Present (1) Nisha Nath Ojha,
District & Sessions Judge (Retd.) President
(2) Smt. Karishma Mandal,
Member
Date of Order : 30.05.2018
Smt. Karishma Mandal
- In the instant case the Complainant has sought for following reliefs against the Opposite party:-
- To direct opposite party no. 1 to pay Rs. 15,00,000/- as insurance claim, manufacturing Cost including labour charge, electricity bill, other infrastructure cost Rs. 2,50,000/- with 18% interest from the date of claim till the date of payment.
- To direct opposite party no. 1 to pay Rs. 50,000/- for mental anxiety, agony and harassment as well as litigation costs.
- The facts of this case lies in a narrow compass which is as follows:-
The complainant is a SSI manufacturing unit involved in business of manufacture of iron fabricated material of 11 Kv line and 33 Kv line power sub- station and distribution sub station. The steel fabrication job work inside the factory of the complainant was insured with opposite party no. 1 i.e. The New India Assurance company ltd. for the period 13.06.2017 to 12.06.2018 against theft and fire. The aforesaid insurance was done directly by opposite party no. 2 i.e. Union Bank of India. The complainant earlier use to get it insured by oriental insurance company as will appear from annexure – 1 series and annexure – 2.
It has been further asserted that there was a theft in the factory of several electrical items amounting to Rs. 15,00,000/- for which the proprietor of the company Dhiraj Kumar immediately lodged FIR in Patliputra P.S. giving rise to Patliputra P.S. case no. 244/07 as will appear from annexure – 3. The police investigated the case and submitted charge sheet no. 38/08 dated 29.02.2008 ( vide annexure – 4) stating therein that occurrence is true but clueless. From bare perusal of annexure – 4 it is crystal clear that factory was situated in Gosai Tola but the manufactured item were being sold from retail counter because due to labour problem and other reasons, the production of the factory was temporarily discontinued. It is important to say here that the aforesaid final form annexure – 4 was accepted by learned A.C.J.M., Patna on 17.05.2008.
It has been further asserted that the information about the aforesaid occurrence i.e. the theft, was given to the bank and a request was made to the bank to provide insurance policy paper which was provided by opposite party no. 2. After perusal of the insurance paper, the complainant came to know that address of the complainant was wrongly mentioned by opposite party no. 2 in insurance paper which was contrary to the policy paper of oriental insurance company. This fact is also clear if the address given in annexure 1 and 2 are perused. The complainant thereafter submitted his insurance claim of Rs. 50,00,000/- before opposite party no. 1 in prescribed form along with detail of material stolen from factory as will appear from annexure – 5. Thereafter surveyor of insurance company was appointed who inspected the factory premises at Gosai Tola, Patna and made physical verification of the premises including stock found in the factory. The complainant submitted all the relevant papers demanded by surveyor cum loss assessor as will appear from annexure – 6 and 7. Several reminders were sent to opposite party no. 1 for settling his claim and in the meantime the Union Bank of India has send a notice U/s 13(2) of SURFAESI ACTto the complainant and guarantor as will appear from annexure – 8, 9 and 10.
It is further asserted that despite best effort the opposite party no. 1 did not settle the claim by paying the insured amount and thereafter the complainant has been compelled to file this case.
On behalf of opposite party no. 1 a show cause cum written statement has been filed stating therein that no deficiency on the part of opposite party no. 1. The opposite party no. 1 has asserted that Union Bank of India took insurance policy covering the list of stock in trade but neither bank nor the complainant raised any objection “about the situation mentioned in the policy and hence as per exclusion clause VIII (a) the policy for the business premises the insurance company is not liable as will appear from annexure – A.
It has been further asserted that after getting information about the theft from the complainant, opposite party no. 1 issued claim form to the complainant and deputed Mr. Ajay Kumar surveyor for assessment of actual loss caused to the complainant and his report dated 27.11.2007 indicated three breaches of the warranties which are as follows, (i) Situation mentioned in policy is at Gokul Path, Patel Nagar, Patna 800023 whereas factory is situated at Gosaitola, Patliputra Patna. (ii) factory was closed since last one month and was uninhabited as per the FIR lodged by the insured himself. (iii) there are no jurisdiction for having two types of financial statements and also not matching with sales tax returns, sales tax returns not for the period from 01.04.2007 to 31.03.2008 as will appear from annexure – B. thereafter vide annexure – C the complainant was informed that as the factory was closed for one month to mean that no work was done at the said premises.
