Haryana

Karnal

CC/748/2019

M/s Royal Multimedia - Complainant(s)

Versus

Iffco Tokio General Insurance Company Limited - Opp.Party(s)

Parshant Pahwa

11 Nov 2022

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KARNAL.

 

                                                        Complaint No. 748 of 2019

                                                        Date of instt.05.11.2019

                                                        Date of Decision:11.11.2022

 

M/S Royal Multimedia through its proprietor Shailender Singh son of Karan Singh, resident of village Uplana Tehsil and District Karnal.

 

                                               …….Complainant.

                                              Versus

 

1.     IFFCO-TOKIO General Insurance Co. Ltd. 1012/11, opposite Indra Gandhi Public School, Dhand Road, Kaithal through its Branch Manager.

2.     IFFCO-TOKIO General Insurance Co. Ltd. plot no.2B&C Sector 28-A, Madhya Marg, Chandigarh through its Regional Manager.

3.     Swastik Insurance Solution opposite HDFC Bank Karnal Road, Assandh District Karnal through Mr. Sachin.

 

                                                                      …..Opposite Parties.

 

Complaint under Section 12 of the Consumer Protection Act, 1986 as amended under Section 35 of Consumer Protection Act, 2019.

 

Before   Sh. Jaswant Singh……President.       

      Sh. Vineet Kaushik…….Member

      Dr. Rekha Chaudhary……Member

          

 Argued by: Shri Parshant Pahwa, counsel for complainant.

                    Shri A.K.Vohra counsel for the OPs no.1 and 2.

                    OP no.3 given up.

 

                    (Jaswant Singh President)

ORDER:   

                

                The complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 as after amendment under Section 35 of Consumer Protection Act, 2019 against the opposite parties (hereinafter referred to as ‘OPs’) on the averments that complainant has been running his electronic, communication and computer shop Salwan Road Assandh District Karnal under the name and style of M/s Royal Multimedia. Complainant purchased an insurance policy for his electronic equipment, personal accident, fire and allied etc. from the OP no.1 through OP no.3 authorized agent of OPs no.1 and 2, vide insurance policy no.1-3XUCOSE P-400 policy no.47384301, which was valid from 15.10.2015 to 14.10.2016. Said policy is having sum assured of Rs.12,50,000/-. On 17.07.2015 someone committed the theft of goods from the shop of complainant. Qua the said incident an FIR no.452 dated 18.07.2016 has been registered in the Police Station, Assandh, District Karnal, u/s 380, 457 IPC. Goods worth an amount of Rs.4,79,208/- has been stolen from the shop of the complainant. After the said incident, complainant lodged a claim with the OP no.1 and OP no.1 appointed a surveyor, who visited the shop on 18.07.2016 and surveyed the shop and prepared his report. Thereafter, the official of the OPs got signed certain blank papers from the complainant and assured the complainant that the company will made the loss good very soon but nothing has been done by the OPs for a long time. In the meantime, the police submitted an untrace report and complainant also submitted the same with the OP no.1. On 23.12.2016, OP issued a letter to the complainant, vide which complainant was asked to submit the final report of police and copy of cancelled cheque/NEFT details. Thereafter, similar letters were sent to the complainant by the OPs on 07.01.2017, 27.01.2017, 03.04.2017. The police submitted the untrace report on 21.09.2017 and complainant after receipt of said untrace report submitted the same in the office of OP with his cancelled cheque/NEFT. OPs wrote letter dated 09.10.2018 to the complainant with same demand. OPs no.1 and 2 instead of checking/verifying the documents and settlement the claim of the complainant rather in routine has been issued aforesaid vague letters by demanding the documents which have already been submitted in their office. From 17.07.2016 till today complainant has visited the office of OPs no.1 and 2 number of times for settlement of his claim but OPs did not pay any heed to the request of complainant and lingered the matter on one pretext or the other. In this way there is deficiency in service on the part of the OPs. Hence this complaint.

