Haryana

Ambala

CC/66/2013

BARNALA KHADI GRAM UDYOG SAMITI - Complainant(s)

Versus

NIC - Opp.Party(s)

ASHUTOSH AGGARWAL

31 Jul 2017

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AMBALA

 

                                                          Complaint case no.        : 66 of 2013

                                                          Date of Institution         : 29.03.2013                                                                                  

                                                             Date of decision          : 31.07.2017

 

          Barnala Khadi Gram Udyog Samiti, Village Barnala, P.O. Dhankaur, Distt.      Ambala through its Secretary Sh. Varinder Kumar Sharma.

……. Complainant.

 

 

1. National Insurance Company, LIC building 2^nd Floor Ambala city through its Manager.
2. National Insurance company, Regional Office-S.C.O.337-340, Sector-35-B, Chandigarh through its Divisional Manager.

 

 ….…. Respondents.

 

 

BEFORE:   SH. D.N. ARORA, PRESIDENT

                   SH. PUSHPENDER KUMAR, MEMBER         

                   MS. ANAMIKA GUPTA, MEMBER                 

 

 

Present:       Sh. Ashutosh Aggarwal, counsel for complainant.

                   Sh. M.Bindal, counsel for OPs.

 

ORDER:

 

                   In nutshell, brief facts of the present complaint is that Barnala Khadi Gram Udyog Samiti, Village Barnala, P.O. Dhankaur, Distt. Ambala is a society duly registered with the Registrar of Societies vide its Registration No.617 of 1999 and the said samiti during its General body meeting held at H.NO.853-B2, Milap Nagar, Ambala City on 26.03.2012 vide its proceedings No.81 of dated 26.03.2012 has authorized its secretary Sh. Varinder Kumar Sharma s/o Sh. Saligram and samiti is duly financed by the Union of India through Khandi and Village Industries Commission. All the stocks, machinery and other articles of the Samiti are owned by the KVIC and all the financial assistance is provided by the KVIC every year and all the accounts of the samiti are audited by the auditors of the KVIC and only the management of the samait is done by thye trustees of the Samiti THE KVIC has been financing the above named samiti with the aim and objects of providing employment to the rural and backward villagers on no profit and no loss basis. Further submitted that the samiti owns one godown having carding machine, weaving machines, stocks etc at Village Barnala, Distt. Amala and one showroom/sale depot popularly known as Bandar at Court Road, Amala City which was subsequently shifted to Baldev Nagar, Opposite Milk Plant, Ambala City in the year 1994-95 but due to some dispute with the landlord, the said showroom/sale depot was vacated and further shifted to new place at Mandhaur Bas Stand, Naraingarh Road, Distt. Ambala in the year 2010 and the complainant came to know on dated 24.10.2010 about the fact that in the insurance policy bearing NO.420401/11/09/3100000266 of the year 30.12.2009 to 29.12.2010 of Rs.5,00,000/-, the address of the godown was wrongly mentioned as Baldev Nagar, Opposite Vita Milk Plant, Ambala City against the actual address – Village Barnala, Ambala City, immediately upon noticing of the above said mistake, the complainant brought this fact in the knowledge of the Director KVIC Amala Cantt vide letter dated 25.10.2010. Since the said insurance is in the name of CEO KVIC, the Secretary made the representation to the concerned insured and the CEO KVIC also informed the respondent through dated 1111.2010. Unfortunately, in the intervening night of 29.10.2010 and 30.10.10 at 1.30a.m., there was a loss due to fire in the premises-godown having carding machine, weaving machines, stocks etc. of the samiti situated at village Barnala, Distt. Amala and FIR was registered. The OPs were informed as per law and one Surveyor Sh. Ashish Bahl was appointed to assess the loss of the godown of the complainant and submitted his report on 19.02.2011 but the OPs vide letter 21.03.2011 have repudiated the claim of the complainant on the ground that there was difference in address of the insured premises. The complainant duly replied the letter dated 11.04.2011 and 21.03.2011 but to no avail despite the fact that it was a clerical mistake because since 19 years the location of the godown at village Barnala had never been changed till today. It has been further averred that the OPs are kept on taking premium till today under the assurance that in case any loss occurred during the subsistence of the policy then the same would be indemnified but the Ops have wrongly and illegally repudiated the claim. The act and conduct of the OPs clearly amounts to deficiency in service on their part. In evidence the complainant has tendered affidavit Annexure CX and documents Annexure C1 to Annexure C19.

