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Judgment
DURING the subsistence of the insurance policy, on 3.8.2004, due to floods, water entered into the showroom of the complainant, M/s. Shyam & Co. The goods of the complainant were damaged when the same were lying in the godown at Pindi House, Defence Colony, Ambala Cantt. The claim made by the respondent/complainant was repudiated by the petitioner/opp. party. The defence set up by the insurance company/OP was that, those premises were of his son, in the name of M/s. Shyam & Co. Sales. The District Forum and the State Commission have decided the case in favour of the complainant.
WE have heard the Counsel for the parties. The report of Sh. Rakesh K. Khanna, Surveyor & Loss Assessor, is crucial. He came to the conclusion that the stock belongs to M/s. Shyam & Co. Sales (complainant''s son company) and not to M/s. Shyam & Co., the complainant/insured. The relevant extract of the report of the Surveyor, runs as follows: "In fact, five visits were made but we have not been shown the complete records. We put a letter dated March 10, 2005 requesting to supply some documents both related to the Shyam & Co., as well of Shyam & Co. Sales, a concern owned by his son "Mr. Nain Kanwar". In reply, insured submitted part of the documents but avoided submission of some of the documents."
The report further mentions:
"Verification of Records and Other Aspects of Claim:
The insured in his letter dated 14.8.2004, has stated in para II of his letter that my son Shyam & Co. runs an extremely and prosperous and independent organization under the name and style of Shyam & Co. Sales. This firm is engaged in the imports and distribution of Air conditioners/deep freezers, washing machines, toasters, water kettles, electric appliances, heaters, etc., with an extremely good turnover. The servicing and repairs to all the items sold by M/s. Shyam & Co. Sales are taken care by Shyam & Co. Since we have an emotional attachment with the old organization established by our forefathers, we are continuing the same, though there is very humble turnover in this business.
This signifies that insured has admitted that Shyam & Co. was basically carrying the servicing and repair of goods sold by Shyam & Co. Sales.''''
The Surveyor has given a detailed report running into 11 pages. He has perused the entire record, purchase account statements, trading account for the previous two years, etc., where he found that there was no such similar transaction other than the one in dispute. The relevant para runs as follows: "This statement created suspicion that the entry of Rs. 9,00,679.00 for the purchase shown from Shyam & Co. Sales is likely a book entry put after the date of loss i.e., 3.8.2004.
The insured explained that Shyam & Co. Sales, sold the goods to Shyam & Co. on High Sea Sale in the course of import under the agreement to sell, entered between Shyam & Co. Sales and Shyam & Co. This entry was made through debit advice (No. Nil) dated 2.7.2004, raised by Shyam & Co. Sales, in favour of Shyam & Co.
To substantiate the authenticity of this transaction, we demanded some very relevant information/clarification and Documentation. Few of the queries raised and their reply extracted from the insured''s letters are as under:
Is there any such similar transaction other than the above, previously or subsequently taken place between Shyam & Co. and Shyam & Co. Sales? If yes, provide the proof of that?
No Reply - -No Proof Produced. The silence indicates that it was the only transaction.
How the payment for the said transaction was made by Shyam & Co. to Shyam & Co. Sales. If made through Cheque/Demand Draft, then proof of that.
No proof produced but insured has admitted that account has been adjusted through book transactions."
It was stated that Shyam & Co. Sales was transacting business in the same address and have got the same storage of goods. The report submitted by the Surveyor is a detailed one and crucial. There is no reason why the report of the Surveyor should be discarded. No bad blood or ill -will was alleged. The Counsel for the respondent, himself, admitted that both the companies work from the same premises. The goods of both the companies are lying there. The complainant did not give any notice to the insurance company that he was allowing his son''s company to store the goods in the same premises. There is no evidence that the goods imported and owned by M/s. Shyam & Co. Sales were insured. It is quite possible that the goods of the complainant might have also been destroyed, but there is no clear -cut evidence about the same. It is also interesting to note that the Counsel for the Respondent/complainant admitted that all the goods belonging to the complainant were destroyed but the goods belonging to his son, remained unaffected. This version is not creditworthy. The complainant/respondent has not come to this Commission with clean hands. Consequently, we hereby set aside the orders passed by the Fora below, allow the revision petition and dismiss the complaint.