State Consumer Disputes Redressal Commission
M/S. Hari Chand Bishan Swaroop (Huf) vs The Oriental Insurance Company Limited ... on 17 July, 2012
BEFORE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SOLAN, H H.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION, SHIMLA. Consumer Complaint No: 05/2011 Date of Decision: 17.07.2012. . M/s. Hari Chand Bishan Swaroop (HUF), Shali Bazar, Theog, District Shimla, H.P. Through its Karta Shri Pardeep Kumar Gupta. Complainant. Versus 1. The Oriental Insurance Company Limited, Registered Office: Oriental house, P.B. No.7037, A-25/27, Asif Ali Road, New Delhi-110002. Through its Managing Director. 2. The Oriental Insurance Company Limited, Divisional Office: Mythe Estate, Kaithu, Shimla, H.P. Through its Divisional Manager. 3. The Oriental Insurance Company Limited, Through its Branch Manager, Theog. Opposite Parties. Coram Honble Mr. Justice (Retd.) Surjit Singh, President Honble Mr. Chander Shekhar Sharma, Member
Honble Mrs. Prem Chauhan, Member.
Whether approved for reporting?[1]Yes.
For the Complainant:
Ms. Parul Negi, Advocate.
For the Opposite Parties: Mr. Lalit Sharma, Advocate.
O R D E R:
Justice (Retd.) Surjit Singh, President (Oral) Complainant has sought issuance of a direction to the opposite parties for payment of insurance money in respect of his stock in trade, which was insured with the opposite parties and which got gutted in a fire that broke out on the night intervening 13th/14th April, 2010, when the insurance policy was in force.
2. Complainant is a Hindu undivided family doing business in hardware, tiles, building material etc. etc. in the name & style of M/s. Hari Chand Bishan Swaroop at Theog in Shimla district. Complainant had been getting the stock in trade insured with the opposite parties continuously for 6-7 years, prior to the incident of fire. Latest policy, copy Annexure C-1, was issued pursuant to cover note dated 24.09.2009, and it was effective from 25.09.2009 to 24.09.2010. The sum insured was `35.00 lacs. Premium amounting to `11,486/-, had been paid.
3. According to the complainant, when the aforesaid insurance policy was subsisting, a fire broke out in its business premises, located in Shalli Bazar, Theog, Shimla and stock in trade worth `25.00 lacs (approximately) was destroyed in the fire. Report was lodged with the police immediately. Opposite parities were also apprised of the fire incident promptly. They deputed a surveyor, who confirmed that a fire had broken out in which huge stock belonging to the business of the complainant had been destroyed. Thereafter, an evaluator was deputed by the opposite parties, who assessed the loss at `12,31,506/-. However, surveyor & evaluator reported that the fire had broken out in the building of Gurbans Singh & Harbans Singh, in which the complainant used to run its business and that this business place was different from the two business places, which the complainant had got insured with the opposite parties. Opposite parties in view of the aforesaid observation of the surveyor and the evaluator, did not settle the claim. Complainant then filed a complaint, under Section 12 of the Consumer Protection Act, 1986, seeking issuance of a direction to the opposite parties to pay the insurance claim. During the pendency of the complaint, opposite parties repudiated the claim on the ground that the stock kept in the building that caught fire had not been insured and so they were not liable to pay any money by way of indemnification.
4. Opposite parties have contested the complaint. They have stated that the stock in trade, which had been got insured, was kept in two buildings, which were separate from the building that caught fire. According to the opposite parties, those buildings were Luxmi Halwai Building, Shalli Bazar and Hari Chand Bishan Swaroop Building, Naya Bazar, Theog.
5. Parties adduced evidence in the form of affidavits and various documents. Complainant moved an application (M.A. No.185/2012) seeking a direction to the opposite parties to produce the proposal forms filled in and submitted for obtaining insurance cover from time to time. Opposite parties filed reply and stated that record of proposal forms, being more than 3 years old, stood destroyed. Again, an application has been moved by the complainant today, in which prayer is made for summoning that official of the opposite parties, (for his cross-examination by the complainant), who has stated that the proposal forms including the form filled in for the purchase of the latest policy stand destroyed.
6. We have heard learned counsel for the parities and gone through the record.
7. We may at the very outset say that there is no need for production of the proposal forms or for summoning any official from the establishment of the opposite parties, for being cross-examined, with regard to the plea of destruction of proposal forms, because what we find from the record, particularly the insurance policy is that there is no reference to the two places of business of the complainant, the stock lying wherein was insured with the opposite parties, as per their allegations in the insurance policy which is Annexure C-1 and the enclosure to it, which is Annexure C-2. As per this policy, location of the stock in trade was Theog, Shimla and Shalli Bazar, Theog. There is no reference to any business premises by the name of Luxmi Halwai Building, Shalli Bazar, Theog or Naya Bazar in the policy.
