Smt. Saritri Patnaik, Member (W) :
The fact of the case in brief is that the complainant has filed this consumer complaint Under Section 12 of the Consumer Protection Act, 1986, alleging deficiency in service against the Opposite Parties (in short the O.Ps ) and for redressal of their grievance before this Commission.
Briefly stated the case of the complainant is that the complainant is a self-employed who opened a mobile shop at new Bus stand, Berhampur availed the bank loan for said employment and insurance for the shop. The O.P.No.1 is the policy servicing Branch and administratively subordinate to the O.P.No.3 and the function of this O.P. is to motivate the customer, issue of new policy and redress of query or complaint/grievance of the customers. The O.P.N o.2 is the Bank whose function is to issue loan for all purposes and collect loan amount and other general banking as per RBI guidelines. The O.P.No.3 is the administrative superior of the O.P.No.1. For such employment, the complainant obtained loan from the O.P.No.2 bearing CC Account No. 10403508489 for Rs.4,00,000/- and the complainant himself used to seat and sale the mobiles of different companies, recharge vouchers from mobile networks, mobile accessories and spare parts of mobiles were sold to the customers. Meanwhile the O.P.No.2 for and on behalf of the complainant made a shopkeeper insurance policy from the O.P.No.1 and the required premium amount of Rs.2079/- was deducted from the above mentioned loan account of the complainant and the O.P.No.2 issued a shopkeeper insurance policy in favour of the complainant bearing policy No: 034500/48/07/34/00000683 for the period of insurance was from 20.11.2007 to midnight of 19.11.2008. Subsequently the complainant deposited the insurance premium amount with the O.P.No.2. The said insurance policy covered the fire and allied perils (contents), burglary and house breaking, money insurance (in transit), money insurance (in till/counter), plate glass and baggage insurance. Unfortunately burglary and house break by someone in between 10.30P.M. on 23.06.2008 and 6.30A.M. of 24.06.2008 and looted all the mobile sets, recharge vouchers, accessories, spare parts and other similar items alongwith money in counter of Rs.10,000/- which was kept in cash box of the shop breaking the shop etc. and the total value of the properties was around Rs.3,70,000/-. The complainant immediately intimated the matter to the local police station i.e. B.N.Pur police station which was registered as P.S. case No. 74/24.06.2008. On 25.08.2008 the complainant intimated about the matter in writing to the O.P.No.1 which was duly acknowledged by the O.P.No.1 on the same day. On demand of surveyor bearing Ref No: SS/UII/403A/2008 the complainant submitted all the documents as required by the surveyor of the O.P.No.1. On 26.06.2008 the complainant intimated about the matter in writing to the O.P.No.2 which was also acknowledged by the O.P.No.2. Though there was highest number of Top-up and recharger voucher card of Smart/Reliance Company, the complainant intimated about the burglary of same to the office of the Reliance Telecom Ltd. Berhampur which was acknowledged by the said company also on 27.06.2008. Thereafter IIC of B.N.Pur police station also intimated about the theft of RCV and top up to the said Reliance Telecom on 06.07.2008 bearing No. 876/PS. Finally the Investigating Officer of the said P.S. case No. 74/24.06.2008 submitted the final report to the S.D.J.M. Berhampur in G.R.No. 513/09 for necessary action. As per provision provided under said insurance policy the complainant submitted its burglary claim form along with a covering letter on 31.07.2008 to the O.P.No.1 which was duly acknowledged by the O.P.No.1 on the same day. When claim was not settled for long time by the O.P.No.1 and passed statutory period for settlement of claim, the complainant sent a registered letter to the O.P.No.1 on 12.07.2013. Duly acknowledging the said letter, the O.P.No.1 without considering the claim by the insured as per commitment, assurance given by them in the policy book and inaction of the O.P.No.1 in time and issued vicious reply dated 14.07.2013 by fabricating the information and documents to the complainant. As ill luck of insured, the middle brother of the complainant was suffered from cancer and due to attending with patient at Medical regularly, the complainant could not able to follow-up the burglar claim in time nor activated the communication with the O.Ps. The O.P.No.2 auctioned the mortgaged property of the complainant due to inaction of the O.P.No.1 in stipulated period. To reopen the burglar claim, the complainant again submitted another letter dated 18.09.23014 to the O.P.No.1 which was acknowledged by the O.P.No.1 and it was numbered as 0020/ dated 18.09.2014 but the O.P. did not choose to reply the said letter till date, the reasons best known to them. Nothing fruitful, the complainant in constraint filed an application under Section 6(1) of the Right to Information Act, 2005 before the O.P.No.1 on 28.09.2015. Instead of provide the action taken information/document on letter dated 18.09.2014 and claim dated 31.07.2008 the O.P.No.1 replied viciously on 13.10.2015 vide Ref. No. 260000/RTI/8/2015/1185/2015 which was received by the complainant on 16.10.2015. Now to obtaining appropriate information about quarries, the complainant filed Form D under RTI Act, 2005 before