A. P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION : AT HYDERABAD
FA 451 of 2012 against CC 99/2010 on the file of the District Consumer Forum, Kurnool.
Between :
The Branch Manager,
M/S New India Assurance Company Limited,
D.No.19/19, 20/21,
Municipal Main Road, Adoni Post,
Kurnool District … Appellant/opp.party no.2
And
1. Smt. G. Shanthi, W/o Umapathi,
M/s. Guru Krupa Lamination works
D.No.4/40, Temple street,
Mantralayam ( v & M, - 518345
Kurnool District.
2. State Bank of India,
Represented by its Branch Manager,
Mantralayam Branch,
Mantralayam Post, Kurnool District.
Counsel for the Appellant : M/s. S. N. Padmini
Counsel for the Respondents : M/s. D. Kumara Swamy for R-1
M/s. Vamaraju Srikrishnudu for R-2
FA 452 of 2012 against CC 111/2010 on the file of the District Consumer Forum, Kurnool.
Between :
The Branch Manager,
M/S New India Assurance Company Limited,
D.No.19/19, 20/21,
Municipal Main Road, Adoni Post,
Kurnool District … Appellant/opp.party no.2
And
1. K.Ramana Setty,
S/o Maldakantaiah Setty,
Proprietor of Sri Guru Raghavendra Auto
Xerox and Book Stall,
Opp: M.R.O. Office,
Mantralayam Post, Kurnool District
2. State Bank of India,
Represented by its Branch Manager,
Mantralayam Branch,
Mantralayam Post, Kurnool District.
Counsel for the Appellant : M/s. S. N. Padmini
Counsel for the Respondents : M/s. D. Kumara Swamy for R-1
M/s. Vamaraju Srikrishnudu for R-2
FA 453 of 2012 against CC 112 /2010 on the file of the District Consumer Forum, Kurnool.
Between :
The Branch Manager,
M/S New India Assurance Company Limited,
D.No.19/19, 20/21,
Municipal Main Road, Adoni Post,
Kurnool District … Appellant/opp.party no.2
And
1.T.K. Kumara Swamy, S/o T. Ramalingappa,
H No. 4/60, Nar TATA tower
Mantralayam village and Mandal – 518 345
Kurnool district.
2. State Bank of India,
Represented by its Branch Manager,
Mantralayam Branch,
Mantralayam Post, Kurnool District.
Counsel for the Appellant : M/s. S. N. Padmini
Counsel for the Respondents : M/s. D. Kumara Swamy for R-1
M/s. Vamaraju Srikrishnudu for R-2
FA 454 of 2012 against CC 113/2010 on the file of the District Consumer Forum, Kurnool.
Between :
The Branch Manager,
M/S New India Assurance Company Limited,
D.No.19/19, 20/21,
Municipal Main Road, Adoni Post,
Kurnool District … Appellant/opp.party no.2
And
1. T. K. Gangamma,
W/o T. K. Kumara Swamy,
H. No.4/64, Near TATA Tower
Mantralayam Village and Mandal – 518 345
Kurnool District
2. The Brach Manager
State Bank of India,
Mantralayam Branch,
Mantralayam Post,- 518 345/
Kurnool Distirct.
Counsel for the Appellant : M/s. S. N. Padmini
Counsel for the Respondents : M/s. D. Kumara Swamy for R-1
M/s. Vamaraju Srikrishnudu for R-2
FA 455 of 2012 against CC 114/2010 on the file of the District Consumer Forum, Kurnool.
Between :
The Branch Manager,
M/S New India Assurance Company Limited,
D.No.19/19, 20/21,
Municipal Main Road, Adoni Post,
Kurnool District … Appellant/opp.party no.2
And
1. T. K. Gangamma,
W/o T. K. Kumara Swamy,
Shop no. 11 Near TATA Tower
Mantralayam Village and Mandal – 518 345
Kurnool District
2. The Brach Manager
State Bank of India,
Mantralayam Branch,
Mantralayam Post,- 518 345/
Kurnool Distirct.
Counsel for the Appellant : M/s. S. N. Padmini
Counsel for the Respondents : M/s. D. Kumara Swamy for R-1
M/s. Vamaraju Srikrishnudu for R-2
FA 456 of 2012 against CC 115 /2010 on the file of the District Consumer Forum, Kurnool.
