Order dictated by:

Sh.Anoop Sharma,Presiding Member.

1.  Sh.Arun Aggarwal has brought the instant complaint under section 12 & 13 of the Consumer Protection Act on the allegations that  complainant got insurance for his house and other risks covering risk period from 23.7.2013 to 22.7.2014 vide policy No. 204402/11/13/3100000544 and another policy No. 404402/40/13/3600000833 covering the risk period from 22.7.2013 to 21.7.2014. Unfortunately fire broke out in the house of the complainant on 2.5.2014 within the risk coverage period due to short circuit. Claim was lodged with the opposite party. But the opposite party did not settle the claim of the complainant . The complainant filed complaint No. 451/14 which was decided on 19.1.2016 with the directions to the complainant to submit the repair bills to the opposite party and the opposite party was directed to  settle the claim of the complainant. The opposite party did not settle the claim of the complainant despite the fact that complainant complied with the orders of this Forum. The complainant then filed execution application before this Forum. During the pendency of said execution application the opposite party settled the claim of the complainant to the tune of Rs. 1,61,600/- only out of the total bills of Rs. 7,63,951/- submitted to the opposite party  i.e. claim of Rs. 6,02,351/- was less paid to the complainant by the opposite party. The complainant has submitted all the original bills of repair  of the damage amounting to Rs. 7,63,951/- to the opposite party but the opposite party arbitrarily without assigning any reason paid only Rs. 1,61,600/- by deducting Rs. 6,02,351/- from the genuine claim of the complainant. The complainant has sought for the following reliefs vide instant complaint:-

1. Opposite party be directed to pay the claim of Rs. 6,02,351/- alongwith interest @12% p.a. from 2.5.2014 till realization ;
2. Opposite party be also directed to pay compensation to the tune of  Rs. 2,00,000/- alongwith adequate litigation expenses.

Hence, this complaint.

2.       Upon notice, opposite party appeared and filed written version taking certain preliminary objections therein inter-alia that complaint filed by the complainant  is stopped by his own act and conduct from filing the present complaint. In this regard it was submitted that earlier claim was lodged with respect to the fire broke out into the house of the complainant on 2.5.2014 under the Standard Fire & Special Perils Policy. In order to settle the claim on merits, surveyor was deputed by the opposite party to assess the loss. However, the complainant did not submit the bills which were necessary in order to reinstate the said policy and as such the file was closed as “No Claim”  against which complaint was filed by the complainant vide complaint No. 451/14. However, during the pendency of said matter, the complainant made statement before this Forum that they are ready to submit the bills as required by the opposite party and as such , complaint was disposed of by this Forum vide order dated 19.1.2016 with direction to the complainant to submit the repair bills as per survey report and further direction was given to the opposite party to settle the claim of the complainant. However, the complainant did not submit the relevant bills but some other bills were submitted which had no concern with respect to the claim in question , as such the matter was again closed. The complainant instead of making compliance of the direction given by this  Forum , filed proceedings u/s 27 of the  Consumer Protection Act in which detailed replying was filed by the opposite party that  as the relevant bills have not been submitted, as such execution proceedings are not maintainable. Even dealing officer i.e. Branch Manager of the opposite party appeared before this Forum and explained the facts . However, this Forum directed that on the basis of relevant bills as referred in the survey report as well as estimate submitted by M/s. Raj Kumar Associates, the claim be settled by the opposite party. Accordingly, payment of Rs. 1,61,600/- was paid by means of cheque  desposited before this forum  and the said cheque was received under protest  by the complainant . However, this Forum disposed of the said complaint as dismissed as withdrawn vide its order dated 12.7.2016 and there is no permission being granted to the complainant to file any fresh complaint for the remaining amount ; that the said order was rightly passed by this Forum because it is the basic law that surveyor is the best person to assess the loss and unless any cogent reason is proved by the insured that the surveyor has not considered a particular bill or has intentionally left a particular item, only then the complaint is maintainable, otherwise no complaint against the loss assessed by the surveyor is maintainable. Moreover by this time, the complainant has encashed the said cheque with means   that he has accepted the said payment in full and final settlement ; that it was submitted that opposite party has settled the claim for Rs. 1,61,600/- as per survey report assessed by M/s. Ashwani Gupta & Co. and these facts were well in the knowledge of the complainant . But the complainant is demanding the claim payment as per bills which were not covered in the policy as under:-

