Haryana

Ambala

CC/226/2011

M/S MAINI ENTERPRISES - Complainant(s)

Versus

OIC - Opp.Party(s)

SANDEEP SACHDEVA

17 Feb 2017

ORDER

         

                    BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMBALA.

 

             Complaint Case No.    : 226 of 2011

Date of Institution       : 20.07.2011

               Date of Decision         : 17.02.2017

 

 

M/s Maini Enterprises, 207 Jaggi Colony, Phase-I, Baldev Nagar, Ambala City through its Prop. Gagan.

                                                                                               

……Complainant.

 

Versus

 

1.         Oriental Insurance Company Ltd. City Branch Office, LIC Building Ambala City through its Branch Manager.

 

2.         Punjab National Bank, Baldev Nagar, Ambala City through its Branch Manager.

                                                            ……Opposite Parties.

 

Complaint Under Section 12 of the Consumer Protection Act.

 

 

BEFORE:       SH. D.N. ARORA,  PRESIDENT.

                        SH. PUSHPENDER KUMAR, MEMBER.

                       

Present:          Sh. Sandeep Sachdeva, Adv. for complainant.

                        Sh. Mohinder Bindal, Adv.  for OP No.1.

                        Sh. R.L. Mundan, Adv. for OP No.2.

 

ORDER:

 

                        In nutshell, brief facts of the complaint are that complainant is proprietor of M/s Maini Enterprises, 207 Jaggi Colony, Phase-I, Baldev Nagar, Ambala City  and  he got opened CC Limit Account with the OP no.2  vide account no.37242265 which was got insured with the Op no.1 by OP no.2 at its own  vide policy no.261101/11/2011/53 and Cover note No. 260000246402 dated 19.06.2010 but the premium was paid by the complainant. It has been submitted that due to clerical mistakes either on the art of OP No.1 or Op No.2, the address of the complainant was written in the said insurance policy as 211, Jaggi Colony, Phse-1, Ambala City which is residential address of the complainant. The said house was pledged/mortgaged with the OP no.2 as security against the said account.  Further it has been submitted that on 06.07.2010, due to flood the business premises of the complainant i.e. 207, Jaggi Colony, Phase-I, Ambala City flooded and the complainant suffered a loss upto Rs.502226.74.  So, the matter was reported to the OP No.1 being insurer. Complainant has alleged that OP offered the complainant for settling the account in Rs.3,50,000/-. Accordingly, complainant given a consent letter dated 23.07.2010.  Thereafter, OP  no.1 informed the complainant through its letter dated 06.09.2010  that their claim for flood has been rejected as there was no loss in 211, Jaggi Colony, Phase-I Ambala City, it is the premises which was got insured by them as per their record. So, the complainant approached the bank and get the information in regard to his account and it was revealed that  the said account was opened for 207, Jaggi Colony, Phase-I, Ambala City and accordingly OP No.2 vide letter dated 13.09.2010 informed  the OP No.1 to do the needful  and to overlook the wrong address mentioned in the policy. Thus the complainant has prayed that it is the mistake either on the part of Op No.1 or Op No.2.  As such, the complainant has averred that the act and conduct of the Op is clear cut case of deficiency in service. Hence, the present complaint seeking relief as per prayer clause.

2.                     Upon notice, Ops appeared through their respective counsel.  OP No.1 has raised preliminary objections qua non-maintainability of complaint and suppression of material facts. On merits, it has been submitted that  the insurance policy was issued to the complainant against stock of gifts articles/toys, sceneries, decorative items etc. lying and store at the business premises of the complainant at property no.211, Jaggi Colony, Phase-I, Baldev Nagar, Ambala City and the said policy was issued subject to certain terms and conditions.  The address of insured premises was disclosed by complainant himself and the same was accordingly mentioned in the covernote of the insurance policy as well and complainant never made any complaint or raised any objection with regard to the said insured premises.  It has been further submitted that on received intimation of loss, surveyor M/s Consolidated Surveyors Pvt. Ltd. was immediately deputed who visited the premises of insured M/s Maini Enterprises on 09.07.2010 to survey and assess the loss  in the flood caused on 06.07.2010 and fofund that  no loss in or to the insured premises of the complainant due to flood but the entire loss due to flood was found to have taken place in the premises at property no.207, Jaggi Colony, Phase-I, Baldev Nagar, Ambala City where the goods were stocked by the insured without any intimation and which was not insured and was situated about 50 Mtrs. away from business establishment situated at 211 Jaggi Colony, Phase-I Baldev Nagar, Ambala City. However, loss to the tune of Rs.3,50,000/- has been assessed by the surveyor. But after receiving report of the surveyor and the claim of complainant was repudiated.  As such, the answering OP has prayed that there is no deficiency in service on their part and prayed for dismissal of the complaint with costs.

