Reportable

Before,

State Consumer Disputes Redressal Commission, Bihar, Patna

Complaint Case  No. 105 of 2017

Kolkata Computer through its proprietor Mr. Manoj Kumar Singh, having its place of business at G-3, Shanti Bhawan, S.P. Verma Road, Patna- 800001

                                                                                                                                                                       ............... Complainant

                                      Versus

1. The Oriental Insurance Company Limited, Registered office, Oriental House, A-25/27, Asaf Ali Road, New Delhi- 110002
2. The Regional Manager, The Oriental Insurance Company Limited, Regional Office, Pirmohani, Kadamkuan, Patna- 800003 and
3. The Branch Manager, The Oriental Insurance Co. Limited, Uma Complex, Fraser Road, Patna- 800001

                                                                                                                                                                       ........... Opposite Parties

Counsel for the Complainant- Adv. Satendra Kumar Dubey

Counsel for the Opposite Party- Adv. Sanjay Kumar

Before:

Miss Gita Verma (Judicial Member)

Mr. Raj Kumar Pandey ( Member)

Mr. Subodh Kumar Srivastava (Judicial Member)

Dated: 29.06.2022

Order

Mr. Subodh Kumar Srivastava (Judicial Member)

1. Complainant has brought this consumer complaint case against opposite parties with prayer to grant the reliefs in his favour for the payment of Rs. 18,41,250/- with 18% interest per annum from the date of loss 31.12.2014 till the realization of the same and also Rs. 5,00,000/- as compensation for physical and mental harassment along with litigation cost Rs. 25,000/-. He has also demanded Rs. 6,00,000/- for deficiency in service of the opposite parties.
2. As per the  complaint petition the complainant’s case in brief is that complainant is running a shop in the name and style “Kolkata Computer”. He runs the business of Laptop, desktop and their accessories. he had obtained a shopkeeper’s insurance policy bearing policy no. 331406/48/2015/259 w.e.f 04.06.2014 to midnight of 03.06.2015, thus complainant is a consumer of the opposite parties as per provisions of Consumer Protection Act, 1986.  Unfortunately, during the insured period on 31.12.2014 during the night hours some miscreants took control of the shop and cut the shutter of the shop and took away all the properties of the complainant kept therein. An F.I.R. was lodged with Gandhi Maidan, P.S. bearing case No. 02 of 2015. After investigation police submitted final form as true but clueless.
3. Complainant also informed about the incident to the opposite parties vide its letter dated 01.01.2015.   Surveyor was appointed  by the opposite parties. Surveyor  orally affirmed the incident. He submitted his report to the opposite parties but they did not settled the matter, rather they have been keeping  the same pending for last two years (on the date of filing the case). complainant has further stated that at the time of insurance the opposite parties did not make available any terms & conditions of policy. having no option complainant has to bring this complaint before this commission. With the above facts and circumstances complainant has sought for the reliefs as mentioned in para no. 1.
4. Opposite parties have appeared and filed written statement on their behalf stating therein that complaint is wholly misconceived, untenable, groundless both in law and particularly in view of the facts that claim of the complainant has been closed as no claim due to non-cooperation on the part of the complainant. As such, there is no deficiency in service on the part of the opposite parties. O.Ps have admitted the fact of insurance policy issued to complainant for his shop for the said period. They also admitted that complainant lodged a claim under the policy for a loss of Rs. 18,41,250/- approximately on 02.02.2015 before the insurance company. Soon thereafter, insurance company deputed surveyor Mr. Anand Kumar Rungta to survey and investigate the above said reported loss. During the process of loss assessment the surveyor repeatedly demanded certain documents through various letters dated 17.01.2015; 14.09.2015;03.03.2016; and 14.03.2016. On 18.03.2016 reminder was also given. Surveyor on the basis of few papers as submitted by the insured and enquiries made by it, quantified the loss to the extent of Rs. 9,60,461.43/- and submitted his report on 29.06.2017 with remarks that demanded documents were not made available by the insured. Again on 04.07.2017 insurance company informed the insured for the relevant documents required by the surveyor and not provided by the insured and requested to submit as earliest failing which there will be assumption that the claimant is not interested in claim, hence, claim will be treated as closed. Thus, the insurance company could not settled the claim due to dilly dally approach of the complainant. There is no deficiency in service on the part of the opposite parties hence prayer was made to dismiss the complaint.
5. Complainant has filed rejoinder to the written statement of O.P., stating therein that in para 4 of W.S date of burglary incident has wrongly been given as 13.12.2014 in place of 31.12.2014. Date of incident is not in dispute. Complainant has assessed the loss of property valued Rs. 18,41,250/-, whereas, surveyor has assessed the actual loss of Rs. 14,00,000/- as evident from the letter dated 14.03.2016 of O.P. (Annexure-3 of WS). Later on, Surveyor changed his mind and assessed the loss finally to the tune of Rs.9,60,461.43 only, but that amount also were not paid to the complainant. Objection regarding disproportionate purchase figure for third quarter in comparison to earlier trend. Such objections are imaginary and against the VAT returns, which are conclusive evidence.
6. Complainant has filed several documentary evidence to prove his case. These documents are as under:-

