BEFORE THE DISTRICT FORUM:KURNOOL
Present: Sri.P.V. Nageswara Rao , M.A.LL.M., President(FAC)
And
Smt. C.Preethi, M.A.LL.B., Lady Member
And
Sri. M.Krishna Reddy, M.Sc.,M.Phil., Male Member
Thursday the 27th day of August, 2009
C.C. 157/08
Between:
M/s.New Ramakrishna Agencies, Fertilizers and Pesticides, Represented by its Proprietor, B.V.Ramakrishna Reddy , S/o.Siva Rami Reddy
D.No.2-428-124-B-7-1, Opp.Sandya Talkies, Nandyal, Kurnool District. … Complainant
Versus
1. The Branch Manager, M/s. Karnataka Bank,
Nandyal
2. The Branch Incharge, Bajaj Allianz General Insurance,
Alankar Plaza, Park Road, Kurnool.
3. The Deputy Manager for Claims, Bajaj Allianz,
608 and 609, 2nd Block, White house, Begumpet, Hyderabad-500016.
(Amendment carried out as per the orders in I.A.No.340/08, dated 31-10-08) ….Opposite parties
This complaint is coming on this day for orders in the presence of Sri.S.V.Krishna Reddy , Advocate, for the complainant , and Sri.M.Srinivasan, Advocate for opposite party No. 1 and Sri.P.Ramanjaneyulu , Advocate for opposite party No. 2 and 3 and upon perusing the material papers on record, the Forum made the following.
ORDER
(As per Sri. P.V.Nageswara Rao,President (FAC)
C.C.157/08
1. Complaint filed under section 12 of the Consumer Protection Act 1986.
2. The brief facts of the complaint is as follows:- The complainant was running a Fertilizers and Pesticides shop namely New Ramakrishna Agencies Fertilizers and Pesticides , No.A-20 , Balaji Complex, Nandyal . He availed an over draft facility for his business with opposite party No. 1 who agreed to sanction the same and requested to insure the shop and stock with opposite party No. 2 . The complainant insured the building and stock for Rs.20,00,000/- and Rs.30,00,000/- respectively and hence the opposite party No. 2 issued two policies under Standard Fire And Special Perils Policy No.0G – 08 -1806-4001-00000232 and 0G-07-1801-4001-00049-75. The policies had valid period from 21-01-2007 to 19-01-2008 . The opposite party No. 1 was paying the premium after deducting the same from the account of the complainant.
3. On the intervening night of 07/08-12-2007 around 1-30 A.M due to short circuit the complainants building caught fire and entire stock burnt into ashes. At that time the complainant was at Tirupathi and the same was informed by one Giri Kumar by phone and immediately the complainant informed the same to his clerk and opposite party No. 1 . The opposite party No. 1 , 2 and 3 visited the shop and verified physically . The opposite party No. 1 and 2 verified the stock and building also and estimated the loss. The opposite party No. 2 verified the stock register and seized the same and put a signature on each and every page. The complainant submitted all the documents for claim for loss of stock and building but it was not settled by opposite party No. 2 . The legal notice was issued to opposite party No. 1 , 2 and 3 on 03-05-2008 demanding the claim and same was received but there was no reply. On 13-05-2008 the opposite party No. 3 informed by phone requesting the complainant to come to Hyderabad for settlement of the claim. The complainant visited Hyderabad and after negotiations the opposite party No. 3 accepted to pay Rs.30,00,000/- for loss of stock and Rs.18,00,000/- towards loss of building. On the date of accident the total value of the stock was Rs. 30,01,535.68/-. The opposite party No. 3 issued a cheque for Rs.19,00,000/- on 31-05-2008 towards part payment and informed to send the balance amount with interest to opposite party No. 1 to which the complainant had to pay. The building damage was estimated as Rs.18,00,000/- . The complainant waited for 1 week but it was not settled. Thus on 19-06-2008 the complainant got issued 2nd legal notice demanding Rs.11,00,000/- with interest which the complainant had to pay interest for seven months towards loss of stock and building damage . The notice was served to opposite party No. 1 to 3 but they have not sent any reply. Thus, there was deficiency of service on opposite party No. 1 to 3 and hence the complaint was filed for Rs.11,00,000/- with interest at 24% p.a and Rs.1,96,000/- towards interest charged by opposite party No..1 and Rs.50,000/- towards mental agony and Rs.50,000/- towards costs.
