BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM, JALANDHAR.

Complaint No.116 of 2014

Date of Instt. 11..4.2014

Date of Decision :12.12.2014

M/s Singh Communication, Opposite KRM DAV Collage, Girl Wing, Shankar Road, Nakodar, District Jalandhar through its Prop. Jagdeep Singh son of Surinder Pal R/o New Adarsh Nagar, Nakodar District Jalandhar.

..........Complainant

Versus

M/s Oriental Insurance Limited, Sawan Chamber, above Punjab National Bank, G.T.Road, Phagwara District Kapurthala through its Manager.

.........Opposite party

Complaint under section 12 of the Consumer Protection Act.

Before: S. Jaspal Singh Bhatia (President)

Ms. Jyotsna Thatai (Member)

Present: Sh.S.C.Sood Adv., counsel for complainant.

Sh.Brijesh Bakshi Adv., counsel for opposite party.

Order

J.S.Bhatia (President)

1. The complainant has filed the present complaint under section 12 of the Consumer Protection Act, against the opposite party on the averments that the complainant Jagdeep Singh is running business of sale and repair of mobile phones under the name and style of M/s Singh Communications opposite KRM DAV Collage Girl Wing, Shankar Road, Nakodar, District Jalandhar, which is one of the most commercially viable place in the Tehsil Nakodar. The complainant took insurance cover from the opposite party under the cover note No.377241 dated 29.6.2010 and the same was to subsist till 28.6.2011. The total sum insured was Rs.5 Lacs and the risk covered was on stocks of cell phones, cell phones accessories, gift items and other related items to trade, lying in the store at the above mentioned place opposite KRM DAV Collage, Girl Wing, Shankar Road, Nakodar, District Jalandhar. Of late there has been manifold increase in the incident of burglary, theft, robbery and other such offences in Tehsil Nakodar and on the eventual midnight intervening 10.2.2011 and 11.2.2011, burglary was committed at the above said shop during the night time, wherein the entire stock of the complainant was lying. The intimation was immediately given to the police and the matter was investigated by the police and statements were also recorded. The said offence was investigated by the police along and under FIR No.252 dated 15.10.2010 under section 457 and 380 of IPC. The matter was also brought into the notice of the opposite party, who had insured the goods and the claim was lodged with the opposite party. The said claim was lodged by the complainant and the same was lodged to the extent of Rs.2,58,374/-. At the time of lodging the claim, the complainant also provided all the bills of the products/mobile phones, which were burgled from the complainant firm, detailing the quantity of pieces and also the amount of the product. Thereafter, Satinder Arora, B.E.(Mech.) who is engineer by profession and auto mechanic expert was appointed as surveyor to assess the loss which is primarily of commercial nature and does not bear any relation to the field of machinery of auto mechanic, of which the said surveyor is expert. The claim was with regard to the stock assessment and the loss of stock was to be quantified. When the claim was lodged with the opposite party, the opposite party kept on dilly delaying the matter on one pretext or other. All the invoices were also provided. All the relevant information with regard to the claim and loss was also provided by the complainant but neither the opposite party nor the surveyor had any intention to settle the claim. Eventually, as late as 9.11.2011, the said surveyor prepared his report and gave a totally lope sided. It is pertinent to mention that the opposite party also got an investigation conducted from Catvision Detective Agency, which found that the claim of the complainant was genuine and satisfactory. The said report was given on 10.3.2011 and even after the said report the surveyor did not prepare the survey report till the month of November, 2012. Eventually, the surveyor has assessed the loss only to the extent of Rs.97,515/- and the surveyor has acted as agent of opposite party and has failed to comply with the established norms of IRDA and the basic principles of claim assessment. The said report is liable to be set aside. The surveyor has wrongly neglected some of the bills without seeking any explanation from the complainant or conducting any market research. The surveyor has wrongly applied the average method at the time of assessment of the claim and has wrongly deducted 35% for the sale and estimation error. The claim has been unnecessarily delayed on the ground that the non traceable report was not issued by the court pertinently the said report is not a pre-requisite for settling the claim and there was neither any such condition in the insurance policy. The investigation of the complaint of the complainant was being carried on with another FIR stated above, as such, claim of the complainant can not be held to ransom on this ground. The complainant has also suffered one legal notice dated 21.2.2012 to the opposite party, but the opposite party instead of admitting the claim has given a vague reply. On such like averments the complainant has prayed for directing the opposite party to pay him Rs.2,58,374/- alongwith damages and litigation expenses.

