FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB, CHANDIGARH
Misc. Application No.1925 of 2018
In/and
First Appeal No.473 of 2018
Date of Institution : 24.08.2018
Order Reserved on: 15.05.2019
Date of Decision : 21.05.2019
1. Cholamandalam MS General Insurance Company Limited, Regd. Office: Dare House, 2nd Floor, No.2, NSC Bose Road, Parrys, Chennai, Tamil Nadu-600001 through its General Manager.
2. Cholamandalam MS General Insurance Company Limited, Branch Office at 204, 2nd Floor, Gran Mall, Industrial Area, Jalandhar-144001 through its Branch Manager.
….Appellants/opposite parties No. 1 & 2
Versus
1. Shiv Shakti Enterprises through its Proprietor Karan Singh, S/o Kartar Singh O/o Shiv Shakti Traders, Manval Road, Opp. H/o Montu, Village Chak Madho Singh, Pathankot Tehsil and District Pathankot.
….Respondent/Complainant
2. Central Bank of India, RRMK, Arya Mahila Mahavidyalaya, Pathankot, through its Branch Manager.
….Respondent/Opposite party No.3
First Appeal against the order dated 20.04.2018 of the District Consumer Disputes Redressal Forum, Gurdaspur.
Quorum:-
Mr. J.S.Klar, Presiding Judicial Member
Mr. Rajinder Kumar Goyal, Member
Present:-
For the appellants : Sh.Vipul Sabarwal, Advocate
For respondent No.1: Sh.Dheeraj Mahajan, Advocate
For respondent No.2: Sh.Naren Pratap Singh, Advocate
RAJINDER KUMAR GOYAL, MEMBER
ORDER
The instant appeal has been filed by the appellants/opposite parties No.1 & 2 against the order dated 20.04.2018 passed by District Consumer Disputes Redressal Forum, Gurdaspur (in short, ‘District Forum’), whereby the complaint filed by the complainant was disposed of by directing the opposite party insurers to pay the first 1st claim qua its claimed amount along with 9% p.a. interest from the date of filing of this complaint to the present complainant within 30 days of receipt of the copy of the orders. Opposite party –insurers were further directed to settle and pay the complainant’s second claim within 30 days from the date of receipt of the requisitioned documents after submission by the complainant within 30 days. It would be apposite to mention that hereinafter the parties will be referred, as have been arrayed before the District Forum.
2. Brief facts, as averred in the complaint are that the complainant was doing private business and deals in Wall & Floor Tiles, Marble, Saria, Cement, Shuttering Material & Sanitary Fittings and general order suppliers at Defence Road, Pangoli Chowk, Pathankot under the name and style of ‘Shiv Shakti Enterprises’. The complainant was doing this business from the last many years and got the cash credit limit from opposite party No.3 in the year 2012. Initially the limit was of Rs.7-8 lacs which was further enhanced upto Rs.15 lacs. The complainant submitted his balance sheet to the Bank on yearly basis. After availing the CC limit, opposite party No.3 insured the material of the complainant lying in the business premises. The premium of the said insurance was deducted from the CC Limit of the complainant. Opposite party No.3 has made lien with the opposite parties No.1 & 2 and before renewal opposite party No.3 never consulted with the complainant. In March, 2016, unfortunately, heavy rain occurred in the surrounding areas and due to which there was a flood-like situation and due to that the wall of the premises where the material was lying got damaged due to rain water. Insurance company was informed. The complainant submitted the detail of his loss to the insurance company which comes to Rs.8,96,000/-including damaged portion of boundary wall and material stock. In July, 2016, again due to heavy rain the material amounting to Rs.9,88,000/- lying in the premises got damaged and again opposite parties No.1 & 2 were informed. Then the surveyor was deputed by the opposite parties No.1 & 2 to assess the loss and the surveyor was provided all the requisite documents and papers as and when demanded to the complainant. The complainant received one letters 20.06.2016 and 04.11.2016, whereby, opposite parties No.2 & 3 refused the claim of the complainant which is against the principles of natural justice. The complainant then approached the opposite parties, who flatly refused to settle the claim of the complainant. Alleging deficiency in service and unfair trade practice on the part of opposite parties No.1 & 2, the complainant filed the complaint before the District Forum and sought the following reliefs:-
i) to pay Rs.18,84,000/- along with interest at the rate of 18% per annum; and
ii) to pay Rs.20,000/- as cost of litigation.
