Haryana

Karnal

CC/600/2020

Sonia Verma - Complainant(s)

Versus

The Managing Director, HDFC ERGO General Insurance Company Limited - Opp.Party(s)

Lalit Chopra

18 Jul 2022

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KARNAL.

 

                                                       Complaint No. 600 of 2020

                                                        Date of instt.22.12.2020

                                                        Date of Decision:18.07.2022

 

Sonia Verma wife of Shri Satish Kumar Verma aged about 52 years resident of house no.23, Gali no.24, Karan Vihar, Karnal, aged about 52 years (Aadhar no.2390 7613 0169)

…….Complainant.

                                              Versus

 

1.     The Managing Director, HDFC ERGO General Insurance Company Ltd. registered and corporate office: 1^st floor, HDFC House 165/166, Baackbay Reclamation, H.T. Parakh Marg, Mumbai-400020.

 

2.     The Branch Manager, HDFC Ergo General Insurance Company Ltd. SCO no.237, 2^nd floor, Sector-12, City Centre, Karnal.

 

                                                                      …..Opposite Parties.

 

Complaint Under Section 35 of Consumer Protection Act, 2019.

 

Before   Sh. Jaswant Singh……President.       

      Sh. Vineet Kaushik…….Member

      Dr. Rekha Chaudhary….Member

 

 Argued by: Shri Lalit Chopra, counsel for the complainant.

                    Shri Sanjeev Vohra, counsel for OPs.

 

                      (Jaswant Singh President)

 

ORDER:   

                

                The complainant has filed the present complaint Under Section 35 of Consumer Protection Act, 2019 against the opposite parties (hereinafter referred to as ‘OPs’) on the averments that complainant has purchased a Home Shield Insurance Policy of an amount of Rs.10,00,000/-, vide insurance policy no.2990203363202900000, valid from 19.03.2020 to 18.03.2025. OPs have charged an amount of Rs.36816/- as insurance premium from the complainant. Unfortunately, on 03.10.2020 some unknown persons committed theft in the house of complainant by breaking the locks of house of the complainant and also broken the door of the almirah and stolen cash including dollors currency notes of Rs.12000/- and Rs.38000/- of husband of complainant, 8-8/1/2 total of gold of husband of complainant and two tola’s of gold of complainant. In this regard an FIR no.471 dated 03.10.2020 was lodged with the Police Station Sector 32-33, Karnal. After coming to know about the said occurrence, the complainant gave due intimation to OP no.2 and then OP no.2 got surveyed the house of the complainant through his surveyor and complainant provided all the documents, photographs and bills etc. to the surveyor regarding the loss. The complainant has suffered loss to the tune of Rs.15 lakhs i.e. loss in the shape of gold ornaments, cash, valuable clothes, damaged cause to the house and almirah etc.  Thereafter, complainant lodged the claim with the OPs for the payment of compensation of said amount and completed all the formalities. OPs assured the complainant in terms of insurance policy, 20% amount of the gold ornaments would be given to complainant. The approximately value of stolen gold is Rs.10 lakhs and as such an amount of Rs.2 lakhs would be given to complainant beside other losses. Lateron, OPs sent a mail to complainant, vide which OPs approved the loss of Rs.5000/- to complainant as cost of repairing almirah lock and door of almirah and nothing has been given to complainant regarding the remaining good stolen from the house of the complainant, whereas it is specifically mentioned in the insurance policy that “Home Shield also cover jewellary and valuable max upto 20% of contents assured” hence in terms of said policy complainant is entitled for another sum of Rs.2 lakhs from the OPs. After getting this mail complainant approached OPs on number of times to settle the entire claim as per the terms of the said insurance policy, but OPs did not pay any heed to the request of complainant, on one pretext or the other. Then complainant sent a legal notice dated 16.11.2020 to the OPs but it also did not yield any result. In this way there is deficiency in service and unfair trade practice on the part of the OPs. Hence this complaint.

2.             On notice, OPs appeared and filed its written version raising preliminary objections with regard to maintainability and concealment of true and material facts. On merits, it is pleaded that as per terms and conditions of the policy, jewellary is not covered under the policy. It has to be specifically mentioned in the schedule of the policy as mandated under the definition of “content” of the policy, the jewellary is not mentioned under the policy schedule. It is further pleaded that the claim in dispute pertains to the claim of burglary under Home Shield Insurance Policy having policy no.2990203363202900000, valid from 19.03.2020 to 18.03.2025. As alleged in the complaint, on 03.10.2020 some unknown miscreants entered into the premises of the insured and they stole away cash of Rs.50,000/- and around 10.5 tola gold Jewellary from the almirah. It is pleaded that in case if any claim would arise against the OPs, then it shall be payable subject to terms and conditions of the insurance policy. On receipt of intimation, the OPs have appointed a surveyor and loss assessor to examine and verify the genuineness of the claim. As per report of surveyor the liability of OPs came out to be Rs.5000/- as per policy condition. During the survey, the claim damages were taken into consideration and thereafter the surveyor observed that:-

“As the jewellary is not fall under the coverage of contents, therefore, the same have not considered.

