Punjab

StateCommission

A/10/1957

M/s Sharan Knitwears - Complainant(s)

Versus

Bajaj Allianz General Insurance Company - Opp.Party(s)

Munish Goel

11 Feb 2015

ORDER

2^nd Additional Bench

 

STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB

DAKSHIN MARG, SECTOR 37-A, CHANDIGARH

 

First Appeal No.1957 of 2010

                                                           

                                   Date of institution: 12.11.2010 

                             Date of Decision:    11.2.2015

 

M/s Sharan Knitwears, Street No. 6-A, Basant Vihar, New Shimlapuri, Ludhiana through Prop. Rajesh Kumar.

…..Appellant/Complainant

                                      Versus

1. Bajaj Allianz General Insurance Company Limited, SCO No. 147, Feroze Gandhi Market, Ludhiana through Authorized Signatory.
2. Axis Bank Ltd., Ludhiana through authorized signatory, Shop No. 3, LGF, 108, Surya Tower, The Mall, Ludhiana.

…..Respondents/Opposite Parties

 

First Appeal against the order dated 5.10.2010 passed by the District Consumer Disputes Redressal Forum, Ludhiana.

 

Quorum:-

 

              Shri Gurcharan Singh Saran, Presiding Judicial Member

              Shri Jasbir Singh Gill, Member

    Shri Harcharan Singh Guram, Member

 

Present:-

 

          For the appellant             :         Sh. Munish Goel, Advocate

          For respondent No.1        :         Not summoned.

          For respondent No.2        :         Sh. Shakti Mehta, Advocate for

                                                          Sh. Sandeep Khunger, Advocate

 

 

Gurcharan Singh Saran, Presiding Judicial Member

ORDER

The appellant/complainant(hereinafter referred as “the complainant”) has filed the present appeal against the order dated 5.10.2010 passed by the District Consumer Disputes Redressal Forum, Ludhiana(hereinafter referred as “the District Forum”) in consumer complaint No.834          dated 3.12.2009 vide which the complaint filed by the complainant was dismissed.

3.                The complaint was filed by the complainant under the Consumer Protection Act, 1986 (in short ‘the Act’) against the respondents/opposite parties(hereinafter referred as ‘respondents’) on the allegations that the complainant firm is proprietorship concern being managed by Rajesh Kumar, Proprietor having godown at Street No. 9, Satguru Nagar, New Shimlapuri, Ludhiana whereas in the insurance record, the address of the complainant was wrongly given by respondent No. 2 in the policy, which was obtained by the complainant from respondent No. 1 for covering the risk against theft/burglary as well as against fire and special perils under two different insurance covers. Respondent No. 2 was the financial institution in the insurance cover. The insurance cover No. OG-09-1203-4001-00002284 for the period 30.12.2008 to 29.12.2009 and sum insured under the policy was Rs. 70 lacs for which a premium of Rs. 15,043/- was paid to respondent No. 2, who further paid the same to respondent No. 1. In the policy schedule, the address of the complainant was mentioned as “New Shivpuri” instead of “New Shimlapuri”. This fact came to the notice of the complainant at the time of getting copy of proposal form with policy of burglary as well as of fire. The fire had taken place at Street No. 9, Satguru Nagar, New Shimlapuri, Ludhiana on 17.10.2009 at 11.30 p.m.. The complainant lodged its claim of Rs. 20 lacs against the stock insured with respondent No. 1, who appointed M/s Cunningham Lindsey International Pvt. Ltd. and the said surveyor inspected the premises on 18.10.2009 and documents asked for were given. However, the claim was rejected by the respondent vide letter dated 30.10.2009 on the ground that the loss of location is different from the risk of location covered in the policy. The complainant visited respondent No. 2 bank, made the inquiry about the non-existence of affected premises in the insurance policy and official of the bank admitted that at the time of the proposal form by them meant for burglary, mistake was committed by them by not disclosing the address of affected premises as well as mentioning of wrong address as New Shivpuri in the policy instead of New Shimlapuri and also put the blame on respondent No. 1 for issuing other policy for fire under dispute without examining the relevant fact. The proposal form in the case of burglary was filled up by the officials of the bank, who mentioned the wrong particulars and the address whereas respondent No. 1 had put the blame on respondent No. 2, therefore, the respondents are liable to compensate the complainant as there was deficiency in services on the part of the respondents. Accordingly, the complaint was filed to set-aside the repudiation letter dated 30.10.2009 and the respondents be directed to compensate the complainant against loss of Rs. 20 lacs alongwith litigation expenses.  