     Exhibit- 1- FIR lodged with Gandhi Maidan, P.S. Case No-02 /2015

     Exhibit- 2-Final Form submitted by Police in P.S. Case No- 02/2015

     Exhibit- 3- Policy proposal form of Oriental Insurance Company for

     the complainant’s     shop.

     Exhibit- 4- Information Petition by complainant to Insurance  

     Company regarding burglary incident in the shop.

     Exhibit- 5-Copy of stock Summary of complainant’s shop “Kolkatta

     Computer”.

     Exhibit- 6- Copy of shopkeepers Insurance Policy schedule.

    Exhibit- 7- Copy of Premium Receipt for Rs. 7,348/- Dated

    02.06.2014.

7. Opposite-parties have also finds several documentary evidence before this Commission in order to their case. These documents are as follows:-

Exhibit A series-Copy of documents demand letter dated 17.01.2015; 14.09.2015;03.03.2016 and 14.03.2016.

Exhibit B- Copy of letter dated 18.03.2016 of Insurance Company by way of reminder to the complainant for submissions of documents.

Exhibit C-Report dated 29.06.2017 of Anand Kumar Rungta, surveyor in respect of  loss to the extent of Rs.9,60,461.43/- in the shop of  the complainant due to burglary.

Exhibit D-Information letter dated 04.07.2017 to the complainant from Insurance Company regarding closer of his claim.

