::BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION AT BIDAR::
C.C. No.90/2021.
Date of filing: 27.12.2021.
Date of disposal: 02.01.2024.
P R E S E N Ts:-
(1) Shri. Mabu Saheb H.Chabbi, B.Com.,LL.B.,(Spl.),
President.,
(2) Kum. Kavita,
M.A.,LL.B.,(Spl.),
Member.
COMPLAINANT/S 1. Santosh S/o Dhanaraj Solapure,
Age: 40 years, Occ: Self employment,
R/o Kamalnagar Tq:Kamalnagar
Dist:Bidar -585417.
(By Sri.Sanjay Kumar S.Patil and
Sri.D.Basawaraj, Advocate.)
V/s
OPPONENT/S 1. Manager,
United India Insurance Company Ltd.,
PB No.47, Jawali complex,
Super Market Kalaburagi-585101.
(By Sri.M.A.Khan., Advocate.)
:: J U D G M E N T ::
By Shri. Mabu Saheb H.Chabbi, President.
The complaint filed by the complainant under section 35 of the Consumer Protection Act, 2019, against the opponent for the deficiency of service by not settling the insurance claim by the OP to the complainant, hence following judgment is passed.
Brief facts of the complaint.
The brief facts of the complaint are as follows: -
2. The Complainant is the resident of Kamalnagar he got Bharatiya Gas Gramina Vitarak Agency at Kamalnagar and got bank loan from SBI Kamalanagar under self employment scheme for his livelihood. The cylinders stored in Godown and got insured with the OP company under insurance policy No.2406002616P105243829, for a period of 01 year commencing from 21.07.2016 to 20.07.2017. On 20.04.2017, 158 filled Cylinders and 67 unfiled cylinders were found stolen from the godown of the complainant and caused loss to the tune of Rs.7,97,600/-. The complainant registered a Criminal case at Kamalanagar Police Station in Cr.No.52/2017 for the offence punishable u/s 457, 380 of IPC against unknown persons. The complainant intimated the OP Company, in turn the OP company surveyor visited the unit and inspected the godown, he has asked original documents pertaining to the stolen cylinders. The complainant submitted the required documents to the OP. The OP has paid Rs.2,00,000/- of claim amount against the claim of Rs.7,97,600/- and the same amount received by the complainant under protest. The complainant got issued legal notice on 16.03.2021, to the OP for further claim of insurance amount. But, the OP denied to settled the claim of the complainant and hence, complainant filed this compliant against OP for claim of insurance and compensation.
Gist of Written Version of OP.
3. The OP appeared before this commission after due service of notice from this commission through his advocate and filed his written version and the gist of the written version OP is as below.
The OP filed his W.V. that, he does not know about the theft of empty and filed gas cylinders from the godown of the complainant on 20.04.2017, it is not in dispute that, the complainant has lodged complaint before police at Kamalanagar. The complainant submitted the claim Form to the OP company, the OP appointed one surveyor Sri.S.S.Mangalure, who conducted survey and submitted a report. As per the survey report based on the records available at complainant office 370 filled gas cylinders, 349 empty gas cylinders and in total 719 gas cylinders were on record. After the incident of theft the surveyor find the 212 filled gas cylinders, 282 empty gas cylinders in total 494 gas cylinders were physically found at the godown. As per the survey report the total value of stock available in the godown as on the date of theft but, before the occurrence of theft was to the extent of Rs.22,49,926/-. However, the sum insured in the policy was only Rs.9,00,000/- as on the date of loss. The surveyor calculated as follows.