                        Op No.2 tendered their reply raising preliminary objections qua cause of action, locus standi, maintainability of complaint and jurisdiction.  On merits, it has been submitted that the insurance was arranged on 19.06.2010 in tie up arrangement by bank itself as authorized by the complainant while executing the security documents on 10.06.2010.  It has been denied that the insurance was relating to  H.No.211 Jaggi Colony, Phase-I, Ambala City being mortgaged with the answering OP in consideration of the loan amount availed by the complainant and it has also been denied that there was any clerical mistake on the part of answering OP.  It has been submitted that the official of OP No.1 visited the branch office of Op No.2 and  noted theaddres of insured premises himself as 211, Jaggi Colony, Phase-I, Ambala City which was shown merely registered office of complainant in the proposal whereas the address of complainant in all the security documents and other related documents on the file is 207 Jaggi Colony, Phase-I, Ambala City which premises were also physically visited by the office of OP No.1 and the stock lying therein was also verified.  Thus there is no deficiency in service on the part of answering OP and prayed for dismissal of complaint with costs.

 3.                    To prove his version, counsel for Op no.1 tendered affidavit Annexures RX, RY & RZ alongwith documents as Annexure R-1 to R-10 and closed the evidence. The Op No.2 tendered in evidence affidavit Annexure RW2/A alongwith documents as Annexures R-11 to R-26 and closed their evidence.  During the course of arguments, it has come to the notice of the Forum that no evidence has been adduced by the complainant and as per case file, it reveals that initially the case was fixed for evidence of both the parties and OP has adduced his evidence but complainant has not adduced the evidence and case without closing evidence of the complainant was adjoined for arguments. So in the interest of justice, the complainant was allowed to tender the documents in evidence which is already on the file as  Annexure C-1 to C-  vide order dated 17.02.2017.

4.                     We have heard learned counsel for the parties and gone through the case file very carefully.  Case of complainant is that he got insured his business premises 207 Jaggi Colony, Phase-I, Baldev Nagar, Ambala City from the OP No.2 but the OP wrongly mentioned his residential address  211, Jaggi Colony, Phase-I, Ambala City in the policy document (Annexure R-2). Further, due to flood on 06.07.2010, the business premises suffered a loss to the tune of Rs.5022226.74.  But the surveyor of OP M/s Consolidated Surveyors Pvt. Ltd. assessed a loss to the tune of Rs.3,50,000/- and complainant gave his consent for the same vide letter dated 23.07.2010 (Annexure R-6), vide letter dated 04.01.2011 (Annexure R-1) the OP insurance company rejected the claim on the ground that ‘As per survey report and investigation report no loss has occurred in the insured premises 211, Jaggi Colony, Phase-1, Baldev Nagar, Ambala City which was got insured by the Bank (PNB). Whereas the loss reported occurred in the premises 207, Jaggi Colony, Phase-1, Baldev Nagar, Ambala City which is not covered under the policy”.  

                        On the other hand, counsel for Op No.1 has argued that the insurance policy was issued by them to the complainant against stock of gifts articles/toys, sceneries, decorative items etc. lying and store at the business premises of the complainant at property no.211, Jaggi Colony, Phase-I, Baldev Nagar, Ambala City and the said premises was disclosed by complainant himself and the same was accordingly mentioned in the cover-note of the insurance policy as well and complainant never made any complaint or raised any objection with regard to the said insured premises. It has been further submitted that on received intimation of loss, surveyor M/s Consolidated Surveyors Pvt. Ltd. was immediately deputed who visited the premises of insured M/s Maini Enterprises on 09.07.2010 to survey and assess the loss  in the flood caused on 06.07.2010 and found that no loss caused to the insured place i.e.  211 Jaggi Colony but it was in the property no.207, Jaggi Colony, Ambala City where the goods were stocked by the insured without any intimation. However, a loss to the tune of Rs.3,50,000/- has been assessed by the surveyor but the claim of complainant was repudiated vide  Annexure R-1 on the ground that the premises 207  Jaggi Colony was not insured under the policy which is not covered under our policy, as such treated it as ‘No Claim’.

                        Counsel for OP No.2 has argued that the insurance was arranged on 19.06.2010 in tie up arrangement by bank itself as authorized by the complainant while executing the security documents on 10.06.2010.  It has been denied that the insurance was relating to H.No.211 Jaggi Colony, Phase-I, Ambala City Thus there is no deficiency in service on the part of answering OP and prayed for dismissal of complaint with costs.  Counsel for Ops to prove their case has placed  reliance on case law delivered by the Hon’ble National Consumer Disputes Redressal Commission, New Delhi titled as Oriental Insurance Co. Ltd. & Anr. Vs. P.R. Automobiles & Oiles & Anr.  I(2010) CPJ 83 N.C.

