Before the District Consumer Disputes Redressal Forum, Room No. 208 2nd Floor, District Administrative Complex, Tarn Taran
Consumer Complaint No : 96 of 2018
Date of Institution : 11.09.2018
Date of Decision : 23.09.2019
M/s Gopi Karyana store, VPO Sohal, (Jhabal) District Tarn Taran through its proprietor Amrik Singh son of Inder Singh resident of village Sohal Thathi Tehsil and District Tarn Taran.
...Complainant
Versus
- Oriental Insurance Company Ltd. near Satkar Palace, Amritsar Road Tarn Taran through tis Senior Branch Manager,
- Oriental Insurance Company Ltd. having its registered office at Oriental House, A-25/27, Asaf Ali road, New Delhi 110002 through its MD.
…Opposite Parties.
Complaint Under Section 12 and 13 of the Consumer Protection Act, 1986.
Quorum: Sh. Charanjit Singh, President
Smt. Jaswinder Kaur, Member
For Complainant Sh. H.S. Sandhu Advocate
For Opposite Parties Sh. Sandeep Khanna Advocate
ORDERS:
Charanjit Singh, President;
1 The complainant M/s Gopi Karyana Store, VPO Sohal through its proprietor Amrik Singh has filed the present complaint against the opposite parties on the allegations that the complainant was a proprietor of Firm namely M/s Gopi Karyana Store and it was the only bread earning source of the complainant. The complainant is income tax assesse and had been maintaining books of accounts and had also been paid electricity bill of the power consumption. The complainant has got sanctioned credit limit up to 7 Lacs with Punjab National Bank Branch Jhabal so as to meet cash requirements and as such, the complainant was running a good turnover of Karyana Store. The rate of interest on the credit limit with Punjab National Bank is about 11% per annum alongwith other expenses of operating such like credit limit. The complainant had also insured his Karyana store i.e. M/s Gopi Karyana Store for fire and other uncertainties with the opposite parties vide insurance cover note No. 174321 dated 14/15.3.2018 for an insurance cover of Rs. 9 Lacs by paying premium of Rs. 3,292/- which was valid from 29.3.2017 to 28.3.2018. Unfortunately, the Karyana store of the complainant caught fire on 15.3.2018 at about 1.00 A.M. and due to this fire whole of the Karyana Store of the complainant was reduced to ashes and as such, the complainant suffered a loss of Rs. 7 Lacs approximately, as the stock of this amount was lying in the Karyana Store at that point of time and this is very much evident from the stock turnover and other documents such as income tax return and the monthly stock register submitted by the complainant with Punjab national bank Branch Jhabal and as such, the complainant lost whole of his business in this fire. The complainant immediately approached the police of P.S. Jhabal and lodged the incident vide rapt Rojnamcha No. 28 dated 15.3.2018 and also the complainant lodged a claim with the opposite parties, so as to obtain the claim amount of Rs. 7 Lacs being loss of the complainant already insured with the opposite parties. The complainant also submitted all the required documents with the opposite party No. 1 as per its requirement such as the insurance cover note, stock registers, copy of Rapat Rojnamcha, copies of balance sheets and income tax returns and stock register submitted with the Punjab national Bank Branch Jhabal and also the report of his Income Tax Consultant and as such the acknowledgment was supplied by the opposite parties in regard to lodging of claim. The opposite parties sent their surveyor at ground Zero who thoroughly inspected it and also completed formalities regarding the assessment of the claim and the report regarding the same were submitted by him with the opposite parties without disclosing anything about it to the complainant. the complainant approached the opposite party No. 1 several times to obtain the claim amount but the opposite party told the complainant that the same will be released within a few days time but inspite of several visits nothing was released to the complainant, rather the complainant was informed by the opposite party No. 1 that a claim of Rs. 13,994/- has been passed and as such, the complainant was very much embarrassed on hearing from this party as he had suffered loss of Rs. 7 Lacs due to fire in his Karyana Shop. The complainant again approached the opposite party No. 1 to release claim of Rs. 7 Lacs to him and also told that he has been paying Rs. 7,500/- as interest to the Punjab National Bank Branch Jhabal on the credit which he had obtained from this branch and the complainant is unable to pay due to loss of business in the fire but all in vain. The opposite parties are guilty of fault, imperfection, abort coming and inadequacy in the quality of service, nature and manner of performance. The complaint has prayed the opposite party No. 1 may be directed to pay Rs. 7 Lacs i.e. loss suffered by the complainant due to fire in his Karyana shop alongwith compensation of Rs. 50,000/- and Rs. 50,000/- as litigation expenses. Alongwith the complaint, the complainant has placed on record his affidavit Ex. C-1, Self attested copy of Insurance Cover Note Ex. C-2, Self attested copy of Rapat Rojnamcha Ex. C-3, Self attested copy of fire Insurance Claim form Ex. C-4, Self attested copy of Balance sheet Ex. C-5, Self attested copy of acknowledgement of Income Tax Return for the Assessment year 2015-16 and 2016-17. Self attested copy of stock Register Ex. C-7, Self attested copy of letter dated 9.7.2018 Ex. C-8.
