::BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AT BIDAR::
C.C. No.45/2017.
Date of filing: 25.07.2017.
Date of disposal: 30.06.2018.
P R E S E N T:-
(1) Shri. Jagannath Prasad Udgata, B.A., LL.B.,
President
(2) Shri. Shankrappa (Halipurgi),
B.A.LL.B.,
Member.
COMPLAINANT/S: 1. M/s Basheer Medicals and General Stores,
Shop No.6 & 7, Jama Masjid Complex,
Chitta, Tq and Dist: Bidar,
Represented by its sole proprietor Ahmed Dabeer S/o Mohammed Azeemuddin,
Age:31 years, R/o Chitta, Tq and dist: Bidar.
( By Sri.S.M.Shetkar., Adv.)
VERSUS
OPPONENT/S: 1) United India Insurance Company Ltd,
Branch office, Basava Shree complex,
# 8-10-268 to 273, 1st floor Behind
Ganesh Maidan, Stadium Road, Bidar 585 401,
Represented by its Branch Manager.
(By. Sri.Vaijinath Patil., Adv.)
:: J UD G M E N T ::
By Shri. Jagannath Prasad Udgata, President.
The complainant has approached this forum by filing a complaint u/s 12 of the Consumer Protection Act, 1986. The gist of the complaint is as below.
2. That, the complainant is running a business captioned as M/s Baheer Medicals and General Stores from shop No.6 and 7 of Jama Masjid complex, Chitta, Tq and Dist: Bidar and had obtained shopkeepers Insurance policy bearing No.2406022615P 110340200 in respect of the stocks and furniture’s and fixtures in the insured premises. (Date of validity 05.12.2015 to 04.12.2015). He had huge stock of medicines and general items so also items like refrigerators, computers, inverter, its batteries, fans, T.V., cash counter, nine racks and cash of Rs.25,000/- all under insurance cover.
3. On 06.12.2015, an electric short circuit happened and entire shop was ablaze. The father of the complainant observing the same upon intimation through him, the complainant informed the fire brigade wherein Report No.134/2015 was lodged, fire tenders dispatched but the entire items kept in the premises, inclusive of cash of Rs.25,000/- were burnt.
4. The O.P. being informed, the Branch Manager visited the devastated premises, then engaged a surveyor by name Vasanth Kumar Kulkarni who visited the premises on 07.12.2015 and conducted survey and filed report. The Insurance company never disclosed the report to the complainant but the O.P. went ahead in issuing a settlement intimation voucher in a sum of Rs.2,48,961/- and credited the amount to the account of the complainant.
5. The complainant then applied under the provisions of R.T.I. Act for a copy of the survey report, obtained it, where in it was found that, the surveyor has assessed the loss of stocks at Rs.2,00,000/- and that of furniture’s and fixtures at Rs.65,780/- departing from the Trading account and balance sheet prepared by M/s Susheel Kumar and Company Chartered accountants firm of Bidar, where in the closing stock was assessed at Rs.3,25,940/-. Furniture and fixture at Rs.1,15,240/- and other fixed assets at Rs.54,627/- Thus compounding the total loss a tRs.4,95,807/-. The complainant claims that, the calculation of the surveyor was arbitrary ad not scientific.
6. The complainant further avers that, dissatisfied with the claim, he lodged a protest on 26.12.2016, consequent upon which other sets of documents were called for on two occasions. It is further the averment of the complainant that, ultimately, he was called to the bank, arrived there with one of his friends by name Wasim S/o Ismail sab, a resident of Chitta, Bidar, wherein the official concerned assured that, the Insured amount would be settled and obtained the bank a/c details of the complainant and also his signatures were obtained in umpteen number of blank forms and papers, which was improper.
7. Pleading likewise, the complainant claims remaining balance of Rs.1,51,039/- from the insured amount and a further sum of Rs.50,000/- as compensation.
