DATE OF FILING: 3.02.2012.
DATE OF DISPOSAL: 22.08.2016.
Dr. N.Tuna Sahu, Member:
The complainant has filed this consumer dispute under Section 12 of the Consumer Protection Act 1986, alleging deficiency in insurance service against Opposite Parties (In short, the O.Ps) and for redressal of his grievance before this Forum.
2. The case of the complainant as briefly stated in the complaint is that he started his business in the name of Maa Banadurga Electronics and repairing centre out of his own funds at Kelua Chaka and dealing with sale of electrical and electronics good. Thereafter the complainant availed a loan from the O.P.No.2 for the purpose of his business and as per the procedure the bank officials insured the stocks of the complainant under O.P.No.1 vide standard fire and special peril policy bearing No.345400/11/249/2006 valid from 2.7.2005 to 1.7.2006 for a sum assured Rs.2,00,000/- after verifying the stocks of the shops. On 27.1.2006 afternoon after closing his shop the complainant went to Berhampur for his personnel work. On the next day at about 3 P.M., he returned to his village and came to know that his shop including stocks, furniture and important registers were completely destroyed by fire. After getting information from some of the villagers’ the fire brigade staff reached at the shop but before that fire was extinguished by the villagers. Thereafter the complainant reported the matter to the local police. The O.I.C. of Jarada P.S. registered the case vide Station Diary No. 591 dt.29.1.2006 and started investigation. As the stock and the shop are insured with O.P.No.1 the complainant intimated the incident to the O.P.No.2. It is also stated that the O.P.No.2 on receipt of the information of the fire incident made a claim before O.P.No.1 on behalf of the complainant. The surveyor of O.P. No.1 visited the spot and investigated the matter from the local people and verified the station diary entry of Jarada Police station and gave his report. The surveyor asked for the stock statement and other related papers from the complainant to which the complainant informed that most of the papers he kept insides the shop were destroyed by fire in the said incident. Communications were made between the complainant and O.P.No.1 &2. On 11.4.2007 the Branch Manager of O.P.No.2 wrote a letter to the O.P.No.1 stating that he has sent the statement of the account of the complainant since it is a term loan, stock statement need not be submitted by the borrower so purchase and sale record along with bills and vouchers of the complainant was enclosed in the said letter. At last the complainant received a letter from the O.P.No.2 that the O.P.No.1 settled the claim case of the complainant at Rs.18,936/- and requested the complainant to meet with the officers of O.P.No.1. After receipt of the said letter the complainant met with the officials of the O.P.No.1 explained them about the loss and damage of the stock in the fire accident and further requested to re-investigate the case. However, it is alleged that the O.P.No.1 lingered the matter even after repeated representations of the complainant. The complainant again visited the office of O.P.No.1 and asked for the survey/investigation report of the surveyor. The officials of O.P.No.1 not co-operated with the complainant and not supplied a copy of the said report. At last, the complainant obtained the survey report under R.T.I. Act and filed this case. He further stated that the O.P.No.2 is banker also not performed his duties in settling the claim as such is added as party in this case. He also alleged that on his verification he found electronics articles like TV, fan, Grinder, Fridge etc and connected documents worth approximately Rs.3,00,000/- have been completely burnt in the file. The fact has been registered in Station Diary Entry No. 591 dated 29.1.2006 of Jarada Police Station and the local Sarapanch of Padadigi Gram Panchayat has issued a certificate vide his letter No. 33 dated 6.6.2007 regarding loss of stock of the complainant in the said fire accident. However, the surveyor has submitted a wrong report for which the O.P. No.2 did not settle the claim of the complainant. Therefore he, alleging deficiency in service on the part of the O.Ps the complainant prayed to direct the O.P.No.1 to pay the claim of Rs.3,00,000/- with interest @18% per annum towards loss of stocks, furniture etc and Rs.1,00,000/- as compensation towards mental agony, financial loss in the best interest of justice.
