BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SIRSA.
Consumer Complaint no.297 of 2017
Date of Institution : 17.11.2017
Date of Decision : 13.2.2019.
Rakesh Kumar aged about 33 years son of Shri Krishan Lal, resident of village Goriwala, Tehsil Goriwala, District Sirsa.
……Complainant.
Versus.
1. Future Generali India Insurance Company Limited, 1st Floor, Plot No.401, 402, Delhi Road, Model Town, Rohtak, Haryana, 124001 through its Senior Divisional Manager.
2. Sarva Haryana Gramin Bank, village Ganga, Tehsil Dabwali, District Sirsa, through its Branch Manager.
...…Opposite parties.
Complaint under Section 12 of the Consumer Protection Act,1986.
Before: SH. R.L. AHUJA …………..PRESIDENT.
SH. ISSAM SINGH SAGWAL ……MEMBER.
Present: Sh. R.S. Bhakar, Advocate for the complainant.
Sh. A.S. Kalra, Advocate for opposite party no.1.
Opposite party no.2 exparte.
ORDER
The case of complainant in brief is that complainant is running a shop situated at Sangria road, near Bus stand, Goriwala, District Sirsa under the name and style of Goriwala Electronics and Furniture House, Goriwala. The complainant has taken the shop on rent and started his business for his livelihood. This shop consists of three portions i.e. basement, ground and first floor. It is further averred that complainant has got insured his above said shop alongwith stock available in the shop with op no.1 insurance company vide insurance policy No.2017-F0368756-FRE for the period w.e.f. 30.5.2017 to 29.5.2018 under standard fire and special perils insurance and that time the stock of the shop of complainant was assessed by insurance company worth Rs.15,00,000/- hypothecated with op no.2. The complainant has paid Rs.5865/- as insurance premium to the insurance company. It is further averred that as per insurance policy, fire and theft was included in the above said insurance policy. It is further averred that at about 12.15 at night of 26/27.6.2017, the shop of complainant was burnt badly due to short circuit and the articles/ stock and goods lying in the shop were badly burnt and due to this, the complainant suffered serious loss. The articles worth Rs. 6,45,595/- were burnt. That many fire brigade vehicles were called from M.C., Mandi Dabwali and services of Fire Brigage and Emergency Services, Mandi Dabwali were also taken who controlled over serious fire after hard work of one and half hours. In this incident, the complainant suffered loss of Rs.6,45,596/-. The matter was reported to the police and police of P.S. Goriwala lodged rapat no.1 dated 29.6.2017 regarding this incident. The police recorded statements of Lal Chand Chowkidar of village Goriwala who has stated about burning of shop of complainant and controlled by fire brigade. It is further averred that complainant has lodged his claim regarding burning of shop and stock availing in the shop to the insurance company and submitted all required documents to the company with the request to pay compensation to him but all in vain and company has been avoiding to make payment of loss to the complainant intentionally and malafidely. That the stock which was available in the shop was hypothecated with the bank and complainant was making payment of installments of the loan amount to the bank but due to such huge loss the complainant is unable to pay any installment to the bank. It is further averred that the complainant approached and requested the ops on many occasions to pay him the above said loss but the ops have refused to do so. The act and conduct of the ops comes under the ambit of deficiency in service and unfair trade practice due to which the complainant is suffering from serious harassment and mental tension. That even the complainant served a legal notice dated 3.10.2017 upon the ops with the request to pay the amount of above said loss to the complainant within 15 days from the receipt of legal notice but all in vain and the ops have not taken any action in the matter. Hence, this complaint.
