CONSUMER DISPUTES REDRESSAL COMMISSION – X
GOVERNMENT OF N.C.T. OF DELHI
Udyog Sadan, C – 22 & 23, Institutional Area
(Behind Qutub Hotel)
New Delhi – 110016
Case No.232/2016
JARNAIL SINGH,
PROPRIETOR M/s. R.B. ULTRA TRADING,
MAIN ROAD ASOLA,
FATEHPUR BERI, NEW DELHI
ALSO AT:
64, FATEHPUR BERI,
NEW DELHI-110074. …..COMPLAINANT
Vs.
- UNITED INDIA INSURANCE COMPANY LIMITED
THROUGH ITS AUTHORISED PERSON
CAMP OFFICE AT:
60, SKY LARK BUILDING, VTH FLOOR,
NEHRU PLACE, NEW DELHI-110019
- SYNDICATE BANK
THROUGH ITS BRANCH MANAGER,
ASOLA BRANCH,
NEW DELHI-110074 .…..OPPOSITE PARTIES
Date of Institution-19.07.2016
Date of Order- 30.08.2022
O R D E R
RASHMI BANSAL– Member
Complainant has filed the present case against the repudiation of his insurance claim by OP praying for the allowing his claim along with compensation for mental trauma, agony and harassment and cost of litigation.
It is the case of the complainant that he is a Proprietor of M/s R.B. Ultra Trading, and has purchased an insurance policy of OP1, the insurer, for insuring goods of shop and availing OP1 services through its authorised agent, OP2, a bank, for a total sum of Rs. 8,00,000/- with effect from 30 October, 2013 to midnight 29.10.2014. The identity card of the complainant is Ex. CW1/1 and the policy is Ex. CW1/2. The OP2 has kept the above said policy under OD account Number 125-446. Complainant submits that on the intervening the night of 5/6 September, 2014, the electrical goods worth of Rs. 93,000/- were stolen from his shop, which was reported to police and an FIR bearing no. 405/2014, dated 06.09.2014 was registered under Section 380/457 IPC, and the incident of theft was reported in news-paper also, Ex. CW1/3 (Colly). OP2 was also informed by the Complainant on the same day. It was submitted by the complainant that branch manager of OP2 has informed OP1 in the presence of complainant about the above said incident and claim thereto and also told OP1 that they will give all documents, pertaining to the above said Insurance Policy which are lying with the OP2 in account No. 125-446 OD for clearance of claim of complainant. Since OP2 is the agent of OP1, therefore, complainant believed OP2. Complainant stated that a complaint dated 17 October, 2014, Ex. CW1/4, along with the above said documents were given to OP1, which were duly received by OP1. Complainant submitted that he has approached OP1 for clearance of his claim but no action has been taken by OP1 despite repeated request by complainant to both, OP1 and OP2. This is further stated by the complainant that OP2 has assured him and mailed twice to OP1 on 18.05.2015 and 01.09.2015 for claim of complainant Insurance claim, Ex. CW1/5 (Colly.) but to no avail. Receiving no action from OP1, a legal notice dated 07.07.2016 Ex. CW1/6 (Colly) was sent by complainant to OP1 however, no reply was received from OP1. Complainant further submits that he once again sent claim form dated 08.10.2016, Ex. CW1/7 (Colly) to OP1 through post as well as through e-mail, Ex. CW1/8. Complainant submits that even after one year of the occurrence of theft both OPs have not taken any action and alleges that he has been deceived and cheated by OPs by keeping him continuous assurance that his complaint has been registered and they are looking into the matter and will investigate into it, however, no action has been taken by OP1. Complainant alleges OP2 being the agent of OP1 is also liable towards his insurance claim. Complainant further alleges that he has been harassed by OPs and claimed for the loss suffered by him due to theft of the insured items amounting to Rs. 93,000/- with 18% interest p.a. calculated from 05.09.2014 with date of theft till date of actual payment along compensation/ damages for mental agony, harassment and hardship suffered by him to the tune of Rs. 2,00,000/- which complainant has undergone due to deficient services provided by OP.
OP1 through his reply, related documents and evidence by way of affidavit has denied any deficiency of service on its part, taken the preliminary objection that complainant is not the Consumer, stating that the above said policy, Rw1/A, has been issued by OP1 in the name of R.B. Ultra-Trading and not in the name of complainant. OP1 further stated that complainant admittedly reported the police authority on 06.09.2014 vide FIR No. 465 of 2014 intimated to OP only on 17.10.2014, i.e., after gap of 40 days which is in violation of terms and conditions of the policy General Condition (4), Claim Procedure Para (a &b), which reads as follows:
- The insured shall give immediate notice thereof in writing to the nearest office of the company with a copy to the policy issuing office of the company.
- The insured shall deliver to the company within 14 days of the date on which the event shall have come to his knowledge, a detailed statement in writing, of the loss or damage, with an estimate of intrinsic value of the property lost and the amount of damage sustained.
