BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, AMRITSAR.

Consumer Complaint No. 31 of 2022

Date of Institution: 25.1.2022

                                                          Date of Decision:10.10.2024   

Rohan Sidana aged 25 years son of Sh. Mohinder Paul Sidana resident of 38-B, Rani Ka Bagh, Amritsar

Complainant

Versus

The Oriental Insurance Company Limited, Oriental House, A-25/27, Asaf Ali Road, New Delhi 110002 and having Branch office at SCO 57, 2^nd Floor, Ranjit Avenue, Amritsar

Opposite Party

Complaint under section   38 of the Consumer Protection Act, 2019

Result : Complaint Partly Allowed

Counsel for the parties  :

For the  Complainant                         : Sh. Lalit Tuteja,Advocate      

For the Opposite Party                       : Sh. P.N.Khanna, Advocate

CORAM

Mr.Jagdishwar Kumar Chopra, President

Ms.Mandeep Kaur, Member

ORDER:-

Mr. Jagdishwar Kumar Chopra, President :-Order of this commission will dispose of the present complaint filed by the complainants  u/s  34 & 35  of the Consumer Protection Act, 2019.

Brief facts and pleadings

1.       Brief facts of the case are that    complainant had purchased an Insurance policy No. 233300/11/2020/589   from the opposite party by paying premium of Rs. 29,647/-  covering the risk STFI cover, fire basic cover and Earth Quake cover for the building of the complainant at Plot No. 485, B-3, Mcloed Road, Amritsar. The said policy was valid from 21.11.2019 to 20.11.2020, copy of policy is Ex.C-1. The said Insurance policy provided total cover of Rs. 7,50,00,000/- in the following manner:-

Unfortunately fire broke down in the 3^rd floor of the building of the complainant on 20.7.2020 which resulted in Loss of  Fixtures, furniture, appliances and at that time the Insurance  policy was in force. The complainant lodged claim with the opposite party and the survey6or visited the premises and inspected the premises and loss. The complainant got renovated the premises at his own cost and the total expenditure  incurred by the complainant was Rs. 9,95,000/- besides goods and services tax at relevant rates, schedule of expenditure is Ex.C-2 and bills annexed to the schedule are Ex.C-3 to Ex.C-27. The opposite party without providing any reason allowed the claim of the complainant to a meager tune of Rs. 59,800/- which were credited to the account of the complainant on 9.12.2020. The complainant was not provided with the copy of surveyor report despite repeated demands.  The complainant prior to the Insurance policy Ex.C-1 had purchased policy from National Insu. Co.Ltd having the insurance cover to the sane tune as the present Insu. policy, copy of such insurance policy is Ex.C-28.  The aforesaid act of the opposite party in allowing the claim to the meager sum of Rs. 59,800/- and not supplying the copy of survey report to the complainant  amounts to deficiency in service  as well as unfair trade practice which  has caused lot of mental agony, harassment, inconvenience  besides financial loss to the complainant. Vide instant complaint, complainant has sought for the following reliefs:-

(a)     Opposite  party   be directed to pay appropriate value and price of goods   gutted in fire.

(b)    Opposite party be also directed to supply copy of survey report to the complainant ;

(c)      Compensation to the tune of Rs. 50,000/- may also be awarded to the complainant.

(d)     Opposite party be also directed to pay adeqauate  litigation expenses to the complainant.

(e)      Any other relief to which the complainant is entitled be also awarded to the complainant.

Hence, this complaint.

2.       Upon notice, opposite party  appeared and filed written version  taking certain preliminary objections therein interalia that  on receipt of intimation  of alleged fire of the insured  premises  at third floor, the opposite party appointed independent Chartered Accountant M/s. Ashwani Gupta & Co who visited the site and visualized the place, extent of loss caused by the fire as well as considered the relevant documents  and verified the damage very minutely and during the said process it was observed  by the said Chartered Accountant that upper floor as let out by the complainant to Wisdom Classes. In that regard they also collected copy of license deed according to which all internal functioning of the premises are to be carried out by the licensee at its own cost. As per the clauses of the aid license deed it became clear that the furniture and fixtures in the premises were owned by the Wisdom Classes (JEE)  and not by  the insured. Hence, only building and permanent fittings are covered as per the policy in question. Similarly it was also observed that number of items claimed by the insured  in his estimate are not covered at all in the policy in question. Approx. value of the furniture and fixtures owned by the Wisdom Classes and the items not covered under the policy comes to more than Rs. 5 lacs. The said CA has considered the value of each item with respect to the estimate submitted by the insured and paid as per terms and conditions of the policy. The said process was carried out in the presence of insured who is fully aware regarding the assessment made out by the CA to the tune of Rs. 64,054/- regarding which they also submitted their report  with the opposite party. In the said report each and every item has been duly described with specific reason for not allowing the particular item or allowing same to the extent of terms  and conditions of the fire policy in question. The said amount of Rs. 64,054/- was finalized by the opposite party to the tune of Rs.  59,800/- as the fans and ceiling fans were not covered with respect to value of Res. 3995/- as well as by deducting residual clause to the tune of Rs. 259/-. The complainant also accepted the said final amount of Rs. 59,880/- for which he executed discharge voucher towards full and final settlement of the said amount of Rs. 59800/-  and accordingly the said payment as remitted to the bank account of the complainant on 9.12.2020. As the claim has already been accepted by the complainant towards full and final settlement , therefore, present complaint  is not maintainable  and the complainant is not entitled to invoke the jurisdiction of this Hon’ble Commission .This fact stands proved  that although the said payment was remitted to him on 9.12.2020 yet the present complaint has been filed in the month of Feb. 2022  i.e. almost after one year  and during this period the complainant never made any correspondence  that the payment made to him is short one. On merits the opposite party has taken the similar pleas as were taken in the preliminary objections, as such there is no need to reproduce the same. While submitting that there is no deficiency in service and while denying and controverting other allegations, dismissal of complaint was prayed.

