BEFORE THE DISTRICT CONSUMER DISPTUES REDRESSAL FORUM, KAITHAL.
Complaint no.62/15.
Date of instt.: 07.04.2015.
Date of Decision: 06.06.2016.
M/s. Neelam Gas Agency, Karnal Road, Pundri, District Kaithal through its Prop. Smt. Raj Bala.
……….Complainant.
Versus
National Insurance Company Ltd. Branch Office, Pehowa Chowk, Kaithal, thorugh its Branch Manager.
..……..Opposite Party.
COMPLAINT UNDER SEC. 12 OF CONSUMER PROTECTION ACT, 1986.
Before: Sh. Jagmal Singh, President.
Sh. Rajbir Singh, Member.
Smt. Harisha Mehta, Member.
Present : Sh. Dinesh Tyagi, Advocate for complainant.
Sh. M.R.Miglani, Advocate for the opposite party.
ORDER
(JAGMAL SINGH, PRESIDENT).
The complainant has filed the present complaint under Section 12 of Consumer Protection Act, 1986, with the averments that the complainant is running the Gas Agency (Indian Oil Corporation Ltd.) exclusively for the purpose of earning her livelihood by means of self employment. It is alleged that the stock lying in the godown and office of gas agency was fully insured with the Op for Burglary and house breaking and for other purposes mentioned in insurance cover note valid w.e.f. 03.10.2013 to 02.10.2014. It is further alleged that in the intervening night of
12.01.2014, the thieves taken 36 empty and 118 filled gas cylinders after breaking the lock of godown. It is further alleged that an FIR No.14 dt. 13.01.2014 was registered in P.S. Pundri. Information regarding theft was given to Op. It is further alleged that the total loss caused due to above theft as per rate of Indian Oil Corporation is Rs.4,01,147/- and complainant paid Rs.3,54,450/- qua theft of gas cylinders to the Indian Oil Corporation vide DD No.016229/14. It is further alleged that this penal rate paid to the Indian Oil only for empty cylinders. It is further alleged that the complainant lodged the claim with the Op and submitted all the necessary documents but the Op started pressuring the complainant to sign discharge voucher of Rs.2,17,146/-. It is further alleged that the Op company assured that this voucher is not final settlement and remaining payment will be made after permission from Head Office and the complainant signed the voucher “Under Protest”. It is further alleged that the Op did not pay the remaining amount to the complainant. This way, the Op iss deficient in service. Hence, this complaint is filed.
2. Upon notice, the opposite party appeared before this forum and filed written statement raising preliminary objections with regard to maintainability; cause of action; locus-standi; that the complainant is running commercial gas agency, so, she does not fall under the definition of consumer; that there involves complicated
question of law and facts and for adjudication of which, only the civil court is best platform; that the answering Op has sent many letters dt. 24.12.2014, 22.01.2015, 11.02.2015 and 20.03.2015 to the complainant and despite repeated requests, the complainant failed to submit the required documents; that after receiving intimation from the complainant, the answering Op appointed Sh. Ashish Bahl as surveyor for assessing the actual loss of complainant. The surveyor assessed actual payable loss of complainant for sum of Rs.2,17,146.19 paise on the basis of documents and terms and conditions of insurance policy. There is no deficiency in service on the part of answering Op. On merits, the contents of complaint are denied and so, prayed for dismissal of complaint.
3. In support of his case, the complainant tendered in evidence affidavits Ex.CW1/A and Ex.CW1/B and documents Ex.C1 to Ex.C3 and closed evidence on 17.03.2016. On the other hand, the Op tendered in evidence affidavits Ex.RW1/A & Ex.RW2/A and documents Ex.R1 & Ex.R2 and closed evidence on 18.04.2016.
4. We have heard ld. counsel for both the parties and perused the case file carefully and minutely and have also gone through the evidence led by the parties.
5. It is argued by ld. Counsel for the complainant that the complainant was running a Gas Agency of Indian Oil Corporation
Ltd. in Pundri in the name of M/s. Neelam Gas Agency, Pundri and the complainant is sole proprietor of the gas agency. The stock lying in the godown and office of the gas agency was fully insured for burglary and house breaking and other purposes mentioned in the insurance cover note for the period 03.10.2013 to 02.10.2014. He further argued that on the night of 12.01.2014, gas cylinders 36 empty and 118 filled gas cylinders were stolen after breaking the lock of godown and an FIR bearing No.14 dt. 13.01.2014 was got registered in P.S.Pundri in this regard. Intimation of theft was also given to Op. He further argued that according to the penal rate of Indian Oil Corporation, the total loss caused due to the above theft was Rs.4,01,147 and the complainant paid Rs.3,54,450/- qua the empty cylinders of this theft to the Indian Oil Corporation vide demand draft No.016229/14. He further argued that the Op started pressurizing the complainant to sign the discharge voucher of Rs.2,17,146/- which was much less than the actual loss suffered by the complainant. He further argued that according to the policy Ex.R1, the value of total sum of insurance was Rs.67,00,000/- and for the purpose of burglary and house breaking, the stock was insured for a sum of Rs.18,25,000/-. He further argued that the surveyor of the Op has also calculated the loss of the theft item to the tune of Rs.4,01,156/- but he has wrongly decreased the payable amount to the tune of Rs.2,17,146/-.
