Karnataka

Tumkur

CC/43/2017

Sri.Manjunatha Rao .H.K. - Complainant(s)

Versus

The Branch Manager,,United India Insurance Co.Ltd - Opp.Party(s)

B.SHIVAKUMAR

13 Dec 2017

ORDER

 

Complaint filed on: 10-04-2017                                                      Disposed on: 13-12-2017

 

BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM

OLD DC OFFICE COMPOUND, TUMAKURU-572 101

 

CC.No.43/2017

DATED THIS THE 13^th DAY OF   DECEMBER 2017

 

PRESENT

SMT.PRATHIBHA. R.K. BAL, LLM, PRESIDENT

SMT.GIRIJA, B.A., LADY MEMBER

 

Complainant: -           

       

Sri.Manjunatha Rao.H.K,

S/o. Krishnoji Rao,

Aged about 51 years,

Prop. Mahalakshmi Tailoring and Garments, Oorukere village, Kasaba

Hobli, Tumakuru taluk & District

(By Advocate Sri.B.Shivakumar)

 

 

V/s

Opposite parties:-    

 

1.   The Branch Manager, United India Insurance Co. Ltd., Branch office, Jayadeva complex, BH Road, Tumakauru city.

2.   The Manager,

Kaveri Grameena Bank, Kora Branch, Kora, Kora hobli, Tumakuru taluk.

(OP No.1 by Advocate Sri.H.M.Nagabhushan)

(OP No.2-Inperson)

 

ORDER

 

SMT.GIRIJA, B.A., LADY MEMBER

This complaint is filed by the complainant against the OP No.1and2, under Section 12 of the Consumer Protection Act. The complainant prays to direct the 1^st OP to pay an amount of Rs.2,02,750=00 along with 12% interest per annum from the date of fire incident till its realization and to pay Rs.3,00,000=00 towards mental harassment and agony along with 18% interest per annum from the date of complaint to till its realization, in the interest of justice and equity.

 

2. The brief facts of the complaint is as under.

          The complainant who being the Tailor by profession since 16 years and he was running a Tailoring and Garment shop at Oorkere village, Kasaba hobli, Tumakuru taluk under the name and style “Mahalakshmi Tailoring and Garments.

          The complainant submitted that, to develop the above said business, the complainant has approached the 2^nd OP for sanction of loan. The 2^nd OP had sanctioned the loan by hypothecating the necessary materials, machineries and etc. While sanctioning the said loan, the complainant had got insured the said materials and machineries with the 1^st OP Insurance Company through 2^nd OP for any kind of damages under the policy bearing No.0714002615P103143667 of “Shop Keepers Insurance Policy” by paying necessary premium. The said policy was valid from 16-6-2015 to 15-6-2016 and it was covered all kind of risks.

          The complainant further submitted that, on 22-8-2015 in the evening, due to some inadvertence and beyond the control, the was fire incident had occurred in the said Mahalakshmi Tailoring and Garment Shop. Due to said incident, the following clothes are completely burnt is as under.

Sl. No.	Kind of cloth materials	Rate of per each item	Total amount of materials
1	3 nos. of silk saris	8,000=00	24,000=00
2	5 nos. of Embroidery	3,000=00	15,000=00
3	3 nos. of silk Blouses	1,500=00	4,500=00
4	15 nos. of Ordinary saris	250=00	4,500=00
5	10 Pairs Chudidar materials	1,100=00	11,000=00
6	10 nos. of Shirt piece	900=00	9,000=00
7	10 nos. of Pant piece	1,000=00	10,000=00
8	5 nos. of Gagra dress pieces	3,000=00	15,000=00
9	20 nos. of Blouse pieces	500=00	10,000=00
10	5 nos. of readymade franks	350=00	1,750=00
11	50 meters of Uniform cloth	Per meters 200=00	10,000=00
12	50 nos. of Pants pieces	400=00	20,000=00
13	75 nos. of shirt pieces	250=00	18,750=00
14	4 nos. of tailoring measuring tapes	15=00	60=00
15	One cutting table	1,500=00	1,500=00
16	Tailoring materials	4,000=00	4,000=00
17	20 nos. of readymade petty coats	100=00	2000=00
18	Damages towards shop building	-	20,000=00
19	20 nos. of dress pieces	400=00	8,000=00
20	10 nos. nities	100=00	1,000=00
Total amount of loss due to said fire incident is			Rs.2,02,750=00

 

          The complainant further submitted that, thereafter the complainant had informed the above said facts to the OPs and the 2^nd OP forwarded the representation given by the complainant to the 1^st OP for necessary arrangements. Then the 1^st OP had sent its surveyor by name Sri.Ravishankar to assess the damages. The said surveyor had visited the spot and inspected the place and the complainant had given all the details to the surveyor and they assessed the damages and left the spot.