Total value of stock/property on the date of loss | Rs.22,49,926.00 |
Under-insurance in absolute value (Rs.22,49,926.00 (-) Rs.9,00,000.00 | Rs.9,00,000.00 |
Under insurance in percentage terms 13,49,926.00/22,49,926.00*100) | 60% |
As per the report of surveyor there was under insurance of stock/property in policy by 60%. The sum insured under the policy should represent the actual value of property at risk. If the property is insured is of greater value, than the sum insured there on, then the insured shall be considered as being his own insurer for the difference and shall bear and retable proportion of the loss accordingly. The claim will be subjected to the condition of pro-rate average clause in such case. As per condition No.6 of policy if there is under insurance, i.e., if the sum insured under the policy is less than the value of the property on the date of loss, the amount of loss payable will be proportionately calculated is 60% in the present case. The object of this condition is to penalize under insurance by a corresponding under payment of claim. The assessment of loss by surveyor due to theft is total Rs.7,25,990/-. After reduction due to under-insurance of stock (60% of Rs.7,25,990/-). The assessment of liability of company after application of condition of average net liability of company is Rs.2,90,396/. Accordingly, on receipt of survey report, for final settlement of claim of the complainant the OP advised the complainant to submit
i.) Sales tax and income tax returns for the last 03 years, preceding the year of the loss occurred, ii.) Trading, profit and loss account and balance sheet for last 03 years preceding the year of loss occurred, iii.) Purchase bills of gas cylinders. But, the complainant did not submit those documents and hence, OP process the claim of the complainant on non standard due to non submission of documents by the complainant to the OP, by applying 25% penalty on the loss assessed by the surveyor. Hence, the claim was settled on non standard basis for Rs.2,12,370/- which was dispersed and credited to the complainant’s account on 29.03.2019. The complainant accepted the same without any protest. The complainant has not made any protest or claim within 12 calendars months from 29.03.2019 and hence, the claim of settlement is deemed to have been accepted as per condition No.11 of insurance policy. Therefore the complaint filed after long lapse of 12 calendars month from the date of settlement and payment and hence, compliant is not maintainable and liable to dismiss.
Evidence of complainant.
4. The complainant himself examined as P.W.1 by filing his evidence affidavit and complainant got marked Ex.P.1 to Ex.P.7 documents and those are as below.
1. Ex.P.1-Copy of FIR in Cr.No.52/2017, issued by Kamalanagar Police.
2. Ex.P.2-Copy of letter issued by the complainant to the OP company
dt:02.01.2018.
- Ex.P.3- Copy of representation notice issued by the Adv. by the complainant to the OP.
- Ex.P.4-Copy of letter issued by Petroleum and explosives safety organisation South Circle Channai to the complainant.
- Ex.P.5-Copy of statement of account issued by SBI pertaining to the complainant account.
- Ex.P.6- Copy of invoice.
- Ex.P.7-Copy of mail from Prasanna Kumar to Sanjeev N.Gowda.
Evidence of OP.
5. One Sri.Swamy Tummala Authorized Officer of OP company, is examined as R.W.1 on behalf of OP and another witness Sri.S.S.Mangalore Surveyor of OP company examined as R.W.2 by filing his evidence affidavit and got marked 12 document is Ex.R.1 Ex.R.12 are as below.
1. Ex.R.1-Copy of survey report given by S.S.Mangalore on 11.06.2018.
2. Ex.R.2-Copy of valuation pertaining to complainant gas agency
issued by surveyor.
3. Ex.R.3- Copy of assessment of loss of complainant gas agency
issued by surveyor.
4. Ex.R.4-Copy of letter issued by surveyor to the OP company Divisional
Manager dt:25.02.2019.
5. Ex.R.5-Copy of reminder-5 letter issued by the surveyor to the
complainant dt:10.07.2018.
6. Ex.R.6- Copy of letter issued by Divisional Manager of OP Company
to the complainant dt:27.02.2019.
7. Ex.R.7-Copy of letter issued by the Divisional Manager of OP
Company to the complainant dt:05.04.2019.
8. Ex.R.8-Copy of FIR in Cr.No.52/2017 issued by Kamalanagar Police.
9. Ex.R.9-Copy of compliant by the complainant to the Kamalanagar
Police.
10. Ex.R.10-Copy of Vijayavani News paper.
11. Ex.R.11-Copy of day end statement for 19.04.2017.
12. Ex.R.12-Copy of policy.
Points/Issues.
6. Heard the argument advanced by both the parties. From the pleadings and documents produced by the parties, the points that arose for the consideration are as below.
- Whether the complainant proves that, he is consumer to the OP and further proves the deficiency of service from the OP?
- Whether the complainant proves any entitlement of claim of insurance from the OP?
- Whether OP proves that, the case of the complainant is barred by limitation?
- What order?
7. Our answers to the points raised above are as follows: -
- In the negative.
- In the negative.
