Haryana

Karnal

569/12

Sanjeev Kumar - Complainant(s)

Versus

Bajaj Allianz General Insurance Co. - Opp.Party(s)

Sh. Satpal Singh

30 Nov 2015

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM KARNAL.  

                                                          Complaint No. 569 of 2012

                                                          Date of instt.: 4.12.2012

                                                          Date of decision: 30.11.2015

 

Sanjeev Kumar son of Jai Bhagwan resident of village Pujam tehsil Nilokheri district Karnal sole proprietor of firm Rinku Automobiles, Sandhir Road, ,Nilokheri district Karnal.

                                                                  ……..Complainant.

                   Vs.

 

1.Bajaj Allianz Insurance Co.Ltd. SCO No.226-227, 2^nd Floor, Sector 12, Urban Estate, Karnal.

2.Bajaj Allianz General Insurance co. Ltd. SCO No.197/18-C, Hazara Singh Building Vijay Ratna Chowk, near Ambala Clumb, Ambala Cantt.

3.Punjab National Bank, Nilokheri through its Branch Manager.

4.Oriental Insurance Co..Railway Road, through its Manager, Karnal.

                                                                  …..Opposite Parties.

                     Complaint u/s 12 of the Consumer

                     Protection Act.

 

Before          Sh.K.C.Sharma……….President.

                   Smt. Shashi Sharma……….Member.

                   Sh.Anil Sharma…….Member.

 

Present:-       Sh.Satpal Singh Advocate for the complainant.

                   Sh.Rohit Gupta Advocate for Ops no.1 and 2.

                   Sh.Somesh Garg Advocate for OP No.3.

                   Sh.R.S.Mann Advocate for OP No.4.

 

                  

ORDER:

 

                        This complaint has been filed by the complainant u/s 12 of the Consumer Protection Act 1986, on the averments that he was sole proprietor of firm Rinku Automobiles and  doing the business of sale of tractor and other vehicles spare parts including mobil-oil. He got insured his goods with Opposite Parties (in short Ops) No.1 and 2, vide insurance policy No. OG-12-1206-4001-00001055 for an amount of Rs.seven lakhs. Unfortunately, on the night of 15.6.2012 at about 10.05 PM fire broke out in the shop  due to short circuit of electricity. After getting information from  Kaka Singh son of Sadha Singh he reached the spot and fire brigade was called. Employees of fire brigade Centre Nilokheri extinguished the fire, but all the goods lying in the shop were totally burnt. A Daily Diary Report was lodged in the Police Station Butana regarding the  said  incident and intimation was also given to the OP No.1, who deputed Vishal Aggarwal to assess the loss. The surveyor visited the spot and assessed the loss as Rs.6, 94,845.00.He completed all the formalities,  but the Ops no.1 and 2  issued a cheque of Rs.1,13,657/- only  in an illegal and unlawful manner. The said cheque  was accepted by him under protest. Thereafter, he approached OPs no.1 and 2 a number of times and requested for payment of the remaining amount, but they postponed the matter on one pretext or the other and lastly refused to pay the balance amount. Ultimately, registered legal notice dated 18.9..2012 was served upon the Ops no.1 and 2,  but the same also did not yield any result. It has further been pleaded that goods burnt due to fire were under hypothecation of Punjab National Bank, Nilokheri and the said bank had got insured the same from Oriental Insurance Company Limited i.e. OP No.4, vide cover note No.881929,  valid from  12.1.2012 to 11.1.2013.On coming to know about the said fact, he approached the OP no.4 for making good the loss, but to no effect. In this way, there was deficiency in services on the part of the OPs due to which he suffered mental harassment apart from financial loss.

 

2.                 Notice of the complaint was issued to Ops. Ops no.1 and 2  filed joint written statement  controverting the claim of the complainant. Objections have been raised that the complainant has got no loucs standi and cause of action to file the present complaint; that this Forum has got no jurisdiction to entertain and adjudicate the present complaint as the complicated questions of law and facts are involved; that complaint is not maintainable in the present form and that the complainant is not consumer qua the Ops.

 

          On merits, it has been admitted that stock of the  tractor parts in the shop of the complainant was insured under the Standard Fire and Special Perils policy for a sum assured of Rs.seven lakhs, commencing from 17.12.2011 to 16.12.2013.It has further been admitted that fire broke out in the shop of the complainant on the night 

 

 

15.6.2012. It has been submitted that Vishal Kumar Aggarwal was appointed as surveyor and loss assessor, who assessed the loss to the tune of Rs.2,27,315/-  and submitted assessment report dated 16.7.2012. There were two insurance policies of Rs.7.00 lakhs each, one was from Bajaj Allianz and another from Oriental Insurance Company. The net liability of Rs.2,27,315/- was divided in two equal shares and accordingly an amount of Rs.1,13,657/- was paid to the complainant by OP No.1  in full and final discharge of his claim and the amount was accepted  by the complainant  without any protest.  Therefore, he is estopped from filing the present complaint from  his own acts and conduct. There was no deficiency in services on the part of Ops no.1 and 2.

