This complaint coming up before us for hearing on 07-05-15 in the presence of Sri P.V.Ramana, Advocate for complainant and Sri D.V.Sainath, Advocate for 1st opposite party, and Sri. S.A.Khadar, Advocate for 2nd opposite party, upon perusing the material on record, after hearing both sides and having stood over till this day for consideration this Forum made the following:-
O R D E R
Per Sri A. Hazarath Rao, President:-
The complainant filed this complaint U/s.12 of the Consumer Protection Act seeking a direction to the opposite parties to indemnify the loss of stock worth of Rs.4,25,893/-; Rs.50,000/- towards mental agony and Rs.25,000/- towards legal expenses.
2. In nutshell the complaint averments are these:
The complainant is running liberty public shoe mart for earning his livelihood. The complainant availed Rs.2,00,000/- from the 1st opposite party and is discharging that loan amount in installments. The 1st opposite party without consent and knowledge of the complainant voluntarily and unilaterally covered the insurance with the 2nd opposite party. The said policy is business package insurance policy vide policy No.0000000000943640-01and the said policy covered the period from 29-04-14 to 28-04-15. The nature of policy is a comprehensive one and covered the loss caused to the complainant’s shop against all risks. The complainant did not open the shop on 06-10-14 as busy in making arrangements of his brother’s son’s marriage. On the intervening night of 6/7-10-14 an unidentified lorry dashed complainant’s shop and fled away. Due to the said accident showcase and shutter of the complainant’s shop were broken. A big hole was caused to the shutter on account of the said accident. Due to the said advantage some unknown offenders looted the stock worth of Rs.4,80,000/- approximately. The complainant noticed the above theft and looting of his shop on 18-10-14. The complainant approached the 1st opposite party personally on the same day and informed the same to the bank officials. The bank officials informed the complainant that loss can be indemnified in view of insurance policy. The complainant on the advice of the 2nd opposite party approached the S.H.O, Kothapet P.S. and lodged a complaint on 11-05-14 who in turn registered the case as Cr.No.523/14 U/s.380 IPC. The complainant through e-mail informed about the accident to the opposite parties and the 2nd opposite party in its turn appointed a surveyor namely Shivasankar. The said Shivasankar inspected the shop, assessed the loss and issued a letter to the complainant on 21-10-14. The complainant in the 3rd week of November, 2014 submitted claim form along with all relevant documents including statement of account, inventory and trading account for the period from 01-04-14 to 06-10-14. The 2nd opposite party orally rejected the claim. The opposite parties 1&2 thus committed deficiency in service. The complaint therefore may be allowed.
3. The contention of the 1st opposite party in brief is thus:
The 1st opposite party acted as an agent for the 2nd opposite party and remitted the premium paid by the complainant with the 2nd opposite party towards policy of insurance, the settlement of claim will be between the complainant and the 2nd opposite party only. The 1st opposite party has nothing to do with the settlement of claim. The complainant had not explained the reason for the delay in giving report to the police. No prudent person would wait for about a month to lodge a complainant with the police with regard to accident and theft. No sane person could not visit his shop when received information about the accident. The 1st opposite party did not commit any act amounting to deficiency in service. Rests of the allegations contra mentioned in the complaint are false and are invented by the complainant to suit his claim. The complaint therefore may be dismissed.
4. The contention of the 2nd opposite party in brief is thus:
The complaint is not maintainable either in law or on facts. The complainant took business package insurance policy to his liberty public shoe mart and it covered the period from 29-04-14 to 28-04-15.(wrongly mentioned as 2017) The complainant availed the services of the 2nd opposite party for business purpose and as such is not a consumer. The policy does not cover the risk of theft and it is an excluded peril. The complainant’s claim therefore is not admissible. The complainant gave information to the 2nd opposite party after eleven days of incident and as such the 2nd opposite party lost an opportunity to investigate the matter immediately. The 2nd opposite party immediately deputed a surveyor L.Shivasankar after the complainant giving intimation. The 2nd opposite party by registered letter dated 30-01-15 informed the complainant that his claim was repudiated. The 2nd opposite party thus did not commit any act amounting to deficiency in service. The complaint therefore may be dismissed.
5. Exs.A-1 to A-9 on behalf of complainant and Exs.B1 to B-3 on behalf of the 2nd opposite party were marked.
6. Now the points that arose for consideration in this case are these:
1. Whether the complainant is a consumer under the purview of the
Consumer Protection Act?
