Punjab

Ludhiana

CC/15/95

Raj Kumar - Complainant(s)

Versus

Universal Sompo Gen.Ins.Co.Ltd - Opp.Party(s)

Ripun Kumar Adv.

20 Jan 2017

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA.

                                                           

Consumer Complaint No.95 of 12.02.2015

Date of Decision          :   20.01.2017

 

Raj Kumar, Prop. M/s R.S. Forg, Street No.1, Samrat Colony, Industrial Area-C, Giaspura, Ludhiana.                                                      ….. Complainant

Versus 

1.Universal Sompo General Insurance Company Limited, having its registered office at Unit No.401, 4^th Floor, Sangam Complex, 127, Andheri Kurla Road, Andheri (East), Mumbai-400059, through its Director/M.D./Authorized representative.

2.Universal Sompo General Insurance Company Limited, SCO 10-11, 5^th Floor, Feroze Gandhi Market, Ludhiana, through its Manager/Authorized representative.

3.Allahabad Bank, B-2677, Rahon Road, Sunder Nagar, Ludhiana, through its Manager.

..…Opposite parties

 

 (COMPLAINT U/S 12 OF THE CONSUMER PROTECTION ACT, 1986)

 

QUORUM:

SH.G.K.DHIR, PRESIDENT

SH.PARAM JIT SINGH BEWLI, MEMBER

COUNSEL FOR THE PARTIES:

For Complainant              :         Sh. Balraj Singh, Advocate      

For OP1 and OP2            :         Sh. Rajeev Abhi, Advocate

For OP3                           :         Complaint dismissed vide orders dated                                                            18.11.2015

ORDER

PER G.K. Dhir, PRESIDENT

1.                 Complaint under Section 12 of the Consumer Protection Act (hereinafter referred as Act) filed by complainant by pleading that he being Proprietor of M/s. R.S. Forg, having office in Street No.1, Samrat Colony, Industrial Area-C, Giaspura, Ludhiana got insured stock of his firm consisting of forging items, raw material with OP1 and OP2 vide insurance policy No.2913/51393712/01/000 with validity from 13.05.2012 to midnight of 12.05.2013. On 07.01.2013 at about 10.00 PM, complainant locked his factory premises, but when on next morning he came, then he found as if during night intervening between 07/08.01.2013 a theft was committed in the factory premises. Intimation of this theft through telephone call was given to Ops on the same day. Even complainant personally visited office of OP2. FIR No.9 dated 08.01.2013 under Section 457 and 380 IPC was got registered with Police Station Focal Point, Ludhiana regarding this theft. After receipt of copy of FIR, complainant approached Ops along with relevant documents. Ops got lodged the claim of the complainant and assured that signature of the claimant will be got after completion of all formalities. Even complainant was disclosed that disbursal of claim will take place soon. Complainant also submitted estimate report of stolen material. Thereafter, complainant approached Ops many times for getting the claim amount, but Ops procrastinated the matter. Despite writing of various letters and sending emails, claim amount not disbursed to complainant. However, a false and frivolous letter has been received by complainant from Ops for informing that address, where the loss occurred is different from the address given in the policy and as such, claim not payable. By pleading deficiency in service on the part of Ops and after serving legal notice dated 19.12.2014 through counsel, this complaint filed for seeking direction to Ops to release the insurance claim amount.  Compensation for mental harassment, pain and sufferings of Rs.2,00,000/- along with litigation expenses even claimed.

