Haryana

Yamunanagar

CC/564/2012

Bunty s/o Sh.Chuhar Singh - Complainant(s)

Versus

Oriental Insurance Company - Opp.Party(s)

GD Gupta

12 Jul 2017

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, YAMUNA NAGAR.

 

                                                                                                Complaint No. 564 of 2012

                                                                                                Date of institution: 05.06.2012

                                                                                                Date of decision: 12.07.2017

 

Bunty aged about 25 years, son of Shri Chuhar Singh, Prop. of Bunty Sticker, Near Guga Madi, Khizrabad, District Yamuna Nagar.

 

                …Complainant.

                                    Versus

Oriental Insurance Company, Near Hindu Girls High School, Jagadhri, District Yamuna Nagar through its Branch Manager.

                                                                                                              

                                                                                                         …Respondent

 

BEFORE:         SH. ASHOK KUMAR GARG…………….. PRESIDENT.

                        SH. S.C.SHARMA………………………….MEMBER.

                        SMT. VEENA RANI SHEOKAND…..…… MEMBER.

 

Present:           Shri GD Gupta, Advocate for complainant.

                       Shri Karnesh Sharma, Advocate for OP.

 

ORDER (ASHOK KUMAR GARG, PRESIDENT)

 

1.                     The present complaint has been filed under Section 12 of the Consumer Protection Act,1986 as amended upto date against the respondent (hereinafter will be referred as OP).

2.                     Brief facts, as alleged in the complaint are that complainant is running a shop in the name and style of M/s Bunty Stickers at Khizrabad, District Yamuna Nagar and accordingly, he purchased a Insurance policy from the OP Insurance Company against the fire and theft of the material lying in his shop for a sum of Rs.1,00,000/-  for fire and Rs.1,00,000/- for theft which was valid from 30.07.2009 to 29.07.2010. Unfortunately and due to force, fire had taken placed in the in the shop of the complainant in the night of 23/24.01.2010 and a DDR No.13 to that effect was got recorded in the police Station Khizrabad on 24.01.2010. Thereafter, complainant lodged the claim with the OP Insurance Company and the surveyor and loss assessor was deputed who had verified the occurrence of the fire and had affirmed and confirmed the loss. After, that complainant lodged a claim of Rs.1,42,979/-  with the OP Company duly supported by the bills but despite constant pursuance by the complainant and repeated telephonic and verbal requests, the OP Insurance Company has neither made payment of claim amount nor any reason for not making the payment has so far been intimated. A legal notice dated 01.03.2012 was served upon the OP Insurance Company and despite that the OP Insurance Company did not pay even single penny to the complainant. Hence, there is deficiency in service and unfair trade practice on the part of the OP and lastly prayed for directing the OP Insurance Company to make the payment of claim amount of Rs.1,42,979/- along with interest and also to  pay compensation as well as litigation expenses.

3.                     Upon notice, OP Insurance Company appeared and filed its written statement beside some preliminary objections, it has been mentioned on merit that complainant had purchased an Insurance Policy  under standard fire and special perils and cover note to this effect was issued on 29.07.2009  valid from 30.07.2009 to 29.07.2010 and the sum insured was Rs.1,00,000/- each. It has been further mentioned that all items covered under the policy were duly written in the cover note. It has been further submitted that on receiving the intimation regarding the alleged fire in the shop of the complainant on 24.01.2010, the OP Insurance Company immediately registered the claim and deputed Mr. Pankaj Goel, Technical person for assessing the loss who had submitted his final report with the OP Insurance Company and assessed the loss as per list of damages parts prepared and delivered by the complainant himself and final assess the loss of Rs.30500/- as per terms and conditions of the Insurance policy in question and necessary deductions. The assessed amount of Rs.30,500/- was paid vide payment voucher dated 17.03.2011 to the complainant. Lastly prayed for dismissal of the complaint as assessed the amount of loss had already been paid to the complainant.

4.                     In support of his case learned counsel for the complainant tendered into evidence short affidavit of the complainant as Annexure CW/A, photocopy of Insurance Cover Note for burglary Insurance (theft) as Annexure C-1, photocopy of insurance cover note for fire insurance as Annexure C-2, photocopy of DDR bearing No.13 dated 24.01.2010 as Annexure C-3, photocopy of shop estimate as Annexure C-4, photocopy of bills/invoice as Annexure C-5 to C-9, photocopy of legal notice as Annexure C-10 and closed the evidence on behalf of complainant.

