Haryana

Karnal

CC/492/2020

Chander Deep Arora - Complainant(s)

Versus

Tata AIG General Insurance Company Limited - Opp.Party(s)

Rajesh Kumar Saini

17 Sep 2024

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KARNAL.

 

                                                        Complaint No.492 of 2020

                                                        Date of instt 06.11.2020

                                                        Date of Decision: 17.09.2024

 

Chander Deep Arora, proprietor Mahadev Iron & Bottle Store, New Bahadur Chand Colony, Hansi Road, Karnal.

                                                                        …….Complainant.

                                              Versus

 

Tata AIG General Insurance Company Limited, 2^nd floor, SCO 232/234, Sector 34, Chandigarh-160022 through its Divisional Manager.

 

…..Opposite Party.

 

Complaint under Section 35 of Consumer Protection Act, 2019.

 

Before   Shri Jaswant Singh……President.     

              Ms. Neeru Agarwal…….Member

      Ms. Sarvjeet Kaur…..Member

 

Argued by:  Shri Kuldeep Singh, counsel for the complainant.

                    Shri Naveen Khetarpal, counsel for the OP.

                   

                     (Neeru Agarwal, Member)

 

ORDER:   

                

                The complainant has filed the present complaint under Section 35 of the Consumer Protection Act, 2019 against the opposite party (hereinafter referred to as ‘OP’) on the averments that complainant purchased policy bearing no.2270315852, valid from 26.02.2020 to 25.02.2021, for which complainant paid a premium of Rs.15,800/- to the OP. The theft in the shop was also covered. On 22.04.2020, there was a complete lockdown in the country due to outbreak of Corona Virus and due to this reason, the security guard of the complainant was not present on the godown and taking the benefit of the same, some unknown persons had stolen plastic scrap worth Rs.2,65,356/-, plastic Danna worth Rs.2,19,834/-, battery worth Rs.16,800/-, inverter worth Rs.4500/- i.e. total sum of Rs.5,06,490/- from the godown of the complainant. The intimation was given to the OP. Due to lockdown, the FIR no.242 dated 25.04.2020 under section 380,457 IPC was registered late in Police Station City, Karnal. The surveyor was appointed, who inspected the premises. All the formalities were completed by the complainant and he also submitted all the requisite documents as required and demanded by the OP. Thereafter, complainant requested the OP number of times to pay the amount of Rs.5,06,490/- but OP did not pay any heed to the request of complainant and vide email dated 24.06.2020, OP informed the complainant that an amount of Rs.48,986/- will be given whereas the loss occurred to the complainant was Rs.5,06,490/- and as per the terms and conditions of the abovesaid policy, the OP is liable to pay the said amount. Due to the said act and conduct of OP, complainant has suffered mental pain, agony and harassment as well as financial loss. In this way there is deficiency in service and unfair trade practice on the part of the OP. Hence complainant filed the present complaint seeking direction to the OP to pay Rs.5,06,490/- alongwith interest @ 18% per annum to the complainant till its realization, to pay Rs.1,00,000/- as compensation for harassment, mental pain and agony and Rs.55,000/- as litigation expenses.

2.             On notice, OP appeared and filed its written version raising preliminary objection with regard to maintainability; jurisdiction cause of action; locus standi and concealment of true and material facts. On merits, it is pleaded that the present complaint is pre-mature, as claim of the complainant was processed as per policy terms and conditions. However, same could not be paid as complainant failed to give consent. It is further pleaded that the OP had issued a Business Guard Policy No.2270315852 from 26.02.2020 to 25.02.2021 covering risk of stocks/stocks in process for sum insured of Rs.40,00,000/-. The policy alongwith complete terms and conditions were duly supplied and accepted by the complainant. On receipt of intimation, OP appointed an IRDA licensed independent surveyor namely M/s Taarani Insurance Surveyors and Loss Assessors Pvt. Ltd. for survey and loss assessment. After survey and loss assessment, said surveyor submitted their report dated 24.06.2020 and as per said report, net liability of company comes to Rs.48,286/- as per terms and conditions and providing requisite documents. The loss was assessed to the tune of Rs.48,286/- on basis of own submission of the complainant to police and statement to surveyor. After receiving report, in order to process the claim of complainant, as per terms and conditions of the policy, the OP requested the complainant to provide following requisitioned documents vide email dated 13.07.2020:-

.       EFT Mandate (Blank format enclosed)- fully filled, signed and stamped alongwith counter signed and stamped by SBI Bank-Scan copy.

.       Scan copy of cancelled cheque.

.       Attested copy of PAN card.

.       Certificate of Incorporation and Memorandum of Association.

        But the complainant neither provide required documents/ information nor replied the same. Claim of the complainant is still pending because of none providing the documents. It is further pleaded that the assessment of loss was done on the basis of FIR and statement given by the complainant. As per the FIR, the complainant had mentioned that 15 bags of 25 bags plastic dana and some scrap has been found stolen. However, during processing of the claim, as per own hand written and signed statement by the complainant, 80 bags of plastic dana and 90 bags of scrap were stolen. During assessment of loss, the quantity of loss with respect to plastic dana was restricted as per the details available in FIR. However, on the basis of statement of complainant the loss was assessed as Rs.48,286/-. There is no deficiency in service and unfair trade practice on the part of the OPs. The other allegations made in the complaint have been denied and prayed for dismissal of the complaint.

