State Consumer Disputes Redressal Commission
S.R.Sales vs Icici Lombard General Insurance ... on 4 September, 2018
FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
First Appeal No.298 of 2018
Date of Institution : 21.05.2018
Order Reserved on: 24.08.2018
Date of Decision : 04.09.2018
S.R. Sales, Samsung Smart Cafe, Adjoining Sportking Showroom,
Roxy Road, Sunami Gate, Sangrur through its proprietor Munit
Kumar.
.....Appellant/complainant
Versus
ICICI Lombard General Insurance Company Limited, Branch Office
Kaula Park, Sangrur, through its Branch Manager.
.....Respondent/opposite party
First Appeal against order dated
07.09.2017 passed by the District
Consumer Disputes Redressal Forum,
Sangrur.
Quorum:-
Shri J. S. Klar, Presiding Judicial Member
Smt. Kiran Sibal, Member Present:-
For the appellant : Sh. Munish Goel, Advocate For the respondent : Sh. Rajneesh Malhotra, Advocate ............................................ J.S. KLAR, PRESIDING JUDICIAL MEMBER :-
Challenge in this appeal by appellant is to order dated 07.09.2017 of District Consumer Disputes Redressal Forum Sangrur (in short the 'District Forum'), dismissing the complaint of the appellant. The appellant of this appeal is complainant in the complaint before the District Forum and respondent of this appeal is opposite party (OP) therein and they be referred as such hereinafter for the sake of convenience.First Appeal No.298 of 2018 2
2. The complainant filed the complaint u/s 12 of the Consumer Protection Act, 1986 (in short, "the Act") against OPs on the averments that it availed the services of the OP in the month of November 2015 by getting insured his stock of Samsung Mobiles for an amount of Rs.72,50,000/-, vide policy bearing number 4017/110085301/00/000 for the period from 23.11.2015 to 22.11.2016 under merchant cover policy by paying the requisite premium of Rs.9202/- and the loss under the policy was covered, such as, due to theft, burglary and fire etc. On 27.11.2015 at about 10.00 AM, when the complainant reached his shop, he found that the shutter of the shop was broken and after opening the shutter, he found that about 110 new mobile phones along with Rs.18,000/- in cash have been stolen therefrom. FIR number 344 dated 27.11.2016 was got registered with the police of PS City Sangrur and complainant also intimated the OP immediately about the above loss. The OP appointed surveyor M/s. Puri Crawford Surveyor and Loss Assessor for assessing the loss. After inspection, the said surveyor assessed the loss to the tune of Rs.15,52,971/- plus Rs.18,000/- in cash. When complainant approached OP in this regard, it stated to complainant that the surveyor assessed the loss to the tune of Rs.12,48,190/- only, which was transferred in its account through NEFT and withheld the amount of Rs.3,22,781/- without any reason, which was due to complainant. The complainant alleged deficiency in service on the part of OP and prayed for remaining claim amount of Rs.3,22,781/- along with interest @ 18% First Appeal No.298 of 2018 3 per annum from the date of theft i.e. 27.12.2015 till realisation and further claimed compensation of Rs.1,00,000/- for mental torture, agony and harassment and Rs.25,000/- as litigation expenses.
3. Upon notice, OP appeared and filed written reply by raising preliminary objections that the complaint is false, frivolous, vague and vexatious in nature and has been filed to injure the reputation of the OP, as it had already paid an amount of Rs.12,48,190/-to the complainant, as assessed by the surveyor and the complainant also executed the discharge-cum-satisfaction voucher dated 13.06.2016 and declaration-cum-undertaking accepting the amount of Rs.12,50,000/- in full and final settlement of its claim. The complainant is not the consumer of OP, as he already received the settled claim amount. The complaint was contested by OP even on merits. It was admitted that the complainant got the insurance policy from the OP, but it was denied that the complainant suffered a loss of Rs.15,52,971/- on account of above burglary of mobiles and cash of Rs.18,000/-. The claim amount has been paid to complainant, as assessed by the surveyor. The OP controverted the other averments of the complainant by denying any deficiency in service on its part. The OP prayed for dismissal of the complaint.
