BEFORE THE DISTRICT FORUM: KURNOOL
Present: Sri. T.Sundara Ramaiah, B.Com B.L., President
And
Sri. M.Krishna Reddy, M.Sc., M.Phil., Male Member
And
Smt. S.Nazeerunnisa, B.A., B.L., Lady Member
Wednesday the 18th day of January, 2012
C.C.No.112/2010
Between:
T.K. Kumara Swamy, S/o T.Ramalingappa.,
H.No.4/60, Near TATA Tower,Mantralayam Village and Mandal - 518 345, Kurnool District.
…Complainant
-Vs-
1. The Branch Manager, New India Assurance Company Limited,
No.19/19, 20/21, Municipal Main Road, Adoni - 518 301, Kurnool District.
2.The Branch Manager, State Bank of India,
Mantralayam - 518 345,Kurnool Distirct.
..Opposite ParTies
This complaint is coming on this day for orders in the presence of Sri B.Amarnath, Advocate for complainant and Sri P.Ramanjaneyulu, Advocate for opposite party No.1 and Sri M.Parameshappa, Advocate for opposite party No.2 and upon perusing the material papers on record, the Forum made the following.
ORDER
(As per Smt. S.Nazeerunnisa, Lady Member)
C.C. No. 112/2010
1. This complaint is filed under section 12 of C. P. Act, 1986 Praying to direct the opposite party No.1:-
- To pay claim amount of Rs.9,86,533/- with interest at 12% per annum from the date of claim till the date of realization;
- To pay Rs.50,000/- towards mental agony suffered by the complainant;
- To pay Rs.2,000/- towards costs of the complaint;
And
- Grant such other relief or reliefs as the Honourable Forum deems fit and proper in the circumstances of the case.
2. The case of the complainant in brief is as under:- The complainant is a business person running the shop by selling Sundry Articles like Photo Frames, Pooja Articles, Threads, Toys etc., catering to the needs of Pilgrims Visiting Mantralayam Village. The Complainant obtained loan of Rs.7,50,000/- from opposite party No.2 in the year 2008. Opposite party No.2 paid insurance premium to opposite party No.1 for coverage of shop keeper on stocks risks for Rs.10,00,000/-. Opposite party No.1 issued the policy bearing No.610702/11/09/11/00000247 for the year 2009 – 2010. In the floods took place from 30-09-2009 to 03-10-2009 the shop of the complainant was totally damaged and the complainant sustained total loss. The complainant informed about the same to the opposite parties. The insurance surveyor was appointed by opposite party No.1. After several requests the surveyor visited the shop and had not properly noted down the damage caused due to floods. The complainant submitted required documents to the surveyor and informed the same under the letter dated 16-01-2010. The said surveyor demanded several documents, which are not relevant for the settlement of the claim and which have been lost in the floods. Inspite of several request and letters sent to opposite party No.1 to settle the claim, the opposite party No.1 directed the complainant to submit the documents which the surveyor had demanded. The opposite party No.2 had been regularly visiting the shop and verifying the stocks. Stock statements were also submitted to opposite party No.2 by the complainant. The opposite party No.1 did not give response and caused delay in settlement of claim by insisting the complainant to produce unavailable documents. It amounts to deficiency of service on the part of opposite party No.1 and it caused mental agony to the complainant. Hence the complaint.
3. Opposite party No.1 filed counter admitting that the shop of the complainant was insured by it for the period commencing on 02-10-2009 at 8.33 A.M. to 01-10-2009. The previous policy in favour of the complainant was expired on 03-09-2009. Due to heavy rains and floods, Mantralayam was inundated from 30-09-2009 to 02-10-2009. After the receipt of said information opposite party No.1 appointed an independent surveyor to assess the loss. The said surveyor could not submit his report as the complainant did not co-operate with him and submit the required documents. The complainant cannot claim a sum of Rs.9,86,533/- for which there is no record of evidence. Opposite party No.1 is not liable to pay the claim amount as the policy came in to force from 8.33 A.M. on 02-10-2009. The previous policy expired on 03-09-2009. Inspite of reminders opposite party No.2 did not take action for 28 days. The risk will commence from the date and time mentioned in the policy issued. There are no merits in the complaint. The complaint is liable to be dismissed.
