BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMRITSAR.

Consumer Complaint No.509 of 2014

Date of Institution: 17.9.2014

Date of Decision:  21.7.2016 

Prince Ornaments, 9657, Main Bazar, Chowk Tahliwala,Sultanwind Road,Amritsar through its Prop.S. Harinder Singh

Complainant

Versus

United India Insurance  Company Ltd., 24, Whites Road, Chennai 600014 through its Chairman/Managing Director/Principal Officer service through its Branch Office at 283, East Mohan Nagar, Amritsar through its branch manager

Opposite Party

Complaint under section 12 & 13 of the Consumer Protection Act, 1986 as amended upto date.

Present: For the Complainant: Sh.Deepinder Singh, Advocate

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

Coram

Sh.S.S.Panesar, President

Ms.Kulwant Kaur Bajwa, Member

Mr.Anoop Sharma, Member  

Order dictated by:

Sh.S.S. Panesar, President.

1.       Prince Ornaments through its Prop.S.Harinder Singh has brought the instant complaint under section 12 & 13 of the Consumer Protection Act, 1986 on the allegations that   complainant is doing a work of gold testing and gold jewellery for earning his livelihood by means of self employment . the complainant had obtained cover note for one machinery related to his trade covering  risk period  from 5.9.2013 to 4.9.2014 vide cover note No. 690160 dated 5.9.2013 as assigned by the opposite party. Copy of the cover note is annexed) . The complainant is  a consumer as provided  under the Act and is competent  to invoke the jurisdiction  of this Forum. Very unfortunately the said insured machinery breakdown on 14.4.2014 and the opposite party was immediately  intimated about it and. Opposite party appointed a surveyor  for assessing the loss and allowed the complainant to get the same rectified  which was rectified  from the authorized source of the manufacturing company of the insured machinery at the cost of Rs. 8,85,332/-. The bill for the same was submitted with the opposite party. The opposite party vide  letter dated 5.8.2014 repudiated the genuine claim of the complainant  on frivolous grounds  that the complainant premises does not have the signboard at the time of survey, the machinery was not  installed in the premises  of the complainant and the testing of gold is being carried by some other firm. The said grounds of repudiation by the opposite party are totally frivolous and against the actual and factual position. The complainant firm is carrying out the work in the same premises where it was installed and insured and the signboard of the complainant firm is there . It is irrelevant for indemnifying the loss occurred to the complainant. The said grounds of repudiation by the opposite party are just to shirk away from their liability to indemnify the complainant as per insurance contract. The complainant after receiving the said repudiation letter  represented to the opposite party through his counsel  but the said representation was vaguely replied  and the loss was not indemnified by the opposite party. The complainant has sought for following reliefs vide instant complaint :-

(i)      Opposite party be directed to pay the amount of Rs. 885332/- alongwith interest @ 12% p.a. from 15.4.2014 till realization ;

(ii)     Compensation of Rs. 1,00,000/- be also awarded to the complainant alongwith litigation expenses.

Hence, this complaint.

2.       Upon notice, opposite party appeared and contested the complaint by filing written version taking certain preliminary objections therein inter alia that  Prince Ornaments is a commercial institution which is carrying on work for gain and profit. The plea taken by the complainant that they are doing the business of testing of gold jewellery for earning their livelihood by means of self employment is not correct because as per averments made in the complaint, the cost of the machinery   which they have installed in Rs. 8,85,332/-. Such type of huge amount cannot be invested for self employment rather the same must have been installed for getting gain and profit from the said machinery. Hence, being commercial institution,  complainant is not entitled to maintain the present complaint ; that the claim has already been repudiated by the opposite party vide repudiation letter dated 5.8.2014 giving detailed reasons thereof and  this fact has been admitted by the complainant himself. However, in order to wriggle out of the said ground, the complainant has alleged that the said repudiation dated 5.8.2014 has been made on frivolous grounds. Therefore, the same is not binding on it. However, this plea is totally wrong and incorrect because repudiation is based on actual facts and information gathered by the independent surveyor  deputed by the opposite party ; that  the complainant has demanded  payment of Rs. 8,85,332/-, whereas the independent surveyor deputed by the company has assessed the loss to the tune of Rs. 7,56,959/- after considering  that there was under insurance as well as excess clause  was also applicable. However, the said report was submitted subject to the rider that in fact the machinery was not installed in the insured premises, rather the same was fixed/installed in the rear on a wooden floor where Mr.Harvinder Singh work on the said machine  and address of the said premises in which the said machinery fixed is M/s. S.K.Ornaments which is a proprietorship form of Kawaljit Singh, Shop No. 4790, Main Bazar. From this it was found that infact the machinery has nto been installed in  the insured premises, therefore, it is a violation of policy conditions  and according to those terms and conditions, the machinery only which was installed inside the insured premises can be considered for any loss caused to it by the Insurance company; that   complainant also served notice through Mr.Naresh Pal Singh Mannan,Advocate on the opposite party to which detailed reply was given by the opposite party on 23.8.2014 through its counsel Sh.P.N.Khanna,Advocate in which he has given the detailed facts of the case as well as shifting of machinery from the insured premises to some other premises  which are not insured with the opposite party. As such the change in location is not permitted under the policy without regarding any change in location and without getting endorsement regarding the said change in location. Infact the machinery of Prince Ornaments was not available in the insured premises nor any signboard was available there, rather  there was some signboard of M/s. S.K.Ornaments with another plate with name  as Prince Gold Testing Lab and Refinery. From this it is apparent that infact the equipment  which was installed in the insured premises of Prince Ornaments has been shifted to M/s. S.K.Ornaments clearly confirming change in location without prior permission of the company and without getting endorsement in this regard.  Similarly report was also made by the independent surveyor in his report and as such claim has been rightly  rejected by the opposite party vide repudiation letter dated 5.8.2014.Hence, the complainants are not entitled to any relief as claimed for; that  the present complaint is not legally maintainable as the claim lodged by the complainant concern had already stands repudiated on merits by the opposite party which fact is also admitted by the  complainant concern in the instant complaint. Hence, present complaint is not legally maintainable. In this regard it is submitted that   the Hon’ble Supreme  Court in the latest judgements has made clear view that once the claim is repudiated by the Insurance company on merits , the aggrieved party has no right to approach the Forum but has only remedy to approach the Civil Court for getting redressal of its grievances subject to law of limitation etc. On merits facts narrated in the complaint have been specifically denied and a prayer for dismissal of the complaint with cost was made.