- In the affirmative
- As per final order.
Points No.1 and 2.
8. In order to decide the said issues, since the points/issues No.1 and 2 are having inter related subject matter and hence point No.1 and 2 discussed together as follows.
9. The complainant and OP have filed their respective evidence affidavit as per P.W.1 and R.W.1, and reiterated the facts of their pleading in there evidence affidavit. The OP examined one witness
Sri.S.S. Mangalure Surveyor/loss Assessor and Valuer of OP Company as R.W.2, and reiterated the facts stated in his survey report. The complainant produced Ex.P.1 to Ex.P.7 documents to establish his case. The OP also produced documents as per Ex.R.1 to Ex.R.12 to substantiate its case.
10. The case of the complainant is that On 20.04.2017, 158 filled Cylinders and 67 unfiled cylinders were found stolen from the godown of the complainant and caused loss to the tune of Rs.7,97,600/-. The complainant registered a Criminal case at Kamalanagar Police Station in Cr.No.52/2017 for the offence punishable u/s 457, 380 of IPC against unknown persons. The complainant’s Gas Godown being insured under the policy No.2406002616P105243829 for a period of 21.07.2016 to 20.07.2017 which was issued by OP. The complainant intimated the OP Company regarding the theft of gas cylinders, in turn the OP company appointed surveyor and the said surveyor visited the unit and inspected the godown, he has asked original documents pertaining to the stolen cylinders. The complainant submitted the required documents to the OP. The OP has paid Rs.2,00,000/- of claim amount against the claim of Rs.7,97,600/- and the same amount received by the complainant under protest. The complainant got issued legal notice on 16.03.2021, to the OP for further claim of insurance amount.
11. The OP is not disputing the purchase of insurance policy by the complainant from the OP Company and its validity as on the date of incident of theft. But, the OP is disputing the claim of complainant as sought in his complaint. The complainant has produced Ex.P.1 =Ex.R.8 copy of FIR in Cr.No.52/2017 of Kamalanagar Police regarding the theft of gas cylinders from the Godown of complainant, Ex.P.2 is the letter
dt: 02.07.2018, given by the complainant to the OP to settle of claim of insurance amount. Ex.P.3 is the copy of representation notice issued by the Advocate of the complainant to the OP for settling the claim of insurance, Ex.P.4 is the copy of intimation letter dt:01.07.2014, issued by the controller of Explosives, Chennai, Govt. of India, to the complainant regarding the renewal of license for running gas cylinder business to the complainant. The OP has not disputed the cylinder business run by the complainant, the existence of insurance between the parties and the theft of cylinders took place in between the period from 19.04.2017 to 20.04.2017. In view of above discussion the complainant held to be proved as a consumer to the OP and OP is considered to be service provider to the complainant.
12. The complainant in his complaint and in his evidence affidavit asserts his claim to the extent of Rs.7,97,600/-but, the complainant has not placed any material or any calculations regarding how he is going to base his claim to the extent of Rs.7,97,600/- from the OP. The OP in turn has submitted the survey report as per Ex.R.1 to Ex.R.3 and the OP has also examined surveyor Sri.S.S.Mangalure as R.W.2 in support of his case. The surveyor in his survey report assessed the value of loss of gas cylinder Rs.7,25,990/- including filled and empty LPG cylinders in detail in his report. The loss assessed by the surveyor is Rs.2,90,396/-.
13. The OP is relying upon general conditions No.6 of Ex.R.12 insurance policy and for the sake of convenience reproduce the same as below, “AVERAGE: If the property hereby insured shall at the time of any loss or damage be collectively of greater value than the sum insured thereon, then the insured shall be considered as being his own insurer for the difference, and shall bear a ratable proposition of the loss or damage accordingly, every item, if more than one, in the policy, shall be separately subject to this condition”. As per this condition narrated in Ex.R.12 the complainant is entitle the claim of insurance to the extent of the portion of the stock for which he was insured. Though the stock of the complainant was to the extent of Rs.22,49,926/-, whereas the sum insured is Rs.9,00,000/-, therefore, the stock of the insured are not adequately covered under the policy. In this situation the formula for calculation given by the OP under survey report is that, Rs.9,00,000/-(Insurance) / Rs.22,49,926/-(Total stock) =100-60=40% X loss amount is Rs.2,90,396/-. The OP has already paid Rs.2,12,370/- on 29.03.2019 as per Ex.P.5 to the complainant. The complainant alleged that, he has received this amount under protest from the OP Company but, there is no such protest application issued by the complainant to the OP.