2. On notice, opposite party no.1 appeared and filed written statement taking certain preliminary objections. It is submitted that on receiving the claim, the answering op appointed M/s TEAM Insurance Surveyors and Loss Assessors LLP an IRDA approved surveyor with Licence No.200028 valid upto 12.1.2020 to conduct the survey of the shop/ premises of the complainant/ insured and to assess/ ascertain the loss in order to process the claim of complainant as per IRDA guidelines/ policy terms and conditions. It is further submitted that said M/s TEAM Insurance Surveyors and Loss Assessors LLP “hereinafter called as the surveyor” carried out an intensive survey and loss assessment at the insured’ shop on 29th June, 2017. During the survey the said surveyor inspected the premises, took photographs and undertook a physical verification of the items since everything was physically identifiable on the affected floor of the insured’s premises. That the said surveyor also discussed/ interacted with the complainant alongwith other staff/ representatives at the shop. It is further submitted that said surveyor inspected various documents like ledgers, account books, trading accounts, bill books/ purchase books etc. during the inspection/ survey to ascertain the value and quantity of stocks that were damaged. It is further submitted that the value of the damaged goods was ascertained after applying their rates from the supporting bills that were made available by the insured/ complainant. The said surveyor also conducted physical verification of the goods that could be physically verified to ascertain/ calculate the losses likely to have suffered by the complainant. That the said surveyor after conducting detailed investigation as mentioned above assessed the total loss as under in its final survey report dated 2.2.2018:
a. Total value of claim admissible
based on purchase bills provided: Rs.1,10,800/-
b. Less adjustment for variation in rates: Rs.5540/-
c. Gross Assessed Loss: Rs.105260/-
d. Less notional salvage: Rs.1260/-
e. Assessed Loss: Rs.104,000/-
f. Less Under Insurance @8.57% Rs.8908/-
g. Adjusted Loss: Rs.95,092/-
h. Excess (Minimum): Rs.10,000/-
Net Adjusted Loss: Rs.85,092/-
It is further submitted that said surveyor vide its email dated 29.9.2017 had informed the complainant/ insured that his claim has been assessed at Rs.85,092/- and he was asked to give his consent for the said amount as a final settlement of his claim by the op. The complainant was informed that he should revert by 10.10.2017 with his consent and/or representation if any so as to enable the surveyor to take up his matter with the op/ insurance company so that the matter could be closed/ settled. The said email was never replied by the complainant nor he made an effort to contact either with the op or the surveyor with his consent or any other comment. It is further submitted that when no consent/ comment was received from the complainant, the surveyor vide email dated 14.12.2017 reminded the complainant/ insured to co-operate with the surveyor and come forward for a joint meeting with the op/ insurance company in order to settle the claim, but the complainant neither responded to the said email nor he came forward to participate in the joint meeting as was suggested by the surveyor. It is further submitted that op/ insurer vide its letter dated 15.1.2018 informed the complainant/ insured that his claim had been assessed by the surveyor and his loss after various adjustments was assessed as Rs.85,092/-. The op/ insurance company requested the complainant to revert within seven working days with the format provided and other necessary details. But the complainant chose not to adhere to the contents of the email of the op/ insurance company and in turn chose to file this complaint which is nothing but premature in order to pressurize the op/ insurance company. It is further submitted that when a claim is received by the insurance company, the claim is assessed by the qualified and IRDA approved surveyor to assess all facts and extent of loss/ damage. A claim is processed when complete survey report is obtained and is either paid or repudiated as per the recommendations of the appointed surveyor. In the present case, the answering op/ insurance company appointed an IRDA approved surveyor who diligently conducted the survey and submitted their findings both to the complainant and the insurance company. All other contents of the complaint are also denied and prayer for dismissal of complaint made.
3. Opposite party no.2 did not appear despite notice and was proceeded against exparte.
4. The complainant and op no.1 produced their respective evidence by way of affidavits and documents.
5. We have heard learned counsel for complainant as well as learned counsel for op no.1 and have perused the case file carefully.
6. The complainant in order to prove his complaint has furnished his affidavit Ex.CW1/A in which he has reiterated all the averments made in his complaint. The complainant also produced copy of pan card Ex.C1, copy of claim list Ex.C2, copy of policy schedule Ex.C3, copy of risk details Ex.C4, copy of letter of Naib Tehsildar written to Tehsildar, Mandi Dabwali Ex.C3, copy of report Ex.C6, copies of various bills Ex.C7 to Ex.C28, copies of letters Ex.C29, Ex.C30, copy of rojnamcha Ex.C31, copy of report Ex.C32, copy of application moved to SDM, Dabwali Ex.C33, copies of receipts of Municipal Committee Ex.C34, Ex.C35, copy of fire report Ex.C36, copy of newspaper Ex.C37, copy of application moved to Incharge Police Post Goriwala Ex.C38, copy of rapat Ex.C39, copy of legal notice Ex.C40, copies of postal receipts Ex.C41 and Ex.C42. On the other hand, op no.1 produced affidavit of Sh. Vidula Kaushik Manager Ex.R1, copy of final survey report Ex.R2, copies of emails Ex.R3, Ex.R4 and copy of letter dated 15.1.2018 Ex.R5, affidavit of Sh. Saurabh Murarka Surveyor and Loss Assessor Ex.R6 and copy of policy schedule Ex.R7.
