| ORDER | DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BATHINDA (PUNJAB)
CC No. 430 of 24-08-2011 Decided on : 14-02-2012
Raj Kumar aged about 56 years S/o Brij Lal, Prop. Raj and Company, Amrik Singh Road, Bathinda. .... Complainant Versus United India Insurance Company Limited, Branch Office, 7-A, Civil Lines, G.T. Road, Bathinda, through its Branch Manager United India Insurance Company Limited, Divisional Office, The Mall, Bathinda, 2090-B, Ist Floor,Bathinda through its Divisional Manager
..... Opposite parties
Complaint under Section 12 of the Consumer Protection Act, 1986.
QUORUM Smt. Vikramjit Kaur Soni, President Sh. Amarjeet Paul, Member Smt. Sukhwinder Kaur, Member
For the Complainant : Sh. Narinder Singla, counsel for the complainant For the Opposite parties : Sh. M.L. Bansal, counsel for opposite parties.
O R D E R
VIKRAMJIT KAUR SONI, PRESIDENT The instant complaint has been filed by the complainant under Section 12 of the Consumer Protection Act, 1986 as amended upto date (here-in-after referred to as 'Act'). Briefly stated the case of the complainant is that he is Proprietor of M/s. Raj and Company and deals in stock and sale of all kinds of Sanitary Goods i.e. Taps, Mixture, Kitchen fittings, bath tub, GI pipes, Cisterns, Padestan (sheets), Flooring Tiles, Wall Tiles and Wash Bason etc. The complainant obtained fire policy from opposite party No. 1 vide Cover Note No. 405418 for Rs. 45.00 Lacs on stocks of all kinds of aforesaid sanitary goods whilst lying in the godown situated at 100' Road, New Suraj Giri Mandi, Bathinda. The complainant also obtained Shopkeeper Insurance policy stock of all kinds of sanitary goods vide cover Note No. 501011 worth Rs. 15.00 Lacs whilst lying in the said shop situated at Amrik Singh Road, Bathinda. The complainant also obtained burglary policy vide cover note No. 501012 with Capital sum insured Rs. 45.00 Lacs on all kinds of sanitary goods whilst lying/stored in the godown situated at 100' Road, Near Suraj Giri Mandir, Bathinda. All the said insurance policies were effective from 9-11-2009 to 8-11-2010. On the intervening night of 12/13-7-2010 thieves forcibly entered in the aforesaid shop of the complainant from top floor and have stolen taps, bath room mixture, kitchen mixture, wash bason mixture, bath room and kitchen taps, fountains, angle wall and other bath room fittings worth approximately Rs. 10. 00 Lacs. The thieves also carried away Rs. 12,500/- which were lying in the locker/drawer of the counter of the said shop. An intimation in this regard was immediately given to PS Kotwali, Bathinda where FIR No. 408 dated 13-7-2010 has been recorded. Intimation regarding the said loss was also given to opposite party No. 1 on the same day. The complainant assessed the loss by counting the balance stock lying in the said insured shop and found that thieves have stolen goods worth Rs. 9,92,543/- and also carried away Rs. 12,500/- lying in the locker/drawer of the counter. The opposite parties deputed Mr. Parmod Mittal of M/s. Mittal Surveyor Pvt. Ltd., to investigate the said claim of the complainant and to assess the loss. All the documents required for settlement of claim i.e. copy of FIR, audit report, Balance sheet, copy of VAT, Income Tax Returns, Map of the premises, copy of purchase and sale account of the goods, bank statement and detail of goods lying in the shop and godown at the time of loss, were supplied by the complainant to the said surveyor. Inspite of receipt of said documents, the said surveyor kept on demanding the documents time and again just to delay the claim of the complainant. The complainant alleged that the said surveyor obtained the signatures of the complainant and his adjoning shopkeepers on some blank papers and assured that the claim of the complainant would be paid within few days. The opposite parties conveyed the complainant that claim of the complainant would be paid after receipt of non-traceable report from PS Kotwali, Bathinda and the said report dated 6-5-2011 was supplied to the opposite parties, but even thereafter the claim was not paid to the complainant. The opposite party No. 1 conveyed the complainant that surveyor assessed the loss to the tune of Rs. 1,80,000/- and compelled the complainant to accept the said amount as full and final settlement of his claim, but the complainant did not agree for the same. The complainant alleged that the opposite parties are counting whole stock lying in the shop as well as in the godown and opposite parties are bent upon to apply the average clause on the stock lying in the shop, although average clause is not applicable as stock lying the aforesaid shop was not more than Rs. 15.00 Lacs. The terms and conditions of the policy cannot be read against the complainant as neither any policy nor any terms and conditions were ever supplied to the complainant. The complainant alleged that due to adamant attitude of the opposite parties, the complainant has been suffering mental tension, agony, financial loss and harassment for which he claims Rs. 2,00,000/- as damages besides claim amount of Rs. 10,05,043/- alongwith interest and litigation expenses. The opposite parties filed their joint written reply and pleaded that on receipt of information regarding