Between :
The Branch Manager,
M/S New India Assurance Company Limited,
D.No.19/19, 20/21,
Municipal Main Road, Adoni Post,
Kurnool District … Appellant/opp.party no.2
And
1.T.K. Kumara Swamy, S/o T. Ramalingappa,
H No. 4/64, Nar TATA tower
Mantralayam village and Mandal – 518 345
Kurnool district.
2. State Bank of India,
Represented by its Branch Manager,
Mantralayam Branch,
Mantralayam Post,
Kurnool District.
Counsel for the Appellant : M/s. S. N. Padmini
Counsel for the Respondents : M/s. D. Kumara Swamy for R-1
M/s. Vamaraju Srikrishnudu for R-2
FA 497 of 2012 against CC 83 /2011 on the file of the District Consumer Forum, Kurnool.
Between :
The Branch Manager,
M/S New India Assurance Company Limited,
D.No.19/19, 20/21,
Municipal Main Road, Adoni Post,
Kurnool District … Appellant/opp.party no.2
And
1.P. Sarvothama Reddy, S/o P. Rami Reddy
Proprietor of Sri Guru Krupa Lodge,
OPP. APSRTC Bus Stand, S. Y. No. 29/A,
Mantralayam post and Mandal – 518 345
Kurnool District.
2. State Bank of India,
Represented by its Branch Manager,
Mantralayam Branch,
Mantralayam Post,
Kurnool District.
Counsel for the Appellant : M/s. S. N. Padmini
Counsel for the Respondents : M/s. D. Kumara Swamy for R-1
M/s. Vamaraju Srikrishnudu for R-2
Coram ;
Sri R. Lakshminarasimha Rao… Hon’ble Member
And
Sri T. Ashok Kumar .. Hon’ble Member
Tuesday, the Twenty Sixth Day of March
Two Thousand Thirteen
Oral Order : ( As per Sri T. Ashok Kumar , Hon’ble Member )
****
1. These appeals i.e. FA.nos.451, 452, 453, 454, 455, 456 and 497 of 2012 are preferred by the 2nd oppose party New India Assurance Co Ltd as against the orders dated 18.01.2012 in CC Nos. 99/2010, 111/2010, 112/2010, 113/2010, 114/2010, 115/2010 and 83/2011 respectively on the file of the District Consumer Forum, Kurnool. Since these appeals are preferred by the 2nd opposite party Assurance company against the very same respondents pertaining to common questions of facts and law are involved, we are of the opinion that all these appeals can be disposed of by a common order.. For convenience sake, parties as arrayed in the complaints are referred to hereunder:
2. The brief facts of the complaint are that the complainant is the proprietor of Sri Guru Raghavendra Auto Xerox and Book stall situated in Mantralayam Village and he obtained loan amount of of Rs.3,00,000/- from 1st Opposite party Bank, and paid insurance premium amount of Rs.1,3670/- to 2nd opposite party Insurance company through Op.1 covering the risk for Rs.3,00,000/- and obtained insurance policy for the year 2009 – 2010. When the floods took place from 30-09-2009 to 3-10-2009 his shop and stock therein was totally damaged and he sustained total loss. He informed about the same to the opposite parties. The insurance surveyor appointed by opposite party No.2 inspected his shop and submitted the report to opposite party No.2. In spite of several demands opposite party No.2 did not settle the claim. Finally in the month of March the complainant received a letter from opposite party No.2 stating that the claim was closed on the ground that the policy covers the risk from 8.33 hours on 02-10-2009 and the floods started from 30-09-2009. By evening on 01-10-2009 the Mantralayam Town was inundated and that Loss of the stock is prior to risk which amounts to deficiency of service on the part of opposite parties. Hence the complaint to direct the opposite parties to pay the insured amount of Rs. 3 lakhs with interest, Rs.10,000/- for mental agony and costs.
