BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, SIRSA.
Consumer Complaint no. 534 of 2019.
Date of Institution : 12.9.2019
Date of Decision : 25.05.2022.
Naresh Kumar son of Shri Diwan Chand, resident of V.P.O. Darbi, Tehsil and District Sirsa (Haryana).
……Complainant.
Versus.
1. Future General India Insurance Company Limited, Plot No.401-402, Delhi Road, near HDFC Bank, D-Park, Model Town Rohtak, Haryana- 124001 through its Manager.
2. Sarv Haryana Gramin Bank Branch Darbi, Tehsil and District Sirsa through its Senior Branch Manager.
...…Opposite parties.
Complaint under Section 35 of the Consumer Protection Act, 2019.
Before: SHRI PADAM SINGH THAKUR…………….PRESIDENT.
SMT. SUKHDEEP KAUR………………… MEMBER.
SH. SUNIL MOHAN TRIKHA……………MEMBER
Present: Mrs. Pushpa Mehta, Advocate for complainant.
Sh. R.K. Mehta, Advocate for opposite party no.1.
Sh. S.L. Sachdeva, Advocate for opposite party no.2.
ORDER
The complainant has filed the present complaint under Section 35 of Consumer Protection Act, 2019 against the opposite parties (hereinafter referred as OPs).
2. In brief, the case of complainant is that upon issuance of bee keeping farming, training certificate by the Khadi and Village Industry Commission dated 5.3.2018 after completion of training, the Commission recommended to op no.2 bank for providing finance facility of Rs. five lacs for bee keeping farm to the complainant at his village Darbi. The op no.2 bank for providing the loan for proposed bee keeping farm got it insured with op no.1 by deducting an amount of Rs.3540/- as premium on 6.4.2018 and same was got renewed by the bank itself being master policy holder on 12.04.2019 against payment of Rs.3710/- duly deducted from the loan account of complainant. It is further averred that bee farming was started in the month of April 2018 and regular installments were being paid by him but unfortunately in the intervening night of 21/22.05.2019, 90 boxes having bees in it were stolen from the site. The matter was reported to the police of Police Station Ding on 22.05.2019 and FIR No.67 dated 31.05.2019 under Section 379 IPC was lodged by the police. Op no.1 was also intimated through its agent Vikas and claim was lodged. That one Krishan official of op no.1 had visited the site in order to verify the facts of theft and claim of complainant was found genuine but op no.1 vide letter dated 30.05.2019 repudiated the claim on the ground that “Assets/ Property kept in open not covered’ and providing of seven days time in this letter is also just formality and said ground taken by op no.1 is wrong and illegal and the act and conduct of op no.1 clearly amounts to deficiency in service and unfair trade practice. Both the letters issued by ops i.e. repudiation letter and letter seeking clarification before repudiation are of same date i.e. 30.5.2019 and unfairness of the company was not stopped as both the letters were dispatched on 19.07.2019 which were received by complainant on 24.07.2019 i.e. after 55 days from repudiation. It is further averred that op no.1 insurance company cannot be permitted to raise such type of objection over the genuine claim on the above said flimsy ground as policy itself suggests in the column of risk detail “storage in open”, thus the op no.1 is legally bound to indemnify the loss of beehive boxes. The complainant is also victimized at the hands of op no.2 bank as op no.2 has been insisting to pay the installments without caring the hardship being faced by complainant on account of theft and non reimbursement of insured sum, whereas bank is required to play an effective role being master policy holder to facilitate for insured sum and bank ought to have withhold the process of recovery till realization of insured sum. The complainant is entitled to insured sum of Rs.4.5 lacs alongwith interest from the date of theft till the realization and op no.2 is liable to withheld the process of recovery of installments and interest thereon till then and complainant is also entitled to compensation for harassment and litigation expenses. Hence, this complaint.
