PER SHRI. S.S. PATIL - HON’BLE MEMBER :
1) This is the complaint regarding the deficiency in service on the part of Opposite Party as it did not approve the full insurance
claim of the Complainant.
The facts of this complaint are as follows – M/s. Archana Gems and Jewels (hereinafter called as the Firm) is the private proprietorship firm and one Mrs.Shashikala Ganpatlal Varma is the Complainant who has alleged the following allegations against the Opposite Party – United India Insurance Co.Ltd., the Insurance Company. Policy No.021200/46/05/45/00000012 was issued in the name of M/s.Archana Gems and Jewels on 12/04/06. The insurance policy was valid from 12/04/05 to 11/04/06. The total sum insured was 22,00,000/-. It was Jewellers Block Policy. The firm is doing a jewellery business at 15, Kishin Leela Shopping Centre, Behind Anand Cinema, Kopri Colony, Thane (E).
2) It is the contention of the Complainant that on 26/07/05 between 2.00 p.m. there was heavy deluge and the showroom of the Complainant was flooded with 2 ½’ ft. to 3’feet height of water as a result of which there was water logging condition. There was no electric supply. The jewellery in the shop was left in counters as there was no electric supply and only the jewellery kept in the showcase was taken to the residence. The drawers below the counter were not locked as there were 22 different locks. Locking and unlocking them took almost 1 hour and the Complainant’s associates have to go home for 2 hours as and by way of lunch break. There was a security guard outside the showroom. The expensive goods were away of the drawers and showroom packing material was damaged. On 29/07/2005 the Complainant sent an intimation letter to the Opposite Party informing the loss of diamond packets, colour stones and furniture due to entering water in the showroom. On 30/08/05 a letter was sent to the surveyor giving all documents to agent at Exh.‘D1’ colly. Again on 10/11/05 letter was sent to surveyor (Exhi. ‘D’ to the Complainant). On 05/01/06 a letter was sent to the Opposite Party to settle the claim.
3) On 13/01/06 & 03/03/06 letters of the Opposite Party were received by the Complainant requesting for some documents. Before that on 23/01/06, 08/03/06 and 10/03/06 the Complainant had written a letter to the Opposite Party informing it that no records were available as they had been lost in flood.
4) The Complainant has further stated that the claim was filed on 30/08/06 but till date of filing the complaint, the said claim has neither been accepted nor rejected within the period of 3 months. This is the deficiency in service on the part of the Opposite Party.
5) The Complainant has prayed for the following reliefs –
a) The Opposite Party be directed to pay a sum of Rs.12,69,080/- in respect of the loss with 9 % interest from 27/07/06 till the
payment.
b) Payment of Rs.1 Lac towards legal expenses.
The Complainant has attached the xerox copies of the following documents alongwith the complaint –
i) Insurance policy alongwith terms & conditions
ii) Letter of the Complainant to Opposite Party dtd.29/07/05 (English & Hindi version, signed by the Ganpatlal Verma).
iii) Letter of the Complainant to Opposite Party dtd.10/11/05 (English & Hindi version).
iv) Letter of the Complainant dtd.30/08/2005 (English & Hindi version).
v) Letter of the Complainant dtd.30/07/2005 (Hindi).
vi) Proposal Form – blurred copy not readable.
vii) Tables of damaged jewellery.
viii) Bill No.01/07/05 dtd.05/07/05 GD enterprises.
ix) Receipt issued by Archana Gems and Jewels, GD enterprises.
x) Form Saral for the year
xi) Letter from the Surveyor to the Complainant dtd.11/08/05.
xii) Photographs black & white.
xiii) Letter from on Ganptalal Varma to Opposite Party dtd.05/01/06 (Hindi & English version).
xiv) Letter from Opposite Party to the Complainant dtd.13/01/06.
xv) Letter from Opposite Party to the Complainant dtd.03/03/06.
xvi) Letter from the Complainant to Opposite Party dtd.23/01/06 (English & Hindi version).
xvii) Letter from the Complainant to the Surveyor dtd.04/03/06 (English & Hindi version).
