State Consumer Disputes Redressal Commission
M/S Sargam Mobiles vs The New India Assurance Company Limited on 15 April, 2014
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR (C.G.)
Complaint Case No.13/28
Instituted on : 21.10.2013
M/s Sargam Mobiles,
Through : Proprietor - Anil Gehi,
Shop No.40, Jairam Complex, G.E. Road,
Raipur (C.G.) ... Complainant.
Vs.
The New India Assurance Company Limited,
Through : Branch Manager,
Branch Office (450301),
Second Floor, R.D.A. Building,
Raipur (C.G.) ... Opposite Party
PRESENT: -
HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT
HON'BLE MS. HEENA THAKKAR, MEMBER
COUNSEL FOR THE PARTIES: -
Shri Harshad Vyas, for complainant.
Shri P.K. Paul, for the opposite party.
ORDER
Dated : /04/2014 PER :- HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT. The complainant has filed this complaint under Section 17 of the Consumer Protection Act, 1986 against the opposite party for seeking direction to the opposite party : (a) pay the remaining claim amount Rs.20,52,458/- (Rs. Twenty Lakhs Fifty Two Thousand Four Hundred & Fifty Eight only); (b) to pay interest @ 12% p/.a. on the aforesaid amount; (c) to pay a sum of Rs.10,000/- as compensation for mental // 2 // and physical agony and (d) to grant any other relief, which this Commission deems fit.
2. Brief facts of the complaint are that : the complainant is running a shop at Shop No.40, Jairam Complex, G.E. Road, Raipur (C.G.) in the name and style of M/s Sargam Mobiles and is engaged in business of selling of mobiles phones of various companies as well as accessories. The mobiles, memory card etc. kept/stored in the shop were insured with the O.P./Insurance Company under Policy No.450301/11/10/11/00000054 for security against fire and other natural calamities and Policy No.450301/46/10/04/00000018 was obtained for security against the theft / burglary. The aforesaid policies were valid for the period from 15.04.2010 to 14.04.2011 and the insured amount was Rs.63,00,000/- in each policy. The complainant paid a sum of Rs.13,987/- and Rs.8,686/- towards premium of both the policies respectively and the O.P./Insurance Company issue certificates of insurance in favour of the complainant. On intervening night of 30 & 31/08/2010 some unknown miscreants after house breaking opened the premises/shop of the complainant and stolen cash Rs.50,000/-, mobile phones, cameras of Sony Company and memory card valuing Rs.28,27,258.74. The incident was immediately reported to the Police Station, Moudhapara, Raipur (C.G.). Offence was registered against the unknown miscreants under Section 457 and 380 of IPC and the matter was investigated by the Police. The complainant intimated the // 3 // O.P./Insurance Company regarding the incident of theft on 31.08.2010 and thereafter as per instructions of the O.P./Insurance Company, the complainant submitted claim form before the O.P./Insurance Company. After submitting claim form before the O.P./Insurance Company, the O.P./Insurance Company demanded various documents from the complainant and the complainant tried his level best and submitted those documents before the O.P./Insurance Company. The O.P./Insurance Company demanded Final Report of the Police, which was submitted by the complainant before the O.P./Insurance Company. The Police submitted khatma report No.14/2011 before competent Judicial Magistrate First Class, Raipur and after obtaining copy of the khatma report, the complainant submitted certified copy of the khatma report before the O.P./Insurance. The O.P./Insurance Company appointed a Surveyor namely Shri Vinod Sharma, of New Delhi for settlement of his claim, who inspected the premises/shop of the complainant and demanded various documents, which were made available by the complainant to the Surveyor. On 27.09.2012 towards settlement of claim of the complainant a sum of Rs.7,74,800/- was transferred in the account No.60029601559 of the complainant through R.T.G.S. without any intimation and thereafter the complainant contacted the O.P./Insurance Company for obtaining remaining claimed amount, but the O.P./Insurance Company gave only oral assurance to him and had not paid any amount. Being aggrieved by // 4 // the act of the O.P./Insurance Company, on 06.11.2012, the complainant sent legal notice to the O.P./Insurance Company but even then the O.P./Insurance Company had not paid the remaining claimed amount to the complainant. The complainant filed complaint before this Commission seeking compensation under different heads.
