Complainant Vikas Mahajan through the present complaint has sought the necessary directions to the opposite party to make the payment of full insured amount i.e. |Rs.10,63,263/- to him immediately in terms of the insurance policy alongwith interest @ 18% P.A.from the date of theft of the vehicle till actual realization. Opposite party be further directed to pay Rs.1,00,000/- as compensation on account of mental agony, physical harassment and deficiency in service on the part of the opposite party alongwith Rs.10,,000/- as litigation expenses, in the interest of justice.
2. The case of the complainant in brief is that he had been running City Centre Mall at Dalhousie Road Pathankot under the name and style of Vega Infrastructure, City Center Mall, Dalhousie Road. He installed Air Conditioning Chiller Plan after purchasing it from M/s.Blue Star Ltd., 2nd Pokhran Road, Majiwada Maharashtra THANE (west) vide purchase order dated 31.03.2014 for total invoice value of Rs.41,62,500/-. He purchased a Insurance Policy for Burglary (Single Location) from opposite party in the name of Punjab National Bank Pathankot bearing policy no.36160046140100000031 valid from 18.07.2014 to 17.07.2015. In this way policy Air Conditioning Chiller Plant alongwith other goods etc. were covered. On 08.04.2015 there has been a theft of Air Conditioning Chiller Plant spare parts from Vega Infrastructure. The spare parts i.e. Air Oil Coils, all pipe sets, all copper tubes, all valve angles, reducers, Cutee, all Electrical panels and all electric wires were stolen from the Air conditioning Chiller Plant. Mr.Sunil Kumar employee of Vega Infrastructure, Pathankot noticed above said theft. Thereafter he informed him that some unknown person have broken the door lock from inside the stairs of gen set area and stolen the cable wires and other parts of chiller plant. Thereafter he inquired at his own level from his staff and found no one was involved in this incident from staff member. The matter was reported to the police station Division no.1 Pathankot vide FIR No.112/14 under Section 457, 380 IPC against unknown persons immediately on 10.04.2015 by Deepak Chand, Mall Manager Vega Infrastructure, Pathankot, but till today, the stolen articles spare parts of Air Conditioning Chiller Plant have not been reovered by the police. He also informed to the opposite party i.e. Insurance company regarding theft and he also supplied all the requisite documents as demanded by insurance company from time to time. The opposite party deputed Manoj Kumar Surveyor and Loss Assessor Sujanpur to assess the loss and he also supplied all the requisite documents to Manoj Kumar surveyor. He also supplied the repair estimates to the opposite party from Aman refrigeration works Dalhousie Road Pathankot and M/s.Blue Star Ltd. Punjab. The Manoj Kumar Surveyor and Loss Assessor assessed net adjusted loss of Rs.10,63,263/- in his report. The opposite party also deputed S.A. Investigation and Consulting Agency to investigate the matter and they gave his report to the opposite party but Insurance Company instead of making payment of the insured amount always put the matter with one pretext or the other and ultimately on 29.06.2017 the opposite party refused to make the payment of theft loss vide its repudiation letter. Thus, there is deficiency in service on the part of the opposite party.
3. Upon notice, the opposite party appeared and filed its written version through its counsel, taking the preliminary objection that the complaint is not maintainable; the complaint is absolutely false, frivolous and no cause of action has ever arisen in favour of the complainant against the opposite party to file the present complaint and hence, the complaint under reply is an abuse of process of law and as such the same is liable to be dismissed. On merits, it was submitted that the claim regarding the alleged theft of Air Conditioning Chiller Plant spare parts on 08.04.2015 from Vega Infrastructure, City Centre Mall, Dalhousie Road, Pathanokt was lodged to the insurance company on 8.7.2015 after gap of 90 days. Thereafter the insurance company deputed Manoj Kumar Surveyor and Loss Assessor SCO 260, Mohan Market Dalhousie Road Pathankot to Assess the Loss. As per remarks given by the Manoj Kumar Surveyor and Loss Assessor Mohan Market Dalhousie Road, Pathankot vide his detailed Survey report dated 10.10.2016. It was next submitted that Manoj Kumar Surveyor and Loss Assessor assessed the net adjusted loss of Rs.10,63,263/- in his report. The Insurance Company has issued a burglary insurance policy no.36160046140100000031 for the period from 18.07.2014 to 17.07.2015 to M/s.Vega Infrastructure through PNB Pathankot. The alleged burglary loss has taken place in the premises of the insured, at City Centre Mall, Pathankot 8.4.2015 as per intimation of complainant to the opposite party. The insured intimated about the alleged loss to the insurer on 8.7.2015 i.e. after a gap of 90 days. The insurance policy contains express terms and conditions, which provides “that the insured shall inform the insurer within 14 days from the occurrence of the loss”. Whereas in this case, the insurance company has been informed after a gap of 90 days, which is clear violation of the terms and conditions of the policy. Thereafter opposite party issued a letter dated 9.11.2016 seeking various documents from the complainant regarding 1) Untraceable report of the case through court is not submitted. 2) Copy of your application to police referred in the papers as no.290-5f dated 10.04.2015 is not submitted. 3) Your clarifications for late intimation to police and to insurance company have not been found with the report. 4) Number of doubts has been raised on the theft loss in his report for which we will depute independent investigator to clarify the same. Thereafter opposite party issued a letter dated 3.5.2017 seeking comments of complainant within 15 days regarding the number of doubts raised by the Manoj Kumar Surveyor and Loss Assessor in his report. The complainant failed to give any reply/comments to the queries of opposite party. Neither untraceable report through court nor comments of complainant for observation in the claim were received by opposite party till date. In the said case, complainant reported vide letter dated 8.4.2015 that there has been a theft of Air conditioning chiller plant’s spare parts from Vega Infrastructure, Dalhousie Road, Pathankot on 8.4.2015. The said intimation letter was not complete with any FIR/documentary evidence regarding loss, so complainant was requested vide letter dated 17.07.2015 to provide copy of report loss immediately and to submit detailed statement of loss within 14 days of alleged loss. Complainant informed opposite party after 90 days. Complainant submitted statement on affidavit dated 14.12.2016. As per his said statement there are no satisfactory reasons for late intimation of loss to company and late intimation to police. As per record, application to police was made on 10.4.2015 and to company on 8.7.2015. Thereafter, on 29.6.2017 the opposite party repudiated the claim of complainant due to violation of policy terms and conditions. All other averments made in the complaint has been vehemently denied and lastly prayed that the complaint may be dismissed with costs.