the First Appellate Authority of O.P.No.1. Once a policy has been issued, the insurer is not entitled to exonerate its liability to carry out the terms and conditions laid down in the policy bond. Inspite of several approaches both in writing and in person to the O.P. No.1 no attempt was made by the said O.P. to pay the claim amount as per the terms and conditions of the said policy bond to the complainant. Since the complainant approached all the O.Ps but the O.Ps did not care to release the claim amount as claimed by the complainant and thus its speaks volumes against their service deficient and as such all the O.Ps are having vicarious liability to pay the complainant the claim amount and also to compensate. Alleging deficiency in service on the part of the O.Ps the complainant prayed to direct the O.Ps to pay miscellaneous costs of Rs.11,05,987/- with 18% interest from the date of commencement of the policy and litigation cost of Rs.80,000/- in the best interests of justice.
The Commission admitted the case after condone the delay for filing the case by the complainant.
Notices were issued to the Opposite Parties. The O.P.No.1 and 2 appeared and filed their written version but the O.P.No.3 did not appear and filed his version, hence the O.P.No.3 are set exparte on 27.10.2016.
Upon notice the O.P.No.1 filed version through his advocate. It is stated the averments made in Para 1, 2, & 3 of the complainant are not true and correct. It is not true that the complainant is a self employed and availed loan from the Bank for running a mobile shop. It is not to the knowledge of this O.P. that the complainant running his alleged business by availing loan from the Bank. Similarly it is not true that the complainant was dealing with the business of mobiles of different companies. It is fact that the complainant had obtained a shop keeper policy vide No. 034500/48/07//34/00000683valid from 20.11.2007 to 19.11.2008. But it is not true that the said policy covered all risk as alleged in Para 4 of the complaint. The averments made in Para 5 & 6 of the complaint are not true. It is not true that all mobile sets, recharge vouchers, accessories, spare parts worth of Rs.3,70,000/- available in the shop of the complainant have been taken by some by breaking the lock of the shop in between 10.30 P.M. on 23.06.2008 to 6.30A.M. of 24.06.2008. Similarly it is not true that the said matter was reported to the concern police station and the said police station initiated the alleged P.S. case for the so called incident. It is submitted that the alleged police case is created by the complainant in connivance with the police for getting wrongful gain. In fact there was no burglary of mobiles and other articles as alleged in complaint by the complainant. The alleged Annexure-B is created for purpose of the claim. The averment s made in Para 7, 8 & 9 of the complaint are not true and correct. It is true that the complainant intimated about the alleged theft to this O.P. on 25.06.2008. But it is not true that the complainant supplied all documents as asked for by the Surveyor vide its letter dated 26.07.2008. The averments made in Para 10 and 11 of the complaint are not true and correct. The complainant has created the alleged annexure for purpose of the case. There is no truth behind the Annexure-F & G submitted by the complainant. The averments made in Para 12 & 13 of the complaint are not true and correct. The alleged letter dated 12.07.2013 is after thought for purpose of the case. The complaint is well aware that his claim has been repudiated since long for non submission of required documents. Similarly it is not true that this O.P. has given fabricated information and documents to the complainant. The averments made in Para 14, 15 & 16 of the complaint are not true and correct. It is not true that the complainant, due to illness of his middle brother could not follow up the matter with this O.P. Similarly it is not true that due to non settlement of claim by this O.P. the O.P.No.2 auctioned the mortgage property of the complainant. It is a fact that as the application for reopen of the claim was submitted after more than six years by the complainant, this O.P. did not choose to give reply to the said application. The complainant in order to a fresh cause of action has applied information under RTI Act as alleged in Para 16 of the complaint. All information that is asked for in RTI application is very much available with him. The averments made in Para 17, 18, 19 & 20 of the complaint are not true. It is not true that once there is policy, the insurance company has to settle the claim. Similarly it is not true that the complainant has several times approached to the O.P. in writing to settle his claim. The complainant himself admitted that due to illness of his brother could not follow-up the matter with the O.P. relating to settlement of his alleged claim. There is no deficiency in service on part of this O.P. relating to settlement of the claim of the complainant. Rather the complainant himself responsible for non settlement of his claim. As the complainant has sustained no loss on account of the alleged theft, he could not proceed with the alleged claim. The averments made in Para 24 of the complaint are not true and correct. It is not true that there was 3 months delay. Actually there is more than six years delay in filing present complaint. So the same can not be condoned.