2.             On notice, OPs no.1 and 2 appeared and filed its written version raising preliminary objections with regard to maintainability; cause of action; locus standi; limitation and concealment of true and material facts. On merits, it is pleaded that OPs have issued a Trade Protector policy in the name of complainant shop working under the name and style of M/s Royal Multimedia, for the period 15.10.2015 to 14.10.2016, covering stocks lying in the shop and few other sections as available under the insurance policy. The policy issued to the complainant was subject to some conditions, clauses, warranties and exclusions which itself part of the insurance policy supplied to the complainant by the OPs. Complainant intimated a claim under section II (Burglary and Other perils) of the aforesaid insurance policy regarding theft of electronic equipments from his shop, allegedly occurred on intervening night of 17-18/07/2015 by the unknown person/persons. On receipt of intimation of loss, the OP insurance company immediately entrusted the matter to M/s Grover Associates, insurance surveyors and loss assessors Pvt. Ltd. to carry out survey and assessment of reported loss as per the terms and conditions of the insurance policy. The surveyor has visited the loss location, met with insured and carried out the necessary survey work. The surveyor has submitted his detailed report alongwith the documents to the insurance company by assessing the liability of company to the tune of Rs.1,34,497/-as per terms and condition of insurance policy subject to competition of pending documents by the insured. The surveyor put remarks in report that the untraced report from the police authorities may be asked from the insured to process the claim on merit. On receipt and careful perusal of survey report, in order to process the claim further, the OP company made request to the insured-complainant vide letter dated 23.12.2016, 07.01.2017, 27.01.2017 to supply final report of police and copy of cancelled cheque/NEFT details. The complainant neither supplied requested documents not bother to respond the aforesaid letter issued by the company. As such the OP company left no other option but to close the claim file as no claim vide letter dated 03.04.2017. It is further pleaded that after passing more than two years from the closure of claim, the complainant approached to the OP alongwith copy of untrace report for settlement of claim. In response to the complainant, the company issued a letter dated 09.01.2019 to complainant to submit the said untrace report in original and also explain reason for quite mum for a long period of more than two years. Complainant instead of supplying the requested document/explanation, in order to put undue pressure and filed the said false complaint. It is further pleaded that the the stocks were not adequately insured under the insurance policy. As per insured’s trading account statement at the end of 31.03.2016 was at Rs.47,09,309/-. Further as per provisional balance sheet for the period of 01.04.2016 to 17.07.2016, the closing stocks was Rs.34,95,520/-. The value of total stocks lying under the shop at time of loss was Rs.34,95,520/- whereas the sum insured opted by the insured for stocks under the relevant section is only Rs.12,50,000/- as such condition of prorate average is supplied by the surveyor while assessing liability of company as per the terms and condition of the insurance policy. The gross loss as assessed by the surveyor is Rs.4,37,247/- and after applying average clause, the loss was assessed at Rs.1,56,359/- and further applying compulsory deduction which is 5% of the claim amount, net loss assessed at Rs.1,34,497/- subject to the terms and conditions of the insurance policy. It is further pleaded that OPs have issued letters/reminders on 07.01.2017, 27.01.2017, 03.04.2017 for supply of the material documents for the settlement of his claim but complainant has not supplied the same. There is no deficiency in service on the part of the OPs. The other allegations made in the complaint have been denied by the OPs and prayed for dismissal of the complaint.

3.             OP no.3 given up by the complainant, vide his statement dated 10.01.2022.

4.             Parties then led their respective evidence.

5.             Learned counsel for the complainant has tendered into evidence affidavit of complainant Ex.CW1/A, copy of insurance policy Ex.C1, copy of FIR Ex.C2, copy of untrace report Ex.C3, copy of court order regarding untrace report Ex.C4, copy of application to Manager Ex.C5, copy of request letters dated 09.10.2019 Ex.C6, copy of application to OP dated 19.11.2018 Ex.C7, copy of bill/invoice of purchase of LED etc. Ex.C8 to Ex.C11, photocopy of newspaper cutting Ex.C12, copy of list of stolen items Ex.C13, copy of stock statement after theft Ex.C14, copy of list of details of stolen LED Ex.C15, copy of list of balance items Ex.C16 and closed the evidence on 07.04.2022 by suffering separate statement.