3. The 1st opposite party filed counter opposing the claim of the complainant and denying the allegations made in the complaint and the brief facts of the counter are as under :
The complainant executed agreement of loan cum hypothecation for Rs.2,00,000/- and he was granted a loan amount of Rs.2 lakhs. On 01-10-2009 opposite party No.1 has debited a sum of Rs.1,511/- from the personal account of the complainant towards insurance premium and on the very same day the draft was handed over to the clerk of opposite party No.2 at about 8.00 P.M. through its business facilitator by name U.Veeresh. The clerk of opposite party No.2 handed over the said Demand Draft in the office of opposite party No.2 on 02-10-2009 at 8.30 A.M. though it was declared as public holiday. Opposite party No.2 has accepted all the premium receipts. Opposite party No.2 has encashed the demand draft on 06-10-2009 without any objection. The floods hit at Mantralayam and surrounding Village on te early hours of 02-10-2009 only but not in the evening of 01-10-2009. The contention of opposite party No.2 that the policy covers the risk from 8.33 hours on 02-10-2009 whereas the floods started from 30-09-2009 and by evening of 01-10-2009 the Mantralayam Town was immersed in floods is false. Opposite party No.1 forwarded the policy amount of the complainant to opposite party No.2 on 01-10-2009 before the floods and it is the duty of the OP 2 and hence there is no deficiency in service on their part and thus prayed to dismiss the complaint against them.
04. Opposite party No.2 filed counter admitting that the shop of the complainant was insured by it for an amount of Rs. 3 lakhs for the period commencing from 02-10-2009 at 8.33 A.M. to 01-10-2010. It has received DD for an amount of rs.60,523/- on 01.10.2009 from OP.1 at 8.33 AM on 02.10.20009. The previous policy of the complainant was expired on 3-09-2009. Due to heavy rains and floods, Mantralayam was inundated from 30-09-2009 to 02-10-2009. It appointed an independent surveyor who assessed the net loss at Rs.1,70,000/-. But Opposite party No.2 is not liable to pay the said amount as the complainant sustained loss from 30-09-2009 onwards where as the policy came into force from 8.33 A.M. on 02-10-2009. The previous policy expired on 03-09-2009 Inspite of reminders opposite party No.1 did not take action for 28 days. The risk will commence from the date and time mentioned in the policy issued and hence the loss occurred prior to the commencement of the policy and that there is no deficiency in service on their part and hence they are not liable to pay the insured amount and thus prayed to dismiss the complaint against them.
05. Both sides filed evidence affidavit reiterating their respective pleadings and Ex. A-1 to A4 were marked on behalf of the complainant and Ex. B -1 to B-22 were marked for the OP.
06. Having heard both sides and considering the evidence on record, the District Forum allowed the complaint in part directing the 2nd opposite party to pay an amount of rs.1,70,000/- to the complainant together with costs of Rs.500/- within one month from the date of the order while dismissing the complaint against OP.1.
7. Feeling aggrieved with the said order the 2nd opposite party preferred this appeal on several grounds and mainly contended that the District Forum erred in considering that the commencement of the policy was from OO hours on 02.10.2009 though the time is mentioned as 08.33 hours on 02.10.2009 and that floods inundated from 30.09.2009 till midnight of 01.10.2009 and that the complainant in the claim form under Ex. B-11 dated 09.10.2009 stated that the shop got damaged due to floods from night “0”clock on 30.09.2009, 01.10.2009 and 02.10.2009 i.e. much prior to the commencement of the policy and that the OP. 1 bank did not renew the insurance policy and that the District Forum should have considered the surveyor’s report wherein it is specifically stated that the property got damaged prior to the commencement of the policy i.e., from the mid night of 01.102009 itself and that there is no documentary evidence to show that upto 8.30 AM on 02.10.2009 that the said property is safe and that the Tahsildar, Mantralayam issued Ex B7 certificate on 1706.2010 after a gap of 8 ½ months and that there is no explanation either from the complainant or the Bank about non-renewal of the policy after completion of period of 28 days until the damage occurred due to floods and that Ex B-18 paper clipping of Eenadu dated 02.10.2009 shows inundation in the mid night of 01.10.2009 itself and that there is no deficiency in service on their part and thus prayed to allow the appeal and set aside the impugned order.
