DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II, U.T. CHANDIGARH

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Raghbir Kaur w/o Justice Tejinder Singh Doabia (Retd.), House No.38, Sector 9/A, Chandigarh /C-4/45 Second Floor, Safdarjung Development Area, New Delhi.

                   ---Complainants

Versus

The Oriental Insurance Company Limited, through the Regional Manager, SCO No.109-111, Surendra Building, Sector 17/D, Chandigarh.

---- Opposite Parties

BEFORE:      SH. LAKSHMAN SHARMA                    PRESIDENT

MRS.MADHU MUTNEJA                       MEMBER

                   SH.JASWINDER SINGH SIDHU             MEMBER

Argued By:             Sh. Munish Goel, Counsel for Complainant.

Sh. G.S. Ahluwalia, Counsel for Opposite Party.

PER JASWINDER SINGH SIDHU, MEMBER

1.                Briefly stated, the Complainant had taken insurance cover under Policy No.231102/48/2010/1770 on 28.11.2008, which was, subsequently, renewed, from time to time, and lastly, it was valid upto 08.11.2010 (Annexure C-1 colly). Among other household goods, the gold and diamond jewellery, were duly insured, with the Opposite Party (detail in Para 3 of the complaint). The Complainant claims that she lost one ear ring with a diamond stud on 22.10.2010. The circumstances under which the loss came to occur was indicated in the F.I.R. which was lodged on 24.10.2010 (Annexure C-2). A claim was lodged with the OP-Insurance Company, upon which a Surveyor was appointed. The Complainant also sent a communication on 05.09.2011 to the effect that the ear tops is diamond solitaire, were evaluated by Bhola Jewellers in the presence of the agent of the Insurance Company (Annexure C-3). Surprisingly, the Opposite Party vide letter dated 15.09.2011, repudiated the claim of the Complainant (Annexure C-4). Even a certificate issued by Smt. Shakuntala Kalra, through whom the policy was taken, was also sent to the Opposite Party to the effect that she was present when the valuation of the jewellery items was done by Mr. Arvind of M/s Bhola Jewellers. Notwithstanding this, the Opposite Party, vide letter dated 07.10.2011, informed the Complainant that the claim is not sustainable (Annexure C-6), which according to the Complainant is factually & legally incorrect constituting patent deficiency in service towards her to the detrimental of her economic interests. Hence, the present complaint.              

                   The complaint of the Complainant is duly verified and is supported by her detailed affidavit.

2.                Notice of the complaint was sent to Opposite Party seeking their version of the case.

3.                Opposite Party in its reply has contested the claim of the Complainant by raising preliminary objections to the effect that the Complainant has no cause of action against the Opposite Party and the present complaint is not maintainable. 

                   On merits, the Opposite Party has repeated their preliminary objections, while replying to the averments of the present complaint, in their para-wise reply. It is pleaded that while processing the claim of the Complainant in respect of loss of one Solitaire Stud (ear tops), which allegedly occurred on 22.10.2010, the answering Opposite Party scrutinized the list of house hold items, prepared at the time of giving insurance cover/ renewal. All the jewellery items were described giving minute details. The list contains a mention of a diamond solitaire which means there is only one single diamond. The same does not describe it to be a stud/ ear tops which are always two in number. The jewellery for which claim stands lodged may have been purchased by the insured subsequent in point of time of obtaining house holder policy. Hence, the alleged solitaire diamond stud is not covered under the policy. Hence, the alleged lost item (diamond stud/ ear tops), not being in the list of articles insured, the claim of the Complainant was not tenable and, thus, the same was validly and legally repudiated by the answering Opposite Party vide letter dated 07.10.2011. Pleading that there is no deficiency in service on its part, the answering Opposite Party prays for the dismissal of the complaint with exemplary costs.  

                   The reply of Opposite Party is duly verified and is supported by a detailed affidavit of V.K. Bhoocher, Manager, Oriental Insurance Company Limited.

4.                Having gone through the entire complaint, version of the Opposite Parties, the evidence of the parties and with the able assistance of the learned counsel for the parties, we have come to the following conclusions.

5.                The present complaint of the Complainant is borne out of the repudiation of the claim for loss of diamond stud which occurred on 22.10.2010 and was duly reported to the police vide F.I.R. dated 24.10.2010. The Opposite Party for the first time through their letter dated 15.09.2011 repudiated the claim of the Complainant citing the reason that the jewellery item insured by them inter alia diamond solitaire for Rs.5,00,000/- under Section G item (h) of the list of house hold goods does not mention the same to be a part of ear tops or ear studs. It was concluded in the communication of the Opposite Party that the diamond ear stud/ top for which the claim has been made, is not insured under the policy and hence, the claim is not tenable. The Complainant had objected to such a view and replied to this letter through her communication dated 20.09.2011. The Opposite Party once again through its communication dated 07.10.2011 while accepting the letter dated 20.09.2011 of the Complainant once again stood its ground to repudiate the claim. 

