Madhya Pradesh

StateCommission

A/19/1617

UNIVERSAL S0MPO GIC. - Complainant(s)

Versus

M/S GALAV MOBILE POINT - Opp.Party(s)

SH.AMIT TIWARI

10 Jul 2024

ORDER

M. P. STATE  CONSUMER  DISPUTES  REDRESSAL  COMMISSION,                         

PLOT NO.76, ARERA HILLS, BHOPAL

 

FIRST APPEAL NO. 1617 OF 2019

(Arising out of order dated 25.07.2019 passed in C.C.No.572/2017 by District Commission, Gwalior)

 

UNIVERSAL SOMPO GENERAL

INSURANCE CO.LTD. (CLAIM)

PARYAWAS BHAWAN, FIRST FLOOR,

BLOCK NO.4, ARERA HILLS, JAIL ROAD,

BHOPAL (M.P.)                                                                                             … APPELLANT.

 

                  Versus

 

1. M/S GALAV MOBILE POINT,

    UNIVERSITY ROAD, GOVINDPURI, GWALIOR,

    C/O PROPRIETOR DAMODAR PRASAD SHARMA,

    S/O SHRI GOKUL PRASAD SHARMA,

    R/O NEAR 18 ROHIT NAGAR, SURESH NAGAR,

    THATIPUR, GWALIOR (M.P.)

 

2. A.G.M. ALLAHABAD BANK,

    FIRST FLOOR, M.P.HOUSING BOARD COMPLEX,

    C-BLOCK, GAUTAM NAGAR, BHOPAL.

 

3. BRANCH MANAGER, ALLAHABAD BANK,

    15, TAGORE NAGAR, JIWAJI UNIVERSITY ROAD,

    CITY CENTRE, GWALIOR (M.P.)                                                           …. RESPONDENTS.

 

BEFORE :

            HON’BLE SHRI A. K. TIWARI                : ACTING PRESIDENT

            HON’BLE DR. SRIKANT PANDEY        :          MEMBER

                                   

COUNSEL FOR PARTIES :

                Shri Amit Tiwari, learned counsel for the appellant.

           Shri Ajay Pandey, learned counsel for the respondent no.1 and 2.

           Shri Girish Sharma, learned counsel for the respondent no.3.

 

O R D E R

(Passed On 10.07.2024)

         The following order of the Commission was delivered by A. K. Tiwari, Acting President:

           Being aggrieved by the order dated 25.07.2019 passed by the District Consumer Disputes Redressal Commission, Gwalior (for short

-2-

‘District Commission) in C.C.No.572/2017 whereby the complaint filed by complainant/respondent no.1 has been allowed, the opposite party no.3-insurance company has filed this appeal.

2.                The facts of the case as narrated by the complainant/appellant (hereinafter referred to as ‘complainant’) are that he is a proprietor of M/S Galav Mobile Point dealing in business of sale & repairing of mobile, stationery and photocopy by which he is earning Rs.20,000/- for earning his livelihood by means of self-employment. The goods kept in his shop and furniture were hypothecated with the opposite party no.1 and 2/respondent no.2 and 3-bank. For the security of goods kept in his shop he took shopkeeper’s insurance policy from the opposite party no.3/appellant-insurance company for the period w.e.f. 13.01.2015 to 12.01.2016. During intervening night of 06.01.2016 and 07.01.2016 fire broke out in his shop due to short-circuit due to which goods kept in his shopt such as mobile, stationery, repairing mobile, tools for mobile repairing, photocopy machine, computer, printers got damaged.  FIR was lodged with the police station-University, Gwalior and the insurance company was informed. According to him he sustained loss of Rs.8,00,000/-. The insurance company appointed Surveyor who assessed the loss to the extent of Rs.1,60,383/- against which he approached Ombudsman who increased the said sum to the extent of Rs.3,10,383/-

-3-

but that is also on lower side.  The complainant therefore alleging deficiency in service on part of the bank and the insurance company approached the District Commission seeking relief of Rs.8,00,000/- with costs of Rs.2,00,000/- along with interest @ 12% p.a.

3.                The opposite party no.1 and 2 bank in their reply before the District Commission submitted that on receiving information from the complainant, the bank informed the insurance company. The banking Ombudsman had already decided the claim of the complainant on 20.03.2017. There has been no deficiency in service on part of the opposite party no.1 and 2-bank. It is thus prayed that the complaint be dismissed against them.

4.                The opposite party no.3-insurance company resisted the complaint raising preliminary objection that the complainant in his complaint has stated that he is involved in business and therefore the complaint is not maintainable before the District Commission and deserves to be dismissed. The claim as assessed by the surveyor was increased by the Banking Ombudsman for Rs.3,10,383/- which had already been received by the complainant and therefore the complaint deserves to be dismissed. As per insurance policy the risk for mobile, simcards, and computer was covered under the policy for a sum of Rs.6,00,000/- and for a furniture risk was covered to the extent of Rs.1,00,000/- thus total risk

-4-

was covered for fire to the extent of Rs.7,00,000/-.  There has been no deficiency in service on part of the insurance company. It is therefore prayed that the complaint be dismissed.

5.                The District Commission while allowing the complaint allowed compensation to the extent of Rs.5,50,000/- and directed the insurance company to pay to the complainant remaining amount of Rs.2,29,617/- after adjusting the amount of Rs.3,10,383/- already paid, within a period of 30 days failing which the amount shall carry interest @ 8% p.a. Compensation of Rs.2,000/- is also awarded. Hence, this appeal by the insurance company for setting aside the impugned order.

