BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KAMRUP, GUWAHATI- 03
C.C. No-135/2008
Present:
- Md S.Hussain,AJS -President
- Smti A.D.Lahkar -Member
Sri Shankar @ Jayanta Kar,Proprietor -Complainant
M/S SK Footware,Danish Road,
Panbazar,Guwahati-781001
-VS-
1) United India Insurance Co.Ltd. -Opp. party
Represented by its Chairman-cum-Managing Director
24,Whites Road,Chennai-6000014
2) The Regional Manager,United India Insurance Co.Ltd.
Guwahati Regional Office,Dispur,Guwahati-781005
3)The Branch Manager, United India Insurance Co.Ltd.
Fancy Bazar Branch,Danish Road,Panbazar,Guwahati-781001
4)The Branch Manager,Federal Bank of India
Fancy Bazar Branch,Guwahati-781001
Appearance:
Ld advocate Mr Surajit Dutta for the complainant and Mr.Monuwar Hussain for the Opp.party No.1,2 & 3 .
Date of argument:-14.12.17
Date of Judgment:-29.12.17
THIS IS A PROCEEDING U/S-12 OF CONSUMER PROTECTION ACT,1986
1) The complaint filed by Sri Sankar @ Jayanta Kar , the proprietor of M/S SK Footwear, Danish Road, Panbazar, Guwahati against United India Insurance Company Ltd, Guwahati, Branch Manager, United India Insurance Company Ltd.Fancy Bazar Branch as well as the Branch Manager, the Federal Bank of India, Fancy Bazar was admitted on 24.12.08 and notices were served on all opp.parties and Opp.Party No.1,2 & 3 jointly filed the written statement, but Opp.Party No.4 defaulted to take step and accordingly, this forum vide order dated 9.3.11 directed that the case against Opp.Party No.4 will proceed on exparte. The complainant filed his evidence and of one Sri Upen Das as their evidence and both of them were cross-examined by the Ld.counsel of Opp.Party No.1, 2 & 3. Opp.Party No.1, 2 & 3 side filed evidence of one Sri Tulan Ch.Nath and he was cross-examined by Ld.counsel of the complainant. Both sides’ Ld.counsel filed their written argument. Finally on 14.12.17 we have heard oral argument of Ld.advocate Mr.Surajit Dutta for the complainant and of Ld.advocate Mr.Monuwar Hussain for Opp.Party No.1, 2 & 3 and today we deliver the judgment which is as below.
2) The complainant’s story in brief is that he being the proprietor of M/S SK Footware, Danish Road, Panbazar, was carrying out footwear business in a shop located in a Assam Type house measuring 40 ft.X 20 Ft which is accessible from Danish Road through a lane and the shop premises consist of several rooms and he maintained the business with a small cash counter at the opening of the lane and the stock-in-trade were kept at the rooms behind the cash counter. He hypothecated his stock with Opp.Party No.4 against the loan of Rs.5,00000/- and as per hypothecation he was required to maintained a stock of Rs.10,00000/- and he has maintaining the said. He got the shop along with the stock-in-trade etc. insured with Opp.Party No.2 vide shop keeper insurance policy No. 130105/48/03/00582 which was effective from 3.11.2003 to 2.11.2004 and it was renewed vide policy No.130105/48/04/01307 effective from 0000 Hours on 18.11.2004 to midnight of 17.11.2005 and again it was renewed vide policy No. 130105/48/05/00720 effective from 1400 Hours on 21.11.2005 to midnight of 20.11.2006. Under the said policy the insured value of stock-in-trade was Rs.10,00000/- in during continuation of the policy, on 16.2.2006 at about 17-30 hours his shop premises caught a devastating fire and State Fire Service were requisitioned, but they failed to douse the fire and in result entire stock in trade was gutted in the fire. He informed Panbazar Police Station about the fire and they also enquired the matter vide Panbazar Police Station GDE No.586 dtd.16.12.2006 and under traumatic mind just after the fire, he informed Opp.Party No.3 about the fire on 17.2.2006 and requested for necessary action, where he inadvertently referred his shop as godown. Opp.Party No.4 vide letter GHT/ODCC-5172/2005 dtd.17.2.2006 informed Opp.Party No.3 about the loss sustained by him. Opp.Party No.3 sent one , Sri Rakesh Sarma to his shop to survey the matter and the later tool a list of lost articles from him and left the place after taking some photographs. The Director of Fire Service, on 22.2.2006 issued a certificate indicating the type properties involved in the fire in the said incident as well as the Officer- in –Charge of Panbazar Police Station also, on 6.3.06, issued a report indicating nature of property gutted in the fire. He, then, on 23.3.06 wrote a letter to Opp.Party No.3 for settlement of his claim, where he categorically mentioned with reference of word “godown” in his letter dtd. 17.2.2006 was due to mistake and in fact it was his shop which was gutted in the said fire and he also issued one reminder