3. Upon notice the O.P.No.1 filed version through his Advocate. It is stated that the averments made in the complaint are not true and correct, the complainant has to prove the same which are not specifically admitted herein and they are deemed to be denied. It is not true that the complainant was dealing with the business of electrical and electronics item and undertake to repair of electronics item. It is equally false to say that the said stock was insured under the O.P.N o.1. Similarly, it is not true that the officer of the O.P. had verified the stock of the complainant periodically. It is a fact that the policy bearing No.345400/11/2006/249 valid from 2.7.2005 to 1.7.2006 for a sum of Rs.2,00,000/- was issued by this O.P. No.2 in favour of the complainant. The station diary is created at the instance of the complainant in connivance with the police for wrongful gain. He also stated that the alleged intimation to the fire station and registered the alleged station diary are afterthought. It is a fact that the claim of the complainant was settled for Rs.18936/- by this O.P. but it is not true that this O.P. requested to the complainant to meet with its officers regarding settlement of his claim. It is equally false to say that the complainant met with the officials of this O.P. and requested for re-investigation. The complainant never asked for re-investigation. After more than two years of settlement of his claim, the complainant asked for survey report under RTI Act on 24.5.2011 which was supplied to him on 21.7.2011. The Jarada Police has issued a certificate basing the statement of the complainant. The statement of the complainant is only reflected in the said certificate issued by the Jarada Police. The complainant with a mala fide intention after 3 days of the alleged incident lodged a report before the Jarada Police station for making a station diary in token of prove to get wrong full gain without praying for investigation. The complainant in his report has mentioned that due to the alleged fire, the properties worth of Rs.3,00,000/- have lost. The police have quoted the said statement in the station diary. If the matter was investigated by the police, the complainant could have punished for getting unauthorized electric connection to his business establishment. The so-called report of Sarapanch is a baseless, politically motivated and without sanction of law. The stories of keeping number of T.V. Grinder etc by the outsider in shop of the complainant for repairing and they are completely destroyed due to the alleged incident are after thought and created for purpose of the case. The property of 3rd party is not covered under the said policy. The complainant had no authorized electric connection to his shop. He had un-lawful electric connection to his shop. The complainant was very much available in the station and he lodged claim after creating all papers on 23.2.2006 i.e. after about one month of the incident. The claim of the complainant was not genuine. The present complaint is barred by limitation. The O.P. settled his claim for Rs.18,986/- and submitted the voucher to the banker of the complainant as his shop was hypothecated on 17.3.2008 for his signature with his knowledge. In spite of request of Bank, when the complainant did not sign the voucher, the bank informed this fact to this O.P. If the complainant was displeased with the settlement of his claim by this O.P. he could have filed complaint before the Hon’ble Forum within two years from the date when voucher sent to the bank for signature. Instead of filing the complaint, he asked for survey report after more than three years. So the present case is purely bared by limitation. The complainant insured his T.V, Radio, fan and electronics repairing parts of his shop under this O.P. vide policy No. 345400/11/2006/06 valid from 2.7.2005 to 1.7.2006. While matter stood thus on 23.2.2006 the complainant intimated to this O.P. that his insured shop has got fired on 27.1.2006 and requested this O.P. to compensate the loss. This O.P. on receipt of intimation from the complainant deputed the Surveyor for assessing the loss. The said surveyor after thorough inspection from all angles has assessed net loss of Rs.25,350/- and submitted his report to this O.P. vide his report dated 20.1.2008. The said report may be read as part of this version. Thereafter this O.P. after deducting all statutory deductions settle the claim of the complainant for Rs.18,986/- and the voucher for the said amount was prepared and send to the complainant for his signature through O.P.No.1 on 17.3.2008. When the said voucher was not received by this O.P. for a long time, this O.P. contacted to the O.P.No.1 regarding non-receipt of the voucher. Thereafter the O.P.No.1 informed to this O.P. that in spite of their request the complainant was not responding. For which the claim settlement voucher sent by this O.P. to the bank are remained non-compliance. Thereafter this O.P. gave final reminder by a letter dated 16.2.2009 to the complainant to sign the voucher within 10 days of receipt of the letter, failing which his claim will be closed without further notice. While matter stood thus after remaining silence for about more than 3 years the complainant asked for surveyor report through R.T.I. Act only to get cause of action. The complainant was very much aware about the survey report. If the complainant asked for survey report, this O.P. could have supplied the same during process of claim. As he was aware about the finding of the survey report, he did not choose to ask for survey report immediately at any point of time. There is no occasion for the complainant to file the present complaint against this O.P. as they have not committed any wrong to settle his claim. The claim of the complainant is purely fraud and malicious. The complainant has not approached to the Hon’ble Forum with clean hand. Hence this O.P. prayed to reject the complaint with exemplary cost in the interest of justice.
