S K Kapoor vs Secretary Mussoorie Dehradun Development Authority

A reading of the complaint discloses these facts. The complainant is a doctor running Paragaon Maternity and Surgical Hospital since 3 years. Originally he started Maternity Hospital at Premises No. 13 -6 -437/1, Karol Bagh, opposite Padmanabhanagar Colony, Mehdipatnam, Hyderabad. He purchased equipment i.e., Cautery machine, Electro surgical unit and Paragaon Maternity and Surgical Hospital glow sign board, etc. He insured the same with the second opposite party under Policy No. 050304/11/0151/91 on 30.8.1991. The complainant shifted the said Maternity and Surgical Hospital from Premises No. 13 -6 -437/1, Karol Bagh to 9 -4 -84/4, Kakatiyanagar Colony, Hyderabad in January, 1992. While so in the early hours of 2.2.1992 on the eve of Jumme -ki -Raat festival there was procession and riot took place near the hospital as a result of which the mob rushed inside the hospital and some unsocial elements smashed totally the glowing sign board and took away Diathermy and Foetal doppler units which were being used for surgical and obstetrical purposes. The said two units are portable and the cost of Foetal doppler is Rs. 50,385/ - while Diathermy (Cautery) machine costs Rs. 95,731.50. Glow sign board was purchased for Rs. 15,000/ -. Theft was committed in the early hours of

2.1992 TAKING advantage that on the eve of festival muslims observe festival throughout the night. The complainant came to know about the offence at 6.00 a.m. on 2.2.1992. Immediately he gave a police complaint and informed the second opposite party on 3.2.1992, whereupon the latter registered the claim and appointed a Surveyor. The Surveyor visited the hospital on 4.2.1992 and asked for certain information including some photographs. The complainant has not received the alleged letter on 30.4.1992 sent by the Surveyor. The Surveyor asked for copy of the F.I.R. However the Surveyor without conducting any enquiry appears to have submitted his report the copy of which was never sent to the complainant. Later the matter was entrusted to independent Investigator for further investigation. 2. Accordingly M/s. Deshpande Associates visited the premises of the complainant and asked the complainant to furnish the details about the equipment and their invoices. All these material was already furnished to the second opposite party. Thereafter the complainant addressed number of letters to the said Investigators to complete the investigation. However without doing any kind of investigation in the matter in spite of several letters sent by the complainant M/s. Deshpande Associates sent a letter dated 26.11.1929 with false allegations stating as if the complainant had agreed to withdraw the case. The correspondence would show that the complainant has been vigorously pursuing his claim and requested the second opposite party many a time to settle his claim expeditiously. The complainant understands that there is no survey report. Even M/s. Deshpande Associates failed to investigate into the matter. However, the second opposite party finally sent a letter dated 8.3.1993 to the complainant stating that they have examined the matter on all aspects and as revealed in the survey and in view of the fact the Police Authorities did not book a case of rioting and in the absence of any vouchers or cash receipt for the purchases, they could not see any evidence of damage to the property and accordingly repudiated the claim of the complainant. Hence the complainant filed this complaint claiming a sum of Rs. 5,71,116.50 Ps. being the value of the loss of property insured together with compensation. The second opposite party filed its counter admitting the issuance under the policy bearing No. 050304/11/0151/91 to the complainant which was valid from 30.8.1991 to 29.8.1992. The address of the insured was mentioned as Dr. A. Sairam, Paragaon Maternity and Surgical Hospital, opp. Padmanabhanagar Bus Stop, 13 -6 -437/1, Padmanabhanagar Colony, Mehdipatnam, Hyderabad. The building was insured for Rs. 2,50,000/ -, while maternity and accessories for Rs. 3,50,000/ - and stocks for Rs. 10,000/ -, furniture and other contents were insured for Rs. 1,25,000/ -. Thus the policy was issued for a total sum of Rs. 7,35,000/ -. It is denied that any rioting took place on the intervening night of 1/2 -2 -1992 near the hospital or in the ground or first floor of the same building where the complainant was residing or even in the vicinity. There was no report made by anybody in the neighbourhood. The complainant submitted some documents only on 6.6.1992 to the Surveyor. Except the invoices about the cost of equipment no other documents were furnished. The police booked only a petty case. The photographs furnished by the complainant only show minor damage. The Surveyor estimated the loss of Rs. 7,000/ -. M/s. Deshpande Associates submitted their report on 18.1.1994 which clearly indicates that the complainant was making fraudulent claim. The said report pointed out several anomalies and inconsistent versions of the complainant. It is further stated that it is only after shifting the hospital from Karol Bagh to Kakatiyanagar in January, 1992 and after the alleged incident the second opposite party was informed about it. Even the nurse that purported to have informed the complainant could not be contacted. The allegations against the Surveyor and the Investigator are denied. It is asserted that in spite of repeated requests the complainant failed to furnish full information to them.