2 After formal admission of the complaint, notice was issued to Opposite Parties and opposite parties appeared through counsel and filed written version contesting the complaint by taking preliminary objections that the complaint filed by the complainant is bad for non joinder of necessary parties and cause of action. In this regard, it is submitted that Punjab National Bank is financer and a financier clause is incorporated in the insurance policy itself. Basically as per insurance manual if there is financier clause, then amount is payable to the said financier and not to the insured. However, the complainant had failed to array the said bank as a party to the present complaint. As such, the present complaint being technically defective and is not maintainable. The complainant is estopped from filing the present complaint. The opposite parties had intimated the financer i.e. Punjab National Bank vide letter dated 9.7.2018 that the loss in question was assessed as Rs. 13,994/- and discharge voucher duly signed by the bank was require to be submitted with the opposite party. The complainant as well as the Bank failed to comply with the requisite formalities. Hence, the complainant is not entitled to relief claimed for. As per report dated 22.6.2018 of CA Rajiv Arora, Surveyor & Loss Assessor, the payable liability of the opposite party was assessed as Rs. 13,994/-. The loss assessed by surveyor is best piece of evidence and same has to be taken as correct one unless the other party produces any cogent evidence to show that the said loss assessed by the surveyor is incorrect. This view has been taken by the Hon’ble National Commission in so many cases in which it has been held that the surveyor is the best person to assess the loss and the forum cannot assume role of surveyor. Hence, the loss assessed by the surveyor is to be taken as final one. The complainant has not approached this Forum with clean hands and tried to conceal the material facts. The parties to the complaint are strictly governed by the terms and conditions of the policy in question. The contract of the insurance is based on utmost faith. As per general conditions of the contract of insurance, it has been clearly held that the insurance co. will not be liable to pay any claim if the claim is found to be in any respect fraudulent or if any false declaration be made or used in support thereof or if any fraudulent means or devices are used by the insured or any one act is done on his behalf to take benefit under the policy, all the benefits under the said policy shall be forfeited. The public money cannot be thrown away by way of charity by the public sectors. The claim file of the complainant having been settled by the competent authority. The complainant is not entitled to relief claim for. On account of claim being already settled at Rs. 13,994/- as full and final payment, there is no question of any delay or deficiency on the part of the opposite parties. Hence, the relief of damages, interest and costs in the present complaint is not payable. On merits, it was pleaded that the report dated 22.6..2018 of CA Rajiv Arora, Surveyor & Loss Assessor was submitted to the opposite party and the copy thereof was duly supplied to the complainant and all the other allegations in the complaint have been denied by the opposite parties and prayer was made for dismissal of the complaint with costs. Alongwith the written version the opposite party has placed on record affidavit of Naresh Singh Sr. Manager Oriental Insurance Co. Ltd. Divisional Office, I, Queens Road, Amritsar Ex. OP-5, Original Policy Ex. OP-1, Original cover Note Ex. OP-2, Terms and conditions of the policy Ex. OP-3, Original Surveyor report of CA Rajiv Arora Ex. OP-4, Original letter dated 9.7.2018 Ex. OP-6.
3 We have heard the Ld. Counsels for the complainant and opposite parties and have gone through the evidence and documents placed on the file by the parties.