6) The complaint was admitted and notice was served on the Opposite Party. Opposite Party appeared through its Ld.Advocate and filed its written statement wherein it is specifically stated that the insurance claim of the Complainant has been investigated by the insurance company and as per the material on record, it issued a discharge voucher of Rs.1,69,974/- towards the settlement of the insurance claim of the Complainant. Therefore, there is no deficiency on the part of the Opposite Party as it has not repudiated the said claim. The Opposite Party has further admitted that the Complainant has taken the Jewelers Block Policy from it. During the validity of the policy the Complainant has lodged the claim for alleged loss due to deluge. It appointed the surveyor and assessor as per the legal procedure to assess the loss suffered by the Complainant. However, the Complainant failed to submit the details & documents to the surveyor. Therefore, by letters dtd.13/01/06, 03/03/06 the Opposite Party requested the Complainant to co-operate the surveyor and furnish the necessary documents to the surveyor. It also wrote letter to the surveyor on 02/02/06 requesting to submit surveyor report for settlement of the claim. The Surveyor submitted his report on 17/03/06 and the Opposite Party settled the claim for Rs.1,69,974/- and informed the Complainant on 17/04/06. However, the Complainant did not return the voucher to the Opposite Party. Thus the Opposite Party is not liable for any deficiency in service.
7) The Opposite Party has further stated that the Complainant has herself averred in the complaint that she failed to lock the drawers thus the Complainant herself was negligent to take proper measurers to minimize the loss.
8) The Opposite Party has specifically denied that it repudiated the Complainant’s insurance claim. On the otherhand the Opposite Party has sanctioned the claim and sent the discharge voucher to the Complainant for her signature. Finally the Opposite Party has stated that the Complainant is not entitled for any relief. The Opposite Party has attached the xerox copies of the following documents with the written statement -
i) Letter of Opposite Party addressed the surveyor dtd.02/02/06.
ii) Survey report dtd.17/03/06 by surveyor Amar Obhan.
iii) Letter of the Opposite Party addressed the Complainant, dtd.17/04/06, 06/07/06 and 18/12/06.
9) We heard the Ld.Advocates for both the parties and our findings are as follows -
The Opposite Party has issued a Jewellers Block Insurance Policy in the name of M/s.Archana Gems & Jewels on 12/04/05 for one year. It is not clear from the complaint as in what capacity Mrs.Shashikala Ganpatlal Varma has lodged this complaint. The very first statement of the Complainant stated that “The Complainant above named is a sole proprietorship firm.” From this it is clear that Mrs.Archana Gems & Jewels is the proprietory firm but it is not understood the relationship of Mrs.Shashikala Ganpatlal Varma with the said firm. From the overall perusal of the documents we presume that she may be the proprietor of this firm.
10) The firm was dealing in the business of jewellery in Thane (E) area at shop no.15, Krishna Leela Shopping Centre. During the validity of the insurance policy there was a deluge in Mumbai and Thane area on 26/07/2005 between 2.00 p.m. to 4.00 p.m. and the showroom of the Complainant was flooded with water due to which certain jewellery was damaged. It is the contention of the Complainant that “showroom was flooded with two and half to three ft. of water.” It is also submitted by the Complainant herself that “only the jewellery kept in showcase was taken to the residence.” The Complainant has not specifically prescribed as to where the jewellery was actually kept but it is generally kept in showcase, safe and in the drawers below the counter. Generally the drawers are provided below the counter and locks are provided to every drawer. It is the contention of the Complainant that the drawers below the counter were not locked. The Complainant has never stated in the complaint that the drawers were not closed or shut. It is clearly stated that they were not locked. This indicates that the jewellery was kept in showcase and in drawers below the counter. There is no mention about safe. The main contention of the Complainant is that “Due to heavy rain the expensive goods flowed out of the drawers below the counter and showroom packing material was damaged.” This is really strange to understand, how the goods particularly the jewellery which is made of the heaviest metals like gold, diamonds & other stones kept in a closed drawer can be washed away by the incoming water. It is also the fact that the Complainant has not mentioned in the complaint that the drawers were kept open. Therefore, when the jewellery was kept in the drawers, the water might have entered in to the drawers through very thin slits of the drawers & percolated in it. Definitely it would not have washed away the heavy metal jewellery because of its density as it was kept in closed drawers. There was a possibility of damage being caused to this jewellery by loss of shine of the jewellery etc. but certainly it could not be lost altogether/ washed away as alleged by the Complainant.
11)The Complainant has not stated in the complaint which jewellery was lost and which was damaged. Only in the prayer clause it is stated that the Opposite Party be directed to pay a sum of Rs.12,69,080/- in respect of loss suffered by the Complainant with 9 % interest from 27/07/06. The Complainant has failed to mention actually which jewellery was lost in the heavy rains (deluge).
