DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II, U.T. CHANDIGARH

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M/s Tricity Tyres, Chandigarh Zirakpur Road, Near Highway Palace, Zirakpur, District Mohali.

                   --- Complainant

V E R S U S

[1]     The HDFC ERGO General Insurance Co. Limited, SCO No. 124-125, 1^st Floor, Sector 8-C, Chandigarh.

[2]     The HDFC ERGO General Insurance Co. Limited, 6^th Floor, Leela Business Park, Andheri Kurla Road, Andheri (East), Mumbai - 400059

---- Opposite Parties

BEFORE:      SH. LAKSHMAN SHARMA                    PRESIDENT

MRS.MADHU MUTNEJA                       MEMBER

                   SH.JASWINDER SINGH SIDHU             MEMBER

Argued By:             Sh. K.K. Midha, Authorized Representative of Complainant.

Sh. Rajesh Sharma, Proxy Counsel for Sh. Paras Money Goyal, Counsel for OPs.

PER JASWINDER SINGH SIDHU, MEMBER

1.                Briefly stated, the Complainant got the stock of tyres & tubes etc. insured from the Opposite Parties for a total sum insured of Rs.10.00 lacs and after the requirements of completing the proposal form and getting the showroom/ stock inspected by the Opposite Parties, paid the premium of Rs.2978/- vide Cheque No. 303596, drawn on State Bank of India, Zirakpur dated 03.06.2011, for Fire & Allied Perils and Burglary Policy. No receipt for the premium was given and the Complainant was assured that the policy documents would be sent within one week. The matter was taken up on telephone for sending the policy & receipt of premium as by that date neither the receipt was received nor the cheque was presented for collection. On further follow up, it was informed that Policy bearing No.  2949200090965400000 for the period 6^th June, 2011 to 5^th June, 2012 was issued and assured that the policy document would be sent by an early date.

                   It is asserted that on the night of 23^rd June-24^th June, 2011, incident of burglary took place for which the Complainant got the information on 24^th June, 2011 (morning). The matter was reported to the police and F.I.R. was lodged. Necessary information was also given to the Opposite Party No.1 on telephone who suggested that the matter be informed on help line and by giving the policy number. On the basis of the information conveyed, on telephone, a surveyor was appointed from Delhi, who informed that he would be coming on the next day for the survey of the loss and with his permission, the repair of the broken shutters, locks and door lock of the store etc was got done and after getting the damaged portion photographed as suggested (Annexure-2 to 6).  On 25^th June, 2011, the Surveyor completed the survey by taking photographs, examining the shutters etc. and examined the necessary record of the purchase, sale and stock as on 23^rd June, 2011. The statement from Complainant and some neighbors were also taken by him. Since neither the surveyor was carrying the claim form nor the same was supplied by the local office, the Complainant was advised to send the same duly completed when received from the Opposite Party No.2. In response to mail dated 28^th June, 2011 from the Surveyor (Annexure-7) the Complainant informed that the claim form has not been received. On receipt of the claim form from the surveyor, all the documents were sent to the Surveyor, vide letter dated 20^th July, 2011 by Trackon Couriers dated 26.07.2011 (Annexure-8 and 9). Since the stock was increasing the Complainant requested the Opposite Parties to increase the sum assured from Rs.10.00 lacs to Rs.15.00 lacs for which the premium Cheque No. 187332 drawn on OBC Zirakpur for Rs.1489/- was issued and against which endorsement for increase in sum assured was received. 