3. Ops were served. Op no.1 filed written statement raising certain preliminary objections regarding estoppal, maintainability, concealment of material facts, no locus standi, no cause of action and that complainant failed to comply with the terms and conditions of the policy. It is also submitted that no deficiency of service can be attributed to answering op in declining the present claim and closing of the claim file of the insured as ‘No Claim’. The acts of insurance company in closing the claim file of complainant are legal, justified and bonafide one and are based upon the insurance contract and terms and conditions and exclusion clauses of the policy cover obtained by the insured. It is further submitted that total fault lies upon the part of the insured. The insured failed to comply with the contractual obligations and did not co-operate with the insurance company and did not comply with the formalities and necessities and did not submit the desired requisite documents and information in spite of repeated request, letters. On merits, it is submitted that according to the policy terms and condition, this loss is not tenable, on the basis of survey report the beehive boxes were stolen by some unknown miscreants from the open field, however, as per policy condition “assets/ property kept in open not covered, the policy covers stock of wooden boxes whereas the items under loss are beehives i.e. wooden boxes having 10 nos. of honey houses each, hence loss towards the beehives is not covered and that claim has been preferred under Burglary (house breaking) insurance policy, whereas the loss was due to theft which is not as insured peril under the subject policy. With these averments dismissal of complaint prayed for.
4. Op no.2 also filed written statement raising certain preliminary objections. The factum of advancement of loan to the complainant and deducting of premium amounts by op no.2 for insurance is admitted. It is submitted that before advancement of loan, the complainant had purchased the bees and other articles with the loan amount which were verified by answering op at the time of its purchase only. Thereafter, none on behalf of answering op has ever visited the site of complainant. It is further submitted that as per official record of op no.2 bank there has been no complaint with regard to theft of the bees boxes and complainant never gave any intimation to this effect to op no.2 bank. It is the insurance company who is fully responsible to indemnify the loss of complainant, if any. Remaining contents of complaint are also denied and prayer for dismissal of complaint qua op no.2 made.
5. Complainant has tendered his affidavit Ex.CW1/A, online submission of form Ex.C1, copy of certificate of commission Ex.C2, copy of pass book Ex.C3, copy of final report under Section 173 Cr.P.C. Ex.C4, copies of letters dated 30.5.2019 Ex.C5, Ex.C6, track record Ex.C7, registered cover Ex.C8, copy of policy schedule Ex.C9, thanks letter for taking insurance with tax invoice/ insured details Ex.C10, copy of bill Ex.C11 with letter of M/s R.K. Natural Honey Bee Farm regarding issuance of bill.
6. Op no.2 has tendered affidavit of Sh. Rajinder Singh Branch Manager as Ex.RW1/A. Op no.1 has tendered affidavit of Sh. Nitin Hanumant Tawre an authorized person Ex.R1, copies of letters dated 30.5.2019 and 18.7.2019 Ex.R4, copy of survey and loss assessment report Ex.R5, copy of policy schedule Ex.R6, terms and conditions of insurance policy Ex.R7, copy of statement of Naresh Kumar complainant Ex.R8 and copy of bill of R.K. Natural Honey Bee Farm Ex.R9.
7. We have heard learned counsel for the parties and have gone through the case file carefully.
8. Admittedly, the complainant started business of bee keeping farm in the month of April, 2018 in his village Darbi, District Sirsa after availing loan facility of Rs. five lacs from op no.2 bank and during the process of providing loan for proposed bee keeping farm, the op no.2 bank got insured the articles of farm from op no.1 insurance company by paying an amount of Rs.3540/- as insurance premium to op no.1 insurance company on 06.04.2018 from the account of complainant. Thereafter, on 12.04.2019 said insurance of farm was also got renewed by the bank from op no.1 against payment of Rs.3710/- from the loan account of complainant. The factum of payment of premium amount of Rs.3540/- to op no.1 for insurance of bee farm and then its renewal by paying premium amount of Rs.3710/- to op no.1 is also proved from the copy of pass book Ex.C3. The complainant has also placed on record copy of Burglary (House Breaking) Insurance Policy Schedule as Ex.C9, the perusal of which reveals that insurance policy was got renewed from op no.1 for the period 12.04.2019 to 11.04.2020 for the sum insured amount of Rs.five lacs and in Annexure of policy schedule, in the column of risk details, it is mentioned that property situated at village Darbi District Sirsa i.e. occupancy “Storage of category I hazardous Goods- Storage in Open” and in the column of description of property insured it is mentioned that “stock Bee Farming- Stock of wooden boxes” and insured amount is mentioned as Rs.5,00,000/-. So, from the said insurance policy schedule, it is very much clear that stock of bee farming i.e. beehives, bees alongwith wooden boxes were duly insured by op no.1 insurance company.
