State Consumer Disputes Redressal Commission
Andaman & Nicobar Islands
Port Blair
Present : Justice P.N. Sinha, President
Shri Bimal Behari Chakravarty, Member
Appeal No. 3 of 2009
M/s, New Tamil Nadu Medicals,
Represented by through its Proprietor Smti. S.Shanti,
W/o Late C. Subramaniam, Meshak Market, Port Blair.
Appellant
The Manager, United India Insurance Company,
Branch Office 1st Floor, Police Gurudwara Building,
Port Blair, Andaman.
Respondent
JUDGEMENT
Dated: 24.12.09
The appellant has preferred this appeal being aggrieved by and dissatisfied with the order of the District Consumer Disputes Redressal Forum, Port Blair (hereinafter called the District Forum) dated 27.05.09 passed in C.D.Case No.44 of 2005 by which order his complaint was dismissed.
The appellant’s case, in short, before the District Forum was that he is a partner of Medical shop situated at Meshack Market, Aberdeen Bazzar, Port Blair under the name and style New Tamil Nadu Medicals. He had insured the shop with the respondent United India and Insurance Company for Rs. 25,00,000/- (Rupees Twenty Five Lakhs) under Policy No.031101/11/03/02248 and the period of Insurance was from 01.02.04 till 31.01.05. On 26.12.04 these Islands were hit by devastating earthquake due to which appellant’s shop was severely damaged and on 05.01.05 he gave an intimation to the respondent and made a claim for assessing the loss and to pay him the amount for which he sustained the loss due to damage of huge number of medicines. Accordingly, the respondent sent surveyor and the damage was assessed to the tune of Rs.3,47,067.05/-. The said documents together with the intimation were again submitted to the respondent on 12.01.05. In spite of the receipt of his claim the respondent did not clear his claim for which he sent a legal notice dated 07.11.05. The respondent intimated him that they would soon sent reply but, did not give any reply and the respondent was reluctant to clear the claim made by him. Accordingly, he lodged the complaint before the District Forum claiming total compensation of Rs. 4,52,067.00 including compensation for mental agony/inconvenience and cost of litigation.
The respondent who was the opposite party before the District Forum contested the complaint by filing written objection and denied all the material averments of the complaint. The respondent inter-alia contented that, these Islands were hit by severe earthquake and Tsunami on 26.12.04 and there were damages all over the Islands. Acting on the complaint of complainant on 21.01.05 survey with regard to the claim of the complainant was done by surveyor Mr.Manohar Lall in presence of Mr.Sen Gupta of M/s S.N.Associates. During survey on physical verification it was found that 60% of the medicines placed for physical verification had already expired and the rest 40% of the medicines were removed from the respective racks and placed on the floor but there was no damage at all. After the inspection it was intimated to the appellant that he had made a false claim and also committed blunder by preserving expired medicines and making a false claim over such expired medicines. The appellant on the spot by making necessary endorsement on the list of items i.e. list of medicines damaged submitted by him disclosed that he has withdrawn his claim. Besides that, the places where the alleged damage was shown was also not covered under the policy. On 21.01.05 on the spot minutes of the survey was prepared in the presence of the appellant and surveyors and during such preparation of minutes the complainant again informed the surveyors about his intention to withdraw the claim and as such the report was prepared by surveyor. As the complainant made a false claim and subsequently withdrew his claim the complaint should be dismissed.
The District Forum on the basis of oral and documentary evidence adduced by the parties came to the conclusion that the complaint is not maintainable and dismissed the complaint. The dismissal of complaint resulted into this appeal. We have carefully perused the evidence of the witnesses and materials on record and duly considered the submissions made by the learned advocates for the parties. It is evident from the record of the District Forum that on behalf of appellant PW-I C.Subramanian was examined and on behalf of respondent two witnesses were examined namely, O.P.W-I Mr.R.Devraj and O.P.W–2 Mr.Manohar Lall. Documents marked as 1 to 6 were admitted in evidence on behalf of appellant whereas documents marked as exhibits- A to F were admitted in evidence on behalf of respondent.
