The New India Assurance Co.Ltd., Through their Regional Office No.1 New India Bhavan, Bank Street, Mumbai Vs. Prerna Collections Shashikant Dubey Proprietor, Mumbai - Court Judgment

Excerpt:

Judgment:

Per Shri S.R. Khanzode, Honble Presiding Judicial Member

1. This appeal arises out of order/award dated 29/12/2007 passed in consumer complaint no.477/2006 Mr.Shashikant Dube-Proprietor of Prerna Collections V/s. Divisional Manager, The New India Assurance Co.Ltd. passed by South Mumbai District Consumer Forum (‘Forum below in short).

2. Respondent/org.complainant had taken Shopkeepers Insurance policy, which was issued by the appellant/org.O.P. Said Insurance Co. offered cover of Rs.4 lakhs covering inter-alia stock in trade as well as furniture and fixtures. On 26/7/2005 due to heavy rainfall the shop was flooded causing damage to the stock of readymade garments as well as furniture and fixture. On 29/7/2005, Insurance Co. was informed about loss of Rs.2,87,745/- and insurance claim was lodged. Insurance Co. appointed surveyor and on the basis of survey report repudiated the claim. Feeling aggrieved thereby consumer complaint was filed. Forum below partly allowed the complaint and awarded claim of Rs.2 lakhs with interest. Feeling aggrieved thereby O.P.-Insurance Co. preferred this appeal.

3. We heard Ms.Bhakti Barve-Advocate for the appellant and Mr.Kiran Patil-Advocate for Respondent. Perused the record.

4. We have carefully gone through the documents filed and made available to the surveyor as well as Insurance Company in support of the claim which inter-alia includes statement given to Income-tax authorities, record of the stock, bank record about the same and these documents are not disputed. The surveyor also found that there was stock worth Rs.2,50,000/- in the shop at the relevant time. However, mechanically they divided the stock of the value of Rs.73,070/- as a stock stacked upto 2½ feet level from the ground. Basis thereof and the rationality in adopting such method is not shown to us. In fact on each occasion i.e. in respect of the first surveyor as well as second surveyor when the Insurance Company repudiated the claim referring to such survey report, claimant had explained the factual situation in detail to them pointing out as to how the approach adopted by the surveyor and the Insurance Co. based on the survey reports is erroneous. Fact as to the hypothesis about 4 employees at the relevant time present in the shop, that when the water was keep raising, the shop keeper had removed the stock to the higher level to save it from the flood etc. were all categorically denied by the complainant. One of such communication is dated 27/11/2005 and its para 4 reads as under:-

“I deny that there were four Employees present on the day of incident. I have never employed more than two employee in my shop and both of them left early due to heavy rain. This is the reason why the stock was not shifted. I wish to point out that nobody have thought of such a massive disaster by flood otherwise there would not be such a great loss in Mumbai. I would like to mention that in the event I would have got an opportunity to shift the stock I would have done the same instead of applying for claim at the later date. I therefore disagree with the contentions of the surveyor as it was never expected that the water level will raise to such a great extend.”

5. In absence of any evidence to contrary, no reason to disbelieve statement of the claimant in respect of loss suffered. Surveyors report and the assessment of the loss by them being arbitrary, cannot be accepted. As such, repudiation of the claim by the Insurance Co. in toto is not proper. In case of repudiation, it is for the Insurance Co. to justify their repudiation and which they failed to do. Under the circumstances, view taken by the Forum below and consequently awarding claim to the extent of Rs.2 lakhs towards loss as well as amount of compensation awarded etc. cannot be faulted with. We find no reason to take a different view than the one taken by the District Consumer Forum. Holding accordingly and, thus, finding the appeal devoid of any substance, we pass following order:-

Order:

1. Appeal stands dismissed with cost of Rs.2000/-.

2. Misc. application stands disposed of.

3. Copies of the order be furnished to the parties.