PER SHRI. S.S. PATIL - HON’BLE MEMBER :
1) This is the complaint regarding the deficiency in service on the part of Opposite Party as it repudiated the insurance claim of the Complainant on a frivolous ground.
2) In this case the Complainant has not enumerated the facts in the complaint but we gathered from the form filled up by the Complainant and the documents attached to this form that he had insured his property as per schedule of Policy No.788 valid from 27/03/05 to 26/03/06 with endorsement stating “change is effected as per xerox letter dtd.03/02/06 of insured in Fire Policy No.2006/514 for addition of location and converting policy as floter.” This endorsement bears a signature and two dates i.e. 06/02/06 / 17/03/06.
Date, time and Occurrence of : Risk from 07/02/06, occurrence during night time
complaint (Name of Town) at Sagar Warehousing Co., Bhivandi on 07/03/06.
3) List of documents attached - a) xerox copies of rejection letter of O.P.
with complaint as evidence Explanation letter of Complainant.
c) Letter to grievance cell of the Opposite Party.
d) All bills regarding claim
4) Claim of Complainant/Type - Principle amount = Rs. 10,71,900/-
Of Reimbursement (in case Interest @ 9 % = Rs . 1,68,824/-
of amount, quote Principle Total = Rs.12,40,724/-
amount and interest thereon)
5) Compensation for Damages/ - Rs.15,000/-
Towards Mental troubles.
Compensation for Damages/
Expenses incurred for complaint
Total claim = Rs.15,55,724/-
6) The complaint was admitted and notice was served on the Opposite Party. Opposite Party appeared before this Forum and filed written statement wherein it denied contents of the above said complaint and specifically denied any loss and/or damage by the Complainant.
7) Some of the averments made by the Opposite Party are meaningless and ambiguous like, the Opposite Party has submitted in para 5 of the complaint that the “defendant will seek to set off against the claimant’s claim, the sums set out in the counter claim below so as to reduce it or extinguish it altogether”. Next in para 6, the Opposite Party has stated that “Further or alternatively, if, which is not admitted, the applicant has suffered the loss and/or damage as alleged or at all, the same was wholly or partly caused by his failure to judiciously apprehended the lurking peril way of movement of traffic.
8) However, in further paragraphs it was specifically stated by the Opposite Party that the claim under Burglary Policy was denied because the Complainant has not paid appropriate premium as per Sec.64VB of Insurance Act as at the time of making endorsement in respect of M/s. Sagar Warehousing there was no balance in the CD account of the Complainant and the premium was short by Rs.385 which were paid by cash later, i.e. after the occurrence of the loss i.e. on 07/03/06. The Opposite Party has thus, alleged that there was no coverage for this warehouse on the date of loss. Therefore, the Opposite Party repudiated the claim under the provision of Sec.64VB of the said Act.
9) The Opposite Party has further stated that the Complainant has taken two separate policies. The warehouse in question was not included in 2nd, burglary policy and no request was made by the Complainant to debit the CD account for premium under burglary policy.
10) The Opposite Party has further submitted that the Complainant has not given the final report and report regarding recovery made by police.
11) The Opposite Party has further submitted that the assessment of loss is subject to police final report. Even the Complainant has not filed copy of the insurance policy alongwith the complaint. Therefore, adverse inference can be drawn in this respect.
12) The Opposite Party has further stated that it entrusted the matter to its officer immediately after the receipt of the claim but the claim was not entertaining as there was violation of Sec. 64VB of the Insurance Act, 1938.
13) The Opposite Party has further stated that the case is based on false documents unwarranted presumptions, twisting of facts. Finally the Opposite Party has prayed that the complaint be dismissed with cost.
14) Thereafter, the Complainant filed rejoinder. We perused it and scrutinized thoroughly as the original complaint is being very scanty. We gathered the facts of this case from this document. The rejoinder has been filed by one Mr. Shrichand L. Talreja, the Proprietor of the General Import Co. (India), the Complainant. The Complainant has brought on the record that, the Opposite Party did not produce the survey report in this case inspite of demand by the Complainant in his application dtd.26/05/08.
15) In this rejoinder, the Complainant has clarified the point of Sec.64VB of Insurance Act raised by the Opposite Party. As the Complainant had advance deposite account with Opposite Party as required by Rule 58 of Insurance Rules. There was not short fall in this account at the time of passing endorsement. The Complainant has been regularly updating this account as per monthly statements required to be sent by the Opposite Party to the insured. The less balance, if any has been paid within time prescribed under rule 58. The alleged shortfall of Rs.385/- was in respect of endorsement on fire policy and the same was made good immediately on demand.
16) The Opposite Party has not produced any account statement of the deposit account to prove this allegation. However, the Complainant has produced account extract and bank passbook statement to prove the payment of Rs.10,000/-.
17) The Complainant has also clarified that the police final report was not received by the Complainant. Therefore, it cannot be submitted to the Opposite Party. As per subrogation clause, the Opposite Party is supposed to settle the claim 1st and claim the material, if traced by the police under its right of subrogation.
18) It is further submitted by the Complainant that it has sent a letter dtd.03/02/06 requesting the change in location of goods stored. Opposite Party delayed to make endorsement in this respect and passed an endorsement on 20/03/06.
19) The Complainant has averred in para 9 of the complaint that the incident of theft on 07/03/06 was immediately reported to the Opposite Party. Rejection letter came on 31/10/07 i.e. after 1 year and 7 months, so this is also a deficiency in service on the part of Opposite Party.