5.                     After hearing learned counsel for the parties and going through the record, it has been admitted by Op that the insurance cover has been provided by them to the complainant at the address 211 Jaggi Colony, whereas the OP No.2 Bank has denied this fact and stated that the property no.211 Jaggi Colony has been mortgaged with them in consideration of the loan amount availed by the complainant. Perusal of  Annexure R-11 which has been addressed by OP No.2 Bank to OP No.1 Insurance Company w.r.t. letter dated 06.09.2010, they clarified that when the loan was sanctioned they have obtained the various documents from the complainant for releasing the loan and complainant submitted all documents relating to the premises  of address 207, Jaggi Colony, Ambala  and they also clarified that  211 Jaggi Colony  is written in the proposal form through an oversight which means that the address of the premises of the complainant should be mentioned in the policy as 207 because the OP No.1 has insured the premises and official of OP No.1 visited the branch office of OP No.2 and noted the address  himself as 211, Jaggi Colony, it means that at the time of noting the address it might be written as 211 but they have not mentioned  the location of the premises as no.211 and the stock lying therein was also verified. On the contrary, the counsel for Op No.1 vehemently argued that the premises 207 is not insured as per the policy so they are not liable to pay the loss assessed by the surveyor. At the time of arguments, this Forum noted that whenever the complainant has obtained the loan from Op No.1 for business purpose after mortgaging the house no.211 which is owned by mother of complainant then how this Forum can presume that the said premises no. 211 was insured by Op No.1.  To verify the aforesaid facts, this Forum is of the view that the original file from of Insurance Company should be summoned. After perusing the summoned file, it revealed that complainant has made the application dated 24.03.2011 to the OP No.1 for making necessary correction regarding address of the premises, stock of which have been insured vide endst. Dated 24.3.2011 itself and said correction was made in original policy no. 261101/11/2011/53 meaning thereby that OP no.1 had admitted that actual business premises is insured by Op No.1 is 207 Jaggi Colony Phase-I Ambala City but now they cannot take any benefit for incidental slip on the part of the bank or official of the Op no.1those who have issued the policy.   As such, Op company had concealed the factum of policy which came in the knowledge of the Forum when original file summoned from the OP insurance company.  Copy of letter dated 24.03.2011 as well as policy document taken from the original summoned file from OP No.1 insurance company have been placed on record as Annexures A and B.  In these circumstances,  it is admitted fact that the property no.211 is residential house and was mortgaged with the bank as an equitable security as per record Annexure  R-11 to R-17 tendered by OP No.2.

                        In view of the above discussion, we are of the confirmed view that complainant cannot be allowed to suffer for mistake if any on the part of the OP -Bank or OP-Insurance Company. Furthermore said mistake qua number of insured premises is also supported from the report of surveyor Annexure R-5 wherein  the surveyor has found  in column No.5 INSURED PREMISES & No.7 POSITION AT SURVEY mentioned as under:-

INSURED PREMISES:

5.1       The insured is operating from house no.207, Jaggi Colony, Baldev Nagar, Ambala City and  has  his residence at House No.211, Jaggi Colony, Baldev Nagar,Ambala City.  Both the buildings are located at  a distance of 50 Mtrs from each other. The building at plot no.207 is  owned by the mother of the proprietor and it has two rooms  on the front facing the road and three rooms on the back side used as godown.  The front room of 17’x27’ is occupies as showroom cum godown and two rooms of 15’x12’, 12’x14’ and 12’x18’ are occupies as godowns. One small room on the front is occupied as a Karyana Store and is being run by the insured’s father and is known as Komal Departmental Store.

5.2       On left hand side of the insured’s building premises there is a Nullah and on right hand side there is vacant plot number 208.

5.3       The construction of insured’s shop & Godowns is of ‘A’ class i.e. walls built  of Burnt Building bricks set in cement mortar duly plastered and with RCC roof.

POSITION AT SURVEY:  

On 09.07.2010, the surveyor visited the insured’s shop and godown premises and inspected the site of loss and on visual inspection found that the stocks were damaged by the muddy flash flood water. The water marks up to a high of 1-1.5’ were observed on the walls of the premises. The stock was badly damaged by the muddy water. The surveyor requested the insured to segregate the entire damaged stock. The insured segregated the stock and we again visited his premises and verified the inventory of the damaged stock. The extent of loss  caused by the water to the stock was also minutely examined.   The quantity of the damaged stock has also been physically verified by the surveyor.

                        Further it has been observed by the surveyor that ‘the cause of loss being flash flood/inundation of the premises is covered under the insured perils.

6.                     In view of the facts and circumstances of the case, we have no hesitation to set aside the repudiation letter dated  04.01.2011 (Annexure C-4). Accordingly, the complainant is allowed with costs. As such, Op no.1 is directed to comply with the following direction within thirty days of the receipt of copy of the order:-

1. To pay a sum of Rs.3,50,000/- to the complainant alongwith with simple interest @ 9% per annum from the date of filing of complaint till actual realisation.
2. Also to pay a sum of Rs.10000/- as compensation for harassment as well as costs of litigation for dragging the complainant in unwanted litigation.

                        It is further clarified that if the Op no.1 failed to comply with the directions within stipulated period then the awarded amount shall carry interest @ 12% per annum from the date of default till actual realisation. 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.                                                     

                                                                                                    Sd/-

Announced on :17.02.2017                                                            (D.N. ARORA)

                                                                                                  PRESIDENT.

                                                           

                                                                                      Sd/-

 (PUSHPENDER KUMAR)

                                                                                                    MEMBER.