BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, ADDITIONAL BENCH, MANGALORE

Dated this the 17^th December 2016

PRESENT

SRI. VISHWESHWARA BHAT D         : HON’BLE PRESIDENT

SRI. T.C. RAJASHEKAR                      : HON’BLE MEMBER

ORDER IN

C.C.No.290/2013

(Admitted on 8.11.2013)

1. Mr. P.K. Andu,

    S/o Late Bappan Kutti,

    Of age 62 years,

    R/a Jeppu Udupadi,

    Taj Supari Mission Street Bunder,

    Mangalore.

2. Mr. P K Hameed,

    S/o late Bappan Kutti,

    Jeppu Udupadi,

    M/s. Taj Supari, Mission Street,

    Bunder, Mangalore.

3. Mr. Jaffar,

   S/o Mr. P.K. Anudu,

   Doddamane, Paivalike Village,

   Kasaragod Taluk.

   (Duly represented by his father i.e.

    Complainant No.1 Mr. P.K. Andu in virtue

    Of Power of Attorney dated 2.5.2009

    Executed by Complainant No.3 by

    Legally constituting his father

    Complainant No.1 as his power of

    Attorney.

                                                                                     ….. COMPLAINANTS

(Advocate for the Complainant: Sri. DS)

VERSUS

1. The Chief Manager,

    Syndicate Bank,

     Mission Street,

     Mangalore.

2. Branch Manager,

    United India Insurance Company,

    Limited,

    Banacassurance Office, ‘Krishna Prasad’,

    Opp: Popular Building,

    K.S. Rao Road, Mangalore.

                                                                               .....OPPOSITE PARTIES

(Opposite Part No.1: Ex parte)

(Advocate for the Opposite Part No.2: Sri. AKK)

ORDER DELIVERED BY HON’BLE PRESIDENT

SRI. VISHWESHWARA BHAT D:

I.       1. The above complaint filed under Section 12 of the Consumer Protection Act alleging deficiency in service against claiming certain reliefs. 

The brief facts of the case are as under:

      The complainants contend that complainant No.1 is father of complainant No. 3 and is brother of complainant No.2.  Complainant No.3 executed power of attorney to complainant No.1 and executed equitable mortgage in favour of opposite party No.1 in respect of schedule property on which loan was sanctioned to complainant No.1 and No.2 in respect of the schedule immovable property.  Opposite party No.1 secured standard fire and special perils policy on the loan account with opposite party No.1 is S.No.125/1049 in respect of the schedule property.  The sum assured is Rs.2,43,000/ under the policy.  There was a fire accident in the schedule property on 2.4.2013 at about 3.00 AM and an FIR was registered Mahazar was also done.  Opposite party No.1 has had not supplied the certified copy of the record to complainant.  The valuation of the schedule property as per valuation report dated 2.12.1997 is Rs. 2,80,000/ in which complainant No.1 and No.2 is running general store and post office is situated.  In the fire accident due to electrical shock circuit the complainant lost goods of worth Rs.12,00,000/.  On 8.4.2013 the complainant No.1 laid claim for loss of Rs.11,00,000/ after deducting the salvage of Rs.1,00,000./.  The records particulars were furnished to opposite party No.1 by complainant No.1 and No.2.  However the claim was repudiated by opposite party No.2 stating that the policy issued was in respect of immovable property for residential  building in survey No.513/28, Paivalike Village, Kasaragod Taluk and whereas the claim laid is in respect of damage to commercial building. 

2.     The complainant contends that they have not made any default in repayment of the loan amount.  The complainant No.1 and No.2 had sold the immovable property to complainant No.3 for Rs.50,000/ but for ruining the general store and housed in their property. There is deficiency in service on the part of opposite party No.1 as seen from the documents.  As such seeks direction to opposite party No.1 against to pay Rs.11,00,000 against fire accident had occurred on 2.04.2013 with interest at 12% p.a solatium of Rs.1,00,000/  litigation cost of 10,000/ 

II.     Opposite party No.2 in the written version contends that the policy mentioned in the complaint was issued for fire insurance policy in respect of burning situated at S.No.512/2B1 in Paivalike Village of Kasaragod Taluk and not for commercial building situated in S.No.513/28 in Paivalike village of Kasaragod Taluk due to fire.  As such opposite party No.2 repudiated the claim as there is no insurance or insurance relationship between opposite party No.2 and complainants in respect of the subject matter.  Contending there is no consumer dispute seeks dismissal.