OP1 submitted that immediately after receiving the intimation of the incident from complainant, it processed the matter of the complainant, and since the claim of the complainant was filed with OP1 with delay of 40 days, which is in violation of the above stated General Condition of the Claim procedure, therefore, his claim has been rejected vide its letter dated 21.10.2014, Ex. RW1/B.
OP2 has not appeared despite service and therefore, proceeded Ex.-parte on 03.03.2017, thus, all the averments made in the complaint are deemed to have been admitted by OP2 and the evidence led by the complainant stands unrebutted with respect to OP2, for which an adverse inference is to be drawn against him.
We have carefully perused the documents filed by both the parties. The preliminary objection taken by OP1 is that complaint is not maintainable as the policy has been given in the name of R.B. Ultra trading and not in the name of complainant.
As per Consumer Protection Act,1986,
Section 2(d) “Consumer” means any person who, -
- ….
- hires any service for a consideration…..
and person as
section 2(m) – “Person” include:
- any firm whether registered or not
- …
- …
- …
The documents available on record shows that complainant is the sole proprietor of proprietor ship firm under the name of ‘R.B. Ultra Trading’ and since the proprietor of the sole proprietor ship concerned is also known as to be a particular ‘person’, qualifying Sec. 2(m), therefore, complainant is qualified to file the complaint as ‘consumer’ under Sec. 2(d).
This is settled law that a natural person and his sole proprietorship firm are the one and same legal entity. The liability of the sole proprietorship firm is that of a natural person carrying on business under its name. Calcutta High Court in Devendra Surana versus bank of Baroda and others, W. P. 5521/2017, held that “the sole proprietorship firm of a natural person and the natural person owning the firm, do not enjoy the benefit of being treated as separate legal entity and they are one and the same legal entity.” In the facts of the present case, although the insurance was taken in the name of a sole proprietorship firm, the natural person owning the sole proprietorship firm is a consumer. In view of this, it is concluded that the complainant is a consumer within Consumer Protection Act, 1986 and has locus to file the consumer complaint as sole proprietor and consequently this commission has jurisdiction to decide the case.
Further, OP has not denied the issuance of above said policy as well as the factum of theft occurred at complainant shop on intervening night of 5/6/ September, 2014. The only ground to reject the claim of complainant is delay of 40 days in informing OP1 which is in violation of policy general condition 4, (a) and (b), as mentioned above.
Hon'ble Supreme Court of India in Gurshinder Singh v. Shriram General Insurance Company Ltd., 2020 (11) SCC 612, vide its order dated 24 January, 2020, has observed the rule of interpretation applicable to a contract of insurance and held: “19. We find, that this court in Om Prakash (supra) has rightly held that the Consumer Protection Act aims at protecting the interest of the consumers and it being a beneficial legislation deserves pragmatic construction. We find that in Om Prakash (supra) this court has rightly held that mear delay in intimating the insurance company about the theft of the vehicle should not be a shelter to repudiate the insurance claim which has been otherwise proved to be genuine.
20. We, therefore, hold that when an insured has lodged the FIR immediately they immediately after the theft of a vehicle occurred and when the police after investigation has lodged a final report after the vehicle was not traced and when the surveyor/investigators appointed by the insurance company has found the claim of the theft to be genuine, then be a delay in intimating the insurance company about the occurrence of the theft cannot be a ground to deny the claim of the insured.”
The same principle is applied in Jaina Construction Committee v. Oriental Insurance Company Ltd., 2022 SCC OnLine SC 175, decided on 11.02.2022.
Considering the above discussion, and considering that OP1 is not in denial with the factum of the issuance of policy nor the incident of theft, we are of the considered opinion that when the claim of complainant is genuine, OP1 is not right in repudiating the claim of complainant.
Further, the documents filed by the complainant placed on record, do not contain the untraceable report by police nor there is any document on record which shows the valuation of the articles stolen from the shop of complainant. The complainant has filed only hand-written list of the articles stolen and their price against each article. In the absence of any evidence on record, this commission is unable to decide the amount of claim, however, considering the facts and circumstances of the case, OP1 is directed to consider and assess the claim of complainant as per terms and conditions of the policy and decide the claim of the complainant within three months from the date of the order, failing which the complainant shall be entitled for the compensation of Rs. 1000/- per day for each following day till the date of release of the claim, as assessed by
OP1. The complainant is also allowed a compensation of Rs. 25,000/- towards the deficiency in services by OP and for causing harassment, mental agony and sufferings to the complainant, to be paid to complainant within three months from the date of order failing which the complainant shall be entitled for interest at the rate of 9% per annum till the realization of the compensation.
The file be consigned to the record room after providing copy of the order to the parties as mandated by the Consumer Protection Act, 1986, free of cost.
The consumer complaint could not be decided within the statutory period due to heavy pendency of Court cases. The order be uploaded on the website www.confonet.nic.in
The order contains 6 pages and bears my signature on each page.
(Dr. RAJENDER DHAR) (RASHMI BANSAL) (MONIKA SRIVASTAVA)
MEMBER MEMBER PRESIDENT