Further, the insured has also claimed Rs.1,50,000/- for the repairing cost of floor marble, doors, kitchen mirror glass and almirah, however such part is not covered in the policy being part of building. We have considered repairing cost damaged almirah as same is the part of content.” It is further pleaded that in case if any claim would arise against the OPs, then it shall be payable subject to terms and conditions of the insurance policy. As per terms and conditions of the insurance policy, jewellary is not covered under the policy. The relevant policy condition is reproduced as under:-

        Definitions

The following words or terms shall have the meaning ascribed to them wherever they appear in this policy, and reference to the singular or to the masculine shall include references to the plural and to the female wherever the context so permit:

6.  Contents shall include: Furniture, fixtures, fittings, cupboards including inbuilt Cupboards, Electrical fittings, sanitary fittings electrical and electronic appliances, Crockery, Cutlery, Steel Utensils, Clothing and Personal Effects, Drapery, Pedal cycles, other Household Articles not older than 10 years whilst stored or lying in the Insured’s “Building” but excludes Portable Equipments, Jewellary and Valuables. Works of Art, Painting, Curios, Bonds, Cheques, Documents, Cash and currency Notes and Coins, Credit and Debit Cards.

It is pleaded that from the abovementioned definition and from the contents of sum insured basis, it becomes prima facie clear that coverage of valuables and jewellary are not included in the definition of content which is covered and valuables and jewellary are add on coverage for which additional premium need to be paid. In the present case, the term “jewellary” was not specifically stated in the policy schedule, as no additional premium is paid against the same, hence jewellary was explicitly outside the ambit of the policy coverage. Therefore, the liability reached is just and proper and on the basis of policy terms and conditions. There is no deficiency in service on the part of the OPs. The other allegations made in the complaint have been denied by the OPs and prayed for dismissal of the complaint.

3.             Parties then led their respective evidence.

4.             Learned counsel for complainant has tendered into evidence affidavit of complainant Ex.CW1/A, copy of insurance policy Ex.C1, copy of FIR Ex.C2, copy of legal notice Ex.C3, postal receipt Ex.C4, Regd. AD Ex.C5 and Ex.C6, copy of bills of jewellary Ex.C7 to Ex.C10, copy of loan sanction letter from Muthoot Finance Ltd. Ex.C11, copy of Aadhar card Ex.C12 and closed the evidence on 06.10.2021  by suffering separate statement.

5.             In additional evidence, complainant has tendered copy of untrace report Ex.C13 and closed the additional evidence on 11.07.2022 by suffering separate statement.

6.             On the other hand, learned counsel for OPs has tendered into evidence affidavit of Manoj Kumar Prajapati, authorized signatory Ex.RW1/A, copy of insurance policy alongwith terms and conditions Ex.R1 and closed the evidence on 09.03.2022 by suffering separate statement.

7.             In additional evidence, OPs have tendered copy of investigator report Ex.R2 and closed the additional evidence on 13.05.2022.

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

9.             Learned counsel for complainant, while reiterating the contents of the complaint, has vehemently argued that complainant has purchased a Home Shield Insurance for the sum insured of Rs.10,00,000/- from the OPs. On 03.10.2020 some unknown persons committed theft in the house of complainant and had stolen cash including dollors currency notes of Rs.50000/- and 10-10½  total of gold. In this regard an FIR no.471 dated 03.10.2020 was lodged with the Police Station Sector 32-33, Karnal. The intimation was given to the OPs, on receipt of intimation, the house of the complainant got surveyed by the surveyor of the OPs, complainant provided all the document to the surveyor regarding the loss. The complainant has suffered loss to the tune of Rs.15 lakhs.  Complainant lodged the claim with the OPs for the payment of compensation of said amount but OPs did not pay the claim. He further argued that now the OPs relied upon the terms and conditions of the allged Home Shield Insurance Ex.R1 which was never supplied to the complainant. Rather OPs had supplied the copy of Home Shield Insurance Ex.C1, wherein it has been specifically mentioned that Home Shield Insurance also covers jewellary and valuable maximum upto 20% of your content sum insured. He further argued that initially surveyor of the OPs had assessed the loss to the tune of Rs.2,05,000/- but lateron came to the conclusion that the loss is only Rs.5000/-, which is arbitrary and unjustified and lastly prayed for allowing the complaint.

10.           Per contra, learned counsel for the OPs, while reiterating the contents of written version, has vehemently argued on receipt of intimation regarding the theft in the premises of the complainant, the OPs have appointed a surveyor and loss assessor to examine and verify the genuineness of the claim. As per report of surveyor the liability of OPs came only Rs.5000/-.  He further argued that as per terms and conditions of the policy, jewellary is not covered under the policy as the jewellary is not mentioned under the policy schedule and lastly prayed for dismissal of the complaint.