2.     In this case for opposite party No.1 though notice was served by RPAD.  The opposite party No.1 not appeared.  Hence placed Ex-parte.

3.     In support of the above complainant Mr. P.K. Andu filed affidavit evidence as CW1 and answered the interrogatories served on him and produced documents are now marked at Ex.C1 to C11 detailed in the annexure.  On behalf of the opposite party Mr. Amar Kumar Sinha (RW1) Senior Divisional Manager also filed affidavit evidence and answered the interrogatories served on him and produced documents marked Ex.R1 to R16 detailed in the annexure. 

III.     In view of the above said facts, the points for consideration in the case are:

1. Whether the Complainant is a consumer and the dispute between the parties?
2. If so, whether the Complainant is entitled for any of the other reliefs claimed?
3. What order?

      We have considered the notes/oral arguments submitted by the learned counsels and also considered the materials that was placed before this Forum and answer the points are as follows:         

               Point No. (i): Affirmative

              Point No. (ii):  Partly Affirmative

              Point No.(iii): As per the final order.                  

REASONS

1. IV.   POINTS No. (i): There is no dispute that the complainants are owners of immovable property mentioned in the complaint schedule. The complainants claim is that they borrowed loan from opposite party No.1.  In this case documents was not marked.  For the sake of convenience are now marked as Ex.C1.C11. Ex.C1 is the copy of the insure policy.  This copy was issued by opposite party No.1 and the persons insured details as shown as Syndicate Bank, Mission Street, A/c:Mr.P K Andu & Hameed (125/1049) complainants No.1 and No.2.   The insurance covered is for Earthquake (Fire and Shock) in sum assured as Rs.2,43,000/ and the property shown as situated No.513/28. Ex.C2 is the opinion of other Mr. K M Krishna Bhat, Advocate dated 14.01.1984 issued to the Manager of Syndicate Bank showing that complainants No.1 and No.2 have clear and marketable title over the property No.512/2B1 and Ex.C3 is a sale deed dated 24.08.2004 in which opposite party No.1 and No.2 purchased schedule property.  Insurance claim and FIR and filed by the complainant No.1 he had mentioned the running policy filed on 8.4.2013 the repudiation letter dated 5.7.2013 of opposite party No.2 mentioning the property mentioned in the respect of which the cover issued under the policy was surrendered no.512/2B1 of villa and complainant also produced copy of other power of attorney issued by complainant No.3 to the complainant No.1 that is in respect of the schedule property which is a business premises but not residential premises. 
2.  Ex.R2 dated 20.6.2005 is the National Insurance Policy issued by opposite party No.2 to complainant No.1 and No.2 in respect of the policy bearing No. S.No.513/2B of Paivalike Village of Kasaragod, and bank name is shown as syndicate bank and the amount for which there is policy is Rs.2,43,000/.  Ex.R2 is the copy of the policy dated 28.6.2005.  Ex.R2 mentions the previous insurance policy expiry on 18.6.2005 and the due date mention as 1.6.2005 and payment date as 18.6.2005.  Ex.R3 is the policy dated 21.6.2005 to 21.6.2006 the property mentioned in this document wherein and the name of insurance shown as complainants No. 1 and No.2 and the period of the policy Ex.R3 was issued by opposite party No.2 but Ex.R2 was issued by National Insurance Company Limited.  This shows the policy issued prior to the period mentioned at Ex.R3 is by National Insurance Company Limited in respect of complainant schedule property.
3.  Ex.R10 is the proposal Form for Standard Fire and Special Perils Policy given by opposite party No.1 to opposite party No.2 i.e. National Insurance Company Limited at Ex.R10 the period of insurance is motioned as from 21.6.2005 to 20.6.2006 and the location of risk to be covered is shown as S.No.513/28 Paivalike Village of Kasaragod and the name of the proposal is shows as complainants No.1 and No.2 to the declaration at Ex.R10 the signatory is the Manager of opposite party No.1.  Thus as rightly pointed out for opposite party No.2 the error in mentioning the survey No. where the proposed site at survey No. 531/28 Paivalike Village of Kasaragod was committed by opposite party No.1 which as granted loan to the complainants No.1 and No.2 by obtaining the schedule property on charge of the mortgage of the schedule property.  Infact the subsequent policies issued by opposite party No.2 Ex.R4, R5, R6, R7, R8 R9 and Rr10 which are the policy issued by opposite party No.2 by mentioning the location of the risk covered as S.no. 513/28 of Paivalike Village of Kasaragod being repeating of the mention made at Ex.R10 by opposite party No.1. 
4.    Thus there is grave error committed by opposite party No.1 in mentioning the wrong details of the property mortgage to opposite party No.1 towards the loan borrowed while seeking coverage to the property of complainants in during the period ever since 2006 i.e commencing from Ex.R3 to R10.  Infact  opposite party No.1 having an obligation to insure the property of complainants which is mortgage to them to obtain the policy against fire accident of that mortgaged property of complainants and get the policy at the cost of complainants.  But that was not done by opposite party No.1.  Instead wrong property was mentioned while making request to opposite party No.2 for issue of fresh policy. 
5.  Under the circumstance we are of the view that opposite party No.2 insurance company is not liable to answer the claim of the complainants as the property lost in fire was not covered under the policy.  Hence there is no obligation of opposite party No.2 the insurance company.  Hence there is no live dispute between complainants and opposite party No.2.   Hence we answer Point No.1 in the negative in respect of opposite party No.1. 

