Haryana

Yamunanagar

CC/1256/2011

M/S Batish Tyres - Complainant(s)

Versus

Oriental Insurance Company Ltd. - Opp.Party(s)

V.K.Rajouri

12 Aug 2016

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, YAMUNA NAGAR

                                                                                                           Complaint No. 1256  of 2011.

                                                                                                           Date of institution: 21.12.2011

                                                                                                           Date of decision:  12.08.2016

M/s Batish Tyres, Aggarsen Chowk, Jagadhri, Tehsil Jagadhri, Distt. Yamuna Nagar through its Partner Shri Vivek Batish aged about 30 years  son of Shri Davinder Pal Sharma, resident of H. No. 1145, Durga Garden, Jagadhri, Tehsil Jagadhri, Distt. Yamuna Nagar.

                                                                                                                                                                        …Complainant.

                                                Versus

The Oriental Insurance Company Limited, Opposite Hindu Girls College, Courts Road, Jagadhri, Tehsil Jagadhri, District Yamuna Nagar.                                                                                                                                                                                                                                                                                                                                                                                                      …Respondent

BEFORE:  SH. ASHOK KUMAR GARG, PRESIDENT

                  SH. S.C.SHARMA, MEMBER        

 

Present: Sh. V.K.Rajoria, Advocate, counsel for complainant.   

              Sh. Naveen Kaushal, Advocate, counsel for respondent.

           

ORDER

1.                     The present complaint has been filed under section 12 of the Consumer Protection Act 1986.

2                      Brief facts of the present complaint are that the complainant firm is doing the business of sale and purchase the tyres, tubes, flaps and other material under the name and style of M/s Batish Tyre since 1994 and having agency of Birla and Apollo Tyres. The complainant got his stock of tyre, tubes and flaps insured with the respondent (hereinafter as OP Insurance Company) for a sum of Rs. 5,00,000/- by obtaining a policy bearing No. 48/2010/1055 valid from 26.10.2009 to 25.10.2010 for a sum of Rs. 5,00,000/-. The complainant is maintaining all the records of sale and purchase in regular course of business. On 18.08.2010 complainant closed his shop at 8.30 P.M and went to the house and when on 19.08.2010 complainant opened his shop, he found that a theft of tyre, tubes and other material has been occurred in his shop. The complainant immediately informed the police station City Jagadhri and lodged an FIR bearing No. 354 dated 19.08.2010 under section 457/380 IPC (Annexure C-1). After minutely checking of the record complainant found that 33 tyres, tubes, flaps (TTF) were found missing. Besides this, T.V. and Inverter battery etc. were also found missing. The complainant immediately also lodged the claim with the OP Insurance Company and a surveyor and loss assessor was appointed by the Op Insurance Company. All the necessary documents and list of stolen tyres, tubes and other material was handed over to the official of the OP Insurance Company. In nutshell the tyres, tubes to the tune of Rs. 4,28,498/- were found missing. Complainant made a request so many times to OP Insurance Company to settle the claim but the Op Insurance Company was putting off the matter on one pretext or the other. However, complainant received a notice dated 26.02.2011 from the Royal Associates, Investigating and Detective Agency directing the complainant to furnish the documents. The complainant furnished all the documents including stock statement, sale and purchase record, trading account for the period 01.04.2010 to 18.08.2010 alongwith stock summary. The complainant also submitted untraced report dated 01.08.2011 (Annexure C-7 & C-8) issued by Magistrate/ACJM, Yamuna Nagar. The complainant received a letter dated 02.11.2011 (Annexure C-9) in which the Op Insurance Company informed that his claim has been approved and directed the complainant to submit certain more papers. In response to that letter complainant firm through its partner Smt. Bimla Rani wrote a letter dated 16.11.2011 (Annexure C-11) to the OP Insurance Company requesting to disclose how much claim has been sanctioned. Upon this, the OP Insurance Company vide letter dated 16.11.2011 (Annexure C-10) disclosed that a claim to the tune of Rs. 1,03,735/- has been sanctioned. The complainant was astonished to know that only an amount of Rs. 1,03,735/- has been sanctioned which is on very lower side. Hence, in this way, the investigator report is absolutely illegal and clearly shows that it has been prepared in collusion with OP Insurance Company. The complainant requested the Op Insurance Company to pay the whole amount of Rs. 4,28,498/- but the official of the Op Insurance Company flatly refused. Hence, this complaint.  