2.                          Upon notice, OPs appeared and contested the complaint of the complainant by filing joint reply wherein several preliminary objections such as maintainability, cause of action and suppression of material facts from this Forum etc. have been taken. It has been submitted that on intimation of loss a surveyor Mr.Ashish Bahl was deputed who visited the premises on 31.10.2010 and assessed the alleged loss to the tune of Rs.3,74,469/-  due to fire causes in the intervening night of 29/30.10.2010 but the entire loss was found to have taken place in another premises of the complainant at village Barnala as described by him in his detailed reply dated 19.02.2011. The Ops have legally and rightly rejected the claim of the complainant because no loss was found to have taken place in the insured place. Moreover, the insurance company is bound to indemnify the loss that occurred at the place mentioned in the insurance policy. The complainant had already been intimated about the fate of the claim vide letter dated 25.04.2011. It has been further averred that the complainant had never intimated about shifting of said godown in front of Vita Plant, Baldev Nagar to Nariangarh Road, Ambala City at the time of availing of policy or later on for which the complainant was legally bound to inform without any lapse to avoid violation of the terms and conditions of the policy. The complainant had taken policies for the period from 2005-05 and 2005-06 for Baldev Nagar premises and from the Oriental Insurance Company Limited for Barnala premises.  It has been further submitted that for both policies the complainant was paying separate premises from time to time. It has been denied that there was any deficiency in service and unfair trade practice on behalf of Ops. Other allegations made in the complaint have been controverted and   prayer for dismissal of the complaint has been made. In evidence, the OPs have tendered affidavit Annexure RX and documents Annexure R1 to Annexure R8.

3.                We have perused the file and gone through all the policies available on the case file. Policy Annexure C3 to Annexure C8 & Annexure C9 have been alleged to be of godown at village Barwala  by the counsel for the complainant and the premium of the said policies varies in the range upto 1500/- for a sum insured of Rs.5,00,000/-. Whereas on the other hand the policies Annexure C9 & Annexure C10 have been admitted by both the parties to be of shop situated at Baldev Nagar, Ambala City and the premium of the said policies ranges around Rs.4200/- to Rs.4500/- for an insured amount of Rs.8,60,000/-. Perusal of the policy Annexure C9 & Annexure C10 reflects that there is a section wise premium detail i.e. Five Sections as mentioned in description of covers/perils whereas in the Policy Annexure C3 to Annexure C8 & Annexure C19 there is only one Section, meaning thereby that it can be easily presumed that in case of insuring the shop there is a different rate of premium and that too under different sections and there is a separate rate of premium while insuring the godwon. Vide order dated 28.06.2017, this Forum in order to decide the controversy between the parties had directed the OPs to place on record the proposal form alongwith the policies in question pertaining to period from 29.12.2008 to 28.12.2009 and 30.12.2009 to 29.12.2010 and site plan of the insured premises to clarify which premises of the complainant was insured under the said policies but the Ops have only produced on record copy of polices and had not produced the proposal form of the above said policies and site plan of the insured premises. Counsel for the OPs made a statement on dated 31.07.2017 that the summoned proposal form and the site plan of the insured premises were not available with them being old one but the office record can easily be traced out and produce before the Forum, therefore, it is a not a ground to withhold the requisite documents which were necessary to decide the controversy. Hence, this Forum has no other opinion except to draw adverse inference against the Ops because whenever any policy is being issued for the first time then proposal form is being got filled up & spot inspection was also got done. The statement made by learned counsel for the OPs on dated 31.07.2017 regarding non-availability of proposal form and site plan of the insured premises is not enough to absolve them from indemnifying the liability of the insurance policy for which they have obtained premium from the complainant.                                       

                   On the other hand counsel for the Ops has argued that the stock was damaged but location of the insured premises was different and the fire incident had occurred in other place than the insured premises, therefore, the Ops are not liable to pay any claim to the complainant and in support of his contention he has placed reliance of case laws titled as Avon Organics Vs. New India Assurance Co. Limited & Anr. 1 (2016) CPJ 40 (NC). This arguments is devoid of any merit and the case law cited by learned counsel for the OPs is not identical to the facts of the present case.

                             We have fully convinced with the averments made by complainant that the address of the insured premises has been inadvertently mentioned in the policy in question whereas the previous policies as well as the further policies have been issued for the insured premises where the incident had occurred and the complainant has suffered financial loss and for this bonafide mistake the complainant cannot be suffered and he is entitled to receive compensation for the loss caused to him. 

                              The present complaint is squarely covered by the law laid down by the Hon’ble National Commission in case titled as New India Assurance Company Limited Vs.Raman Nayyar and Anr.2016 (1) CLT 108.  

4.                          From the above said discussion, it is clear that the premises of the complainant on which the fire broke out during the intervening night of 29.10.2010/30.10.2010 was insured with the Ops and the surveyor had also assessed the loss to the tune of Rs.3,74,469/- in his final survey report (Annexure C14).  The complainant has been able to prove his case by leading cogent and reliable evidence, therefore, the repudiation made by the Ops by Annexure C18 dated 25.04.2011 is hereby quashed. So, keeping in view the circumstances and totality of the case, the complainant has proved his case, therefore, we accept the complaint with costs which is assessed Rs.5,000/- and OPs are directed to comply with the following direction within thirty days from the date of receipt of copy of this order:-

(i)            To pay a sum of Rs.3,74,469/- (as assessed by surveyor) to the complainant with simple interest @ 9% per annum within stipulated period from the date of filing of the complaint, failing which the awarded amount would carry interest @ 12 % for the default period till its realization.

 

 

 

                    Copies of the order be sent to the parties concerned, free of costs, as per rules. File after due compliance be consigned to record room.

 

Announced on: 31.07.2017                                    Sd/-

                                                                      (D.N. ARORA)

                                                                              President

                                                                                                  Sd/-

                    (ANAMIKA GUPTA)

                   Member

 

                                 Sd/-

                   (PUSHPENDER KUMAR)

                                                                                       Member