CONSUMER DISPUTES REDRESSAL COMMISSION

MAHARASHTRA STATE





FIRST APPEAL NO.429/2008 Date of Filing:-18/03/2008

@ M.A.No.633/2008

IN CONSUMER COMPLAINT NO.28/2007 Date of Order:-13/04/2009

DISTRICT CONSUMER FORUM, RAIGAD-ALIBAG



The Divisional Manager,

New India Assurance Company Limited,

Sector-11, Belapur Division Office-140800

Belapur, Navi Mumbai ... Appellant (Org. Opponent)

-Versus –

Shri Harish Gopal Sachdev,

Proprietor,

M/s.Harish Trading Company,

At/Post-Panvel,

District-Raigad ... Respondent (Org. Complainant)



Corum :- Mr.P.N.Kashalkar, Hon’ble Presiding Judicial Member

Smt.S.P.Lale, Hon’ble Member.



Present :-Ms.Kalpana Trivedi, Adv.for the Appellant

Mr.D.B.Wadkar, Adv. for the Respondent





O R D E R



Per Mr.P.N.Kashalkar, Hon’ble Presiding Judicial Member



1) Being aggrieved by the judgment and award passed by the District Consumer Forum, Raigad at Alibag in Consumer Complaint No.28/2007 decided on 25/1/2008, whereby, while allowing the complaint, the Forum below directed O.P./Insurance Company to pay sum of Rs.10 Lakhs to the complainant with interest at the rate of 7% per annum from 13/10/2004 and also to pay Rs.5,000/- towards mental agony and Rs.2,000/- towards cost, the original O.P./Insurance Company has filed this appeal.



2) There is a delay of 17 days in filing appeal. The delay is properly explained in the condonation of delay application supported by affidavit. So, relying on the same, we are inclined to condone the delay on payment of cost of Rs.500/- to be paid to the respondent/Org.complainant.



3) Case of the parties in the Forum below may be summed up as under



4) The complainant Shri Harish Gopal Sachdev is having a proprietary concern styled as M/s.Harish Trading Company. It had taken shopkeeper’s policy from the New India Assurance Company Limited/O.P. The policy was in force for the period 24/3/2005 to 23/3/2006. There were two policies. One was for shop no.3 and another was for shop no.4. By policy No.140802/48/02249 sum assured was Rs.10 Lakhs and by policy No.140802/11/04/017010 policy cover was Rs.20 Lakhs. The complainant had taken this policy because from Ratnakar Bank, Panvel he had procured loan and policy was purchased through Ratnakar Bank. It was the case of the complainant that in floods of 26/7/2005, his whole stock was washed away due to heavy rains. After the flood water receded, he informed the Insurance Company about the loss sustained him in shop no.3 and 4. The Insurance Company appointed Surveyor M/s.K.M.Kapadia & Company. The Surveyor inspected the spot, inspected his documents and conducted survey. The Tahsildar, Panvel independently recorded Panchanama about the damage sustained in the shop of the complainant due to heavy floods. The Ratnakar Bank also submitted statement to the Insurance Company that it had given loan of Rs.30 Lakhs to the complainant for purchasing stock in trade. The Surveyor conducted survey and in his survey report, he recommended that for shop no.3 complainant may be paid amount of Rs.5,17,011/- and for damage occurred due to heavy rains in shop no.4, the surveyor recommended amount of Rs.10,59,235/-. The Insurance Company however, did not inform the complainant immediately about survey report. Times and again, the complainant approached the Insurance Company. Ultimately, after 21 months since the floods, the complainant was paid certain amount by cheques dated 9/1/2007 and 12/1/2007 but he accepted those cheques under duress and undue influence exercised by the Insurance Company on him and therefore the complainant filed consumer complaint alleging deficiency in service on the part of Insurance Company and claimed Rs.10,69,828/- towards loss suffered by him for shop no.3 and Rs.18,73,924/- for the loss suffered by him in shop no.4. The complainant has mentioned that for shop no.3, he had been given amount of Rs.6,60,885/- and for shop no.4, the Insurance Company had given Rs.10,08,748/- and therefore he has claimed remaining amount as per survey report from the Insurance Company and also claimed Rs.30,000/- per month for the loss sustained by him. He also claimed Rs.50,000/- for the compensation towards mental agony and physical suffering. He filed affidavit in support of his claim.



5) The Insurance Company filed written statement and pleaded that it had already paid certain amounts in terms of full and final settlement arrived at by Ratnakar Bank. The Bank accepted the settlement amount without reserving any right to claim any further damages or without protesting the amount of settlement offered by the Insurance Company. So, the complaint now filed by the complainant is totally unjust and absolutely false. It admitted that in the floods, the complainant had sustained loss and they had appointed Surveyor. It also admitted that Tahsildar, Panvel had recorded Panchanama about the damage caused to the shops of the complainant due to heavy rains. The Insurance Company further pleaded that the Panchanama recorded by the Talathi or Tahsildar or revenue department can not be considered for assessing damage suffered by the complainant in the floods. The said Panchanama was recorded by these officials just to grant ex gratia payment to the citizens suffering damage due to natural calamity. It is not scientifically prepared Panchanamas regarding damage sustained by the party concerned. They are not having expertise to assess damage like the surveyors do when appointed by the Insurance Company. The Bank further pleaded that the claim was paid to the complainant and Ratnakar Bank jointly after they both executed settlement voucher accepting the amount offered by the insurance company by way of full and final settlement. They did so without any undue influence or coercion exercised by the officials of the Insurance Company. The insurance company pleaded that the complainant is established ‘trader’ and ‘businessman’ and he can not be deceived like this as alleged. The Insurance Company pleaded that the claim is also hit by principle of estoppel.