20) The Complainant also filed its affidavits of evidence and written argument wherein the facts and points were reiterated as mentioned in the rejoinder of the complainant.
21) The Opposite Party also filed the written argument wherein it reiterated the facts and points mentioned in its written statement.
We heard the Ld.Advocates for both the parties and perused/studied the papers submitted by them before us and our findings are as follows –
22) The Complainant obtained two insurance policies from the Opposite Party. One Policy No.514 – Fire and Special Peril Policy.
23) The Complainant has obtained 2nd policy bearing No.788 – Type Burglary – valid from 27/03/06 to 26/03/07. This is a relevant policy. The premium – 22,040/-
Description & Situation Property – 1) Deshmukh Warehousing Pvt. Ltd.
2) Sagar Warehousing Co., Sonibai Compound, Bhivandi.
24) On this policy schedule (Policy No.788), there is an endorsement as “change is effected as per xerox letter dtd.03/02/06 of insured in Fire Policy No.2006/514 for addition of location and converting policy as floater. Risk to be from 07/02/06.
25) On 10/03/06, the Complainant has written a letter to the Superintendent, Narpoli Police Station, informing him that 195 kg of Roxthromycin EP5 and 30 kg Atropine sulphate VSP 25 was missing from the godown. From this letter it is also revealed that the FIR was lodged by M/s. Sagar Warehousing vide CR No.52/06. However, the Complainant has not produced the copy of the FIR in this respect which can enlight actually what material was stolen & what was the value, etc.
26) The Complainant has produced copy of letter dtd.01/03/07 stating the claim value of the lost material. The material and the quantity was same as mentioned in letter dtd.10/03/06 addressed to the police.
27) The main ground for rejection of the claim by the Opposite Party is that the endorsement regarding the inclusion of a Sagar Warehouse (place from where the material was stolen) was made on 20/03/06. At the time of passing the endorsement the extra premium was to be paid by the Complainant. Fro this purpose, the Complainant has kept Deposit CD Account with the Opposite Party so that the Opposite Party can adjust the amount of extra premium from this account. It is the contention of the Opposite Party that this C.D. Account was short of Rs.385/- as there was no sufficient balance in this account of the Complainant. This means that the Opposite Party has alleged that the Complainant had not paid the complete premium required to be paid for the inclusion of the additional place in the insurance policy. However, to establish this allegation and clear this point the Opposite Party has miserably failed to point out, how much balance amount was in the C.D. Account of the Complainant at the time when he requested the Opposite Party to add the additional place i.e. Sagar Warehousing Co. and what was the amount which was to be debited to this account. The Opposite Party failed to mention these amounts. Even the Complainant has also not clarified this fact as how much balance amount was there in his C.D. Account. The Opposite Party has only averred that the cash of R.385/- was paid by the Complainant latter on i.e. after the theft took place. But the Opposite Party has failed to mention on what date this amount was paid to it and where is the receipt for this payment ? Therefore the contention of the Opposite Party that there was shortage of fund of Rs.385/- in the deposit CD account of the Complainant on the date of theft or on the date on which he requested to add the new place Sagar Warehousing in the policy and therefore, the place was not covered under the policy & hence, the claim was repudiated, does not hold water and thus, it is not substantiated. Therefore, the ground of repudiation is not the correct ground to repudiate the claim.
28) The other ground of repudiation of the claim cited by the Opposite Party is non submission of the FIR and the police recovery report by the Complainant which are the pre-requisite of the assessment. In this respect it is true that the Complainant has not filed these documents even alongwith the complaint and affidavit of evidence, but the Complainant has produced letter dtd.10/03/06 i.e. immediately after the date of theft addressed to Narpoli Police Station, Bhivandi, where, FIR was lodged. From this letter and the endorsement on this letter by Officer Incharge of Narpoli Police Station, it appears that an offence has been registered vide Crime Report (C.R.) (गु.र.क्र.52/06) in connection with theft of 195 kg of Roxythromycin EP5 and 30 kgs of Adropine Sulphate USP 25. It also appears from the record that the Opposite Party has appointed his surveyor to assess the loss/damage in this case. So the surveyor should have approached Narpoli Police Station to get the required information. In fact from the Opposite Party’s letter dtd.31/10/07, itself, it appears that the assessed loss is of Rs.10,71,900/- as at 3rd line of this letter the Opposite Party has titled the letter stating “Assessed loss : Rs.10,71900/-.” Therefore, in our candid view, the grounds cited by the Opposite Party for repudiating this insurance claim are not proper grounds. Therefore, this act of Opposite Party, repudiating the insurance claim of the Complainant amounts to deficiency and the Complainant deserves to get reimbursement for his insurance claim of Rs.10,71,900/- alongwith interest, compensation for deficiency and cost of this complaint. Therefore, we pas the following order -
O R D E R
i. Complaint No.45/2008 is partly allowed.
ii. The Opposite Party is directed to pay Rs.10,71,900/- (Rs. Ten Lacs Seventy One Thousand Nine Hundred Only) to the
Complainant as reimbursement of his insurance claim alongwith interest @ 9% p.a. from 07/04/06 till entire payment.
iii. The Opposite Party is also directed to pay compensation of Rs.5,000/- (Rs. Five Thousand Only) for the deficiency
in service on the part of Opposite Party.
iv. The Opposite Party is also directed to pay Rs.5,000/- (Rs. Five Thousand Only) to the Complainant towards cost of
this complaint.
v. Opposite Party is directed to comply with the above said order within 30 days from the receipt of this order.
vi. Certified copies of this order be furnished to the parties.