4.                Respondent No. 1 in its reply had taken the preliminary objections that the complaint was barred under Section 26 of the Act; the complainant was/is commercial organisation and does not fall within the definition of ‘consumer’; the District Forum, Ludhiana did not have any jurisdiction to decide the complaint. Cunningham Lindsey International Pvt. Ltd. was appointed as Surveyor after receiving the information about the loss, who examined the documents and vide repudiation letter dated 30.10.2009, repudiated the claim that the place Street No. 6-A, Basant Nagar, New Shivpuri, Ludhiana was not covered under the policy; the complainant was also estopped by his act and conduct to file the complaint as he had concealed the material facts from the Hon’ble Forum. On merits, it was denied that the premises/godown at Street No. 9, Satguru Nagar, New Shimlapuri, Ludhiana was not covered under the policy. The address of the complainant as per the policy was 6-A, Basant Nagar, New Shimlapuri, Ludhiana as per disclosure made by the complainant at the time of obtaining the insurance policy and as such the address was correctly written. It was admitted that in the name of financial institution the name of respondent No. 2 was given. It was denied that respondent No. 2 had hired the services of respondent No. 1 for covering the risk. It was also denied that respondent No. 2 acted as an Agent of respondent No. 1 in fact the policy bearing No. OG-09-1203-4001-00002284 was obtained by the complainant from respondent No. 1. Since the terms and conditions in which the fire had taken place, were not covered under the policy, therefore, the claim was rightly repudiated. There was no deficiency in services on the part of this Op. Complaint was without merit and it be dismissed.

5.                Respondent No. 2 in its written reply have taken the preliminary objections that the complaint was not maintainable as the address where the alleged fire had taken place had neither entered in the records of respondent No. 2 nor the complainant had ever informed respondent No. 2 to carry on business in the premises situated at Street No. 9, Satguru Nagar, New Shimlapuri, Ludhiana. Respondent No. 2 only acted as an agent of respondent No. 1 and absolutely no liability on the part of this respondent to pay any amount to the complainant. Under Section 230 of the Indian Contract Act, an agent can neither be sue nor be sued under the special circumstances mentioned therein; the complaint was bad for misjoinder of respondent No. 2 as a party; the complaint had been filed only to harass respondent No. 2; there was no privity of contract between the other respondent and this respondent to indemnify the respondent in case of loss, therefore, there was no deficiency in services on the part of this respondent and the complaint be dismissed. On merits also, it was again reiterated that the complainant had never informed this respondent that he was keeping his stock in Street No. 9, Satguru Nagar, New Shimlapuri, Ludhiana. At the time of applying the credit facility, the complainant had disclosed his place and address as Street No. 6-A, Basant Nagar, New Shimlapuri, Ludhiana and accordingly, the credit facility was sanctioned vide their letter No. AxisB/SME/LDH/2008-09/461 dated 19.12.2008. As per condition No. 12 of the sanction letter, the complainant was bound to get the stock comprehensively insured and to submit a copy of the insurance policy to the bank. The bank had agreed to act as a facilitator only to get the insurance policy, therefore, there was no deficiency in services on the part of this respondent bank. Complaint was without merit against them, therefore, it be dismissed.

6.                The parties were allowed by the learned District Forum to lead their evidence.

7.                In support of his allegations, the complainant had tendered into evidence affidavit of Rajesh Kumar Ex. CA-1, insurance policy Ex. C-1, statement of loss Ex. C-2, newspaper cutting Ex. C-3, repudiation letter Ex. C-4. On the other hand, opposite party No. 1 had tendered into evidence affidavit of Sunil Koul, Asstt. Manager Ex. RW-1/A, affidavit of Sherry Makkar Ex. RW-1/B, policy document Exs. R-1 & 2,  repudiation letter Ex. R-3, surveyor report Ex. R-4, cover note Ex. R-5, policy loss description Ex. R-6, premium collection record Ex. R-7, letter of surveyor dt. 20.10.09 Ex. R-8, courier receipt Ex. R-9, final report Ex. R-10, DDR Ex. R-11, newspaper cutting Ex. R-12, employees state insurance corp. Ex. R-13, statement of loss Ex. R-14, CD Ex. R-15. OP No. 2 had tendered into evidence affidavit of Pankaj Kumar Ex. RW-2/1, application by the complainant dt. 10.12.08 Ex. R-16, sanction letter Ex. R-17, confirmation letter Ex. R-18, application for renewal Ex. R-19.

8.                After going through the allegations in the complaint, written reply filed by the OPs, evidence and documents brought on the record, learned District Forum dismissed the complaint on the plea that the premises where the loss had taken place i.e. Street No. 9, Satguru Nagar, New Simlapuri, Ludhiana was not covered under the policy. No doubt that financial assistance was taken by the complainant from respondent No. 2 but at no stage, it was intimated to respondent No. 2 that they had started their business at that address.

