DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-I, LUCKNOW
CASE No.291 of 2009
Sri Ashish Sharma, aged about 27 yrs.,
S/o Sri Ashok Kumar Sharma,
R/o 76, Katari Tola, Thana-Chowk,
Lucknow.
Proprietor Sharma Communications,
L.G.F.-28, K.D.T. Plaza,
Ram Ram Bank Chauraha,
Aliganj, Lucknow.
……Complainant
Versus
- New India Insurance Co.,
Branch Lalbagh.
Through Senior Manager.
- Central Bank of India,
Chowk Branch, Lucknow.
Through Senior Manager.
.......Opp. Parties
Present:-
Sri Vijai Varma, President.
Smt. Anju Awasthy, Member.
Sri Rajarshi Shukla, Member.
JUDGMENT
This complaint is filed by the Complainant against the OPs for payment of claim of Rs.1,48,981.00, rent of shop of Rs.4,800.00, electric charges of Rs.3,000.00, interest of bank loan of Rs.22,000.00 from OP No.1 and compensation of mental harassment of Rs.25,000.00, Counsel fees of Rs.7,500.00 and cost of litigation of Rs.750.00 from OPs.
The case in brief of the Complainant is that he is proprietor of shop No. LGF-28, KDT Plaza, Ram Ram Bank Chauraha, Aliganj, Lucknow. He had also a branch of the shop at LGF-27, Shree Plaza, Ram Ram Chauraha, Aliganj, Lucknow which was closed on November, 2008 and on the basis of the mortgaging stock in both the shops the cost of
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which was Rs.2,50,000.00 CC limit was taken from OP No.2 bank. The banker of Complainant had insured the stock of both the shops against theft and fire from OP No.1 for a sum of Rs.2,50,000.00. A theft was committed in the shop at LGF 27, Shiva Plaza, Ram Ram Churaha, Aliganj, Lucknow in the night of 23.01.2008 and the information was given to the Complainant on 24.01.2008. The Complainant got an FIR registered in the local police station and also informed OP No.1 about it. The OP No.1 sent his surveyor on 25.01.2008 and the surveyor vide letter dated 12.02.2008 demanded certain documents from the Complainant which were made available to him by the Complainant on 20.02.2008. The OP No.1 had demanded the acceptance of final report by the Court but as the final report had not been accepted till then, hence the copy of the final report could not be supplied to OP No.1. The OP No.1 vide letter dated 15.07.2008 informed the Complainant that the shop LGF 27, Shiva Plaza, Ram Ram Churaha, Aliganj, Lucknow was not covered under the insurance, therefore the matter may be clarified by the Complainant. The fact is that the aforesaid policy was got done by the bank and the bank through its letter 28.08.2008 clarified that the stock contained in shop No. LGF-28, KDT Plaza, Ram Ram Bank Chauraha, Aliganj, Lucknow and LGF 27, Shiva Plaza, Ram Ram Churaha, Aliganj, Lucknow were covered under the policy and through letter dated 29.03.2007, the bank had sent letter to the insurance Co. for making correction in the policy document as only one shop is mentioned in the aforesaid policy. The OP No.2 is the corporate agent of OP No.1. The OP No.1 repudiated the claim of the Complainant on two grounds firstly that the shop LGF 27, Shiva Plaza, Ram Ram Churaha, Aliganj, Lucknow is not covered under the insurance policy and secondly the copy of the FR is not supplied to the insurance Co. The Complainant sent a letter
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dated 07.10.2008 to OP No.1 for making payment of the claim but as payment of the claim was not made, hence this complaint.
The OP No.1 has filed the WS wherein it is mainly submitted that the Complainant has a shop at the address LGF-28 KDT Plaza Ram Ram Chauraha Aliganj Lucknow as the same shop has been insured by the answering OP. The Complainant never disclosed earlier that he had another shop. The claim of the Complainant could not be indemnified because the shop situated at LGF-27 Shiva Plaza Ram Ram Bank Chauraha Aliganj Lucknow is the distinct shop which was never insured by the answering OP. The Complainant has failed in establishing the prima facie case. Neither the balance of convenience is in his favour nor he has suffered irreparable loss. The Complainant is not entitled for any relief claimed. After a long persuasive request of the Complainant, the answering OP insured his only shop M/s Sharma communications LGF-28 KDT Plaza Ram Ram Bank Chauraha Aliganj Lucknow. Perusal of the policy reveals that only one shop existing at the above said address was insured and the insurance premium was also paid against the said shop. Now the Complainant has created the false story of both the shops being insured under a conspiracious strategy just to extract money from the insurance Co., that is why the Complainant has not filed the copy of the policy. Vide two letters dated 15.07.2008 and 14.08.2008 the answering OP communicated the Complainant that the shop affected by the theft was not covered under the above said policy. The liability arising out of the insurance policy is purely of the contractual nature. The Complainant cannot rest his claim about the shop which is not covered under the insurance policy. The Complainant has not disclosed the policy number or other material particulars pertaining to the insurance of the actually insured shop. The complaint is liable to be dismissed with cost.
