Usha S. Thakare, Presiding Judicial Member
1. Being aggrieved by the order passed by Learned District Forum, Jalgaon in Consumer Complaint No. 177/2012 dated 30.6.2012 original opponent/insurance company has filed present appeal.
2. By the impugned order Learned District Forum was pleased to allow consumer case partly. The opponent insurance company is directed to pay amount of Rs .4,50,000/- to the complainant/respondent under contract of insurance in view of insurance policy. It is further directed to the opponent to pay amount of Rs. 5,000/- towards compensation for mental agony and amount of Rs. 3,000/- towards cost of litigation. Direction is given to pay the due amount within 30 days from the date of order, otherwise amount will carry interest at the rate of 9% p.a. from the date of filing of complaint i.e. 30.6.2012.
3. Facts giving rise to present appeal in short are as under:—
4. Complainant Maharashtra Auto parts, Jalgaon had filed Consumer Complaint bearing No. 177/2012 against the opponent insurance company by alleging deficiency in service under Section 12 in Consumer Protection Act, 1986. Proprietor Rais Bhikan Patel is owner of Maharashtra Auto Parts, Jalgaon, shop bearing No. 3 which is registered as per the provision of Shop Act and registration number is 1/20268. Spare parts of two wheeler are kept in the shop for sale. The complainant does the repairing and servicing of vehicles. Therefore, the complainant had kept stock of two wheelers spare parts and oils of different kinds in the shop. If the vehicle is not repaired within time by the complainant then he has to keep the vehicle during night oversee in the shop. The complainant had taken insurance policy from the opponent as per policy No. 311000/48/11/34/00000056 for the period of 1.4.2011 to 31.3.2012 to indemnify the loss which may occur in future.
5. It is submitted that, on 25.11.2011 there was an incident of fire in a shop. In said fire air compressor, tool kit, tool guns 3 in numbers, oil barrels, accessories of two wheelers, L pipe box and two wheelers were damaged in a shop No. 3. The information of the incident is given to police by filing F.I.R. Claim was filed in the insurance company for claiming damage under insurance policy, with necessary documents. Documents were also given as per the demand of surveyor. The complainant suffered loss of Rs. 6.99.500/-. The opponent assured complainant to give the claim. However the claim of the complainant was repudiated by later dated 15.6.2011 on the grounds that, place where the fire was occurred is not covered under the insurance policy. It is alleged that genuine claim of the complainant is repudiated by the opponent and as such opponent is guilty of deficiency in service. Hence complainant had filed consumer complaint for getting claim from the opponent.
6. The opponent had opposed the claim by filing written statement and denied all the adverse allegations. It is specifically denied that fire was taken placed at shop No. 3. It is submitted that accidental fire was taken place in shop Nos. 78 and 73. Those shops were not insured under the policy. The complainant has made false submission that he has suffered damages due to fire in shop No. 3. The opponent has appointed surveyor Shekhar Malharrao who did survey and submitted his report by observing that fire was taken place in shop Nos. 78 and 73. The complainant is not entitled to put claim under insurance policy as those shops were not insured. The opponent has also deputed investigator Adv. Nitin Tembulkar who personally visited spot and filed investigation report. He also confirmed that fire was occurred in shop No. 78 and 73. Under these circumstances the opponent/insurance company has requested to dismiss the consumer complaint with cost.
7. Both the parties had filed affidavits of evidence. The complainant/respondent has relied on police papers, copy of insurance policy, certificate issued by Jalgaon Municipal Corporation, license issued under Shop Act and extract of purchase register from 1.4.2011 to 25.12.2011, receipt issued by Market Committee, application dated 21.1.2008 filed by Champak Rupani, affidavit of Champak Rupani and another documents to establish his possession over shop No. 3, Respondent/opponent has relied on affidavit of surveyor, affidavit of investigator and their reports.
8. After considering the evidence on record and after giving thoughtful consideration to the argument advanced by both parties, the Learned District Forum was pleased to allow the consumer complaint. The Learned District Forum held that opponent insurance company is guilty of deficiency in service and passed the order dated 1.12.2015. Hence, the dis-satisfied opponent is before us in this appeal.
9. Heard Learned Counsel Smt. Purnpatre for the appellant. It is urged that order passed by Learned District Forum is illegal, incorrect and against the facts and merit of the case. The learned District Forum committed error in keeping reliance on police papers and failed to give weightage to report of surveyor and investigator. There is strong evidence on record to hold that fire was taken place in shop Nos.78 and 73 which are not insured. The complainant to get amount of insurance claim, had deliberately shown that fire was taken place in shop No. 3 which was insured. Learned Counsel Mrs. Purnpatre has requested to set aside illegal order by allowing present appeal to avoid injustice.
10. Learned Counsel Mr. Bhangale for the respondent has supported the order and findings of the Learned District Forum and has requested to dismiss the appeal for want of merit.