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

12.           Admittedly, complainant had purchased Home Shield Insurance policy from the OPs, valid from 19.03.2020 to 18.03.2025, for the sum insured Rs.10 lakhs.  It is admitted that theft was committed during the subsistence of the insurance policy. It is also admitted that  there is no delay to intimate the police and to the OPs.

13.           As per the survey report Ex.R2, the liability of the OPs came out to be Rs.5000/-as per policy condition. The surveyor of the OPs came to the conclusion that jewellary did not fall under the coverage of contents, therefore, the same have not been considered. Further, the insured has also claimed for Rs.1,50,000/- for repairing cost of floor marble, doors, kitchen mirror glass and almirah, but  such part is not covered in the policy being part of building.

14.           It is evident from the Home Shield Insurance Ex.C1 i.e. Transcript between Customer Executive and policy holder, that Home Shield Insurance Policy also covers jewellary and valuable maximum upto 20% of complainant sum insured.  On the basis of the abovesaid transcript, initially surveyor of the OPs has assessed net loss for the tune of Rs.2,05,000/- but lateron the surveyor of the OPs has assessed the net loss for the tune of Rs.5000/- only, on the ground that jewellary is not covered under the policy in question and prepared final survey report Ex.R2. On perusal of the abovesaid report, it is nowhere mentioned that jewellary is not covered in the Home Shield Insurance Policy.

15.           Complainant has also taken a plea that OPs have failed to supply the copy of alleged Home Shield Insurance Ex.R1. The onus to prove that copy of said policy was supplied by the OPs to the complainant lies upon the OPs, but OPs have miserably failed to prove that all the terms and conditions of the policy were explained and supplied to the complainant at the time of insurance, by leading any cogent and convincing evidence.  Hence, plea taken by the complainant is having force. In this regard, we relied upon case titled as New India Assurance Co. Ltd Versus Anil Manglunia 2016 (1) CPR 150 (NC),wherein Hon’ble National Commission held that OPs failed to provide policy clause to the complainant and rejected genuine claim of the complainant. Hence, they do not find any merit in the revision petition and the same is hereby dismissed.

16.            There is nothing on the file that OPs have supplied the Insurance policy Ex.R1 to the complainant. Furthermore, there would be no useful purpose for purchasing the type of policy by paying the huge premium, vide which jewellary or valuable articles are not insured.

17.           It is evident from the First Information Report (FIR)  Ex.C2, the matter was reported to the concerned police station and it is also evident from the untrace report Ex.C13, the stolen articles could not be traced out and concerned police has submitted the untrace report before the Illaqa Magistrate.

18            It is also evident from the jewellary bills Ex.C7 to Ex.C10 that complainant was possessing in the jewellary articles and it is also evident from Ex.C1 i.e. the transcript between the customer executive and complainant, the surveyor of the OPs has assessed the loss of the jewellary for the tune of Rs.2,00,000/-and total loss has been assessed for the tune of Rs.2,05,000/-.

19.           As per surveyor report Ex.R2, the net loss comes for the tune of Rs.5000/- only. The surveyor’s report in this regard is thus arbitrary, unjustified, biased, based on presumptions and assumptions and it is not last word for determination of actual loss. In this regard, we are also relied upon the judgment of the Hon’ble Supreme Court of India in case titled as New India Assurance Company Limited vs. Pradeep Kumar (2009 (6) SCALE, 253) wherein it was held that “The surveyor’s report is not the last and final word. It is not that sacrosanct that it cannot be debarred 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.” 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. In the present case, we are also of the considered opinion that the surveyor has assessed the loss favouring the opposite parties and, therefore, same cannot be given more weightage. 

20 Further,Hon’ble Punjab and Haryana High Court in case titled as New India Assurance Company Ltd. Versus Smt. Usha Yadav & others 2008 (3) RCR (Civil) 111, 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.

 

21.           Keeping in view the ratio of the law laid down in the abovesaid judgments, facts and circumstances of the complaint, we are of the considered view that act of the OPs amounts to deficiency in service and unfair trade practice. 

22.           Initially surveyor of the OPs has assessed net loss for the tune of Rs.2,05,000/- and lateron surveyor approved the loss of Rs.5000/- only. On the other hand, complainant has proved the value of the gold  by placing the purchasing bills of the gold. Hence the complainant is entitled for the amount of Rs.2,05,000/- as initially loss assessed by the surveyor of the OPs, alongwith interest, compensation and litigation expenses etc.

23.           Thus, as a sequel to abovesaid discussion, we allow the present complaint and direct the OPs to pay Rs.2,05,000/- (Rs.two lakhs five thousand only) to the complainant alongwith interest @ 9% per annum from the date of repudiation of the claim till its realization. We further direct the OPs to pay Rs.20,000/- to the complainant on account of mental agony and harassment and  Rs.5500/- towards the litigation expenses. This order shall be complied with within 45 days from the 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:18.07.2022     

 

                                                              

                                                                  President,

                                                     District Consumer Disputes

                                                     Redressal Commission, Karnal.

 

 

(Vineet Kaushik)        (Dr. Rekha Chaudhary)

                           Member                          Member