BEFORE THE DISTRICT CONSUMER DISPTUES REDRESSAL FORUM, KAITHAL.
Complaint no.10/14.
Date of instt.: 10.01.2014.
Date of Decision: 03.12.2015.
Keshva Air Conditioner through its partner Anil Kumar S/o Sh. Pawan Kumar, 7, Dhand Road, Opposite Easy Day, Shivam Complex, Kurukshetra Road, Kaithal.
……….Complainant.
Versus
The New India Assurance Company Limited, S.C.O.510/14, Pehowa Road, Gobind Nagar, Kaithal.
..……..Opposite Party.
COMPLAINT UNDER SEC. 12 OF CONSUMER PROTECTION ACT, 1986.
Before: Sh. Jagmal Singh, President.
Sh. Rajbir Singh, Member.
Smt. Harisha Mehta, Member.
Present : Sh. M.K.Nirwani, Advocate for complainant.
Sh. C.S.Gupta, Advocate for the opposite party.
ORDER
(HARISHA MEHTA, MEMBER).
The complainant has filed the present complaint under Section 12 of Consumer Protection Act, 1986, with the averments that he got insured his stock of all kinds such as A.C., Water- cooler, Dispenses, Refrigerator, Washing Machine, R.O., Stabilizers and all kind of other electric and electronic items with the Op vide policy No.35360412120300000042 dt. 04.02.2013 valid w.e.f. 04.02.2013 to 03.02.2014 and the sum insured of risk is Rs.25 lacs and the Op issued the policy ID No.PO19437164. It is alleged that during subsistence of the said insurance policy, the articles worth Rs.2,06,250/- lying under the policy were damaged due to flood. Information was given to the Op and the Op deputed the surveyor and after visiting the spot by the surveyor assessed the loss amount. It is further alleged that the Op sent the detail of assessed amount vide letter dt. 10.12.2013 in which the Op shown the assessed amount of Rs.1,73,628/- in place of Rs.2,06,250/- and also shown the less salvages worth Rs.1,02,102/- in place of Rs.1,15,500/- and also shown the less variance @ 5% of the invoice value i.e. Rs.8681.40 paise and also shown less policy clause Rs.50,000/- and shown net payable Rs.12,845/- in place of Rs.80,750/-. This way, the Op is deficient in service. Hence, this complaint is filed.
2. Upon notice, the opposite party appeared before this forum and filed written statement raising preliminary objections with regard to maintainability; cause of action; locus-standi; jurisdiction; that there involves a complicated question of law and facts and for adjudication of which, only the Civil Court is the best platform; There is no deficiency in service on the part of answering Op. On merits, the fact regarding the loss of articles worth Rs.2,06,250/- is denied. It is submitted that Mr. Sanjay Gupta, an independent surveyor and loss assessor, who after through survey furnished his survey report dt. 27.11.2013 accepted the amount claimed by the complainant and accordingly assessed the amount of Rs.1,73,628/-. However, vat amount of Rs.22,745/- was not found permissible. It is further submitted that as reported in the said independent surveyor that an open auction was held and vendors were invited in Kaithal to bid the salvage. The highest bid of M/s. New Alfa Electro Services was accepted and the insured was advised to sell the damaged ACs to the above vendor. A total value of Rs.1,02,102/- plus taxes was realized by the insured after the sale of damaged ACs. The insured ACs were billed to the vendor vide invoice No.Keshwa-140 dated 16.07.2013 and insured realized a total value of Rs.1,15,500/- including vat @ 12.5%. Thus, the net amount of vat is Rs.1,02,102/-. The other contents of complaint are denied and so, prayed for dismissal of complaint.
3. In support of his case, the complainant tendered in evidence affidavit Ex.CW1/A and documents Ex.C1 to Ex.C7 and closed evidence on 27.01.2015. On the other hand, the Op tendered in evidence affidavit Ex.RW1/A to Ex.RW3/A and documents Ex.R1 to Ex.R5 and closed evidence on 10.08.2015.
4. We have heard ld. counsel for both the parties and perused the case file carefully and minutely and have also gone through the evidence led by the parties.