Mr.D.Illango, the learned advocate for the appellant submitted before us that the Insurance Company has taken the plea very late that the shop was not insured. The respondent Insurance Company would have disclosed it when the complainant served the respondent with a legal notice. If the shop or premises in question was not insured why the respondent Insurance Company made inspection and prepared a joint minute of inspection. It is also not clear why they took premium from the appellant when they are now taking the plea that the shop in question was not insured with the respondent company. This plea has been taken up by the respondent only to avoid the claim made by the appellant.
Mr.Tulsi Lall, the learned advocate for the respondent submitted that in the complaint petition the shop number was given 50, Meschak Market. In the Insurance policy marked as exhibit-2 the premises which was insured has been mentioned as 59 Meschak Market. After the earthquake on 26.12.04 the claim petition in which names of medicines which were damaged were mentioned in the pad of the appellant the shop number has been mentioned as S-9 Meshak Market. It is clear that at three different places complaint has mentioned three different shops numbers. Moreover, the inspection by the Surveyor was done on the prayer of appellant and survey was done on the premises as shown by the appellant. The legal principle is that a complainant must establish his case and he cannot take the advantage of defect of other side. The responsibility was on the complainant to show that which one was the shop that was insured with the respondent and the appellant or her husband failed to establish it convincingly that which shop was insured.
We are unable to agree with the views of Mr.Tulsi Lall, the learned advocate for the respondent and at the same time we do not appreciate the submissions made by the learned advocate for the appellant. The appellant is running his business of medicines and why he would be so indifferent that at three places three different shop numbers would appear. There must be a limit of mistakes and such a mistake from a business man is not expected. In the complaint the shop number was shown as 50 Meshak Market, in the Insurance policy marked as exhibit 2 including the fire accident intimation form marked exhibit-1 the shop number has been mentioned as 59, Meshak Market. Exhibit ‘A’ series and exhibit ‘B’ series and exhibit ‘C’ which is the claim intimation letter are on pad of the shop of the shop of appellant and in these papers at the top of pad shop number has been mentioned as ‘S-9’. Be that as it may, it is clear that the respondent has taken premium from the appellant. When the Insurance Company accepted premium for insured premises, the Insurance company now taking advantage of different shop numbers cannot raise the plea that the premises was not insured. The respondent Company should have raised such objection when the first agreement of Insurance was made by the appellant when he insured his shop with the respondent company. Such a flimsy plea that premises is not tallying though the Insurance Company has taken premium from appellant is not acceptable. Accordingly, we find that repudiation of the claim on the ground that the premises in question is not insured is not acceptable to us. The Insurance Company must consider reopening of the claim made by the appellant, if the claim is not barred otherwise and the complaint before the District Forum is not entertainable.
Mr.D.Illango next contend that the respondent did not give reply to the legal notice (exhibit-5) dated 07.11.05 served by the appellant to the respondent and inspite of negotiation made by the appellant the respondent repudiated the claim. Such in action by the respondent clearly establishes that there was deficiency in service on the part of the respondent and for this compensation should be allowed to the appellant. Mr.Tulsi Lall, the learned advocate for the respondent in reply submitted that during inspection it was found that most of the medicines had expired and that the appellant withdrew his claim and for this there was no need to send a long reply to the legal notice of appellant. In the survey report and in the written objection submitted before the District Forum the respondent had mentioned in details about its case. Moreover, the submission that no reply was given to the legal notice is not true as respondent through it’s advocate sent a reply dated 25.11.05 which was addressed to the learned advocate for appellant and the said reply is exhibit-6.
