Date of Filing      : 26.05.2017

                                                                                                                 Date of Disposal: 20.02.2023

 

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION

THIRUVALLUR

 

 BEFORE  TMT. Dr.S.M. LATHA MAHESWARI, M.A.,M.L, Ph.D (Law)                  .…. PRESIDENT

                 THIRU.P.MURUGAN,.MCom., ICWA(Inter)., B.L.,                                    ....MEMBER-II

 

CC. No.25/2017

THIS MONDAY, THE 20th DAY OF FEBRUARY 2023

 

Mr.A.Suresh, S/o.Alappa Achari,

Prop. Of M/s.ASM Wood Works,

No.125, 2/F, Bye Pass Road,

Gummidipoondi,

Thiruvallur District 601 201.                                                          .........Complainant. 

                                                                          //Vs//

1.The Chief Manager,

   Bank of Baroda, Gummudipoondi Branch,

   No.27, GNT Road,

   Thiruvallur District -601 201.

 

2.United India Insurance Company Limited,

    No.150, Kaattukollai, Railway Station Road,

    Gummidipoondi, 

    Thiruvallur District -601 201.                                                   ...Opposite parties.

 

Counsel for the complainant                                :   M/s.R.Chellamuthu, Advocate.

Counsel for the 1st opposite party                       :   M/s.P.V.Muralidhar, Advocate.

Counsel for the 2nd opposite party                      :  Mr.S.Sushil Kumar Advocate.

                         

This complaint is coming before us on various dates and finally on 16.02.2023 in the presence of M/s.R.Chellamuthu Advocate, counsel for complainant, M/s.P.V.Murlidhar, Advocate counsel for the 1st opposite party and Mr.S.Sushil Kumar Advocate,  counsel for the 2nd opposite party and upon perusing the documents and evidences of both sides, this Commission delivered the following: 

ORDER

PRONOUNCED BY TMT. Dr.S.M. LATHA MAHESWARI,   PRESIDENT.

 

This complaint has been filed by the complainant u/s 12 of the Consumer Protection Act, 1986 alleging deficiency in service in repudiating the claim of the complainant along with a prayer to direct the opposite parties  to pay a sum of Rs.15,00,000/- towards compensation for the mental agony and hardship caused to the complainant due to the deficiency in service along with cost of the proceedings to the complainant. 

Summary of facts culminating into complaint:-

 

It was the case of the complainant that he was the proprietor of M/s.A.S.M. Wood works, specialist in cupboard work aluminum partition and wood works and he was doing the business since 2007 at a shop situated in Bye Pass Road, Gummudipoondi.  Current Account was opened with the 1st opposite party, Gummudipoondi Branch during the relevant period.  Due to widening of the Bye Pass Road his shop was demolished and he shifted his place of business to Arun Nagar, GNT Road, Pethikuppam, Gummidipoondi during 2012 and the change of address was duly informed to the 1st opposite party. The 1st opposite party itself processed the necessary papers and insured complainants wood works business with the 2nd opposite party insurance company vide Policy No.012082/48/13/34/00000150.  Both the first and second opposite parties coordinate with each other regarding to insurance.  The insurance premium and other necessary charges were deducted by the 1st opposite party under the current account on behalf of the 2nd opposite party. During 2012 the complainant changed his place of business to the present premises at No.125, Bye-pass Road, Gummidipoondi.  The change of address was duly intimated to the 1st opposite party.  During the year 2014 the current facility was for Rs.15,00,000/-.  The officials from the 1st opposite party would visit and take account of the stocks every month and statement of account would also be duly submitted. During 06.08.2014-07.08.2014 woodworks business centre at No.125 Bye-Pass Road Gummidipoondi, caught fire and severe damaged occurred.  The stock consisting of various tree woods such as Burma Thekku, Vengai, Padaak, Country Wood, ply wood and the necessary machineries were lost in the fire accident.  Police complaint was given. The fire accident occurred due to short circuit in the supply of electricity service. On 07.08.2014 the complainant informed the first opposite party and immediately the Manager of the first opposite party and Manager of second opposite party visited the place of fire accident.  Thereafter, a surveyor from the 2nd opposite party inspected on 08.08.2014 and assessed the quantum of damage caused due to fire accident and fixed the same as Rs.9,80,000/-.  Therefore the complainant submitted his claim papers on 01.09.2014 to the 2nd opposite party through the 1st opposite party for a sum of Rs.9,80,000/-. Whenever the complainant changed his address, the same was duly informed to the 1st opposite party and it was the 1st opposite party who processed all the insurance papers with the 2nd opposite party.  But the 1st opposite party suddenly issued a legal notice dated 01.12.2016 claiming a sum of Rs.3,60,000/- to the complainant. The act of the opposite parties clearly establishes that due to their negligence the insurance amount was not paid to the complainant.  The complainant was subjected to great financial loss by the negligence and deficiency of service of both the opposite parties.  Great mental agony was suffered by the complainant due to the inadequate and unfair trade practice adopted by the opposite parties and hence the complainant is entitled for damages and compensation from the opposite parties.  Thus aggrieved by the act of the opposite parties the present complaint was filed to direct the opposite parties to pay a sum of Rs.15,00,000/- towards compensation for the mental agony and hardship caused to the complainant due to the deficiency in service along with cost of the proceedings to the complainant. 