 6.    In this case as mentioned earlier opposite party No.1 despite service of notice reminder place as ex-parte. The error was committed by opposite party No.1 in not covering the risk in respect of mortgaged of schedule property of complainants.  As such due to this miss description in respect of schedule property of complainants by opposite party No.1 which paid insurance premium on behalf of complainants all these years including the year pertaining to year of the fire accident.  Hence there is a dispute between complainants the consumers and the opposite party No.1 the service provider that it was opposite party No.1 which making premiums of the fire accident insurance policy per Ex.R1.  Hence in respect of opposite party No.1we answer point No.1 affirmative.

POINTS No.(ii):  There is no dispute that the complainants shok in S.No.513/2B1 Paivalike Village of Kasaragod suffered fire accident and the loss and survey assessor of opposite party No.2 surveyed an expert, had mentioned in his report First and Final Report Ex.R13 dated 30.4.2013 loss at Rs. 6,29,544/.

2.    Ex.R15 is copy of confirmation of Creation of Second/Subsequent Equitable Mortgage issued by opposite party No.1 to complainant No. 3 Jaffer mentioning the details of credit facility providing under the Subsequent Equitable Mortgage Rs.6,00,000/ and the detail of the property on which Subsequent Equitable Mortgage created as shown as S.No.512.2B1 Paivalike Village of Kasaragod by referring to all the documents since 1970 to 2009 the accompany letter dated 21.03.2013 M/s Taj Supari of complainants it is a confirmation of the limits sanction of over draft facility for Rs.4,00,000/.  There is another letter of Creation of Second/Subsequent Equitable Mortgage issued by complainant No.3 to opposite party No.1 mentioning a sum at Rs.1,50,000/ and this document dated 23.5.2011.  The letter dated 6.5.2009 of opposite party No.1 to M/s Taj Supari of complainants mentions the amount of sum sanction at Rs.4,00,000/.

3.     Thus on going to their documents it indicates that the credit limit was enhanced from the original Rs.2,45,000/ in 2009 it is Rs.4,00,000/ and then in 2013 Rs.6,00,000/.  With their credit subsequent Creation of mortgage in result of this property of the complainants schedule property only. 

 4.     Thus considering these aspects opposite party No.1 had no business to insure the property in S. No. 531/28 with opposite party No.2 and ought to have insured the property which was mortgaged to them by the complainants in S.No.512.2B1 Paivalike Village of Kasaragod.

5.     Thus there is certainly deficiency of service on the party of opposite party No.1 to their customers the complainants leading to the costs to the extent of as mentioned at Ex.R13 of Rs. 6,29,544/

6.   The complainant had claimed and assessed loss at Rs.12,00,000/.  But the basis on which the loss was assessed at Rs.12,00,000/ less salvage of Rs.1,00,000/ amount to a total loos of Rs.11,00,000/ is not explained by complainant.  Hence we are of the view that the best thing that can be done is to rely on expert report i.e. Ex.R14 was assessed the loss at Rs. 6,29,544 /

   7.     But the mortgage was for Rs.6,00,000/  and coverage under policy was also for same amount as such we are justified in a    presuming the intention of opposite party No.1 in insure the property was to ensure the coverage of the loss of the mortgaged property only.  Hence we are of the opinion that the opposite party No.1 shall be directed to pay Rs.6,00,000/ to complainants with interest at 12% from the date of repudiation  at Ex.C7 dated 5.7.2013.

