Haryana

Ambala

CC/273/2011

SANJEEV NEHRA - Complainant(s)

Versus

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

D.V DHINDSA

25 Jan 2017

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMBALA.

 

Complaint Case No.    : 273 of 2011

Date of Institution       : 26.08.2011

Date of Decision         : 25.01.2017

 

 

Sanjeev Nehra S/o Jagpal Singh R/o H.No.91, Housani Road,  Near Sai Baba Temple, Naraingarh, District Ambala.

                                                                                               

……Complainant.

 

Versus

 

The New India Insurance Company Ltd., Branch Office 353503 Opp. Madhu Palace

Jagadhri Road, Yamuna Nagar, 135001 through Branch Manager.

 

                                                                                    ……Opposite Party.

 

Complaint Under Section 12 of the Consumer Protection Act

 

 

BEFORE:       SH. D.N. ARORA,  PRESIDENT.

                        SH. PUSHPENDER KUMAR, MEMBER.

                       

Present:          Sh. D.V. Dhindsa, Adv. for complainant.

                        Sh. Dev Batra, Adv. counsel for Ops.

 

ORDER.

 

                        In nutshell, brief facts of the complaint are that complainant is doing  shop/business of truck tyres of Ceat Company and of spare parts of  motor cycle and scooter  under the name and style M/s Nehra Automobiles Ambala-Nahan road, truck market Naraingarh got insured his business/shop  for an amount of Rs.5.00 lac.  It has been submitted that on 09.07.2010, complainant received a telephone call from  neighbor of his shop  that  theft has been committed his shop and 9 tyres  of truck, Ceat Company having value of Rs.15,000/-each and  spare parts of Rs.1,05,000/- has also been stolen thus the complainant has  suffered  total loss of about Rs.2,40,000/-.   So, the matter was reported to  the police station at Naraingarh and an FIR No.137 dated 09.07.2010 was registered  under section 457,380 IPC but the police cannot find out the thieves.  It has been submitted that since his shop/business  was insured, so he submitted claim with OP insurance company  and submitted all relevant documents and OP company sanctioned a claim of Rs.43935/- towards the loss of Rs.2,40,000/- and the OP flatly refused to release the remaining amount.  Aggrieved from that, complainant got issued a legal notice dated 15.07.2011 but with vague reply. As such, the complainant has submitted that there is deficiency in service on the part of OP and prayed for acceptance of the complaint with relief as per prayer clause.

2.                     Upon notice, OP appeared through counsel and filed written statement raising preliminary objections qua maintainability of complaint, jurisdiction and deficiency on their part. On merits, locus standi, cause of action and suppression of material facts. On merits, it has been admitted that policy in question has been  issued  by them but the policy was not for tyres or spare parts etc. rather the policy in question  was obtained for trading in new scooters/motorcycles etc. however after getting the matter investigated from  Sh. S.S. Bedi, Investigator submitted his report dated 21.03.2011 that there is no policy for scooter/motorcycle for sale & it was stock of tyres, spare parts which was visible in the shop. Further it has been submitted that the value claimed stolen was Rs.2,31,000/- whereas stock physical existed at the premises did not tally with the stock as per books. So, a cheque of Rs.43925/- vide cheque no.000908 dated 09.05.2011 was released that too against discharge voucher as well as Notary attested letter of Indemnity dated 09.05.2011. As such, there is no deficiency in service on the part of Op and prayed for dismissal of complaint with costs.  

3.                     To prove his version, complainant tendered his affidavit as Annexure CX alongwith documents as Annexures C-1 to C-7 and closed his evidence on 07.08.2013.  On the other hand, counsel for OP tendered affidavits as Annexures RX & RY alongwith documents as Annexures R-1 to R-9 and closed the evidence on 30.01.2015.

4.                     We have heard learned counsel for the parties and gone through the case file very carefully.  Case of the complainant is that a theft occurred in his shop on the night of 09.07.2010 and thereby caused a loss of Rs.2,40,000/- suffered by the complainant.  A claim was lodged with the OP Insurance company who assessed the loss to the tune of Rs.43925/- and released a cheque thereof to the complainant but as per complainant it was not just and proper.   