4. The opposite party No. 1 filed the written version admitting over draft facility availed by the complainant and the two policies issued by opposite party No. 2 under Standard Fire and Special Perils policy. The procedure of the bank was to insist the property under insurance against the unforeseen events. The policies issued by opposite party No. 2 was in between insurer and insured i.e,., opposite party No. 2 and 3 and the complainant and opposite party No. 1 was not a party to the contract. If any violation of the contract the complainant had remedy against insurer and so opposite party No.1 had nothing to do with fulfillment or non fulfillment of the contract. Thus the opposite party No. 1 was a mis-joinder to the case. The opposite party No. 1 was not concerned regarding negotiation in between the complainant and opposite party No. 3 and the opposite party No. 3 accepted to pay Rs.30,00,000/- towards loss of stock and Rs.18,00,000/- towards the loss of building. The opposite party No. 1 had no knowledge that the complainant contacted the opposite party No. 3 by phone to pay balance of Rs.11,00,000/- with interest and the building damage was estimated at Rs.18,00,000/- and opposite party No. 3 accepted to pay to the complainant. The opposite party No. 1 received the mail from opposite party No. 3 that it was ready to settle the claim for Rs.2,00,000/- in respect of building claim . The opposite party No. 2 and 3 paid Rs.19,00,000/- towards full and final settlement on 13-05-2008 towards fire claim and discharged the opposite party No. 2 and 3 of all claims present and future under policy No. 0G -08 -1806 -4001 -00000232 and the complainant and opposite party No. 1 jointly issued customer satisfaction Note cum Discharge Voucher . The opposite party No. 1 did not reply to pay any amount. Thus, the complaint may be dismissed with costs.
5. The opposite party No. 2 and 3 filed a written version admitting the two policies issued to the complainant . It was not admitted that the complainant was running a fertilizer and pesticides shop namely New Ramakrishna Agencies Fertilizers and pesticides , Nandyal who approached opposite party No. 1 for over draft facility and insisted to insure the shop and stock with opposite party No. 2 and accordingly the building and stock were insured for Rs.30,00,000/- and Rs.20,00,000/- and opposite party No. 1 was paying premium after deducting the same from complainant’s account and due to short circuit on 07/08-12-2007 around 1-30 A.M , the building was caught fire and entire stock was burnt to ashes. It was not admitted that at the time of accident the complainant was at Tirupathi and he was informed by Giri Kumar by cell phone and same was informed to opposite party No. 1 and 2 and opposite party No. 2 verified the stock register and seized and put his signature at every page and the complainant lodged a complaint with I town P.S , Nandyal who registered a case as FIR.No. 171/08 dated 08-12-2007 and police submitted a final report dated 04-02-2008. It was not correct that the complainant submitted all the documents to the clerk for loss of stock and building for his claim and the opposite party did not settle the claim and hence the notice was issued to opposite parties 1 to 3 on 03-05-2008 to which there was no reply and on receipt of cell phone message from opposite party No. 2 , the complainant went to Hyderabad for negotiation whether the opposite party No. 3 accepted to pay Rs.30,00,000/- towards loss of stock and Rs.18,00,000/- towards loss of building. It was not correct that on 31-05-2008 the opposite party No. 3 issued a chequ for Rs.19,00,000/- towards part payment and informed to pay the balance of Rs.11,00,000/- within 7 months to opposite party No. 1 and the building damage was estimated at Rs.18,00,000/- , but the opposite party No. 3 sent a message that the claim was accepted for Rs.2,00,000/- .