3.       In his bid to prove the case Sh.Deepinder Singh,Adv.cousnel for the complainant tendered into evidence affidavit of the complainant Ex.C-1 alongwith documents Ex.C-2 to Ex.C-16 and closed the evidence on behalf of the complainant.

4.       To rebut the aforesaid evidence Sh.P.N.Khanna,Adv.counsel for the opposite party tendered into evidence affidavit of Sh. Surinder Singh, Divisional Manger Ex.OP1, affidavit of Sh.Sumant Sood, Surveyor and Loss Assessor Ex.OP2, alongwith documents Ex.OP3 to  Ex.OP12 and closed the evidence on behalf of the opposite party.

5.       We have heard the ld.counsel for the parties and have carefully gone through the record on the file as well as written synopsis of arguments filed on behalf of opposite party.

6.       Ld.counsel for the opposite party has vehemently contended that in the present case  claim has already been repudiated by the opposite party vide repudiation letter dated 5.8.2014, copy whereof is Ex.OP7. This fact has also been admitted by the complainant in para 2 of the complaint. However, in order to wriggle out of the said ground complainant has taken the plea that  said repudiation letter dated 5.8.2014 has been made on frivolous grounds. However, this plea is totally wrong and incorrect because the repudiation is based on the actual facts and information gathered by the independent surveyor deputed by the opposite party as well as terms and conditions of the policy in question. It is the basic law of the insurance that any loss which is caused  within the insured premises is to be considered payable and if the said loss has occurred beyond the said insured premises, then the same is not payable   by the insurance company  . It has further been contended that before coming to the main controversy regarding repudiation, it is desirable to submit in brief that on receipt of intimation regarding the alleged loss, the opposite party appointed Mr. Sumant Sood surveyor to assess the loss  and the said surveyor  in order to pin point the quantum of loss, assessed the loss to the tune of Rs. 7,56,959/- as detailed in his survey report  Ex.OP3. However, at the time of submitting the said survey report, the said surveyor observed that the machinery of  Prince Ornaments i.e. complainant concern was not available in the insured premises nor any sign board was available there, rather there was some sign board of M/s. S.K.Ornaments with another plate named as Prince Gold Testing Lab & Refinery from which he has confirmed that the location of the machinery stands changed which is in violation of the policy in question. Surveyor has also given his observations that the testing machine is being operated  in the premises of insured’s family as per sign board outside the shop and electricity bill is also in the name of Kanwaljit Singh, 4790, Main Bazar, New Amritsar. The said surveyor quantified the loss of quantum only for the purpose of its quantification and subject to terms and conditions of the policy and liability to be accepted by the underwriters. Affidavit oif Mr.Sumant Sood alongwith his survey report and photographs and other papers have already been exhibited and proved on the court file as Ex.OP2 to Ex.OP6. Similarly repudiation letter has also been exhibited and proved on the court file as Ex.OP7 dated 5.8.2014. Since the complainant was not satisfied with the repudiation , therefore, he served notice through Mr.Mannan,Advocate to which detailed reply was given by the opposite party through Mr.P.N.Khanna,Advocate. Copy of notice of Mr.Mannan,Advocate is Ex.OP8 while reply to the said notice  sent by the opposite party is  Ex.OP9 dated 28.3.2014, original postal receipts are Ex.OP10 and OP11 respectively.  As far as  status of the surveyor report is concerned, he is the best person to assess the loss from different angles and the said survey report is very important and valuable document and same cannot be rejected rather  the court should  give weightage to the said survey report  as it has been held in various  judgements  given by the Hon’ble Supreme Court, National Commission as well as many State Commissions in which it has been held that surveyor is the best person and court cannot assume  the role of surveyor.  It has also been held that the survey report cannot be discarded unless the other party pointed out that which particular item has not been considered by the surveyor  or which particular items has been left by the said surveyor. Reliance in this connection has been placed on  2001(2) CPC page 340 of the Hon’ble Supreme Court of India  titled as United India Insu.Co. Vs. Roshan Lal Oil Ltd and Paam Eatables Vs. United India Insu.Co.  2004(2) CPC page 363. Ld.counsel for the opposite party has vehemently contended that ratio laid down in judgements supra is fully applicable to the facts of the case on all its fours.

