Delhi

North East

RBT/CC/301/2022

Ram Prasad - Complainant(s)

Versus

The New India Assurance Co. Ltd. - Opp.Party(s)

18 May 2023

ORDER

   DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION: NORTH-EAST

GOVT. OF NCT OF DELHI

D.C. OFFICE COMPLEX, BUNKAR VIHAR, NAND NAGRI, DELHI-93

 

RBT/Complaint Case No.301/22

 

In the matter of:

 

 

1.         2.	Ram Prasad S/o Sh. Nannu Singh R/o F-144, Vardhavan Enclava, Shiv Vihar, Karala, Delhi-110081   Sachin Electricals, Through its Prop. Ram Prasad, Shop/Flat No. 132, Pkt 7, Sector 2 Rohini, Delhi-110085	Complainants
	Versus
1.         2.	The New India Assurance Company Ltd., Through its Branch Manager Laxman House, 3-10/11, Asaf Ali Road, New Delhi-110002   The Union Bank of India (Financer) Through its Branch Manager, C-15, Community Centre, Janakpuri, New Delhi-110058	Opposite Parties

 

DATE OF INSTITUTION:        JUDGMENT RESERVED ON:                        DATE OF ORDER  :

26.02.2018 16.12.2022 18.05.2023

 

 

 

CORAM:

Surinder Kumar Sharma, President

Anil Kumar Bamba, Member

Adarsh Nain, Member

 

ORDER

Anil Kumar Bamba, Member

The Complainant has filed the present complaint under Section 12 of the Consumer protection Act, 1986.

Case of the Complainant

1. The case of the Complainant as revealed from the record is that the Complainant had a small electrical shop for earning his livelihood. The Complainant had taken an insurance policy from the Opposite Party No. 1 for the said shop bearing policy no. 32340048160600 00 00 26. The sum insured is Rs. 10,00,000/- for the said policy and period was 16.05.2016 to midnight 15.05.2017. Unfortunately, in the night of 13.09.2016/14.09.2016 the said shop caught fire due to short circuit and immediately, the Police department, Fire Brigade, the Complainant and Insurance Company was also informed. In this regard, the Complainant made a complaint in Police department also. The Delhi Fire Department also gave its report in this matter. The Complainant intimated the Opposite Party no. 2 also. After this miss-happening, the Complainant approached the Opposite Party No. 1 and its officials/surveyor also for claim of loss of the said shop. The Complainant submitted claim estimate Rs. 14,18,000/- against the said policy. The Complainant supplied all the relevant documents/information as and when asked by the Opposite Party No. 1 but the officials of the Opposite Party No. 1 asked again and again for wastage stock of goods which became coal and dust, thus the Opposite Party No. 1 was not giving proper response in this matter nor releasing the total claim. The whole stock damaged and less damaged stocks was seen at the spot and photographs were taken by the surveyor. The Complainant was told by the Opposite Party to prepare list of loss/damaged goods. The said list was prepared and given to the Opposite Party No. 1 along with other documents also. In this regard, a Certificate regarding wastage thrown is given by three reputed persons of Complainant locality on stamp paper is also given to the Opposite Party No. 1. The surveyor already verified the invoice/bills from the distributors. The surveyor also seen at the spot place and photographs were also taken by the surveyor. Opposite Party No. 1 only released amount of Rs. 3,70,223/- to the Opposite Party No. 2. Opposite Party No. 2  did not release the total claim amount. The Complainant approached the Opposite Parties several times for release of claim amount of Rs. 10,00,000/- but Opposite Parties did not releasing the claim. Complainant has prayed to direct the Opposite Party No. 1 to release the balance claim amounting Rs. 6,30,000/- with interest 24 % p.a. till its realization., Rs. 5,00,000/- on account of mental harassment and Rs. 25,000/- on account of litigation expenses.
2. Opposite Party No. 2 did not file written statement within the stipulated time despite received the complaint copy on 04.09.2019. Therefore, its right to file the same is closed vide order dated 13.02.2020.