8. Heard both sides with reference to their respective contentions in detail.
9. Now the point for consideration is whether the order of the District Forum is sustainable?
10. There is no dispute that the complainant is the proprietor of Sri Guru Raghavendra Auto Xerox and Book stall situated in Mantralayam Village and he obtained loan amount of Rs.3,00,000/- from 1st Opposite party Bank and the OP.2 insurance company issued Ex. A2 insurance policy in favour of the complainant for the coverage of the stock in the shop. As seen from the said document commencement of the policy was from 08.33 AM on 02.10.2009 to 01.20.2010. The complainant pleaded in the complaint and evidence affidavit that there were floods from 30.09.2009 to 03.10.2009 and that on account of the said floods the stock in his shop was completely damaged. Ex. A4 copy of Mantralayam forecast on 02.09.2010 discloses that on the said date the water level at Mantralayam 218.770 Meters and at MRO office at about 10 feet water flown on the floor. Similar document ExB 7 certificate issued by Tahsildar, Mantralayam was marked by the OP wherein it is mentioned that Mantralayam village was badly effected with flood water of Tungabhadra river on 02.10.2009 at 01.00 AM and that water subsided on -3.10.2009 at 5.00 PM and thus we are satisfied to hold that Mantralayam and surrounding places were submerged in the flood water on 02.10.2009. It appears that after giving information about the damage caused to the stock of the shop of the complainant the OP 2 appointed a survey and he submitted Ex. B12 stating that stock in the shop of the complainant was damaged due to flood water of the Tungabhadra river and he assessed the net loss at Rs.1,70,000/-. When complainant himself admitted that there were floods from 30.09.2009 to 03.10.2009 the observation of the District Forum that no satisfactory evidence is placed by OP 2 that stock in the shop of the complainant was damaged prior to 02.10.2009 could not be appreciated. It is much more so when the complainant put forth claim under Ex. B11 stating that the shop was damaged due to floods from night 0’clock on 30.09.2009, 01.10.2009 and 02.10.2009. There is acceptable force in the contention of the OP 2 Insurance company that policy will come into force only after payment of premium by the insured directly. In such circumstances, it was the duty of the complainant to prove that the stock was damaged after 08.33 AM on Sunday because admittedly Ex. A2 insurance policy discloses that the policy was commenced from 08.33 AM on 02.10.2009. In view of the specific mention in the policy the observation of the District Forum that the policy deemed to have commenced from o0 hours of 02.10.2009 also could not be appreciated. When policy was issued specifically mentioning the time of commencement of the policy and the contention of the complainant that it was issued w.e.f. 00 hours on 02.10.2009 he should have got rectified the same by approaching the opposite parties but he did not do so for the reasons best known to him. The subsequent conduct in maintaining silence till he put forth the claim to the opposite parties improbablises his contention aforesaid. Merely because surveyor assessed the loss at Rs.1,70,000/- it is in no way helpful for the complainant in claiming the said amount or Rs. 3 lakhs as claimed for by him because the risk under the policy was not covered during the relevant time. In the circumstances of the case it appears that OP. 1 bank to cover up its lacunae drawn the DD towards premium on 1.10.2009 at late hours after 28 days from the expiry of previous policy and sent the same on a public holiday at 08.33 AM . Even assuming that the DD was given to the clerk of OP 2 on 1.10.2009 at 8.00 PM who resides at Emmaganur is also after closure of the office of the OP. 2 and therefore it cannot be said that the policy was deemed to be issued on 01.10.2009 or O hours of 02.10.2009. It is much more so when first opposite party failed to produce acknowledgement to show that the DD was handed over to the clerk of OP.2 on 01.10.2009 at 8.00 PM. In such circumstances no importance need to be given to the affidavit of the said clerk of OP. 2. Ex B18 paper clipping of Eenadu dt. 2.10.2009 reveals that total Mantralayam village and its surroundings were inundated in the mid night of 01.10.2009 itself and it supports the case of the second opposite party to hold that the policy was not in force during relevant time of the alleged damage to the stock. The survey report aforesaid also discloses that the property was damaged prior to the commencement of the policy i.e. in the mid night of 01.10.2009 itself. In view of the above discussion, we are satisfied to hold that the damage to the stock of the complainant occurred prior to the commencement of the policy and that during the said time the policy was not in force and as such the OP. 2 is not liable for any payment and as such the order of the District Forum passed against the second opposite party is liable to be set aside by allowing the appeal.
11.FA No. 452/2012 in CC 111/2010 :
Policy No. 610702/11/09/11/00000246 commencing from 08.33 AM on 02.10.2009 to 01.10.2010 for Rs.10 lakhs and the complainant did not place any evidence showing actual loss sustained by her but the District Forum granted Rs.one lakh towards loss and costs of Rs. 500/- directing the Insurance company.