2.                 In joint written statement filed by OP1 and OP2, it is claimed as if complaint barred in view of section 26 of Consumer Protection Act; complainant estopped by his own act and conduct from filing the complaint; complainant has not approached the Forum with clean hands because he has suppressed the material facts; Shri Raj Kumar has no locus standi to file the complaint and in view of the involvement of complicated questions of law and facts, matter can be adjudicated by Civil court of competent jurisdiction after appreciation of elaborate evidence required to be adduced by the parties. It is claimed that the policy was purchased for insuring the goods consisting of forging items and raw material lying in the insured premises bearing No.B-XXIX-452, 2L 6D 2-1A, St. No.1, Samrat Colony, Industrial Area-C, Giaspura,  Ludhiana only. Coverage under the policy is subject to excess of 5% of the claim amount and also subject to minimum of Rs.2,500/- each and every loss. Complainant lodged claim with OP on 11.02.2013 in respect of the alleged burglary loss occurred on 07/08.01.2013 in premises of M/s. R.S. Forg situate at St. No.1, Samrat Colony, Industrial Area-C, Sua Road, Giaspura, Ludhiana. M/s. Puri Crawford Insurance Surveyors and Loss Assessors India Pvt. Ltd. were appointed, who personally inspected the premises, where alleged burglary took place. Said surveyor submitted report that loss took place in premises M/s. R.S. Forg, St. No.1, Samrat Colony, Industrial Area-C, Sua Road, Giaspura, Ludhiana, whereas the insurance policy was obtained with respect to premises of bearing No.B-XXIX-452, 2L 6D 2-1A, St. No.1, Samrat Colony, Industrial Area-C, Giaspura,  Ludhiana. In that report of 23.07.2013, it was clearly mentioned that insured is running factory located at above referred two addresses. The details of insured premises even were given in para no.3.02 and 3.03 of the policy. After receipt of the report of said surveyor, scrutiny of the claim file took place and thereafter, on application of mind, claim was repudiated  vide letter dated 29.08.2013 on the ground that affected loss location not covered under the policy. In view of this, it is claimed that there is no deficiency in service or negligence on the part of Ops because claim was duly repudiated as per terms and conditions of the policy. Each and every other averment of complaint denied by defending the repudiation order.

3.                 Complaint against OP3 was dismissed vide orders dated 18.11.2015 on the basis of application filed by OP3.

4.                 The complainant to prove his case tendered in evidence his affidavit Ex. CA along with documents Ex.C1 to Ex. C13 and thereafter, his counsel closed evidence.

5.                 On the other hand, counsel for OP1 and OP2 tendered in evidence affidavit Ex. RA and Ex. RB of Sh. Piyush Shanker, Legal Officer and Sh. Munish Prashar, Deputy CEO of M/s. Puri Crawford Insurance Surveyors and Loss Assessors India (P) Ltd.  along with documents Ex. R1 to Ex. R49 and thereafter, closed evidence.

6.                 Written arguments submitted by counsel for OP1 and OP2 and not by complainant. Oral arguments of both counsel for parties heard. Records gone through carefully.

7.                 It is vehemently contended by counsel for complainant that despite sending of legal notice Ex. C1 through postal receipts Ex. C2 to Ex. C4, reply was not sent by Ops and as such, virtually contents of the complaint and of the notice admitted by the Ops. That submission of counsel for complainant has no force because terms and conditions of insurance policy are binding on the parties and nothing can be added or subtracted thereto. Moreover technicalities of law not to impede the process of administration of justice. It is for the complainant to prove that the premises wherefrom the loss took place were actually got insured. That proof has not been adduced and as such, non submission of reply to legal notice Ex. C1 cannot be taken as a ground for granting relief.

8.                 As per law laid down in cases Avon Organics Vs New India Assurance Co. Ltd. and another I(2016) CPJ 40 (NC); Orient Clothing Company Pvt. Ltd. Vs Bajaj Allianz General Insurance Co. Ltd. (IV(2015) CPJ 364 (NC); Naresh Cloth Stores Vs New India Assurance Company Limited and another III(2015) CPJ 213 (NC); Ashik Jitendra Bhuta Vs Oriental Insurance Co. Ltd. II(2015) CPJ 736 (NC); V.K. Kariyana Store Vs Oriental Insurance Co. Ltd. and another III(2014) CPJ 182 (NC); Soniya Fabrics Pvt. Ltd. Vs Central Bank of India Ltd. and others III(2014) CPJ 196 (NC); Sri Vasavi Enterprises Vs Royal Sundaram Alliance Insurance Co. Ltd. and another II(2008) CPJ 302 (Karnataka State Consumer Disputes Redressal Commission, Bangalore) and Choice Shoe Mart Vs New India Assurance Co. Ltd. And another IV(2008) CPJ 66 (Maharashtra State Consumer Disputes Redressal Commission, Mumbai), insurance company liable to pay claim for loss or damage to the material lying in the insured premises only. In case location of the insured premises  changed without  intimation to insurance company or without getting the changed premises insured, then insurance company will not be liable. So for finding as to whether the premises where the loss on account of theft took place is the insured premises or not, we have to go through the produced evidence.

