H.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION, SHIMLA.

Appeal No. 231/2008.

Reserved on 27.7.2009.

Date of Decision 7.8.2009.

In the matter of:



National Insurance Company Ltd., Divisional Office,

Himland Hotel, Circular Road, Shimla through its Assistant Manager.

… … Appellant.

Versus



M/s Sood Traders through Sh. Keshav Sood

son of Sh. Shyam Lal Sood, Shop No.2, National

Highways Sector No.2, Parwanoo 173220, District Solan, HP.

… … Respondent.

Hon’ble Mr. Justice Arun Kumar Goel (Retd.), President.

Hon’ble Mrs. Saroj Sharma, Member.

Hon’ble Mr. Chander Shekher Sharma, Member.



Whether approved for reporting? No.



For the Appellant: Mr. Jagdish Thakur, Advocate.



For the Respondent: Mr. Munish Sharma, Advocate vice

Mr. Vijay Sharma, Advocate.

O R D E R



Justice Arun Kumar Goel (Retd.), President.



Insurance Company has filed this appeal against the order passed by District Forum, Solan on 30.6.2008 in Consumer Complaint No. 151/2003. While allowing the complaint of the respondent, appellant has been directed to pay Rs. 2,32,229.92 paise to the respondent alongwith Rs. 2,000/- as compensation, besides litigation cost of Rs. 2,000/-. Interest has also been allowed @ 9% per annum from the date of institution of the complaint, i.e. 26.9.2003 till realization. Appellant has been directed to comply with this order within 45 days after the receipt of copy of the said order.

2. Shopkeepers insurance policy covering stock-in-trade against fire and burglary only in the sum of Rs. 5.50 lacs having been issued by the appellant on the date of fire incident, i.e. on the intervening night of 11/12.5.2003 is admitted between the parties. Fire being the result of short circuit is established from the material on record. Respondent initially claimed Rs. 5 lacs and thereafter lodged a claim of Rs. 3,04,390/- for the burnt stock-in-trade.



3. In this background Mr. Thakur learned counsel for the appellant submitted that the impugned order deserves to be modified thereby reducing the compensation to Rs. 60,915/- without any interest, compensation as well as cost. This was the compensation assessed being payable by his client per report of surveyor to the respondent. Surveyor after verifying all the facts including bills of sale/ purchase and other material produced by the respondent had come to this conclusion. After receipt of report of surveyor Annexure RE, this amount was offered in full and final settlement of his claim. Annexure V is the copy of the receipt which is at page 99 of the complaint file. It was signed by Keshav Sood under protest. Further according to Mr. Thakur his client had not insured the furniture, fixture, fitting only stock-in-trade was insured. In this behalf he placed reliance on Annexure RA and its second page. This is on the complaint file at its page 161. According to him no premium was charged for furniture etc., as such on this ground also the District Forum below fell into error by awarding compensation. Some of the bills of purchase were not found to be genuine and looking to the volume of the stock-in-trade as per claim of the respondent, it could not have been stored in the shop where the fire took place.

4. All these pleas contested and resisted on behalf of the respondent by its learned counsel. According to him impugned order suffers from no infirmity which may call for interference in this appeal and he prayed for upholding the same while dismissing the appeal with costs.

5. Before dealing with the respective submissions urged on behalf of the appellant, it is appropriate to mention here that the respondent was availing limit from the State Bank of Patiala, Parwanoo and the stock-in-trade was hypothecated to the said bank as is evident from Annexure RA. There is evidence on record to suggest that the respondent had been furnishing stock statements to the financier bank upto 30.4.2003, i.e. few days before the fire incident. What is effect of these stock statements on the fire incident will be examined hereafter.

6. So far submission of Mr. Thakur that furniture, fixture was not insured as premium had not been charged by his client is concerned, suffice it to say in this behalf that first page of Annexure RA clearly mentions about it. By referring to its second page, per Mr. Thakur premium had not been charged. So far calculation and working out of the premium is concerned, it is the job of the staff of the appellant who undertakes the insurance. When the Annexure RA mentions of furniture, fixture etc. alongwith stock-in-trade, why premium was not calculated/charged from the respondent, Mr. Thakur had no answer, except for arguing that his client is only liable in respect of the risk for which premium is paid. This plea is being noted to be rejected. Appellant cannot be allowed to shun its responsibility to work out and charge premium for what is insured by a person seeking insurance, like respondent in the present case.

