Haryana

Ambala

CC/59/2020

Ranjit Singh - Complainant(s)

Versus

Universal Sompo General Insurance Co Ltd. - Opp.Party(s)

Deepak Saini

06 Feb 2023

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, AMBALA.

Complaint case no.	:	59 of 2020
Date of Institution	:	26.02.2020
Date of decision	:	06.02.2023

 Ranjit Singh, aged about 40 Yrs, s/o Sh. Roshan Lal, R/o village Thana Chapper, Tehsil Jagadhari, Distt. Yamuna Nagar, C/o SMS College, Barara, Tehsil Barara, Distt. Ambala

          ……. Complainant.

                                                Versus

1. Universal Sompo General Insurance Company Ltd. registered and Corporate office Unit-401, 4th Floor Sangam Complex, 127, Andheri Kurla Road, Andheri East Mumbai-400069 Maharastra, through its Chairman.
2. Universal Sompo General Insurance Company Ltd, Chandigarh/ Panchkula Branch office SCO-9, First Floor, above Central Bank of India, Sec.10, Panchkula (Haryana)-134109 through its Branch Manager.
3. Allahabad Bank, Branch Barara near Govt. Model Sr. Sec. School, Barara, Distt. Ambala through its Branch Manager

                                                                                   ….…. Opposite Parties

Before:        Smt. Neena Sandhu, President.

                             Smt. Ruby Sharma, Member,

          Shri Vinod Kumar Sharma, Member.           

 

Present:       Shri Deepak Saini, Advocate, counsel for the complainant.

                          Shri Mohinder Bindal, Advocate, counsel for the OPs No.1 and 2.   

                       None for the OP No.3.

Order:        Smt. Neena Sandhu, President.

1.                Complainant has filed this complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) against the Opposite Parties (hereinafter referred to as ‘OPs’) praying for issuance of following directions to them:-

(i) To pay Rs.9,00,000/- i.e. insurance claim amount against the policy bearing no.2939/56055684/03/BOO Shopkeeper Package Policy Schedule.

(ii) To pay Rs.50,000/- to the complainant on account of mental and physical harassment due to the deficiency in service and maltrade practice committed by the OPs.

(iii) To pay Rs.20,000/- as litigation expenses to the complainant.

(iv) Or grant any other relief which this Hon’ble Commission may deem fit.

