Punjab

Faridkot

CC/17/112

KAPIL TEXTILES - Complainant(s)

Versus

B.M. ORIENTAL INSURANCE COMPANY - Opp.Party(s)

ASHOK KUMAR MONGA

09 Jul 2019

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, FARIDKOT

 

C. C. No. :             112 of 2017

Date of Institution:    3.04.2017

Date of Decision :       9.07.2019

 

M/s Kapil Textiles, Hansa Market Near Jaitu Chungi, Old Sabzi Mandi Road, Kotkapura through its Proprietor Kapil Kumar son of Kaur Chand, resident of Kotkapura.

.........complainant

Vs

 

The Oriental Insurance Company Ltd. Branch Office Near Old Grain Market, Kotkapura through its Branch Manager.

                                                                                   .......OP

Complaint under Section 12 of the

Consumer Protection Act, 1986.

 

Quorum: Sh  Ajit Aggarwal, President,

              Smt Param Pal Kaur, Member.

 

Present: Sh Ashok  Monga, Ld Counsel for complainant,

              Sh Deep Chand Goel, Ld Counsel for OP.

 

ORDER

(Ajit Aggarwal, President)

                                          Complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 against OPs seeking directions to OPs to make payment of remaining insurance claim worth Rs.15,08,801/- pertaining to insurance policy bearing no

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23372/48/2016/3082 and for further directing OPs to pay Rs.1,00,000/- as compensation for harassment, inconvenience, mental agony and Rs.10,000/- as litigation expenses.

2                                              Briefly stated, the case of the complainant is that complainant firm deals in textiles and entire stock  consisting of stitched, unstitched clothes, blankets, bed-sheets and other type of clothings alongwith furniture and fixtures was insured with OP for Rs.20,50,000/- under policy bearing no.23372/48/2016/3082 for the period from 18.03.2016 to 17.03.2017 against all kinds of risks. It is submitted that on 12.06.2016 Sunday, shop was closed and at about 2.50 pm fire broke out, which was noticed by neighbours who raised alarm and complainant immediately called Fire Brigade. It took about an hour to control the fire, but in said fire entire stock of complainant firm alongwith its furniture and fixtures was destroyed by burning. Fire occurred due to Electric Short Circuit regarding which Municipal council also issued Fire Report No. 31 dated 14.06.2016. Intimation regarding said fire occurrence was given to Police, who recorded DDR no.029 dated 12.06.2016 to this effect and complainant also gave due intimation regarding it to OP and Oriental Bank of Commerce the banker of complainant and on intimation of complainant, OP appointed Ashok Kumar Bansal, Surveyor and Loss Assessor, who inspected the spot and conducted preliminary survey. Thereafter, OP appointed Parduman Sharma Investigator to investigate the matter. Said Investigator conducted thorough investigation. After that OP appointed Mittal

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Independent Insurance Surveyors and Loss Assessors Private Ltd, Bathinda, who thoroughly inspected the shop of complainant on 16.06.2016 and minutely inspected the loss caused in said fire incident. Said Surveyor got recorded statements of neighbours, inspected the record of OBC, Kotkapura regarding cash credit limit of complainant  and copies of balance sheets and stock statement lying with Bank were supplied to him. After thorough inspection, he found the loss as genuine one and fire accident as natural and confirmed that entire stock worth Rs.20.68 lacs was burnt in said fire incident. All the surveyors took signature of complainant on several printed blank forms without disclosing any reason and assured to clear the claim. It is further submitted that on receipt of letter dated 20.06.2016 from Surveyors, he supplied all the documents sought by them for processing the claim and on 29.12.2016, OP credited the account of complainant with amount of Rs.5,41,199/-on account of loss caused to him in said fire incident. When complainant came to knew this fact, he approached OP and made several requests to them to release the remaining claim amount, but they flatly refused to hear his genuine requests and illegally detained the remaining amount of insurance claim of complainant. All this amounts to deficiency in service and trade mal practice on the part of OP. He has prayed for directions to OP to pay the remaining insurance claim and for further directing them to pay Rs.1,00,000/- as compensation besides Rs.10,000/- as cost of litigation. Hence, the present complaint.

 

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3                                             The counsel for complainant was heard with regard to admission of the complaint and vide order dated 10.04.2017, complaint was admitted and notice was ordered to be issued to the opposite party.

