BEFORE THE DISTRICT FORUM: KURNOOL

Present: Sri. T.Sundara Ramaiah, B.Com B.L., President

And

Sri. M.Krishna Reddy, M.Sc., M.Phil., Male Member

And

         Smt. S.Nazeerunnisa, B.A., B.L., Lady Member

Wednesday the 28^th day of September, 2011

C.C.No.18/2011

Between:

M/s. Mirza Textiles represented by its Proprietor Mahmood Alibaig,

D.No.9-332, Pinjari Street, Kurnool -518 001.                                           …Complainant

                                       -Vs-

1. The Senior Branch Manager, National Insurance Company Limited,

   H.No.40/342A, 1^st floor, Tula complex,         Gandhi Nagar, Kurnool-518 001.

2. State Bank of India, Represented by its Branch Manager,

   13/158, Old town branch, Kurnool-518 001.                                              ...Opposite ParTies

This complaint is coming on this day for orders in the presence of Sri P.Siva Sudarshan, Advocate for complainant and Sri K.Muralidhar, Advocate for opposite party No.1 and Sri V.V.Krishnama Raju, Advocate for opposite party No.2 and upon perusing the material papers on record, the Forum made the following.

                                   ORDER

                  (As per Sri. T.Sundara Ramaiah, President)

   C.C. No.18/2011

1.     This complaint is filed under section 11 and 12 of C. P. Act, 1986 praying:-

1. To direct the opposite party No.1 to pay Rs.4,79,045/- towards stocks damages with interest at the rate of 24 % from the date of incident to i.e., 01-10-2009  till the date of realization;

1. To grant a sum of Rs.20,000/- towards mental agony;

1. To grant the cost of the complaint;

1. To grant any other relief as the Honourable Forum deems fit and proper in the circumstance of the case.                                    

2.    The case of the complainant in brief is as under:- The complainant is running the Textiles Business in the name and style of M/S Mirza Textiles in D.No.9-332, Pinjari Street, Kurnool.  The complainant hypothecated his stock to opposite party No.2 and obtained the loan.  Opposite party No.2 insured the stock of the complainant with opposite party No.1 under the policy bearing No.551001/48/09/9800000094.  The policy was valid from 10-08-2009 to 09-08-2010.  On 02-10-2009 the shop of the complainant was submerged in the flood waters and entire stock was damaged.  The complainant informed about the damage of the stock to the opposite parties.   On the date of the floods there was stock of Rs.6,27,540/-.  The value of the damaged stock was Rs.4,79,045/-.  At the time of survey the surveyor not estimated the stock in the godown.  The surveyor fixed the net loss at Rs.83,416/-.  The complainant is entitled for damaged stock value of Rs.4,79,045/-.  Hence the complaint.

3.     Opposite party No.1 filed written version stating that the complaint is not maintainable.  The surveyor after visiting the shop of the complainant assessed the net loss at Rs.83,416/- as per the terms and conditions of the policy.  Opposite party No.1 handed over the vouchers for Rs.83,416/- to the complainant.  The complainant did not hand over the signed vouchers to opposite party No.1 to enable to settle the claim.  The complainant did not co-operate with the opposite party No.1.  There was no deficiency of service on the part of opposite party No.1.

Opposite party No.2 filed counter stating that the complaint hypothecated the stock and obtained loan.  The policy was obtained covering the stock in the complainant shop.  The shop of the complainant was affected in the flood waters on 02-10-2009.  There is no negligence on the part of opposite party No.2.  The complaint against opposite party No.2 is not maintainable.  The complaint is liable to be dismissed.

4.     On behalf of the complainant Ex.A1 to A4 are marked and sworn affidavit of the complainant is filed. On behalf of the opposite parties Ex.B1 to B6 are marked and sworn affidavit of the opposite party No.1 is filed.

5.     Both sides filed written arguments.

6.     The points that arise for consideration are:

1. Whether there is deficiency of service on the part of Opposite Parties?

1. Whether the complainant is entitled for the reliefs as prayed for?

1. To what relief?

7.      POINTS 1 and 2:- Admittedly the complainant is doing cloth business and obtained loan from opposite party No.2 Bank by hypothecating the stock in trade.  It is also admitted that opposite party No.1 issued insurance policy Ex.A1 (Ex.B1) covering the stock in trade in the shop of the complainant.  Ex.A1 policy was in force from 10-08-2009 to 09-08-2010.  The sum assured under the policy is Rs.5,00,000/-.  It is the case of the complainant that the stock in trade in the shop was damaged due to flood waters on 02-10-2009.  The complainant filed Ex.A4 Certificate issued by the Tahsildar, Kurnool where in it is mentioned that due to the floods entire Kurnool Mandal was badly affected with flood water on 02-10-2009.  Admittedly on intimation about the damage caused to the stock in the shop of the complainant opposite party No.1 appointed a surveyor.  The surveyor filed his report Ex.B3 where in it is mentioned that the shop of the insured which is situated in the Park Road was damaged due to flood waters on 02-10-2009.