3.                     Upon notice, OP Insurance Company appeared and filed its written statement by taking some preliminary objections such as complaint is not maintainable; the complainant has no locus standi, there is no cause of action; complainant has not approached this Forum with clean hands and has concealed the true and material facts and on merit it has been admitted that complainant firm has obtained a shop keeper insurance policy bearing No. 261701/48/2010/1055 valid from 26.10.2009 to 25.10.2010 for a stock in trade of Rs. 5,00,000/- ( Annexure R-1) subject to terms and conditions of the policy. It has been further admitted that a theft has occurred in the shop of the complainant and complainant has informed the OP Insurance Company vide intimation letter dated 19.08.2010 and a surveyor Sh. Pankaj Goel was appointed for preliminary survey and thereafter Sh. Surinder Kumar Singla Surveyor and Loss Assessor was appointed to conduct the final survey who has assessed the loss to the tune of Rs. 1,03,735/- after thoroughly investigating the matter, recording the statement of complainant (Annexure C-3) and perusing all the documents and submitted his report dated 01.09.2011(Annexure R-4). It has been further admitted that an FIR bearing No. 354 dated 19.08.2010 has been lodged in this regard and complainant has stated that he suffered a loss of Rs. 4,28,498/- on account of theft. It has been further admitted that complainant has provided some documents to the OP Insurance Company and also submitted untraced report but the complainant had failed to supply the letter of subrogation and undertaking to the OP Insurance Company till date, so, the claim could not be settled. Lastly, prayed for dismissal of complaint being no deficiency in service on the part of OP Insurance Company, as the complainant himself has not supplied the necessary documents.

4.                     To prove the case, counsel for the complainant tendered into evidence affidavit of Sh. Vivek Batrish partner as Annexure CX and documents such as photo copy of FIR as Annexure C-1, Photo copy of list of theft material amounting to Rs. 4,28,498/- as Annexure C-2, Photo copy of statement of Vivek Batish as Annexure C-3, Photo copy of letter dated 26.02.2010 demanding documents as Annexure C-4, Photo copy of provisional trading account of M/s Batish Tyre as Annexure C-5, Photo copy of stock summary as Annexure C-6, Photo copy of untraced report as Annexure C-7 and C-8, Photo copy of letter dated 02.11.2011 as Annexure C-9, Photo copy of letter dated 16.11.2011 as Annexure C-10, Photo copy of receipt of letter dated 16.11.2011 as Annexure C-11 and closed the evidence on behalf of complainant.

5.                     On the other hand, counsel for the OP Insurance Company tendered into evidence affidavit of Sh. Sanjeev Madan Senior Branch Manager OIC as Annexure RX, Affidavit of Surinder Kumar Singla Surveyor & Loss Assessor as Annexure RY, Affidavit of Pankaj Goel, Surveyor & Loss Assessor as Annexure RZ and documents such as Photo copy of shop keeper Insurance policy as Annexure R-1, Photo copy of intimation letter as Annexure R-2, Photo copy of Investigator and Detective Agency of Royal Associates dated 02.08.2011 as Annexure R-3, Photo copy of Surveyor report dated 01.09.2011 of Surinder Kumar Singla, Chartered Accountant as Annexure R-4, Photo copy of letter dated 02.11.2011 and 16.11.2011 as Annexure R-5 and R-6, Photo copy of spot survey report of Pankaj Goel as Annexure R-7 and closed the evidence on behalf of OP Insurance Company.

6.                            We have heard learned counsel for both the parties and have gone through the pleadings as well as documents carefully and minutely placed on the file. Counsel for the complainant reiterated the averments made in the complaint and prayed for its acceptance whereas the counsel for opposite party reiterated the averments made in reply and prayed for its dismissal.

7                      From the perusal of letter dated 16.11.2011 (Annexure C-10/ R-5 and R-6) and Photo copy of Surveyor report dated 01.09.2011 of Surinder Kumar Singla, Chartered Accountant, (Annexure R-4), it is clearly evident that a claim to the tune of Rs. 1,03,735/- was sanctioned by OP Insurance Co. but this amount was not accepted by complainant on the ground that as per their account books/record,  the tyres, tubes to the tune of Rs. 4,28,498/- were found missing. It has been further alleged that the Surveyor / investigator report (Annexure R-4) is absolutely illegal and clearly shows that it has been prepared in collusion with OP Insurance Company.

8.                     To decide this issue, there is only two reports on the file, one is of the investigator (Annexure R-3) and second is of the Surveyors and Loss Assessor (Annexure R-4) as the complainant has not filed any other documentary evidence i.e. copy of account statements etc. So, we have perused the surveyor report of Sh. Surender Singla (Annexure R-4) as well as report of investigator M/s Royal Associates (Annexure R-3) and the relevant paras of both the reports is reproduced here as under :-

Investigator Report (Annexure R-3), Last Para of the report under the Head OPINION:­-

