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 by the complainant praying to pass award for Rs.4,34,250/- (comprising of loss of damage of stock Rs.3,85,000/-; interest at 12% p.a. Rs.19,250/-; mental agony Rs.20,000/- and legal expenses of Rs.10,000/-) in favour of the complainant and against the  opposite parties. 

The brief averments of the complaint are as follows:

        The complainant is doing business in ply wood and other related products since 27 years under the name and style of M/s.Sri Laskhmi Ply Wood Center.  Complainant availed bank loan from 1^st opposite party.  The 1^st opposite party enhanced the loan limits upto Rs.3,00,000/-.  Complainant availed loan of Rs.3,00,000/- during the year 2009 from 1^st opposite party.  In a regular course of action and procedure, the 1^st opposite party insured the stocks, both shop and godown for Rs.5,00,000/- with 2^nd opposite party, who issued a policy to that effect on 22-01-09, on payment of premium of Rs.2,876/-.  The nature of policy is shop keepers insurance policy against all perils.  The complainant is a regular tax payer, both commercial tax and income tax.  Complainants firm was also audited and made a balance sheet for every year.  The 1^st opposite party sanctioned loan for every year on receipt of duly audited balance sheet and stock ledger maintained by the complainant.  The 1^st opposite party sanctioned loan basing on the above reports and recommended to 2^nd opposite party to insure the stock lying in the shop and godown.  Complainant is running shop measuring 12 x 12 ft. area for display and small quantity of stock.  The major portion of stock lying in the godown.  The 1^st opposite party officials visited and inspected the stock and assessed the value of the stock after duly scrutinizing the ledger and stock inventory.  The 2^nd opposite party’s Development Officer along with his agent visited and inspected the premises and assessed the stock and verified the ledger of stock, purchase bills and issued policy.  The complainant also invested Rs.2,00,000/- to Rs.3,00,000/- along with the bank loan.  The complainant’s godown was situated very near to the shop and situated back side of the Municipal employees quarters.

        There is heavy flood occurred in Krishna River in the first week of October, 2009.  due to heavy flood, the Krishna river banks were breached at the outskirts between Oleru and Penumudi and flood water entered into Repalle Town upto 3ft.  This flood water continuously entered into town 3 to 4 days and submerged agricultural fields, entered into shops and residence in Repalle town.  The Government conducted rescue operations in Repalle town for two days. All communications disconnected to Repalle Town for three days. Due to continuous stagnation and flow of flood water, the flood water entered in the shop and godown and caused severe damage to the stocks.  All the stocks were damaged due to soaking in water for three days.  There is no power and communication system available at Repalle by that time.  The complainant could not inform the insurance company as well as the bank.  The 1^st opposite party bank was closed due to floods for that period.  Subsequently complainant informed the same to 2^nd opposite party as well as the Revenue Officials of Repalle.  The 2^nd opposite party surveyor inspected the premises and took photographs and went away.  The complainant assessed the loss at Rs.4,79,740/- and assessed salvage at Rs.94,740/-, the net loss of the value of the stock is Rs.3,85,000/- approximately.  The complainant submitted all relevant papers along with claim form to 2^nd opposite party on 03-12-09.  Since the date of claim, the 2^nd opposite party neither settled the claim nor informed about the stage of the claim and not informed about the report of the surveyor and its recommendations.  The non-intimation of surveyor’s report results the complainant deprived his right of choice to choose second surveyor for arriving reasonable and justifiable assessment of loss.  Complainant personally visited the office of both opposite parties and requested them to settle the claim.  The 2^nd opposite party neither settled claim nor given any proper explanation, which amounts to deficiency of service under CP Act.  The complainant sustained financial hardship by paying interest to the creditors as well as to 1^st opposite party.  Hence, the complaint.

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

        The complaint is not maintainable under law.  The allegations made in complaint are false and concocted for purpose of filing the complaint.  The complaint does not come under the purview of CP Act.  It is true that the complainant availed loan facility from 1^st opposite party.  The complainant disclosed his place of business as door No.10-14-129/A, Municipal Office Road, Repalle to 1^st opposite party. So this opposite party insured the stock had by the complainant with the 2^nd opposite party as per the address given by the complainant.  The alleged loss is during the existence of policy.  Immediately after request from the complainant, this opposite party informed the same to 2^nd opposite party.  There is no negligence on the part of this opposite party.

