BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL FORUM, JALANDHAR.
Complaint No.231 of 2015
Date of Instt. 28.05.2015
Date of Decision :30.05.2016
1. Indian Bakers, VPO Lorai Road, Tehsil Bhogpur, District Jalandhar through its Partner Sh.Mukul Arora.
2. Tilak Chawla son of late Sh.Hari Lal Chawla R/o Laroi Road, Bhogpur.
..........Complainants
Versus
1. Bajaj Allianz General Insurance Co.Ltd., GE Plaza, Airport Road, Yearawada, Pune-411006 through its Chairman/MD.
2. Bajaj Allianz General Insurance Co.Ltd., 2nd Floor, Satnam Complex, BMC Chowk, Jalandhar through its Branch Manager.
3. Punjab & Sind Bank, Bhogpur through its Manager.
.........Opposite parties
Complaint Under Section 12 of the Consumer Protection Act.
Before: S. Bhupinder Singh (President)
Sh.Parminder Sharma (Member)
Present: Sh.Gurpreet Singh Adv., counsel for the complainant.
Sh.Raman Sharma Adv., counsel for the OPs No.1 & 2.
Sh.APS Pathania Adv., counsel for OP No.3.
Order
Bhupinder Singh (President)
1. The complainant has filed the present complaint under section 12 of the Consumer Protection Act against the opposite parties on the averments that complainant got insured the stock, plant, machinery and the building with OP No.1 through OP No.3 vide policy No.OG-14-1202-4001-00001404 with schedule of policy for the period from 30.7.2013 to 29.7.2014. During the subsistence of this policy, on 26.6.2014 the plant of complainant got fire. As a result of which stock, plant, machinery and building were damaged. Complainant informed the OPs No.1 & 2 and they deputed surveyor for assessing the loss, who assessed the loss and submitted his report and assessed the net adjusted loss to the tune of Rs.8,70,328/- and the OPs No.1 & 2 finalised the claim of the complainant for Rs.8,70,328/-. However, OPs No.1 & 2 did not consider the loss to the building amounting to Rs.2,39,900/- on the ground that loss to the building was not covered as there was no insurable interest of insured i.e. complainant No.1. Complainant submitted that no doubt, complainant has taken the building in question from OP No.2 on rent but it is the complainant No.1 who had got the building insured with the OP. So, OP was bound to compensate the loss occurred in fire to the building where the plaint of the complainant No.1 is established. The refusal to pay this amount i.e. loss to the building by OP No.1 & 2, amounts to deficiency of service on the part of the OPs No.1 & 2. On such averments, the complainants has prayed for directing the OPs to pay the insured amount alongwith interest. They have also claimed compensation and litigation expenses.
2. Upon notice, OPs appeared through counsel and filed their written replies. In its written reply, OPs No.1 & 2 pleaded that on receipt of intimation from the complainant No.1 firm, OPs No.1 & 2 appointed independent surveyor and loss assessor namely Manoj Kumar who conducted the survey and assessed the loss to the tune of Rs.8,70,328/- and submitted his final survey report dated 18.8.2014. Thereby, he assessed the loss to the plant and machinery to the tune of Rs.5,54,159/- and loss to the stock to the tune of Rs.3,61,975/-, i.e. total amount Rs.9,16,134/- less policy excess Rs.45,807/- and thereby assessed net adjusted loss to Rs.8,70,328/- which was paid to the complainant. However, the loss assessed to the building to the tune of Rs.2,39,900/- was held not payable as complainant No.1 was lessee with the building ownership lies with the complainant No.2. So, complainant had no insurable interest in the building, as such this amount i.e. loss to the building of Rs.2,39,900/- is not payable to the complainant firm/insured and complainant No.2 who is owner of the building is not insured with the OP No.2. So, this amount is also not payable to complainant No.2.
3. In its written reply OP No.3 pleading that complainant No.1 got insured his plant, stock, machinery and building with OPs No.1 & 2. Only premium was deducted from the bank account held by complainant No.1 with the branch of OP No.3. The answering OP bank has not assessed the loss of such building, plaint, stock and machinery nor the OP No.3 is liable to pay any loss occurred to the complainant under fire policy issued by the OPs No.1 & 2.