 

3.                OP no.3 filed separate written statement disputing the claim of the complainant. Objections have been raised that complaint is not maintainable against OP no.3 as there was no deficiency in service on its part and that complainant has suppressed the material facts from this Forum.     

 

                   On merits,  it has been pleaded that complainant  being proprietor of M/s Rinku Automobiles obtained loan of Rs.5.00 lakhs  from the OP No.3 under cash credit(hypothecation) limit against the hypothecation of stock, mortgage of shop and guarantee of his father  Jai Bhagwan for  business  of spare parts.  As per the hypothecation agreement dated 16.11.2011, stock and goods were got insured by OP no.3 at the cost of complainant from OP no.4. When the complainant informed about the  incident of fire, intimation was sent to  OP No.4 on telephone as well as by the letter and e-mail.  Surinder Kumar Singla, Surveyor of OP No.4 visited the spot for assessment of loss, but the complainant could not produce the documents including bills for settlement of the claim. Documents which were in possession of OP No.3 were provided. Therefore, there was no deficiency in services on the part of OP No.3.

 

 

4.                OP No.4 also filed written statement disputing the claim of the complainant. Objections have been raised that complaint is not  maintainable; that there was no deficiency in services on the part of OP No.4 and that OP No.1 has already satisfied the claim of the complainant by paying a sum of Rs.1,13,457/-.

 

                   On merits, it has been admitted that shop of the complainant was under insurance cover of OP No.4. It has been submitted that the complainant did not inform the OP no.4  in time regarding the alleged incident of fire. OP No.4 was informed after  lodging claim against the OPs no.1 and 2. The bills qua the goods were alleged to have been burnt in the incident of fire. Bills which were submitted by the complainant to OP No.4 were got verified and it was found that the said bills were not issued by the concerned firms and were forged, therefore, OP no.4 repudiated the claim of the complainant  and sent intimation, vide registered letter dated 4.3.2013.

 

5.                In evidence of the complainant his affidavit Ex.C1 and documents Ex.C2 to Ex.C39 have been tendered.

 

6.                In evidence of Ops, affidavit of Shri Anil  Yadav, Senior Manager, Punjab National Bank Ex.OP3/A, affidavit of  Sarpreet Kaur Ahluwalia, Senior Executive of Bajaj Allianz General Insurance Co. Ltd.  Ex.OP1&2/A, affidavit of  Sh.R.S.Balahan Ex.R4/A  and documents Ex.OP3/B to Ex.OP3/H and Ex.OP1&2/B have been tendered.

 

7.                We have appraised the evidence on record, the material circumstances of the case and  the arguments advanced by the learned counsel for the parties.

 

 

8.                The complainant was doing business of spare parts as sole proprietor of firm M/s Rinku Automobiles, Sandhir Road, Nilokheri. The goods/stock  in his shop was insured with Ops no.1 and 2  for assured sum of Rs.7.00 lakhs. He had obtained loan of Rs.five lakhs from OP no.3 bank and as per hypothecation agreement, the bank also got insured the stock/hypothecated goods with OP No.4  for a sum of Rs.seven lakhs and the amount of premium was debited in the account of the complainant.  The stock kept in the shop of the complainant was gutted in the fire, which took place on the night of 15.6.2012. This fact stands  established form the affidavit of complainant Ex.C1, Copy of the Daily Diary report Ex.C5 and certificate issued by the  Fire Brigade, Nilokheri Ex.C7.  Even the  Ops No.1 and 2  in the written statement have not disputed the factum of fire in the shop of the complainant and burning of stock/hypothecated goods kept therein. Ops no.1 and 2 appointed  the surveyor, who assessed the loss. Intimation regarding fire incident was sent by OP no.3 to the OP No.4, who also appointed surveyor.

 

 9.                  As per the case of the complainant, the loss was assessed as Rs.6,94,845/- as per details of burnt items Ex.C6. However, Ops no.1 and 2 have submitted that surveyor assessed the loss as Rs.2,27,315/- and  out of that half share i.e. Rs.1,13,657/- was paid to the complainant because, remaining half share was to be paid by OP No.4, with whom also  the stock/hypothecated goods were insured. The OP No.4 repudiated the claim of the complainant on the ground that bills which were supplied by the complainant were found fake.

 

10.               The report of surveyor appointed by Ops no.1 and 2  Ex.OP1 &2/B shows that  he found the value of the stock affected as per list drawn on 21.6.2012 as Rs.4,57,904/0, through the complainant submitted the claim bills of Rs.9,55,275/-  It is settled proposition of law that  the report of surveyor is a valuable document and should be given due credence unless there are adequate reasons to discard it.  Therefore, the value of the stock affected is to be considered as Rs.4, 97,904/- as assessed by the surveyor.

