Haryana

Karnal

CC/669/2021

JBD Banquets And Hotels Private Limited - Complainant(s)

Versus

The New India Assurance Company Limited - Opp.Party(s)

Pankaj Malhotra

15 Jul 2024

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KARNAL.

                                                        Complaint No. 669 of 2021

                                                        Date of instt 01.12.2021

                                                        Date of Decision: 15.07.2024

 

JBD Banquets and Hotels Private Limited Kaithal Road Karnal, through its Managing Director Shri Bharat Bhushan Kapoor.

 

                                                                        …….Complainant.

                                              Versus

 

The New India Assurance Company Limited, through its Divisional Manager Gagan Building, G.T. Road, Karnal.

 

                                                                …..Opposite Party.

 

Complaint under Section 35 of Consumer Protection Act, 2019.

 

Before   Sh. Jaswant Singh……President.      

      Sh. Vineet Kaushik…….Member

      Ms. Sarvjeet Kaur..…..Member

 

 Argued by: Shri Pankaj Malhotra, Adv. for the complainant.

                 Shri Naveen Khetarpal, counsel for the OP.

 

                     (Jaswant Singh, President)

ORDER:   

                

                The complainant has filed the present complaint under Section 35 of the Consumer Protection Act, 2019 against the opposite party (hereinafter referred to as ‘OP’) on the averments that complainant purchased an insurance cover from the OP bearing policy no.35360146190100000318, commencing from 18.02.2020 to 17.02.2021, covering risk of storm, fire, burglary etc. The amount insured under the policy, under different heads was Rs.12.80 crores and a premium of Rs.5782/- were charged by the OP. On 27.05.2020, due to heavy storm, building plant furniture etc. were badly damaged. Intimation in this regard was sent to OP who appointed Mr. Jagdeep Singh Bhayana as surveyor to survey and assesses the loss. Estimate of Rs.1823180/- was submitted alongwith all the necessary documents, as demanded by the OP and its surveyor. After extent of 75% as depreciation, in pursuance thereof an amount of Rs.2,48,237/- was received by the complainant on 29.10.2020 by further deducting Rs.25000 as per extra clause and Rs.5000/- on account of scrap left with the complainant. This act of OP in deducting 75% depreciation is illegal and amounts to unfair  trade practice and deficiency in service because the deduction of 75% is neither warranted by any law nor under any term of the policy nor the same was explained/justified by the surveyor in  his report. No terms and conditions were supplied by the OP with the copy of the policy issued by the OP to the complainant. The complainant has visited the office of OP number of times but of no avail. The complaint is being filled within 2 years of 29.10.2020 when the amount of Rs.2,48,237/- was received by the complainant in its bank account through RTGS. The complaint could not be filled earlier due to menace of covid-19. In this way there is deficiency in service and unfair trade practice on the part of the OP. Hence this complaint.

2.             On notice, OP appeared and filed its written version raising preliminary objections with regard to maintainability; cause of action and concealment of true and material facts. On merits, it is pleaded that the claim of the complainant has already been settled and he has accepted the amount in full and final settlement of claim without any protest. So, he is not entitled for any relief. As a matter of fact after getting intimation of loss, the OP deputed IRDA approved independent surveyor and loss assessor Er. Jagdeep Singh Bhayana, who conducted the survey and submitted his report. He assessed the loss to the tune of Rs.2,48,355/- and a sum of Rs.2,48,355/- has been paid by the OP as full and final settlement of the claim to the complainant. OP pay the compensation/claim as per the terms and conditions of insurance policy which were explained and handed over to the complainant at the time of issuance of policy. There is no deficiency in service and unfair trade practice on the part of the OP. The other allegations made in the complaint have been denied and prayed for dismissal of the complaint

3.             Parties then led their respective evidence.

4.             Learned counsel for the complainant has tendered into evidence affidavit of complainant Ex.CW1/A, copy of insurance policy Ex.C1, copy of surveyor report Ex.C2, copy of letter dated 06.11.2020 Ex.C3, postal receipt Ex.C4, copy of report of MC Ex.C5, copy of letter dated 26.09.2020 Ex.C6, copy of emails Ex.C7, copies of quotations Ex.C8 to Ex.C13, copy of receipt of Rs.5000/- Ex.C14, copy of letter dated 01.06.2020 of Metrological Department Ex.C15, copy of tax invoice Ex.C16, copy of retail invoices Ex.C17 and Ex.C18, copy of letter dated 27.05.2020 Ex.C19, copies of newspaper cuttings Ex.C20 to Ex.C23 and closed the evidence on 13.04.2023 by suffering separate statement.

