IN THE CONSUMER DISPUTES REDRESSAL FORUM, PATHANAMTHITTA,
Dated this the 15th day of December, 2012.
Present : Sri. Jacob Stephen (President)
Sri. N. Premkumar (Member)
Smt. K.P. Padmasree (Member)
C.C. No. 02/2012 (Filed on 02.01.2012)
Between:
Sri. Abdul Razak,
Proprietor,
Akkanattil Agencies,
Nedumon, Adoor. … Complainant.
(By Adv. K. Sheeja)
And:
The Divisional Manager,
United India Insurance Company Ltd.,
Pathanamthitta
(By Adv. P.D. Varghese)
Addl.2. The Manager,
Federal Bank Ltd.,
Parakode. … Opposite parties.
ORDER
Sri. N. Premkumar (Member):
The complainant has filed this complaint against the opposite parties for getting a relief from the Forum.
2. Fact of the case in brief is as follows: Complainant is the proprietor of the hardware shop under the name and style M/s. Akkanattil Agencies, Plantation Junction, Nedumon, Adoor. The said business were carried on in 2 shop rooms. There were stocks of more than ` 18 lakhs in the shop. The SBT, Parakode branch had granted a loan of ` 6 lakhs for the shop on the basis of the stock in trade of sanitary goods and electrical goods and the same was insured with the first opposite party on 20.06.2009 vide policy No. 100782/48/09/34/00000148 for 10 lakhs as per the direction of the said bank. At the time of insuring the said shop No. VI/5 of Ezhamkulam Panchayat, the agent of the first opposite party had personally visited and inspected the shop and on satisfying the stock and furnishing in the shop and he insured the shop for ` 8 lakhs. Thereafter, the complainant used to give the fortnightly statements with respect to the stock in trade with the opposite parties.
3. Since the stock of the shop was of the tune of ` 18 lakhs, second opposite party had also granted a loan of ` 2 lakhs to the complainant for the same shop for the hardware good and sanitary goods and then it was further raised to ` 5 lakhs which was granted for the hardware shop containing hardware items, plumbing, sanitary items and cement. It was also insured with the first opposite party for an amount of ` 10 lakhs vide policy No. 100782/48/09/314/00000390 dated 31.12.2008 as per the direction of the bank. Both the bank managers had personally visited the bank and only after satisfying that the complainant’s shop has a stock of more than 18 lakhs they had granted these loans. But in the policy issued by the first opposite party for the loan granted by the SBT, Parakode Branch, it was wrongfully stated that it was insured for the stationery shop. The stock statement given to the bank is also regarding the hardware and sanitary items. Though it was brought to the notice of the agent of the first opposite party who had insured the shop he consoled that it would not affect the policy. The letter from the Manager of the SBT, Parakode branch is also to the effect that the loan was granted on the hypothecation of the stock of sanitary wares and electrical goods.
4. On 21.10.2009 at midnight, the shop was caught fire and the entire goods and the furnishings and the sales bill, cash book and the tax paid receipts were lost in fire and had caused a loss of more than ` 15 lakhs to the hardware shop itself. The table in which the cash was kept was also lost. There was ` 10,000 obtained on account of the sales. Though the fire and rescue department rushed to the spot and extinguished the fire most of the materials were damaged and had caused much loss. Some of the remnants are still left at the place.
5. The assessor of the first opposite party inspected the shop and asked to submit the documents and the complainant had submitted all the documents. But the first opposite party had denied the claim stating that the amount as per the fire report is only ` 30,000. The first opposite party had denied the actual loss by resorting to lame excuses. The police had also registered a crime as Crime No. 1115/2009 of Adoor Police Station and prepared a scene mahazar also.
6. The second opposite party had put high pressure on the complainant and forced to repay the balance loan amount due in the over draft account. The first opposite party had paid only an amount of ` 34,091 on 31.01.2011 and this was a shock to the complainant. The loss assessed by the fire and rescue department is not an authoritative one and hence denied the actual loss incurred to the complaint. Since the shop was validly insured, the first opposite party is bound to indemnify the loss caused to the complainant. Hence this complaint for getting ` 18 lakhs with compensation, interest and cost.