        The complainant never informed to this opposite party that it is keeping stock in both shop and godown, that there are in separate addressed, that insurance is needed for both but complainant informed the same only after the floods.   This opposite party is nothing to do with the same.  It is false to allege that the complainant got insured the stock both in shop and godown by informing the same to this opposite party, that the officials of this opposite party inspected and visited the stock and assessed the value of the stock after duly securitized the ledger and stock inventory. 

        It is true that Repalle town was effected with heavy floods during 1^st week of October, 2009 and water stagnated in Repalle Town for three or four days at a height of 3 to 4 ft.  In slum and low areas, the water is stagnated for more than 10 days.  This opposite party has nothing to do with the assessment of loss and to settle the same.  It is the duty of 2^nd opposite party to assess the loss and settle the claim.  There was no fault on the part of this opposite party in insuring the stock as required by the complainant as per the agreement signed by it with this opposite party and in informing about the loss as stated by the complainant to 2^nd opposite party by submitting the claim forms.  Except that this opposite party has no duty or obligation.  Hence, the complaint may be dismissed against this opposite party.  

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

        Most of the allegations mentioned in the complaint are false and incorrect.  The complaint is not maintainable under law.   This Forum has no jurisdiction to entertain the complaint.   The issues involved in this case cannot be determined without elaborate oral and documentary evidence and examining the witness.  Hence, the remedy if any is to approach the civil court only.    

        The complainant has no cause of action against this opposite party.  The insured premises is different from the premise where the alleged loss is caused.  The complainant through 1^st opposite party obtained shop keepers insurance policy seeking insurance coverage to all verities of ply wood/hardware/sanitary/ construction material etc. for Rs.5,00,000/- lying in his shop situated near Municipal Office, Main Road, Repalle and the policy was issued in the name of M/s. Indian Bank, Repalle A/c. No.SOD 756766655, M/s.Lakshmi Ply Wood Center, Near Municipal Office, Repalle, Guntur District. The complainant also submitted the plan of the shop for which the insurance coverage is given.  Complainant intimated this opposite party by his letter dt.09-10-09 that his shop was effected by flood water and requested to arrange for survey.  Immediately this opposite party appointed surveyor who submitted his report dt.21-12-09.  The surveyor visited the premises where the alleged loss is caused and inspected the relevant records, obtained the necessary documents and submitted his report dt.21-12-09.  The surveyor assessed the loss at Rs.1,12,384/-.  But the surveyor observed that the insured premises is entirely different from the place where the alleged loss is caused. The insured premises/shop is situated at Door No.10-14-129/A, Main Road, Near Padmavathi Picture Palace, Municipal Office, Repalle, whereas the godown where the loss is caused is situated at Door No.11-15-13(3), Municipal quarters back, Repalle and that there is no loss caused at the insured premises.   Complainant submitted his claim form dt.03-12-09 stating that the loss is caused to the goods lying in the shop (shop address given).  The complainant also submitted a certificate dt.25-10-09 said to have been issued by the Tahsildar, Repalle in which also it is mentioned that the alleged loss is caused at the premises M/s.Sri Lakshmi Ply Wood Center, Near Municipal Office, Main Road, Repalle due to severe inundation i.e., shop.  But the alleged loss was actually caused to the goods lying in the godown and not in the shop. The shop keeper’s policy obtained by the complainant covers the stock contained in the shop only and the stock in separate godown is always outside the scope of any shop keeper’s policy.   Hence, this opposite party repudiated the claim and sent intimation to complainant by its letter dt.18-06-10. The allegation of the complainant that the 1^st opposite party recommended and duly insured the loan unit and the stocks of the complainant both at shop and godown with this opposite party is absolutely false.  The repudiation made by this opposite party is legal valid and binding and there is no deficiency of service on the part of this opposite party. Hence the complaint may be dismissed against this opposite party with costs.  

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

        Ex.A1 to A12 are marked on behalf of the complainant.  Ex.B1 to B12 are marked on behalf of opposite parties. 

Now the points for consideration are

1. Whether the complainant suffered any loss as alleged by him in the insured premises?
2. Whether there is any deficiency of service on the part of opposite parties 1 and 2?
3. To what relief the complainant is entitled to?