3. The O.P. /Insurance Company filed written statement and averred that the complainant had obtained Standard Fire & Perils Policy along with terms and conditions and Policy No. is 450301 /11 /10/11/00000054 and another police No.450301/46/10/04/00000018 was obtained by the complainant under Tradition Business - Miscellaneous Burglary along with terms and conditions, and the period of both the policies is from 15.04.2010 to 14.04.2011. The O.P./Insurance Company further averred that for creating dispute, the complainant has deliberately not produced the terms and conditions of the insurance policies. The aforesaid insurance policies contain general conditions for indemnity and subrogation, therefore, it was necessary and compulsory for the O.P./Insurance Company to consider the same at the time of settlement of the claim. In the insurance policies there is also an arbitration and disclaimer clause which is very important for settling each matter. After receiving intimation regarding the incident, the O.P./Insurance Company appointed Surveyor Shri Vinod Sharma for assessment of loss, who is an authorized licenced Surveyor from Insurance Regulatory and Development Authority.
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4. Shri Harshad Vyas, learned counsel appearing for the complainant submitted that on 27.09.2012 towards settlement of claim of the complainant a sum of Rs.7,74,800/- was transferred in the account No.60029601559 of the complainant through R.T.G.S. without any intimation and thereafter the complainant contacted the O.P./Insurance Company for obtaining remaining claimed amount, but the O.P./Insurance Company gave only oral assurance to him and had not paid any amount and thus O.P./Insurance Company committed any deficiency in service. The complainant also sent legal notice to the O.P./Insurance Company but the O.P./Insurance Company had not paid the remaining claimed amount to him.
5. Shri P.K. Paul, learned counsel appearing for the O.P./Insurance Company argued that the complainant on being asked for settlement of the claim, the complainant agreed to the proposal and accepted the amount of Rs.7,74,800/- as full and final satisfaction of his claim and the aforesaid amount was transferred through RTGS in bank account No.60029601559 of the complainant, therefore, the act of the O.P./Insurance Company, does not come in the category of deficiency in service. He placed reliance on National Insurance Co. Ltd. vs. Sujir Ganesh Nayak & Co. & Anr. II (1997) CPJ 1 (SC); H.P. State Forest Company Ltd. vs. United India Insurance Co. Ltd. I (2009) CPJ 1 (SC); The New India Assurance Company Ltd. vs. Chandrakant Motichand Kandle 2008 (3) CPR 116 decided by Maharashtra State Consumer // 6 // Disputes Redressal Commission, Mumbai on 02.05.2008; Pentagaon Steel Pvt. Ltd. vs. New India Assurance Company Ltd. & Ors. III (2010) CPJ 339 (NC); and National Insurance Company Ltd. vs. Nipha Exports Pvt. Ltd. 2007 (1) CPR 80 (SC).
6. We have heard learned counsels for both the parties and have perused the documents filed by both the parties before us.
7. The complainant filed documents i.e. Policy Schedule Standard Fire and Special Perils Policy (Annexure A-1), copy of First Information Report dated 31.08.2010 (Annexure A-2) with list of loss due to theft stock on 31.08.2010, Final Investigation Report of the Police (Annexure
- 3), Final Report under Section 173 Cr.P.C., First Information Report under Section 154 Cr.P.C., application sent by the complainant on 25.04.2011 to the Senior Superintendent of Police, Raipur (C.G.) for obtaining Khatma Report in Crime No.189/10 under Section 457, 380 IPC, copy of challan, order sheet recorded by Judicial Magistrate First Class, Raipur (C.G.) on 01.12.2012, legal notice dated 06.11.2012 sent by Navish Chaturvedi, Advocate to The Branch Manager, The New India Assurance Company Limited, Raipur (C.G.) (Annexure A-4).
8. The O.P. /Insurance Company also filed documents i.e. Tradition Business - Miscellaneous Insurance Policy No.450301/46/10/04/00000018 with terms and conditions (OP-1), letter dated 25.10.2010 sent by Surveyor Vinod Sharma to M/s Sargam // 7 // Mobiles (OP-2), Final Survey Report of Shri Vinod Sharma, Surveyor and Loss Assessor (OP-3), Final Report under Section 173 Cr.P.C. (OP-
4), Police Report (OP-5), cancelled cheque No.552434 of Bank of Maharashtra issued by Sargam Mobile (OP-6), the application submitted to the O.P./Insurance Company for ECS/NEFT/RTGS/Electronic Transfer (OP-7), the receipt issued by the Sargam Mobiles for obtaining the amount in full and final satisfaction.