          The complainant further submitted that, the 1^st OP had issued a letter dated 14-12-2016 stating that, the complainant had not produced the proper burnt quantum/valuation and necessary documents to support the same. Once again, the complainant submitted the necessary documents to the 1^st OP.  The complainant further submitted that, thereafter the 1^st OP issued a letter dated 3-3-2017 stating that, the burnt quantum could not be assessed and hence they are closed the claim application. Thereby there is deficiency in service on the part of the OPs. Hence, the present complaint is filed.

         

3. After service of the notice, the 1^st OP has appeared through his counsel and filed objection. The 2^nd OP has not appeared before the forum and he was called out absent and he has been placed ex-parte.

 

4.  In the version, the 1^st OP has strongly contended that, the averments made in the para no.3 of the complaint are true and correct and other averments made in the complaint are not true and correct and the complainant shall put to strict proof of each every one of those allegations.  

The 1^st OP further submitted that, Sri.Ravishankar is not the representative of the 1^st OP and he is the independent loss assessor and valuer, it is a fact that, the 1^st OP deputed the said person to assess loss and damage caused to the complainant’s shop and to ascertain the cause of fire are facts.

The 1^st OP further submitted that, the policy cover toward material to a Tune of Rs.1,00,000=00 subject to proof of bills, purchase bills, stock register, customers cloth taken for stitching records maintained by the complainant in his course of business. As the complainant has not produced the above said documents to the surveyor deputed by assessing loss caused in the alleged fire incident and this OP could not assess the loss caused to the complainant and in turn we could not make payment, hence by giving notice to the complainant, the file was closed.  The important fact is that, the cause of fire is litting oil lamps (holy lamps) in front of the god photos and closing the shop without putting off the oil lamps, which is due to negligent act of the complainant and not taking proper precaution of the situation, which is against to the terms and conditions of the policy and the policy was also suffers from under insurance. Hence, the 1^st OP is not liable to make good the loss caused to the complainant as prayed for.

The 1^st OP further submitted that, it may be noted that, the insured has submitted a statement holding stock worth of Rs.2,02,750=00 got burnt, but no papers supporting the said document produced. Consequently to admissibility of claim as per the policy conditions, the condition of average is to be taken in to consideration, in that situation the OP liability get restricted to Rs.50,000=00. Hence, the complaint is not maintainable either in law or on facts and it is liable to be dismissed with costs, in the interest of justice and equity.     

 

5. In the course of enquiry in to the complaint, the complainant and 1^st OP have filed their affidavit evidence reproducing what they have stated in their respective complaint and version. The complainant has produced insurance policy bond, claim form, six positive photographs and etc. The 1^st OP has produced shopkeeper insurance policy and its terms and conditions of the policy which were marked as Ex-R1. We have heard the arguments of both parties and perused the documents and then posted the cases for orders.

 

 

 

6. Based on the above materials, the following points will arise for our consideration.

1.      Whether the complainant has proved deficiency in service on the part of the 1^st OP?

2.      What Order?      

 

7. Our findings on the above points are;

                    Point no.1: In the affirmative  

                    Point no.2: As per the final order below.

 

REASONS

 

8. Looking into the allegations made in the complaint and also version filed by the 2^nd OP it is an undisputed fact that, the 2^nd OP had sanctioned the loan by hypothecating the necessary materials, machineries of the complainant’s tailoring shop and he had got insured the said materials and machineries with the 1^st OP Insurance Company through 2^nd OP for any kind of damages under the policy bearing No.0714002615P10314 3667 of “Shop Keepers Insurance Policy” by paying necessary premium. The said policy was valid from 16-6-2015 to 15-6-2016 and it was covered all kind of risks.