6.             On the other hand, learned counsel for the OPs no.1 and 2 has tendered into evidence affidavit of Hardeep Singh Ex.OP1, affidavit of K.L. Grover, authorized representative of M/S Grover Associates Ex.OP2, copy of insurance policy Ex.O1, copy of surveyor report Ex.O3, copy of letters dated 23.12.2016, 07.01.2017, 27.01.2019, 03.04.2017, 09.10.2019 Ex.O4 to Ex.O7, copy of balance sheet Ex.O8, copy of profit and loss statement Ex.O10 and closed the evidence on 01.08.2022 by suffering separate statement.

7.             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.

8.             Learned counsel for complainant, while reiterating the contents of the complaint, has vehemently argued that complainant purchased an insurance policy for his electronic equipment, personal accident, fire and allied etc. from the OPs, valid from 15.10.2015 to 14.10.2016. On 17.07.2015 someone committed the theft of goods from the shop of complainant. Qua the said incident an FIR no.452 dated 18.07.2016 has been registered. Goods worth an amount of Rs.4,79,208/- has been stolen. After the said incident, complainant lodged a claim with the OP no.1 and OP no.1 appointed a surveyor, who visited the shop on 18.07.2016 and surveyed the shop and prepared his report. On 23.12.2016, OP issued a letter to the complainant, vide which complainant was asked to submit the final report of police and copy of cancelled cheque/NEFT details. Thereafter, similar letters were sent to the complainant by the OPs on 07.01.2017, 27.01.2017, 03.04.2017. The police submitted the untrace report on 21.09.2017 and complainant after receipt of said untrace report submitted the same in the office of OP with his cancelled cheque/NEFT. OPs wrote letter dated 09.10.2018 to the complainant with same demand. OPs no.1 and 2 instead of checking/verifying the documents and settlement the claim of the complainant has been issued aforesaid vague letters by demanding the documents which have already been submitted in their office and lastly prayed for allowing the complaint.

9.             Per contra, learned counsel for the OPs no.1 and 2, while reiterating the contents of written version, has vehemently argued that on receipt of intimation of loss, the OP appointed a surveyor, who investigated the matter and submitted his detailed report alongwith the documents to the insurance company by assessing the liability of company to the tune of Rs.1,34,497/-. The surveyor put remarks in report that the untraced report from the police authorities may be asked from the insured to process the claim on merit. The OP company made request to the insured-complainant vide letter dated 23.12.2016, 07.01.2017, 27.01.2017 to supply final report of police and copy of cancelled cheque/NEFT details. The complainant neither supplied requested documents not bother to respond the aforesaid letter issued by the company. As such the OP company left no other option but to close the claim file as no claim vide letter dated 03.04.2017. The complainant has submitted the required documents after passing more than two years from the closure of claim and failed to explain the reason for quite mum of a long period and prayed for dismissal of the complaint.

10.           Admittedly, the incident occurred during the subsistence of the insurance policy. It is also admitted that the sum insured in the policy in question was Rs.12,50,000/-.

11.           The claim of the complainant has been closed by the OPs, vide repudiation letter Ex.OP6 dated 03.04.2017 on the ground that complainant has not submitted the final report of police (untrace report) and copy of cancelled cheque report/NEFT details.

12.           Admittedly, the complainant has submitted the untraced report to the OPs, but as per version of the OPs same was submitted after passing more than two years from the closure of claim. Complainant has placed on file copy of order dated 21.09.2017 passed by Learned Senior Division Judicial Magistrate, Assandh whereby learned Magistrate has accepted untrace report submitted by the police. The claim of complainant has been closed by the OPs on 03.04.2017 vide closing letter Ex.OP6 and required untrace report has been accepted by Illaqua Magistrate on 21.09.2017. As per version of the complainant, on the receipt of the untrace report from the concerned Illaqua Magistrate same has been submitted to the OPs alongwith cancelled cheque. To prove his version, complainant relied upon the application Ex.C5 dated 28.08.2018 and application Ex.C7 dated 19.11.2018, thereby, he made request to OPs for releasing his claim. Furthermore, a person whose personal interest is involved in form of the huge claim amount, then, as to why, he would not submitted the original untrace report. Meaning, thereby, complainant has already fulfilled the requirements of the OPs.  Hence, plea taken by the OPs has no force.