7. First opposite party entered appearance and filed version stating that the complaint is not maintainable either in law or on facts. They admit that they issued a shop keepers insurance policy in the joint names of the additional second opposite party and complainant for the period from 31.12.2009 to 30.12.2009, covering risks of wholesale of cement, hardware, plumbing, sanitary items etc. for a sum insured of ` 2 lakhs. The sum insured under this policy was enhanced from ` 2 lakhs to 10 lakhs on 28.05.2009 based on insured’s request dated 25.05.2009. This opposite party had also issued another shopkeepers’ insurance policy in the joint names of State Bank of Travancore, Parakode branch and the complainant for the period from 30.06.2009 to 29.06.2010 covering all kinds of stationery items for a sum insured of ` 8 lakhs. It is also revealed that another shopkeepers’ policy issued by the National Insurance Company Ltd., Pathanamthitta with insured’s name as Pathanamthitta District Co-operative Bank, Ezhamkulam, Abdul Razak, Akkanattil Agencies, Nedumon, Ezhamkulam for the period from 14.03.2009 to 13.03.2010 for ` 1 lakh covering hardware, electronics, plumbing etc. Therefore, National Insurance Company Ltd., Pathanamtitta is also a necessary party to this proceedings.
8. The statement that there were stocks of more than ` 18 lakhs in the shop is not correct. The statement that the complainant used to give the fortnightly statements punctually with respect to the stock in trade to the opposite party is false and hence denied. The additional second opposite party informed this opposite party that stocks of hardware, plumbing, electrical, sanitary items etc. stored in the shop building of the complainant caught fire and fully destroyed. Then the first opposite party arranged survey of the premises and the surveyor visited the spot and submitted survey report. The statement that there was cash kept in the table in the shop room has no basis. The surveyor found the table and chair in the room is in partly burnt condition. On opening the drawers of the table, no paper or paper like items were found in burnt and damaged condition. So also, the surveyor did not find sign of any records having been kept and in burnt and damaged condition. The complainant informed that all the records were burnt and lost. It is to be noted that the complainant has neither sales tax registration nor paying sales tax for the materials he was selling. The complainant is not an income tax assessee.
9. The Fire and Rescue Department in its report dated 21.10.2009 assessed the loss to the stocks in the shop as ` 25,000 and the damages to the shop building as ` 5,000. Thus the total loss assessed is ` 30,000.
10. The complainant had furnished only the computer print out, said to be the stock statement as on 05.10.2009. Since the stocks in trade as on 20.10.2009 is required for loss assessment, as the fire broke on 21.10.2009, the surveyor requested the complainant by letter dated 21.11.2009, by registered post, to furnish the authenticated registers to prove the stock in trade as on 20.10.2009. Since the documents required by the surveyor were not furnished by the complainant, the surveyor, send another letter dated 19.02.2010 to the complainant, by registered post to furnish the required documents. So also the surveyor issued letter dated 19.02.2010, by registered post to the chartered accountant, Shri. Cherian Thomas & Co., Pathanapuram for furnishing the details of stock in trade as on 20.10.2009. Neither the complainant nor the chartered accountant replied the said letters. Instead the complainant furnished photocopies of certain sale bills and statements. It can be seen that these documents are fabricated to suit the complainant’s claim. The complainant’s claim that the entire stocks available in the shop were burnt and lost. In spite of repeated requests the complainant did not made available any documents other than a certificate and unsigned stock statement issued by the chartered accountant. The printout of these documents submitted by the complainant has no authentication, hence cannot be relied upon.