9. The O.P./Insurance Company appointed Surveyor Shri Vinod Sharma, who gave his report dated 08.09.2011 (OP-3) and his report is well reasoned report and after appreciation of materials provided by the complainant to the Surveyor, he reached to the conclusion that complainant suffered loss to the tune of Rs.10,33,067/-.
10. The complainant pleaded that unknown miscreants had stolen the mobile phones, cameras and memory cards to the tune of Rs.28,27,258.74. The complainant lodged First Information Report before Police Station, Moudha Para, Raipur (C.G.) on 31.08.2011at about 14.30 hrs. In the FIR, the value and quantity of the stolen property were not mentioned and a list of stolen property was given by the complainant to the Police, but the said list does not bears signature and date.
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11. The complainant has not been able to prove that on which date the above particulars of the stolen property was given to the Police. The document Annexure A-3 is Police Investigation Report ¼iqfyl tkap izfrosnu½ in which it is mentioned :-
8- iqfyl tkap dk vafre fu"d"kZ ?kVuk dk laf{kIr fooj.k bl izdkj gS fd fnukWd ?kVuk le; dh njE;kuh jkf= izkFkhZ vfuy xsgh dh t;jke dkEiyDl fLFkr 'kki ua- 40] ljxe eksckbZy 'kki ds 'kVj mBkdj nqdku esa izos'k dj e'k:dk uksfd;k] lselax] ,y-th-] fofM;ksdku] lksuh bjsD'ku] ekbdzkseSDl] Likbl daiuh ds fofHkUu ekMyksa ds eksckbZy dks vKkr pksj }kjk pksjh dj ys x;k fd fjiksVZ ij Fkkuk ekSngkikjk esa vijk/k dzekad 189@2010 /kkjk 457] 380 Hkknfo- dk;e dj foospuk esa fy;k x;kA foospuk ds nkSjku izdj.k esa eky eqfYte dh irklkth gsrq gj laHko iz;kl fd;k x;k] dksbZ irk ugha pyk vkSj u gh fudV Hkfo"; essa irk u pyus dh mEehn ij izdj.k esa [kkRek dzekad 14@2011 pkd fd;k x;k gSA
12. Police Station, Moudhapara, Raipur (C.G.) submitted Khatma Report before Judicial Magistrate First Class, Raipur (C.G.).. Learned JMFC, Raipur (C.G.) recorded the statement of the complainant and in order sheet dated 01.12.2012 it is mentioned that " dsl Mk;jh ,oa ijhf{kr lkf{k;ksa ds dFkuksa dk voyksdu fd;k x;kA voyksdu ls nf'kZrk gS fd 1500 ux uksfd;k] lSelax] ,yth] fofM;ksdkWu] lksuh] bjsD'ku] ekbdkseSDl] Likbl fofHkUu dEiuh eksckbZy o eSeksjh dkMZ fle] ¼80 ls 100 ux½ rFkk 100 fMftVy dSejs lksuh] // 9 // fudkWu] dSuku] ds nqdku ls pksjh gksus ds laca/k esa Fkkuk ekSngkikjk esa izkFkhZ }kjk fjiksVZ ntZ djk;s tkus dk dFku izkFkhZ vfuy xsgh us vius [kkRek c;ku esa fd;k gSA "
13. It appears that 1500 nos. of mobiles phones of various companies, memory card sims (80 to 100 nos.), 100 nos. digital camera were stolen from the shop of the complainant. It appears that the list of the stolen property provided by the complainant to the Police Station, Moudhapara, Raipur is exaggerated and order sheet recorded by the JMFC, Raipur (C.G), is a public document and admissible in evidence. Looking to the above facts, it appears that the complainant has not been able to prove that the number of mobile phones, memory card sims and digital cameras which have been mentioned in the complaint were actually stolen by unknown miscreants.
14. In internal page 9 of the Surveyor Report at clause (b) of "Our Observation about the Loss" it is mentioned by the Surveyor that "Loss occurred during the intervening night of 30/31.8.2010. We received the instructions from Insurers from 14th September and on 15.9.2010 we visited and conducted the Survey i.e. after 15 days of loss. Though, the Insured handed over to us details of balance stocks after theft and list of stolen goods, which were verified from the records. However, Insured filed list of stolen goods to police on 15th of October, 2010, i.e. after 1- 1/2 months (Encl : G-2). We did not receive any proper explanation / // 10 // justification for delay in submitting the lists to the police. The same should have been filed within one or two days of the loss.
