PER HON'BLE MR. A. Z. KHWAJA JUDICIAL MEMBER
Appellant National Insurance Co.Ltd. has preferred the present appeal feeling aggrieved by the order dated 17/4/2014 passed by the Learned District Consumer Commission, Nagpur in Consumer complaint No.cc/11/779 by which the complaint filed by the Respondent/complainant Akshay Dabhade came to be partly allowed and appellant National Insurance Company was directed to pay damages of Rs.22,32,820/- towards loss of goods alongwith interest @9% p.a. as well as compensation of Rs.10,000/- and cost of litigation. (Petitioner and Respondent shall be termed by their original nomenclature.)
2. Short facts leading to the filing of the present appeal may be stated as under..
Respondent/Complainant Akshay K.Dabhade claims to be the resident of Ring Road, Nagpur and also proprietor of one shop dealing in the sale of fans and electrical equipments. Complainant was also having a godown for keeping the goods at Panchsheel Road, Wadi, Nagpur. Complainant’s son was also running business under the name and style Jain & sons and was dealing in the business of sale of Sewing machine and his goods were also stored in the same godown of his father situated at Wadi, Amravati Road. Complainant had also taken one insurance policy from National Insurance Co.Ltd. for the shop M/s Jain Radios and Sewing machine and another policy for the goods kept in go down No.11 for the period from 4/8/2006 to 3/8/2007. Complainant had thereafter requested for renewal of the policy and so the same was also duly renewed for the period from 6/9/2007 to 5/9/2008 and the policy was bearing number 280407/48/07/9800000286. The complainant has alleged that he had also paid a sum of Rs.4602/- for the insurance policy for the shop for the period from 4/8/2006 to 3/8/2007. The complainant has contended that the goods located in the shop as well as in the godown were duly hypothecated with the United Commercial Bank OP Nos.1 & 2 and as such, the United Commercial Bank had also taken one single policy for both the shop and godown for a sum of Rs.24 lacs and the period of the policy was from 6/9/2007 to 5/9/2008. OP Nos.1 & 2 and the OP Nos.1 & 2 also had deducted a sum of Rs.13,371/- towards the premium for the said renewed policy, but the copy of the policy was not supplied to the complainant. Complainant has alleged that on 22/12/2007 fire erupted in his godown at Wadi and the goods of the complainant situated in the godown valued at Rs.20 lac came to be damaged. After due intimation, OP No.3 appointed a Surveyor and the surveyor gave a report regarding damage to the goods to the extent of Rs.15 ,32,820/-. Complainant, thereafter, lodged the claim towards the loss of goods due to fire but the claim of the Complainant came to be repudiated by the Opposite party No.3 National Insurance Company by letter dated 14/12/2009 on the ground that the goods of the Complainant kept in the Godown situated at Wadi were not duly insured. The Complainant, therefore, was compelled to file the present Consumer case.
3. The Opposite party Nos.1 & 2 United Commercial Bank appeared and resisted the claim by filing written statement on record, thereby denying the liability. Opposite party Nos.1 & 2 also took a stand that the Opposite Party No.3 National Insurance Company Ltd. was alone liable for the loss sustained by the Complainant.
4. The Opposite Party No.3 National Insurance Co. Ltd. also appeared and resisted the complaint by filing written version on record. Opposite party No.3 has admitted that the Complainant had taken insurance policy for the period from 4/8/2006 to 3/8/2007 and the same was also renewed for the period from 6/9/2007 to 5/9/2008. However, the Opposite party No.3 has taken a specific stand that only the shop of the complainants was insured and the goods kept in the Godown No.11 at Wadi, Amravati Road were not duly insured and the risk was not at all covered. Opposite party No.3 has also denied that the Complainant has sustained monetory loss of Rs.20 lac due to damage to the goods and that the Surveyor had assessed the damage to the extent of Rs.15,32,820/-. Opposite party No.3 has taken a plea that the risk to the goods stored in the Godown wase not at all covered by the Insurance policy. Opposite party No.3 has also contended that the present complaint itself is not tenable in law as the Complainant had earlier also filed one complaint bearing No.CC/08/279. The complaint is barred by limitation and also for want of cause of action liable to be dismissed. For the foregoing reasons the complaint filed by the Complainant Mr.Akshay Dabhade was not at all tenable in law and hence needs to be rejected.
