ORDERS:

Charanjit Singh, President;

1        The complainant has filed the present complaint by invoking the provisions of Section 34, 35 and 36 of the Consumer Protection Act against the opposite parties on the allegations that the complainant is running a small business of Sanitary and Cement articles etc. with style and name "Brick Cement & Sanitary Store" at Bus Stand Goindwal Sahib Tarn Taran and this is the sole bread earning source of the complainant. The complainant had availed financial assistance in the form of Credit limited from Allahabad Bank Goindwal Sahib and while sanctioning this credit limit, this bank got his business insured for theft etc. in order to secure its credit limit loan sanction to him with the opposite parties with an insurance cover of Rs.10 Lakh in case of theft etc. in the shop in which the complainant is running the business vide policy No.2939/56893081/00/000 and for this the complainant paid regularly insurance premiums to the opposite parties and as such was always regular in his payments regarding it. Unfortunately on the intervening night of 27.11.2017 and 28.11.2017 some unidentified people got into the complainant's shop by demolishing the wall and took away Rs.50,000/- in cash and also took away iron box, sanitary articles and cement having a total value of Rs.05 Lakh and after coming to know about it on 28.11.2017 he tried to look for the culprits involved in it but could not find them and as such got an FIR lodged with the police station Goindwal Sahib having FIR No.155 of 2017 and also informed the opposite parties immediately after knowing about the theft to lodge a claim with them so as to receive the claim for the loss suffered by him being his business insured with those parties. The opposite parties issued a claim number to the complainant CL17075780 against his lodgment. The complainant received Rs.2,18,773/- as partial claim amount from the opposite parties after fulfilling the formalities asked by them and told the complainant that on submitting the non-traceable report, the remaining claim amount will be released to him. The complainant approached the concerned police for obtaining the status report regarding the FIR lodged by him and the police supplied him with a certified copy of non-traceable report dated 15.02.2020 by telling him that the suspects in the FIR could not traced and as such non- traceable report has been submitted before the concerned court. The complainant immediately forwarded the non- traceable report to the opposite parties alongwith a letter dated 13.03.2020 which was received by one Deepak Kumar, dealing hand clerk at Jalandhar and he appended his signatures on the photocopy of this letter as the acknowledgment of receiving the letter and non-traceable report and this Deepak Kumar assured the complainant that the remaining claim amount will be released to him within a fortnight and as such the complainant awaited for it.  After awaiting for 15 days, the complainant again approached the opposite party at Jalandhar and again inquired about his claim amount and the opposite party No.2 flatly refused to release any claim to the complainant in the above mentioned claim case and the complainant has prayed that the following reliefs may be granted to the complainant.

(a)     The opposite parties may kindly be directed to release the remaining claim amount of Rs.3,31,227/- to the complainant immediately.

(b)     The opposite parties may kindly be directed to pay compensation to the tune of Rs. 80,000/- for causing harassment to the complainant and also be directed to pay Rs.20,000/- as litigation expenses.

(c)      Any other relief to which the complainant is found entitled to that may also be granted in his favour under the law and equity.

Alongwith the main complaint, the complainant has placed on record affidavit of complainant Ex. C-1, self attested copy of letter dated 13.3.2020 Ex. C-2, Self attested copy of Non Traceable report dated 15.2.2020 Ex. C-3, Self attested copy of Bank Statement Ex. C-4.

2        After formal admission of the complaint, notice was issued to Opposite Parties and opposite parties appeared through counsel and filed written version contesting the complaint by interalia pleadings that the present complaint is not maintainable since immediately on the receipt of the claim it was duly registered, entertained and processed. The complainant has obtained Shopkeepers Package Policy from opposite parties covering the risks as detailed in the insurance policy. The insurance policy is a contract in itself and the parties are bound by the terms and conditions of the policy and nothing can be added or subtracted out of it. It is clearly mentioned under the head 5 claim procedure para 5 sub para b the details of the documents required for processing the claim which is reproduced as under

5B the documents normally required to be submitted in the event of a claim are : (1) duly completed claim form, (2) copy of FIR, (3) Copy of Non-traceable report duly verified by Court, (4) invoice/ bills/ receipts, (5) FR, (6) any other details/documents called for a specific loss........

