IN THE CONSUMER DISPUTES REDRESSAL FORUM, PATHANAMTHITTA,
Dated this the 19th day of October, 2012.
Present : Sri. Jacob Stephen (President)
Sri. N. Premkumar (Member)
Smt. K.P. Padmasree (Member)
C.C.No.155/06 (Remanded)
Between:
Thomas Mathew,
M/s. JNJ Industries,
Sy.No.611/1E-9 Business Shop,
Uthimoodu,
Pathanamthitta District.
(By Adv. Leena. K. Subhash) ..... Complainant.
And:
1. The Manager,
New India Assurance Co. Ltd.,
Changayil Buildings,
College Road, Pathanamthitta.
2. The Manager,
State Bank of India,
Pathanamthitta.
(By Adv. D. Radhakrishnan Nair)
Addl. 3. The Divisional Manager,
New India Assurance Co. Ltd.,
New India Assurance Building,
87, M.G. Road, Bombay.
(By Adv. Sam Koshy counsels for 1 & 3) ..... Opposite parties.
O R D E R
Sri. Jacob Stephen (President):
The complainant has filed this complaint against the opposite parties for getting a relief from the Forum.
2. The facts of the complaint is as follows:- The complainant is the Proprietor of JNJ Industries in Ranni village. The complainant is running his industry in an extent of 25 cents of land comprised in Sy.No.611/1E-9 of Ranni village. The complainant has taken a loan from the 2nd opposite party for an amount of ` 37 lakhs for running the business. Under the pressure of 2nd opposite party, the complainant took a shopkeepers insurance policy from the 1st opposite party for an amount of ` 37,18,000. The policy is valid from 22.10.05 to 21.10.06. The 1st and 2nd opposite party jointly told the complainant at the time of issuing the policy that the said policy covers all the perils and damages due to fire to the buildings, articles, rubber sheets and everything in the premises of the industry. Also the 1st opposite party made to believe the complainant that the building includes their dwelling house, smoke rooms and shop rooms and everything therein. As such the complainant had taken the policy from the 1st opposite party.
3. On 18.11.05 at night the smoke house adjacent to the shop room wherein the rubber sheets stocked caught fire and lost 200 Kg. of rubber sheets worth ` 1,62,500. The adjacent shop room and articles such as electronic balances, registers and furnitures were damaged and caused a loss of ` 13,000. The complainant informed the matter to the opposite parties. On 19.11.05, the 2nd opposite party’s field officer inspected the site and reported the same to the 1st opposite party. Thereafter the complainant submitted his claim on 23.11.2005. But on 14.2.06 the 1st opposite party issued a letter to the complainant stating that the smoke house is not covered under the policy, moreover “the smoke house is meant for carrying some process and does not come under the purview of the definition of the shop” and the claim is not payable. The complainant uses the smoke house as a stock room for storing the rubber sheet for avoiding natural damages. Due to the non-payment of insurance benefits in time the complainant couldn’t continue the business or to pay the loan. Now the 2nd opposite party expelled the complainant from his residence vide Crl.MP.1615/08 of the Chief Judl. Magistrate Court, Pathanamthitta and they have seized the entire assets of the complainant. The loss of business, the loss of the residential buildings and entire assets caused much mental agony and affected his health. The opposite parties are liable to compensate the loss sustained to the complainant jointly and severally. The 1st opposite party as the insurer and 2nd opposite party as the advisor and guide for taking the policy is vicariously liable to compensate the loss occurred to the complainant. Therefore the complainant filed this complaint against the opposite parties for getting an order for directing the opposite parties to pay an amount of ` 18,92,000 the loss sustained to the complainant along with interest and allow the cost to the complainant and such other reliefs. The complainant prays for granting the relief.
4. Later the Divisional Manager of the first opposite party was impleaded as additional third opposite party.
5. The 1st and 3rd opposite party had filed a version stating the following contentions:- This opposite parties have admitted the policy issued by them to the complainant covering his shop in the name and style JNJ Industries. The complainant has lodged a claim stating that his smoke room was gutted in fire on 18.11.2005. A surveyor was appointed by this opposite parties and he filed a report stating that it is not the shop that was insured under the policy which was gutted in fire, but another room which was used as a smoke house for keeping dry rubber sheets, was gutted in fire. The insured shop and the smoke house were different and smoke house was not insured under the policy. The smoke house is meant for carrying some process and does not come under the purview of the definitions of shop. Hence the claim is not payable and it was repudiated and communicated to the complainant. The claim was repudiated for cogent and sound reasons with due application of mind. There is no deficiency in service from the part of this opposite parties. Hence this opposite parties prayed for the dismissal of the complaint.
