DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II

U.T. CHANDIGARH

[Consumer Complaint Case No: 694 of 2010]

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              Date of Institution : 21.10.2010

                   Date  of Decision   : 25.09.2012

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M/s Rajasthan Engitech (P) Limited, #20, Indl. Area, Phase-I, Chandigarh, through Shri Vipin Sharma its Managing Director.

                                  ---Complainant

V E R S U S

[1]  United India Insurance Company Limited, Regd. & Head Office, #24, Whites Road, Chennai – 600014, through its Managing Director.

[2]  United India Insurance Company Limited, SCO No. 821-822, Sector 22-A, Chandigarh, through its Branch Manager.

---Opposite Parties

BEFORE:  SH. LAKSHMAN SHARMA             PRESIDENT

        MRS. MADHU MUTNEJA          MEMBER

        SH. JASWINDER SINGH SIDHU       MEMBER

Argued By: Sh. R.B.S. Jain, Counsel for Complainant. 

Sh. Rajesh Sharma, Counsel for Opposite Party.

PER JASWINDER SINGH SIDHU, MEMBER

1.      Complainant has filed the present complaint, against the Opposite Parties on the ground that that the Complainant got their stock of raw material, finished goods, manufacturing of auto parts lying / stored at #20, Industrial Area, Phase-I, Chandigarh, insured from the Opposite Parties under ‘Standard Fire and Special Perils Policy’. The Complainant Company has through resolution dated 13.10.2010 (Annexure C-1) authorized Sh. Vipin Sharma, Managing Director, to file the present Complaint against the Opposite Parties.

        The Opposite Party No.2 issued Policy No. 111604/11/09/11/00000303 and the period of insurance was from 10:52 hrs of 14.8.2009 to mid night of 13.8.2010. The insured sum of Rs.6.00 lacs was covered under this Policy. Copy of the Insurance Police is at Annex.C-2. 

        Unfortunately, in the mid night of 29.12.2009, a fire broke out due to the short circuit at the above mentioned premises of the Complainant, due to which, heavy loss was caused in respect of raw material, finished stock and electrical fittings. The Complainant intimated to the Opposite Party No.2 regarding the loss, vide its letter dated 30.12.2009 (Annexure C-3). A D.D.R. too was got lodged with P.S. Industrial Area, Phase-I, Chandigarh (Annexure C-4). The Complainant claims to have suffered a loss of Rs.3,30,456/-. Detail calculations were sent to the Opposite Party No.1 (Annexure C-5 to C-8).

        The Opposite Party No.1 appointed M/s Duggal Gupta Surveyors Private Limited as Surveyor and Loss Assessors and all the documents which were required/ demanded by Opposite Party No.2 and Surveyor were supplied. But the Opposite Parties did not clear the claim of the Complainant. The Complainant wrote a number of letters/ reminders requesting for the release of the payment. The same are annexed at Annexure C-9 to C-12 respectively, with the complaint. It is almost 10 months since the claim was lodged, but the Opposite Parties showing unprofessional behavior has failed to settle the claim of the Complainant, thus, further loss due to non-release of payment to the Complainant.

        Thus, claiming deficiency in service on the part of the Opposite Parties and having suffered harassment, preferred the present complaint, claiming the following relief: - 

[a]    To pay the claim amount of Rs.3,30,456/- raised by the Complainant;

[b]    To pay compensation of Rs.1,50,000/- for harassment and loss of interest;

[c]    To pay Rs.15,000/- towards cost of proceedings;

        The complaint of the complainant is supported by a detailed affidavit of Shri Vipin Sharma, Managing Director, M/s Rajasthan Engitech (P) Limited.

