ORDERS:

Charanjit Singh, President;

1        The complainant has filed the present complaint by invoking the provisions of Consumer Protection Act under Section 34, 35 and 36  of the Consumer Protection Act (herein after called   as 'the Act') against the opposite parties by alleging that the complainant is running one shop under the name & style of M/s Happy Photo Stat & Mobile Centre at Margindpura Road, Adda Dialpura, Tehsil Patti, District Tarn Taran through its Prop. Jagroop Singh son of Baghel Singh resident of village Dialpura, Tehsil Patti, District Tarn  Taran and livelihood of the complainant and his family members is dependent upon the income of the above said shop. The opposite party No. 3 is authorized agent of opposite parties No. 1 and 2 and opposite party No. 3 being authorized agent had got insured the above mentioned shop alongwith items of the complainant vide insurance policy No. 4002/244913405/00/000 valid from 11.4.2022 to 10.7.2022 and issued the copy of policy/ cover note on same day and insured amount of policy is Rs. 50,00,000/- and its total premium as paid Rs. 584.10/-. The above said shop alongwith items of the complainant was insured from the opposite parties vide policy No. 4002/244913405/00/000 and paid premium to the insurance company. On 3-4.5.2022 at midnight some unknown  persons forcibly and illegally entered in the shop of complainant after broken the lock and they have stolen two LED, 29 pieces Inverter Amaze 5036, 13 Pieces Battery Amaze 2136, 14 Pieces Inverter Amaze AQ900, One A.C. Hitachi company, Two A.C. Samsung Company, Four A.C. Haier Company, One A.C. Company Hitachi (Inverter) from the shop of complainant. The Price and quantity of the stolen items is as follows:-

The complainant  informed to the police of Police Station Kacha Pacca and one FIR No. 026 dated 5.5.2022 under Section 457/380 of IPC has been registered at Police Station Kacha Pacca against unknown persons on the statement of complainant Jagroop Singh. After the day of theft, the complainant made several requests to the opposite parties for grant/ release of insurance claim of the above said theft to the complainant and also presented all the requisite papers including the bills and FIR registered by the police time to time, but inspite of this, the opposite parties did not pay any heed to it and no action has so far been taken by the opposite parties and has purely failed to give the insurance claim to the complainant.  The opposite parties neither supplied terms and conditions of insurance policy nor read over and explained to the complainant.  The complainant has prayed that the opposite parties may be directed

1. To accept the genuine insurance claim of the complainant i.e. Rs. 8,69,875/- and to grant/ release the insurance claim pertaining to theft of the above said items of complainant detailed above to the complainant immediately without any further delay and without any prejudice.
2. The opposite parties NO. 1 to 3 may also be directed to pay sum of Rs. 5,00,000/- to the complainant as damages and compensation for unnecessary harassment, inconvenience , agony and mental tension suffered by the complainant at the hands of the opposite parties.
3. To pay a sum of Rs. 50,000/- as litigation expenses to the complainant.

Alongwith the complaint, the complainant has placed on record his affidavit Ex. C-1, Copy of Adhar Card Ex. C-2, Copy of Insurance Cover Note Ex. C-3, Copies of Bills Ex. C-4 to Ex. C-10, copy of Return Sheet Ex. C-11, Copy of form GSTR-3B Ex. C-12, Copy of Admin Indemnity Ex. C-13, Copy of Form GST-REG-06 Ex. C-14, Copy of FIR Ex. C-15. 

