JUDGMENT
Complainant has filed this consumer complaint U/s.12 of C.P. Act, 1986 seeking following reliefs;
“Direct the opposite parties for settlement of claim of Rs.6,03,103/- pay compensation of Rs.1 lakh and cost of Rs.5,000/-”.
The brief fact of the case is that the complainant for his self employment and earning his livelyhood started a cloth store at Jagatsinghpur and for better income availed cash credit loan from opposite party No.1 and liquidated timely as per terms of loan agreement. The opposite party No.1 being satisfied with the conduct manner, regularity and punctuality of complainant enhanced the term loan from Rs.7 lakhs to Rs.12 lakhs vide loan sanctioned letter dtd.21.5.2018. The complainant is not defaulter in repayment of loan, payment of Govt. taxes like GST and Income tax. Unfortunately on 10.5.2019 at about 11.15 AM during business hours all of a sudden due to electric short circuit insured cloth store got emblazed and the complainant and others present tried their best to protect the fire, so informed fire brigade reached then and there. Despite all efforts most of readymade goods were burnt. The opposite party No.1 being intimated then and there made spot visit within 10 minutes and handed over the insurance coverage to the complainant. The opposite party No.2 & 3 deputed surveyor who conducted spot survey on 21.5.2019 in presence of local men, collected material evidence, took photograph of eventuality and also verified all papers relating to insured property and collected a claim form vide printed forum showing approximate loss of Rs.5 lakhs to Rs.5.5 lakhs in fact insured goods worth Rs.6,03,130/- stood damaged. The complainant persuaded the matter of settlement of claim with opposite parties times without number but of no avail till date.
The opposite party on several occasion asked for the relevant documents for the settlement of the claim however the complainant despite reminders failed to submit the requisite documents and finally the opposite party has to close the claim for non submission of requisite documents. The stocks are kept in open as per the licensed surveyors findings however the policy is subject to a warranty that states “warranted that fire protection system are installed at risk location”. The complainant has failed to prove the compliance with the said warranty under the policy. The complainant has suffered loss of stock of garments due to the fire which resulted due to a short circuit on 10.5.2020 at about 11.15 AM. But no documents such as fire brigade report and police report has been provided by the insured to the opposite party. Surveyor of opposite parties inspected the fire damaged shop and the complainant provided the rates of the items and some supporting bills also provided. The licensed surveyor has considered amount as per available invoice and market enquiry. The surveyor also affected stock was not lying inside the insured shop but it was laying in the attached gallery along with the shop without adequate fire protection systems. Based on the documents submitted surveyor had drawn his assessment and had assessed the loss for an amount of Rs.1,12,582/-. The insured has not provided the supporting documents regarding purchase invoice for all damaged items. On several occasions the opposite party has asked for the copy of GST RC and GST return copy from 1st April till date of loss to verify sale, fire brigade report, copy of stock register maintained by insured, salvaged officers for the affected item but he failed to do so. So there is no deficiency of service on the part of the insurance company. Despite the shortcomings seen in the manner of loss relating to shortage of the stock of garments, this opposite party has tried to settle the claim requesting the complainant to produce the documents. The complainant has not appreciated the gross under insurance to the extent of 69.89% that affects the amount of loss recoverable under the policy. The complainant has painted the same as coercive without referring to the relevant policy terms. It is submitted that the policy terms is standard in all standard fire and special perils policy and is approved by IRDAI under the regulations.
Notice was issued to opposite party No.1 (Uco Bank, Jagatsinghpur) who has not appeared and has been set ex-parte on 27.4.2022. It is the specific allegation of complainant that the opposite party No.1 deducts the premium regularly as intermediary and deposit with opposite party No.2. The opposite party No.1 remitted Rs.5,700/- on 25.5.2018 and Rs.3,6050/- on 21.11.2018 towards insurance premium but no policy bond was provided to the complainant by the opposite party No.1. The opposite party No.1 on getting information regarding electric short circuit and fire visited the spot and handed over the insurance coverage policy to complainant vide No.3514-301101-18-1001252-00-000 dtd.22.11.2018 covering period from 22.11.2018 (00-00) hours to mid-night of 21.11.2019 of opposite party No.2 & 3 and no insurance coverage was granted for payment of premium dtd.25.5.2018 and it is not known as to when opposite party No.1 has received such policy bonds.
The opposite party No.2 & 3 deputed surveyor who conducted spot survey on 21.5.2019 in presence of local men, collected material evidence, took photographs and verified all records relating to insurance, property and collected claim form showing approximate loss of Rs.5 lakhs to Rs.5.5 lakhs. Opposite party No.2 & 3 have filed the written version on 31.12.2021 without any affidavit to which counsel for complainant has vehemently opposed and stated that in view of the settled principle of law written version filed after stipulated days i.e. 45 days and without any affidavit is meaningless and cannot be considered as settled by the Hon’ble Apex Court in the case of M/s. Daddy Builder’s Pvt. Ltd. Vs. Manisha Varag and another SLP No.1240/21, 2021 NCJ 289 (SC).
