Punjab

Ludhiana

CC/19/549

Minakshi Handa - Complainant(s)

Versus

National Insurance Co.Ltd - Opp.Party(s)

R.K.Gupta Adv.

01 Dec 2022

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, LUDHIANA.

                                                Complaint No: 549 dated 29.11.2019.                                                        Date of decision: 01.12.2022.

 

Smt. Minakshi Handa aged 48 years wife of Sh. Narinder Handa, Proprietor M/s. Ishwar Industries, C-200, Phase-7, Focal Point, Ludhiana-141010.                                                                                           ..…Complainant 

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1. National Insurance Company Ltd., Registered Office, 3-Middleton Street, Kolkata-700071.
2. The Divisional Manager, National Insurance Company Ltd., Divisional Office No.3, Kochhar Market, Ludhiana.     
3. The Branch Manager, National Insurance Company Ltd., Divisional Office No.3, Kochhar Market, Ludhiana.                                                                                                                    …..Opposite parties 

Complaint under Section 35 of the Consumer Protection Act, 2019.

QUORUM:

SH. SANJEEV BATRA, PRESIDENT

SH. JASWINDER SINGH, MEMBER

MS. MONIKA BHAGAT, MEMBER

 

COUNSEL FOR THE PARTIES:

For complainant             :         Sh. R.K. Gupta, Advocate.

For OPs                         :         Sh. Rajeev Abhi, Advocate.

 

ORDER

PER SANJEEV BATRA, PRESIDENT

1.                Shorn of the unnecessary details, the facts set out in the compliant are that the present complaint has been filed by Smt. Minakshi Handa, claiming herself to be Proprietor of M/s. Ishwar Industries, C-200, Phase-7, Focal Point, Ludhiana. The firm deals with manufacturing and export of Bicycle Rims at the above said business premises, the complainant has also installed an electroplating plant in the factory for the purpose of electroplating the rims of bicycle and for this purpose, nickel, lead, copper and other article are stored in the business premises of the complainant. The form of the complainant has purchased a Burglary and House Breaking  (Business Premises) Insurance Policy No.404000/46/16/7500000040 from opposite party No.2 having renewed validity for a total sum insured of Rs.35,00,000/- against a premium of Rs.2891/-. The policy covers the risk of stocks of all kinds of raw material, CR sheets, wire, oil and cycle parts etc. This policy was purchased in continuation of earlier policy and the firm of the complainant had been purchasing such like policies from the opposite parties for the last so many years. It is also stated in the complaint that on 28.09.2016, Mr. Vishnu Handa, brother of the husband of the complainant went home after closing the factory. A factory worker informed Mr.Vishnu Handa regarding the commission of theft of nickel, lead, copper and other articles from the factory premises. He visited at the spot and also made enquiries from the neighbours and immediately went to the Police Post Industrial Area PS Focal Point, Ludhiana and lodged a complaint in this regard. The police acknowledged the receipt of the complaint of theft by putting a stamp on the complaint. The intimation of theft was also given to the opposite parties on 29.09.2016 which was received on 30.09.2016. Mr. Naresh Kalra, C.A. Surveyor/assessor was deputed to survey and assess the loss. In the meantime, FIR No.305 dated 22.10.2016 was also registered by the Police Station Focal Point regarding the theft of goods against unknown persons. The matter was investigated by the policy who could not trace the stolen articles or the offenders and ultimately an untraced report was filed in the cour and the same was accepted by the court of Learned Chief Judicial Magistrate, Ludhiana vide order dated 19.05.2018. The complainant was asked to supply the documents for submission of the claim. Thereafter, CA Naresh Kala and the complainant exchanged a series of letters with regard to submission of documents.

