Haryana

StateCommission

CC/269/2018

M/S VENUS DIGITAL COLOUR LAB AND STUDIO - Complainant(s)

Versus

THE NEW INDIA ASSURANCE CO. LTD., - Opp.Party(s)

NAREN PRATAP SINGH

07 Dec 2022

ORDER

 

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

HARYANA PANCHKULA

                  

                                                Consumer Complaint  No.269 of  2018

Date of the Institution:01.05.2018

Date of Final Hearing:  07.12.2022

Date of Pronouncement: 17.01.2023

 

M/s Venus Digital Colour Lab & Studio,  24/3, Main Jocubpura Road, Opposite St. Crispins Sr.Sec. School (Wall Boundary), NearJain Baradari Behind Jain Sant Phool Chand Dispensary,Gurgaon through its proprietor Prem Narang.

                                                                   .….Complainant

Versus

The New India Assurance Co.Ltd., Bharta Shopping Complex, Near Bhiwadi Moad, Rajasthan through Divisional Manager, New India Assurance Co. Ltd., near Super Bakery, Old Railway Road, Gurgaon.

                                                          .….Opposite Party

 

CORAM:   S.P.Sood, Judicial Member

                   Suresh Chander Kaushik, Member

 

Present:-    Mr.Naren Pratap Singh, Advocate for the complainant.

Mr.R.C.Gupta, Advocate for the Opposite Party.

 

O R D E R

S P SOOD, JUDICIAL MEMBER:

 

          The brief facts giving rise for the disposal of the present complaint are that  complainant had purchased an insurance cover for his shop M/s Venus Digital Colour Lab & Studio from the opposite party of validity from 24.08.2011 to 23.08.2012 in respect of the following description:-

Sr. No.	Head	Sum insured in Rupees
1A	Fire and allied perils-building of class A construction only	1000000/-
1B	Fire and allied perils contents excluding money and valuables.	4000000/-
2	Burglary and house breaking	4000000/-
3A	Section 3A (Money in transit)	50000/-
3B	Section 3B (Money in till or counter during business house	50000/-
3C	Money in locked safe in office outside business hours	10000/-
5	Plate glass	500/-
6	Neon and glow sign	4000/-
7	Baggage insurance	80000/-
8	Personal accident	1000000/-
10A	Public Liability insurance	250000/-

 

Unfortunately during the intervening night of 24/25.10.2011, a theft took place in the shop of complainant. In the morning of 25.10.2011, when he came to open the shop he found that locks of the shutter of his shop were broken and even side shutter was also found to be broken on one side and all the cameras placed there had been removed/stolen by some unknown thieves. On 25.10.2011, FIR was registered against unknown persons.  OP was duly informed. All the  requisite documents were also provided to the OP well in time. On 31.10.2011 M/s JCG was appointed surveyor, who assessed the total loss to the tune of Rs.20,04,798.68.  On 02.08.2013, the OP again demanded some more documents to process his claim. The claimant also provided all those documents to the OP. The complainant requested the OP to settle the claim, but after waiting for about  four years, the OP wrongly repudiated the claim on 20.08.2015 on the ground that film processing was also being carried out in the insured shop. Thus there being deficiency in service on the part of the OP, hence the complaint.

2.      Notice of the complaint was issued against the O.P. and the written statement was filed, wherein it was submitted that  complainant being a commercial entity therefore  does not fall under the definition of consumer. The complaint was patently time barred in view of the fact that alleged loss due to theft in question was dated 24/25.10.2011, whereas the complainant was filed the present complaint before District Commission Gurgaon in the year 2015. The plant and machinery lying in the same shop, contradicts the definition of shop whereas film processing come under the manufacturing risk as per all India Fire Tariff. On the basis of the information and the competent authority after due application of mind vide letter dated 28.08.2015, OP has correctly denied the claim on account of non coverage and concealment of material facts of the film processing in the shop in question.   The policy was taken by complainant for the shop and therefore the premium was charged accordingly while issuing the shop keepers policy.  However, complainant did not disclose the kind of manufacturing process being run by him and same amounts to concealment and non disclosure of material facts and whole contract stood vitiated on that count itself.  Thus there being no deficiency in service on the part of the OP, the complaint deserves dismissal.

3.                When this complaint was posted for recording evidence of the parties, counsel for the complainant-Shri Narender Pratap Singh in his evidence tendered sworn affidavit of Prem Narang, proprietor as Ex.CA vide which he reiterated all the averments raised in the complaint and further relied upon various documents Ex.C-1 to Ex.C-13 and closed his evidence.

