DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II U.T. CHANDIGARH [Consumer Complaint Case No: 65 of 2011] -------------------------------- Date of Institution : 08.02.2011 Date of Decision : 19.09.2012 -------------------------------- M/s Comfort Technologies, Plot No. 93, Indl. Area, Phase-II, Chandigarh, through its Prop. Vikas Deep son of Sh. Satish Kumar. ---Complainant V E R S U S Oriental Insurance Company Limited, Divisional Office No. II, SCO No. 48-49, Sector 17-A, Chandigarh. ---Opposite Party BEFORE: SH. LAKSHMAN SHARMA PRESIDENT SH. JASWINDER SINGH SIDHU MEMBER Argued By: Sh. Mrigank Sharma, Counsel for Complainant. Sh. G.S. Ahluwalia, Counsel for Opposite Party. PER JASWINDER SINGH SIDHU, MEMBER 1. Complainant has filed the present complaint, against the Opposite Party on the ground that the Complainant is a proprietor concern carrying out the business of installation and provisioning along with supply of air conditioning technologies and is an authorized dealer of M/s Blue Star Limited. The premises of the Complainant has been regularly insured with the Opposite Party and had subscribed for standard fire and special perils and burglary – standard policy for the period commencing from 25.5.09 to 24.5.10 Annexure C-1 for a total insured amount of Rs.9,67,000/-. The Complainant claims that inspite of repeated requests to the agent of the Opposite Party the complete set of terms and conditions were never supplied, on an excuse that the same are not available in the office of the Opposite Party due to short supply. That unfortunately, on the intervening night of 27/28.12.09 an incident of burglary took place at the insured premises and Opposite Party was informed vide Annexure C-2 dated 28.12.09. Further, the police too was informed and an F.I.R. under Section 380, 457 I.P.C. was lodged with the P.S. Sector 31, Chandigarh on 30.12.2009. Copy of the same is annexed as Annexure C-3. Complainant was advised to submit the claim form with the company which was lodged with the Opposite Party, vide Annexure C-4. The Opposite Party appointed M/s Duggal Gupta Surveyors Private Limited as Investigator/ Loss Assessor, who vide their letter dated 2.1.2010, demanded certain information and documentation from the Complainant, as detailed in from (i) to (x) at Page 3 of the complaint. Copy of the letter dated 2.1.2010 is attached as Annexure C-5 to the complaint. Complainant replied to the said communication vide his response dated 5.1.2010 through Annexure C-6 fulfilling all the requirements demanded by them. The Complainant alleges that even after a lapse of as many as 8 months and repeated requests vide Annexure C-7 dated 15.6.2010, C-8 dated 3.8.2010 and 19.8.2010 Annexure C-9 the Opposite Party failed to settle the genuine claim of the Complainant. However, the Opposite Party through their communication dated 24.8.2010 (C-10) informed the Complainant that the claim is under consideration and same is being expedited. Subsequently, the Complainant vide its letter dated 14.9.2010 (C- 11) again requested the Opposite Party to settle the claim, despite the fact that the Complainant also submitted the untraced report Annexure C-12, to the Opposite Party, on 27.9.2010. The Complainant claims that inspite of claim being lodged in the month of December, 2009, and the same not being settled, for as many as 08 months, amounts to deficiency in service. A case titled as NIC Vs. J. Sarveswra Rao 1992(1) CPJ 325 NC wherein it is held that the settlement of claim should not exceed more than 03 months from the date of lodging the same. Complainant further alleges that despite repeated requests, no surveyor report was supplied to him by the Opposite Parties. A copy of one such request dated 13.12.2010 is annexed as Annexure C-13. The Complainant aggrieved of the unnecessary delay in settling the claim, has preferred the present complaint, claiming the following relief: - [a] Release the payment of Rs.9,67,000/- with interest @18% per annum from the date of the lodging of the claim, till realization; [b] Pay compensation for mental agony and harassment to the tune of Rs.1,00,000/-. [c] Pay Rs.33,000/- as cost of litigation to the Complainant; [d] Pass any other orders or directions deemed fit and appropriate in the facts and circumstances of the case. The complaint of the complainant is duly verified and supported by detailed affidavit of Mr. Vikas Deep. 2. The Opposite Party has contested the claim of the complainant by filing their reply, taking preliminary objections to the effect that Complainant has no cause of action against the Opposite Party, nor there is any deficiency in service on their part. Thus, the present complaint deserves to