14. The OP has produced Ex.R.5 to Ex.R.7 letters dt:10.07.2018, 27.02.2019 and 05.04.2019 issued by OP to the complainant to produce documents. But, the complainant has not produced any documents as stated in the said letter and the complainant has not denied the issuance of letter by the OP to the complainant. In view of this non denial of Ex.R.5 to Ex.R.7 letters issued by OP to produce the document amounts to receipt of those letters to the complainant.
15. The OP contended in his W.V. that the claim of the complainant is not within 12 calendar months from 29.03.2019 and hence, the claim of settlement is deemed to have been accepted as per condition No.11 of insurance Company and hence, claim of the complainant is not maintainable and prayed to dismiss the complaint. On perusal of Ex.R.12 the Para No.4 of condition No.11 which runs as under. “It is also hereby expressly agreed and declared that if the company shall discline liability to the insured for any claim here in under, and such claim shall not, within 12 Calendar months of such disclaimer have been made the subject matter of a suit in a court of law, then the claim shall for all purposes be deemed to have been abandoned and shall not thereafter be recoverable here under”. Ongoing through this condition mention above, such condition is applicable to the suit in a court of law, but not before consumer commission, and hence, the contention of the OP under the shelter of condition No.11 cannot be accepted. However, on going through the records of the complainant the complaint filed by the complainant is on 27.12.2021 whereas the cause of action was 20.04.2017 the date of theft, even if the letter correspondence between complainant and OP considered as acknowledgment for limitation the last letter issued by the OP to the complainant is on 05.04.2019, the complainant ought to have file the complaint within 02 years from the date of the last letter dt:05.04.2019, i.e., 05.04.2021. But, the complainant filed the complaint before this commission on 27.12.2021 which is after lapse of 02 year 8 months, wherein as per the provisions of Section 69 of consumer act the complainant has to file complaint within 02 years from the date of cause of action. The complainant caused delay of nearly 08 month to file complaint before this commission. The complainant has not given any reasons for the delay in filing complaint. Moreover, the complainant has not filed any delay condonation application before this commission to exempt such delay while filing the complaint before this commission.
16. The complainant has stated in Para No.5 of his complaint, that he has issued legal notice to the OP on 16.03.2021 to settle the remaining claim of the complainant. But, the complainant has not produced any such copy of legal notice dt:16.03.2021, before this commission. The complainant has produced one document, Representation notice as per Ex.P.3 addressing to OP and said to be issued by his advocate. But, this representation notice does not contain any date and on which date it has been issued and no postal receipt or postal acknowledgement produced to show the service of such notice or representation notice to the OP. In view of these circumstances the document Ex.P.3 cannot be considered that, it is served to the OP and the case of the complainant cannot be considered as it is within the period of limitation as stated under the provisions of Section 69 of C.P. Act 2019. In view of this situation the complaint cannot be considered as within limitation and hence, OP is proved that, the case of the complainant is barred by limitation and answered point No.3 in the affirmative in favour of OP.
17. The OP has not made complete payment as per Ex.R.1 to Ex.R.3 the survey report, the OP has deducted Rs.78,026/- and assigned the reason that the complainant has not produced, sales tax and income tax returns of the 3 years, trading profit loss account and balance sheet for last 3 years and purchased bill of gas cylinders to the OP for complete settlement of insurance amount. The surveyor also issued letter Ex.pR.5 to the complainant as reminder No.5 on 10.07.2018 to produce the above said 03 documents but, the complainant seems that, not produced any such documents to the OP company, even the complainant have not produced any such acknowledgments regarding the production of those documents before, Op company. The OP has already settle the claim on non standard basis to the extent of Rs.2,12,370/- to the complainant, because of not producing the above said documents, the documents are said to be necessary for settling the remaining amount as per survey report. The complainant has not denied the issuance of letters by the OP as per Ex.R.5 to Ex.R.7 to the complainant. In view of these circumstances the complainant is not entitle for any remaining claim and there is no need to interfere with the settlement made by the OP to the complainant, based on insurance policy as already discussed above.
