Haryana

StateCommission

A/742/2018

ORIENTAL INSURANCE CO. - Complainant(s)

Versus

KUNJ BIHARI TEXTILES - Opp.Party(s)

S.S.SIDHU

14 Jun 2024

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

HARYANA PANCHKULA

                  

  Date of Institution: 07.06.2018

                Date of final hearing: 29.05.2024

                                                Date of pronouncement: 14.06.2024

 

First Appeal No.742 of 2018

 

IN THE MATTER OF

 

The Oriental Insurance Co. Ltd., through its Divisional Manager. Model Town, Sonipat through Authorized Signatory, Regional Office, Oriental Insurance Company Limited, LIC Building Jagadhri Road, Sonipat Cantt.

.….Appellants.

Through counsel Mr. S.S. Sidhu, Advocate

Versus

Kunj Bihari, Khewat No.387, killa No. 99, near Shakti Durga Cold Storage, Friends Colony, Kundli, Distt. Sonepat through its Prop. Anirudh Kumar Jain, R/o 3, Shakti Nagar, Pitampura, Delhi.

….Respondent.

Proceeded against ex-parte.

 

CORAM:   S.C. Kaushik, Member.

 

Present:-    Mr. S.S. Sidhu, counsel for the appellant.

                   Respondent proceeded against ex-parte vide order dated 28^th September, 2023.

 

O R D E R

S.C. KAUSHIK, MEMBER:

 

                   Present appeal has been preferred against the order dated 06.02.2018, passed by learned District Consumer Disputes Redressal Commission, Sonepat (‘learned District Commission’), vide which complaint filed by the complainant was allowed and opposite party (“OP”) was directed as under:-

“…Accordingly, we hereby direct the respondent to pay an amount of Rs.2,31,000/- (Rs. Two lakh thirty one thousand) to the complainant within a period of 60 days from the date of passing of this order failing which the above said amount shall fetch interest at the rate of 9% p.a. from the date of passing of this order till its realization.

          With these observations and findings, the present complaint stands allowed.”  

2.                The brief facts giving rise to the complaint before learned District Commission are that the complainant was having its godown at Village Kundli, Distt. Sonepat and all the stock therein i.e. fabrics, textile goods, blankets in the godown was insured with the OP vide Burglary First Loss Policy Schedule for the period 19.12.2013 to 18.12.2014. It was alleged that unfortunately, burglary took place between 18.01.2014 to 20.01.2014 in the said godown and 104 rolls of polyester knitted fabric were stolen and complainant suffered the loss to the tune of Rs.5,56,000/-. The matter was informed to the police as well as OP and the OP deputed M/s Tarani Insurance Surveyor and Loss Assessor to assess the loss. Complainant also lodged the claim with the OP. Thereafter, police recovered 35 rolls of fabric stolen from the culprits while remaining 69 rolls could not be traced by the police. It was further alleged that the competent authority of OP approved the claim of Rs.1,85,000/-. However, the surveyor has assessed the loss to the tune of Rs.1,98,720/- by considering that the cost of 69 rolls and the OP approved the claim of Rs.1,85,000/- after deducting the amount of excess clause. It was further alleged that this action of the respondent to be wrong, illegal and unjustified because the complainant was entitled for entire claimed amount i.e. Rs.2,31,000/- alongwith interest and compensation. Thus, there was deficiency in service on the part of OP.

3.                Upon notice, OP has appeared before learned District Commission and filed its written version and submitted therein that the complaint was time barred as the loss occurred on 18.01.2014 to 20.01.2014 and the claim has been lodged after expiry of more than 3 years. It was submitted that the survey was conducted by M/s Tarani Insurance Surveyor and Loss Assessor, who assessed the loss to the tune of Rs.1,85,000/- and not Rs.5,56,000/-. It was further submitted that the complainant has received the amount of Rs.1,85,000/- from the OP with his due satisfaction on 29.08.2016 and thus, now the complainant has no right to challenge any amount or action of the OP. It was further submitted that nothing is payable to the complainant by the OP in any manner and the OP was not liable to make any payment to the complainant. Thus, there was no deficiency in service of any kind on the part of the OP and prayed for the dismissal of the complaint.

4.                After hearing the parties, learned District Commission allowed the complaint and directions were issued to the OP as mentioned in para 1^st (supra).

5.                Feeling aggrieved therefrom, appellant-OP has preferred this appeal for setting-aside the impugned order passed by learned District Commission by accepting the present appeal.

6.                Arguments have been advanced by Shri S.S. Sidhu, learned counsel for the appellant. With his kind assistance the entire record including documentary evidence as well as whatever evidence had been led during the proceedings of the complaint had also been properly perused and examined. However, the respondent was proceeded against ex-parte by this Commission vide order dated 28^th September, 2023 because the respondent failed to appear before this Commission despite service through publication.