Similarly, upon notice the O.P.No.2 filed version through his Advocate. It is stated that the averments made in the complaint petition are not all true and the complainant is put to strict proof of all such allegations, which are all not specifically admitted herein. It is true to say that the complainant availed term loan for the purpose of his business with the terms and conditions contemplated in the said term loan. It is false to say that the O.P.No.2 had to make a standard fire and special peril policy. In fact, the complainant is obliged to make such policy while proposing for availing the loan with the O.P.No.2. The O.P.No.2 after being satisfied with the formality of taking policy would advance the money. So in the case when the term loan was sanctioned in favour of the complainant who availed the facility provided there under after following the due procedure. The averment made in para-2 of complaint petition about the personal problems like remaining absent on the impugned day of fire mishap to his shop causing damage and loss to his articles are not the subject matter relating to O.P.No.2. This O.P. is only a banker limited to advance of loans and realization there under. It is false to say anything about the involvement of O.P.No.2 except the admitted fact that the complainant availed term loan with O.P. No.2. Thus O.P.No.2 is not a necessary party and O.P.N o.2 made a party there under which is nothing but mis-joinder of the parties as admittedly there is no cause of action for the complainant against O.P.No.2 in the above case. The O.P.No.2 submits that the name of O.P.No.2 be deleted from array of parties. The complaint regarding the cause and effect of such fire are all matters on record and no specific answer is warranted from the side of O.P.No.2. The averments made in Para 4 of the complaint that the O.P. No.2 is a banker and also not performed his duties in settling the claim is absolutely false. The averments made in Para 5 are all the maters on record and O.P.No.2 has nothing to do with regard to alleged loss of stock. Since the nature of loan availed by the complainant is a term loan the O.P. No.2 simply confirmed to the realization of the loan amount with interest from the complainant. The averments made in para-6 relate to the subsequent event and no reference is made anything about O.P.No.2 and needs no further answer. There is no cause of action averred in para-7 of the complaint petition against the O.P.No.2. In absence of non-mention of cause of action against O.P.No.2, the complaint is liable to be dismissed against the O.P.No.2. The complaint is filed at a belated stage and hence it is liable to be dismissed, even otherwise no material particulars forthcoming in the entire complaint to make any loss assessment of Rs.3,00,000/- which amount is imaginary and speculative in nature. Hence the O.P.No.2 prayed to dismiss the complaint petition against the O.P.No.2 with costs.
4. On the date of hearing we heard the matter at length from the learned counsel for the complainant as well as for O.P.No.1 and 2. We have perused the case record and materials placed on it. We have also gone through the complaint and written arguments of all parties and perused the documents filed by them respectively. We have also perused the citations, survey report and other material documents placed on the case record.
On perusal of the case record we found on merit that there is no doubt or dispute that the present complainant obtained insurance policy namely standard fire and special perils policy from O.P.No.1 vide policy No.345400/11/249/2006 for the period 2.7.2005 to 1.7.2006. It is also not disputed that under the said policy a sum of Rs.2,00,000/- was insured on payment of Rs.560/- towards premium. We also found that the said policy was specifically taken for repair of television, radio, fan, electrical and electronic items. It is also a fact that while the insurance policy is in valid condition, the shop of the complainant caught fire on 27.1.2006 at about 5.00 P.M. and on account of that the insured shop was burnt and items kept inside the shop were destroyed. The complainant intimated the loss to O.P.No.1 on 23.2.2006 with a claim amount of Rs.3,16,961/-. After receipt of intimation from the insured, the O.P. No.1 deputed his surveyor. The surveyor on 24.2.2006 visited the spot and prepared the survey report after detail verification of the loss. The surveyor also submitted its report to the O.P.No.1 vide report No. SKP/OIC/FIRE/3661/2008 dated 20.1.2008. After receipt of survey report the O.P. No.1 settled the claim of the complainant at Rs.18,936/- though the reported loss of the surveyor was Rs.25,350/-. Accordingly the O.P.No.1 issued the discharge voucher in favour of the complainant through O.P.No.2 and requested to furnish the discharge voucher after duly signed by the complainant. However, as per the contention of the O.P.No.2 the complainant did not sign the discharge voucher and not furnished the same to the O.P.No.1 within the time period.
