BEFORE THE DISTT.CONSUMER DISPUTES REDRESSAL FORUM; FATEHABAD.
Complaint No.10 of 2015.
Date of Institution:16.01.2015.
Date of Decision:27.02.2017
M/s Panipat Handloom Depot, Jawahar Chowk, Thana Road, Fatehabad through its proprietor Raj Kumar son of Gian Chand Caste Arora resident of DSP Road, Fatehabad Tehsil & District Fatehabad.
........Complainant. Versus
1.National Insurance Company Limited through its Divisional Manager, Divisonal Office, Sirsa Tehsil & District Sirsa.
2.Branch Manager, National Insurance Company Limited through its Branch Office G.T.Road, Fatehabad Tehsil & District Fatehabad.
……….Opposite Parties.
Complaint U/s 12 of Consumer Protection Act, 1986 as amended upto date
Before: Sh.Raghbir Singh, President. Smt.Ansuya Bishnoi,Member.
Present: Sh. R.K.Tayal, counsel for the complainant. Sh. N.D.Mittal, counsel for OPs.
ORDER
The complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 against the opposite parties (hereinafter to be referred as OPs).
2. Brief facts of the present complaint are that the complainant firm M/s Panipat Handloom Depot (hereinafter to be referred as ‘firm’) deals in retail business/trading of handloom items and its other allied goods at Jawahar Chowk Thana Road, Fatehabad and the said firm was having cash credit account up to the limit of Rs.8 lacs with Bank of Baroda, Fatehabad Tehsil & District Fatehabad against the stocks lying in the said firm.
3. It has been further averred that the goods i.e. handloom items being hypothecated to the Bank of Baroda on behalf of the firm for the stock in trade of handloom and its allied goods stored in the firm were insured by OP No.1 vide policy No.420/01/48/11/9800000089 issued by the OP No.2 having validity for one year commenced from 18.10.2011 to midnight of 17.10.2012. It is further averred that being shopkeeper’s insurance policy it was having coverage qua fire and allied perils (contents) alongwith burglary and house breaking, money insurance (in transit), money insurance (in till/counter) baggage insurance and public liabilities for which separate requisite premium was paid by the bank after deducting the same from the account of the firm to the OPs. The firm was having insurance coverage upto Rs.16 lacs under Fire and Allied Perils (contents), excluding money and valuable, but including furniture, fixture, fittings and stock in trade.
4. It has been further averred that during the intervening night of 22/23.08.2012 at about 3.15 a.m. the proprietor of the firm (Raj Kumar) received a massage about breaking out of fire in the shop, therefore, he alongwith his brothers namely Bhim and Rajender reached at the spot and found that the fire has broken out in the basement of the firm/shop and heavy smoke was coming out from there. In the meanwhile, fire brigade also came at the spot and its officials managed to extinguish the fire after dismantling the first wall of the basement with the help of JBC machine. Almost stock, having value to the tune of Rs.16/17 lacs, lying in the basement as well as on the ground floor of the shop/firm was gutted into fire and met to ashes. The police of P.S.City, Fatehabad reported the matter about this incident/mishap vide DDR No.37 dated 23.08.2012.
5. It has been further averred that the proprietor of the firm gave intimation to his banker i.e. Bank of Baroda regarding the fire and loss and thereafter to the OPs through the bank on the same day. After this officers/investigator of the OPs visited the spot and verified the facts of the above incident. Thereafter surveyor Mr.S.P.Goyal r/o Sector 13, opposite shopping complex, Hisar visited the spot on the next day (24.08.2012) and after preliminary discussions he obtained report of fire brigade and demanded account books, stock statement, balance sheet, trade account, stock register, electricity bill, income tax return etc. from the proprietor but when it was told to him that the bills of purchase of the handloom items lying in the basement have also been gutted in the fire then he asked the proprietor to collect duplicate invoice in order to compare the record of purchased items from the bank statement. It has been further averred that vide letter dated 25.08.2012 the surveyor also asked the proprietor to segregate the affected and unaffected stocks besides submitting detailed claim bill with fire brigade report alongwith receipt of charges, cause of loss and detailed sequence of events of loss, layout of the premises affected stating therein how the effective goods were stored in the premises, location of the premises effected, accounts upto 31.03.2012 and thereafter from 01.04.2012 till date of loss, balance sheet on 31.03.2011 and 31.03.2012, trading account
, copy of stock statement submitted to bank for the last six months, stock register, copy of electricity bills, income tax returns, details of stock left after loss, justification of rates, claimed with evidence alongwith copy of purchase and sales etc.