8. Learned counsel representing the opposite parties submits that in the cover note, Annexure R-2, there is reference to Luxmi Halwai Building, Shalli Bazar, Theog & Hari Chand Bishan Swaroop Building, Naya Bazar. No doubt, in Annexure R-2, there is reference to these two buildings, but there is nothing on the record indicating if the complainant was aware of this writing (cover note), which is written in hand. According to the complainant, he had been supplied only Annexure C-1 & C-2, copy of the policy and its enclosure.
9. It is submitted on behalf of the complainant that Annexure R-2, appears to have been prepared by the opposite parties subsequent to the occurrence of the incident of fire. She submits that had there been any truth in the opposite parties plea that stock kept in the two buildings, as described in Annexure R-2, had been insured, reference to these buildings would have been there in the insurance policy, Annexure C-1 and its enclosure Annexure C-2. We find a good deal of force in the submission. Reason is that it is the policy and not the cover note, which binds the parties. Policy is duly signed and sealed by the insurance company. Similarly, its enclosure, Annexure C-2, is also signed and sealed by the opposite parties. As already noticed, in Annexure C-1 the location of the insured stock in trade is Shalli Bazar, Theog.
10. Plea of the opposite parties that stock kept in Luxmi Halwai Building, Shalli Bazar, had been insured, whereas the fire had taken place in the building of Gurbans Singh & Harbans Singh, Shalli Bazar, is further belied by the report of their own surveyor, namely Er. Rajneesh Kumar Dhiman. Surveyor in his report, Annexure R-5, stated that the fire had broken out in the building of Gurbans Singh & Harbans Singh, in a portion of which complainant had their shop and godown. Surveyor has nowhere stated in his report that the complainant had any shop or godown in Luxmi Halwais Building in Shalli Bazar, though he does record in his report that stock in the shop & godown in Luxmi Halwai Buiding, Shalli Bazar and one building in Naya Bazar, had been insured. This he apparently has mentioned on the basis of claim made by the opposite parties on the basis of aforesaid cover note, Annexure R-2. This preliminary survey report is dated 26.07.2010, though the surveyor, per his report visited the spot on 14.04.2010, or say on the day next following the night on which the fire had broken out. Gap of about three & half months in the inspection of the spot and the preparation of report strengthens the aforesaid submission of learned counsel for the complainant that the cover note has been manufactured after the incident.
11. In view of what we have stated hereinabove, we conclude that the stock in trade of the complainant, which got destroyed in the fire, was covered under the policy, Annexure C-1 and its enclosure Annexure C-2.
12. As regards the extent of damage, sustained by the complainant, even though the complainant says that the loss was to the tune of `25.00 lacs, yet it has not submitted any details of the goods allegedly destroyed in the fire. Evaluator of the opposite parties, namely B. S. Chawala & Company, vide their report Annexure R-6, carried out scrutiny of the record and stocks of the complainant. According to report Annexure R-6, the cost of the affected stock was `21,14,382.27. This amount has been reduced by 20% on account of error in estimation, old & dead stock and quantity & rate adjustment. The evaluator has also worked out the value of the salvage in the form of scrap of brass, aluminum, steel, iron etc. at `4.50 lacs, and reduced the quantum of the loss sustained by the complainant to `12,41,505.82. He has further reduced this amount by `10,000/-, on account of excess clause and assessed the net loss at `12,31,506/-. We have no reason to disagree with this assessment of the evaluator engaged by the opposite parties.
13. As a result of the above stated position, complaint is allowed and the opposite parties are directed to pay `12,31,506/-, to the complainant by way of insurance claim, with interest at the rate of 9% per annum, with effect from the date of the complaint, i.e. 05.04.2011, till the payment of the aforesaid amount of money and also to pay rupees one lac, on account of damages for unjustified repudiation of claim, which can legitimately be presumed to have caused harassment and mental torture to the complainants Karta & Members. Also the opposite parties are directed to pay `10,000/-, on account of litigation expenses.
13. One copy of this order be sent to each of the parties, free of cost, as per Rules.
(Justice Surjit Singh) President (Chander Shekhar Sharma) Member (Prem Chauhan) Member July 17, 2012.
N Mehta) [1] Whether reporters of the local papers may be allowed to see the order?