6. The opposite party No. 1 insured the building and stock in the name of the complainant and after receipt of the claim intimation , the opposite party appointed an independent surveyor for assessment of loss who verified the stock and assessed the loss as Rs.25,00,000/-The company also appointed one investigator to get the facts of the case who inturn submitted in the report that there was discrepancy on the alleged short circuit . The investigator found that there was no short circuit as alleged . The opposite party informed the same to opposite party No. 1 and the complainant . The opposite party No. 1 requested to settle the claim under Non Standard basis since the loan had to be recovered and it was done in the presence of complainant only. As per the conditions of the policy “ the receipts of the bank shall be complete discharges of the company therefore and shall binding on all the parties insured herein under ”. It would mean as the banker had an option to receive the amount to recover the loss and once it was accepted it would be binding on the account holder. The opposite party agreed for non standard settlement and offered Rs.19,00,000/- to which the opposite partyNo.1 had accepted for the assessment and a cheque was issued for said amount infavour of opposite party No.1 and opposite party No.1 received the same and issued as discharge voucher for loss of stock as full and final settlement against policy No. 0G -08-1806 -4001 -00000232 which was issued for covering the risk of stock on behalf of the complainant .The fire due to spontaneous combustion was not an insured peril under the policy and it was not covering by the policy even though the bank interest was involved. s The opposite party considered the claim of the complainant at the request of the banker . The opposite party never issued any cheque in the name of the complainant.
7. The net loss assessed to the building was Rs.1,99,000/- and same was informed to opposite party No. 1 and complainant. But the complainant sent a notice with false allegations and it was replied . The complainant managed in not receiving a reply notice. There was no deficiency of service on the part of the opposite parties 2 and 3 . It was not a consumer dispute and Forum had no jurisdiction . It would not come under Sec. 2 (i) of Sale of Goods Act . Thus there was no merits in the case and complaint may be dismissed with costs.
8. On the basis of the above pleadings the points for consideration are
(i) whether there is any deficiency of service on the part of the
opposite parties 1 to 3 ?
(ii) Whether the complainant is entitled to the relief as prayed for?
(iii) To what relief?
5. On behalf of the complainant Ex. A1 to A91 were marked and on behalf of the opposite party Ex.B1 to B 13 were marked .
Both parties filed the written arguments.
6. Points No. 1 & 2: The complainant was M/s. New Ramakrishna Agencies , Fertilizers and Pesticides represented by its Proprietor , B.V.Ramakrishna Reddy , Nandyal. He availed an over draft facility with opposite party No. 1 bank at Nandyal who insisted to insure the building and the stock there in for providing over draft facility . The complainant got insured the building for Rs.20,00,000/- and stock there in for Rs.30,00,000/- with opposite party No. 2 who issued two policies under Standard Fire and Special Perils policy bearing Nos. OG-08-1806-4001-00000232 with validity period from 28-10-2007 to 27-10-2008 with premium of Rs.13,708/- and 0G-07-1801-4001-00049-75 with validity period from 20-01-2007 to 19-01-2008 with premium payable of Rs.1,347/- by opposite party No. 1 from out of the account of the complainant. Ex.A72 was Xerox copy of the policy for Rs.30,00,000/- for stock in godown . In Ex.A72 the financier was the opposite party No.1. So the risk covered under the policy was towards Standard Fire and Special Perils. The complainant filed E.xA73 to A79 Xerox copies of monthly returns for 01-04-2007 , 01-05-2007 ,01-06-2007 , 01-07-2007 , 01-08-2007 , 01-09-2007 01-10-2007 respectively.
7. On the intervening night of 07/08-12-2007 around 1-30 A.M ,on account of short circuit in the electricity supply the entire stock and building was caught fire and turned into ashes. At that time the complainant was not in the town but away from Nandyal . He was informed by one GiriKumar by phone. The complainant immediately informed the same to opposite party No.1. The opposite parties 1 to 3 visited the shop and physically verified the fire accident to the shop and stock. The opposite party No. 2 verified the stock register commenced from 01-04-2007 till the date of accident and put initials at relevant pages under Ex.A1 to A71. Thus Ex A1 to A71 were the relevant entries regarding various pesticides which were found in the shop at the time of fire accident on the night of 07-12-2008. The Ex.A1 to A71 were filed by the complainant to prove that he had sufficient stock at the time of fire accident in his building . There was no contrary evidence to E.xA1 to A71 from opposite parties 1 to 3 . He filed E.xA80 closing stock as on 07-12-2007.