12. FA No. 453/2012 in CC 112/2010 :
Policy No. 610702/11/09/11/00000247 commencing from 08.33 AM on 02.10.2009 to 01.10.2010 for Rs.10 lakhs and the complainant did not place any evidence showing actual loss sustained by her but the District Forum granted Rs.one lakh towards loss and costs of Rs. 500/- directing the Insurance company.
13. FA No. 454/2012 in CC 113/2010 :
Policy No. 610702/11/09/11/00000243 commencing from 08.33 AM on 02.10.2009 to 01.10.2010 for Rs.10 lakhs and the surveyor assessed the loss at Rs.12,070/- and that the District Forum directed the insurance company to pay Rs.12,070./- and costs of Rs. 500/-.
14. FA No. 455/2012 in CC 114/2010 :
Policy No. 610702/48/09/34/00000130 commencing from 08.33 AM on 02.10.2009 to 01.10.2010 for Rs.5 lakhs and the surveyor assessed the loss at Rs.1,19,716/- and that the District Forum directed the insurance company to pay Rs.1,19,716/- and costs of Rs. 500/-.
15. FA No. 456/2012 in CC 115/2010
Policy No. 610702/11/09/11/00000245 commencing from 08.33 AM on 02.10.2009 to 01.10.2010 for Rs.10 lakhs and the surveyor assessed the loss at Rs.19,743/- and that the District Forum directed the insurance company to pay Rs.19,743/- and costs of Rs. 500/-.
16. FA No. 497/2012 in CC 83/2011
Policy No. 610702/11/09/11/00000244 commencing from 08.33 AM on 02.10.2009 to 01.10.2010 for Rs.7,25,000/- lakhs and the complainant did not place any documentary evidence showing any loss and that the District Forum directed the OP.1 insurance company, which was set exparte, to pay Rs.69,000/- and costs of Rs. 500/-.
17. Since the facts and defence are similar/ same in all the above matters, the discussion made in FA 451.2012 is equally applicable to these cases also and consequently the orders passed in the concerned Consumer Complaints against the Insurance company are also liable to be set aside.
18. In the result, the appeal in FA 451/2012 is allowed and the order of the District Forum in directing the second opposite party Insurance company to pay Rs.1,70,000/- together with costs of Rs.500/- to the complainant within one month from the date of the order is set aside and consequently the complaint stands dismissed. Parties shall bear their own costs of the appeal.
19. In the result, the appeal in FA 452/2012 is allowed and the order of the District Forum in directing the 1st opposite party Insurance company to pay Rs.1,00,000/- together with costs of Rs.500/- to the complainant within one month from the date of the order is set aside and consequently the complaint stands dismissed. Parties shall bear their own costs of the appeal.
20. In the result, the appeal in FA 453/2012 is allowed and the order of the District Forum in directing the 1st opposite party Insurance company to pay Rs.1,00,000/- together with costs of Rs.500/- to the complainant within one month from the date of the order is set aside and consequently the complaint stands dismissed. Parties shall bear their own costs of the appeal.
21. in the result, the appeal in FA 454/2012 is allowed and the order of the District Forum in directing the 1st opposite party Insurance company to pay Rs.12,070/- together with costs of Rs.500/- to the complainant within one month from the date of the order is set aside and consequently the complaint stands dismissed. Parties shall bear their own costs of the appeal.
22.In the result, the appeal in FA 455/2012 is allowed and the order of the District Forum in directing the opposite party Insurance company to pay Rs.1,19,716/- together with costs of Rs.500/- to the complainant within one month from the date of the order is set aside and consequently the complaint stands dismissed. Parties shall bear their own costs of the appeal.
23.In the result, the appeal in FA 456/2012 is allowed and the order of the District Forum in directing the 1st opposite party Insurance company to pay Rs.19,743/- together with costs of Rs.500/- to the complainant within one month from the date of the order is set aside and consequently the complaint stands dismissed. Parties shall bear their own costs of the appeal.
24.In the result, the appeal in FA 497/2012 is allowed and the order of the District Forum in directing the 1st opposite party Insurance company to pay Rs.69,000/- together with costs of Rs.500/- to the complainant within one month from the date of the order is set aside and consequently the complaint stands dismissed. Parties shall bear their own costs of the appeal.
MEMBER MEMBER
DATED 26.03.2013