5. During the course of hearing, the learned counsel for the complainant argued that since the insurance policy was for Rs.2,00,000/- and due to the loss on account of fire, the complainant has claimed Rs.3,00,000/- towards insurance claim. The O.P.No.1 though duly intimated about the loss by the complainant but did not settle the claim as per the conditions of the insurance policy and insurance survey report but furnished the discharge voucher for Rs.18,936/- which is not proper as per the law. In reply to the above contention of the complainant the learned counsel for O.P.No.1 contended that the surveyor has assessed the loss of Rs.25,350/- as net loss after deducting the policy excess. It is also contended that the surveyor has remarked certain adverse features in the survey report. In the survey report it is mentioned that almost the cause of loss is reported due to fire but the police report and the fire brigade report is silent regarding the exact cause of fire. It is also remarked that the loss of complainant is approximately Rs.3,00,000/- due to accidental fire without going through any record. The insured has not maintained the sale and purchase register and the account of complainant under O.P.No.2 is N.P.A. since 31.3.2003. It is also argued that the complainant intimated the matter to insurance company on delayed date and cause of fire though admittedly accepted electrical short circuit but the complainant’s connection was unauthorized. All the goods held inside the shop on good trust. So the O.P. No.1 decided to settle the claim of the complainant on non-standard basis i.e. 75% of surveyor report and accordingly the discharge voucher of Rs.18.936/- was sent to the complainant through O.P.No.2 for signature and return for settlement of the claim but due to the negligence of the complainant the O.P.No.1 could not settle the claim since the complainant did not furnish the duly signed in discharge voucher, hence the claim of the complainant was closed. However, the complainant once again redressed his grievance before the O.P.No.1 on dated 24.5.2007 and after a long period he filed this complainant in this Forum in the year 2012. The case is barred by limitation. During the course of hearing he also cited some authorities of Hon’ble National Commission and State Commissions in support of his contentions reported in 2012 Vol-1 CPJ (NC) Page-541 & 552, 2011 Vol-1 CPJ (Haryana) Page-52, 2011 Vol-1 CPJ (Orissa) Page-172 respectively. He has also submitted some citations reported in IV (2011) CPJ 458 (NC), V (2011) CPJ 326 (NC), I (2012) CPJ 543 (NC), I (2012) CPJ 552 (NC), I (2012) CPJ 557 (NC) etc to strengthen his case. Since, the claim of the complainant is barred by limitation and hence the case of the complainant may be dismissed with cost.
6. We perused the above pleadings of parties to the dispute and also verified the materials on record. We have also carefully gone through the survey report and documents relied on by the complainant as well as O.P. No.1 filed as Annexure series A to N placed on the case record. On perusal of the case record it is found that the surveyor has assessed the net loss as Rs.25,350/- through his survey report placed in the case record as Annexure-H. However, the O.P. No.1 through his letter dated 17.03.2008 settled the claim of the complainant at Rs.18,986/- treating the claim as non-standard due to adverse remarks made in the survey report by the surveyor. In this respect, we would like to point out that the O.P. No.1 could have settled the claim of the complainant as per the survey report but did not do so and settled the claim on non-standard basis which is not tenable in law. The report of surveyor is an important document and the loss assessed by the surveyor is final. The insurance company should not deduct any amount arbitrarily on the basis of unnecessary adverse remarks made by the surveyor in his report. In this regard we would like to cite the judgment of Apex Court in the case of Sri Venkateswara Syndicate Vs. Oriental Insurance Company Ltd., and Another reported in (2009) 8 Supreme Court Cases 507 where it was held that “There is no disputing the fact that the surveyor/surveyors are appointed by the insurance company under the provisions of the Insurance Act and their reports are to be given due importance and one should have sufficient grounds not to agree with the assessment made by them”. In view of the above, as no sufficient grounds have been brought on record by the O.P. No.1 for treating the claim as non-standard, there is deficiency in service by the O.P.No.1 for non-settlement of the claim of the complainant as per the survey report. Further, the Hon’ble National Commission in the case of The Oriental Insurance Co. Ltd through it Regional Manager Vs. Ishwar Singh reported in 2015(I) CPR 157 (NC) has also held that “Report of Surveyor must be given due weightage”. In the present case the O.P.No.1 received the claim intimation of the complainant and deputed the surveyor for assessment of loss and after receipt of the survey report settled the claim of the complainant on non-standard basis which is not justified. There is no reasonable ground to settle the claim on non-standard basis ignoring the report of the surveyor and to send the discharge voucher through O.P.No.2 to be signed by the complainant. The surveyor is appointed by the O.P.No.1 and it is natural he must have some adverse remarks against