BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE
Dated this the 25th of November 2011
PRESENT
SMT. ASHA SHETTY : HON’BLE PRESIDENT
SRI. ARUN KUMAR K. : MEMBER
COMPLAINT NO.277/2010
(Admitted on 23.10.2010)
Mr.Kamaruddin,
So. M.Sulaiman,
RA. Ideal House Apartment,
Pandeshwar, Mangalore.
Prop. of Ms.Sagar Dresses,
1st Floor, High Street Center,
Above Tokoyo Market,
Hampankatta, Mangalore Taluk,
Dakshina Kannada District. …….. COMPLAINANT
(Advocate for the Complainant: Sri.M. Rajesh Kudva).
VERSUS
1. The Branch Manager,
The New India Assurance Co. Ltd.,
Divisional Office,
Post Box No.705,
1st Floor, Ram Bhavan Complex,
Kodialbail, Mangalore.
(Advocate for Opposite Party No.1: Sri.Anil Kumar K)
2. The Branch Manager,
The United India Assurance Co. Ltd.,
Divisional Office,
Post Box No.705,
1st Floor, Ram Bhavan Complex,
Kodialbail, Mangalore. ……. OPPOSITE PARTY
(Advocate for the Opposite Party No.2: Sri.Padmanabha B)
***************
ORDER DELIVERED BY HON’BLE PRESIDENT SMT. ASHA SHETTY:
1. This complaint is filed under Section 12 of the Consumer Protection Act alleging deficiency in service against the Opposite Parties claiming certain reliefs.
The brief facts of the case are as under:
The Complainant submitted that, he is a businessman having business under the name and style ‘M/s.Sagar Dresses’ at Door No.13-4-545/19, 20 carrying on business of sale of readymade hosiery, textiles etc as wholesale dealers. During the course of his business he availed Shop Keepers Insurance Policy bearing No.070800/48/09/34/00002295 covering the insurance period from 19.01.2010 to 18.01.2011 for any loss or damage to the property The coverage of the aforesaid policy was Rs.25,00,000/-.
It is stated that, on 20.02.2010 at 8.30 p.m as usual, he has closed the business of that day and kept the shop under lock and key and went to his residence. At about 9.30 p.m the Complainant received a call from nearby shop owner saying that Complainant’s shop got fire and materials inside the shop are burning. On hearing the news, the Complainant rushed to the shop and opened the shutters but the materials kept inside the shop were all burnt and destroyed by the fire and the Complainant has suffered huge loss. The entire showcase as well as fixtures, computer, UPS, printers and also generators are all lost due to fire. The above incident was reported to the jurisdictional police and registered a case under file No.47/2010. It is stated that, the Complainant assessed the damage to the extent of Rs.15,00,000/- by producing the bills and other relevant documents connected to the business of the Complainant and submitted a report to the Opposite Party for speedy action. The Opposite Party has deputed a Surveyor Mr.Mukund for assessing the loss and reported the damage to the Opposite Party. It is stated that, the Opposite Parties not settled the claim. Because of non-settling of the claim the Complainant is loosing Rs.20,000/- to Rs.25,000/- daily income. It is further stated that, the Opposite Party has neither repudiated the claim nor replied the claim of the Complainant this resulted in mental torture and huge loss to the Complainant. Hence the above complaint filed under Section 12 of the Consumer Protection Act 1986 (herein after referred to as ‘the Act’) seeking direction from this Forum to the Opposite Parties to pay damages of Rs.15,00,000/- and lost of four months income which is around Rs.3,00,000/- and also Rs.1,00,000/- claimed as compensation and cost of the proceedings.
2. Version notice served to the Opposite Party No.1 and 2 by RPAD. Opposite Party No.1 New India Assurance Company Limited appeared through their counsel denied that they have issued a Shop Keeper’s Insurance Policy bearing No.070800/48/09/34/ 00002295 for the period commencing from 19.01.2010 to 18.01.2011 in favour of the Complainant for insured sum of Rs.25,00,000/- and denied the deficiency and prayed for dismissal of the complaint.
The Opposite Party No.2 i.e., United India Assurance Company Limited appeared through their counsel admitted the policy but it is stated that, one M/s.Sagar Dresses had sent an intimation dated 21.02.2010 to the Opposite Party through some personnel, that the above named shop has been fired on 20.02.2010. Immediately on receipt of the intimation the Opposite Party has appointed a Surveyor in order to investigate the incident and submit a detailed report and assessment of loss.
It is stated that, the insured has not furnished the stock statements, not maintained the stock register regarding disclosure of opening and closing stocks, purchase and sales registers/bills and not maintained the books of account. Further there is no audited balance sheet and books of account of the trade of the Insured which clearly shows that there is no sufficient stock as declared by the Insured at the time of the calamity. It is stated that, after taking inventory by the Surveyor of the stocks which were unaffected due to fire and intact, the Surveyor assessed the damage in the presence of the representative of M/s.Sagar Dresses and assessed the net loss of Rs.5,48,666/-. It is further stated that, the Opposite Party processed the claim and settled the same for Rs.5,48,666/- as net loss on 18.08.2010 i.e., within two days from the date of Surveyor’s report and also within six months from the date of calamity but the insured has not discharged and returned the said vouchers to the Opposite Party and stated that there is no deficiency whatsoever on the part of the Opposite Parties and prayed for dismissal of the complaint.