                                       Findings

8. Both parties were heard and record was perused.
9. It is admitted facts that the complainant’s shop “M/S Kolkatta Computer” was insured with the opposite parties’ insurance company. It is also admitted that  burglary incidence took place in the shop of the complainant in the night of 31.12.2014/01.01.2015 for which FIR was lodged Gandhi Maidan P.S. as 02/2015 (Exhibit-1). After investigation police submitted final form showing the case true but clueless and the same was accepted by the C.J.M court. It is also admitted  that Opposite-parties were informed in respect of this burglary incidence on 01.01.2015 itself along with stock register of  lost articles to the tune of Rs. 18,41,250/-. It is also admitted that Mr. Anand Kumar Rungta was deputed as Surveyor to assess the loss and he  the reported the  loss of Rs. 9,60,461.43.
10. Now the main point of rift is that in spite of submission of report of surveyor for the loss,  why the claim was not settled. Whether non cooperation of the complainant for not submitting required papers could be reason for denying the justifiable loss ?
11. In burglary complainant has to prove that theft or burglary has taken place preceding with force. Here the case of the complainant is that articles were stolen after cutting the shutter and lock of the shop. Police has endorsed this contention of the complainant and submitted final form showing the case true but clueless and accepted by the C.J.M. Court. So, complainant has established the ingredient of using force while burglary took place. The ratio set by Hon’ble Supreme Court in the case United India Insurance Co. Ltd. vs. M/s.Harchand Roy Chandan Lal 2004 (8) SCC 644, completely covers the fact of this case.
12.  Opposite parties have repudiated the claim vide its letter dated 04.07.2017 (Exhibit-D) on the ground that despite several notices complainant did not make available required documents. Though, this commission finds that surveyor, appointed by the opposite parties,  had visited the place of incident i.e shop of the complainant and assessed the loss and finally submitted the report on 23.12.2019showing the loss of the complainant to the tune of Rs. 9,60,461.43/- only (Exhibit-C). From perusal of the surveyor’s report it appears that he had assessed the loss on the basis of documents provided to him by the complainant. His calculation is period wise, which could not have been possible without going through documents. Hon’ble Supreme Court in the case of Oriental Insurance Co. Ltd. Vs Ozma Shipping Co. & Anr. (Civil appeal No. 6289 of 2001 decided on 25.08.2009) has held “wherethe surveyor’s report had been similarly ignored by the Insurance Company, has held that   when valuation has been carried out by a surveyor, the insurance company should not hesitate to pay the amount.” The Apex Court has further gone on to observe that “ insurance companies in genuine and bonafide claims of insured should not adopt the attitude of avoiding payments on one pretext or the other. This attitude puts a serious question mark on their credibility and trustworthiness. By adopting honest approach and attitude the insurance company would save enormous litigation costs.”
13. The observation of the Hon’ble Apex court is fully applicable to the facts of the present case. Hon’ble National Consumer Commission while deciding the case Champak Lal Hansraj Shah Vs United India Insurance Co. Ltd. on 3^rd July, 2012 in original petition no. 05 of 2003 has also relied on the decision of the Hon’ble Apex Court passed in Oriental Insurance Co. Ltd. (Supra) and also held in the case, “We further notice that the opposite parties Insurance Company has taken more than eight months to consider the report of surveyor and only when the complainant pursued his case relentlessly that they have finally repudiated the claim. This was not expected of a service provider like the opposite party- Insurance Company and therefore they are liable for the deficiency in service.”
14.  In the present case too, which was filed by the complainant on 29.12.2017, the complainant was not informed about the repudiation of his claim. It is only through written statement filed on 14.03.2018, he could know that his claim has been treated as closed/no claim, by a letter annexed with the written statement, which bears the date 04.07.2017 (Exhibit-D). Thus, this attitude of opposite parties is glaring example of the deficiency in their service. It appears that after getting the notice of the case filed before the State Commission, this so called repudiation letter was prepared antedated.
15.  This Commission finds that the surveyor has assessed the loss to the extent of Rs. 9,60,461.43/- which is based on documents provided by the complainant as well as the physical verification of the shop after burglary. Complainant is entitled to get this amount.
16. On the basis of above discussion, we come to the conclusion that this complaint petition is fit to be allowed hence,
17.  

This complaint petition is allowed on contest. Opposite parties are ordered to make payment of Rs. 9,60,461/-, the loss assessed by surveyor, with 6% interest P.A. from the date of filing of claim petition i.e 01.01.2015 till the date of actual payment in favour of complainant. Opposite parties are further liable to pay Rs. 50,000/- as compensation for physical and mental agony and also Rs. 15,000/- as litigation cost. In case of failure to comply the order within 45 days from the receipt of the copy of the order, the interest rate on the actual loss as assessed by surveyor, would be 12%.

                                                                                                      Gita Verma

                                                                                                                                                                  (Judicial Member)

                                                                                                                                                                   Raj Kumar Pandey

                                                                                                                                                                          (Member)

                                                                                            Subodh Kumar Srivastava

                                                                                                                                                                    (Judicial Member)