6.                The Complainant while preferring the present complaint against the Opposite Party has brought on record the list of evaluated items by M/s Bhola Jewellers, SCF 33, Sector 8-D, Chandigarh, along with the affidavits of Mr. Arvind of M/s Bhola Jewellers, as well as the affidavit of Smt. Shakuntla Kalra, in order to establish that the jewellery item mentioned as Solitaire diamond mentioned in the list of insured articles were actually the same  which were insured in the first place by the insurance company and also was the same article which was lost by the Complainant and an F.I.R. mentioning its loss was filed on 24.10.2010. Interestingly, the Surveyor appointed by the Opposite Party to assess the loss of the Complainant in its report has held that the loss suffered by the Complainant was genuine and deserves to be paid.  The Opposite Party initially did not bring on record anything in support of its contentions; whereas, the Complainant in order to establish her bonafides moved an application dated 3.8.2012 wherein it was prayed that the Opposite Party be directed to produce the entire file pertaining to her case. The Opposite Party in reply to this application, which was allowed by this Forum vide order dated 8.10.2012, has tendered Annexure CX, CY and CZ, which are the Surveyor report and communication dated 23.08.2011 and copy of letter dated 20.9.2011, along with a certificate of Mrs. Shakuntla Kalra, authorized agent of Opposite Party, in whose presence the jewellery was evaluated and the cover note was prepared. On going through these documents, it is revealed that the Surveyor/ loss assessor has categorically mentions that the net loss suffered by the Complainant is assessed as Rs.2.5 lacs. Secondly, Annexure CY is a letter dated 23.8.2011 from one Bindu Jain Dasgupta of Opposite Party had opined that it seems to her that the diamond solitaire is a single piece jewellery item and through her letter, she sought some clarifications from the Surveyor, and in his communication, the Surveyor had once again impressed upon the fact that the diamond solitaires mentioned in the list of items were actually the ear studs of which one piece was lost, valued at half of the price of Rs.5.00 lacs i.e. Rs.2.5 lacs. In the subsequent communication, dated 20.9.2011, the Complainant once again reiterated that a solitaire in ear tops would remain a solitaire and that the Opposite Party should go by the representation made by their agent to them, as well as the evaluation certificate submitted from an authorized evaluator. Hence, the Complainant has clearly established the fact that the Opposite Party while repudiating her genuine claim failed to take into consideration the observations of the surveyor as mentioned in his survey report, as well as the certificate given to them by their agent Mrs.Shakuntala Kalra clearing all the air about any misgiving or confusion with regard to the identity of the lost item. 

7.                It is important to note here that the Opposite Party is very much within its right and power to appoint an independent investigator in case it feels the need and also if there is an element of suspicion about the claim lodged by the insured. But in the present context, Opposite Party did not prefer to take such a recourse; whereas, one of its officials namely Ms. Bindu, whose designation too is not found disclosed by it, had, for the first time, raised an objection, about the present issue, by making a letter to Mr. A.K. Bhalla, the appointed surveyor. Interestingly, Ms. Bindu preferred to write this letter dated 02.08.2011 i.e. after a passage of 08 months from the date of submission of surveyor report, though the IRDA (Protection of Policy Holders Interest)Regulations, 2002, clearly states that the insurance company is duty bound to settle the claim of the Complainant, within a period of one moth, after all the formalities have been completed. But in the present case, the Opposite Party rose out of its slumber after a passage of 08 months and repudiated the genuine claim of the Complainant on flimsy grounds.  This act of the Opposite Party clearly amounts to deficiency in service on its part.

8.                Though the reply of the Opposite Party is duly supported by the affidavit of Sh. V.K. Bhoocher, which states in para 4 of its affidavit that Mr. Avtar Singh, Agency Manager, who was present at the time of preparation of list Annexure R-1 claims that the diamond solitaire insured was one single unit valued at Rs.5.00 lacs. However, we have gone through the list of items Annexure R-1 which is also the Annexure tendered by the Complainant at Page 25 to 28, along with the certificate on Page 24, which is the title page of Annexure R-1, the Opposite Party ignored to tender.  We have minutely perused this document but failed to locate the affidavit of Mr. Avtar Singh Annexure R-2 who claims that this document was prepared in his presence. There is also no other evidence to prove his presence at the given point of time, as made out in his affidavit.  Hence, in the absence of the affidavit of Mr. Avtar Singh (Annexure R-2), the contents of the affidavit tendered by the Opposite Party cannot be believed, and is out rightly rejected; whereas, on the other hand, the affidavit of M/s Bhola Jewellers, the author of Annexure R-1, and also the affidavit of Agent Mrs. Shakuntala Kalra, who claimed to be present, at the time of evaluation, carries more weight, and are genuine, giving credence to the averments of the complaint. Hence, in the given situation, the defence of the Opposite Party, being bereft of any cogent, reliable and trust worthy evidence, cannot be believed.  In these set of circumstances, the present complaint of the Complainant, deserves to succeed.  

9.                In the light of above observations, we are of the concerted view that the Opposite Party is found deficient in giving proper service to the complainant. Hence, the present complaint of the Complainant is Allowed. The Opposite Party is directed, to:-

[a]    To pay Rs.2.50 lacs being the claim amount;

[b]    To pay Rs.35,000/-on account of deficiency in service and causing mental and physical harassment to the Complainant; 

[C]    To pay Rs.10,000/- as cost of litigation;

10.              The above said order shall be complied within 45 days of its receipt by the Opposite Party; thereafter, they shall be liable for an interest @18% per annum on the amount mentioned in sub-para [a] & [b] of para 9 above, apart from cost of litigation of Rs.10,000/-, from the date of institution of this complaint, till it is paid.  

11.              Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room.

Announced

25^th January, 2013.                                                                                   

Sd/-

(LAKSHMAN SHARMA)

PRESIDENT

Sd/-

(MADHU MUTNEJA)

MEMBER

Sd/-

 (JASWINDER SINGH SIDHU)

MEMBER