BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM; FATEHABAD.
Complaint Case No.91 of 2017.
Date of Instt.: 25.04.2017.
Date of Decision:07.05.2018.
Gaurav Jain son of Sh.Sushil Jain, Proprietor of M/s Manglam Tube- well Store, near Ratia Chungi, Ratia Road, Fatehabad Tehsil and District Fatehabad.
..Complainant
Versus
1.Allahabad Bank, Branch G.T.Road, Fatehabad, Distt. Fatehabad through its Branch Manager.
2.Universal Sampo General Insurance Company Limited, Unit No.401, 4th Floor, Sangam Complex, 127, Andheri Kurla Road, Andheri (East) Mumbai-400059 through its Authorized Signatory.
..Respondents/OPs
Before: Sh.Raghbir Singh, President.
Sh.M.K.Khurana, Member.
Present: Sh.Yogesh Gupta, Adv. for the complainant.
Sh.Inder Singh Sihag, Adv. for OP No.1.
Sh.U.K.Gera, Adv, for Op No.2.
Order
The present complaint under Section 12 of Consumer Protection Act, 1986 has been filed by the complainant against the Opposite parties (hereinafter referred to as Ops) with the averments that he is sole proprietor of the Firm M/s Manglam Tubewell Store, near Ratia Chungi, Fatehabad. It is further submitted that the complainant was maintaining a bank account bearing No.50186205731 with Op No.1 and as such the complainant was having visiting terms in the bank of Op No.1. The Op No.1 told to the complainant that the bank has tie-up with insurance company of Op No.2 and in case the complainant is interested to get his firm insured with Op No.2 then Op No.2 will insured his firm. The complainant gave consent to Op no.1 and thereafter the firm of the complainant was insured with Op No.2 through Op No.1 vide insurance policy No.2939/55241978/01/D00 having validity period 8.07.2016 to 07.07.2017 and the aforesaid bank account of the complainant firm was debited with an amount of Rs.12,108/- for making the payment of premium of aforesaid insurance policy. Under the aforesaid insurance policy a total sum insured was Rs.54,00,000/- with the coverage sections Fire and allied perils in the building i.e. burglary and robbery. The insurance policy in this regard was issued to the complainant on 12.07.2016. Therefore the complainant is consumer of OPs.
2. It is further submitted that on 01.08.2016 the complainant after completing the work of the firm locked the door of the front and backside of his shop properly. However on the very next day i.e. on 02.08.2016 when the complainant opened the front side shatter in the morning then the complainant noticed that goods of the firm were lying spread in the shop and he also noticed that the backside shatter of the shop was in a broken condition and it was further noticed that someone had stolen goods from the shop. In this regard the complainant moved an application to the police authority and as such an FIR No.439 dated 02.08.2016 under Section 380/457 of IPC was registered in the Police Station City Fatehabad. The above said FIR was lodged by the complainant without loss of any time and thereafter the complainant visited the bank for giving intimation regarding theft of goods. A copy of FIR was supplied to the complainant on 03.08.2016 and after getting copy of FIR the complainant approached to Op No.1 and the complainant was informed by the bank that the branch manager of bank is on leave and he was asked to come on the next day. Thereafter on the very next day i.e. 04.08.2016 the complainant visited Op No.1 and copy of the FIR was handed over to the branch manager of Op no.1. The branch manager gave intimation to the agent of Op no.2 regarding theft in the shop of the complainant. However the agent of Op No.2 told to the complainant that he is in Chandigarh to attend a meeting and he will take up the matter after coming back. Thereafter on 06.08.2016 he talked to agent of OP No.2 and he was told that on account of Saturday and Sunday the office is closed. Thereafter on 08.08.2016 he again talked to the agent of Op No.2 and he was instructed by the agent to register his complaint on the toll-free number of the insurance company. So the complainant made a telephonic call on toll-free number of the company, but no response was given to the complainant. Thereafter the complainant made a telephonic call on the telephone number of the company at Bombay and Dehli. Thereafter a telephone number of office of the company at Karnal was given to the complainant and as such he telephonically contacted the Karnal Office of the company and he was told that a complaint through e-mail be sent to Op No.1. Thereafter the matter was reported to Op No.2 by the complainant on 08.08.2016 and on 09.08.2016 the complainant received an e-mail message on e-mail address that the claim of the complainant has been registered with the OPs.
