BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SIRSA.
Consumer Complaint no.294 of 2017 Date of Institution : 8.11.2017
Date of Decision : 15.11.2018.
Satish Kumar son of Shri Vakil Chand, Prop. of Midha Kiryana Store, resident of village Dhudianwali, District Sirsa.
……Complainant.
Versus.
New India Insurance Company Ltd. Sirsa, through its Divisional Manager, Sirsa, Distict Sirsa.
...…Opposite party.
Complaint under Section 12 of the Consumer Protection Act,1986.
Before: SH. R.L. AHUJA …………..PRESIDENT.
SH. ISSAM SINGH SAGWAL ……MEMBER.
Present: Sh. A.K. Gupta, Advocate for the complainant.
Sh. Ravinder Goyal, Advocate for opposite party.
ORDER
The case of complainant in brief is that complainant is a small shop keeper dealing in grocery goods, stationary, footwear and clothes. The said shop is being run in the name and style as M/s Midha Kiryana Store and the complainant is the proprietor of the said firm. That the opposite party had insured the stocks lying in the shop to the extent of Rs.1,25,000/- vide policy No.3537044615010000076 w.e.f. 29.3.2016 to 28.3.2017. That on 29.6.2016, the complainant was at home, which is on the back side of the shop. The complainant got up at 4.00 a.m. in order to take out some medicine from the shop for the wife of his brother, then the complainant found the entire shop engulfed in fire and the entire stocks fridge, TV, computer, kiryana goods, clothes, electric goods, footwear etc. lying in the shop were totally destroyed in the fire. The fire took place due to short-circuit in the shop. The complainant immediately informed the police and a rapat no.15 dated 29.6.2016 was recorded by the police. It is further averred that complainant informed the insurance company regarding the fire and the company appointed Shri N.K. Gupta, Surveyor and Assessor to assess the loss caused to the complainant. The said surveyor took the photographs of the damaged goods and also verified the bills/ invoices. After submission of all the documents and verification by the surveyor, the complainant had been approached him as well as the company time and again, but the company kept the matter pending for the ulterior reasons. The complainant also asked for the supply of the surveyor report as assessed by the surveyor, but the company did not handover the same. It is further averred that ultimately the complainant applied for the copy of the survey report in June, 2016 under the RTI Act and now the complainant has been supplied a copy of the report alleged to be dated 22.12.2016 and 14.3.2017 and subsequent report dated 14.3.2017 vide which the complainant has come to know that op had been calling for the report of the surveyor as per its own whims and the surveyor has been submitting the reports time and again by reducing the loss without any rhyme or reason even in the first report the loss has been assessed on a very lower side in comparison to the actual loss. The surveyor has not given any reason for not allowing the claimed loss and has arbitrarily assessed the loss as per the directions of the company. The report of the surveyor is totally wrong, against law and facts and against the insurance norms. It is further averred that whole shop was engulfed in fire and the stocks were damaged fully. The bills/ invoices of the stocks were handed over to the surveyor. The actual loss to the stock is about Rs.2,00,000/- and the complainant is entitled to the insured amount. That the op has now paid Rs.15,152/- after lingering on the matter and after getting repeated reports of the surveyor, which is total mockery with the complainant. The very purpose of the insurance has been defeated. Hence, this complaint.
2. On notice, opposite party appeared and filed written statement taking certain preliminary objections regarding maintainability, locus standi, suppression of true and material facts, estoppal and that the grievance of the complainant has already been redressed by the op as the amount of compensation of Rs.15,152/- has been paid to the complainant on 22.3.2017, therefore, present complaint cannot be proceeded any further and is liable to be dismissed on this very score. It is submitted that policy number mentioned by complainant is incorrect. The op on receipt of information about the alleged fire incidence at the shop of the complainant, deputed Shri N.K. Gupta, Surveyor, Loss Assessor of Sirsa who visited the spot and inspected the damaged stock in the shop and he submitted his report dated 22.12.2016 wherein the Surveyor assessed the net loss as Rs.35,260/-. But due to inadvertence, the surveyor could not exclude the amount as per General Exclusion clause of the insurance policy. The said General Exclusion clause reads as follow:-
“ If the property hereby insured shall at the breaking out of any fire or at the commencement of any destruction of or damage to the property by any other perils hereby insured against be collectively of greater value that the sum insured thereon, then the insured shall be considered as being his own insurer for the difference and shall bear a ratable proportion of the loss accordingly. Every item, if more than one of the policy shall be separately subject to this condition.”