5.             On the other hand, learned counsel for the OP has tendered into evidence affidavit of R.K. Mittal Manager Ex.RW1/A, affidavit of Jagdeep Singh Bhayana Surveyor Ex.RW2/A, copy of survey report Ex.R1, copy of insurance policy Ex.R2 and closed the evidence on 10.11.2023 by suffering separate statement.

6.             We have heard the learned counsel for the parties and perused the case file carefully and have also gone through the evidence led by the parties.

7.             Learned counsel for complainants, while reiterating the contents of the complaint, has vehemently argued that complainant purchased an insurance policy covering risk of storm, fire, burglary etc. in the hotel and banquets hall from the OP for period of 18.02.2020 to 17.02.2021. On 27.05.2020, due to heavy storm, building plant furniture etc. were badly damaged. Intimation in this regard was sent to OP and on receipt of intimation, OP appointed Mr. Jagdeep Singh Bhayana as surveyor to survey and assess the loss. The estimate of Rs.18,23,180/- was submitted to the OP alongwith all the necessary documents. After extent of 75% of deprecation an amount of Rs.2,48,237/- was paid by the OP on 29.10.2020. The complainant received said amount under protest. Complainant approached the OP several times and requested to reimburse the remaining claim amount of Rs.11,13,420/- but OP did not pay the same. OP never explained and supplied the terms and conditions of the policy. OP has made deduction @ 75% which is totally illegal and unjustified and lastly prayed for allowing the complaint. Learned counsel for the complainant relied upon the case law titled as Groupe Seb India Private Limited Vs. Oriental Insurance Co. Ltd. and Anr. IV(2019) CPJ 414 (NC).

8.             Per contra, learned counsel for the OP, while reiterating the contents of written version, has vehemently argued that the claim of complainant has already been settled and a sum of Rs.2,48,237/- has already been paid  to the complainant as full and final settlement of claim and complainant has accepted the said amount without any protest. At the time of insurance of the building in question, OP had explained and supplied the terms and conditions of the insurance policy to the complainant. The OP has rightly made a deduction in the estimated claim amount and lastly prayed for dismissal of the complaint. Learned counsel for the OP relied upon the case law titled as Haryana State Co-operative Vs. Iffco Tokio General Insurance Company in Revision Petition no.4713 of 2012, date of decision 05.04.2013.

9.             We have duly considered the rival contentions of the parties.

10.           Admittedly, complainant got insured the building in question with the OP. It is also admitted during the subsistence of the insurance policy due to heavy storm, building plant furniture etc. of complainant’s firm were badly damaged. It is also admitted that complainant submitted the claim of Rs.18,23,180/- and OP paid an amount of Rs.2,48,237/- to the complainant.

11.           Complainant has alleged that the loss for the tune of Rs.18,23,180/- was occurred but OP has paid only Rs.2,48,237/- by applying the deduction @ of 75% of the loss amount, which is unjustified. He further alleged that amount of Rs.2,48,237/- was received by him under protest and OP never explained or supplied the terms and conditions of the insurance policy. The onus to prove his version was relied upon the complainant but he has miserably failed to prove the same by leading any cogent and convicting evidence.

 12.          There is nothing on the file to prove that complainant has received the amount from the OP under protest. The complainant running a business of hotel and banquets hall since long and it is not possible  that at the time of purchasing the policy, the complainant has not received the copy of terms and conditions of the policy from the OP. The assessment of loss were worked out by the surveyor of the OP on the basis of replacement, cost of the stage, wooden partition, wooden walls, roof of the stage, wall of the washroom, wall of the hall adjoining lawn, entry gate of the lawn, wooden design artifacts and two glow sign board. The surveyor of the OP has made the deduction as per current cost of the damaged items, but the complainant has claimed cost of old damaged items at the rate of present cost. Hence, the surveyor of the OP has rightly made the deduction of the damaged items, whereas the damaged items are not new one.  Thus, there is no deficiency in service and unfair trade practice on the part of OP, while deciding the claim of the complainant.

 13.         Thus, as a sequel to abovesaid discussion, the present complaint is devoid of merits and same deserves to be dismissed and same is hereby dismissed. No order as to costs. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

Announced

Dated:15.07.2024                                                                    

                                                                President,

                                                   District Consumer Disputes

                                                   Redressal Commission, Karnal.      

 

(Vineet Kaushik)        (Sarvjeet Kaur)    

                     Member                   Member