DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, SUBARNAPUR
C.C. No.07 of 2021
Dinabandhu Meher S/o Premananda Meher,aged about 40 years, occupation-Business. Prop. M/S Manapand Fancy Store,Binka ,At/PO/P.S. Binka, District- Subarnapur.
………….. Complainant
Vrs.
1. The Branch Manager, New India Assurance Co. Ltd. Bargarh Branch, At- Kapil Tower, N.H.6(Near Gurudwar) Po/P.S./District- Bargarh.
2. The Branch Manager, Utakal Grameen Bank, Binka Branch. At/PO/P.S. Binka, District- Subarnapur. ………….. Opp. Parties
Advocate for the Complainant …………. Sri R.S. Meher
Advocate for the O.P. No.1 …………. Sri S.K.Sandha
Advocate for the O.P. No.2 …………. Sri P.N. Danta
Present
1. Sri U.N.Purohit, President
2. Sri H.Padhan Member
Date of Filing Dt.23.03.2022
Date of Hearing Dt.05.12.2022
Date of Order Dt.15.12.2022
J U D G E M E N T
By Sri U.N.Purohit, P.
The complainant filed the complaint U/s 35 of Consumer Protection Act claiming the relief as prayed for.
2. The case of complainant is that the complainant is the owner and proprietor of M/S “Manpasand Fancy store”, Binka wherein he deals fancy items by taking loan from O.P.No.2. The fancy store is situated at Binka daily market having its premises ground floor and up-stair of the said ground floor. The said fancy store building is also procured by rent. The entire business of the complaint has also been registered under GST Act vide GSTIN No. 21AZRPM3255BIZI, paying tax by filing return to the Commercial Tax Department of Government of Odisha. The complainant has also insured his stock; with the O.P. No.1 at the time of sanction of loan by O.P. No.2 with the advice of O.P. No.2 and O.P. No.1 is the Insurance
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Company insured stock in trade of the complainant. The complainant has also submitted the stock statement to the O.P. No.2 each and every month as the complainant hypothecated the stock in trade against the loan. On 14/15 of May, 2020 the shop of the complainant has been broken the lock and key and commit burglary by some unknown person the stock available with the complainant in ground floor and up-stair of the said fancy store. As per the stock statement of the complainant in the said fateful night it was Rs.1746062.00. When the complainant came in the next morning to open the shop found the commission of theft and immediately lodged FIR in the police Station, Binka. The Binka police registered the said FIR as PS case No.125 of 2020 on 15.5.2020. The said FIR registered as GR case No.125 of 2020 in the court of JMFC, Binka. The police investigated the matter, submitted charge sheet in the said case. The complainant has also intimated the case of theft to OP No.1 and 2. O.P.No.1 deputed one loss assessor to assess the stock stolen by unknown person and investigated on behalf of O.P. No.1.Theloss assessor assessed the stock of fancy store and valued the present stock Rs.10,95,679/- and came to know that the value of missing item of Rs.6,48,383/- and has given report to OP No.1 accordingly for payment of insurance value of Rs.2,90,000/- to the complainant by putting the method of their own calculation. The O.P. No.1 assured to release the amount but did not release saying that theft has been committed in the godown vide letter No.08 dt.22.20.2020. Hence, cause of action arose for this complaint. The complainant has also made allegation that the term and condition of the policy was not explained and discussed as to not covering of the godown. As per policy no such shop or godown (premises) has been insured, rather the stock in trade it means the entire stock of the complainant has been insured in the policy.
3. The O.P. No.2 has also clarified the matter intimating that entire stock include, stock available with the ground floor and godown (up-stair) vide letter No.UGB/Misc./37 dt.28.4.2021. Still then theO.P.No.1 did not pay the insured money. The complainant also served pleader notice to O.P. No.1 and 2 but they did
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not reply. The act of O.P. No.1 and O.P.No.2 is gross negligence in service. Due to such reason, the complainant suffered mental agony, financial loss, harassment and mental torture for which the O.Ps are liable to compensate and liable to pay litigation expenses with interest.
