Haryana

Karnal

CC/81/2022

M/s Super King Traders - Complainant(s)

Versus

ICICI Lombard General Insurance Company Limited - Opp.Party(s)

Ajayant Singh Virk

19 Dec 2024

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KARNAL.

 

                                                        Complaint No.81 of 2022

                                                        Date of instt. 15.02.2022

                                                        Date of Decision: 19.12.2024

 

M/s Super King Traders, # 1181 Sector-13, Urban Estate, Karnal through its proprietor Shri Sarabjeet Singh.

                                                                        …….Complainant.

                                              Versus

 

ICICI Lombard General Insurance Company Ltd. 2^nd floor, Sector 8, SCO-3, Sector 8, HUDA Market, Karnal through its Authorized Signatory.

                                                                        …..Opposite Party.

 

Complaint under Section 35 of Consumer Protection Act, 2019.

 

Before      Shri Jaswant Singh……President.

                Ms.Neeru Agarwal….Member  

        Ms.Sarvjeet Kaur…..…..Member

 

Argued by: Shri A.S. Virk, counsel for the complainant.

                    Shri Naveen Khetarpal, counsel for the OPs.

 

                     (Jaswant Singh, President)

ORDER:   

                

            The complainant has filed the present complaint under Section 35 of the Consumer Protection Act, 2019 against the opposite party (hereinafter referred to as ‘OP’) on the averments that complainant is running a grocery wholesale work and he had stocked various grocery items of different companies at abovesaid address. The complainant had got insured the abovesaid stock from the OP for the sum insured of Rs.50,00,000/-, vide policy no.1001/207698075/00/000, valid from  20.10.2020 to 19.10.2021. The entire stock of the complainant was covered and it was also covering the loss by natural disaster like rainy water, flood, fire etc. On 13.07.2021, there was heavy rain fall due to which the rainy water entered the premises of the complainant where the abovesaid stock was lying and the goods lying in the premises were badly damaged and wasted which were not saleable in the market to the customer. Thus, the complainant had suffered a loss of approximately Rs.5,00,000/-. The intimation was sent to the OP and OP asked to the complainant for providing bills of the stocked, which were provided to the OP as per their demand and requirement. Thereafter, OP sent its surveyor to assess the loss/damage suffered by the complainant. The surveyor visited the premises of the complainant and inspected the damaged goods and prepared list of damaged goods and gave his report to the OP. Thereafter, complainant lodged a claim for the loss suffered by him on account of damaged goods with the OP but OP has failed to pay the insurance claim till today knowingly, deliberately and intentionally. Complainant sent a legal notice dated 13.11.2021 to the OP but it also did not yield any result. Due to this act and conduct of OP complainant has suffered mental pain, agony and harassment as well as financial loss. Hence complainant filed the present complaint seeking direction to the OP to pay Rs.5,00,000/- as per policy alongwith interest @ 12% per annum, to pay Rs.1,00,000/- on account of causing mental shock, agony and harassment and Rs.22000/- towards the litigation expenses.

2.             On notice, OP appeared and filed its written version raising preliminary objections with regard to maintainability; cause of action and concealment of true and material facts. On merits, it is pleaded that after getting the intimation regarding loss, OP immediately appointed an independent IRDA approved licensed surveyor namely, Protocol Insurance Surveyors and Loss Assessor Private Limited for loss assessment, survey and collection of requisite documents. After survey and loss assessment, said surveyor, submitted its report and as per report Gross Assessed Loss with salvage comes to Rs.2,19,527/- and salvage value is Rs.70,000/-. After deduction of salvage loss comes to Rs.1,49,527/- Premises was under insurance, so deduction of under insurance @35.25% comes to Rs.52711/- and after deduction of policy excess Rs.10,000/-, net liability of company comes to Rs.86,816/- but despite repeated reminders, insured has not given consent so payable claim of the complainant. OP is ready to pay the payable claim of complainant, after consent. So being premature, present complaint is no maintainable. There is no deficiency in service and unfair trade practice on the part of the OP. The other allegations made in the complaint have been denied and prayed for dismissal of the complaint.

3.             Parties then led their respective evidence.

4.             Learned counsel for the complainant has tendered into evidence his affidavit Ex.CW1/A, copy of legal notice Ex.C1, postal receipt Ex.C2, copy of damaged affected stock list Ex.C3, copy of Standard Fire and Special Peril Insurance Ex.C4, copy of insurance policy Ex.C5 and closed the evidence on 04.10.2022 by suffering separate statement.