POINTS 1 to 3:-

        The case of complainant is that he is doing business in ply wood and other related products under the name and style of M/s.Sri Lakshmi Ply Wood.  That he availed loan of Rs.3,00,000/- from 1^st opposite party and 1^st opposite party got insured his stocks both in shop and godown for Rs.5,00,000/- that during first week of October, 2009 due to heavy floods of Krishna River, the flood water entered into his shop and godown and caused severe damage to his stocks, that he made a claim to 2^nd opposite party to indemnify the loss suffered by him.  But the 2^nd opposite party neither settled the claim nor informed the stage of the claim and not informed the recommendations of the surveyor and that thereby 2^nd opposite party committed deficiency of service.

        The case of 1^st opposite party is that complainant disclosed his place of business as door No.10-14-129/A, Municipal Office Road, Repalle and accordingly 1^st opposite party insured the stock of complainant with 2^nd opposite party as per the address given by the complainant; that complainant never informed 1^st opposite party that it is keeping stock in both shop and godown which are in separate addressess and that insurance is needed for both.  But the complainant informed the same only after the floods, complainant has not got insured the stock both in stock and godown by informing the same to 1^st opposite party and that 1^st opposite party has nothing to do in assessing the loss and settling the claim of complainant and that there was no fault of 1^st opposite party in insuring the stock as required by complainant and that there is no deficiency of service on the part of 1^st opposite party.

        The case of 2^nd opposite party is that complainant has no cause of action against 2^nd opposite party, the insured premises is entirely different from the premises where the alleged loss is caused,  complainant through 1^st opposite party obtained shop keepers insurance policy for all varieties of ply wood/hardware/sanitary/ construction material for Rs.5,00,000/- lying in his shop situated near Municipal Office, Main Road, Repalle and the policy was issued in the name of Indian Bank, Repalle A/c.No.SOD756766655, M/s.Lakshmi Ply Wood Center, Near Municipal Office, Repalle, complainant also submitted plan of his shop for coverage of insurance, that complainant intimated 2^nd opposite party by his letter dt.09-10-09 that his shop was effected by flood water and requested to arrange for survey and immediately thereon 2^nd opposite party appointed surveyor and surveyor assessed loss at Rs.1,12,384/- and observed that the insured premises is entirely different from the place where the alleged loss is caused and that there is no loss caused at the insured premises.  Therefore, 2^nd opposite party repudiated the claim of the complainant 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. 

        As seen from the policy Ex.B4 issued by 2^nd opposite party it is in the name of M/s.Indian Bank, Repalle, A/c.No.SOD756766655, M/s.Lakshmi Ply Wood Center, Near Municipal Office, Repalle for a sum of Rs.5,00,000/-.  Ex.B7 is the letter addressed by the complainant to 2^nd opposite party wherein complainant stated that their shop was effected by flood water on 07-10-09 and stocks were damaged and requested 2^nd opposite party to arrange survey immediately.  Therefore as seen from Ex.B7 complainant informed 2^nd opposite party that his shop was effected by flood water on 07-10-09.   The surveyor who was appointed by 2^nd opposite party inspected M/s.Lakshmi Ply Wood Center, Near Municipal Office, Repalle and other premises of complainant and submitted report dt.21-12-09 (Ex.B10) wherein he made a note that as per policy, coverage is for the material stacked at Door No.10-14-129/A, Main Road, Near Padmavathi Picture Palace, Municipal Office, Repalle i.e., their show room.  But the loss took at their godown bearing D.No.11-15-13(3) Municipal quarters back, Repalle, which is not covered under the policy.  Hence, claim by insured is not admissible and assessed the net loss at Rs.1,12,384/-.  Therefore as seen from the surveyor report the loss suffered by complainant at their godown is not covered under the policy. Therefore, basing on the report of the surveyor the 2^nd opposite party repudiated the claim of complainant and informed the same to complainant under Ex.B11 dt.18-06-10 and it was received by complainant under Ex.B12 acknowledgement.  The complainant made claim under Ex.B8 claim form.  In Ex.B8 also complainant mentioned the insured premises as M/s.Lakshmi Ply Wood Center, Near Municipal Office, Repalle.  The 2^nd opposite party also filed Ex.B6 plan submitted by the complainant for obtaining the insurance policy from 2^nd opposite party.  According to Ex.B6 plan measurement of shop room are given as 10ft. x 15ft.  Therefore, a perusal of Ex.B4, B6, B7 and B8 coupled with Ex.B10 report of the surveyor clearly shows that complainant through 1^st opposite party obtained insurance policy under Ex.B4 for his shop i.e., M/s.Lakshmi Ply Wood Center, Near Municipal Office, Repalle. But not obtained policy for the godown situated at door No.11-15-13(3), Municipal Quarters back, Repalle, where the stock was damaged and assessed to a tune of Rs.1,12,384/-. The 1^st opposite party also stated in its version that complainant never informed to 1^st opposite party that it is keeping stock in both shop and godown, that they are in separate address, that insurance is need for both.  But the complainant informed the same only after the floods. 