be dismissed on this count. The Opposite Party further claims that the Complainant is himself responsible for the current status of the claim, as he has failed to supply the requisite mandatory documents to the surveyor/Opposite Party. The said documents are spelt out in the surveyors report dated 8.9.2010 (Annexure R-1). The Opposite Party further claims that the Complainant failed to respond to the letters, reminders dated 9.9.2010, 8.10.2010, 26.10.2010 and 14.12.2010 (Annexure R-2 to R-5) respectively. The Opposite Party further states that the Complainant has failed to furnish the documents mentioned under clauses (i) to (xii) mentioned in para 3 of the reply, till date, and in the absence of these pre-requisite requirements, the claim could not be processed. Thus, the present complaint deserves to be dismissed on this score too. On merits, the Opposite Party has repeated their preliminary objections, while replying to the averments of the present complaint, in their para-wise reply. Thus, claiming no deficiency in service or unfair trade practice on their part, the answering Opposite Party has prayed for the dismissal of the complaint with heavy costs. The reply of the Opposite Party is duly verified and supported by detailed affidavit of Sh. N.K. Banga, Sr. Divisional Manager. 3. Having gone through the entire complaint, version of the Opposite Party, the evidence of the parties and with the able assistance of the learned counsel for the parties, we have come to the following conclusions. 4. The fact with regard to the subscription of the insurance for standard fire special perils and burglary for the period 25.5.2009 to 24.5.2010 for an insured amount of Rs.9.67 lacs is admitted. Even the aspect that a theft has happened at the insured premises of the Complainant on the intervening night of 27/28.12.2009 is confirmed from the documents Annexure C-2 and C-3 i.e. the intimation to the Opposite Party and the F.I.R. dated 30.12.2009. The police duly investigated the matter and on not being successful in tracing the stolen property, submitted an untraced report under Section 173 Cr.P.C. dated 27.8.2010. Thus, the happening of the theft is established and not questioned by the opposite party. 5. The Opposite Party on being duly informed on 28.12.2009 through Annexure C-2 appointed Investigator/ Loss Assessors M/s Duggal Gupta, Surveyors Pvt. Ltd. who in turn demanded certain documents and information from the Complainant vide its letter dated 2.1.2010 (Annexure C-5). The Complainant claims that the entire information demanded by the Surveyor was supplied. However, the fact that the Surveyor / Loss Assessor submitted its final survey report dated September 8, 2010, with the Opposite Party, claiming in Para 9 (Assessment) of this report that the claim of the Complainant, being assessed on two counts namely (A) Stocks & (B) Computer Systems. The assessment of the Surveyor mentions that in view of its findings mentioned in Para 7.7, and on the count that the insured having failed to substantiate the loss reported by him for the Stocks, for which the Assessor have not considered the claim. However, the loss of Computer Systems was assessed to the tune of Rs.35,200/- and remarked that “The settlement of the claim may be done subject to policy terms and conditions”. 6. We have also gone through the letters written by the Opposite Party to the Complainant which are dated as 9.9.2010, 8.10.2010, 26.10.2010 and 14.12.2010 (Annexure R-2 to R-5). Though these communications are marked as urgent and registered, but no postal receipt of its dispatch is found annexed. However, the annexure R-2 is shown to have been received on 15.9.2010, but the same does not disclose the identity of the person, who had received it. Even if for the sake of arguments we presume that, these communications addressed to the Complainant were received at its end, the letter dated 9.9.2010 only mentions the requirement of untraced report from the side of the Complainant, as marked in clause 5 and no demand of any other document is found mentioned therein. It is pertinent to mention here that the Complainant in its complaint in para 10 (Pg.5) categorically states that the untraced report (C-12) was supplied to the Opposite Party on 27.9.2010. However, through the letter Annexure R-3 dated 08.10.2010 the Opposite Party has desired the requirement of some pending photocopies as mentioned in the surveyor’s letter dated 13.7.2010, which is not brought on the record by them. The other trailing mails dated 26.10.2010 and finally, 14.12.2010, repeat the same issue and further, a word of caution is also found mentioned in Annexure R-5 that if the Complainant fails to furnish