Haryana

Ambala

CC/59/2021

Ajay Kumar - Complainant(s)

Versus

New India Assurance Co ltd - Opp.Party(s)

In Person

25 Aug 2022

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, AMBALA.

 

                                                           Complaint case no.         : 59 of 2021.

                                                          Date of Institution           : 02.02.2021.

                                                          Date of decision     : 25.08.2022.

 

Ajay Kumar S/O Radhe Shyam, Resident of House No-190, Gurunanak Nagar, Jarout Road, Sultanpur, Ambala City Tehsil- Ambala City, District Ambala (Haryana).

                                                                             ……. Complainant.

                                      Versus

1.       New India Assurance Company Ltd., SCO-36-37, Sector-17A, Chandigarh-160017 (Through its Branch Manager.)

2.       Regd. Office of New India Assurance Company Ltd, # 87 MG Road, Fort, Mumbai-400 001. (Through its Chief Manager)

                                                                              ….…. Opposite Parties.

Before:        Smt. Neena Sandhu, President.

                   Smt. Ruby Sharma, Member.

Shri Vinod Kumar Sharma, Member.         

                            

Present:       Complainant in person.

                   Shri Mohinder Bindal, Advocate, counsel for the OPs.

 

Order:        Smt. Neena Sandhu, President

1.                Complainant has filed this complaint under Section 35 of the Consumer Protection Act, 2019 (hereinafter referred to as ‘the Act’) against the Opposite Parties (hereinafter referred to as ‘OPs’) praying for issuance of following directions to them:-

(a)     To pay Rs.1,50,000/-, to the complainant alongwith interest.

(b)     To pay Rs.3,40,000/- as compensation for the mental agony   and physical harassment suffered by the complainant.

(c)      To pay Rs.5000/- as  litigation charges.

                                      OR

Grant any other relief which this Hon’ble Commission may deem fit.

2.           Brief facts of the case are that the complainant is running a shop at Jarout Road, Ambala City in the name of SP Mobile Electronics, in which he is doing work- Repair of Mobile/sale purchase of mobile/accessories of mobiles and electrical items etc. The articles kept at the premises of the complainant were got insured by him from the OPs, under insurance policy No.35330048183600000128, valid for the period from 28-02-2019 to 27-02-2020. On 15.06.2019, the complainant closed his shop as per daily routine. However, in the morning of 16.06.2019, he found that the lock of shutter of his shop was broken and all the items like mobiles, accessories and electronic items, including some cash total valued at Rs.1.50 lacs were found missing. Matter was reported to the Police also. Investigation was carried out by the Police, but the thieves could not be located. Resultantly, FIR bearing No.0260 dated 23-06-2019 under IPC (1860) Sections 380,457 in the matter was lodged at Police Station Baldev Nagar, Ambala City, which was sent to the Court for further necessary action. On the same day of theft, complainant reported the matter to OP No.1 and provided all necessary documents to it. Resultantly, OP No.1 appointed Surveyor, who advised the complainant to meet him at Chandigarh, which the complainant did. However, the said surveyor assessed loss to the tune of Rs.37,870/- only vide his report No-VMI/20JAN/B/001 dated 12-02-2020, against the total loss of Rs.1.50 lacs.  It has been alleged that the said Surveyor also demanded bribe from the complainant, which he refused. Matter was also reported to the OPs but no action was taken by them. By stating that the act and conduct of the OPs amount to deficiency in providing service and adoption of unfair trade practice, this consumer complaint has been filed by the complainant.
3.           Upon notice, OPs appeared and filed written version and raised preliminary objections with regard to maintainability, cause of action not come with clean hands and suppressed the material facts etc. On merits, while admitting factual matrix of the case with regard to issuance of the insurance policy in question, it has been stated that the complainant himself is responsible for the non-payment of his claim which is otherwise liable to be repudiated and discarded due to manipulations and fraud on his part. On receipt of information regarding theft in the shop of the complainant, an IRDA approved/licensed independent Surveyor namely Vinay Mittal, Surveyor and Loss Assessor was immediately deputed to inspect and assess the loss and to give fact-finding report. The said Surveyor visited the spot of occurrence/insured premises immediately on 25.06.2019 and inspected the losses in the presence of the complainant and asked him to provide the required papers like account books, purchase & sale bills to ascertain the exact assessment of loss. Complainant provided him an estimate of loss wherein he alleged loss of mobile phones, accessories and electrical items to the tune of Rs.1,31,245/- which also include a cash loss of Rs.35,000/- alongwith some purchase bills. The Surveyor asked him to provide trading account and sale bill books to proceed further in the matter but after not getting the same, the surveyor submitted his report dated 11.12.2019. Later on, the complainant supplied some purchase bills, sale bill books from 25.01.2019 onwards and two trading accounts, one for the period upto 31.03.2019 and another from 01.04.2019 to 15.06.2019 and, as such, his claim was re-considered. The surveyor in his report touched each and every aspect related to the loss and about the manipulations of the complainant. The allegations levelled on the Surveyor were found to be false. Thus, after due verification and investigation in the light of survey report and clarifications, from the surveyor and the complainant, the OPs approved the claim of the complainant to the tune of Rs.37,870/- as assessed by the surveyor vide his detailed and reasoned report dated 12.02.2020. The complainant vide letters dated 22.02.2020, 04.03.2020 and 18.03.2020 as well as through different emails was requested to provide necessary documents, so that the claim amount after deducting 25% there from in the event of non production of non-traceable report can be paid but he failed to supply the other requisite documents like indemnity bond and bank details etc., so as a result of which, his claim amount cannot be released. The OPs are always ready to settle the claim of the complainant legally as per insurance bylaws. Rest of the averments of the complainant were denied by the answering OPs and prayed for dismissal of the complaint with costs.
4.           Complainant tendered his affidavit as Annexure C-A, alongwith documents Annexure C-1 to C-17 and closed the evidence of the complainant. On the other hand, learned counsel for the OPs tendered affidavit of Shri Vinay Mittal, Surveyor & Loss Assessor, License no.SLA 42827, # 1640, Phase V, Mohali, Punjab and Mona Bagga, Sr. Divisional Manager & authorized signatory, New India Assurance Company Limited, Divisional Office, Ambala Cantt as Annexure OP-A and OP-B, alongwith documents Annexure OP1 to OP-16 and closed the evidence on behalf of OPs.
5.           We have heard the complainant and learned counsel for the OPs and carefully gone through the case file.
6.           Complainant has submitted that since the stolen articles worth Rs.1.50 lacs were covered under the insurance policy issued by the OPs, as such, they were legally bound to pay the said claim amount. However, the surveyor has assessed the loss illegally to the tune of Rs.37,870/-, and that amount too was also not released by the OPs, amounts to deficiency in providing service and indulgence into unfair trade practice on their  part. 
7.           On the contrary, the learned counsel for the OPs has submitted that since the complainant failed to provide necessary documents to the Surveyor, despite requests having been made in the matter, as such, the claim amount cannot be released in his favour and under those circumstances, the OPs cannot be held liable for deficiency in service or guilty of adoption of unfair trade practice on this count.
8.           The moot question which falls for consideration in this case is, as to whether, the complainant has been able to prove his case to the effect that the actual loss suffered by him on account of theft of the insured articles was to the extent of Rs.1.50 lacs or not. It is significant to mention here that it is an admitted fact that the complainant, in the first instance, has failed to provide the entire documents like account book, purchase and sale bills etc. to ascertain the actual loss by the Surveyor. From the email dated 11.12.2019 Annexure OP-16  having been written by the complainant to the OPs i.e. after about 6 months of the said theft, wherein, he conveyed the OPs that during cleaning of his shop, he has found some purchase bills. However, the fact is that complainant has not been able to prove before this Commission, by placing on record cogent and convincing evidence that the actual loss suffered by him in the said theft was to the extent of Rs.1.50 lacs.

