Punjab

StateCommission

CC/701/2017

Uni-Com Retail - Complainant(s)

Versus

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

Aftab Singh Khara

24 Apr 2018

ORDER

                                                               FIRST ADDITIONAL BENCH

 

STATE  CONSUMER  DISPUTES  REDRESSAL  COMMISSION,   PUNJAB

          SECTOR 37-A, DAKSHIN MARG, CHANDIGARH

 

                   Consumer Complaint No.701 of 2017

 

                                                          Date of Institution   : 17.08.2017        

                                                         Order Reserved on : 23.04.2018

                                                         Date of Decision     : 24.04.2018

 

Uni-Com Retail (A Unit of Uni-Com India Private Limited), 4, Madan Mohan Malviya Road, Amritsar 143001 (Punjab), through its Director Ms. Neeraj Sharma being Authorized Signatory.                                                                                                                                                                                                                                                                                                                                     ….Complainant

                                      Versus

 

 

Oriental Insurance Company Limited, Branch Office at Heer Shopping Complex, Hoshiarpur-Chandigarh Road, Mahilpur, District Hoshiarpur-146105 (Punjab), through its Branch Manager.

 

                                                                        ….  Opposite party

 

Complaint U/s 17(1)(a) of the Consumer Protection Act, 1986 (as amended up to date).

 

Quorum:-

          Shri J. S. Klar, Presiding Judicial Member.

              Smt. Surinder Pal Kaur, Member.

Present:-

          For the complainant         :   Sh. A.S Khara, Advocate

          For the opposite party      :   Sh.Satpal Dhamija, Advocate

  …………………………………………………………………………………….

J. S. KLAR, PRESIDING JUDICIAL MEMBER:-

                                     

                     The complainant being a private limited company has instituted this complaint U/s 17(1)(a) of the Consumer Protection Act 1986 (in short the "Act) against OP through its Director Ms. Neeraj Sharma, who has been authorized by the Board of Directors, vide resolution dated 14.07.2017. The complainant/Company got two insurance policies one for burglary floater policy and second of standard fire & special perils policy along with earthquake  with insured sum of Rs.75 lac for the period 24.02.2012 to 23.02.2013. The instant complaint has been filed under the burglary floater policy bearing no.235403/48/2012/556. On the intervening night of 04/05.09.2012, theft took place in the  insured premises of the complainant and intimation was given to police forthwith, whereupon, FIR no.406 dated 05.09.2012 was registered for the offences under Sections 457 and 380 IPC at the concerned police station. The complainant gave intimation to OP of this burglary, vide letter dated 05.09.2012 at its office at Amritsar. The surveyor Sumant Sud was deputed to assess the loss on receipt of intimation of theft by OP, who submitted his report on 13.06.2013, assessing the loss to the tune of Rs.19,42,506/- concluding that the loss took place due to burglary, which was admissible under the policy and same was recommended as admissible claim to OP with final police investigation report. Final report was prepared by the police, which was accepted by the court of Chief Judicial Magistrate, vide order dated 04.12.2014. The inaction of OP compelled the complainant to write a letter to Grievance Cell of OP in August 2015, which further directed the Regional Office Chandigarh of OP for speeding up the settlement of the claim, but to no effect. The complainant wrote letter on 01.03.2016 to Chairman Insurance Regulatory and Development Authority (IRDA) requesting for help in early settlement of the insurance claim by OP. The complainant received repudiation letter dated 29.09.2016 from OP. The complainant has alleged deficiency in service and inaction of OP in settlement of the claim. The complainant has, thus, filed this complaint with below noted reliefs  against OP:-

i)        OP be directed to pay Rs.19,42,506/- as assessed by the       surveyor with interest @ 12% p.a. from the date of loss till the      date of actual disbursement.

ii)       OP be directed to pay Rs.3,00,000/- on account of deficiency          in service and unfair trade practice and Rs.2,20,000/- as costs     of litigation.

