Haryana

Ambala

CC/22/2019

Ashok Kumar Aggarwal - Complainant(s)

Versus

IFFCO Tokio Gen Inss Co Ltd - Opp.Party(s)

Anil Shankar

10 Feb 2023

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, AMBALA.

Complaint case no.	:	22 of 2019
Date of Institution	:	24.01.2019
Date of decision	:	10.02.2023

 

Ashok Kumar Aggarwal age 70 years s/o late Sh. Ram Kishan Dass resident of House no.40, Ajit Nagar Ambala Cantt.

                                                                                       ……. Complainant.

                                                Versus

1.  IFFCO-TOKIO GENERAL INSURANCE CO. LTD. through its Branch Manager, First floor Minerva Complex, Rai Market, Ambala Cantt - 133001.
2. IFFCO-TOKIO GENERAL INSURANCE CO. LTD. through its General Manager Registered office at IFFCO SADAN, CI District Centre, Saket New Delhi- 110017.

 ….…. Opposite Parties

Before:       Smt. Neena Sandhu, President.

                             Smt. Ruby Sharma, Member,

          Shri Vinod Kumar Sharma, Member.           

 

Present:      Shri Anil Shanker, Advocate, counsel for the complainant.

                             Shri Mohinder Bindal, Advocate, counsel for the OPs.            

Order:        Smt. Neena Sandhu, President.

1.                Complainant has filed this complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) against the Opposite Parties (hereinafter referred to as ‘OPs’) praying for issuance of following directions to them:-

1. To pay Rs.13,82,100/- on account of the expenses incurred by the complainant on the repair of the insured shop.
2. To pay Rs.100000/- for mental agony which has been caused to the complainant on account of erroneous, illegal, arbitrary and unjust denial of the claim.
3. To pay Rs.35,000/- towards counsel fee.
4. To pay Rs.45,000/- towards architect fees.
5. To pay Rs.10,000/- towards litigation expenses.
6. Grant any other relief which this Hon’ble Commission may deems fit.

