State Consumer Disputes Redressal Commission
United India Iss.Co. vs M/S Murari Brothers on 6 May, 2015
STATE CONSUMER DISPUTES REDRESSAL COMMISSION UTTARAKHAND
DEHRADUN
FIRST APPEAL NO. 101 / 2009
United India Insurance Company Limited
Sona Complex, Roorkee Road, Chhutmalpur, District Saharanpur
through its Assistant Manager and Authorised Signatory
United India Insurance Company Limited, Regional Office
Ratan Palace, Rajendra Nagar
Dehradun
......Appellant / Opposite Party No. 2
Versus
1. M/s Murari Brothers
471/1, Paschim Ambar Talab
Roorkee, District Haridwar
through its Proprietor Sh. Pradeep Kumar
......Respondent No. 1 / Complainant
2. Canara Bank
26, Anaj Mandi, Roorkee
District Haridwar through its Manager
......Respondent No. 2 / Opposite Party No. 1
Sh. J.K. Jain, Learned Counsel for the Appellant
Sh. Vivek Painuli, Learned Counsel for Respondent No. 1
Sh. Shanker Saran Agarwal, Learned Counsel for Respondent No. 2
Coram: Hon'ble Mr. Justice B.C. Kandpal, President
Mr. D.K. Tyagi, H.J.S., Member
Dated: 06/05/2015
ORDER
(Per: Justice B.C. Kandpal, President):
This is insurer's appeal under Section 15 of the Consumer Protection Act, 1986 against the order dated 16.04.2009 passed by the District Forum, Haridwar in consumer complaint No. 193 of 2008. By the order impugned, the District Forum has allowed the consumer complaint and directed the appellant - opposite party No. 2 to pay compensation of Rs. 5,00,000/- to the respondent No. 1 - complainant together with interest @9% p.a. pendente lite and future and 2 Rs. 3,000/- towards litigation expenses, within a period of one month from the date of the order. The consumer complaint was, however, dismissed against the respondent No. 2 - opposite party No. 1 (Canara Bank). The learned President of the District Forum per his dissenting order of the even date has dismissed the consumer complaint.
2. Briefly stated, the facts of the case as mentioned in the consumer complaint, are that the complainant is running the business under the name and style of M/s Murari Brothers, of which Sh. Pradeep Kumar is the proprietor. The complainant had taken cash credit limit from the opposite party No. 1 - Canara Bank, against which the complainant had hypothecated the stock of Goldy masale etc. with the bank. It was alleged that the goods kept in the godown were insured with the opposite party No. 2 - United India Insurance Company Limited under Shopkeepers Insurance Policy for the period from 06.05.2006 to 05.05.2007. It was alleged that the stock was covered against any natural calamity. It was further alleged that in the night intervening 25/26.07.2006, on account of heavy rains, water entered in the godown of the complainant, on account whereof, the entire stock kept in the godown was damaged. The intimation of the incident was given to the bank on 26.07.2006. It was also alleged that in the said incident, the complainant suffered a loss of Rs. 6,58,747/-. The insurance company appointed surveyor, who visited the site. The insurance company vide letters dated 10.11.2006 and 13.11.2006, informed the complainant that under the insurance policy in question, the goods lying at Near Kundan Sweets, Roorkee were covered, while the loss has occurred at Purani Tehsil, Roorkee, which location was not covered under the policy and the claim of the complainant was repudiated. Thereafter, alleging deficiency in service on the part of the opposite parties, the complainant filed a consumer complaint before the District Forum, Haridwar.
33. The insurance company filed written statement before the District Forum and pleaded that under the insurance policy in question, the insurance company has insured the stock of Goldy masale at M/s Murari Brothers, Near Kundan Sweets, Roorkee, District Haridwar; that on receipt of the intimation of the loss, surveyor Sh. Anil K. Agarwal was appointed, who found that the loss did not take place at the insured premises and the loss took place at the godown situated at Purani Tehsil, Rampur Road, Roorkee near Fish Market; that there is manipulation on the part of the complainant; that the claim was rightly repudiated and that there is no deficiency in service on their part.
4. The bank also filed written statement before the District Forum and pleaded that no assurance was given to the complainant that the stock at the shifted place is also covered under the insurance policy in question; that the complainant should have informed the insurance company about shifting of the godown; that in the stock statement submitted by the complainant for the period from July, 2006 to September, 2006, the address was mentioned as M/s Murari Brothers, Near Kundan Sweets, Roorkee; that it was the liability of the complainant to inform the insurance company about change of place and that there is no deficiency in service on their part.
5. The District Forum, on an appreciation of the material on record, allowed the consumer complaint vide impugned order dated 16.04.2009 in the above terms. Aggrieved by the said order, the insurance company has filed the present appeal.
6. We have heard the learned counsel for the parties and have also perused the record.
47. There is no dispute with regard to the fact that under the insurance policy in question, the stock of Goldy masale kept at M/s Murari Brothers, Near Kundan Sweets, Roorkee, District Haridwar was insured. The insurance company has repudiated the claim of the complainant per letter dated 13.11.2006 (Paper No. 28) on the ground that the stock of Goldy masale lying at Near Kundan Sweets, Roorkee was covered, whereas the loss occurred at Purani Tehsil, which location was not covered under the policy. There is also no dispute with regard to the fact that the loss occurred at the godown situated at Purani Tehsil, Rampur Road, Roorkee near Fish Market, which fact has specifically been mentioned by the surveyor Sh. Anil K. Agarwal in his report dated 15.08.2006 (Paper Nos. 18 to 24).
8. In para 11 of the consumer complaint, the complainant has stated that vide letters dated 19.10.2005 and 21.01.2006, he has informed the bank (opposite party No. 1 before the District Forum) that he has shifted the godown of his stock to Purani Tehsil, Roorkee, with a request to intimate the same to the insurance company (opposite party No. 2 before the District Forum) and he was assured by the bank that the insurance company has been intimated about the change of godown of the stock. The bank has denied the said averment made by the complainant and has stated that in the stock statement submitted by the complainant for the period from July, 2006 to September, 2006, the address of the insured premises was mentioned as M/s Murari Brothers, Near Kundan Sweets, Roorkee. As per the own allegations of the complainant, he has not intimated the insurance company about the change of godown of the stock of Goldy masale.
59. It is also important to mention here that under the insurance policy, the stock of Goldy masale was insured, whereas from the photographs lying in the original record of the District Forum summoned by us and which were taken by the surveyor Sh. Anil K. Agarwal at the time of his visit and filed by the insurance company along with the report of the surveyor, it is quite evident that there was loss of stock of biscuits, which was not covered under the policy. From the perusal of the said photographs, it is also evident that the stock of Goldy masale was not damaged in the said incident. Even otherwise, since the complainant has changed the place of his godown without any intimation to the insurance company and the place where the loss took place, was not covered under the insurance policy, the insurance company can not be held liable to pay any compensation to the complainant and the view to the contrary taken by the District Forum can not be said to be justified.
10. The District Forum has not properly considered the facts and circumstances of the case and has erred in allowing the consumer complaint per impugned order, which can not legally be sustained and is liable to be set aside and the consumer complaint is liable to be dismissed. Consequently, the appeal is fit to be allowed.
11. For the reasons aforesaid, appeal is allowed. Order impugned dated 16.04.2009 passed by the District Forum is set aside and consumer complaint No. 193 of 2008 is dismissed. No order as to costs.
(D.K. TYAGI) (JUSTICE B.C. KANDPAL) K