After considering the submissions made by the learned advocates for the parties we find that the respondent sent a reply to the legal notice served on it by the appellant and such reply is exhibit-6. It is true that such reply was short and did not cover all the points which were mentioned by the appellant in his legal notice but, that itself is not a ground come to the conclusion that there was deficiency in service on the part of respondent for not giving a detailed reply to the legal notice. In exhibit-6 the respondent clearly mentioned that the legal notice was under scrutiny and shortly reply would be sent. It is true that further reply was not sent by respondent and the respondent discussed its case mainly through the written objection submitted before the District Forum. We have already indicated that this cannot be ground for coming to the conclusion that there was deficiency in service on the part of the respondent and for this compensation cannot be awarded to the appellant.
Mr.Illango next contented that the respondent had asked the husband of the appellant to give some copies of blank letter pad affixing his signature without mentioning anything on such letter pads. The alleged withdrawal of claim made by the late husband of appellant appearing on documents marked as exhibits-‘A’ and ‘B’ are creation over such blank letter pads with signature of appellant’s late husband C.Subramaniam. He submitted that the joint minutes prepared by Mr. Manohar Lall cannot be relied upon as on it there is no signature of Mr.Manohar Lall. The endorsement showing withdrawal of claim appearing on exhibit-‘A’ and ‘B’ were not the handwriting of C.Subramaniam, late husband of appellant and the endorsement on exhibit-‘A’ & ‘B’ were written by Mr.Manohar Lall. When late husband of appellant made the claim why he would withdrew his claim is not clear; and had there been any such desire to withdrew his claim he would not have filed the complaint against the respondent before the District Forum. The story of withdrawal of claim by C.Subramaniam, late husband of appellant cannot be relied upon and such documents are not binding on appellant. The District Forum without considering the evidence and manner of preparation of such documents dismissed the complaint without applying judicial mind. The order passed by the District Forum being not in accordance with law should be set aside.
On the contrary, Mr.Tulsi Lall, the learned advocate for the respondent submitted that not only on exhibit-‘A’ and ‘B’ but on survey report marked as exhibit-‘F’ it has been clearly mentioned that C.Subramaniam, the late partner of New Tamil Nadu Medicals withdrew his claim by making necessary endorsement. The survey report was prepared by O.P.W-2 Mr.Manohar Lall and it bears his signature. The survey report as well as joint minutes revealed that 60% of the medicines were expired and there was no damage to the balance 40% of medicines and for this reason the respondent company did not consider the claim. Moreover, C.Subramaniam, who made the claim himself, withdrew his claim and as such there was no ground to consider the claim and it was rightly repudiated by the respondent. The District Forum made no mistake by placing reliance of such endorsement of husband of present appellant regarding withdrawal of claim.
It should be remembered that the Consumer Forums cannot enter into detailed discussion of a dispute fact where special class of evidence is required to consider whether a purported document was obtained by undue influence, coercion, misrepresentation etc. Other forums including civil court can enter into discussion of such evidence while considering in a suit for declaration that a particular document be declared not binding on the applicant on the ground of obtaining such documents either by undue influence or coercion or by misrepresentation. The allegation of appellant that the signatures of C.Subramaniam were taken on blank letter pads cannot be decided by this Commission or by the District Forum. The husband of the present appellant was a businessman and, if he had the suspicion that such letter pads demanded by respondent would be converted into some document like the alleged withdrawal of claim he ought to have informed the police about such action of respondent. C.Subramaniam, late husband of present appellant ought to have moved other forum or the Civil Court for declaration that joint minutes, the survey report dated 21.01.05 and his signature over alleged withdrawal of claim appearing on his claim dated 26.12.04 were not binding upon him as those were obtained exercising undue influence or misrepresentation on him. Detailed discussion of evidence is necessary to decide a question whether a purported document was created by exercising undue influence and evidence to that fact is required in detail to make out such a claim and only Civil Court can decide such issues and can enter into discussion of evidence on such fact and the Consumer Forums cannot enter into such discussion of complicated facts. Accordingly, at this stage we do not find ground to disbelieve the endorsement appearing on joint minute marked as exhibit-A, the endorsement appearing on the claim bill dated 26.12.04 (exhibit-‘B’) and the survey report (exhibit-‘F’). These documents establish that C.Subramaniam, late husband of present appellant by making necessary endorsement withdrew his claim. If the claimant himself withdraws the claim, the Insurance Company cannot be held responsible for repudiating claim without any reason and over this matter there cannot be any deficiency of service on the part of the Insurance Company. In the present matter accordingly, we do not find any deficiency of service on the part of the respondent. Though there is no signature of Mr.Manohar Lall on joint minutes still the survey report marked as exhibit-‘F’ makes clear everything where the observations made by the inspection party has been mentioned and the survey report prepared by Mr.Manohar Lall also bears signature of him and inside the survey report it has been clearly stated that C.Subramaniam withdrew his claim by making endorsement in the claim application dated 26.12.04. Even if no reliance can be placed on exhibit-‘A’, the exhibit-‘F’ makes clear that the appellant withdrew his claim and there was no deficiency in service by respondent when it repudiated claim of late husband of appellant on the basis of such withdrawal of claim.