2.             Brief facts of the case are that the complainant purchased Insurance policy bearing no.11932265 dated 23-05-2017 (Annexure C-1) from the OPs for his shop/property no.171/2, Sadar bazar, Ambala Cantt. It was standard fire and Special Perils policy valid for the period from 23-05-2017 to the midnight of 22-05-2018. The said policy covered all fire risk damages against accidental losses which may be incurred by the complainant including the repair charges. The complainant had given his aforementioned shop/property on rent to Sh. Vikas Hooda on dated 27-09-2017 and a rent agreement dated 27-09-2017 (Annexure C-3) was also executed between complainant and Mr. Vikas Hooda. On the intervening night of 02.03.2018 and 03-03-2018, major fire broke out in the aforementioned shop/property of the complainant which caused extensive damage to the property. The complainant had duly informed the police about the said incident and resultantly, DDR no. 1 dated 03-03-2018/ DDR no. 010 dated 08-03-2018 (Annexure C-4 and C-5) was registered in the Ambala Sadar Police Station. The complainant had also paid an amount of Rs.3,100/- to Nagar Nigam, Ambala Sadar on 08-03-2018 on account of availing the services of Fire Brigade Ambala Cantt. The complainant had informed OP No.1 on the very same day i.e. on 03-03-3018 about the fire incident in his building and the officials/ representative of the insurance company had duly visited and inspected the building. The officials/ representative had also taken the photographs of the occurrence site and assured the complainant that the needful will be done shortly. Pursuant to it, complainant had submitted an estimate of repairs to the OP No.1 on 19-05-2018 for repairs/reconstructions of premises in question. This estimate report dated 19-05-2018 (Annexure C-7) was prepared by Professional Architect to the tune of Rs.13,62,738/-. In response to the said Estimate Report, OP No.1 sent an email on dated 30-05- 2018 to the complainant wherein it had informed the complainant that the company would pay to the extent of Rs.4,01,017/- out of the total estimate of Rs.13,62,738/-. The complainant was shocked to see the Assessment report, (Annexure C-8) wherein OP No.1, had arbitrarily and mischievously deducted substantial amount on account of depreciation and variance. These deductions were not reflected in the Insurance policy which was issued to the complainant. Moreover the complainant had submitted the then Current Valuation report (Annexure C-9) mentioning the then current value of the property, while purchasing the said policy. The OPs have underwritten the documents and issued the policy with the same amount which was mentioned in the captioned Valuation Report and the claimant had paid the insurance premium. The complainant had apprised OP No.1 through e-mail dated 28-09-2018 regarding the irregularity in calculating the claim amount on account of depreciation and variance. Thereafter accordingly, complainant has carried out the necessary repairs / reconstruction work of the premises and informed the OPs accordingly through e-mail dated 6-01-2019 wherein details of actual expenditure incurred submitted to them. However, now OP No.1 is pressurizing the complainant to settle the claim for Rs.4,69,607/- failing which they will close the file As "No Claim". The complainant has suffered great mental agony on account of the unjust attitude adopted by the OPs. Hence this complaint.
3.           Upon notice, the OPs appeared and filed written version and raised preliminary objections with regard to maintainability, not come with clean hands and suppressed the material facts, cause of action, and no territorial jurisdiction etc. On merits it has been stated that the present complaint with regard to any grievances pertaining to the alleged claim is liable to be dismissed out rightly since the complainant himself is liable for the nonpayment of his claim due to non completion of required and legal formality. As a matter of fact the reported claim with regard to the loss caused to the premises no.171/2, Sadar Bazar, Ambala Cantt of the complainant was duly entertained immediately and one IRDA approved & an independent surveyor M/s Protech Insurance Surveyors & Loss Assessors, was deputed to assess the loss and to give his fact finding report. Said surveyor immediately contacted the complainant and inspected the premises in question and discussed the matter with him in detail and requested him to submit the estimate of loss and clear the debris and false ceiling etc. so that proper assessment of loss can be done to which the complainant sought some more time. Ultimately on 21.05.2018 i.e. after about two months, the complainant informed the said surveyor-M/s Protech about the clearance of debris from his premises and the surveyor again visited the premises in question on 23.05.2018 to verify the damages and obtained the estimate of repair, claim form and other related papers etc. and after a detailed and thorough inspection and observation as per existing facts and situation and according to the coverage and relevant applicable clauses of policy, the said surveyors assessed the legal payable loss to the tune of Rs.4,69,608/- vide his report dated 07.06.2018. Since the claim of the complainant has never been denied by the OPs but the insured has been repeatedly asked to provide the discharge voucher, copy of PAN & KYC documents and NEFT details with cancelled cheque of his bank account for the release of the compensation amount but he did not provide the required documents inspite of repeated reminders dated 30.07.2018, 09.10.2018, 21.12.2018, 23.01.2019, 31.01.2019 & finally dated 08.02.2019 consequently his claim was closed as no claim. Under an insurance contract, it is not possible to provide the coverage against all the risks and it all depends upon the insured as to which extend and limit he wants the coverage of risks under the policy and accordingly the premium amount under the policy is fixed and paid. There are so many options for an insured to opt the extend and limit of risk to be covered under his insurance policy by way of proposal form being submitted by him while getting the insurance policy and the premium is assessed accordingly. Similarly, in the present case, the complaint opted for certain coverage and also excluded certain coverage like re-instatement etc. according to his free will and option and his insurance policy was issued accordingly and premium was also assessed accordingly. The complainant was time and again apprised about the limitations of the insurance policy in question and about the authenticity and accuracy of the survey report but the complainant in order to put undue pressure and to gain unlawfully, started raising issues which have no relevance at all. The actual cost of repair or the amount spent by the complainant has no relevance with the present claim. Rest of the averments of the complainant were denied by the OPs and prayed for dismissal of the present complaint with costs.