8.     In respect of the claim of compensation towards mental agony and loss awarding a sum of Rs.50,000/- against opposite party No.1 and awarding cost of the complaint with Advocate fee fixed at Rs.5000/- is just and proper .  Hence we answer point No.2 partly in the affirmative.

POINTS No. (iii): Wherefore the following order

                                                                                                          ORDER

      The complaint is partly allowed with cost.  The opposite party No.1 is directed to pay Rs.6,00,000/ (Rupees Six thousand only) to complainants with interest at 12% from the date of repudiation  at Ex.C7 dated 5.7.2013 till the date of payment.  The opposite party No.1 is directed to pay sum of Rs.50,000/ (Rupees Fifty thousand only) as compensation towards mental agony and loss against opposite party No.1 and Advocate fee fixed at Rs.5,000/ (Rupees Five thousand only). 

     Payment shall be within 30 days from the date of the receipt of this order.

Copy of this order as per statutory requirements, be forwarded to the parties free of cost and file shall be consigned to record room.

(Page No.1 to 11 directly dictated by President to computer system to the Stenographer typed by her, revised and pronounced in the open court on this the 17^th December 2016.

             MEMBER                                              PRESIDENT

(SRI. T.C. RAJASHEKAR)             (SRI. VISHWESHWARA BHAT D)

D.K. District Consumer Forum               D.K. District Consumer Forum

 Additional Bench, Mangalore                Additional Bench, Mangalore

ANNEXURE

Witnesses examined on behalf of the Complainants:

CW1  Mr. P.K. Andu

Documents marked on behalf of the Complainants:

Ex.C1: Insurance Policy

Ex.C2: Legal Opinion dated 14.01.1984

Ex.C3: Registered Sale Deed dated 24.08.2004

Ex.C4: F.I.R

Ex.C5: Mahazar

Ex.C6.9: Receipts

Ex.C7    : Valuation Report dated 2.12.1997

Ex.C8: Claim Form dated 8.4.2013

Ex.C9: Communication dated 5.7.2013

Ex.C10: Communication dated 26.07.2013

Ex.C11: General Power of Attorney dated 2.05.2009

Witnesses examined on behalf of the Opposite Parties:

RW1  Mr. Amar Kumar Sinha, Senior Divisional Manager

    Documents marked on behalf of the Opposite Parties:

                   Ex.R1:  Office Copy of Standard Fire and Special Perils Policy Bearing No.070801/11/12/00000513 valid from 23.06.2012                                          to 22.06.2013

                    Ex.R2: Renewal Notice issued by National Insurance Co., Ltd., Dated 18.06.2005                    

Ex.R3: Fire Insurance Policies from 21.06.2005 to 20.06.2006            

Ex.R4: Fire Insurance Policies from 21.06.2006 to 20.06.2007              

Ex.R5: Fire Insurance Policies from 21.06.2007 to 20.06.2008

Ex.R6: Fire Insurance Policies from 21.06.2008 to 20.06.2009

Ex.R7: Fire Insurance Policies from 21.06.2009 to 20.06.20010

Ex.R8: Fire Insurance Policies from 21.06.20010 to 20.06.20011

Ex.R9: Fire Insurance Policies from 21.06.20011 to 20.06.20012

               Ex.R10: Proposal Form for Standard Fire and Special Perils policy

Ex.R11: Copy of Letter dated 26.07.2013 of OP No.1 addressed to  OP No.2

Ex.R12: Copy of Letter dated 07.0.2013 by OP No.2 to OP No.1For having sent the original of above Proposal Form to OP No.1

Ex.R13: Survey Report of Mr.K P Raghavan with Photographs

Ex.R14: Standard Fire and Special Perils Insurance Policy bearing No.070801/11/12/11/00000513

Ex.R15: Letter dated 4.5.2013 issued to opposite party No.2 by Opposite party No.1

Ex.R16: Copy of confirmation of Equitable Mortgage by opposite party No.1 with copy of policy.

Dated: 17.12.2016                                    PRESIDENT