8. The complainant after the fire accident submitted necessary documents to opposite party No. 3 but the claim was not settled. After the accident the complainant gave a compliant to I Town P.S.Nandyal who registered a case as Cr.No. 171/07 dated 08-12-2007 . The Xerox copy of the FIR was Ex.A83 and certified copy of the charge sheet was Ex.A85 . He filed a bunch of colour photos under Ex.A84 along with negatives to substantiate his case that the shop was caught fire in the fire accident . As the opposite parties 1 to 3 have not settled the claim .The complainant then got issued a notice dated 03-05-2008 . The office copy of notice was Ex.A81. Ex.A82 was another notice dated 19-06-2008 . The complainant filed Ex.A86 copy of statement of account issued by the opposite party No. 1 from 01-12-2007 to 14-06-2008 . The Ex.A87 was Xerox copy of the allotment of tax payer Identification No. (TIN) issued by the Commercial Tax Department . Ex.A88 was the Xerox copy of the Registration Certificate . Ex.A89 was Xerox copy of the license to sell the stock . Ex.A90 was Xerox copy of acknowledgement.Ex.A91 was Xerox copy of registration certificate issued by Assistant Director of Agriculture , Nandyal on 14-01-2008..
9. On 13-05-2008 the opposite party No. 3 informed the complainant for negotiations as such the complainant visited opposite party No. 3 who accepted to pay Rs.30,00,000/- towards loss of stock and also pay Rs.18,00,000/- towards the loss of building . The complainant admitted that on 13-05-2008 the opposite party No. 3 paid Rs.19,00,000/- towards loss of stock towards part payment but the opposite party No.3 contended that it paid Rs.19,00,000/- towards full and final settlement against policy No. 0G -1801-4001-232 towards loss of stock .
10. The opposite party No. 2 and 3 filed Ex.B1 a certified copies of the policy towards building under policy No. 0G -07-1801-4001-0004975 along with terms and conditions. Ex.B5 was the copy of the policy for the stock under policy No. 0G-08-1806 -4001 -00000232 along with terms conditions. Subsequent to the accident the opposite party No. 3 appointed a surveyor who investigated and assessed the loss as Rs.1,99,000/- for the loss of the building. Ex.B2 certified copy of the report . Ex.B3 certified copy of the inspection report submitted by Sri. S.Venkateswara Rao , Kurnool for the loss of the building . Ex.B4 was a certified copy of the reply notice issued by opposite party No. 3. Ex.B6 was the surveyor’s final investigation report dated 04-05-2008 . The assessed loss was Rs.25,78,079/- as per Ex.B7 report. The surveyor mentioned that matter was reported to Fire Bridgade , Nandyal and they put off the fire and issued the fire attendance certificate . Ex.B8 & Ex. B9 was the Xerox copy of closing stock and ground stock as on 07-12-2007 . Ex.B10 was the Xerox copy of the cheque issued in favour of opposite party No. 1 for Rs.19,00,000/- dated 29-05-2008 under cheque No. 102480 on HDFC Bank Limited , Kurnool. Ex.B11 was the stamped receipt issued by opposite party No. 1 to opposite party No. 3 that they received the Rs.19,00,000/- towards full and final settlement on 13-05-2008 towards policy No. 0G-08-1806-4001 -00000232 ie., towards insured stock. Ex.B12 was a reply notice sent by opposite party No. 3 to the complainant. Ex.B13 was unserved cover. Though the opposite party No. 1 allowed over draft facility to the complainant and got insured the building and stock to opposite party No. 2 to avail the over draft facility , they had to inform that it received Rs.19,00,000/- under Ex.B11 to the complainant . Further the opposite party No. 1 had no power or authority to issue receipt towards the full and final settlement of fire claim of the stock in the building. The full and final settlement of the claim should be given by the stock holder i.,e the complainant on receipt of information from opposite party No.1 . The complainant in the present complaint claimed Rs.11,00,000/- out of Rs.30,00,000/- towards loss of the stock in the fire accident because Rs.19,00,000/- was already paid toward part payment to opposite party No. 1 by opposite party No. 3. The policy covered for the stock under Ex.B5 was Rs.30,00,000/- sum assured . Therefore there is deficiency of service on the part of the opposite party No. 2 and 3.
