Complaint No: 71 of 2019.
Date of Institution: 22.02.2019.
Date of order: 11.03.2024.
1. Sukhjinder Kaur Wife of Sukhjinder Singh
2. Sukhjinder Singh Son of Gopal Singh
3. M/s. Mehfil Shoes Palace, through her proprietor Sukhjinder Kaur.
All residents of Village Ghoman, Tehsil Batala and District Gurdaspur.
…....Complainants.
VERSUS
1. Bajaj Allianz General Insurance Company Limited, 2nd Floor Satnam Complex, BMC Chowk, G.T. Road, Jalandhar – 144001, Tel No. 01814685501.
2. GE Plaza, Airport Road, Yerwada Pune – 411006, (INDIA).
3. Punjab National Bank, Branch Shri Hargobindpur, through its Senior Branch Manager.
4. Manoj Kumar (An IRA approved independent surveyor) 260 Mohan Market, Dalhousie Road, Pathankot – 145001.
….Opposite parties.
Complaint U/S 12 of the Consumer Protection Act.
Present: For the Complainant: Sh.Uttam Raj Sharma, Advocate.
For the Opposite Party No.1: Sh.Sandeep Ohri, Advocate.
Opposite Parties No.2 to 4 exparte.
Quorum: Sh.Lalit Mohan Dogra, President, Sh.Bhagwan Singh Matharu, Member.
ORDER
Lalit Mohan Dogra, President.
Sukhjinder Kaur Etc., Complainants (here-in-after referred to as complainants) have filed this complaint under section 12 of the Consumer Protection Act (here-in-after referred to as 'Act') against Bajaj Allianz Gen. Ins. Co. Ltd. Etc. (here-in-after referred to as 'opposite parties).
2. Briefly stated, the case of the complainants is that the complainant’s No. 1 and 2 are running a shop under the name and style of M/s. Mehfil Shoe Palace at Main Bazar Ghoman i.e. the complainant No. 3. It is pleaded that the complainant No. 2 entered into an agreement of a shop with one Tirth Singh son of Sohan Singh resident of Village Ghoman Tehsil Batala on dated 10.11.2004 for establishing a business. The complainant’s No. 1 and 2 started their business under the name and style of M/s. Mehfil Shoe Palace at the said shop since then and running their business very smoothly. It is further pleaded that the complainant No. 2 got registered his business under Punjab VAT Act, 2005 and got VAT No. 03302049013 and GST No. 03AISPK5825H1Z3 on the name of the complainant No. 1 his wife, in the year 2008 which is still in force and has not been cancelled till date. It is further pleaded that in order to expand their business, the complainant No. 2 took loan of Rs.2.00 Lacs from the opposite party No. 3 in the year 2015 and after 1½ years the said limit of loan was got increased to Rs.4.00 Lacs. In order to secure their loan, the OP No. 3 got the business of the complainant No. 3 insured with different insurance companies with whom their officials tie-up. It is further pleaded that the OP No. 3 in the year 2018 got the business of the complainant’s No. 1 and 2 insured with the OP’s No. 1 and 2 for a period from 08.04.2018 to 07.04.2019 and the sum insured by them was of Rs.11,00,000/- (Rupees Eleven Lacs Only). It is further pleaded that during the period of 2013 onwards, the complainant No. 1 fall ill and started remaining under depression and tension, and the complainant No. 2 and his family got her treated from different hospitals till date. During the period of illness of the complainant No. 1, the complainant No. 2 is looking after the business alone as he is having no adverse interest against the complainant No. 1, and he was doing all the work carefully and operating the accounts of firm, on behalf of the complainant No. 2. It is further pleaded that on dated 04.05.2018 the M/s. Mehfil Shoe Store got fire due to short circuit of electricity at about 02:00 P.M. It is further pleaded that due to the ill health of the complainant No. 1 the shop was closed on that day. It is further pleaded that someone from the neighboring shopkeeper gave information to the police regarding the fire and also informed the complainant No. 2 regarding the same and the complainant No. 2 rushed to his shop immediately. It is further pleaded that police party reached at the spot and ASI Gurmukh Singh from his Phone No. 9885046802 gave information to the office of Fire Station Municipal Council Batala, and the employees of Fire Station reached at spot on motor fire tender No. PB-06-AK-1361 and they with the help of police and public got control over the fire report issued by the Sub Fire Officer, Fire Station Batala dated 10.05.2018. After that the complaint No. 2 alongwith his other family members reached at the spot and gone through the entire trauma. It is further pleaded that the information regarding the incident was also given to the opposite parties No. 1 and 3. The opposite party No. 3 also gave information to the opposite party No. 1 regarding the incident. The matter was also published in different newspapers. After that, the complainants also lodged their claim with