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

Dated this the 30^th November 2016

PRESENT

       SRI. VISHWESHWARA BHAT D  : HONBLE PRESIDENT

        SRI. T.C. RAJASHEKAR              : HONBLE MEMBER

ORDER IN

C.C.No.233/2012

(Admitted on 19.07.2012)

M/S SRI DURGA AGENCIES,

M.P.T. Road, Near Jain Basadi,

Bunder, Mangalore  575 001,

Represented by its

Proprietor : Giriraj M,

S/o late B.M. Haloji Rao,

Aged 42 years,

                                                    …...... COMPLAINANT

(Advocate for the Complainant: Sri PRR)

VERSUS

1. United India Insurance Company Ltd.,

Krishna Prasad,

 Opp: Popular Building,

K.S.Rao Road,

Mangalore  575 001  represented by

its Branch Manager.

2. Canara Bank,

Bunder Branch,

Al-Rahata Plaza, Nellikai Road, Bunder,

Mangalore  575 001 represented by its

Branch Manager.

                                                                       …......OPPOSITE PARTIES

(Advocate for the Opposite Party No.1: Sri. DRK)

(Advocate for the Opposite Party No.2: Sri. MSKP)

ORDER DELIVERED BY HONBLE 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 complainant contends is carrying on his own proprietary cum self- employment.  His self employment business carrying on sale of sanitary fittings.  He had showroom cum shop premises door No.11.09.900 situated at MPT Road, Near Jain Basadi, Bunder, Mangalore  575 001 used mainly for dealing with the customers and for display of items and another premises (godown) door No11.0.TS 129/1A at MPT Road, Bunder, Mangalore used for stocking goods as godown i.e. stock.in.trade of his business.  The complainant revealed  of facility in 2006 from opposite party No.2 which has been extended from time to time.  At the instance of opposite party No.2 as required by loan conditions the complainant approached opposite party No.1 through opposite party No.2 as its agent for issuance of shop keeper Insurance Policy.  Opposite party No.2 held out that it has an agency agreement with opposite party No.1.  As such opposite party No.1 issued in favour of complainant shop keeper insurance policy dated 20.9.2009 insuring the stock-in-trade of complainants’ by godown premises by complainant door No.11.0.TS 129/1A.  Insurance policy was for Rs.45,00,000/ against fire and allied perils and Rs.45,00,000/ towards burglary and house breaking.  The insurance premium was paid by complainant to opposite party No.2 with effect from 23.6.2012 in respect of fire and allied perils is concerned has been enhanced to Rs.80,00,000/ and as burglary and house breaking is concerned to Rs. One crore with effect from 13.8.2010.  On 14.8.2010 between 2.00 pm to 2.30 pm a serious fire accident occurred in the Godown premises of complainant. Immediately complainant informed opposite party No.2 who in turn lodged claim with opposite party No.1 as per dated 17.8.2010.  Opposite party No.1 deputed one Surendra Nayak, a Chartered Accountant to inspect the site and submit his report.  Under his report on  18.8.2010, assessing the net loss Rs.17,07,863/ and the  report was counter signed by M. Dinesh Kamath, surveyor cum Loss Assessor and it was noted in the report that the location had occurred.  

II.    Opposite party No.1 by letter dated 16.3.2012 repudiated complainants claim as the loss of stock of godown door No.11.09.900 situated at MPT Road, near Jain Basadi, Bunder Managlore and the claim was reported under the policy for the loss of stock stored at godown door No.11.0.TS 129/1A, 1^st floor, Varadhama Sthanakavasi, MPT Road, Near Jaian Basadi, Bunder, Mangalore which is not covered under the said policy. Contending that the policy issued by opposite party No.1 was in respect of stock in trade and godown premises door No.11.09.900 situated at MPT Road, near Jain Basadi, Bunder Managlore the policy issued by opposite party No.1 no one stated with respect of stock comes to door No.11.0.TS 129/1A situated at MPT Road, near Jain Basadi, Bunder Managlore of complainant.  The shop premised with the 8oo sq ft while the godown area is 4800 sq ft.  is godown.  Opposite party No.1 contends that insurance policy was in respect of shop premises and not the godown premises.  As such the complainant contending that the repudiation of the claim by opposite party No.1 is illegal seeks the remedies claimed in complaint. 

          In support of the above complainant Mr. Giriraj M filed affidavit evidence as CW1 and answered the interrogatories served on him and produced documents got marked Ex-C1 to C10 detailed in the annexure here below.  On behalf of the opposite parties Mr. Amar Kumar Sinha (RW1) Divisional Manager and Mr. H. Bhoja Amin (RW2) Senior Manager, Canara Bank also filed affidavit evidence and answered the interrogatories served on them and produced documents  marked Ex.R1 to R3 detailed in the annexure here below.

