This complaint coming up before us for final hearing on                      17-10-11 in the presence of Sri P.V.Ramana, Advocate for complainant and of Sri P.N.B.Sarma, Advocate for 1^st opposite party,                          Sri V.Nageswara Rao, Advocate for 2^nd opposite party, upon perusing the material on record, hearing both sides and having stood over till this day for consideration, this Forum made the following: 

O R D E R

Per Sri M.V.L.Radha Krishna Murthy, Member:

                This complaint is filed under section 12 of the Consumer Protection Act, 1986 to direct the 2^nd opposite party (a) to furnish the survey report to the complainant and allow him to take steps on the survey report, (b) to direct 2^nd opposite party to pay the loss of Rs.9,99,830/-, (c) to direct the opposite parties to pay an amount of Rs.14,10,830/- (comprising of Rs.9,99,830/- for the loss of property (timber logs), Rs.2,00,000/- for the loss of business, Rs.1,00,000/- for mental agony, Rs.1,00,000/- for compensation and Rs.11000/- toward legal expenses) and to pass other necessary and appropriate orders.

The averments of complaint in brief are as follows:

                The complainant established Timber Depot in the year 1995 and running business in the name and style of Sri Padmaja Timber and Furniture works at 10-14-5 SBI Road, Near Rajya Laskhmi Theater, Repalle.  The business was established with the funds of 1^st opposite party who sanctioned loan of Rs.1,50,000/- in the year 1995 after inspecting the premises and assessed the value of the establishment.  With a view to safeguard the loan amount 1^st opposite party insured the firm with 2^nd opposite party and took policy on behalf of complainant.  The complainant improved his business step by step every year.  The 1^st opposite party impressed by the complainant’s promptness and solvency. The complainant requested the 1^st opposite party for enhancement of bank loan limits.  Accordingly, 1^st opposite party enhanced loan limits to a tune of Rs.20,00,000/- for the year 2008-2009.  Every year 1^st opposite party used to renew the insurance policy by paying premium to the 2^nd opposite party as per the value of stock.  The policy sum assured amount is Rs.22,00,000/-.  Complainant maintained the stock worth Rs.60,00,000/- to Rs.70,00,000/- by investing his own money and loan money. Later complainant shifted his premises from Door No.10-14-5, SBI Road, Near Rajya Laskhmi Theater to Door No.1-6B, Uppudi Road, Repalle where the premises space is much better than the earlier one on the basis of rent.  The shifting of premises was for want of large space and to install saw mill and running business in the name and style of Sri Padmaja Saw Mill and Timber Depot.  Later the said premises was also purchased by the complainant and relevant license from Forest Department and Commercial Tax Department were submitted to the 1^st opposite party every year duly assessed by Commercial Tax Department and Income Tax Department.  But the 1^st opposite party even after receiving the same renewed insurance policy with old address particulars.  The complainant signed on the blank printed proposals of insurance policy every year. 

                Unfortunately on 06/07-10-09 there is a wide and heavy Krishna river flood happened.  The river flood and inundation caused heavy damage to the property and public causality.  It was affected to Repaplle Town also.  The river water entered in the Repalle Town to        3 to 4 ft. depth.  Due to the said flood, complainant’s firm also severely effected and teak large logs were carried away by the flood water.  At the time of flood, the complainant’s firm is having Rs.70,00,000/- worth teak and other large logs stocked in the open space.  The complainant shooted the flood with his cell phone due to non availability of photographer because the entire town was in 4ft. water.  The complainant intimated the same to opposite parties as well as all officials.  The Sarpanch of Gram Panchayat, Uppudi who issued certificate that the complainant’s firm lost timber teak wood and other wood logs due to heavy flood and inundation, estimated the amount of loss to a tune of Rs.10,00,000/- and Mandal Tahsildar also issued a certificate dt.10-10-09 about the loss of timber.  Basing on the intimation of complainant, 2^nd opposite party appointed surveyor by name N.Vinay Kumar who inspected the complainant’s premises on            12-10-09, 14-10-09 and 15-10-09 for verification of stock and for the assessment. Complainant submitted all documents to the surveyor.  The surveyor assessed the loss and submitted the same to the 2^nd opposite party.  Later complainant approached the 2^nd opposite party for settlement of claim and requested for furnishing the survey report.  The 2^nd opposite party refused to supply survey report to the complainants.  Due to non-supply of survey report, the complainant lost his opportunity to seek for further survey report.  The complainant was deprived of his right to know about survey report for confirmation of assessment of loss due to flood.  Complainant lost his property worth Rs.9,99,830/- for which the complainant prepared an inventory for the lost timber in detail.  Complainant submitted claim form on    04-11-09.  Inspite of several requests made by complainant, opposite parties 1 ad 2 failed to process the claim and pay the same to the complainant.  The insurance policy obtained by 1^st opposite party from 2^nd opposite party on behalf of complainant was subsisting by the date of incident.  Thus opposite parties committed deficiency of service.  Both opposite parties are jointly and severally liable to pay the claim amount.  Complainant got issued a legal notice to both opposite parties demanding to furnish the surveyor report and to settle the claim but there is no reply from them.  Hence, the complaint.