9. According to complainant, in the intervening night of 21/22.05.2019 i.e. during the subsistence of the policy in question, 90 boxes having bees in it were stolen and he immediately reported the matter to the police on 22.05.2019 and after investigation, police of Police Station Ding registered case under Section 379 IPC against unknown persons vide FIR No.67 dated 31.5.2019. The complainant has also placed on file copy of final report under Section 379 IPC submitted by police against unknown persons as Ex.C4. The claim was lodged by complainant with op no.1 insurance company and Surveyor was also appointed who submitted his report Ex.R4 and Surveyor in his report opined that considering the fact that the subject loss is not tenable under the policy under which it has been preferred, we vide our letter dated 30.5.2019 and 18.07.2019 informed the insured about the non existence of insurer’s liability and we are closing the file as No Claim. The copy of letter dated 30.5.2019 written by Surveyor to the complainant has also been placed on file as Ex.C5, the relevant portion of which is reproduced as under:-
On the basis of our survey and verification of location of loss & the affected items under loss and after having gone through the insurance policy under which the claim has been preferred; our comments are as follows:
- The Beehive boxes were stolen by some unknown miscreants from the open field, however, as per policy condition, “Assets/ property kept in open not covered’.
- The policy covers “Stock of Wooden Boxes”, whereas the items under loss are “Beehives i.e. wooden boxes having 10 nos. of Honey houses each”.
- The claim has been preferred under ‘Burglary (House Breaking) insurance policy, whereas the loss was due to ‘Theft’ which is not an insured peril under the subject policy, in our opinion.
In view of the above, the said claim is not tenable in our opinion. However, you may revert with clarification with supporting within 7 days. Failing of which your covered on above facts will be presumed and we would close this case and submit our independent report as ‘No Claim’.”
10. The Surveyor vide its another letter written to complainant which is also of dated 30.05.2019, the copy of which has been placed on file by complainant as Ex.C6 by giving reference of its above said letter dated 30.05.2019 bearing No. FGI/MISC/-519-210/ Letter dated 30.05.2018 (not 30.5.2018 as date of incident is even 21/22.5.2019) asked the complainant as under:-“We have not received any response from your end, on our observations as mentioned in our sent letter. Therefore, we are closing this case and submitting our independent report as No-Claim, to the insurer.”
First of all, above said both letters written by Surveyor to the complainant are of dated 30.05.2019 and therefore first letter dated 30.05.2019 (Ex.C5) giving 7 days time to the complainant to submit his clarification is just a formality as vide another letter which is also of dated 30.5.2019, the Surveyor is asking the complainant that they are closing this case as they have not received any response from your end. Further more, both the above said letters were dispatched on 19.07.2019 and on 22.07.2019 and were received by complainant on 24.07.2019 as is evident from copy of track record placed on file by complainant as Ex.C7. So, this clearly speaks intention of the Surveyor appointed by op no.1 insurance company for closing the claim of complainant as No Claim and this all also speaks about the wrong intention of op no.1 insurance company for not settling the claim of complainant.