11. The main grievance of the appellant is that the complainant/respondent failed to substantiate that incident of fire was occurred at shop No. 3 which is insured. It is to be ascertained on the basis of available evidence and documents whether damage was caused due to fire at shop No. 3 or at shop Nos.78 and 73.
12. Proprietor Rais Bhikan Patel on oath has stated that the incident of fire was taken place at shop No. 3 situated at Sureshdada Complex, Ajintha Road, Jalgaon.
13. Complainant Rais Patel had filed report of incident in M.I.D.C. Police station. On filing report, F.I.R. No. 11 was registered at M.I.D.C. police station. During investigation of crime spot panchnama was prepared. That panchnama was prepared in presence of Panchas. It is observed at the time of panchnama that articles lying in the shop No. 3 were destroyed due to fire and the complainant sustained damages. It was found that spare parts of motorcycle, air compressor, tool kit, tool guns, oil barrels, accessories, boxes of Castrol oil, boxes of Volvo oil and other spare parts were found in half burnt condition in the shop. Nine vehicles (two wheelers) present in the shop were burnt. Immediate narration of incident to police and immediate filing of report of incident corroborate version of complainant Rais.
14. It is urged on behalf of the appellant that spot was shown by the complainant. He had disclosed to police that the number of shop is 3, as it was insured. We do not find substance in the argument, advanced on behalf of the appellant. Police machinery is an independent authority. Police machinery has no reason to mention spot of incident as shop No. 3 on the say of the complainant.
15. Admittedly after fire, fire brigade was called on the spot. Fire fighters extinguished fire. Fire brigade officer issued certificate on 5.1.2012 and certified that shop of incident was shop No. 3, which is in front of Kashinath Hotel, at Sureshdada Jain Complex. There is no reason for fire brigade authority to quote incorrect number of shop on direction of the complainant/respondent.
l6. Registration Certificate of shop also discloses that Proprietor Rais Bhikan Patel runs business of sale of auto parts, distil water, chemicals in shop No. 3. The independent authorities have supported the version that fire was taken place at shop No. 3.
17. It is not in dispute that shop No. 3 was in possession of respondent Rais. Shop No. 3 was transferred to Proprietor Rais Patel on lease.
18. Learned Counsel Mrs. Purnpatre has drawn our attention to survey report on 2.3.2012. She has also drawn our attention to the observation of the surveyor made in survey report. Learned Advocate tried to impress that fire was occurred in shop Nos. 73 and 78. Survey report is of the premises where the mishap occurred comprises in two shops having shop No. 78 on front side and shop No. 73 on rear side. Both these shops are combined by removing in between walls. The surveyor assessed the loss to the tune of Rs. 1,49,500/- but the surveyor opined that loss is not payable as the insurer did not submit relevant documents for ascertaining the loss and the said premises is not insured.
19. Shop No. 78 and 73 are on backside of shop No. 3 as per map which is given in spot panchanama. Heap of garbage was on backside of shop No. 3. Damage was caused due to accidental fire. Heap of garbage was burnt. Ultimately said fire caused damage to the articles lying in shop No. 3. Shop No. 3 was more closer to garbage. Hence, it can be concluded that the incident of fire was taken place at shop No. 3.
20. The surveyor made bold allegations that the insured had removed the Numbers of 5-6 shops by black paint. However there is no evidence that the respondent/complainant applied black paint on numbers of the shop From survey report it is difficult to ascertain how surveyor reached to this conclusion. Survey report is submitted on 2.3.2012, incident of fire was occurred on 26.12.2011. There is in ordinate delay in submitting report by this surveyor.
21. The insurance company had already appointed surveyor still the appellant insurance company found it necessary to appoint Adv. Nitin V. Rembotkar as an investigator. It is not explained as to why appellant felt it necessary to appoint second surveyor/investigator. Investigator Adv. Rembotkar does not state as to when he was appointed by the appellant for investigation. He has not stated as to when he inspected the premises and the nature of enquiry earned out by him. His report is silent from
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whom he had obtained information about the incident. The report pertaining to incident dated 25.12.2011 is filed on 8.6.2012. There is no explanation as to why there is in ordinate delay in submitting the report. Evidence adduced on behalf of the appellant insurance company does not impress us to hold that incident of fire was taken place in shop No. 73 and 78 On the other hand reliable evidence filed by the complainant/respondent is trust worthy to hold that the incident of fire occurred at shop 22. To substantiate loss the respondent has placed reliance on extract of purchase register. While granting the relief Learned District Forum excluded value of articles which were not insured. The Learned District Forum rightly appreciated evidence on record in it's proper perspective and correctly assessed the loss. The order passed by the Learned District Forum is just legal and correct. It requires no interference. As a result appeal deserves to be dismissed. With this view we pass the following ORDER 1. Appeal is dismissed. 2. Parties to bear their own cost of appeal. Appeal dismissed.