Punjab

StateCommission

A/11/300

United India Insurance Company Limited and another - Complainant(s)

Versus

Meenu Rui Machine and Another - Opp.Party(s)

Brig. B.S. Taunque

10 Feb 2015

ORDER

                                                               FIRST ADDITIONAL BENCH

 

STATE  CONSUMER  DISPUTES  REDRESSAL  COMMISSION,  PUNJAB

          SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.

 

                                     

(1)                         First Appeal No.300 of 2011

 

 

                                                          Date of Institution: 11.02.2011  

                                                          Date of Decision :  10.02.2015

 

 

1.       United India Insurance Company Limited, Regional Office, SCO           No.123-124, Sector 17-B, Chandigarh through its Manager.

 

2.       United India Insurance Company Limited, Railway Road, Ropar,          Tehsil and District Ropar through its Branch Manager.

 

 

                                                                                                                                            …..Appellant/Opposite Parties

         

                                      Versus

 

1.       Meenu Rai Machine, Shop No.1782, Anaj Mandi, Ropar, Tehsil and      District Ropar through its Proprietor Tarsem Lal Kapoor.

 

2.       State Bank of Patiala, Main Branch, Near Ramlila Ground, Ropar,        Tehsil and District Ropar.

 

                                                                                                                                            ….Respondents/Complainants

 

         

First Appeal against order dated 08.12.2010 passed by the District Consumer Disputes Redressal Forum, Ropar.

 

Quorum:-

 

          Shri J. S. Klar, Presiding Judicial Member.

          Shri Vinod Kumar Gupta, Member.  

 

Present:-

 

          For the appellants            :         Sh.B.S Taunque, Advocate.

          For the respondent No.1  :         Sh.Ashok Bector, Advocate

          For the respondent No.2  :         Sh.V.K.Garg, Advocate

 

                                              AND

 

2)                          First Appeal No.474 of 2011

 

                                                                   Date of Institution: 14.03.2011  

                                                                   Date of Decision :  10.02.2015

 

Menu Rui Machine, Shop No.1782, Anaj Mandi, Ropar, Tehsil and District Ropar, through its Proprietor Tarsem Lal Kapoor.

                                                                   .. Appellant/Complainant.

 

                                      Versus…

1.       United India Insurance Company Limited, Railway Road, Ropar,          Tehsil and District Ropar, through its Branch Manager.

2.       State Bank of Patiala, Main Branch, Near Ramlila Ground, Ropar,        Tehsil & District Ropar.

 

                                                                                                                                                            … Respondents…

 

First Appeal against order dated 08.12.2010 passed by the District Consumer Disputes Redressal Forum, Ropar.

Quorum:-

 

          Shri J. S. Klar, Presiding Judicial Member.

          Shri Vinod Kumar Gupta, Member.  

Present:-

 

          For the appellant             :         Sh.Ashok Bector, Advocate.

          For the respondent No.1  :         Sh.B.S Taunque, Advocate

          For the respondent No.2  :         Sh.V.K.Garg, Advocate

 

 

          ……………………………………………………………….

 

                                      

J. S. KLAR, PRESIDING JUDICIAL MEMBER:-

                  

           By this common order, we shall dispose of the above referred two connected appeals arising out of the same order of the District Forum, Ropar dated 08.12.2010. The judgment shall be delivered in main First Appeal No.300 of 2011 titled as United India Insurance Company Limited and another Vs. Meenu Rui Machine and another. The appellants of First Appeal No.300 of 2011 is OP No.1 in the complaint and respondent no.1 of this appeal is the complainant and respondent no.2 of this appeal is OP No.2 in the complaint, whereas the appellant of First Appeal No.474 of 2011 is the complainant in the complaint and the respondents of this appeal are the OP therein, they shall be referred as such hereinafter.