5. It is true that the complainant took policy bearing No. 35360412120300000042 and got insured his stock of all kinds A.C., Water-cooler, Dispenses, Refrigerator, Washing-machine, R.O., Stabilizer and all kinds of electrical and electronic items whilst lying and stored in the shop or in godown with the opposite party and the opposite party issued the policy customer ID No.PO19437164. During subsistence of the said insurance policy, the articles worth Rs.1,89,460/- lying under the policy were damaged due to flood and the complainant immediately informed the opposite party and the opposite party deputed the surveyor namely Mr. Sanjay Gupta and after visiting the spot by the surveyor assessed the loss amount and allowed to sale out the salvages and conducted the bid in open market and sold out the salvages worth Rs.1,15,500/- including vat (percentage 12.5%).
6. On the other hand, the respondent contended that it is absolutely wrong and denied that the article worth Rs.2,06,250/- were damaged due to flood. The Op also contended that the complainant himself claimed amount of loss to the extent of Rs.1,73,628/- as the costs of AC’s plus Rs.22,745/- vat @ 13.1% total amounting to Rs.1,73,628/- as per his claim. It is submitted that Mr. Sanjay Gupta, an independent surveyor and loss assessor, who after through survey furnished his survey report dt. 27.11.2013 accepted the amount claimed by the complainant and accordingly assessed the amount of Rs.1,73,628/-. However, vat amount of Rs.22,745/- was not found permissible. It is further submitted that as reported in the said independent surveyor that an open auction was held and vendors were invited in Kaithal to bid the salvage. The highest bid of M/s. New Alfa Electro Services was accepted and the insured was advised to sell the damaged ACs to the above vendor. A total value of Rs.1,02,102/- plus taxes was realized by the insured after the sale of damaged ACs. The insured ACs were billed to the vendor vide invoice No.Keshwa-140 dated 16.07.2013 and insured realized a total value of Rs.1,15,500/- including vat @ 12.5%. Thus, the net amount of vat is Rs.1,02,102/-. It is needed to be submitted here regarding less policy clause i.e. 5% of the claim amount, subject to minimum excess of Rs.50,000/- per claim. It is very important to mention here that according to “Fire Floater Policy”, the complainant opted deductible is 5% of claim amount, subject to a minimum of INR 10,000/-. So, the Op cannot force him to pay Rs.50,000/-.
7. The Op produced a circular, according to which “For Floater and Floater Declaration stock policies, the minimum deductible will be 5% of claim amount subject to a minimum of INR 50,000/-.” This circular was issued on July 27, 2012 and the policy was issued on 4th February, 2013 which clearly mentioned that deductible opted:5% of claim amount subject to minimum of INR 10,000/-.
8. There is a gap of about seven months between the circular issued by the company on 27th July, 2012 and the policy issued to the complainant on 4th February, 2013. So, it is the duty of the company to update their system so that the common person could not suffer for the error on behalf of respondent company. So, it is illegal to charge more then deductible opted by the complainant that is 5% of the claim amount, subject to minimum of INR 10,000/-. It is pertinent to mention that the policy produced by the complainant is of 2013 and the policy produced by the Op is of 2014 after the rectification of claim access but the same is not binding on the complainant. So, according to the F.F. policy, total value of the stock is as under:
Assessed amount : Rs.1,73,628.00
Less Salvage : Rs.1,02,102.00
After Salvage : Rs.71,526.00
Less Variance @ 5% of the
Invoice value : Rs.8681.40
Less Policy Clause : Rs.50,000.00
Net Payable : Rs.12,845.60
So, we came to the conclusion that the Op is deficient in their services.
8. Thus, in view of above discussion, we allow the complaint partly and direct the Op to pay Rs.41028/- (as per policy) to the complainant and further to pay Rs.2200/- as lump sum compensation on account of harassment, mental agony and costs of litigation charges. Let the order be complied with within 30 days, failing which, the complainant shall be entitled interest @ 8% p.a. on the awarded amount from the date of commencement of order till its payment. A copy of this order be sent to both the parties free of costs. File be consigned to the record room after due compliance.
Announced.
Dt.03.12.2015.
(Jagmal Singh),
President.
(Harisha Mehta), (Rajbir Singh),
Member. Member.
