District Consumer Disputes Redressal Commission ,Faridabad.
Consumer Complaint No441/2020.
Date of Institution: 26.11.2020.
Date of Order: 19.07.2022.
M/s. Shree Dauji Traders, situates at Old G.T.Road, Hodal Distt. Palwal through its proprietor Naveen.
…….Complainant……..
Versus
The New India Assurance Company Ltd., through its Divisional Manager, 4-R/5, Ist floor, above of HDFC Bank, Neelam B.K.Road, Faridabad – 121001.
2nd address:-
The New India Assurance Company Ltd., through its General Manager, Claim Hub, GR City Centre, 3rd floor, Lawrance Road, New Delhi – 110035. …Opposite party……
Complaint under section-12 of Consumer Protection Act, 1986
Now amended Section 34 of Consumer protection Act 2019.
BEFORE: Amit Arora……………..President
Mukesh Sharma..………Member.
PRESENT: Sh.Satbir Singh, counsel for the complainant.
Sh. Anuj Gupta, counsel for opposite party.
ORDER:
The facts in brief of the complaint are that the complainant Naveen was the proprietor of M/s. Dauji Traders situated at Old Road, Hodal and running Photostat shop for his livelihood and in his shop having Photostat machine, Dona machine, furniture, fixture and the same were insured form office of the opposite party vide burglary policy No. 31270146140100000432 covering the risk w.e.f. 13.03.2015 to 12.03.2016 and paid a premium of Rs.1992/- and other was “Burglary Single Location Insurance Policy vide NO. 31270146140100000212 covering the risk we.f 13.03.2015 to 12.3.2016 and paid a premium of Rs.1014/- on insued amount of Rs.16,39,000/-. Unfortunately in the night of 02.06.2015 at 2AM the insured stock lying in the complainant’s shop was totally burnt due to short, circuit, immediately after having information regarding the said sudden incidence the complainant rushed to his shop when seeing the fire, got informed Fire Brigade Hodal, when the vehicles of Fire Brigade Hodal reached at the spot, all the stock lying in the shop of the complainant was totally burnt. Regarding the burning of all the stock lying in the shop of the complainant, a DD No. 16 dated 2.6.2015 with PS Hodal as well as intimation was conveyed to the opposite parties. Thereafter the opposite party appointed his surveyor Shri Atul Kapoor who visited the spot and after inspecting the spot took all documents from the complainant regarding fire and various photographs and submitted his report in detail with office of the opposite parties. Thereafter, the complainant submitted his claim form in writing on 16.09.2015 and also submitted the estimate of the loss to the insured stock. The insured entire stocks was insured for Rs.16.39 lacs and since the insured stock was burnt & as such the complainant claims, the damaged claim of the insured stock only for 3.5 lacs, be settled on the total loss basis. After received the claim form from the complainant, the opposite parties assured the complainant to get pass the claim amount as per claimed by the complainant shortly. The complainant got shocked when he received a letter dated 14.06.2016 mentioned therein that since there exists no insurable interest as per the terms and conditions of the policy they were constrained to repudiate their file. The complainant sent legal notice dated 12.07.2016 to the opposite parties but all in vain. As per the settled law and the guide lines of the Insurance Regulatory Development Authority of India, and insurance claim was required to be settled within a period of three months from the date of loses but in the present case, the loss to the insured Fire stock lying in shop was occurred on 02.06.2015. Till date the insurer The New India Assurance Co. had not settled the claim of the complainant. The complainant filed a petition U/s 22 © (I) of Legal Services Authority Act, 1987 for settle the dispute, but the opposite party could not settle the dispute and the complainant withdraw his petition with liberty to file a fresh petition in competent court. The aforesaid act of opposite parties amounts to deficiency of service and hence the complaint. The complainant has prayed for directions to the opposite parties to:
a) pay the damages loss under the policy of Standard Fire and Special Perils policy as per calculation Annexure C-8 i.e. Rs.3,86,800/- submitted by the complainant alongwith the loss of the burnt building according to law.
b) pay to the complainant forthwith compensation as deems, fit and proper by this Hon’ble Authority on account of short and deficient intentional services rendered by the opposite party in a negligent and careless manner and for causing a great mental tension, agony and unnecessary harassment to the complainant.
c) pay Rs. 5500 /-as litigation expenses.
2. Opposite party put in appearance through counsel and filed written statement wherein Opposite party refuted claim of the complainant and submitted that the present complaint was not maintainable. It was pertinent to mention that as per averments of complaint, which was clear admission on the part of the complainant, present complainant cannot be termed as consumer as envisaged under section 2(7) of the consumer Protection Act., 2019 and complainant was not the owner of remises for which loss due to fire in building had been claimed. Therefore, the complainant had no cause of action and locus standi to file the present complaint against the answering opposite party.
