R.K. Bishnoi, Judicial Member
1. Vide this order above mentioned two appeals bearing Nos.67 and 189 of 2016 will be disposed off as they have been preferred against the same order dated 17.12.2015 passed by Learned District Consumer Forum, Panipat (in short ‘District Forum’).
2. As per complainant he was running business in the name and style of M/s Mittal Wooltex as mentioned in the complaint. In the year 2010 he shifted his business from T-3 Industrial Area, Panipat to the present place at Kabri Road near Savita Gas Godown, Panipat. Premises and stock of raw-material/manufactured goods etc. were being got insured by opposite party (O.P.) No.1 i.e. Punjab National Bank from time to time from O.P.No.2 i.e. Oriental Insurance Company Limited and premium used to be debited in his account. Record about change of address of business from Industrial area to Kabri Road was in the custody of O.P.No.1. He also informed assessing authority of sale tax department about change of address in the year 2010. The insurance policy pertaining to 25.09.2012 to 24.09.2013 was in possession of O.P.No.1. During the intervening night of 19.05.2013 at about 2.00 a.m. fire broke out in his premises. He submitted his claim with O.Ps. for Rs.20,10,188.25/-, but, the same was rejected by O.P.No.2 vide letter dated 28.02.2014 on the ground that fire did not take place at the insured place. So, O.Ps. be directed to pay compensation to the tune of Rs.19,90,000/- alongwith interest thereupon.
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Both the O.Ps. filed separate replies denying their liability to pay any compensation.4. It was alleged by O.P.No.1 that insurance policy issued under cover note 308818 dated 19.09.2012 was issued for fire and Special Perils for Rs.15,00,000/- which was valid from 25.09.2012 to 24.09.2013. The risk covered by that policy was material stored in godown and silos storage category No.1 hazardous goods subject to warranty that goods listed in category NO.2 and 3 choir waste, choir fiber and cadies were not stored therein. Though address as T-3 Industrial Area Panipat was mentioned therein, but, complainant shifted his factory to Kabri Road, as mentioned above. O.P.No.2 was duly informed about this development with request to change address in the insurance policy. This fact was also brought to notice of S.K.Mehta Development Officer of O.P.No.2 at the time of renewal of this policy vide letters dated 05.10.2012 and 01.11.2012. O.P.No.2 was further requested to correct address. O.P.No.2 always inspect stock as well as premises of the insured, but, when this policy was renewed premises was not inspected. O.P.No.2 was legally bound to change address after receiving information. Even otherwise it was not responsible to get the hypothecated goods insured as per agreement executed in between it and complainant. So complainant was not entitled for any relief from it. Objections about maintainability of complaint, locus standi, estopple, act and conduct etc. were also raised and requested to dismiss complaint.5. It was alleged by O.P.No.2 that vide this policy stocks worth Rs.15,00,000/- was insured laying at T-3 Industrial Area, Panipat. Previous policies were also issued with this very address. It was never informed about change of place of business or the nature of business. As per complainant fire erupted in unit situated on Kabri Road, Panipat which was not insured premises. Under this policy stock was insured, but, complainant started manufacturing process, but, no information was given to this effect. In this way terms and conditions of insurance policy were also violated. Place of occurrence was inspected by M/s Singla Investigator and loss was assessed by Sh.B.S.Chawla Surveyor and loss assessor. As the premises of occurrence was not covered by insurance policy and complainant did not inform about change of business and violated terms and conditions of insurance policy, so his claim was rightly rejected vide letter dated 28.02.2014.6. After hearing both the parties learned District Forum allowed complaint vide impugned order dated 17.12.2015 and directed as under:-“We hereby allow the present complaint with a direction to opposite party No.2 i.e. insurance company to pay Rs.15,00,000/- with interest @ 9% per annum from the date of filing the complaint till its actual realization. Cost of litigation quantified at Rs.3300/- is also allowed to be paid by O.P.No.2 to the complainant.”7. Feeling aggrieved therefrom, Insurance Company as well as complainant have preferred appeals as mentioned above. Insurance company has alleged that it is not liable to pay compensation as mentioned in the repudiation letter and complainant has alleged that compensation granted by District Forum was on lower side and the same be enhanced.8. Arguments heard. File perused.9. Learned counsel for the complainant vehemently argued that the insured premises mentioned in insurance policy Ex.R-2 is T-3 Industrial