Complainants Pardeep Kumar Verma and Smt.Poonam Verma through the present complaint filed under Section 12 of the Consumer Protection Act, 1986 (for short, ‘the Act’) have sought issuance of necessary directions to the opposite parties to make payment of insurance claim to him amounting to Rs.17,43,200/- alongwith compensation and litigation expenses on account of mental and physical harassment suffered by him from the hands of the opposite parties, in the interest of justice.
2. The case of the complainants in brief is that complainant no.1 has started the business of Lubricants and Spare Parts to earn his livelihood in the year of 1988 in the name and style of M/s.Royal Traders in the shop constructed in the building under the ownership of his wife Smt.Poonam Sharma located at Saina Canal, Pathankot. Complainant no.1 opened the Firm Account in the bank of opposite party no.1 bearing no.CC-01285011000792. The complainant no.1 also took the limit from the opposite party no.1 Bank at the firm account to run the business smoothly. Afterward, the opposite party no.1 bank at its own level got the insurance policy of the complainant no.1 firm from the opposite party no.2. The complainants were never made aware about covering of insurance policy by opposite parties at the initial stage. Rather the opposite party started deducted the premium amount/installments from the account of complainant firm. Then the complainant party inquired from the opposite parties about the insurance cover and so the complainant was informed that as per scheme of their bank and Govt. instructions it is necessary for the complainants to get the Insurance Policy and due to which the insurance policy cover is granted to them. As per rules, the opposite parties are responsible for all types of risk against Policy. Opposite parties also stated to the complainants that in the insurance policy their shop alongwith goods and furniture was insured and the whole building including shop in question which is at the name of the complainant No.2 (Poonam Verma) will be covered under the Insurance policy. Even the total valuation of the whole building which also includes shop in question where the complainant is running his business comes as Rs.26,48,000/- by the Valuer and Surveyor of the opposite parties at the time giving the Insurance Policy cover. They have further pleaded that unfortunately their occurred short circuit in the business premises of the complainants which has completely burnt the whole stock as well as furniture of the shop in question and also caused huge damage to the building in the name of the complainant no.1 which is also under the cover of insurance policy. They immediately informed the opposite parties about the loss and to claim the compensation under the insurance policy cover. So the valuation of the loss was conducted by the Builder/Valuer and whole record and bills of loss of stock and furniture was considered. So then the builder/valuer gave the estimate of Rs.17,43,200/- as loss. Thereafter on 31.8.2012, the opposite parties also sent their own valuer to estimate the loss and he assured them that every loss of stock, shop furniture and building will be compensated under the insurance policy cover but it was great shock for them, when they received letter dated 31.10.2012 from the opposite parties vide which they only decided to pay Rs.15,275/- as against the loss of the complainant. They moved application dated 1.12.2012 to the insurance company but he was compelled to receive Rs.15,275/- which the complainant accepted under the protest. After that the complainant approached to the opposite party no.1 and claimed his actual claim from them but all in vain. At last the complainants filed Consumer complaint before this Forum, but due to technical defect, the same was withdrawn with permission to file the fresh one vide order dated 24.1.2014. Uptil now, the opposite parties have made no efforts to give claim of the complainant. Due to the illegal act and conduct of the opposite parties, the complainants have suffered great loss and also suffered mental harassment, so there is a clear cut deficiency in service on the part of the opposite parties. Hence this complaint.