12) There is no doubt about the heavy rains that paralysed the life of Mumbai and Thane District people from 26/07/08 up to the 1st week of the August, 2005. There was no electricity for about one week in the affected area. Still it is the fundamental duty of the Complainant to prove the loss of jewellery worth Rs.12,69,080/-. Therefore, in order to see the loss, we perused the documents attached to the complaint. The first letter dtd.29/07/05 addressed to Opposite Party states the loss of diamonds packets, colour stone and furniture. No quantity of this jewellery was given in this letter. Letter of the Complainant dtd.10/11/05 also does not mention any quantity of the jewellery lost. Even these letters do not have acknowledgment of the Opposite Party.
13) Perusal of letter dtd.30/08/05 from the Complainant refers the Surveyors letter dtd.11/08/05. But this letter dtd.11/08/05 or its copy has not been attached by the Complainant with the complaint. The letter dtd.30/08/05 also refers the following documents having sent to the surveyors –
i) Letter stating details of the incidents.
ii) Purchase Bill.
iii) Statement of loss and damage to stock due to flood on 26/07/05.
iv) Repair quotation of damaged furniture and civil work.
v) Total stock on 26/07/05.
vi) Balance Sheet Profit & Loss Account certified by C.A. for the year 2004-2005.
vii) Claim Form.
The copies of the above documents are not attached with the complaint. Therefore, they cannot be perused. Even this letter dtd.30/08/05 does not have acknowledgement of the Opposite Party. This letter does not bear the signature of Mrs. Shashikala G. Varma whose name appears at the bottom of this letter.
14) The letter dtd.31/07/05 written by the Complainant states the loss of goods and furniture worth Rs.15 Lac. In this letter also there is no description of the goods and furniture which were lost and which were damaged. This letter also does not bear the acknowledgement of the Opposite Party.
15) Only Annexure 1 to the complaint, on page 44, the description of the items alleged to be damaged / missing was given. It is as follows –
a) Semiprecious jewellery consisting of pearls, beeds, ruby etc. worth Rs.2,12,579/- was damaged.
b)Semiprecious stones consisting beeds, cats eyes, suphire & diamond worth Rs.8,87,577/- were damaged and lost.
c)Packaging material consisting of velvet pouches, boxes, diamond jewellery catalogues worth Rs.87,514/- was damaged.
d)Furniture and cost of repairing Rs.81,410/-. Total loss Rs.12,69,080/-
16) The Opposite Party submitted the surveyor’s report. Amar Obhan is the licensed surveyor who surveyed the loss on 11/08/08 i.e. 16 days after the deluge. The observations of this surveyor are as follows -
a) The floor level of the shop of the Complainant was 1½’ below the ground level. The counter of glass & wood admeasured 11½’ x 1½’ & 3 ½’ height having 6 rows of drawers equipped with central locking system. There were also cabinets with centre folding door. Gems & Jewels were stored in 3 lower most drawers. The packing material was stored in the concealed shelves on both sides of the entrance door.
b) The insured’s shop remained submerged about two and half feet of flood water accompanied with mud and roadside trash for considerable time.
The surveyor had inspected the stock of beeds and pearls affected due to the flood. The beeds & pearls had lost their luster and looking worn out and old. He also inspected some of the damaged packing material which was produced for inspection. There was also damage to sales-cum display counter, electrical fitting etc.
c) The surveyor also collected the relevant documents from the Complainant i.e. the claim from, statement of claim, photographs, balance-sheet dtd.31/03/05 certified by the C.A., Total stock statement as on 26/07/05 quotation for repair of furniture.
d) In lieu of purchase invoices of colour beeds, pearls, alleged to have been damaged, the Complainant belatedly submitted few documents (bills) on 07/03/06 to establish the purchases made from some individuals in the past. The surveyor relied on these bills for checking rates with rates appearing in the claim.
17) As per the surveyor assessment the damaged semi precious jewellery was worth Rs.1,30,966/-. However, the surveyor stated in his report that the Complainant had not produced the authentic purchase invoices but only acknowledgments on Complainant’s stationery by some individuals from whom the semiprecious stones were alleged to have been purchased. Therefore the surveyor has made a deduction of 20 % of the above said value. In addition, he has deducted the cost of gold, recovered from the items which is Rs.58,335/-. Therefore, he has recommended only Rs.46,438/- for loss of semiprecious jewellery.
18) Regarding Part-B of the claim- Damage of lost semiprecious stones and diamonds. The B Part consists of two sub parts one (a) is amounting to Rs.2,27,745/- and 2nd part is (b) cut & polished missing diamonds worth Rs.6,59,832/-.