7.       Ld.counsel for the opposite party has further contended that  now coming to the basic point that  if any loss has been caused outside the insured premises, the insurance company is not liable to pay the claim unless prior intimation in writing is given regarding  change in location of the insured premises.  In this case as no such intimation has been given regarding change in location of the insured premises, therefore while relying upon the judgements titled as State Bank of India Vs. M.S.Agents and others AIR 1998 Delhi page 84 as well as Polymet India Pvt.Ltd. Vs. National Insu.Company in IV (2004) CPJ page 49 Supreme Court. Since loss in this case has occurred inside the premises of M/s. S.K.Ornaments  pertaining to the complainant concern, therefore, same is not  payable by the opposite party inspite of the quantification of loss made by the concerned surveyor. Premises of M/s. S.K.Ornaments cannot be considered as the insured premises because as per insurance policy in question, the insured premises are that of M/s. Prince Ornaments where no loss has been caused. Hence, the liability has been rightly  disowned by the opposite party irrespective of the fact that the same has been pin pointed by the surveyor to the tune of Rs. 7,56,959/- and it is vehemently contended that complaint being false and frivolous is liable to be dismissed .

8.       However, from the appreciation of the facts and circumstances of the case, it becomes evident that break down of the machinery in dispute was intimated by the complainant to the opposite party on 14.4.2014 and the opposite party appointed their surveyor to assess the loss and allowed the complainant to get the machinery rectified. The complainant got break down machinery rectified by incurring an expenditure of Rs. 8,85,332/- and the bill for the same was submitted by the complainant to the opposite party. However, opposite party vide letter dated 5.8.2014 repudiated the genuine claim of the complainant   on the grounds which were against the true position  . That at the time of survey machinery was not installed in the premises of the complainant nor any sign board was available  and testing of the gold was being carried out by some other firm. To the contrary the surveyor has already assessed and quantified the loss of the complainant to the tune of Rs. 7,56,959/-. But however, rejection of the claim of the complainant has been made without any valid and legal grounds. If the machinery had actually been installed outside the premises of the complainant, there was absolutely no necessity for the opposite party to ask for the rectification of the machinery when break down of the machinery was reported by the complainant. Now when the complainant got the machinery rectified by incurring huge expenditure & loss was also assessed by the surveyor appointed by the opposite party, an excuse has been invented to reject the genuine claim. It is usual with the insurance companies to  allure the customers by showing green pastures at the time of selling the policies, but when it comes for paying the claim, they invent all sorts of excuses to deny the claim. Reliance in this connection can be had in case of Dharmendra Goel Vs. Oriental Insurance Co. Ltd., III (2008) CPJ 63 (SC) is fully attracted, wherein it was held that, Insurance Company being in a dominant position, often acts in an unreasonable manner and after having accepted the value of a particular insured goods, disowns that very figure on one pretext or the other, when they are called upon to pay compensation.  This ‘take it or leave it’, attitude is clearly unwarranted not only as being bad in law, but ethically indefensible.  It is generally seen that the insurance companies are only interested in earning the premiums and find ways and means to decline claims. In similar set of facts the Hon’ble Punjab & Haryana High Court in case titled as New India Assurance Company Limited Vs. Smt.Usha Yadav & Others 2008(3) RCR (Civil) Page 111 went on to hold as under:-

“It seems that the insurance companies are only interested in earning the premiums and find ways and means to decline claims. All conditions which generally are hidden, need to be simplified so that these are easily understood by a person at the time of buying any policy.       

The Insurance Companies in such cases rely upon clauses of the agreement, which a person is generally made to sign on dotted lines at the time of obtaining policy. Insurance Company also directed to pay costs of Rs.5000/- for luxury litigation, being rich.

Since surveyor has assessed the loss to the tune of Rs. 7,56,959/- . Therefore, in our considered opinion, the complainant is entitled to the amount of Rs. 7,56,959/- alongwith interest @ 9% p.a. from the date of filing of the claim until full and final  recovery. Cost of litigation are assessed at Rs. 5000/-. Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Forum. Copies of the order be furnished to the parties free of costs. File is ordered to be consigned to the record room.

Announced in Open Forum

Dated: 21.7.2016.                                                 (S.S.Panesar)                                                                                                         President

                                                (Anoop Sharma)     (Kulwant Kaur Bajwa)   

              Member                         Member

/R/