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United India Insurance Co. Ltd. Koregaon Branch Soham Bldg., Rahimatpur Road, Koregaon, Dist. v/s M/s. Prinita Garments

    First Appeal No. 2309 of 1999 (Arisen out of Order Dated 02/11/1999 in Case No. 137 of 98 of District Satara)
    Decided On, 09 November 2011
    At, Maharashtra State Consumer Disputes Redressal Commission Mumbai
    For the Appellant Present: M.S. Pandit, Advocate. For the Respondent Present: None.

Judgment Text
1. This is an appeal filed by the insurance company against the order passed by the District Forum, Satara in Consumer Complaint No.137/98 decided on 02/11/1999. By allowing the complaint partly, the forum below directed the insurance company to pay to the complainant a sum of Rs.2,75,000/ for the loss sustained by the complainant in the shop with interest thereon @ 12 p.a. from 01/01/1998 till realisation to complainant and also directed to pay Rs.5,000/- towards compensation for mental torture & hardship and Rs.2,000/- towards costs.

2. The facts leading to the appeal may be stated as under:

The proprietor, M/sParinita Garments filed his consumer complaint through MR.Vidhyachandra Bhandari, R/o.Bhavani Peth, Satara against United India Insurance Co.Ltd. According to the complainant, he is tenant on the entire ground floor of the building situated at 247, Bhavani Peth, Satara. He carried on garment business since last 35 years. The complainant had insured the furniture and readymade garments in the said shop with the opponent by Policy No.161307/48/34/463/96 for the period from 24/03/1997 to 23/03/1998. According to the complainant, the owner of the said building was in possession of first and second floor. On 12/07/1997 and 13/07/1997, he commenced the work of demolition of the second floor and first floor without obtaining any permission, so also without informing the complainant. The said act of the owner of the building was malicious one and done in order to evict the complainant. The said demolition was carried out by the owner on the court holidays as order of injunction from the court would not be obtained. Soon thereafter, the complainant filed regular Civil Suit No.353/97 in the Court of Civil Judge (Sr.Dn.), Satara and an order of injunction was passed by the said court against the landlord. The complainant pleaded that the landlord removed the tin sheet roof above the second floor. The building consisted of wooden beams and columns, wooden flooring between first and second floor, so also between ground floor and first floor. Due to removal of tin sheet roof, there was heavy leakage of rain water in to the tenanted premises which damaged the furniture and garments in the shop. The damage caused to the complainant was due to malicious act of the landlord. He suffered loss of Rs.1,50,000/- in terms of loss of clothes and damage thereto and Rs.1,25,000/- in terms of furniture. The complainant, therefore, claimed total loss Rs.2,75,000/-. The complainant pleaded that he had lodged insurance claim with he insurance company and supplied all the documents and particulars, but by letter 31/03/1998, the opponent insurance company repudiated the claim and therefore he filed consumer complaint for recovering Rs.2,75,000/- as damage sustained and Rs.5,000/- towards mental hardship and costs.

3. The opponent insurance company contested the complaint by filing written version. According to the insurance company, there was long standing dispute pending in between complainant who was and is tenant in CTS No.247, Bhavani Peth, Satara of which Mr.Rajgopal Srinath Sarda is the landlord of the tenanted premises. Therefore, the insurance company contended that the damage caused to the complainant arose out of the dispute between the landlord and tenant which cannot be a subject matter of consumer dispute and therefore the complaint should be dismissed. It also pleaded that Satara Municipal Council and Rajgopal Sarda are also necessary parties and the complainant had disclosed that he has already filed Civil Suit No.353/97 in the Court of Civil Judge (Sr.Dn.) and injunction order was passed. Hence, the forum has no jurisdiction to entertain the complaint. The opponent contended that the complainant had taken policy for his furniture and stock of readymade garment for the period from 24/03/1997 to 23/03/1998. The opponent also admitted that the claim form was submitted by the complainant for the loss occurred between 12/07/1997 and 28/07/1997. After receiving claim form, they had appointed Nitin Joshi, as surveyor to assure the loss and enquire into reasons. He surveyed the shop on 14/08/1997 and submitted report that the loss was to the extent of Rs.70,871/- inclusive of salvage 50% stock assessed. The insurance company, however, repudiated the claim on the ground that cause of loss was due to dispute between the landlord and the tenant. It was arising out of malicious act of landlord of the complainant. Therefore, it was not liable to pay an amount claimed by the complainant. Hence, the claim was rightly repudiated by sending letter dated 31/03/1998. It also pleaded that the loss occurred was not due to sudden and unusual rain and because of malicious act of the landlord. It was usual rainy season. The complainant had suffered loss due to normal rain and therefore it was not covered under the policy.