Crux of the defence put forth by the 1st opposite party:-

The complainant was having Current Account and was doing business in wood in the name and style of M/s. A.S.M. Wood Works and initially he was having shop at Arun Nagar, GNT Road, Peddikuppam and subsequently shifted to No.125, Bypass Road at Gummidipoondi.  Since he had not operated as per the sanction the account has been classified as NPA and the bank had issued notice for recalling its dues for which the complainant had sent a reply. It is true that the complainant had informed the fire accident in a new shop due to circuit in the late hour of 06.08.2014.  In fact the 1st opposite party has directed the complainant to take fire policy with the 2nd opposite party and accordingly the complainant has taken the policy and the fire accident took place when the policy was in force.  The 1st and 2nd opposite parties immediately after the information was given by the complainant had visited the fire spot at No.125, Bypass Road at Gummidipoondi. The 1st opposite party has taken maximum effort from the date of occurring fire accident insisting the 2nd opposite party to pay the compensation amount.  When the policy was in force the 2nd opposite party is liable to pay the same and they cannot escape from paying the compensation amount for the simple reason stating that the change of address not communicated to the 2nd opposite party.  Since the 1st opposite party has discharged his obligation as a Banker and had informed to the 2nd opposite party, there is no deficiency in service.  Thus sought for the complaint to be dismissed on their side. 

Crux of the defence put forth by the 2nd opposite party:-

It is true that the complainant was the proprietor of M/s. A.S.M. Wood Works, where the shop is located at No.2, Jevitha Complex, GNT Road, Gummidipoondi.  The 2nd opposite party denied that due to widening of the Bypass road the complainant’s shop was demolished and he shifted his place of business to Arun Nagar, GNT Road during 2012.  The complainant and the 1st opposite party were not informed about the change of address till date of fire accident to the 2nd opposite party.  It is true that the complainant had insured the A.S.M. Wood Work, Gummidipoondi on 29.02.2012 from 01.03.2012 to 28.02.2013 with the location address No.2, Jevitha Complex, GNT Road, Gummidipoondi and renewed in the subsequent two years vide policy No.012082/48/12/34/00000206 and policy No.012082/48/13/34/00000150 with same location address only.  There was no request by the complainant or the 1st opposite party about the change of address. The officials visited the complainant’s business at No.125, Bypass Road Gummidipoondi for inspection of stocks was denied. It is true that the woodwork caught fire at No.125, Bypass Road Gummidipoondi and that police complaint was also given by them.  It was denied that the 2nd opposite party surveyor fixed the quantum of damage for Rs.9,80,000/-.  The change of address was informed to the 2nd opposite party by the 1st opposite party only on 22.08.2014 vide letter Ref: DB/GPD/ASM/2014 stating that the unit was shifted to the current address a year back.  Hence the 2nd opposite party had also informed the 1st opposite party about the inability to admit the claim as the location given in the policy differs from the location of the accident.  Further it was informed that as per the terms and condition of the insurance policy, the 2nd opposite party were unable to settle the claim and the 2nd opposite party treating the claim as closed and the same was informed vide letter REF: UIIC/CLAIM/2015 dated 12.02.2015. The 2nd opposite party was made known about the change of address only 22.08.2014 vide letter issued by the 1st opposite party.  The 2nd opposite party cannot go beyond the terms and conditions.  For the negligence act done by the complainant and the 1st opposite party, the 2nd opposite party cannot be held at fault.  The allegations that the complainant duly provided the intimation with regard to the change of address to the 1st opposite party and on that basis only the officials from both opposite parties visited the shops on the day of accident were denied.  It was denied that every month the officials of opposite party visited complainant’s shop. Thus the 2nd opposite party sought for the complaint to be dismissed.