                   It is further asserted that the Complainant received telephone calls and email from the surveyor for sending the final non- traceable report from the police, but the same was not available due to the fact that the investigation and follow up of the police for the burglary had not been completed. After constant perusal the report was made available on 19.12.2011 and after getting the same translated into English, the same was sent to the surveyor vide letter dated 24.12.2011 and sent by On Dot Courier No. 266831049 dated 24.12.2011 (Annexure 11 and 12). The Complainant followed with the Surveyor for the early settlement of the claim, but no satisfactory reply was being given. Ultimately, it was informed by the Surveyor to check up with the concerned officer of the Opposite Parties for which the phone no. and address was supplied. The Complainant continued to make efforts to contact the concerned officer, but failed to get any response. Ultimately, the Complainant contacted the concerned officer, who informed that some letter was sent to the Complainant in the month of September, 2011, which was received back undelivered. Thereafter, the Complainant sent mail dated 23.01.2012, for which reply dated 25.01.2012 was received by email, along with copy of the attachment of letter dated 09.09.2011, whereby it was conveyed that the claim is not tenable as there is breach of warranty of 24 hrs security and loss is due to theft (Annexure 13 and 14).  It is alleged that clause of 24 hrs security, is not in accordance with the assurance given by the Opposite Parties on their web site while mentioning the benefit of the insurance policy (Annexure 15 & 16) and no such information was conveyed to the Complainant by the Opposite Parties. 

                   The Complainant had made frantic efforts for the supply of the copy of the proposal form but the same was not supplied inspite of assuring many times. According to the Complainant the action of the Opposite Parties in denying its genuine claim is illegal, malafide and unfair trade practice and the Opposite Parties are guilty of deficiency in service in not providing copy of the proposal form, not sending the policy within a week of the commencement of insurance wherein the insured can read the terms and conditions of the policy and also get the same cancelled as per the rules and regulations of Insurance Regulatory & Development Authority. Hence, this complaint.

2.                Notice of the complaint was sent to Opposite Parties seeking their version of the case.  

3.                Opposite Parties in their joint reply, while contesting the claim of the Complainant have pleaded that the extension of the policy was subject to its terms and conditions. The policy document was sent to the Complainant. The present complications are an after though and with the sole object of making out a false ground of non-supply of policy. The Complainant has failed to place on record any document substantiating that complaint was lodged with the company for having not received the policy document. Immediately, upon the lodging of the claim, the Surveyor appointed by the company started his investigation, and work for the early settlement of the claim. However, during the process of the claim by the Surveyor, it was found that there was breach of the policy terms and conditions by the Complainant, as such the claim was repudiated vide letter dated 09.09.2011 on the ground that as per the policy condition, the Complainant was to deploy security guard on the insured premises for 24 hours. However, the Complainant failed to do the same, as such, the claim was repudiated.  It is also pleaded that the Complainant was apprised about the policy terms and conditions and the same were sent to him in normal course. Denying all other allegations and stating that there is no deficiency in service or unfair trade practice on their part, answering Opposite Parties have prayed for dismissal of the complaint.  

4.                Parties were permitted to place their respective evidence on record in support of their contentions.

5.                We have heard the authorized representative of the Complainant and learned proxy counsel for the Opposite Parties and have perused the record, along with the written arguments filed on behalf of the Complainant.

6.                The fact that the Complainant had got his shop with the name and style M/s Tricity Tyres insured with the Opposite Parties. On receiving written proposal from the side of the Complainant, and duly processing the same, by inspecting the premises, a policy was issued. The Opposite Parties further on receiving representation even enhanced the insurance cover upto Rs.10.00 lacs and issued a subsequent endorsement dated 26.08.2011 in the said policy. Unfortunately, the shop of the Complainant got burgled and the thieves decamped with the stocks lying in the shop on the fateful night of 23/24.06.2011 by breaking open the locks of the shutters.  The Complainant immediately informed the police and an F.I.R. was got lodged on 24.6.2011 and a claim was lodged with the Opposite Parties.

7.                The Opposite Parties while processing the claim of the Complainant demanded different documents, the list of which is found annexed as Annexure-8. The Complainant while responding to this communication, dated 20.7.2011, on his part submitted all these details by sending the same through a courier dated 26.7.2011. But while investigating the episode of theft, the Opposite Parties deputed a surveying agency, which in its report disclosed that no security guard was deployed in showroom for full time, and as such, there was a breach of this warranty, which rendered the claim of the Complainant non-payable. This communication is annexed at Annexure-14 which is dated 9.9.2011.