4 In the present case, insurance is not disputed and the complainant has placed on record policy Ex. C-2 which is valid from 29.3.2017 to 28.3.2018 and the complainant has made the payment of premium of Rs. 3,292/- and the sum assured is Rs. 9,00,000/-. It is also not disputed in the present case that the Karyana Store of the complainant caught fire on 15.3.2010 because after admitting the incidence of fire and insurance of articles opposite parties have passed the claim of Rs. 13,994/- vide Ex.C-8. But the in the present case, the complainant is claiming Rs.7,00,000/- due to damage in the fire. To prove his case, the complainant has placed on record the DDR No. 28 dated 15.3.2018 Ex. C-3 of same day of occurrence and in the Rapat Roznamcha it is mentioned that the complainant has suffered loss of Rs. 6/7 Lacs due to fire and whole of the articles have been destroyed due to fire. The complainant has placed on record balance sheet of the M/s Gopi Karyana Store for the year 2016-17 which is Ex. C-5. C-6 is Income Tax Returns for the year 2015-16 showing the gross income of Rs. 3,57,000/-, Income Tax Return for the year 2016-17 showing the gross income of Rs. 3,54,150/-. Ex. C-7 is stock register for the month November 2017 valuing Rs. 10,21,096/-, stock register for the month of October 2017 valuing Rs. 10,15,896, stock register dated 10.9.2017 valuing Rs. 9,63,975/-, stock register dated 28.2.2018 valuing Rs. 9,44,275/- . It all shows that the stock remained in the Gopi Karyana store was in between Rs. 9,44,275/- to 10,21,096/- and on the very next month the incidence of fire occurred in the shop. The opposite party has admitted that incidence has occurred in Gopi Karyana shop and if fire caught to oil, ghee etc. for 2 to 3 hours then it will damage the whole of the Karyana goods and if fire controlled after putting the water then one can presume the complete damage to all Karyana goods like salt, turmeric, sugar and all other eatable/perishable. As such, we are of the considered view that there must be loss to the tune of Rs. 7,00,000/- as prayed by the complainant. Stock in the shop is duly supported by the stock register which is duly stamped by the Punjab National Bank and Insurance Company. The loss assessed by the surveyor seems to be very less. The opposite party has relied upon the surveyor report Ex. OP-4 and has passed the claim of the complainant to the tune of Rs. 13,394/- only. The counsel for the opposite parties relied heavily on the survey report. With respect to the survey report, before proceeding to discuss the same we may notice that the Hon’ble Apex court recently in New India Assurance Company Ltd. Vs. Pradeep Kumar Civil Appeal No.3253 of 2002 decided on 9th April, 2009 has observed in Para No. 15 as follows: -
‘The object of the aforesaid provision is that where the claim in respect of loss required to be paid by the insurer is Rs.20,000/- or more, the loss must first be assessed by an approved surveyor ( or loss assessor) before it is admitted for payment or settlement by the insurer. Proviso appended thereto, however, makes it clear that insurer may settle the claim for the loss suffered by insured at any amount or pay to the insured any amount different from the amount assessed by the approved surveyor (or loss assessor). In other words although the assessment of loss by the approved surveyor is a pre-requisite for payment or settlement of claim of twenty thousand rupees or more by insurer, but surveyor's report is not the last and final word. It is not that sacrosanct that it cannot be departed from; it is not conclusive. The approved surveyor's report may be basis or foundation for settlement of a claim by the insurer in respect of the loss suffered by the insured but surely such report is neither binding upon the insurer nor insured.’
In the light of above Judgment, we depart from the survey report as it has assessed the claim in the lower side. Moreover it is usual with the insurance company to show all types of green pastures to the customer at the time of selling insurance policies, and when it comes to payment of the insurance claim, they invent all sort of excuses to deny the claim. In the facts of this case, ratio of the decision of Hon‟ble Apex Court in case of Dharmendra Goel Vs. Oriental Insurance Co. Ltd., III (2008) CPJ 63 (SC) is fully attracted, wherein it was held that, Insurance Company being in a dominant position, often acts in an unreasonable manner and after having accepted the value of a particular insured goods, disowns that very figure on one pretext or the other, when they are called upon to pay compensation. This, take it or leave it‟, attitude is clearly unwarranted not only as being bad in law, but ethically indefensible. It is generally seen that the insurance companies are only interested in earning the premiums and find ways and means to decline claims. In similar set of facts the Hon’ble Punjab & Haryana High Court in case titled as New India Assurance Company Limited Vs. Smt.Usha Yadav & Others 2008(3) RCR (Civil) Page 111 went on to hold as under:-
“It seams that the insurance companies are only interested in earning the premiums and find ways and means to decline claims. All conditions which generally are hidden, need to be simplified so that these are easily understood by a person at the time of buying any policy. The Insurance Companies in such cases rely upon clauses of the agreement, which a person is generally made to sign on dotted lines at the time of obtaining policy. Insurance Company also directed to pay costs of Rs.5,000/- for luxury litigation, being rich.
5 In view of the above discussion we allow the present complaint and directed the opposite parties to pay Rs. 7,00,000/- (Rs Seven Lacs only) to the complainant. The complainant has been harassed by the Opposite Parties, as such, the complainant is also entitled to Rs. 5,000/- (Rs. Five Thousand only) as compensation on account of harassment and Rs. 4,000/- (Rs. Four Thousand only) as litigation expenses. Opposite Parties are directed to comply with the order within one month from the date of receipt of copy of the order, failing which the complainant is entitled to interest @ 9% per annum, on the awarded amount, from the date of complaint till its realisation. Copy of order be supplied to the parties free of costs as per rules. File be consigned to record room.
Announced in Open Forum
23.9.2019
(Charanjit Singh)
President
(Jaswinder Kaur)
Member