The 1^st opposite party filed its version, which is in brief as follows:    

                Most of the allegations mentioned in the complaint are incorrect and false and the complaint is not maintainable under law.  This Forum has no jurisdiction to entertain this type of complaint.  The issues involved in this case cannot be determined without elaborate, oral and documentary evidence and examining the witnesses.  Hence, the remedy if any, the complainant has to approach the Civil Court only.  The complaint is premature.  The surveyor submitted his report on 28-03-10 whereas the complaint was filed during February, 2010 that is even before submission of surveyor report.  The complainant has no cause of action against this opposite party.  This opposite party made the insurance in the name of complainant regularly.  The change of address and name was also informed to the representative of 2^nd opposite party, who used to visit this opposite party.  It is the responsibility of 2^nd opposite party to verify the location, address and name of the insured and has to seek clarification from this opposite party if any doubt arose.  This opposite party is only a middle man to the insured and the insurer but not otherwise.  It is true that M/s.Padmaja Timber and Furniture Works and Sri Padmaja Saw Mill and Timber Depot are one and the same and initially complainant did business at Door No.10-14-5, Near Rajya Lakshmi Teater and later changed to door no.1-6B, Door No.87/3, Uppidi village, Repalle Mandal, Guntur District.  The complainant is not a consumer and he cannot maintain complaint.  On receipt of intimation about the alleged loss, 2^nd opposite party appointed insurance surveyor N.Vinay Kumar and he submitted his report on 28-03-10.  Later this opposite party has no information about the claim of complainant. This opposite party is not aware about the genuinity of the certificates produced by the complainant.  There was no deficiency of service on the part of this opposite party as this opposite party insured promptly and sent the claim of complainant to 2^nd opposite party in time and the remedy lies against the 2^nd opposite party but not against this opposite party.   Hence the complaint may be dismissed with costs against this opposite party.     

The 2^nd opposite party filed its version which is in brief as follows:

                Most of the allegations mentioned in the complaint are false and incorrect and the complaint is not maintainable under law. This Forum has no jurisdiction to entertain this type of complaint as the issues involved cannot be determined without elaborate oral and documentary evidence.  Hence, the complainant has to approach civil court.  The complaint is premature.  The surveyor submitted his report on 28-03-10 and the complaint was filed during February, 2010 even before submission of surveyor report.  The complainant has no cause of action against this opposite party.  This opposite party did not issue any policy in the name of the firm Sri Padmaja Saw Mill and Timber Depot.  The policy was issued in the name of M/s Padmaja Timber and Furniture Works only.  The insured premises is also entirely different from the premises where the alleged loss is caused. As per policy, the insured premises is situated at Door No.10-14-5, Near Rajya Laskhmi Theater, Repalle whereas the alleged loss was caused at Door No.1-6B D.No.87/3, Uppidi Village, Repalle Mandal, Guntur District.  This opposite party has not issued any policy covering the risk either in the name of complainant’s firm or at the premises of T.Jagadeeswara Rao situated in Uppudi Village, Repalle Mandal.  The complainant does not come under the definition of consumer and he cannot maintain the complaint. The complainant purposefully suppressed and avoided filing the copy of insurance policy along with complaint.  Hence, the complainant has no cause of action against this opposite party.  On receipt of intimation about the alleged loss, this opposite party appointed surveyor and he submitted his report dt.28-03-10.  The surveyor visited the premises, where the alleged loss caused on several times starting from 10-10-09 and inspected the relevant records, obtained necessary documents and submitted report.  The surveyor observed that the insured firm name and the premises are different from the place, where the alleged loss was caused and that there was no loss caused as alleged, that the complainant tampered the documents to suit his claim and ultimately concluded that the claim is not genuine and it can be repudiated.  The contents of surveyor report may be read as part and parcel of the version.  After going through the surveyors report, this opposite party came to the conclusion that the claim is not entertainable and hence, repudiated the same and sent intimation to the complainant by its letter dt.31-03-10.  The complainant stated that due to over sight, the 1^st opposite party obtained policy in the name of old firm with old address.  It is the duty of the complainant to see to which firm he has been obtaining the policy, the particulars of the premises where he wanted the insurance coverage for his goods/stock etc.  It is a matter between the complainant and 1^st opposite party and this opposite party has nothing to do with the same.  Even for change of premises during the currency of the policy, one has to obtain the necessary endorsement from the insurer.  Otherwise as per clause 13 of General Exclusions, the insurer has no liability whatsoever. 