3.             Parties then led their respective evidence.

4.             Learned counsel for the complainant has tendered into evidence affidavit of complainant Ex.CW1/A, copy of insurance policy Ex.C1, copy of FIR Ex.C2, copy of stock statement dated 31.01.2020 Ex.C3, copy of trading account statement Ex.C4 to Ex.C6, copy of ledger account Ex.C7, copy of bank stock statement Ex.C8, copy of letter pad head Ex.C9, copies of bills Ex.C10 and Ex.C11, copy of CA report Ex.C12, Form GSTR-3B Ex.C13, copy of gmails claim Ex.C14, copy of legal notice and postal receipt Ex.C15, copy of battery and inverter bill Ex.C17 and closed the evidence on 19.01.2023 by suffering separate statement.

5.             On the other hand, learned counsel for the OP has tendered into evidence affidavit of Amit Chawla, DVP Legal Ex.RW1/A, copy of survey report Ex.R1, copy of claim form Ex.R2, copy of reminders by email Ex.R3, copy of policy schedule Ex.R4 and closed the evidence on 11.09.2023 by suffering separate statement.

6.             We have heard the learned counsel for the parties and perused the case file carefully and have also gone through the evidence led by the parties.

7.             Learned counsel for complainant, while reiterating the contents of the complaint, has vehemently argued that complainant during subsistence of insurance policy, some unknown persons had stolen plastic scrap worth Rs.2,65,356/-,  plastic Danna worth Rs.2,19,834/-, battery worth Rs.16,800/-, inverter worth Rs.4500/- i.e. total sum of Rs.5,06,490/- from the godown of the complainant. The intimation was given to the OP and FIR No.242 dated 25.04.2020 under section 380,457 IPC was got registered late in Police Station City, Karnal. The OP appointed a surveyor, who inspected the premises and the complainant handed over all the requisite documents to the surveyor.  The OP has informed the complainant that an amount of Rs.48,986/- will be given to him whereas the loss occurred to the complainant was to the tune of Rs.5,06,490/-. In this way there is deficiency in service and unfair trade practice on the part of the OP and lastly prayed for allowing the complaint.

8.             Per-contra, learned counsel for the OP while reiterating the contents of the written version has vehemently argued that complaint is pre-mature, as claim of the complainant was processed as per policy terms and conditions but the same could not be paid as complainant failed to give consent. As per surveyor report dated 24.06.2020, net liability of company comes to Rs.48,286/-. The said loss was assessed on basis of own submission of the complainant to police and statement to surveyor. Hence, there is no deficiency in service and unfair trade practice on the part of the OPs and lastly prayed for dismissal of complaint.

9.             We have duly considered the rival contentions of the parties.

10.           Admittedly, the complainant purchased insurance policy for a sum assured of Rs.40,00,000/- from the OP which was valid from 26.02.2020 to 25.02.2021. During subsistence of insurance policy, the theft has taken place on 22.04.2020 in the insured premises. It is also admitted that intimation of theft was given to the OP as well as to the police. It is also admitted that the incident took place during the period complete lockdown in the country due to COVID-19. 

11.           The complainant has alleged that some unknown persons had stolen plastic scrap worth Rs.2,65,346/-, plastic daana worth Rs.2,19,834/-, battery worth Rs.16,800/- inverter worth Rs.4500/-, totaling Rs.5,06,490/- from his insured godown. To prove his case the complainant has relied upon copies of trading account Ex.C3 to Ex.C6, wherein the closing stocks for the year 2019-2020 is to the tune of Rs.2,49,34,316.39/-. The complainant has also placed on file copy of ledger account of 2019-20 Ex.C7, copy of statement of stock and book debts Ex.C8, copies of tax invoices Ex.C10, copy of chartered Accountant Audit Report Ex.C12. From the said documents, it is proved that the huge stocks was lying in the insured godown of the complainant.

12.           On receipt of information of theft, the OP has appointed a surveyor who after investigation, submitted his report dated 24.06.2020 Ex.R1 and assessed the net liability to the tune of Rs.48,286/- only.  As per surveyor report the complainant has claimed the loss to the tune Rs.4,60,320/-. In the said report, the surveyor of the OP has assessed the loss by only considering the First Information Report Ex.C2. The said FIR was got lodged by the complainant on 24.04.2020 i.e. during the complete lockdown in the country. It is not possible for the complainant to go and check his premises thoroughly as there were restrictions of moving by the Centre as well as State Governments in the country due to COVID-19. Hence, the complainant got lodged the FIR without describing the complete theft items of the premises.

13.           The surveyor of the OP in his report made unnecessary deductions without giving any cogent and convincing justifications.  It appears that the surveyor of the OP has prepared the said report only on the basis of assumption and presumption which is not tenable in the eyes of law.