4                                            On receipt of the notice, OP filed reply taking preliminary objections that complaint is not maintainable in the present form as complainant has not come to the Forum with clean hands. Allegations levelled by complainant are false, frivolous and vexatious. Complainant wants to gain undue monitory benefits and no cause of action arises against OPs. He has suppressed the material facts from this Forum and has concealed that claim of complainant has already been settled with his own consent for Rs.5,41,899/-in full and final settlement of disputed claim as assessed by Independent Insurance Surveyors and Loss Assessors Pvt Ltd. Bathinda on 17.09.2016. it is averred that stock of complainant was hypothecated with Oriental Bank of Commerce, Kotkapura and on receipt of letter dt 19.08.2016 from Bank regarding hypothecation of said stock with bank and they asked  payment of outstanding amount against said loan account while settling the claim of complainant and thus, after settlement of claim with the complainant, OP paid the amount to bank on 22.12.2016 as destroyed in fire was hypothecated with bank and it was the first charge on the loan obtained by complainant from the said bank. It is denied that loss of Rs.20,68,000/-is caused to complainant, rather stressed that loss amount was assessed to the tune of Rs.5,41,899/- and all the amount of loss

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assessed has been paid to complainant and he voluntarily received the same with his own consent and now, he has filed the present complaint out of greed to have undue monetary advantage from them. However, on merits, they have denied all the allegations of complainant being wrong  and incorrect and reiterated the same pleadings as taken in preliminary objections. It is further averred that there is no deficiency in service on the part of OP and all the other allegations levelled have been denied being wrong and incorrect and prayed for dismissal of complaint with costs.

5                                                Parties were given proper opportunities to prove their respective case. The complainant tendered in evidence his affidavit Ex.C-1 and documents Ex C-2 to C-15 and then, closed his evidence.

6                                              In order to rebut the evidence of the complainant, the opposite party-2 tendered in evidence, affidavit of Ashwani Kumar as Ex OP-1, documents Ex OP-2 to 3 and then closed the evidence on behalf of OP.

7                                              We have heard the arguments addressed by all the parties and have also gone through the evidence and documents led by the parties.

8                                                  From the careful perusal of record and after going through the affidavits, evidence and pleadings of the parties,

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it is observed that grievance of complainant is that fire broke out in his shop and all the insured stock alongwith furniture fixtures worth Rs.20,68,000/-got burnt in said incident. Due intimation regarding this was given to Police as well as OP. Surveyor and Loss Assessor appointed by OP assessed the loss to the tune of Rs.20,68,000/-, but thereafter, they cleared the claim only for Rs.5,41,899/-and withheld the remaining insurance claim amount with them without disclosing any reason. He has prayed for directing OP to make payment of remaining claim amount. In reply, OP stressed mainly on the point that on receiving the information regarding incident, they immediately appointed Surveyor to assess and to investigate the claim  and Mittal Independent Insurance Surveyors and Loss Assessors Pvt Ltd, Bathinda, who vide its detailed Survey Report and with the consent of complainant assessed the loss to the tune of Rs.5,41,899/-as final and full settlement of disputed claim. As the stock of complainant was hypothecated with Oriental Bank of Commerce, Kotkapura and said bank vide letter dated 19.08.2016 asked them to pay the remaining claim amount of insurance to Bank after settling the claim of complainant and thus, OP paid the amount to bank on 22.12.2016 because stock destroyed in fire was hypothecated with said bank and it was the first charge on loan obtained by complainant from the said bank. They have paid the amount to bank and there is no deficiency in service on their part.

9                                   To prove his pleadings, ld counsel for complainant placed on record copy of Insurance Policy Ex C-7  issued

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by OP, which makes it clear that entire stock of complainant consisting of clothes, blankets, bed sheets and other goods pertaining to trade alongwith furniture and fixtures was insured under policy in question for a sum of Rs.20,50,000/- for the period from 18.03.2016 to 17.03.2017 and he had paid premium of Rs.6,000/- to OP. Ex C-2 is copy of letter vide which complainant firm intimated the matter in respect of said fire incident to Oriental Bank of Commerce, Kotkapura and requested them to take up the matter regarding loss caused to him with Insurance Company and perusal of document Ex C-4 copy of DDR dated  12.06.2016, there remains no doubt complainant got recorded the matter regarding fire occurred in his shop with Police Station, Kotkapura. Moreover, document Ex C-5 copy of letter issued by Municipal council, Kotkapura is self explanatory and itself speaks out the grievance of complainant. Ex C-8 to Ex C-12 are copies of stock statement placed on record by complainant which clear the pleadings of complainant that stock worth Rs.20,68,000/-was lying in his shop. It is brought before the Forum that Surveyor and Loss Assessor appointed by OP vide Final Survey Report Ex C-15, that as per trade account, the insured was having stock of about Rs.21.20 lakhs however, physically such huge stock was not lying in the shop. He made deductions for unaffected stock for Rs.0.52 lakhs and total claim loss as Rs.20.68 lakhs. He mentioned that claim of the insured for Rs.20.68 lakhs, is on very high side. Samples were drawn from the burnt/damaged stock and most of the stock was of ladies suits. The insured provided purchase bills of  current

