Delhi

StateCommission

CC/08/214

RAWAL APARTMENT PVT. LTD. - Complainant(s)

Versus

TATA AIG GENERAL INSURANCE CO. LTD. AND ANR. - Opp.Party(s)

19 Feb 2018

ORDER

 IN THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION : DELHI

(Constituted under Section 9 of the Consumer Protection Act, 1986)

                                                                    Dates of Arguments: 19.02.18 

                                                                    Date of Decision:      01.03.18 

Complaint  No.213/2008 & 214/2008

In the matter of:

Classic Motors Pvt. Ltd.

Classic House

101, Competent House

E-14, Connaught Place

New Delhi-110001

Through its Authorised reprsenttive

Mr. Harish Malhotra

General Manager                                                                                         …Complainant        

                                                          Versus

 

1. Tata AIG General Insurance Co. Ltd.

Athura Centre, 4^th Floor

82, Mahakali Caves Road

Andheri (E), Mumbai-400093

Through its Chief Executive Officer

 

2.  

 

Bombay House

24, Homy Mody Street

1.  

 

Mr. Chandan Grover

Managing Claims

Tata AIG General Insurance Co. Ltd.

New Friends Colony

New Delhi-110025.…..OppositeParties

 

COMPLAINT No. 214/08

 

M/s Rawal Apartment (P) Ltd.

Classic House

104, Competent House

F-14, Connaught Place,

New Delhi-110001.

Through its Authorised representative

Mr. Harish Malhotra

General Manager                                                                                         ….Complainant

 

 

                                                                        Versus

 

1. Tata AIG General Insurance Co. Ltd.

Athura Centre, 4^th Floor

82, Mahakali Caves Road

Andheri (E), Mumbai-400093

Through its Chief Executive Officer

 

2.  

 

Bombay House

24, Homy Mody Street

1.  

 

Mr. Chandan Grover

Managing Claims

Tata AIG General Insurance Co. Ltd.

New Friends Colony

New Delhi-110025.…..OppositeParties

 

CORAM

 

Hon’ble Sh. O.P.Gupta, Member(Judicial)

Hon’ble Sh. Anil Srivastava, Member

1.Whether reporters of local newspaper be allowed to see the judgment?  Yes/No

2. To be referred to the reporter or not? Yes/No

SHRI ANIL SRISVASTAVA(MEMBER)

                                                JUDGEMENT

          By this common order we shall be deciding two cases bearing No. C-213/08 titled as Classic Motors vs. TATA AIG General Insurance Company and C-214/08 titled as Rawal Apartment vs. TATA AIG General Insurance Company as both are based on similar facts. Controversy raised is same.  Case No. C-213/08 is being taken as lead case. Facts are being narrated from the same.

2.       Initially the complainant filed similar complaint which was registered as No. C-65/08 which was disposed of vide order dated 15.05.08 with directions to the OP to take a final decision as to the loss suffered by complainant one way or the other on the basis of documents furnished by complainant as the OP was insisting upon complainant to furnish requisite documents which complainant did not provide inspite of 15 reminders.  OP was to take decision within two months from receipt of copy of the said order.  It was made clear that in case complainant was still aggrieved, he might file fresh complaint and limitation would commence from date of communication of decision of OP insurance company.  This is how the present complaint has been filed.

3.       The case of the complainant is that OP 1 issued policy No.658000755 to complainant under which properties of the complainant namely plant and tools  for Rs. 50,78,961/-, building and structure including plinth and foundation for Rs. 33,92,495/-  at A-3, Mohan Cooperative Industrial Estate, Main Mathura Road, Delhi-110044 was insured. The same covered losses/damages due to very heavy rain/water logging/flood. During the validity of the policy the complainant suffered complete damage/loss on account of heavy rain causing flood/water logging in the midnight between 17^th and 18^th July, 2006. That caused extensive loss and was reported by the complainant to the OP.  Copy of weather report pertaining to dates in question has been filed alongwith complaint as Annexure-C.

