<br /> BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM<br /> VAZHUTHACAUD, THIRUVANANTHAPURAM.<br /> PRESENT<br /> SRI. G. SIVAPRASAD : PRESIDENT<br /> SMT. BEENAKUMARI. A : MEMBER<br /> SMT. S.K.SREELA : MEMBER<br /> O.P.No. 151/2005 Filed on 12.05.2005<br /> Dated : 15.05.2008<br /> Complainant:<br /> <br /> Baroma Viji,(Proprietrix, Viji Internet Café), Viji Bhavan, Poonthura P.O, Thiruvananthapuram – 695 026.<br /> <br /> (By adv. John Lawrence & Goosha Velavoor)<br /> <br /> Opposite parties:<br /> <br /> 1.The Managing Director, M/s New India Assurance Company Ltd. New India Assurance Building, 87 Mahatma Gandhi Road, Bombay – 400001.<br /> <br /> 2.The Manager, M/s New India Assurance Company Ltd., Palayam, Thiruvananthapuram. <br /> <br /> 3.The Branch Manager, M/s New India Assurance Company Ltd., Government Press Road, Thiruvananthapuram. <br /> <br /> (By adv. Sreevaraham G. Satheesh)<br /> <br /> <br /> This O.P having been heard on 07.04.2008, the Forum on 15.05.2008 delivered the following:<br /> ORDER<br /> SRI. G. SIVAPRASAD: PRESIDENT<br /> This complaint is filed for directing the opposite parties to pay the complainant the insurance claim of Rs. 51350/-. Further relief sought for is for awarding Rs. 25000/- towards compensation and also for awarding costs. The case of the complainant is that complainant was a woman entrepreneur who was running an Internet café known by the banner Viji Internet Café at Kovalam, Vizhinjam. The complainant was thus eking out her livelihood by means of self-employment. Complainant had procured 7 computers on 26.06.2002 having warranty period of one year. 5 computers were networked for Internet purposes through server client arrangement. Complainant had subscribed for an electronic equipment insurance policy for the computers and Photostat machine installed in her Internet café as per policy No. 760502/44/02/30124 dated 17.10.2002. The computers and other related systems in the premises got insured from the opposite parties for an amount of Rs. 525000/- and paid an amount of Rs. 11042/- as per receipt No. 7154 dated 17.102002. The computers got damaged together with monitor probably due to over power on 21.07.2003. The matter was reported to the opposite parties and necessary claim form obtained on 22.07.2003. The claim was estimated by the authorized service center and supplier of computers Indtech Computers, Muttada, Thiruvananthapuram at Rs. 51350/- on 27.07.2003 where the computers were transferred for repair as authorized by the opposite party. The claim was lodged with opposite parties along with the estimate on 28.07.2003. On 30th July the complainant contacted the opposite parties over phone and received information to repair the computer and keep the changed parts sealed for verification, which is the normal practice. This was precisely the reason for repairing and keeping the removed parts. But it was not in a dismantled condition at the time of inspection. Opposite parties deputed a surveyor who visited the service center on 11.08.2003 after a lapse of nearly two weeks. Opposite parties issued a letter on 23.09.2003 that the computers were in a dismantled condition only to justify their deficiency in service and to deny the legitimate claim of the complainant. The claim was submitted along with estimate on 28.07.2003, but opposite parties alleged that they received the claim only on 08.08.2003 is patently incorrect and false. Complainant had written a reply on 05.10.2003 to honour the claim based on the valuation made by the computer-servicing center. But the opposite parties kept quiet. The complainant is incessantly contacted in person, over telephone and through letters. The opposite parties are perpetrating unfair trade practice, unscrupulous exploitation and deficiency in service by sleeping over the just and fair claim of the consumer. The complainant is put to irreparable injury, undue hardship, severe mental agony and loss which should be huge and punitive but limit the claim at Rs. 25000/- which the opposite parties are liable to pay. Hence this complaint claiming insurance claim of Rs. 51350/-, compensation of Rs. 25,000/- and cost of the proceedings.