Case of the Opposite Party No. 1

3. Opposite Party No. 1 contested the case and filed their written statement. The case of the Opposite Party No. 1 is this Hon'ble Forum has no jurisdiction to entertain the present complaint as there is an Arbitration Clause i.e. condition No. 10 of the Policy, therefore, the Complainant be directed to invoke Arbitration Clause for adjudication of the matter. Hence, the present complaint is not maintainable and is liable to be dismissed. It is further submitted by the Opposite Party No. 1 that the Complainant had obtained the Shopkeepers Insurance Policy from the Opposite Parties  being policy no. 32340048160600000026 valid for the period from 16.05.2016 to 15.05.2017 in the name of UBI, Janakpuri, A/C Mr. Ram Prasad Proprietor Sachin Electricals and paid the requisite premium for the same. It is submitted that all the types of Electricals items, wires, CFL, Clock and parts were covered for a sum of Rs. 10,00,000/-. On 14.09.2016 a fire took place in the insured premises i.e. shop of insured and intimation in this regard was given to the Opposite Party No. 1 through mail by Opposite Party No. 2 on 14.09.2016 for destroy of stock near about 6-7 lacs and accordingly, the Opposite Party No. 1 very promptly and diligently on the very same day appointed a Government Approved and licensed Surveyor and Loss Assessor namely Ravi K Singhal Associates Insurance Surveyor & Loss Assessor Pvt. Ltd to assess the loss. The surveyor and loss Assessor wrote letters and reminders to the Complainant for submissions of requisite documents and information to proceed further with the matter. The Surveyor and Loss Assessor, after through Survey assessed the net loss for a sum of Rs. 3,70,514/- and submitted its report dated 19.01.2017 to the Opposite Party No. 1. Complainant failed and neglected to get the damaged stock disposed off the same. Thereafter, completion of formalities the Opposite Party No. 1 processed the claim of the Complainant vide fire claim note dated 27.03.2017 and intimated the Opposite Party No. 2 vide mail dated 29.03.2017 and paid/transferred a sum of Rs. 3,70,233/- after certain deduction in the account of the complainant through NEFT on 30.03.2018 in full and final settlement of the claim of the Complainant as assessed by the surveyor. The Complainant lodged grievance with the Opposite Party No. 1 regarding the low amount. It is further submitted that the Opposite Party No. 1 duly replied the grievance letter of the Complainant and made him clarified that “Since you did not give any opportunity to the Surveyor to verify the damaged as well as saved stock. The Surveyor has made deduction from the claimed amount and has recommended the amount of Rs. 3,70,514/- which was duly paid to you on 30.03.2017. We hope we have clarified the matter.” It is further submitted that since, the Opposite Party No. 1 had already settled the claim of the Complainant and paid the net loss to the Complainant and nothing is due and payable to the Complainant by the Opposite Party No. 1 and hence the present complaint is nothing but an abuse of process of law and therefore, the present complaint is not maintainable and the same is liable to be dismissed with heavy costs. The Complainant had grossly violated the conditions no. 11 of the policy. It is submitted that non compliance with policy conditions is a violations of condition precedent to liability and hence, no claim can be setup where there is a breach of conditions of the policy of insurance. It is submitted that the insurance policy clearly states under condition no. 11 as under:

11. Observation of Terms and Conditions: “The due observance

and fulfillmet of the terms, conditions and endorsements of

this policy in so far as they relate to anything to be done or

complied with by the insured shall be conditions precedent

to any liability of the Company to make any payment under

this policy. “

4. It is further submitted that the Complainant had wilfully violated the terms and conditions of the policy as he did not allow the Surveyor to inspect the damaged stock despite repeated reminders. It is submitted that the Claim payment is subjected to applicability of average clause No. 9 of the policy conditions which is as under:

9. Average: “(Applicable to Section Nos. II, IV, V, VI)If the property hereby insured shall at the time of any loss or damage be collectively of greater value than the sum insured thereon then the insured shall be considered as being his own insurer for the difference and shall bear a ratable proportion of the loss or damage accordingly. Every item, if more than one of the Policy shall be separately subject to this condition.”