7. It is an admitted fact on record that complainant has got his shop insured alongwith stock available in the shop with the opposite party no.1 vide insurance policy No.2017-F0368756-FRE for the period w.e.f. 30.5.2017 to 29.5.2018 under standard fire and special perils insurance on payment of premium of Rs.5865/- and that time the stock of the shop of complainant was assessed by insurance company worth Rs.15,00,000/- hypothecated with op no.2. It is also undisputed fact that in the intervening night of 26/27.6.2017 fire took place in the first floor of the shop of complainant and shop was badly burnt due to short circuit and electronic goods and furniture lying on the first floor were burnt. The complainant has given details of the allged items in para no.4 of the complaint. Due intimation was given to the Police and police of P.S. Goriwala lodged rapat no.1 dated 29.6.2017. Due intimation was given to op no.1 and op no.1 had appointed M/s Team Insurance Surveyors and Loss Assessors who visited and inspected the spot on 29.6.2017 and submitted their detailed report after taking into consideration relevant documents which complainant was required to submit and submitted their detailed report which is Ex.R2 on the file.
8. The bone of contention between parties is qua quantum of claim. As per complainant, he lodged claim of Rs.6,45,595/- qua the costs of the items which were burnt in the fire and has also claimed Rs.3,00,000/- on account of compensation and Rs.20,000/- as costs of litigation. On the other hand, op no.1 has relied upon report of surveyor who has assessed net payable loss of complainant to the tune of Rs.85,092/-. During the course of arguments, learned counsel for complainant has relied upon report of the Naib Tehsildar, Goriwala and SDM, Dabwali who had also assessed the loss of complainant as claimed by the complainant. The perusal of the evidence of complainant reveals that complainant has not mentioned any fact qua maintaining of the stock register by him nor he has produced same before team of the surveyor/ loss assessor, nor the complainant has placed on record copy of the same before this Forum in order to prove this fact that how much stock was available on the day of incident. Moreover, it is an admitted fact on record that fire took place in the first floor of the shop of complainant which was being used by complainant as godown and there was no loss at all on the ground floor as well as basement of the shop of complainant. The complainant has placed on record certain details/ bills of purchase of the articles from the different centers / shops which are Ex.C9 to Ex.C28, but however, it cannot be presumed from these bills that all the articles which are mentioned in these bills so purchased by complainant were lying on the first floor of the shop of complainant where fire took place. Though these reflect purchase made by complainant but complainant has not placed on record any document from which it could be proved that how much articles were sold by him out of articles so purchased by him.
9. During the course of arguments, learned counsel for complainant has not disputed inspection and visit of the surveyor at the spot nor the complainant has disputed the report of the surveyor. The perusal of the evidence of complainant reveals that complainant has never challenged the report of the surveyor nor he has filed any objection against report of the surveyor nor he has moved any application for appointment of second surveyor if he was not satisfied with the report of the surveyor. The perusal of the report of the surveyor reveals that the surveyor has made the elaborate report while assessing the loss of the complainant and has specifically mentioned that reference bills as stock purchase bills have not been produced by the complainant. So it appears that team of the surveyors made all their efforts to assess the loss of the complainant in proper manner. Thus, there is no reason to ignore the report of the surveyor rather same inspires confidence and appears to be reliable and trustworthy and it was legal obligation of the op no.1 to make payment on the basis of surveyor report and non payment of the same clearly amounts to deficiency in service on the part of op no.1. However, the judgment relied upon by learned counsel for complainant in case titled as Lavlesh Singh Vs. UIIC, 2013 (4) CPJ 398 (NC) is not applicable in this case being on different facts and circumstances to the present case.
10. In view of above, we partly allow the present complaint and direct the opposite party no.1 to settle and pay the claim amount as per surveyor’s report within a period of 30 days from the date of receipt of copy of this order, failing which the complainant will be entitled to interest @7% per annum on the payable amount from the date of order till actual realization. We further direct the op no.1 to further pay a sum of Rs.10,000/- as compensation and Rs.2000/- as litigation expenses to the complainant. However, no liability of op no.2 of any kind is made out and as such complaint against op no.2 stand dismissed. A copy of this order be supplied to the parties free of costs as per rules. File be consigned to the record room.
Announced in open Forum. Member President,
Dated:13.2.2019. District Consumer Disputes
Redressal Forum, Sirsa.