2.             Brief facts of the case are that the complainant is running a canteen in SMS College, Barara, Distt. Ambala on contract basis since 2015 for his livelihood. The complainant took a loan for the purpose of running his canteen from O.P.No.3 with a limit of Rs.3,00,000/-. OP No.3 persuaded the complainant that it is mandatory to insure the canteen. On persuasion of O.P.No.3, the complainant got insured his canteen from OPs No.1 and 2 by paying the premium of Rs.2124/-. The total insured sum was Rs.10,00,000/-. OPs No.1 and 2 issued policy bearing no.2939/56055684/03/B00 dated 16.4.2019 for a period of one year i.e. 11.4.2019 to 10.4.2020. The name of the Allahabad Bank had been shown as intermediary name on the policy. The name of the policy was Shopkeeper Package Policy. The envisaged risks covered under the policy were fire and allied perils-building and contents with sum insured of Rs.5,00,000/- and the items covered under this coverage section were confectionary and Karyana refresh items like Ice cream, Cold Drinks, Potatoes and in coverage section 'II' burglary and robbery sum insured was Rs.5,00,000/- and the items covered under this coverage section were confectionary and Karyana refresh items like Ice cream, Cold Drinks, Potatoes. The job of the complainant was to sell the packaged items and to sell the eatable items prepared by him in the canteen to the students, teachers, visitors and other staff of the college. The college management also used to take the services of the complainant to prepare the refreshment and to serve the same at various occasions and functions of the college. As per the conditions of OPs, the complainant regularly submitted the monthly stock statements with O.P.No.3 without any lapse and delay. On 25.10.2019 when the complainant went to his home after closing the canteen at about 5.00 p.m., he received a phone call and was told that the canteen caught Fire and when he reached the canteen, he found that people were gathered there and trying to extinguish the fire and a police PCR was also present at the spot. When the fire could not be controlled, Fire Brigade was called by the police who fought with the fire hardly only then the fire could be controlled till 9.00 p.m. The cause of the fire was the short circuit, which damaged all the electric appliances like fridge, deep fridger, mixer grinder, fans, Chimni, furniture and except this all the stock of packaged eatable items and other raw materials like Karyana items, Bakery items, Biscuit, Namkeen, Confectionary Items, milk and vegetables etc. which was estimated as more than Rs.11,00,000/- was also damaged in the said fire accident. The complainant lodged DDR dated 26.10.2019 in the police station.-Barara regarding the fire accident. The fire service department also prepared its fire report vide its memo FSA/19/665 dated 6.11.2019. The complainant also reported about the fire accident to the OPs immediately and requested to pass his insurance claim against the damage caused due to the fire accident. OPs No.1 and 2 appointed Sh.N.S.Sandhu, C.A. consolidated insurance Surveyor and Loss Assessor Pvt. Ltd. as surveyor in the claim case of the complainant to assess the losses of the complainant in the said fire accident. The complainant moved his claim of Rs.9,00,000/- approximately i.e. damage of Karyana items of Rs.5,00,000/- and confectionary items of Rs.4,00,000/- before the said surveyor and filed all the relevant and required documents, statements and bills before the surveyor. OPs No.1 and 2 passed the claim of the complainant only for Rs.1,04,000/- against the actual damage of Rs.9,00,000/- approximately in the said fire accident which is much less than the actual damage/loss of the complainant. The OPs No.1 and 2 transferred Rs.90,421/- in the bank account no.50314591392 of the complainant for the insurance claim. The complainant again moved a representation before O.P.No.2 to reconsider his claim and to pass his claim as per his actual loss/damage in the said fire accident but to no avail. The business carrier of the complainant has been destroyed in the said fire accident which caused loss more than Rs.11,00,000/- to the complainant and the family of the complainant is starving. O.P.No.3 is insisting and pressurizing the complainant for recovery of the loan amount but the complainant is unable to pay the loan amount due to the above mentioned losses which has not been properly compensated by OPs No.1 and 2. Hence, the present complaint.
3.           Upon notice, OPs No.1 and 2 appeared and filed written version and raised preliminary objections with regard to maintainability, not come with clean hands and barred by limitation etc. On merits, while admitting the factual matrix of the case with regard to issuance of the policy in question in respect of the canteen of the complainant, as mentioned in the complaint, it has been stated that immediately on the receipt of the claim it was duly registered, entertained and processed. The insurance policy is a contract in itself and the parties are bound by the terms and conditions of the policy. Under the heading 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........." An Independent IRDA approved surveyor and loss assessor was appointed to assess the loss, who visited the insured premises of the complainant on 28/10/2019 for physical inventory and to survey the loss and damage caused by fire at insured premises on 25/09/2019 at about 05:00 PM. The said surveyor took the photographs, documents supplied by complainant etc and on the basis of the information available, he had prepared his report dated 01/06/2020 assessing the loss to the tune of Rs.92,663/- under his signatures and submitted the same with OPs No.1 and 2 as well as complainant. Bifurcation and basis of assessment provided by Surveyor in his report are provided as below-
   1. Insured had only provided the purchases only of April, 2018 and had also confirmed in his written statement that no further purchases from May 2018 till date of loss were made, henceforth Stock at risk is considered to be of Rs. 3,05,586/- only.
   2.  75% depreciation is to be deducted as the goods are often rented, so the value of goods decreases very rapidly.
   3. Good stock, less depreciation came to  Rs.1,58,925/-.
   4. Loss assessed was Rs.1,02,663/- and the final liability was assessed to the tune of Rs.92,663/-.

On receipt of Final survey report by OPs No.1 and 2, they were ready and willing to pay amount to the tune of Rs.92,663/- as per Surveyor Assessment however complainant failed to provide his consent for settlement of claim due to which claim of complainant was subsequently closed. Rest of the averments of the complainant were denied by the OP No.1 and 2 and prayed for dismissal of the present complaint with costs.