8.                The Complainant on its part is aggrieved of the non- settlement of its claim, has alleged that the Opposite Parties failed to deliver the policy document containing the terms & conditions, as well as the warranty clause on the basis of which the Opposite Parties declared the claim of the Complainant as non-payable. The Opposite Parties on their part have claimed that the policy documents containing terms and conditions, now tendered with their reply, were dispatched and were duly received by the Complainant. But not such proof has been brought on record, to substantiate their reply of these averments of the complaint. The Complainant, while defending its stand stated that no such document except for a sms message for the issuance of the policy was conveyed to it. The Complainant has quoted a judgment of Hon’ble National Consumer Disputes Commission, in Revision Petition No. 1324 of 2012, wherein it is held that the onus to prove the delivery of the policy terms & conditions to the consumer was on the Insurance Company and in order to substantiate this, a cogent proof of such delivery by way of a receipt duly signed by the consumer was the only evidence, that could satisfy such factor. Hence, in the present case, the Opposite Parties have failed to bring on record any proof that such terms & conditions, along with warranty clause, were delivered to the Complainant, by preserving such receipt signed by the consumer, as a token of proof of its delivery, enabling it to appraise the same.  

9.                The demand of the Opposite Parties with regard to the status of the stock lying at the premises of the Complainant on the fateful night of the burglary, along with the proof of its movement, was duly attended to by the Complainant, by providing such details along with valuation of the stock, as well as the copy of the stock register, too was provided to the Opposite Parties, to verify the same. The Opposite Parties did not find any fault with the status of the stock and also the assessment of the loss that occurred to the Complainant, but preferred to dishonour the claim, on the ground that the Complainant failed to employ a watchman on round the clock basis. The Opposite Parties did not bring on record the written proposal which was tendered by the Complainant while soliciting the said insurance policy to prove that such a warranty clause was conveyed to the Complainant at the time of receiving such a proposal. The Opposite Parties failed to satisfy us that the Complainant was genuinely made aware about the need of round the clock watch by employing a watchman; hence, the Opposite Parties, without conveying such warranty condition before issuing the policy, cannot impose such a condition while raising the policy, and that too not delivering the same for it to be accepted in toto by the Complainant. In the present circumstances, when the Complainant was not aware of any such warranty clause, with regard to the employment of a watchman, the denial of the claim by the Opposite Parties for this reason is definitely a deficiency in service on their part.

10.              The Complainant in his relief clause has claimed Rs.5,79,606.21/- as loss, along with interest @18% from the date of loss, till it is paid. However, the surveyor report tendered by the Opposite Parties as Annexure R-2 has assessed the loss to the tune of Rs.4,52,837/-. The Complainant did not bring on record any other assessment to falsify the surveyor report (Annexure R-2). Hence, to our mind, the claim of the Complainant cannot be addressed beyond Rs.4,52,837/- as assessed by the Surveyor.  The Opposite Parties have failed to defend their version by bringing on record any cogent, reliable and trustworthy evidence, to falsify the claim of the Complainant. Furthermore, there is no other objection, except for the non-fulfillment of the warranty clause by the Complainant; hence, the Opposite Parties themselves have failed to prove that such a condition was known to the Complainant and that the Complainant had failed to take genuine precautions on these parameters. In these set of circumstances, the present complaint deserves to succeed against the Opposite Parties.

11.              In the light of above observations, we are of the concerted view that the Opposite Parties are found deficient in giving proper service to the complainant. Hence, the present complaint of the Complainant deserves to succeed against the Opposite Parties, and the same is allowed, qua them. The Opposite Parties are directed:-

[a]     To pay the assessed amount of Rs.4,52,837/- to the Complainant;

 [b)    To pay Rs.10,000/-on account of deficiency in service and causing mental and physical harassment to the Complainant; 

[c]    To pay Rs.7,000/- as cost of litigation;

12.              The above said order shall be complied within 45 days of its receipt by the Opposite Parties; thereafter, they shall be liable for an interest @18% per annum on the amount mentioned in per sub-para [a] & [b] of para 11 above, apart from cost of litigation of Rs.7,000/-, from the date of institution of this complaint, till it is paid.  

13.              Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room.

Announced

15^th May, 2013.                                        

Sd/-

(LAKSHMAN SHARMA)

PRESIDENT

Sd/-

 (MADHU MUTNEJA)

MEMBER

Sd/-

(JASWINDER SINGH SIDHU)

MEMBER

 “Dutt”