1. Balwinder Singh  Generator Repair Bill No. 226       Rs. 2,01,730/-
2. Sunny Enterprises-Bill No. 53                                  Rs.     18,750/-
3. Modern Fert Works Bill No.4100 (not damaged)      Rs.      1,380/-
4. Sunny Enterprises Bill No.63 repeated against Bill 53Rs.  19,000/-
5. Baba Deep Singh Handloom Bill No. 96                    Rs.    25,300/-
6. Amrit Electric Co.Bill No. 134                                 Rs.       3,000/-

Infact the aforesaid bills are not covered  and even in the earlier written version , it was made clear that loss of generator is not covered under the policy . It was further submitted that claim was settled after applying depreciation, salvage and reinstatement charges. Therefore payment of Rs. 1,61,600/- has been made accordingly as per direction given by this Forum. Moreover the complainant has not disclosed that how the claim has been paid less to the tune of Rs. 6,02,351/-. No detail of such alleged loss  has been mentioned . Hence, the demand of the complainant to get further sum of Rs. 6,02,351/- is totally wrong  and incorrect. While denying and controverting other allegations, dismissal of complaint was prayed.

3.       In his bid to prove the case Sh. Deepinder  Singh,Adv.counsel for the complainant tendered into evidence duly sworn affidavit of the complainant Ex.C-1, copies of policy cover notes Ex.C-2 and C-3, copy of part settlement letter Ex.C-4, copy of bills Ex.C-5 and closed the evidence on behalf of the complainant.

4.       To rebut the aforesaid evidence Sh.P.N.Khanna,Adv.counsel for the opposite party  has tendered into evidence affidavit of Sh.S.K.Sharma,Divisional Manager Ex.OP1, affidavit of Sh. Ashwani Kumar Gupta,CA Ex.OP2 alongwith documents Ex.OP3 to Ex.OP9 as well as copies of documents Mark A to Mark F and closed the evidence on behalf of the opposite party.

5.       We have heard the ld.counsel for the parties and have carefully gone through the record on the file as well as written synopsis of arguments submitted on behalf of both the parties.

6.       Ld.counsel for the opposite party has vehemently contended that the present complaint is not maintainable as  the earlier complaint bearing No. 451/14 has already been decided by this Forum on 19.1.2016 and in compliance of the said complaint, the opposite party has already made payment of Rs. 1,61,600/-  in the execution proceedings as per direction given by this  Forum. It has further been contended that  earlier payment was made by the opposite party on the basis of loss assessed by Mr.Ashwani Kumar  Gupta, CA  and affidavit of the said surveyor has been filed in which he has clearly stated that he had given the survey report on the basis of estimate submitted by Mr.Raj Kumar Associates  and certain bills subsequently supplied by the Insurance company to the deponent which were submitted by the insured as per direction given by this Forum and after examining the said bills, it transpired that one bill is related to the Generator repair which is not covered under the fire policy and similarly there were some other bills which have no concern with respect to the loss suffered by the complainant as per estimate of M/s. Raj Kumar Associates.  It has further been contended on behalf of the opposite party that  the present complaint is not legally maintainable being barred by limitation as the bills demanded in this complaint are not relevant with respect to the Fire Insurance and the complainant was only entitled to get compensation on the basis of estimate submitted by M/s. Raj Kumar Associates and the insurance company has already made payment under the direction of this Forum as assessed by the surveyor .