5. It is submitted that the claim amount is subject to excess i.e. 5 % of claim amount subject to minimum of Rs. 10,000/-. It is further submitted that the salvage of the damaged good was the property of the company which should have been deposited with the Company and the Company has the right to dispose It as per its choice, but the Complainant did not allow the Surveyor to even check the damaged and not affected and partly affected items despite repeated reminders from the Surveyor. It is therefore, the Complainant has grossly violated the terms and conditions of the policy and hence, the present complaint is nothing but an abuse of process of law and the same merits to be dismissed on this ground alone. It is further submitted that as per accounts statement submitted by the Complainant, his sales during the Financial Year 2013/14 to September 2016 were Rs. 42,77,539/- and purchase in these years were Rs. 29,61,013/- but as per list of the purchase submitted by the Complainant, he purchased goods worth Rs. 22,11,070/- only against23 bill sin the year 2014, 2015 and 2016. It is further submitted that the Complainant did not submit to the Surveyor the bills of M/s Rajput Electrical whom cash was paid against purchases made on 13.08.2016. It is pertinent to mention here that surprisingly, the Complainant purchased goods amounting to Rs. 12,28,633/- against cheques/DD in the year 2014 and 2015 but in the year 2016 he purchased all the goods against case amounting to Rs. 9,82,437/-. It is further submitted that most of the cash purchase bills submitted are issued in the months from May 2016 to August 2016. Though as the statement of the Complainant, “his business was not going well in comparison to last year”. It is further submitted that the Complainant informed loss amounting to Rs. 6-7 lacs to his Financer, Opposite Party No. 2 and submitted list of damaged goods totalling Rs. 12,90,882.57 including VAT to the Surveyor and he mentioned loss amounting to Rs. 12-13 Lac in Claim Form. It is submitted that in the complaint, loss has been stated as Rs. 14,18,000/-. The Complainant got the stock insured Rs. 10,00,000/- only. In view of the above, it is submitted that the claim of the Complainant in any case is not maintainable and the same is liable to be dismissed. The Complainant is running a business for commercial purposes, it is therefore, the present complaint is not maintainable and the same is liable to be dismissed as held by the Hon'ble Supreme Court of India in Economic Transport Corporation Vs. Charan Spinning Mills (P) Ltd. I(2010) CPJ 4 (SC). It is therefore, the Complainant is not a consumer within the meaning of the Consumer Protection Act and hence, the present complaint is not maintainable and the same merits to be dismissed on this ground alone. Without prejudice to the rights of the Opposite parties, it is submitted that the claim of the Complainant has already paid to them in full and final as assessed by the Licensed and Gov. approved Surveyor and Loss Assessor, it therefore, there is no cause of action ever arose in favour of the Complainant to file the present complaint and/or there is no deficiency of service on the part of the Opposite Parties. The Complainant therefore, does not lie under the provisions of Consumer Protection Act, 1986 and the same is liable to be dismissed.

Rejoinder to the written statement of Opposite Party No. 1

5.  The Complainant filed rejoinder to the written statement of Opposite Party No. 1 wherein the Complainant has denied the pleas raised by the Opposite Party and has reiterated the assertion made in the complaint.

Evidence of the Complainant

6.  The Complainant in support of his case filed his affidavit wherein he has supported the assertions made in the complaint.

Evidence of the Opposite Party No. 1

7. To support its case Opposite Party No. 1 has filed affidavit of Ms. Kavita Jain, Admn. Officer and Shri Ramesh Chand Bairwa, Manager of the Opposite Party No. 1 wherein the averments made in the written statements of Opposite Party No. 1 have been supported.