 

11.               The surveyor deducted 10% disallowance for possible variation in quality/rate/stock. This deduction appears to be quite reasonable and there is no reason to discard the basis    of deduction made by the surveyor in this regard because  such variation is possible. An amount of   Rs.3000/- was deducted by the surveyor for salvage.  The burnt  spare parts of metal could certainly be sold and the same could fetch the amount assessed by the surveyor, therefore, this deduction was also justified. Surveyor also deducted 25% as dis allowance for possible dead stock, but it has not been clarified in the report as to which stock/item could be considered as dead stock. Spare parts of tractor and other motor vehicles cannot be considered as dead stock, because there is no time limit to use the same. There is nothing on the file which may show that some items in the stock were not useable and as such could not be sold. Therefore, the deduction regarding possible dead stock was not justified in any manner. The surveyor also deducted 25% as sub standard condition of the stock, On what basis the said deduction was made has not been explained in the report. Spare parts must have been manufactured by the concerned manufacturer as per standards and to be fitted in the tractor and other motor vehicles. No manufacturer would like to manufacture any sub standard spare part, which cannot be used for repair of any vehicle. There is no material on the basis of which it can be said that some items in the stock were of sub standard condition and as such the deduction to the extent of 25%  in this regard by the surveyor was completely arbitrary and cannot be considered as reasonable or justified. So far as the deduction of Rs.30000/- as excess clause is concerned, the surveyor justified the same in his report on the ground that from the intimation given by the bank to OP no.4, it was clear that there were three fire incidents, therefore, loss assessment was subjected to three clauses of Rs.10, 000/-each. The said deduction was made by the surveyor as per terms and conditions of the insurance policy. Therefore, there is no reason to interfere in the assessment regarding the excess clause.

 

12.               In view of the afore  discussed facts and circumstances, we arrive at the conclusion that the complainant was entitled to the amount of Rs.4,97,904/- minus Rs.49790/- as 10% disallowance possible variation in quality rate/ cost, minus Rs.3000/- as deduction for salvage and  minus Rs.30,000/- as deduction under excess clause. Thus, the total amount of loss suffered comes to Rs.4,15,114/-.

                

                        The learned counsel for the OP no.1 and 2 submitted that as per instructions of Insurance Regulatory Development Authority,  when   goods are  insured with two insurance companies, both companies are to  share the compensation   proportionately.  The learned counsel for the OP no.4 could not point out any contrary instruction in this regard.  Therefore, Ops no.1 and 2 are liable to pay  half share of the amount of Rs.4,15,114/-.The  Ops no.1 and 2 have already paid the amount of Rs.1,13,657/- and the  balance amount of Rs.93900/-shall be paid by the Ops no.1 and 2. The remaining half share of the total amount which comes to Rs.2 07557/- shall be paid by the OP no.4. .  As the Ops had not satisfied the claim of the complainant, there was deficiency in services on the parts of the Ops.    The complainant shall also be entitled to interest @9% per annum  on the said amounts from the date of filing of the present complaint i.e. 4.12.2012 till actual realization. The complainant shall also be entitled to a sum of Rs.11, 000/- as compensation for the mental harassment suffered by him and for the litigation expenses. The amount of the compensation of Rs.11, 000/- shall also be paid by both the insurance companies in equal shares. The Ops shall make the compliance of this order within a period of thirty days from the date of receipt of the copy of this order. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

 

Announced
dated:30.11.2015                                                                         

                                                               (K.C.Sharma)

                                                                   President,

                                                         District Consumer Disputes

                                                          Redressal Forum, Karnal.

(Anil Sharma )  (Smt.Shashi Sharma)    

    Member            Member.

 

 

 

 

Present:-       Sh.Satpal Singh Advocate for the complainant.

                   Sh.Rohit Gupta Advocate for Ops no.1 and 2.

                   Sh.Somesh Garg Advocate for OP No.3.

                   Sh.R.S.Mann Advocate for OP No.4

 

                   Arguments heard. For orders, the case is adjourned to 30.11.2015.

 

Announced
dated:27.11.2015                                                                         

                                                               (K.C.Sharma)

                                                                   President,

                                                         District Consumer Disputes

                                                          Redressal Forum, Karnal.

(Anil Sharma )  (Smt.Shashi Sharma)    

    Member            Member.

 

 

Present:-       Sh.Satpal Singh Advocate for the complainant.

                   Sh.Rohit Gupta Advocate for Ops no.1 and 2.

                   Sh.Somesh Garg Advocate for OP No.3.

                   Sh.R.S.Mann Advocate for OP No.4

 

                   Vide our separate order of the even date, the present complaint has been accepted. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

 

Announced
dated:30.11.2015                                                                         

                                                                (K.C.Sharma)

                                                                   President,

                                                         District Consumer Disputes

                                                          Redressal Forum, Karnal.

(Anil Sharma )  (Smt.Shashi Sharma)    

    Member            Member.