                The complainant claimed that teak logs, teak sizes etc. are flooded away in the flood water, which entered into the premises to a height of 3 to 4 ft. and caused loss to a tune of Rs.10,00,000/- but the photographs taken by the surveyor shows that the teak logs, teak sizes etc. are intact and even small sizes are present.   There may be inundation but there is no possibility of teak logs and teak sizes etc. flooding away in the said water and there will not be such force in the water of 3 to 4 ft. to take away the heavy weights like teak logs, fire logs etc.  The stock position as on 06-10-09 i.e., one day prior to entering flood water into the premises and the stock position on 10-10-09 i.e., the date of surveyor’s visit is almost one and the same. The complainant submitted stock summary as on 06-10-09 signed by him and also the Charted Accountant.  The surveyor visited the premises of complaint on 10-10-09 and obtained stock statement from the complainant.  As per both the stock position is as hereunder           

Stock position as on 10-10-09                 Stock position as on 6-10-09 as per

When surveyor visited the premises          stock summary signed by the complainant                                                   and also the charted account

Fire wood                10.00 Tonnes                    10.00 Tonnes

Non Teak Logs         93.00 CBM                        93.6168 CMT

Non-Teak sizes         7.526                               7.5264

Teak logs                177.000                            240.0408

Teak sizes               26.000                             48.8041

There is no loss caused to the stock.

                In support of his claim, the complainant has gone to the extent of tampering the certificate issued by the Tahsildar, Repalle.  The complainant managed things to show that he sustained loss.  The certificate said to have been issued by Sarpanch, Grampanchayat, Uppudi might be a fabricated one or stage managed one and it has no evidentiary value.  The complainant obtained a certificate dt.10-10-09 from Tahsildar, Repalle Mandal in which it was stated that flood water entered into Repalle Town and so also into the premises of complainant. But the complainant tampered with the said certificate and got typed “the teak logs and sizes in the depot are flooded away in the flood water”.  The complainant submitted the said tampered certificate to the surveyor who in turn cross checked the same with the Tahsildar office, Repalle.  The Tahsildar addressed a letter dt.25-02-10 to the surveyor mentioning that they issued certificate stating that the flood water entered into the premises of complainant.  The sentence occurring in the certificate that teak logs, teak sizes were also drowned and carried into flood water is not a genuine one (tampered by complainant).  The Tahsildar also sent office copy of original certificate dt.10-10-09.  The letter of Tahsildar along with said copy of certificate may be read as part and parcel of this version.  The complainant did not come to the court with clean hands.  He fabricated the documents to suit his claim as submitted above and filed complaint.  As per the record the complainant has stock worth Rs.60,00,000/- to Rs.70,00,000/- whereas the policy was taken for Rs.22,05,100/- only. Thus there is under insurance.  Further there is no documentary proof to show that the complainant sustained loss of Rs.9,99,830/-.  The repudiation of claim made by this opposite party is legal, value and binding.  This opposite party repudiated the claim basing on the report of surveyor and also thoroughly examining the claim papers.  Hence, there is no deficiency of service on the part of this opposite party and the complaint is not maintainable.  Hence, the complaint may be dismissed with costs.   

                The complainant and opposite parties 1 and 2 have filed their respective affidavits in support of their versions reiterating the same. 

                On behalf of complainant Ex.A1 to A28 are marked, on behalf of 1^st opposite party Ex.B1 and B2 are marked and on behalf of 2^nd opposite party Ex.B3 to B12 are marked.

                At the stage of hearing on 23-05-11 complainant filed IA 262/11 praying to direct the development office of 2^nd opposite party to give evidence and examine the witness on both.  The said IA was disposed of on 09-08-11 with the following direction:

                Affidavit of the Development Officer of the 2^nd opposite party is not before this Forum. Taking a clue from the decisions referred, the petitioner complainant can serve interrogatories on 2^nd respondent/opposite party on the points which he intends to cross examine.

