NCDRC

NCDRC

RP/986/2013

M/S. BHARUKA MEDICAL STORES - Complainant(s)

Versus

UNITED INDIA INSURANCE CO. LTD. - Opp.Party(s)

MR. VATSALYA VIGYA

19 Nov 2013

ORDER

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
 
REVISION PETITION NO. 986 OF 2013
 
(Against the Order dated 21/12/2012 in Appeal No. 1039/2007 of the State Commission Maharastra)
WITH
IA/1798/2013,IA/1799/2013
1. M/S. BHARUKA MEDICAL STORES
THROUGH ITS PARTNER, MANMOHAN LALCHAND BHARUKA, R/O PANCHKKI ROAD, NEAR GOVERMENT MEDICAL COLLEGE & HOSPITAL, GHATI
AURANGABAD
MAHARASTRA
...........Petitioner(s)
Versus 
1. UNITED INDIA INSURANCE CO. LTD.
THROUGH ITS BRANCH MANAGER, CITY BRANCH HOUSE NO-15-5-72, JAGTAP COMPLEX, NEW OSMANPURA
AURANGABAD
MAHARASTRA
...........Respondent(s)

BEFORE: 
 HON'BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
 HON'BLE MR. DR. B.C. GUPTA, MEMBER

For the Petitioner :MR. VATSALYA VIGYA
For the Respondent :
Mr. A.K.De, Mr. Zahid Ali & Mr. Rajesh
Dwivedi, Advocates

Dated : 19 Nov 2013
ORDER

PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER This revision petition has been filed by the petitioner against the order dated 21.12.2012 passed by Maharashtra State Consumer Disputes Redressal Commission, Circuit Bench at Aurangabad (in short, he State Commission in Appeal No. 1039 of 2007 United India Ins. Co. Ltd. Vs. M/s. Bharuka Medical Stores by which, while allowing appeal, order of District Forum allowing complaint was modified. 2. Brief facts of the case are that complainant/petitioner was running a medicine shop in the name of M/s. Bharuka Medical Stores at Shop No. 7, which was taken on rent by Shri Shaikh Hussain from the Municipal Corporation, Aurangabad. Complainant obtained hopkeepers Insurance Policyfrom OP/respondent for a sum of Rs.5,10,000/- for a period commencing from 28.3.2006 to 27.3.2007. Shop was demolished by Municipal Corporation, Aurangabad on 13.6.2006 with the help of bull dozer and JCB without any prior notice to the complainant on the ground of unauthorized occupation of the premises. In spite of injunction from the Court, the entire shop along with goods and furniture & fixture was destroyed. Due to malicious act on the part of Municipal Corporation, complainant sustained loss of Rs.4,85,000/-. Complainant preferred claim before OP which was repudiated. Alleging deficiency on the part of OP, complainant filed complaint before District Forum. OP contested complaint and submitted that complaint was beyond the scope of policy as loss was caused due to action initiated by the public authority and submitted that claim was rightly repudiated and prayed for dismissal of complaint. Learned District Forum after hearing both the parties, allowed complaint and directed OP to pay a sum of Rs.4,85,000/- along with compensation of Rs.5,000/-. Appeal filed by the OP was partly allowed by learned State Commission vide impugned order and learned State Commission reduced the amount of compensation from Rs.4,85,000/- to Rs.1,00,000/- against which, this revision petition has been filed. 3. Heard learned Counsel for the parties finally at admission stage and perused record. 4. Learned Counsel for the petitioner submitted that in spite of proving loss of Rs.4,85,000/-, learned State Commission has committed error in reducing amount of compensation granted by District Forum; hence, revision petition be allowed and order of District Forum be restored. On the other hand, learned Counsel for the respondent submitted that order passed by learned State Commission is in accordance with law; hence, revision petition be dismissed. 5. Learned Counsel for the petitioner has placed reliance only on Trading Account for period from 1.4.2006 to 12.6.2006 filed by petitioner and has not placed any other record to substantiate his claim; even then, learned District Forum allowed claim in toto. Learned State Commission while modifying order of District Forum observed rightly as under: 3. Now we have to see whether the respondent is entitled to receive the amount of Rs.4,85,000/- claimed by him. The only document submitted in support of his claim by the respondent is the statement of trading and profit and loss account for the period from 01.04.2006 to 12.06.2006. As per this statement the closing stock of goods is shown as Rs.4,82,566/-. The said document has also not been certified by any of competent authority. This document cannot be taken as an evidence to prove that the stock of the value of Rs.4,82,566/- was existed at the time of demolition. Secondly, even if we accept that the stock amounting to Rs.4,82,566/- was existed at the time of demolition, it cannot be accepted that the entire stock was damaged as there is no proof to that effect submitted by the respondent. As contended by the appellant Insurance Company there is no panchanama made by the police or Revenue authority to substantiate the loss as claimed by the respondent. There are also no photographs of the incident supporting the alleged loss of his goods. Thus there is absolutely no evidence in support of the loss of said goods. 14. It is also to be noted that the alleged loss is not resulted out of any fire or natural calamities in which case there is a sudden occurrence of the incident. In the instant case the loss is alleged due to demolition of structure of shop by the officer of the Municipal Corporation. There is no proof on record that the respondent had requested the officers of the Municipal Corporation to allow him to shift his stock to the alternate place. It is also not the case of the respondent that in spite of his efforts in that notice he was not given any time to remove the existing stock as to secure the same from the probable loss. The Forum below has awarded compensation of Rs.4,85,000/- merely on the basis of the statement made by the respondent. The District Forum has not bothered to see whether the claim is proved and is properly justified. Thus the amount awarded by way of impugned judgment and order is totally arbitrary and baseless. In these circumstances, we cannot hold that the respondent is entitled to receive the said compensation as claimed by him. 15. We are however of the view that the appellant Insurance Company ought to have appointed surveyor to assess the loss. But on the basis of wrong presumption that the claim was decided beyond the scope of the policy the appellant Insurance Co. avoided to appoint Surveyor and settle the claim of the respondent which amounts to deficiency in service. Therefore considering this lapse on the part of Insurance Company and secondly considering certain loss of stock of goods which might have caused in the process of shifting of stock within a short period, we are of the opinion to allow the lump sum compensation of Rs.1,00,000/- to the respondent 6. Perusal of record further reveals that shop was demolished on 13.6.2006 whereas intimation to insurance company was given on 21.6.2006. In such circumstances, there was no occasion for the respondent to appoint surveyor immediately for assessment of loss caused by act of Municipal Corporation to the petitioner. 7. We do not find any illegality, irregularity or jurisdictional error in the impugned order and revision petition is liable to be dismissed. 8. Consequently, revision petition filed by the petitioner is dismissed at admission stage with no order as to cost.

 
......................J
K.S. CHAUDHARI
PRESIDING MEMBER
......................
DR. B.C. GUPTA
MEMBER

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