Opposite party No.2 filed written version stating that the bank sanctioned loan of Rs.7,50,000/- to the complainant. The complainant executed agreement of loan cum hypothecation for Rs.7,50,000/-. On 01-10-2009 opposite party No.2 debited a sum of Rs.1,158/- in personal account of the complainant towards insurance premium amount. On the same day the draft was handed over to the clerk of opposite party No.1 at about 8.00 P.M. through its business facilitator by name U.Veeresh. The clerk of opposite party No.1 handed over the said Demand Draft to the officer of opposite party No.1 on 02-10-2009 at 8.30 A.M. Though it was declared as public holiday, opposite party No.1 has accepted all premium receipts and encashed same on 06-10-2009 without any objections. The floods hit Mantralayam and surrounding Villages at early hours of 02-10-2009 only but not in the evening of 01-10-2009. It is impossible to predict severe floods by any person. The contention of opposite party No.1 that the policy covers the risk from 8.33 hours on 02-10-2009 and where as the floods started from 30-09-2009 and by evening of 01-10-2009 the Mantralayam Town was immersed in floods is false. Opposite party No.2 forwarded the policy amount of the complainant to opposite party No.1 on 01-10-2009 before the flood. It is the duty of the opposite party No.1 to settle the claim of the complainant. The complaint is liable to be dismissed against opposite party No.2.
4. On behalf of the complainant Ex.A1 to A14 are marked and sworn affidavit of the complainant is filed. On behalf of the opposite parties Ex.B1 to B23 are marked. Sworn affidavits of the opposite parties 1 and 2 and third party affidavits of U.Veeresh, M.Rakesh and Hosur Vijaya Kumar, Surveyor are filed.
5. Both sides filed written arguments.
6. Now the points that arise for consideration are:
- Whether there is deficiency of service on the part of Opposite Parties?
- Whether the complainant is entitled for the reliefs as prayed for?
- To what relief?
7. POINTS i and ii:-It is admitted that the shop of the complainant is situated at Mantralayam Village. It is also admitted that the complainant obtained loan of Rs.7,50,000/- from the opposite party No.2 bank. Opposite party No.1 Insurance Company issued Ex.B1 Insurance policy in favour of the complainant for coverage of shop keeper for the year 2009 – 2010 bearing No.610702/11/09/11/00000247. The period of policy is at 8.33 A.M. on 02-10-2009 to 01-10-2010. It is the case of the complainant that there were floods from 30-09-2009 to 03-10-2009, and he sustained total loss of stock in the shop. The complainant in his affidavit stated that there were floods from 30-09-2009 to 03-10-2009 and due to the said floods, the stock in his shop was completely damaged. The complainant filed Ex.A14 copy of Certificate issued by Tahsildar, Mantralayam dated 20-10-2009 where in it is mentioned that the shop of the complainant situated in Mantralayam was badly affected with over flowed floods water of Thungabhadra River on 02-10-2009 and due to heavy rains received from 30-09-2009 to 01-10-2009 Mid-night. The opposite party No.2 filed Ex.B22 dated 17-06-2010 copy of Certificate issued by Tahsildar, Mantralayam where in it is mentioned that Mantralayam Village was badly affected with flood water of Thungabhadra River on 02-10-2009 at 1.00 A.M. and the water subsided on 03-10-2009 at 5.00 A.M. As seen from the evidence available on record it is clear that entire Village of Mantralayam was submerged in the flood water on 02-10-2009.