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): Negative

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

                                                                                                        REASONS

IV.      POINTS No. (i):  In this case complainants insurance of his stock in trade with opposite party No.1 and that he had took loan on Current Account from opposite party No.2 and as such at the instance of opposite party No.2 the goods were insured are undisputed.   Hence there is relationship of customer and service provider between the parties is undisputed.

That the stock in trade of complainant stocked in No.11.0.TS 129/1A at MPT Road, Near Jaian Basadi, Bunder, Mangalore on 14.8.2010 between 2.00 pm and 2.30 pm is was destroyed by fire is also undisputed.    However opposite party No.1 repudiated the claim of complainant towards the damages caused in fire on the ground in the policy this Door no. of the godown is not mentioned but what is mentioned is of shop premises door No.11.09.900 at MPT Road, near Jain Basadi, Bunder Managlore is shown as the premises of the stocked in trade.   Hence there is a dispute between the parties as defined under the C P Act.  Hence we answer point No.1 in the Affirmative.

POINTS No. (ii):     Not only the coverage policy issued by opposite party No.1 to stock in trade of complainant, the distruction of the stock in trade due to fire accident in the godown and the assessment of loss claimed by the complainant are undisputed between the parties. The only question in dispute is whether the stock-in-trade in Door No. 11.0.TS 129/1A is covered under the policy. It was argued by complainant Mr.PR Rao, the aforesaid the shop premises with door No.11.09.900 is only 4800 sq ft and could not  have held the stocks destroyed in fire and that the extent of the shop of 800 sq ft alone could have held that much stock of the value of about 1 crore covered under the policy.  References were made to the verification of the stock by the bank officials and the reports sent regularly by complainant to the bank i.e. opposite party No.2.   However as we can make that there is a crucial document produced by the complainant himself which would settle the dispute between the parties as to whether is stock-in-trade  mentioned in insurance policy was in the godown D No.  11.0.TS 129/1A or door No.11.09.900.  Admittedly in the policy the premium mentioned is the one with door 11-09-900 and not D No.  11.0.TS 129/1A .Ex.C7 is notarized copy of a letters given by complainant to the Asst. Commissioner of Commercial Taxes local vat office Mangalore.  This document is dated 27.6.2010 and marked at Ex.C7.  A statement of Sri Giriraj the Propritor of M/s Sri Durga Agencies is also attached to this statement.  Scanned copy of Ex.C7 with that of Mr. Giriraj reads:  

 Thus it is clear from Ex.C7 the complainant obtained this godown Door No. 11.0.TS 129/1A only on 27.6.2010 as per this statement made to the statuary authority namely Assistant Commissioner of Commercial Taxes, Mangalore.

          As seen from Ex.C1 the certified true copy of Insurance policy issued by opposite party to complainant it was for the period from 20.9.2009 to 19.9.2010.   Hence it is clear as on the date of Ex.C1 the Insurance Coverage Policy was issued to complainant by opposite party No.1 there was no chance to mention the door no.11.0.TS 129/1A where the fire accident took place.  Hence we are of the firm view that the argument and the contention of the complainant that the stock-in-trade in the premises where fire accident took place belonging to complainant is covered by policy as per policy issued by the opposite party No.1 as per Ex.C1 is not at all correct.  Hence the repudiation of the liability of the opposite party No.1 in our view is justified.  Hence we answer point No.2 in the Negative.

 POINTS No. (iii):  Wherefore the following Order:

ORDER 

                             The Complaint is dismissed.

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

(Page No.1 to 9 Dictated directly to computer system to the Stenographer typed by her, revised and pronounced in the open court on this the 30^th November 2016)

ANNEXURE

Witnesses examined on behalf of the Complainant:

CW1 Mr. Giriraj M

Documents produced on behalf of the Complainant:

Ex C1:                   : Certified true copy of Shop keepers Insurance  Policy   From 20.9.2009 to 19.9.2010

Ex C2: 17.8.2010    : letters addressed by Opposite party No.2 to Opposite party No.1

ExC3: 18.8.2010     : Xerox copy of final survey report

ExC4: 16.3.2012     : letters of repudiation

Ex.C5:  06.09.2007   : Copy of Hypothecation agreement in respect of  Cash credit facilities

Ex.C6:                     : Copy of stock inspection report

Ex.C7: 27.06.2010     : Notarized copy of letters by complainant to  Assistant Commissioners of Commercial Tax, Mangalore

Ex.C8: 15.8.2010       : Mahazar

Ex.C9: 17.8.2010       : Notarized copy of letter

Ex.C10:                     : Income tax returns               

Witnesses examined on behalf of the Opposite Parties:

RW1: Mr. Amar Kumar Sinha, Divisional Manager, Mangalore

Documents marked on behalf of the Opposite Parties:

Ex.R1:                   : Proposal Form (Original copy)

Ex.R2: 18.8.2011    : Final Survey Report of Mr.K. Sureandra Nayak (Original)

Ex.R3:                    : Annexure to the survey report

Dated:  30.11.2016                             PRESIDENT