7. The other plea based on Annexure RE, the surveyor’s report that some of the bills of purchase and proper accounts were not furnished by the respondent is likewise without substance. It is not the case of the appellant that stock-in-trade was not there in the shop at the time of fire incident, besides this even surveyor has admitted in his report that some purchase bills etc., were provided to him, and he had sent letters to some of the parties. Few letters were received back undelivered, as such their genuineness was disputed on behalf of the appellant. Why the surveyor did not try to personally contact such parties with a view to give credence to his version that the bills were not genuine, again learned counsel for the appellant had no answer.

8. In this context the stock statements submitted by the respondent to its banker assume significance. Reason being that it is the duty of the respondent to have done the needful as per bank norms. It is also not the case of the appellant that those stock statements were either factually incorrect or were prepared by the respondent in connivance with its banker. In these circumstances we are constrained to hold that the stock statements cannot be brushed aside, as Mr. Thakur wanted us to discard those and place reliance on the report of the surveyor. Suffice it to say in this behalf, that in all fairness and with a view to give an impartial, fair and just report to the appellant, surveyor ought to have verified the correctness or otherwise of the stock statements furnished by the appellant till April, 2003 to its banker. There is no reason assigned by the surveyor in his report Annexure RE for not verifying the facts from the bank. Like appellant, banker of the respondent is also a wholly Government of India undertaking owned and controlled by the Central Government. As such unless the surveyor established that the stock statements submitted by the respondent to its banker were either incorrect and or were fudged in connivance with its banker, we have no reason to discard those. Admittedly that is not the stand of the appellant.

9. Besides this, it is also not the case of the appellant that the fire was either engineered or was due to any act of omission, commission, negligence and or remissness on the part of the respondent. As such the entire edifice of the case of the appellant based on Annexure RE falls to the ground and plea urged to modify the order and allow compensation only to the extent as contained in Annexure RE is found to be without substance.

10. Further plea on behalf of the appellant raised by Mr. Thakur is, that as per surveyor, the volume of stock could not have been stored in the shop in question which was of a very small size, by ignoring this vital aspect mentioned in the report of the surveyor, District Forum below fell into error is being noted to be rejected. Reason being that while undertaking insurance, Agent/Development Officer of the appellant is presumed to have satisfied as to how much stock can be stored in the premises. And in case it was satisfied that the goods of the value of the sum insured were not possible to be stored in the shop, they should have only undertaken insurance in respect of the goods of the value which could be stored. Now it is too late in the day for the appellant to say that the goods of the value of sum insured were not possible to be stored in the shop in question. Undertaking insurance is not a trap being laid by the insurer like appellant at the time when insurance is done. Whether any query was raised by the Agent/Development Officer in this behalf before filing reply by the appellant to the complaint before District Forum below, Mr. Thakur had no answer.

11. From the material on record it is evident that on 1st May, 2003 stock-in-trade in the shop was of the value of Rs. 5,41,225/- based on the monthly stock statement submitted by the respondent to its banker. We see no reason to discard this and accept the version of the surveyor on which great emphasis was laid by Mr. Thakur. In this behalf Mr. Thakur submitted that the contract of insurance is based on the principle of uberrima fides, as such need for verifying the facts was not necessary. For the reasons set out hereinabove this plea is likewise without substance and thus rejected.

12. No other point was urged.

In view of the aforesaid discussion we find no merit in this appeal which is accordingly dismissed while upholding the order passed by District Forum Solan, in Consumer Complaint No. 151/2003, decided on 30.6.2008. No costs.

All interim orders passed from time to time in this appeal shall stand vacated forthwith.

Learned counsel for the parties have undertaken to collect copy of this order from the Court Secretary free of cost as per rules.



Shimla,

August 7, 2009. ( Justice Arun Kumar Goel ) (Retd.)

President.



(Saroj Sharma)

Member.



( Chander Shekher Sharma )

/Karan/ Member.