on 31.3.2006, whereby he again clarifies the loss and sought early settlement of the claim. Opp.Party No.4 vide letter No. GHT/LD 1447/2006 and letter No. GHT/LD 1462/2006 dtd. 8.5.2008 confirmed to Opp.Party No.3 about the loss of the insured premises with stock-in-trade in the fire and requested for settlement of the claim. Finding no progress he again wrote a letter on 20.7.06 to Opp.Party No.3 clarifying loss he suffered in the said fire. He received a letter dtd.8.3.2006 from Opp.Party No.3 where, the later mention that the shop covered under the relevant insurance policy had not been gutted partially or totally as revealed from survey report, the said letter did not reveal anything in support of the decision and then he took the matter with Opp.Party No.2 and Opp.Party No.3 for a review of their decision; and Opp.Party No.4 also took up the matter with Opp.Party No.2 & 3 and sought review to their decision. Thenafter Opp.Party No.3 vide letter dtd.6.3.2007 conveyed to him as well as Opp.Party No.4 the decision of competent authority denying liability as no claim. The rejection of the claim by Opp.Party No.1,2 & 3 amount to gross deficiency of service. Opp.Party No.1,2 & 3 based a so- called Survey report which is illegal inasmuch as the content thereof has not been made known to him. Their decision rejecting his claim suffers from total non-application of mind and therefore they are liable to pay appropriate compensation to him which are Rs.10,00000/- for loss of his Stock-in-Trade, Rs.2,00000/- for causing harassment and mental agony to him and Rs.50,000/- as cost of legal proceeding. The cause of action arose on 6.3.2007 and on all subsequent dates.
3) The story of the Opp.Party No.1 & 2 is that the complaint is not maintainable. There is no cause of action for filing the complaint. The information alleged by complainant on 17.2.2006 was that his godown was burnt on fire and he suffered loss of Rs.8,00000/-. Opp.Party No.4 also intimated them the fire broke out in the godown of M/S SK Footware, Danish Road, Panbazar,Guwahati and godown was completely damaged. Their surveyor, Sri Rakesh Sarma reported that the godown was damaged as reported by the complainant and Opp.Party No.4 . They issued letter dtd. 8.3.2006 to the complainant whereby they informed the complainant about the reason of rejection of the claim. Then Opp.Party No.4 sought review of their decision contained in the letter dtd.8.3.06. The complainant also vide letter 6.3.07 requested for review of their decision and then they conveyed their decision vide letter dtd.8.3.06. Their surveyor inspected the premises of M/S SK Footware, Danish Road, Panbazar,Guwahati and found that in the premises there were 6 rooms which were used as Godowns where stocks were stored and one room was used as shop and stocks in the Godown were completely gutted , but the fire did not at all affect the room used as shop. The surveyor however reported that although the fire damaged stock worth about Rs.8,00000/- the same were with regard to stocks kept in the godown, which was in the said premises as that of the shop, but the shop remained unaffected. As the shop remained unaffected, they are not liable to indemnify the complainant and therefore, there is no liability or infirmity in the decision rejecting the claim. The complaint is liable to be dismissed.
4) We have perused the pleading as well as evidence of the parties and found that both sides admit that the complainant Sri Sankar alies Jayanta Kar have been doing footwear business in the name and style M/S S.K.Foorwear (proprietorial firm) at Danish Road, Lakhtokia, Guwahati on being financed by Federal Bank of India in Assam Type house measuring 40”X20” which associated of several rooms and he got his shop alongwith Stock-in-Trade insured with Opp.Party No.3 under the shopkeepers vide policy No. 130105/48/03/00582 which was effective from 3.11.2003 to 2.11.2004 and it was also renewed vide policy No. 130105 /48/04/01307 effective from 18.11.2004 to midnight of 17.11.2005 and it was again renewed vide policy No.130105/48/05/00720 which was effective from 21.11.2005 to midnight of 20.11.2006 and during effective period of the last insurance policy suddenly on 16.2.2006 the said Assam Type House of the complainant caught a devastating fire and gutted all the Stock-in-Trade as well as the house and the State Fire Service Organization failed to save the Stock-in-Trade and house and to that effect the State Fire Service Organization issued a certificate about the property involved in the fire as well as the police of Panbazar P.S. also enquired the matter vide Panbazar P.S. G.D.Entry No. 586 dtd. 16.12.2006.
