BEFORE THE DISTRICT FORUM: KURNOOL
Present: Sri. T.Sundara Ramaiah, B.Com B.L., President
And
Sri. M.Krishna Reddy, M.Sc., M.Phil., Male Member
And
Smt. S.Nazeerunnisa, B.A., B.L., Lady Member
Wednesday the 23rd day of November, 2011
C.C.No.54/2011
BETWEEN:
Shaik Wahid Hussain, S/o Shaik Rafiq Ahmed,
H.No.23/90A, Moghalpura Street, Kurnool - 518 001.
.…Complainant
-Vs-
1. National Insurance Company Limited,Represented by its Divisional Manager,
First Floor, 40/343-A, Tula Complex, Gandhi Nagar, Kurnool - 518 001.
2. The Branch Manager, State Bank of Mysore,
D.No.7-8, King Market, Mayuri Hights, Kurnool-518 001.
…OPPOSITE PARTIES
This complaint is coming on this day for orders in the presence of Sri G.I.Ahammed, Advocate for complainant and Sri D.A.Anees Ahamed, Advocate for opposite party No.1 and Sri M.D.V.Jogaiah Sarma, Advocate for opposite party No.2 and upon perusing the material papers on record, the Forum made the following.
ORDER
(As per Sri. M.Krishna Reddy, Male Member)
C.C. No. 54/2011
1. This complaint is filed by the complainant under section 11 and 12 of C.P. Act, 1986 seeking a direction on opposite party to pay compensation of:-
(a) Rs.1,07,138/- for the lost goods;
- Rs.10,000/- for mental agony;
- Rs.5,000/- as cost of the case;
2. It is the case of the complainant that he was running a cycle spare parts shop for his livelihood at 20/2A Poola Bazar, Kurnool with a stock of cycle spare parts worth of Rs.1,47,815/- as on 02-10-2009 taking loan from opposite party No.2 (State Bank of Mysore, King Market, Kurnool). The shop was insured for Rs.1,50,500/- with opposite party No.1 for the period from 09-01-2009 to 08-01-2010. Opposite party No.2 paid premium of Rs.690/- to opposite party No.1. The shop was drowned in the flood on 02-10-2009 and the complainant incurred a loss of Rs.1,17,083/-. A surveyor who was appointed by opposite party No.1 assessed the loss to Rs.1,07,138/- in the month of October 2009. Even after receiving surveyor’s report opposite party No.1 issued a cheque only for 9,945/- on 22-03-2010 in favour of opposite party No.2. Aggrieved by the decision of opposite party No.1, the complainant filed this case before this Forum praying an order for the payment of appropriate reliefs.
3. The complainant filed sworn affidavit and documents marked as Ex.A1 to A7 in support of his case.
4. Pursuant to the notice of this Forum opposite parties filed ;their written versions. Opposite party No.1 denied his liability to the complainant’s claim. Briefly the case of opposite party No.1 is that, the complaint is of civil nature and this Forum has no jurisdiction. Even otherwise opposite party No.1 settled the claim for Rs.10,000/- on negotiation with the complainant ignoring the lapses on the part of complainant. In pursuance of agreed Bank clause opposite party No.1 issued a cheque for Rs.9,945/- in favour of opposite party No.2 deducting Rs.55/- towards reinstatement, to credit the same in the complainant’s account, which has already became a “nonperforming asset”. Further the claim of loss on stock in the shop worth of Rs.1,47,815/- on 02-10-2009 and the incurred loss worth of Rs.1,17,083/- becomes base less, unless the complainant produces proof by submitting sales and purchase invoices. Besides that the photographs submitted by the surveyor disclose that the shop is such small to imagine huge stock in it. Opposite party No.1 also refused to accept that he promised to pay Rs.1,07,138/-. According to opposite party No.1 the truth of the case is that the complainant was careless and kept his shop open on the date of flood and left without taking steps to prevent loss by closing the shutter. As per the clause 9 of the policy, the loss on account of negligence has to be born by the complainant himself. Therefore opposite party No.1 prayed that as the claim of the complainant is not tenable, the case against him may be dismissed.
5. Opposite party No.2 admitted that he financed to the complainant’s cycle spare parts shop and insured it for Rs.1,50,500/- with opposite party No.1 by paying premium of Rs.690/- for the period from 09-01-2009 to 08-01-2010. The shop was hit by the flood on 02-10-2009. However, the quantum of damage suffered at Rs.1,17,083/- and the available stock worth of Rs.30,732/- after the flood has to be established by the complainant. He was not aware of the appointment of a surveyor by opposite party No.1 and the loss assessed by surveyor at Rs.1,17,083/-. But he received a cheque for Rs.9,945/- from opposite party No.1 to credit into the loan account of the complainant, which has already became a non performing asset. As the entire stock of the complainant is hypothecated to opposite party No.2, according to the agreed bank clause any relief that would be granted under the policy from opposite party No.1 to the complainant may be ordered to pay to opposite party No.2.
6. Sworn affidavits and documents marked as Ex.B1 to B5 are filed by opposite parties to prove their case.
7. The complainant and opposite parties filed their written arguments.
8. Now the points for consideration are:-
- Whether the complainant has made out any case against the opposite parties to prove deficiency?