It is submitted that the complainant had obtained shopkeeper policy vide No.034500/48/07/34/000006893 valid from 20.11.2007 to 19.11.2008 for covering the risk of fire and allied perils for the contents detail described in the policy schedule. While the above policy was in force on 25.06.2008 this O.P. got intimation from the complainant that the properties kept in his shop have been stolen as the same has been noticed by him on 24.06.2008 at about 6.30A.M. Immediately after receipt of such intimation this O.P. deputed a surveyor requesting them for making survey and assessment of loss as alleged by the complainant. The said surveyor visited to the spot and made an inventory about the stocks available in the insured shop in the presence of the complainant on 25.06.2008. After preparing list of stocks available in the insured shop, the complainant as well as surveyor has put his signature in the inventory. Thereafter the surveyor vide its letter No. SS/UII/403A/2008 dated 27.06.2008 requested to the complainant for furnishing required information and documents to facilitate them for making assessment of loss. When he failed to submit the same once again the said surveyor gave 1st reminder vide letter No. SS/UII/403B/2008 dated 24.02.2009 to him for furnishing the required documents within 3 days failing which they have no option to submit their independent report. Inspite of repeated request when the complainant failed to submit the required information and documents the surveyor submitted their report dated 08.08.2010 to this O.P. The surveyor in their report have suggested to the O.P. to repudiate the claim on the ground that in spite of repeated request the complainant could not able to furnish required documents as asked by them vide their above referred letters. Moreover the complainant was no more interested in this claim. This O.P. after getting survey report and on their recommendation closed the claim with knowledge of the complainant. When the complainant knowing earlier closer of his claim by this O.P. again approached for fresh consideration, this O.P. once again close his claim and informed the same to him. In fact the complainant has not sustained any loss due to the alleged theft. If he sustained loss he could have submitted relevant documents as asked by the surveyor. The documentgs such as bills, vouchers and receipts showing purchase of the mobiles etc. that are lost due to theft as alleged by him and stock register to that effect are basic documents for making assessment of loss. Even till today the complainant has not able to submit documents to substantiate his loss. As the complainant was defaulter in payment of loan obtained from the O.P.No.2, in order to for making repayment of loan amount through the insurance company, the complainant created the stories of loss of the alleged articles said to have been insured under the O.P. due to the theft. Infact there was no article inside the insured shop. The claim of the complainant is based on fraud for wrongful gain. The O.P.No.3 is not a necessary party. However this O.P. is also representing for and on behalf of them. Hence the O.P.No.1 prayed to dismiss the case with exemplary cost and to initiate appropriate criminal proceeding against the complainant for making false claim in the interest of justice.