4.           Upon notice, OP No.3 appeared and filed written version, wherein it has been admitted that that limit amount granted to complainant was Rs. 3,00,000/-, for which the stocks were hypothecated. The monthly stocks statements are regularly submitted by the complainant. OP No.3 has never issued any notice or instructions in writing to the complainant about the recovery of the loan, however, the loan recovery is necessary to the bank. Rest of the averments of the complainant were denied by the OP No.3 and prayed for dismissal of the present complaint.
5.           Complainant tendered his affidavit as Annexure CA alongwith documents as Annexure C-1 and C-55 and closed the evidence of the complainant. Learned counsel for the OPs No.1 and 2 tendered affidavit of Shri Kunal Mulik, Authorized Signatory, Universal Sompo General Insurance Co. Ltd., Registered Office, MIDC, Mahape, Navi Mumbai and Shri N.S. Sidhu, Surveyor and Loss Assessor & Director M/s Consolidated Surveyors Pvt. Ltd. having its office at # 171, Sector 36A, Chandigarh as Annexure OP-A & OP-B alongwith documents Annexure OP-1 to OP-5 and closed the evidence on behalf of OPs No.1 and 2. As OP No.3, failed to tender evidence despite availing number of opportunities, therefore, its evidence was closed vide order dated 04.01.2023.
6.           None put in appearance on behalf of OP No.3 for arguments, therefore, this Commission heard arguments of the learned counsel for the complainant and learned counsel for OP No.1 and 2 and have also carefully gone through the case file.
7.           Learned counsel for the complainant submitted that the surveyor has wrongly assessed the claim as he had deducted substantial amount from the claim amount. The complainant supplied all the requisite documents to the OPs No.1 and 2 yet they closed his claim file illegally.
8.           On the other hand, learned counsel for OP No.1 and 2 submitted that the claim amount to the tune of Rs.92,663/- was rightly assessed by the surveyor, which was payable, strictly as per terms and  conditions of the policy in question. He further submitted that the complainant neither provided the necessary documents nor gave consent for the payment of the claim amount, as such, OPs No.1 and 2 were neither deficient in providing service nor indulged into unfair trade practice.
9.           It is an admitted fact that complainant had taken the policy in question from the OPs No.1 and 2, vide policy schedule Annexure C-1. We have gone through the policy document Annexure C-1 and found that the policy in question was a “Shopkeepers Package Policy” under which the complainant has got insured the items detailed in Annexure A i.e. confectionary and kirana refreshments items like ice cream, cold drinks, biscuits etc. towards fire and allied perils building and/or contents for sum insured to the extent of Rs.5 lacs. Similarly, the complainant under the said policy has also got insured the above said goods specified in Annexure B for the sum insured of Rs.5 lacs against Burglary and Robbery. However, since the dispute raised by the complainant is qua the goods damaged in the fire which took place on 25.10.2019 i.e. during subsistence of the said policy, as such, only the sum assured under Annexure A to the extent of Rs.5 lacs has to be taken into consideration for coming to any conclusion in the present case.
10.           There is no dispute with regard to genuineness of the fire incident which took place at the insured premises of the complainant. The plea of the complainant is that the quantum of claim assessed by the surveyor to the tune of Rs.90,500/-  against the sum insured of Rs.5 lacs is very meager. Counsel for OPs No.1 and 2 placed heavy reliance on the surveyor report dated 25.11.2019, Annexure OP-4 and contended that the amount of Rs.90,500/- has been rightly assessed by the Surveyor towards the loss suffered by the complainant in the said fire. It is significant to mention here that we have gone through the said surveyor report and found that there are many flaws therein and fickle opinions have been given by him in his report merely on surmises and conjectures such as:-
    1. the estimate of loss of stock submitted by the complainant  is highly exaggerated and unrealistic in view of the volume of burnt stock and in view of general business trend and volume of sale of the insured;
    2. the quantities claimed by the insured cannot be stored in the canteen area where fire took place;
    3. the insured was not maintaining books of accounts and stock record;
    4. the stock statement submitted to the bank by the insured has no authenticity;
    5. it appears that the bank is not carrying out physical verification of the stock;
    6. the insured is also working as caterer and must have consumed the items in his catering business otherwise such a heavy purchase is not required at the canteen;
    7. the turnover of the insured also does not justify the loss claimed by the insured, as no prudent person will carry the stock equivalent to one year sale to carry on canteen business etc. etc.

 