The opposite parties have simply in their written version stated that to close the claim due to failure of the complainant to submit the requisite document but no such evidence is annexed with the written version.
The policy bond was kept with opposite party No.1 and it has not been supplied by the opposite party No.2 & 3 to the complainant and what to speak up explaining the clauses, which does not arise at all as such complainant was in dark about the clauses in the policy.
The complainant has relied on the decision of Hon’ble National Commission in the case of Hareshwar Enterprises (P) Ltd. Vs. National Insurance Co. Ltd. and others in original petition No.102/2003 (2010) NCJ 224, wherein the Hon’ble National Commission has held without any evidence repudiation of insurer cannot be accepted, in that situation loss assessed by surveyor is to be payable.
Only quantity of stock on the date of fire is relevant and not the source from where the complainant got money to purchase the same. The complainant further relied on the decision of Hon’ble National Commission in the case of United India Insurance CEO Ltd. and another Vs. SMS Telly Communication and another in R.P. No.3260/2009 (2009 NCJ 786), wherein Hon’ble National Commission has held unexplained of unnoticed exclusion clause of Insurance Policy is not binding to insurer – “Exclusion Clause” required to be ignore if mandatory requirement of explaining exclusion clause not adhered to by insurer/agent before issuance of insurance cover.
In the present case the policy bond was lying with opposite party No.1 for which the complainant is in dark regarding the clauses of policy. The opposite parties No.2 & 3 having received the premium were delay bond to supply the policy to the complainant.
The complainant has also relied on decision of Hon’ble National commission in the case of Sotah Desai & Co. Vs. National Insurance Co. Ltd. in F.A. 169 & 171 of 2011 (2018 NCJ 604), wherein Hon’ble National Commission has held once proposal form is accepted and policy issued then insurance company has no right to repudiate claim on hyper technical ground.
Incident occurred on 10.5.2019 and surveyor conducted survey on 21.5.2019. He must have reported within a month i.e. 21.6.2019 so insurance company must take decision within one month that to allow or to refuse but the insurance slept over two years and above it is deficiency of service. Notice issued to opposite party vide order No.135(3) dtd.10.02.2020. Opposite party appeared on record on 12.3.2020 and file time petition for 07.4.2020. Opposite party No.2 & 3 filed written version vide order No.21 on 31.12.2021 without affidavit which is after the one year and 10 months of delay, which has no explanation given for delayed filed of written version, hence not admissible.
Opposite party not supported pleadings on written version filing evidence affidavit which is mandatory nor desired to cross examine complainant who supported his case filing evidence affidavit.
Hence in view of reported decision of Hon’ble National commission reported in IV (2006) CPJ 2013, the case of complainant remained rebutted and the same is proved beyond any doubt. “Ponnusamy (DR) & Anr. Vrs. Ramakrishnan- (i) Consumer Protection Act, 1986- section 13- Practice and Procedure- Proof of case by evidence- As per section 13, if matter is contested in written version, then parties have to prove their case by evidence- cross-examination also permitted- Admittedly, complainant filed affidavit by way of evidence- O.Ps. neither filed any affidavit nor cross-examined deponents- Allegations of complainant remained uncontroverted- In absence of any counter affidavit, case of complainant stands proved.”
The case of complainant is neither false nor vexatious, as is supported in the evidence on record such as report of fire brigade, local Sarapanch and local R.I. relied on by complainant and opposite parties not challenged those to be false.
In view of observations of Hon’ble National commission of NCJ 2019 at page 745 if loss occurred due to short circuit the report of surveyor is not sacro- sanct nor is a final ward. Since claim of complainant is proved with sufficient evidence, so allowing his claim is just and proper.
That apart insured complainant though has a bonafide right to be given with a copy of surveyor report in terms of Insurance Regulatory Rules and in this case opposite parties in insurance seems to have not adhered to the same nor placed copy of surveyor report and record a supported in the affidavit hence deficiency in service large against opposite party insurance.
Law is well settled in view of reported decision of Hon’ble National commission reports in NS 1986 to 96 at page 2054 that if loss caused due to fire and complainant did not produce account books, cash book, ledger or stock register when demanded by surveyor and on this sole ground the claim cannot be repudiated, nor the insurance can deprive any advantage of discrepancy in value of stock on date of fire in view of reported decision of Hon’ble National Commission reported in NCJ 2010 at page 224. Hence from copy of claim form available in record that the surveyor admitted loss of Rs.5 lakhs to Rs.5.5 lakhs cannot be disbelieved as such insured complainant cannot be denied such amount in the end of natural justice, equity and fairness. We therefore direct the opposite parties more specifically to opposite party No.2 & 3 to pay the amount of Rs.5.5 lakhs with 5% simple interest w.e.f. 10.5.2019 within two months from the date of passing of the order and we impose cost of Rs.5,000/- as cost of litigation. With the aforesaid observation and direction the consumer complaint is disposed of.