4.           Learned counsel for the complainant tendered affidavit of the complainant as Annexure CA alongwith documents as Annexure C-1 and C-18 and closed the evidence on behalf of the complainant. Learned counsel for the OPs tendered affidavit of Sanjay Gupta, Surveyor and Loss Assessor and Partner-M/s Protect Insurance Surveyors Loss Assessors having its Office at # 1334 Basement Sector 80 Mohali (earlier at SCF No.40, Phase 9, Mohali-166002) and affidavit of Shri Rajeev Ranjan, Authorized Signatory, Iffco Tokio  General Insurance Company. Ltd.  as Annexure OP-A and OP-B respectively alongwith documents Annexure OP-1 to OP-11 and closed the evidence on behalf of OPs.
5.           We have heard the learned counsel for the parties and have also carefully gone through the case file.
6.           Learned counsel for the complainant submitted that despite the fact that the  complainant had submitted estimate report dated 19-05-2018 (Annexure C-7) which was prepared by Professional Architect to the tune of Rs.13,62,738/-, to the OPs. But the OPs by not making payment of the said amount and on the other hand, offering meager amount of  Rs.4,01,017/- on market value basis instead of reinstatement value, out of the total estimate of Rs.13,62,738/- have committed deficiency in providing service and indulged into unfair trade practice. 
7.           On the other hand, learned counsel for the OPs submitted that the present complaint is not only liable to be dismissed, on merits but on the ground of territorial jurisdiction also. He further submitted that after receiving the information from the complainant with regard to incident of fire in the insured property, one IRDA approved & an independent surveyor M/s Protech Insurance Surveyors & Loss Assessors, was deputed to assess the loss and to give his fact finding report, who immediately contacted the complainant and inspected the premises in question and discussed the matter with him in detail and requested him to submit the estimate of loss and clear the debris and false ceiling etc. so that proper assessment of loss can be done, for which the complainant took two months. He further submitted that after a detailed and thorough inspection and observation as per existing facts and situation and according to the coverage and relevant applicable clauses of policy, the said surveyors assessed the legal payable loss to the tune of Rs.4,69,608/- as per terms and conditions of the insurance policy. He further submitted that since the claim of the complainant has never been denied by the OPs but the insured has been repeatedly asked to provide the discharge voucher, copy of PAN & KYC documents and NEFT details with cancelled cheque of his bank account for the release of the compensation amount but he did not provide the required documents inspite of repeated reminders and his claim file was closed information regarding the same was sent to the complainant vide letter dated 08.02.2019, Annexure OP-10. He further submitted that in the present case, the complaint opted for certain coverage and also excluded certain coverage like re-instatement etc. according to his free will and option and his insurance policy was issued accordingly and that the actual cost of repair or the amount spent by the complainant has no relevance with the present claim. Parties are bound by the terms and conditions of the policy and liability, if any, arises, then OPs No.1 & 2 are liable to indemnify the complainant as per terms and conditions of the insurance policy. In support of this contention, he has placed reliance on the judgment titled as M/s Shri Durga Khandsari Sugar Mills Versus The New India Assurance Co. Ltd, 2021 (2) CLT 473, wherein terms and conditions were not supplied and the Hon’ble National Consumer Commission, has held that a party who wants to take the insurance for any kind of risk must try to know the details of the policy and the terms and conditions of the policy and also on the judgment dated 31.1.2018, titled as Tata AIG General Insurance Company Versus Texo Marketing Pvt. Ltd, wherein Hon’ble National Commission has held that insurance policy between the insurer and insured represents a contract between the parties. Since the insurer undertakes to compensation the loss suffered by the insured on account of the risk covered, the terms of agreement have to be strictly construed to determine the extent of liability of the insurer.      
8.           The first question that falls for consideration is, as to whether, this Commission has territorial jurisdiction to entertain and decide this complaint? It may be stated here that since OP No.1 is admittedly carrying out its business at  Ambala, which falls under the territorial jurisdiction of this Commission as such, in this view of the matter, this Commission has territorial jurisdiction to decide this complaint and therefore, objection taken by the OPs in this regard is rejected.
9.           On merits, it is significant to mention here that the fact with regard to purchase of the policy in question; incident of fire which took place in the insured premises of the complainant on the intervening night of 02.03.2018 and 03.03.2018; submission of claim by the complainant; lodging of DDR with the police station; inspection of the insured premises by the surveyor of the OPs is not in dispute between the parties. However, the dispute between the parties is with regard to the offer/option opted by the complainant qua market value basis or reinstatement value basis. The plea of the complainant is that because as per the proposal form Annexure C-9, he has opted the policy on re-instatement basis/value, therefore, he is entitled to get the entire amount of Rs.13,82,100/- incurred by him for repairs of the insured premises, as assessed by the Architect, vide report dated 19-05-2018 (Annexure C-7). Whereas, the stand of the OPs is that as per Surveyor report Annexure OP-11, the complainant was entitled to get an amount of Rs.4,69,607/- only on the basis of market value, as opted by the complainant as per the proposal form Annexure OP-2. Under these circumstances, the moot question which falls for consideration is, as to whether, the complainant has opted the policy in question on the basis- Market Value or Reinstatement Value.
10.           It may be stated here that on the proposal form, Annexure C-9, which has been placed on record by the complainant, it is found that neither against the words Market Value nor against Reinstatement Value, any tick has been marked and the same has been left un-ticked. This proposal form Annexure C-9 has been signed by the complainant and also duly stamped by the OPs also. In the complaint filed by the complainant and also during the course of arguments, a specific stand has been taken by the learned counsel for the complainant that the policy in question had been purchased by the complainant on the basis of Reinstatement Value. 