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year and bills for the purchase of last year reported to have been burnt in fire. Purchase bills for the current year were provided by complainant while purchase bills for the last year were burnt. He further mentioned that as per samples, the average  purchase price of suits kept in shop is taken at Rs.700/-per piece. He mentioned that books of accounts cannot be relied upon and after the fire, physical counting was not possible so, loss is assessed on the basis of storage capacity. There were three wooden almirahs and one steel rack to store the stock. The almirahs were having seven shelves each and steel rack was having six shelves. Keeping in view the storage pattern, the number of suits affected in fire is 846. After considering the average rate of suits at the rate of Rs.700/- and suits affected in fire as 846 and after making some deductions, he assessed the loss against stock as Rs.5,13,201.50 and after considering the loss of furniture, fixtures and fittings, he assessed the total loss affected in fire to the tune of Rs.5,41,899/-. We have carefully gone through the file and from careful perusal of record, we come to the conclusion that there is no dispute about the insurance claim as it is admitted fact of OP that complainant firm was insured with them. Timely intimation by complainant is also not denied. On intimation, OPs appointed Surveyor to assess the loss and the Surveyor submitted his final assessment report Ex C-15 wherein he has mentioned that complainant submitted all the required documents to him regarding stock lying in the shop such as stock statement submitted by him to his bank and as per stock statement, on 30.05.2016, there was stock of Rs.20.52

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lakhs. The complainant also submitted the sale and purchase bills from 1.04.2015 till date of loss and Surveyor duly verified the same. The complainant submitted balance sheets for the last three years and as per balance sheets on 10.06.2016, there was stock of Rs.21,19,659/- in his shop.

10                                   It is further admitted by the Surveyor that as per the trading account, the insured was having stock of Rs.21,19,659/- on the date of loss but surprisingly, the Surveyor while assessing the quantum of loss ignored all these documents and assessed the loss on his own assumptions and assessed the average price of suits as Rs.700/- and stock as per alleged storage capacity by taking it in three wooden almirahs and one steel rack and assessed the stock as burnt in fire or affected suits as 846 and assessed loss after deductions to the tune of Rs.5,13,201/-.

11                                   We are of considered opinion that Surveyor did not assess the loss correctly as per stock statement furnished by the complainant to bank , sale and purchase bills, balance sheets, account books etc maintained by complainant in due course of business and assessed the loss on his own assumptions and presumptions by ignoring the authenticated documents. It is observed that action of OP in not passing the genuine remaining claim of complainant amounts to deficiency in service and trade mal practice. Complainant has produced sufficient and cogent evidence to prove his grievance and all the

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documents placed on record by complainant are authentic and are beyond any doubt.

12                                              From the above discussion, pleadings and evidence produced by respective parties, this Forum is of considered opinion that there is deficiency in service on the part of OP in not passing the remaining claim amount of complainant. By mere saying that after paying the amount of Rs.5,41,899/-to complainant, they have paid the remaining amount to Bank, they cannot escape their liability of making payment of genuine claim of complainant. Complainant has succeeded in proving his case and therefore, complaint in hand is hereby partly allowed. OP is hereby directed to make payment of Rs.5,00,000/-(five lakhs) more to complainant as claim for his shop which was insured  with OP alongwith interest at the rate of 9% per anum from the date of filing the present complaint till final realization. OPs are further directed to pay Rs.5000/-to complainant as consolidated compensation for harassment and mental agony suffered by him and for litigation expenses. Compliance of this order be made within 30 days of receipt of copy of this order, failing which complainant shall be entitled to proceed under section 25 and 27 of the Consumer Protection Act. Copy of order be given to parties free of cost. File be consigned to record room.

Announced in Open Forum

Dated : 9.07.2019         

 

(Param Pal Kaur)                     (Ajit Aggarwal)

 Member                                     President