The complainant had filed proof affidavit and documents Ex.A1 to Ex.A9 were marked on their side.  On the side of 2nd opposite party proof affidavit was filed and documents Ex.B1& Ex.B2 were filed by them.  Though the 1st opposite party filed proof affidavit no documents were produced on their side.

Point for consideration:-

Whether the complaint as filed is hit by limitation?

Whether the non intimation of change of business place as alleged by the 2nd opposite party has been established?

Whether the intimation of repudiation of the claim to the bank amounted to proper intimation to the complainant?

Whether the change of business place is a criteria to be considered for deciding the liability of the insurance?

 Whether the act of opposite parties 1 & 2 amounts to deficiency in service in repudiation of the claim of the complainant?

Point No.1:-

On the side of the complainant the following documents were filed in support of the complaint allegations;

FIR issued by Sub Inspector of Police, F2 SIPCOT police Station, Gummudipoondi to complainant dated 07.08.2014 was marked as Ex.A1;

Claim petition by complainant to 2nd opposite party dated 01.09.2015 was marked as Ex.A2;

Letter issued by the complainant to 1st opposite party dated 26.09.2015 was marked as Ex.A3;

Legal notice issued by 1st opposite party to the complainant dated 01.12.2016 was marked as Ex.A4;

Reply notice issued by complainant to opposite party dated 22.12.2016 was marked as Ex.A5;

Shopkeepers Insurance Policy was marked as Ex.A6;

Statement of Accounts of the complainant was marked as Ex.A7;

Stock statement of the complainant dated 01.05.2014 was marked as Ex.A8;

Letter issued by Jeeveitha Timber Traders & Sawmill dated 27.08.2014 was marked as Ex.A9;

On the side of 2nd opposite party the following documents were filed in support of their defence;

Communication from 1st opposite party to 2nd opposite party dated 22.08.2014 was marked as Ex.B1;

Rejection of claim communicated by the 2nd opposite party to 1st opposite party dated 12.02.2015 was marked as Ex.B2;

  Oral arguments of both parties were made. The crux of the oral arguments adduced by the complainant’s learned counsel is that they being the manufacturers of wood furniture had insured his wood works business with the 2nd opposite party and the insurance was sold by the 1st opposite party.  It is the bank who acted as an agent of the insurance company and that the insurance was valid from 01.03.2014 to 28.02.2015.  Further it is their arguments that only the goods were insured and not the premises.

On the other hand the learned counsel appearing for 1st opposite party argued that the 2nd opposite party cannot escape its liability without proving that they were not intimated about the change of business place.  Further it is argued that the surveyor estimated the loss to the tune of Rs.9,80,000/-and thus he argued that there is no deficiency in service on their part as they have promptly intimated the insurance company/2nd opposite party about the change of address of the complainant’s business premises and they also have acted upon the information.

The 2nd opposite party’s learned counsel disputed the allegations of complainant and 1st opposite party stating that as per Ex.B1 dated 22.08.2014 only after 15 days from the date of accident the change of address was intimated to them.  With regard to repudiation of claim they submitted that it was duly intimated to the 1st opposite party on 12.02.2015 and hence the complaint was filed beyond the period of limitation.  It is argued that the intimation letter was not filed and no surveyor visited the spot.  Thus submitting that in the insurance policy the business place was mentioned as Jevitha Complex and not the alleged location where the accident had now took place.  Thus they sought for the dismissal of the complaint.

This commission appraised the pleadings and evidences produced by all the parties.  The issue with regard to limitation has been raised by the 2nd opposite party/insurance company with respect to filing of the complaint.  It is seen that till the filing of complaint, the complainant was not informed about the repudiation of the claim even as per the admitted version made by the 2nd opposite party.  The repudiation was informed only to the 1st opposite party bank and not to the complainant.  In such circumstances it is not acceptable that the limitation for filing of complaint has been lapsed and the complaint was hit by limitation. Thus this point is answered holding that the complaint was filed within the period of limitation when the repudiation has not been informed to the complainant which is the starting point for the cause of action for the complaint to be filed.

Point No.2:-

With regard to the second issue the complainant’s submissions is that as the Bank has been acting as an agent of the insurance company, as they have taken the policy only through them and also paid the premium through the Bank, it is submitted that when they have intimated about the change of place to the bank it is their duty to intimate the same to the insurance company. Thus it is proved that the change of business place was not intimated to the insurance company but only to the Bank.  The version of Bank that on intimation about accident they along with Insurance company’s officials visited the place assumes significance at this juncture.