4. Case of OP No.1 is that, the O.P.No.1 admitted payment of premium of Rs.5664/- for the insurance policy of stock in trade of” M/S Manpasand Fancy Store”, Binka vide policy No.55090/48/19/0600000255 which is valid from 15.10.2019 to 14.10.2020. The OP No.1 denied that the insurance is not include godown i.e. up-stair of fancy store. The stock statement submitted to bank is false and it is only for maintaining loan account. The complainant has also not shown the GST return to O.P. No.1 and the so-called stock is a mere paper work. There is no cause of action for the complaint and there is no deficiency of service on part of O.P. No.1. So, the complainant is not entitled to get any relief. It is not the duty of O.P. No.1 to supply term and condition of the insurance policy, the complainant has to know the term and condition himself while signing the document.
5. Case of O.P No.2 is that, he admitted the claim of complainant that the entire stock possessed by the complainant and obtained loan has been insured in the policy and the theft committed from the godown i.e. up-stair include entire stock. Accordingly, the O.P No.2 has also intimated and clarified to the O.P No.1 by sending letter, as the O.P No.1 disputed the claim of complainant.
6. Taking note of the entire case of the parties, following questions are arisen to decide the matter.
i) Whether the complainant is a consumer and this complaint is maintainable in this Commission ?
ii) Whether there is any cause of action for the complaint ?
iii) Whether the stock in trade insured by the O.P No.1 includes the stock in hand by the complainant in shop and up-stair (godown)?
iv) Whether any negligence in service by the O.P.No.1 repudiating insurance claim?
v) Whether the complainant is entitled to the relief claimed ?
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7. Question No.1:- To answer the question No.1 the complainant has a fancy store consists of ground floor and up-stair which is on rented building. The complainant dealing with fancy items by obtaining loan against the whole stock and insured stock in trade by paying insurance premium of Rs.5664/- vide policy No.55090/48/19/0600000255. It is admitted by the O.P No.1 and also O.P. No.2 the payment has been made through O.P No.2 while providing loan to the complainant. The facts have also been proved by affidavit evidence with documents. Hence, the complainant is a consumer as per the provision of C.P. Act, 2019 as the complainant paid for consideration to avail service provided by O.P. No.1 by way of insurance premium.
So far the second part of the question is concerned, the complainant is resident of Sonepur District and the transaction has been made within the jurisdiction of Sonepur District as well as the consideration paid by the complainant is less than Fifty Lakhs. Hence, the complaint is maintainable before this Commission. Question No.1 is, thus answered accordingly.
8. Question No.2:- To answer the question No.2 the complainant has insured the entire stock i.e. stock in trade and admittedly the said stock was committed theft. The complainant claimed the sum assured under the policy and submitted required document to the O.P. No.1 and taken all such measures as required in the policy. The OP No.1 has deputed the loss assessor to assess the loss for compensate the amount as per policy finally without any reason on a flimsy ground repudiate the claim of complainant vide letter No.08 dt.22.10.2020. As such, the cause of action arose on 22.10.2020 for this complaint. The claims of cause of action by the complainant supported by affidavit evidence and the documents issued by OP No.1.Hence, it is answered accordingly.
9. Both Question No.3 and 4 are taken up together for the sake of convenience. The insurance policy agreement has not been filed by either party the complainant has filed policy certificate bearing insurance policy No.55090/48/19/0600000255
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which disclose that the complainant has paid premium Rs.5664/- and the policy is valid from 15.10.2019 12.00.01 AM to 14.10.2020 11.59.59 PM. The description of cover shows section 1A fire and allied perils-building of class A construction only not opted. Section 1B fire and allied perils contains excluding money and valuables Rs.12 Lakhs. Premium Rs.2280 excess 5% of claim amount subject to a minimum of Rs.10 thousand. Section 2 - Burglary and house breaking Rs.12 lakhs Premium Rs.2280. Section 3A. Section 3A (money in transit) Rs.50, 000/- premium Rs.215/-. Section 3B (money in till or counter during business hour Rs.12, 000/-. Premium Rs.215/-. Section 3 -C money in locked safe in office outside business hour.
The loss assessor report filed by OP No. 1 shows that the assessor visited the spot on 16.5.2020, verified the documents annexure 1 to 8 as per report and he submitted the report in Para-g at page No.3 of the report,” THE POLICY: On verification of the policy the following information were obtained the insured is covered under the insurer’s “shop-keepers” insurance policy. S.I. against stock in trade of shop i.e. “Manpasand Fancy”, Prop. Sri Dinabandhu Meher is Rs.12, 00000/-and cash in locked safe in office outside business hour is Rs.24, 000/-(Scheduled attached duly signed by insured with detail in stock, cash insured).
