Haryana

Yamunanagar

CC/582/2011

M/s Web Computers - Complainant(s)

Versus

Universal Sampo General Insurance Co. - Opp.Party(s)

S.S.Saini

03 Mar 2017

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, YAMUNA NAGAR

 

                                                                                          Complaint No. 582 of 2011.

                                                                                          Date of institution: 02.06.2011 

                                                                                          Date of decision: 03.03.2017

 

 

M/s Web Computers, Thane Wali Gali, VPO Sadhaura, District Yamuna Nagar, through its Proprietor Shri Sanjay Kumar aged about 31 years son of Shri Ved Parkash, resident of near Sanatan Dharam Mandir Sadhaura, Distt. Yamuna Nagar.                                                                                                                                                        

…Complainant.

                                    Versus

1. Universal Sompo General Insurance Co. Ltd. Branch Office: Chandigarh, through its Branch Manager.
2. Allahabad Bank, Branch Sadhaura, District Yamuna Nagar, through its Branch Manager.

                                                                                                         …Respondents.

 

 

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

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

 

Present:           Shri Surjit Singh Saini, Advocate for complainant.

                        Sh. Amit Bansal, Advocate for respondent No.1.

                        Sh. V.K.Rajoria, Advocate, counsel for respondent No.2.

ORDER

 

1                      The present complaint has been filed under section 12 of the Consumer Protection Act. 1986.

2.                     Brief facts of the present complaint, as alleged by the complainant, are that complainant has filed the present complaint being proprietor of the firm M/s Web Computers (hereinafter referred as complainant Firm) obtained the loan i.e. C.C. Limit of Rs. 1,70,000/- from the respondent No.2 (hereinafter respondents will be referred as OPs) i.e. Allahabad Bank and the Op No.2 Bank got insured his firm on the Shopkeepers Package Policy from OP No.1 Insurance Company vide insurance Policy bearing No. 2939/50647719/00/000 valid from 11.05.2010 to 10.05.2011 for a sum of Rs. 6,00,000/-. On 08.09.2010 a heavy flood arose in the area, which effected the business of the complainant and articles i.e. Laptop (1), S.M.P.S. (10), Intex Waffer (1), Waffer 3000 Wt (1), M.P.E.C.S. (1), UPS Intex (1), Intex TFT (1), Speaker 10500 Wt. (1) and others items as mentioned in para No.3 of the complaint for a sum of Rs. 69731/- were damaged. Upon which, complainant moved an application for spot inspection (Survey) and assessing the loss suffered by him to the OP No.2 Bank and OP No.2 Bank sent a letter dated 27.09.2010 to the Op No.1 Insurance Company for settlement of the loss occurred to the complainant. The OP No.1 Insurance Company sent the surveyor who inspected the spot and after that sent a letter dated 08.10.2010 (wrongly typed as 08.09.2010) for completing some formalities which were done by the complainant vide letter dated 24.11.2010 but the Op No.1 Insurance Company did not respond the same. A reminder dated 19.01.2011 was also sent by the complainant to OP No.1 Insurance Company but the Op No.1 Insurance Company repudiated the claim of the complainant on the false and flimsy ground vide its letter dated 24.11.2010 which constitute the deficiency in service and unfair trade practice on the part of OP No.1 Insurance Company. Lastly, prayed for directing the OP No.1 Insurance Company to pay Rs. 69731/- i.e. damaged caused to the complainant on account of flood to the articles and also to pay compensation as well as litigation expenses. Hence, this complaint.