4. Counsel for the complainant tendered into evidence affidavit of complainant ExCW1 along with other documents exhibited as Ex.C1 to Ex C21 and closed the evidence.
5. Counsel for the opposite party tendered into evidence affidavit of Kuldeep Raj, Sr. Divisional Manager Ex.OP-1 alongwith other documents Ex.OP-22 and closed the evidence.
6. We have carefully examined all the documents/evidence produced on record and have also judiciously considered and perused the arguments duly put forth by the learned counsels along with the incidental scope of adverse inference for of some of the documents that have been somehow ignored to be produced by the contesting litigants. We observe that the prime dispute prompted at the inordinate delay, non-settlement/ closure/ repudiation (at the hands of the OP insurers) of the complainant’s insured A C Chiller Plant (under-install) theft-claim for an assessed incurred-loss of Rs.10,63,263/- against the insured-sum @ its invoice value of Rs.41,62,500/- pertaining to the loss incurred on account of the untraced theft of the same; hence the present complaint. The complainant has duly proved his allegations (per Affidavit Ex.CW-1) vide various evidentiary documents exhibited here as: Ex.C2 to Ex.C21.
7. The OP insurers have duly admitted the impugned claim repudiation/closure/no-claim (Ex.C7/Ex.OP22) dated 29.06.2017 on the grounds of i) non-submission of ‘un-trace-report’ through the competent court and ii) delayed information to the Police by 14 days and to the OP insurers by 90 days; having themselves arbitrarily rejected the explanation as duly put forth by the present ‘complainant’ for the same. The OP insurers have produced its affidavit (Ex.OP1) and other evidentiary documents (Ex.OP2 to Ex.OP22) as their defense in support of the duly placed forth rebutting contentions etc.
8. We are certainly not convinced with the basic logic as put forth by the OP insurers to support its impugned repudiation/closure (amounting to no-claim) of the otherwise a valid theft-loss claims simply on the grounds of alleged non-submission of the OP requisitioned un-trace-report that may not have been in existence/available at that point of time and in any case the OP insurers have always been in a better position to have themselves procured the same from the competent authority directly or through their authorized representative/consultant etc. Further, the police as well as the OP designated Surveyor has verified the ‘theft’ as true and genuine in its primary initial investigation report and thus the impugned delay, closure and repudiation surely indicates of the sure hue of unfair trade practices as adopted by the insurers. By the time, it has also been a somewhat judicious proposition even to the senior courts that the recording of intimation officially i.e., lodging of FIR by police and accepting insurance claim by insurers is usually delayed at the whims of the authorities that be. Moreover, the OP insurers here have failed to prove ‘delay’ vide independent evidence other than usual FIR and Theft-Claim in its routine attire. However, we find that the resultant closure/ repudiation has neither been necessary nor fair measured against the genuinely proved theft of the insured Chilling Plant per the evidence available on records and as such the instant repudiation amounts to deficiency in service on the part of the OP insurers and that rakes them up to an adverse statutory award under the applicable Act.
9. In the light of the all above, we partly allow the present claim and thus ORDER the titled OP insurers to pay the full theft-claim in terms of the OP’s duly designated consultant’s loss-assessment @ Rs.10,63,263/- and also in conformity with the policy terms to the present complainant besides to pay him Rs.10,000/- as cost and compensation (for having caused delay and harassment) within a period of 30 days of the receipt of the copy of these orders otherwise the aggregate awarded amount shall carry interest @ 9% PA from the date of orders till actually paid.
10. Copy of the order be communicated to the parties free of charges. After compliance, file be consigned to records.
(Naveen Puri)
President.
ANNOUNCED: (Jagdeep Kaur)
July, 04 2018. Member
*MK*