CA Rajiv Arora surveyors and loss assessors Pvt. Ltd, Flat No. 601, Grand Duke, Royal Residency Omax Pakhowal Road, Ludhiana 141012, an independent IRDA approved surveyor and loss assessor was appointed to assess the loss. The said surveyor had visited the said premises situated at New Bus Stand Kapurthala Chowk Goindwal Sahib, Tarn Taran, Punjab on 29.11.2017 for physical inventory and to survey the loss and damage caused by theft of stocks by some unknown miscreant. The said surveyor took the photographs, documents supplied by complainant etc. and on the basis of the information available, the surveyor had prepared his report dated 6.5.2018 assessing the loss to Rs. 2,91,951/- under his signatures and submitted the same with the opposite party Universal Sompo General Insurance Co. Ltd.. It is to be further clarified that Insured had delayed in furnishing requisite documents required for settlement of claim due to which there was delay in finalization of Final Survey Report. In report that the same is issued without prejudice and subject to the terms and conditions of the policy of insurance issued to and held by insured. Bifurcation of assessment provided by Surveyor in his report are provided as below-

(a)     The total sum Insured as per the policy schedule is for Rs. 21 Lakh, however as per the assessment Value at risk amounts to Rs. 27.43 Lakh, henceforth average applicable for calculation of net loss would be considered as 21:27.43 as per policy terms and conditions.

(b)     Surveyor has further deducted 5% excess as per policy as value at risk is higher than the Sum Insured.

(c)      Surveyor has further deducted 10% on assessed loss due to non-maintenance of stock register. It is to be further specified that stock register was not shown to Surveyor.

(d)     Cash Loss of Rs. 50,000/- has not been considered by the Surveyor as policy in question covers only stocks kept at Insured premises and not cash, henceforth same has not been considered in final loss assessment.

(e)      Insured has mentioned loss to the tune of Rs. 5 Lakh in FIR along with cash loss of Rs. 50,000/-. However, Surveyor after calculating value at risk which amounts to Rs. 27.43 lakhs as per the trading account of Insured has calculated gross assessed loss to the tune of Rs. 4.48 lakhs. This has been done by reducing the Stocks Physically verified by the Surveyor after the mishap amounting to Rs. 22.95 Lakhs.

Stocks before Burglary as per trading

On receipt of final survey report, the opposite parties had duly paid 75% of the net assessed loss amounting to Rs. 2,18,773/- to Insured through NEFT transfer bearing UTR No. UTIBR52018062500349256 to Insured's loan account on 21.6.2018. 25% of the remaining claim amount was kept on hold as Final Police Report duly verified by Court had not been submitted to opposite parties company which is considered as standard market practice in Burglary Cases. The opposite parties are ready and willing to suffice remaining 25% of the net assessed loss amounting to Rs. 73,178/- as per the Surveyor Assessment as and when claimant furnishes final police report duly verified by the Court. The present complaint is not maintainable since no cause of action accrued to complainant and the complainant is not coming to this Commission with clean hands and has falsely represented the material facts before the Commission that opposite parties have not settled the claim of complainant which is false and unjustified as opposite party company has settled 75% claim of complainant as per Surveyor Assessment and is ready and willing to suffice remaining 25% as and when Claimant provides Final police report duly verified by the Court. No cause of action accrued to the complainant the complaint of the complainant is liable to be dismiss on this ground. This commission has no jurisdiction to entertain present complainant. The complaint filed by the complainant does not fall within the definition of a 'consumer dispute' under the Act, as there is neither any unfair trade practice adopted by this Opposite Party nor any deficiency in services being established against this Opposite Parties, hence the averments and/or allegations made therein are false, frivolous, baseless and misconceived and, the complaint is liable for rejection and the same may kindly be rejected in totality. The opposite parties have denied the other contents of the complaint and prayed for dismissal of the same. Alongwith the written version, the opposite parties have placed on record policy terms and conditions Ex. OP-1, final surveyor Report Ex. OP-2, Letter sent by opposite party Ex. OP-3 to OP-7 and affidavit of Satnam Singh Ex. OP-8.

3        We have heard the Ld. counsel for the complainant and opposite parties and have gone through the record placed on the file.

4        From the combined and harmonious reading of documents and pleadings are going to prove on record that the complainant is running a small business of Sanitary and Cement articles etc. with style and name "Brick Cement & Sanitary Store" at Bus Stand Goindwal Sahib Tarn Taran and this is the sole bread earning source of the complainant. The business of the complainant was insured for theft etc. for an insurance cover of Rs. 10 Lacs. Unfortunately, on the intervening night of 27.11.2017 and 28.11.2017 some unidentified people got into the complainant's shop by demolishing the wall and took away Rs.50,000/- in cash and also took away iron box, sanitary articles and cement having a total value of Rs.05 Lakh and after coming to know about it on 28.11.2017 he tried to look for the culprits involved in it but could not find them and as such got an FIR lodged with the police station Goindwal Sahib having FIR No.155 of 2017 and also informed the opposite parties immediately after knowing about the theft to lodge a claim with them so as to receive the claim for the loss suffered by him being his business insured with those parties.  The opposite parties issued a claim number to the complainant CL17075780 against his lodgement. The complainant received Rs.2,18,773/- as partial claim amount from the opposite parties after fulfilling the formalities asked by them and told the complainant that on submitting the non-traceable report, the remaining claim amount will be released to him. The opposite parties assured that the remaining amount will be released shortly but still an amount of Rs. 3,31,227/- is pending with the opposite parties. 

