BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BHIWANI.
Complaint Case No. : 311 of 2015
Date of Institution : 09.11.2015
Date of Decision : 06.03.2020
Jagdev Kumar son of Shri Nanhar Ram resident of V&PO Behal, Tehsil Loharu District Bhiwani proprietor of Dev Trading Company near Punjab National Bank, Behal District Bhiwani.
……Complainant.
Versus
1.Universal Sompo General Insurance Company Limited (a joint Venture between Allahabad Bank) having its Regd. Office 201-208, Crystal Plaza, Opp. Infiniti Mall, Link Road, Andheri (West) Mumbai-400058 through its Managing Director.
2.Allahabad Bank, having its branch office at V&PO Behal through its Manager.
……Opposite Parties.
Complaint Under Section 12 of the Consumer Protection Act.
Before: Sh.Nagender Singh, President.
Sh.Shriniwas Kundia, Member.
Present: Sh.Sandeep Budhera, Adv. for complainant.
Sh.Balbir Sharma, Adv. for OP No.1.
Sh.N.L.Saini, Adv. for OP No.2.
ORDER
In nutshell, brief facts of the present complaint are that the complainant is sole proprietor and had obtained Cash Credit Limit of Rs.10 lakhs in the name of M/s Dev Trading Company under account No.50123233069 from opposite party No.2. The items of the shop were got insured by opposite party No.2 from opposite party No.1 vide policy No.2939/52752662/01/000 having validity from 10.l2.2013 to 09.12.2014 for a total sum assured of Rs.26 lakhs (Rs.13 lakhs under fire and allied perils building and or contents and Rs.13 lakhs for burglary and robbery). The premium of insurance was being deducted by opposite party No.2 from the account regularly. On 21.12.2013, when the complainant came to his shop in the morning, he found that lock of the shop was broken and 19 LED, 16 Washing Machine 35 Juicer Mixer, 64 Electric Press, 8 TV, 6 Sewing Machine, 6 fans and nearing about 58,000/- cash were found missing. The robbery had taken place during the intervening night of 20/21.12.2013 and regarding this FIR no.256/13 dated 21.12.2013 under Section 457/380 IPC was registered with police station Behal. Intimation regarding this was given to opposite party No.2 on 21.12.2013 and the same was also reported to opposite party No.1 on the same day. The complainant had submitted all required documents to the opposite party No.2 for settlement of claim but till 20.08.2014 no claim was registered in respect of burglary. Thereafter, opposite party No.2 deputed the surveyor who vide letter dated 08.09.2014 asked the complainant for providing of documents. The entire formalities were completed by submitting the burglary claim form on 11.12.2014 and opposite party No.2 also sent a certificate vide letter No.BR/Behal/2014-15/ADV/54 dated 17.12.2014 certifying all the documents provided by the complainant and the opposite party No.2 bank to consider insurance claim as genuine but the opposite party No.1 rejected the claim of the complainant on the ground of late intimation and non submissions of documents vide letter dated 01.05.2015. The complainant requested the insurance company and made representation to consider the claim but to no avail. The act and conduct of the opposite parties clearly amounts to deficiency in service on their part. Hence, this complaint.
2. On notice opposite parties appeared and filed their separate replies. Opposite party No.1 in its reply has submitted that there is delay of 241 days in intimation to the insurance company which is violation of condition No.1 of the policy but despite that a surveyor was deputed on receiving the claim by the complainant. During the survey, the surveyor had visited the spot and vide letter dated 15.11.2014 the complainant was requested to submit 12 documents and after that letters dated 18.11.2014, 02.01.2015 and 03.01.2015 were sent to the complainant but when the complainant did not pay any heed, therefore, claim of the complainant was rightly rejected being not maintainable. The surveyor had also submitted his report and in his report he had assessed the loss to the tune of Rs.3,77,436/-. Objections about maintainability, concealment of material facts and jurisdiction etc. have also been taken. Other contentions have been controverted and prayer for dismissal of the complaint has been made.
3. Opposite party No.2 in its reply has submitted that insurance company is liable to settle the claim of the complainant as per the terms and conditions of the insurance policy regarding the burglary took place in the firm/shop of the complainant and no legal action in the matter is required to be taken by the replying opposite party except providing information available in the case file the complainant regarding cash credit facility granted to him by the bank. Objections about maintainability, estoppal and jurisdiction etc. have also been taken. Other contentions have been controverted and prayer for dismissal of the complaint has been made.
4. Thereafter, the parties have adduced their respective evidence. The complainant in his evidence has tendered affidavit Ex.CW1/A and documents Annexure C1 to Annexure C16 and closed the evidence on 18.12.2018. On the other hand, the opposite party No.1 has tendered documents Annexure R1 to Annexure R27 and closed the evidence on 30.07.2019 whereas the opposite party No.2 has tendered affidavit Ex.RW1/A and documents Annexure RA and Annexure RB and closed the evidence on 14.02.2020.