5.                     On the other hand, learned counsel for the OP tendered into evidence affidavit of Shri Sanjeev Madan, Senior Branch Manager, Oriental Insurance Company as Annexure R-A, affidavit of Shri Pankaj Goel, Surveyor and Loss Assessor as Annexure R-B, photocopy of claim payment voucher dated 27.10.2010 as Annexure R-1, photocopy of insurance policy with its terms and conditions as Annexure R-2, photocopy of cover note for theft Insurance as Annexure R-3, photocopy of intimation letter dated 25.01.2010 as Annexure R-4, photocopy of statement of complainant as Annexure R-5, photocopy of claim Form as Annexure R-6, photocopy of letter dated 22.04.200 as Annexure R-7, photocopy of letter dated 30.07.2010 as Annexure R-8, photocopy of Surveyor and Loss Assessor Report as Annexure R-9, photocopy of account statement of State Bank of Patiala as Annexure R-10, account statement of Oriental Insurance Company as Annexure R-11 and in addition statement of Shri S.K. Goel, Branch Manager was recorded and some documents i.e. account statement, letter of Bank of India, photocopy of cheque, photocopy of voucher for depositing cheque were tendered into evidence as Annexure R-12 to R-15 by the counsel for the OP and closed the evidence on behalf of OP.  

6.                     We have heard the learned counsel for parties and have gone through the pleadings as well as documents placed on the file very carefully and minutely.

7.                     It is not disputed that complainant Shri Bunty had obtained two insurance policies valid from 30.07.2009 to 29.07.2010 for a sum of Rs.1,00,000/- each covering the risk of theft as well as fire on account to goods/material lying in his shop which was valid from 30.07.2009 to 29.07.2010 vide cover note No.635945 and 295882 which is duly evident from the photocopy of cover note (Annexure C-1 and C-2) and insurance policy (Annexure R-2/ R-3). It is also not disputed that a fire had taken place in the shop of complainant in the night of 23/24.01.2010 which is duly evident from the copy of DDR bearing No. 13 dated 24.01.2010 (Annexure C-3). It is also not disputed that on intimation a Surveyor and Loss Assessor Shri Pankaj Goel was deputed to assess the loss due to fire in the shop of the complainant who submitted his report dated 27.08.2010 (Annexure R-9) assessing the total loss to the tune of Rs.30595/-.

8.                     The only grievance of the complainant is that till filing of the complaint dated 05.06.2012, the OP Insurance Company has failed to make the payment on account of loss suffered by the complainant due to fire in his shop. Learned counsel for the complainant argued at length that surveyor and loss assessor submitted his report (Annexure R-9) on 27.08.2010  with the OP Insurance Company assessing the loss of Rs.30,595/- but despite that the OP Insurance Company has  not made the payment to the complainant. Learned counsel for the complainant draw our attention towards the voucher dated 27.10.2010 prepared by OP Insurance Company (Annexure R-1) and argued that even on this voucher, a false endorsement regarding “received 17.03.2011” has been made by his officials of the OP Company himself otherwise, no assessed amount was paid by the OP Insurance Company to the complainant by way of any cheque or by any other mode. Learned counsel for the complainant further argued that when this voucher was prepared on 27.10.2010 then why it has been shown as received on 17.03.2011. Learned counsel for the complainant further draw our attention towards legal notice dated 01.03.2012  sent to the OP Insurance Company and argued that a story of the OP Insurance Company also falsify as there was no need to issue the legal notice to the OP Insurance Company on 01.03.2012 if the OP Insurance Company had made the payment on 27.10.2010. Learned counsel for the complainant further argued that the OP Insurance Company did not bother to reply the legal notice. Learned counsel for the complainant further argued that in fact the OP Insurance Company has not made payment i.e. assessed loss to the tune of Rs.30,500/- which constitute the deficiency in service and unfair trade practice on the part of the OP. Learned counsel for the complainant further argued that even the surveyor and loss assessor has not assessed the loss of the complainant properly and lastly prayed for acceptance of the complaint.

