Haryana

Karnal

CC/210/2020

Surinder Kaur - Complainant(s)

Versus

The Oriental Insurance Company Limited - Opp.Party(s)

Sudhakar Mittal

09 Feb 2021

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KARNAL.

 

                                                        Complaint No.210 of 2020

                                                        Date of instt. 16.06.2020

                                                        Date of decision 09.02.2021

 

Surinder Kaur wife of Shri Mohan Singh c/o Bawa Marriage Palace & Farm, Nilokheri Road, Nighdu, District Karnal. Adhaar no.340409432089.

        …….Complainant       

                                        Versus

 

The Oriental Insurance Company Ltd. through Senior Divisional Manager, Division Office, Sabbarwal Market, Railway Road, Kurukshetra.

    …..Opposite Party.

 

      Complaint u/s 12 of the Consumer Protection Act, 1986.       

 

Before:   Sh. Jaswant Singh……President.      

      Sh.Vineet Kaushik ………..Member

              Dr. Rekha Chaudhary……Member

 

 Present: Shri Sudhakar Mittal counsel for complainant.

                Shri G.S. Juneja counsel for opposite party.

               

                (Jaswant Singh President)

ORDER:                    

 

                This complaint has been filed by the complainant u/s 12 of the Consumer Protection Act 1986 on the averments that the complainant has purchased the fire and the special perils insurance policy bearing no.261303/11/2014/409 from the Opposite party (hereinafter referred as to OP) for the period commencing from 13.11.2013 to 12.11.2014. Under this policy complainant got insured her marriage palace building situated at Nigdhu, Tehsil Nilokheri, District Karnal. On 6/7.7.2017 due to severe storm the insured premises was badly damaged. The complainant lodged her claim of Rs.18,35,520/- before the OP. OP deputed the surveyor, who submitted his report dated 31.12.2015 by assessing the net loss to the tune of Rs.14,37,130 but the OP never bothered to deliver the  copy of surveyor report or to pay the  assessed amount to the complainant. Complainant got served a registered A.D. legal notice to the OP, to make payment of the assessed amount but despite that the OP did not settle the claim and lingered the matter on one pretext or the other. The OP raised number of irrelevant queries from the complainant which was duly replied by the complainant time to time. The OP with malafide intention not release the genuine claim of the complainant and finally closed the file on 07.10.2016, as no claim.

2.             Further, in these circumstances, complainant moved an application before learned PLA, Karnal for amicably settlement of her claim. This application moved on 14.02.2017 and OP never placed on record or discusses the surveyor report. The surveyor report was placed on record by the OP on asking of the court. After placing the surveyor report, the learned PLA, Karnal directed the OP to reconsider the claim and the OP finally placed on record its approval letter on 27.02.2020. The OP has kept on the claim file pending from 06.07.2014 to 07.10.2016 without any reason or rhyme. Even though the same was under obligation to accept or reject the claim within 30 days from the receipt of surveyor report and within 90 days from the registration of claim.

3.             Further, complainant is entitle for her full claim to the tune of Rs.14,37,130/- as assessed by the surveyor alongwith interest @ 6% per annnu. The deduction of the claim by the OP vide email dated 27.02.2020 and non-payment of the approved amount are altogether illegal, void, arbitrary and not binding upon the complainant. OP has deducted the claim of the complainant to the tune of 25% without assigning any reason. The complainant has made the reply of all the relevant queries raised by the OP. In this way there is deficiency in service on the part of the OP. Hence complainant filed the present complaint.

4.               Notice of the complaint was given to the OP, who appeared and filed written version raising preliminary objections with regard to maintainability; complainant is estopped by her own act and conduct from filing the present complaint; locus standi and concealment of true and material facts. On merits, it is pleaded that complainant did not supply the record and hence surveyor and Loss Assessor Sandeep Bharti, vide survey report dated 31.12.2015 has given provisional figure of loss as Rs.14,37,130/- subject to submission of record as mentioned in para 14.0 Survey Report under the head “Liability of the insurers’ as despite of letters dated 11.07.2014, 22.08.2014, 28.11.2014, 27.01.2015, 10.03.2015, 04.02.2015, 16.06.2015, 27.07.2015, 09.10.2015 and 18.12.2015 of surveyor letter and letter dated 1.12.2014, email dated 28.01.2015 and registered letter dated 11.05.2015 and 27.07.2015 of OP. complainant failed to submit claim supporting record hence in para 14.5 of his survey report, surveyor has opined insurer are not liable to pay any compensation for the reported loss and may close this case by considering as “No Claim.”