3.                     Upon notice, OPs appeared and filed its written statement separately. OP No.1 filed its written statement by taking some preliminary objections such as complainant has suppressed the material facts from this Forum. The true facts are that complainant has tried to manipulate the facts for imposing this false and frivolous complaint. As a matter of fact the reported claim of the complainant was duly entertained immediately on receipt of the intimation of loss and surveyor M/s protocol Surveyors & Engineers Pvt. Ltd. was immediately deputed on 24.09.2010  to assess the loss. The said surveyor visited the shop of the insured M/s Web Computers Thane Wali Gali Post Office Sadhaura, Yamuna Nagar on 25.09.2010 and found no loss in or to the insured shop/premises of the complainant due to flood but the entire loss due to flood was found to have taken place at residential premises of Sh. Sanjay Kumar where the goods were stocked by him without any intimation and which was not insured and the residence of the complainant was situated at about 200 meters away from his shop/ insured business establishment. It has been further mentioned that although the claim of the complainant was out rightly liable to be rejected but for the purpose of assessment the surveyor submitted his report dated 13.12.2010 whereby he assessed the actual loss to the tune of Rs. 42,584/- suffered by the complainant due to flood at his residential premises. After scrutinize and elaborating the whole facts, situation, record and evidence, the competent authority, held the said reported claim of the complainant as “No Claim” as per the terms and conditions of the Insurance policy, since no loss was found in or to the insured shop of the complainant. According to the terms and conditions of the standard shop keeper insurance policy, it is legal and mandatory that this policy shall cease to attach to any property insured which shall be removed from the premises in which it is herein stated to be kept so far as it is expressly provided in the policy. The OP Insurance Company was bound to indemnify only such losses that occurred at the place and of the firm which is mentioned in the insurance policy, thus location of the risk is very vital to the contract of such insurance. The complainant was duly informed about the fate of the claim vide letter dated 24.01.2011 but the complainant has filed the present just to put the undue pressure and on merit controverted the plea taken in the complaint and reiterated the stand taken in the preliminary objections. Lastly, prayed for dismissal of complaint qua OP No.1.

4.                     OP No.2 filed its written statement besides preliminary objections stated on merit that OP No.2 has been unnecessarily impleaded in the present complaint, however, it has been admitted that an application was moved by the complainant which was forwarded to the OP No.1 Insurance Company. Rest contents of the complaint were denied being matter of record. Lastly, prayed for dismissal of complaint qua Op No.2.

5.                     In support of his case, counsel for the complainant tendered into evidence affidavit of Sanjay Kumar Priprietor of M/s Web Computers as Annexure CW/A and documents such as photo copy of insurance policy as Annexure C-1, Photo copy of intimation letter to the OP No.2 Bank as Annexure C-2, Postal receipt as Annexure C-3, Reply dated 24.11.2010 of enquiry letter sent by the complainant as Annexure C-4, Photo copy of certificate issued by Allahabad Bank as Annexure C-5, Photo copy of another certificate issued by Allahabad Bank as Annexure C-6, Photo copy of letter dated 19.01.2011 as Annexure C-7, Photo copy of registered letter dated 24.01.2011 as Annexure C-8, Photo copy of detail of loss as Annexure C-9 and closed the evidence on behalf of complainant.

6.                     On the other hand, counsel for the OP No.1 tendered into evidence affidavit of Piyush Shankar Assistant General Manager as Annexure RW/A and affidavit of Sunil Arora, Protocol Insurance Surveyor’s and Loss Assessor as Annexure RW/B and documents such as Photo copy of letter dated 24.01.2011 as Annexure R-1, Photo copy of letter dated 22.12.2010 as Annexure R-2, Photo copy of claim note as Annexure R-3, Photo copy of surveyor report as Annexure R-4, Photo copy of insurance policy as Annexure R-5 and closed the evidence on behalf of OP No.1.

7.                     Counsel for the OP No.2 Bank stated that written statement of OP No.2 may be read as his evidence and closed the evidence on behalf of Op No.2.

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

9.                     It is not disputed that complainant firm had obtained a shop keeper package insurance policy bearing No. 2939/50647719/00/000 valid from 11.05.2010 to 10.05.2011 covering the risk of Rs. 3,00,000/- on account of fire and allied perils i.e. flood, storm etc. from the OP No.1 Insurance Company through Op No.2. It is also not disputed that a claim was lodged by the complainant, upon which surveyor and loss assessor M/s Protocol Insurance Surveyors & Engineers Pvt. Ltd. was deputed by the Insurance Company who submitted his report dated 13.12.2010 (Annexure R-4) assessing the loss to the tune of Rs. 42,584/- as per terms and conditions of the Insurance Policy and after deducting the salvage value etc. It is also not disputed that the claim of the complainant has been repudiated by the OP Insurance Company vide its letter dated 24.01.2011 Annexure C-8.