5) i) It is also both sides’ admitted fact that the complainant informed Opp.Party No.3 about the matter on 17.2.2006 and sought necessary action and in that information he inadvertently referred his shop as godown and Opp.Party No.4 vide letter GST/ODCC 5172 2005 dtd. 17.2.2006 intimated Opp.Party No.3 about loss suffered by the complainant in the fire.
ii) It is also both sides’ admitted fact that Opp.Party No.3 appointed one Sri Rakesh Sarma to survey the matter and he also took the matter and he also took inventory of gutted and lost articles from the complainant and took more photographs and submitted report to Opp.Party No.3.
iii) It is also both sides’ admitted fact that the complainant on 20.3.2006 wrote a letter to Opp.Party No.3 to settle his claim, where he categorically mentioned the reference of word godown in his letter dtd. 17.2.2006 was due to mistake and in fact it was his shop, which was gutted in the fire and he also sent another reminder on 31.6.2006 .
6) From evidence, it also appears to us that Opp.Party No.4 vide letter No. GHT/LD 1447/2006 dtd.23.3.2006 as well as letter No. GHT/LD 1462/2006 dtd.8.5.2008 confirmed to Opp.Party No.3 about the loss of insured premises along with Stock-in-Trade in the said fire, and requested for settlement ; the complainant also wrote a letter dtd.20.7.2006 to Opp.Party No.3 clarifying the loss to the insured premises and Stock-in-Trade and requested him for early settlement, but Opp.Party No.3 by sending a letter dtd. 8.3.2006 informed the complainant that the shop covered under the relevant insurance policy had not been affected on gutted partially on or totally as revealed from survey report ; and then complainant after receiving that letter took up the matter with Opp.Party No.2 & 3 for review their decision and Opp.Party No.4 also took up the matter to Opp.Party No.2 & 3 and requested to review their decision. After receiving both requests Opp.Party No.3 vide letter dtd. 6.3.2007 has conveyed to the complainant the decision of the competent authority denying liability as NO CLAIM.. Therefore, it is seen that the letter dtd. 8.3.2006 issued by Opp.Party No.3 as well as letter dtd. 6.3.2007 issued by Opp.Party No.3 to the complainant as well as to Opp.Party No.4 are a repudiation letters.
7) Now, question is that what the policy actually covers . We have carefully gone through the relevant policy which is policy No. 130105/48/05/00720 which was effective from 21.11.05 to 20.12.06 which is Ex.1 and found that said policy covers fire and allied perish of building and its contents excluding money and valuable, but including furniture, fixtures, fittings and stock-in-trade to the extent to value of Rs.10,00000/- and doing the proper estimate the opp.party recovered yearly premium of Rs.5,701/- in total and these stocks were found hypothecated to Opp.Party No.4 Federal Bank of India, the financer. Thus it is crystal clear that the Opp.Party No.1,2 &3 side without demarcation of shop and godown insured the entire stock in trade of the complainant through the said policy. If that is so, the stock-in-trade which were kept in the shop consisting of several rooms are covered by the said policy.
8) The complainant is found to have advertently informed the Opp.Party No.3 that his godown have been damaged by fire on 16.2.2006 at about 7-30 hours. The complainant states in his pleading as well as in evidence that after the said incident he inadvertently referred his shop as godown . In his letter dtd. 17.2.2006 through which he informed Opp.Party No.3 about the incident. It is found that the complainant vide his letter 23.3.2006 (Ex.2) informed Opp.Party No.3 about the incident and prayed for settlement of his claim , where he clarified with the reference of godown in his letter dtd.27.2.2006 was due to mistake and in fact it was a shop which was gutted on fire. Thus, it is crystal clear that before repudiation of his claim, the complainant rectified his mistake that he inadvertently referred his shop as godown. This clarification amounts to giving information to Opp.Party No.3 that his shop was actually gutted and he had no separate godown.
9) As per statement of the complainant given in the complaint and in the evidence, his shop consists of Assam Type house measuring 40” X20” consisted of several rooms and he has been using small cash counter at the opening of lane and the stock-in-trade in house at the rooms behind the said cash-counter. As per this version of him, the complainant has no separate godown. He keeps his stock in all rooms of the said Assam Type House measuring 40” X20” with a cash counter on the opening of the house.
