Decided on May 11,2010

Vidya Sagar And Sons Respondents


ARUN KUMAR GOEL ,J. - (1.) THIS appeal is directed against the order dated 24.8.2009, passed by District Forum, Shimla, in Consumer Complaint No. 153/2007. By means of impugned order, complaint filed by respondent No.1 has been allowed and appellants have been directed to indemnify the said respondent to the tune of Rs.3,90,243/ - alongwith interest @ 9% per annum from the date of filing of the complaint, i.e. 24.5.2007 till the entire payment was paid alongwith cost. assessed at Rs. 3,500/ -. Appellants have been directed to comply with this order within 45 days after the receipt of copy of the same. Hence, this appeal.
(2.) STOCK in trade lying in the premises of respondent No.1 being insured in the sum of Rs. 5,00,000/ - under a Shopkeepers policy is not in dispute. He was availing cash credit as well as term loan facility from respondent No.2 - bank. From the material on record, it is made out that on the night of 2nd June, 2005, due to rise of water level in river Sutlej, business premises where respondent No.1 was carrying on its business were flooded resulting in extensive damage to the stock -in -trade lying there. After the incident, matter was brought to the notice of appellants who deputed a Surveyor to assess the loss. Shri Surinder Kumar Soni, Chartered Accountant, asked the respondent No.1 to provide him the relevant papers required to assess the loss. Letter dated 23.9.2005 to this effect is Annexure R.3. Fact of the flood having caused damage to the stock lying in business premises of the respondent No.1 was also recorded at Police Station, Reckong Peo, vide Daily Diary Rapat No.13, dated 28.6.2005, Surveyor vide his report, Annexure R.4, dated 27.6.2006, on the basis of the material before him assessed the loss at Rs.38,197/ - Discharge voucher given by respondent No.2 is there at page 119 of the complaint file. Respondent No.1 was not satisfied with this assessment of the Surveyor. According to him, stock of the value of Rs.4,28,444/ - was verified by respondent -bank who had provided financial assistance to respondent No.1 on 20.6.2005. Within 6 days of such verification, flood was there.
(3.) IN the aforesaid background, according to the appellants, after tendering the amount in terms of the report of the Surveyor, who is an independent person, an expert in the field of assessment of loss, the amount was tendered to the bank in full and final settlement of the claim. At this stage, respondent No.1, as well as Bank Manager submitted that the amount was remitted by the appellants and the same was adjusted in the account of respondent No.1, but according to the former, he had never accepted this amount and therefore its payment to respondent No.2 cannot bind him. Before filing the complaint out of which this appeal has arisen, respondent No.1 had got legal notice issued to the Insurance Company, copy whereof is Annexure C.6. When further amount was not paid in terms of legal notice, respondent No.1 filed complaint out of which this appeal has arisen, alleging unfair trade practice on the part of the appellants besides deficiency in service. This complaint was seriously contested and resisted by the appellants, as according to it, despite notice by the Government that there was imminent threat of flood in river Sutlej, so residents on its both banks to move away along with their belongings respondent No.1 did not act. Further according to the appellants, stock -in -trade that was lying in the shop only was insured, whereas according to the respondent No.1, part of it was lying in the shop and rest in its hind portion. There is material on record to suggest that shop and so -called godown were practically for all purposes one single unit, case in front portion there was shop and in its hind portion there was stock lying.;

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