5. We have heard learned counsel for the parties and gone through the record very carefully.
6. The sole ground of the repudiation by the insurance company in the repudiation letter Annexure R1 is that there was delay of 241 days in intimation about loss resulting into repaired/reinstated/remove the evidence of incident whereas as per clause 5A the intimation was to be submitted within 15 days of the incident. As per the complainant, on 21.12.2013 when he came to his shop in the morning, found that lock of the shop was broken and 19 LED, 16 Washing Machine 35 Juicer Mixer, 64 Electric Press, 8 TV, 6 Sewing Machine, 6 fans and nearing about 58,000/- cash were found missing. The robbery had taken place during the intervening night of 20/21.12.2013. The complainant had moved application dated 2.12.2013 Annexure C1 to the police for taking action against the culprits and on this FIR No.256/13 dated 21.12.2013 under Section 457/380 IPC, Annexure C3, was registered by police station Behal. The complainant has also moved an application dated 23.12.2013 intimating to the opposite party No.2A/Allahabad Bank regarding theft in his shop, Annexure C6.
7. In the reply the opposite party No.1/insurance company has mentioned that there is breach of policy condition No.5 (a) of claim procedure which was that in the event of any circumstances likely to give rise to a claim you must (b) intimate us as soon as reasonably possible, but in any event within 15 days of the date of the incident. The surveyor, appointed by the insurance company in his report Ex.R4 mentioned that on receipt of the instructions from the insurers on 20.08.2014 carry out survey and assessment of loss in respect of captioned claim, we immediately contacted Mr.Jagdev Kumar, the Proprietor of the insured firm. Accordingly, after coordinating with him we visited the site of loss on 22.08.2014 and commenced our survey. But perusal of the surveyor report reveals that it was submitted to the insurance company on 25.03.2014 because the insurance company has affixed its stamp in token of receipt of report on 25.03.2014. It is strange that if the surveyor was visited the premises of the complainant on 22.08.2014 then from whom the insurance company has received the report on 25.03.2014. Another strange factor which this Forum has noticed that surveyor in his report has mentioned report No.6010 dated 24.03.2015 and regarding this report the surveyor has placed his affidavit on the case file but the same has not been tendered in evidence in support of his report wherein it has been mentioned that the surveyor has submitted his report No.6016 dated 24.03.2015 to the insurance company. In the present case, the theft had occurred during the intervening night of 20/21.12.2013 i.e. during the subsistence of the policy and regarding this the complainant has immediately intimated the police, which registered FIR No.256/13 dated 21.12.2013 under Section 457/380 IPC at police station Behal and the complainant had also intimated the opposite party No.2 on 23.12.2013 which had further informed the insurance company on 26.12.2013 (Annexure RA), therefore, it is not understandable as to how the insurance company has reached at the conclusion that there was delay of 241 days in intimation to the insurance company. At the time of arguments, learned counsel for the opposite party No.2 moved an application for leading additional evidence, which was allowed and the opposite party No.2 has placed on case file affidavit of Sh.Daljit Singh, Branch Manager, Ex.RW1/A alongwith documents Annexure RA and Annexure RB. As per Annexure RA, the opposite party No.2, had intimated the insurance company/opposite party No.1 regarding the theft in the shop of the complainant and that intimation was sent through registered post by spending Rs.29/- as postal charges and regarding this he has placed the copy of register maintained by the opposite party No.2 in normal course of business. The act and conduct of the insurance company shows that with a view to escape and avoiding its legal and factual liabilities to make the payment of sum assured the insurance company is acting in dramatical, opposite of the principle of fair play and decency. In the present case in stead of acting fairly the insurance company is trying to avoid from his liability by making one pretext or the other, which cannot be allowed to do so. Going through the whole record available on file, this Forum is of the considered opinion that inspite of completion of all requisite formalities, opposite party has not settled the claim which amounts to deficiency in service on the part of insurance company. The complainant had lodged claim with the opposite party No.2 and the same was forwarded to the opposite party No.1 immediately by it, therefore, the complaint against opposite party No.2 is hereby dismissed. The present case is squarely covered by the laid down in case law titled as Gurshinder Singh Vs. Shri Ram General Insurance Company decided by the Hon’ble Supreme Court of India on 24.01.2020 in Civil Appeal No.653 of 2020 relied upon by learned counsel for the complainant.
8. The surveyor in his report Ex.R4 has assessed the net loss to the tune of Rs.3,77,436/-. The surveyor is an independent person. So, this report of surveyor is taken into consideration for deciding the compensation amount in the complaint and on this point reliance can be taken from case laws titled as Davender Malhotra Vs. United India Insurance Company Limited & Another 2016 (3) CLT 525 (NC) and Jose Manuel De Souza Vs. New India Assurance Company Limited 2016 (4) CLT (Goa State Consumer Disputes Redressal Commission) 171 wherein it has been held that It is an established legal proposition that the report made by the surveyor, who is a professional in his field, cannot be disbelieved, unless there are cogent and convincing reason to do so. Since there is nothing on record to brush aside the report of the surveyor, therefore, this Forum has left with no other option but to rely upon the report of surveyor.
9. Thus, in view of above discussion, we allow the complaint and direct the opposite party No.1/insurance company to pay Rs.3,77,436/- as assessed by the surveyor to the complainant alongwith interest @ 9 % from the date of filing of the complaint till its realization and further to pay Rs.10,000/- as lump sum compensation on account of harassment, mental agony and costs of litigation charges. Order be complied within 45 days from the date of order. Copy of the order be sent to the parties concerned, free of costs, as per rules. File after due compliance be consigned to record room.
Announced in open Forum.
Dated: - 06.03.2020.
(Shriniwas Khundia) (Nagender Singh)
Member President,
District Consumer Disputes
Redressal Forum, Bhiwani.
