Haryana

Yamunanagar

CC/212/2011

Harpreet Singh Johar S/o Harbhajan Singh JOhar - Complainant(s)

Versus

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

Nalin Gupta

10 Jan 2017

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, YAMUNA NAGAR

 

                                                                                          Complaint No. 212 of 2011.

                                                                                          Date of institution: 14.03.2011   

                                                                                          Date of decision: 10.01.2017

 

Harpreet Singh Johar son of Shri Harbhajan Singh Johar, resident of House No.1137, Sector-17, HUD

…Complainant.

                                           Versus

1. National Insurance Company Limited, Near New Fountain Chowk, Yamuna Nagar, through its Senior Branch Manager.
2. Ms. SC Sachdeva, Senior Branch Manager, National Insurance Company Limited, Near Fountain Chowk, Yamuna Nagar.

 

                                                                                                         ...Respondents

 

BEFORE:         SH. ASHOK KUMAR GARG…………….. PRESIDENT.

                         SH. S.C.SHARMA………………………….MEMBER.

 

Present:           Shri Nalin Gupta, Advocate for complainant.

                         Shri Rajiv Gupta, Advocate for respondents.

 

ORDER

 

1                      The present complaint has been filed under section 12 of the Consumer Protection Act, 1986.

2.                     Brief facts of the present complaint, as alleged by the complainant, are that complainant obtained insurance policy vide cover note No.42011180218 valid from 21.12.2009 to 20.12.2010 covering risk of house hold articles and breakdown of electrical appliances including Air Conditioner etc. from respondents (hereinafter referred as OPs Insurance Company). On 30.06.2010 the air conditioner installed in the house of the complainant got burnt and the complainant accordingly informed the OP Insurance Company on 01.07.2010. Mr. A.K Sood, Surveyor, visited the residence of the complainant and inspected the damaged Air Conditioner after taking its few photographs and after taking out the A.C. from window. He also collected the estimate dated 05.07.2010 from the complainant. After inspecting the Air Conditioner, he was satisfied that the same stood damaged and it was beyond repairs. The said surveyor told to the complainant that he will submit his report to the OP insurance company not only this, the surveyor got signed from the complainant on blank claim forms and assured that he will get the compensation. The complainant was surprised to receive letter dated 06.09.2010 & 24.09.2010 (Annexure C-3), wherein it was mentioned that the complainant has not given the opportunity to inspect the Air Conditioner in dismantled condition to ascertain the exact extent of damage sustained by different components of the air conditioner despite several telephonic request and thus it was alleged that the complainant has violated the terms and conditions of the insurance policy. It has been further mentioned that in fact the senior Branch Manager Mr. SC Sachdeva is on logger heads with the complainant and he was out to reject the claim of the complainant for no valid reasons because of personal vendetta. Further has been mentioned that the OP Insurance Company never issued the letter dated 06.09.2010 and the same has been manipulated just to justify the repudiation in this case. However, the complainant sent reply of letter dated 21.09.2010, offering for inspection of the Air Conditioner and informed that air conditioner is still lying at the house of the complainant. In response to that letter a letter dated 30.09.2010  was received on 05.10.2010 wherein it was informed by the OPs Company that if the complainant desire  he can still dismantle the air conditioner and shift the same to the repairer and fix the date and time with the surveyor Mr. A.K. Sood fixed for 20.12.2010 and accordingly the said surveyor took the photograph of dismantle air conditioner. The complainant also handed over the final bill to the surveyor on 05.01.2015 and submitted revised estimate dated 27.10.2010 for a sum of Rs.15,750/- to the surveyor. In spite of all these, the claim of the complainant has not been settled till date. The complainant has visited so many times but all in vain. It has been further mentioned that when the surveyor inspects the damage appliance and prepares the report, he was required to obtain the consent of the consumer that he was satisfied with the report but in the present case the surveyor did not obtain consent of the complainant to this effect. Lastly prayed for acceptance of the complainant and directed the OP Insurance Company to settled the claim of the complainant and as per terms and condition of the Insurance Policy and paid Rs.15,750/- along with interest  and compensation as well as litigation expenses.