                In view of the above order in the said IA interrogatories are filed by the complainant and the same were answered by the 2^nd opposite party. 

Now the points for consideration are

1. Whether the complainant is a consumer and the complaint is maintainable?
2. Whether the opposite parties 1 and 2 are liable for the alleged loss of the complainant?  
3. Whether there is any deficiency of service on the part of opposite parties 1 and 2?
4. To what relief the complainant is entitled to?

POINT No.1

                The case of the complainant is that he is doing business in timber by establishing the Timber Depot in the year 1995 under the name and style of Sri Padmaja Timber and Furniture works at Door No.10-14-5, State Bank of India Road, Near Rajya Lakshmi Theater, Repalle, that subsequently he obtained loan from 1^st opposite party bank for doing business, that in order to safeguard the loan amount, 1^st opposite party bank insured his firm with 2^nd opposite party and renewing the same from time to time, that he developed his business and also installed saw mill and renamed his firm as Sri Padmaja Saw Mill and Timber Depot and for want of sufficient space he shifted his business premises to Upppudi Road, Door No.1-6B, Repalle and that during the subsistence of the insurance policy on 6/7-10-2009 as flood water entered into his business premises some teak logs were carried away flood water and he incurred loss to a tune of Rs.10,00,000/- for which he made a claim to 2^nd opposite party but 2^nd opposite party has not settle the claim and that opposite parties 1 and 2 are liable for the loss and that there is deficiency of service on the part of opposite parties 1 & 2.

        The case of 1^st opposite party bank is that this Forum has no jurisdiction to entertain this type of complaint, that the complaint is premature since the same was filed prior to surveyor report that this opposite party made insurance in the name of complainant regularly and the change of address and name of the complainant firm was informed to the representative of the insurance company, who visited this opposite party, that it is the responsibility of the 2^nd opposite party to verify the location address and name of the insured, that this opposite party is only a middle man to the insured and insurer but not otherwise, that M/s.Padmaja Timber and Furniture Works and Sri Padmaja Saw Mill and Timber Depot are one and the same, that initially the complainant did business at Door No.10-14-5, near Rajya Lakshmi Theater, Repalle and later changed the business premises to door No.1-6B, Uppudi Village, Repalle, that the complainant does not come under definition of consumer, that on the claim of the complainant, 2^nd opposite party appointed surveyor who submitted a report on 28-03-10 and that there is no deficiency of service on the part of opposite party.  

        The case of 2^nd opposite party insurer is that the complaint is premature, this Forum has no jurisdiction to entertain the complaint that 2^nd opposite party did not issue any policy in the name of firm Sri Padmaja Saw Mill and Timber Depot, the policy was issued in the name of M/s. Padmaja Timber and Furniture Works only, the insured premises is also entirely different from the premises where the alleged loss is caused, that as per the policy the insured premises is situated at door No.10-14-5, Near Rajya Lakshmi Theater, Repalle whereas the alleged loss caused at door No.1-6B, D.No.87/3, Uppudi Village of Repalle Mandal, that the complainant does not come under the definition of consumer, that on receipt of the intimation about the alleged loss this opposite party appointed surveyor, who submitted his report dt.28-03-10, that the surveyor observed that the insured firm name and the insured premises is different from the place where the alleged loss caused, that there is no loss caused as alleged, that the complainant tampered the documents to suit his claim and ultimately the surveyor concluded that the claim is not genuine, that the certificate issued by the Tahsildar was tampered by the complainant and that the repudiation made by 2^nd opposite party is legal, valid and binding and that there is no deficiency of service on the part of 2^nd opposite party.

        Complainant is doing business in timber and obtained loan from 1^st opposite party and that 1^st opposite party got insured the business premises of complainant with 2^nd opposite party.  The policy issued by 2^nd opposite party is for indemnification of loss and that it is not intended to generate profit.  Therefore, insurance policy taken by commercial unit of complainant is within the purview of the Consumer Protection Act.  Therefore, the complainant is a consumer and the complaint is maintainable before this Forum. 