 13.            Further,  Hon’ble Punjab and Haryana High Court in case titled as New India Assurance Company Ltd. Versus Smt. Usha Yadav & others 2008 (3) RCR (Civil) 111, has held as under:-

                It seems that the Insurance Companies are only interested in earning the premiums which are rather too stiff now a days, but are not keen and are found to be evasive to discharge their liability. In large number of cases, the Insurance companies make the effected people to fight for getting their genuine claims. The Insurance Companies in such cases rely upon clauses of the agreements, which a person is generally made to sign on dotted lines at the time of obtaining policy. This is, thus pressed into service to either repudiate the claim or to reject the same. The Insurance Companies normally build their case on such clauses of the policy, but would adopt methods which would not be governed by the strict conditions contained in the policy.

14.           Keeping in view, the ratio of the law laid down in aforesaid judgments, facts and circumstances of the present complaint, we are of the considered view that act of the OPs while closing the claim of the complainant amounts to deficiency and unfair trade practice, which is otherwise proved genuine one. 

15.           As per the survey report Ex.O2 dated 15.10.2016, the gross loss has been assessed by the surveyor of the OPs to the tune of Rs.4,37,247/- and after applying the average clause the loss has been assessed as Rs.1,56,359/- and further applying compulsory deduction at the rate of 5% of the claim, the surveyor again has assessed the net loss of Rs.1,34,497/-but surveyor of the OPs has not justified such huge deduction of the assessed amount. Such act is totally arbitrarily and unjustified. Furthermore, the said deduction is based on presumption and assumption even not supported by any documentary evidence. The surveyor’s report in this regard is thus arbitrary, unjustified, biased, based on presumptions and assumptions and it cannot be the last word for the determination of actual loss. In this regard, we are also fortified from the judgment of the Hon’ble Supreme Court of India in case titled as New India Assurance Company Limited vs. Pradeep Kumar (2009 (6) SCALE, 253) wherein it was held that “The surveyor’s report is not the last and final word. It is not that sacrosanct that it cannot be debarred from, it is not conclusive. The approved surveyor’s report may be basis or foundation for settlement of a claim by the insurer in respect of the loss suffered by the insured but surely such report is neither binding upon the insurer nor insured.” This proposition of law was followed by the Hon’ble Apex Court in Sikka Papers Limited vs. National Insurance Company Ltd. & Ors. (III (2009) CPJ 90 (SC). The Hon’ble Chhatisgarh State Consumer Disputes Redressal Commission, Raipur in case titled as Oriental Insurance Co. Ltd. & Anr. Versus Pukhraj Bothra, IV (2004) CPJ 615 has held that “it is true that normally the estimate of surveyor regarding loss has to be given due consideration but it cannot be said to be the last word for determination of actual loss”. The above said authorities are fully applicable to the facts and circumstances of the present case. In the present case, we are also of the considered opinion that the surveyor has assessed the loss for favouring the OPs and therefore same cannot be given more weightage. Hence, complainant is entitled for the amount of Rs.4,37,247/- alongwith interest, compensation for mental agony and harassment and litigation expenses.

16.           In view of the above discussion, we allow the present complaint and direct the OPs to pay Rs.4,37,247/- (Rs.four lakhs thirty seven thousand two hundred forty seven only) to the complainant the gross loss assessed by the surveyor of the OPs alongwith interest @ 9% per annum from the date of closing/repudiating of the claim till its realization. We further direct the OPs to pay Rs.20,000/- to the complainant on account of mental agony and harassment suffered by him and Rs.11,000/- for the litigation expense. 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:11.11.2022                                                                      

                                                                  President,

                                                     District Consumer Disputes

                                                     Redressal Commission, Karnal.

 

(Vineet Kaushik)        (Dr. Rekha Chaudhary)

                          Member                      Member

Sushma

Stenographer