Arguments & Conclusion

8. We have heard the Ld. Counsel for the Complainant and Opposite Party No.1. We have also perused the file and written arguments filed by the Complainant and Opposite Party No. 1. The case of the Complainant is that he was running a small electrical shop for earning his livelihood and he had taken an insurance policy from Opposite Party No. 1 for the said shop for the sum insured of Rs. 10,00,000/- under the said policy and period of the policy was 16.05.2016 to 15.05.2017. In the night of 13.09.2016/14.09.2016 the said shop caught fire due to short circuit and immediately, the Police Department, Fire Brigade, the Complainant and Insurance Company was also informed about the fire incident. The Complainant also intimated the Opposite Party No.2. The Complainant submitted the claim estimate of Rs. 14,18,000/- under the said policy with Opposite Party No. 1. The Complainant supplied all the relevant documents/information as and when asked by the Opposite Party No. 1 but the officials of the Opposite Party No. 1 asked again and again for wastage stock of goods which became coal and dust. The whole stock damaged and less damaged stocks was seen at the spot and photographs were taken by the surveyor appointed by the Opposite Party No. 1. The said list was given to the Opposite Party No. 1 along with other documents. In this regard, a certificate regarding wastage thrown is also given by three reputed persons of Complainant locality on stamp paper is also given to the Opposite Party No. 1. The surveyor verified the invoice/bills from the distributors and surveyor also visited the accident spot and photographs were taken by them. The Opposite Party No. 1 released an amount of Rs. 3,70,223/- only. The Complainant approached the Opposite Party No. 1 time and again for release the balance amount of total insured value of Rs. 10,00,000/- i.e. around Rs. 6,30,000/-. Opposite Party No.1 raised preliminary objection about the complainant on the ground that since there is Arbitration Clause in the policy, this Forum has no jurisdiction to entertain the present complainant. In this regard, law is well settled and Complainant can approach this Commission in spite of having Arbitration Clause in the policy. The second preliminary objection raised by the Opposite Party No. 1 is that since the Complainant is running a business for commercial purpose therefore present complaint is not maintainable. Complainant is running the said shop for earning his livelihood hence his case is covered under Consumer Protection Act. It is admitted by the Opposite Party No. 1 that the Complainant was having valid shopkeeper insurance policy from them at the time of fire incident for a sum of Rs. 10,00,000/-. It is admitted by the Opposite Party No. 1 that on receiving information regarding the fire incident Opposite Party No. 1 promptly and diligently appointed a Government Approved and licensed surveyor and Loss Assessor. The surveyor and loss assessor, after through survey assessed the net loss for a sum of Rs. 3,70,514/- is as under:

Particular	Amount
Gross Loss	11,85,755/-
Less : Dead Stock 30 %	3,55,727/-
Sub Total	8,30,0,28/-
Less 50% on account of Non verification	4,15,014/-
Sub Total	4,15,014/-
Less Salvage Lum-sum	25,000/-
Net loss	3,90,014/-

 

9. Surveyor submitted its report to the Opposite Party No. 1. Thereafter, completion of formalities the Opposite Party No. 1 processed the claim of the Complainant and paid a sum of Rs. 3,70,233/- after certain deduction in the account of the Complainant in full and final settlement of the claim of the Complainant as assessed by the surveyor. As per survey report of surveyor, they have done verification of the shop, and report is as under:

     “At the time of our visit to the Insured’s shop at Rohini, Delhi we noticed that Shutter of the Insured’s Shop was lying in burnt condition. We further notices that the counter of the shop was lying outside the shop in burnt and damaged condition. Bad burning smell was still oozing from there and complete stock was effected due to fire, heat and water. Huge quantities of Stock of Electricals Items like Wires, Switches, Sockets, Bulbs, LED and lights etc. were lying in fully burn and damaged condition. Complete furniture fixtures and fittings of the shop were lying in effected condition due to fire, heat and water. All the electricals wiring and fitting of the shop were lying in badly burnt and damaged condition. Some of the stock were also lying in good condition. We requested the Insured to segregate all the damaged Stock and submit the list of the same for further verification by us. “   

           

10.  Since surveyor was there for stocks inspection and they have taken more than 50 photographs of the site and they had every opportunity to verify damaged as well as saved stocks, thus in our opinion disallowing of Rs. 4,15,014/- on the ground of non-verification was wrong, so there is deficiency of service on the part of Opposite Party No. 1
11. In view of the facts, complaint is allowed. Opposite Party No. 1 is directed to pay an amount of Rs. 4,15,014/- to the Complainant along with interest @ 6 % p.a. from the date of filing the complaint till recovery. Opposite Party No. 1 is also directed to pay an amount of Rs. 50,000/- on account of mental harassment and Rs. 10,000/- on account of litigation expenses along with interest @ 6 % p.a. from the date of this order till recovery.
12.  Order announced on 18.05.23.

Copy of this order be given to the parties free of cost

File be consigned to Record Room.

(Anil Kumar Bamba)           Member

(Adarsh Nain) Member

(Surinder Kumar Sharma) President