POINT No.2:-

                The complainant in his complaint alleged that the 2^nd opposite party refused to supply the report of the surveyor and due to non-supply of the same, the complainant lost his opportunity to seek further survey report.  For which the 2^nd opposite party stated in his version that surveyor submitted his report dt.28-03-10, whereas the complainant filed the complaint somewhere in the month of February, 2010 i.e., even before submission of the report by the surveyor.  The complaint was filed before the Forum on 18-02-10, whereas the report of the surveyor Ex.B4 is dt.28-03-10, it clearly shows the complaint is filed much earlier to the report of the surveyor.  Therefore, the said allegation of the complainant is baseless has no legs to stand. 

                As seen from Ex.B3 policy issued by 2^nd opposite party it is in the name of “SBI, Repalle, Account M/s.Padmaja Timber and Furniture Works, Near Rajya Lakshmi Theater, Repalle.”       Therefore the SBI (1^st opposite party) is in the place of coinsured along with the firm M/s.Padmaja Timber and Furniture Works, which is the alleged earlier name of the firm of the complainant and the address is also the premises of the alleged old firm of the complainant.  The claim of the complainant was repudiated by the 2^nd opposite party basing on the report of the surveyor dt.28-03-10 on the following grounds. 

• “The name of the insured and the location covered under the policy is different. The name of the insured is SBI, Repalle A/c.Ms.Padmaja Timber & Furniture works, near Rajyalakshmi theater, Repalle, Guntur District whereas the claim is made for the alleged loss caused to Ms.Sri Padmaja Saw Mill & Timber Depot, D.No.87/3, Uppidi Village, Repalle Mandal, Guntur District.
• Your claim is the teak logs, teak sizes etc. are washed away in the flood water which entered into your premises to a size of 3 to 4 feet and caused loss to a tune of Rs.10 lakhs.  But the photographs taken by the surveyor shows that teak logs, teak sizes are in tact and even small sizes are present.  There my be inundation but there is no possibility of teak logs and teak sizes etc. washed away in the said water and there is no such force in the stagnated water to take away the heavy weights like teak logs, fire logs etc.
• The stock position as on 06-10-2009 i.e., one day prior to the entering the flood water into your premises and stock position as on 10-10-2009 i.e., the day of surveyor’s visit is almost one and the same.  Thus there is no loss to the stock stored in the said premises.  We also noticed that you have gone to the extent of tempering the certificate issued by the Tahsildar, Repalle to support your claim”.   

                As seen from Ex.B3 as already stated above, it was issued in the name of SBI under account of M/s.Padmaja Timber and Furniture works i.e., in the old name of the firm of the complainant with the earlier address.  It was not issued in the name of the new firm and its address of the complainant.  For which the complainant contends that he signed on the blank printed proposal insurance policy papers every year and 1^st opposite party got renewed the insurance policy by filling the old address particulars in the proposal of the policy due to oversight.  But 1^st opposite party contends that the change of address and name of the complainant firm was informed to the representative of the insurance company, who visited 1^st opposite party and further contends that it is the responsibility of the 2^nd opposite party to verify the location, address and name of the insured and 2^nd opposite party has to seek clarification from 1^st opposite party if any doubt arose and that 1^st opposite party is only a middle man to the insurer.   The policy in question i.e., Ex.B3 obtained by 1^st opposite party is with 1^st opposite party.  If 1^st opposite party has informed the new address and the new name of the firm of complainant to the representative of 2^nd opposite party, he has to verify as to whether the policy issued by 2^nd opposite party is with the correct address and name of the firm and raise his objection for mentioning the old name and address of the firm of complainant.  But that was not done by 1^st opposite party.   Neither the complainant nor 1^st opposite party have not noticed the name of the old firm and the address mentioned by 2^nd opposite party in the policy issued to them.  The 2^nd opposite party contends that even for change of premises during the currency of policy, the insured has to obtain necessary endorsement from the insurer and denies the contention of 1^st opposite party that 1^st opposite party has informed the new name of the firm and new address of the complainant to the representative of 2^nd opposite party.  During the course of arguments, the learned counsel for 2^nd opposite party argued that 2^nd opposite party has issued policy basing on the information furnished by 1^st opposite party without inspecting the premises of the insured.  It is the duty of the insurer to inspect the proposed insured premises before issuing policy.  But that was not done by 2^nd opposite party and simply says that basing on the information furnished by 1^st opposite party they have issued policy.  Complainant failed to furnish the filled in proposal form.  1^st opposite party failed to verify as to whether the policy was issued in the current name of the business premises of complainant and its address. 2^nd opposite party failed to inspect the proposed premises before issuing the policy. Thus the complainant, 1^st opposite party and 2^nd opposite party as already stated above ignored their responsibility and now throws blame on each other. The policy (Ex.B3) was issued for the period from 17-01-09 to 16-01-10.  According to complainant, the business premises was shifted to the new address under the name and style of Sri Padmaja Saw Mill and Timber Depot for want of sufficient space and that the said new premises was purchased by him on 14-12-07 under a registered sale deed.  In support of his contention, he filed Ex.A5 certificate of registration issued by Commercial Taxes Department, dt.15-05-08, Ex.A6 Vat certificate dt.15-05-08, Ex.A7 license issued by Forest Department dt.29-02-08 and Ex.A8 copy of registered sale deed          dt.14-12-07.  Therefore, it can be safely concluded that the business premises of complainant was shifted to the new address under the name and style of Sri Padmaja Saw Mill and Timber Depot much earlier to issuance of policy in question by 2^nd opposite party.  Therefore, it can be safely concluded that 2^nd opposite party has not inspected the proposed insured premises prior to issuance of policy.  Further 2^nd opposite party has not filed the proposal form before this Forum in support of their contention to prove the same.  Further 1^st opposite party contended that the name of old firm and the new firm of the complainant are one and the same.  As already stated above the 2^nd opposite party has issued policy without verification and inspection of the premises prior to issuance of policy and 1^st opposite party failed to notice the address particulars in the policy and did not get the necessary endorsement on the policy from 2^nd opposite party. 