3.       The complainant also filed rejoinder to the written version filed by the opposite party in which it was admitted that opposite party appointed independent chartered accountant M/s. Ashwani Gupta & Co.  who visited the site. However it is denied that  chartered accountant M/s. Ashwani Gupta   & Co. visualized the place, extent of loss  caused by fire  and items damaged in the fire regarding their coverage in the policy and also regarding the ownership of the complainant very minutely. It is not denied that upper floor was let out by the  complainant to Wisdom Classes.  However, it is denied that all internal functioning of the premises are/were carried out by M/s. Wisdom Classes. It is further denied that furniture and fixture in the premises were owned by Wisdom Classes (JEE)_. The furniture, fixtures and other items were installed much prior to 1.3.2020 in the premises . The said license deed was executed between Wisdom Classes and complainant on 1.3.2020. Such license deed only gave permission to install computer, Zerox/Fax Machines,UPS, AC etc, but however, such were never installed by M/s. Wisdom Classes and were provided by the complainant to M/s. Wisdom Classes. The opposite party has received premium for fixtures etc. present in third floor/burnt premises after  inspection of fixtures etc. It is worth to mention here that M/s. Wisdom Classes is owned by the father of the complainant . It is worth to mention here that such furniture and fixture were not owned by Wisdom Classes and were rather owned by the complainant. It is denied that value of such items covered under the policy comes to more than Rs. 5 lacs. While  denying the other submissions taken by the opposite party in their written version the complainant has prayed for the relief as sought vide instant complaint.

Evidence of the parties and Arguments

4.       Alongwith the complaint, complainant  has filed his affidavit , copy of Insu. policy Ex.C-1, copy of schedule of expenditure  Ex.C-2, copies of bills  Ex.C-3 to Ex.C-27, coy of Insu. policy obtained from National Inu. Co. Ex.C-28, copies  of Insu. policies obtained from opposite party Ex.C-29 to Ex.C-31.

5.       On the other hand opposite party alongwith written version has filed affidavit of Mr. Dinesh Grover, Sr. D.M. Ex.OP/1,Affidavit of Mr. Ashwani Kumar Gupta Ex.OP/2, survey report Ex.OP/3, copy of license deed Ex.OP/4, discharge voucher Ex.OP/5, copy of office note Ex.OP/6, copy of policy alongwith terms & conditions Ex.OP/7.

6.       We have heard the Ld.counsel for the parties and have carefully gone through the record on the file . We have also gone through the written arguments submitted by the opposite party . On the other hand Ld.counsel for the complainant suffered a statement that he does not want to file written arguments and the contents of complaint, rejoinder as well as exhibited documents be read as part of written arguments.

Findings

7.       From  the pleadings of the parties and the evidence produced on record  it stands proved on record that complainant has obtained the policy bearing No.233300/11/2020/589 for the period from  21.11.2019 to 20.11.2020 for the sum assured of Rs. 7,00,00,000/-   for complete building with its foundation and upper storeys used office, school, bank with different floors with its permanent fixture/F/F of all kinds/sanitary fittings/Electrical fittings as well as for the sum assured  of Rs. 50,00,000/-  covering the risk of 35 AC split, 3 LED/LED one Hyundai/2 Sony LED, PC Computer, one Laptop, One OTIS Lift, One Genset 125 KVA, one Alternator, Two HP Submersible Pump fitted in the insured premises, copy of policy is Ex.C-1. It is the case of the complainant that  during the subsistence of the policy period  fire broke down in the third floor of the building on 20.7.2020 which  resulted in Loss of Fixtures, furniture, Appliances   which were got renovated by the complainant after spending Rs. 9,95,000/- for which the complainant has placed on record copy of schedule of expenditure Ex.C-2 alongwith bills Ex.C-3 to Ex.C-27. However, when the complainant lodged the claim with the opposite party , the opposite party only allowed the claim to the tune of Rs. 59,800/- and credited the amount to the account of the complainant on 9.12.2020. Ld.counsel for the complainant contended that the opposite party has not provided  the copy of survey report  despite repeated requests of the complainant and the act of the opposite party in allowing such a meager sum of Rs. 59,800/- is an act of deficiency in service as well as unfair trade practice.