4. In support of their complaint, learned counsel for the complainants has tendered into evidence affidavit Ex.CA and Ex.CB alongwith copies of documents Ex.C1 to Ex.C18 and closed evidence.
5. On the other hand, learned counsel for opposite parties No.1 and 2 has tendered affidavit Ex.OA alongwith copies of documents Ex.O1 to Ex.O7 and closed evidence. Further learned counsel for the OP No.3 has tendered affidavits Ex.OP3/A and Ex.OP3/B and closed evidence.
6. We have heard the Ld. counsel for the parties, minutely gone through the record and have appreciated the evidence produced on record by both the parties with the valuable assistance of Ld. counsels for the parties.
7. From the record i.e. pleadings of the parties and the evidence produced on record by both the parties, it is clear that complainant got insured the stock, plant, machinery and the building with OP No.1 through OP No.3 vide policy No.OG-14-1202-4001-00001404 Ex.C4 with schedule of policy Ex.C1 for the period from 30.7.2013 to 29.7.2014. During the subsistence of this policy on 26.6.2014, the plant of complainant got fire. As a result of which stock, plant, machinery and building were damaged. Complainant informed the OPs No.1 & 2 and they deputed surveyor for assessing the loss, who assessed the loss and submitted his report Ex.O3 and assessed the net adjusted loss to the tune of Rs.8,70,328/- and the OPs No.1 & 2 finalised the claim of the complainant for Rs.8,70,328/-. However, OPs No.1 & 2 did not consider the loss to the building amounting to Rs.2,39,900/- on the ground that loss to the building was not covered as there was no insurable interest of insured i.e. complainant No.1. Complainant submitted that no doubt, complainant had taken the building in question from OP No.2 on rent but it is the complainant No.1 who had got the building insured with the OP. So, OP was bound to compensate the loss occurred in fire to the building where the plaint of the complainant No.1 is established. The refusal to pay this amount i.e. loss to the building by OP No.1 & 2, amounts to deficiency of service on the part of the OPs No.1 & 2. Complainant also served legal notice to the OPs dated 15.2.2015 Ex.C14. The OPs No.1 and 2 submitted reply Ex.C15 dated 10.3.2015 stating that complainant No.1 firm M/s India Bakers do not hold any ownership in the building. So, any loss to the said building is not payable to the complainant No.1. The learned counsel for the complainants submitted that all this amounts to deficiency in service on the part of the OPs qua the complainant.
8. Whereas the case of the OPs No.1 & 2 is that on receipt of intimation from the complainant No.1 firm, OPs No.1 & 2 appointed independent surveyor and loss assessor namely Manoj Kumar who conducted the survey and assessed the loss to the tune of Rs.8,70,328/- and submitted his final survey report dated 18.8.2014 Ex.O3. Thereby, he assessed the loss to the plant and machinery to the tune of Rs.5,54,159/- and loss to the stock to the tune of Rs.3,61,975/-, i.e. total amount to Rs.9,16,134/- less policy excess Rs.45,807/- and thereby assessed net adjusted loss to Rs.8,70,328/- which was paid to the complainant. However, the loss assessed to the building to the tune of Rs.2,39,900/- was held not payable as complainant No.1 was lessee with the building ownership lies with the complainant No.2. So, complainant had no insurable interest in the building, as such this amount i.e. loss to the building of Rs.2,39,900/- is not payable to the complainant firm/insured and complainant No.2 who is owner of the building is not insured with the OP No.2. So, this amount is also not payable to complainant No.2. Learned counsel for the OP No.1 & 2 submitted that there is no deficiency of service on the part of the OPs No.1 & 2 qua the complainant.
9. Whereas, the case of the OP No.3 is that complainant No.1 got insured his plant, stock, machinery and building with OPs No.1 & 2. Only premium was deducted from the bank account held by complainant No.1 with the branch of OP No.3. The answering OP bank has not assessed the loss of such building, plant, stock and machinery nor the OP No.3 is liable to pay any loss occurred to the complainant under fire policy issued by the OPs No.1 & 2. As such, there is no deficiency of service on the part of the OP No.3 qua the complainant.