3. Upon notice, opposite parties No.1 & 2 appeared and filed their reply by taking preliminary objections that the complainant has no cause of action to file the complaint. Both the parties are bound by the terms and conditions of the policy. It was stated that the claim has been filed by the complainant regarding the alleged date of loss i.e. 21.03.2016 and the claim NO.2130002831 was lodged and after going through the documents, the claim was repudiated vide letter dated 20.06.2016. It was the duty of the insured to provide/ submit all the documents to support the cause of loss and extent of loss. It was stated that the fire policy is a named Peril Policy and the policy triggers only when any of the insured peril was in operation. Due to this reason, the claim is not tenable as per policy terms and conditions and the claim has been closed. Similarly, in another claim having No.2130003076 regarding date of loss dated 27.07.2016 has been raised and in that claim the letter dated 04.11.2016 has been sent and claim has been closed. On merits, all the averments as averred by the complainant in his complaint are denied and prayed to dismiss the complaint.
4. On the other hand, opposite party No.3 filed its reply. It was admitted that the complainant is running alleged business in the name of Shiv Shakti Enterprises. It is further admitted that the complainant availed a Cash Credit Limit of Rs.15 lacs from opposite party No.3. It was submitted that in every cash credit limit to get the insurance of the goods/material lying in the business premises of the borrower is mandatory. It is further submitted that insurance is got done by opposite party No.3 before expiry of the period of insurance so that no loss is caused to the borrower and bank by any mis-happening. It was submitted that the complainant be put to strict proof of allegations leveled against the loss of Rs.8,96,000/-. Opposite party No.3 has nothing to do in the complaint filed by the complainant. There is no deficiency in service or unfair trade practice on its part. It was prayed to dismiss the complaint against opposite party No.3; as there is no deficiency in service or unfair trade practice on its part.
5. The parties produced the evidence in support of their respective averments before the District Forum, which after going through the same and hearing learned counsel appearing on their behalf, disposed of the complaint, vide impugned order. Hence, this appeal by the appellants/opposite parties No.1 & 2 .
6. Notice of this appeal was issued to respondent No.1 being complainant and respondent No.2 being opposite party No.3.
7. We have heard learned counsel for the parties and have carefully gone through the records of the case.
8. Learned counsel for the appellants/opposite parties No.1 & 2 argued that the order passed by the District Forum is against the actual facts and settled principles of law. The District Forum has failed to appreciate that with respect to the first claim, damage to the boundary wall of the insured premises and the stock of goods as claimed were not payable as per policy terms and conditions as the affected perils damaged due to heavy rains which is not an insured peril. Also, the policy does not cover the stocks lying at the building of respondent No.1. The District Forum has failed to appreciate the report of the surveyor. It was argued that the reason of collapse of the boundary wall is the load on the wall due to stacking of marble tiles, and not to any perils covered under the policy. The respondent/complainant has totally failed to prove its allegations and losses being claimed by him. The District Forum has also erred that in the absence of any cogent evidence regarding the amount of loss to respondent No.1 the loss could only be granted to the extent it was found to be present as per the report of the surveyor. The District Forum had also failed to appreciate that the respondent/complainant has not supplied all the relevant documents demanded by the surveyor. There is also a delay in lodging the claim of second claim which is not explained and no details of loss etc. have been provided. The balance sheet and accounts details of the respondent/complainant are not certified. There was no deficiency in service or unfair trade practice on the part of the appellants/opposite parties No.1 & 2. It is prayed that the appeal be allowed and the order passed by the District Forum be set aside.