                 In support of its contention, 2^nd opposite party relied on a decision reported in 2010 CJ 325 (NC) between Oriental Insurance Company Ltd. and another Vs. P.R. Automobiles & Oils and another, wherein it was held- “It was not only the duty of the complainant/insured to intimate the change of address where the property is situated, but also to get endorsement of the change of location duly singed by the official of insurance company in the policy of insurance and till then, no risk is assumed in respect of new location”.

        The facts of present case on hand are different to that of facts in the above cited case.   Hence it is not applicable to the case on hand in view of the latest following decision relied on by the complainant counsel.

        The counsel for the complainant relied on the following decision in support of his contention

        2011 (3) CPR 248 (NC) between United India Insurance Company Ltd.  Vs. Sai Krishna Panels & Doors and another, wherein it was held none can be permitted to take advantage of deficiency on the part of other, to deny complaint is due claim.  Here in this case deficiency of service is found both on the bank and as well as on the insurer.   

        During the pendency of complaint, complainant filed         IA 262/11 praying to direct the Development Officer of 2^nd opposite party who insured the unit of complainant and issued policy and 2^nd opposite party to give evidence and examine the witnesses on both.  The said IA was disposed of with a direction that the complainant is at liberty to serve interrogatories on 2^nd opposite party.  Accordingly complainant filed some interrogatories touching the liability of opposite parties 1 and 2 and 2^nd opposite party has answered the same.  The interrogatories are regarding the liabilities of opposite parties 1 and 2 in case of any loss sustained by the complainant as alleged in the complaint.  Out of the answerers of the said interrogatories, 2^nd opposite party furnished answer relating to the particulars about the inspection of the premises before issuing policy stating that the policy is a continuous one since 2003 and it will not require to inspect the premises at each time of renewal and the insurance will be granted as per the information provided by the banker.  The 1^st opposite party/ banker submits that it has given information as per Ex.B1 to the representative of the insurer. Ex.B1 is the application-cum-interview farm for mortgage loan for trade and service sector, wherein the name of the old firm was mentioned against the name of the unit.  But the address of the unit was noted as Gandhi Nagar, 13^th Ward, Uppudi, Repalle. Even in that Ex.B1 also, the new firm name of the complainant was not noted. Ex.B1 is only an application for mortgage loan.  It is in between the complainant and 1^st opposite party.  It has no relevance with 2^nd opposite party.  Even assuming that 1^st opposite party has issued correct address and name of the firm to 2^nd opposite party.  1^st opposite party failed to notice the name and address given in the policy after receipt of the same and failed to get it corrected and failed to get necessary endorsement of the insurer on the policy.  As already stated above the banker herein is a coinsured. Therefore, simply on furnishing the information by the banker issuing policy by the insurer without inspecting the proposed premises amounts to negligence on the part of insurer.  As already stated above,                      1^st opposite party bank the coinsured also failed to notice the name and address particulars given in the policy issued by 2^nd opposite party and failed to get necessary endorsement of the insurer on the policy in question.    