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The OP No.2 has filed the WS wherein it is mainly submitted that the answering OP had already informed to the OP No.1 that the hypothecated stocks are kept in both the premises and both should be covered under the policy. In this regard, the bank had given a stock statement to the OP No.1 and also written a letter dated 29.03.2007 to the OP No.1 and hence only the OP No.1 is liable for this fault not the OP No.2. No cause of action accrued to the Complainant against the OP No.2 as he has not committed any fault. The complaint deserves to be dismissed with costs.
The Complainant has filed objection against the WS of OP No.1.
The Complainant has filed his affidavit and 8 annexures with the complaint. The Complainant has also filed written arguments. The OP No.1 has filed the affidavit of Farman Raza, Regional Manager, New India Assurance Co. Ltd. with 5 annexures and 4 anneuxres with the WS. The OP No.1 has filed the written arguments with 5 annexures. The OP No.2 has filed 2 papers with the WS.
Heard Counsel for the Complainant and OP No.1. Perused the entire record.
In this case, it is the stand of OP No.1 that the shop LGF 27, Shiva Plaza, Ram Ram Churaha, Aliganj, Lucknow is not covered under the insurance policy whereas the stand of the Complainant is that the stock of shop LGF 27, Shiva Plaza, Ram Ram Churaha, Aliganj, Lucknow is also covered under the policy and the OP No.2 which had got the insurance done had made this point clear as is evident from the letter dated 29.03.2007 written by Manager of OP No.2 to OP No.1 wherein it is clearly mentioned that they have allowed the credit limit of Rs.2.00 lakhs to M/s Sharma Communications. LGF-28, KDT Plaza, Ram Ram Bank Chauraha, Aliganj, Lucknow having their branch at LGF 27, Shiva Plaza, Ram Ram Churaha, Aliganj, Lucknow and that they have taken the
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policy to cover up the risk of fire and theft of Rs.2,50,000.00. It is also mentioned that the hypothecated stock in favour of bank was permitted to be kept in both the premises i.e. LGF-28, KDT Plaza, Ram Ram Bank Chauraha, Aliganj, Lucknow and the branch at LGF 27, Shiva Plaza, Ram Ram Churaha, Aliganj, Lucknow to the tune of Rs.2,50,000.00 and hence the stock kept at LGF 27, Shiva Plaza, Ram Ram Churaha, Aliganj, Lucknow was covered under the aforesaid policy. From the aforesaid letter of OP No.2 it is abundantly clear that the policy was got done by them regarding the stock contained in the premises LGF-28, KDT Plaza, Ram Ram Bank Chauraha, Aliganj, Lucknow and LGF 27, Shiva Plaza, Ram Ram Churaha, Aliganj, Lucknow and it is OP No.2 who had got insurance done for the stocks for covering up the risk of fire and theft of Rs.2,50,000.00. Obviously, there is no merit in the argument advanced by the learned Counsel for the OP No.1 that policy covered only the stock contained in LGF-28, KDT Plaza, Ram Ram Bank Chauraha, Aliganj, Lucknow as is evident from the aforesaid policy. Therefore, we come to the conclusion that the stock contained in LGF 27, Shiva Plaza, Ram Ram Churaha, Aliganj, Lucknow was also covered under the policy taken by OP No.2 from OP No.1.
The OP No.1 has taken the objection that the cause of action has not arisen in this claim petition as according to the OP No.1 the Complainant had not supplied the copy of the FR accepted by the Court concerned. It is clear from the averments made in the complaint itself that the OP No.1 had repudiated the policy on one of the grounds of not supplying copy of the acceptance of FR by the Complainant to OP No.1 but sadly the Complainant does not appear to have complied that requirement under the rules for the claim of the policy to be allowed. The Complainant should have given the copy of the FR to the OP No.1 so that they could have processed the claim but as mentioned above there does not appear to be the
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compliance of this requirement of providing copy of the accepted FR by the Court concerned to OP No.1, therefore the OP No.1 were well within their rights to repudiate the claim of the Complainant on this requirement not being fulfilled by the Complainant, hence there does not appear to be any deficiency in service on the part of the OP No.1 in repudiating the claim. Therefore, there is substance in the argument advanced by the learned Counsel for the OP that there is premature cause of action against OP No.1 as the requirement of supplying the copy of accepted FR was not given to the OP No.1. In case the Complainant submits the copy of the accepted FR by the Court concerned to the OP No.1 then the OP No.1 will be at liberty to reexamine the claim of the Complainant and pass appropriate orders for the settlement of the claim but presently there does not appear to be any deficiency in service, therefore this complaint deserves to be dismissed.
ORDER
The complaint is dismissed.
The parties to bear their own costs.
(Rajarshi Shukla) (Anju Awasthy) (Vijai Varma)
Member Member President
Dated: 18 November, 2015
