BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM, JALANDHAR.

Complaint No.313 of 2015

Date of Instt. 23.07.2015

Date of Decision : 10.08.2016

1.M/s Laptop World, 193, Green Park, Opp.Bus Stand Gate No.6, Jalandhar-144001, through its Prop.Smt.Tara Rani.

2.Smt Tara Rani, sole proprietor and trading as M/s Laptop World, 193, Green Park, Opp.Bus Stand Gate No.6, Jalandhar-144001

..........Complainant

Versus

1.National Insurance Co.Ltd., 3, Middleton Street, Post Box No.9229, Kolkata, through its Managing Director/Chairman.

2.National Insurance Co.Ltd., Divisional Office No.1, BMC Chowk, Jalandhar, through its Divisional Manager.

.........Opposite parties

Complaint Under Section 12 of the Consumer Protection Act.

Before: S. Bhupinder Singh (President)

Sh.Parminder Sharma (Member)

Present: Sh.Prince Tayal Adv., counsel for the complainant.

Sh.RS Arora Adv., counsel for the OPs.

Order

Bhupinder Singh (President)

1. The complainant has filed the present complaint under section 12 of the Consumer Protection Act against the opposite parties (hereinafter called as OPs) on the averments that complainant got insurance policy namely Burglary Floater Policy bearing No.401100/ 46/12/7500000007 from the Ops. Thereby, he got his stock lying in the showroom/shop insured for the period from 13.4.2012 to 12.4.2013. The value of goods was insured Rs.75 Lakhs. On the intervening night of 6/7.10.2012 burglary was committed at the showroom of the complainant and the goods worth Lakhs of rupees were stolen by some unknown person. Complaint was lodged with the police. Resultantly, FIR No.233 dated 7.10.2012 was registered as PS Division No.7 under section 457/380 of IPC. OP No.2 was also informed immediately about the loss/goods stolen and details were provided. Thereafter, complainant lodged claim regarding the loss sustained by the complainant amounting to Rs.19,56,384/- with the Ops. The Ops appointed surveyor namely Mittal Surveyors Pvt.Ltd., Bathinda to survey the loss suffered by the complainant. Complainant submitted that he submitted all the requisite documents and information to the surveyor to settle the claim of the complainant i.e. purchase bills, stock statements, account books, etc. The Ops settled the claim of the complainant at Rs.11,08,540/- as against the claim of Rs.19,56,384/-. Complainant asked the reasons for reducing the claim amount which were provided to the complainant by the OP vide letter dated 27.7.2013. Complainant submitted that total 39 Laptops were stolen from the showroom/shop of the complainant but the Ops paid the claim of 30 Laptops without assigning any reason for rejecting the claim of 9 Laptops. Further cost of Laptops stolen have been taken as Rs.36,118/- only as against the actual cost which is very high. The loss of misc have been arbitrarily assessed as Rs.25,000/- and amount of Rs.49,777/- and Rs.1784/- have been illegally reduced from the passed claim amount of Rs.11,08,540/-. On such averments, the complainant has prayed for directing the Ops to pay the amount 8,97,621/- illegally deducted by the Ops from the claim lodged by the complainant alongwith interest. She has also claimed for compensation and litigation expenses.

2. Upon notice, OPs appeared through counsel and filed written reply pleading that the claim of the complainant was settled and paid to the complainant on 17.5.2013, whereas the complainant has filed the present complaint on 23.7.2015. No short payment was acknowledged by the OPs after 17.5.2013 nor there was any protest from the complainant after accepting the payment. So, the present complaint is barred by limitation and as such is liable to be dismissed. The Ops made payment of Rs.10,56,979/- against claim lodged by the complainant. The Ops submitted that complainant started a story of loss of theft of 80 Laptops in the newspaper item, 80/90 Laptops in the FIR likely loss of Rs.35 Lakhs as mentioned in the letter annexed with the complaint. All this shows that complainant has extracted the loss to the maximum possible limit, so as to beguile the insurance company. The Ops appointed independent surveyor who submitted his final surveyor report dated 1.1.2013 vide which he assessed the loss in the burglary to the tune of Rs.11,08,540/-. Complainant had stock valuing Rs.78,52,607/- lying in his showroom/shop but he got insured stock to the tune of Rs.75 Lakhs only. So, as per average clause a sum of Rs.49,777/- is to be deducted and adjusted loss was pointed out Rs.10,58,763/- and this amount was paid to the complainant and complainant accepted the same. The claim was paid to the complainant on 17.5.2013. No short payment was acknowledged by the OP from the complainant. Ops denied other material averments of the complainant.