3. Thereafter the complainant was assured by the OPs that within a short period his claim will be settled as per stock record of the complainant. However vide letter dated 16.09.2016 the complainant was intimated that his claim has been repudiated on the ground of delay of 7 days in giving intimation to Op no.2 regarding theft. It is further submitted that the repudiation of the genuine insurance claim of the complainant by the Op no.2 is illegal, arbitrary and the same is liable to be set aside. The above said act on the part of OPs amounts to deficiency in rendering service to the complainant. The complainant has further prayed that OPs may be directed for making a payment of Rs.2,10,678/- as loss suffered by him on account of burglary along with interest. The complainant has also prayed for awarding a compensation of Rs.50,000/- to him on account of mental agony and physical harassment suffered by him. Hence, the present complaint.
4. On being served, Op No.1 appeared through his counsel and resisted the complaint by filing a written statement wherein various preliminary objections with regard to maintainability, cause of action, barred by limitations and locus-standi etc. have been raised.
5. In reply on merits, all the allegations made against OP No.1 have been denied. It is further submitted that complainant’s brother informed Op no.1 regarding the theft. On his request we showed him copy of the policy and provided him all details which were required for lodging of complaint with insurance company. We also guided the complainant to lodge his complaint on toll-free number as mentioned in the policy. It is further submitted that there is no role of bank and no duty of the bank in any manner regarding lodging of complaint and settlement of claim as insurance was done by third party and it is between insurance company and the complainant. The Op No.1 further prayed that the present complaint is without any merits and the same is liable to be dismissed against Op no.1.
6. On being served Op No.2 also appeared and resisted the complaint by filing a written statement wherein various preliminary objections with regard to maintainability, locus-standi, estoppel, concealment of material facts, jurisdiction, bad for mis-joinder and non-joinder, delay in intimation to the insurance company etc. have been raised.
7. In reply on merits, all the allegations made in the complaint have been denied. It is further submitted that the complainant has concocted a false story regarding the burglary in question. The assertions made in the complaint are afterthought. It is denied that the complainant informed the insurance policy about burglary well within time. It is further submitted that there is delay of seven days in intimating the insurance company about the burglary whereas an intimation regarding burglary was to be given within 24 hours from the time of occurrence. It is further submitted that the claim of the complainant has been repudiated on the ground of mis-representation of facts and delay in intimation. Form perusal of the findings of the investigator it came to the notice of Op No.2 that there is no sign of forcible / violent entry in the place of occurrence. Therefore the occurrence does not fall within the definition of burglary. It is further submitted that repudiation of the claim of the complainant vide letter dated 19.09.2016 is perfectly in accordance with the terms and conditions of the policy and sustainable in the eyes of law and as such the present complaint is without any merits and the same is liable to be dismissed.
8. The learned counsel for the complainant tendered in evidence an affidavit of complainant as Annexure C1 and the documents as Annexures C2 to C12 in support of the case of the complainant. On the other hand Sh.Takdir Singh Berwal, Branch Manager, Allahabad Bank tendered in evidence his affidavit as Annexure R1. Sh.Piyush Shankar, Assistant General Manager tendered in evidence his affidavit as Annexure R2 on behalf of Op No.2. The learned counsel for Op No.2 also tendered in evidence the documents as Annexures R3 to R10 in support of the case of Op No.2.
9. The learned counsel for the complainant in his arguments contended that there is no dispute that burglary had taken place in the shop/ firm insured by the OPs, on the intervening night of 01.08.2016 and 02.08.2016. It is also not disputed that on the very next day i.e. 02.08.2016 an FIR under Section 387/ 457 was got registered by the complainant. Therefore there was no delay in giving intimation regarding the occurrence to the concerned police station. It is also further contended that an intimation was also registered with the Op No.2 on 09.08.2016 wherein the claimant had given elaborate reason for delay regarding the intimation. Moreover if there is any delay the same is not inordinate, the same is bonafide and has been duly explained by the complainant. The learned counsel for the complainant further contended that back side of the shutter of the shop was found broken and as such it is evident that force was used for entry and committing theft in the shop of complainant. The learned counsel further contended that repudiation of genuine claim of the complainant by Op No.2 on the ground mis-representation and delay in intimation is totally wrong and illegal. The same is liable to be set aside and the complainant is entitled for insurance claim.
