NATIONAL INSURANCE COMPANY LTD vs Babu A Sirsat S/O Late Anand Sirsat

THIS revision petition has been filed by the petitioner against order dated 30.8.2013 passed by State Commission in FA No. 51 of 2013 - Shri Babu A. Sirsat VS. National Insurance Company Ltd.; by which while allowing appeal, order of the District Forum dismissing complaint was set aside.

BRIEF facts of the case are that complainant/respondent was carrying on business of readymade garments under the name ''Sirsat Stores'' in shop No. 36 (old). Complainant had taken overdraft facility of Rs. 4,35,028/ - and in pursuance to this facility, complainant got his stock insured from opposite party/petitioner by two policies to the extent of Rs. 2.00 lakhs and Rs. 3.54 lakhs. The first policy covered shop No. 36 and second policy covered stock of readymade garments. On 24/11/2008 at about 9.15 p.m., four shops including his shop caught fire. Complainant informed Police, fire brigade, Canara Bank officials and agent of opposite party. Complainant suffered heavy loss. Complainant filed claim with opposite party on 15/12/2008 and on the same day, Surveyor - Mr. M.N. Khandeparkar, was appointed who visited the shop on the same day and submitted report dated 15/01/2009 in which it was mentioned that fire -fighting operations damaged the stocks of complainant and damaged stocks were taken away by municipal authorities and submitted report of no claim. Later on, opposite party sought some clarifications from the complainant which he furnished. Later on, opposite party appointed M/s. Fact Finders to investigate the matter who submitted report on 28/05/2009 in which they mentioned that they found no burnt marks. Opposite party repudiated the claim. Alleging deficiency on the part of opposite party, complainant filed complaint before District Forum. Opposite party resisted complaint on the basis of ground taken in repudiation letter and prayed for dismissal of complaint. Learned District Forum after hearing both the parties, dismissed the complaint. Complainant filed appeal before State Commission and Learned State Commission vide impugned order allowed appeal and directed opposite party to pay Rs. 1.9 lakhs as loss caused due to fire, Rs. 50,000/ - for mental agony, Rs. 5,000/ - as cost of complaint and Rs. 5,000/ - as cost of appeal against which this revision petition has been filed alongwith application for condonation of delay.

HEARD Learned Counsel for the parties finally at admission stage and perused record. Learned Counsel for the Petitioner submitted that delay of 37 days occurred in getting approval from different offices and delay may be condoned. As per application, impugned order was received by Petitioner on 17.9.2003 which was forwarded to the Head Office to sought certain clarifications and thereafter approval was granted for filing revision petition. It was further submitted that as copy of written statement was not available with the Counsel, delay occurred in drafting revision petition. As there is delay of only 38 days in filing revision petition, it would be appropriate to condone the delay for the reasons mentioned in the application, subject to cost.

CONSEQUENT LY , application for condonation of delay is allowed subject to payment of Rs. 5,000/ - as cost to Respondent and delay stands condoned.