It is further submitted that assessment of loss suffered by complainant was to be assessed in terms of the above exclusion clause of the insurance policy, but the Surveyor failed to do so. Therefore, he submitted his addendum report dated 14.3.2017 to the op and thereby assessed the net loss of Rs.15,152/- payable to the complainant. Accordingly, the claim of the complainant was settled and finalized and the said amount of Rs.15,152/- was paid to the complainant on 22.3.2017 as full and final settlement and the complainant accepted the same without any protest. Remaining contents of the complaint are also denied and prayer for dismissal of complaint has been made.
3. The parties then led their respective evidence by way of affidavits and documents.
4. We have heard learned counsel for the parties and have perused the case file carefully.
5. Learned counsel for complainant has contended that it is proved case of the complainant that complainant is running a small grocery shop and stationary etc. in the name and style of M/s Midha Kiryana Store. It is also proved fact on record that complainant got insured the stocks lying in his shop to the extent of Rs.1,25,000/- from the opposite party vide above said policy from 29.3.2016 to 28.3.2017. On 29.6.2016 during the policy period, the fire took place in the shop of complainant and damage was caused to the stocks in the shop. Due intimation was given to the opposite party and claim was lodged with the op and a Surveyor was appointed who visited the spot and submitted his report and thereafter op at its own managed to get additional report of surveyor without any intimation to the complainant. It has also been contended that on the basis of second report, op at their own deposited an amount of Rs.15,152/- in the account of complainant without any notice to the complainant. The complainant has not executed any full and final receipt. The complainant approached time and again to the op to settle and reimburse the actual loss of the complainant. It has also been contended that opposite party has not complied with the provisions of Regulation 9(3) of the Insurance Regulatory and Development Authority (Protection of Policyholder’s Interests) Regulations, 2002. He has also relied upon judgment of the Hon’ble Madhya Pradesh State Consumer Disputes Redressal Commission Bhopal in case titled as Oriental Insurance Co. Ltd. & anr. Versus Khandwa Oils Unit of Itarsi Oils & Flours Ltd. I (2006) CPJ 327.
6. On the other hand, learned counsel for opposite party has contended that the shop of the complainant was no doubt insured with the op vide insurance policy and fire took place. Surveyor Sh. N.K. Gupta was appointed as Surveyor to assess the loss who visited the spot and submitted his report but since the report was not complete, he submitted his addendum report dated 14.3.2017 by which he assessed the net loss to the tune of Rs.15,152/- and on the basis of surveyor report, the op settled and paid claim to the complainant and this amount was deposited in the account of complainant. The complainant did not make protest rather accepted the full and final payment and thereafter complainant is not consumer of the opposite party. Learned counsel for op has relied upon judgment of the Hon’ble National Commission in cases titled as Vijay Stationers vs. United India Insurance Co. Ltd. I (2013) CPJ 637 (NC), Sheela Wanti & anr. Vs. State Bank of India & ors. I (2013) CPJ 641 (NC), Jiwan Spinners Pvt. Ltd. vs. New India Assurance Co. Ltd. I (2013) CPJ 418 (NC).
7. We have considered the rival contentions of the parties and gone through the record.
8. It is an admitted fact between the parties that complainant was holding a fire policy No.35370411150100000262 for the period 29.3.2016 to 28.3.2017 which was issued by opposite party by which stock of grocery shop and other stationary articles were insured to the tune of Rs.1,25,000/-. It is also an admitted fact that on 29.6.2016 a fire took place in the shop of complainant and loss was caused to the stock of the complainant. Due intimation was given to the op, who appointed Sh. N.K. Gupta as Loss Assessor and Surveyor who inspected the spot and verified the loss. It is also admitted fact that in pursuance of the direction of the op, surveyor namely Sh. N.K. Gupta visited and inspected the spot and verified the facts from the complainant and nearby persons and submitted his report Ex.R5 dated 22.12.2016 by which he has assessed the loss to the tune of Rs.47,760/- against estimated loss of Rs.1,92,988/-. He has also shown the less value of the salvage of Rs.2500/- and less policy clause to the tune of Rs.10,000/- and assessed net loss to the tune of Rs.35,260/-.