i) The opp.party sides’ plea is that the first room complainant’s shop and other rooms are godown and the fire gutted the stock-in-trade in all other rooms excepting cash counter room , which they say that these are godown rooms which are not covered by the policy. Supporting the evidence of P.W.1, P.W.2 states that the shop of the complainant is situated in a Assam Type House measuring 40” X 20” from Danish Road through a lane and the shop premises consists of several rooms arranged in L shape with a small cash counter and the Stock-in-Trade were kept at the rooms behind the counter and the said shop caught fire on 16.2.2006 and the Stock-in-Trade and other essential items kept therein got burnt in fire. In the cross-examination he further states that he himself seen that the fire burnt the materials of the shop of the complainant. We have also perused the survey report filed by the surveyor of the Opp.Party No.1 and found that surveyor reports that in the said fire stock stored in the rooms used as godown were gutted in fire and the shop though located in the same compound was totally unaffected. This version of the surveyor clarifies that the entire stock-in-trade kept by the complainant in 6 rooms behind the cash counter were completely gutted. In this case, the surveyor clearly states that the so called godown located in the same compound. He says that shop located in the same compound was unaffected. It is already found that the complainant clarifies that he is not using any room as separate godown , but he used entire rooms as shop and he also clarified the matter to the Opp.Party No.3 . In the policy, there is no reference of godown and shop . It is just stock of trade kept in the shop premises of the complainant . But the surveyor has demarked the as six rooms as godown and one room as shop which the complainant denies. In this case, the opp.party side has not brought the surveyor to prove survey report hence the survey report cannot be said have been prove. Secondly, the photograph submitted by the opp.parties are not part of the survey report, but they submitted the photograph with exhibiting and so the photograph cannot be used as evidence of plea of the opp.parties . Thus, it is crystal clear that opp.party side failed to substantiate their plea that the premises where stock-in-trade were gutted in the said fire was the godown of the complainant and rather it is found that the complainant has succeeded to establish that the entire 6 rooms including small counter are parts of his shop M/S SK Footware and he never used any portion of it as separate godown. Thus, it is clearly established that the stock-in-trade kept in the said room cannot be said to have been kept in a godown, but must be said that all the stock-in-trade kept therein were stock-in-trade kept in shop. Accordingly, the division formula of shop and godown as formulated by the surveyor and accepted by the opp.party cannot be accepted. Thus, we hold that in the said fire the entire stock-in-trade with other materials in the shop of the complainant were gutted .
10) The surveyor reported that stock-in-trade more than Rs.80,000/-were gutted in the said fire whereas the complainant in his evidence states that at the time of said incident his shop contained stock-in-trade to the tune of Rs.10,00000/-. It is also found that the surveyor of the opp.party clearly states that the value of the loss stock-in-trade is more that Rs.8,00000/- and this version of the surveyor supports that total value of damage of stock-in-trade is about Rs.10,00000/-. Director of Fire Service , Guwahati also certifies that all the shoes and Sandals kept in 40” X20” house of the shop by the style M/S SK Footwear was involved in the fire and was completely damaged; and secondly, Panbazar Police Station also certifies that all the shoes and chandals was hawai chappal belongings to M/S SK Footware Sankar @ Jayanta Kar was completely gutted in the said fire. Thus , these two certificates supports the version of the complainant as to quantum of damage of his property. Thus, it is clearly established that in the said fire, shoes, chappal, Chandals ect.( stock-in-trade) to the value of Rs.10,00000/- were gutted in the said fire.
11) It is already found that the opp.party side vide their letter 6.3.2007 repudiated the claim of complainant on the ground that the stock of the complainant in the godown only damaged in the said fire which they have failed to prove , while the complainant has succeeded to prove that he has no separate godown and he kept entire stock-in-trade in his shop consisting of 6 rooms and the entire stock was damaged in the said fire. Therefore, we hold that the repudiation order is illegal and without legal basis and so they are liable to pay Rs.10,00000/ as compensation to the complainant for loss and damage of his stock-in-trade etc. in the said fire.
As they illegally repudiated the claim , they are also to pay interest on that amount @6% per annum from the day of filing this complaint 24.12.2008. Moreover, by illegally repudiating the claim of the complainant the opp.party caused harassment and mental agony to the complainant, and therefore, they are liable to pay Rs.50,000/- as compensation for causing harassment and mental agony to him. At last, they are also liable to pay at least Rs.20,000/- as cost of the proceeding having for no fault of the complainant, he was bound to prosecute them opp.party before this forum by engaging advocate and incurring miscellaneous expenses and continuing to this forum.
12) Because of what has been discussed as above we hold that the complaint has merit . Accordingly, the complaint is allowed on contest against Opp.Party No. 1,2and 3 but against Opp.Party No-4 is dismissed and Opp.Party No-1,2 and 3 are accordingly directed to pay Rs.10,00,000/-(Rupees ten lakhs) to the complainant with interest @ 6% per annum from 24.12.08 until full satisfaction of award for loss of his property and stock-in-trade in fire occurred on 16.2.08 and also to pay Rs.50,000/- as compensation for causing harassment and mental agony to him and they are also liable to pay at least Rs.20,000/- as cost of the proceeding, to which , they are jointly and severally liable. They are directed to satisfy the award within one month and in default other two amounts will also bear interest at the same rate.
Given under our hand and seal on this the 29th day of Dec,2017.
(Smti.Archana Deka Lahkar) (Md.Sahadat Hussain)
Member President