It is further stated that without information to opposite party no. 1 the factory premises was shifted from Gokul Path, Patel Nagar, Patna to Gosaitola, Patliputra which is nothing but violation of the terms and thereafter the complainant’s file was closed. Thereafter the complainant without satisfying the opposite party no. 1 has filed a writ petition CWJC no. 16870 of 2008 before Hon’ble High Court Patna in which the opposite party no. 1 is also party and the Hon’ble Court vide annexure – D has been pleased to advise the complainant to settle the matter with insurance company and reach an early decision and report of the outcome. The complainant thereafter informed the complainant who did not clarified the queries of the opposite party no. 1 as will appear from annexure – E.
The opposite party no. 1 has asserted in his show cause that complainant by changing the premises and leaving the insured property unattended has breached the policy condition due to which the policy seizes and no claim on this policy is maintainable.
On behalf of complainant a rejoinder has been filed stating the fact that the insurance was done directly by opposite party no. 2 i.e. bank and the premium of the policy was deducted from the account of complainant. It has been further asserted that surveyor visited the factory premises on 04.02.2017 for investigation purpose but the investigation was done behind the complainant, and the surveyor submitted report in a very arbitrary manner who from very beginning these adopted a biased view against the complainant which was filed to divisional manager, new india assurance company ltd. which is apparent from perusal of annexure – 8 of the complaint. In Para – 9 of rejoinder the complainant has made following assertion while replying the fact mentioned in Para – 7 and 8 of written statement, “ that with regard to the statements made in Para – 7 and 8 of the written statement, the deponent most humbly states and submits that it is wrong to say that no work was being done in the said premises for the last one month. The fact still remains that the situation of the factory was in Gosaitola. The surveyor also visited physical verification in Gosaitola, but due to some labour problem on account of various festival season, production in the factory was temporarily postponed but the manufactured items were being sold regularly from the counter.”
A supplementary affidavit has also been filed by the complainant asserting therein that he has purchased the raw material from the different shop prior to burglary in his shop as will appear from invoice cum challan annexed as annexure – 13. The complainant has also filed no due certificate granted by opposite party no. 2 as will appear from annexure – 13.
On behalf of opposite party no. 2 i.e. Union bank of India a show cause has been filed and in reply to fact mentioned in para – 2 of complaint petition that it is for complainant to prove it.
It has been further stated that even premium which was being paid by opposite party no. 2 was deducted from account of the complainant as per agreement between the bank and the complainant and was paid to the insurance company.
It has been further stated that after receiving the information of theft and on demand of policy the bank furnished all the papers required by insurance company and the bank has done everything which was required by insurance company.
It has been further asserted that in view of the hypothecation agreement the bank has no other remedy but to take step for realization of the dues.
It appears from the record that earlier this forum has allowed the claim vide order dated 09.02.2015 and made following direction, “ we direct the opposite party no. 1 to pay to the complainant the amount of Rs. 14,10,915/- being the amount claimed for stolen electrical items as per details available with supplementary affidavit dated 18.02.2014 with interest @ 6% per annum from the date of repudiation ( i.e. 04.02.2010 ) within the period of two months from the date of receipt of this order failing which opposite party will have to pay an interest thereafter @ 9% per annum on the aforesaid amount till it is finally paid.”
“we further direct the opposite party to pay a sum of Rs. 10,000/- as composite charge for compensation and litigation cost.”
“thus this complaint petition stands allowed to the extent referred above.”
It appears that from the aforesaid order of this forum the opposite party filed an appeal being appeal no. 68 of 2015 in Hon’ble Bihar State Consumer Dispute Redressal Commission and the Hon’ble Commission vide order dated 31.01.2017 has been pleased to remand this case with following direction, “having considered the submission of the parties and on perusal of the order passed by the District Forum as also the material available on record, it appears that the District Forum has not considered all points raised by the parties in correct perspective. Surveyor report is an important document for assessment of loss and it cannot be ignored without sufficient evidences as held by the Hon’ble Apex Court in several decisions but the District Forum has not considered the surveyor’s report. The insurance policy has been taken for Gokul Path, Patel nagar, Patna premises but the factory is situated in Gosaitola in patliputra, which is not insured, where theft was committed and claim was filed. Exclusion clause vii (a) and viii (a) of the policy has not been considered by the District Forum. The basis for awarding the amount of Rs. 14,10,915/- has not been justified. These points needs a fresh hearing. Hence, the District Forum order is set aside and the appeal is allowed and remanded to the District Forum for fresh hearing for adducing evidence U/s 13 of the Consumer protection Act 1986 and for passing a reasoned order within three months from the date of receipt of this order.