The present complaint was hopelessly time barred as envisaged u/s 24A of The Consumer Protection Act, It was pertinent to mention that as per averments of complaint on 02.06.2015 stock burnt due to short circuit, claim preferred by insured M/s. Shree Dauji Traders was repudiated vide letter dated 14.06.2016, whereas the present complaint was filed in the year 26.11.2020. It was pertinent to mention that Section 69 of the Consumer Protection act 2019 cast an obligation upon the Hon’ble Commission not to admit a complaint unless same was filed within two years from the date on which cause of action had incurred, otherwise reject the complaint being time barred. Moreso, the contents of para No.11 of the complaint were misconceived since a bare perusal of order dated 19.01.2018 reveals that no waiver of time spent in that proceeding had been granted in that order, similarly a perusal of order dated 30.10.2020 reveals that as per this order only the time spent in that complaint cane be excluded that too as per procedure prescribed under the law not automatically, but the complainant did not prefer to adopt/comply with that lawful procedure More so, when the aforesaid complaint itself being filed after approx. three years of no claim letter was barred by law of limitation then that waiver had no statutory value in the eyes of law, even otherwise both the above orders were assed in case titled M/s. Dauji Traders Vs. new India, who was not a complainant in present complaint since the present complainant in M/s. Shree Dauji Traders, hence, the present complaint deserves dismissal being time barred. The present complaint was wholly misconceived, groundless and unsustainable in the eyes of law, the insured M/s. Shree Dauji Traders cannot be terms as ‘Consumer’ as envisaged under section 2 (7) of the consumer Protection Act, 2019 reason being as per claim form filed and signed by the insured, M/s. Shree Dauji Traders at Sr. No.6 under the heading business of insured had mentioned manufacturer and trade of papers & card board items, due to carrying out these activities for commercial purpose, insured ceased to become consumer . The complainant had not come before the Hon’ble Forum with clean hands and had concealed the true and correct facts form this Hon’ble Forum, complainant had not mentioned in his complaint any document to show the existence and availability of alleged stock, its cost and its damage as well as on the basis of which document the owners of the property had allowed the complainant to use the aforesaid premises to run business therein, rather it was clear admission of the complainant that the complainant/insured was not the owner of insured premises since it belongs to someone else. Hence in the absence of insurable interest in the premises the complainant was not entitled for any claim under the insurance policy in question and complaint under reply was liable to be dismissed with costs keeping in view doctrine of clean hands. The complainant was stopped by his own act, conduct, acquisance, admission, commission and waiver from filing the present complaint. It was pertinent to mention here that as per exclusion No.7 loss, damage to any electrical machine due to short circuit was not payable similarly a sper condition No.3 © if the interest in the property passes from the insured the answering opposite was not liable to make payment of any insurance claim. Further the complainant had filed certain documents and marked them as Annexure C-7, C8, C-10, C-11 & C-12 first time before the Hon’ble Commission alongwith this complaint, these documents were not submitted for consideration to answering opposite party or its surveyor even, even not annexed in any previous proceeding, hence these documents sees the light of the day firstly in this proceedings, which itself put a serious question mark upon the authencity of these documents. More so, as per Annexure C-12 the complainant had stated its business only on 08.10.2015 whereas claimed that the loss occurred don 02.06.2015 i.e. much before the inception of business activity by the complainant which itself disentitled complainant from claiming any amount under the present complaint since no loss before the commencement of business was permissible under the law. There was no deficiency of service on the part of answering opposite party reason being that on receipt of claim form of M/s. Shree Dauji Traders in respect of Fire Insurance Policy No. was 31270111140100000432, the same was got processed and investigated by the answering opposite party by appointing Atul Kapoor & Co. and found that the insured had submitted highly exaggerated estimate of loss and later on could not substantiate the same, especially regarding own stock and stock held in trust no documentary evidence was produced by the insured so same was excluded from assessment, whereas:-
a) the net loss of Plant & machinery after deducting depreciation and value of salvage etc. (but excluding policy excess clause 5% of loss subject to minimum Rs.10,000/-) was assessed to the tune of Rs.47,000/-.
b) the net loss of furniture fitting and fixture after deducting depreciation and value of salvage etc. (but excluding policy excess caluse 5% of loss subject to minimum Rs.10,000/-) was assessed to the tune of Rs.61,315/-.
c) the net loss of building after deducting depreciation and value of salvage etc. (but excluding policy excess clause 5% of loss subject to minimum Rs.10,000/-) was assessed to the tune of Rs.1,56,502/-.