9.                In the grounds of appeal, it has been stated that the learned District Forum has wrongly dismissed the complaint without taking into consideration that the complainant was having its godown at Street No. 9, Satguru Nagar, New Shimlapuri, Ludhiana. In the policy, inadvertently wrong address was mentioned as Basant Nagar, New Shivpuri, Ludhiana, the stocks of the complainant were hypothecated with respondent No. 2. The stocks were to be got insured and at the time of taking the insurance policy, the wrong address was mentioned by respondent No. 2, therefore, the order so passed by the learned District Forum is liable to be set-aside. Appeal be accepted and consequently, the complaint be allowed with a direction to the Ops/respondents to compensate the complainant.

10.              The policy under which the claim has been referred is bearing No. OG-09-1203-4001-00002284 for the period 30.12.2008 to 29.12.2009 for a sum of Rs. 70 lacs. The said policy has been placed on the record as Ex. C-1 in which the address has been mentioned as Street No. 6(A), Basant Nagar, New Shivpuri, Ludhiana in the name of financial institution respondent No. 2. Whereas in the statement of loss Ex. C-2, the place of the incident has been mentioned as Street No. 9, Satguru Nagar, New Shivpuri, Ludhiana and vide letter Ex. C-4, it has been mentioned that as per the policy, the location address was M/s Sharan Knitwears, Street No. 6(A), Basant Nagar, New Shivpuri, Ludhiana, therefore, the premises where the loss occurred was different than as covered under the policy Ex. C-1.

11.              The contention of the counsel for the appellant that this proposal form was filled up by respondent No. 2 and while submitting the particulars, they had given the wrong address, therefore, in case the loss is not covered under the policy issued by respondent No. 1 then respondent No. 2 should pay the claim. However, in case we go through the written reply filed by respondent No. 1, it has been stated that policy was issued by respondent No. 1 and their services were never hired by respondent No. 2, there name was mentioned as a financial institution. Similar is the reply filed by respondent No. 2 that they acted as agent of the complainant and paid the premium otherwise under the terms of the loan sanctioned to the complainant, the complainant was required to get the stock insured and supplying the copy of the insurance policy to respondent No. 2. Therefore, the proposal form was necessary to check whether it was submitted by the complainant or it was submitted by respondent No. 2. However, the complainant has not placed on the record the said proposal form, it was not produced by respondent No. 1 during the trial. Even in the loan form Ex. R-16, the address of the complainant has been mentioned as Street No. 6, Basant Nagar, New Shimlapuri, Ludhiana. At the most, there can be some mistake with regard to mentioning of New Shivapuri instead of Shimlapuri but the godown where the incident had happened is Street No. 9, Satguru Nagar, New Shimlapuri, Ludhiana. That address was never informed by the complainant to the bank that he is running any business or that the policy should be obtained on that address. With regard to the document Ex. R-12, a reference has been made that the Proprietor intends to further extend its business, as such, they had purchased the new unit from nearby to the existing one measuring about 166 sq. yards. The said unit was yet to be started and no further intimation has been given to the bank that they had started the business in those premises. Therefore, at no stage the address Street No. 9, Satguru Nagar, New Shimlapuri, Ludhiana was intimated by the complainant to get the insurance policy for the goods lying in those premises. Therefore, firstly there is no evidence that the proposal form was submitted by respondent No. 2 on behalf of the complainant. It is the complainant, who is to procure the insurance policy for the goods for which CC Limit was sanctioned by respondent No. 2. Further at no point of time, the complainant had intimated that he had started his business or keeping his goods at the address Street No. 9, Satguru Nagar, New Shimlapuri, Ludhiana so that respondent No. 2 could get the insurance policy to protect the goods at that address. Therefore, when the insurance policy was not covering the premises in which there was loss to the goods of the complainant then the respondents are not liable to pay any claim to the complainant. The learned District Forum has correctly discussed the entire position and has rightly dismissed the complaint. We affirm the findings so recorded by the District Forum.

12.              In view of the above discussion, we do not find any merit in the appeal and the same is dismissed with no order as to costs.

13.              The arguments in this appeal were heard on 4.2.2015 and the order was reserved. Now the order be communicated to the parties as per rules.

14.              The appeal could not be decided within the statutory period due to heavy pendency of Court cases.

 

 (Gurcharan Singh Saran)

Presiding Judicial Member

 

                                                                            (Jasbir Singh Gill)

                                                                                                    Member

 

February 11, 2015.                                                (Harcharan Singh Guram)

as                                                                                                Member