4.                On the other hand, in order to rebut the evidence led on behalf of the complainant, learned counsel for the O.P. has also tendered the affidavit of Mr.J.C.Gupta, Surveyor and Loss Assessor as Ex.RA and further sought reliance on documents Ex.OP/RX, Ex.OPO/R-1 to Ex.OP/R-5 and closed his evidence.

5.                The arguments have been advanced by Mr.Naren Partap Singh, learned counsel for the complainant as well as Mr.R.C.Gupta, learned counsel for the opposite party.  With their kind assistance entire record including documentary evidence as well as whatever the evidence had been led during the proceedings of the complaint had also been properly perused and examined.

6.                While unfolding his arguments, it was argued by Mr. Naren Partap Singh, learned counsel for the complainant that  during the subsistence of the policy, a theft took place in the shop of complainant. FIR was registered on the same day against unknown persons.  OP was duly informed about this incident. Surveyor was appointed, who assessed the total loss of Rs.20,04,798.68.  Further he  argued that the OPs again and again demanded some documents to process the claim, but, finally the claim was not settled. He further requested the OP to settle the claim, but after waiting for about  four years, OP wrongly repudiated the claim on 20.08.2015 on the ground that film processing was also being carried out in the insured shop. Complaint be allowed as prayed for.

7.                On the other hand, it has been argued by Mr.R.C.Gupta Advocate, learned counsel for the O.Ps. that  complainant  infact concealed the factum of his having installed and using film printing machinery in the shop which contradicts the definition of shop, whereas the taks of film processing come under the manufacturing risk as per all India Fire Tariff and on the basis of the information, the competent authority after due application of mind vide letter dated 28.08.2015 has correctly rejected the claim on account of non coverage and concealment of material facts of the film processing  unitbeing used in the shop in question.   The OPs has rightly rejected the claim and prayed for dismissal of the compliant.

8.                It is pertinent to mention here that initially the complaint was filed in the year 2015, which was allowed vide order dated 05.09.2016. The OP filed appeal No.974 of 2016 before this Commission and during the pendency of the said appeal, complainant withdrew his complaint with liberty to file  a fresh complaint before the court of competent jurisdiction.  This is how complainant approached this Commission and filed the present complaint but it was not accepted by the registry of this Commission due to pecuniary jurisdiction. The complainant filed complaint before Hon’ble National Commission New Delhi, which was disposed of vide order dated 01.03.2018 with directions to file the same before the Hon’ble State Commission.

9.                In view of the above submission and after careful perusal of the entire record, it is not in dispute that  during the subsistence of the policy, the a theft took place in the shop of complainant. FIR was registered on the same day against unknown persons.  OP was duly informed about this incident. It is not disputed that surveyor was also appointed, who assessed the total loss of Rs.20,04,798.68 as per Ex. OP/R-5.  In the report the surveyor, it was found that the complainant has not breached any warranty. The theft took place on 24/25.10.2011, whereas the repudiation letter was issued by the opposite party on 28.08.2015 i.e.  after more than four years from the date of theft.   The shop of the complainant was duly inspected by the authorized representative of the OP still it failed to settle the insurance claim despite the fact that complainant has complied with all its requirements and furnished each and every information and supplied all the required documents from time to time. The OP has issued the policy in the name of Venus Digital Color Lab and Studio, which conveys that it is not a manufacturing entity. That being so,  the OP has illegally repudiated the claim of the complainant after more than four years from the date of incident.   Therefore complainant is entitled for the amount as assessed  by surveyor i.e. Rs.20,04,798.68.

10.              In the light of the above observation and discussion, there are sufficient grounds to accept the complaint and while accepting the complaint,  the O.Ps. are directed to refund of the amount of Rs.20,04,798.68 ( Say Rs.20,04,799/-)   (Twenty Lac Four Thousand Seven Hundred and Ninety Nine only) alongwith interest @ 9%  per annum from  the date of theft till its realization.   In case, there is a breach in making payment within the stipulated period  of  45 days, in that eventuality, the complainant would further be entitled to get the interest @ 12% per annum, for the defaulting period.   The complainant is also entitled of Rs.50,000/- (Fifty Thousand  Only) for compensation of mental and physical agony.  In addition, the complainant is also entitled of Rs.25,000/-  (Twenty Five Thousand Only) as litigation charges.  It is also made clear that for non-compliance, the provisions enshrined under section 72 of the C.P.Act  would also be attractable. 

11.    Applications pending, if any stand disposed of in terms of the aforesaid judgment.

12.    A copy of this order be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986/2019. The order be uploaded forthwith on the website of the commission for the perusal of the parties.

13.    File be consigned to record room.

 

January 17th, 2023          Suresh Chander Kaushik,          S.P.Sood

                                       Member                                    Judicial Member                                 

S.K.(Pvt.Secy)