2.                The complainant received a letter dated 15.03.2019 from the opposite parties informing the complainant that the claim of the firm has been  rejected stating that the explanation given in the letter dated 06.03.2019 is not satisfactory as there is a delay of 23 days in giving intimation to the police which violates condition No.1 of the policy and as such, the claim is not maintainable and the opposite parties have not liability to settle the claim of the complainant firm. The complainant claims that they had been providing documents to the opposite parties as and when demanded and there is no delay on their part for giving intimation to the police. The repudiation of the claim vide letter dated 15.03.2019 is wrong and illegal and there is no violation of the terms of the policy. The complainant has lodged the claim to the tune of Rs.4,09,800/- as under:-

(i)      Nickel 300 KG approx.  Rs.840/- per Kg.            Rs.2,52,000/-

(ii)     Lead 400 Kg approx.      Rs.300/- per Kg.             Rs.12,000/-

(iii)    Copper Plates 2Pcs         Rs.12,900/- per Kg                  Rs.25,800/-

(iv)    Copper Rod 20 Kg                  Rs.600/- per Kg              Rs.12,000/-

          Cundi Saria

                                                          Total                     Rs.4,09,800/-

The complainant prayed for a claim of Rs.4,09,800/- with interest @18% per annum along with damages/compensation of Rs.50,000/- and litigation expenses of Rs.30,000/-.

3.                Notice of the complaint was given to the opposite parties. The opposite parties appeared through counsel and filed written statement in which they took preliminary objections to the effect that the present complaint is not maintainable as on receipt of the claim regarding the alleged loss due to burglary, the claim was duly registered, entertained and processed. It was also admitted CA Naresh Kalra, an IRDA approved surveyor and loss assessor who inspected the premises on 01.10.2016 and took photographs and other documents and prepared a report dated 24.01.2017 assessing the loss to be Rs.2,35,970/- less excess clause if applicable under the policy. He forwarded the report for approval considering the terms and conditions of the policy, claim papers and getting non-traceable certificate from the policy authorities. The detailed assessment of the loss  is as under:-

Sr. No.	Description	Qty (Kg)	Rate/Kg	Amount (Rs)
1.	Nickel	300 Kg	Rs.777/-	Rs.2,33,100/-
2.	Lead	400 Kg	Rs.240/-	Rs.96,000/-
3.	Copper plates			Rs.8000/-
	Total			Rs.3,37,100/-
Less	Deduction on account possible variation in stocks due to not maintaining of stock register @30%			Rs.1,01,130/-
Less assessed				Rs.2,35,970/-

M/s. Atulya Investigations, House No.2243, Sector 38-C, Chandigarh was also appointed as investigator to investigate the genuineness of the bills submitted by the complainant firm. It was further submitted in the written statement that after scrutinizing the report of CA Naresh Kalra dated 24.01.2017, the opposite parties had been calling upon the complainant to submit the documents vide letter dated 08.02.2017 following with reminders dated 22.05.2017, 11.07.2017, 28.07.2017, 08.08.2017, 29.08.2017 and 28.09.2017. The complainant was asked to submit the untraced report within a period of 7 days but they failed to send the same.

4.                On 17.01.2019, the complainant submitted untraced report issued by the Chief Judicial Magistrate, Ludhiana dated 19.05.2018 and requested the opposite parties to reopen the file which stands closed on account of non-submission of untraceable report under Section 173 Cr.P.C. After the receipt of letter dated 17.01.2019 and after scrutinizing the documents, the complainant was called upon vide letter dated 08.02.2019 to supply further information and documents for reopening of the file. Response was not found satisfactory and considering the delay of 23 days in lodging the FIR, the claim was rightly repudiated as on 15.03.2019. The ground of repudiation is legal,  valid and are in accordance with the terms of the policy. The opposite parties also took the objection regarding the maintainability of the complainant since the question involving is a complex question of law and fact, as such, it is required to be adjudicated by the Civil Court. The opposite parties have further stated that the complainant is estopped from filing the present complaint by her act and conduct. Further the complaint is not maintainable as Ms. Minakshi Handa  is neither the proprietor of M/s. Ishwar Industries nor M/s. Ishwar Industries is a proprietorship concern and as such, Minakshi Handa has no locus standi or competent to file the present complaint as well as evidence. On merits, the opposite parties took identical objections and stance qua the allegations of the complaint and further relied upon one of the conditions of the policy under the head Claim Procedure which is reproduced as under:-

• The insured shall give immediate notice thereof in writing to the nearest office with a copy to the policy issuing office of the company as well as lodge forthwith a complaint with the police.
• The insured shall deliver to the company within 14 days of the date on which the event shall have come to his knowledge a detailed statement in writing of the loss or damage, with an estimate of the intrinsic value of the property lost and the amount of damaged sustained.
• The insured shall tender to the company all reasonable information, assistance and proofs in connection with any claim hereunder.