10. From the entire above discussion, we have come to the conclusion that as per the policy Ex.C4, complainant No.1 firm got insured stock, plant, machinery and the building where complainant No.1 firm has engaged its business of preparing and selling bakery products, with the OPs for the period from 30.7.2013 to 29.7.2014. On 26.6.2014 fire took place in the firm of the complainant, as a result of which stock, plant, machinery and building were damaged. The complainant informed the OPs No.1 & 2 who appointed surveyor M/s Manoj Kumar who assessed the loss to the tune of Rs.8,70,328/- vide his final report Ex.O3. However, he assessed the loss to the building to the tune of Rs.2,39,900/- but the OPs No.1 & 2 did not pay this amount of Rs.2,39,900/- i.e. loss occurred to the building in question where the plant of production and sale of bakery products of complainant No.1 firm was established, on the ground that complainant No.1 is lessee of this building. Ownership of which lies with complainant No.2 who is not insured with the OPs No.1 & 2 and complainant No.1 has no insurable interest in the building in question.
11. We have gone through the policy obtained by complainant No.1 firm from OPs No.1 & 2 i.e. policy Ex.C4 for the period from 30.7.2013 to 29.7.2014 vide which the OP duly insured the stock, plant, machinery and the said building where the plant of complainant No.1 is established fully knowing that this building is on lease with complainant No.1 and the owner of this building is Mr.Tilak Raj Chawla complainant No.2. Not only this, even after this occurrence, the OPs No.1 & 2 issued the insurance policy in favour of complainant No.1 i.e. policy for the period from 30.7.2014 to 29.7.2015 Ex.C1 fully knowing that the owner of this building is Tilak Raj Chawla complainant No.2, whereas this building is on lease with complainant No.1. All this fully proves that complainant No.1 firm has duly got insured the building where plant of the firm is established, with the OP vide policy Ex.C4 and Ex.C1. It is well settled law that insurable interest exists not only with the ownership but also as a tenant or bailee or financier. Even banks can also have the insurable interest, as per instructions of Fire Insurance Policy.
12. It has been held by Division Bench of Andhra Pradesh High Court in case United India Insurance Company Limited and others Vs. Sri Balaji Dental Laboratory 1999(6) ALT 231 that “under fire and burglary insurance a lessee who has taken the premises on lease has insurable interest”. The same view has been taken by the Division Bench of Hon'ble J & K High Court in case D.M., United India Insurance Co.Ltd Vs. Amarjeet Singh 2011 AIR (J&K) 148 that “where insured not absolute owner of insured property but is father of recorded owners of property and was in lawful possession of it, was lessee tenant of property. It was held that the lessee/tenant is also trustee of property on behalf of the sons owners. The insurer was aware of fact that the property was in name of sons of insured and agreed to insure property held that insured had insurable interest”. Same view has been taken by Division Bench of Hon'ble J & K High Court in case M/s Oriental Insurance Co.Ltd Vs. Sham Lal Matoo 2006 (AIR) (J&K) 103.
13. So, it stands fully proved on record that complainant No.1 has insurable interest in the building in question and as lessee/tenant under the owner and OP fully knowing these facts have insured the building under the policy in question. So, complainant No.1 has insurable interest in the property insured. The OPs were not justified in not allowing the loss occurred to the building during the fire in question which was assessed by the surveyor to the tune of Rs.2,39,900/- vide his assessment report Ex.O3. The complainant did not challenge the report of surveyor Ex.C3. The report of surveyor is the best piece of evidence to settle the claim.
14. Resultantly, we partly allow this complaint with cost and OPs No.1 & 2 are directed to compensate the loss occurred to the complainant No.1 regarding the building in question duly insured with OPs No.1 & 2 to the tune of Rs.2,39,900/- within one month from the date of receipt of copy of this order, failing which OPs No.1 & 2 shall be liable to pay interest @Rs.9/- per annum on this amount, from the date of filing of the complaint till the payment is made to the complainant. The OPs NO.1 & 2 are also directed to pay the cost of litigation to the tune of Rs.2000/- to the complainant. Copies of the order be sent to the parties free of costs under rules. File be consigned to the record room.
Dated Parminder Sharma Bhupinder Singh
30.05.2016 Member President