11.           First coming to the opinion of the surveyor to the effect that the insured has submitted highly exaggerated and unrealistic estimate of loss of stock, in view of the volume of burnt stock and in view of general business trend and volume of sale of the insured because the quantities claimed by the insured cannot be stored in the canteen area where fire took place, it may be stated here that this opinion is imaginary and cannot be considered in the absence of any evidence in that regard especially in the face of the fact that OPs No.1 and 2 themselves have insured the articles lying the insured premises for a sum of Rs.10 lacs, in the manner stated above, on receipt of premium from the  complainant. At the same time, the complainant has placed on record the Stock Statement Annexure C-12 to C-16 for the period from 17.05.2019 to 17.10.2019 duly stamped by OP No.3-Bank, with which the said items were hypothecated;  showing that the stock ranging between Rs.8 to 11 lacs were kept in the insured premises by the complainant. It is settled law that where the bank with which the stocks had been hypothecated has authenticated the stock on monthly basis, the same cannot be negated by the insurance company. It was so observed by the Supreme Court in New India Assurance Company Ltd. Vs. Luxra Enterprises Pvt. Ltd. (2019) 6 SCC 36 (paragraph-21)  wherein, the Hon’ble Supreme  Court has given a great importance for not doubting the verification of hypothecated stock by the bank in insurance cases. Thus, in the present case, the surveyor’s report to the extent  of doubting the authenticity of the stock statements submitted with OP No.3 by the complainant is also erroneous.
12.           Now coming to the opinion of the surveyor that the insured was not maintaining books of accounts and stock record as the same were not provided to him, it may be stated here that not even a single document has been placed on record by OPs No.1 and 2 to prove that despite making request to the complainant to provide books of account and stocks including the purchase bills etc. he failed to provide the same. On the other hand, the complainant has placed on record documents Annexure C-2 to C-55, which proves that each and every documents, including detailed statement of time and cause of fire; copy of fire brigade report, Pan card and aadhar card;  copies of purchase bills for verification of rates claimed; copies of monthly stock statements; valuation of total stock of confectionary and karyana items; bank account mandate form alongwith cancelled cheque etc. were provided by him to the said Surveyor vide letter Annexure C-2. Thus, the surveyor report to this extent is also erroneous.
13.           Now coming to the next opinion of the surveyor to the effect that the stock statement submitted to the bank by the insured has no authenticity and  it appears that the bank is not carrying out physical verification of the stock, it may be stated here that this opinion of the surveyor is also not supported by any evidence. On the other hand,  as stated above, the complainant has placed on record the Stock Statement Annexure C-12 to C-16 for the period from 17.05.2019 to 17.10.2019 duly stamped by OP No.3-Bank, with which the said items were hypothecated;  showing that the stock ranging between Rs.8 to 11 lacs were kept in the insured premises by the complainant. These stock statements have gone unrebutted by OPs No.1 and 2 nor the same have been denied by OP No.3. Under these circumstances, it can easily be said that the opinion given by the surveyor to the effect that  the stock statement submitted to the bank by the insured has no authenticity and  it appears that the bank is not carrying out physical verification of the stock does not merit acceptance.
14.           As far as opinion given by the surveyor to the effect that the insured is also working as caterer and must have consumed the items in his catering business otherwise such a heavy purchase is not required at the canteen and that the turnover of the insured also does not justify the loss claimed by the insured, as no prudent person will carry the stock equivalent to one year sale to carry on canteen business, it may be stated here that this opinion of the surveyor is also based on imagination as no evidence in that regard has been placed by him alongwith his report. It is therefore held that there are many flaws in the surveyor's report and as such the same is not binding upon the complainant. The Hon'ble Supreme Court reported in (2009) CPJ 46 (SC) titled "New India Assurance Company Limited v. Pardeep Kumar" has held that that surveyor's report is not the last and final word. It is not that sacrosanct that it cannot be departed from it is not conclusive. The approved surveyor's report may be basis or foundation for settlement of a claim by the insurer in respect of the loss suffered by the insured but surely such report is neither binding upon the insurer nor insured.
15.           Thus, since it is the case of fire in the insured premises, as such, the case of the complainant falls under Annexure-A of the policy in question i.e. fire and allied perils building and/or contents, for which the sum insured was to the extent of Rs.5 lacs, as such, we are of the considered opinion that if we award a lumpsum amount equal to 95% of the sum insured of Rs.5 lacs (Sum insured) i.e. Rs.4,75,000/- to the complainant i.e. keeping in mind the deduction of 5% towards policy excess clause that  will meet the  ends of justice. 
16.           Because no deficiency in service or unfair trade practice has been proved on the part of OP No.3-Bank therefore the complaint filed against it is liable to be dismissed.
17.           In view of the aforesaid discussion, we hereby dismiss the present complaint against OP No.3 and allow the same against OPs No.1 & 2 and direct them, in the following manner:-
    1. To reimburse/pay claim amount to the tune of Rs.4,75,000/-  to the complainant alongwith interest @4% p.a. w.e.f 26.02.2020, i.e the date of filing of the complaint, till its realization.  
    2. To pay Rs.5,000/- as compensation for the mental agony and physical harassment suffered by the complainant.
    3. To pay Rs.3,000/- as litigation costs.

The OPs No.1 and 2 are further directed to comply with the aforesaid directions within the period of 45 days from the date of receipt of the certified copy of this order, failing which the aforesaid entire amount shall entail penal interest @ 6% per annum, from the date of default, till realization. Certified copies of the order be sent to the parties concerned as per rules.File be annexed and consigned to the record room.

 Announced:- 06.02.2023

 

(Vinod Kumar Sharma)	(Ruby Sharma)	(Neena Sandhu)
Member	Member	President