these documents, its claim would be treated as ‘No Claim’. It is very important to mention here that the Complainant has repeatedly claimed in his complaint that all the documentary requirements, as and when demanded, were diligently addressed and in support of his contentions, the Complainant has filed a detailed additional evidence by way of an affidavit, through which, it is claimed that the entire information as demanded by the Opposite Party, was supplied to it, vide letter dated 10.1.2010 (Annexure C-6). A complete set of as many as 241 documents have been tendered as Annexure C-14, on behalf of the Complainant. The same is also found mentioned in the zimni order dated 30.09.2011. The fact that the claim of the Complainant is still lying unprocessed, and as per the letter dated 14.12.2010, the Opposite Party has actually treated the claim of the Complainant as ‘No Claim’. It is surprising that even after having received the copy of additional evidence, on 30.9.2011, the Opposite Party preferred to keep silent and adamant in not assessing the claim of the Complainant. We find no reason as to why, even the frugal amount, assessed by the surveyor on account of loss of computers, of Rs.35,200/-, has yet not been paid to the Complainant and no reason has been assigned as there was no question or doubt about the theft of these articles and that the Complainant had genuinely lost these assets, nor there is any specific demand which was required to be met by the complainant, for its consideration. The Opposite Party has not come up with any excuse in its defence that could convince us. Thus, there was no bar on the Opposite Party to release the part claim of the Complainant that had been assessed and substantiated. Hence, the Opposite Party is found deficient in rendering proper service on this count. 7. The claim of the Complainant that the Opposite Party took as much as 10 long months to settle the claim of the Complainant is also found to be genuine, because the only one single document that is the untraced report dated 27.8.2010 was the last document tendered by the Complainant with the Opposite Party, and even, after its submission, the Opposite Party had preferred to declare the claim of the Complainant as no claim, is not explained by the Opposite Party, as to what was the impediment in settling the claim of the articles about which the surveyor/ assessor has confirmed that the Complainant deserve to be compensated for the same i.e. for the amount of Rs.35,200/- for the loss suffered by the Complainant on account of loss of Computers and related articles. The surveyor too has not mentioned any condition of Untraced Report for the release of assessed amount, hence, the Opposite Party is found deficient in rendering proper service on this score. 8. It would not be out of place to mention here that the Complainant through its complaint has claimed that it is entitled for a payment of Rs.9,67,000/- i.e. the insured value of the goods lying at the premises but at the same time, when during the proceedings the surveyor report was brought on record, and a copy of the same was supplied to it, the Complainant had an ample opportunity to rebut this report and substantiate his claim, but the Complainant has not made any efforts in this regard. Thus, we are left with no other option, but to believe the surveyor’s report, as it is. Hence, the claim of the Complainant for entire insured amount has not been conclusively established. 9. In the light of above observations, we find a definite deficiency in service on the part of the Opposite Party as they have failed to process the genuine claim of the Complainant, as established by an independent Surveyor/ Investigator appointed by them, in its report (Annexure R-1). Hence, the present complaint of the Complainant succeeds against the Opposite Party, and the same is PARTLY allowed. The Opposite Party is directed to:- [a] To release the assessed amount of Rs.35,200/- as per Col. 9(B) of Annexure R-1. [b] To pay Rs.15,000/- on account of deficiency in service; [c] To pay Rs.10,000/- as cost of litigation; 10. The above said order shall be complied within 45 days of its receipt by Opposite Party; thereafter, they shall be liable for an interest @18% per annum on the amount mentioned in sub-para [a] & [b] of para 9 above, apart from cost of litigation of Rs.10,000/-, from 9.9.2010 i.e. one month from the date of the Final Survey Report, till it is paid. 11. Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room. Announced 19th September, 2012 Sd/- (LAKSHMAN SHARMA) PRESIDENT Sd/- (JASWINDER SINGH SIDHU) MEMBER
| | MR. JASWINDER SINGH SIDHU, MEMBER | HONABLE MR. LAKSHMAN SHARMA, PRESIDENT | , | |