Area, Panipat, but, actually he changed his business to the premises at Kabri Road, Panipat and information to this effect was duly given to O.P.No.1. Information to this effect was also given to department of Excise and Taxation vide letter dated 12.10.2010 Ex.C-4. As per letters dated 05.10.2012 Ex.R-3 and 01.11.2012 Ex.R-4 information was also sent by bank to insurance company about change of address. If the same was not incorporated in the policy he is not at the fault. The loss assessed by surveyor is on the lower side. He suffered loss of more than Rs.20,00,000/- lacs as mentioned in the complaint, but, learned District Forum has granted only Rs.15,00,000/-, so the same be enhanced to the tune of Rs.19,90,000/- alognwith the interest @ 18% per annum from the date of filing of the complaint.10. Learned counsel for the bank i.e. O.P.No.1 vehemently argued that vide letters Ex.R-3 and R-4 information was sent to insurance company about change of address. This fact was also brought to knowledge of it’s development officer S.K.Mehta at the time of renewal of said policy, but, even then address was not changed. There was no change in the type of business covered by insurance policy. O.P.No.2 has not produced S.K.Mehta or his affidavit to prove that no such document was handed over to him. So learned District Forum rightly fastened liability upon O.P.No.2 and it is not liable to pay any compensation.11. Learned counsel for insurance company- opposite party No.2 vehemently argued that it was never informed about change of address or business. Letters Ex.R-3 and R-4 were concocted by O.P.No.1 after the incidence of fire to escape from liability to pay any compensation. An application was filed before District forum to direct O.P. to produce any evidence about dispatch of these letters, but, no such evidence was produced. Rather it was alleged that these letters were handed over to representative of O.P.No.2 by hand, whereas no such evidence is available on the file. So, it is not liable to pay any compensation as opined by Tamil Nadu State commission in Manager, Tamilnadue Merchantile Bank ltd. vs A.X. Beski & anr. III (2003) CPJ 145. In this way there is no ambiguity that which premise was insured. When fire broke out in the different premise then covered by insurance policy, insured cannot ask for compensation as opined by Hon’ble National Commission in Shiv Confectionary House through its Sole Proprietor Vs. Bajaj Allianz General Insurance co., & Anr. 2013(3) CPC 589 and National Insurance co. Ltd. Vs. Venketshwera Distributor and another, 2011 CTJ 610 (CP) (NCDRC).12. After taking into consideration all facts and circumstances he came to the conclusion that complainant suffered loss to the tune of Rs.6,12,750/-. All the details are duly given in this report Ex.R-2/10. Complainant did not produce any record on the file to show that he suffered loss to the tune of Rs.20/- lacs as alleged by him. In the absence of any evidence it cannot be presumed as per his averments that the loss was to this extent. When there is no evidence controverting the findings of surveyor that cannot be ignored. It is well settled proposition of law that report of surveyor is on higher pedestral and cannot be ignored without any substantive evidence. Reference to this effect can be made to the opinion of Hon’ble Hon’ble National Commission expressed in case cited as Garg Acrylics Ltd., through Sh.Anish Bansal G.M. (G.M.) Authorised Representative vs. United India Insurance Co. Ltd., 2015 (1) CPR 273 (NC) weightage is to be given to surveyor’s report, but, not that fora can’t disagree with same. Relevant portion is as under:-“11…….. This is settled law that the report of the surveyor is to be given much more weightage than any other piece of evidence. See the law laid down in United India Insurance Co. Ltd. & Others Versus Roshan Lal Oil Mills Ltd. & Ors. (2000) to Supreme Court Cases 19 & in D.N.Badoni Vs. Oriental Insurance Co. Ltd. 1 (2012) C.P.J. 272 (NC)”In the oriental Insurance Co. Ltd., through its Regional Manager Vs. Ishwar Singh, 2015 (1) CPR 157 (NC), Hon’ble National Commission as observed in para Nos.11 and 17 as under:-“11. Counsel for the petitioner has also drawn our attention to the Apex Court judgement in the case Sri Venkateswara Syndicate Vs. Oriental Insurance Company Ltd., and another (2009) 8 Supreme Court Cases 507 wherein the Apex Court has held as under:-17. There is no disputing the fact that the surveyor/surveyors are appointed by the insurance company under the provisions of the Insurance Act and their reports are to be given due importance and one should have sufficient grounds not to agree with the assessment made by them.”In Sunanda Kishore Bhand & Anr. V. United India Insurance Co. Ltd. 1 (2014) CPJ 369 (NC), Hon’ble National Commission has observed thus:-“11. It is well settled law that a surveyor’s report has significant evidentiary value, unless is proved otherwise, which the