15. According to the O.P./Insurance Company, the amount of Rs.7,74,800/- was transferred to the account of the complainant through RTGS. We have perused the document OP-8 in which it is mentioned that "Received from The New India Assurance Company Limited, the sum of Rs.7,74,800/- (Rs. Seven Lakh Seventy Four Thousand & Eight Hundred Only), which I/we agree to accept in full satisfaction and discharge of all claims present or future under Policy No.450301/46/10/04/00000018 in respect of Theft on which occurred on or about the 30/31th day of August, 2010."
16. In Chittiprolu Lokeswara Rao v. United India Insurance Co. Ltd & Anr., I (2014) CPJ 39 (NC), Hon'ble National Commission, has observed thus :-
"9. Learned Counsel for the petitioner has placed reliance on II (1999) CPJ 10 (SC) = VI (1999) SLT 590 = (1999) 6 SCC 400, United India Insurance v. Ajmer Singh Cotton & General Mills and Ors., in which it was held that the mere execution of the discharge voucher would not always deprive the consumer from preferring claim if he is in a position to satisfy that discharge voucher has been obtained under the circumstances which can be termed as fraudulent or exercise of undue influence or by misrepresentation. We agree with the principle laid down in aforesaid judgment, but in the case in hand, we do not find any circumstances proving fraud, undue influence, misrepresentation // 11 // etc. on the part of OP. Letter dated 10.5.2010, appears to be in the handwriting of complainant himself and no protest was made till encashment of cheques. In such circumstances, aforesaid citation does not help to the petitioner. He has also placed reliance on decision of this Commission in R.P.No.4275 of 2007 decided on 11.1.2008 in which it was held as under :
"5. The complainant has submitted in his complaint that after 7 days of receipt of Rs.3,45,968/-, the complainant had approached the Insurance Company (O.P.1) and demanded the balance amount which was declined and he was asked to approach O.P.2. He further submitted that since the entire stock was burnt and the business had come to a standstill and because of financial crisis and heavy loss of interest, the complainant was constrained to sign on the discharge voucher, which was in a printed format. Therefore, he had no option but to file a complaint for the balance amount. This we feel is an act of coercive bargaining indulged in by the Insurance Company. A distressed insured person, who has lost all mans of earning his livelihood in a catastrophic fire, has no other choice but to accept any amount as an initial payment in the first instance.
10. Facts of aforesaid case are different from the facts of case in hand. In the aforesaid case printed discharge voucher was signed by the complainant under compelling circumstances and complainant approached Insurance Co. just after 7 days of receipt of payment whereas in the present case, complainant has given letter in his own handwriting and notice has been given after 50 days of letter dated 10.05.2010 for final settlement."
17. In National Insurance Company Limited v. Nipha Exports Pvt. Ltd. (SC) (Supra), Hon'ble Supreme Court observed thus:
"9. In the letter, thus read there is no complaint that the discharge voucher or receipt had been obtained from the complainant respondent herein fraudulent or by exercise of undue influence or by misrepresentation or the like or coercive bargaining. In the case of United India Insurance Vs. Ajmer Singh Cotton & General Mills, (1999) 6 SCC 400, it was pointed out by this Court that mere execution of discharge voucher would not always deprive the consumer from preferring claim with // 12 // respect to the deficiency in service or consequential benefits arising out of the amount paid in default of the service tendered. It was further pointed out that despite execution of the discharge voucher, the consumer may be in a position to satisfy the Tribunal or the Commission under the Act that such discharge voucher or receipt had been obtained from him under circumstances which can be termed as fraudulent or exercise of undue influence or by misrepresentation or the like, and if such a case is proved, the authority before whom the complaint is made would be justified in granting appropriate relief.
11. In the present case, the claim of the complainant was finally settled by a letter dated 8.4.1994 and the payment was made on 8.6.1994, which was accepted by the respondent without any qualifications. It cannot, therefore, be said that the payment was made belatedly. The important date on which the quantum of compensation and to whom it should be paid is finally decided and not from the dates on which the correspondences ensured between the parties."
18. Looking to document OP-8 it appears that the complainant has agreed to accept a sum of Rs.7,74,800/- in full satisfaction of his claim under Policy No.450301/46/10/04/00000018 and the complainant received a sum of Rs.7,74,800/- in full and final satisfaction of his claim, therefore, the complainant is not entitled for the amount mentioned in the complaint.
19. Therefore, the complaint of the complainant, is liable to be and is hereby dismissed. Parties shall bear their own cost.
(Justice R.S. Sharma) (Ms. Heena Thakkar)
President Member
/04/2014 /04/2014