6. The 2nd opposite party also filed a version raising the following contentions: This opposite party sanctioned a loan to the complainant Mr. Thomas Mathew, JNJ Industries, Uthimood, Pathanamthitta for rubber trading in the area covering 25 cents of land in Sy.No.611/1E-9 of Ranni Village. The loan was sanctioned for ` 20,00,000 for rubber trading. As per the terms and conditions of the loan, the borrower/complainant had agreed to insure all the stocks charged to the bank against fire in the joint name of the borrower and the bank. Likewise the bank sanctioned loan since the party was willing to insure his business by paying the premium. Accordingly, the stock in trade of the complainant located in Sy.No.611/1E9 was insured with New India Assurance Company by paying the premium commencing from 22.10.2005 to 21.10.2006, the sum insured is `18,50,000. The 2nd opposite party is a co-insurer in the said policy and in the event of any damage caused to the insured premises the 2nd opposite party having the full right to realize its loan amount with interest as per the loan agreement from the insured and the company is liable to indemnify the loss to the 2nd opposite party bank. As a co-insurer, 1st and 3rd opposite parties are liable to indemnify the 2nd opposite party for the loss caused to the 2nd opposite party and the complainant. The 1st opposite party given the policy to the complainant covering all the building and all stocks especially rubber sheets. As per the policy certificate all contents in the shop premises “stated in the address which includes the smoke house are insured”. The 1st opposite party is liable to the complainant for the loss sustained to the complainant. The items insured were the rubber sheets, the stock in trade, which was hypothecated to the 2nd opposite party. There is no vicarious liability to the complainant on account of the loss suffered by him. The complainant is not entitled to get any reliefs from the 2nd opposite party as prayed for in the complaint. Hence this opposite party prayed for the dismissal of the complaint against them with their cost.
7. On the basis of the pleadings of the parties, both sides adduced evidence which consists of the oral deposition of PWs.1 to 3, DWs. 1 and 2 and Exts. A1 to A7 and Exts. B1 to B3 series.
8. After hearing the parties, this Forum allowed this complaint directing the opposite parties 1 and 3 to pay a sum of ` 1,50,000 with 9% interest per annum along with cost of ` 5,000.
9. Being aggrieved by the order of this Forum, opposite parties 1 and 3 preferred an Appeal before the Hon’ble Consumer Disputes Redressal Commission, Thiruvananthapuram as Appeal No. 364/2011. In the Appeal, the appellants raised a contention that the stock room where the fire occurred is away from the insured premises and the said room is not covered under the policy and it is not considered by the lower Forum. The above said contention was accepted by the Hon’ble CDRC and observed as follows:- “The dispute raised by the insurance company cannot be said to be without merits. In the circumstances, we find that more details are required to resolve the issue. Hence the matter requires reconsideration by the Forum”.
10. On the basis of the said observation, the Hon’ble CDRC allowed the Appeal and set aside the order of this Forum and remanded the matter to this Forum with a direction to dispose the matter afresh after giving opportunity for adducing further evidence by the parties.
11. Accordingly, this Forum took the matter as directed by the Hon’ble CDRC. During the course of the proceedings, a Commission was appointed by this Forum for ascertaining certain matters as per the application of the complainant and the Commissioner appointed by this Forum executed the Commission Order and filed his report. No other evidence other than the Commission Report was not adduced by any of the parties other than the complainant. Thereafter, the case was posted for taking the evidence of both parties. In the evidence stage, this complaint was dismissed for default for the non-appearance of the complainant.
12. Being aggrieved by the order of dismissal of this Forum, the complainant preferred an Appeal before the Hon’ble CDRC as Appeal No. 623/2012 which was allowed by the Hon’ble State Commission and the matter was remanded again for fresh disposal.
13. Accordingly, both sides appeared before this Forum and adduced further evidence. The further evidence consists of Exts.C1 series and the oral deposition of DW3 and Exts. B4 and B5. Ext. C1 is the mahazar prepared by the Commissioner and Exts. C1(a) is the report of the Commissioner. DW3 is the second opposite party in this complaint and Ext. B4 is the certified copy of the loan sanction letter of the second opposite party and Ext. B5 is the location sketch prepared by the Village Officer, Ranni showing the location and other details in respect of the hypothecated property of the complainant. After closure of evidence, both sides were heard.
14. On the basis of the additional evidence adduced by the parties at this stage, the only point to be considered is whether the fire affected building covered under the policy in question?