2.                The complainant has filed the complaint U/s 12 of the Consumer Protection Act, 1986  (in short, "the Act") against the OPs on the allegations that the complainant, who carries on its business through its Proprietor Tarsem Lal Kapoor under the name and style of Meenu Ruing Machine at Shop No.1782, Anaj Mandi, Ropar.  The complainant has been running the above-referred business in the said shop and godown of the said premises. The complainant has been dealing in the business of cotton raw materials therein. The complainant took cash credit limit from OP No.2 of Rs.3,00,000/- for the said business. The complainant keeps the stock of fiber cotton, waste cotton, mattresses, quilt, pillows, indigenous cotton and thread etc. therein. OP No.2 bank insured the said shop and godown and stock of the complainant with OP No.1 for the period 20.11.2008 to 17.11.2009 for a sum of Rs.3,50,000/-. The complainant has kept the stock of fiber cotton, waste cotton, mattresses, quilt, pillows, indigenous cotton and thread of Rs.3,47,000/- therein. A fire broke out in the premises of shop and godown of the complainant on 03.03.2009 at 10.30 PM and the stock of the complainant was gutted therein. Report was lodged to the Police Station, City Ropar, vide DDR No.16 dated 08.03.2009 about the incident of fire. The complainant also reported the matter to the OP No.2/bank for further intimation to OP No.1/insurance Company on 04.03.2009 about the incident of fire and loss of the stock therein of the complainant. A surveyor was deputed by the OP No.1, who visited the place of the occurrence and took photographs of the damaged articles in the fire. The surveyor assessed the loss of Rs.85,000/- against the total loss of Rs.3,47,700/- of the stock. The surveyor has not assessed the loss as per actual loss suffered by the complainant and it is not acceptable to the complainant. No payment of the said loss has even been made to the complainant by the OPs. The complainant has, thus, filed the consumer complaint against the OPs directing them to pay the amount of  Rs.3,47,700/- as loss caused to the complainant by the fire, besides compensation of Rs.1,00,000/- and interest @ 12% per annum thereon.

3.                Upon notice, the OP No.1/United India Insurance Company filed its separate written reply raising preliminary objections that complaint is not maintainable because the complainant has not locus standi to file the complaint. Any deficiency in service by the OP No.1 was vehemently denied.  It was further pleaded that OP No.1 insured only cotton ruing machine lying in the shop and stock lying in the shop of the complainant and it has not insured the godown of the complainant. It further pleaded that the stock lay in the godown of the complainant and fire broke out in the godown and not in the shop of the complainant. OP No.1 contested the complaint of the complainant even on the merits. It was admitted that godown and shop are situated in the same locality, but with different ingress and egress points thereto. It was further averred by OP No.1 that shop and godown of complainant are not communicating with each other. OP No.1 vehemently pleaded that it only insured stock in the shop and the machinery and not the godown of the complainant. It admitted the fact that Sh.Ranjan Sharma, Surveyor was deputed to visit the spot, who inspected it by taking the photographs, thus, the surveyor assessed the loss of the goods in the godown and not in the shop in as much as godown was not insured by OP No.1 and it prayed for dismissal of the complaint.

4.                OP No.2 bank filed its separate written reply and contested the complaint of the complainant. It was averred by it that complainant kept the stock on 28.02.2009 and the value of the same has to be proved by the complainant. It further pleaded that stock lying in the premises was hypothecated with OP No.2, which is a primary security of the OP Bank. It further admitted that complainant availed cash credit limit from OP No.2. The fire broke out in the premises of the complainant and OP Bank intimated this fact to OP No.1, vide letter dated 06.03.2009. It further averred that its charging interest on the debit balance of the cash credit limit, which is Rs.2,62,945.71 paise with interest calculated up to January 2010. OP No.2 prayed for dismissal of the complaint.