6) On the basis of affidavits and documents placed on record, the Forum below by its impugned award allowed the complaint brushing aside the defences raised and directed Insurance Company to pay amount of Rs.10 Lakhs with interest at the rate of 7% per annum and also to pay Rs.5,000/- towards mental harassment and Rs.2,000/- towards cost. As such, the Insurance Company filed has this appeal.



7) We heard submissions of Ms.Kalpana Trivedi, Adv. for the appellant and Mr.D.B.Wadkar, Adv. for the respondent. We perused the impugned judgment and award and documents placed on record.



8) We are finding that the award passed by the Forum below granting compensation of Rs.10 Lakhs with interest at the rate of 7% per annum is clearly bad in law in as much as complainant was already paid for the loss of goods for godown no.3 Rs.6,60,885/-, for godown no.4 Rs.10,08,748/- and in respect of godown no.5 Bajaj Allianz General Insurance Company had taken insurance and Bajaj Allianz General Insurance Company paid Rs.4,61,000/- to the complainant. However, the complainant’s case is that for shop no.10 he had purchased policy but nothing was paid for the loss sustained to the goods stored in shop no.10 and for this purpose he had filed consumer complaint. According to the counsel for the Insurance Company, the policy was taken for shop no.10 and in shop no.10 the complainant had only administrative office and goods worth Rs.5,000/-. In shop no.10 he had not kept any goods. The Insurance Company pleaded that as regards godown no.5 the complainant had not taken insurance policy and that though surveyor Mr.Kapadia had assessed the loss of goods to the extent of Rs.5,17,011/- the said godown was not insured by the complainant and therefore the said loss though assessed by the surveyor was not reimbursed and O.P. sent repudiation letter repudiating the claim of the complainant in respect of godown no.5. Policy was purchased for godown no.10 and there was no loss of anything in godown no.10. The shop no.10 was situated at Ratan Market and godown no.5 was situated at Ratan Plaza which is distinct building than Ratan Market in which shop no.10 was allegedly housed. So, policy was taken for shop no.10 and shop no.5 the complainant taken policy from Bajaj Allianz General Insurance Company and that company had already paid reimbursement amount of Rs.4,61,000/- and still the complainant filed this complaint to get insurance claim in respect of shop no.10 alleging that shop no.5 was integral part of shop no.10. If shop no.5 was integral part of shop no.10 as alleged by the complainant we fail to understand how, for shop no.5 or godown no.5 the complainant had taken distinct policy from Bajaj Allianz General Insurance Company. The two places are distinct housed in two different buildings and the complainant alleged that shop no.5 was integral part of shop no.10. He was so saying because he wanted to exploit policy purchased for shop no.10 from the appellant company. Because for shop no.5 he had already been reimbursed by Bajaj Allianz General Insurance Company.



9) We are finding much substance in the submission of learned advocate for the Insurance Company. The policy no.14802/48/04/2244 was purchased for shop no.10 of Ratan Market and policy was for the amount of Rs.10 Lakhs. But it was restricted to shop no.10 at Ratan Market where as shop no.5 was situated at Ratan Plaza. So, policy purchased being for shop no.10 the complainant can not be heard to say that shop no.5 was integral part of shop no.10. In any view of the matter the complainant can not be allowed to get insurance claim under policy no.14802/48/04/2244 shop no.10 when no damage had taken place in shop no.10.



10) As regards other two policies, the counsel for the Insurance Company submitted that the other two policies have been honoured and full and final settlement amount has been paid under those two policies. Therefore, the complainant can not be permitted to claim remaining amount as per survey report once he has been paid insurance dues in respect of those two policies in terms of full and final settlement arrived at between the complainant and Ratnakar Bank on the one hand and Insurance Company on the other. The complainant has failed to establish that insurance officials exercised undue influence, coercion or duress in procuring his signature on settlement vouchers. In the circumstances, we are finding that the award passed by the Forum below directing payment of Rs.10 Lakhs in lumpsum to the respondent was uncalled for, improper and unjust. The insurance claim was fully settled as per full and final settlement of the claim in respect of two policies and in respect of third policy of shop no.10, there was no damage caused to the complainant. Damaged goods were in shop no.5 for which insurance claim was already paid by the Bajaj Allianz General Insurance Company. So, in respect of said loss again this appellant can not be held responsible in view of the fact that shop no.10 is situated in Ratan Market and shop no.5 is situated in Ratan Plaza. In the circumstances, we are of the considered view that order passed by the Forum below will have to be upset by allowing this appeal. Hence, the following order.

O R D E R



1) M.A.No.633/2008 for condonation of delay is allowed subject to cost of Rs.500/- to be paid by appellant to the respondent/Org. complainant.



2) Delay is condoned.



3) Appeal is allowed.



4) Impugned order under challenge is quashed and set aside.



5) Complaint stands dismissed.



6) Copies of this order be sent to the parties free of cost.





( Smt.S.P.Lale ) (P.N.Kashalkar )

Member Presiding Judicial Member