6. It has been further averred that proprietor of the firm duly replied the letter dated 25.08.2012 by mentioning that the fire brigade report has already been delivered to the OPs on 24.08.2012 and the duplicate purchase invoices have also been delivered to the OPs. It has also been replied that the balance sheet up to 31.03.2011 had been prepared on the basis of purchased, sale invoices, bank statement with the help of day-book; that due to number of products the stock register could not be maintained and even it was not required and applicable in the business of handloom by any department; that the firm was not income tax assessee and detail of left stock has already been submitted in detail; that stock lying on first floor was belonging to another firm M/s Nagpal handloom house and the purchased invoice and bank statement of that firm has already been submitted with the OPs and it has no relevancy with the loss/damage taken place in basement and ground floor of the firm; that due to storm in the month of July, 2012, the board of M/s Nagpal handloom fell down and was lying for re-installation.
7. It has been further averred that the proprietor of the firm had submitted almost all the relevant documents in the initial stage i.e. at the time of spot visit and thereafter the demanded documents were also handed-over to the surveyor which are now in possession of the OPs/surveyor but despite that Ops vide letters dated 04.10.2012 and 16.11.2012 have demanded the same from the firm with the threat that in case these documents have not been supplied then the surveyor would recommend the matter as No Claim. It has been further averred that some of the invoices for the purchase of handloom goods/items have been issued in the name of New Panipat Handloom Depot for which explanation was given by the proprietor of the firm that there is another firm namely M/s Panipat Handloom Emporium and there remains confusion and problems with regard to transportation of the goods etc. to each other and the proprietor of that firm was also having objection in the name and style, therefore, sometimes the firm get invoices for the purchase of handloom goods in the name and style M/s New Panipat Handloom Depot and these purchases are got tallied with the statements of bank with which the stock is hypothecated. Since the complainant had already submitted all the relevant documents and completed all the formalities qua his claim but despite that the OP No.2 vide letter dated 19.11.2012 again asked the firm to comply with the letter dated 10.11.2012 of surveyor Mr.S.P.Goyal and further threatened that on failure the claim would be recommend as No Claim. The complainant requested the OPs to settle the claim but they linger on the matter on one pretext or the other just to avoid the legal claim and lastly vide letter dated 18.01.2013 the OPs repudiated the claim of the firm with these remarks “on receipt of final survey report and scrutiny of the claim documents submitted by you pertaining to your above cited claim and survey report of Sh.S.K.Goyal, who physically checked/inspected and assessed the loss, it has been found that you have failed to prove the insurable interest of stocks damaged by fire because purchased bills submitted by you in support of your claim are in the name of New Panipat Handloom Depot, Fatehabad is not in the name of your firm i.e. insured under our policy No.4207014811/98000089 i.e. M/s Panipat Handloom Depot, besides you have failed to produce income tax returns, vat regime certificate of your firm, besides, paid bill of electricity from the period 19.03.2012 to 07.09.2012 which too confirm non-existence of your insurable interest, therefore, your claim falls outside the ambit of our insurance policy and is not maintainable. However, if you wish to say anything about the same you may submit us your reply within 15 days. From the receipt of this letter failing which your claim shall be processed as per the policy terms and conditions”.
8. It has been further averred that thereafter the proprietor of the firm requested the OPs to re-investigate the matter vide letter dated 01.02.2013 and further vide letter dated 15.02.2013 also removed the queries of the surveyor but the OP No.2 did not adhere to the request of the complainant vide letter dated 28.02.2013 on the following remarks:
“reference on scrutiny of the claim it has been found that at the time of alleged fire most of stock present were owned by a firm New Panipat Handloom Depot as per bills produced by you and also admitted in your reply dated 15.02.2013. The firm New Panipat Handloom Depot is not insured with us and as such stock purchased and standing in the name of this firm are not covered under the policy of insurance and evidently you have failed to prove your insurable interest in the stock alleged to have been involved in the fire, rather the same existed in the name of New Panipat Handloom Depot which is separate and having a different identity firm and no benefit are claim under the policy is not admissible because insurable interest in the stock is not proved under the claim and accordingly, this claim is being repudiated on the above grounds”
9. It has been further averred that the OPs have wrongly and illegally repudiated the claim of the complainant which clearly amounts to deficiency in service on their part. Hence, this complaint.