3.                     Upon notice, OPs appeared and filed its written statement by taking some preliminary objections such as complaint is not maintainable; there is no negligence or deficiency in services on the part of the OPs; complaint is bad on account of unnecessarily impleading the OP No.2 by name in the array of OPs, as whatever was done by his, the same was done in good faith in discharge of the officials duty and not in the personal capacity. In this case, the complainant intimated to the OPs Insurance Company that his Air Conditioner was got burnt in the night of 30.06.2010. On receipt of the said intimation, the OP Insurance Company deputed Shri A.K Sood, Surveyor and loss assessor to survey and assess the loss, if any. The said surveyor visited the premises of the complainant on the same day to inspect the damaged Air Conditioner and asked to the complainant to bring the same to the workshop of repairer so that the air conditioner may be got dismantled and the exact cause and extent of damages could be assessed but the insured did not give any opportunity to the surveyor to inspect the air conditioner in dismantled condition; Later on, the surveyor was informed by the complainant that he has disposed off the damaged Air Conditioner in “as it is” condition without repair being undertaken. Although an estimate dated 05.07.2010 of Rs.11,860/- was given by the complainant to the surveyor but the surveyor could not assess the loss as he was not given any opportunity to inspect the dismantled air conditioner and the said surveyor submitted his report dated 23.08.2010 to the OP Insurance Company. On receipt of the said report the OP Company issued a letter on 06.09.2010 to the complainant to give his comments as to why he has not given an opportunity to inspect his damaged air conditioner in dismantled condition. However, later on, the OP Insurance Company vide its registered letter dated 21.09.2010 repudiated the claim of the complainant on the ground that the complainant did not provide any opportunity to the surveyor to inspect the air conditioner in dismantled condition. However, in response to the repudiation letter the complainant gave a false and vague reply vide his letter dated 23.09.2010 mentioning therein that complainant is a retired officer of the National Insurance Company Limited who is well known with the procedure and modalities of the claim and it is very astonishing on the part of the complainant to say in his reply on 23.09.2010 that the surveyor got signed from him the blank forms and the surveyor gave him assurance that he will get claim for complainant from OPs Insurance Company. Further in that said letter, complainant admits that Air conditioner is still lying in his house and not with repairer meaning thereby allegation leveled by the complainant were absolutely incorrect. Overall on the request of the complainant the Surveyor again inspected the air conditioner in question of the complainant on 12.10.2010 in dismantled condition at M/s Pooja Agencies Gobindpuri, Yamuna Nagar in the presence of complainant and insured was desired to get it repaired. The complainant again wrote a letter dated 28.10.2010 to the OP Insurance Company and submitted another estimate of Rs. 15750/- and desired the company to treat the said Air Conditioner as total loss case. The insurance company vide its letter dated 02.11.2010 forwarded the letter of complainant dated 28.10.2010 to surveyor for his comments who vide his letter dated 03.11.2010 categorically informed the complainant that since the damaged parts of the Air Conditioner like compressor attracts 50% depreciation as per policy terms and conditions, so the loss cannot be assessed on total loss basis and the surveyor once again requested the complainant to get the air conditioner repaired under intimation to him. The OP Company again wrote a letter dated 09.11.2010 to the insured to comply with the letter of surveyor dated 03.11.2010. Thereafter, the surveyor vide its letter dated 21.01.2011 informed the company that the insured has got replaced a new compressor make emerson copland model CR=22K 6M Sr. No. FAA175563 against deposit of old compressor. Besides this, the insured has got replaced new fan motor. The said surveyor vide his report dated 21.01.2011 assessed the net loss of Rs. 4160/- after applying relevant depreciation clause of 50% and allowing the cost of new compressor against deposit of old compressor. On receipt of the said report of surveyor, the claim was proceeded by the OP Insurance company and since the surveyor had not deducted the amount of excess clause of 1% of the sum insured, therefore, a sum of Rs. 170/- was deducted from the loss assessed by the surveyor and the claim of Rs. 3990/- was approved by the OP Company. In this regarding a letter dated 17.05.2011 was sent to the complainant and a voucher was also sent to complainant with a request to send his account number, banker’s name and place of banker to enable the OP company to send the payment. After that the OP Insurance Company settled the claim of the complainant and a cheque amount of Rs. 3990/- bearing No.823464 dated 08.07.2011 as full and final payment was offered through this Forum but the complainant refused to accept the same and on merit controverted the plea taken in the complaint and reiterated the stand taken in the preliminary objections and lastly prayed for dismissal of complaint.