2        Notice of this complaint was sent to the opposite parties and the opposite parties No. 1, 2 appeared through counsel and filed written version by interalia pleadings that the complaint being frivolous and vexatious is liable to be dismissed as the complainant has failed to make out a case of deficiency of service as alleged or otherwise, within the meaning of Consumer Protection Act, hence, the present complaint is not maintainable.  The present complaint is devoid of any material particulars and has been filed merely to harass and gain undue advantage and unjustified monies from the opposite party and hence, the complaint deserves to be dismissed in liminie.  The complainant has concealed and has suppressed the material relevant facts of the case. The complaint has been filed with malafide and dishonest intention and complainant has not only concealed the material facts from this commission but has also twisted and distorted the same to suit his own convenience to mislead this commission. The complainant with malafide intention did not disclose the true and correct facts before this commission and filed a false complaint only to get undue benefit at the cost of opposite party. The present complaint is clear cut misuse of the Consumer Protection Act. The complainant has acted in bad faith with respect to subject of this complaint and has approached this commission with unclean hands, hence in view of the doctrine of clean hands – “One who comes unto equity must come with clean hands”. After receiving the claim from the complainant, the opposite party has appointed its surveyor/ investigator who has given  his detailed report in which he has categorically stated that insured has taken a short term burglary policy for three months from the opposite party i.e. for the period 11.4.2022 to 10.7.2022 and even the said policy was particularly for burglary. The alleged incident has taken place within 23 days from the inception of the policy and even there is delay of one day in intimating the matter to the police and even the complainant had not taken and produced any spot pictures to the investigator and even the insured did not provide any CCTV footage to the opposite party and during the investigation, the investigator of the opposite party had visited the area and found that insured shop is not having any CCTV footage and even the police has not collected any CCTV footage. The investigator after inspecting the footage captured by near shops, it was found that only 2/3 persons came, stopped in front of the shop and after some time, they came back. It was further stated that only 2/3 bikes has come on the spot. In the said report, the investigator has conducted that the insured claim is not genuine. Insured has taken well planned short term policy of Rs. 50 Lakhs for burglary only leaving all other perils. Further, lodged the claim within 23 days from the start of the policy. Neither the police nor the insured has provided any CCTV footage of theft scene also on inspection of CCTV of nearby shop, the investigator did not find any vehicle stopped in front of the shop during the period for which they are claiming the occurrence of theft, only three bikes came to that place on the alleged night, by which such huge number of items could not be stolen such huge number of items could not be stolen without involvement of four wheeler. Customer is trying to take the benefit of issuance to take the fraudulent insurance claim. Hence, the claim reported by the claimant is not genuine. The said facts are need to be proved by adducing proper evidence and as such, the consumer commission has no jurisdiction to try and entertain the present complaint. The contract of insurance between the complainant and opposite party is governed by its terms and conditions. The facts of the present complaint are such which cannot be adjudicated without adducing the evidence, as such, the present complaint in the present form is not maintainable in this commission.  Policy issued to the complainant was subject to certain terms and conditions. A false FIR has been got registered by the complainant. After investigation, it has come out that the incident alleged by the complainant is false one.  The opposite parties No. 1 and 2 have denied the other contents of the complaint and prayed for dismissal of the same.  In the written version, the opposite parties have alleged documents Ex. OP1/A to Ex. OP1/D but alongwith the written version has not placed even single document.

3        During the pendency of the present complaint, the complainant has withdrawn the present complaint against the opposite party No. 3.

4        The complainant has filed rejoinder to the written version filed by the opposite parties No. 1 and 2 and denied all the pleas taken in the written version and reiterated the stand as taken in the complaint

5        We have heard the Ld. counsel for the complainant and opposite parties No. 1, 2 and have carefully gone through the record.

6        Ld. counsel for the complainant contended that the complainant is running one shop under the name & style of M/s Happy Photo Stat & Mobile Centre at Margindpura Road, Adda Dialpura, Tehsil Patti, District Tarn Taran through its Prop. Jagroop Singh son of Baghel Singh resident of village Dialpura, Tehsil Patti, District Tarn  Taran and livelihood of the complainant and his family members is dependent upon the income of the above said shop. The opposite party No. 3 being authorized agent of opposite parties NO. 1 and 2 had got insured the shop alongwith items of the complainant vide insurance policy No. 4002/244913405/00/000 valid from 11.4.2022 to 10.7.2022 and issued the copy of policy/ cover note on same day and insured amount of policy is Rs. 50,00,000/- and its total premium as paid Rs. 584.10/-. The above said shop alongwith items of the complainant was insured from the opposite parties vide policy No. 4002/244913405/00/000 and paid premium to the insurance company. On 3/4.5.2022 at midnight some unknown persons forcibly and illegally entered in the shop of complainant after broken the lock and they have stolen two LED, 29 pieces Inverter Amaze 5036, 13 Pieces Battery Amaze 2136, 14 Pieces Inverter Amaze AQ900, One A.C. Hitachi company, Two A.C. Samsung Company, Four A.C. Haier Company, One A.C. Company Hitachi (Inverter) from the shop of complainant. The Price and quantity of the stolen items is as follows:-