THE Investigator during the course of their investigation found the the value of the equipment is incorrect. There is no shop of M/s. Seabees System at the place mentioned in the voucher and the cost of the said equipments were much lower than what is claimed and, therefore, the decision to repudiate the claim was rightly taken.

NO separate version is filed on behalf of the first opposite party as the second opposite party has already filed a detailed counter. No oral evidence is adduced by both the parties. However the complainant filed Exs. A -1 to A -28 while the opposite party filed Exs. B -1 to B -26.

NOW the point for consideration is whether the repudiation of the claim by the opposite parties is justified in the circumstances of the case and to what relief the complainant is entitled to ?

THE case of the complainant is that he is running the maternity and surgical hospital in the premises bearing No. 13 -6 -437/1, Karol Bagh, Opp. Padmanabhanagar Colony, Mehdipatnam, Hyderabad. He took out a fire policy A (marked Ex. B -3) bearing No. 050304/11/0151/91 commencing from 30.8.1991 to 29.8.1992 for a sum of Rs. 7,35,000/ - subject to certain terms and conditions. As per Clause 4 of the policy the liability would arise in case of damage or loss occasioned due to riot, strike, acts of terrorism etc. As per the said policy Diathermy (Cautery) machine worth Rs. 95,000/ -, foetal doppler worth Rs. 50,000/ - and glow sign board worth Rs. 15,000/ - were also insured. These facts are not in dispute. However the complainant shifted the premises of the hospital from 13 -6 -437/1, Karol Bagh to 9 -4 -84/4, Kakatiyanagar, Mehdipatnam in January, 1992. Under Clause 9 of the policy if the property is removed to any building or place other than in which it was insured except machinery and equipments temporarily removed for repair, cleaning, renovation or other similar purposes for a period not exceeding 60 days the Insurance Company is not liable for the risk. So the question is whether the shifting of the premises was with intimation and consent of the opposite parties.

THE complainant states that the shifting of the premises of the hospital was informed to the second opposite party. The permission or consent of the opposite party assumes importance since the alleged riot took place in February, 1992 after the shifting of the hospital. There is no proof that any such consent was obtained from the second opposite party. No party has a right to unilaterally change the terms of the contract. Under Ex. A -1 policy the property insured shall not be removed from the place other than in which it was insured except temporarily for repairs, cleaning, renovation for a period of not exceeding 60 days. In this case the complainant states that he has shifted the hospital from Karol Bagh to Kakatiyanagar. It is not his case that he shifted it temporarily for repairs, cleaning, renovation, etc. Therefore, it is for good for once and for all. Hence there is violation of the conditions of the contract. The complainant has not examined any witness nor adduced any reliable evidence that the consent of the second opposite party was obtained for such shifting or that they have agreed to cover the risk even in the new premises. Therefore, the complaint has to fail on this ground alone.

EVEN on facts the complainant has no case. It is the case of the complainant that on the eve of Jumme -ki -Raat festival on the intervening night of 1/2 -2 -1992 there was a rioting and according to him a mob entered into his premises and damaged the glow sign board and also took away the cautery and doppler units, etc. The premises in question is situated on the first floor. There is no evidence that any damage was caused in the ground floor by the said mob and that there is no evidence that there was any damage caused by the said mob in that riot to any other premises in that locality. There is also no proof that any complaint was made by anybody in the said locality. On the complaint given by the complainant the police merely registered a petty case and finally closed the same as not traced. It is also not stated by the complainant why the case of riot was not registered by the police. The complainant has stated in Ex. A -6 that only cautery machine and foetal doppler were taken away by the miscreants after damaging the sign board. Both these articles which were alleged to have been stolen are useful only in maternity nursing homes and not for others. Panchanama was also prepared under Ex. A -7 stating that during the night of 1/2 -2 -1992 rioting took place in the complainants hospital by some unknown miscreants and the complainant lost some articles and the sign board was damaged due to pelting of stones. The details of the articles were not mentioned therein. Under Ex. A -10 the Inspector of Police, Langar House P.S. stated that a petty case vide No. 69/1992 under Section 427, I.P.C. has been booked and investigated into and he could not trace the culprits. This shows that only the complaint was registered for mischief under Section 427, I.P.C. and no case was registered for theft of articles. In view of what is stated above the complainant failed to establish that there was any rioting or theft in the locality much less in his premises.