4.                     In support of his case, counsel for the complainant tendered into evidence affidavit of complainant as Annexure CX and affidavit of Ashok Kumar son of Jagdish Chand as Annexure CY and documents such as Photo copy of insurance cover note as Annexure C-1, Photo copy of estimate dated 05.07.2010 of Rs. 11860/- as Annexure C-2, Photo copy of letter dated 21.09.2010 as Annexure C-3, Photo copy of envelope as Annexure C-4, Photo copy of letter dated 23.09.2010 written to Insurance Company regarding damage of AC as Annexure C-5, Photo copy of letter dated 06.09.2010 as Annexure C-6, Photo copy of letter for offer of claim of AC as Annexure C-7, Photo copy of envelope as Annexure C-8,  Photo copy of letter dated 30.09.2010 as Annexure C-9, Photo copy of envelope as Annexure C-10, Photo copy of letter dated 06.10.2010 as Annexure C-11, Photo copy of letter dated 20.10.2010 as Annexure C-12, Photo copy of letter dated 28.10.2010 as Annexure C-13, Photo copy of estimate dated 29.10.2010 as Annexure C-14, Photo copy of letter dated 03.11.2010 as Annexure C-15,Photo copy of letter dated 05.01.2011 as Annexure C-16, Photo copy of cash memo dated 30.12.2010 as Annexure C-17, Photo copy of cash memo dated 23.12.2010 as Annexure C-18, Photo copy of cash memo dated 23.12.2010 as Annexure C-19 and closed the evidence on behalf of complainant.

5.                     On the other hand, counsel for the OPs tendered into evidence affidavit of Sh. V.K.Sethi, Assistant Manager, as Annexure RW/A and affidavit of Sh. Ashok Kumar Sood, as Annexure RW/B and documents such as photo copy of letter dated 01.07.2010 as Annexure R-1, Photo copy of surveyor report as Annexure R-2, Photo copy of letter dated 06.09.2010 as Annexure R-3, Photo copy of letter dated 21.09.2010 as Annexure R-4, Photo copy of letter dated 23.09.2010 as Annexure R-5, Photo copy of letter dated 27.07.2010 as Annexure R-6, Photo copy of letter dated 28.09.2010 as Annexure R-7, Photo copy of letter dated 30.09.2010 as Annexure R-8, Photo copy of letter dated 06.10.2010 as Annexure R-9, Photo copy of letter dated 20.10.2010 as Annexure R-10, Photo copy of letter dated 28.10.2010 as Annexure as Annexure R-11, Photo copy of letter dated 02.11.2010 as Annexure R-12, Photo copy of letter dated 03.11.2010 as Annexure R-13, Photo copy of letter dated 09.11.2010 as Annexure R-14, Photo copy of letter dated 21.01.2011 as Annexure R-15, Photo copy of letter dated 17.05.2011 as Annexure R-16, Photo copy of letter dated 26.05.2011 as Annexure R-17, Photo copy of letter dated 13.06.2011 as Annexure R-18, Photo copy of estimate of Rs. 11860/- as Annexure R-19, Photo copy of estimate dated 27.10.2010 as Annexure R-20, Insurance policy alongwith terms and conditions as Annexure R-21 and closed the evidence on behalf of OPs.

6.                     We have heard the counsels of both the parties and have gone through the pleadings as well as documents placed on the file very carefully and minutely.