9. The complainant in order to prove his case has furnished his affidavit Ex.CW1/A wherein he has reiterated all the averments made in the complaint. He has also furnished copy of policy schedule Ex.C2, copy of DDR Ex.C3, copies of photographs Ex.C4 to Ex.C6, copy of letter dated 14.7.2016 Ex.C7, copies of information under RTI Act Ex.C8, Ex.C9, copy of addendum report Ex.C10 and copy of survey and assessment report dated 22.12.2016 Ex.C11policy Ex.C1, copy of information under RTI Ex.C12, copy of postal order Ex.C13, copy of application for information Ex.C14, postal receipt Ex.C15, copy of application for information Ex.C16, postal order Ex. C17, copy of news item Ex.C18, copy of certificate Ex.C19, copies of cash memos Ex.C20 to Ex.C27, copy of affidavit Ex.C28 and copies of bills Ex.C29 to Ex.C36. On the other hand, opposite party has furnished affidavit of Sh. K.S. Chaudhary, Sr. Divisional Manager Ex.R1 who has reiterated the version of written statement. The op has also furnished affidavit of Sh. N.K. Gupta, Surveyor Ex.R2, copy of NEFT Ex.R3, copy of addendum report Ex.R4, copy of survey report Ex.R5, copy of rapat Ex.R6, detail of stock Ex.R7, copies of photographs Ex.R8 to Ex.R13, copy of fire insurance claim form Ex.R14, copy of policy schedule Ex.R15 and copy of policy Ex.R16.
10. The perusal of the evidence of opposite party reveals that they have relied upon report of the Surveyor namely Sh. N.K. Gupta who has submitted two reports Ex.R4 and Ex.R5. As per report Ex.R5, he assessed net loss to the tune of Rs.35,260/- whereas as per report Ex.R4, he assessed net loss to the tune of Rs.15,152/-. The perusal of the evidence of op further reveals that the op has not placed on record any document from which it could be presumed that there was a necessity to get the second report of the surveyor qua the same incidence or to re-evaluate the loss of complainant. The record further reveals that op has not placed on record any letter of intimation written to the complainant to obtain the second report of the surveyor nor there is any evidence from which it could be presumed that surveyor ever visited at the spot for the second time in order to prepare second report. The perusal of the second report dated 14.3.2017 which is Ex.R4 on file reveals that estimated loss has been shown to be Rs.2,24,927/- whereas in the first report dated 22.12.2016 Ex.R5, he has shown the estimated loss to be Rs.1,92,988/- and he has not assigned any reason for the change of this figure of estimated loss. The perusal of the claim form Ex.R14 reveals that complainant has lodged claim of loss of only Rs.50,000/-. Clause 9(3) of the Insurance Regulatory and Development Authority (Protection of Policyholders’ Interests) Regulations, 2002 provides as under:-
“If an insurer, on the receipt of a survey report, finds that it is incomplete in any respect, he shall require the surveyor under intimation to the insured, to furnish an additional report on certain specific issues as may be required by the insurer. Such a request may be made by the insurer within 15 days of the receipt of the original survey report. Provided that the facility of calling for an additional report by the insurer shall not be resorted to more than once in the case of a claim.”
11. The perusal of the record reveals that op has not placed on record any letter written to the surveyor to prepare the second survey report within this stipulated time rather first report was submitted by the surveyor on 22.12.2016 and second report has been made on 14.3.2017 and there is no explanation on the part of op qua the second report. As such report made by surveyor for the second time is not binding upon the rights of the complainant and same is liable to be ignored. The contention of learned counsel for op that full and final payment has been made and complainant has not raised any objection to the payment of Rs.15,152/- has no force because perusal of the record reveals that this amount was deposited by op on the basis of second report at their own without any intimation of the second report to the complainant as well as without intimation of deposit of the amount to the complainant as such it cannot be presumed that complainant has accepted this amount on account of full and final payment.
12. In view of above discussion, we allow this complaint and direct the opposite party to settle and pay the balance claim amount on the basis of first report of the Surveyor dated 22.12.2016 after deducting the amount of Rs.15,152/- (already paid/ deposited) to the complainant within a period of 45 days from the date of receipt of copy of this order, failing which the complainant will be entitled to interest @7% per annum on the payable amount from the date of order till actual realization. We also direct the opposite party to further pay a sum of Rs.5000/- as composite compensation and litigation expenses to the complainant. A copy of this order be supplied to the parties free of costs. File be consigned to the record room after due compliance.
Announced in open Forum. Member President,
Dated:15.11.2018. District Consumer Disputes
Redressal Forum, Sirsa.