the opposite parties. The duly attested affidavit from Notary Public dated 13.06.2018 was also submitted by the complainant No. 1 with the opposite party No. 1 on their demand. It is further pleaded that now the opposite parties on one pretext to another refusing to give claim to the complainants, the reason best known to them and finally on dated 14.12.2018, the opposite parties have refused to pass the claim of the complainants on the basis of some false report of the opposite party No. 4. It is further pleaded that the complainants time and again requested the opposite parties to give them claim as per the terms of their policy, but the opposite parties are adamant to their illegal act and the opposite parties failed to do so. It is further pleaded that the opposite parties are giving excuses to the complainants to one and another pretext, but not giving them the claim. It is further pleaded that due to this illegal act and conduct of the opposite parties the complainants have suffered great loss and also suffered mental agony, Physical harassment and inconvenience. It is further pleaded that there is a clear cut deficiency in service on the part of the opposite parties.
On this backdrop of facts, the complainants have alleged deficiency and unfair trade practice on the part of the opposite parties and prayed that necessary directions may kindly be issued to the opposite parties to pay the claim amount of Rs.11 Lacs as per the insurance policy to the complainant alongwith the amount of damaged goods as per the bills etc. and the opposite parties may please be bounded with specific cost including litigation cost amounting to Rs.50,000/- and Rs.50,000/- towards the mental harassment, pain etc. to the complainants, in the interest of justice.
3. Upon notice, the opposite party No.1 appeared through counsel and contested the complaint and filing their written reply by taking the preliminary objections that the complainants have no cause of action to file the present complaint. The complainants have no locus standi to file the present suit. The complaint of the complainants is not legally maintainable and there is no deficiency in service on the part of the answering opposite party. It is pleaded that the matter of fact is that the date of loss i.e. on 04.05.2018 was intimated to the insurance co. whereby, Manoj Kumar Surveyor and Loss assessor has been duly appointed by the insurance co. and he submitted his detailed report after going through the each and every loss. Manoj Kumar during his survey also collected relevant documents. After making survey the final survey report has been submitted by Manoj Kumar Surveyor and Loss Assessor. In the said report he also gave remarks. It is further pleaded that as per his remark upon verification of documents obtained from the insured and insured bank, it has been observed that as per documents of the bank the proprietor of M/s. Mehfil Shoe Palace, VPO Ghoman is Mr. Sukhjinder Singh son of Gopal Singh and he signed the bank documents whereas, the other record provided to us is duly signed by Mrs. Sukhjinder Kaur wife of Sukhjinder Singh. The balance sheet submitted to us and VAT as well as GST record confirms that the status of actual owner/proprietor. It is further pleaded that from the record, it become clear that Mrs. Sukhjinder Kaur wife of Sukhjinder Singh is proprietor of the firm and Sukhjinder Singh has no insurable interest in the said business. Even the claim form has been filled and sent by Sukhjinder Singh, but as already stated he is having no interest in the business and as such, he has no right to raise any claim. After getting the said documents the letter dated 14.12.2018 has been duly sent to M/s. Mehfil Shoe Palace and the query regarding the non-existence of insurable interest has been raised. In spite of this letter the complainant failed to give any satisfactory reply due to which the claim has been repudiated vide letter dated 4th January, 2019. It is further pleaded that there is no deficiency in services on the part of the answering opposite party / insurance co. It is further pleaded that during the survey report one another fact also came out that insured have another insurance cover from the New India Assurance Co. having Policy No. 3805034817060000017 for a period from 09.02.2018 to 08.02.2019 under Shopkeepers’ policy for a stock amounting to Rs.32,50,000/-. The insured concealed this fact and not intimated even to the surveyor regarding this fact and this fact came into light during investigation. It is further pleaded that the complainant has to give declaration also and it is also his duty to disclose the amount he got from the said company also. He has no right to get the double benefit and as