IN THE CONSUMER DISPUTES REDRESSAL FORUM, PATHANAMTHITTA,
Dated this the 26th day of September, 2012.
Present : Sri. Jacob Stephen (President)
Sri. N. Premkumar (Member)
Smt. K.P. Padmasree (Member)
C.C.No.163/2011 (Filed on 12.07.2011)
Between:
T.J. John,
Managing Partner,
M/s. J.J. Medicals,
Thiruvalla, residing at:
Thenmadom,
Mathilbhagom,
Thiruvalla.P.O.,
Pathanamthitta Dist. …. Complainant.
(By Adv. R. Gopikrishnan)
And:
1. The Regional Manager,
National Insurance Co. Ltd.,
Regional Office, Ernakulam.
2. The Divisional Manager,
National Insurance Company Ltd.,
CSI Square, Kottayam.
3. The Branch Manager,
National Insurance Co. Ltd.,
Branch Office,
Ennakkattil Estate, M.C. Road,
Thiruvalla.
(By Adv. K.M. Alexander)
4. The Manager,
Catholic Syrian Bank,
Branch, Thiruvalla. …. Opposite parties.
O R D E R
Sri. N. Premkumar (Member):
Complainant filed this complaint against the opposite parties for getting a relief from the Forum.
2. Facts of the case in brief are as follows: Complainant insured his wholesale medical shop with the opposite parties 1 to 3 through 4th opposite party. During the tenure of the insurance policy, the shop was broke opened by some unknown persons and committed burglary and lost a considerable quantity of medicines worth a huge sum. The matter was reported to Thiruvalla Police Station and Crime was registered. A claim was also lodged by the complainant to opposite parties and insurance company paid ` 4,56,163 on 15.06.2011 after an inordinate delay. Complainant received the amount under protest. The protest was sent to opposite parties in writing, by registered post on the next day itself i.e. on 16.06.2011. The amount given to the complainant is insufficient. The complainant obtained the survey report from the 3rd opposite party who assessed a stock worth ` 20,22,972.09 in the shop against insured sum of ` 14,00,000 in the shop. The surveyor quoted the bank statement etc. which is made without proper reasons. Those stocks includes the stock which are kept in the shop room as well as the stock kept in the godown nearby. On the date of theft, the shop room never contained a stock exceeding ` 14,00,000. The denial of complainant’s claim in total and the act of unnecessarily applying under insurance amounts to deficiency in service. Even the loss assessed by the surveyor at ` 6,59,679.22 is incorrect. The actual loss is ` 7,91,658. The surveyor was sticking on the stock statement as on 31.07.2008, the date of visit, which is illegal. The stock as on the date of theft is crucial. There is a difference of ` 3,35,495.95 (i.e. ` 7,91,658 - ` 4,56,163) i.e. the difference between the amount claimed by the complainant and the amount paid to the complainant.
3. There is inordinate delay in settling the matter with the complainant by the opposite parties 1 to 3 even though all requisite documents except the final police investigation report. In the above circumstances, the complainant was forced to file a writ petition before the Hon’ble High Court of Kerala. As per order the final report of Thiruvalla Police Station would be submitted one month from 15th October 2010. Accordingly the Thiruvalla police submitted charge sheet in November 2010 and the complainant has produced the certified copy of the above charge sheet to the 3rd opposite party. Even then the opposite parties 1 to 3 has given the amount to the complainant only on 15.06.2011.
4. The insurance company could have settled the claim without final police report. As per the investigation of the Thiruvalla Police interstate criminals were involved in the burglary and the theft articles were taken away from Kerala. Moreover the expiry date of almost all the medicines were also expired. The said facts were informed by the complainant to the insurance company. Even then the insurance company was not ready to settle the claim. Complainant is entitled to realize 12% interest for claim amount from the date of burglary till realization from the opposite parties 1 to 3.
5. Hence this complaint for getting ` 3,35,495.95 with interest, compensation and cost from opposite parties 1 to 3.
6. Opposite parties 1 to 3 entered appearance and filed version. 4th opposite party has not appeared. Hence they were declared as exparte.
7. According to opposite parties 1 to 3, complaint is not maintainable either in law or on facts. There was no delay in processing the claim due to the opposite parties actions. If any delay it is due to reasons beyond the control of the opposite parties and the inordinate delay of the complainant to furnish records for verification and survey etc. Complainant’s claim of ` 7,91,658 is exorbitant and without any documentary evidence or proof of such loss. The actual loss assessed is ` 5,56,163 and no amount over and above is payable under any circumstances. The complainant accepted this amount in full and final settlement and no protest so ever was ever made by the complainant at any point of time. Opposite parties never compelled the complainant and the execution of the documents is not vitiated under any circumstances. The loss of business of the complainant is not known to these opposite parties. The amount paid to the complainant is perfectly sufficient to make good the loss suffered. Even though the shop was under insured and the stock exceeded the insured amount at that point of time, loss was assessed on a different scale and as applicable at that time. The survey report is perfectly correct and this opposite parties made the payment based on the survey report. No objection was raised by complainant to surveyor’s report at any point of time.