8. The opponent entering appearance through counsel has filed detail written version in which the fact of insurance cover is admitted, but the details of materials and items stored is denied. Fact of fire accident is admitted with a cloud. It is further admitted that, on receipt of fire
in-formation, the official so also surveyor of the Insurance Company visited the spot and conducted survey, with reference of the stocks and other documents. However, the O.P. claims that, the chartered Accountant has prepared the financial statements to favour of the complainant without even visiting the spot of incidence. The O.P. further claims that, their calculation of compensation is appropriate and the complainant has received the amount willingly and nothing more is due to him.
9. Both sides have led their respective evidences, written arguments, submitted documents and even the complainant has led the evidence of an independent witnesses.
10. From the diagonally opposite stands, the following points arise for our consideration.
- Does the complainant prove that, he has an actionable claim against the Insurer?
- Is there deficiency of service.
- Does the Insurer prove that, it has settled the claim of complainant fairly?
- What orders?
11. Our answers to the arisen points are as following:-
- In the affirmative.
- In the affirmative.
- In the negative.
- As per final orders owing to the following:
:: REASONS ::
12. Point (1) &(3): In instant case, the shop keeper’s cover policy to the tune of Rs.4,00,000/- was obtained by the complainant which fact is admitted by the O.P.. From other document s such as photographs and part settlement by the Insurance company the fact of fire accident is also proven. Now, when the entire items (saleable) and other movable assets were completely gutted inside the premises, hardly anything would be available to assess the quantum of loss. The surveyor deputed by the Insurance Company has prepared a report taking a cue from the assessment of closing stock done by the chartered Accountant Concerned as on 05.12.2015. Contrary to the assertions of the O.P. that, the chartered Accountant has not verified the spot, we are of the firm opinion that, spot inspection by either the Surveyor or C.A. would have been in futility, as nothing could have been elucidated from the charred remains (ashes) available in the premises. Rather, the C.A. was in a better position to assess the loss, the book of accounts, stock registers and other records being made available to him. Further, the O.P.s surveyor himself has taken the help of the records prepared by the C.A., though has scaled down the loss assessment arbitrarily. The copy of the surveyors’ report was made available to the complaint by the O.P. with Annexure-B (letter date:30.05.2017) and has been accepted by the Insurer, without giving any thought to the C.A.S assessments.
13. We also observe, the surveyor has inducted some imaginary calculations in his report. (Forming part of Annexure-B). For example, he has reckoned the closing stock’s worth as on 05.12.2016, but has adopted later a strange approach to assess at a less amount, scaling down the same from Rs.3,25,940/- to Rs.2,00,000/- without any scientific method adopted. Next at page-6 of the report, while calculating the costs of wooden racks as Rs.28,000/- each, he has evaluated both at Rs.30,000/-, which should have been in reality at Rs.56,000/-. On that count, the total loss of Fixtures, furniture’s and fitting should have been evaluated at Rs.89,000/- an deducting 15% depreciation, the figure is arrived at Rs.76330/-. Further, there is no scope to charge towards policy excess a salvage value.
14. Hence, we are of the opinion that, the complainant deserves compensation of Rs.3,00,000/- (rounded off due to the policy stipulations) towards stock of medicines and other general items together with Rs.76330/- as loss to the fixtures, furniture’s and fittings. The amount of loss then is calculated as Rs.3,76,330/- in all and the O.P. having paid a sum of Rs.2,48,961/- earlier, the balance amount of Rs.1,27,369/- still remains unpaid, the discussions supra answer the point No.1 in affirmative and point No.3 in the negative.
15. Point (2): Arbitrarily scaling down the entitlements (just) of Rs.3,76,330/- to Rs.2,48,961/- without any cogent reasons, surely proves the deficiency of service and we answer this point in the affirmative.