5.             On the other hand, learned counsel for the OP has tendered into evidence affidavit of Sonu Rathi, Legal Manager Ex.RW1/A, affidavit of Shiv Kumar Aggarwal, Surveyor Ex.RW2/A, copy of survey report alongwith annexures Ex.R1, copy of terms and conditions of insurance policy Ex.R2 and closed the evidence on 11.10.2023 by suffering separate statement.

 6.            We have heard the learned counsel of the parties and perused the case file carefully and have also gone through the evidence led by the parties.

7.             Learned counsel for complainant, while reiterating the contents of the complaint, has vehemently argued that complainant got insured stocked the various grocery items from the OP. Complainant got insured the said stock with the OP. On 13.07.2021, during the subsistence of the insurance policy, due to heavy rainfall (due to water logging), the stock lying in the premises were badly damaged. Thus, the complainant had suffered a loss of approximately Rs.5,00,000/-. The intimation was sent to the OP. The complainant submitted all the relevant documents to the surveyor for settlement of the claim but OP did not settle the claim till date and lastly prayed for allowing the complaint.

8.             Per contra, learned counsel for the OP no.1, while reiterating the contents of written version, has vehemently argued that on receipt of intimation, the claim of complainant was duly processed. Surveyor submitted his report and observed that after deduction of salvage, loss comes to Rs.1,49,527/-. Premises was under insurance, so deduction of under insurance @35.25% comes to Rs.52711/- and after deduction of policy excess Rs.10,000/-, net liability of company comes to Rs.86,816/. OP was ready to pay the payable claim, after consent and lastly prayed for dismissal of the complaint.

9.             We have duly considered the rival contentions of the parties.

10.           Admittedly, complainant’s firm availed a Standard Fire and Special Peril insurance policy from the OP for sum insured of Rs.50 lacs. It is also admitted that during the subsistence of the insurance policy, the stock of the complainant’s firm was damaged due to water logging.

 11.          The complainant has alleged that due to heavy rainfall, the grocery stock of complainant was damaged and he has suffered huge financial loss. The onus to prove his case was relied upon the complainant. To prove his case, complainant has placed on file copy of legal notice Ex.C1, postal receipt Ex.C2, copy of damaged affected stock list Ex.C3, copy of Standard Fire and Special Peril Insurance Ex.C4, copy of insurance policy Ex.C5. The complainant has claimed Rs.5,00,000/- i.e. loss suffered by him but he has not placed on file any documentary evidence to prove that he has suffered the claimed loss. Case of the complainant is based upon the affected stock list Ex.C3, it is a photocopy and prepared by the complainant himself, so the same cannot be considered for assessing the loss being having no weightage in the eyes of law.  On the other hand, the surveyor of the OP, vide his report Ex.R1 dated 13.10.2021 has assessed the net loss to the tune of Rs.86816/-. The surveyor is an independent and qualified person and his report cannot be dismissed summarily. Hence, the surveyor report will prevail. In this regard we are relying upon the judgment 2(2008) CPJ paged 182 (NC), United India Insurance Co. Vs. Maya, wherein it has been held that a surveyor report should not be dismissed summarily as the surveyor is independent and qualified person under the relevant provision of Insurance Act, 1938. In view of this authority as well as the facts and circumstances of the case, the OP is liable to pay the loss assessed by the surveyor alongwith interest, compensation for mental pain, agony and harassment and litigation expenses.

12.           In view of the above discussion, we partly allow the present complaint and direct the OP to pay Rs.86,816/- (Rs. eighty six thousand eight hundred sixteen only) as loss assessed by the surveyor alongwith interest @ 9% per annum from the date of filing the complaint i.e. 15.02.2022 till its realization to the complainant. We further direct the OP to pay Rs.25,000/- to the complainant on account of mental agony and harassment and Rs.11,000/- for the litigation expenses. This order shall be complied within 45 days from the receipt of 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:19.12.2024                                                                     

                                                                President,

                                                   District Consumer Disputes

                                                   Redressal Commission, Karnal.

      

(Neeru Agarwal)                (Sarvjeet Kaur)    

                    Member                            Member