9.                     On the other hand, learned counsel for the OP Insurance Company argued at length that a false and manipulated complaint has been filed by the complainant just to harass and humiliate the official of the OP Insurance Company as well as to extract the money from the Insurance company whereas no truth is attached with the facts mentioned in the complaint. Learned counsel for the OP Insurance Company draw our attention towards payment voucher dated 27.10.2010 (Annexure R-1 and R-11) and argued that the OP Insurance Company had made the payment of the assessed amount to the complainant on 27.10.2010 and there was no fault of the insurance company as the complainant himself was negligent for not encashing the cheque bearing No. NP0126660 and as per record of the company, the OP Insurance Company has again issued a fresh cheque bearing No.160676 dated 20.04.2012 for the same amount of Rs.30500/- to the insured/complainant which was debited from the account of the OP Insurance Company on 23.04.2012  and draw our attention towards the photocopy of cheque  (Annexure R-14) and bank voucher (Annexure R-15). Lastly learned counsel for the OP argued that the claim of the complainant has been rightly assessed by the Surveyor and Loss Assessor taking into consideration the record whatsoever was submitted by the complainant. Lastly learned counsel for the OP argued that the complaint of the complainant has hopelessly time barred as the cause of action had arisen to the complainant on 24.01.2010 when the fire took place in his shop where the present complaint has been filed on 05.06.2012 after a period of more than 2 years and lastly prayed for dismissal of the complaint.

10.                   After hearing both the parties, we are of the considered view that there is deficiency in service or unfair trade practice on the part of the OP Insurance Company, although the complainant has failed to prove his case by filing cogent evidence that he has suffered a financial loss on account of fire to the tune of Rs. 1,42,979/-   as alleged in the complaint as no such independent expert report has been placed on file to controvert the report of the surveyor and loss assessor Shri Pankaj Goel dated 27.08.2010 (Annexure R-9). The complainant has placed on file only rough estimate of stock lying in his shop as prepared on plan paper and along with this attached some photocopies of purchase bills, however, these bills pertains to February and March, 2009 i.e. much prior to the date of alleged loss. So it cannot be presumed from these bills or rough estimate that complainant has suffered loss to the tune of Rs. 1,42,979/-  as alleged in the complaint. Moreover, there was only coverage for Rs.1 lac on account of fire as per insurance policy in question. So, in this account also the complainant is not entitled to claim Rs.1,42,979/- from the OP Insurance Company. It is settled law the surveyor is the best person and credence should be given to the surveyor report, in the absence of any controverted report or any ambiguity in the report, but in this case complainant has totally failed to point the same. The same view has been held in so many citations by Hon’ble National Commission as well as Hon’ble State Commission that credence should be given to the surveyor report in absence of any ambiguity or contradiction in the Surveyor report.

11.                   Although the OP Insurance Company has settled claim of the complainant according to the report of loss assessor and had already released the payment of Rs.30500/- to the complainant vide cheque No.160676 on 20.04.2012 (Annexure R-4 and R-15)  which was credited in the account of complainant on 23.04.2012 which is duly evident from the photocopy of account statement (Annexure R-12) and letter issued by Bank of India (Annexure R-13) which has not been reubutted by the complainant, even then it cannot be overlooked that OP Insurance Company has made the payment to the complainant on 22.04.2012 whereas the surveyor and loss assessor has submitted his report on 27.08.2010 i.e. the OP Insurance Company has made a payment after near about 1 year 8 months which constitutes the deficiency in service and unfair trade practice on the part of the OP Insurance Company.

12.                   Resultantly, we partly allow the complaint of the complainant and direct the OP Insurance Company to pay interest @ 9% with effect from 27.09.2010 (i.e. after one month from the date of report of surveyor dated 27.08.2010 Annexure R-9) till the releasing of the payment i.e. 22.04.2012 on the amount assessed by the Surveyor i.e. Rs.30,500/-. Further, the OP Insurance Company is also directed to pay Rs.3,000/- as litigation expenses. Order of this forum be complied within a period of 30 days, otherwise the complainant is at liberty to invoke the jurisdiction of this Forum under Section 25 and 27 of the Consumer Protection Act. Copy of this order be supplied to the parties free of cost as per rules. File be consigned to the record room after due compliance.

 

Pronounced in open court.                                         

Dated: 12.07.2017.

 

                                                                                    (ASHOK KUMAR GARG),

                                                                                    PRESIDENT, DCDRF

                                                                                    YAMUNA NAGAR AT JAGADHRI

 

                        (VEENA RANI SHEOKAND)           (S.C. SHARMA)          

                        MEMBER                                           MEMBER