14.           In other words although the assessment of loss by the approved surveyor is a prerequisite for payment or settlement of claim by insurer, but surveyor's report is not the last and final word. It is not that sacrosanct that it cannot be departed from; it is not conclusive. The approved surveyor's report may be basis or foundation for settlement of a claim by the insurer in respect of the loss suffered by the insured but surely such report is neither binding upon the insurer nor insured. The surveyor’s report certainly can be taken note as a piece of evidence until more reliable evidence is brought on record to rebut the contents of the surveyor’s report. In this regard, we placed reliance on the case law titled as New India Assurance Company Limited vs. Pradeep Kumar (2009) 7 SCC 787 and referred to para 21 and 22 which read as hereunder: - “21. Section 64-UM(2) of the Act, 1938 reads:

"64-UM. (2) No claim in respect of a loss which has occurred in India and requiring to be paid or settled in India equal to or exceeding twenty thousand rupees in value on any policy of insurance, arising or intimated to an insurer at any time after the expiry of a period of one year from the commencement of the Insurance (Amendment) Act, 1968, shall, unless otherwise directed by the Authority, be admitted for payment or settled by the insurer unless he has obtained a report, on the loss that has occurred, from a person who holds a licence issued under this section to act as a surveyor or loss assessor (hereafter referred to as "approved surveyor or loss assessor"):

Provided that nothing in this sub-section shall be deemed to take away or abridge the right of the insurer to pay or settle any claim at any amount different from the amount assessed by the approved surveyor or loss assessor." The object of the aforesaid provision is that where the claim in respect of loss required to be paid by the insurer is Rs.20,000/- or more, the loss must first be assessed by an approved surveyor (or loss assessor) before it is admitted for payment or settlement by the insurer. Proviso appended thereto, however, makes it clear that insurer may settle the claim for the loss suffered by insured at any amount or pay to the insured any amount different from the amount assessed by the approved surveyor (or loss assessor).

15.           This proposition of law was followed by the Hon’ble Apex Court in Sikka Papers Limited vs. National Insurance Company Ltd. & Ors. (III (2009) CPJ 90 (SC). The Hon’ble Chhatisgarh State Consumer Disputes Redressal Commission, Raipur in case titled as Oriental Insurance Co. Ltd. & Anr. Versus Pukhraj Bothra, IV (2004) CPJ 615 has held that “it is true that normally the estimate of surveyor regarding loss has to be given due consideration but it cannot be said to be the last word for determination of actual loss”. The above said authorities are fully applicable to the facts and circumstances of the present case.

16.           Furthermore, now a days it has become a trend of insurance companies, they issue the policies by giving false assurances and when insured amount is claimed, they make such type of excuses. Thus, the denial of the claim of complainant is arbitrary and unjustified. In this regard, we place reliance on the judgment of Hon’ble Punjab and Haryana High Court titled as New India Assurance Company Ltd. Versus Smt. Usha Yadav & others 2008 (3) RCR (Civil) 111, wherein the Hon’ble Punjab and Haryana High Court has held as under:-

“It seems that the Insurance Companies are only interested in earning the premiums which are rather too stiff now a days, but are not keen and are found to be evasive to discharge their liability. In large number of cases, the Insurance companies make the effected people to fight for getting their genuine claims. The Insurance Companies in such cases rely upon clauses of the agreements, which a person is generally made to sign on dotted lines at the time of obtaining policy. This is, thus pressed into service to either repudiate the claim or to reject the same. The Insurance Companies normally build their case on such clauses of the policy, but would adopt methods which would not be governed by the strict conditions contained in the policy”.

 

17.           Keeping in view, the ratio of the law laid down in aforesaid judgment, facts and circumstances of the present complaint, the act of the OP while assessing the claim of the complainant amounts to deficiency in services and unfair trade practice.

18.           The complainant has claimed Rs.5,06,490/-, whereas the complainant has submitted the documents/proof of loss to the surveyor to the tune of Rs.4,60,320/-. However, keeping in view the fact that the stolen goods may be old and requires for depreciation, thus it would be justified if the reasonable amount of Rs.3,00,000/- be awarded to the complainant for loss of goods alongwith compensation for mental agony and litigation expenses. 

19.           Thus, in view of the above discussion, we partly allowed the present complaint and direct the OP to pay Rs.3,00,000/- (Rs. Three lacs only) to the complainant alongwith interest @ 9% per annum from the date of filing of the complaint i.e. 06.11.2020 till its realization to the complainant. We further direct the OP to pay Rs.25,000/- to the complainant on account of mental agony and harassment suffered by him and Rs.11,000/- for the litigation expense.  This order shall be complied within 45 days from the date of receipt of copy of this order. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

Dated: 17.09.2024                                                           

                                                                  President,

                                                     District Consumer Disputes

                                                     Redressal Commission, Karnal.

 

(Neeru Agarwal)         (Sarvjeet Kaur)

                    Member                 Member