2. Upon notice, the opposite party appeared and filed a written reply pleading that the present complaint is premature and the complainant has got no cause of action to file the present complaint against the answering opposite party. There has been no default or undue delay, on the part of the answering opposite party in processing the claim of the complainant and even otherwise, the claim has not been repudiated by the opposite party. The fact of the matter is that the complainant had took BHB policy for Rs.5 Lacs for the period 29.6.2010 to 28.6.2011 on stocks of cell phones, cell phone accessories, gift items etc as mentioned in the cover note/policy subject to terms and conditions of insurance. Thereafter during the subsistence of the policy the insured raised a claim of burglary in his premises. The claim was made for the loss of Rs.2,58,374/- for the theft of mobile phones as enumerated alongwith the claim. Upon notice of the claim, the company took immediate action and deputed Lt.Col.B.S.Ahluwalia Retd of Catvision Detective Agency for investigation of the claim and Mr.Satinder Arora of M/s Auto Mech Experts for survey and loss assessment. The surveyor then coordinated with the insured for documents, bills and other details etc including spot visit and then submitted his report on 9.11.2011. The loss was assessed on the basis of scrutiny of stock statements, account books, bills provided by the insured and the market trend of mobile pricing etc. The goods for which the insured could not produce any bills or documents were left out. Furthermore the fiscal loss was calculated on the basis of model make and year and the amount of total loss was arrived at Rs.1,05,211/-. However the insured submitted trading account as on 10.2.2010 according to which the closing stocks was arrived for a sum of Rs.5,39,460/-. The insured had took policy for a sum insured of Rs.5,00,000/- only which was found inadequate hence average clause was applied and after applying the average clause the loss was finally assessed for Rs.97,515/-. The company thereafter processed the claim and the claim liability was arrived at Rs.97,400/- on 31.1.2012 after deduction of reinstatement value and the submission of untraceable report. Time and again letters were written to the insured to submit the untraceable report for further proceedings the case on dated 16.11.2011, 13.2.2012, 7.3.2012 and on 27.8.2012 it was further advised that on account of non submission of the report the company shall be compelled to file the claim as "No Claim" but all the letters were neither replied nor complied by the insured nor he expressed his inability at any time to submit the untraceable report. Thereafter vide notice dated 16.8.2013 through his lawyer the insured informed that the untraceable report has been filed by the police in the court but still he failed to supply copy thereof to the opposite party. The notice was duly replied by the opposite party through its counsel. In the meanwhile the insured approached the company through RTI and sought reports and information and on coming to know about the survey report raised objections on various accounts and requested for reinvestigation of the matter and reconsideration of the bills etc on account of the same being ignored by the original surveyor vide his notice dated 21.2.2014. The complainant further requested for appointment of some C.A as surveyor. After receipt of the notice of the insured the comments were sought from the surveyor but it was found that the said surveyor had left the country and was not available. Thus the company/opposite party as a good will gesture and as per request of the complainant appointed Mr.Rajan Sharda B.Com.(Hons) F.C.A. for assessment of the loss. The said surveyor has sought documents vide his letter dated 11.4.2014 but the complainant vide his reply through his counsel has leveled frivolous allegations against the company/opposite party which clearly shows the malafides on the part of the complainant and the complainant by concealing all the aforesaid facts has filed the present false frivolous complaint just to harass and pressurize the opposite party to pass his untenable claim and demands. It denied other material averments of the complainant.

3. In support of his complaint, complainant has tendered into evidence affidavit Ex.CW1/A along with copies of documents Ex.C1 to Ex.C24 and closed his evidence.

4. On the other hand, learned counsel for opposite party has tendered affidavit Ex.OA alongwith documents Ex.O1 to Ex.O12 and closed evidence.

5. We have carefully gone through the record and also heard the learned counsels for the parties.

6. It is not disputed that the complainant has obtained shop keeper insurance policy from the opposite party. A theft took place on the intervening night of 10.2.2011 and 11.2.2011 in the shop of the complainant and stock lying in the shop was stolen. The complainant intimated the police and also the opposite party insurance company claiming the loss at Rs.2,58,374/-. The opposite party insurance company appointed a surveyor who submitted its report but on some objection raised by the complainant the opposite party again appointed another surveyor. The opposite party has not decided the claim of the complainant till date. In preliminary objection No.2 the opposite party has pleaded that the present complaint is premature and claim has not been repudiated by it. In its written reply, the opposite party insurance company has pleaded that the surveyor submitted his report on 9.11.2011. On the basis of this report the claim of the complainant was not decided on account of non submission of untraceable report. Then complainant objected to the report of the surveyor vide notice dated 21.2.2014 and then some charted accountant was appointed as surveyor. Counsel for the opposite party contended that the opposite party insurance company wanted to seek certain clarification from the first surveyor but he was not available as he has gone abroad and as such second surveyor was appointed. Theft took place on the intervening night of 10/11.2.2011 but till today the claim of the complainant has not been decided by the insurance company for one reason or another. No doubt the opposite party insurance company should be given an opportunity to decide the claim of the complainant on merits but not deciding the claim of the complainant for more than 3 1/2 years itself constitute deficiency in service on the part of the opposite party. The insurance company should have decided the claim on merits promptly at-least on receipt of report from first surveyor. The complainant even served legal notice dated 16.8.2013 Ex.C-14 but still claim was not decided. The complainant had objected to the report of surveyor and asked for appointment of charted accountant as surveyor only through notice dated 21.2.2014 Ex.C-17. During the intervening period of 3 years the claim of the complainant remain undecided which is deficiency in service on the part of the opposite party insurance company.

7. In view of above discussion, the present complaint is disposed off with the directions to the complainant to submit any further document or information which he may desire to opposite party insurance company within 15 days from the date of receipt of copy of this order and thereafter opposite party insurance company shall positively decide the claim of the complainant within 45 days on the basis of documents already submitted by him and further on the basis of documents produced by him during trial of the present complaint and also on the basis of document if any which the complainant may further submit to the opposite party insurance company within the said period of 15 days. In case the claim of the complainant is not decided within the above said 45 days after expiry of said period of 15 days then insurance company shall be deemed to have accepted the claim of the complainant in toto. Further the complainant is awarded Rs.10,000/- as compensation and Rs.3000/- on account of litigation expenses from opposite party insurance company. Copies of the order be sent to the parties free of costs under the rules. File be consigned to the record room.

Dated Jyotsna Thatai Jaspal Singh Bhatia

12.12.2014 Member President