4. The complainant tendered in evidence affidavit of Manjit Kumar proprietor Ex.C-1 alongwith copies of documents Ex.C-2 to Ex.C-18 and closed evidence. To rebut above evidence of complainant, OP tendered in evidence affidavit of Aman Singh Legal Manager Ex.OP-1, affidavit of Apurva Sharma authorized signatory First Appeal No.298 of 2018 4 of Puri Crawford Insurance Surveyor & Loss Assessors India Private Limited Ex.OP-12 alongwith copies of documents Ex.OP-2 to Ex.OP- 11 and closed evidence. On conclusion of evidence and arguments, the District Forum, dismissed the complaint of the complainant. Aggrieved by above order, the complainant, now appellant, has directed this appeal against the same.
5. We have heard the learned counsel for the parties and have also examined the record of the case. The submission of counsel for appellant is that discharge voucher, as relied upon by OP was extracted under coercion and undue influence only and it is insignificant document in the eye of law. On the other hand, Sh. Rajneesh Malhotra Advocate counsel for OP argued that complainant executed the discharge voucher with his free consent and as such it is estopped from challenging to the contrary. There is no dispute of this fact between the parties that complainant obtained the insurance policy from OP. The complainant suffered loss due to burglary in his shop and gave intimation to OP in time. FIR was registered by police about above incident of burglary and incident was not found to be fake by OP. The dispute between the parties is only with regard to the quantum of compensation of loss only. The complainant claimed the entire loss amount of Rs.15,52,971/- plus Rs.18,000/-, whereas OP stated that whatever was found proper by surveyor as loss, has already been remitted to complainant by OP. The counsel for appellant challenged the report of surveyor in this case. Counsel for respondent of this appeal contended that report of First Appeal No.298 of 2018 5 surveyor has to be relied upon by the Forum as it carries rebuttable presumption to it. He referred to law laid down by the National Commission in case "V.K. Gupta & Associates & others Vs. New India Assurance Co. Ltd." 2018(I)CPR-693 to the effect that whatever was deducted as per the provisions of the policy by the surveyor and his report has to be relied upon. On the other hand, counsel for appellant, relied upon law laid down in case titled as "Vidhata Cable Co. Versus New India Assurance Co. Ltd. & another" I(2018)CPJ-405 by the National Commission that claim of the complainant cannot be repudiated on the basis that he had signed the discharge voucher. Discharge voucher was signed under compelling circumstances on account of inordinate delay by the insurance company in setting the claim. As held in this authority by the National Commission, the discharge voucher could be discarded by the Forum in case, it has not been executed voluntarily. Consequently, as held in this authority, we proceed to decide the controversy in this case, as to what is the exact amount of loss suffered by complainant. The report of surveyor has been strongly relied upon by OP in this regard, vide Ex.OP-2. On the other hand, counsel for appellant argued that surveyor has arbitrarily deducted the amount of Rs.1,92,184/- as deduction on account of present business trends of insured prevailing at the time of loss i.e. lower of cost or net realizable value is to be considered for the purpose of assessment of loss of Rs.1,92,184/-. The surveyor after deducting the above amount, deducted the amount of Rs.28,924/- on account First Appeal No.298 of 2018 6 of obsolescence @2.15% and thereafter he deducted Rs.65,818/- as less policy excess @5%. The counsel for respondent/OP could not point out any specific clause in the contract of insurance, during arguments of this appeal, to the notice of this Commission under which the surveyor could cause the deduction of the above amounts. The deduction has to be as per schedule I of the policy in this case. The OP has not placed on record Schedule I of the policy nor brought it to our notice justifying the above deductions by the surveyor. In the absence of Schedule I of the policy on the record by OP, which could raise adverse inference against OP, we find that the surveyor wrongly deducted the above referred amounts in its report. Consequently, the OP is bound to pay the balance amount to complainant, so as to complete the loss amount of Rs.15,52,971/-. The order of the District Forum to the contrary is not correct and is ordered to be reversed in this appeal.
6. As a result of our above discussion, we accept the appeal of the appellant by directing respondent of this appeal being opposite party in the complaint to pay the balance amount of Rs.3,22,781/-, wrongly deducted by OP from the claim amount, with interest @9% per annum from the date i.e. 30.06.2016 till actual payment. We also award Rs.10,000/- as cost of litigation to complainant. These amounts shall be payable by OP to complainant within 45 day from the date of receipt of certified copy of the order. First Appeal No.298 of 2018 7
7. Arguments in this appeal were heard on 24.08.2018 and the order was reserved. Certified copies of the order be communicated to the parties as per rules.
8. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(J. S. KLAR) PRESIDING JUDICIAL MEMBER (KIRAN SIBAL) MEMBER September 04, 2018 MM