Karnataka

Belgaum

CC/511/2013

Pushpalata P Patil - Complainant(s)

Versus

The Branch Manager Kalyan Jewellers India. - Opp.Party(s)

S R Sakri

11 May 2015

ORDER

O R D E R

By: Shri. B.H.Shreeharsha : President.

1.      The complainant has filed this complaint claiming for a direction to the respondents to reimburse Rs.59337/- with interest @12% from 23.08.2012, to pay Rs.30,000/- as compensation for mental agony, Rs.5,000/- towards cost of the proceedings and to grant such other reliefs.

Brief facts of the case are as under:

2.      The case of the complainant is that, complainant had purchased a chain with gross and net weight 18.6 grams of worth Rs.59337/- on 10.11.2011 under receipt no.16424 at Rs.2687/- per gram from Kalyan Jewelers Belgaum. The said golden ornament was insured with the respondents covering the risk under the policy no.35006884 and the complainant had paid Rs.296.685 towards the premium and processing fee. While and during the coverage of the risk on 07.02.2012 the said ornament was lost by the complainant near Jogulabhavi Honda Saundatti. Immediately on 11.02.2012 police complaint was registered under Crime NO.0076/12 of Saundatti Police station. Accordingly C -summary was filed by the police before JMFC Court. Thereafter the complainant lodged claim to the respondents with all documents and police records. But claim was not settled. Complainant got issued legal notice to the respondents on 20.05.2013. R1 till date not replied. While R2 in their reply letter suggests the claim is pertaining to respondent.3 and to approach the respondent.3. But till today there is no response and also not settled the claim. While the respondent.2 sent another letter to the complainant stating copies are not furnished and thereby claims cannot be settled, despite furnishing all the documents which amounts to deficiency in service. Hence, the complainant filed the instant complaint praying for the relief as sought.

3.      In response to the notice issued from this Forum the respondent.3 remained absent. Hence, placed exparte. While respondent.1 and 2 appeared and filed the written version in detail denying and disputing the complaint averments. The respondent.1 denied all the complaint averments submits, they are only the seller of the ornaments and the policy and the coverage of the risk if any it is only the respondent.2 who is the insurer to pay the insurance amount subject to terms and conditions and prays for dismissal of the complaint against the answering respondent.

4.      While the respondent.2 admitting the written version taken contention that, the very complaint is false, baseless and untenable in law and prays for dismissal of the complaint. While the respondent admits issuance of the policy, coverage of the risk and the liability subject to terms and conditions of the policy. Further the respondent taken contention that the complainant by not lodging the complaint before the police immediately as prescribed under the policy and also non intimating the insurer with regard to the facts immediately the liability of the respondent severed as such the respondents are not liable to pay the risk amount. Further the respondent also taken contention that even then when the complainant submits claim in later hours the respondents sought for production of the original documents viz., police records and also the jewellary ornaments original invoice but, the complainant despite given opportunity not produced the original invoice of the ornaments insured articles. Hence, the respondent repudiated the claim as such there is no deficiency in service as alleged and prays for dismissal of the complaint.

5.      On the said pleadings the following points have arisen for consideration:

1. Whether complainant has proved that there was deficiency in service on the part of respondents ?
2. Whether complainant is entitled to the relief as claimed ?
3. To what relief the complainant is entitled ?

 

6.      Both have admits sworn to evidence affidavit and relied on documents.  Heard. Perused the records.

Finding on points is as under.

1. Affirmatively
2. Affirmatively
3.  As per order

 

Reasons

Points 1 and 2

7.      On going through the pleadings & evidence coupled with documents of both the parties it is evident that there is no dispute with regard to the fact,  the coverage of the risk under the policy issued by therespondent.2 and 3.

8.      Now the question to be determined is, whether the non settlement of the claim amounts to a deficiency in service, if so, for what relief the complainant is entitled.

9.      The perusal of the Ex.C1 Xerox copy of the invoice/sales bill dtd.10.11.2011 disclose that the ornament in question is covered under the policy in question issued by therespondent.2 and 3. The perusal of Ex.C2 xerox copy of the policy cover note of therespondent.2 and 3reveals, for settlement of the claim the insured shall file claim in prescribed form with original invoice/purchase bill, police complaint, details of burglary or snatching of the ornaments, non traceable certificate issued by the police. These are the mandatory requirements. The respondents in support of their contention denied delay in lodging complaint, drawn the attention of this Forum to Ex.R2 policy schedule to thecolumn.4 of the claim procedure of 2^nd page of schedule. Delay in lodging the complaint before the police and intimating the same to the respondent and  non submission of the original invoice is clearly admitted by the complainant. With regard to the delay in lodging complaint specifically in theft cases the respondent relied on orders in First Appeal 321/2005 New India Assurance Co. Ltd. Vs. Trilochan Jane NCDRC and in view of the said orders prays for dismissal of the complaint. Even the complaint given by the complainant Ex.C3 reveals the complainant lost the ornaments on 07.02.2012. At that time she is within the jurisdiction of the police station. Even then she lodged complaint on 11.12.2012. So also there were no impediments to inform the insurer immediately. The complainant in support of her case relied on RP/2861/2008 New India Assurance Co. Vs. Singla and one. The referred case is different that of to the case on hand. Wherein the referred case the name of the article insured was differently mentioned in the police complaint. Under those circumstances their lordships have considered. Whereas in the instant case apart from delay in lodging complaint the complainant did not produced original ornament purchase receipt and also not led any additional evidence to show that the complainant lost the ornament while she taking bath in the tank belongs to the temple. It is very specific case of the complainant that, at the time of bath she worn the golden ornament and she was taking bath with some other ladies. Under those circumstances she could have led their evidence, but not examined. That apart the ornament was purchased on 10.11.2012. The ornament was lost on 07.02.2012 i.e. within 2 months 27 days. Under those circumstances when she was well aware of the fact she had insured the article with the respondent it is also the duty of complainant to safeguard the receipt of the ornaments purchased. The production of original bill is one of the requirement of the policy. Non production amounts to violation. By considering delay in lodging complaint to the police as well as delay in intimating the insurer and also non production of original purchase receipt if the claim is allowed on the basis of non standard basis it will suffice the requirement subject to production of original bill within stipulated date. Accordingly claim is allowed.

10.    In view of the above discussions we have arrived and proceed to held issue.1 and 2 Affirmatively.

11.    Point.3: In view of the finding on points 1 and 2 proceeded to pass the following ;

Order

Complaint is partly allowed. The claim against the respondent.1 is dismissed. The respondent.1 and 2 are jointly and severally directed to settle the claim to an extent of 75% of the risk amount under the policy subject to production of original receipt by the complainant within 30 days from the date of this order. In such an event the R-1 & 2 shall settle the claim as ordered. Since the claim is allowed on non standard basis the complainant is not entitle for additional compensation and cost of the litigations. Failing to comply the same, the said amount shall carry interest @9% P.A. from thereon till realization.                                      

(Order dictated, corrected and then pronounced in the open Forum on: 11^th day of May 2015)

 

 

 

Member                    Member                        President.