But during investigation it was further come in the notice that the building in question does not belong to insured (M/s. Shree Dauji Traders) rather Mr. Ajit Singh S/o Shri Rati Ram and Mr. Pratap S/o Sh. Amar Singh were the owner of the same and copy of sale deed of aforesaid premises was also received, which also make it clear that insured was not owner of the insured premises. Therefore, due to absence of insurable interest the claim of the insured was not found payable and the claim was repudiated, an intimation in this regard was also sent to the insured (M/s. Shree Dauji Traders) vide letter dated 14.06.2016. The competent Authority of answering opposite party rightly took the decision and repudiated the claim of the insured in accordance with law, hence there was no deficiency of service on the part of answering opposite party. Opposite party denied rest of the allegations leveled in the complaint and prayed for dismissal of the complaint.
3. The parties led evidence in support of their respective versions.
4. We have heard learned counsel for the parties and have gone through the record on the file.
5. In this case the complaint was filed by the complainant against opposite party – The New India Assurance Company Ltd. with the prayer to a) pay the damages loss under the policy of Standard Fire and Special Perils policy as per calculation Annexure C-8 i.e. Rs.3,86,800/- submitted by the complainant alongwith the loss of the burnt building according to law. b) pay to the complainant forthwith compensation as deems, fit and proper by this Hon’ble Authority on account of short and deficient intentional services rendered by the opposite party in a negligent and careless manner and for causing a great mental tension, agony and unnecessary harassment to the complainant. c) pay Rs. 5500 /-as litigation expenses.
To establish his case, the complainant has led in his evidence affidavit of Naveen Proprietor of M/s. Shree Dauji Traders, Ex.C-1 – Standard Fire and Special Perils Poloicy, Ex.C-2 – policy schedule for burglary ( single location) insurance, Ex. C-3 – Sale deed, Ex.C-4 Fire Brigade report, Exs.C-5 – photocopy of said news regarding fire was also published in the News paper, Ex.C-16 – DD, Ex.C-7 – Report dated 12.08.2015,, Ex.C-8 & 9 – calculations,, Ex.C-10 & 11 – Tax invoice, Ex.C-12 – certificate, Ex.C-13 – Fire Insurance Claim Form,, Ex.C-14 – estimate, Ex.C-15 – repudiation letter dated 14.06.2016, Ex.C-16 – legal notice,, Ex.C-17 & 18 – postal receipts, Ex.C-19 – reply to legal notice, Ex.C-20 – order dated 19.01.2018 passed by the Permanent Lok Adalat,, Ex.C-21 – order dated 30.10.2020 passed by the Hon’ble DCDRF, Faridabad.
On the other hand counsel for the opposite party strongly agitated and opposed. As per the evidence of the opposite party, Ex.RW1/A – affidavit of Shri Shashi Prkash, Sr. Divisional manager, New India Assurance Co. ltd., NIT, Faridabad, Ex.R-1 – Fire Insurance Claim Form, Ex.R-2 to 4 – Calculations, Ex.C-5 – Sale deed, Ex.R6 - Standard Fire and Special Perils Policy, Ex,R-7 – Risk Covered – SFSP,,, Ex.R-8 – repudiation letter dated 14.06.2068.
6. In this complaint, there are two issues.
a) Time barred
b) Not a Consumer/insurable interet
a) Time Barred:
As per dictum of Section 69 of Consumer Protection Act 2019, the District Commission is empowered to admit a complaint within two years from the date on which the cause of action has arisen. The present complaint is time barred under Limitation Act as cause of action arose on 02.06.2015 and the present complaint has been filed on 26.11.2020 after a gap of 5 years.
B) Not a Consumer/insurable interest
As per order dated 19.01.2018 passed by the permanent Lok Adalat vide Annexue C-20 reveals that no waiver of time spent in that proceeding has been granted in that order. Similarly a perusal of order dated 30.10.2020 vide Annexure C-21 reveals that as per this order only the time spent in that complaint can be excluded that too as per procedure prescribed under the law not automatically, but the complainant did not prefer to adopt/comply with that lawful procedure, More so, when the aforesaid complaint itself being filed after approx. three years of no claim letter was barred by law of limitation then that waiver has no statutory value in the eyes of law, even otherwise both the above orders were passed in case titled M/s. Dauji Traders Vs. New India, who is not a complainant in present complaint since the present complainant is M/s. Shree Dauji Traders. Hence, M/s. Shree Dauji Traders is not a consumer as provided under Section 2(1) (d) (i) of the Consumer Protection Act. Thus the complainant is not entitled to file the present complaint and seek any alleged claim.
7. Resultantly, the complaint is dismissed. Copy of this order be sent to the parties concerned free of costs. File be consigned to the record room.
Announced on: 19.07.2022. (Amit Arora)
President
District Consumer Disputes
Redressal Commission, Faridabad.
(Mukesh Sharma)
Member
District Consumer Disputes
Redressal Commission, Faridabad.