the burglary, the opposite parties deputed M/s. Mittal Surveyors Pvt. Ltd., Surveyors & Loss Assessors, to investigate the matter and to assess the loss. The said surveyors vide their report dated 25-4-2011 has assessed the loss to the tune of Rs. 1,83,990.09 and after applying the average clause, he assessed the loss payable amount to be Rs. 51,584/-. During investigation, it came to the notice of the opposite parties from SBOP, City Branch, Bathinda, that the complainant also taken cover for stocks of his godown. Accordingly, the opposite parties demanded the details of policies taken and the statement of stocks lying in the shop, in the godown. The complainant has concealed the fact that he himself has not completed the requisite formalities despite the requests made by the opposite parties. The opposite parties vide repeated requests letter Nos. 577 dated 13-5-2011, 1060 dated 7-6-2011, 1097 dated 13-6-2011 and lastly vide registered letter dated 20-6-2011 sought the details of policies taken as well as the statement of stocks lying in the shop and in the godown, but the complainant has failed to produce the said documents and as such, his claim could not be settled so far. Parties have led their evidence in support of their respective pleadings. Arguments heard. Record alongwith written submissions submitted by the parties perused. The learned counsel for the complainant submitted that he had obtained three Insurance policies vide Ex. C-2 to Ex. C-4 from the opposite party covering his stocks lying in his shop as well as in his godown. On the intervening night of 12/13-7-2010 thieves forcibly entered in the shop the complainant from top floor and stolen the stocks of various sanitary items worth Rs. 10.00 Lacs and also carried away cash amount of Rs. 12,500/- lying in the drawer of the shop. FIR No. 408 dated 13-7-2010 Ex. R-2 has been recorded in PS Kotwali, Bathinda and intimation of loss was given to the opposite parties. The opposite parties deputed M/s. Mittal Surveyors Pvt. Ltd., to assess the loss. The complainant submitted all the required documents with the said surveyor, but the opposite parties did not settle his claim till date. The opposite party No. 1 conveyed the complainant that the surveyor assessed the loss to the tune of Rs. 1,80,000/- and are compelling him to accept the said amount as against the actual loss of Rs. 10,05,043/- i.e. Rs. 9,92,543/- on account of theft of goods and Rs. 12,500/- as cash taken from locker/drawer of the counter. The learned counsel for the complainant submitted that average clause is not applicable in this case as the insurance amount was more than the stocks lying in the shop at the time of incident. On the other hand, the submission of the learned counsel for the opposite parties is that after intimation of the loss, M/s. Mittal Surveyors Pvt. Ltd., were deputed. The said surveyor after inspecting the spot and verifying the bills as well as other record of the complainant, assessed the loss to the tune of Rs. 1,83,990.09 and after applying the average cause, he assessed the loss payable amount to be Rs. 51,584/- as the stocks at the shop was more than the insured amount. However, during investigation, it came to the notice of the opposite parties from SBOP, City Branch, Bathinda, that the complainant also taken cover for stocks of his godown, but the complainant has failed to furnish the details despite repeated reminders by them, due to which the claim in question could not be settled so far. These are undisputed facts between the parties that theft had taken place in the shop situated at Amrik Singh Road, Bathinda, of the complainant on the intervening night of 12/13-7-2010. An FIR Ex. R-2 was recorded in this case. The complainant intimated the loss to the opposite parties and they deputed M/s. Mittal Surveyors Pvt. Ltd., to assess the loss. The said surveyor inspected the spot and after verification of documents/record of the complainant assessed the net loss vide report Ex. R-9 to the tune of 51,584/-. A perusal of Insurance Cover Notes Ex. C-2 reveals that the said Insurance is a Burglary policy covering the stocks of complainant whilst lying and/or stored in the godown situated at 100' Road, Near Suraj Giri Mandir, Bathinda, for the sum insured of Rs. 45,00,000/-. Ex. C-3 is the Shopkeeper Policy covering the stocks of sanitary items and furniture & fixtures whilst lying and/or stored in the shop situated at Amrik Singh Road, Bathinda, for sum insured of Rs. 15,00,000/-. Ex. C-4 is the Fire Policy covering the risk of all kinds of sanitary goods etc., whilst lying and/or stored in the godown situated at 100' Road, Near Suraj Giri Mandir, Bathinda. The theft in question has taken place at the shop of the complainant stocks of which is covered under Cover Note No. 501011 Ex. C-3. A perusal of said cover note reveals that stock is covered for Rs. 14.50 Lacs and furniture and fixture Rs. 50,000/-. Premium Rs. 3000/- has been charged for Burglary risk; Rs. 250/- for money in transit for the sum insured of Rs. 1,00,000/-; Rs. 15/- for baggage and Rs. 5/- has been charged for public liability. A perusal of survey report Ex. R-9 reveals that at Sr. No. 12 under the heading “Valuation” the said surveyor has mentioned :- “ The insured