BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM, JALANDHAR.

Complaint No.413 of 2015

Date of Instt. 21.09.2015

Date of Decision: 09.05.2017

Satnam Exclusive, 186, Model Town, Opposite Nikku Park, Jalandhar, through its proprietor Inder Sanjit Thind.

..........Complainant

Versus

1. The Oriental Insurance Company Ltd, Jalandhar Road, Kapurthala of through its Manager.

2. The Oriental Insurance Company Ltd, HO: A-25/27, Asif Ali Road, New Delhi through its Manager/Authorized Representative.

3. The Oriental Insurance Company Ltd, Quiet Office No.32, Opp. Narinder Cinema, GT Road, Jalandhar.

.........Opposite parties

Complaint Under the Consumer Protection Act.

Before: Sh. Karnail Singh, (President),

Sh. Parminder Sharma (Member)

Present: Sh. Ramit Arora, Adv Counsel for complainant.

Sh. Brijesh Bakshi, Adv Counsel for OP No.1 to 3.

Order

Karnail Singh (President)

1. The instant complaint filed by the complainant wherein alleged that the complainant is the proprietor of Satnaam Exclusive, which is retail shop of Reebok Company and goods related to Reebok company are sold on proper receipt and after applying proper taxation. Earlier the shop of the complainant was situated at Shop No.11, GF, Viva College Mall, GT Road, Jalandhar and a policy No.233106/11/2013/176 was drawn by the complainant from the OP and had insured the goods to an amount of Rs.40 lakhs. The policy itself was undertaken by the complainant by covering note No.371747 dated 20.08.2012. The proper insurance policy was issued subsequently. That it is pertinent to mention here that as per the insurance policy, any damage in relation to any of the mis-happenings, including fire, was covered and in case of any loss faced by the complainant, the insurance company, opposite party, was required to fulfill the said loss and to fully compensate the insured to the tune of the insurance so undertaken. The insurance policy was for one year and started from 28.08.2012 to 27.08.2013.

2. The complainant in November 2012 had to vacate this premises at shop No.11, Viva College Mall, GT Road, Jalandhar as the owner of the shop wanted the possession of the said shop delivered to him. As the complainant wanted to do business and did not wanted any interruptions, therefore, agreed to vacate the said shop and started to search for a new premises. In January, 2013 the complainant was able to finalise a place and started to renovate the same at Model Town. The complainant was able to get the shop No.186, Model Town, Jalandhar, on rent and was able to renovate the said place in the Ist Week of March, 2013. The complainant was able to move his goods on 10.03.2013 and finished shifting on 11.03.2013. On 11.03.2013 itself, the complainant moved by letter to the OP for informing the OP with regard to the change of business and the change of place of the insured goods and to make the appropriate changes in the insurance policy. It is pertinent to mention here that in this letter, the complainant had clearly mentioned that the goods against the cover note which was subsequently converted into the insurance policy, were lying at the new place of business as 186, Model Town, Jalandhar and it was further prayed by this letter that the appropriate changes in the policy may kindly be made at the end of the opposite party.