4.       OP appointed Shri Atul Kapoor as surveyor to conduct survey/investigation in the matter, on 11.08.06. The surveyor confirmed losses caused to the property of the complainant. He demanded certain documents from the complainant vide letter dated 14.08.06 which was delivered by the complainant on 23.08.06.  The complainant suffered estimated loss of Rs. 34,71,714/- but lodged insurance claim of Rs. 27,92,021/- towards plant and tools.  It submitted another claim of Rs. 33,92,495/- towards building and structure though estimated loss under that heading was 41,16,136/-.  The surveyor vide letter dated 08.09.06 required complainant to send some more documents which were duly sent vide letter dated 12.09.06, 13.09.06 and 20.09.06.  It also sent sales account on 07.10.06. OP sent yet another letter on 17.10.06 requiring the complainant to send some more documents. The said documents were already available with the OP and was brought to the notice of the OP.  Letters from surveyor and from OP demanding documents every time became unending process.  The complainant sent yet another letter dated 07.08.07 clarifying each and every query raised by the OP and once again furnished set of 196 pages containing documents required by OP.  The OP still demanded details of the documents vide letter dated 15.09.07.  OP had undergone the ritual of recording statement of employee of the complainant on 23.01.07. OPs offered Rs. 10,00,000/- towards final lump sum settlement of the claim which was declined by complainant. The complainant suffered unbearable harassment, mental torture and agony for which it claimed Rs. 20,00,000/-.  It also claimed the amount of insurance claim towards both the heads. The complainant prayed for interest @ 18% per annum and Rs. 50,000/- towards litigation expenses.

5.       OPs filed WS raising preliminary objections that as per report of the licenced and independent surveyor, it offered Rs.95,420/- to the complainant vide letter 10.07.08.  However taking of policy for the amount as specified in the complaint were not disputed.  The intimation of the loss was received on 10.08.06 i.e. after 23 days of loss which occurred on 18.07.06 which denied OP reasonable opportunity to inspect cause of loss. Weather report dated 14.05.07 was procured almost 10 months after the loss.  Surveyor recorded violation of terms and conditions of the policy.  It denied that complainant suffered loss of Rs. 34,71,714/- under the head plant and machinery or Rs. 41,16,136/- under the heading of building, structure and plinth for foundation.  The claimant had claimed entire amount insured in respect of building whereas building structure was totally intact.  It was not the complainant’s case that entire building collapsed.  It denied its offer of Rs. 10,00,000/- as lump sum settlement.  The complainant was unable to show proof of ownership of bowling alley.  Insurance was taken on WDV (book value) or depreciating value, somewhat for only 6.61% of the cost of replacement which meant that the combined effect of depreciation and under insurance was as higher as 93.39%.  It prayed for dismissal of the complaint.

6.       Complainant filed rejoinder and affidavit of Shri Harish Malhotra, General Manager in evidence.  Complainant referred to documents as exhibit as CW1/1, CW1/A, CW1/B, CW1/C,  CW1/C-2, CW1/D to CW1/L.

7.       OP also filed affidavit of surveyor. OP filed affidavit of Shri Mohd Azhar Wasi, Claims Manager in additional evidence. It referred to terms and conditions of policy Ex. RW 1/A and closer letter Ex RW 1/D, policy governs right duties and obligation of complainant and OP both as has been held  by Hon’ble Supreme Court in United India Insurance Company vs. Harchand Rai Chandan Lal IV (2004) CPJ 15. To that extent OP is correct.  But law has gone to the extent that policy should not be issued to dub the claim of complainant only with view to accept premium and thereafter find fault with the claim on one ground or the other.  For this reliance may be placed on decision of National Commission in Parveen Damani IV (2006) CPJ 189.  Para 19 of the judgement is relevant for this purpose.

8.       It was held in Raj Kumar vs. Raj Gadhia 1993 (3) SCC 465 that whenever two interpretations are available, one in favour of the insured must be taken.

9.       The other objection taken by the OP is that there was delay of 23 days in informing the incident to the OP. For that it has relied upon decision of National Commission in FA No., 321/05 titled as New India Assurance Company vs. Trilochan Jane decided on 09.12.09.