5.              It is further pleaded that requirement of original bills of repair, valuation report, bank statement, balance sheet, profit and loss statement, partnership deed etc. are the basic required record to assess any loss and it is for the further processing by the insurer. Otherwise also, survey reports of surveyors and charted accountant are just recommendatory for basis of settlement, final decision to admit-total or partial or deny liability falls upon insurer. It is denied that OP has admitted any liability or amount of Rs.10,23,955/- at any stage of time. Hence, claim was treated as ‘No Claim’ and intimation in this regard was also sent to complainant vide letter dated 07.10.2016. There is no deficiency in service on the part of the OP. The other allegations made in the complaint have been denied and prayed for dismissal of the complaint.

6.             Complainant tendered into evidence her affidavit Ex.CW1/A, claim form Ex.C1, estimate Ex.C2 and Ex.C3, technical opinion Ex.C4, valuation sheet Ex.C5, letter to insurance company Ex.C6, policy Ex.C7, mail dated 28.11.2014 Ex.C8, RTI application Ex.C9, letter to M/s Sandeep Bharti Ex.C10, letter dated 07.10.2016 Ex.C11, Panchyat letter dated 06.07.2014 Ex.C12, newspaper cutting Ex.C13 and Ex.C14, legal notice Ex.C15, affidavit of Manraj Virk Deputy Manager Ex.C16, letter dated 07.10.2016 Ex.C17, mail dated 22.02.2020 Ex.C18 and report dated 31.12.2017 Ex.C19 and closed her evidence on 08.12.2020 by suffering separate statement.

7.             On the other hand, OP tendered into evidence affidavit of Sanjiv Madan Ex.OW1/A, affidavit of Sandeep Bharti Surveyor Ex.OW2/A, affidavit of Surender K. Singla Loss Assessor Ex.OW3/A, insurance policy Ex.O1, Standard Fire and Special Peril Policy Ex.O2, letter dated 07.07.2014 of Surender Kaur Ex.O3, letter dated 22.08.2014 of Sandeep Bharti Ex.O4, letter of Sureder Kaur to Sandeep Bharti Ex.O4, copy of sale deed Ex.O6, copy of partnership deed Ex.O7, statement of statutory income Ex.O8, copy of profit and loss account Ex.O9, letter of Surender Kaur to Sandeep Bharti Ex.O10, copy of PAN Card of Bawa Farm and Palace Ex.O11, copy of bank of Bawa Farm & Palace Ex.O12, copy of survey report dated 31.12.2015 Ex.O13, legal notice Ex.O14, reply of legal notice Ex.O15, survey report Ex.O16, copy of order dated 18.03.2020 of PLA, Karnal Ex.O17 and closed the evidence on 19.01.2021 by suffering separate statement.

8.             We have heard the learned counsel of both the parties and perused the case file carefully and have also gone through the evidence led by the parties.

9.             Learned counsel for complainant argued that complainant obtained fire and special perils insurance policy from OP and got insured her marriage palace building at Nigdhu, Tehsil Nilokheri, District Karnal. On the intervening night of 6/7.07.2014, the premises was badly damaged due to storm. Intimation in this regard, was given to OP and lodged the claim to the tune of Rs.18,35,520/-. A surveyor was appointed by OP who submitted his report by assessing the loss of Rs.14,37,130/ but the OP failed to pay the assessed amount. Thereafter, complainant filed a complaint before PLA, Karnal, where OP was ready to pay the claim of the complainant on the substandard basis i.e. an amount of Rs.10,23,955/- but nothing was paid by the OP till to date.  Moreover, the complainant was not ready to receive the said amount same has specifically been mentioned in the order dated 18.03.2020, passed by Permanent Lok Adalat, Karnal. The OP raised number of irrelevant queries from the complainant which were duly replied by the complainant time to time.  The OP has kept on claim file pending before them without any reason and rhyme. Hence, the act of OP amounts to deficiency in service and prayed for allowing the present complaint. 