9.                 Ex. C5 is the copy of FIR lodged with respect to theft of material lying in the premises of M/s. R.S. Forg situate on Sua Road. However, the burglary claim form Ex. C7 discloses as if loss took place in premises of R.S. Forg, St. No.1, Samrat Colony, Industrial Area-C, Sua Road, Ludhiana. So insurance claim lodged with respect to the premises situate in Street No.1, Samrat Colony, Industrial Area-C, Sua Road, Ludhiana and intimation of said loss given to the police with respect to these premises only. Above referred address of complainant concern even recorded on the letter head Ex. C9. However, Burglary Policy Schedule Ex. C10 i.e. the insurance cover note refers the address of insured as bearing No.B-XXIX-458, 2 L 6-D 2-1A, St. No.1, Samrat Colony, Industrial Area-C, Giaspura,  Ludhiana. Mention of insured location situate at Sua Road not at all made in insurance cover note Ex. C10. Statement of Raj Kumar, Proprietor of R.S. Forg concern Ex. R46 was recorded on 14.02.2013 by the surveyor. Perusal of that statement reveals that Raj Kumar himself admitted as if he started work of R.S. Forg firm in November 2009 at address bearing No.B-XXIX-458, 2L 6D 2-1A, St. No.1, Samrat Colony, Industrial Area-C, Giaspura,  Ludhiana. As per this Ex. R46 complainant claimed as if he is carrying on the work of turning at this location. Further through Ex. R46, complainant claimed that he is carrying on the work in second premises of M/s. R.S. Forg, St. No.1, Samrat Colony, Industrial Area-C, Giaspura, Ludhiana. Through this statement Ex. R46, complainant further claimed that on night of 07.01.2013 he after closing the gate of the factory premises locked the same, but on next morning he found theft of the material committed by someone in premises of factory unit having location M/s. R.S. Forg, St. No.1, Samrat Colony, Industrial Area-C, Giaspura, Ludhiana. So when contents of statement Ex. R46 read as a whole, then they establishes beyond doubt that complainant having two premises for carrying on the business under name and style of M/s. R.S. Forg. In one of the locations St. No.1, Samrat Colony, Industrial Area-C, Giaspura, Ludhiana  work of turning is carried out, but in the other premises of same named concern, work of forging is carried out. The concern where the work of forging carried out is St. No.1, Sua Road. So contents of Ex. R46 itself establishes that complainant carried on the work of turning and forging in two separate locations. Theft took place in the premises situate at Sua Road is a fact borne from contents of Burglary Claim Form Ex. C7 and copy of FIR Ex. C5. However, insured premises are situate in Industrial Area-C, Giaspura, Ludhiana bearing No.B-XXIX-458, 2L 6D 2-1A, St. No.1, Samrat Colony. So it is obvious that the premises where the loss on account of theft took place is different location than that of the location with respect to which the insurance cover note Ex. C10=Ex. R1 obtained by complainant from Ops. Statement Ex. R46 is signed by complainant Raj Kumar as Proprietor of M/s. R.S. Forg and as such, submission of counsel for complainant has no force that this statement Ex. R46 being not signed by complainant has no value. It is on the basis of this statement Ex. R46 and the other collected material that report submitted by the surveyor as if the insured premises are different than that of the premises where the loss on account of theft took place.

10.               In proposal form Ex. R3 submitted by the complainant mention of the premises sought to be insued disclosed as situate at Sua Road is not at all made. As such findings recorded in Ex. R5 to Ex. R7 and Ex. R10 qua carrying on the business of M/s. R.S. Forg in two premises are correct findings. Reference to Clause 3.2 of Ex. R10 when made, then same shows that correct findings recorded by the surveyor. Ex. R11 to Ex. R16 are the photographs of the premises where loss took place, but Ex. R17 or Ex. C5 is copy of FIR.  Ex. R19 and Ex. R20 are the paper clippings whereas Ex. R21 to Ex. R29 is the record of turnover of M/s. R.S. Forg. That record is not much material for finding as to whether the insured premises are the premises where from theft actually took place. Same is the position with respect to the records of VAT-15 forms etc. placed on record as Ex. R31 to Ex. R33 or the bills Ex. R34 to Ex. R44. As the location of the premises, wherefrom theft took place is different than that of the insured premises as held above and as such, repudiation of the claim is duly justified. So there is no deficiency in service on part of Ops.

11.               As a sequel of above discussion, complaint dismissed without any order as to costs. Copies of order be supplied to parties free of costs as per rules. File be indexed and consigned to record room.

                                         (Param Jit Singh Bewli)                      (G.K. Dhir)

                                         Member                                              President

Announced in Open Forum.

Dated:20.01.2017.

Gobind Ram.