LEARNED Counsel for Petitioner submitted that complainant did not intimate to the Petitioner about damages due to fire immediately after the incident and as per surveyor''s report, no damages were caused due to fire to the insured stock and Learned District Forum rightly dismissed complaint, even then, Learned State Commission committed error in allowing complaint, hence revision petition be allowed and impugned order be set aside. On the other hand, Learned Counsel for Respondent submitted that order passed by Learned State Commission is in accordance with law, hence, revision petition be dismissed. Clause 6 (i) of the insurance policy runs as under: - "6.(i)On the happening of any loss or damage the insured shall forthwith give notice thereof to the Company and shall within 15 days after the loss or damage, or such further time as the Company may in writing allow in that behalf, deliver to the Company". Perusal of this clause makes it crystal clear that insured is bound to intimate forthwith to the Insurance Co. about happening of any loss or damage to the insured goods. In the case in hand, complainant submitted in the complaint that complainant immediately informed opposite party''s agent but he has not specified name of the agent. Opposite party in its reply denied the fact of intimation by complainant to opposite party''s agent about the fire. It was specifically pleaded that complainant was duty bound to inform the opposite party within the stipulated period. Admittedly, no written intimation has been given by the complainant to opposite party about loss or damage due to fire up to 20 days. Learned State Commission, in para 15.1 of the order, observed that opposite party has not denied this statement regarding intimation to the opposite party''s agent and in such circumstances, Learned State Commission took this fact as admitted. In the next sentence, Learned State Commission observed that opposite party waived this condition when it appointed surveyor to investigate the matter. This observation is, apparently, wrong. Opposite party in its written statement has specifically denied any intimation by complainant to opposite party or its agent. It has been specifically pleaded that it was obligatory on the part of opposite party to give intimation about the incident. In such circumstances, by no stretch of imagination, it can be held that either opposite party admitted intimation or has waived this condition merely by appointing surveyor. Opposite party was duty bound to appoint surveyor on receipt of information on 15.12.2008. As complainant failed to intimate to the Insurance Co. forthwith and not even within 15 days of the incident, it amount to violation of the terms and conditions of the Policy and in such circumstances, surveyor could not find any traces of fire in the insured shop and also could not find any damage to goods due to fire. In such circumstances, opposite party has not committed any deficiency in repudiating the claim. Learned Counsel for Petitioner submitted that loss to the insured goods was not caused by fire but it was caused due to water sprayed by the fire brigade. Surveyor - M.N.Khandeparkar, in his survey report observed as under: - "CAUSE AND NATURE OF LOSS: The insured has a shop admeasuring about 5 sq.mts. at Panaji Municipal Market, Panaji, Goa. On 24/11/08, the adjacent shop reportedly caught fire. The said fire was controlled by the local fire brigade after intense fire fighting. The fire fighting operations reportedly damaged the stocks in the insured''s premises. The damaged stocks were reportedly taken away by the Municipal Authorities. The insured delayed the intimation to the insurers. DETAILS OF SURVEY: The undersigned was instructed to conduct a detailed survey as on 15/12/08. The undersigned visited the insured''s premises on 15/12/08 and contacted the insured. The affected stocks were not available for inspection and the insured claimed that the affected stocks were taken away by the municipal Authorities. Thus, the undersigned was unable to carry out any physical inspection of the affected stocks if any. Since the insured did not give sufficient opportunity to the undersigned to inspect the loss, it is our considered opinion, that the said claim may be treated as a "no claim" and may be repudiated." Later on, Petitioner appointed M/s. Facts Finders for further investigation who observed as under: - "2. The FIRE REPORT NO. 378 -A/PNJ/08 -09 as given by the OFFICER -IN -CHARGE at Fire MR. ASHOK MENON, DIRECTOR, FIRE AND EMERGENCY SERVICES stated the fire due to electrical short circuit as per the statement of the owner and that there were no casualties reported in the said fire incident but only the garments in the shop were gutted in the fire and the property saved was of Rs. 3,64,000/ - and the damage to contents is of Rs. 1,90,000/ - and the damage to the premises is of Rs. 50,000/ -. HOWEVER AS PER INQUIRIES IN THE MARKET AREA THE INSURED''S SHOP NEVER HAD ANY FIRE DAMAGES, SINCE THE FIRE WAS RESTRICTED ONLY TO THE TWO NEIGHBOURING SHOPS NAMELY M/S. SIDDHI STORES and M/S. T.K. SONS, THE ONLY POSSIBLE DAMAGES THE CLOTH SHOP COULD HAVE HAD WAS WATER DAMPNESS DUE TO THE FIRE BRIGADE SPRAYING WATER TO THE OTHER TWO SHOPS THAT WERE ON FIRE. 3. SOME OF THE SO -CALLED EYE -WITNESS HAD ISSUED US THREE LETTER ON REQUEST (PANANJI MUNICIPAL MARKET TENANTS ASSOCIATION DT. 06/02/09, M/s. T.K. STORES and M/S. SIDDHI STORES DT. 29/01/09) stating that the insured''s shop had also caught fire and the goods damaged, HOWEVER WHEN WE PHYSICALLY INSPECTED THE INTERIOR OF THE SHOP WHERE THE READY GARMENTS WERE SUPPOSED TO BE STORED, THERE WAS NO BURNT MARKS, AND ALSO THE OLD ELECTRIC WIRES and OLD ELECTRIC METER BOX WAS IN THE AS IT WERE CONDITION, EVEN THOUGH THE INSURED INSISTED THAT HIS SHOP WAS REPAIRED AND PAINTED. 4. The insured MR. BABU SIRSAT when questioned as to why he did not show the surveyor MR. M.N. KHANDEPARKAR, the damaged ready made garments when he had come to surveyor the loss, he stated that since it was business time he did not have a chance to collect the BURNT ITEMS from his residence, and from the CORPORATION OF THE CITY OF PANAJI, MUNICIPALITY PANAJI, HOWEVER THE CCP, PANAJI IN THEIR LETTER DT. 06/03/09 STATED THAT THEIR STAFF NEVER COLLECTED ANY GOODS WHICH WERE ESCAPED FROM BEING GUTTED, THUS PROVING THAT THE INSURED MADE A FALSE STATEMENT THAT HIS DAMAGED GOODS WERE BEING COLLECTED BY THE CCP. 5. Also when MR. ABHAY A. ANIKHINDI, MANAGER OF CANARA BANK, who had inspected the damaged clothes on the 25/11/08 at 03 pm was contacted on the 21/05/09 by us and a request was made to him to put in writing as to what was the condition of the damaged clothes he actually saw, he said that he did not notice any fire damage clothes, and in his letter dt. 21/05/09 he has mentioned, that the STOCKS inspected by him were damaged by the water sprayed by the FIRE BRIGADE for putting off the fire on the adjacent shops, and the clothes shown were in the WET and DAMP CONDITION (presently the loan was repaid and so stands cancelled).