10. On notice OPs appeared and contested the claim of the complainant by filing joint reply. It has been submitted that the complainant has not come to this Forum with clean hands and has suppressed the material facts. The surveyor of the OPs had visited the spot on 23.08.2012 and on 24.08.2012 and after having detailed discussions with the insured he was asked to segregate the damaged and undamaged stocks to conduct final survey which was done on 31.08.2012. As per verifications and trading account till 22.08.2012, the surveyor opined the value of the stock on the date of loss as Rs.1350166/-. It has been further submitted that the surveyor after segregating the stock as per percentage assessed the loss suffered due to impact of fire which is as follows:
1. Due to 90 % loss to stock worth Rs.1056220/- =950598.00
2. Due to 40 % of loss to stock wroth Rs.140514/- =56206.00
3. Due to 70 % of loss to stock worth Rs.153432/- =107402.00
Total: 1114206.00
Less 25 for difference in rates, quantity and quality = -278552.00
Less policy excess clause @ 5 % of the claim amount = -41783.00
Net loss assessed = 793871.00
The surveyor had also opined that the insured was Panipat Handloom Depot whereas most of bills for purchased items were in the name of New Pan pat Handloom Depot and the insured had also failed to confirm some of the bills regarding purchase made by it. The surveyor had provided the following details:
- Total of purchases made in the name of New Panipat Handloom depot is = 1399339.00
- Total of bills in which the letters written for confirmation were received undelivered = 441986.00
- Total of bills in which letters were delivered to the addressees but no confirmation was received = 207510.00
Total = 2048835.00
It has been further submitted that out of the total bill stocks worth Rs.2048835.00, Rs.1399339/- were found to be purchased by New Panipat Handloom whereas the insured had purchased the stock worth Rs.649496.50. The complaint of the complainant is not maintainable as the insurance cannot be extended to the stocks owned by sister concern namely New Panipat Handloom Depot. It has been further submitted that the complainant has no cause of action to file the present complaint because the repudiation was made on 28.02.2013 and the present complaint has been filed on 16.01.2015 i.e. after a lapse of more than one year and ten months despite the fact that it should have been filed within 12 calendar months. Other pleas made in the complaint have been controverted and prayer for dismissal of the complaint has been made.
11. Both the parties were allowed to adduce evidence. The complainant in evidence has tendered his affidavit Ex.CW1/A and documents Annexure C1 to Annexure C8, Annexure C8A to Annexure C8C whereas the OPs have tendered affidavit of Sh.Suresh Kumar Chaudhary, Branch Manager Ex.R1 and documents Ex.R2 to Ex.R9 and Annexure R10 to Annexure R127.
12. Learned counsel for the complainant argued that the complainant firm had obtained a policy No.420/01/48/11/9800000089 from OP No.1 issued by the OP No.2 for a period of one year from 18.10.2011 to midnight of 17.10.2012 and the said shopkeeper’s insurance policy was having coverage insurance for Rs.16 lacs under Fire and Allied Perils (contents) (Ex.C1), excluding money and valuable, but including furniture, fixture, fittings and stock in trade besides covering risk qua fire and allied perils (contents) alongwith burglary and house breaking, money insurance (in transit), money insurance (in till/counter) baggage insurance and public liabilities for which separate requisite premium was paid by the bank after deducting the same from the account of the firm to the OPs. The firm was having cash credit account up to the limit of Rs.8 lacs with Bank of Baroda, Fatehabad Tehsil & District Fatehabad against the stocks lying in the said firm.
13. Learned counsel for the complainant further argued that fire broke out during subsistence of the policy and the stock, having value to the tune of Rs.16/17 lacs, lying in the basement as well as on the ground floor of the shop/firm was gutted into fire and also met to ashes and regarding this DDR No.37 dated 23.08.2012 has been recorded but as per surveyor report the total stock on the day of incident was having value to the tune of Rs.18,52,730.00 (stocks on first floor of the shop having value to the tune of Rs.5,02,564.00) and (stocks on ground floor & basement having value to the tune of Rs.13,50,166.00).