3. In support of her complaint, learned counsel for the complainant has tendered into evidence affidavit Ex.CA alongwith copies of documents Ex.C1 to Ex.C23 and closed her evidence.

4. On the other hand, learned counsel for opposite parties has tendered affidavit Ex.OA alongwith copies of documents Ex.O1 and closed evidence.

5. We have heard the Ld. counsel for the parties, minutely gone through the record and have appreciated the evidence produced on record by both the parties with the valuable assistance of Ld. counsels for the parties.

6. From the record i.e. pleadings of the parties and the evidence produced on record by both the parties, it is clear that complainant got insurance policy namely Burglary Floater Policy bearing No.401100/ 46/12/7500000007 Ex.C1 from the Ops. Thereby, he got his stock lying in the showroom/shop insured for the period from 13.4.2012 to 12.4.2013. The value of goods insured was Rs.75 Lakhs. On the intervening night of 6/7.10.2012 burglary was committed at the showroom of the complainant and the goods worth Lakhs of rupees were stolen by some unknown person. Complaint was lodged with the police. Resultantly, FIR No.233 dated 7.10.2012 was registered as PS Division No.7 under section 457/380 of IPC. OP No.2 was also informed immediately about the loss/goods stolen and details were provided. Thereafter, complainant lodged claim regarding the loss sustained by the complainant amounting to Rs.19,56,384/- with the Ops. The Ops appointed surveyor namely Mittal Surveyors Pvt.Ltd., Bathinda to survey the loss suffered by the complainant. Complainant submitted that he submitted all the requisite documents and information to the surveyor to settle the claim of the complainant i.e. purchase bills, stock statements, account books, etc. The Ops settled the claim of the complainant at Rs.11,08,540/- as against the claim of Rs.19,56,384/-. Complainant asked for the reasons for reducing the claim amount which were provided to the complainant by the OP vide letter dated 27.7.2013 Ex.C15. Complainant submitted that total 39 Laptops were stolen from the showroom/shop of the complainant but the Ops paid the claim of 30 Laptops without assigning any reason for rejecting the claim of 9 Laptops. Further cost of Laptops stolen have been taken as Rs.36,118/- only as against the actual cost which is very high. The loss of misc have been arbitrarily assessed as Rs.25,000/- and amount of Rs.49,777/- and Rs.1784/- have been illegally reduced from the passed claim amount of Rs.11,08,540/-. Learned counsel for the complainant submitted that all this amounts to deficiency in service on the part of the OPs qua the complainant.

7. Whereas the case of the OPs is that the claim of the complainant was settled and paid to the complainant on 17.5.2013, whereas the complainant has filed the present complaint on 23.7.2015. No short payment was acknowledged by the OPs after 17.5.2013 nor there was any protest from the complainant after accepting the payment. So, the present complaint is barred by limitation and as such is liable to be dismissed. The Ops made payment of Rs.10,56,979/- against claim lodged by the complainant. The Ops submitted that complainant started a story of loss of theft of 80 Laptops in the newspaper item, 80/90 Laptops in the FIR likely loss of Rs.35 Lakhs as mentioned in the letter annexed with the complaint. All this shows that complainant has extracted the loss to the maximum possible limit, so as to beguile the insurance company. The Ops appointed independent surveyor who submitted his final surveyor report Ex.C22 dated 1.1.2013 vide which he assessed the loss in the burglary to the tune of Rs.11,08,540/-. Complainant had stock valuing Rs.78,52,607/- lying in his showroom/shop but he got insured stock to the tune of Rs.75 Lakhs only. So, as per average clause a sum of Rs.49,777/- is to be deducted and adjusted loss was pointed out Rs.10,58,763/- and this amount was paid to the complainant and complainant accepted the same. Learned counsel for the Ops submitted that as per clause 11 of the terms and conditions of the policy Ex.O1, it was expressly agreed between the parties and declared that if the company shall disclaim liability to the insured for any claim hereinunder, and such claim shall not within 12 calender months from the date 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. The claim was paid to the complainant on 17.5.2013. No short payment was acknowledged by the OP from the complainant. So as per clause 11 of the terms and conditions of the policy, the claim of the complainant is specially barred under the terms and conditions of the policy. In this regard, he relied upon the law laid down by Hon'ble Supreme Court of India in case H.P.State Forest Company Limited Vs. United India Insurance Companay Limited I (2009) CPJ 1 (SC). Learned counsel for the OPs submitted that there is no deficiency in service on the part of the OPs qua the complainant.