 

9. The main allegation of the complainant is that, in the evening of 22-8-2015, the fire accident had occurred in the complainant’s Mahalakshmi Tailoring and Garment Shop. Due to said accident, the clothes were completely burnt and he incurred total loss of Rs.2,02,750=00. The complainant had informed the above said facts to the OPs and the 1^st OP had sent its surveyor by name Sri.Ravishankar to assess the damages. The said surveyor had visited the spot and inspected the place and the complainant had given all the details to the surveyor and they assessed the damages and left the spot. Thereafter the 1^st OP issued a letter dated 3-3-2017 stating that, the burnt quantum could not be assessed, hence the claim application was closed.

         

10. Admittedly, the policy was in force at the time of fire accident. Further, the OP has not disputed the said fire accident and burnt clothes, but the main allegation of the OP is that, the complainant has not produced any purchase bills, Stock register, customer’s cloth taken for stitching records maintained by the complainant in the course of business. Hence, the surveyor could not assess the loss caused to alleged fire accident, so the claim of the complainant was closed.

 

11.  On perusal of the documents produced by the 1^st OP, wherein it is seen that, the Shopkeepers Insurance Policy bearing No.0714002615P103143667 issued in the name of complainant and it is valid from 16-6-2015 to 15-6-2016 and sum assured was Rs.1.00 lakhs.     Moreover, the 1^st OP himself has stated in his version as well as affidavit evidence is that, the complainant has submitted a statement holding stock worth of Rs.2,02,750=00 got burnt, but no papers supporting the said documents were produced.  Consequent to admissibility of claim as per the policy conditions, Condition of average is to be taken into consideration, in that situation their liability gets restricted to Rs.50,000=00 less Rs.2,500=00 as claim excess, the maximum liability is Rs. 47,500=00.  

 

12. Further the OPs have raised another contention is that, as per the terms and conditions No.3 of the policy, wherein it is stated under General Condition No.3, it reads as under

 “3. Reasonable Care: The Insured shall take all reasonable steps to safeguard the property insured against any loss or damage. The Insured shall exercise reasonable care that only competent employees are employed and shall take all reasonable precautions to prevent all accidents and shall comply with all statutory or other regulations”. 

 

          13. The cause of fire is lighting of oil lamps in front of the god photo and the complainant closed the shop without putting off the oil lamps. This negligent act of the complainant which is against the terms and conditions No.3 of the policy. In this regard, the 1^st OP has not produced any believable documentary evidence to prove that, the cause of fire has occurred due to negligent act of the complainant by lighting oil lamp in the front of the god photo and closed the shop without putting off the lamp. Hence, we cannot accept the contention of the 1^st OP that, there is a negligent act on the part of the complainant.

 

14. So looking to the oral and documentary evidence of complainant and compared to the material evidence of the 1^st OP, we are of the view that, the oral and documentary evidence of complainant are more believable trustworthy and acted than the material evidence of OP. As such we are inclined come to straight conclusion that, the complainant has proved with clear and tangible material evidence that, the 1^st OP is negligent and there is deficiency of service on the part of the 1^st OP in not settling the claim amount. Hence, we answer this point in the affirmative. In view of our affirmative finding on the point No.1, the complainant is entitled to get admissible claim amount of Rs.47,500=00 as per the policy terms and conditions So, the 1^st OP is directed to pay Rs.47,500=00 to the complainant within 30 days from the date of this order, failing which, the 1^st OP shall pay 9% interest per annum on the said amount from the date of complaint to till the date of realization. The OP is further directed to pay Rs.5,000=00 towards litigation cost to the complainant. In the result, for the foregoing reasons, we proceed to pass the following order.

 

ORDER

 

The complaint filed by the complainant is allowed in part.

 

The 1^st OP is directed to pay Rs.47,500=00 to the complainant within 30 days from the date of this order, failing which, the 1^st OP shall pay the said amount to the complainant along with 9% interest per annum from the date of complaint to till the date of realization.

 

The 1^st OP is further directed to pay Rs.5,000=00 towards litigation cost to the complainant.

 

The complaint filed against the 2^nd OP is hereby dismissed.

 

          Supply free copy of this order to both parties. 

 

(Dictated to the Stenographer, transcribed and typed by him, corrected and then pronounced by us in the Open Forum on this, the 13 day of December 2017)

 

                                                         

LADY MEMBER                                  PRESIDENT