<br /> <br /> Opposite party entered appearance and filed version contending that complainant has availed an Electronic Equipment Insurance Policy and submitted a claim form on 08.08.2003 claiming compensation for loss sustained to the insured equipment. A surveyor was deputed for assessing the loss. The surveyor visited the Indtech computers on 11.08.2003 and found that the damaged parts of the computers were placed in a dismantled condition. As different parts belonging to different computers were produced it was not possible for the surveyor to arrive at a conclusion whether the damaged parts belong to the insured equipments. The surveyor submitted a report to that effect. The dismantling of the computers before inspection from the side of the opposite parties is illegal and policy violation. The surveyor was not able to arrive at a conclusion regarding whether the insured equipment sustained damage. The damaged parts in a dismantled condition were assessed by the surveyor and its value came to Rs. 31200/-. But the complainant is not even entitled for getting that amount because the illegal act of the complainant in dismantling the equipment before the inspection, making the opposite parties unable to understand the genuineness of the claim is a policy violation and the claim is not payable. The fact was informed to the complainant vide letter dated 20.10.2003 and requested to instruct the repairer to keep the computers in an identifiable manner and inform the opposite party to complete the survey in their presence. But no opportunity was given by the complainant. Hence opposite party was having no other way than to repudiate the claim. Repudiation was intimated to the complainant by registered letter dated 11.03.2004. But the same was returned unserved. The opposite parties never authorized the complainant to give the computers to any service center. The averment that the complainant contacted the opposite party over phone and received information to repair is utter false. The opposite party will never agree for starting repairing before survey is conducted. The survey will be arranged only after the receipt of the filled up claim form. Complainant submitted the filled up claim form only on 08.08.2003. Immediately surveyor was deputed and he visited on 11.08.2003. The allegation that there is a lapse of two weeks in deputing the surveyor is false. The said allegation is raised by the complainant to cover up the delay on the part of the complainant. The acts of the complainant are suspicious and lack good faith. There is no unfair trade practice, unscrupulous exploitation or deficiency in service on the part of the opposite parties. The allegations are false. Hence prayed for dismissal of the complaint. <br /> <br /> The points that would arise for consideration are:<br /> (i)Whether there has been deficiency in service on the part of opposite parties?<br /> (ii)Reliefs and costs.<br /> <br /> On the part of complainant, Power of Attorney holder of the complainant as PW1 filed proof affidavit and Exts. P1 to P12 were marked. On the part of opposite parties DW1 and DW2 were examined and Exts. D1 to D7 were marked. <br /> <br /> Points (i) and (ii):- The first point requiring consideration is whether there has been deficiency in service on the part of opposite parties. The case of the complainant is that complainant has taken an electronic equipment policy from the 3rd opposite party insuring computers and Photostat machine installed in her internet café, for an amount of Rs. 525000/-. Ext. P2 is a photocopy of the Electronic equipment insurance. As per Ext. P2 policy number is 760502/44/02/30124 and policy period is 17.10.2002 to 16.10.2003. The computers got damaged together with monitor on 21.07.2003. The matter was reported to opposite parties and complainant obtained the claim form on 22.07.2003. The claim was lodged with opposite parties along with estimate. Ext. P4 is the copy of the claim form. Ext. P5 is the copy of estimate prepared by the repairer. The submission by the complainant is that the claim was lodged with the opposite parties on 28.07.2003, while the counsel appearing for opposite parties submitted that the claim was lodged on 08.08.2003. Ext. D4 is the original of the claim form, on the top which two dates are endorsed – 22.07.2003 and 08.08.2003. PW1 during cross-examination deposed that he directly lodged the claim form with opposite parties on 28.07.2003. But in Ext. P4 (copy of the claim form) the said date is not seen. While in the original of the claim form (Ext. D4) the space given for date at the bottom of the form is seen torn or worn out. Ext. D4 was in the custody of opposite parties. The date, 08.08.2003, may be written by the office of the opposite party. PW1 deposed that the D4 form was filled by his daughter, the complainant, but the date was written by himself at the time of lodging it. On re-examination PW1 deposed that the date was not seen in Ext. P4 since the photocopy was taken before putting the date in the original claim form (D4). Further the date shown in Ext. P5, the estimate prepared by the repairer, is initially printed as 21.07.2003, then it is seen re-written as 27.07.2003. DW2 on cross-examination deposed that opposite parties never be kept register showing the dates of issue and receipt of the claim form. It is the officer concerned who received the claim form would put initial and date on it. According to DW2, the D4 was issued on 22.07.2003, but the space given for date in Ext. D4 was worn out. DW2 in his cross-examination deposed that the claim form was received in opposite parties’ office on 08.08.2003. This