8.       On the other hand the opposite party repelled the aforesaid contentions of the complainant and submitted that on receipt of intimation  of alleged fire of the insured  premises  at third floor, the opposite party appointed independent Chartered Accountant M/s. Ashwani Gupta & Co who visited the site  and  observed  that upper floor as let out by the complainant to Wisdom Classes. In that regard they also collected copy of license deed according to which all internal functioning of the premises are to be carried out by the licensee at its own cost. As per the clauses of the said license deed it became clear that the furniture and fixtures in the premises were owned by the Wisdom Classes (JEE)  and not by  the insured. Hence, only building and permanent fittings are covered as per the policy in question. The said CA has considered the value of each item with respect to the estimate submitted by the insured and the  said process was carried out in the presence of insured who is fully aware regarding the assessment made out by the CA . In the said report each and every item has been duly described with specific reason for not allowing the particular item or allowing same to the extent of terms  and conditions of the fire policy in question. The complainant also accepted the said final amount of Rs. 59,880/- for which he executed discharge voucher towards full and final settlement of the said amount of Rs. 59800/-  , , therefore, present complaint  is not maintainable  .

9.       From the appreciation of the facts and circumstances of the case the moot questions involved in this case are whether the present complaint is maintainable before this Commission  or whether the ground taken by the opposite party in deducting the amount from the claimed amount and disbursing a meager sum of Rs. 59,800/- is genuine. First of all the point under discussion is whether the present complaint is maintainable before this Commission  as the plea taken by the opposite party is that complainant also accepted the said final amount of Rs. 59,880/- for which he executed discharge voucher towards full and final settlement of the said amount of Rs. 59800/-  ,  therefore, present complaint  is not maintainable   and in support of this plea the opposite party relied upon United India Vs.Hayagriv Textile (India) Pvt.Ltd CPC 1994(2) page 580 as well as National Insu.Co.Ltd. Vs.Nipha Exports Pvt.Ltd  2007(1) CLT 62. But we are not agreed with this plea taken by the opposite party as mere acceptance of insurance claim will not estop insured from making further claim. Reliance in this connection has been placed upon  National Insu.Co.Ltd., Vs. Giriraj Proteins IV(2012) CPJ 151 (NC) wherein it has been held that it is wrong practice followed by insurance companies in not paying single pie without having discharge voucher. It is coercive bargaining as insured has no option but to sign the discharge voucher. Mere execution of discharge voucher and acceptance of insurance claim will not estop insured from making further claim.       

10.     The main ground taken by the opposite party in settling the claim to the tune of Rs. 59,800/- against the claim amount of Rs. 9,95,000/- and has submitted that the CA appointed by the opposite party has considered the value of each item with respect to the estimate submitted by the insured and the  said process was carried out in the presence of insured who is fully aware regarding the assessment made out by the CA .  It was also observed that approx. value of the furniture and fixtures owned by the Wisdom Classes and the items not covered under the policy comes to more than Rs. 5 lacs. In the said report each and every item has been duly described with specific reason for not allowing the particular item or allowing same to the extent of terms  and conditions of the fire policy in question and there is no deficiency in service .