14. Learned counsel for the complainant further argued that the insurance coverage was for Rs.16 lacs but when the firm has submitted the claim of loss suffered by it due to fire then the insurance company in this way or that way has denied the same despite the fact that the stock belonged to Panipat Handloom but the bills have been issued in the name of New Panipat Handloom. It was also argued that there was another firm of similar name in the vicinity, therefore, in order to avoid the confusion for transporting of the purchased goods another firm namely New Panipat Handloom was established but in fact the goods purchased in the name of New Panipat Handloom were of Panipat Handloom, therefore, the OPs-insurance company are liable to indemnify the loss suffered by the firm on account of fire broke out during the subsistence of the policy. It was also further argued that the stock to the tune of Rs.5,02,564/- lying on the first floor was belonging to M/s Nagpal Handloom House and not related to complainant firm. However, the surveyor in his report has wrongly and illegally concluded that the same was belonging to complainant firm.
15. Learned counsel for the complainant further argued that the stock lying in the firm including the original bills, trading account and stock register had gutted in fire but despite that the proprietor of the firm submitted all the demanded documents to the OPs. It was further argued that if the surveyor/insurance company was in need of any documents qua account/trading of goods purchased and other relevant documents qua settling of the claim of the complainant firm then it could have procured from the Bank of Baroda, Fatehabad from whom the complainant had obtained the cash credit limit upto Rs.8 lacs after hypothecating the goods/stocks lying with the said firm but the surveryor did not do the same. Therefore, it is evident that the insurance company had wrongly and illegally repudiated the genuine claim of the complainant firm. It was further argued that on the request of the complainant-firm the matter was re-investigated and the queries made by the insurance company/ surveyor have been removed but despite that it could not fetch anything. It was also further argued by the counsel for the complainant that the first floor of the premises belonged to M/s Nagpal Handloom House as is evident from copy of bank statement and stock of handlooms amoutning to Rs.5,02,564/- was in the ownership of Nagpal Handloom House. However, the surveyor vide his survey report had illegally held the same to be the stock of the complainant and depriciated the same from the total value of the stock.
16. Per contra, it has been argued by learned counsel for the OPs that the repudiation was made on 28.02.2013 and the present complaint had been filed on 16.01.2015 despite the fact that it should have been filed within 12 calendar months. The present complaint has been filed much beyond 12 calendar months and it is in violation of terms and conditions of the policy which provides that if the company shall disclaim liability to the insured for any claim hereunder and such claim shall not within twelve calendar months from the date of such disclaimer have been made subject matter of a suit in a court of law, then the claim shall for all purposes be deemed to have been abandoned and shall not thereafter be recoverable hereunder. In support of this plea learned counsel for the OPs has relied upon case laws titled as National Insurance Co.Limited Vs. Sujir Ganesh Nayak & Co.& Anr. II (1997) CPJ 1 (SC), H.P.State Forest Company Limited Vs. United India Insurance Co.Limited 2009 (CPJ) 1 (SC) and M/s Global Ispat Limited Vs. Oriental Insurance Company decided on 10.09.2014 by Hon’ble National Commission in FAP No.13 of 2013.
17. It was further argued that the proprietor of the firm had provided the total bills of stock worth Rs.2048835.50/- but during verification out of the total amount bills of stock worth Rs.1399339/- were found issued in the name of New Panipat Handloom depot and the goods purchased by the insured complainant firm worth Rs.6,49496.50 were not confirmed by the sellers (from whom the complainant firm has allegedly purchased the goods). It has been further argued that there was no insurable interest of the insured in stock worth Rs. 2048835.50/- because the policy in question was issued in the of complainant firm and not in the name of M/s New Panipat Handloom Depot and the benefits of the policy in question cannot be extended to the stock of other firm namely New Panipat Handloom Depot.
