O R D E R

SUBHASH GUPTA, MEMBER

The present complainant has been filed by the complaint against O.P under section 12 of Consumer Protection Act, 1986.   The brief facts as alleged in the complaint are that the complainant had obtained a Householder Insurance Policy bearing No.323400/48/07/32/00000361 which was valid from 12.1.2008 to 11.1.2009.  It is alleged that during the subsistence of the aforesaid policy, the complainant suffered a loss in the intervening night of ¾ December, 2008 as the house of the complainants was burgled and some expensive articles were stolen from the complainant’s house.  It is alleged that the matter was duly reported to the Police as well as to the OP by the complainant and a claim had also been lodged.  The matter was also reported to the police and FIR No.322/2008 u/s 380/457 IPC was registered at Police Station Keshav Puram on 4.12.2008.  It is further alleged that vide letter dated 6.2.2009 the complainant requested SHO, PS, Keshav Puram for amendment in FIR regarding weight of gold items which were wrongly mentioned /written in the FIR.  The value of the stolen items/articles at the prices of the gold prevalent at the relevant time was stated to be between 4.5 to 5.0 lacs. It is alleged that pursuant to the lodging of the claim by the complainant, the OP had deputed M/s N.T. Kothari and Co. as surveyor who offered to settle the matter amicably. It is alleged that on the officer of the surveyor the complainant agreed to settle the claim of loss for a sum of Rs.198,200/- but the claim amount has not been paid by the OP.  It is alleged that on 26.12.2008 a letter was received from the OP, wherein it was proposed that the full claim could be settled for a paltry sum of Rs.89,300/- which was not accepted by the complainant.  It is alleged that a notice was sent to the OP on 9.4.2010.   It is alleged the OP has refused to pay the full claim amount to the complainants, though the same is duly covered and payable by the OP, under the policy.  On these facts complainant prays that OPs be directed to pay the insurance claim of Rs.4.50,000/- alongwith interest and also to pay cost and compensation as claimed.

2.     Notice of the complaint was issued to the O.P which has filed its written statement.  In the written statement the O.P has pleaded that after receiving the claim it appointed M/s. N.K. Kothari and Company as Investigator to assess the loss.  The OP after considering all aspects came to the conclusion that a sum of Rs.89,300/- was payable to the complainant as per details mentioned in the FIR and the said amount was offered  but the complainant did not accept the same.  It is alleged that the complainant after lodging the FIR vide letter dated 6.2.2009 wrote to the SHO Keshav Puram that the weight of certain jewellery items were wrongly mentioned and in the FIR the less weight was mentioned.  It is also alleged that the complainant could not substantiate the same by any concrete and cogent evidence and accordingly the complainant was not found entitled for the compensation. Thus, there is no deficiency in service on the part of the OP.

3.     The complainant as well as the O.P has filed the affidavits as well as documents in support of their respective cases.

4.     We have gone through the pleadings as well as documents filed by both the parties and heard counsels at length. It has been argued by the counsel of the complainant that Surveyor M/s N.K. Kothari and Company has taken consent of the complainant for amicable settlement of the claim by paying Rs.198,200/- which was later on retracted by the Insurance Company and voucher of Rs. 89,300/- only was sent to the complainant.  The complainant had returned the same as he was not satisfied with the amount offered.  Our attention has also been drawn to the legal notice issued by the complainant and reply dated 15.4.2010 received on behalf of Insurance Company. In reply to the notice of the complainant, the OP has stated that the amount of Rs.89,300/- was worked out after going through the FIR and conditions of policy. It was further stated in the reply that the amount of Rs.1,98,200/- was not found payable due to wrong weight of the gold items was mentioned in the FIR and the theft was not authentic.  It has also been argued on behalf of complainant that in FIR less weight of the gold ornaments was wrongly stated for which a letter dated 6.2.2009 was also written to the concerned SHO.  FIR was got registered on 4.12.2008 and the letter requesting correction of weight was received in the Police Station on 6.2.2009.  The complainant has also filed untraced report of the case from the Police Station Keshav Puram, New Delhi.  It will not be out of place to mention here that details of gold items are also mentioned in the legal notice issued on behalf of complainant.

5.     In reply to the argument addressed by the complainant’s counsel, the OP has submitted that the report of the surveyor always remains without prejudice to the rights of the insurer and the claim is allowed after considering all the aspects of a particular matter.

6.         We have gone through the copy of the policy placed on record by the complainant in which details of the articles have been stated in the policy schedule.  The Insurance policy covers detailed items under household Insurance Policy.  This policy is not in dispute.  It is also not disputed that a case u/c 457/380 of IPC vide FIR No.322/08 was registered with Police Station Keshav Puram, Delhi regarding theft of the gold items.

7.     The complainant has written a letter to the concerned police station for correction of weights with respect to the following items:

8.     We have carefully considered the contention of both the parties.  Insurance policy is just like a contract between the insurer and the Insurance Co.  The details of the gold items mentioned in the policy if lost during the theft is liable to be indemnified. The insurer has declared the items which the Insurance Co. which has accepted the same on its face value and insured the complainant. Therefore, it cannot shirk from its liability to indemnity the insured.

9.     We have also carefully scrutinized the details of gold items mentioned in the policy as well as stated in FIR.  Whenever, there is burglary or theft in anybody’s house persons get perplexed, confused and tense and in such an atmosphere mistakes in detailing the exact weight etc. may occur while reporting the matter to the Police.  IN the present case also such incident has happened and for curing the same a request was made to SHO, PS, Keshav Puram, Delhi for correction of FIR viz-a-viz weights of the gold items was made.  Even otherwise the items mentioned in the FIR cannot be made in the quantity of the gold as stated in the FIR.  The correct weights given in the letter appears more reasonable and logical.  Also the weights of items of the gold find mentions in the Insurance Policy.  Therefore the refusal of OP to not to release the amount assessed and offered by the surveyor/investigator @ Rs.1,98,200/- was un-justified and illegal.  The report of police about the theft stand proved by filing of FIR with the Police Station Keshav Puram.  The case has been sent as untraced on 11.02.2009.  In view of discussion made above, we are of the view that the OPs are liable to pay Rs.1,98,200/- as assessed and offered by the surveyor to the complainant.

10.    The complainant has failed to lead any evidence regarding theft of Rs.60,000/- cash, therefore the same cannot be awarded.  Therefore, we are of the considered opinion that OP by not releasing the sum assessed by the surveyor have committed deficiency in service.  Hence, OP is therefore, directed to pay the sum of Rs.1,98,200/- for loss caused to the complainant due to theft alongwith interest @ 6% from the date of filing of complaint till its realization.  Complainant is also entitled for sum of Rs.10,000/- towards mental agony and harassment which will also include  the cost of litigation.  OP is also directed to pay this amount within 45 days of the receipt of the order.  Ordered accordingly.

Copy of the order be sent to the parties as per rules.

  Announced this 21^st day of January, 2016.

(K.S. MOHI)           (SUBHASH GUPTA)           (SHAHINA)

   President                       Member                    Member