business because stock kept in godown is used for the purpose of carrying business. State Commission is of the opinion that surveyor-cum-loss assessor has committed material illegality by way of wrongly interpreting the words stock in trade. There is no recital in the description clause of insurance policy that only stock in trade kept in the shop will be indemnified. Words stock in shop are missing in the 9 M/s. Mittal Traders Versus Oriental Insurance Co. Ltd. (F.A. No.51/2018) description clause of insurance policy. In view of the fact that words stock in trade has been incorporated in the description clause of insurance policy it is held that stock for sale kept in the godown falls within the definition of stock in trade. Similarly word premises means house or building together with its land and outbuildings occupied for business purpose. It is held that basement portion of godown of same building falls within definition of premises of same building.
16. Insurance company appointed surveyor-cum-loss assessor namely Surinder Kumar Soni and surveyor-cum-loss assessor has assessed the loss to the tune of Rs.88759/- (Eighty eight thousand seven hundred fifty nine). Complainant did not submit any counter surveyor-cum-loss assessor's report. Complainant also did not send any interrogatories to the surveyor-cum-loss assessor namely Surinder Kumar Soni qua damaged assessed by surveyor. It is well settled law that when two interpretations are possible then interpretation favourable to consumer should be adopted. See 2018 (1) CLT 468 NC Union of India through GM Western Railway Versus Smt. Vinaya Vilas Sawant.
17. Submission of learned advocate appearing on behalf of insurance company that as per insurance policy stock in trade in shop was insured and stock in trade kept in the godown was not insured and on this ground appeal filed 10 M/s. Mittal Traders Versus Oriental Insurance Co. Ltd. (F.A. No.51/2018) by complainant be dismissed is decided accordingly. State Commission is of the opinion that in the description clause of insurance policy words stock in shop are not mentioned but words stock in trade are mentioned. Divisional Manager of insurance company did not file his personal affidavit relating to controversial facts. Hence adverse inference is drawn against insurance company. See AIR 1999 SC 1441 Vidhyadhar Versus Mankik Rao. See AIR 1999 SC 1341 Iswar Bhai C. Patel Versus Harihar Bahera.
18. Submission of learned advocate appearing on behalf of insurance company that complicated facts are involved in the present consumer complaint and complainant be relegated to civil court for adjudication of consumer dispute and on this ground appeal filed by complainant be dismissed is decided accordingly. State Commission is of the opinion that insurance company has appointed surveyor- cum-loss assessor namely Surinder Kumar Soni and surveyor-cum-loss assessor has assessed the loss to the tune of Rs.88759/- (Eighty eight thousand seven hundred fifty nine). State Commission is of the opinion that insurance company is under legal obligation to indemnify the complainant as per loss assessed by the surveyor-cum-loss assessor. State Commission is of the opinion that it is not expedient in the ends of justice and on the principles of 11 M/s. Mittal Traders Versus Oriental Insurance Co. Ltd. (F.A. No.51/2018) natural justice to relegate the complainant to civil court. It is held that present consumer complaint could be disposed of in effective manner in summary proceedings. Point No.1 is decided accordingly.
Point No.2: Final Order
19. In view of findings upon point No.1 above appeal is partly allowed. It is ordered that opposite party shall pay amount to the tune of Rs.88759/- (Eighty eight thousand seven hundred fifty nine) to the complainant alongwith interest @ 9% per annum from the date of institution of complaint till realization on account of damage sustained by complainant relating to stock in trade within premises. It is further submitted that in addition insurance company shall pay compensation to the tune of Rs.20000/- (Twenty thousand) to the complainant for mental agony and harassment. It is further ordered that in addition insurance company shall pay ligation costs to the tune of Rs.10000/- (Ten thousand) to the complainant. Insurance policy No. 263200/48/2014/2806 annexure O-I issued by insurance company shall form part and parcel of order. Order of learned District Forum is modified accordingly. Parties are left to bear their own litigation costs before State Commission. File of learned District Forum alongwith certified copy of order be sent back forthwith and file of State Commission be 12 M/s. Mittal Traders Versus Oriental Insurance Co. Ltd. (F.A. No.51/2018) consigned to record room after due completion forthwith. Certified copy of order be transmitted to parties forthwith free of costs strictly as per rules. Appeal is disposed of. Pending application(s) if any also disposed of.
Justice P.S. Rana (R) President Vijay Pal Khachi Member 17.08.2018.
*GUPTA* 13