It is coming out from the record that though in the first instance, on account of non production of the entire sale records, the claim of the complainant was rejected by the Surveyor, vide its report dated 11.12.2019, Annexure OP-5.Thereafter, when the complainant provided some documents, which he alleged that he found the same during cleaning of his shop, his claim was reopened by the OPs. It is further coming out from the record that after reopening of his claim,the Surveyor vide his Survey Report-Addendum dated 12.02.2020, Annexure OP-16 recommended the assessment of total loss suffered by the complainant in the said theft, to the tune of Rs.37,870/-.

9.           We have gone through the Survey Report-Addendum dated 12.02.2020, Annexure OP-16 and found that it is a detailed report, as the surveyor has made the said assessment of loss to the tune of Rs.37,870/-, after taking into consideration, each and every aspect of the matter. On the other hand, not even a single evidence to prove anything contrary viz a viz the said Survey Report-Addendum dated 12.02.2020, Annexure OP-16   has been placed on record by the complainant. It is well settled law that the report of the surveyor is an important piece of evidence, which has to be taken into consideration and can only be ignored if some other cogent piece of evidence is led which can belie the report given by the surveyor. In the present case, as stated above, the complainant has failed to place on record any evidence to show that the actual loss suffered by him in the said theft of the insured articles was to the extent of Rs.1.50 lacs and that the Survey Report-Addendum dated 12.02.2020, Annexure OP-16, wherein the Surveyor has assessed the loss to the tune of Rs.37,870/- is false. 
10.           However, from the facts of this case, it is also coming out that still the amount of Rs.37,870/- has not been released by the OPs in favour of the complainant on the ground that he failed to provide them Non-Traceable Report, letter of indemnity, Letter of subrogation, NOC from the bank and NEFT details. Under these circumstances, we dispose of this complaint with the directions to the OPs to release the amount of   Rs.37,870/- as assessed by the surveyor vide his Survey Report-Addendum dated 12.02.2020, Annexure OP-16, on receipt of Non-Traceable Report, indemnity bond, Letter of subrogation, NOC from the bank and NEFT details from the complainant.  It is made clear that in case the OPs failed to make payment of Rs.37,870/- within a period of 45 days from the date of receipt of the aforesaid documents from the complainant, they shall be liable to pay interest @6% p.a. on the said amount of Rs.37,870/- from the date of default till realization. With these directions this complaint stand disposed off. Certified copy of the order be supplied to the parties concerned, forthwith, free of cost as permissible under Rules. File be indexed and consigned to the Record Room.

Announced on: 25.08.2022.

 

          (Vinod Kumar Sharma)  (Ruby Sharma)              (Neena Sandhu)

              Member                         Member                       President