10.                   The only plea of the OP Insurance Company as per repudiation letter Annexure C-8 is that the loss to the computer hardware items took place at the residential premises of the complainant whereas as per terms and conditions of the insurance policy, the risk location  covered under the policy was shop of the complainant “ at Thane Wali Gali, Post Office, Sadhaura” not at residence of the complainant which was about 200 meters away from the shop of the complainant.  Further, learned  counsel for the OP Insurance Company draw our attention towards the surveyor report (Annexure R-4) in which surveyor has specifically mentioned in his report under the head premises where loss took place:- insured residence situated at Thanewali Gali V.P.O. Sadhaura, Yamuna Nagar and argued that as per surveyor report the claim of the complainant has been rightly repudiated by the OP NBo.1 Insurance Company but these plea of the OP No.1 is not tenable as from the perusal of insurance policy Annexure R-5, it is clear that the address of the shop/firm of the complainant has been shown as Web Computer, Thanewali Gali, V.P.O. Sadhaura and the address of the location where the alleged loss has taken place as per surveyor report is also the same address i.e. Thanewali Gali, V.P.O. Sadhaura. Further, the surveyor has not disclosed in his report that flood water had entered or not in the shop of the complainant which was away 200 meter from the residence of the complainant. Whereas on the other hand, the surveyor and loss assessor has specifically mentioned under the head the mishap and its cause that “ on account of heavy rains, the drains in the area Sadhaura got blocked and water level started rising and water level rose  quickly and entered inside the insured’s premises and during the survey the water marks were clearly visible at the level of about 2 feet. The various stocks got damaged/ submerged in water and rendered useless. Further, it has also been mentioned that the cause of losses was accidental in nature and is covered peril in the policy of insurance and hence there appears to be a liability on the underwriter’s w.r.t. the captioned claim”.

11.                   So after going through the above noted comments of the surveyor and loss assessor, it is duly proved  that complainant firm has suffered financial loss on account of flood which was covered under the policy in question for the relevant period. The OP No.1 Insurance Company has totally failed to place on file any proposal form in which complainant might have disclosed the place of business. So, in the absence of any cogent evidence, we are of the considered view that the OP No.1 Insurance Company has wrongly and illegally repudiated the claim of the complainant.

12.                   Now, question arise what amount the complainant is entitled to get from the OP No.1 Insurance Company on account of damages. We have perused the report dated 13.12.2010 of surveyor and loss assessor M/s Protocol Surveyors & Engineers Pvt. Ld. deputed by the OP No.1 Insurance Company in which an amount of Rs. 42,584/- has been assessed. The argument of the learned counsel for complainant that complainant is entitled to get an amount of Rs. 69,731/- is not tenable as the complainant has totally failed to file any expert report to rebut the surveyor report otherwise. It is a settle law that credence should be given to the surveyor report being an authentic document as the only surveyor is best person to assess the loss (If any).

13.                   Resultantly, in the circumstances noted above, we partly allow the complaint of complainant and direct the OP No.1 Insurance Company to pay a sum of Rs. 42,584/- to the complainant as assessed by the Surveyor & Loss Assessor within a period of 30 days failing which the OP No.1 Insurance Company is also liable to pay interest at the rate of 7% per annum for the defaulting period. 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.

Pronounced in open court:

Dated: 03.03.2017                                                                  

                                                                                                (ASHOK KUMAR GARG)

                                                                                          PRESIDENT

                                                                                          DCDRF Yamuna Nagar

 

                                                                                         

                                                            ( S.C.SHARMA)

                                                             MEMBER