complainant has failed to do so in the case. This view was taken in the case of D.N.Badoni Vs. Oriental Insurance Co. Ltd., I (2012) CPJ 272 (NC).Similar view was also expressed taken by Hon’ble National Commission in New India Assurance Co. Ltd. Vs. Pave Infrastructures Pvt. Ltd. 2015 (2) CPR 577 (NC). Learned District Forum failed to take notice of this law and granted compensation to the tune of Rs.15,00,000/- lacs.13. Now question comes about liability to pay compensation. As already mentioned above, it is clear that as per policy Ex.P-2 the insured premises was T-3 Industrial Area, Panipat whereas incident took place at Kabri Road, Panipat. Complainant as well as O.P.No.1 have miserably failed to show that insurance company was told about the change of address. It was not the first policy which was obtained by complainant, may be through O.P.No.2. He was obtaining policy in the previous years also and this very address was mentioned therein, which is clear from the perusal of Ex.R-2/4 for the period 25.09.2010 to 24.09.2011, R-2/5 for the period 25.09.2011 to 24.09.2012. Complainant is a business man and must have enquired about the insurance policy from the bank and must have gone through the same. He is not a layman who can allege that he was not aware about insurance policy. As per complainant he changed this address in the year 2010 and letter EX.C-4 was sent to the sales tax department about change of address, but, did not bother to inform insurance company about the same.14. Further not only the complainant, bank must have been aware about the address mentioned in Ex.R-2/4, Ex.R-2/5 why it did not request insurance company to change address of insured premises in these policies. Why it kept mum till the issuance of last policy, during subsistence of which this incident took place. Version of O.P. No.1 about giving information vide letters Ex.R-3 and R-4 is not believable. No dispatch number is mentioned in both these letters. Had these letters been issued by the bank them dispatch number must have been mentioned therein. It cannot be presumed that these letters were handed over to Sh.S.K.Mehta by hand because this fact is no where mentioned in these letters. In these letters it is simply mentioned that S.K.Mehta was requested to change the address but this plea is not proved. As already discussed above, when premises was changed in the year 2010 why request of correct address was not made when polices EX.R-2/4 and R-2/5 were issued in the previous years. All these facts clearly shows that no information was given by bank i.e. O.P.No.1 to the insurance company i.e. O.P.No.2 about change of address and change of business. In these circumstances there is lapse on the part of the bank and it is liable to pay compensation to complainant.15. As a sequel to above discussion impugned order dated 17.12.2015 is hereby set aside. The complainant is awarded compensation to the tune of Rs.6,12,750/- alognwith interest 09% from the date of filing of complaint till realization. He is also granted compensation of Rs.21,000/- for mental agony and physical harassment and Rs.5000/- as litigation expenses. This entire compensation is to be paid by O.P.No.1 and O.P.No.2 is not liable to pay any compensation.16. With this modification appeal stands disposed off.17. The opposite party No.1-appellant is directed to fix the responsibility to the concerned official, who was responsible for delay and loss suffered by department be recovered from the concerned employee as per opinion of Hon’ble Supreme Court expressed in Oriental Aroma Chemical Industries Ltd. Vs.Gujarat Industrial Development Corporationreported in (2010) 5 SCC 459 andLucknow Development Authority V. M.K.Gupta, AIR 1994 SC 787.Hon’ble Supreme Court has observed in Lucknow Development Authority V. M.K.Gupta (Supra) as under:-“When the Court directs payment of damages or compensation against the State the ultimate sufferer is the common man. It is the tax payer’s money which is paid for inaction of those who are entrusted under the Act to discharge their duties in accordance with law. It is, therefore, necessary that the Commission when it is satisfied that a complainant is entitled to compensation for harassment or mental agony or oppression, which finding of course should be recorded carefully on material and convincing circumstances and not lightly, then it should further direct the department concerned to pay the amount to the complainant from the public fund ‘immediately’ but to recover the same from those who are found responsible for such unpardonable behavior by dividing it proportionately where there are more than one functionaries.”18. The statutory amount of Rs.25,000/- deposited at the time of filing of the appeal bearing No.67 of 2016 be refunded to the appellant against proper receipt and due verification.19. The original judgement be attached with appeal No.67 of 2016 and certified copies be attached with appeal No.189 of 2016.