7.                Learned counsel for appellant-OP has argued that the respondent-complainant was having its godown at Khewat No.387, Killa No.99, near Shakti Durga Cold Storage, Friends Colony, Village Kundli, District Sonepat and the stock therein i.e. fabrics, textile goods, blankets in the godown was insured with the present appellant-OP vide Burglary First Loss Policy No.253502/48/2014/1836 for an amount of Rs.1,00,00,000/- scheduled for the period 19.12.2013 to 18.12.2014 and the percentage of first loss was upto 40%. He further argued that as per respondent-complainant, burglary took place between 18.01.2014 to 20.01.2014 in the said godown, but information about burglary was received by appellant-OP vide e-mail dated 20.01.2014 from respondent-complainant, upon which M/s Tarani Insurance Surveyor and Loss Assessor was deputed to assess the loss. As per respondent-complainant, 104 rolls of polyester knitted fabric were stolen and he suffered the loss to the tune of Rs.5,56,000/-. Thereafter, 35 bundles were recovered by the police out of 104 bundles, who also prepared the report dated 23.05.2014, so the surveyor appointed by OP assessed the loss of 69 rolls of polyester fabric, which comes to Rs.1,98,720/-. He further argued that after deduction of excess loss clause of the policy, claim was approved to the tune of Rs.1,85,000/- and the same was duly informed to the respondent-complainant vide e-mail dated 16.07.2015. Finally he argued that there was no deficiency in service on the part of present appellant-OPs and prayed for setting aside the impugned order passed by learned District Commission by accepting the present appeal. On the other hand, arguments of learned counsel for appellant remains unrebutted as the respondent was already proceeded against ex-parte.

8.                From the perusal of record it stands proved that the godown as well stock lying therein of present respondent-complainant was insured by the present appellant-OP for an amount Rs.1,00,00,000/- vide Burglary First Loss Policy bearing No.253502/48/2014/1836 for the period 19.12.2013 to 18.12.2014 and the percentage of first loss was upto 40%. It also stands proved that burglary took place between 18.01.2014 to 20.01.2014 in the said godown and information about the incident was given by respondent-complainant to appellant-OP vide e-mail dated 20.01.2014. FIR No.17 dated 20.01.2014 U/s 457 and 380 IPC, lodged at Police Station Kundli, District Sonepat also stands proved. It also stands proved that after receiving the information from respondent-complainant, present appellant-OP deputed a surveyor who assessed the loss to the tune of Rs.1,98,720/-, but an amount of Rs.1,85,000/- was approved after deduction of excess loss clause of the policy.

 9.               The respondent-complainant filed the complaint before learned District Commission only on the ground that the appellant-OP is liable to pay the claim amount of Rs.2,31,000/- as the surveyor wrongly assessed the loss of Rs.1,98,720/- and the appellant-OP approved only an amount of Rs.1,85,000/-. Perusal of impugned order passed by learned District Commission reveals that while passing the impugned order and awarded the claim amount of Rs.2,31,000/- after observing that the surveyor has wrongly assessed the loss to the tune of Rs.1,98,720/-.

10.              After going through the entire record as well as pleading of learned counsel for appellant, this Commission is of the considered view that before considering the report of surveyor, this Commission has to discuss about claim submitted by respondent-complainant. Perusal of letter dated 20.01.2014 reveals that the respondent-complainant revised the estimate of loss from Rs.35,00,000/- to Rs.10,00,000/-. Thereafter surveyor submitted its report dated 14.03.2015 according to which respondent-complainant submitted the bills of Rs.3,51,000/-only, however surveyor assessed the loss to the tune of Rs.1,98,720/- and after deduction of excess loss of the policy, claim of Rs.1,85,000/- was approved  and in this regard respondent-complainant was duly informed vide e-mail dated 16.07.2015. It is pertinent to mention here that in response of e-mail dated 16.07.2015, respondent-complainant again revised the claim to the tune of Rs,4,16,000/- through e-mail dated 28.07.2015. This act of respondent-complainant clearly shows his mala-fide intention.

11.              Now coming to the part of surveyor report, in this regard it is pertinent to mention here that the surveyor submitted its detailed report which is reproduced as under:-

          “Cost of 69 rolls stolen having average Weight

as 19.20 kg, total 1324.80 kg.

Fabric @ Rs.150.00kg as discussed above   :Rs.198720-00 Therefore net assessed loss                                 :Rs.198720-00

The net liability arising out of the above loss has been worked out at Rs.198720/-.”

 

Moreover, the surveyor report is a vital document and the same cannot be brushed aside until and unless there is some documentary evidence to rebut the same. However, the respondent-complainant, in the present case failed to do so. Further, the learned District Commission failed to consider that the respondent-complainant has already received an amount of Rs.1,85,000/- through NEFT on 26.08.2016 from the present appellant-OP and filed the complaint before learned District Commission in the year, 2017 by claiming an amount of Rs.2,31,000/- along with interest. So, it would be just fair and in the interest of justice, if the amount of Rs.1,98,720/- assessed by surveyor and loss assessor of appellant-OP is awarded to the respondent-complainant.

12.              In the light of aforesaid discussion and in considered view of this Commission, the present appeal stands allowed, impugned order dated 06.02.2018 passed by learned District Commission, Sonepat is set-aside. The present respondent-complainant is now entitled for the remaining amount of Rs.13,720/- only out of Rs.1,98,720/- (loss assessed by surveyor and loss assessor of present appellant) because the respondent-complainant has already received an amount of Rs.1,85,000/- through NEFT dated 26.08.2016 from the present appellant-OP. The appeal stands disposed of in terms of aforesaid order.

13.              Statutory amount of Rs.25,000/- deposited at the time of present appeal be refunded to the appellant against proper receipt, identification and as per rules.

14.              A copy of this order be provided to all the parties free of cost as mandated by the Consumer Protection Act, 2019. This order be uploaded forthwith on the website of the Commission for the perusal of the parties.

15.              Application(s), pending, if any, stands disposed off in terms of the aforesaid order.

16.              File be consigned to record room alongwith a copy of this order.

 

Pronounced on 14^th June, 2024                                        S.C Kaushik

                                                                                                            Member                                                                                                                                 Addl. Bench-III