8. According to them, the stock position as on date of theft/robbery is evidenced in the statement filed by the complainant before the bank, stock register maintained, sales tax/commercial tax returns, profit and loss statement, purchase bills and physical verification of stock after theft/ robbery. Since the stock position on that day varies in each statement filed by the complainant, the surveyor has safely taken the least quoted as per the bank statement filed by the complainant himself and which is permissible when assessing loss. The stock position taken by surveyor is only from the room where theft/robbery happened. The godown stock is not shown in the bank statement. On the day of theft, the showroom contained stock in excess of the insured amount. Therefore, the loss assessed by the surveyor as ` 7,91,658 is correct and there is no deficiency in service. The surveyor has taken the stock position on 31.07.2008 as on date theft from the statement, accounts, purchased bills and by physical verification of stock position. There is no difference in amount to be paid and that is actually paid. The amount of ` 3,35,495.95 shown as short payment is not based on any statistical evaluation of the actual loss in theft.
9. There is no delay due to this opposite parties action in settling the claim. All the documents called for by the surveyor was not submitted by the complainant. They admitted the filing of Original Petition in Hon’ble High Court of Kerala as true. The expiry of medicines was not noticed to the opposite parties by the complainant at any time. Complainant is not entitled to realize interest amount of ` 1,64,196 for the amount of ` 4,56,163 at the rate of 12% per annum from 28.06.2008 to 15.06.2011 from the opposite parties. The complainant is not entitled to recover any amount under any heads from the opposite parties. Hence they canvassed for the dismissal of the complaint.
10. From the above pleadings, the following points are raised for consideration:
(1) Whether the complaint is maintainable before the Forum?
(2) Whether the reliefs sought for in the complaint are allowable?
(3) Reliefs & Costs?
11. Evidence of the complaint consists of the oral deposition of PW1, DW1 and marked Ext.A1 to A8 and B1 to B5. After closure of evidence, both parties were heard.
12. In order to prove the complainant’s case, complainant’s power of attorney holder filed proof affidavit along with certain documents. He was examined as PW1 and the documents produced were marked as Ext.A1 to A7. Ext.A1 is the power of attorney issued by the complainant. Ext.A2 is the copy of advocate notice sent to opposite parties 1 to 3. Exts.A3, A3(a) & A3(b) are the postal receipts of Ext.A2. Ext.A4 is the copy of notice dated 16.06.2011 sent to opposite parties 2 to 3 by the complainant. Exts.A5 and A5(a) are the postal receipts of Ext.A4. Exts.A6 and A6(a) are the acknowledgment cards of Ext.A4. Ext.A7 is the copy of statement loss due to burglary prepared by the complainant. Ext. A8 is the copy of statement of Abbott India as on 30.06.2008.
13. In order to prove the opposite parties contention, opposite parties authorized loss assessor and surveyor was examined as DW1 and the documents produced were marked as Ext.B1 to B5. Ext.B1 is the copy of insurance policy schedule dated 15.08.2007 issued by opposite parties. Ext.B2 is the copy of special power of attorney dated 15.06.2011. Ext.B3 is the copy of letter of subrogation dated 15.06.2011. Ext.B4 is the copy of full and final settlement receipt. Ext.B5 is the copy of survey report dated 27.04.2011.
14. On the basis of the contention and argument of the parties, we have perused the entire material on record. Complainant’s case is that his shop was insured with opposite parties 1 to 3 and during the tenure of insurance policy burglary happened and sustained a loss of ` 7,91,658. But after an inordinate delay opposite parties paid only ` 4,56,163 and complainant received the same under protest stating that the amount given is insufficient. Hence this complaint for getting the remaining amount of ` 3,35,495.95 with interest, compensation and cost.
15. Opposite parties contention is that the actual loss entitled to the complainant as per policy is ` 4,56,163 and no amount over and above that is payable under any circumstances. Complainant accepted the said amount as full and final settlement. According to them, shop was under insured and on the day of theft, the showroom contained stock in excess of the insured amount. Delay if any occurred due to complainant’s inability to furnish records for verification and survey etc.
16. On a perusal of Ext.B1 it is learned that complainant’s shop and godown has valid insurance policy at the time of burglary. The total sum insured as per Ext.B1 is ` 20,00,000, out of which sum assured for godown stock is ` 6,00,000 and the sum assured value of stock at shop is ` 14,00,000. As per Ext.B5, the total closing stock value as on 31.07.2008 as per account is ` 23,88,460.12 as per bank statement is 27,56,297.50 and as per stock record ` 26,36,443.10.