IT is admitted that a Surveyor was appointed by the opposite party on receipt of the complaint and later on an Investigator and as both of them did not find sufficient evidence to hold that there was any rioting or theft of those articles particularly as no interest was shown to furnish information when M/s. Deshpande Associates under Ex. A -19 asked the complainant to furnish original invoices, cash receipts pertaining to cautery machine and doppler machine as it is contrary to normal conduct. They investigated with reference to the material furnished by the complainant. In fact the Surveyor also submitted his report on 30.7.1992 stating that there was no co -operation on the part of the complainant and, therefore, he could not assess the loss of equipment. He also felt that there was no proof of looting or riot. In a similar way M/s. Deshpande Associates who were appointed as Investigators also probed into the matter. The complainant furnished the invoices under Exs. B -11 and B -12 for foetal doppler and cautery machine for Rs. 50,000/ - and 95,000/ - respectively. In the said invoices the name of the dealer was shown as Seabees Systems and the premises was shown as 136, II floor, R.P. Road, Secunderabad. On verification the Investigators found that no such firm or shop was located in the said premises at the relevant time. Of course it is further stated by them that the place of the said M/s. Seabees Systems at H. No. 12 -2 -823/A/1/8 being the residential address of the complainant and having the same telephone No. 253681 of the complainant as that of M/s. Seabees Systems. Non -existence of M/s. Seabees Systems at Secunderabad as per invoices but available at Madhuranagar, Mehdipatnam, Hyderabad deals only with welding electric and electronic items. It may not be out of place to mention that in the complaint it is stated that the complainant came to know about the incident through the nurse in charge. Even her name is not mentioned. She (Suvarna) was not examined whose evidence would have thrown some light. Her non -examination should give rise to adverse inference i.e., if examined her evidence should be adverse to the complainant. Not even one resident of the locality was examined. Not even ground floor inmates, who are in all probability, able to speak to the incident, are not examined. Added to that none of the Panch witnesses in Panchanama Ex. A -7 was examined. The so -called Panchanama itself is of not much help to the complainant since it does not contain any reference to either cautery or foetal doppler as the subject -matter of theft, omission of mention of those two valuables, the loss of which is the main cause for conducting Panchanama is strange. In view of these defects at many a crucial stage, we have no other option except to hold that the complainant has failed to prove his contention.

EVEN after filing of the affidavit with these lacunas appearing on the record by the opposite parties the complainant has not moved his little finger to controvert them by adducing evidence about the existence of the shop in the said premises. The Investigators have also filed some quotations marked as Exs. B -24 and B -25 saying that the foetal doppler costs only Rs. 3,800/ - while cautery machine costs Rs. 9,500/ -. The complainant even failed to show that these articles costs Rs. 50,000/ - and Rs. 95,000/ - by any reliable evidence. These exhibits in our view clearly show that the claim of the complainant that these articles were purchased by him for Rs. 50,000/ - and Rs. 95,000/ - respectively cannot be believed as the complainant failed to adduce reliable evidence in support of his contention. Taking an overall view of the matter we should express without any hesitation that there is no material to hold that there was any rioting on the night of 1/2.2.1002 or that there was any theft of any articles from the complainants hospital. The complainant has miserably failed to prove the same. Consequently he is not entitled to claim any insurance amount from the opposite parties. In any view of the matter the repudiation of the claim under Ex. A -28 letter cannot be questioned. For the above reasons the complaint fails and is accordingly dismissed with costs of Rs. 5,000/ -. Complaint dismissed with costs.