3. In support of the complaint, Mr.Kamaruddin (CW1) filed affidavit reiterating what has been stated in the complaint and answered the interrogatories served on him. Ex C1 to C3 were marked for the Complainant as listed in the annexure in detail. One Sri.K.Abdul Khader (RW1), Divisional Manager of the Opposite Party filed counter affidavit and answered the interrogatories served on him. One Sri.S.Upendra (RW2), Surveyor and Loss Assessor of the Opposite Party Company filed affidavit and answered the interrogatories served on him. The Opposite Party produced 18 documents as listed in the annexure in detail. The Complainant as well as Opposite Party filed notes of arguments.
4. In view of the above said facts, the points now that arise for our consideration in this case are as under:
- Whether the Complainant proves that the Opposite Parties committed deficiency in service?
- If so, whether the Complainant is entitled for the reliefs claimed?
- What order?
We have considered the notes/oral arguments submitted by the learned counsels and also considered the materials that was placed before this Forum and answer the points are as follows:
Point No.(i): Negative.
Point No.(ii) & (iii): As per the final order.
Reasons
5. Point No. (i) to (iii):
In the instant case, the facts which are admitted is that, the Complainant is a businessman having business under name and style “Sagar Dresses” at Door No.13-4-545/19, 20 and carrying on business of sale of readymade, hosiery, textile etc as wholesale dealers. It is also admitted that, the Complainant has availed Shop Keepers Insurance policy bearing No.070800/48/09/34/00002295 covering the insurance period from 19.01.2010 to 18.01.2011 for any loss or damage to the property (as per document No.1 produced by the Opposite Party).
Now the point in dispute between the parties before this FORA is that, on 20.02.2010 at 8.30 p.m the above said shop caught fire and the materials inside the shop are burnt and caused damage to the property to the extent of Rs.15,00,000/-, the same has not been paid by the Opposite Party hence came up with this complaint.
The Opposite Party No.2 i.e., United India Assurance Co. Ltd on the other hand interalia contended that they have issued the policy and admitted that stock in trade of M/s.Sagar Dresses were insured under the Shop Keepers policy bearing No.070800/48/09/ 34/00002295 and validity also admitted but it is stated that after receiving the intimation from the insured, the Opposite Party deputed a Surveyor, the Surveyor assessed the net loss for Rs.5,48,666/- and thereafter the Opposite Party processed the claim and settled the same for Rs.5,48,666/- as net loss on 18.08.2010 within two days from the date of Surveyor’s report but the Complainant not discharged and returned the discharge vouchers to the Opposite Party and stated that there is no deficiency.
The Complainant filed oral evidence by way of affidavit and produced Ex C1 to C3. Opposite Party also filed evidence of RW1 and RW2 and produced 18 documents.
On scrutiny of the admitted as well as oral and documentary evidence available on record, we find that, the policy in question admitted by the Complainant as well as United India Assurance Co. Ltd. It is also admitted that, at the time of above incident the policy was in force and the above said shop premises bearing door No.13-4-545/19, 20 was insured under the above policy. It is also admitted that, the above said shop caught fire on 20.02.2010 at night hours. The Opposite Party company produced the survey report i.e., document No.13, wherein, the surveyor by name Sri.S.Upendra submitted the survey report dated 16.08.2010 i.e., within six months from the date of incident. The above policy was a Shop Keeper’s Insurance Policy, under the above said policy the furniture, fixtures, fittings and stock in trade were insured. The sum insured was Rs.25,00,000/-. The Surveyor assessed the net loss at Rs.5,48,666/-. But the Complainant contended that, the above said shop caught fired at night hours the materials inside the shop are burnt and caused damage to the property to the extent of Rs.15,00,000/-. Except the oral assertion nothing has been placed on record to substantiate his claim. But on the other hand, the surveyor appointed in this case issued several communications to the Complainant and called upon to produce required documents in order to assess the net loss. But it could be seen that, the Complainant not furnished the stock statements nor maintained the stock register regarding disclosure of opening and closing stocks, purchase and sales registers / bills and not maintained the books of account. But the surveyor after taking inventory of the stocks which were unaffected due to fire and intact and also by obtaining the stock statements issued by the Syndicate Bank, Fr. Muller’s Hospital Branch, Mangalore and also the sales values recorded in the monthly returns, new purchase of textile stocks and on examination of accounting information the Surveyor come to the right conclusion and assessed the net loss at Rs.5,48,666/-. The detailed report filed by the Surveyor cannot be ignored and it has considerable evidential value, unless it is discredited by producing evidence to the contrary. In the instant case, there is no contra evidence produced by the Complainant to discredit the Surveyor’s report. Further we observed that, the incident occurred on 20.02.2010, the Surveyor after several communications between Complainant and the Surveyor to produce required documents, finally submitted the report on 16.08.2010. Since the damage is pertaining to the stocks of the goods insured under the Shop Keeper’s Policy it requires to investigate accounts, stocks of the goods etc. etc, under that circumstances we do not find any delay on the part of the Surveyor to submit the report. The document No.16 i.e., the communication issued by the Opposite Party i.e., Insurance Company dated 18.08.2010 informed the Complainant to receive the settlement voucher for Rs.5,48,666/- in full and final settlement of the claim. That has been received by the Complainant but not accepted the claim in this case. The above intimation letter also satisfied us that the Opposite Party Company immediately after receipt of the surveyor’s report sent a discharge voucher to the Complainant. The Complainant should have accepted the claim on receipt of the full and final settlement intimation by the Insurance Company. But the Complainant without any valid reason not come forwarded to settle the claim. Under that circumstances, one cannot blame the Insurance Company that they are deficient in their service.