It is very significant to mention here that during pendency of the complaint, it came to the notice of this Commission that though the proposal form which has been placed on record by the complainant, Annexure C-9 did not bear any tick either on Market Value or Reinstatement Value, yet, the proposal form Annexure OP-2 which had been placed on record by the OPs bears the tick on Market Value and the Reinstatement Value has been crossed. It was found by this Commission that the proposal form Annexure OP-2, was not stamped by the OPs. It is not out of place to mention here that the application dated 26.02.2020, moved by the applicants/OPs seeking withdrawal of the proposal form-Annexure OP-2 on the ground that it was a rough proposal form and has been inadvertently placed on record, which (application) was dismissed by this Commission vide order dated 01.09.2021. Significantly, the order dated 01.09.2021 was not challenged by the OPs and as such the same has attained finality.

Under above circumstances, now this Commission is left with the option to hold that the authenticity of proposal form Annexure C-9 cannot be doubted. Admittedly, the proposal form Annexure C-9, did not bear tick (√) either on market value or reinstatement value.  It may be stated here that after receiving the proposal form, it was the bounden duty of the OPs to clarify as to whether complainant had opted to take the policy on the basis of market value or reinstatement value, but they did not do so and issued the policy in question in his favour, thus, it can easily be said that OPs have acted negligently. It is pertinent to mention here that the facts of the present case are different from the facts of the case titled as M/s Shri Durga Khandsari Sugar Mills Versus The New India Assurance Co. Ltd (supra), and case titled as Tata AIG General Insurance Company Versus Texo Marketing Pvt. Ltd (supra), relied upon by the OPs, therefore, no help can be drawn by the OPs from the said cases.  This Commission while giving benefit of doubt and keeping in mind the fact that it is settled law that consumer's interests will always receive due consideration, is of the view that the complainant is entitled to be get the claim on the basis of reinstatement value. Complainant on the basis of architect’s report dated 19-05-2018 (Annexure C-7), seeking that OPs shall pay claim of Rs.13,62,738/-. However, from the perusal of surveyor’s report Annexure OP-11, it is evident that the surveyor had assessed the value to the tune of Rs.9,84,176/-. The complainant had failed to place on record any cogent and convincing evidence to rebut the conclusion arrived at by the said surveyor qua assessment of Rs.9,84,176/- in his surveyor report, Annexure OP-11, as explained above. It is therefore held that the complainant is entitled to the amount of Rs.9,84,176/- i.e. the amount as assessed by the surveyor in his survey report Annexure OP-11 but without any depreciation being the policy considered under reinstatement value.

11.               In view of the aforesaid discussion, we hereby allow the present complaint and direct the OPs, in the following manner:-

1. To pay the claim amount of Rs.9,84,176/- (on reinstatement value) to the complainant alongwith interest @4% p.a. w.e.f 24.01.2019 i.e the date of filing of this complaint, till realization.
2.  To pay Rs.5,000/- as compensation for the mental agony and physical harassment suffered by the complainant.
3. To pay Rs.3,000/- as litigation expenses.

 

The OPs are further directed to comply with the aforesaid directions within the period of 45 days from the date of receipt of the certified copy of this order, failing which the OPs shall pay interest @ 6% per annum on the awarded amount, from the date of default, till realization. Certified copies of the order be sent to the parties concerned as per rules.File be annexed and consigned to the record room.

 Announced:- 10.02.2023

 

 

(Vinod Kumar Sharma)	(Ruby Sharma)	(Neena Sandhu)
Member	Member	President