Upon notice the O.P.No.2 filed version through his advocate. It is stated that the O.P. had sanctioned the loan to M/s Classic Electronics i.e. the complainant for commercial purpose. The said loan facility was sanctioned in favour of the complainant subject to the terms and conditions specified vide its sanction letter. The loan was sanctioned for commercial purpose in favour of the complainant, for which this complainant can not be covered under the definition of consumer as per the Consumer Protection Act. The relationship between the complainant and this O.P. are that of a banker and borrower which is also not coming within the jurisdiction of this Hon’ble Forum. Moreover the relationships between both the parties are governed by the contract, which is clearly specified in the loan documents as well as in the sanction letters. The allegations regarding the loss, damage, harassment and mental agony etc. as alleged in the petition, are not all true and correct and denied in toto by this O.P. After availing the credit facility, the complainant failed to repay the installments regularly and violated other contractual obligations. So this O.P. made several communications, requesting the complainant for regularization of the loan account but in vain. As the complainant’s account was not regular as per the terms and conditions of the sanctioned letters and inspite of warning as the complainant failed to mend its ways, this O.P. took appropriate action as contemplated under rules and the provisions of securitization and reconstruction of financial assets and Enforcement of Security Interest Act, 2002 and said action can not be questioned before this Forum. Moreover the claim arising out of the alleged incident mentioned in Para-5 of the petition is to be settled by the insurer i.e. the O.P.No.1 and 3 and this O.P. has no role/obligation in the said process. The petition is barred by limitation. The complaint is not maintainable due to non-joinder and mis-joinder of parties. Moreover, this case involves complex question of law and facts and cannot be tried before this Forum. Hence the O.P.No.2 prayed to dismiss the case.
On the date of hearing we heard this case from the learned advocates from complainant, O.P.No.1 and O.P.No.2. We perused the complaint petition, written version, written arguments and materials placed on the case record. The complainant stated that unfortunately burglary and house break by someone in between 10.30P.M. on 23.06.2008 and 6.30A.M. of 24.06.2008 and looted all the mobile sets, recharge vouchers, accessories, spare parts and other similar items alongwith money in counter of Rs.10,000/- which was kept in cash box of the shop breaking the shop etc. and the total value of the properties was around Rs.3,70,000/-. The O.P. has not filed any surveyor report.
The complainant relied upon the recent verdict of the Hon’ble Supreme Court held in GURMEL SINGH V. BRANCH MANAGER, NATIONAL INSURANCE CO. LTD., (CIVIL APPEAL NO. 4071 OF 2022) that, the insurance company has become too technical while settling the claim and has acted arbitrarily. The appellant was asked to furnish the documents which were beyond the control of the appellant to procure and furnish. The Court held that once, there was a valid insurance on payment of huge sum by way of premium and the Truck was stolen, the insurance company ought not to have become too technical and ought not to have refused to settle the claim on non-submission of the duplicate certified copy of certificate of registration, which the appellant could not produce due to the circumstances beyond his control. The Court also held that in many cases, it is found that the insurance companies are refusing the claim on flimsy grounds and/or technical grounds. While settling the claims, the insurance company should not be too technical and ask for the documents, which the insured is not in a position to produce due to circumstances beyond his control. Also another citation passed by the Hon’ble Supreme Court of India in Oriental Insurance Company ltd. versus M/s Ozma shipping company and another 2013 (1) CPR 604 such as:- “Insurance company should not hesitate to pay the amount which is legitimately due to complainant”.
So far as the compensation and costs of the case is concerned, the complainant is entitled to get compensation and cost of the litigation since he has hired the services of an advocate for filing his complaint in this Commission and has incurred expenses attending the case. Under the above facts and circumstances, in our considered view, it will be just and proper to award compensation as well as litigation costs in favour of the complainant.
On foregoing discussion it is crystal clear that the O.Ps are negligent in rendering proper service to the complainant. Hence, in our considered view there is deficiency in service on the part of the O.Ps.
In the result, the case of the complainant is allowed against the O.P.No.1 and dismissed against O.P.No.2. The O.P.No.1 is directed to pay total value of the properties was around Rs.3,70,000/-, compensation of Rs.50,000/- for negligence, harassment and mental agony and Rs.20,000/- towards costs of litigation to the complainant. The above order is to be complied by the O.P.No.1 within 45 days from the date of receipt of the order failing which the entire amount to be recovered from the O.P.No.1 with interest @ 12% per annum from the date of filing of the case till actual realisation of the same is made under the Consumer Protection Act, 2019.
The Judgment be uploaded on the www.confonet.nic.in for the perusal of the parties.
A certified copy of this Judgment be provided to all the parties free of cost as mandated by the Consumer Protection Act, 2019.
The file is to be consigned to the record room along with a copy of this Judgment.
(SMT. S. PATTANAIK) (SHRI S. K. PANIGRAHI)
MEMBER (W) PRESIDING MEMBER
PRONOUNCED ON: 17.04.2023.