is seen at the top right of Ext. D4. There is no case by the complainant that the bottom portion of Ext. D4 where the space given for date was torn by the opposite party. Even the opposite party challenged the evidence adduced by PW1, the power of attorney holder of the complainant, on the ground that Ext. P1 power of attorney does not authorize him to give evidence. We cannot disbelieve the evidence of opposite parties since the same is disproved otherwise by the complainant. We find the date of presentation of claim is 08.08.2003. <br /> Submission by opposite party is that a surveyor was deputed for assessing the loss. The surveyor filed private and confidential Engineering Survey Report dated 09.09.2003. Ext. D3 is the survey report. A perusal of Ext. D3 would reveal that date of request for survey is 08.08.2003, date of survey is 11.08.2003, place of survey-Indtech Computers, PB No. 6515, Muttada P.O, Thiruvananthapuram. In Ext. D3, surveyor noted that the damaged parts of computer of the complainant were seen in a dismantled condition and parts placed on a table. All parts shown were found faulty. In Internet Café one main system acts as a SERVER to which some computers, which serve as NODES, are connected through Hubs. Since these were in a dismantled condition and different parts belonging to different computers produced, it was not possible to assess how many of the NODES were faulty and verify whether damaged parts belong to the INSURED ICL NODES. Under these circumstances the damages to the above mentioned parts cannot be considered. The surveyor was examined as DW1. During cross-examination DW1 deposed that he had assessed the value of dismantled parts as indicated by the service center representative of the complainant. DW1 further deposed that he had seen the estimate prepared by the complainant, but all the items stated in the complainant’s estimate were not there at the time of inspection. DW1 further deposed that he could not identify the dismantled parts as the parts of insured computers. If the damaged computers were dismantled in the presence of surveyor then he could very well be identified the dismantled parts. In the version it is pleaded that dismantling before inspection has prevented the opposite parties to know about the genuineness of the claim, whether the damaged parts are actually those of the insured computers etc. As per the contract of insurance utmost good faith is required on both sides. The counsel of opposite party asserts that in this case, the acts of the complainant are suspicious and lack of good faith. In this connection, it is to be noted that Ext. P6 is the letter dated 23.09.2003 issued by the opposite party to the complainant. As per Ext. P6 it is informed by the opposite party that since the computers were in a dismantled condition and different parts belonging to different computers were produced the surveyor could not conduct the survey and assess the loss. Hence complainant was requested to inform the opposite parties within 7 days of the receipt of P6 the reason for dismantling the computers before inspection of the representative of the company. Ext. P7 is the copy of the reply to Ext. P6. As per Ext. P7 complainant sought more time for detailed reply. Ext. P8 is the copy of the detailed reply dated 05.10.2003 to Ext. P6 sent by the complainant. Nowhere in the Ext. P8 is it mentioned the date of presentation of the claim form. The reason stated in the Ext. P8 is that since the institute was in dire need of computers and complainant assessed the loss from the authorized service center from whom the computers were purchased. M/s Indtech computers only unscrewed the unit for carrying out repairs. The allegation to the contrary is not correct. The loss assessed by M/s Indtech Computer to Rs. 51350/- is the exact damage caused to the five computers is reasonable and is only to be honoured. D6 is a copy of the letter dated 20th October 2003, issued by the opposite party to the complainant requesting the complainant to instruct the repairer to keep the computers in an identifiable manner. The counsel of opposite party submitted that Ext. D6 was sent to the complainant to complete the survey in the presence of complainant. Ext. D7 is the copy of letter dated 11.03.2004 sent to the complainant by the opposite party informing that opposite parties are not in a position to consider the claim since complainant has not given opposite parties an opportunity to assess/inspect the allegedly damaged computers. Inspite of letter dated 20.10.2003(P6), complainant had not taken any action to facilitate survey work which is clearly a violation of policy conditions. The submission by the opposite party is that as per clause 4(a) of the General Conditions in Ext. D5 Electronic Equipment Insurance Policy, the representative of the company shall at any reasonable time have the right to inspect and examine the