Haryana

Yamunanagar

CC/516/2010

M/s Narinder Kumar Raman kumar - Complainant(s)

Versus

UNited India Insurance Company Ltd. - Opp.Party(s)

V.K.Arora

13 May 2016

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, YAMUNA NAGAR

 

                                                                                             Complaint No. 516 of 2010

                                                                                             Date of institution: 27.05.2010.

                                                                                             Date of decision:13.05.2016.

1. M/s Narinder Kumar Raman Kumar, Shanti Colony, Jagadhri, District Yamuna Nagar through its Proprietor Narinder Kumar.
2. Narinder Kumar son of Shri Satpal Mehta, Proprietor of M/s Narinder Kumar Raman Kumar, Shanti Colony, Jagadhri, District Yamuna Nagar.  

                                                                                                                                                                      …Complainants.

                                    Versus

 

1. United India Insurance Company Limited, near Telephone Exchange, Yamuna Nagar through its Branch Manager.
2. Divisional Manager, United India Insurance Company, Ltd., Triloki Chamber, Opposite Municipal Committee, Ambala Cantt.                                                                                                                                                                …Respondents.

 

Before:             SH. ASHOK KUMAR GARG…………….. PRESIDENT.

                        SH. S.C.SHARMA………………………….MEMBER.

 

Present:  Sh. Nitin Arora, Advocate, counsel for complainant.  

               Sh. Rajiv Kumar Gupta, Advocate, counsel for respondents.             

             

ORDER

 

1.                     Complainant Firm has filed the present complaint under section 12 of the Consumer Protection Act. 1986.  

2.                     Brief facts of the present complaint, as alleged by the complainants, are that complainants Firm M/s Narender Kumar Raman Kumar whose complainant No.2 Narinder Kumar is sole proprietor and fully conversant with the facts of the present case, are doing the business of manufacturing of Brass, utensils at Shanti Colony, Jagadhri. The complainants have also availed the CC Limit from the PNB Jagadhri and the stock of the complainants was duly insured with the OPs vide insurance policy bearing No. 110101/46/08/04/00000025 valid from 14.04.2008 to 13.04.2009. On the intervening night of 06/07.04.2009, a burglary/theft was committed in the factory of the complainants by some unknown persons and the complainant duly lodged the FIR bearing No. 154 dated 11.04.2009, in the P.S. City Jagadhri. The complainant also lodged the claim with the OPs insurance company and all the necessary and relevant documents were duly submitted to the OPs Insurance Company. The matter was also published in the newspapers and intimation was also given to the PNB, Jagadhri. The OPs Insurance company sent a letter to the complainants requiring some documents to be sent and complainants sent all the required documents but the OPs illegally and arbitrarily repudiated the claim of the complainant vide their letter dated 20.01.2010 on the false and frivolous ground. The complainant several times requested the OPs to make the payment of the claim amount to the tune of Rs. 1,20,000/- but the OPs did not pay any heed to the genuine request of the complainant. Hence , this complaint.

3.                     Upon notice, OPs appeared and filed its written statement by taking some preliminary objections such as complaint is not maintainable, there is no negligence or deficiency in service on the part of OPs, complainant has not come to this Forum with clean hands. True facts of the case are that, in this case, the complainant/insured gave an intimation dated 13.04.2009 to the PNB Jagadhri that a theft had taken place in the night of 06.04.2009 in the insured premises. Punjab National Bank further informed the OPs Insurance Company on 13.04.2009 regarding the alleged theft in the factory of M/s Narender Kumar Raman Kumar insured with the OPs Insurance Company. On receipt of the said information, the OPs Insurance Company immediately deputed Sh. Rajan Sharda as independent surveyor and loss assessor to survey and assess the loss, if any, who conducted the survey on 14.04.2009 in the factory premises of the insured and submitted his report dated 23.11.2009 (Annexure R-6) to the OPs Insurance Company. The insured was desired by the surveyor to produce the books of stock register but the insured informed that he is not maintaining any stock register. The surveyor sent a letter dated 15.04.2009 (Annexure R-1) letter dated 18.05.2009 (Annexure R-2), Letter dated 03.09.2009 (Annexure R-4) and letter dated 20.10.2009 (Annexure R-5) to the complainant to complete the necessary formalities, even, the Ops insurance company vide its letter dated 26.05.2009 (Annexure R-3) desired the complainant to submit the documents but the insured did not complete the necessary formalities.