The six photographs shown by the insured to us and attached herewith this report shows that there was no visible fire seen in the photographs near or towards the shop of M/S. SIRSAT STORES, also the claim of MR BABU SIRSAT that since the goods burnt were lying on the pathway, the CCP, PANAJI seized the goods, in order to clear the Public Pathway and the insured had inwarded an application to the CCP, PANAJI as per INWARD No. 74 DT. 29/01/09 for a confirmation receipt of the seized goods, but as mentioned above the CCP had collected all the fire damaged clothes were false because they collected only the burnt debris. THEREFORE BASED ON ALL THE ABOVE FACTS, IN MY OPINION THE FIRE ACTUALLY CONSUMED ONLY THE ITEMS OF M/S. SIDDHI STORES and M/S. T.K. SONS SITUATED AT MUNICIPAL MARKET, PANAJI, GOA THAT CAUGHT FIRE ON 24/11/08 AT ABOUT 21:15 HRS DUE TO AN ELECTRICAL SHORT CIRCUIT AND THE INSURED''S SHOP M/S. SIRSAT STORES, SHOP NO. 36, WHICH WAS SITUATED ADJACENT TO THE ABOVE MENTIONED TWO SHOPS ITEMS WERE DAMAGED NOT BASICALLY BY THE FIRE BUT DUE TO THE WATER SPRAYED BY THE FIRE BRIGADE AS EXPLAINED ABOVE, HOWEVER, THE INSURED WAS NOT IN THE POSITION TO SHOW US ANY OF THE WATER DAMAGED READY MADE ITEMS, INFACT HE SHOWED US SOME PARTIALLY BURNT READY GARMENTS (SAMPLES PROVIDED TO US) WHICH POSSIBLY COULD NOT HAVE BEEN THE ITEMS THAT THE CANARA BANK INSPECTOR SAW ON THE 25/11/08." Investigation report also considered report of Manager of Canara Bank dated 21.5.2009 which runs as under: - "SUB: Inspection of stocks conducted by the undersigned on 25/11/08 of the damaged goods at your shop. With reference to above, please note that the stocks inspected by me were damaged by the water sprayed by the Fire brigade for putting of the fire on the adjacent shops. The clothes shown were in the wet and damp condition. This is for your kind information."

PERUSAL of report of surveyor, report of investigator and letter of Manager, Canara Bank who visited shop on the day of alleged incident clearly reveals that no damage was caused to the shop as well stocks in the shop of respondent by fire, but, damages were caused to the stocks on account of water sprayed by fire brigade and in such circumstances, complainant was not entitled to any claim under the policies on account of loss to the stocks due to fire.

LEARNED Counsel for Respondent submitted that complainant proved damage on the basis of fire report, scene of fire accident Panchanama, certificate of Panjim Municipal Market Tenant''s Association, report dated 25.11.2008, affidavit of T.K. Mohamed, etc.

NO doubt, complainant has tried to prove damage to the goods due to fire but this evidence does not inspire confidence in the light of surveyor''s and investigator''s report and particularly letter of Manager of Canara Bank who inspected shop just after alleged incident from whom complainant had taken overdraft facility. Had there been any loss to the goods on account of fire, Manager of Canara Bank must have recorded that fact in the letter addressed by him to the complainant and in such circumstances, no loss on account of fire to the insured goods can be presumed. Had there been any loss due to fire, some burnt marks must have been found in the shop. Learned Counsel for Respondent submitted that respondent got shop repaired before inspection by surveyor which cannot be believed. It appears that intentionally complainant did not intimate to Insurance Co. immediately after the incident so that opposite party may not appoint surveyor to find out cause of loss. Not only this, complainant has not produced damaged garments before the surveyor by which it could have been proved that garments were damaged due to fire. Learned Counsel for Respondent submitted that goods were taken by municipal Authorities but this arguments cannot be believed because no person would allow municipal Authorities to take his partially burnt readymade garments because claim could have been finalized only on the basis of showing burnt stock of readymade garments.

IN the light of aforesaid discussion, it becomes clear that on account of not intimating petitioner forthwith regarding the incident and failure to prove loss to the readymade garments stock due to fire, complainant was not entitled to any compensation and Learned District Forum rightly dismissed complaint but Learned State Commission committed error in allowing appeal exparte and revision petition is to be allowed.

CONSEQUENT LY , revision petition filed by the petitioner is allowed and impugned order dated 30.8.2013 passed by Learned State Commission in FA No. 51 of 2013 - Shri Babu A. Sirsat Vs. National Insurance Company Ltd.; is set aside and order of the District Forum dated 11.6.2013 passed in complaint No. 125 of 2010 - Mr. Babu A. Sirsat VS. National Insurance Company Ltd., is affirmed to the extent of dismissing complaint but order directing complainant to pay cost of Rs. 10,000/ - to opposite party is set aside. Parties to bear their own costs.