12. Now we come to the main point that whether grounds taken by Surveyor in his Surveyor and Loss Assessment report as well as in the above said letter dated 30.05.2019 have any merit, are genuine or not? The answer is in negative. As mentioned above, the storage of beehives in wooden boxes was already in open area and this factum was already in the knowledge of insurance company op no.1 before doing insurance of the bee keeping farm and as such it is duly mentioned in the policy schedule that storage is in open, therefore, now mentioning in the said letter dated 30.5.2019 that Assets/ property kept in open not covered on the basis of policy condition is wrong and illegal.
13.Then second ground taken by Surveyor in its letter dated 30.5.2019 is that policy covers “Stock of Wooden Boxes”, whereas the items under loss are ‘Beehives i.e. Wooden Boxes having 10 nos. of Honey houses each”. This ground taken by Surveyor is too wrong and illegal because in the column of description of property insured, it is clearly mentioned that stock i.e. Bee farming, stock of wooden boxes were insured for the sum of Rs.five lacs and as such all the business of bee farming including bees, beehives and wooden boxes were insured for an amount of Rs. five lacs and therefore, now it cannot be said that only stock of wooden boxes was insured and same is not justified at all.
14. The third point raised by Surveyor of the insurance company is that the claim has been preferred under “Burglary (House Breaking) insurance policy, whereas the loss was due to “Theft” which is not an insured peril under the subject policy, in our opinion. That point raised by Surveyor seems to be important to some extent and material. Admittedly, 90 boxes including bees were stolen in the intervening night of 21/22.05.2019 and police also registered case under Section 379 IPC against some unknown persons for theft of 90 boxes. In this regard, op no.1 has relied upon terms and conditions of Burglary and Housebreaking Insurance Ex.R7, the perusal of which reveals that insurance is payable if property shall be lost, destroyed or damaged by Housebreaking (theft following upon an actual forcible and violent entry of or exist from the premises by the person or persons committing such theft) or Hold up. Learned counsel for op no.1 contended that firstly since property i.e. insured items were kept in open and secondly as site was not being guarded by anyone during night time, so it is also negligence of complainant and therefore, op no.1 insurance company has rightly refused to pay the claim to the complainant. But however, we do not agree with the contention of learned counsel for op no.1 because firstly it is not proved by op no.1 insurance company through reliable and convincing evidence that terms and conditions of policy were also supplied to the complainant at the time of insurance and secondly a simpleton person does not know that only claim will be admissible in case of theft following upon an actual forcible and violent entry and thirdly in the policy schedule only supplied to the complainant word Burglary (House Breaking) Insurance Policy is mentioned and Burglary means is also theft and without supplying of terms and conditions of insurance policy, it is not known that theft should be only due to forcible and violent entry. No doubt, complainant is also negligent to some extent in leaving the site of bee farming unattended and by not guarding the same through any person as per his statement given to the police on the basis of which FIR was registered and in his statement he has stated that at 5.00 p.m. in the evening of 21.05.2019 after seeing the boxes, he went to the house and when in the morning of 22.05.2019 at 8.00 a.m. he went to the Farm, he found that there were less boxes. But however, it is settled proposition of law that genuine claim of the claimant cannot be denied in toto on the basis of mere technicalities and ought to be have been settled on non standard basis.