The OP No 1 in version and argued that the shop of complainant has been insured and theft has been caused in godown which not covered under the policy. The O.P. No.1 not filed policy agreement and not proved that the complainant is aware about the term and condition of the policy and they have explained the same. The complainant in his complaint petition and in evidence by affidavit proved that the entire stock of the complainant has been insured by the O.P. No.1 which has been explained while the complainant signed on the document. The O.P. No.1 and his agent at the time of policy agreement suppressed the term and condition and not explained to the complaint. In this regard, the advocate for complainant relied
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on a decision of Hon’ble Supreme Court in Civil Appeal No.3912 of 2019( Bharat Watch Company through its partner Vrs. National Insurance Company Ltd. Through its Regional Manager) by Justice Dr. D.Y.Chandrachud where Hon’ble Court held that :-
“ if the term and condition were not made known to the insured, as is the concurrent finding there was no occasion for the NCDRC to render a decision on the effect of such exclusion.
In the circumstances, the NCDRC was in error in reversing the decision of the District form and the SCDRC which were grounded on a pure finding of fact that the term of exclusion were not made to the insured”. In the judgment Hon’ble Court confirmed the order of the District Commission and State Commission setting aside the order of the NCDRC and make liable to the Insurance Company for exclusion the term and condition to the complainant.
From the above documents filed by complainant and O.Ps it is found that stock in trade has been insured in this policy and the concise law dictionary by Justice Y.V. Chandrachud at page 1095 defined stock in trade means all such chattels as are acquired for the purpose of being sold, or let to hire in a person’s trade(section52 ill.(b) Indian Contract Act,1972 and in Chambers dictionary stock in trade means all the goods a shop keeper has for sale, standard equipment or device necessary for a particular trade or profession. So, from the dictionary meaning of the word” stock in trade” we convinced that the complainant has insured his entire stock available with him as per stock book available with him which also confirm by stock statement submitted by the complainant to the OP N0.2 each and every month and the same has also been submitted to the loss assessor as well as the police officer immediately after commission of burglary. As such, there is no chance of manufacturing the above documents by the complainant. Accordingly, this question is answered that the entire stock of the complainant has been insured
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which were stored in the shop as well as in the godown i.e. up-stair of the fancy store. The insurance policy does not disclose any premises either shop or godown but disclosed the stock in trade has been insured. So, we find the complainant has insured entire stock supported by OP No 2 in clarification letter and the opposite party No.1 deficiency in service by repudiating the insurance claim of the complainant.
10. Question No.5:- The complainant in his complaint petition seeking relief of amounting to R.6, 48,383/- as insurance claim, compensation of R.2, 00,000/- for mental agony, financial loss and loss of business with interest as well as cost of litigation.
Ongoing through the complaint petition, version of opposite parties, documents submitted by both the parties, evidence in affidavit and the written submission as well as the oral arguments by both counsels, we came to conclusion as per above discussion that the opposite party No.1 is in deficient in service and the opposite Party No.2 act aptly after receiving the information from the complainant intimated as well as clarified to OP No 1. As such, the O.P. No.2 is not liable and the O.P. No.1 is liable for the deficiency of service as per section 39 of Consumer Protection Act. Hence, we direct the O.P.No.1 to pay Rs.2,92,339.47 as per the report submitted by loss assessor. We accept and confirm the report of loss assessor who is the best person and expert to assess the loss.
The O.P. No.1 is directed to pay compensation of Rs.1,50,000/- as the harm caused to the complainant for the injury i.e. mental, financial and loss of reputation in re-payment of loan in time. The O.P.No.1 is further directed to pay Rs.10,000/- as cost of litigation. The O.P. No.1 shall pay the entire amount within two months from the date of order failing which 10% interest will be charged till realization of the amount. Complaint is partly allowed.
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The OP No.2 being the financer though he has no liability and it is the duty of the complainant to repay the loan and due to aforesaid causes(force majeure) any default in payment of installment by the complainant. The OP No 2 takes action not to affect the CIBIL of the complainant on such default, help the complainant repayment in easy installment of loan.
Applications pending, if any, stand disposed of in terms of the aforesaid judgment. A copy of this judgment be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986/2019. The judgment be uploaded forthwith on the website of the commission for perusal of the parties.
File be consigned to record room alongwith a copy of this judgment.
Dated the 15th day of December 2022
Typed to my dictation
I agree. and corrected by me.
Sri H.Padhan Sri U.N.Purohit
Member President
Dt.15.12.2022 Dt.15.12.2022