11. According to the insured, he has effected sales as per 164 bills i.e. 27 sales per month average from April to October 2009. On perusal of the handwriting of the 164 bills, it could be noticed that all these bills were written by a single person that too at a stretch. No sales tax is seen collected nor any declaration stating that the sale has been affected without collecting sales tax. Also that no sale of cement purchase thereof could be noticed from the bills produced. At the time of survey there was stock of cement in the adjacent room, which was not affected by fire. The insured’s business was mainly of electrical, sanitary and hardware items. Considering the location of the insured’s shop, area of the fire as could be seen from the degree of damages noticed to the building and other structures, report of the fire force who has the opportunity to saw the material immediately after the out break of fire, the contention of the insured that he was holding stock worth ` 15 lakh is highly inflated and exaggerated to obtain unlawful gain from the insurance company by utilizing the insurance cover obtained by increasing the sum insured from ` 2 lakhs to ` 10 lakhs by the endorsement obtained all on a sudden during May 2009.
12. The insured at no time produced or adduced any documents or records having maintained by him in the normal course of business. The unsigned and uncertified copies of trading and profit and loss of account and cerox copies of alleged purchase bills and sales bills etc. cannot be considered as genuine and bonafide documents. So in the absence of these documents or assuming that the insured had not filed the so called documents and only based on the inspection of the place of occurrence immediately after fire, volume of burned and charred materials, magnitude of fire, as could be seen from the degree of damages noticed to the building, location of the insured place etc., the surveyor is of the opinion that the insured might have been holding a stock of worth ` 50,000 and these items were presumed to have burnt and destroyed.
13. For the policy No. 100782/48/09/34/00000148 for the period 30.06.2009 to 29.06.2010, the property insured is stationery items and the insured’s address shown at Akkanattil Agencies, Akkanattu Veedu, Nedumon. The fire has occurred at Plantation Junction where only electrical, hardware and sanitary items are stored. No stationery items were stored in the insured place. Also that the documents and the details furnished by the insured did not evidence any purchase and sale of any stationery items. Only a board of a cigarette company ‘Navy Cut’ with dealer’s name ‘Haneefa’ was seen fixed on the front of the second room. As per the Fire Force Report, 2 rooms are occupied by 2 different persons i.e. building No. 522 and 523 in Ward No.IV of Ezhamkulam Panchayat by Mohammed Haneefa and Abdul Razak. Akkanattil Agencies is a proprietary concern of Abdul Razak. Therefore, no loss/damage had occurred to the property on account of the fire occurred on 20.10.2009 at the stationery shop building. Therefore, there is no loss /or liability to insurer under the said policy.
14. The surveyor assessed loss of ` 50,000 after deducting ` 10,000 as policy excess and ` 2,500 on account of salvage value, the amount will comes to ` 37,500. It is also revealed that another shopkeepers’ policy issued by National Insurance Company Ltd., Pathanamthitta with insured’s name as Pathanamthitta District Co-operative Bank, Ezhamkulam, Abdul Razak, Akkanattil Agencies, Nedumon, Ezhamkulam for the period from 14.03.2009 to 13.03.2010 for ` 1,00,000 covering hardware, electronics, plumbing etc. and the complainant might have lodged claim with National Insurance Company Ltd. Hence after deducting the proportionate amount of ` 34,091 which is to be received from National Insurance Company Ltd., Pathanamthitta the net amount of ` 34,091 was paid in the account of the complainant with the Federal Bank Ltd., Parakode vide cheque No.10020771 dated 29.12.2010. Thus the opposite party had paid the amount due to the complainant as full and final discharge of the claim. No further claim can be lodged against the opposite party by the complainant. Hence first opposite party canvassed for the dismissal of the complaint with their cost.
15. 2nd opposite party neither appeared nor filed version. Hence they were declared as exparte.
16. From the above pleadings, the following points are raised for consideration:
(1) Whether the complaint is maintainable before the Forum?
(2) Whether the reliefs sought for in the complaint are allowable?
(3) Relief and Cost?
17. Evidence of the complaint consists of the oral deposition of PWs.1 and 2 and DWs.1 and 2 and Exts. A1 to A7 and B1 to B8 series. After closure of evidence, both parties were heard.