15. Now, we see entitlement of the claim amount of complainant. The Surveyor in its report has mentioned that insured had reported that there were total 120 nos. of beehives boxes and the value of the same has been shown as Rs.5,34,000/- but the insured sum was of Rs.5,00,000/-. However, Surveyor has made depreciation @25% from the actual stock and has held that value at risk was of Rs.4,00,500/-. Then while assessing the loss of 90 boxes at the rate of 4450/- each (the value of which comes to Rs.4,00,500), he has also deducted an amount of Rs.1,20,150/- from the amount of Rs.4,00,500/- on account of variation factor @30% and again he has made depreciation at the rate of 25% from the balance amount of Rs.2,80,350/- and has assessed loss to the extent of Rs.2,10,262.50 and while applying less excess clause at the rate of 5%, he has also deducted an amount of Rs.10,513/- from the amount of Rs.2,10,262.50 and as such he has net assessed the loss of the amount of Rs.1,99,749/- but remarked that net payable amount is Nil on the grounds mentioned above in its letter dated 30.05.2019. However, as already mentioned above, the three points raised by Surveyor of the insurance company have been found wrong and illegal and have only been raised to favour the insurance company which hired his services and only to deny claim of complainant. Applying of clause of variation factor @30% and applying depreciation clause for two times at the rate of 25% by the Surveyor is also not justified and is wrong and illegal. The complainant has also placed on record copy of bill of R.K. Natural Honey Bee Farm, village Badal, Tehsil Malout (Muktsar) dated 23.3.2018 as Ex.C11, which reveals that complainant purchased 100 bee boxes from said agency at the rate of Rs.600/- per box i.e. for an amount of Rs.60,000/- and he also purchased 1000 honey house at the rate of Rs.385/- i.e. for an amount of Rs.3,85,000/- and other items were also purchased by complainant from said agency against total bill of Rs.4,59,000/-. By taking into account, the rate of 90 stolen beehive boxes of Rs.4,00,500/- as per Surveyor report, we are of the considered opinion that depreciation of 25% for one time from this amount will be justified and as such the balance amount comes to Rs.3,00,375/- and while applying excess clause at the rate of 5% as mentioned in policy schedule, the remaining amount comes to Rs.2,85,356/-. The complainant is entitled to 75% of the amount of Rs.2,85,356/- from op no.1 insurance company on non standard basis and as such payable amount by op no.1 comes to Rs.2,14,017/- (in round figure Rs.2,14,000). As such, op no.1 insurance company is liable to pay the said amount of Rs.2,14,000/- to the complainant as claim amount.
16. During the course of arguments, learned counsel for op no.1 has also contended that even there was delay in information to the police because as per report under Section 173 Cr.P.C., complainant has intimated the police on 31.5.2019 i.e. after about nine days of the incident in question and there was also delay in informing the insurance company about the incident. But this contention of learned counsel for op no.1 is hereby repelled in view of the law laid down by Hon’ble Supreme Court of India in case titled as Saurashtra Chemicals Ltd. vs. National Insurance Co. Ltd. CA No.2059 of 2015 decided on 13.12.2019 wherein it has been held that “ Claim of claimant repudiated on ground of violation of condition of policy- By appointing surveyor insurer is estopped from raising plea of violation of condition prescribing time limit for intimation of claim.” In the present case also, after intimation to op no.1, Surveyor was appointed who submitted his report and therefore, now insurance company cannot take the plea of delay in intimation.
17. In so far as allegation of complainant regarding deficiency of service on the part of op no.2 bank is concerned, there is nothing on file to prove his allegations against op no.2 bank. As such, complaint against op no.2 bank is liable to be dismissed.
18. In view of our above discussion, we partly allow the present complaint qua op no.1 and direct the opposite party no.1 insurance company to pay a sum of Rs.2,14,000/- to the complainant as insurance claim for the loss of his insured beehives boxes within a period of 45 days from the date of receipt of copy of this order, failing which complainant will be entitled to the above said amount alongwith interest @6% per annum from the date of order till actual realization. We also direct op no.1 to further pay a sum of Rs.15,000/- as composite compensation for harassment and litigation expenses to the complainant. However, it is made clear that before payment of above said amount to the complainant by op no.1, complainant have to submit no objection of bank in releasing the amount to the complainant as admittedly business of bee farming was started after availing loan facility from op no.2 bank or will have to furnish an undertaking that he will clear loan amount, if any or will pay installments regularly with acceptance of the op no.2 bank. The complaint against op no.2 bank is hereby dismissed. A copy of this order be supplied to the parties free of costs. File be consigned to the record room.
Announced : Member Member President,
Dated: 25.05.2022. District Consumer Disputes
Redressal Commission, Sirsa.
(JK)