5. The learned District Consumer Commission, Nagpur thereafter recorded the evidence led by both the parties. Learned District Consumer Commission also went through the written notes of arguments, documents filed by the complainant as well as by the Opposite parties. After appreciating the evidence and documents adduced on record, the learned District Consumer Commission partly allowed the complaint by judgement and order dated 17/4/2014. Against this judgement and order dated 17/4/2014, original opposite party No.3 National Insurance Company has come up in this appeal.
6. We have heard Shri.C.B.Pande, Advocate for the Appellant as well as Adv.Aurangabadkar for the Respondent/Complainant. We have also gone through the documents including the record and proceedings in the complaint. On the basis of the facts stated above, the only point that arises for our determination is as follows with findings recorded against them and reasons thereafter..
Point for determination Finding
- Whether the impugned order dated 17/4/2014
passed by District Consumer Commission,
Nagpur suffers from any Illegality, infirmity or
impropriety and needs any interference? No.
- What order ? As per final order.
REASONS
7. Prior to dealing with the rival contentions of both the parties, it would be convenient to deal with certain undisputed facts. It is not in dispute that the Respondent/complainant Akshay Dabhade was engaged in running business under the name and style M/s General Radios and sewing machine and was selling fans and electrical equipments through shop situated at Nagpur. There is also no dispute that the Son of the Respondent/complainant was also running business under the name and style M/s Jain and Sons from the same shop and the complainant and his son were keeping their stock in the godown situated at Wadi, Amravati Road. There is no dispute that the goods kept in the shop as well as godown were duly hypothecated with the Opposite party Nos.2 & 3 United Commercial Bank, Nagpur. It is not in dispute that appellant National Insurance Company had issued Fire Insurance policy for the shop M/s Jain Radio and sewing machine and a separate policy for the godown No.11, situated at Wadi, Amravayti Road and the period of the policy was from 4/8/2006 to 2/8/2007. There is also no serious dispute to the extent that the appellant company had renewed one policy for the period from 6/9/2007 to 5/9/2008, but the National Insurance company has taken a specific stand that the said policy for the period from 6/9/2007 to 5/9/2008 was restricted and limited to the goods kept in the shop of the Respondent alone and the goods which were kept in the godown at Wadi were not at all insured by the cover under “Fire Insurance Policy”. Respondent/complainant has challenged this very aspect by challenging the repudiation letter sent by the Appellant National Insurance Company on 24/11/2009.
8. We have heard Shri.C.B.Pande learned advocate appearing for the Appellant. Shri.Pande, learned advocate has challenged the judgement and order dated 17/4/2014 passed by District Consumer Commission, Nagpur on various grounds, but mainly it is submitted by the learned Advocate for the Appellant that the learned District Consumer Commission, Nagpur has not appreciated the documents in a proper perspective. As observed earlier, there is no dispute that on 22/12/2007, there was total damage to the goods due to fire erupted in the godown of the complainant situated at Wadi, Amravati Road. Respondent/complainant has also placed on record one copy of the Spot Panchnama relating to the damage to the goods which was prepared on 23/12/2007. It is submitted by Shri.Pande, learned advocate for the Appellant that earlier the Respondent/complainant had taken two policies, one for the shop and another policy relating to goods kept in the godown situated at Wadi and the same was for the period from 4/8/2006 to 3/8/2007. Respondent/complainant had alleged that the goods kept in the shop as well as in the godown were duly hypothecated with United Commercial Bank, Sitabuldi Branch and the Respondent/complainant had also duly paid the premium regarding the policy and, thereafter, the policy was again renewed for the period from 6/9/2007 to 5/9/2008. At this stage Shri.Pande, learned advocate for the Appellant has drawn our attention to the earlier policy for the period from 4/8/2006 to 3/8/2007 as well as renewed policy for the period from 6/9/2007 to 5/9/2008. If we go through the earlier policy, one policy was taken for the shop of the complainant and another policy was taken for the goods kept at the godown No.11, Wadi, Amravati Road. Shri.Pande, learned advocate has drawn our attention to the insurance policy for the period from 6/9/2007 