Tamil Nadu

StateCommission

FA/562/2012

THE CHIEF MANAGER. STATE BANK OF BIKANER AND JAIPUR - Complainant(s)

Versus

S. PONNUSAMY, PROPRIETOR, M/s. S.P. TEX - Opp.Party(s)

N. KISHORE KUMAR

10 Dec 2015

ORDER

 

BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI

                   Present: Thiru J. Jayaram,                                PRESIDING JUDICIAL MEMBER

                                 Tmt.  P. Bakiyavathi                            MEMBER

F.A. No. 562 / 2012

                                                                            (Against the Order in C.C. No. 227 / 2011,

dated 16-04-2012, on the file of the DCDRF, Coimbatore

Dated this the 10^th day  of DECEMBER, 2015

 The Chief Manager,                                      ]

State Bank of Bikaner and Jaipur,                 ]

5-B, Municipal Office Road,                          ]  ..  Appellant /

Tiruppur                                                       ]      2^nd Opposite Party

 

                   Vs.

1. S. Ponnusamy,                                         ]  ..  1^st Respondent /

    Proprietor,                                               ]      Complainant

    M/s S.P. Tex,                                           ]

    S.F. No.730 / 1, Navithan Thottam, ]

    Thennampalayam East,                            ]

    Tiruppur – 641 604                                   ]

]

2. M/s National Insurance Co. Ltd,                ]  ..  2^nd Respondent /

    Represented by its Divisional Manager,     ]      1^st Opposite Party

    No.18, Kumaran Road,                             ]

    Court Street,                                            ]

    Tiruppur – 641 601                                   ]

    

               This Appeal coming up before us for final hearing on 06-10-2015 and on hearing the arguments of both sides and upon perusing the material records, this Commission made the following Order:

 

Counsel for Appellant:     -        M/s Kishore Kumar

Counsel for 1^st Respondent:      -        M/s J. Franklin

Counsel for 2^nd Respondent       -        Ms. J. Premalatha

 

J. JAYARAM, PRESIDING JUDICIAL MEMBER

 

              This appeal is filed by the 2^nd opposite party against the order of the District Forum, Coimbatore in C.C. No.227 / 2011, dated 16-04-2012, allowing the complaint as against the 2^nd opposite party.

 

The case of the complainant is as follows:

             The complainant had availed credit facilities with the 2^nd opposite party bank during 2004, and soon after, the 2^nd opposite party bank had taken a fire insurance policy with the 1^st opposite party on behalf of the complainant. The policy covered the complainant’s plant, machinery and stock in the particular premises. At the time of taking the policy, the complainant factory was situate at Door No.582/1, Karuppa Goundanpalayam, Opposite Tamilnadu Theatre, Tirupur – 638 602, and subsequently, the complainant’s factory was shifted to S.F. No.730/1, Navithan Thottam, Thennampalayam East, Tiruppur – 641 604. The complainant duly informed the change of address / location of his business premises, to the 2^nd opposite party, and the policy was renewed by the 1^st opposite party on payment of premium by the 2^nd opposite party and during the subsistence of the policy, on 24-06-2009, fire broke out at 7-30 am in the complainant factory, and the matter was intimated to the 1^st opposite party by the complainant on 24-06-2009 itself, and on receipt of the information given by the complainant, the loss and damage sustained by the complainant was surveyed by the officials of the 1^st opposite party visiting the site, and they estimated the loss at Rs.16 Lac. Though the complainant had sustained loss and damage to the tune of Rs.30 Lac, the complainant consented to receive Rs.16 Lac restricting their claim. Subsequently, by letter dated 12-07-2010, the 1^st opposite party repudiated the claim stating that the insurance cover was for the plant, machinery and stock at the premises at No. 582/1, Karuppa Goundanpalayam, Opposite Tamilnadu Theatre, Tirupur – 641 604 and not for the materials kept at any other place, and in this case, the new address / location of the factory was not intimated to the 1^st opposite party, and there is no insurance cover for the factory at the new premises. The repudiation of the claim amounts to deficiency in service on the part of the opposite party, hence the complaint, praying for direction to the opposite party to pay compensation.

2.       According to the 1^st opposite party, the factory at the premises at No. 582/1, Karuppa Goundanpalayam, Opposite to Tamilnadu Theatre, Tirupur – 638 602 was alone insured with them and the stocks etc. at the new premises / new location was not covered under the policy. No intimation was given to the 1^st opposite party regarding the shifting of the factory to the new premises, and so there was no policy coverage for the materials in the new location, and there is no deficiency in service on their part.

 

3.       The 2^nd opposite party bank has contended that they received intimation from the complainant regarding shifting of the complainant’s factory to the new location, and they intimated the new address / change of location to the 1^st opposite party, and there is no deficiency in service on their part.

 

4.       The District Forum considered the rival contentions and allowed the complaint as against the 2^nd opposite party and dismissed the complaint as against the 1^st opposite party.