2. Who among the opposite parties committed deficiency in service?
3. Whether the complainant is entitled for compensation as claimed?
4. To what relief?
7. Admitted facts in this case are these:
a). The complainant availed loan for his business from the 1st opposite party.
b). The 2nd opposite party issued insurance policy covering the period from 29-04-14 to 28-04-15. (Exs.A-2 = Ex.B-1).
c). The 2nd opposite party appointed surveyor and he submitted his report (Ex.B-2).
d). The 2nd opposite party repudiated the claim on 30-01-15.
(Ex.B-3).
e). The complainant gave report to the S.H.O., Kothapet P.S. on 05-11-14 who in turn registered the case as Cr.No.523/14 U/s.380 IPC (Ex.A-3).
8. POINT No.1:- The 2nd opposite party issued Ex.A-1 policy to the complainant in respect of the stock of liberty public shoe mart. As the 2nd opposite party issued Ex.A-1 for consideration the complainant is a consumer under the purview of the Consumer Protection Act. The complainant is not trading in insurance business. We therefore opine that the complainant is a consumer under the purview of the Consumer Protection Act. We therefore answer this point in favour of the complainant.
9. The complainant filed this complaint on the basis of Ex.A-1 insurance policy issued by the 2nd opposite party. Under those circumstances the 1st opposite party in no way is answerable to the claim of the complainant. We therefore opine that the claim against 1st opposite party is not maintainable.
10. POINT NO.2:- The complainant in para 3(b) of his complainant mentioned that the 1st opposite party without his consent and knowledge unilaterally covered the insurance of his own group i.e; SBI general insurance …. the nature of the policy is comprehensive, and it covered against all risks. Ex.A-2 policy covered the risks 1) STF (2) earth quake (fire and shock) and 3) RSMD fire. The 2nd opposite party filed terms and conditions of the policy. In Ex.B-1 at page 15 the 2nd opposite party excluded theft under certain circumstances. The complainant while pleading ignorance of policy based his claim on insurance. The complainant cannot approbate and reprobate.
11. According to complainant accident took place on the intervening night of 6/7-10-14 due to hit by unidentified lorry and its impact made a hole in shutter and on account of it some unknown offenders looted the complainant’s stock. The complainant gave report to police on 05-11-14. The relevant portion in Ex.A-3 report given to police is extracted below for better appreciation:
6-10-2014 వ తేదీన రాత్రి ఉదయం 7-10-2014 షుమారు రాత్రి 2.30 నిమిషములకు గుర్తు తెలియని లారీ గుద్ది వెళ్ళిపొయినది. మా షాప్ షోకేస్ మరియు షట్టర్ పగిలి విరిగి షాప్ కు పెద్ద రంధ్రము ఏర్పడినది. నేను నా తమ్ముళ్ళు వచ్చి చూడగా షాప్ లో చెప్పులు బూట్లు 4000 జతలు షుమారుగా పోయినవి 4.80.000/- షుమారుగా విలువ కలుగుతుంది. 18-10-2014 తేదీన బ్యాంకు వద్దకు నేను వల్లి జరిగిన వాస్తవము బ్యాంకు వారికి చెప్పినాను. వాళ్ళు మీ చెప్పులకు బూట్లకు సరుకు మీద ఇన్సురన్సు వున్నది అని చెప్పగా నాకు తెలిసినది.
12. The above averments revealed that the complainant informed the insurer on 18-10-14 i.e., after delay of eleven days. It is the case of the complainant that the delay was due to busy with his brother’s son’s marriage. Ex.A-8 is the copy of wedding card and it revealed that marriage of complainant’s relative took place on 17-10-14.
13. The complainant’s shop was located in Rajaram Municipal Complex, Zinna Tower Centre, Guntur and it is a busy locality. The said accident and looting of the complainant’s shop cannot be unnoticed by any public as rightly contended by the learned counsel for the opposite parties. The silence on the part of complainant for a period of eleven days in not informing to the police and to his insurer raised genuine doubt in the minds of insurer. No prudent person will keep quite without giving report to police in the least. Therefore the reason given by the complainant for lodging report at a belated stage in our considered opinion is not believable and as such cannot be accepted.