                In the present case on hand, according to complaint the blank proposal duly singed by the complainant was given by complainant to the 1^st opposite party and 1^st opposite party contends that it has informed the representative of the 2^nd opposite party about the existing name and address particulars of business premises of complainant. It is not the case of 2^nd opposite party that they have inspected the premises and verified the same prior to issuance of policy.   Moreover OP2 contended that as it is a continuous policy they have not inspected the premises prior to issuance of policy in question. Therefore, we are of the opinion that 1^st opposite party is negligent for not verifying the policy received by him as to whether the policy was issued in the current name of the firm and new address particulars and 1^st opposite party failed to get the necessary endorsement of the insurer relating to the correct name and address of the firm of the complainant on the policy.  Therefore, in the circumstances of case, it can be safely concluded that if any loss occurred to the complainant, opposite parties 1 and 2 are equally liable to share the same, in view of the decision relied on by the counsel for complainant. Accordingly this issue is answered.

POINT No.3

                Now the point remains to be decided is whether the complainant has actually sustained any loss as alleged by him.  On receipt of the claim of the complainant 2^nd opposite party appointed a surveyor to inspect the insured premises of the complainant and submit report.  The said surveyor after inspection of the scheduled premises submitted a report Ex.B4.  The main contents of Ex.B4 dt.28-03-10 surveyor report are as follows:

                He observed that the insured firm M/s.Padmaja Timber and Furniture Works was shifted from the earlier address to Uppudi Road and also found change of name of the firm as Padmaja Saw Mill and Timber Depot.  He observed 10 logs teak lying at Saw Mill Premises were not covered under the captioned policy.  The western side boundary was partly protected by wooden rafters and remaining was left free and its level is lower to road level.  He observed that the fire wood stocks lying at western side of the premises were intact as shown in the photos. Southern side was protected by GI wire with RCC poles, which is 4ft. height than the ground level and this side was being used for storage of wooden rafters in heap form and fire wood were intact.  The saw mill shed roofed with GI sheets.  Out of them one portion is used for stocks of cutting sizes, which are intact.  Main shed was being used for vertical saw mill, cutting sizes and teak and non-teak logs were intact.  The third portion is being used for stocks of cutting sizes and their office and partly used for logs moving towards vertical saw mission. Northern side log heaps protected by boundary trees and they are intact. Teak and non-teak wood logs were kept north and eastern side of premises.  Eastern side no fencing and it is an open fencing to the road.  Bid size logs of teaks and non-teaks were kept in lower layers and small logs were kept in upper layers on heaps. The State Government authorities gave warning/alarm three days before flood water entering in this premises and Repalle Town.  As such the Firm Proprietor had taken all possible preventive measures to control the loss from flood water.   The flood water entered into this area as the point of breach was at a lower level than the cannel which is 4km away from eastern side of this firm area.  As such the flood water entering into this firm from eastern side only and its level is 1.5 to 2 ft. in height from ground level.   The stocks of teak logs and non-teak logs which were facing the flood water from eastern side lying at a height of more than 4ft.  Hence, the flood water cannot move the heavy logs.  The velocity of flood water is not enough to carry the heavy teak and non-teak logs as the flood water is wide spread from the breaching point.

                On verification of the relevant records of the stocks, the surveyor mentioned that there was no difference in stock positions before and after the flood inundation.  Hence, he concluded that there was no loss of stock of teak wood logs and sizes in the said location due to floods and inundation occurred on 07-10-09.  Hence, he released his ‘nil’ assessment report.     

                The surveyor made following observations in his report:

1. It is observed that the policy was issued covering the stocks of M/s.Padmaja Timber and Furniture Works at D.No.10-14-5, Near Rajya Lakshmi Theater, Repalle, but there was no trading in this premises at the time of loss.
2. As per the record submitted by insured it is noted that the stocks are lying at door No.1-6B, Uppudi Road, 1.87 or 87/3, Uppudi Village and the firm stands in the name of Sri Padmaja Saw Mill and Timber Depot.
3. The insured obtained a license from Divisional Forest Officer, Guntur on 24-04-05 and it was expired on            31-03-08.
4. The firm Proprietor confirmed stock position as 10 tones of fire wood as on 10-10-09 after reporting the loss, whereas the same quantity of stocks was confirmed by the Charted Accountant prior to flood and inundation.
5. The firm proprietor submitted a copy of letter from Sarpanch of Uppudi Village, Repalle, which contains that the firm suffered a loss of 10 tones worth teak wood and its sizes. The firm proprietor also obtained a certificate from Local Revenue Authorities/Tahsildar/Mandal Executive Magistrate, Repalle confirming the flood and inundation of their premises situated at Uppudi Road, Repalle. On seeing the original certificate received from the insured, he surprised to note that the certificate issued by Tahsildar has been tampered by including one more sentence as “teak logs and teak sizes were washed away due to flood and inundation”.    