17. Complainant’s contention is that the stocks includes the stock which are kept in the shop room as well as the stock kept in the godown nearby. Therefore on the date of theft, the shop room never contained a stock exceeding ` 14,00,000. It is not disputed that burglary happened at insured shop in between 2.30 p.m on 28.06.2008 8.45 a.m on 30.06.2008. As per Ext.B5 physical verification of stock conducted on 31.07.2008 and reported that stock at shop as per cost rate is ` 18,14,069.16 and stock at godown as per cost rate is ` 14,711.74. The total stock in value is ` 18,28,780.90. The loss as per complainant’s claim is ` 7,91,658.95 and opposite parties assessed loss is ` 6,59,679.22.
18. As per Ext.B5, the surveyor rely on the VAT return of the Sales Tax Department and come to the loss and net liability is shown below:
Total closing stock value as on 28.06.2008 as per account ` 20,37,683.83
Less stock value at godown as per Annexure 1 ` 14,711.74
i.e. Closing stock value at shop as on 28.06.2008 ` 20,22,972.09
Sum insured value of stock at shop ` 14,00,000.00
Net loss assessed on stock as per accounts ` 6,59,679.22
They calculated the liability as shown below:-
Liability – Actual loss x Assured amount
Present stock value
i.e. 6,59,679.22 x 14,00,000
20,22,972.09
Net liability ` 4,56,531.71
Rounded off to ` 4,56,500
19. It is pertinent to note that the present stock value of shop is ` 20,22,972.09 and the assured amount is ` 14,00,000. The actual loss is ` 6,59,679.22. Complainant has no objection to the above statement as per Ext.B5. It is evident in DW1’s deposition which is as follows:- “Surveyor rely sNbvXn-cn-¡p¶ statement of account-\pta XÀ¡-an-Ã. R§Ä tax departmentþ \ÂInb gross profit ratioþbpsS ASn-Øm-\-¯n-emWv surveyor assessment \S-¯n-bXv”.
20. Moreover, complainant has not adduced any cogent evidence to prove the case. He has not taken any step to produce the terms and condition of the policy. In the absence of terms and condition, we are not inclined to reconsider the quantum of net liability if any assessed as per Ext.B5. Therefore, complainant’s further claim as per Ext.B1 is not allowable. With regard to the delay in allowing the claim, complainant has not adduced any materials to show that all the relevant record were furnished within time. Hence complainant’s claim for interest is also not allowable.
21. From the overall facts and circumstances and the available evidence on record, we come to the conclusion that the shop was under insured. Therefore, we cannot find any illegality as per Ext.B3. Hence complaint is not allowable and liable to be dismissed.
22. In the result, complaint dismissed. No cost.
Declared in the Open Forum on this the 26th day of September, 2012.
(Sd/-)
N. Premkumar,
(Member)
Sri. Jacob Stephen (President) : (Sd/-)
Smt. K.P. Padmasree (Member) : (Sd/-)
Appendix:
Witness examined on the side of the complainant:
PW1 : Ajit John.
Exhibits marked on the side of the complainant:
A1 : Power of Attorney executed by the complainant in
favour Ajit John.
A2 : Copy of advocate notice sent to opposite parties 1 to 3. A3, A3(a), A3(b): Postal receipts of Ext.A2.
A4 : Copy of protest notice dated 16.06.2011 sent to
opposite parties 2 to 3 by the complainant.
A5, A5(a) : Postal receipts of Ext.A4.
A6, A6(a) : Acknowledgment card of Ext.A4.
A7 : Copy of statement loss due to burglary prepared by
the complainant.
A8 : Copy of stock statement of Abbott India as on
30.06.2008.
Witness examined on the side of the opposite parties:
DW1 : Sivan Pillai. V.N.
Exhibits marked on the side of the opposite parties
B1 : Copy of insurance policy schedule.
B2 : Copy of special power of attorney dated 15.06.2011. B3 : Copy of letter of subrogation dated 15.06.2011.
B4 : Copy of full and final settlement receipt.
B5 : Copy of survey report dated 27.04.2011.
(By Order)
(Sd/-)
Senior Superintendent
Copy to:- (1) T.J. John, Thenmadom, Mathilbhagom,
Thiruvalla.P.O., Pathanamthitta Dist.
(2) The Regional Manager, National Insurance Co. Ltd.,
Regional Office, Ernakulam.
(3) The Divisional Manager, National Insurance Company
Ltd.,CSI Square, Kottayam.
(4) The Branch Manager, National Insurance Co. Ltd.,
Branch Office, Ennakkattil Estate, M.C. Road,
Thiruvalla.
(5) The Manager, Catholic Syrian Bank, Branch,
Thiruvalla.
(6) The Stock File.