18. After going through the material available on the case file, we have no hitch to say that the complainant has not been able to prove his case by leading cogent and reliable evidence. It is a settled principle of law that he who seeks equity must do equity with others but in the present case the complainant has not come before this Forum with clean hands. Undisputedly, the complainant firm was insured vide policy No.420/01/48/11/9800000089 with OP No.1 for sum assured to the tune of Rs.16 lacs as is evident through Annexure C1. It is also not disputed that fire broke out at the premises of the complainant during the intervening night of 22/23.08.2012 and regarding this DDR No.37 dated 23.08.2012 (Annexure C2) was also registered. It is also estbalished that the premises of the complainant firm was having basement, ground floor and first floor and all the areas were used for storing the handloom and its allied goods. The surveyor in his report has opined that on the day of incident the total stock was having value to the tune of Rs.18,52,730.00 (stocks on first floor of the shop having value to the tune of Rs.5,02,564.00) and (stocks on ground floor & basement having value to the tune of Rs.13,50,166.00). The surveyor in his report has also opined that out of total bills of stocks worth Rs.2048835.50, Rs.1399339/- were found to be made by New Panipat Handloom Depot whereas bills qua the stock worth Rs.649496.50 allegeldy purchased by the complainant firm have not been confirmed. It is settled principle of law that he who does not come to the court with clean hands is not entitled for any relief. In the present case the complainant has not come to this Forum with clean hands and has suppressed the material facts from this Forum by producing forged bills to inflate its claim, therefore, the complainant is ceased to approach this Forum. On this point reliance can be taken from case laws titled as Srishti Copy House Vs. Reliance General Insurance Co.Limited & Anr. 2013 (4) CLT 369 (HR) and M/s Shoe Land Vs. New India Insurance Company Limited & others 2013 (3) CLT 434 (HP). The plea of the complainant firm that there was another firm of similar name in the vicinity, therefore, in order to avoid the confusion for transporting of the purchased goods another firm namely New Panipat Handloom was established but in fact the goods purchased in the name of New Panipat Handloom were of Panipat Handloom is not supported with any concrete evidence. When the complainant firm has admitted that another firm having similar name is situated in the vicinity then it was obligatory on the part of the complainant firm eigher to bring the owner of that shop in to witness box or to produce any receipt such as electricity bill, house tax and any record of Municipal Committee, water and sewerage bill etc. related to shop having similar name on the case file to strengthen his plea. The complainant firm has also failed to bring any respectable or Municipal Councilor of the concerned area, where the complainant firm was situated, into witness to prove the existence of another firm having similar name, therefore, the complainant firm is ceased to raise this plea and the same is hereby rejected. Moreover, the plea of learned counsel for complainant that the stock worth Rs.5.02.564/- was belonging to M/s Nagpal Handloom House is also not tenable because the complainant has failed to adduce any reliable and cogent evidence to show that the stock lying on the first floor of the premises where fire had broken out was belonging to M/s Nagpal Handloom House.
19. Another plea taken by learned counsel for the complainant firm that if the surveyor/insurance company was in need of any documents qua account/trading of goods purchased and other relevant documents qua settling of the claim of the complainant firm then it could have procured from the Bank of Baroda, Fatehabad from whom the complainant had obtained the cash credit limit upto Rs.8 lacs after hypothecating the goods/stocks is also not tenable because the act and conduct of the complainant firm appears that it is trying to shift its burden to the shoulder of OPs-insuracne company. It is basic principle of law that the complainant firm has to stand on its own legs in order to prove its case without taking the benefit of the weaknesses of other party but in the present case this plea put-forth by the complainant has not been supported by clinching and reliable evidence because the complainant firm had been given due opportunities to meet out the requirements necessary for the settlement of its claim and on his request matter was also re-investigated but the complaiannt firm had been failed to remove the queries made by the investigator and also failed to submit the desired documents with the OPs, therefore, this Forum is of the opinion that the Surveyor/Investigator was the best person to assess the loss and his report cannot be brushed aside unless there is cogent and convincing evidence. In the instant case also, no credible evidence has been produced on the basis of which Surveyor’s/Investigator’s report could be dis-believed.
20. Learned counsel for the OPs has rightly argued that as per policy condition of the insurance, the present complaint was to be filed within 12 calendar months but the present complaint was filed only on 16.01.2015 i.e. much beyond the prescribed limitation of 12 calendar months as the claim of the complainant was repudiated on 28.02.2013. This plea find supports from the case law titled as H.P.State Forest Company Limited Vs. United India Insurance Co.Limited 2009 (CPJ) 1 (SC) (supra) wherein Hon’ble Apex Court has held that Limitation-Claim- if not pressed within 12 months from date of loss, insurance company ceases to be liable- No claim/arbitration proceedings made during prescribed period- Insurer not liable under policy-No relief entitled. Further, Hon’ble National Commission while disposing of FAP No.13 of 2013 titled as M/s Global Ispat Vs. Oriental Insurance Company on 10.09.2014 (supra) has held that if the complaint has not been filed within 12 months from the date of repudiation then the same is barred by limitation and the complainant will not be entitled to get any benefit of limitation provided under CP Act.
21. Hence, in view of above discussed factual as-well-as legal position, we are of the considered view that the present complaint is liable to be dismissed. We order accordingly. There is no order as to costs. A copy of this order be supplied to both the parties free of cost. File be consigned after due compliance.
Announced in open court: 27.02.2017
(Raghbir Singh)
President,
District Consumer Disputes
Redressal Forum, Fatehabad.
(Ansuya Bishnoi)
Member