16. As far as the claim of the Insurance company that, the Insured had received the sum of Rs.2,48,961/- voluntarily, we are not inclined to take such claim on its’ face value. The complainant, filing evidence affidavit was cross examined as P.W.1 and has stood on his grunds firmly that, he was made to sign the vouchers in the office of the O.P. against assurance of settlement in a sum of Rs.4,00,000/-.
17. He has also examined another witness by name Wasim (P.W.2) who has corroborated the projection of P.W.1 at the time of signature of vouchers at O.P.s office from his cross examination, nothing to the contrary has been brought out. The complainant has submitted a decision of the Hon’ble National Commission in M/S V.K. Gupta and Associated v/s New India Assurance Company Limited (D.D.118.01.2018) in which in para-8 it has been observed as underneath.
“Learned counsel for the complainant pointed out that IRDA Regulations also stipulate that even if the insurance claim is settled by the Insurance Company the insured can file a complaint with a consumer forum if the insured is not satisfied with the settlement. In support of his argument, the learned counsel referred o the judgment of Ramdas Sales Corporation Vs. New India Assurance Company Ltd., CC 79 of 2007, decided on 10.02.2016 (NC) wherein it has been observed:-
The learned counsel for the complainant has placed before us a Circular No. IRDA/NL/CIR/Misc/173/09/2015 dated 24.09.2015 issued by Insurance Regulatory Development Authority of India (IRDA) to all the General Insurance Companies, with regard to the use of discharge vouchers in settlement of claim. The said circular reads as under.
The Insurance Companies are using discharge voucher or “settlement intimation voucher” or in some other name, so that the claim is closed and does not remain outstanding in their books. However , of late, the Authority has been receiving complaints from aggrieved policyholders that the said instrument of discharge voucher is being used by the insurers in the judicial fora with the plea that the full and final discharge given by the policy holders extinguish their rights to contest the claim before the Courts.
While the Authority notes that the insurers need to keep their books of accounts in order, it is also necessary to note that insurer shall not use the instrument of discharge voucher as a means of estoppels against the aggrieved policy holders when such policy holder approaches judicial fora.
Accordingly insurers are hereby advised as under:
Where the liability and quantum of claim under a policy is established, the insurers shall not withhold claim amounts. However, it would by clearly understood that execution of such vouchers does not foreclose the rights of policy holder to seek higher compensation before any judicial fora or any other fora established by law.
ORDER.
- The complaint is allowed in part.
- The O.P. is directed to pay a sum of Rs.1,27,369/- together with an interest @ 12% p.a. calculated from the date of filing of the complaint till realisation;
- The O.P. is further directed to pay a sum of Rs.5,000/- as compensation caused due to mental agonies and a further sum of Rs.5,000/- towards litigation expenses,
- Four weeks time granted to comply this order.
(Typed to our dictation then corrected, signed by us and then pronounced in the open Forum on this 30th day of June 2018).
Sri. Shankrappa H. Sri. Jagannath Prasad
Member. President.
Documents produced by the complainant
- Annexure.A-Copy of the policy.
- Annexure.B–Original letter of O.P.date:30.05.2017 along with copy
of surveyor reports. - Annexure. C to G– Colour photos of the charred premises.
- Annexure.H—Notice of the complainant to the O.P. date: 26.12.2016.
- Annexure. J & K– Postal receipts.
- Annexure.L- Copy of trading account of the complainant.
Document produced by the Opponents.
- Annexure.R.1- Copy of settlement intimations vouchers.
- Annexure.R.2- Original letter date:29.06.2016 by the complainant to
the insurance surveyor.
Witness examined.
Complainant.
- P.W.1- Sri. Ahmed Dabeer S/o Mohammed Azeemuddin
- P.W.2- Sri. Wasim S/o Ismail Sab R/o Chitta Tq and Dist: Bidar.
Opponent No.1
- R.W.1- R.S.Gugwad Divisional Manager United India Insurance
Company Limited Kalburagi.
Sri. Shankrappa H. Sri. Jagannath Prasad
Member. President.