such, the present complaint even otherwise is liable to be dismissed and this fact further shows that he has not come to the Hon’ble Court with clean hands and as such not entitled for any discretionary relief and the complaint is liable to be dismissed. It is further pleaded that even otherwise, if this Ld. Commission comes to the conclusion that there is any liability of the insurance co. then in that case the liability of the insurance co is in no case more than loss assessed by the surveyor. It is further pleaded that surveyor also gave bifurcation of the liability in his report. As per his report, as the premises was insured with two companies i.e. one with New India Assurance Co. Ltd. for sum assured of Rs.30,00,000/- and with Bajaj Allianz Gen. Insurance Co. Ltd. for sum assured of Rs.11,00,000/-. So, the net payable amount is to be Rs.1,10,074/- by New India Assurance Co. Ltd. and Rs.34,027/- by the Bajaj Allianz Gen. Insurance Co. Ltd. So, the liability of the Bajaj Allianz General Insurance Co. Ltd. is only Rs.34,027/- but as already stated the claim has been denied and as such, there is no liability of the insurance co. The last page of the survey report clearly provides the bifurcation. It is further pleaded that the complaint of the complainants is bad for non-joinder of the necessary parties. At the time of loss the policy was also got from New India Assurance Co. by the complainant's firm, but the said firm has not been made party. In the absence of the same, the complaint cannot be decided and as such the present complaint of the complainants is liable to be dismissed. In view of the above, the answering opposite party No. 1 / insurance Co. is not liable to make any payment to the complainants.
On merits, the opposite party No.1 has reiterated their stand as taken in legal objections and denied all the averments of the complaint and there is no deficiency in service on the part of the opposite party. In the end, the opposite party prayed for dismissal of complaint with costs.
4. Opposite parties No.2, 3 and 4 did not appear despite the service of notice and was proceeded against exparte vide order dated 11.06.2019.
5. Learned counsel for the complainants has tendered into evidence affidavit of Sukhjinder Singh, (Complainant No. 2) as Ex.CW-1/A alongwith other documents as Ex.C-1 to Ex.C-49.
6. Learned counsel for the opposite party No.1 has tendered into evidence affidavit of Sh. Jai Singh, (Senior Executive Legal, Authorized Signatory, Bajaj Allianz Gen. Ins. Co. Ltd., Chandigarh) as Ex.OPW-1/A alongwith other documents as Ex.OP-1/1 to Ex.OP-1/11 alongwith reply.
7. Rejoinder filed by the complainants.
8. Written arguments not filed by the parties.
9. Counsel for the complainant has argued that complainants No.1 and 2 are running the shop in the name and style of complainant No.3. Complainant No.2 got registered his business under Punjab Vat Act, 2005 and obtained GST number in the name of his wife i.e. complainant No.1. It is further argued that to expand the business complainant No.2 had obtained loan of Rs.2.00 Lacs from opposite party No.3 in the year 2015 and after one and half years the said limit of loan was increased to Rs.4.00 Lacs. The opposite party No.3 had in the year 2018 insured the business of the complainants No.1 and 2 for period w.e.f. 08.04.2018 to 07.04.2019 for sum assured of Rs.11,00,000/-. It is further argued that complainant No.1 suffered from health problem and during the illness of complainant No.1 complainant No.2 was looking after the business. It is further argued that on 04.05.2018 shop of the complainants was burnt in fire in which complainants suffered loss. On claim having been lodged with the opposite party No.1 the same was repudiated by the opposite parties which amounts to deficiency in service.
10. On the other hand counsel for the opposite party No.1 has argued that after intimation of loss Manoj Kumar was appointed as surveyor to assess the loss who submitted his report Ex.OP-1. As per the report it was found that as per documents of the bank proprietor of complainant No.3 is Sukhjinder Singh, whereas other record is signed by Mrs.Sukhjinder Kaur complainant No.1. As per VAT and GST record Sukhjinder Kaur is proprietor of the firm. Accordingly, Sukhjinder Singh has no insurable interest. It is further argued that the surveyor also found that there was another policy to recover the same loss valid from 09.02.2018 to 08.02.2019 issued by New India Assurance Company Limited for a stock amount of Rs.32,50,000/-. It is further argued that surveyor has given bifurcation of the liability and the liability if any of opposite party No.1 is of Rs.34027/- and accordingly complaint is not maintainable and is liable to be dismissed.