5.                     On the other hand, arguments of counsel for OP is that the stock physically existed at the premises did not tally with the stock as per books and   as per report of Surveyor and Loss Assessor Sh. Rakesh K. Khanna, average weighed purchased rate of tyres was assessed, so a total loss assessed was Rs.1,68,426/- and after deducting under insurance factor of 0.2608, proportionate loss after average comes Rs.43925/- as payable and the same has been released to the complainant vide Annexure R-9 against full and final settlement and now nothing is payable to the complainant. Counsel for Op has placed reliance on case law delivered by Hon’ble National Consumer Disputes Redressal Commission, New Delhi titled Apna Surat Saree Centre vs. New India Assurance Co. Ltd. (Feb.) 2016 Pg. 479 whereby “amount paid under settlement voucher was on  the basis of survey conducted by neutral surveyor. Repudiation justified.”

6.                     We have perused the document Annexure R-5 Surveyor’s report which details as under:-

LOSS ASSESSMENT:

Truck Tyres 9 Pcs @ Rs.10401.50                                                Rs.93813.50 

Mobile oil & spare parts

 

Claimed                                                         Rs.105000.00

           

Less deduction@ 25% due to rate             Rs. 26250.00

Variance/errors in accounts to quantify

the Loss to square up quantity variance.

                                                                      

                                                                        Rs.78750.00

 

Less 5% for dead/slow moving stock       Rs.3937.00

                                                                        Rs.74813.00

 

Total Assessed Loss                                                                        Rs.168426.50

 

                        VALUE AT RISK:

                       

                        The total value of stock at risk as per books is Rs.1917311.25 while the sum insured is only Rs.5.00 lacs so the under insurance factor is 0.2608.

ADJUSTED LOSS

Assessed Loss                                               Rs.168326.50

Under Insurance factor                                     0.2608

Proportional loss after average clause      Rs.43925.63.

 

           

7.                     In the report, the surveyor has mentioned that “total value of stock at risk as per revised trading account prepared after verifying the purchases from purchase bills and sales from sale bill books comes Rs.19,17,311.25. But surprisingly, the surveyor while assessing the loss has deducted 25% due to rate variance/errors in accounts to quantify the loss to square up quantity variance as well as 5% for dead/slow moving stock to the tune of Rs.26,250/- and Rs.3937/- respectively which in our view has wrongly & illegally been deducted by the surveyor and there is no justification with surveyor to make such deductions when value of the goods otherwise proved by the complainant. In this way, total loss caused to the complainant as Rs.43925+ 26250/-+3937, a total a sum of Rs.74112/-. Admittedly, the complainant has received a sum of Rs.43925/- from the OP vide cheque Annexure C-4 on 09.05.2011.  Rest of the amount of Rs.30187/- is to be paid to the complainant by OP. The case law Apna Surat Saree Centre (supra) submitted by counsel for OP is not applicable in the present case as it is a matter of common knowledge that  insurance company did not release the claimed amount unless a receipt is obtained  regarding full satisfaction when it is apparent on the record  that there is a wrong deduction by the surveyor in the proposed claim, said deduction on the part of the Ops is not justified then this Forum has no hesitation to give the award mentioned above.  Accordingly, we partly allow the present complaint with costs and direct the OP to comply the following directions within a period of thirty days from receipt of copy of the order:-

1. To pay a sum of Rs.26250/- & Rs.3939/-a total sum of Rs.30187/- to the complainant alongwith interest @ 9% per annum from the date of filing of the complaint till its realization.
2. Also to pay a sum of Rs.3000/- as litigation expenses.

                        Copies of the order be sent to the parties, free of costs, as per rules.  File be consigned to the record room after due compliance.

 

ANNOUNCED ON:  25.01.2017.                                             (D.N. ARORA)

                                 PRESIDENT                

 

 

(PUSHPENDER KUMAR)

                                                                                                            MEMBER