- Whether the complainant is entitled for any relief?
- What is the amount of relief that can be sanctioned to the complainant?
9. POINTS 1 and 2:- Ex.B1/Ex.A6, the insurance policy for Rs.1,50,500/-, covers the risk of complainant’s shop from 09-10-2009 to 08-10-2010. Ex.B4 and Ex.B5, the surveyor report with photographs, admits that the cycle shop was insured under the policy Ex.B1 and the policy was in force on 02-10-2009. Ex.A4, monthly physical verification report prepared by opposite party No.2 for six months from 31-03-2009 to 30-09-2009. The surveyor appointed by opposite party No.1 in his report disclosed that the cycle shop is very close to Tungabhadra River and on 02-10-2009, flood water entered into the shop with heavy pressure leading to gushing out of stock, stored in the insured shop. The insured left the shop open and ran away from the shop to save his life from the approaching severe flash flood. Surveyor verified Xerox copies of purchase bills, Ex.A4 certificate by M.R.O. etc and acknowledged that the particulars are in order. Ex.A1 to Ex.A3 are notary attested copies of total stock, gushed stock and damaged balance stock. Basing on the documents placed before him, size of the shop etc., and by physical observation, the surveyor assessed the net loss to Rs.55,739.86. The surveyor report which is the back bone for the claim settlement was forgotten by opposite party No.1 and only Rs.10,000/- was paid instead of Rs.55,739.86 by issuing a cheque to opposite party No.2 for Rs.9.945/- deducting Rs.55/- towards reinstatement this can establish the dereliction on the part of opposite party No.1.
10. POINT No.3:- The complainant claimed Rs.1,07,138/- as against Rs.55,739.86, the loss assessed by the surveyor. Since the surveyor report is the crux for the complainant’s claim, Rs.55,739.86 is allowed as compensation to the gushed stock. As Rs.10,000/- was already paid to opposite party No.2 to adjust in to the complainant’s loan account, opposite party No.1 is directed to pay the balance of Rs.45,739.86. For the mental agony due to dereliction of opposite party No.1, which made the complainant to approach the Forum Rs.2,000/- is granted as compensation.
11. In the result the complaint is allowed directing opposite party No.1 to pay Rs.45,739.86 as compensation to the gushed stock, Rs.2,000/- as compensation for mental agony and Rs.500/- a the cost of the case. The complainant availed loan and hypothecated the entire stock with opposite party No.2. The loan account of the complainant became a nonperforming asset to opposite party No.2 after flood. According to the agreed bank clause of the policy any monies becoming payable under the policy, the same shall be paid by the company to the bank. So the total relief which opposite party No.1 was ordered to pay in this case under the policy shall be paid to opposite party No.2 with in one month from the date of receipt of this order to credit in to the complainant loan account.
12. In the result the complaint is partly allowed. Complainant is entitled to Rs.45,739.86 Ps. Compensation, Rs.2,000/- as compensation for mental agony and Rs.500/- as costs. The said amount shall be paid by opposite party no.1 within one month from the date of receipt of this order to the credit in complainants loan account in opposite party No.2 bank. The complaint against opposite party No.2 is dismissed.
Dictated to the stenographer, transcribed by her, corrected and pronounced by us in the open bench on this the day 23rd of November, 2011.
Sd/- Sd/- Sd/-
MALE MEMBER PRESIDENT LADY MEMBER
APPENDIX OF EVIDENCE
Witnesses Examined
For the complainant : Nil For the opposite parties : Nill
List of exhibits marked for the complainant:-
Ex.A1 Photo copy of Total Stock List dated 02-10-2009.
Ex.A2. Photo copy of Washed out in flood water stock list
dated 02-10-2009.
Ex.A3 Photo copy of List of damage balance stock list
dated 03-10-2009.
Ex.A4 Photo copy of Verified Stock Bank Certificate issued by
opposite party No.2 dated 09-11-2009.
Ex.A5 Photo copy of Blank Amount Loss Voucher-Non–Motor and
P.A. Form ACL – 10 (1).
Ex.A6 Photo copy of Insurance Policy
No.551001/48/08/9800000251.
Ex.A7 Photo copy of Insurance Policy
No. 551001/48/09/9800000324.
List of exhibits marked for the opposite parties :-
Ex.B1 Policy bearing No. 551001/48/08/9800000251.
Ex.B2 Policy terms and conditions along with Agreed bank clause.
Ex.B3 Office copy of Letter by opposite party No.1 to
opposite party No.2 dated 19-03-2010.
Ex.B4 Photo copy of Letter by Insurance Surveyor to
opposite party No.1 dated 10-12-2009.
Ex.B5 Photo copy of Survey report dated 10-12-2009
along with photos.
Sd/- Sd/- Sd/-
MALE MEMBER PRESIDENT LADY MEMBER
// Certified free copy communicated under Rule 4 (10) of the A.P.S.C.D.R.C. Rules, 1987//
Copy to:-
Complainant and Opposite parties :
Copy was made ready on :
Copy was dispatched on :