risk and insured shall provide the representatives of the company with all details and information necessary for the assessment of this risk. In this case, opposite party issued D6 letter to the complainant to instruct the repairer to keep the computers in identifiable manner. There was no positive response from the complainant to <br /> Ext. D6. Clause 5 of the General Conditions of Ext. D5, reads as under: <br /> “In the event of any occurrence which might give rise to a claim under this policy the insured shall <br /> a)Immediately notify the company by telephone or telegram as well as in writing giving an indication as to the nature and extent of loss or damage<br /> b)Take all steps within his power to minimize the extent of the loss or damage<br /> c)Preserve the parts affected and make them available for inspection by a representative or surveyor of the company<br /> d)Furnish all such information and documentary evidence as the company may require<br /> e)Inform the police authorities in case of loss or damage due to theft or burglary.<br /> The company shall not in any case be liable for loss, damage or liability of which no notice has been received by the company within 14 days of its occurrence. Upon notification being given to the company under this condition, the insured may carry out the repair or replacement of any minor damage not exceeding Rs. 5000/- provided that the carrying out of such repairs without prejudice to any question of liability of the company and that any damaged part requiring replacement is kept for inspection by the company, but in all other cases a representative shall have the opportunity of inspecting the loss or damage before any repairs or alternations are effected. The learned counsel appearing for the opposite party submitted that there was violation of policy conditions by the complainant. The complainant had dismantled the computers before the visit by the surveyor thereby purposefully shut down the chance to understand about the actual loss if any. The opposite parties were not given an opportunity to inspect the computers in the damaged stage and understand about the genuineness of the claim. In the light of what had been observed above, we find that the rejection of the claim by the opposite party was in observance of the policy conditions, rules and regulations. It is clear that repudiation of the claim of the complainant was not without foundation or justification. It appears that the repudiation was after due application of mind and it was not lacking in bonafides. Hence such repudiation would not amount to deficiency in service. Deficiency in service is not proved. <br /> In the result, complaint is dismissed.<br /> <br /> A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.<br /> <br /> Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the day of 15th May 2008.<br /> <br /> <br /> G. SIVAPRASAD,<br /> President.<br /> <br /> BEENAKUMARI. A : MEMBER<br /> <br /> <br /> S.K. SREELA : MEMBER<br /> <br /> <br /> Jb<br /> C.C.No. 138/2006<br /> APPENDIX<br /> I COMPLAINANT’S WITNESS : <br /> PW1 - Vincent<br /> PW2 - Shaji. T.S<br /> II COMPLAINANT'S DOCUMENTS :<br /> P1 - Power of Attorney (A 190662) executed on 27th December 2005.<br /> P2 - True copy of policy schedule of the New India Assurance Co.<br /> Ltd. with the policy No. 760502/44/02/30124 dated 17.10.2002. <br /> P3 - True copy of receipt No. 7154 dated 21.10.2002.<br /> P4 - True copy of Machinery insurance of policy No. 44/02/30124.<br /> P5 - True copy of estimate for servicing the computer dtd.27.07.03.<br /> P6 - Registered letter dated 23.09.2003 received by the complainant <br /> from the opposite party.<br /> P7 - True copy of letter dated 29.09.2003 issued to the opposite party. <br /> P8 - True copy of letter dated 05.10.2003 issued by the complainant. <br /> P9 - True copy of letter dated 25.06.2004 issued by the complainant <br /> to the 2nd opposite party.<br /> P10 - True copy of letter dated 05.01.2004 issued to the 2nd opposite <br /> party.<br /> P11 - True copy of notice issued to the opposite parties by the <br /> Secretary General, COINPAR dated 17.03.2005.<br /> P12 - True copy of reply notice issued to M/s COINPAR dated <br /> 20.04.2005.<br /> <br /> <br /> <br /> III OPPOSITE PARTIES’ WITNESS :<br /> DW1 - G.P. Harikrishnan<br /> DW2 - Thomaskutty<br /> IV OPPOSITE PARTIES’ DOCUMENTS :<br /> <br /> D1 - True copy of envelope returned unclaimed.<br /> D2 - True copy of policy No. 760562/44/02/30124 dated 17.10.2002.<br /> D3 - True copy of survey report with Ref. No. NIA/BO-<br /> II/23/EGG/03/27 dated 09.09.2003.<br /> <br /> D4 - Original document of machine Insurance of Policy No. <br /> 44/02/30124.<br /> D5 - Electronic Equipment Insurance Policy.<br /> D6 - True copy of claim form dated 20.10.2003.<br /> D7 - True copy of claim form dated 11.03.2004.<br /> <br /> <br /> <br /> <br /> PRESIDENT <br />