7.       But, however, from the appreciation of the facts and circumstances of the case, it becomes evident that complainant obtained   insurance for his house and other risks covering risk period from 23.7.2013 to 22.7.2014 bearing policy No. 404402/11/12/3100000544 and another policy No. 404402/40/13/3600000833 covering risk period from 22.7.2013 to 21.7.2014. It was the admitted case of the opposite party that during the subsistence of the policy period  fire broke out on 2.5.2014 due to short circuit causing damage to the house and household articles. The complainant lodged claim with the opposite party. But when the opposite party did not settle the claim, complainant filed complaint in this forum vide No. 451/14 which was decided by this Forum on 19.1.2016 giving directions to the complainant to submit the repair bills to the opposite party and the opposite party was  directed to settle the claim of the complainant. But, however the opposite party did not settle the claim of the complainant despite that the complainant complied with the orders of this Forum. The complainant then filed execution application before this Forum and during the pendency of the said execution application, opposite party settled the claim to the tune of Rs. 1,61,600/- only out of the total bills of Rs. 7,63,951/- submitted by the complainant i.e. claim of Rs. 6,02,351/- was less paid to the complainant by the opposite party. The complainant received  this amount of Rs. 1,61,600/- from  this Forum under protest by making a statement  on 12.7.2016  and withdrawing the execution application seeking his right to file the fresh complaint against the opposite party for the remaining unsettled amount. Vide this complaint , complainant has sought relief of the remaining amount to the tune of Rs. 6,02,351/- alongwith interest @ 12% p.a. from 2.5.2014 till realization. In this regard complainant has filed repair bills Ex.C-5 (consisting of 15 pages). But the opposite party did not settle the claim of the complainant   by saying that it was made clear in the earlier written version  filed on behalf of the opposite party that  loss of  generator  is not covered under the policy in question. It is  pertinent to mention over here that the complaint has obtained two policies  i.e. policy No.  404402/11/12/3100000544 for his building  covering the risk period from 23.7.2013 to 22.7.2014 for the sum assured Rs. 50 lacs and another policy bearing No. 404402/40/13/3600000833 covering risk period from 22.7.2013 to 21.7.2014   in which all the household articles were insured . The only plea of the opposite party is that  generator repair is not covered under the Fire policy. But the opposite party has failed to produce any evidence showing that generator repair is not covered under the fire policy . Rather the  policy obtained by the complainant Ex.C-3 shows that all the household articles were insured under the fire policy. The opposite party has also failed to prove that bills produced by the complainant are not genuine and fabricated. So the documents i.e. repair bills produced by the complainant are proved to be genuine. Even otherwise also, report of the surveyor is not sacrosanct nor it was the  final word on the matter. Reliance in this regard can be placed upon in New India Assurance Co.Ltd. Vs. Pradeep Kumar IV(2009) CPJ 46 (SC), wherein it has been held that Surveyor’s report is not last and final word. It is not that sacrosanct that it cannot be departed from, it is not conclusive. The approved surveyor’s report may be basis or foundation for settlement of a claim by the insurer in respect of the loss suffered by the insured but surely such report is neither binding upon the insurer nor insured.

8.       The opposite parties have erred in repudiating the  genuine claim of the complainant. It is usual with the insurance companies to show green pastures to the persons to allure them to purchase the policies & when it comes to payment of claim, they invent flimsy excuses to deny the claim. Reliance in this regard can be placed upon Dharmendra Goel Vs. Oriental Insurance Co. Ltd., III (2008) CPJ 63 (SC) of the Hon’ble Apex Court, wherein it was held that, Insurance Company being in a dominant position, often acts in an unreasonable manner and after having accepted the value of a particular insured goods, disowns that very figure on one pretext or the other, when they are called upon to pay compensation.  This ‘take it or leave it’, attitude is clearly unwarranted not only as being bad in law, but ethically indefensible. It is generally seen that the insurance companies are only interested in earning the premiums and find ways and means to decline claims. On this point, Hon’ble Punjab & Haryana High Court in case titled as New India Assurance Company Limited Vs. Smt.Usha Yadav & Others 2008(3) RCR (Civil) Page 111 has held to the following effect:-

“It seams that the insurance companies are only interested in earning the premiums and find ways and means to decline claims. All conditions which generally are hidden, need to be simplified so that these are easily understood by a person at the time of buying any policy.       

The Insurance Companies in such cases rely upon clauses of the agreement, which a person is generally made to sign on dotted lines at the time of obtaining policy. Insurance Company also directed to pay costs of Rs.5000/- for luxury litigation, being rich.

9.       From the aforesaid discussion, it transpires that the complainant has been able to prove his case through cogent evidence. Consequently, the claim of the complainant succeeds and opposite party is directed to pay insurance claim to the tune of Rs.6,02,351/- in favour of the complainant alongwith interest @ 9% p.a. from the date of filing of the claim until full and final recovery. Cost of litigation is assessed at Rs. 2000/-.  Compliance of this order be made within 30 days of the receipt of copy of the order . Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Forum. Copies of the orders be furnished to the parties free of costs. File is ordered to be consigned to the record room.

Announced in Open Forum

Dated: 14.3.2017