Against the aforesaid order of Hon’ble Bihar State Consumer Dispute Redressal Commission, the complainant filed a Revision application in the Hon’ble National Consumer Dispute Redressal Commission being Revision Petition No. 1039 of 2017 and the Hon’ble National Commission after hearing the parties vide order dated 26.07.2017 has been pleased to dismiss the aforesaid revision Petition and thereafter both the parties were heard and this order is being passed.
Heard the learned counsel for the parties.
It is the case of the complainant that insurance was obtained by the bank for the business premises from which the factory was being run on cash credit facility provided by the bank ( opposite party no. 2). The very fact that in the aforementioned circumstances the opposite party no. 2 took the insurance for the factory of the complainant has not been categorically denied by the opposite parties.
From bare perusal of letter dated 12.09.2008 and 10.10.2008 written by opposite party no. 2 to the Divisional Manager, New India Assurance Company Ltd. red cross building north, Gandhi Maidan (authority of opposite party no. 1). It is crystal clear that the change of the address in the policy i.e. annexure – 2 of opposite party no. 1 was due to oversight which was inspected by the bank and other officials these two documents have been filed by the complainant on 07.02.2018 by way of evidence which has not been controverted by the opposite parties.
The case of the complainant is that in annexure – 1 Patel Nagar, Gokul Path, Shashtri Nagar was mentioned with respect to the residential address of the complainant and while the factory address i.e. “Risk Discription” was given at Gosaitola near Anand Bread, Patliputra – 13 was mentioned which was correct. From bare perusal of annexure – 1 coupled with aforesaid letters of opposite party no. 2 to opposite party no. 1 it is crystal clear that due to invertance address of the Gosaitola where the factory exist could not be mentioned and in both address i.e. the address of residence and the business place Gokul Path, address of the complainant was mentioned as business place which is not correct. Bank has accepted that this is due to oversight and hence complainant cannot be punished for this trivial mistake which was not done by him rather opposite party no. 1 and 2 may be made responsible for that.
It appear from the survey report and other documents that on the basis of FIR it has been presumed that at the time of occurrence the business place was closed for a month and above and as such this is the violation of the ground of policy.
It goes without saying that complainant vide annexure – 8 has asserted that factory was never closed.
From careful perusal of FIR i.e. annexure – 3 it appears that the work of factory might have been suspended due to festivals such as Chhat and Dipawali and some labour problem and as such the word “Closed” in the FIR cannot be taken in strict sence of closer of the factory rather it was loose statement briefly written by the police. The complainant vide annexure – 8 has categorically denied it and such statement mentioned in the FIR has been miss - interpreted by authority of opposite party no. 1 for rejecting the claim of the complainant.
We have carefully perused the survey report which has been certified by the surveyor himself.
From careful perusal of survey report it appears that the surveyor has committed a grave error in assessing the total loss and without any cogent evidence has jumped to conclusion that 30% of the stolen goods would be admissible and will cover under the policy. It is surprising that the complainant had produced purchases receipt etc. of about Rs. 12,00,000/- but he has not carefully examined the genuiness of the aforesaid receipts in accordance with law and submitted his report on surmises and conjecture.
No purpose will be served in repeating the same fact again and again. However it is stated that vide annexure – 2 the sum assured is Rs. 20,00,000/-. The complainant has submitted receipt etc. of Rs. 12,00,000/- now the complainant has been put to loss and due to inflation the Rs. 12,00,000/- amount may have been approximately about more than Rs. 14,00,000/-.
In view of the facts and circumstances we direct the opposite party no. 1 to pay to the complainant the amount of Rs. 14,00,000/- ( Rs. Fourteen Lacs only ) being amount claimed for stolen, electrical items as per details available on the record with 6% per annum from the date of repudiation (i.e. 04.02.2010) within the period of three months from the date of receipt of this order or certified copy of this order failing which opposite party no. 1 will pay 9% on the above said amount of Rs. 14,00,000/- ( Rs. Fourteen Lacs only ) till its final payment.
Opposite party no. 1 is further directed to pay Rs. 15,000/- ( Rs. Fifteen Thousand only ) to the complainant by way of compensation and litigation costs within the period of three month.
Accordingly this complaint stands allowed to the extent referred above.
Member President