                Finally the surveyor concluded his report as follows:

                The location covered under the policy is not same one where the actual stocks are lying.  Therefore, as per policy conditions, the insurer is not liable for the loss/damage of stock.

                The insured firm name also differing from the actual name mentioned in the RC. As per the stock register submitted by the insured and as per the certification of charted accountant, there was no physical loss of stock due to flood and inundation.  If the teak wood logs washed away by the flood water, they can be easily traced out in and around the insured premises.   The insured has failed to show any such teak wood logs in and around the premises after recede of water. Therefore, the surveyor concluded that the claim of the insured is not genuine.

                The insured tampered the Tahsildar Certificate and the same was confirmed by the Tahsildar, Repalle in his letter dt.25-02-10 (Ex.B11). 

                A perusal of the above said report of the surveyor shows that there is no loss sustained by the complainant due to flood water as alleged by him.  Further the complainant tampered the certificate issued by the Tahsildar (Ex.B10).  As seen from Ex.B9, which was pressed into service by the complainant, the last line in the certificate was added and the said tampering of the document was confirmed by the Tahsildar, Repalle in his letter Ex.B11.  Therefore, it can be safely concluded that the complainant deliberately tampered the certificate issued by the Tahsildar and pressed into service Ex.A15/Ex.B9 in order to show some stock of teak wood was lost in the flood water.  The second certificate that was relied on by the complainant is the certificate issued by the Sarpanch of Uppudi Village. The Surpunch of Gram Panchayat issued Ex.A9 certificate stating that on 07-10-09 heavy flood occurred in Repalle Town and other surrounding areas and water entered into the premises of Sri Padmaja Saw Mill and Timber Depot, Uppudi Road, Repalle and the teak wood kept in the premises of our saw mill were lost to an extent of an amount of Rs.7,00,000/- and sizes of teak wood to an amount of Rs.3,00,000/- totaling to an amount of Rs.10,00,000/-.  Thus the above certificate shows that there was loss to a tune of Rs.10,00,000/-.  There is no explanation as to how the Sarpanch could able to assess such loss.  Further the word ‘our’ used in the certificate (Ex.A9) denotes that the Sarpanch without noticing the contents of the certificate has simply signed the certificate at the instance of complainant. Therefore, the bonafides of the certificate of the Sarpanch are doubtful in view of the report of the surveyor and in view of tampering of the Tahsildar Certificate and no reliance need be placed on the certificate of the Sarpanch. 

                In a decision reported in 2009 (4) CPR 220 National Commission, New Delhi between M/s.Vishal Singh Ram Das Vs. The New India Assurance Company Ltd. it was held –

                “Where insurance company investigated the claim and found it bogus and fraudulent and material supported such conclusion, repudiation of claim would not constitute deficiency in service”.

                In another decision reported in 2009 (3) CPR 354 National Commission in a case between New India Assurance Company Ltd. Vs. New Good Luck Re-trading works held –

                “The surveyor’s report is an important document and it cannot be brushed aside easily without any valid justification or any report to the contrary.”

                In another decision reported in 2009 (4) CPR 98 National Commission between New India Assurance Company Ltd. Vs. Smt. Leela Bhai Devi Chand Jain, it was held –

                “Surveyor report carries vital significance and it cannot be brushed aside on untenable grounds.”  

                In view of the above reported decisions, the report of the surveyor cannot be brushed aside on untenable grounds.  Therefore, in view of the foregoing discussion, we are of the opinion that complainant has not suffered any loss as alleged by him due to the flood waters and the claim of complainant is not proved as genuine by the complainant.  Therefore, it can be safely concluded that the repudiation of claim made by insurer/2^nd opposite party is justified and the complaint is liable to be dismissed.

                In the result, the complaint is dismissed.  In the circumstances of case, each party shall bear their own costs.

         Typed to my dictation by the Junior Steno, corrected by me and pronounced in the open Forum, this the 27^th day of October, 2011.     

       MEMBER                            MEMBER                            PRESIDENT

 APPENDIX OF EVIDENCE

                                        DOCUMENTS MARKED

For Complainant:         

For opposite parties :          

                                                                                PRESIDENT