2.      The Opposite Parties have contested the claim of the complainant by filing their joint reply, taking preliminary objections to the effect that the present Complaint as filed and framed in its present form, is not maintainable and is liable to be dismissed. The answering Opposite Parties also claim that the Complainant has distorted the facts and has not presented the true facts and has approached this Forum with unclean hands. The Opposite Parties claim that on receipt of claim intimation letter dated 30.12.2009 M/s Duggal Gupta Surveyors Pvt. Limited, Surveyors and Loss Assessors were appointed to conduct the survey and assess the loss, who collected the relevant documents for verification and assessment of the loss. It is claimed that Surveyor at different times wrote letters dated 8.1.2010, 28.1.2010, 3.3.2010, 24.3.2010, 7.4.2010 and 26.6.2010 (Annexure R-1 to R-4), asking the Complainant to provide the documents, but the same were not provided by it. Even the Opposite Parties wrote letters dated 29.3.2010 and 12.4.2010 (Annexure R-5 and R-6), asking the Complainant to assist the Surveyor and supply the documents demanded. As the Complainant failed to cooperate with the Surveyor appointed by the Opposite Parties, an independent assessment of loss was submitted by it (Annexure R-7) and copy of the insurance policy is at Annexure R-8. Opposite Parties further claims that the insurance coverage for stocks was taken for Rs.6,00,000/-; whereas, as per the trading account on the date of loss, the value of stocks in hand was stated to be Rs.7,45,670/-. As the value of risk exceeded the sum insured, hence, under the insurance the extent of coverage was applicable as per the formula 100 – (6.00/ 7.46 x 100) = 19.57%. As the surveyor assessed the loss of the Complainant to Rs.1,52,976/- after deducting Rs.146/-, the net amount payable to the Complainant was Rs.1,52,830/-. The answering Opposite Parties wrote to the Bankers/ Mortgagee of the Complainant, vide its letter dated 13.10.2010 for issuance of discharge voucher duly signed and stamped by the Complainant/ Insured (Annexure R-9). There was no response from the side of the Bankers. The answering Opposite Parties claims that it is ready and willing to make the payment of claim amount as assessed by the Surveyor to the Complainant, subject to the completion of formalities by the Complainant. Hence, the present complaint deserves to be dismissed on aforementioned grounds.     

        On merits, the Opposite Parties have repeated their preliminary objections, while replying to the averments of the present complaint, in their para-wise reply. Thus, claiming no deficiency in service or unfair trade practice on their part, the answering Opposite Parties have prayed for the dismissal of the complaint with heavy costs.  

        The reply of the Opposite Parties is duly verified and supported by detailed affidavit of Sh. H.R. Sharma, Div. Manager, United India Insurance Company, Divisional Office-III, Chandigarh.  

3.      Having gone through the entire complaint, version of the Opposite Parties, the evidence of the parties and with the able assistance of the learned counsel for the parties, we have come to the following conclusions.

4.      The fact with regard to the subscription of the Policy No. 111604/11/09/11/ 00000303 from the period 14.8.2009 to 13.8.2010 is not disputed. At the same time, the intimation of the incident of fire, too, is not under dispute. The Opposite Parties in order to assess the loss the Complainant had appointed M/s Duggal Gupta Surveyors Pvt. Limited, Surveyors and Loss Assessors, to assess the quantum of loss suffered by the Complainant. Even a D.D.R. No. 28, dated 8.1.2010 is also admitted. The Complainant had duly submitted a claim form for fire and allied perils (Annexure C-5, C-5A, C-6 and C-7) through which a detail of the fire affected stock with its weight, rate and the amount pertaining to each stock, was provided with, finally reaching the total estimated claim of Rs.3,30,456/-.     

5.      The Complainant claims to have written letters Annexure C-9, C-10, C-11 and C-12 along with postal receipts and having failed to elicit any response from the Opposite Parties, has preferred the present complaint. At the same time, the Opposite Parties claims that the Complainant had failed to respond to the different letters written by the Surveyor, seeking details and documents from the side of the Complainant and in the absence of any reply and response the Surveyor preferred to submit its Undated Final Survey Report (Annexure R-7) with the Opposite Parties, through which the net assessed loss was calculated to Rs.1,52,976/- as found mentioned under clause 8 ASSESSMENT (Pg.28) of this Survey Report.    

6.      On having receiving this report, the Opposite Parties, wrote a letter, dated 13.10.2010 (Annexure R-9), address to Canara Bank, Sector 32-D, Chandigarh, asking the Banker of the Complainant to get the discharge voucher duly signed and stamped from the Complainant and also to provide the identity and residential proof of the insured to enable them to release the claim cheque. We are very much surprised as to for what reason, they preferred to write this letter to the Complainant’s Bank; whereas all their previous communications were addressed to the Complainant, at its premises where the Complainant was running its business establishment. Though a note of copy to the Complainant is found appended at the end of this letter, but there is no inkling of this letter having been received by the Banker is found appended. We doubt the very credibility of this letter, and also for the reason as the same is not addressed to the Complainant in the first place whose signatures, identity and residential proof was required by the Opposite Parties. Even the mode of its delivery is not established. Hence the same cannot be believed.              

