Judgment:
Dr. B.C. Gupta, Member
This revision petition has been filed under section 21(b) of the Consumer Protection Act, 1986 against the impugned order dated 31.10.2012, passed by the Punjab State Consumer Disputes Redressal Commission (for short the State Commission) in FA No. 1078/2008, œThe New India Assurance Co. Ltd. versus Jaspal Kaur,? vide which, while dismissing the appeal, the order dated 07.07.2008 in consumer complaint no. 66/2008, passed by the District Consumer Disputes Redressal Forum, Ropar, allowing the said complaint, was upheld.
2. Brief facts of the case are that the complainant/respondent Jaspal Kaur is the owner of shop no. 126 at Janta Market, Phase 3B-1 at Mohali. She obtained fire and special peril policy for insurance of her stock and khokha for an amount of Rs.3.25 lakh and Rs.25000/- respectively from the petitioner. Policy No. 352300/11/06/00000441 was obtained by paying a premium of Rs.2495/-. On 01.06.2007, fire broke out in the market where the said shop was situated and the stock as well as the shop was burnt. An intimation was given to the insurance company about the said incident, but the insurance claim was not paid, despite approaching the officials of the insurance company many a time. A registered notice was also sent to the OP Insurance Company on 04.02.2008, but still, the claim was not paid. Smt. Jaspal Kaur, then filed the consumer complaint in question before the District Forum. In their written statement, filed before the District Forum, the petitioner insurance company stated that the complainant was the owner of the said khokha, but the stock within the premises of the shop, belonged to her son Harminder Singh, who was running the business in the name of M/s. Fashion Centre by combining three shops, i.e., Shop No. 125, belonging to Harminder Singh, Shop No. 126 belonging to Jaspal Kaur and Shop No. 319 belonging to Kamal Kumar. Since the stock belonged to Harminder Singh, Jaspal Kaur was not entitled to get the said claim. The District Forum, after taking into account the evidence of the parties reached the conclusion vide order dated 07.07.2008 that since there was stock lying in the said premises at the time of fire, the insured was entitled to get the claim, irrespective of the fact whether the stock belonged to her or not. Further, Harminder Singh was the son of Jaspal Kaur and hence, they were liable to be given the claim. The District Forum directed the petitioner company to pay the claim amount of Rs.2,91,440/- for shop no. 126 to the complainant alongwith interest @9% p.a. from the date, the surveyors report was submitted, till realisation. It was also ordered that a sum of Rs.1000/- should be paid as cost of litigation to the complainant/respondent. An appeal was filed by the insurance company before the State Commission against this order of the District Forum dated 07.07.2008. Vide impugned order dated 31.10.2012, the State Commission decided two appeals, FA No. 1077/2008, œNew India Assurance Company and Ors. versus Kamal Kumar? and FA No. 1078/2008, œNew India Assurance Company and Ors. versus Jaspal Kaur?. The State Commission accepted appeal no. 1077/2008 in Kamal Kumars case, set aside the order passed by the District Forum and dismissed the complaint filed by the complainants. However, in FA No. 1078/2008 relating to Jaspal Kaur, the State Commission took a different view and dismissed the appeal of the insurance company and confirmed the orders passed by the District Forum. It is against this order that the present petition has been made.
3. At the time of hearing before us, the learned counsel for the petitioner Insurance Company has drawn our attention to a report submitted by Sanjay Gupta, Surveyor and loss assessor, dated 28.07.2007, saying that it had been clearly brought out in the said report that the owner of the Shop No. 126, Jaspal Kaur, had given her shop to Harminder Singh, son of the insured and the stocks in the premises belonged to M/s Fashion Centre and hence, the insured did not have any insurable interest in the stocks. The surveyor stated that the insurer was liable to pay for damage to the Khoka only to the respondent/complainant. The learned counsel argued that this contention of the surveyor was supported by statement of Harminder Singh himself, in which he had clearly admitted that he was the proprietor of M/s. Fashion Centre, and doing his business from Shop No. 125, 126 and 319 at Janta Market, Phase 3B-1 at Mohali. Harminder Singh had also stated that shop no. 126 was given to him by his mother Jaspal Kaur. The learned counsel stated that the view taken by the District Forum that the complainant was eligible to get the insurance claim, even if the stocks did not belong to her, was not a correct view. The learned counsel also stated that although the State Commission had decided two appeals by one common order, but they had taken different views in the two cases and hence, the order passed by the State Commission was not sustainable.