18. Points 1 to 3: In order to prove the complainant’s case, complainant filed proof affidavit along with certain documents. He was examined as PW1 and the documents produced were marked as Exts. A1 to A9. The Branch Manager, Federal Bank, Parakode Branch was examined as PW2 from complainant’s side. Ext. A1 is the copy of policy No. 100782/48/09/34/00000148 for the stock in trade in the shop for an amount of ` 8 lakhs issued by first opposite party. Ext. A2 is the copy of policy No. 100782/48/09/314/00000390 for the stock in trade in the shop for an amount of ` 10 lakhs. Ext. A3 is the copy of FIR in Crime No.1115/2009 of Adoor Police Station. Ext. A3(a) is the copy of scene mahazar prepared by Adoor Police in Crime No.1115/2009. Ext. A4 is the bill book. Ext. A5 is the copy of certificate and stock statement prepared by the Chartered Accountant. Ext. A6 is the copy of letter from second opposite party stating that they received ` 34,091 from first opposite party as claim on account of the damages due to fire break out in complainant’s shop. Ext. A7 is the copy of cash credit account of the complainant issued by second opposite party.
19. In order to prove the opposite parties’ contention, Asst. Manager of first opposite party filed proof affidavit along with certain documents. He was examined as DW1 and the documents produced were marked as Exts. B1 to B8. On opposite parties’ side, insurance surveyor was examined as DW2. Ext. B1 is the policy certificate with terms and conditions and its coverage is ` 10 lakhs. Ext. B2 is the policy for stationery items and its terms and condition and coverage is ` 8 lakhs. Ext. B3 is the Fire and Rescue Report. Ext. B4 is the Survey Report. Ext. B5 is the photos of the damaged shop. Ext. B5(a) is another photo of damaged shop. Ext. B6 is the copy of notice issued by the surveyor to complainant. Ext. A6(a) is the postal receipt of Ext. B6. Ext. B6(b) is the postal acknowledgment card of Ext. B6. Ext. B7 is the copy of letter issued to Chartered Accountant by the opposite party. Ext. B7(a) is the postal receipt of Ext. B7. Ext. B7(b) is the postal acknowledgment card of Ext. B7. Ext. B8 is the letter issued to the complainant dated 19.02.2010. Ext. B8(a) is the postal receipt of Ext. B8. Ext. B8(b) is the postal acknowledgment card of Ext. B8.
20. On the basis of the contentions and arguments of the parties, we have perused the entire materials on record. Complainant’s case is that he is the proprietor of a hardware shop at Nedumon, Adoor. There were stocks of more than ` 18 lakhs in the shop. The State Bank of Travancore, Parakode Branch had granted a loan of ` 6 lakhs for the shop and the same was insured with the first opposite party on 20.06.2009 vide policy No. 100782/48/09/34/00000148. The second opposite party had also granted a loan of ` 7 lakhs to complainant. The complainant had also taken another policy from the first opposite party for an amount of ` 10 lakhs as per policy No. 100782/48/09/314/00000390 dated 31.12.2008. In the midnight of 29.10.2009, the shop was gutted in fire and the entire goods, furniture’s sales bill and cash book were lost in fire and thereby complainant sustained a loss of ` 15 lakhs. The Fire and Rescue Department extinguished the fire. Though complainant submitted the claim, first opposite party had sanctioned only ` 34,091. Hence this complaint for getting ` 18 lakhs with interest, compensation and cost.
21. Opposite parties’ contention is that they issued a shopkeepers’ insurance policy No. 100782/48/09/314/00000390 in the joint names of complainant and second opposite party covering risks of wholesale of cement, hardware, plumbing, sanitary items etc. for ` 10 lakhs. They also issued another shopkeepers’ insurance policy No. 100782/48/09/34/8300000148 in the joint names of State Bank of Travancore, Parakode Branch and the complainant covering all kinds of stationary items for a sum insured of ` 8 lakhs. Complainant had another shopkeepers’ policy No. 571402/48/08/9800001546 issued by National Insurance Company Ltd., Pathanamthitta with insured’s name as Pathanamthitta District Co-operative Bank, Ezhamkulam, Abdul Razak, Akkanattil Agencies, Nedumon, Ezhamkulam covering hardware, electronics, plumbing etc. for a sum of ` 1 lakh. Complainant’s statement regarding the stock of more than ` 18 lakhs in the shop and given stock in trade statements, cash kept in the shops were denied by first opposite party.