4. Both the parties filed affidavits and documents. On considering the same, the forum below was pleased to hold that the repudiation of the claim lodged by the complainant was improper. The loss was caused to the complainant because of rain water entering into the premises of the complainant which was insured. The readymade garments and furniture kept in the insured premises was damaged due to rains and therefore, insurance company was guilty of deficiency in service in repudiating the claim of the complainant. It, therefore, directed that damage caused to the furniture, garments amounting Rs.1,25,234/- should be payable as per certificate issued by Nitin Sohoni interior designer of Satara. The forum below was of the view that the complainant was entitled to get the said sum from the insurance company and as such the forum directed insurance company to pay Rs.2,75,000/- for the damage suffered by the complainant to his furniture and readymade garments. The forum below also directed the insurance company to pay Rs.5,000/- towards compensation for mental torture and hardship and Rs.2,000/- towards costs. Aggrieved by the said order, the insurance company filed this appeal.

5. This appeal was filed in 1999 and it was unattended from pretty long time. We, therefore, issued notice to both the parties returnable on 25th August, 2011. On the said day, since court time was over, the matter was adjourned to today. Today, Adv.M.S.Pandit appeared for the insurance company, appellant herein. None for the respondent is present. We, therefore, decided to hear Adv.M.S.Pandit and dispose off the matter on merits. Adv.Pandit rightly submitted before us that the forum below granted compensation in excess of what has been estimated loss as per surveyor’s report. Surveyor, Nitin Joshi was appointed as surveyor after receiving intimation of loss from the complainant/respondent herein. He inspected premises of M/s.Parinita Garments and has arrived at the conclusion that the complainant was guilty of taking lesser insurance cover. Less insured margin was 30% was after assessing loss he deducted 10% and further deducted 50% of stock assessed because of salvage. According to the surveyor, the loss was to the extent of Rs.70,871/-. The surveyor mentioned in the clause of loss that the loss of stock and furniture taken due to rain and rain water came due to the pulleing down the top two floors. The surveyor noted in his survey report that for readymade garment insurance cover was for Rs.2,50,000/- and insurance for the furniture was Rs.50,000/-. This was also very clear from the insurance policy which clearly states that for the furniture insured sum was Rs.50,000/- and for all type of readymade garment insured sum was Rs.4,50,000/-and since there was under insurance and also salvage items, the surveyor recommended that the amount Rs.70,871/- would be proper assessment of the loss. As against this, while allowing the complaint, the forum below has given Rs.2,75,000/- as compensation for the damage sustained by the complainant on the basis of certificate issued by one surveyor, Nitin Sohony, interior designer on 08/09/1997. This certificate estimated the loss of furniture at Rs.1,24,234/-. However, as seen earlier the policy contained that insured sum for loss of furniture only Rs.50,000/-, but the forum below lavishly granted Rs.1,24,234/- as per report of Nitin Sohoni, who had not even filed affidavit in support of his report. The forum below also relied upon the damage caused to the garments as per the statement made by the complainant to the extent of Rs.1,50,000/-. However, the forum below did not taken into account the survey report. The surveyor is the expert in the field. He must be given due weightage and value. The surveyor has given various reasons why he arrived at Rs.70,871/-. There was margin of 30% of under insurance and there was margin of 50% salvage stock. The surveyor had asse

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ssed loss of the complainant to the extent of Rs.70,871/-. In our view, the compensation should have been awarded that amount only by the forum. By allowing this appeal partly, the damage will have to be reduced substantially in conformity with the survey report produced by the appellant insurance company and as such we are inclined to reduce the claim payable by insurance to Rs.70,871/- in place of Rs.2,75,000/- awarded by the forum below. To this extent, we are inclined to allow this appeal. Hence, the order. ORDER 1. Appeal is partly allowed. 2. Insurance company is directed to pay Rs.70,871/- in place of Rs.2,75,000/- as mentioned in clause 1 of the operative part of the order passed by the District Forum, Satara. 3. Rest of the order is kept intact. 4. This amount should be paid within 01 month from the receipt of the order by the appellant. 5. Copy of this judgement be sent to the parties free of cost.