 

Point No.3:-

The learned counsel while arguing for the insurance company stated that the repudiation of the claim has been duly intimated to the bank and admitted that till today no intimation was given to the complainant.  Thus it is well established that both the complainant as well as the insurance company was acting through the bank.  However when the claim was made by the complainant to the Insurance company it is the duty of the insurance company to intimate the repudiation of claim to the complainant. Thus this point answered in favour of the complainant.

Point No.4:-

Whether the insurable interest is only the stock or including the business place has to be considered as the main reason for repudiation is that the change of business place was not intimated to the insurance company.  It is seen that as per policy document Ex.A6 under ‘Description of Covers/perils’ only the stocks were insured and it also seen that the policy is attached to and forming part of policy No.012082/48/13/34/00000150 and the name was given as given as Dena Bank, Gummidipooni Branch. 

As we have held above that till today the insurance company has not intimated the repudiation of insurance claim to the complainant, the argument that they have intimated to the bank which should be considered as intimation to the complainant, the said contention should be taken for consideration to hold that it is the bank which has acted as an agent between the complainant and the insurance company and when the fact of change of address was acted upon by the bank it means that it is their duty to intimate the change of address to the insurance company.  At this juncture, it is admitted by Bank that they along with 2nd opposite party inspected the accident premises which has to be taken note of.  The opposite parties 1 & 2 cannot escape their liability on the ground that there was lack of intimation with regard to change of address between the parties though it is stated by the 1st opposite party and the complainant that a surveyor from the insurance company had inspected the premises though no surveyor report was produced.  In such circumstances when the fire accident was not disputed by both the parties and only the defence of the insurance company is that the change of address was not intimated to them, wherein we have held above that the change of address was made known to the 1st opposite party who acted as an agent for both the insurance company and the complainant we are of the view that complainant cannot made to suffer for the non intimation on the part of the bank.  In such facts and circumstances we held that both the opposite parties are liable for making the loss goods to the complainant.

Point No.5:-

The complainant had submitted a judgment rendered by NCDRC in State Bank of Bikaner & Jaipur and Ors Vs Jaishree Industries & Ors to contend that the bank was also responsible for repudiation of the claim as they failed to intimate the change of address to the Insurance Company.  In the said order it was discussed that the bank was deficient when they obtained the policy by filling the proposal form and also pay the premium debited from the account of the complainant but failed to intimate the change of address. Further the order passed by State Consumer Disputes Redressal Commission, Chandigarh in United India Insurance Company Vs Gurpreet Singh dated 31.01.2013 was relied upon by the complainant to state that it is only the goods that were insured and hence the change of address or location will not affect the Insurance claim.  In the said order it has been provided as follows “it is very much clear from this letter that the loan was sanctioned to the complainant who was resident of 213-C, Rattan Nagar, Patiala for mobile repair (shop at Hutch Teleshop –Shop No6), Green Complex, Bhadson Road, Patiala).  It becomes very much clear from that letter that these were the goods lying in the said shop which were got insured with OP No.1.  That position also becomes clear from the affidavit of the complainant which was submitted before the District Forum.  Therefore the contention of learned counsel for OP No.1 that the claim of the complainant was duly repudiated on the ground that “the loss effected premises” was not covered under the insurance policy cannot be sustained.

On the other hand the Insurance Company relied upon the order passed by NCDRC in Heinz India Private Limited Vs National Insurance Company Limited & Another dated 18.09.2020 to contend that the policy covers the place of business and submitted that when the change of address intimation was not given to them, they cannot be held liable for the fire accident that took place in a place which is not found in the insurance policy.  Further they also cited the decision rendered by NCDRC in Mohd. Parvez Alam Vs Branch Manager, National Insurance Company Limited & Ors wherein it has been stated that the State Commission should not have ignored the fact of the Bank having communicated to the Insurance Company both the addresses.  Omission of one of these two addresses in the policy itself constituted a deficiency in service, particularly when it had charged full premium payable for such policies.  For that reason the impugned order as against the Insurance Company cannot be sustained and is set aside to that extent.”