10.     However counsel for the complainant submitted that subsequently   IRDA issued a circular that insurance company should not reject the claim on technical plea, rather it should attempt to reject the claim only if there are substantial grounds for it.  It was specifically mentioned in the circular that delay in intimation alone is not a ground for rejection of the case. To the same effect is decision of Hon’ble Supreme Court in Om Prakash vs. Reliance General Insurance 2017 (9) SCC 724.

11.     It was held in Trilochan Jane itself relied upon by the counsel for the OP that immediately does not mean at once.  It can be in reasonable period.  On the facts of this case where there was a complete loss, we feel that first option of the complainant was to manage its property, save the residuary property and then file a claim.  Viewed from that angle intimation within 23 days is within reasonable time.

12.     On merits counsel for the complainant submitted that the incident is not disputed by the OP. Rather the same is substantiated by report of the weather office.  The plea of the OP that report of weather office was procured after 10 months is farce upon farce. It is based on record maintained in weather office which is a Govt. Department.

13.     We have gone through the surveyor report filed by OP in C-214/08 which Annexure R-3 to written statement  at page 32 to 38 of the bunch of documents filed alongwith WS.  It recites in para 5.3 that repair estimate was basically in respect of pinsetter, ball return system and foul detector of bowling alley.  Original cost of each of the items was given separately in the original purchase bill.  The insurance was taken on depreciating value calculated based on original cost and years used.  Overhauling charges claimed were much more than the insurance value for each of the above part. Hence assessment has been made on the basis of sum insured less estimated salvage @ 10% .  Damage of bowling pin, balls, shoes etc. was apparently due to wear and tear and not due to water.  Hence the same was excluded.  Regarding stocks (parts and tools) stored in the basement it is mentioned that same was due to seepage which was prolonging for period of time.  Hence it was not related to sudden accidental flooding.  Lastly the loss of assets of Rs. 3,12,301/-after reducing the same by 5% it has been worked out at Rs. 2,96,686/-.  The report is quite reasoned and must be accepted as per decision of National Commission in Champa Lal Verma vs. Oriental Insurance Company Ltd. III (2008) CPJ 93 which has been relied upon by the OP.

14.     Counsel for the OP stressed upon clause 10 of the terms and conditions which provide for undervaluation of value of profit at the time of taking policy. For that it has been provided that insurer may make a rateable  proportion of the loss that must have been taken into account by the surveyor.

15.     Counsel for the complainant submitted that machine was such which could be repaired by one person only and complainant had no option but to get the same repaired from that person only. However no such averment has been made in the complaint.  Any argument beyond pleading cannot be permitted.

16.     We specifically asked the counsel for the complainant as to what was the value of the machine and tools for which estimated cost of repair was  assessed around Rs. 40,00,000/-.  He replied that it was around Rs. 32,00,000/-  We straightway put to him that machine worth Rs. 32,00,000/- cannot be believed to have been got repaired by spending Rs. 40,00,000/-  He replied that cost of machine at the time of estimate of loss was much more than Rs. 40,00,000/- and if the complainant preferred to purchase a new machine the salvage was to go useless.  Again the arguments are of the record.

17.     Infact we may mention that complainant has filed only estimate of the cost of repair.  He has not filed the actual bill of repair and payment thereof.

18.     Thus OP is bound to pay the sum assessed by the surveyor which is Rs.2,96,686/- in case No. 214/08 and Rs.95,420/- in case No. 213/08.  Besides that since OP has been withholding the amount due to the complainant since the occurring of the loss in 2006, it must compensate the complainant by paying interest @ 12% per annum from the date of loss till the date of payment.

19.     Not only this the OP is also liable to pay Rs. 50,000/- for harassment, torture and Rs. 50,000/- for cost of litigation in each case.

20.     For the foregoing reasons OP is directed to pay sum assessed by the surveyor alongwith interest @ 12% per annum from the date of loss till the date of payment with Rs. 50,000/- for compensation and Rs, 50,000/- for litigation in each case.

          One copy of this order be kept in Complaint file No. 214/2008.

          One copy of the order be sent to both the parties free of cost.

 

(ANIL SRIVASTAVA)                                                                                       (O.P.GUPTA)

MEMBER                                                                                             MEMBER(JUDICIAL)