11. In the result , the complaint is allowed directing the opposite party No. 2 and 3 jointly and severally liable to pay Rs.11,00,000/- without any interest and pay Rs.10,000/- towards mental agony and Rs.1,000/- towards costs within 60 days from the date of receipt of this order to the complainant . The case against opposite party No. 1 is dismissed. The rest of the claim is dismissed.
Dictated to the stenographer, transcribed by her, corrected and pronounced by us in the open bench on this the 27th day of August, 2009.
Sd/- Sd/- Sd/-
LADY MEMBER PRESIDENT (FAC) MALEMEMBER
APPENDIX OF EVIDENCE
Witnesses Examined
For the complainant :Nil For the opposite parties :Nil
List of exhibits marked for the complainant:-
Ex.A-1 | The entries at page 1 to 4 of stock book. |
Ex A-2 | The entries at page 8 to 18 of stock book. |
Ex A-3 | The entries at page 20 to 26 of stock book. |
Ex A-4 | The entries at page 29 of stock book. |
Ex A-5 | The entries at page 31 to 32 of stock book. |
Ex A-6 | The entries at page 34 to 36 of stock book. |
Ex A-7 | The entries at page 38 of stock book. |
Ex A-8 | The entries at page 41 to 45 of stock book. |
Ex A-9 | The entries at page 48 of stock book. |
Ex A-10 | The entries at page 50 to 52 of stock book. |
Ex A-11 | The entries at page 54 & 55 of stock book. |
Ex A-12 | The entries at page 57 of stock book. |
Ex A-13 | The entries at page 59 to 68 of stock book. |
Ex.A-14 | The entries at page 70 of stock book. |
Ex A-15 | The entries at page 72 & 73 of stock book. |
Ex A-16 | The entries at page 75 & 76 of stock book. |
Ex A-17 | The entries at page 80 & 81 of stock book. |
Ex A-18 | The entries at page 83 of stock book. |
Ex -19 | The entries at page 85 of stock book. |
Ex A-20 | The entries at page 90 of stock book. |
Ex A-21 | The entries at page 93 of stock book. |
Ex A-22 | The entries at page 96 of stock book. |
ExA-23 | The entries at page 98&99 of stock book. |
Ex A-24 | The entries at page 101 of stock book. |
Ex A-25 | The entries at page 103 of stock book. |
Ex A-26 | The entries at page 105 of stock book. |
Ex A-27 | The entries at page 107 to111 of stock book. |
Ex A-28 | The entries at page 113 &114 of stock book. |
Ex A-29 | The entries at page 116 &117 of stock book. |
Ex A-30 | The entries at page 119 of stock book. |
Ex A-31 | The entries at page 121 of stock book. |
Ex A-32 | The entries at page 122 of stock book. |
Ex A-33 | The entries at page 125to128 of stock book. |
Ex A-34 | The entries at page 130 of stock book. |
Ex A-35 | The entries at page 134 of stock book. |
Ex A-36 | The entries at page 136 to140 of stock book. |
Ex A-37 | The entries at page 142 of stock book. |
Ex A-38 | The entries at page 145to150 of stock book. |
Ex A-39 | The entries at page 154 of stock book. |
Ex A-40 | The entries at page 156 of stock book. |
Ex A-41 | The entries at page 160 of stock book. |
Ex A-42 | The entries at page 162&163 of stock book. |
Ex A-43 | The entries at page 165&166 of stock book. |
Ex A-44 | The entries at page 170 of stock book. |
Ex A-45 | The entries at page 174 of stock book. |
Ex A-46 | The entries at page 178&179 of stock book. |
Ex A-47 | The entries at page 181 of stock book. |
Ex A-48 | The entries at page 184 of stock book. |
Ex A-49 | The entries at page 186 of stock book. |
Ex A-50 | The entries at page 188 of stock book. |
Ex A-51 | The entries at page 190 of stock book. |
Ex A-52 | The entries at page 194 of stock book. |
Ex A-53 | The entries at page 196&197 of stock book. |