 It is submitted by the complainant which fact was also admitted by the 1st opposite party that soon after the fire accident intimation was given to the insurance company the surveyor of the insurance company visited the premises along with Bank staff and estimated the damages to the tune of Rs.9,80,000/-. However, the complainant and the 1st opposite party failed to produce any surveyor report and they submitted that the 2nd opposite party did not supply the surveyor report to them and hence the same could not be produced before this commission. It is the contention of the complainant that when the insurance company had sent its surveyor to the place of fire accident it is to be presumed that they were aware of the change of business place and now they cannot go back to contend that they were not aware of the change of address.  The order rendered by NCDRC in New India Assurance Company Limited & Anr.  Vs Mohd. Faiyaz Khan & Anr dated 27.11.2014 was relied upon by the complainant to state that the change of address when acted upon by the bank who was the agent of the insurance company has to take the responsibility of intimating the change of the address to the insurance company.  They relied upon Ex.A8 Stock Statement dated 01.05.2014 wherein the new address of the complainant has been endorsed by the Bank.  The Bank Statement was also produced by the complainant to show that the insurance premium has been deducted from the complainant’s account with the 1st opposite party for payment of premium to the insurance company.  In short the complainant’s argument was that the relationship of the complainant with respect to the insurance was only with the Bank and when the bank and insurance company had acted upon the change of address now they cannot reverse back to say that the claim could not be honoured for non intimation of change of address.  This submission seems to be convincing and acceptable by this commission. Till today the insurance company has not intimated the repudiation of insurance to the complainant but argued that they have intimated to the bank which should be considered as intimation to the complainant. The said argument should be taken for consideration to hold that it is the Bank which has acted as an agent between the complainant and the insurance company and it is the duty of the Bank to intimate the change of address to the insurance company.  Thus the opposite parties 1 & 2 cannot escape from their liability on the ground of change of address.  In such circumstances this commission is of the view that when the fire accident was not disputed by the parties but the only defence of the insurance company is that the change of address was not intimated to them and as we have held above that the change of address was made known to 2nd opposite party through the 1st opposite party Bank, the complainant’s claim cannot be repudiated by the 2nd opposite party on the ground of non intimation of change of address. Thus we hold both the opposite parties are liable for the loss sustained by the complainant. 

Point No.6:-

Though we have fixed the liability on the insurance company the actual damage to the stock was not proved by the complainant.  The complainant failed to submit proper evidence as to the loss that occurred due to the fire accident.  Therefore with respect to the relief to be granted, though complainant had sought for Rs.15,00,000/- compensation as no material was produced by the complainant in proof of the loss caused during the fire accident this commission is unable to award any amount towards the claim. Inspite of repeated requests by this commission to the complainant and also the 1st opposite party, no surveyor report was produced.  They also failed to take steps to summon the insurance company to produce the document.  However, we direct the 2nd opposite party to consider the claim of the complainant based on the surveyor’s Report available if any within six weeks from the date of receipt of copy of this order.  Thus the point is answered accordingly.

In the result the complaint is dismissed.  No order as to cost. 

Dictated by the President to the steno-typist, transcribed and computerized by him, corrected by the President and pronounced by us in the open Commission on this the 20th day of February 2023.

 

    Sd/-                                                                                                              Sd/-

MEMBER-II                                                                                                PRESIDENT

 

List of document filed by the complainant:-

 

Ex.A1 07.08.2014 FIR issued by Sub Inspector of Police, F2 SIPCOT Police Station, Gummudipoondi. Xerox

Ex.A2 01.09.2014 Claim petition by the complainant to the 2nd oppostie party. Xerox

Ex.A3 26.09.2015 Letter issued by complainant to 1st opposite party. Xerox

Ex.A4 01.12.2016 Legal notice issued by 1st oppostie party to complainant. Xerox

Ex.A5 22.12.2016 Reply notice issued by complainant to opposite party. Xerox

Ex.A6 ............. Shopkeepers Insurance Policy. Xerox

Ex.A7 ............... Bank Statement of Account of the complainant. Xerox

Ex.A8 ............ Stock statement of the complainant. Xerox

Ex.A9 27.08.2014 Letter issued by M/s.Jeeveitha Timber Traders and Saw Mill. Xerox

 

List of documents filed by the 2nd opposite party:-

 

Ex.B1 22.08.2014 Communication from 1st opposite party to 2nd opposite party. Xerox

Ex.B2 12.02.2015 Rejection of claim communicated by the 2nd oppostie party to 1st opposite party. Xerox

 

 

 

List of documents filed by the 1st opposite party:-

 

 

-Nil-

 

 

   Sd/-                                                                                                               Sd/-

MEMBER-II                                                                                                 PRESIDENT