3. Upon notice, the opposite party no.1 appeared and filed its written reply through its counsel taking the preliminary objections that the present complaint is not maintainable. On merits, it was submitted that complainant no.1 was sanctioned OD limit of Rs.7 lacs by OP1. In consideration of grant of this Credit facility, complainant no.2 created equitable mortgage of the Building of which shop of complainant no.1 forms part known as M/s.Royal Traders, by depositing Title Deeds. As per Agreement of hypothecation dated 8.10.2009 executed by complainant no.1 stocks of the shop M/s.Royal Traders were hypothecated by complainant no.1 in favour of OP1. As per norms of the Bank and also as agreed by the Borrower and Guarantor, the comprehensive Insurance of the hypothecated stocks and collateral security of the mortgaged property is mandatory by the Borrower. If the Borrower fails to comprehensively insure the above securities by Bank has the option to get it insured at the cost of the Borrower by debiting Insurance charges to the Account of the Borrower. The Bank has also got the option to renew the Insurance by debiting to Borrower Account. In the instant case the Bank got the comprehensive Insurance done of collateral security (Building) with OP2 which was equitable mortgaged in favour of the Bank, with the consent of the Borrower. The Insurance charges were debited to the Account of the Borrower with the consent of the Borrower. As agreed by the complainant the Insurance was renewed by the Bank by debiting the charges to his account. The complainant himself got the insurance done of the hypothecated stocks with the New India Assurance Co. Ltd. The complainants were fully aware of the covering of Insurance Policies by the Bank right from the beginning and they gave consent to it by signing Loan Documents including Agreement of Hypothecation of Assets dt.8.10.2009. All other averments made in the complaint have been denied and lastly the complaint has been prayed to dismiss with costs.
4. Upon notice, the opposite party no.2 appeared and filed its written reply through its counsel taking the preliminary objections that the complainant has not come to the Forum with clean hands. The complainant firm had also arranged a separate Insurance Policy covering the stocks lying in the shop from the New India Assurance Co. Ltd. Pathankot for an amount of Rs.15,00,000/- as can be observed from their letter no.RT/29/12 dated 12.3.2012 vide which they informed the said Insurance Co. about the loss in the fire broken out in their Shop on 1.3.2012 night. So, the complaint is not maintainable against the opposite parties and the class of insurance covered under the Policy No.233800/11/2012/213 was standard Fire and Special Perils Policy on building unused as Commercial shop in the name of Mrs. Poonam Verma through Financer Orient Bank of Commerce, Pathankot, Surveyors, Loss Assessment & Valuers, assessed the loss Rs.15,287.95 as per their report No.11 dated 31.08.2012. On merits, it was admitted that the complainants are running the shop under the name & style of M/s.Royal Traders in Sarna Tehsil and District Pathankot. It was submitted that information about fire was received from the complainant vide letter no.RT/29/12 dated 12/03/2012 and the case was marked to M/s.Sanjeev Gupta & Associates, Surveyors, Loss Assessors & Valuers for investigation & report. Accordingly they issued notices to M/s.Royal Traders, Sarna Canal, Pathankot vide No.1167/11 dated 13.05.2012 for supply of documents enable them to proceed further. The complainant never got the loss assessed from the Builder/Valuer on their own and no such report was placed by the complainant on the Court file at any stage. The loss of Rs.15,286.95 was rightly assessed and recommended by the Surveyor vide their detailed report dated 31.08.2012. The report is based upon the documents supplied by the complainant as asked by the Surveyor vide their Letter dated 13.05.2012. M/s.Royal Traders Sarna got the policy renewed for a period from 24.09.2011 to 23.09.2012 with same sum assured and for building used for commercial shop without insuring any contents etc. and confirmed by the opposite party vide letter dated 6.6.2012 that only building is insured with us and your loss shall be assessed accordingly. The complainant was also clarified about the policy cover vide Letter No.506 dated 13.08.2012. The complainant was informed about the claim approved. The withdrawal of the first complaint is not disputed but technical defect is not disclosed either at the time of withdrawal nor in the new complaint. The complainant submitted no claim to the opposite party as alleged nor the same was considered. The complainant was given full opportunity of hearing by the Surveyor and submitted his report. The company is bound by the report of the surveyor and accordingly offered payment of compensation assessed by the surveyor. The company has no powers to decide the compensation at their own level. The answering opposite party insured the building pledged against the Fire Risk for Rs.27 lacs. The claimant was asked to cooperate with the Surveyor and complete all the formalities at the earliest. M/s.Royal Traders vide Letter dated 31.10.2011 requested to submit discharged voucher dully signed & stamped alongwith Bank details. M/s.Royal Traders was reminded vide letter dated 25.11.2012 and requested to supply the demanded documents within 7 days in receipt of the letter failing which the opposite party will presume that complainant are not interested in this claim and shall be forced to close the claim as no claim. However, M/s.Royal Traders refused to accept the amount offered and asked for copy of assessment report vide letter dated 1.12.2012 which was supplied vide letter dated 10.12.2012. Thus there was no fault on the part of the opposite party. The complainant is neither entitled to the insured amount nor interest & compensation as alleged as the Company is not at fault at all. All other averments made in the complaint have been denied and lastly the complaint has been prayed to dismiss with costs.