22. According to them, as per Fire and Rescue Department’s Report, the loss to the stock in the shop is ` 25,000 and the damages to the shop building is ` 5,000 i.e. the total of ` 30,000. Complainant has not produced the details of authenticated registers to prove the stock in trade, though the surveyor informed the production of the same. The print out of the said documents produced by the complainant has no authentication and cannot be relied upon. Surveyor assessed the loss as ` 50,000. After deducting ` 10,000 as policy excess and ` 2,500 on account of salvage value, the amount would comes to ` 37,500. Another shopkeepers’ policy issued by National Insurance Company Ltd., Pathanamthitta with insured’s name as Pathanamthitta District Co-operative Bank, Ezhamkulam, Abdul Razak, Akkanattil Agencies, Nedumon, Ezhamkulam for ` 1 lakh covering hardware, electronics, plumbing etc. Hence after deducting the proportionate amount of ` 3,409 which is to be received from National Insurance Company Ltd., Pathanamthitta, the net amount of ` 34,091 was paid in the account of the complainant with second opposite party. Thus first opposite party had paid the said amount due to the complainant as full and final discharge. Hence there is no deficiency in service on the part of the complainant.
23. Exts. A1 and A2 reveals that the complainant’s shop was insured with opposite party. Exts. A4 and A5 shows that the complainant’s trade in stock is ` 15,98,124. Ext. A6 reveals that second opposite party received ` 34,091 as claim amount from first opposite party. In Ext. B1, the nature of business is recorded as wholesale of cement, hardware, plumbing, sanitary items etc. In Ext. B2, the nature of business is recorded as stationery shop. As per Ext. B3, the total loss is recorded as ` 25,000. As per Ext. B4, the loss is assessed as ` 50,000.
24. It is seen that as per Exts. B1 and B2, complainant has 2 policies in stock in trade. The sum insured in Ext. B1 policy is ` 10,00,000 for whole sale cement, hardware, plumbing and sanitary items. Ext. B2 is for stationery items and the sum insured is ` 8,00,000. Ext. B4 shows that there are two shop rooms – one for hardware items and another for stationery items. As a result of fire loss occurred in the shop that kept hardware items and no loss occurred in stationery shop.
25. The complainant’s contention is that at the time of fire, the value of stock in trade was ` 18 lakhs which was damaged and lost. Therefore, he claims the insured amount of ` 18 lakhs. But complainant failed to adduce any cogent evidence to prove the same. It is evident in PW1’s deposition which is as follows:- “Sales Tax Registration Dv. Income Tax assessee AÃ. Ext.A4 Bill Bookþ tax kw_-Ôamb registration details sImSp-¯n-«n-Ã. knanâv I¨-h-S-¯ns\ registration DÅq. Xo]n-Sp-¯-¯n knaâv \jvS-s¸-«n-«n-Ã. Claim \ÂIn-bn«pÅ items-þsâ I¨-h-S-¯n\v sales tax registration CÃm-¯-Xn-\m Ah-bpsS IW-¡p-IÄ kÀ¡m-cn\v \ÂtI--Xn-Ã. \jvS-s¸« km[-\-§sf kw_-Ôn¨v Bbh \jvS-s¸-«-Xn\v ap¼v chartered account-s\ sImv IW-¡p-IÄ audit sNbvXn-«nÔ.
26. Ext. A5 shows that stock value at the time of fire accident is ` 15,98,124. Exts. A3 and A4 also supports Ext. A5. But according to first opposite party, the unsigned stock statement issued by the Chartered Accountant has no authentication and it cannot be relied upon. Exts. B7 and B8 show that the surveyor sent letters to the complainant and Chartered Accountant to furnish the authenticated registers to prove the stock in trade. But neither the complainant nor the Chartered Accountant replied so far what prevented them to respond Exts. B7 and B8?