11.     This Commission has given thoughtful consideration to the pleadings of both the parties as well as evidence placed on record by both the parties  and  the perusal of  policy schedule Ex.C-1 duly proves that the policy bearing No.233300/11/2020/589 for the period from  21.11.2019 to 20.11.2020  covered the complete building with its foundation and upper storeys used office, school, bank with different floors with its permanent fixture/F/F of all kinds/sanitary fittings/Electrical fittings for the sum assured of Rs. 7,00,00,000/-   as well as risk of 35 AC split, 3 LED/LED one Hyundai/2 Sony LED, PC Computer, one Laptop, One OTIS Lift, One Genset 125 KVA, one Alternator, Two HP Submersible Pump fitted in the insured premises for the sum assured  of Rs. 50,00,000/-  . The plea taken by the opposite party while settling the claim of Rs. 59,800/- whereas the complainant has duly proved that he incurred an expenditure of Rs. 9,95,000/- in renovating the premises for which the complainant has placed on record schedule of Expenditure Ex.C-2 as well  as bills Ex.C-3 to Ex.C-27, is that  upper floor is let out by the complainant to Wisdom Classes and that the furniture and fixtures in the premises were owned by the Wisdom Classes and not by  the insured and in this regard the opposite party relied upon  license deed Ex.OP/4. Hence, only building and permanent fittings are covered as per the policy in question. But we are not agreed with this plea taken by the opposite party as policy was obtained by the complainant for the period from 21.11.2019 to 20.11.2020 and  the opposite party while issuing the policy has  checked the premises and received premium for fixtures etc. present in third floor/burnt premises after  inspection of fixtures etc.  Nowhere in the policy it has been mentioned  that the furniture and fixtures in the premises  i.e. third floor of the building were owned by the Wisdom Classes and the same are not covered under the policy in dispute. As in the present case the complainant has got insured the complete building as well as  its fittings and  the opposite party while issuing the policy has  checked the premises and received premium for fixtures etc. present in third floor/burnt premises after  inspection of fixtures etc. and now the opposite party cannot wriggle out from their liability when the fire occurred in the insured premises of the complainant . Ld.counsel for the complainant also relied upon the law laid down in Virmani Refrigeration and Cold Storage Pvt.Ltd. Vs.New India Assu.Co.Ltd  2008(1) CPJ wherein it has been held  that –Insurable interest – Building under construction damaged in fire- Loss assessed by surveyor- company offered 40% of the assessed amount on the basis of deed of consent executed between complainant and builder/promoter according to which 60% interest in property had been parted by complainant in favour of builder/promoter –Deed of consent executed entirely with regard to construction and completion of building, no way connected with insurable amount- Complainant had got the entire insured for a particular sum against the requisite premium- Repudiation by way of offering 40% of assessed amount unjustified- company liable to pay assessed amount with interest –Complaint allowed. Further reliance has been placed upon  Parmeshwary Sawhney Vs. United India Insu.Co.Ltd. 2009(2) JKJ 13 wherein it has been held that contract of insurance requires insurable interests in subject matter and an insured can be said to have insurable interest in property if he would suffer pecuniary loss due to loss of property or would attain pecuniary benefit or advantage from preservation of insured property- Insurance of subject matter and its ownership may not necessarily to go together- Contract of insurance may be to cover interest of other and person insuring interest may not be owner of property- Any person who has partial interest in some property is entitled to insure to extent of full value of property rather than to extent of his actual interest or share- All co-sharers are not required to be made as party to policy.

12.     So far as the quantum of claim is concerned, the opposite party itself has admitted that their surveyor Chartered Accountant M/s. Ashwani Gupta & Co has observed that  value of the furniture and fixtures owned by the Wisdom Classes and the items not covered under the policy comes to more than Rs. 5 lacs, as such the opposite party is liable to pay this amount to the complainant as it is well settled by the Hon’ble National Commission  in case Oriental Insurance  Co.Ltd. Vs. B.Ramareddy II(2006) CPJ 339 (NC) that surveyor’s report is an important piece of evidence. Compensation can be awarded only on the basis of surveyor’s report. It has also been held by the Hon’ble Gujarat State Commission in case United India Insurance  Co.Ltd and another Vs. Hotehl White Rose 2004(3) CLT 494 that surveyor assessment was wrong, burden to prove is on the consumer to establish by producing evidence that what has been left out by the opponents and what has been not correctly and properly assessed by the opponents.

13.     In view of the above discussion, we partly allow the complaint with costs and the opposite party is directed to pay the amount of Rs. 5,00,000/- ( five lacs) as assessed by their surveyor Chartered Accountant M/s. Ashwani Gupta & Co after deducting the amount of Rs. 59,800/- already credited to the account of the complainant on 9.12.2020 i.e. Rs. 4,40,200/- to the complainant within 45 days failing which the opposite party is liable to pay the said amount of Rs.4,40,200/- alongwith interest @ 7% p.a. from the date of loss assessed by their own surveyor i.e. 10.9.2020 till its realization. So far as compensation is concerned the opposite party indulged the complainant in unwanted litigation which the complainant has filed after hiring Advocate and also faced lot of harassment as well as inconvenience ,  as such the opposite party  is  also directed to pay compensation to the tune of Rs. 50000/-  and litigation expenses of Rs.5000/- to the complainant . Compliance of the remaining order i.e. award of compensation as well as litigation expenses  be made within 45 days from the date of receipt of copy of this order ; failing which complainant is liable to get the order executed through the indulgence of this Commission. Copies of the orders be furnished to the parties free of costs. File is ordered to be consigned to the record room. Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this commission.