For (a) part the Complainant had produced acknowledgements on insured’s stationery rather than some authentic purchases invoices, amounting to Rs.1,21,024/-. The same is considered, however, as there was no authentic invoice, a deduction of 30 % was recommended. Thus damaged semiprecious stones value is Rs.1,21,024/- (30 % of 1,21,024/-) = Rs.36,307/- = Rs.84,717/-. Therefore, for this par (a) claim, only Rs.84,717/- was recommended. For para (b) i.e. missing diamonds of R.6,59,832/-, the surveyor submitted that this claim could not be considered for assessment because insured (Complainant) failed to substantiate the same. In other words, the surveyor has not recommended the claim of Rs.6,59,832/- because the Complainant/Insured failed to establish this claim i.e. the Complainant could not establish that these diamonds were lost.
19) Damaged to packing material – the claim of the Complainant is Rs.87,514/-. The surveyor has stated that neither all the pieces were shown for inspection nor any purchase invoices was produced for rate verification. Therefore, only 33.3 % of the claim amount is recommended by the surveyor it is Rs.29,171/-.
20) Damage to furniture, civil & electric work. Complainant’s claim is Rs.81,410/-. As per the surveyor’s recommendation, Rs.20,170/- was considered as other item are not covered under the policy.
21) So far as the part A of the claim is concerned, the Complainant has claimed Rs.2,12,579/- but the surveyor has prepared a table in which he has stated as damaged semiprecious jewellery and the value was stated as 1,30,966/- only. The surveyor has not mentioned any reason whatsoever as to why he reduced this amount Rs.1,30,960/- from Rs.2,12,579/-. It is also not mentioned by the surveyor that only the semiprecious jewellery valued at Rs.1,30,966/- was produced before him for inspection. Therefore, it is not understood, as to on what basis he worked out this figure. He has stated in his report that the insured, on 07/03/06 submitted few documents with a view to establish the purchases, the surveyor had relied on these documents for checking the rates appearing in the claim. Then he has tabulated the damaged items with their value. It is not understood on what basis he has came to the conclusion that this semiprecious jewellery worth Rs.1,30,966/- only were damaged and not worth Rs.2,12,579/-. Therefore, we do not find any substance in the valuation of the surveyor reducing the amount of Rs.1,30,966/- and again deducting 20 % from this amount for not producing the authentic invoices. Once the surveyor relies on the documents produced by the insured as admitted by him above, there is no question of deducting 20 % of the 1,30,966/- again. He has also deducted the value of the gold studded with the stones but the Complainant (Insured) has already deducted this amount of Rs.58,335/- from the claim amount and Rs.2,12,579/- were claimed. Therefore, so far as the part A is concerned, the amount claimed by the Complainant is reasonable and properly claimed.
22) Regarding Part B, this part consists of two sub parts i.e. part (a) is in respect of damaged colour beeds and suphires worth R.2,27,745/-. In this case the surveyor has clearly stated that Complainant (insured) had produced same kind of acknowledgements on the stationery instead of authentic purchase invoices totalling Rs.1,21,024/-. This amount is considered for assessment of the claim but 30 % deduction was made recommending only Rs.84,717/-. Here the Complainant has produced the acknowledgement on the Complainant’s stationery amounting to Rs.1,21,024/-. As per the surveyor, they are not the authentic purchase invoice. But if the surveyor admits that the material beeds & suphires shown in these documents are damaged then they should be considered for the claim without any deduction. Therefore, if the (Inured) had produced some document showing that the material mentioned in those documents (bills) were damaged the claim of Rs.1,21,024/- should have been recommended by the surveyor instead of Rs.84,717/-without any deduction.
23) Regarding Part (b) of the claim i.e. missing of cut & polished diamonds, worth Rs.6,59,832/-. The surveyor has made a general and ambiguous statement that this claim could not be considered since Insured failed to substantiate the same. But we have elaborately explained the situation in para 10 of this order. From the documents it is clear that the diamonds were kept in the drawers below the counter in packets. It is true that it is the movable property but diamonds cannot move at there own. For coming out from the packet kept in the drawer, first they should float on the water percolated in to the drawer. Taking into consideration the density of the diamonds, they cannot float on water. The drawers were closed/shut, but not locked. Again taking into consideration the size of the diamonds and being in the packets, they cannot come out of the thin slit of the drawer. Therefore, it will be unscientific and against the law of physics to come to the conclusion that the diamonds floated on the water in the drawer and came out of the closed drawers and flowed away as stated by the Complainant. It is unrealistic. Therefore, we are of the opinion that the claim of the lost diamonds worth Rs.6,57,832/- is not proved.