 

5.       Aggrieved by the impugned order, the 2^nd opposite party has preferred this appeal.

6.       The complaint is towards repudiation of the claim of alleged loss of stock etc. of the complainant in a fire accident that happened on 24-06-2009 in the premises not insured under the policy taken by the 2^nd opposite party bank with the 1^st opposite party. The contention of the 1^st opposite party is that the policy covered the plant, machinery and the materials stocked in the factory premises situate at No.582/1, Karuppa Goundanpalayam, Opposite Tamilnadu Theatre, Tirupur – 641 604 which is the location of the factory at the time of taking the fire policy and that they are not liable for the fire accident that took place elsewhere which was not covered under the policy. It is patently evident that the shifting of the factory to the present place i.e. S.F. No. 730/1, Navithan Thottam, Thennampalayam East, Tiruppur – 641 604, was not intimated by the 2^nd opposite party to the 1^st opposite party and hence the fire accident that took place in any different premises is not covered under the policy, and so the 1^st opposite party is not liable under the policy in this regard.

7.       The 2^nd opposite party / appellant has stated in the version that the change of address / change of location of the factory was intimated to them by the complainant, and it was duly recorded in their files, and the shifting of the factory to the present address was conveyed to the 1^st opposite party. The contention of the appellant / 2^nd opposite party is that they have discharged their duty of conveying the shifting of the factory to the new address and intimated to the 1^st opposite party, and the 2^nd opposite party is not liable for the loss  incurred by the complainant due to the fire accident in the new factory premises.

 

8.       On the side of the 1^st opposite party, the following decisions of the Hon’ble National Commission have been submitted, in support of the contention that in case of shifting to new premises / new location and the shifting is not intimated to the insurer by the bank and if fire or any other accident takes place in the new premises / new location not covered by the policy, and the insurer is not liable and the claim is liable to be repudiated:-

 

i)        Shakti Paper Products v. National Insurance Co. Ltd &

          Ors. 

 

I (2009) CPJ – II (NC)

ii)       Vijay Concern v. State Bank of India & Anr.

 IV (2013) CPJ 453 (NC)

 

iii)      Shiv Confectionary House v. Bajaj Allianz General

          Insurance Co. & Anr.

 

          IV (2013) CPJ – 8 (NC)

 

iv.      V.I.G. Traders v. National Insurance Co. Ltd.

IV (2010) CPJ – 29

 

 

9.       It is pertinent to note that in Ex.B7, which is the letter addressed by the 2^nd opposite party bank to the 1^st opposite party it has been stated that the new address / location of the new factory was recorded in their records and the same was not reported to the 1^st opposite party due to clerical error occurred over a period of time.

 

10.     It is quite significant to note that on one side, the 2^nd opposite party bank / appellant would contend in their version that the intimation regarding the change of location / shifting the factory from the previous address was duly received by them from the complainant, and it was recorded in their office registers, and the same was conveyed to the 1^st opposite party and intimation was sent to the 1^st opposite party. On the other side, as noted in Ex.B7, the 2^nd opposite party / appellant has stated that intimation was not sent to the 1^st opposite party due to clerical error in their office.

 

11.     We find no materials on record to substantiate that the 2^nd opposite party / appellant conveyed the change of address / location of the complainant’s factory premises to the new place, and therefore the contention of the 2^nd opposite party / appellant that intimation was duly conveyed / reported to the 1^st opposite party is untenable.

 

12.     The further contention of the 2^nd opposite party / appellant is that as stated in Ex.B7, the failure to report the fire accident to the 1^st opposite party is a clerical error. This goes to establish the deficiency in service on the part of the 2^nd opposite party.

 

13.     On considering the entire materials on record, we hold that there is deficiency in service on the part of the 2^nd opposite party / appellant, and they are liable to compensate the complainant against the loss due to the fire accident.

 

14.     The District Forum has assessed the complainant’s loss in fire accident at Rs.14,18,638/- as assessed by the Surveyor’s report, vide Ex.B5, and has deducted the sale proceeds of the salvage of Rs.79,807/- received directly by the complainant, and further deducting the policy excess of Rs.10,000/- and assessed the net loss at Rs.13,28, 831/-; and the District Forum has awarded a sum of Rs.50,000/- towards compensation for mental agony etc. The quantum of loss worked out by the District Forum and the award of compensation are quite just and reasonable. There is no infirmity in the order of the District Forum and we agree with the decision of the District Forum and the order does not warrant interference of this Commission.

 

15.     There is no merit in the appeal, and the appeal is liable to be dismissed.

 

16.     In the result, the appeal is dismissed confirming the order of the District Forum. No order as to costs in the appeal.

 

P. BAKIYAVATHI                                 J. JAYARAM         

MEMBER                          PRESIDING JUDICIAL MEMBER