4. The learned counsel for the complainant/respondent stated that the insurance policy had been taken for the stock as well as for khokha. The insurance company was, therefore, liable to make payment for loss of stocks as well. The learned counsel has also drawn our attention to the orders passed by the Honble High Court of Jammu and Kashmir in œOriental Insurance Company versus Sham Lal Mattoo? [as reported in (AIR 2006 JandK 103)], in which it has been stated as follows:-
œA contract of fire insurance as in the present case requires an insurable interest in the subject matter and the test of determination of that interest is whether the loss of property would cause a pecuniary loss to the insured and whether he would have attained any pecuniary benefit or advantage from preservation of the insured property. If the insured would suffer the loss or derive the benefit he would be having an insurable interest in the subject matter of the insurance contract which was good enough to entitle him to the assessed loss. What was the extent of his interest and whether he was with full or part of the property was irrelevant for the purposes of settling his claim. Because the Insurance of the subject matter and its ownership may not necessarily go together. They may be insurance to cover the interest of others and the person insuring the interest may not be the owner of the property.?
5. The learned counsel argued that in the present case, the complainant/respondent could not be denied claim, saying that she had no insurable interest in the matter.
6. We have examined the entire material on record and given a thoughtful consideration to the arguments advanced before us.
7. From the facts on record, it is made out undisputedly that Harminder Singh who is the son of Jaspal Kaur complainant/respondent, is running his business at three shops, namely, shop no. 125, 126 and 319, in the name of Fashion House. Out of these premises, shop no. 125, belongs to Harminder Singh, shop no. 126 belongs to Jaspal Kaur and shop no. 319 belongs to Kamal Kumar. Three different policies have been taken for three premises, namely, Policy No. 352300/11/06/00000440 for shop no. 125 of Harminder Singh, Policy No. 352300/11/06/00000441 for shop no. 126 of Jaspal Kaur and Policy No. 352300/11/06/00000442 for shop no. 319 of Kamal Kumar. Now, coming to the case of Kamal Kumar for shop No. 319, the District Forum allowed the complaint and directed the insurance company to pay Rs.1,15,000/- for the stock in shop no. 319 to Harminder Singh alongwith interest @9% p.a. The said order was, however, reversed by the State Commission vide impugned order dated 31.10.2012 and the consumer complaint, in question, was ordered to be dismissed.
8. Regarding the other two premises no. 125 and 126, it is clear from the report of the surveyor Sanjay Gupta that he assessed the total loss for these two premises to be Rs.6,90,000/-. The surveyor stated that the entire stock was equally divided in shop no. 125 and 126 and hence, the value of the goods lying in each of these shops was estimated to be Rs.3,45,000/-. After making detailed calculations and provision for salvage, dead stock and liability for khokha, a sum of Rs.2,91,440/- was worked out for shop no. 125 and the said sum was paid to Harminder Singh for shop no. 125. Harminder Singh has also given his statement that he received the sum of Rs.2,91,440/- as full and final settlement of claim for khokha no. 125 as per Policy No. 352300/11/06/00000440. The Insurance Company have also stated in their reply that Harminder Singh received the said sum as full and final settlement.
9. Further, in so far as, shop no. 126 is concerned, it is an admitted fact that the said shop belongs to Jaspal Kaur, but the stock in the said premises belonged to her son Harminder Singh. Harminder Singh has categorically admitted this fact during his statement that the entire stock in the three shops belonged to him. The District Forum vide their order dated 07.07.2008, concluded that even if the stock in premises 126 did not belong to Jaspal Kaur, she was entitled to be compensated for the loss by the insurance company to the same extent as permitted for shop no. 125 to Harminder Singh. In appeal against this order before the State Commission, the said Commission vide impugned order dated 31.10.2012 dismissed the same and upheld the order passed by the District Forum, allowing a sum of Rs.2,91,440/- to the complainant, Jaspal Kaur. It is quite evident from the order passed by the State Commission, that on one hand, they have dismissed complaint relating to premises no. 319 of Kamal Kumar, saying that the claim was not payable as the stock in question did not belong to Kamal Kumar. However, the State Commission applied a different logic for premises no. 126 and upheld the order of the District Forum, allowing the payment of claim to Jaspal Kaur. We do not find any justification to agree with this order of the State Commission, when it is very clear that the policy was in the name of Jaspal Kaur, but the stock in question belonged to Harminder Singh. It is true that Harminder Singh is the son of Jaspal Kaur, but being a son, does not entitle him to claim benefit under the policy taken by Jaspal Kaur. The order passed by the State Commission in FA No. 1078/2008 is not in accordance with law and deserves to be set aside. Jaspal Kaur is entitled to be compensated for loss/damage to Khokha only and not for damage to the stocks.
10. Based on the discussion above, the present revision petition is allowed and the order passed by the State Commission in Appeal No. 1078/2008 is set aside. The complainant/respondent is ordered to be entitled for payment of Rs.25,000/- minus the excess clause of `_10,000/-, i.e., `_15,000/- alongwith interest @9% p.a. from the date of complaint till realisation. It is borne out from record that over a period of time, certain improvements have also been made in the said premises; hence the depreciated value for the shop is not being taken for payment of claim. It is held, therefore, that complainant/respondent Jaspal Kaur shall be entitled to receive a sum of Rs.15,000/- from the Insurance Company alongwith interest @9% p.a. from the date of filing the complaint till realisation. There shall be no order as to costs.