NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSIONNEW DELHIREVISION PETITION NO. 2657 OF 2009
(Against the Order dated 09/04/2009 in Appeal No. 3211/2007 of the State Commission Haryana)
1. NEW INDIA ASSURANCE CO. LTD.Regional Office I Jeevan Bharati. 124. Connaught Circus. New Delhi -110001Delhi -110001
...........Petitioner(s)
Versus
1. M/S. LAKHAN PAL TENT HOUSEThrough Its. Prop. Mahender Kumar Lakhan Pal . Opp. I.T.I Gate. Kunjpua Road. Karnal Haryana
...........Respondent(s)
BEFORE:
For the Petitioner :
NEMO
For the Respondent :
NEMO
Dated : 11 Feb 2010
ORDER
Heard Counsel for the parties. These revision petitions Nos.2657 of 2009 and 2728 of 2009 are arsing out of common order dated 9.4.2009 passed in Appeal No. 3211/2007 by the State Commission and hence a common order is being passed. The brief facts of the case are that M/s. Lakhan Pal Tent House got insured with New India Assurance Company Ltd. for stocks of all kinds of tent material such as tent, tables, tent clothes, daries, carpet, chairs, bistar and all type of utensils, crockery and all type of tent material and/or furniture/fixture and electric fitting including tube lights and fans etc. for a sum of Rs.5 lakhs for the period from 23.9.2004 to 22.9.2005. On the intervening night of 27.12.2004 there was a fire in the godown of the insured tent house. A surveyor was appointed to assess the loss. Meanwhile there was some settlement of talks between the parties which failed. The Complainant approached Insurance Ombudsman, Chandigarh and the Ombudsman opined that prima facie it is fit case for harassment but also suggested that the claim be decided within 15 days. After taking into consideration the survey report dated 20.6.2005, the loss was assessed at Rs.3,63,710/- but the surveyor thereafter filed addendum report by which he assessed the loss at Rs.324,110/-. But the surveyor based on the physical verification and also kind of stock that has been put to use applied 50% depreciation and after deducting Rs.5,000/- for salvage and Rs.10,000/- on account of policy excess, initially net loss was assessed at Rs.1,67,255/-. But by addendum report dated 2.8.2005 he reassessed the loss at Rs.1,47,455/-. Strangely, this was again reduced to Rs.1,08,091/- by the Insurance Company. (Annexure P/7A in R.P. No. 2657/2009). I am surprised to see the mode of axing process the surveyor has adopted while assessing the loss without investigation of the same. Firstly, without any policy condition, he allowed depreciation to the extent of 50% while calculating the loss. I do not find anything wrong with the salvage value and policy excess amount which were decided at Rs.5,000/- and Rs.10,000/- respectively but I am unable to understand deduction of 25% for non maintainability of books of accounts, purchase bills and stock register. Surveyor allegedly without any policy condition and without any explanation for the same, deducted Rs.39,364/- on this count. The District Forum in Complaint No.77 of 2006 vide order dated 3.10.2007 allowed the complaint and directed the Insurance Company to pay Rs.3,63,710//,- after deducting Rs.5000/- on account of salvage etc. and after deducting Rs.1,08,091 which has already been paid to the Complainant, alongwith interest @ 10% p.a. to the Complainant alongwith cost of Rs.2000/- to be paid by the Insurance Company. In the First Appeal No.3211 of 2007 by the Insurance Company, the State Commission partly allowed the appeal in favour of the Complainant and held that 50% deduction of the assessed loss is on higher side and reduced to the extent of 25% and after the amount which has already been paid to the Complainant, the amount payable was arrived at Rs.1,91,392/-. The State Commission directed that the aforesaid amount be paid with interest @ 12% p.a. from the date of loss till realisation. Aggrieved by this order, both parties filed revision petitions. The Insurance Company was aggrieved by the order since 50% depreciation as per the surveyor was not allowed and the Complainant is aggrieved by the order of the State Commission that even 25% depreciation should not be allowed and the order of the District Forum be sustained. After perusing both the orders and hearing the parties, I am dismissing both the revision petitions for the reasons given below:- 1. The Insurance Company in their policy has not shown any clause which gives them the right to arbitrarily decide the percentage of depreciation. In the present case 50% depreciation has been decided by the surveyor. Without any explanation, the surveyor stated that in tent house wear and tear of the stock in practical terms comes to 50%. The question is whether such term has been stipulated in the policy condition? Learned Counsel could not show any such condition and the IRDA Regulations clearly show that both the parties are bound by the terms of the contract. The State Commission has found that 50% is excessive depreciation but also found merit in the arguments of the Insurance Company that on physical verification the surveyor found the items which were insured get depreciated very soon considering the nature of the same. I do not find anything wrong with this reasoning given by the State Commission and uphold the same. 2. As fas as the complainant is concerned, it is noted by the surveyor in the survey report that even after repeated requests for the stock register and purchase bills etc., the Complainant did not produce the same for reasons best known to him. When a Complainant files a complaint against the Insurance Company, he should come with clean hands and proper books of accounts, well maintained register should be furnished. If the record is not maintained, it is very difficult for the Insurance Company to assess the actual loss. In such situation, there is also a possibility to great misuse by the Complainant and hence, I find that there is some merit in the observation made by the surveyor regarding the non supply of material information by the Complainant. Hence, I can not support the arguments of the Complainant that there are some more items which got destroyed at the time of fire without support of the Registers of purchases and stock etc. It only appears of the Insurance Company are expected to take little effort and time to stipulate any specific condition attributable to specific industry/firm/shop etc. in the policy which relates to the particular field, such as this. Insurance Company cannot suddenly give a shock to the insured that they would depreciate to the extent of 50% after claim is filed. In view of the aforesaid discussion, in my view, it is a clear unfair trade practice. The very principle of uberrima fides, the contract is based on utmost good faith is applicable to both parties. Learned Counsel for the Petitioner contended that the amount assessed by the surveyor to be Rs.3,63,710/- whereas in the addendum survey report it was reduced to Rs.3,24,110/-. I have perused the addendum survey report whereby the surveyor after assessing the loss stated that the Complainant claimed the rates of certain items higher than the fair market price and the loss has been assessed on the basis of documents submitted by the insured and accordingly this amount was assessed. I do not find any reason to interfere with the same because the Complainant did not bother to file books of accounts, stock register etc. I take the support of the decision rendered by the Apex Court in Vikram Greentech (I) Ltd. V/s. New India Assurance Company Ltd. 2009 CTJ 465 (SC) (CP) wherein it is held:- A document like the proposal form is a commercial document and being an integral part of insurance policy, reference to proposal form may not only be appreciate but rather essential. Surveyors report cannot be taken aid of nor can it furnish the basis for construction of the insurance policy. Such outside aid for construction of insurance policy is impermissible. Since the insurer undertakes to indemnify the loss suffered by the insured on account of risks covered by the insurance policy, its terms have to be strictly construed to determine the extent of liability of the insurer. In the case of Taba Gloves Pvt. Ltd. V/s. New India Assurance Company 2009 (CTJ1253 (CP) (NCDRC), this Commission also held it is a deficiency in service on the part of the Insurance Company who denied the Complainant a chance to plead and assert for the balance claim. It was further held that Uberrima fides principle-utmost good faith applies to both the parties. In view of the aforesaid discussion, I do not find any reason to interfere with the order of the State Commission. The Insurance Company is directed to pay the balance amount within four weeks. Accordingly, both the revision petitions are dismissed with no order as to costs.
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