24) Regarding damaged packing material, the Complainant has claimed Rs.87,514/-. The surveyor had personally inspected these items. He has stated that all the pieces alleged to have been damaged were not produced for the inspection. He has also mentioned in his introductory report that the packing material was kept in the concealed, (shelves) along sides the main door and there was only 2 ½’ water inside the shop. Taking into consideration these facts the surveyor seems to be just and proper in his conclusion so far this claim is concerned. Therefore, 33.3% of Rs.87,514/- is Rs.29,171/-. This amount is reasonable and can be considered for the insurance claim of the Complainant.
25) Damage to furniture, civil & electrical work. The loss claimed by the Complainant is Rs.81,410/-. The surveyor in his report has simply stated that repairs to furniture worth Rs.20,170/- is considered as other items are not covered under policy. This statement does not clarify the reasoning of the surveyor. In this respect we examined the claim of the Complainant mentioned in Annexure –I, page 45 to the complaint. The table describes the valuation of the claim as below –
i) Ceiling pop work Rs.20,250/-.
ii) Ceiling plaster and water proofing work and labour Rs.24,000/-.
iii) Halogen bulbs & lights Rs.2,940/-.
iv) Safe vault repairing charges Rs.4,050/-.
From the nature of work as mentioned above the ceiling was not damaged and even it is not claimed in the complaint. We also examined the terms & conditions of the policy. Same is the case with Halogen bulbs, lights and safe. The charges for these items are claimed by the Complainant without any basis. However, claim regarding the plywood & veneer for doors, counter and drawers and labour charges plus electrical wire etc. should be considered for the claim as the surveyor has stated that these items were damaged during the delay and these items were covered under the policy. Their cost comes as (8,000/- + 11,000/- + 1,170/-) = 20,170/-. This amount is just and proper to be claimed under the insurance policy.
26) Therefore, the insurance claim of the Complainant which should be approved by Insurance Company would be as follows -
1) Rs.2,12,579/- Damaged semiprecious jewellery (Part-A).
2) Rs.1,21,024/- Damaged beeds & suphires (Part B-(a)).
3) Rs. 29,171/- Damaged packing material (Part –C).
4) Rs. 20,170/- Damaged furniture (Part-D)
Total Rs.3,82,944/-
27) In this case the Complainant has filed an affidavit of one Shri.Mukesh Zhaveri, the valuer of diamonds and Gems Stone Jewellery, alongwith the valuation report in respect of damaged beeds/pearls on 09/05/07. The valuation report has stated the value of the damaged jewellery of the beeds/pearls/cats eye, rainbow stones to be Rs.4,81,100/-. The report is dtd.27/03/07.
28) The valuation of Shri.Zhaveri is dtd.27/03/07 i.e. after one year and 8 months after the incident. It is not clear at what rate the valuer had valuated these items. On the otherhand surveyor Mr.Obhan had visited the place of occurrence on 11/08/05 i.e. after 16 days of the incident. Section 64 UM2 of the Insurance Act contemplates the appointment of the surveyor by the Insurer and not by the Insured. Accordingly in this case Mr.Obhan had been appointed by the Opposite Party and his assessment report/survey report cannot be ignored. It is an important document and has to be given relevance and importance. Even when we compared the valuation, given by the Complainant herself in Annexure I to the complaint and the valuation of Shri.Mahesh Zhaveri, there is a discrepancy in the cost of items in these two evaluations. Taking into consideration the above discussed points it is not just and proper to accept the valuation done by Shri.Mahesh Zhaveri, the valur of the Complainant. Therefore, in view of the above analysis of the complaint, the evidence adduced by the Complainant, the affidavits in evidence and the Opposite Party’s statement, its affidavit of evidence, documents submitted, the surveyor report, we find that the Complainant was entitled to be compensated with offering a discharge voucher of Rs.3,82,944/-. However, the Opposite Party curtailed the amount to Rs.1,69,974/-. At the same time the Complainant had submitted the insurance claim of Rs.12,69,080/- which cannot be upheld for the reasons discussed above.
29) In view of the above analysis, we pass the following order –
O R D E R
i. Complaint No.482/2006 is partly allowed.
ii The Opposite Party is directed to refund the insurance claim of Rs.3,82,944/-(Rs.Three Lac Eighty Two
Thousand Nine Hundred Forty Four Only) to the Complainant for the damage to his jewellery during the heavy
deluge with interest of 9 % p.a. from 17/04/06 till the payment.
iii. Opposite Party is directed to pay Rs.3,000/- (Rs.Three Thousand Only) to the Complainant towards the cost of
this complaint.
iv. Opposite Party is also directed to comply with the above order within 45 days from the date of receipt of this
order.
v Certified copies of this order be furnished to the parties.