to 5/9/2008 a copy of which is taken on record. Further he has submitted before us that on perusal of the insurance policy for the period from 6/9/2007 to 5/9/2008 would go to reveal that the risk was covered by the appellant National Insurance Company for the goods kept in the shop only and not the godown situated at Wadi, where the fire had taken place. This fact has not been properly appreciated by the learned District Consumer Commission, Nagpur. Further it is submitted by the learned advocate that no premium was even paid for the policy in respect of the goods stored at the godown and so the National Insurance Company had rightly repudiated the claim as per letter dated 24/11/2009. Shri.Zinzarde, learned advocate appearing for Respondent/complainants has strongly rebutted these contentions and also denied that goods at Wadi were not duly insured by the National Insurance Company. According to the learned advocate for the Respondent/complainants, that Respondent/complainant has not only taken care to see that risk is duly covered but further the goods at Wadi were duly insured. As per the contention of the advocate for the Respondent No.1, it was the duty of not only the Appellant, but also the Respondent No.2 & 3 bank to see that the goods are duly insured once they were hypothecated and the premium was also duly paid. Learned advocate for the Respondent has contended before us that though earlier two separate policies were issued by National Insurance Company, one in respect of shop and the other was issued in respect of the godown situated at Wadi, but subsequently, no separate policies were issued and a composite policy was issued by National Insurance company and the premium was also duly received by it. But despite this, the appellant National Insurance Company had wrongly repudiated the claim. During the course of argument, the learned advocate for the Respondent has also drawn our attention to the insurance policy for the period from 6/9/2007 to 5/9/2008. Further the learned advocate for the Respondent has also submitted that in fact, the National Insurance Company had also deducted the premium from the account of the Complainant but the appellant Insurance company had falsely renewed the policy issuing cover of risk to the goods in the shop only. But it was in fact a composite insurance policy for the shop as well as for the godown. Learned advocate for the Respondent has pointed out that on the date of incidence i.e. on 22/12/2022 goods worth Rs.20 lac were stored in the godown which were duly insured. The surveyor appointed by the National Insurance company had assessed the same to the extent of Rs.15,32,820/-. In view of the submissions made, we have carefully gone through the copy of renewed policy for the period from 6/9/2007 to 5/9/2008 as well as copy of the survey report submitted by the Surveyor. Further during the course of arguments, the learned advocate for the Respondent has drawn our attention to the copy of one letter addressed by Respondent No.2 United Commercial Bank to the Manager, National Insurance Company dated 27/3/2008. If we go through this letter, United Commercial Bank had specifically pointed out to the Manager, National Insurance Company that two separate policies for the shop and godown should have been issued. Apart from this aspect, the learned advocate for the Respondent/complainant has also drawn our attention to the copy of affidavit of one Shri.Vinaykumar Patil stating that it was the Responsibility of National Insurance Company to issue separate policy for the godown and further the premium for the same had already been deducted. In the light of these documents contention of the Appellant that no premium was paid by the complainant or that the Insurance Policy did not cover the goods kept at the godown at Wadi, can not be accepted. We find that the learned District Consumer Commission, Nagpur has elaborately dealt with these aspects and we do not find any error in the said findings. Learned District Consumer Commission has further observed that looking to the facts that all the goods kept in the shop and godown were hypothecated with United Commercial Bank, it was the responsibility of the United Commercial Bank to see that proper insurance cover is issued for the goods at Wadi for loss of fire, theft etc. and the risk is duly covered. As such, in the light of observations made above, we do not find any substance in the contentions of the learned advocate for the appellant that the Learned District Consumer Commission, Nagpur has not properly appreciated the evidence adduced on record, and so, we pass the following order..
ORDER
- The appeal is dismissed.
- Copies of the order be supplied to the parties free of cost.