10.           Per-contra, learned counsel for OP argued that the present complaint is hopelessly time barred and deserves to be dismissed on the account that complainant earlier has filed a complaint before PLA, Karnal, whereby she has not obtained permission to file afresh before this Commission. Besides it, the complainant has not submitted the necessary information and supported documents as required by Surveyor of OP.  Therefore, surveyor had given only a provisional figure of loss of Rs.14,37,130/-, subject to submission of record for which the complainant has failed to submit, hence, the claim amount of the complainant was not paid and OP prayed for dismissal of complaint. Moreover, OP was/is already ready to pay an amount of Rs.10,23,955/- on substandard basis.

11.           Admittedly, incident took place during the subsistence of the insurance policy. The complainant lodged her claim with the OP. The surveyor was appointed by the OP, who assessed the loss to the tune of Rs.14,37,130/- but the claim of complainant was repudiated by the OP vide repudiation letter Ex.C11, on the grounds, that complainant failed to provide the documents and information required by the OP for the settlement of the claim.

12.           The OP had written a letter Ex.O4 (Ex.C8) to the complainant, wherein OP has raised 23 queries. The said letter was replied vide letter Ex.O5 and Ex.C10 (Ex.O10) by the complainant, wherein most of the queries were sought out, some of the queries are baseless and some are out of control of the complainant.

13.           As per the version of the complainant, OP withheld the survey report dated 31.12.2015 (Ex.C19) prepared by the surveyor of the OP and on the direction of learned Public Utility Court, the OP had produced the complete survey report before the learned Public Utility Court.    

 14.          The survey report Ex.O13(Ex.C19) had prepared on submission of documents by the complainant, which the OP sought vide letter Ex.O4 (Ex.C8), therefore, question for submission of documents sought in letter  Ex.O4 (Ex.C8) does not arise at all. The surveyor of the OP after analyzing all the required documents, come to the conclusion that net loss to the tune of Rs.14,37,130/- had been occurred. Furthermore, the survey report Ex.O13 includes most of documents i.e. sale deed Ex.O6, partnership deed Ex.O7, copy of income tax return Ex.O8, proof and loss assessed Ex.O9, valuation sheet, photographs of the building, layout plan, newspaper cutting, certificate of gram Panchayat, etc., which were under the control of the complainant.

15.           In his report Ex.O16, Chartered Accountant has submitted that the complainant failed to supply complete documents to the OP despite repeated requests, hence, 25% of the claim amount is deducted. While the complainant had already submitted documents to the surveyor of the OP and the same have been attached with the survey report, then question for non-submission of documents by the complainant does not arise at all. Moreover, it is the complainant who has lodged her claim for claiming insurance amount, then there is no reason with the complainant not to submit the necessary documents in case, demanded by the OP. 

16.           OP has taken a plea that the present complaint has been filed by only one partner of the Bawa Marriage Palace & Farm Surinder Kaur, whereas as per the partnership deed, there are other three partners, hence, the complaint should have been filed by all the partners, therefore, the same is not maintainable. In this regard, the policy in question has been issued by the OP in the name of the complainant Surinder Kaur, who is also one of the partners. The present complaint has been filed by Surender Kaur wife of S.Mohan Singh c/o Bawa Marriage Palace & Farm and all the partners are family members. Complaint cannot be dismissed only technical ground. Hence, in view of the above, we are of the considered view that one partner can file a complaint on behalf of remaining partners. Hence, the plea taken by the OP has no force.