11. Opposite parties No.2 to 4 remained exparte.
12. We have heard the Ld. counsels for the complainant and opposite party No.1 and gone through the record.
13. To prove her case complainant No.1 has placed on record affidavit of complainant No.2 Sukhjinder Singh Ex.CW-1/A, copy of lease deed Ex.C1, copy of VAT form Ex.C2, copy of GST number Ex.C3, copy of policy schedule Ex.C4, copies of own treatment record Ex.C5, copy of fire report Ex.C6, copies of news paper cutting Ex.C7, copy of affidavit of her own affidavit Ex.C8, copy of letter dated 14.1.2018 Ex.C9, copy of G.D. No.40 Ex.C10, copies of balance sheet Ex.C11, copy of annual statement regarding VAT Ex.C12, photographs (Original) Ex.C13 to Ex.C16, copies of bills Ex.C17 to Ex.C39, copy of letter dated 04.01.2019 Ex.C40, copies of quarterly return of GST Ex.C41, copy of cheque Ex.C42, copy of statement of account Ex.C43, copy of deposit slip Ex.C44, copies of loan agreement and quotation Ex.C45, copy of bill Ex.C46, copy of stock statement Ex.C47, copy of cheque Ex.C48 and copy of invoice Ex.C49 whereas opposite party No.1 has placed on record affidavit of Jai Singh Sr. Executive Legal Ex.OP-1/1/A, copies of survey report Ex.OP-1/1, copy of GST return Ex.OP-1/2 and Ex.OP-1/3, copy of VAT return Ex.OP-1/4 and Ex.OP-1/5, copy of annual statement Ex.OP-1/6, copy of application form Ex.OP-1/7, copy of hypothecation of goods agreement Ex.OP-1/8, copy of fire claim form Ex.OP-1/9 and copies of letters Ex.OP-1/10 and Ex.OP-1/11.
14. Perusal of policy of insurance Ex.C4 shows that complainant No.3 firm is insured for Rs.11,00,000/- w.e.f. 08.04.2018 to 07.04.2019 covering the risk of fire. The loss suffered by the complainants No.1 and 2 in the fire is also not denied by the surveyor. The surveyor pointed out that the complainants had also obtained another policy of the same shop covering the risk upto Rs.32,00,000/- and as such liability if any of opposite party No.1 for sum assured of Rs.11,00,000/- but the opposite party No.1 has not placed on record any detail of second policy which is being claim to have been obtained by the complainants. As such we are of the view that the surveyor has assessed the total payable loss to the complainants as Rs.1,64,100/- and during the course of arguments counsel for the complainant has addmitted to have received compensation of Rs.1,50,000/- from New India Assuracne Company Ltd, as such we are of the view that surveyor has correctly bifurcated the payable compensation amount i.e Rs.34,027/-.
15. The other issue for non settlement of the claim is that as per application for loan to the bank, complainant No.2 Sukhjinder Singh is recorded proprietor whereas GST and VAT numbers have been obtained in the name of complainant No.1 and as such complainant No.2 was not having any insurable interest. We are of the view that when the policy of insurance was issued at that time it was obligatory upon the opposite party No.1 to verify as to who is proprietor of the firm and who has obtained the VAT and GST numbers. Since the policy of insurance is admitted and loss to the property of the firm complainant No.3 is also admitted. As such we have no hesitation in holding that repudiation of the claim by the opposite party No.1 amounts to deficiency in service.
16. Accordingly, present complaint is partly allowed and opposite party No.1 is directed to pay the amount of Rs.34,027/- as per the assessment of the surveyor to the complainants No.1 and 3 alongwith interest @ 9% P.A. from the date of filing of the present complaint till realization within 30 days from the date of receipt of copy of this order.
17. The complaint could not be decided within the stipulated period due to heavy pendency of Court Cases, vacancies in the office and due to pandemic of Covid-19.
18. Copy of the order be communicated to the parties free of charges. File be consigned.
(Lalit Mohan Dogra)
President.
Announced: (B.S.Matharu)
March. 11, 2024 Member.
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