The complainant  informed to the police of Police Station Kacha Pacca and one FIR No. 026 dated 5.5.2022 under Section 457/380 of IPC has been registered at Police Station Kacha Pacca against unknown persons on the statement of complainant Jagroop Singh.  Thereafter, the complainant submitted all the requisite documents with the insurance company, the opposite party has declined the genuine claim. Ld. counsel for the complainant further contended that the opposite parties neither supplied terms and conditions of insurance policy nor read over and explained to the complainant. 

7        Ld. counsel for the opposite parties NO. 1 and 2 contended that the complaint is frivolous and vexatious, as such is liable to be dismissed as the complainant has failed to prove any deficiency in service under Consumer Protection Act. The complainant with malafide intention did not disclose the true and full facts before this Commission.  Ld. counsel for the opposite parties No. 1 and 2 further contended that  after receiving the claim from the complainant, the opposite party has appointed its surveyor/ investigator who has given  his detailed report in which he has categorically stated that insured has taken a short term burglary policy for three months from the opposite party i.e. for the period 11.4.2022 to 10.7.2022 and even the said policy was particularly for burglary. The alleged incident has taken place within 23 days from the inception of the policy and there is delay of one day in intimating the matter to the police and even the complainant had not taken and produced any spot pictures to the investigator and even the insured did not provide any CCTV footage to the opposite party and during the investigation, the investigator of the opposite party had visited the area and found that insured shop is not having any CCTV footage and the police has not collected any CCTV footage. The investigator after inspecting the footage captured by near shops, it was found that only 2/3 persons came, stopped in front of the shop and after some time, they came back. In the said report, the investigator has concluded that the insured claim is not genuine. Insured has taken well planned short term policy of Rs. 50 Lakhs for burglary only leaving all other perils. Further, lodged the claim within 23 days from the start of the policy. Neither the police nor the insured has provided any CCTV footage of theft scene also on inspection of CCTV of nearby shop, the investigator did not find any vehicle stopped in front of the shop during the period for which they are claiming the occurrence of theft, only three bikes came to that place on the alleged night, by which such huge number of items could not be stolen without involvement of four wheeler.  Hence the claim purported by the complainant is not genuine. He further contended that a false FIR has been got registered by the complainant and after investigation it has come out that the incident alleged by the complainant is false one. 