17.           The OP has also taken another plea that the present complaint is not maintainable as the principle of res-judicata applies, because the previously a complaint had been filed by the complainant before the learned Public Utility Court which was withdrawn without obtaining permission to file afresh. Moreover, in the order Ex.O17, passed by Permanent Lok Adalat, it is clearly mentioned that the complainant has sought permission to file the fresh complaint and on the statement of the complainant, the application was withdrawn. Hence, the permission sought by the complainant has not been denied by the Permanent Lok Adalat and it is presumed to be granted. Hence, the plea taken by the OP has no force.

18.           The OP has also taken another plea that the complaint filed by the complainant is hopelessly time barred. In this regard the complainant has relied upon the judgment titled as Ishwar Singh Versus N.C.Jindal Institute of Medical Care and Research Centre and others in first appeal no.1000 of 2015 date of decision 01.03.2016 whereby it is held that in complaint itself cause for delay explained that matter filed before Permanent Lok Adalat and than withdrawn with permission to file case-Whether delay can be condoned by Consumer Fora without any application for condonation of delay-Held, Yes-complainant has reasonably explained the cause for delay in filing complaint-Appeal Allowed.  Further, learned counsel for complainant has submitted report of  Chartered Accountant dated 24.02.2020 Ex.O16, clearly reveals that the cause of action was still continue till 24.02.2020 and the complainant filed the present complaint on 16.06.2020, thus, the complaint filed by the complainant is within limitation.  As the claim of the complainant remained with the OP till 24.02.2020 and lastly Chartered Accountant of the OP filed his report on 24.02.2020, hence, the plea taken by the OP has no force as the present complaint has been filed as per within limitation prescribed in Consumer Protection Act, 2019.

19.           Case law relied upon by the OP are not applicable to the facts of the present complaint, whereas the case law relied upon by the complainant are applicable to the facts of the present case.

20.           A careful perusal of the record shows that the complainant has submitted most of the documents with the OP as desired by them and the remaining documents which the complainant could not submit as are out of her control. Further, a careful perusal of the letter Ex.O4 shows that the documents which the complainant could not supply to the OP are not of that essential documents for want of which the claim of the complainant could not be settled. Furthermore, the Chartered Accountant appointed by the OP, who has again prepared his  repor, assessed the loss to the tune of Rs.10,23,955.25/-  after deducting 25% of the approved amount. The report (Ex. O16) given by the Chartered Accountant of the OP shows that he had assessed the loss in a very casual way without applying mind.  There is no justified ground to deduct the 25% of the approval claim. Now a days, it has become a trend by the insurance companies to repudiate the claim of their consumers without any reason and in very casual way, just to harass the consumers and in order to escape their liabilities. Hence, keeping in view the above discussion and circumstances of the case, we are of the considered view that the act of the OP amounts to deficiency in service and unfair trade practice while repudiating the claim of the complainant, which  otherwise proved genuine one.

21.           As per the survey report dated 31.12.2015, (Ex.O13), the loss has been assessed as Rs.14,37,139/-. Thus, the complainant is entitled for the same alongwith interest and litigation expenses etc. The complainant in para No.6 of his complaint, has claimed interest at the rate of 6%, thus, complainant is entitled for interest at the rate of 6% on the aforesaid amount. 

22.           Thus, as a sequel to abovesaid discussion, we allow the present complaint and direct the OP to pay Rs.14,37,139/-  to the complainant with interest @ 6% from the date  i.e. of repudiation of the claim till its realization. We further direct the OP to pay Rs.25,000/- to the complainant on account of mental agony and harassment suffered by her and Rs11,000/- for the litigation expenses. This order shall be complied within 45 days from the receipt of copy of this order. It is made clear if the abovesaid amount will not paid by the OP within stipulated period then the abovesaid amount will carry interest @ 12% per annum from the date of repudiation of claim till its realization. The parties concerned be communicated the order accordingly, and the file be consigned to the record room, after due compliance.

Announced

Dated: 09.02.2021                                                                    

                                                                      President,

                                                      District Consumer Disputes

                                                      Redressal Commission, Karnal.

 

 

       

         (Vineet Kaushik)               (Dr. Rekha Chaudhary)

            Member                              Member