4.                     The insured claim the loss of 500 Kg. Brass laddu but no substantive proof was submitted by the insured regarding the loss. However, in order to quantify the loss even in the absence of financial record the surveyor applied 25% deduction on the quantity claimed by the insured to eliminate any error on account of estimation. The rate of the brass was taken/ considered by taking the average  purchase rate from the purchase bill since 01.04.2009 as Rs. 227.40 per Kg. Further, it has been mentioned by the surveyor that the total stock holding as per trading account casted as on the date of incident was arrived at Rs. 10,09,010/- whereas sum insured was Rs. 7,00,000/-, so by applying the average clause the net loss was assessed by surveyor as Rs. 59,159/- vide his report subject to terms and conditions of the insurance policy in question.

 5.                    On receipt of the said report, the claim was further processed by the OPs Insurance Company and it was found that the complainant/ insured has violated the terms and conditions No.3 & 4 of the Insurance Policy. As per condition No.3 of the Insurance Policy, the insured was required to take all reasonable step to safeguard the insured property against any loss. As per policy condition No.4, it is necessary that insured shall give immediate notice thereof in writing to the nearest office of the insurance company with the copy of insurance policy and complaint lodged with the police. However, in the present case, insured did not give any immediate notice to the insurance company as well as to the police. There is an inordinate delay of 5 days in informing the police and 7 days in informing the insurance company. Furthermore, the complainant did not directly give any intimation to the insurance company and thus deprived the OP Insurance Company having first-hand information and to conduct immediate inspection/ survey. Furthermore, being burglary policy, a specific condition has been incorporated in the policy that in order to cover a case of loss or damage to any property while contain in the insured’s premises, theft following upon an actual forcible and violent entry of and/ or exist from the premises is necessary, however, in this case as per the report of the surveyor, there was no forcible and violent entry in the said premises. From all these facts/ documents, the claim was not covered under the terms and conditions of the insurance policy and was not payable, so, the claim of the complainant has rightly been repudiated vide letter dated 20.01.2010 and the complaint is liable to be dismissed and on merit reiterated the stand taken in the preliminary objections and lastly prayed for dismissal of complaint.  

6.                     To prove the case, counsel for the complainant tendered into evidence affidavit of complainant as Annexure CX and documents such as Photo copy of FIR (Annexure C-1), Photo copy of Burglary Claim Form as Annexure C-2, Photo copy of intimation letter issued by Punjab National Bank to the United India Insurance Co. as Annexure C-3, Photo copy of news paper cutting regarding burglary as Annexure C-4 Photo copy of letter dated 20.01.2010 as Annexure C-5 and closed the evidence on behalf of complainant.   

7.                     On the other hand, counsel for the OPs tendered into evidence affidavit of Ajay Sareen, Assistant Manager, UIIC as Annexure RX, Affidavit of Rajan Sharda, Surveyor & Loss Assessor as Annexure RY and documents such as Photo copy of letter dated 15.04.2009 as Annexure R-1, Photo copy of letter dated 18.05.2009 as Annexure R-2, Carbon copy of letter dated 26.05.2009 as Annexure R-3, Photo copy of letter dated 03.09.2009 as Annexure R-4, Carbon Copy of letter dated 20.10.2009 as Annexure R-5, Photo copy of surveyor report dated 23.11.2009 as Annexure R-6, Photo copy of claim repudiation letter dated 20.01.2010 as Annexure R-7, Photocopy of insurance policy as Annexure R-8, Photo copy of FIR as Annexure R-9, Photo copy of letter dated 13.04.2009 issued by complainant to PNB as Annexure R-10, Photo copy of letter dated 13.04.2009 issued by PNB to United India Insurance Company as Annexure R-11 and closed the evidence on behalf of OPs.

8.                     We have heard the counsels of both the parties and have gone through the pleadings as well as documents placed on the file carefully and minutely.

9.                     It is not disputed that stock lying in the premises of factory of M/s Narinder Kumar Raman Kumar was insured with the OPs Insurance Company vide its policy bearing No. 110101/46/08/04/00000025 valid from 14.04.2008 to 13.04.2009 for a sum of Rs. 7,00,000/-( Annexure R-8). Learned counsel for the complainant argued at length that genuine claim of the complainants has been repudiated by the OPs Insurance Company on flimsy ground which is duly proved from the contents of FIR bearing registration No.154 dated 11.04.2009 registered in the Police Station City, Jagadhri (Annexure C-1), which is also corroborated with the news paper cutting (Annexure C-4) and the complainants are legally entitled to get the amount of Rs. 1,20,000/- on account of loss suffered by him due to theft of 500 Kg. scrap of brass in the mid night of 06/07.04.2009. Learned counsel for the complainant referred the case law titled as Bhupinder Singh Versus National Insurance Company Ltd. Muktsar & Others, 2013(2) CLT Page 395.