5. Complainants tendered into evidence their own affidavits Ex.C1 and Ex.C13 and of Abhimanu Khosla son of Gulshan Khosla Ex.C14 alongwith other documents Ex.C2 to Ex.C12 and closed the evidence.
6. Sh.Sita Ram Attri, Sr.Manager of opposite party no.1 tendered into evidence his own affidavit Ex.OP-1/1, alongwith other documents Ex.OP1-2 to Ex.OP1-5 and closed the evidence.
7. Counsel for the opposite party no.2 tendered into evidence affidavit of Rajesh Kumar S.Divisional Manager O.I.C. Ex.OP-2/1 and of Sanjiv Gupta Surveyor and Loss Assessor Ex.OP-2/2, alongwith other documents Ex.OP-2/3 to Ex.OP-2/18 and closed the evidence.
8. We have duly heard the learned counsels for both the sides on the points of law and have also thoroughly examined the records with requisite care & caution on the points of fact, as placed before us. We find that the complainant-1 had been admittedly availing of the cash credit (hypothecation) OD limit of Rs.07.00 Lac in the name of his firm Royal Traders from the OP1 Bank vide the Hypothecation Deed Ex.OP2 dated 08.10.2009 against the Primary Security of Stocks in Trade and Collateral Security of Equitable Mortgage of the immovable Shop Property and had also purchased 2 nos. of enforceable Insurance Policies (with Bank Clause duly incorporated) as: i) Policy 126447 of 16.02.2012 for Rs.10.00 Lac Ex.OP4 from The New India Assurance Co. Ltd., to cover/ secure the hypothecated stocks assets against the usual risks and perils etc and ii) Policy 384335 dated 23.09.2011 for Rs. 27.00 Lac Ex.OP3 from the OP2 insurers i.e., The Oriental Insurance Co. Ltd., to cover the Building used for commercial Shop (against the risks of standard Fire & Special Peril Shop Policy) owned by Smt.Poonam Verma complainant-2 and housing the firm Royal Traders. It is also admitted that at the time of Loss incurring in Fire on 11.03.2012 both the above Policies were in force but somehow the complainants did not file their related insurance claim with the New India Assurance Co. Ltd., for un-disclosed reasons and instead dropped the claim after simply prompting the intimation Ex.C4 dated 12.03.2012. However, the complainants preferred their insurance claim on 24.08.2012 for Rs.7,18,500/- as loss in fire incurred to the insured building with the OP2 insurers who settled the said claim for a sum of Rs.15,275/- vide their claim settlement Ex.OP2/13 Letter dated 22.10.2012. The OP2 insurers have justifiably based their settlement of claim on the strength of Surveyor’s Report Ex.C10/Ex.OP2/9 that has been duly challenged by the complainants through affidavits Ex.C1 & C13 but they could not produce any cogent rebutting evidence so as to prove the Surveyor’s Report as wrong/incorrect. The complainants’ have produced affidavit Ex.C14 of Abhimanhu Khosla Builder cum Contractor deposing the submission of his Assessment Report regarding loss to Building and internal structure of the complainants exhibited as Ex.C-(Left Blank). However, the deponent’s produced documents/report has been exhibited as Ex.C11 & Ex.C12 but these do not assess the loss incurred in fire of 11.03.2012 and are even tiled as: ‘Quotation’ and assess the renovation/re-fabrication work without even a mention of the loss incurred. Lastly, we find that the complainants have somehow messed up their insurance claims under the applicable insurance policies and even the OP1 Bank did not actively assisted the complainants in filing at least the valid insurance claims with the result that the present complaint is devoid of any merit under the applicable C P Act’ 1986.
9. In the light of the all above, we do not find any merit in the present complaint and thus ORDER for its dismissal with however no orders as to its costs.
10. Copy of the order be communicated to the parties free of charges. After compliance, file be consigned to record.
(Naveen Puri)
President.
ANNOUNCED: (Jagdeep Kaur)
November 27, 2015 Member.
*MK*