15. In view of the contentions and available materials on record after the remand, we have perused the additional evidence. On a perusal of Exts.C1, B4 and B5 and deposition of DW3, it is found that the second opposite party had sanctioned loan to the complainant for conducting rubber business in the building situated in the landed properties of the complainant having an extent of 10.12 Ares of land in Survey No. 611/1E/9 of Ranni Village and the policy in question was taken for the business of the complainant by using the loan amount given by the second opposite party. It is further found that the fire affected building is situated within the 4 boundaries of 10.12 Ares of land in Survey No. 611/1E/9 of Ranni Village and Ext. A1 policy is issued in the name of the complainant for his business under the name and style M/s. JNJ Industries lying in Survey No. 611/1E/9 of Ranni Village. Therefore, we find that the fire affected building of the complainant is part and parcel of his business and is covered under Ext. A1 policy and loss and damages sustained to the complainant during the validity of the policy is covered under Ext. A1 policy and hence the insurance company is liable to the complainant for the said loss occurred in the fire incident. So the repudiation of the complainant’s claim by the insurance company cannot be justified and the said action of opposite parties 1 and additional 3rd opposite parties is a clear deficiency in service and they are liable to the complainant and hence this complaint is allowable.
16. However, in the absence of cogent evidence supporting the exorbitant amount claimed by the complainant, we are not inclined to allow this complaint as prayed for in the complaint. So we are constrained to accept Ext. A2 fire occurrence report for assessing the loss of the complainant in the absence of any other cogent evidence supporting the complainant’s claim. As per Ext. A2 fire occurrence report, the approximate loss is ` 1,50,000 and hence the complainant is entitled to get the same.
17. In the result, this complaint is allowed partly, thereby the first and additional 3rd opposite parties are directed to pay an amount of ` 1,50,000 (Rupees One lakh fifty thousand only) with 9% interest per annum from the date of filing of this complaint till this date along with cost of ` 10,000 (Rupees Ten thousand only) to the complainant within 30 days from the date of receipt of this order, failing which the complainant is allowed to realize the whole amount with 12% interest per annum from today till the realization of the whole amount.
Dictated to the Confidential Assistant, transcribed and typed by him, corrected by me and pronounced in the Open Forum on this the 19th day of October, 2012.
(Sd/-)
Jacob Stephen,
(President)
Sri. N. Premkumar (Member) : (Sd/-)
Smt. K.P. Padmasree (Member) : (Sd/-)
Appendix:
Witness examined on the side of the complainant:
PW1 : Thomas Mathew
PW2 : George Philip
PW3 : M.S. Vinod
Exhibits marked on the side of the complainant:
A1 : Policy certificate issued by the 1st opposite party to the
complainant.
A2 : Copy of the fire report dated 19.11.2005 prepared by the
Southern Region Fire & Rescue Station, Ranni.
A3 : Copy of Fire Insurance Claim Form filed by the
complainant before the 1st opposite party.
A4 : Letter dated 21.3.06 issued by the 2nd opposite party to
the complainant.
A5 : Repudiation letter dated 14.2.06 issued by the 1st opposite
party.
A6 : Order dated 28.7.08 from Debts Recovery Tribunal,
Ernakulam in Original Application No.232 of 2007.
A7 : Commissioners notice as per the order in Crl.MP.No.1615/08
dated 11.4.08 from the Chief Judicial Magistrate Court,
Pathanamthitta issued to the complainant.
Witness examined on the side of the opposite parties:
DW1 : M.S. Thomas
DW2 : R. Surendranatha Kurup.
DW3 : B. Venugopalan (after remand)
Exhibits marked on the side of the opposite parties:
B1 : Statement dated 4.1.10 issued by 2nd opposite party.
B2 : Statement dated 22.3.10 issued by 2nd opposite party.
B3 : Preliminary Report dated 9.11.05
B3(a): Terms and Conditions of the policy.
B4 : Copy of the loan sanction letter of the second opposite
Party (after remand).
B5 : Location sketch prepared by Village Officer, Ranni (after
remand)
Court Exhibits:
C1 : Mahazar prepared by the Commissioner (after remand)
C1(a): Report of the Commissioner (after remand)
(By Order)
(Sd/-)
Senior Superintendent.
Copy to:- (1) Thomas Mathew, M/s. JNJ Industries, Sy.No.611/1E-9
Business Shop, Uthimoodu, Pathanamthitta District.
(2) The Manager, New India Assurance Co. Ltd.,
Changayil Buildings, College Road, Pathanamthitta.
(3) The Manager, State Bank of India, Pathanamthitta.
(4) The Divisional Manager, New India Assurance Co. Ltd.,
New India Assurance Building, 87, M.G. Road, Bombay.
(5) The Stock File.