7.                     It is not disputed that complainant had obtained a comprehensive house hold insurance policy vide cover note No. 42011180218 valid from 21.12.2009 to 20.12.2010 covering the risk of breakdown of electrical appliances including Air Conditioner etc. from the OPs Insurance Company. It is also not disputed that on 30.06.2010, the Air Conditioner installed in the house of the complainant got burnt and complainant accordingly informed the OPs Insurance Company on 01.07.2010. It is also not disputed that on information, OPs Insurance Company deputed surveyor Mr. Ashok Kumar Sood to inspect the Air Conditioner and to submit the report to the OPs Insurance Company. The only grievances of the complainant is that he was entitled to get total loss on account of burnt of A.C. but the OPs Insurance Company remained adamant that complainant should get it repairs and lateron when the complainant was ready to get it repaired, still his claim was not settled by the OPs Insurance Company which constitute the deficiency in service and unfair trade practice on the part of OPs Insurance Company. Learned counsel for the complainant draw our attention towards the reminder dated 05.07.2010 (Annexure C-2) and legal notice dated 23.09.2010 (Annexure C-5) and another revised estimate dated 27.10.2010 (Annexure C-14) and bills of repair and parts (Annexure C-16 to C-19 and argued that as per revised estimate dated 27.10.2010 Annexure C-14, complainant is entitled to get Rs. 15750/- on account of repair of the damaged A.C. in question. Learned counsel for the complainant also draw our attention towards various letters issued by the complainant as well as reply filed by the OPs Insurance Company.

8.                     On the other hand, learned counsel for the OPs argued at length that firstly the claim of the complainant was repudiated by the OPs Insurance Company vide letter dated 21.09.2010 (Annexure R-4) as the complainant failed to provide opportunity to the surveyor and loss assessor to inspect the Air Conditioner in dismantled condition. However, lateron on the request of the complainant case of the complainant was reopened as the complainant was ready to give opportunity to inspect the air conditioner in dismantled condition. Learned counsel for the OPs further argued that the surveyor and loss assessor inspected the Air Conditioner on 12.10.2010 in dismantled condition at M/s Pooja Agencies, Gobindpuri in the presence of the complainant and after discussion on all the corners, the said surveyor submitted his report dated 21.01.2011 (Annexure R-15) assessing the net loss of Rs. 4160/- after applying the relevant depreciation clause of 50% and allowing the new compressor against deposit of old compressor. As the surveyor had not deducted the amount of excess clause at the rate of 1% of the sum insured, therefore, a sum of Rs. 170/- were deducted from the surveyor report and the claim of Rs. 3990/- was approved by the OPs Insurance Company. In this regard a registered letter dated 17.05.2011 and after that reminder dated 26.05.2011 and 13.06.2011 were issued to the complainant but the complainant has not come forward to take his claim as per loss assessed by the surveyor. Learned counsel for the OPs further draw our attentions towards the original cheque amounting to Rs.3990/- bearing No. 823464 dated 08.07.2011 originally placed on case file and argued that when the complainant had not collected the cheque in question from the office of OPs then there was no alternative except to place the same on file. However, complainant refused to accept the same and draw our attentions towards the interim order dated 18.07.2011 in which it was so recorded. Learned counsel for the OPs Insurance Company further argued that the complainant has not placed on file any report of any independent surveyor to controvert the report of the surveyor and loss assessor Sh. A.K.Sood in which an amount of Rs. 3990/- has been assessed on account of burning of the air conditioner after deducting the depreciation at the rate of 50% on the cost of new Air Conditioner compressor etc. Learned counsel for the OPs Insurance Company further argued that it is settled law that the assessment made by the surveyor has to be honoured and accepted by the Civil Courts and Tribunals under the Consumer Fora and referred the case law titled as National Insurance Company Versus M/s Shri Valabh Industries, FA No. 92 of 2015 decided on 08.11.2016 by the Hon’ble State Commission, Haryana, Panchkula. Lastly, requested for dismissal of the complaint as there was no deficiency in service or unfair trade practice on the part of the OPs.