was maintaining regular books of accounts like Cash Book and Ledger alongwith purchase/sales bills. All these records were made available to us and stand verified. The value at risk is worked out by preparing Trading Account.” After preparing the trading account, the surveyor had opined that “Accordingly the insured was having stocks of Rs. 51,71,850/- as against the sum insured of Rs. 14.50 Lacs. The stocks were under insured, hence Average Clause Will Apply. While arriving at the assessment the surveyor has opined as under :- “... c) Claim Bill - The insured has provided a Claim Bill of Rs. 9,92,089/- alongwith the purchases bills. On scrutiny of the claim bill the claim is found highly exaggerated. The purchase bills include the purchases made in the year 2001 which means that the insured has claimed the items which were about ten years old. This is not practically feasible. Insured was having sales of about Rs. 50.00 lacs per year, therefore, such old goods were only scrap. At the time of survey, the inspection of the shop and a roof was made. There were number of empty cartoon boxes (Dubbies). The thieves have taken out CP fittings i.e. Taps from the Packings to save the space to carry the stolen stocks. The segregation of the boxes was made and inventory was prepared. After comparison it was observed that the insured has claimed the loss much more than empty boxes available at site. The insured stated that some of the stocks were stolen with packing. This was not convincing as the packing were voluminous. The thieves had to carry the stocks through roof and adjoining buildings. It require lot of time labour and four wheeler to carry stocks of about 9.90 Lcas which is not practically possible.” “....Hence it is concluded to assess the loss on the basis of the empty dubbies available at the site. After the theft the difference in the stocks stolen and un-stolen stock is also due to pilferage and shortage in the stock which does not fall in the scope of the policy. Hence, it is concluded to assess the loss on the basis of empty dubbies/packing available at site.” In para '14 - Loss Adjustment' of survey report, the surveyor has assessed the loss as under :- “The assessed loss Rs. 1,83,990/- is adjusted for Average Clause as under :- Sum Insured Rs. 14,50,000.00 Value at Risk Rs. 51,71,850.00 Loss assessed Rs. 1,83,990.00 Average Clause Rs. 1,32,406.00 Loss Payable Rs. 51,584.00” As mentioned above, the surveyor has found the total stock of complainant as per account books produced by him to the tune of Rs. 51,71,850/-. The record/account books produced by the complainant contains the details of total stock of the complainant whether it was lying in the godown or in the shop in question. The opposite parties in para No. 10 of their written reply has pleaded that :- “....It is further added that during investigation, it also came to the notice of the opposite parties from SBOP, City Branch, Bathinda, that the complainant also taken cover for stocks of his godown and accordingly, the opposite parties demanded the details of policies taken and the statement of stocks lying in the shop, in the godown, but the complainant failed to provide the requisite details.” As discussed above, in addition to aforesaid cover note the complainant has produced before this Forum two other cover notes. Ex. C-2 has been issued covering the stocks lying in the godown situated at 100' Road, New Suraj Giri Mandir, Bathinda, to the tune of Rs. 45,00,000/- covering the risk of burglary and Ex. C-4 covering the risk of stock lying in the aforesaid godown against fire. Hence, the total sum insured for stocks is Rs. 59,50,000/- as against the stocks of Rs. 51,71,850/- found by the surveyor according to trading account of the complainant. Thus, average clause is not applicable in the case of the complainant. According to Ex. C-3 Rs. 250/- has been charged as premium for Money in Transit Sum Insured Rs. 1.00 Lacs. The complainant has not produced any insurance cover/note showing coverage of burglary risk of the cash/money lying in the shop/drawer of the shop. A perusal of survey report reveals that the surveyor has made a detailed report after inspecting complete record and after discussing each document/record in detail of the complainant. The loss suffered by the complainant has been assessed by the surveyor to the tune of Rs. 1,83,990/- after detailed inspection, which seems to be genuine and the complainant is entitled to the claim amount to that extent. In view of what has been discussed above, this complaint is accepted with Rs 20,000/- as compensation and Rs. 5,000/- as cost against the opposite parties. The opposite parties are directed to pay Rs. 1,83,990/- to the complainant. The compliance of this order be made within 45 days from the date of receipt of copy of this order. In case of non-compliance within the stipulated period, the opposite parties would be liable to pay interest @12% on the claim amount of Rs. 1,83,990/- from the date of institution of this complaint i.e. 24-08-2011 till realization. A copy of this order be sent to the parties concerned free of cost and the file be consigned to record.
Pronounced
14-02-2012 (Vikramjit Kaur Soni) President (Amarjeet Paul) (Sukhwinder Kaur) Member Member | |