The opposite parties also emphatically denied the prayer of the complainant with regard to compensation and litigation etc. The opposite parties have prayed for dismissal of the complaint.

5.                In support of her claim, the complainant tendered her affidavit Ex. CA in which she reiterated the allegations and the claim of compensation as stated in the complaint. The complainant also tendered documents Ex. C1 is intimation letter dated 29.09.2016 submitted to the police, Ex. C2 is the copy of FIR No.305 of 2016.  Ex. C3 is the copy of untrace report, Ex. C3A is the copy of Form challan under Section 173 Cr.P.C., Ex. C4 is the order dated 19.05.2018 passed by Sh. Suresh Kumar Goyal, Chief Judicial Magistrate, Ludhiana accepting the untrace report, Ex. C5 is the letter dated 15.03.2019 of the opposite parties, Ex. C6 to Ex. C18 are the letters submitted by the complainant to the opposite parties, Ex. C19 is the letter dated 15.11.2016 issued by the surveyor to the complainant, Ex. C20 to Ex. C25 are the letters issued by the opposite parties to the complainant, Ex. C26 to Ex. C35 are the copies of insurance policies, Ex. C36 is the tax invoice dated 27.04.2018, Ex. C37 is the another copy of intimation letter dated 29.09.2016 submitted by the complainant to the police, Ex. C38 is the photograph and closed the evidence.

6.                On the other hand, the counsel for the opposite parties submitted affidavit Ex. RA of Ms. Kanchan Bansal, Divisional Manager of the opposite parties, affidavit Ex. RB of CA Naresh Kalra, an IRDA approved Surveyor and Loss Assessor, Ludhiana as well as affidavit Ex. RC of Sh. Sameer Gupta of M/s. Atulya Investigations, House No.2243, Sector 38-C, Chandigarh along with documents Ex. R1 copy of insurance policy valid from 22.04.2016 to 21.04.2017, Ex. R2 is the Burglary and House Breaking (Business Premises) Insurance Policy, Ex. R3 is the letter dated 12.04.2019 issued by the opposite parties, Ex. R4 is the postal receipt, again Ex. R4 is the letter dated 01.04.2019 issued by the complainant to the opposite parties, Ex. R5 is another letter dated 29.09.2016 issued by the complainant to the opposite parties, Ex. R6is the letter dated 15.03.2019 issued by the opposite parties, Ex. R7 is the postal receipt, Ex. R8 and Ex. R9 are the letters issued by the complainant to the opposite parties, Ex. R10 and Ex. R11 are the letters issued by the opposite parties, Ex. R12 is the letter dated 17.01.2019 issued by the complainant to the opposite parties, Ex. R13 copy of order dated 19.05.2018 passed by Sh. Suresh Kumar Goyal, Chief Judicial Magistrate, Ludhiana, Ex. R14 is the copy of letter dated 02.06.2018 issued by the complainant to the opposite parties, Ex. R15 and Ex. R16 are the letters issued by the opposite parties, Ex. R17 is the letter dated 22.08.2017 submitted by the complainant, Ex. R18 is the copy of untrace report, Ex. R19 and Ex. R20 are the letters issued by the opposite parties, Ex. R21 is the copy of postal receipt, Ex. R22 and Ex. R23 are the letters issued by the opposite parties, Ex. R24 is the letter dated 31.03.2017 issued by the complainant to the opposite parties, Ex. R25 is the copy of FIR No.305 dated 22.10.2016, Ex. R26 and Ex. R27 are the letters issued by the opposite parties, Ex. R28 is the letter dated 22.02.2017 issued by the investigator Atulya Investigations to the opposite parties, Ex. R29 to Ex. R37 and Ex. R39 are the photographs, Ex. R40 to Ex. R42 are the letters issued by the complainant to the opposite parties, Ex. R38 is the copy of survey report dated 24.01.2013 , Ex. R43 is the copy of average cost of nickel, Ex. R44 to Ex. R46 are the photographs, Ex. R47 and Ex. R48 are the letters issued by the complainant to the opposite parties, Ex. R49 to Ex. R56 and Ex. R58 to Ex. R61 are the copies of Vat tax invoice issued by AK Enterprises, Ex. R57 is the copy of bill dated 12.08.2016, Ex. R62 and Ex. R63 are the copies of bills, Ex. R64 is the copy of Vat invoice dated 27.02.2015, Ex. R65 is the copy of Burglary claim form, Ex. R66 is the copy of lease deed  of the complainant firm, Ex. R67 is the copy of FIR No.305 dated 22.10.2016, the opposite parties further submitted Ex. R68, Ex. R69 is the Form No.3CB, Ex. R70 is the copy of Form No.3CD and closed the evidence.