5.                The complainant tendered in evidence his affidavit Ex.C-1, photocopy of DDR Ex.C-2, photocopy of policy Ex.C-3, photocopy of premium challan Ex.C-4, statement of accounts Ex.C-5, photocopy of site plan Ex.C-6, bill dated 12.02.2009 Ex.C-7, bill dated 12.2009 Ex.C-8, bill dated 14.2.2009 Ex.C-9, bill dated 23.2.2009 Ex.C-10, bill dated 23.1.2009 Ex.C-11, bill dated 23.1.2009 Ex.C-12, photocopy of letter/certificate dated 22.5.2009 Ex.C-13, photocopy of stock statement Ex.C-14, photocopy of balance sheet Ex.C-15 and Ex.C-16, photocopy of registered deed Ex.C-17, photocopy of documents i.e. bills Ex.C-18 to Ex.C-22. As against it, the opposite party No.2 tendered in   evidence    affidavit of Sh..Lalit Kumar Sharma, Branch Manager Ex.R-1 and photocopies of documents i.e insurance policy Ex.R-2, premium challan Ex.R-3, letter of arrangement of loan Ex.R-4, agreement for cash credit limit Ex.R-5, sale deed Ex.R-6, site plan with the sale deed Ex.R-7, statement of account Ex.R-8, letter dated 6.3.09 to OP No.1, Ex.R-9, letter dated 19.6.09 to the complainant Ex.R-10. OP No.1 tendered in evidence affidavit of Sh.G.S Sandhu, Branch Manager Ex.R-11, affidavit of Sh.Rajan Shardha, Surveyor Ex.R-12, photocopy of surveyor report Ex.R-13, photographs Ex.R13-A to Ex.R13-C, letters dated 6.3.09 Ex.R-14 and Ex.R-15, newspaper cuttings Ex.R-16 and Ex.R-17, no claim letter Ex.R-19, site plan Ex.R-20, photographs Ex.R-21 and Ex.R-22 and close the evidence. On conclusion of evidence and arguments, the District Forum, Ropar accepted the complaint of the complainant against OP No.1 directing it to pay compensation of Rs. 81614/- to the complainant along with interest @ 9% per annum from 22.09.2009 till its actual payment besides costs of litigation of Rs.1000/-. Dissatisfied with the order of the District Forum dated 08.12.2010, the above-referred two different appeals have been preferred against the same. First Appeal No.300 of 2011 has been preferred by the United India Insurance Company against the impugned order with regard to the passing of award of compensation of above amount against it, whereas First Appeal No.474 of 2011 has been filed by the complainant with regard to enhancement of the amount of compensation.

6.                We have heard the Learned counsel for the parties and have also examined the record of the case. It is an undisputed fact in this case that the complainant has been dealing in the business of the cotton raw materials through its Proprietor Tarsem Lal Kapoor in the above premises. Admittedly, complainant took cash credit limit of Rs. 3,00,000/- from OP No.2 bank. The complainant stored the stock of fiber cotton, waste cotton, mattresses, quilt, pillows, indigenous cotton and thread therein. It is also an undisputed fact that stock was insured by the complainant through OP No.2 with OP No.1 for the period 20.11.2008 to 17.11.2009 for a sum of Rs.3,50,000/-. Similarly, this fact is not disputed that the fire broke out in the premises and stock of the complainant was gutted therein. On this point, we have refer to evidence on the record particularly  the affidavit of the Tarsem Lal Kapoor complainant Ex.C-1. Ex.C-2 is copy of the police report No.16 dated 08.03.2009 regarding incident of breaking out of fire, Ex.C-3 is the cover note of the insurance policy, Ex.C-4 is a premium challan, Ex.C-5 is statement of account of the complainant maintained with OP No.2 bank, Ex.C-6 is copy of sketch, Ex.C-7 to Ex.C-12 photocopies of bill to the effect that complainant purchased the stock of Rs.69423/-  on 12.02.2009 from Shree Bajrang Enterprises, Ahmedgarh (Sangrur)  and stock of Rs.62608/- from Simar Textiles on 14.02.2009, stock of Rs.84750/- from Simar Textiles on 23.02.2009, stock of Rs.14344/- from Simar Textiles on 23.01.2009, stock of 9281/- from Simar Textiles on 23.01.2009 vide Ex.C-9 to Ex.C-12, certificate of State Bank of Patiala Ex.C-13, statement of stock Ex.C-14, balance sheet  Ex.C-15, trading & profit and loss account statement Ex.C-16, copy of sale deed Ex.C-17,  Ex.C-18 to Ex.C-22 are copies of bills in favour of the complainant for a sum of Rs.21,930/- on 11.02.2009, Rs.18,396/- on 09.02.2009, Rs17,756/- on 24.02.2009, Rs.18,851/- on 01.03.2009 and Rs.19094/- on 28.02.2009.