9.                     After hearing both the parties and going through the correspondence between the parties, it seems that both the parties were adamant not to settle the claim due to the reason best known to them. However, complainant has made some allegations against the Senior Branch Manager Sh.S.C. Sachdeva but no such evidence has been placed on file in support of his allegations. The matter involved in the present complaint was very simple but has been created so complicated by both the parties by doing correspondence and linger on the matter on one pretext or the other from both the sides. No doubt, the complainant obtained a household comprehensive insurance policy and insured some electronics articles i.e. T.V., Computer, Washing Machine, Fridge, Inverter, Microwave, Oven, Two A.C etc. only for Rs. 69,000/-in lump sum. Meaning thereby that no specific amount has been mentioned in the cover note/ insurance policy for which one A.C. was insured by the OPs Insurance Company. As per version of the complainant only one window A.C. was burnt on 30.06.2009 due to which he suffered loss. Firstly, he pressurized the surveyor of OPs Insurance Company to submit his report without inspecting the burnt Air Conditioner in dismantled condition on the basis of estimate of Rs. 11860/- dated 05.07.2010 issued by Aarti Agency Annexure C-2 but later on, on refusal of the surveyor as well as OPs Insurance Company complainant again submitted another estimate amounting to Rs. 15750/- dated 27.10.2010 issued by the same firm Aarti Agency Annexure C-14 after dismantled the Air Conditioner in question, upon which Mr. A.K.Sood, Surveyor & Loss Assessor submitted his report by assessing the net loss of Rs. 4160/- after applying depreciation clause of 50% and allowing the cost of new compressor against deposit of old compressor. However, OPs Insurance Company after deducting Rs. 170/- on account of excess clause at the rate of 1% of the sum insured approved the claim of Rs. 3990/- and the same amount was offered to the complainant and in this respect so many letters were issued, however, on refusal of the complainant, the cheque of amounting to Rs. 3990/- was placed on file before this Forum. This Forum had also offered to collect the same, however, complainant refused to accept the same. This fact is duly mentioned in the interim order passed by our Predecessor on 18.07.2011 due to the reason best known to the complainant. The arguments advanced by the counsel for the complainant that complainant has spent Rs. 13260/- on the repair of the A.C. in question vide bills bearing No. 2422 dated 30.12.2010, Bill No.1425 dated 23.12.2010 and Bill No. 12044 dated 23.12.2010 Annexure C-17 to C-19 and is entitled to get the same is not tenable as the Surveyor and Loss Assessor has submitted his detailed report Annexure R-15 dated 21.1.2011 assessing the actual loss in question amounting to Rs. 4160/-. However, complainant has failed to submit any expert report to controvert the report of the Surveyor and Loss Assessor Sh. A.K.Sood. The complainant may have spent Rs. 13260/- ( Rs. 8350+2010+ 2850) as per bills Annexure C-17 to C-19 but at the same time it cannot be held that the complainant was entitled to get the same amount from the OPs Insurance Company as the complainant has totally failed to produce any cogent evidence that how much the Air Conditioner in question was old and for what cost he was purchased it. Further, the complainant has also failed to point out that for what amount only one Air Conditioner in question was insured with the OPs Insurance Company.  Hence, in the absence of any ambiguity in the surveyor report, we are of the considered view that amount assessed by the surveyor is reasonable. However, to avoid further litigation and to resolve the issue between the parties,  and taking into consideration the bill of expenses submitted by the complainant Annexure C-17 to C-19, we are of the considered view that an amount of Rs. 5000/-  instead of assessed amount of Rs. 3990/- will be adequate to meet the end of justice.  

10.                   Resultantly, in the circumstanced noted above, we partly allow the complaint of complainant and direct the OPs Insurance Company to pay a sum of Rs. 5000/- to the complainant alongwith interest at the rate of 6 % per annum from the date of filing of complaint till its realization and further to pay Rs. 2000/- as litigation expenses.  Order be complied within a period of 30 days after preparation of copy of this order failing which complainant shall be entitled to invoke the jurisdiction of this Forum as per law. Copies of this order be supplied to the parties concerned free of costs as per rules. File be consigned to the record room after due compliance.

Pronounced in open court:

Dated: 10.01.2017.

                                                                       

                                                (S.C.SHARMA)                        (ASHOK KUMAR GARG)

                                           MEMBER                                PRESIDENT

                                                                                              DCDRF Yamuna Nagar