In view of the above discussions, we hold that the Complainant is miserably failed to establish the deficiency of service on the part of the Opposite Party Companies. However, the Complainant is at liberty to receive Rs.5,48,666/- from the Opposite Party Company i.e., United India Assurance Co. Ltd towards full and final settlement. There is no merit in this case, deserves to be dismissed. No order as to costs.
In the instant case, Opposite Party No.1 i.e., New India Assurance Co. Ltd not issued any Shop Keeper’s Policy bearing No.070800/48/09/34/00002295 to the Complainant. Hence the complaint against Opposite Party No.1 is hereby dismissed.
6. In the result, we pass the following:
ORDER
The complaint is dismissed. No order as to costs.
The copy of this order as per the statutory requirements be forwarded to the parties free of charge or sent to the parties under postal certificate and thereafter the file shall be consigned to the record room.
(Page No.1 to 11 dictated to the Stenographer typed by her, revised and pronounced in the open court on this the 25th day of November 2011.)
PRESIDENT MEMBER
ANNEXURE
Witnesses examined on behalf of the Complainant:
CW1 – Mr.Kamaruddin – Complainant.
Documents produced on behalf of the Complainant:
Ex C1 – 29.07.2010: Lawyer’s notice issued to the Opposite Party on behalf of the Complainant.
Ex C2 – : Postal acknowledgement.
Ex C3 – : Original photos (19 in numbers).
Witnesses examined on behalf of the Opposite Party No.2:
RW1 – Sri.K.Abdul Khader, Divisional Manager of the Opposite
Party.
RW2 – Sri.S.Upendra, Surveyor and Loss Assessor of the Opposite
Party Company.
Documents produced on behalf of the Opposite Party No.2:
Doc. No.1 – 15.01.2010: True copy of the Shop Keepers Insurance
Policy issued in the name of M/s.Sagar Dresses.
Doc. No.2 – 21.02.2010: Intimation given by M/s.Sagar Dresses.
Doc. No.3 – 22.02.2010: List of Inventory taken showing the details of items demanded fully and half damaged due to smoke etc. in the presence of a representative of Sagar Dresses.
Doc. No.4 – 25.02.2010: Copy of the letter addressed by Mr.S.Upendra, the Surveyor to M/s.Sagar Dresses regarding conduct of physical verification of the stocks reported to have been affected due to fire.
Doc. No.5 – 08.03.2010: Copy of the letter addressed by Mr.S.Upendra to M/s.Sagar Dresses with a request to furnish details.
Doc. No.6 – 10.03.2010: Registered post letter addressed to M/s.Sagar Dresses requesting them to furnish various documents.
Doc. No.7 – 10.03.2010: Registered post letter addressed to M/s.Sagar Dresses requesting to co-operate with the Surveyor.
Doc. No.8 – 22.03.2010: Copy of the letter addressed by the Surveyor to M/s.Sagar Dresses reminding them to furnish the details.
Doc. No.9 – 15.04.2010: Registered post letter addressed to M/s.Sagar Dresses requesting to co-operate with the Surveyor.
Doc. No.10 – 21.04.2010: Postal acknowledgement.
Doc. No.11 – : Quotation for purchase of rejected smoke and water effected items.
Doc. No.12 – : Estimate issued by Mishba Electricals, Ullal for repair/replacement of various electric items of M/s.Sagar Dresses which were damaged due to fire.
Doc. No.13 - : Survey report issued by Sri.S.Upendra, Surveyor and Loss Assessor.
Doc. No.14 – 19.08.2010: Office note regarding approval of claim of the Insured for Rs.5,48,666/- deducting the policy excess.
Doc. No.15 - : Postal acknowledgement.
Doc. No.16 - 18.08.2010: Letter of the Opposite Party to the Complainant along with postal receipt.
Doc. No.17 – 20.09.2010: Letter of the Opposite Party to the Complainant regarding return of the claim voucher duly discharged along with postal receipt.
Doc. No.18 – 16.11.2010: Reminder letter sent by registered post to the Complainant regarding return of the claim voucher duly discharged for settlement of the claim.
Dated:25.11.2011 PRESIDENT
