Delhi

New Delhi

CC/1229/2012

Cellular Shoppe - Complainant(s)

Versus

M/S. The Oriental Insurance Company Ltd. - Opp.Party(s)

23 Jul 2015

ORDER

CONSUMER DISPUTES REDRESSAL FORUM-VI

(DISTT. NEW DELHI), ‘M’ BLOCK, 1^STFLOOR,

VIKAS BHAWAN, I.P.ESTATE,

NEW DELHI-110002.

 

Case No.CC/1229/12                           Dated:

In the matter of:

M/s. Cellular Shoppe,

Through its M.D Vinod Sachdeva,

Presently at: D-1097, New Friends Colony,

New Delhi-110065

 

……..COMPLAINANT

       

VERSUS

The Dy. General Manager,

The Oriental Insurance Co. Ltd.,

DRO-I, At Hansalaya Bldg. 10th Floor,

Tolstoy Marg, B.K Marg,

Connaught Place, New Delhi-110001

 

                                         ……. OPPOSITE PARTY

 

 

ORDER

President: C.K Chaturvedi

                                                        

This complaint has a background and history to it. The complainant had a mobile phone shop at Lajpat Nagar, New Delhi. It was insured for the stock of phone, accessories and fixtures of the shop under a shop policy with OP. The shop was burgled in night of   1997. The police and insurance company was informed. The OP appointed a Surveyor and Assessor who carried out investigations. On the basis of enquires and survey and given documents etc. the Surveyor reached a figure of loss of Rs 3 lakhs and odd based on records of missing mobiles. He could not assess the loss of accessories, though police had recovered a bag containing accessories, but the same could not be opened as it had been sealed by orders of the Court. The Surveyor Report mentions that the complainant did not press for the loss of accessories in the claim for the aforesaid reasons. The complainant did not accept the loss figure assessed by OP, but the OP did not formally repudiated the claim.
        The complainant filed a consumer complaint no. in this Forum in 2002. However, he withdrew the same in 2003, on the understanding that since the complainant was doing a commercial service he was not consumer and that the complaint was also time barred. He instead filed a civil suit in the District Court claiming a sum of Rs.8 lakhs and odd. The Civil Court framed an issue whether the suit was time barred, and if not to what amount the complainant was entitled. The Ld. ADJ, held that the suit was not time barred as the OP had only been sitting on the claim since 1997, without either accepting it or repudiating. According to court finding the cause of action for claiming the suit amount of loss could arise only on repudiation of the claim. The Ld. ADJ, therefore, dismissed the cost, but imposed cost of Rs.30,000/- on the basis of Supreme Court Judgment in Lucknow Development Authority case, holding that public authorities cannot sit on the duties it owes to public as public servants. The suit was dismissed in the year 2012 vide judgment dated 3.8.12 placed on record.

The OP being bitten by the observations of the Civil Court, sent the cheque of Rs.3 lakhs and odd, in the year 2012, as assessed by surveyor in 1997. The insurance company did not include interest in this since 1997 till payment. The partial payment has being taken as repudiation and this fresh complainant has been filed in 2012.

The complainant claims that cause of action has arisen by partial payment made and final settlement voucher sent in 2012, after the orders of civil court.

It is to be noted that neither OP nor complainant filed appeal from the order of Ld. ADJ. Thus the findings of that Court on the question of limitation and fact of repudiation have attained finality and are now binding on the OP. The complainant could have appealed to contend that denial of claim for unreasonable period before filing of suit in 2009, itself amounted to repudiation of claim and that civil court should have decided the claim by adducing of evidence of both the parties. That indeed is the legal position that unreasonable delay tantamount to repudiation. The complainant also did not question the inadequacy of cost of Rs.30,000/- for inaction of OP for 15 years which amounted to deficiency in service, in terms of Consumer Protection Act. This figure reached by the District Court thus also attains finality as far this Forum is concerned.

The OP has filed a reply in which it has taken the preliminary objection that complainant was not a consumer, that the complaint was time barred, that the civil court has already dismissed the claim of complainant etc.

We have carefully considered the rival submissions and are of the view that OP did not contest the civil case further without offering final settlement voucher for payment as per the report of the Surveyor, nor it contested the plea that it had not yet repudiated the claim. The civil court came to the conclusion that since it had not been repudiated there was no question of starting point of cause of action for limitation purpose and therefore dismissed the complaint. In this view of the matter, there is no merit in the contention of OP that complaint is time barred. There is also no merit in the plea that complainant is not a consumer. The complainant availed the insurance service of OP not for a commercial purpose. The civil court has not on merits considered the claim.

We have therefore considered the claim. Though the insured amount was about 8 lakhs, yet for the purpose of claim it is to be restricted to actual loss as assessed by Surveyor. We have gone through the report of surveyor and find that it has based loss only on stock of mobiles found missing and has not included in the loss items recovered with police and the complainant also did not press before surveyor for claim for accessories with police, as is found mentioned in the surveyor report.

The complainant has not contended any perversity or non application of mind in the report of Surveyor nor claimed any other infirmity in assessment. The reported loss in the report at Rs.3,04,849/- and odd is thus to be respected.

The insurance company has given this loss through the settlement voucher in 2012. It has not included interest for the delay till then. We have considered this aspect. We find that Complainant has also contributed to this delay by moving from Forum to Civil Court and now back to Forum.

In view of this we hold OP deficient to the extent of withholding interest on the loss estimated by OP’s Surveyor. We direct OP to pay interest @ 9% from the date of survey report, till the actual date of payment through voucher in 2012. We award Rs.50,000/- for deficiency of OP in not paying due interest till 2012, when it made payment after dismissed of suit. We cannot award any other compensation for deficiency as the same has been awarded by the civil court. We award Rs.20,000- towards litigation expenses.

The order shall be complied within 30 days of the receipt of the copy of the order; otherwise action can be taken under Section 25 / 27 of the Consumer Protection Act.

File be consigned to record room.

Copy of the order be sent to the parties free of cost.

 

        Pronounced in open Court on 23.07.2015.

 

 

(C.K.CHATURVEDI)

PRESIDENT

 

 

 (Ritu Garodia)

MEMBER