6.                Heard. Perused the record.

7.                Learned counsel for the opposite party no.3/appellant-insurance company argued that it is an admitted fact that the complainant had already received the amount of Rs.3,10,383/- as awarded by the Banking Ombudsman and therefore he is not entitled to file a compliant on the same ground before the District Commission. The fire broke out on 06.01.2016 and the complaint filed on 23.01.2018 is beyond the prescribed period of limitation of two years and therefore the impugned order is liable to be quashed on this ground also. He argued that the District Commission failed to appreciate the documents filed on record and

 

-5-

merely relying on the contentions of the complainant allowed the complaint.

7.                Learned counsel for the complainant/respondent no.1 argued that the District Commission after appreciating the facts and circumstances of the case has rightly allowed the complaint to the extent of Rs.5,50,000/-. He prayed for dismissal of appeal.

8.                Learned counsel for the opposite party no.1 and 2/respondent no.2 and 3-bank argued that hypothecated goods kept in shop were insured with the insurance company. On receipt of intimation from the complainant about loss due to fire, the bank timely intimated the insurance company. It is a dispute between the complainant and the insurance company regarding value of loss caused, the bank has nothing to do in this regard.

9.                The complainant has filed his affidavit along with documents C-1 to C-16 as per list. The opposite party no.1 and 2-bank has filed affidavit of Sunil Kumar Agrawal, Senior Branch Manager along with document R-1. On behalf of the opposite party no.3-insurance company an affidavit of Shri Pushpendra Kumar Mishra, Branch Manager along with documents R-1 to R-4 has been filed.

10.              Having heard learned counsel for the parties and having gone through the record as also the impugned order, we find that it is an

-6-

admitted fact that the complainant took shopkeepers package policy from the insurance company in his name Damodar Prasad Sharma in the individual capacity whereas he has filed complaint in the name of firm M/S Galav Mobile Point which prima facie appears to be not maintainable.

11.              Admittedly fire broke out in the complainant’s shop in the intervening night of 06.01.2016-07.01.2016 due to short circuit for which he made a claim to the insurance company. The surveyor appointed by the insurance company assessed the loss to the extent of Rs.1,60,383/-(R-1). Against the said assessment, the complainant approached the Banking Ombudsman and the Banking Ombudsman passed the award dated 20.03.2017 (C-15) directing the insurance company to pay claim amount of Rs.3,10,383/- i.e. increased the amount as assessed by the surveyor by Rs.1,50,000/- which has already been received by the complainant in full and final settlement which is evident from R-4. Once the complainant has received the amount in full and final settlement how can he claim for enhancement more particularly after the award passed by the Banking Ombudsman how can he approached the District Commission. He tried to get benefits from all ends.  

12.              The complainant’s claim is that he suffered loss to the extent of Rs.8,00,000/- in the said incident. In support of his claim he relied upon panchnama, stock statement. C-3 is the policy in which the risk covered

-7-

under Fire & Allied Perils, Building and/or contents to the extent of Rs.7 lacs on the other hand the complainant is claiming Rs.8 lacs. C-5 is stock statement for the month of August, November-2015 and December-2015. In the stock statement of August for Rs.6,88,000/-, there is no mention that it is of which year as also no date was given neither by the bank nor by the complainant.  Similarly in the stock statement of November-2015 for Rs.6,28,000/- there is no date. In the stock statement of December-2015 date was shown as 07.01.2016 i.e. just after the incident which was tried to make 01.01.2016 by overwriting. It is also to be made clear that there is no seal and signature of the bank, also there is no signature of the complainant. 

13.              It is pertinent to mention here that the stock statements were shown regarding amount and quantity. There is no specific mention about quantity of stock at the start of the month, how much sold and how much remaining at the end of the month. Thus having discrepancies, the stock statements cannot be termed as concrete proof of loss. The District Commission has grossly erred on relying those statements.

14.              The complainant has filed C-13 20.09.2016 the letter addressed to him by the bank to furnish information to the insurance company regarding claim. C-14 is letter dated 02.09.2016 addressed to the insurance company by the bank questioning the insurance company

-8-

the basis on which claim was settled on lower side against the bank statement. The bank is not supposed to write such letter and what the bank’s interest in the matter.

15.              C-7 is panchnama signed by the complainant himself that he suffered loss to the extent of Rs.8 lac. Here it is to mention that panchnama has no proof to establish loss. R-1/1 is an hypothecation agreement executed between the complainant and the bank. On going through the same we find that the signatures put by the complainant on the said agreement differs from the signatures put on the complaint, affidavit and other documents. This makes the claim suspicious.

16.              In view of the discussion we find that the complainant failed to prove the loss to the extent of Rs.8 lacs more particularly when the insurance risk covered under fire perils to the extent of Rs.7 lacs. In our considered opinion, the complainant has been adequately compensated by the award of Banking Ombudsman to the extent of Rs.3,10,383/- which had already been paid by the insurance company.

17.              For the foregoing discussion we find that the District Commission has erroneously allowed the complaint which is liable to be dismissed on the aforesaid grounds firstly, the insurance is in individual capacity whereas the complaint filed by the firm, secondly, after the award of banking ombudsman and receiving the amount in full and final

-9-

settlement of claim, the complainant approached the consumer Commission and thirdly the complainant failed to prove extent of loss by way of any cogent evidence as the documents filed appears suspicious. 18.                 In such circumstances, in our considered view, the impugned order cannot be sustained. It is hereby set-aside. Consequently, the complaint is dismissed.

19.              In the result, this appeal fails and is hereby dismissed. No order as to costs. 

 

               (A. K. Tiwari)                  (Dr. Srikant Pandey)  

            Acting President                          Member