3. In the morning of 25.06.2013 at about 6:00/6:30 AM a fire broke out in the above stated place of business and by the time the complainant would reach the said shop from his house in the early morning hours, a substantial part of the good lying at the place were gutted. However, still the complainant with the help of his employees was able to salvage quite an amount of goods lying over there. It is pertinent to mention here that goods to the tune of Rs.17.50 lakh were lying at the said shop on the said date. The complainant has immediately reported the matter to the Fire Brigade and the Fire Brigade had reached the place at about 7:50 AM. The copy of the said letter issued with regard to the incident by the Municipal Corporation, Fire Service, Jalandhar is dated 01.07.2013. After the fire was brought under control and the goods were able to be salvaged to the extent that was still not caught up by the fire, had been safely removed from the place where the fire had started, the complainant went to the police and reported the said incident which was recorded as DDR No.46 dated 25.06.2013 registered at Police Station: Division No.6, Jalandhar. The complainant thereafter immediately on 25.06.2013 informed the OP with regard to the said incident and further prayed that a Surveyor may kindly be appointed so as to assess the loss of damage that had occurred at the insured place to the insured goods and that the complainant may kindly be adequately compensated. It is pertinent to mention here that in this letter itself the complainant had mentioned and referred to the letter dated 11.03.2013, so, that the Surveyor is appointed at the right place and not at the place where actually the cover note was issued as the change of address had been duly informed to the OP by way of this registered letter. The OP appointed the Surveyor who reached the place of fire incident, 186- Model Town, so as to assess the loss of damage having been done to the insured goods. The surveyor started to survey and assessed the loss at the above mentioned shop No.186, Model Town, Jalandhar on 26.06.2013. The surveyor was able to complete his assessment and sent it to the OP directly. However, it is pertinent to mention here that the surveyor Rajesh Gupta had by way of letter dated 16.07.2013 demanded amount of papers and documents. The copy of the said letter dated 16.07.2013 is available on the file. The complainant was able to successfully provide all the documents so demanded by the surveyor.

4. That the above mentioned surveyor issued a letter dated 08.10.2013 whereby it was mentioned in this letter that the endorsement with regard to the change of address should be supplied. The complainant had earlier also supplied all the documents and therefore, by letter dated 10.10.2013 replied to this letter and stated that all the documents with regard to the change of address and so as to bring about the appropriate changes and endorsements in the policy are lying with the OP. It is further pertinent to mention here that in this letter issued by the surveyor, it has been mentioned that they had earlier demanded the documents with regard to the change of address was completely incorrect and wrong statement of fact. Not even once the OP had demanded the documents related to the change of address as the complainant himself had at the threshold and on the first instance mentioned all the documents which were sent to the OP by way of registered mail. The complainant in his letter dated 10.10.2013, had clearly mentioned these facts and had stated that the change of address and the endorsement was to be done by the OP and it was not the duty of the complainant to do the same as the OP is the custodian of the records and it was only up to the OP to do the said endorsements. The complainant thereafter pursuing the matter with the OP and the complainant received a letter dated 20.03.2014 from the OP whereby for the Ist time an objection was raised by the OP with regard to the fact that they had now observed that the fire loss to the stock was lying at Model Town shop and the said address was not endorsed on the policy and due to that reason the claim of the complainant was repudiated illegally and as such necessity arose to file the present complaint with the prayer that the complainant may kindly be adequately compensated to the tune of Rs.8.18 lakhs as the damage to the insured goods against the insurance policy and further complainant be compensated by way of 18% interest from the date of damage to the goods i.e. 25.06.2013 till the amount is realized and further complainant may kindly be adequately compensated for having faced mental agony and harassment to the tune of Rs.1 lakh and complainant be also adequately compensated by paying litigation expenses to the tune of Rs.1 lakh.

5. Notice of the complaint was given to the opposite parties and accordingly all the OPs appeared through their counsel and filed their joint written reply and contested the complaint by taking preliminary objections that the above noted complaint is not maintainable under the law against the OPs in the present form and further averred that the present complaint is time barred. The claim was repudiated vide letter dated 19.05.2014 and subsequently the same has not been challenged within one year thus as per policy conditions the present claim and complaint is time barred and further alleged that the complainant has made material breach of the policy conditions the claim is not maintainable and the present complaint deserves to be dismissed on this score alone and further stated that the complainant has got no cause of action to file the present complaint against the OP. There has been no default or undue delay on the part of the answering respondent in processing the claim of the complainant. The claim has been repudiated on sound reason and legal basis after due deliberation and application of mind and further submitted that the complainant is barred by his own act and conduct and negligence from filing the present complaint and claiming the relief as prayed in the present complaint. The complainant failed to intimate the alleged change of address promptly to the OP. It was incumbent upon the insured to give the intimation regarding shifting of the goods from the insured premises to other premises or the alleged change of the business premises but he failed to do so thereby breaching the policy conditions. On merits, purchase of the policy by the complainant in regard to his retail shop is not denied and it is also not denied the surveyor was appointed for assessing the loss but the other allegations made in the complaint are categorically denied and lastly submitted that the complaint is without merit and same may be dismissed.