8. It is the contention of the complainant that she submitted claim to insurance company and that the insurance company did not settle the same. Ex.B1 is the policy issued by opposite party No.1 in favour of the complainant. It is mentioned in Ex.B1 that the policy commenced at 8.33 hours on 02-10-2009. It is contention of opposite party No.1 that the floods started from 30-09-2009. The date on which the stock in the shop of the complainant was damaged is crucial. In Ex.A14 certificate issued by Tahsildar, Mantralayam there is no mention that the Mantralayam Town was affected in the flood water on 30-09-2009 and 01-10-2009. There is clear mention in Ex.A14 that the shop of the complainant was badly affected with flood water of Thungabhadra River on 02-10-2009. The contention of the opposite party No.1 that the stock in the shop of the complainant was damaged prior to 02-10-2009 cannot be accepted. Merely because there was heavy rain in the area on 30-09-2009 and 01-10-2009 it cannot be said that the stock in the shop of the complainant was damaged prior to 02-10-2009. It is clearly stated in the affidavit filed in support of opposite party No.2 that the Demand Draft towards the premium amount was handed over to opposite party No.1 at 8.00 P.M. on 01-10-2009 through business facilitator of opposite party No.2 bank by name U.Veeresh. U.Veeresh also in his affidavit clearly stated that he handed over the Demand Draft towards insurance premium to opposite party No.1 at 8.00 P.M. on 01-10-2009. Opposite party No.1 is not certain through whom it received the Demand Draft.
9. It is submitted by the learned counsel appearing for the complainant that policy becames operative from the date of commencement. In support of his contention he relied on a decision reported in [1995] 2 CPR 40. The said decision was rendered basing on the Supreme Courts decision reported in New India Assurance Company Limited (Versus) Ram Dayal and others. In the said decision the Apex Court held that when the policy is taken on a particular date, its effectiveness is from the commencement of the date. In the present case also the policy Ex.B1 commenced on 02-10-2009. It is deemed to have commenced from 00 hours of 2nd October. 2009. As already stated the entire town of Mantralayam was affected with flood water on 02-10-2009. The same is supported by Ex.A14 and Ex.B22 certificates issued by Tahsildar Mantralayam. The contention of the opposite party No.1 that the flood occurred prior to 02-10-2009 and that it is not liable to pay the assured amount to the complainant is not just and proper. The complainants stock was damaged due to floods on 02-10-2009 when the policy Ex.B1 was in force. Opposite party No.1 without any justification, did not settle the claim of the complainant. The surveyor did not assess the loss sustained by the complainant on the ground that the complainant failed to produce the documents. The surveyor addressed letters to the complainant to produce documents. It is argued by the learned counsel appearing for the complainant that the complainant lost everything in the floods and therefore she could not produce the required documents. Merely because the complainant failed to produce the documents required by the surveyor the opposite party cannot escape its liability.
10. Opposite party No.2 is the bank. It is argued by the learned counsel appearing for the opposite party No.2 that the bank is not under obligation to get the policy renewed. In support of its contention the bank filed Ex.B16 arrangement letter between the complainant and bank where in clause 6, it is stated that the renewal of the policy should be done by the borrower. The learned counsel also cited a decision of National Commission in First Appeal No.272/2010 (Shri Subhash Chand Jain, Late Shri Hiralal Jain, United India Insurance Company Limited and Bank of Maharashtra), where in it is held that it is not obligatory of the bank to get policy of the borrower renewed. Merely because bank did not send premium to renew the policy to opposite party No.1, it cannot be held responsible. Ex.B1 policy was issued by opposite party No.1 Insurance Company. The stock in the shop of the complainant was damaged due to floods on 02-10-2009 when the policy was in force. The opposite party No.1 did not pay any amount to the complainant. There is deficiency of service on the part of the opposite party No.1.
11. Admittedly the stock in the shop of the complainant was insured by opposite party No.1 insurance company under the policy Ex.B1 for Rs.10,00,000/-. The complainant did not place documentary evidence showing the actual loss sustained by her. As already stated the surveyor also did not assess the loss sustained by the complainant. As there is no material on record showing the actual loss sustained by the complainant we think it is just and proper to direct the opposite party No.1 to pay an amount of Rs.1,00,000/- (Rupees one lakh only) to the complainant.
12. In the result, the complaint is partly allowed directing the opposite party No.1 to pay an amount of Rs.1,00,000/- (Rupees one lakh only) to the complainant along with cost of Rs.500/- within one month from the date of the order. The complaint against opposite party No.2 is dismissed.
Dictated to the stenographer, transcribed by her, corrected and pronounced by us in the open bench on this the 18th day of January, 2012.