14. Clause 7(1) of Ex.B-1 (at page 17) reads as follows:
7(i) On the happening of any loss or damage the insured shall forthwith give notice thereof to the company and shall within 15 days (for claims under section ii, not later than thirty days after the expiry of the period of indemnity) after the loss or damage, or such further time as the company may in writing allow in that behalf, deliver to the company.
a. A claim in writing for the loss or damage containing in particular an account as may be reasonably practicable of all the several articles or items or property damaged or destroyed, and of amount of the loss or damage thereto respectively, having regard to their value at the time of the loss or damage not including profit of any kind.
b. Particulars of all other insurance, if any.
The insured shall also at all times at his own expense produce, procure and give to the company all such further particulars, plans, specification books, vouchers, invoices, duplicates or copies thereof, documents, investigation reports (internal/external), proofs and information with respect to the claim and the origin and cause of the loss and the circumstances under which the loss or damage occurred, and any matter touching the liability or the amount of the liability of the company as may be reasonably required by or on behalf of the company together with a declaration on oath or in other legal form of the truth of the claim and of any matters connected therewith.
15. In this case there was a delay of eleven days in informing the insurer and further delay in giving report to police. The learned counsel for the 2nd opposite party relied on the decision reported in FA 321 of 2005 decided on 09-12-2009 by NCDRC.
16. In New India Assurance Company Limited Vs. Trilochan Jane (FA 321 of 2005 decided on 09-12-2009) it was held
“In the case of theft where no bodily injury has been caused to the insured, it is incumbent upon the respondent to inform the police about the theft immediately, say within 24 hours, otherwise, valuable time would be lost in tracing the vehicle. Similarly, the insurer should also be informed within a day or two so that the insurer can verify as to whether any theft had taken place and also to take immediate steps to get the vehicle traced. The insurer can coordinate and cooperate with the police to trace the car Delay in reporting to the insurer about the theft of the car for 9 days, would be a violation of condition of the policy as it deprives the insures of a valuable right to investigate as to the commission of the theft and to trace/help in tracing the vehicle.
Hon’ble Supreme Court of India in United India Insurance Company Limited Vs. M/s. Harchand Rai Chandan Lal reported in JT 2004(8) SC 8 has held that the terms of policy have to be construed as it is and nothing can be added or subtracted from the same. The policy provides that in the case of theft, the matter should be reported ‘immediately’. In the context of a theft of the car, word ‘immediately’ has to be construed strictly to make the insurance company liable to pay the compensation.
To the similar effect, is the Judgment of this Commission in The New India Assurance Company Limited Vs. Shri Dharam Singh and Another in First Appeal No.426 of 2004 decided on 04-07-2006.
Taking a clue from the above decision it can be said that the delay caused by the complainant in giving intimation to the insurer and report to the police is fatal and therefore disentitles him to the reliefs sought. We therefore hold that the 2nd opposite party has rightly repudiated the claim and did not commit any act amounting to deficiency in service. In view of the above mentioned discussion we answer this point against the complainant.
17. POINT NO.3:- In view of our findings on point No.2 the complainant is not entitled to any compensation much less the amounts claimed and answer this point also against the complainant.
18. POINT NO.4:- In view of above findings in the result the complaint is dismissed without costs.
Typed to my dictation by Junior Stenographer, corrected by me and pronounced in the open Forum dated this the 13th day of May, 2015.
MEMBER PRESIDENT
APPENDIX OF EVIDENCE
DOCUMENTS MARKED
For Complainant:
Ex.No | DATE | DESCRIPTION OF DOCUMENTS |
A1 | - | Copy of PAN Card. |
A2 | - | Copy Of Policy Schedule |
A3 | 05-11-14 | Copy Of First Information Report |
A4 | 03-11-14 | Copy of grievance cell. |
A5 | - | Copy of trading account. |
A6 | 21-10-14 | Copy of surveyor letter. |
A7 | 24-10-14 | Copy of statement of account. |
A8 | - | Copy of wedding card. |
A9 | - | Copy of details of estimate of loss. |
For opposite parties:
Ex.No | DATE | DESCRIPTION OF DOCUMENTS |
B1 | - | Copy of policy with terms and conditions. |
B2 | 20-12-14 | Copy of surveyor report. |
B3 | 30-01-15 | Copy of repudiation letter. |
PRESIDENT
NB: The parties are required to collect the extra sets within a month after receipt of this order either personally or through their advocate as otherwise the extra sets shall be weeded out.