6. In order to prove the case of the complainant, counsel for the complainant tendered into evidence affidavit Ex.CA alongwith documents Ex.C-1 to Ex.C-12 and closed the evidence.

7. Similarly, counsel for the OP No.1 to 3 tendered into evidence affidavit Ex.OA alongwith documents Ex.O-1 to Ex.O-10 and closed the evidence of the OP No.1 to 3.

8. We have bestowed our thoughtful consideration to the submissions made by learned counsel for respective party and also scanned the case file very minutely.

9. After taking into consideration the entire story as mentioned in the complaint as well as its reply filed by OP and also scanned the case file and then find the factum in regard to purchase of insurance policy whereby insured the article which are lying in the retail shop of the complainant is not in dispute rather these factum had been admitted. Further a fire was broken out in the shop of the complainant on 25.06.2013, is also not denied by the OP rather a surveyor was appointed by the OP for assessing the loss.

10. The question hinges in the air is only whether the complainant had given intimation in regard to change of retail shop premises to the insurance company or not, this is the main dispute in this case because as per version of the OP, the complainant miserably failed to give intimation in regard to change of business in the new premises i.e.186, Model Town, Opposite Nikku Park, Jalandhar, admittedly as per insurance policy Ex.C-1, the goods were lying in the premises Shop No.11 GF, Viva College Mall, GT Road, Jalandhar and the same was insured when the goods were lying in the aforesaid address and this address is given on the insurance policy Ex.C1 but the complainant alleged that he had changed the business from aforesaid address to 186, Model Town, Opposite Nikku Park, Jalandhar and regarding that an intimation was given to the OP vide letter dated 11.03.2013 which is Ex.C-3, no doubt the OP has categorically denied that they never received the aforesaid letter dated 11.03.2013. The complainant as per his own version, he send the letter Ex.C3 on 11.03.2013 and fire was broken out on 25.06.2013 and why the complainant remains silent for three months, it is the duty of the complainant to get an endorsement on the insurance policy qua change of business from one place to other, but he did not to do so for the best known reason.

11. Apart from above, we think that it is the duty of the complainant to establish on the file in what manner he send the aforesaid letter dated 11.03.2013, whether by post if so then postal receipt should be placed on the file but apparently the complainant has failed to establish on the file that he has ever intimated to the OP in regard to change of his business from insured place to other place i.e. 186, Model Town, Opposite Nikku Park, Jalandhar and as per term and condition, if there is any change of location, an intimation of such change must be given to the insurance company but in this case, it is not established that the complainant has ever intimated to the OP in regard to change of location of his business, if so then it is clear that the goods lying in the premises i.e. 186, Model Town, Opposite Nikku Park, Jalandhar is not insured with the OP rather the goods lying in Shop No.11 GF, Viva College Mall, GT Road, Jalandhar are insured and as such the complainant is not entitled for damaging any loss to the goods which are lying not in the ensured place and accordingly we find that the OP has rightly repudiated the claim of the complainant.

12. Furthermore, we find there is an other legal lacuna in this complaint is that the complainant himself stated in para No.1 of the complaint that he is running a retail shop of Reebok company means he is selling a shoe of Reebok and said shoe of the Reebok company were got insured from the OP, means thereby that the complainant got insured those articles which he retain for resale purpose as well as for commercial purpose and whenever these two things come then the complainant is not the consumer, if so then the instant complaint of the complainant is not maintainable.

13. In the light of above detailed discussion, complaint of the complainant is dismissed with no order of cost. Complaint could not be decided within stipulated time frame due to rush of work.

14. Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.

Dated Parminder Sharma Karnail Singh

09.05.2017 Member President