the claimant complainant during preparation of his survey report but basing on that unnecessary adverse remark, the insurance company should not have settled the claim on non-standard basis without sufficient grounds thereof. We are also very much agreed with the authority cited by the learned counsel in support of his case reported in IV (2011) CPJ 458 (NC) in the case of Khimijibhai & Sons Vs. New India Assurance Co. Ltd wherein it was held by the Hon’ble National Commission that “It is to be noted that it is in accordance with the requirement of law that a surveyor is required to be appointed by the Insurance Co. and when such a surveyor who is licensed professional to assess such loss gives a report with reasons to support the same, such a report can be discredited only on the basis of specific grounds which are required to be recorded in order. Mere production of bills or estimate cannot be the basis for discarding the report of the surveyor”. From the above observation, it is crystal clear that the complainant is not entitled to more than the surveyor report even though he files bills, vouchers and estimated loss of Rs.3,16,961/- as assessed by the complainant placed in the case record. In our considered view, the complainant is entitled only the amount of loss as assessed by the surveyor Er. S. K. Panda vide report dated 19.03.2006. It is also to be noted that the other authorities as cited by the learned counsel for the O.P. No.1 as discussed above are not relevant to this particular case hence not applicable since the fact and circumstance of the cases as cited above except in the case reported in IV (2011) CPJ 458 (NC) in the case of Khimijibhai & Sons Vs. New India Assurance Co. Ltd are not at all applicable to this case. Hence, all other citations of the learned counsel for the O.P.No.1 are not applicable so rejected.
With regard to contention of time barred for filing this consumer complainant by the learned counsel for the O.P.No.1, we would like to say that the O.P. No.1 insurance company duly assessed the loss of the complainant by deputing his authorized surveyor Er. S.K. Panda but when the surveyor submitted the report the same was not accepted in toto by the O.P. No.1 and the claim of the complainant was settled on non-standard basis at Rs.18,986/- vide letter dated 17.03.2008 of the O.P. No.1 ignoring the survey report. We would like to point out that what forced the O.P.No.1 not to settle the claim of the complainant on the basis of report of surveyor and why the complainant was forced to sign the discharge voucher for Rs.18,986/- towards final settlement of his claim through O.P.No.2 bank. In this regard, we would like to say that the cause of action is to be continued till the final settlement of the claim of complainant. So, if we examine from the legal point of view, the case is not barred by limitation since the O.P. No.1 is yet to settle his genuine claim as per the report of the surveyor. The contention raised by the learned counsel that the complaint is barred by limitation is not convincing so we are not inclined to accept the same hence rejected.
7. In a sequel to the above discussion and in the light of the decisions of the Hon’ble Apex Court and National Commission as discussed above, we allowed the case of the complainant against O.P.No.1 and dismissed against O.P.No.2 since there is no specific relief claimed by the complainant against O.P. No.2. From the above discussion, it is clear that the O.P. No.1 after receipt of the surveyor report did not prefer to settle the insurance claim of the complainant as per the survey report so the O.P. No.1 is found deficient in service. Since, the O.P. No.1 is deficient in service; he is liable to pay interest on the claim amount as assessed by the surveyor in his survey report and for non-settlement of the same within time. Thus, in our considered view, the O.P.No.1 is liable to pay interest at the rate 6% per annum from the date of filing of this complaint in this Forum till actual payment is made. We are also convinced that the complainant has hired the services of an advocate, so we are not hesitate to award cost of litigation which we would like to quantify Rs.2000/- to be paid by the O.P.No.1 to the complainant along with the claim amount. Since, the complainant has no specific prayer against the O.P. No.2, his financier bank; we would like to dismiss the case against O.P. No.2 in this dispute.
8. In the result, we allowed the case of the complainant against O.P.No.1 and dismissed against O.P.No.2. The O.P.No.1 is directed to pay Rs.25,350/- to the complainant towards insurance claim as per report of the surveyor along with interest at the rate 6% per annum from the date of filing of this complaint in this Forum. The O.P.No.1 is also burdened with Rs.2,000/- towards cost of litigation to be paid to the complainant along with claim amount. The aforesaid amount shall be paid to the complainant within two months from the date of receipt of this order by O.P.No.1 failing which the complainant is at liberty to realize the said amount from O.P. No.1 under Section 27 of the Consumer Protection Act, 1986 along with penal interest at the rate 7% per annum. The case of the complainant is disposed of accordingly.
9. The order is pronounced on this day of 22nd day of August 2016 under the signature and seal of this Forum. The office is directed to supply copy of order to the parties free of cost.