7.                We have heard the arguments of the counsel for the parties and also gone through the complaint, written statement, affidavits and annexed documents produced on record by both the parties.

8.                The counsel for the complainant contends that all the requirements as demanded by the opposite parties were duly complied with and there is no inadequate delay in lodging the FIR or giving intimation to the opposite parties The occurrence took place at the intervening night of 28.09.2016 and 29.09.2016 while an application Ex. C1 was received by the Incharge Police Post Jeevan Nagar, Ludhiana and finally FIR No.305 dated 22.10.2016 Ex. C2 was lodged. Further the office of the opposite parties was also intimated by making an application dated 29.09.2016 which was received by the opposite parties on 30.09.2016. The repudiation of the claim vide letter Ex. C5 is illegal and not justifiable. The counsel for the complainant has relied upon 2022(2) RCR (Civil) 196 (SC) in case title Jaina Construction Company Vs Oriental Insurance Company Limited and another; 2018(1) RCR (Civil) 42 (SC) in case title Om Parkash Vs Reliance General Insurance and another; 2020(1) RCR (Civil) 980 (SC) in case title Gurshinder Singh Vs Shriram General Insurance Co. Ltd. and another; 2013(61) RCR (Civil) 826 in case title Shriram General Insurance Company Limited and another Vs Gurshinder Singh and another passed by the Hon’ble Punjab State Consumer Disputes Redressal Commission, Chandigarh and 2017(2) CLT 183 passed by the Hon’ble Haryana State Consumer Disputes Redressal Commission, Panchkula in case title Reliance General Insurance Company Limited Vs Rajender. 

9.                On the other hand, the counsel for the opposite parties contends that the letter Ex. C1 is an antedated letter as the same was not produced  before the surveyor Naresh Kalra. So there is a delay of 23 days in lodging the FIR which has not been satisfactorily explained by the complainant despite giving due opportunity. Further it was contended that this delay amounts to violation of terms and conditions of the policy. So the claim was found to be not maintainable and the opposite parties have no liability to settle the claim. The counsel for the opposite parties has relied upon I (2013) CPJ 71 (NC) in case title Virender Kumar Vs New India Assurance Co. Ltd.; III (2013) CPJ 497 (NC) in case title Lakhan Pal Vs United India Insurance Co. Ltd.; II (2013) CPJ 189 (NC) in case title Kuldeep Singh Vs Ifco Tokio General Insurance Co. Ltd.; I (2013) CPJ 713 (NC) in case title Suman Vs Oriental Insurance Company Ltd. and IV (2020) CPJ 265 (NC) in case title United India Insurance Company Ltd., Vs Radhika Oil Industries.

10.              We have weighed the contentions raised by the counsel for the parties and have gone through the record minutely.