8. From the entire above discussion, we have come to the conclusion that complainant firm got its stock lying in the showroom/ shop insured with the OP vide insurance policy namely Burglary Floater Policy bearing No.401100/ 46/12/7500000007 Ex.C1 for the period from 13.4.2012 to 12.4.2013. The value of goods insured was Rs.75 Lakhs. On the intervening night of 6/7.10.2012 theft/burglary was committed at the showroom of the complainant and the goods worth Lakhs of rupees were stolen by some unknown person. Complaint lodged report with the police. Resultantly, FIR No.233 dated 7.10.2012 was registered as PS Division No.7 under section 457/380 of IPC. OP No.2 was also informed by the complainant immediately regarding the loss/goods stolen. Complaint lodged claim of Rs.19,56,384/- with the Ops. The Ops appointed surveyor namely Mittal Surveyors Pvt.Ltd., Bathinda who submitted his final survey report dated 1.1.2013 Ex.C22 and assessed the net loss to the tune of Rs.11,08,540/- with average clause net payable adjusted loss to the tune of Rs.10,58,763/- and this amount was paid to the complainant in their account at Bank of India vide voucher Ex.O2 dated 17.5.2013. The complainant never lodged any protest in any court of law against the decision of the Ops but received the aforesaid amount. As the complainant never denied, rather they have admitted that the Ops have settled the claim of the complainant and paid the amount as per the report of surveyor Ex.C22. Complainants in their complaint has nowhere alleged that they had not received the policy as well as well as terms and conditions of the policy. As per terms and conditions of the policy Ex.O1 clause 11, “both the parties have expressly agreed and declared that if the company shall disclaim liability to the insured for any claim hereinunder, and such claim shall not, within 12 calender months from the date 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 hereunder”. The complainant never raised any objection that he has not received the terms and conditions of the policy. He has also not rebutted the evidence produced on record by the Ops that the claim of the complainant was settled as per the report of surveyor and the amount of Rs.10,56,979/- was paid to the complainant at their bank account at Bank of India, Avtar Nagar, Jalandhar City, vide voucher dated 17.5.2013 Ex.O2. Complainant received this amount but he did not challenge its remaining disclaimer as subject matter of a suit in court of law within 12 calender months from the date of such disclaimer. Therefore, it stands fully proved on record that the remaining claim of the complainant was disclaimed by the Ops and the complainant received the amount so settled by Ops vide voucher dated 17.5.2013. The complainant could approach the court of law or this Forum against the disclaimer within 12 calender months from the date of disclaimer i.e. 17.5.2013. The complainant could file civil suit or complaint before the Consumer Forum upto 17.5.2014 but the complainant has filed the present complaint on 22.7.2015. So, the remaining claim of the complainant as per clause 11 of terms and conditions of the policy Ex.O1, shall for all purposes be deemed to have been abandoned and shall not thereafter be recoverable. So as per this clause, the balance claim of the complainant deem to have been abandoned and is not recoverable under the policy in question. OP was, therefore, justified in refusing to pay the balance amount of disclaimer as per terms and conditions of the policy. It has been held by Hon'ble Supreme Court of India in Civil Appeal No.6347 of 2000 decided on 18.12.2008 titled as H.P.State Forest Company Ltd Vs. M/s United India Insurance Co.Ltd, that where forfeiture clause in the policy provides that if the claim is made but rejected, an action or suit must be commenced within three months after such rejection; failing which all benefits under the policy would stand forfeited. The suit appeared to be filed after right stood extinguished”. Similar are the facts of the present case.

9. In view of above discussion, we hold that the present complaint is without merit and same is hereby dismissed with no order as to cost. Copies of the order be sent to the parties free of costs under rules. File be consigned to the record room.

Dated Parminder Sharma Bhupinder Singh

10.08.2016 Member President