Sd/- Sd/- Sd/-
MALE MEMBER PRESIDENT LADY MEMBER
APPENDIX OF EVIDENCE
Witnesses Examined
For the complainant : Nil For the opposite parties : Nill
List of exhibits marked for the complainant:-
Ex.A1 Flood Loss intimation letter to opposite party No.1
dated 16-12-2009.
Ex.A2. Letter dated 31-12-2009 by opposite party No.1 to
complainant.
Ex.A3 Surveyor Report dated 02-01-2010 of Hosur Vijay Kumar.
Ex.A4 Letter of complainant addressed to opposite party No.1
dated 16-01-2010.
Ex.A5 Photo copy of Paper Clippings showing the Flood Condition.
Ex.A6 Letter dated 27-01-2010 by Surveyor to complainant.
Ex.A7 Office copy of letter dated 08-02-2010 by complainant to opposite party No.1.
Ex.A8 Letter dated 11-02-2010 by opposite party No.1 to
Complainant.
Ex.A9 Office copy of letter dated 01-03-2010 by complainant to opposite party No.1.
Ex.A10 Letter dated 08-03-2010 by opposite party No.2 to
opposite party No.1.
Ex.A11 Letter dated 17-03-2010 by Surveyor to Complainant.
Ex.A12 Office copy of Letter dated 08-04-2010 by complainant to
opposite parties 1 and 2.
Ex.A13 Letter dated 19-04-2010 by opposite party No.1 to
complainant.
Ex.A14 Photo copy of Certificate issued by Tahasildar,
Mantralayam dated 29-10-2009.
List of exhibits marked for the opposite parties:-
Ex.B1 Policy No.610702/11/09/11/00000247 issued by
opposite party to the complainant.
Ex.B2 Office copy of Fire Claim Form submitted by the
complainant date d 12-01-2010.
Ex.B3 Photo copy of Email statement dated 02-10-2009.
Ex.B4 Office copy of Surveyor report dated 15-10-2009 to
opposite party No.2.
Ex.B5 Office copy of Surveyor Report dated 02-01-2010 to complainant.
Ex.B6 Office copy of Surveyor Report dated 02-01-2010 to
complainant.
Ex.B7 Photo copy of Surveyor Report dated 17-03-2010 to
complainant.
Ex.B8 Letter dated 16-06-2010 addressed to complainant
claiming for documents.
Ex.B9 Letter date d 31-12-2009 by opposite party No.1 to
complainant.
Ex.B10 Letter dated 27-01-2010 by opposite party No.1 to
complainant.
Ex.B11 Letter dated 11-02-2010 by opposite party No.1 to
complainant.
Ex.B12 Letter dated 19-04-2010 by opposite party No.1 to
complainant.
Ex.B13 Photo copy of Daily News Paper Eenadu dated 02-10-2009
along with press reports and copies of claim
correspondence submitted by various policy holders which
confirm the operation of the insured peril prior to
commencement of policy issued to the complainant.
Ex.B14 Photo copy of statement sent to opposite party No.2 by
opposite party No.1 for renewals for the month of
September, 2009 dated 04-09-2009.
Ex.B15 Photo copy of Acknowledgement dated 09-09-2009.
Ex.B16 Photo copy of Arrangement Letter dated 28-06-2008.
Ex.B17 Statement of Account of the complainant
dated 19-07-2010.
Ex.B18 Photo copy of D.D.No.791558 for Rs.60,523/-
dated 01-10-2009.
Ex.B19 Photo copy of Statement showing Transfer Transactions dated 01-10-2009.
Ex.B20 Photo copy of Download Massage List of
opposite party No.1 dated 02-10-2009.
Ex.B21 Photo copy of confirmation Letter of SBI Manager, Adoni to show that DD amount of Rs.60,523/- on 06-10-2009.
Ex.B22 Photo copy of Certificate issued by Tahsildar Mantralayam dated 17-06-2010.
Ex.B23 Photo copy of Letter addressed to opposite party No.2 to the opposite party No.1 dated 18-04-2010.
Sd/- Sd/- Sd/-
MALE MEMBER PRESIDENT LADY 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 :