11.              In view of the uncontroverted facts regarding the purchase of the policy, theft of the stocks, visit of the surveyor following point of termination arises:-

(i)      Whether the opposite parties were justified in repudiating the claim of the complainant on the sole ground of delay of 23 days in intimation to the police?

12.              The contentions of the counsel for the opposite parties that the letter Ex. C1 informing the police is antedated, is not tenable. Perusal of letter Ex. C1 shows that it bears the seal of the police at the time of receipt of information. The duty of the complainant was to inform the police and it is for the police either to register the DDR or FIR depending upon the facts disclosed in the application. The police took its own time to register  the FIR after a lapse of 23 days. Hence, these circumstances were beyond the control of the complainant and it is essentially the duty of the police to register FIR on the receipt of the information disclosing the commission of cognizable offence. Moreover, rights of the complainant cannot be prejudiced due to omission on the part of the police. In this regard, reference can be made to 2022(2) Apex Court Judgment 281 (SC) in case title Gurmel Singh Vs Branch Manager National Insurance Company Ltd. whereby it has been held by the Hon’ble Supreme Court of India that the insurance company has become too technical while settling the claim and has acted arbitrarily. The appellant has been asked to furnish the documents which were beyond the control of the appellant to procure and furnish. Once, there was a valid insurance on payment of huge sum by way of premium and the Truck was stolen, the insurance company ought not to have become too technical and ought not to have refused to settle the claim on non­submission of the duplicate certified copy of certificate of registration, which the appellant could not produce due to the circumstances beyond his control. In many cases, it is found that the insurance companies are refusing the claim on flimsy grounds and/or technical grounds. While settling the claims, the insurance company should not be too technical and ask for the documents, which the insured is not in a position to produce due to circumstances beyond his control.

13.              The Surveyor Naresh Kalra has submitted his affidavit Ex. RB and tendered his survey report Ex. R38 along with enclosures attached as Ex. R39 to Ex. R70. The complainant has submitted the claim bill amounting to Rs.4,09,800/-. The surveyor has made an assessment of loss on the basis of description of loss to be Rs.2,35,970/- in his report Ex. R38. The report Ex. R38 prepared by the surveyor has not been challenged by the complainant on any ground. Moreover,  the complainant has not controverted the facts mentioned in the written statement, so far as the surveyor report is concerned as the complainant has neither filed any objections to controvert the averments made in the written statement.

14.              As a result of above discussion, the complaint is allowed with an order that the opposite parties shall pay the claim of Rs.2,35,970/- to the complainant as per survey report Ex. R38 along with interest @8% per annum from the date of filing of the complaint till date of actual payment. The opposite parties shall further pay a composite cost of Rs.10,000/- (Rupees Ten Thousand only) to the complainant. Compliance of the order be made within 30 days from the date of receipt of copy of order. Copies of the order be supplied to the parties free of costs as per rules. File be indexed and consigned to record room.

15.              Due to rush of work and spread of COVID-19, the case could not be decided within statutory period.

 

(Monika Bhagat)                    (Jaswinder Singh)             (Sanjeev Batra)                          Member                                      Member                            President         

 

Announced in Open Commission.

Dated:01.12.2022.

Gobind Ram.

Minakshi Handa Vs National Insurance Company Ltd.             CC/19/549

Present:       Sh. R.K. Gupta, Advocate for complainant.

                   Sh. Rajeev Abhi, Advocate for OPs.

 

                   Arguments heard. Vide separate detailed order of today, the complaint is allowed with an order that the opposite parties shall pay the claim of Rs.2,35,970/- to the complainant as per survey report Ex. R38 along with interest @8% per annum from the date of filing of the complaint till date of actual payment. The opposite parties shall further pay a composite cost of Rs.10,000/- (Rupees Ten Thousand only) to the complainant. Compliance of the order be made within 30 days from the date of receipt of copy of order. Copies of the order be supplied to the parties free of costs as per rules. File be indexed and consigned to record room.

 

(Monika Bhagat)                    (Jaswinder Singh)             (Sanjeev Batra)                          Member                                      Member                            President         

 

Announced in Open Commission.

Dated:01.12.2022.

Gobind Ram.