27. According to the complainant, bank managers visited the shop and after satisfying that the shop has a stock of more than 18 lakhs and they had granted loans. As per evidence, it is revealed that the bank manager never physically verified the stock of complainant’s shop. It is evident in PW2’s deposition which is as follows:- “Stockþsâ physical verification \S¯n t_m²y-s¸-«-Xn\p tij-atà stock statement kzoI-cn-¡p-I-bpÅq? icn-bà (A). Customer Xcp¶ statement kzoI-cn-¡p-I-bmWv ]Xnhv”.
28. It is pertinent to note that as per Ext. B3, the Fire Rescue Department assessed the loss as ` 30,000 and as per Ext. B4, the surveyor assessed the loss as ` 50,000. The complainant neither challenged Exts. B3 and B4 nor took any steps to conduct forensic audit to unearth the facts, if any. On a perusal of Ext. B4, we cannot find any illegality or irregularity. Complainant has neither produced the account book, purchase bills, sales bills, and stock register to authenticate the existence of the stock nor sighted the Chartered Accountant Cherian Thomas as a witness to prove the authenticity of the said documents. Therefore, we are not inclined to rely on Ext. A5.
29. From the overall facts and circumstances and the available evidence on record, we cannot find any reason to interfere the Ext. B5 report. Therefore, there is no deficiency of service and the complaint is not allowable and is liable to be dismissed.
30. In the result, this complaint is dismissed. No cost.
Declared in the Open Forum on this the 15th day of December, 2012.
(Sd/-)
N. Premkumar,
(Member)
Sri. Jacob Stephen (President) : (Sd/-)
Smt. K.P. Padmasree (Member) : (Sd/-)
Appendix:
Witness examined on the side of the complainant:
PW1 : Abdul Razak.
PW2 : Jithesh. P.V.
Exhibits marked on the side of the complainant:
A1 : Photocopy of the policy No. 100782/48/09/34/00000148
dated 20.06,2009 issued by first opposite party.
A2 : Photocopy of the policy No. 100782/48/09/314/00000390
dated 31.12.2008 issued by the first opposite party.
A3 : Photocopy of FIR in Crime No.1115/2009 of Adoor Police
Station.
A3(a): Photocopy of scene mahazar prepared by Adoor Police in
Crime No.1115/2009.
A4 : Bill book.
A5 : Photocopy of certificate issued by Cherian Thomas &
Company, Chartered Accountants.
A6 : Photocopy of letter dated 04.08.2011 from second
opposite party.
A7 : Photocopy of cash credit account of the complainant
issued by second opposite party.
Witness examined on the side of the opposite parties:
DW1 : Joy Varghese.
DW2 : P.T.R. Babu.
Exhibits marked on the side of the opposite parties:
B1 : Policy certificate with terms and conditions.
B2 : Policy for stationery items and its terms and condition.
B3 : Copy of Fire Brigade Report.
B4 : Survey Report dated 23.07.2010.
B5&B5(a) :Photos of the damaged shop.
B6 : Copy of letter dated 20.11.2009 issued by the
surveyor to complainant.
A6(a): Postal receipt of Ext. B6.
A6(b): Postal acknowledgment card of Ext. B6.
B7 : Copy of letter dated 20.11.2009 issued by the surveyor to
Chartered Accountant.
B7(a): Postal receipt of Ext. B7.
B7(b): Postal acknowledgment card of Ext. B7.
B8 : Copy of letter dated 19.02.2010 issued to the
complainant by the surveyor.
B8(a): Postal receipt of Ext. B8.
B8(b): Acknowledgment card of Ext. B8.
(By Order)
(Sd/-)
Senior Superintendent
Copy to:- (1) Sri. Abdul Razak, Proprietor, Akkanattil Agencies,
Nedumon, Adoor.
(2) The Divisional Manager, United India Insurance
Company Ltd., Pathanamthitta
(3)The Manager, Federal Bank Ltd., Parakode.
(4) The Stock File.