The National Commission in Jagdamba Foods Ltd. Vs. New India Assurance Company Ltd. reported in 2009 C.T.J 1137 relying on it’s earlier decisions in National Insurance Company Vs. New Patiala Trading Company reported in 2002 C.T.J 516 and Kamla Devi Kanakani Vs. United India Insurance reported in 1 (2003) C.P.J.282 held that, “An insurance surveyor is an independent body appointed by an insurance company. Prima facie, credence will have to be given to his report”. We are bound to follow the law laid down by the National Commission. It is thus clear that report of surveyor in this matter marked as exhibit ‘F’ cannot be disbelieved unless it is established that such report was based on fraud or was full of suppression of fact or was prepared to malign the appellant. The appellant if wants to throw this survey report out of purview of Consumer Forum has to move either the civil court or other forum for declaration that such report was based on fraud and misrepresentation by leading proper evidence to establish fraud.
We now like to discuss some part of evidence as it would be important in this appeal. According to complainant he made the claim on 05.01.05 whereas the respondent’s contention was that the claim was preferred on 11.01.05. Exhibit-‘3’ is the claim intimation letter submitted by C.Subramaniam and it is dated 11.01.05. Exhibit-‘C’ is the identical letter of exhibit-3. In cross-examination PW-I stated that his shop number is 9. According to PW-I no actual inspection was made by the Insurance Company but in paragraphs 9 and 12 of his examination-in-chief on Affidavit it was revealed that surveyor was sent by the respondent. Accordingly his denial in cross-examination that two persons did not come to survey his shop is not true. In cross-examination he identified his signature over joint minutes as well as his signature over the claim bill dated 26.12.05 and such signatures were marked as exhibit-‘A’ and exhibit-‘B’ in respectively. We have already indicated that this Commission or Consumer Forums cannot decide the issues like declaring a document not binding on the complainant and further declaration that such document was obtained either by undue influence or misrepresentation. The manner of obtaining such declaration vests with other forums including Civil Court and an applicant has to lead evidence to that effect in order to establish his such contention. Accordingly, we find that District Forum rightly came to the conclusion that the complaint is not maintainable. We also find that the present complaint is not maintainable. The appellant complainant is at liberty to move other forum or the Civil Court to seek her redress and for obtaining necessary declarations.
In view of the discussions made above we find that the present appeal has no merit and accordingly we dismiss the appeal. The dismissal of this appeal, of course, would not create a bar on the respondent Insurance Company to reopen the claim of appellant as discussed by us earlier and to settle the claim, if the respondent so likes.
There will be no order as to costs and parties do bear their respective costs for this appeal.
Send down the records of C.D.Case No.44 of 2005 along with a copy of this judgment to the District Forum, Port Blair for information and necessary action.
A copy of this judgment may be supplied to the learned advocates for the parties.