8        From the combined and harmonious reading of documents and pleadings placed on record is going to prove that the complainant has availed insurance policy from the opposite parties No. 1 and 2 which is not disputed by the opposite parties No. 1 and 2.  The claim of the complainant has been rejected on the report of the surveyor on the ground that the complainant has taken a short term burglary policy for three months for a period of 11.4.2022 to 10.7.2022 and the said incident has taken place within 23 days. Further there is delay of one day to intimate the matter to the police authority. Further the complainant has not produced any spot pictures and also not provided CCTV Footage. The police has also not collected the CCTV Footage from the spot. The investigator himself inquired and received the footage from nearby shop and it has been found that only 2/3 persons came, stopped in front of the shop for some time and they go back. As the surveyor did not find any four wheeler  in CCTV Footage, as such, the surveyor report suggests that such heavy articles cannot be taken away on the two wheelers, as such, surveyor found that the claim is not genuine. But we are not agreed with the pleas taken by the opposite parties on the basis of surveyor report that the complainant has taken the insurance policy just to get the undue benefit of the said policy. If, the complainant wants to take the undue benefit out of this policy, he would have definitely shown the loss on the higher side why he has made the claim of Rs. 8,69,875/- as the amount covered under the policy is Rs. 50,00,000/-. Moreover, the opposite party has taken the objection that matter has been reported to the police after one day. But perusal of record it has been proved that very next day the matter was reported to the police authority. As such, there is no delay on the part of the complainant in intimating the police authority. It is the police authority to prove the incident whether it has taken place or not. But the police in this matter has not stated that the alleged incident has not taken place. Further the investigation of the surveyor is only dependent upon the CCTV Footage, which is not admissible under Indian Evidence Act.  As per surveyor report, he himself is admitting that two three persons have stopped in front of shop but he is not sure that they have committed the theft, there may be some other persons who have committed the theft in the shop of the complainant. Only police authority can say about the theft in the shop. The opposite party has declined the claim of the complainant on the report of surveyor and whole of the stand of the opposite parties No. 1 and 2 revolves around the surveyor report, but the opposite parties No. 1 and 2  have not placed on record surveyor report as well as affidavit of surveyor to prove their stand. Moreover, the opposite parties No. 1 and 2 have merely mentioned some documents in the written version, but have not placed on record even single document alongwith the written version. In the absence of which no evidentiary value can be made on the report submitted by the surveyor. Reliance in this connection has been placed upon Manikant Vs. New India Assurance Co.Ltd. 1(2012) CPJ 88 (NC) of the Hon’ble National Commission wherein it has been held that the surveyor did not appear in court and subject himself to cross examination nor was any affidavit filed by him to prove his report . Producing a document in court does not by itself constitute proving the document. It has to be backed by credible evidence. In the instant case, no evidence was led to prove the surveyor’s report in the absence of which the surveyor’s report has little evidentiary value.  The complainant has submitted all the documents for settlement of claim. The opposite party on the one hand is saying that there is  delay of one day in intimation to police authority. This delay in the opinion of this commission is not such a delay which could compel the insurance company to close or repudiate the claim of the complainant. Otherwise also, a circular dated 20.9.2011 was issued by IRDA, referred to all the insurance companies, which reads as under:-

“Circular

To:    All Life Insurers and non-life insurers

Re:    Delay in claim intimation/ documents submission with respect to

i)       All life insurance contracts and

ii)      All Non-life individual and group insurance contracts.

          The Authority has been receiving several complaints that claims are being rejected on the ground of delayed submission of intimation and documents.

          The current contractual obligation imposing the condition that the claims shall be intimated to the insurer with prescribed documents within a specified number of days is necessary for insurers for effecting various post claim activities like investigation, loss assessment, provisioning, claim settlement etc. However, this condition should not prevent settlement of genuine claims, particularly when there is delay in intimation or in `submission of documents due to unavoidable circumstances. The insurers’ decision to reject a claim shall be based on sound logic and valid grounds. It may be noted that such intimation clause does not work in isolation, and is not absolute. One needs to see the merits and good spirit of the clause, without compromising on bad claims. Rejection of claims on purely technical grounds in a mechanical fashion will result  in policy holders losing confidence in the insurance industry, giving rise to excessive litigation.

Therefore, it is advised that all insurers need to develop a sound mechanism of their own to handle such claims with utmost care and caution. It is also advised that the insurers must not repudiate such claims unless and until the reasons of delay are specifically ascertained, recorded and the insurers should satisfy themselves that the delayed claims would have  otherwise been rejected even if reported in time.

The insurers are advised to incorporate additional wordings in the policy documents, suitably enunciating insurers’ stand to condone delay on  merit for delayed claims where the delay is proved to be for reasons beyond the control of the insured.

                                                          J. Harinarayan

                                                            Chairman”:

A bare reading of circular shows that if the claim is otherwise payable then it should not be repudiated or rejected simply on the ground of delay and delay is only to be considered when claim is otherwise not made out and is liable to be rejected even if the matter has been reported in time. In case titled as National Insurance Company Limited Vs. Kulwant Singh 2014(IV) CPJ page 62 (NC) the Hon’ble National Commission  observed that the insurance company should not have repudiated the claim merely on account of delay in giving the information to insurance company particularly when there was absolute no delay in lodging the FIR with the police. In the case in hand also, the theft took place on 1.10.2014 and intimation to the police was also given on the same day i.e. 1.10.2014 and as such, there was no delay at all for giving the intimation to the police. Moreover, in similar case titled as Reliance General Insurance Company Limited- Petitioner Vs. Sri Avvn Ganesh-Respondent 2012(1) CPJ page 176  in case under Consumer Protection Act, 1986 the intimation of death was given to the insurer with delay and claim was repudiated on the ground that death of insured was intimated after 4 months as against stipulated period of one month. The complainant filed complaint on the allegation of deficiency in service by insurance company, but the same was dismissed, but appeal filed by the complainant was allowed by Hon’ble State Commission. On revision, the Hon’ble National Commission, New Delhi observed that all the conditions for acceptance of insurance claim except point of reporting loss within one month of its occurrence had been substantially  fulfilled and delayed intimation of death of insured due to injuries he suffered on account of accident could not be held to be destructive to insurance claim because the facts and circumstances of death were clearly established on the basis of medical on records as well as  deposition of doctor who attended the insured and it was observed that like in case of theft of moveable insured property, delay in intimation was not prejudicial to the insurer because in such cases, Insurance company was not prevented, because of delay, from carrying out any investigation into the facts and circumstances as to whether the accident and consequent loss fell within the substantive condition of insurance policy and no infirmity  was found in the order and revision petition was dismissed. In the case in hand also, there is delay of 1 day as claimed by the Opposite Parties NO. 1 and 2 which is not material in the case in hand for closing or repudiating the claim case of the complainant and as such, the complainant is entitled to claim the insurance amount.   Moreover, Ld. counsel for the complainant has contended that the opposite parties have not explained the terms and conditions of the policy in question to the complainant and same are not supplied or explained to complainant at the time of inception of insurance policy. He placed reliance on citation 2001(1)CPR 93 (Supreme Court) 242 titled as M/s Modern Insulators Ltd Vs The Oriental Insurance Company Ltd, wherein Hon’ble Apex Court held that clauses which are not explained to complainant are not binding upon the insured and are required to be ignored. Moreover, it is usual with the insurance company to show all types of green pastures to the customer at the time of selling insurance policies, and when it comes to payment of the insurance claim, they invent all sort of excuses to deny the claim. In the facts of this case, ratio of the decision of Hon‟ble Apex Court in case of Dharmendra Goel Vs. Oriental Insurance Co. Ltd., III (2008) CPJ 63 (SC) is fully attracted, wherein it was held that, Insurance Company being in a dominant position, often acts in an unreasonable manner and after having accepted the value of a particular insured goods, disowns that very figure on one pretext or the other, when they are called upon to pay compensation. This, take it or leave it‟, attitude is clearly unwarranted not only as being bad in law, but ethically indefensible. It is generally seen that the insurance companies are only interested in earning the premiums and find ways and means to decline claims. In similar set of facts the Hon’ble Punjab & Haryana High Court in case titled as New India Assurance Company Limited Vs. Smt.Usha Yadav & Others 2008(3) RCR (Civil) Page 111 went on to hold as under:-

“It seams that the insurance companies are only interested in earning the premiums and find ways and means to decline claims. All conditions which generally are hidden, need to be simplified so that these are easily understood by a person at the time of buying any policy. The Insurance Companies in such cases rely upon clauses of the agreement, which a person is generally made to sign on dotted lines at the time of obtaining policy. Insurance Company also directed to pay costs of Rs.5,000/- for luxury litigation, being rich. 

9        By withholding the genuine claim of the complainant by the opposite parties No. 1 and 2, it amounts to deficiency in service and unfair trade practice on the part of the opposite parties No. 1 and 2.

10      In view of the above discussion, the present complaint is allowed and the opposite parties No. 1 and 2 are directed to make the payment of Rs. 8,69,875 to the complainant within one month from the date of receipt of copy of this order. The complainant has also been harassed by the opposite parties No. 1 and 2  for a long time, as such the complainant is also entitled to Rs. 25,000/- as compensation on account of harassment and mental agony and Rs 15,000/-  as litigation expenses. Opposite Parties No. 1 and 2 are directed to comply with the order within one month from the date of receipt of copy of the order, failing which the complainant is entitled to interest @ 9% per annum, on the awarded amount, from the date of complaint till its realisation.  The present complaint against the opposite party No. 3 is dismissed as withdrawn. Case could not be decided within prescribed period due to heavy pendency in this commission. Copy of order be supplied to the parties free of costs as per rules. File be consigned to record room.

Announced in Open Commission

12.09.2024