7.      On the other hand, the submission of the OP/United India Insurance Company is that the godown of the complainant was not insured by it  and it was not a part of the contract of insurance. It maintains that only shop, machinery and stock lying therein was insured by the complainant with OP No.1 as, such, OP No.1 is not liable to indemnify the complainant with regard to the stock, which was stored in the godown and was destroyed in the fire. The counsel for the OP/United India Insurance Company submitted that the godown does not communicate with shop and they have different exit and entry points an it is not part of the shop as such it was not insured by the complainant with United India Insurance Company. The vehement submission of Sh.B.S Tanunque  Advocate, on behalf of United India Insurance Company is that since godown was not insured, as such stock, if any lying therein was un-insured being not part of the contract of the insurance. Therefore, United India Insurance Company is not liable to indemnify the complainant in this case.

8.      We find that only point for adjudication in this case is as to whether the stock lying in the godown was insured with the complainant or whether the shop and godown are part of the same premises or they are two different units. We have to refer to evidence on the record to adjudicate this controversy. Sh.Tarsem Lal Kapoor, complainant swore affidavit Ex.C-1 on the record and stated that he carried on business in the shop and godown in the same premises, which was destroyed in the fire in this case.  Complainant also referred to the copy of the sale deed Ex.C-17 on the record that said premises were purchased by him by virtue of this sale deed. On the other hand, the forceful contention of OP/United India Insurance Company is that godown was separate unit than the shop and as such, it is not part of the contract of insurance, hence, the United India Insurance Company is not liable to indemnify the complainant in this case at all. The complainant insured the stock through OP No.2 bank in this case. OP No.2 bank filed a written reply in the shape of affidavit of its Manager stating that complainant took the cash credit limit of Rs.3,00,000/- from it. That the stock lying in the premises was hypothecated in favour of OP No.2 bank, which is the primary security of the bank as complainant has been availing the cash credit limit from it. That it duly informed the OP/United India Insurance Company, vide letter dated 06.03.2009 regarding the incident of the fire in the premises. It took stand that it hypothecated the stock, which is primary security of it of the complainant.  Ex.R-2 is a cover note of the insurance policy issued by OP No.1 in favour of the complainant. The description of the risk is recorded as on stock of cotton, raw materials, ruing machine and other similar type of goods. It was further recorded that the property is situated at Old Anaj Mandi, Ropar. It is, thus, evident from perusal of the cover note Ex.R-2 that the United India Insurance Company insured the stock of the cotton, raw materials, ruing machine and other similar type of goods at property situated at Old Anaj Mandi, Ropar of the complainant. We find from its appraisal that machine and stocks were insured by OP No.1 belonging to complainant through the instrumentality of OP No.2. The premium challan is Ex.R-3 on the record regarding insurance of the stock. Ex.R-4 is letter sent by Manager of OP No.2 to the complainant about the hypothecation of the entire stock. From perusal of agreement for cash credit Ex.R-5, it is established that stock and machine were hypothecated with OP No.2 bank, Ex.R-8 is copy of statement of account issued by OP No.2/State Bank of Patiala and Ex.R-9 is letter regarding intimation sent by OP No.2 bank to OP No.1 for this incident of fire and Ex.R-10, Ex.R-14 and Ex.R-15 are also in continuation of the same. Correspondence ensued between the complainant and OP No.1 through OP No.2, vide Ex.R-19 on the record and Ex.R-20 the sketch, Ex.R-21 and Ex.R-22 are the photographs on the file.

9.                Even from the affidavit of Surveyor Ex.R-12 with his report Ex.R-13, this fact is established on the file that the fire broke out and caused loss to the stock of the complainant. The surveyor assessed the loss of Rs.81614/- against the policy and he assessed the value of the damaged stock as Rs.10750/- and aforesaid loss excess as per policy.  The surveyor submitted in his report that godown was not insured. Only stock lying in the shop was insured. On the basis of the report of the surveyor. Ex.R-13, the United India Insurance Company declined to accept the insurance claim of the complainant.