                   During the pendecy of the case, complainant filed                  IA 263/11 to direct the Development of officer of 2^nd opposite party who insured the unit of complainant and issued policy to give evidence and examine him on oath.  The said IA was disposed of with a direction that the petitioner is at liberty to serve interrogatories on 2^nd opposite party.  Accordingly complainant filed some interrogatories regarding the address particulars in the proposal form and address particulars contained in the policy for which 2^nd opposite party filed replies together with proposal form.   As seen from the proposal form the address of the proposed/insured is given as M/s Lakshmi Ply wood centre, (near) Municipal office, Repalle.   OP2 answer to the interrogatories stating that no development officer is involved and that they pay commissions rendered by the bank, that the policy has been issued in the joint names of the banker and the borrower, the name of the insured is mentioned as “M/s Indian Bank, Repalle, A/c M/s Lakshmi Ply Wood Centre, near municipal office, Repalle”, that the captioned policy was renewed basing on the earlier policy since it is a continuous renewal, no proposal is required at the time of renewal, since the banker did not ask for any changes in the terms and conditions mentioned in the earlier policy.   Thus the policy was issued in the name of the shop of the complainant but not to the godown of the complainant where the alleged loss occurred. 

        In support of his case the learned counsel for the complainant relied on a decision reported in 2011 (3) CPR 248 (NC) between United India Insurance Company Limited vs. Sai Krishna Panels & Doors and another wherein it was held that

“No one can be permitted to take advantage of deficiency on part of other, to deny complainant his due claim”.     

        In the above case relied on by the counsel for the complainant, complainant has taken two separate policies one relating to his shop and office and other for protection of goods in the godown and that the banker wrote a letter to the insurer informing that due to oversight the address of the shop had wrongly been mentioned as the address of godown also.  But whereas in the present case on hand as already stated above the banker OP1 stated in his version that complainant never informed to the OP1 that it is keeping stock in both shop and godown and that they are in separate addresses, that insurance is needed for both.   But complainant informed the same only after the floods.   Therefore the facts of the present case on hand are different to the facts of the case relied on by the counsel for complainant.    Therefore the above said citation relied on by the counsel for complainant is not applicable to the present case on hand.  

In a decision reported in 2011 (1) CPR 287 (NC) between Shri Gurudath M. Nayak vs. National Insurance Company Limited and Another it was held

        “Loss suffered by complainant in respect of damage caused to material kept in a different place other than premises who specific address is mentioned in insurance policy would not be covered”.      

In the above said case the policy and the proposal clearly indicates address of premises and there is no mention about any other premises.  In the present case on hand also the proposal given at the earliest point of time and the policy in question indicates the same address.  There is no mention about the address of the godown either in the proposal or in the policy.   Therefore the above citation is aptly applicable to the case on hand.

                In a 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 it was 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 a 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, it can be safely concluded that the godown premises of complainant was not covered under the policy in question, where the stock of complainant was damaged and that there is no deficiency of service on the part of opposite parties 1 and 2.  In view of the foregoing discussion and in view of the facts and circumstances of the case, we conclude that there is no loss occurred to the stocks of the complainant for the insured premises i.e., shop of the complainant and that there is no deficiency of service on the part of opposite parties 1 and 2 accordingly these issues are answered.  Therefore the complaint is liable to be dismissed.

In the result the complaint is dismissed.  But in the circumstances of the 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 1^st opposite party :        

For 2^nd opposite party :

                                                                                PRESIDENT