10. On the other hand, the learned counsel for the Op No.2 in his arguments contended that the complainant has not adhered to the terms and conditions of the insurance policy. As per terms and conditions of the insurance policy the complainant was required to give intimation regarding the occurrence of burglary within 24 hours from the time of occurrence whereas in the present case, the complainant had given intimation to OP No.2 after a lapse of 7 days. The learned counsel further contended that from perusal of the investigation report it is revealed that there was no sign of force or violence found at the place of occurrence and as such the occurrence does not fall within the definition of burglary and not covered under the insurance policy. In support of his contention the learned counsel for the Ops placed reliance on the judgment of Hon’ble Apex Court in M/s Surajmal Ramniwas Oil Mills Pvt. Ltd. Vs. United Insurance Company, 2010(4) RCR (Civil) Page 845 wherein Hon’ble Apex Court has held that in a contract of insurance the rights/ obligations are strictly governed by the terms of the policy and no exception or a relaxation can be given on the ground of equity. The learned counsel further contended that in terms and conditions of a contract of insurance the word used therein must be given paramount importance and it is not open for the court to add or delete or substitute any word. Since the occurrence does not fall within the definition of burglary and secondly no intimation regarding the occurrence was given by the complainant in accordance with the terms and conditions of the policy as such the repudiation of insurance claim of the complainant by the Op No.2 is perfectly legal and there is no deficiency on the part of Op no.2 in rendering service to the complainant.
11. We have duly considered the arguments advanced by learned counsel for the contesting parties and have also perused the entire material placed on record. It is not disputed that the firm of the complainant i.e. M/s Manglam Tubewell Store was insured with Op No.2 through Op No.1 having a validity for the period from 08.07.2016 to 07.07.2017 and a premium of Rs.12,108/- was paid by the complainant to Op No.2. It is also not disputed that under the aforesaid insurance policy the total sum assured was Rs.54 lacs with inter-alia coverage of burglary and robbery. It is also not disputed that the goods of the insured firm was stolen on the intervening night of 01.08.2016 and 02.08.2016. It is also not disputed that after coming into the notice of the complainant regarding the occurrence an immediate FIR was registered by the complainant on 02.08.2016. It is also not disputed that the intimation of the theft was registered with Op No.2 on 09.08.2016. In the present case the insurance claim of the complainant has been repudiated by Op no.2 on the ground of mis-representation of facts and delay in intimation. It is the case of Op no.2 that from perusal of the investigation report it is revealed that there was no sign of forcible / violent entry in the shop in question and as such no case of burglary is made out and the occurrence is not covered under the policy. However from perusal of investigation report and other material placed on record we are of the considered opinion that the above said contention of Op no.2 is not tenable. The investigator in column 10(1) of “REMARKS” has observed that it is seems that after scaling of wall the small shutter was got opened by the miscreants and material taken away from fully covered shop area. From the same it is evident that miscreants had opened the shutter of the shop and we are of the opinion that the same cannot be opened without using any force. Therefore the contention of Op No.2 that no force was used by the miscreants in committing theft is baseless. It is further the case of OP No.2 that as per terms and conditions of the policy the intimation regarding the occurrence was to be given by the complainant within 24 hours, but in the present case the complainant did not adhere the terms and conditions of the policy and gave intimation to Op No.2 after a lapse of 7 days. We are of the opinion that the above said ground for rejection of the insurance claim of the complainant in the present case is not justified. There is no doubt that intimation regarding the occurrence was registered with the Op no.2 after a delay of 7 days. But the complainant has given cogent reason of delay of 7 days and the same has been duly explained. It is settled principle of law that decision of the insurer to reject the claim has to be based on valid ground. Rejection of the insurance claim on purely technical ground in a mechanical manner will result in loss of confidence of policy holder in insurance companies. In case reason for delay in making claim is satisfactorily explained in that eventuality a claim cannot be rejected on ground of delay. It will not be fair and reasonable to reject the genuine claim on the basis of technicalities. Condition regarding delay shall not be a shelter to repudiate the insurance claim which have been otherwise proved to be genuine. Consumer Protection Act aims at providing a better interest on consumer. It is beneficial legislation and deserves liberal construction.
12. In view of the aforesaid discussion the present complaint is accepted and the order dated 19.09.2016 vide which the insurance claim of the complainant has been repudiated by the Op no.2 is hereby set aside. The surveyor vide his survey report (Annexure R-7) has assessed the net loss of Rs.50,311/- to the complainant. Therefore Op no.2 is directed for making a payment of Rs.50,311/- to the complainant along-with interest @ 7% from the date of repudiation till its realization. The Op No.2 is also directed for making a payment of Rs.10,000/- (Rs.Ten thousand only) as compensation and litigation charges to the complainant. The present order be complied with within a period of 45 days, otherwise the above said amount shall carry an interest @ 8% per annum from the date of receipt of copy of this order till its realization. In case the stolen goods are recovered at any stage, the same will be the property of the Op No.2. A copy of this order be supplied to the parties free of costs. File be consigned after due compliance.
ANNOUNCED IN OPEN FORUM. Dt.07.05.2018
(Raghbir Singh)
President
(M.K.Khurana) District Consumer Disputes
Member Redressal Fourm,Fatehabad