Ex A-54 | The entries at page 199&200 of stock book. |
Ex A-55 | The entries at page 202 of stock book. |
Ex A-56 | The entries at page 205 of stock book. |
Ex A-57 | The entries at page 207 of stock book. |
Ex A-58 | The entries at page 212 of stock book. |
Ex A-59 | The entries at page 214 of stock book. |
Ex A-60 | The entries at page 216 of stock book. |
Ex A-61 | The entries at page 218&219 of stock book. |
Ex A-62 | The entries at page 221 of stock book. |
Ex A-63 | The entries at page 229 of stock book. |
Ex A-64 | The entries at page 231 of stock book. |
Ex A-65 | The entries at page 237 of stock book. |
Ex A-66 | The entries at page 239 of stock book. |
Ex A-67 | The entries at page 241 of stock book. |
Ex A-68 | The entries at page 243 of stock book. |
Ex A-69 | The entries at page 245 to 248 of stock book. |
Ex A-70 | The entries at page 252 to 261 of stock book. |
Ex A-71 | The entries at page 263 to 286 of stock book. |
Ex A-72 | Xerox copy of policy issued to complainant |
Ex A-73 | Xerox copy of monthly return from 1.4.07 to 30.4.07 |
Ex A-74 | Xerox copy of monthly return from 1.5.07 to 31.5.07 |
Ex A-75 | Xerox copy of monthly return from 1.6.07 to 30.6.07 |
Ex A-76 | Xerox copy of monthly return from 1.7.07 to 31.7.07 |
Ex A-77 | Xerox copy of monthly return from 1.8.07 to 31.8.07 |
A-78 | Xerox copy of monthly return from 1.9.07 to 30.9.07 |
Ex A-79 | Xerox copy of monthly return from 1.10.07 to 31.10.07 |
Ex A-80 | Xerox copy cloring stock on 7-12-07. |
Ex A-81 | Office copy of legal notice dt.3-5-2008. |
Ex A-82 | Office copy of legal notice dt.19-6-2008. |
Ex A-83 | Xerox copy of FIR dt. 9-2-209. |
Ex A-84 | A bunch of 10 photo graphs along with their corer pending negatives. |
Ex A-85 | Certified copy of final report along with court endorsement. |
Ex A-86 | State of account No.5437000600104701 of Karnataka Bank, Nandyal dt.5-2-2009 for the period from 1-12-2007 to 14-6-2008. |
Ex A-87 | Xerox copy of allotment of tax payer Admn .No. to the complainant dt.19-3-2003. |
Ex A-88 | Xerox copy of certificate of registration pertaining to complainant. |
Ex A-89 | Xerox copy of license to sell stock or exhibit for sale or distribution of insecticides. |
Ex A-90 | Xerox copy of ack dt. 10-8-2008 in favor of complainant. |
Ex A-91 | Xerox copy of Registration Certificate issued by Assistant Director of Agriculture, Nandyal. |
List of exhibits marked for the opposite parties:
Ex B-1 | Standard fire and special perils policy No.OG-07-1801-4001-00004975. |
Ex B-2 | Preliminary survey report dt.28-6-2008. |
Ex B-3 | Inspection report dt.28-6-2008. |
Ex B-4 | Office copy of Reply of notice dt.11-8-2008 along with Xerox of courier receipt. |
Ex B-5 | Standard fire and special perils policy No.OG-08-1806-4001-00000232 along with terms and conditions. |
Ex B-6 | Final investigation report dt.4-5-2008. |
Ex B-7 | Survey & loss assessment report dt.19-5-2008. |
Ex B-8 | Closing stock statement dt.7-12-2007 of complainant. |
Ex B-9 | Statement of Ground Stock Dt.7-12-2007 of complainant. |
Ex B-10 | Xerox copy of on- line cheque No.102480 ,dt.29-5-2008 for Rs.19,00,000/- |
Ex B-11 | Discharge voucher dt.29-5-2008 issued by OP. |
Ex B-12 | Office copy of reply notice dt.11-8-2008. |
Ex B-13 | Un-served cover. |
Sd/- Sd/- Sd/-
LADY MEMBER PRESIDENT (FAC) MALE MEMBER
// Certified free copy communicated under Rule 4 (10) of the
A.P.S.C.D.R.C. Rules, 1987//
Copy to:-
Complainant and Opposite parties
Copy was made ready on :
Copy was dispatched on :