9. On the other hand, learned counsel for the respondent/complainant argued that there is no illegality in the order passed by the District Forum and it needs no interference. The District Forum has passed the order in favour of the complainant after going through the proper evidence on record. There is no merit in the appeal and prayed to dismiss the appeal with costs.
10. However, learned counsel for respondent No.2 argued that there is no role of opposite party No.3 and the complaint filed against opposite party No.3 be dismissed. The complainant has availed a Cash Credit Limit of Rs.15 lacs from opposite party No.3 and in every cash credit limit to get the insurance of the goods/material lying in the business premises of the borrower is mandatory. It was also necessary to get the insurance done before expiry of the policy so that no loss is caused to the borrower and bank by any mis-happening. There is no deficiency in service on the part of opposite party No.3 and prayed that the complaint against opposite party No.3 be dismissed.
11. Before discussing the case on merits, it is to check whether the order passed by the District Forum without going through the surveyor report is a well reasoned or justified order. In our view that these kind of cases, where the insured filed the complaint before the District Forum for getting his insurance claim without any cogent evidence. In the instant case, the complainant nowhere agitated that the surveyor report has not been submitted by the opposite parties, whereas he was very well aware that the surveyor inspected the premises and assessed the loss and he submitted the documents to him on his demand. Now, in the appeal, the appellants themselves have filed an application for additional evidence to place on record the reports of the surveyors as well as weather report of the day of incident, which was never came forward before the District Forum. In the absence of surveyor’s report, the order passed by the District Forum allowing the complaint of the complainant on the basis of submission of bills and other documents cannot be justified or reasoned one and it needs reconsideration.
12. The appellants along with the appeal has filed an application bearing M.A. No.1925 of 2018 for seeking permission to place on record the additional evidence/documents on the ground that at the time of leading evidence before the District Forum, Gurdaspur, the appellants were not contained certain essential documents in their evidence, which are material in nature for proper adjudication of the case.
13. Reply to the application has been filed by the respondent No.1/complainant in which, it is contended that the application for additional evidence at this stage is not maintainable as the application does not fulfill the requirement of order 41 Rule 27 CPC and cannot be allowed. It is further contended that it is a settled principle of law that evidence beyond pleadings cannot be looked upon and these documents were never pleaded in the written statement filed by the appellants before the District Forum.
14. On the other hand, respondent No.2 in its reply stated that the application filed by the applicant is misconceived and against the law and thus deserves to be dismissed. It is further stated that the documents produced by way of additional evidence are not necessary for proper adjudication of the present appeal. Therefore, the application for additional evidence deserves to be dismissed.
15. We have heard the learned counsel for the parties on the application and have perused the documents filed along with the said application.
16. The appellants want to place on record survey reports dated 27.05.2016 and 07.11.2016 prepared by the surveyor after spot inspection, annexed herewith as Annexure A-6 & A-9, and a weather report as Annexure A-11. From the perusal of these documents, we find that the survey reports are material documents for proper adjudication of the case, however, the weather report is also necessary to decide the case as the complainant in his complaint has stated that the damage caused to the stock and building only because of flood on the day of incident. Accordingly, the application for additional evidence filed by the appellants is allowed.
17. In view of the above discussions, the case is remanded back to the District Forum with the direction to the District Forum to decide the case afresh after giving the opportunities to both the parties to tender the documents into evidence. The parties are directed to appear before the District Forum on 05.07.2019.
18. The appellant had deposited a sum of Rs.25,000/- at the time of filing of the appeal. It deposited another amount of Rs.7,76,576/- vide receipt No.1461816 in compliance of the order dated 12.04.2019. Both these amounts along with interest which has accrued thereon, if any, be remitted by the Registry to the appellants / opposite parties No.1 & 2 by way of demand draft/ cross cheque, after the expiry of 45 days of the sending of certified copy of the order to them.
19. Arguments in this appeal were heard on 15.05.2019 and the order was reserved. The certified copies of the orders be communicated to the parties, as per rules.
20. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(J.S.KLAR)
PRESIDING JUDICIAL MEMBER
(RAJINDER KUMAR GOYAL)
MEMBER
May 21, 2019
parmod