5        The opposite parties have admitted the insurance of the complainant and also admitted the fact of theft but the opposite party has assessed the net loss to the tune of Rs. 2,91,951/- out of which Rs. 2,18,777/- has already been paid to the complainant. As per opposite parties they are ready and willing to suffice the remaining 25% of the net assessed loss amounting to Rs. 73,178/- as per the surveyor assessment.

6        The opposite party is admitting that there is loss to the tune of Rs. 4.48 Lacs as per the stock verification. This is admitted fact that as per the policy schedule the business of the complainant is insured for Rs. 21 Lacs, however, as per assessment value at risk amount of Rs. 27.43 Lacs. So it is very much clear from the above calculation that there is net loss of stock is Rs. 4,48,640/-. But the opposite party has calculated the net assessed loss to the tune of Rs. 2,91,951/-. However, this is alleged in the calculation table that on applying average applicable in the ratio, it was reduced to Rs. 3,43,472/- and it is not mentioned anywhere that under which policy terms and conditions it has been reduced. The amount reduced 10% for non maintenance of stock register and less 5% of policy excess is seemed to be unjustified. The above mentioned calculation is based upon the surveyor report which was appointed by the opposite party. The stand taken by the opposite party in calculating the amount revolves around the Surveyor report but on the perusal of record it is found that the said report is not supported with the affidavit of surveyor. In the absence of which no evidentiary value can be made on the report submitted by the surveyor. Reliance in this connection has been placed upon Manikant Vs. New India Assurance Co.Ltd. 1(2012) CPJ 88 (NC) of the Hon’ble National Commission wherein it has been held that the surveyor did not appear in court and subject himself to cross examination nor was any affidavit filed by him to prove his report . Producing a document in court does not by itself constitute proving the document. It has to be backed by credible evidence. In the instant case, no evidence was led to prove the surveyor’s report in the absence of which the surveyor’s report has little evidentiary value.   Therefore, the Motor Final Survey Report (Ex.OPs/2) cannot be accepted.

7        Moreover, it is usual with the insurance company to show all types of green pastures to the customer at the time of selling insurance policies, and when it comes to payment of the insurance claim, they invent all sort of excuses to deny the claim. In the facts of this case, ratio of the decision of Hon‟ble Apex Court in case of Dharmendra Goel Vs. Oriental Insurance Co. Ltd., III (2008) CPJ 63 (SC) is fully attracted, wherein it was held that, Insurance Company being in a dominant position, often acts in an unreasonable manner and after having accepted the value of a particular insured goods, disowns that very figure on one pretext or the other, when they are called upon to pay compensation. This, take it or leave it‟, attitude is clearly unwarranted not only as being bad in law, but ethically indefensible. It is generally seen that the insurance companies are only interested in earning the premiums and find ways and means to decline claims. In similar set of facts the Hon’ble Punjab & Haryana High Court in case titled as New India Assurance Company Limited Vs. Smt.Usha Yadav & Others 2008(3) RCR (Civil) Page 111 went on to hold as under:-

“It seams that the insurance companies are only interested in earning the premiums and find ways and means to decline claims. All conditions which generally are hidden, need to be simplified so that these are easily understood by a person at the time of buying any policy. The Insurance Companies in such cases rely upon clauses of the agreement, which a person is generally made to sign on dotted lines at the time of obtaining policy. Insurance Company also directed to pay costs of Rs.5,000/- for luxury litigation, being rich. 

8        In the present complaint, the complainant is alleging that Rs. 50,000/- has been stolen in the said occurrence, but the said cash amount was not insured as per the policy as such, the complainant is not entitled to Rs. 50,000/-.    

9        By withholding the partial payment of claim for a long time, the opposite party has harassed the complainant and it amounts to deficiency in service and unfair trade practice.

10      In view of above discussion, we allow the present complaint against the opposite parties and the opposite parties are directed to pay Rs. 2,81,227/- (Rs. 331227-50000=281227) to the complainant after completing the requisite formalities. The complainant has been harassed by the opposite parties. The complainant has been harassed by the opposite parties unnecessarily for a long time. The complainant is also entitled to Rs. 20,000/- as compensation on account of harassment and mental agony and Rs 11,000/- as litigation expenses. Opposite Parties are directed to comply with the order within one month from the date of receipt of copy of the order, failing which the complainant is entitled to interest @ 9% per annum, on the awarded amount, from the date of complaint till its realisation. This complaint could not be decided within prescribed period due to heavy pendency of cases in this commission and COVID-19. Copy of order be supplied to the parties free of costs as per rules. File be consigned to record room.

Announced in Open Commission.

28.03.2023