RESERVED

         STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

                                   UTTAR PRADESH, LUCKNOW

                                    Complaint Case No. 02/SC/2014

M/S. Al-Ismail Traders

situated at New Kamela

Opposite Gazi Falaeam Hospital

Ashiyana Colony, Hapur Road

Meerut 

Through its Proprietor Mohd. Sarfraj

S/o Mohd. Haneef

                                                                                          .....Complainant

                                                        Versus

National Insurance Company Limited

Branch Office situated at

IInd Floor, Vardhman Plaza Garh Road

(Opposite Vaishali Colony)

Meerut

Through its Branch Manager

                                                                                          .....Opposite Party

BEFORE

Hon'ble Mr. Justice Virendra Singh, President

Hon’ble Mr. R C Chaudhary, Member

Hon'ble Smt. Bal Kumari, Member

For the Complainant        :  Sri Sarvesh Kumar Sharma, Advocate.

For the Opposite Party     :  None appears 

Dated : 30-09-2014

                                            JUDGMENT

PER MR. JUSTICE VIRENDRA SINGH, PRESIDENT

The complainant M/s. Al-Ismail Traders, Meerut has filed this complaint under Section 17 of the Consumer Protection Act, 1986 against the National Insurance Company Limited with the following prayers:-

1.

2.

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caused to the complainant.

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9.

The facts of the complaint case are that M/s. Al-Ismail Traders the complainant is a proprietorship firm and engaged in the business of leather. Mohd. Sarfraj the proprietor of the firm is earning his livelihood by virtue of self employment and in order to safeguard the stock/products the opposite party National Insurance Company Limited contacted the complainant and demonstrated themselves to be a pioneer in the field of the insurance sector and insisted the complainant to opt for the policy. On persuasion of the opposite party the complainant opted to purchase the insurance policy and the entire business and purpose of insurance was duly communicated to the opposite party and its agents. The opposite parties deputed their engineers to visit the premises of the complainant where the stocks were kept and after satisfying themselves regarding the feasibility of the coverage of insurance and after verifying the stocks which were to be insured calculated the premium and thereafter the complainant was informed about the premium to be paid. The report of the engineer was never provided to the complainant. The Insurance Company issued a Policy effective from 24-10-2012 to 23-10-2013 covering the risk to the tune of Rs.35,00,000/-. The items which were insured by the opposite party were leather,

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finished goods, raw materials and allied goods etc. The complainant was only provided the policy schedule but no terms and conditions or exclusion clauses were communicated to the complainant.

The complainant is also having a cash credit account with the Bank of India and the bank alongwith the insurance company under the corporate agency arrangement got covered the risk under the policy and accordingly the policy schedule bears the name of the financier. The opposite party also inspected the entire documents pertaining to position of stock in accordance with the loan sanctioned by the bank prior to issuing policy. The opposite party issued the policy only after satisfying themselves with the availability of stock and the premises and after obtaining the feasibility report from its engineer.

Unfortunately the premises of the complainant where the entire insured stock was kept was demolished by the Assistant Commissioner of Nagar Nigam with the help of bulldozer and JCB machine and the entire stock of the complainant was gutted Since the complainant was never informed prior to demolition hence the entire stock was damaged. The complainant was left bare hand and came on the verge of starvation alongwith his family members as the complainant is burdened with the finance of the bank and on the other hand his business of leather was ruined by the Nagar Nigam. The complainant lodged claim with the opposite party and the entire documentary evidences for indemnification of loss including the statement of stock given by the bank have also been submitted. No demand was made by the opposite party of any papers. The opposite party in a most illegal and arbitrary manner by virtue of letter dated 26-08-2013 decided the claim of the complainant as No Claim. The complainant by virtue of letter of protest dated 24-10-2013 demanded the reason for No Claim by the opposite party but no reply was given by the opposite party till date. The complainant alleged that repudiation of claim is wholly unjust and deserves to be quashed. The unilateral act of the opposite party is highly unconstitutional and is against the principle of Natural Justice.

Sri Sarvesh Kumar Sharma, learned Counsel for the complainant has been heard. No one appeared on behalf of the opposite party despite registered notice sent to opposite party which did not return unserved, therefore, the complaint case has

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been heard exparte.

The learned Counsel for the complainant has filed the affidavit of Sri Mohd. Sarfraj the proprietor of the firm as evidence who verifies the facts of the complaint case as well as annexures filed with the complaint. Annexure no.1 is the photocpy of the policy schedule, Annexure no.2 is the photocopies of the statement of account given by the bank, Annexure no.3 is the photocopy of the letter of repudiation dated 26-08-2013, Annexure No.4 is the photocopy of letter dated 24-10-2013 of the complainant, and Annexure no.5 is the photocopy of evidences submitted with the insurance company.

The arguments of the learned Counsel for the complainant are that prima facie case of deficiency in service is evident from the fact that the opposite party has repudiated the claim of the complainant in a routine and fanciful manner without application of mind in complete contravention of the principle of law laid down by the Hon'ble Supreme Court in Life Insurance Corporation Limited V/s Asha Goel (Smt.) and another reported in (2001) 2 SCC Page 160 in which it has been held that the repudiation should be done after due application of mind.He further argued that the complainant purchased the policy of insurance effective from 24-10-2012 to 23-10-2013 and risk of Rs.35,00,000/- was covered and the policy was issued after inspection of the stock and appropriately premium was fixed and was paid to the opposite party. Unfortunately the premises of the complainant where the entire stock was kept was demolished by the Assistant Commissioner of Nagar Nigam and no prior information was accorded by the Nagar Nigam to the complainant. It has further been argued by the learned Counsel for the complainant that the opposite party in most illegal and arbitrary manner and without prior notice to the complainant repudiated the claim. The repudiation is non speaking, lacks application of mind and is wholly illegal and arbitrary. The complainant made protest to this illegal act of the opposite party and also demanded the reason for treating the claim as No Claim by the opposite party put the same was left unreplied. Learned Counsel for the complainant has further argued that the opposite party is liable for deficiency in service as well as unfair trade practice in treating the claim of the complainant as No Claim and prays for allow the complaint case of the complainant with cost and special cost throughout.

In the light of the pleadings, contentions and evidence furnished by the complainant on record, we have gone through the entire facts and circumstances on

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record and we are of this view that despite the fact that the complaint is being heard exparte and there is no pleading on record on behalf of the opposite party being the opposite party absent, we are of this view that this complaint is worth dismissal being the occurrence alleged in the complaint not covered by the policy of insurance. The policy of insurance which is on record covers the building, stock with effect from 24-10-2012 to midnight of 23-10-2013 for the risk described by earthquake (fire and shock). The demolition of premises of the complainant by Assistant Commissioner of Nagar Nigam either without prior information or with information is no where covered in the policy bond filed by the complainant as annexure no.1 annexed with the complaint. Such type of demolition, which may be either by way of encroachment or any other state of the premises valid or invalid under rules and regulations of Nagar Nigam cannot be said an occurrence subject to earthquake (fire and shock), the clause for insurance attached with the insurance policy. Since the very basis of the insurance is not established on record, the complainant is not entitled to get any relief and the repudiation of the claim of the complainant by the Insurance Company cannot be held in contravention of the principle of law or the condition of the insurance. Hence the complaint deserves to be dismissed.

                                          ORDER

The aforesaid complaint is hereby dismissed.

                                                      ( JUSTICE VIRENDRA SINGH )

                                                                                      PRESIDENT

                                                 ( R C CHAUDHARY )

                                                                  MEMBER

                                                         ( BAL KUMARI )

                                                                   MEMBER