6. On the other hand, ld. Counsel for the Op has argued that on receipt of information from the complainant regarding the theft, the Op has appointed Sh. Ashish Bahl as surveyor for assessing the actual loss. He further argued that as per policy, the complainant has insured her stock of gas cylinder domestic and commercial, empty and filled cylinder, upto the risk of Rs.12,00,000/-. He further argued that the surveyor has assessed the actual payable loss of the complainant to the tune of Rs.2,17,146/- and the same has been paid by the Op to the complainant. He further argued that the complainant has kept the cylinders domestic/commercial/empty and filled to the tune of Rs.22,17,242/-, whereas the risk was insured to the tune of Rs.12,00,000/- only. He further argued that the surveyor has assessed the loss to the tune of Rs.4,01,156/- and he has correctly decreased the same proportionally and comes out that the actual loss payable was Rs.2,17,146/-. The ld. Counsel for Op produced an authority cited in 2014(1) CPC, Page 38(NC) titled as New India Insurance Co. Ltd. Vs. Vinay Kumar Panday.
7. From the pleadings and evidence of the parties, it is clear that the complainant was running a gas agency and the stock lying in the godown and office was insured with the Op for the period 03.10.2013 to 02.10.2014. It is also clear from the FIR that 36 empty and 118 cylinders filled with gas were stolen after breaking
the lock of godown. It is also clear that the complainant has paid Rs.3,54,450/- qua the theft of empty gas cylinders to the Indian Oil Corporation vide demand draft No.016229/14. According to the complainant, he has suffered the loss in this theft as per penal rate of Indian Oil Corporation to the tune of Rs.4,01,147/-, whereas the surveyor of the Op has also assessed the loss of theft item to the tune of Rs.4,01,156/-, which is almost the same. The argument of the Op has no force that the cylinder empty and filled were insured to the tune of Rs.12,00,000/-. It is clear from Section 2 of policy, Ex.R1, that the stock for burglary and house breaking was insured for sum of Rs.18,25,000/- instead of Rs.12,00,000/-. Therefore, the Op has wrongly taken the insured sum as Rs.12,00,000/-. It is admitted by the Op in their reply that the surveyor assessed the loss of the theft item to the tune of Rs.4,01,156/- but the surveyor has wrongly taken the insured amount to the tune of Rs.12,00,000/-, whereas the same was Rs.18,25,000/-. As already stated above, it is clear from policy Ex.R1, the stock was insured for burglary and house breaking to the tune of Rs.18,25,000/-, which is higher than the loss assessed by the surveyor. The surveyor of the Op has wrongly depreciated the loss in proportion of the total stock lying there and the sum assured for the stock. Therefore, the report of surveyor is not reliable. In this regard, we rely upon the authority titled as Suresh Chand Jain Vs. Universal Sompo
General Insurance Co. Ltd. & others, 2016(2) CLT page 409 (DEL), wherein it has been held that Surveyor report-held-Report of the expert surveyor is not ultimate document to reach at a conclusion to allow or not to allow the claim-Courts had to apply their mind also. This authority is fully applicable to the present case. The authority produced by the Op is not applicable to the facts of the present case.
8. According to the penal rate of Indian Oil Corporation, the complainant suffered the loss of Rs.4,01,147/- in this theft. The stock for burglary and house breaking was insured to the tune of Rs.18,25,000/-. The loss suffered by the complainant is much less than the insured value. So, we are of the considered view that the complainant is entitled for the sum of Rs.4,01,147/- but the Op has not paid the same to the complainant. Hence, the Op is deficient while rendering services to the complainant.
9. Thus, as sequence of the above discussion, we allow the complaint and direct the Op to make the payment of the amount of Rs.4,01,147/-, the loss suffered by the complainant in the theft in question after deducting the amount, if any, already paid by the Op, with interest @ 8% p.a. from the date of filing of the complaint till its realization The Ops are also burdened with cost of Rs.2,000/- (Two thousand) as lump sum compensation for harassment, mental agony and cost of litigation charges to the complainant. Let the
order be complied with within 30 days from the date of communication of order. A copy of this order be sent to both the parties free of costs. File be consigned to the record room after due compliance.
Announced.
Dt.06.06.2016.
(Jagmal Singh),
President.
(Harisha Mehta), (Rajbir Singh),
Member. Member.