7.      The Opposite Parties though is categorical while mentioning in the last para of the preliminary objections, as well as in para 9 of merits, that they are ready and willing to make the payment of the claim amount as assessed by the Surveyor, subject to the completion of formalities by the Complainant. We doubt the very intention of the Opposite Parties, as they could have offered this very option even before filing reply to the present complaint, and as it is found that before filing their reply, the Opposite Parties preferred to delay the matter for full three months, between December, 2010 to 4.3.2011 and also showing an inclination to settle the matter in the Lok Adalat and bringing this issue through the reply is nothing but an afterthought on the part of the Opposite Parties, simply to win sympathies of this Forum. At the same time, it would not be out of place to mention here that though the original complaint was filed on 21.10.2010, Opposite Parties filed an additional evidence on 21.8.2012, after a passage of 20 months, through which they had placed on record a few documents, as well as a letter dated 2 July, 2012 from the side of M/s Duggal Gupta Surveyors Pvt. Limited, which shows that the Opposite Parties have used the Surveyor/ Loss Assessor in its cover-up operations. We feel that the Surveyor/ Loss Assessor in getting involved in this exercise has breached the very clauses of Duties and Responsibilities under Chapter IV and Chapter VI of Insurance Surveyors and Loss Assessors (Licensing, Professional Requirements and Code of Conduct) Regulations, 2000. At the same time, the IRDA (Protection of Policy Holders’ Interests) Regulations, 2002, Regulation 9(2) also, requires that, XXXXX “In no case shall a surveyor take more than six months from the date of his appointment to furnish his report”. As the Surveyor has deliberately avoided mentioning the date of its Final Survey Report, and after that having written a letter dated July 2, 2012 (Annexure R-12) proves that the Opposite Parties were hobnobbing with the Surveyor, who kept his records open, for almost a period of 2 years after submitting the Undated Final Survey Report, simply to avoid the release of complainant’s genuine claim.      

8.      We are also of the view that if the Opposite Parties wanted they could have offered the assessed amount to the Complainant, by bringing a valid instrument (by way of a cheque or draft) in favour of the Complainant, during the proceedings and asking the Complainant to fulfill the requirements desired by them, in the absence of any such action the bonafide of the opposite parties on this count are doubtful.  

9.      It is also noticed that the documents tendered by the Opposite Parties during the proceedings, were supplied to the Complainant. Hence, we believe that even though the Opposite Parties may not have supplied them to the Complainant, in the very first instance, but the Complainant was very much at liberty, on having received these documents, to contest his claim, and also rebut the contents thereof. As there is no rebuttal from the side of the Complainant, we feel that the Complainant has admitted to the quantum of assessment, made by the Surveyor.

10.     As it is evident from the file that the Opposite Parties did not intimate the Complainant in the right earnest, so that the Complainant could claim the amount assessed by the Surveyor, and at the same time, having created a false screen of letter dated 13.10.2010 (Annexure R-9) to deny the genuine claim of the Complainant. We find the Opposite Parties clearly deficient in rendering proper service to the Complainant. It is also noticed that the Opposite Parties have also caused a delay of almost two years and as such, the Complainant has also lost interest on the amount of loss assessed since it became due towards it. This amounts to nothing but adding insult to injury.      

11.     In the light of above observations, we find a definite deficiency in service on the part of the Opposite Parties. Hence, the present complaint of the Complainant succeeds against the Opposite Parties, and the same is allowed, jointly and severally against them. The Opposite Parties are directed to:-

[a] To pay Rs.1,52,830/- assessed by the Surveyor/Loss Assessor;

[b] To pay Rs.50,000/- on account of deficiency in service;

[c] To pay Rs.10,000/- as cost of litigation;

12.     The above said order shall be complied within 45 days of its receipt by Opposite Parties; thereafter, they shall be liable for an interest @18% per annum on the amount mentioned in sub-para [a] & [b] of para 10 above, apart from cost of litigation of Rs.10,000/-, from the date of institution of the present complaint i.e. 21.10.2010, till it is paid.  

13.     Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room.

Announced

25th September, 2012

Sd/-

(LAKSHMAN SHARMA)

PRESIDENT

Sd/-

(MADHU MUTNEJA)

MEMBER

Sd/-

 (JASWINDER SINGH SIDHU)

MEMBER