Per Shri P.N. Kashalkar – Hon’ble Presiding Judicial Member:
(1) This is an appeal filed by the Oriental Insurance Company Ltd. against the judgement and award passed by the District Consumer Disputes Redressal Forum, Nashik in Consumer Complaint No.125/2005 dated 27.02.2006. By allowing the complaint partly the District Forum directed the Insurance Company to pay an amount of `1,74,364/- towards the insurance claim preferred by the Complainant along with interest @ 9% per annum from the date of filing of complaint and also directed to pay to the Complainant a sum of `10,000/- for mental harassment and `500/-towards cost. Aggrieved by this order the original Opponent No.1 has filed this appeal.
(2) The facts lie in narrow compass. The Complainant/Respondent No.1 herein is a partnership firm. It had a shop at Pune Road, Near Dwarka Hotel while workshop/Godown at Pakhal Road, Nashik. According to Complainant, it had taken financial assistance from The Nashik Merchant Co-operative Bank Ltd. and it had purchased the policy from The Oriental Insurance Company Ltd. with insurance cover of `2,00,000/-. Policy period was 21.12.2004 to 20.12.2005. It so happened that, on 11.01.2005 at 03.30 p.m. fire took place at its workshop/godown and everything was gutted in fire. The Complainant Company lodged police complaint and the loss was intimated to the Insurance Company. Insurance Company appointed surveyor but Insurance Company repudiated the claim by sending letter dated 31.03.2005. Aggrieved by the repudiation of claim the Complainant Company filed consumer complaint claiming amount of compensation towards insurance claim and also claimed `1,00,000/- towards financial loss, `50,000/- towards compensation for mental harassment besides it also claimed costs of the proceeding. They have filed affidavit and documents in support of their claim.
(3) Opponent No.1 – The Oriental Insurance Company Ltd., filed written version and admitted that the Complainants had taken policy for shop premises - M/s.Arun Cushion Makers, Near Dwarka Hotel, Pune Road, Nashik. Thus the Complainants had not taken insurance cover for their shop-cum-godown situated at Pakhal Road, Nashik. According to Insurance Company the Pakhal Road, Nashik. premises was a godown known as M/s.Arun Cushion Makers. Insurance Company pleaded that Complainant firm had never taken insurance cover for its godown-cum-workshop situated at Pakhal Road, Nashik and therefore, they had rightly repudiated the fire claim lodged by the Complainant. They asserted that they were not guilty of deficiency in service and prayed for dismissal of the complaint.
(4) The District Forum, considering the documents and affidavits placed on record was pleased to hold that the Appellant Insurance Company was guilty of deficiency in service, allowed the complaint and directed Appellant Insurance Company to pay compensation of `1,74,364/- together with interest @9% per annum from the date of filing of the complaint towards insurance claim, `10,000/- towards mental harassment, `500/- as cost. Aggrieved by this order Insurance Company has filed this appeal.
(5) We heard submissions of Advocate Mr.A.S. Vidharthi for the Appellant Insurance Company and Advocate Ms.Smita Gaidhane, Advocate for the Respondent No.1 and Mr.S.C. Surana, Advocate for the Respondent No.2.
(6) We are finding that the policy taken by the Respondent No.1 from the Appellant Insurance Company mentions the address of the premises as “M/s.Arun Cushion Makers, Near Dwarka Hotel, Pune Road, Nasik”. The Insurance was taken for the period 21.12.2004 to 20.12.2005. Sum assured for fire and allied perils was `2,00,000/-. There is survey report on record. Survey report clearly mentions that loss occurred at the workshop of Arun Cushion Makers situated at Pakhal Road, Nashik. Loss occurred within the period of policy. Fire occurred at the different place from that mentioned in the policy. The fire was accidental and fortuitous and the loss assessed was `2,48,983/-. In survey report, it was clearly mentioned that in policy, address given is ‘Near Dwarka Hotel, Pune Road, Nashik’. On the above address insured’s shop is located and this shop was not affected by fire. Its workshop is situated at “Pakhal Road, Nashik”, where the fire occurred. Surveyor prepared sketch map (attached to the survey report) to explain the situation, how the workshop “Arun Cushion Makers” situated at Near Dawarka Hotel, Pune Road, Nashik, is different from the shop of M/s “Arun Cushion Makers” situated at Dwarka Circle, Pakhal Road, Nashik. Surveyor also filed affidavit in support of Opponent Insurance Company. So relying on Surveyor’s affidavit, relying on the address mentioned in the policy of “Arun Cushion Makers” we have no iota of doubt in holding that the District Forum clearly erred in law in allowing the complaint against the Insurance Company, the Appellant herein, when the insured took insurance cover for “Arun Cushion Makers” as Near Dwarka Hotel, Pune Road, Nashik, which was not at all affected by fire, but, what was affected by fire was “Arun Cushion Makers”, Near Dwarka Circle, Pakhal Road, Nashik. The Complainant had taken Shopkeeper’s Insurance Policy, whereas, loss occurred due to fire at Complainant’s Workshop situated at Pakhal Road, Nashik. Surveyor had clearly mentioned in his affidavit and his Survey Report that there was no fire at the shop of “Arun Cushion Makers, at Pune Road, Near Dwarka Hotel, Nashik, which is the address mentioned of the Insured shop when they purchased Shopkeeper’s Insurance Policy. Mr.Vidyarthi, Advocate for the Appellant rightly submitted that the Complainant had taken Shop Registration Certificate under Bombay Shops and Establishment Act for two premises separately. One was “M/s. Arun Cushion Makers Workshop, Pakhal Road, Devmani Naka, Near Shetkari Sangh, Nashik. So, this was quite different establishment than the shop of “Arun Cusion Makers” which is situated at Devmani Naka, Opp. Dwarka, Nashik. So, this was the shop and it is this shop which was insured under the Policy issued by the Appellant Insurance Company and Workshop of Arun Cushio0n Makers was not at all insured by the Appellant Insurance Company and it was workshop which was gutted in fire which broke out on 11.01.2005 at 03.30 p.m. So, Appellant Insurance Company rightly repudiated the claim lodged by the Respondent No.1 since policy purchased by the Respondent No.1 was in respect of his shop situated at Dwarka Circle, Pune Road, Nashik, whereas the loss occurred due to fire was at its workshop situated at Pakhal Rod, Devlali Naka, Near Shetkari Sangh, Nashik. In this view of the matter, we are finding that the judgement and award passed by the District Forum in Consumer Complaint No.125/2005 is bad in law, it is liable to be quashed and set aside and complaint will have to be dismissed hence, we pass the following order:
O R D E R
(i) Appeal is allowed.
(ii) Judgement and award passed by the District Forum in Consumer Complainant No.125/2005 is quashed and set aside. In the result, consumer complaint stands dismissed.
(iii) Amount deposited by the Appellant, if any, while obtaining stay shall be refunded to the Appellant.
(iv) No order as to costs.
(v) Inform the parties accordingly.
Pronounced on 24th July, 2012.