10.                   On the other hand, learned counsel for the OPs hotly argued at length that claim of the complainant has been rightly repudiated by the OPs Insurance Company vide their letter dated 20.01.2010 (Annexure R-7). The complainant/insured give intimation to the PNB Jagadhri on 13.04.2009 from which the insured firm was having CC Limit whereas the alleged theft had taken place in the night of 06.04.2009 i.e. PNB Jagadhri as well as OPs Insurance Company has been intimated after a delay of 6-7 days. On receipt of the said information, OPs Insurance Company immediately deputed Sh. Rajan Sharda an independent surveyor and loss assessor who conducted the survey on 14.04.2009 and submitted his report dated 23.11.2009 (Annexure R-6) to the Ops Insurance Company. The surveyor sent so many letters (Annexure R-1 to R-5) to the complainant to complete the necessary formalities but the complainant failed to submit the desired/necessary documents with the OPs Insurance Company. Even, no such substantive proof in respect of loss of 500 Kg. brass ( ladoo) scrap was submitted by the insured regarding the loss. However, after deducting 25% on the quantity claimed by the insured to eliminate any error on account of estimation, an amount of Rs. 59,159/- was assessed by the surveyor vide his report (Annexure R-6). However, as the complainant intimated the insurance company on 13.04.2009 after a gap of 6-7 days from the date of alleged theft i.e. on 6/7.4.2009 and further insured has violated the terms and conditions No.3 & 4 of the insurance policy in which the insured was required to take all reasonable step to safeguard the insured property against any loss and shall intimate the OP Insurance Company immediately in writing and further there was no sign of forcible entry visible in the premises of factory for committing the crime, hence, the claim of the complainant has been rightly repudiated by the OPs Insurance Company. Lastly prayed for dismissal of complaint. Learned counsel for the Ops referred the case law titled as United India Insurance Company Limited Versus Harchand Rai Chandan Lal, 2004(2) CPC page 686 wherein it has been held that Insurance policy- Burglary/Theft- Complainant/respondent had obtained an insurance policy against burglary and house breaking policy for a sum of Rs. 7,00,000/- The term “Burglary and House Breaking” was defined in the terms of policy in which forcible and violent means or assault was necessary to prove an act of burglary or theft- Both the authorities below accepted the claim of claimant which cannot be sustained as element of force and violence conditions precedent for burglary and house breaking was not established- Appeal allowed.

11.                   After going through the arguments advanced by both the parties as well as contents of complaint and documents placed on file by both the parties, we are of the considered view that there is no deficiency in service or unfair trade practice on the part of OPs  Insurance Company as the complainant has totally failed to prove his case by filing cogent evidence that there was any forceful and violent entry in the said premises/ factory of the complainant. Even the complainant has lodged the FIR bearing No. 154 dated 11.04.2009 (Annexure C-1) after a period of 5 days from the alleged theft and intimated the PNB on 13.04.2009 after a period of 7 days from the alleged theft which is evident from the intimation letter (Annexure C-3). Further, the complainant did not bother to submit the necessary/ required documents despite so many letters written by the surveyor on dated 15.04.2009, 18.04.2009, 03.09.2009, 20.10.2009 and 26.05.2009 (Annexure R-1 to R-5). Even, the complainant has also not filed any documentary/ cogent evidence before this Forum to prove that on the date of alleged theft what was the stock in the abovesaid factory. The present complaint is pending before this Forum since its filing i.e. from 27.05.2010 and till today the complainant has also not tendered any final report issued by the police of P.S. City Jagadhri under section 174 Cr.P.C and has also not filed any untraceable report issued by the competent court of law. The arguments advanced by the learned counsel for the complainant is not tenable and law cited above is not helpful in the present case whereas the law referred by the counsel for the Ops titled as United India Insurance Company Limited Versus Harchand Rai Chandan Lal, 2004(2) CPC page 686 Supreme Court of India is fully applicable to the facts of the present case.

12.                   In the circumstances noted above, we are of the considered view that the OPs Insurance Company has rightly repudiated the claim of the complainant. As such, there is no deficiency or unfair trade practice on the part of OPs Insurance Company.

13.                   Resultantly, we find no merit in the present complaint and the same is hereby dismissed with no order as to costs. Copies of this order be sent to the parties concerned free of costs as per rules. File be consigned to the record room after due compliance.

Announced in open court.

Dated: 13.05.2016.                 

                                                                                    (ASHOK KUMAR GARG )

                                                                                    PRESIDENT,

                                                                                     

 

                                                                                    (S.C.SHARMA )

                                                                                     MEMBER.