10.              We conclude from the evidence on the record, after hearing submissions of the counsel for the parties, that vide Ex.C-3, it is established on the record that description of risk was on stock of cotton, raw material, ruing machine and other similar type of goods. It is not set out in specifically that only the shop was insured and not the godown. It is the stock and machinery of the complainant, which was insured with OP/United India Insurance Company. Even by common sense, machines are not installed in the shop and finally prepared or refind stock is stored in shop for sale. The stock and machinery usually lie in the godown. What was the purpose of insuring stock and machinery if they were not in godown has not been made to understand by the counsel of OP/United India Insurance Company. The submission of counsel for OP is that it closed the claim of the complainant on the ground that vide Ex.R-20, shop and godown are not one unit. No separate municipal numbers are allotted to the shop and godown as proved by the OP/United India Insurance Company on the record in this case to prove its separate identity from the shop. Generally, the stock and machinery lie in the main part of the shop, which is called godown and only refind material is placed in the shop for sale purposes to the customers. Even from the Standard Fire Policy on the record, we find that stock of the godown, raw material, ruing machine and other similar type of goods were stored at property, which is situated at Old Anaj Mandi, Ropar of the complainant. There is not specific mention of shop in it, the United India Insurance Company/OP has closed the case of the complainant on wrong premises. The insurance company receives the premium and thereafter proceeds to repudiate the claim on one flimsy pretext or the other. 

11.              Undoubtedly, the documents on the record, as discussed above, has proved that complainant purchased material of stock from different dealers yet it is for the complainant to prove as to what was the actual loss suffered by him of the stock and machinery in this fire. On this point, there is bald affidavit of the complainant with no other cogent evidence to support it. The report of the surveyor Ex.R-13 coupled with affidavit Ex.C-12 has proved this fact that the loss caused to the complainant was of Rs.1,07,050/-out of which after adjusting the loss, the net loss was found to be Rs.81,614/-. Even surveyor has proved the factum of loss of the stock to the complainant, vide his affidavit Ex.R-12 and his report Ex.R-13 on the record. The complainant failed to rebut the report of the surveyor with regard to quantum of the loss on the file. Resultantly, findings of the District Forum, holding that complainant is entitled to recover the amount of compensation of Rs.81614/- along with interest @ 9% per annum from 22.09.2009 till actual payment from OP/United India Insurance Company for the loss of his stock in the fire, are sustainable in this appeal. There is no loss caused to State Bank of Patiala/OP No.2, who only got the stock insured on behalf of the complainant. On the point of enhancement of compensation in First Appeal No.474 of 2011,  there is no material evidence adduced on record by the complainant that it sustained loss more than that actually assessed by the surveyor, vide his report Ex.R-13 on the record. The findings of the District Forum under challenge in this case are thus unassailable in this appeal in our view.

12               As a result of our above discussion, there is no merit in both appeals i.e the "First Appeal No.300 of 2011 in case titled as United India Insurance Company   Vs. Meenu Rui Machine and another and First Appeal No.474 of 2011 in case titled as Meenu Ruing Machine  Vs.  United India Insurance Company" and both of them stand dismissed accordingly.

13               The appellant had deposited an amount of Rs.25,000/- in First Appeal No.300 of 2011 at the time of filing the appeal. This amount with interest, if any, accrued thereon, be refunded by the registry to the respondent/complainant by way of crossed cheque/demand draft after 45 days from receipt of copy of this order. Remaining amount as per order of the District Forum shall be paid by the appellant to respondent/complainant with 45 days from receipt of copy of this order.

14               Arguments in this appeal were heard on 06.02.2015 and the order was reserved. Now the order be communicated to the parties.

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

16                Copy of this order be placed in FA No.474 of 2011.

 

 

                                                                          (J. S. KLAR)

                                                             PRESIDING JUDICIAL MEMBER

                       

                                                                   (VINOD KUMAR GUPTA)

                                                                          MEMBER

 

February, 10   2015.                                                                

(ravi)