2.                Upon notice, OP appeared and filed written reply and contested the complaint of the complainant vehemently by raising preliminary objections that it was insured under two insurance policies namely Burglary Floater Policy and Standard Fire & Special Perils Policy and Earthquake commencing from 24.02.2012 to 23.02.2013 for insured amount of Rs. 75 lac, whereas the instant complaint has been filed with regard to Burglary Floater Policy no. 235403/48/2012/556 by it. On receiving intimation, OP deputed Mr. Sumant Sud, as surveyor for assessing the loss and Simerjit Singh Bawa was appointed as Investigator by OP, who visited the spot and recorded the statements of Sh. Rishabh Dhawan and Sh.Navdeep Thakur and also visited the police station and submitted his investigation report to OP on 15.10.2012. On scrutiny of file, OP served letter and complainant made representation dated 20.10.2016. After considering the representation, the file was dealt with by competent authority, but prior to final outcome of the decision of competent authority after representation dated 20.10.2016, the complainant filed the instant complaint. OP served a repudiation letter dated 05.10.2017 upon complainant on the ground that statement given by Rishabh Dhawan to the police was different from that given to the surveyor. On the basis of discrepant statement of Rishabh Dhawan given to the police and to the surveyor, the claim was not honoured by OP. OP stated in written reply that outer shutter could not be opened without the help of keys, which were available with the neighbour Mr. Habib Saloon. Meaning thereby, lock was replaced with the same make and model of the lock, which was put in the previous night. How the thieves knew about the make and size of the lock, which was being put on the main shutter in the affected location. Police was not called before breaking the lock at the main shutter and complainant on its own broke the lock. It is not credible that the thieves will put another lock after breaking the lock already put on the shutter. The police pressed the shutter a little and shutter was opened and complainant opened the  locks, meaning thereby shutter was not broken and it was opened by applying the keys by the complainant. On the basis of the above inferences, OP repudiated the insurance claim of the  complainant by observing that it was not covered under the insurance policy. The complainant further averred that complaint is bad for non joinder of Oriental Bank of Commerce. On merits, OP admitted that surveyor has assessed the  loss to the tune of Rs.18,73,293/- in the affected location, but complainant is not entitled to the  same, as detailed in the repudiation letter. OP controverted the other averments of the complainant and justified the repudiation of the insurance claim and prayed for dismissal of the complaint.

3.                The complainant tendered in evidence his affidavit Ex.C-A along with copies of documents Ex.C-2 to Ex.C-11 and closed the evidence. As against it; OP tendered in evidence affidavit of Aamir Ahemed Regional Manger of Oriental Insurance Company as Ex.OP-A along with copies of documents Ex.OP-1 and Ex.OP-2 and closed the evidence.

4.                We have heard learned counsel for the parties and have also examined the record of the  case.

5.                Ms. Neeraj Sharma Director of the complainant/company tendered his evidence contained in his affidavit Ex.C-A stating that complainant/company took two policies from OP, one was of Burglary Floater Policy and second was of Standard Fire & Special Perils Policy along with Earthquake commencing from 24.02.2012 to 23.02.2013 with sum insured of Rs.75 lac. He further stated that burglary took place at the insured premises of the complainant on the intervening night of 04/05.09.2012  and report was recorded at police station for the offences under Sections 457/380 in this regard. He further deposed that untraced report sent by SHO of Police has been accepted by the court. He deposed that Mr. Sumant Sud Surveyor was deputed by OP to assess the  loss  and he found the loss to the extent of Rs.19,42,506/- in the insured premises of the complainant in his report dated 13.06.2013 due to above felonious act. He termed action of OP as illegal and arbitrary in repudiating the insurance claim. Ex.C-1 is copy of resolution authorizing him by the Board of Directors to file complaint and pursue it. Ex.C-2 and Ex.C-3 are policy documents on the record taken by complainant-company from OP. FIR no. 406 dated 05.09.2012 was lodged about this commission of burglary in the insured premises, by the complainant at police station, Civil lines, Amritsar. Ex.C-5 is letter written by complainant to Manager Oriental Insurance Company Ltd Amritsar for settling the matter. Report of surveyor Sumant SUD is Ex.C-6 on the record. The surveyor found the loss to the tune of Rs.18,73,293/- after deducting the amount of Rs.23071/- under the head of less allowance for data cable, charger and head phone and Rs.46141/- less for dead stock and shop soiling. He assessed net loss to the tune of Rs.18,73,293/- due to this act of burglary in the insured premises. Untraced report is Ex.C-7 sent by the police and it was accepted by the Judicial Magistrate, Amritsar, vide Ex.C-8 on the record. Ex.C-9 is letter sent by the complainant to OP for non-settlement of burglary claim by OP. OP gave reply to complainant dated 29.09.2016 Ex.C-10 and complainant wrote letter Ex.C-11 dated 20.10.2016 to OP in this regard. To refute this evidence, OP relied upon affidavit of Aamir Ahmed Regional Manager Oriental Insurance Company Ltd Ex.OP-A to the effect that the complainant has failed to prove that the case is covered under the burglary insurance policy. He stated that claim of the complainant is not tenable, as alleged loss falls outside the scope of insurance policy. Ex.OP-1 is letter sent by OP to complainant stating that alleged incident of theft has not been covered under the definition of burglary or housebreaking and hence repudiated the claim. Ex.OP-2  is burglary floater policy schedule on the record.