8.     It is the case of the complainant that on the date of the floods there was stock worth Rs.6,27,540/- in his shop and that the stock worth Rs.4,79,045/- was damaged due to floods.  Except the affidavit evidence of the complainant there is no independent evidence on record to show that the stock worth Rs.4,79,045/- was damaged due flood waters on 02-10-2009.  Admittedly opposite party no.1 appointed a surveyor who filed his report Ex.B3 after visiting shop of the complainant.  The surveyor in his report clearly stated that he visited the shop of the complainant on 04-10-2009 and 5-11-2009.  After verifying the damaged stock the surveyor assessed the net loss at Rs.1,17,239/-.  The surveyor considered the bills submitted by the insured before assessing the loss.  According to the surveyor the stock in trade was under insured by 20.32%.  According to the complainant the value of the stock in his shop on the date of the floods was Rs.6,27,540/-.  The complainant filed Ex.A2 stock statement where in it is mentioned that the total value of the stock on the crucial date was Rs.6,27,540/-.  As seen from the policy Ex.A1 it is very clear that the sum assured was Rs.5,00,000/-.  It is not the case of the complainant that the stock in trade on the date of the floods was less than Rs.5,00,000/-.  The surveyor rightly came to the conclusion that the stock is under insured by 20.32% basing on the particulars of stock statement furnished by the complainant.  It is the surveyor who visited the shop of the complainant and verified the damage stock.  As already stated there is no material on record to show that the stock worth Rs.4,79,045/- was damaged due to floods on 02-10-2009.  The report of the surveyor must be given due to weight.  No ambiguity is found in the report of the surveyor.  The surveyor rightly assessed the net loss sustained by the complainant basing on the actual stock damaged due to floods and the under insurance of the stock.   The complainant having claimed that there was stock worth Rs.6,27,540/- on the date of the incident now cannot say that the stock was not under insured.  The complainant is entitled for net loss of Rs.83,460/- as assessed by surveyor. 

 9.    It is the case of the opposite party No.1 that in spite of repeated requests made the complainant did not submit the vouchers and therefore the claim could not be settled.  As seen from Ex.B4 and Ex.B5 it is very clear that the complainant failed to submit the discharge vouchers as requested by the opposite party No.1.  No reply was given by the complainant after receiving Ex.B5 from opposite party No.1.  It is the complaint who avoided to receive the amount from opposite party No.1.  Therefore it is just and proper to direct the opposite party No.1 to pay net loss of Rs.83,416/-   along with interest at 9% per annum from the date of the complaint i.e., 05-07-2010.

10.    In the result, the complaint is partly allowed directing the opposite party No.1 to pay an amount of Rs.83,416/- to the complainant with interest at 9% per annum from the date of the complaint i.e., 05-07-2010 till the date of payment.  The complaint against opposite party No.2 is dismissed.

        Dictated to the stenographer, transcribed by her, corrected and pronounced by us in the open bench on this the 28^th day of September, 2011.

Sd/-                                     Sd/-                                 Sd/-

MALE MEMBER                      PRESIDENT                 LADY MEMBER

                                 APPENDIX OF EVIDENCE

                                    Witnesses Examined

For the complainant : Nil                  For the opposite parties : Nill

List of exhibits marked for the complainant:-

Ex.A1                Photo copy of Policy bearing No.551001/48/09/9800000094.

 Ex.A2.      Photo copy of stock statement of Mirza Textiles.

Ex.A3                A Bunch of purchase bills (No.35).

Ex.A4                Certificate issued by Thasildar Kurnool (Mandal & District)

dated 16-10-2009..

List of exhibits marked for the opposite parties:-

Ex.B1        Photo copy of Policy bearing No.551001/48/09/9800000094.

Ex.B2                Photo copy of letter dated 10-10-2009 by

opposite party No.1 to complainant.

Ex.B3                Photo copy of final survey report dated 30-03-2010.

Ex.B4                Photo copy of letter dated 20-04-2010 by

opposite party No.1 to complainant.

Ex.B5                Photo copy of letter dated 08-09-2010 by

opposite party No.1 to complainant.

Ex.B6                Photo copy of postal receipt dated 09-09-2010.                          

 Sd/-                                            Sd/-                                    Sd/-

MALE MEMBER                 PRESIDENT                   LADY MEMBER

    // Certified free copy communicated under Rule 4 (10) of the A.P.S.C.D.R.C. Rules, 1987//

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Complainant and Opposite parties  :

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