“On the basis of the above said finding and documentary evidence, we are of the opinion that date and time of the theft seems to be genuine. Thieves entered in the shop by forcible entry as they broken /open lock of the two shutter and pulled out shutter towards outside about two feet and then stolen tyres. So, there were sign of forcible entry. FIR was also lodged u/s 457/380IPC theft by forcible entry. Police was immediately informed when theft was noticed. On 19-08-2010 morning shop was opened in the presence of police. But quantity of tyre claimed to be stolen seems to be higher side. As per statement of the Vivek Batish (partner of firm, who looks after the shop) he use to store truck tyres in 10 x10 open area inside shop on front side, in front of office. He further stated in his statement that truck tyres are stored in three (3) rows in that area and in each row only 5-6 tyres of truck can be stored. It is also clear from statement that, maximum 15-18 tyres can be stolen. Although, in the latter part of statement, the insured claimed that 30-35 tyres were stolen, which seems to be after thought? Insured was asked to provide us sale/purchase statements, stock register, stock statements submitted to bank, but the same were not provided to us till date. So, theft of tyre seems to be genuine, but quantity of loss may be considered on the basis of finding, as well as opinion given in our report.”

Surveyor Report (Annexure R-4), Para 7.21 Stolen quantities:-

• As per insured:-  As per claim bill, the insured demanded 33 tyres
• As per investigator :- The truck tyres were stolen 15 to 18
• Conclusion: - As per above discussion, we have considered 15 tyres as stolen quantity for the purpose of assessment of loss. Total value of 31 tyres is comes to Rs. 3, 54,924.00 as shown in the stated table. Therefore the average cost of 15 stolen tyres ₌ Rs 1,61,329/- (3,54,924 x15/31= Rs 1,61,329/-
• Hence gross assessment of loss for 15 stolen tyres comes to Rs 1,61,329/-
• Further as per Para no.8.10.
• Risk factor (average Clause):- Value at risk at the time of mishap was Rs.7, 77,656/- but the insured has insurance policy for Rs 5.00 lacs , therefore there is under insurance and average clause would be applicable. Calculation of risk factor is here as under:- 7,77,656 – 5.00.000/- = Rs 2,77,656/-  i.e. 35.70 % 
• The Net liabilities of insurance company is Rs. 1, 03,735/-00 (1, 61,329/-00 - ­ 57594/-)

9.                     No doubt that, the above noted amount of Rs. 1,03,735/- has been assessed as per investigator as well as Surveyor and loss Assessor report which has been prepared on the basis of statements of accounts/records as well as on statement of insured and it is evident that the matter of stolen of tyres was thoroughly investigated by the qualified persons i.e. investigators and by the Charted Accountant (Surveyor & loss Assessor) and further it is settled law that a credence should be given to the surveyor report in absence of any controvert report/cogent evidence, however even then from the surveyor report Annexure R-4, it is clearly established that an amount of Rs 57,594/- has been deducted on account of risk factor i.e. by applying average clause and Rs.24988 (12494 x 2 tyres) has been ducting on account of  Bill not produced for the item mentioned at serial no.15 of the table/list  i.e. total amount of Rs. 57594 + Rs 24988/- = Rs.82,582/- 00 has been deducted, which is totally illegal as the op insurance Company has totally failed to connivance this forum that when the matter of stolen of tyres had thoroughly been investigated by the qualified persons i.e. investigators and by the Charted Accountant (Surveyor & loss Assessor)  then how the insurance Co. can deducted the amount of Rs. 24988/-  on account of that no bill was available with the complainant and further OP Insurance Co. has also not placed on file any terms and conditions of the insurance policy to justify that any conditions is incorporated in the policy according to which the average clause will be applicable to the claim of the complainant. It is not disputed that complainant was having Insurance policy covering the risk upto for Rs. 5 lacs whereas theft took place for goods amounting to Rs 4,28,498/- as alleged by the complainant. So, we are of the view that average clause has been wrongly applied by the op insurance Co. in settling the claim of the complainant. Case law referred by the counsel for op Insurance Co. is not disputed but is not helpful in the present case.

10                    From above noted discussion, we are of the considered view that the claim of the complainant has not been properly assessed by surveyor and further by the op Insurance Company as it has been approved for Rs 1,03,735/- only whereas it should be  for Rs. 1,86,317/- ( Rs 1,03,735/- + Rs. 57,594/ + Rs.24,988/- ).

11.                   Resultantly, the complaint of the complainant is partly allowed and the Op Insurance Company is directed to pay the amount of Rs. 1, 86,317/- alongwith simple interest at the rate of 7% per annum from the date of filing of this complaint till realizations to the complainant and further the Op Insurance Company is also directed to pay Rs 5000/- for litigation expenses.  The order be complied within a period of 30 days, failing which penal action under Section 25/27 of the Consumer Protection Act, 1986 would be initiated against the opposite parties. Copy of this order; be communicated to the parties free of cost as per rules. File be consigned to record after due compliance.          

Announced: 12.08.2016.

                                                                                          (ASHOK KUMAR GARG)

                                                                                           PRESIDENT

 

 

                                                                                          (S.C.SHARMA)

                                                                                           MEMBER