6.                From conclusion of above referred evidence on the record, we have come to this conclusion that complainant has proved this fact on the record that he took the insurance policy from OP covering the risk of burglary of the insured premises. Theft took place at the premises of the complainant-company, articles were stolen and loss was caused to complainant. FIR Ex.C-4 was lodged with the police station and police sent untraced report, which was finally accepted by the Judicial Magistrate, vide Ex.C-7 and Ex.C-8 on the record. OP repudiated the  insurance claim of the complainant on the basis of above referred inferences drawn by it. The investigator Simerjit Singh Bawa has not been examined in this case by OP to prove his investigation replort nor his affidavit is on the record to prove his report. Even report submitted by the investigator Simerjit Singh Bawa has not come forth on the record for the reasons best known to OP. An adverse inference can be drawn against OP for withholding the report of the investigator from the Forum. There is no report of investigator Simerjit Singh Bawa to the effect that burglary did not take place at the insured premises of the complainant attended with forcible entry. On the other hand, police report has lent credence to this fact that burglary took place and loss was caused to the insured premises. The police has not found in the investigation that it was not a case of forcible entry at the time of intrusion in the insured premises. The surveyor Sumant Sud is appointed under Insurance Act and approved by IRDA and his report has proved this fact that complainant suffered a loss in this incident of burglary to the tune of Rs.18,73,293/-  as adjusted by him as net loss. He has not found any un-genuineness in this claim of the complainant. The onus is on the OP to establish this fact that burglary has not taken place attended with forcible entry, because initial onus has been discharged by the complainant by leading above evidence on the record to this effect. We have come to this  conclusion that OP has not placed on record the report of the investigator Simerjit Bawa nor tendered his affidavit on the record to prove his report nor brought any statement recorded by Simerjit Singh Bawa of Rishabh Dhawan on the record, alleged to be discrepant and inconsistent. Consequently, we have come to this conclusion that repudiation of insurance claim by OP is arbitrary and unjustified being imaginary.

7.                As a result of our discussion,  we accept the complaint of the complainant and direct OP to pay Rs.18,72,293/- as assessed by surveyor, vide his report Ex.C-6 to complainant with interest @ 9% p.a from the date of repudiation of insurance claim till actual payment. OP is further directed to pay the amount of Rs.20,000/- as cost of litigation and complainant is not entitled to any other count of compensation from OP in our view.

8.                Arguments in this complaint were heard on 23.04.2018 and the order was reserved. Certified copies of the order be communicated to the parties under rules.

9.                The complaint could not be decided within the statutory period due to heavy pendency of court cases.

 

                                                                          (J. S. KLAR)

                                                             PRESIDING JUDICIAL MEMBER

 

                                                                (SURINDER PAL KAUR)

                                                                                MEMBER

April 24 ,  2018                                                              

(ravi)