18. The complainant has produced judgment of Supreme Court decided in Civil Appeal No.7694/2013 DD.09.06.2022 between Oriental Insurance Company Ltd. Vs K.Narsimha Reddy, the ratio laid down by the lordship is “while settling claim insurance company should not seek documents which are beyond the control of insured to furnish”. The complainant has not made any case that, the said document are beyond his control to produce before OP and hence, the above said decision of Supreme Court is not applicable to the case on hand.
19. The complainant has produced another judgment of NCDRC of New Delhi decided in an Appeal No.1153/2018 order dated 26.11.2018, the ratio laid down by the lordship is, “payment on non standard basis is not require when there was no breach of conditions of policy”.
20. The complainant has produced another judgment of Supreme Court of India reported in (2023) CJ 491 (SC) the ratio laid down by the Hon’lble Supreme Court that, “ Once assessment has been made by surveyor regarding loss/damage which takes place due to fire i.e., not disputed by the insurance company, repudiating claim is unfair and is not legally sustainable”. The case of the complainant is not within the limitation of 02 years and hence, above 02 judgments are not made applicable to the case on hand.
21. From the above discussion we are of the opinion that, the complainant has fail to proved his case against the OP for the deficiency of the service to the complainant and answered point No.1 and 2 in the negative as against complainant and proceed for pass following.
::ORDERS::
The complaint filed by the complainant U/sec 35 of consumer protection Act 2019 as against OP is hereby dismissed.
Intimate the parties accordingly.
(Typed to our dictation then corrected, signed by us and then pronounced in the open Commission on this 02nd day of January-2024).
Kum. Kavita, Member DCDRC Bidar. | | Shri.MabuSaheb H. Chabbi, President DCDRC Bidar. | H. Chabbi, President DCDRC Bidar. |
Documents produced by the complainant.[
1. Ex.P.1-Copy of FIR in Cr.No.52/2017, issued by Kamalanagar Police.
2. Ex.P.2-Copy of letter issued by the complainant to the OP company
dt:02.01.2018.
3. Ex.P.3- Copy of representation notice issued by the Adv. by the
complainant to the OP.
4. Ex.P.4-Copy of letter issued by Petroleum and explosives safety
organisation South Circle Chennai to the complainant.
5. Ex.P.5-Copy of statement of account issued by SBI pertaining to the
complainant account.
5. Ex.P.6- Copy of invoice.
- Ex.P.7-Copy of mail from Prasanna Kumar to Sanjeev N.Gowda.
Document produced by the Opponent.
1. Ex.R.1-Copy of survey report given by S.S.Mangalore on 11.06.2018.
2. Ex.R.2-Copy of valuation pertaining to complainant gas agency
issued by surveyor.
3. Ex.R.3- Copy of assessment of loss of complainant gas agency
issued by surveyor.
4. Ex.R.4-Copy of letter issued by surveyor to the OP company Divisional
Manager dt:25.02.2019.
5. Ex.R.5-Copy of reminder-5 letter issued by the surveyor to the
complainant dt:10.07.2018.
6. Ex.R.6- Copy of letter issued by Divisional Manager of OP Company
to the complainant dt:27.02.2019.
7. Ex.R.7-Copy of letter issued by the Divisional Manager of OP
Company to the complainant dt:05.04.2019.
8. Ex.R.8-Copy of FIR in Cr.No.52/2017 issued by Kamalanagar Police.
9. Ex.R.9-Copy of compliant by the complainant to the Kamalanagar
Police.
10. Ex.R.10-Copy of Vijayavani News paper.
11. Ex.R.11-Copy of day end statement for 19.04.2017.
12. Ex.R.12-Copy of policy.
Witness examined.
Complainant.
P.W.1- Santosh S/o Dhanaraj Solapure, (complainant).
Opponent.
R.W.1- Sri.Swamy Tummala Authorized Officer of OP Company.
R.W.2- Sri.S.S.Mangalore Surveyor of OP Company.
Kum. Kavita, Member DCDRC Bidar. | | Shri.MabuSaheb H. Chabbi, President DCDRC Bidar. |
