State Consumer Disputes Redressal Commission
M/S Comfort Wear. vs New India Assurance Co. Ltd. on 26 November, 2020
H. P. STATE CONSUMER DISPUTES REDRESSAL
COMMISSION, SHIMLA
RBT/CC No. : 15/2020
Date of Presentation: 19.12.2018
Order Reserved on : 04.11.2020
Date of Order : 26.11.2020
......
M/s Comfort Wear R/o Shop No.9, Lower Bazar, Shimla, H.P.
through Shri Ravinder Singh (Prop).
...... Complainant
Versus
The New India Assurance Company Ltd. Branch Office Bhagra
Niwas, The Mall, Shimla-1, H.P. through its Branch Manager.
......Opposite party.
Coram
Hon'ble Ms. Sunita Sharma Presiding Member
Hon'ble Mr. R.K. Verma Judicial Member
Whether approved for reporting?1
For complainan t : Mr. Jagat Paul, Advocate.
For Opposite party : Mr.Jagdish Thakur, Advocate.
MR.R.K.VERMA, JUDICIAL MEMBER:
O R D E R :-
1. The present complaint has been filed under Section 17 of the Consumer Protection Act, 1986 by Sh. Ravinder Singh (hereinafter called as the complainant) against The New India Assurance Company (hereinafter called as the opposite party ) seeking the following reliefs:-
i) to direct the opposite party to settle claim No.35140148180690000002 under policy No. 1 Whether reporters of the local papers may be allowed to see the order?
M/s Comfort Wear Versus New India Assurance Company Ltd.
RBT/CC/15/2020 351401481606 00000010 A/C M/S Comfort Wear i.e. Rs.9,11,000/-(Rs.Nine Lacs Eleven Thousands only);
ii) award compensation of Rs.15,00,000/- to the complainant on account of mental agony, physical harassment and financial losses;
iii) saddle the opposite parties with special and extra-ordinary costs as deemed fit so as to deter them from adopting such mal practice in future;
iv) allow cost of this complaint i.e.Rs.25,000/-; and
v) pass such orders in favour of the complainant as deemed fit and proper in the facts and circumstances of the case.
2. The facts necessary for adjudication of this complaint, as averred in the complaint, are that complainant is proprietor of M/S Comfort Wear, which is engaged in the business of sale of mobile phones in shop No.9, Lower Bazar Shimla. The Complainant obtained insurance in the sum of Rs.16,00,000/- from the opposite party to secure loss in respect of all types of mobiles against of fire and allied perils and burglary and house breaking for the period from 13.04.2016 to 12.04.2017. On 27.08.2016 there was theft in his shop and mobiles worth Rs. Rs.9,11,000/- were stolen. The matter was reported to the police upon which FIR No.221 2 M/s Comfort Wear Versus New India Assurance Company Ltd.
RBT/CC/15/2020 under section 457,380 IPC was registered in PS, Sadar Shimla. The information about this theft was also given to the OP. The opposite party appointed surveyor who conducted spot survey and verified the loss. After completion of all codal formalities the complainant submitted his claim to the OP but the OP has failed to settle his claim even after lapse of one year. Hence, this complaint alleging deficiency in service.
3. Upon notice, the opposite party put in appearance and filed its written version in which preliminary objections with respect to maintainability of the complainant on the ground that the complainant is not a consumer, this commission has no pecuniary jurisdiction to entertain this complaint, that this complaint is pre-mature, that the complainant did not submit untrace report despite repeated requests and that the present complaint involves complicated questions of facts and law which cannot be decided by this commission in summary proceedings. On merits, the OP has admitted that the complainant had insured with the opposite party furniture, fixtures and fittings along with stock in trade which included all kinds of mobile phones and its accessories and allied goods for a sum of Rs.16,00,000/-under Shop Keepers Insurance Policy. The opposite party has also admitted that during the subsistence of the insurance policy theft had taken place in the shop of the complainant. On 3 M/s Comfort Wear Versus New India Assurance Company Ltd.
RBT/CC/15/2020 receiving information about this theft, the opposite party had immediately appointed surveyor, who visited the spot on 28.8.2016 and assessed the loss on the basis of the documents supplied by the complainant. After spot survey and verification of the loss the surveyor submitted his report, Annexure O-3 vide which he recommended a sum of Rs.5,18,882/- subject to terms and conditions of the insurance policy by taking the loss suffered by the complainant as per list of the misplaced handsets submitted by him to the tune of Rs.6,35,884/-. Thereafter, the opposite party had appointed Sh.Kamal Narian, HPS (Retd.) to investigate the claim of the complainant , who submitted his report dated 16.02.2018, Annexure OP-4 (colly). After receiving all documents the opposite party processed the matter and it was found that the complainant had not submitted untraced report duly accepted by the court. The opposite party then requested the complainant to submit untraced report vide letters dated 28.06.2018 and 27.08.2018 but he did not submit the same. Upon this, the opposite party had no option but to close the claim of the complainant vide letter dated 06.09.2018.There is no deficiency of service and unfair practice on the part of the opposite party and as such this complaint is devoid of any merit.
4
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RBT/CC/15/2020
4. The complainant has filed rejoinder in which he denied the pleadings of the opposite party and reaffirmed the averments made by him in his complaint.
5. The parties have lead oral as well as documentary evidence in support of their respective cases.
6. The complainant has only tendered his own affidavit, Ext.C-1 in his evidence in which he has affirmed on oath all material averments made by him in his complaint.
7. On the other hand the opposite party has tendered the affidavits of Sh.Vikas Garg,Deputy Manager,Ext.OP-1, Sh.Surinder Kumar Soni, Ext.OP-2 and Sh.Kamal Narian, Ext.OP-3.Sh.Vikas Garg in his affidavit has affirmed on oath all material averments made by the opposite party in its reply. He has also tendered in evidence documents, Annexure OP-1 to OP-7.Sh.Surinder Kumar Soni is surveyor. He has proved on record his report, Annexure OP-3 (colly). Sh.Kamal Narian is retired HPS officer and he was appointed as investigator by the opposite party to investigate the theft claim submitted by the complainant. After investigation he has submitted his report, Annexure OP-4 (colly) and in his affidavit he has duly proved on record this report.
8. We have heard the learned counsel for the parties and have also carefully gone through the record on file. 5
M/s Comfort Wear Versus New India Assurance Company Ltd.
RBT/CC/15/2020
9. There is no dispute between the parties that the shop of the complainant was insured with the opposite party and the theft in question had taken place in his shop during the subsistence of the insurance policy. There is also no dispute between the parties that mobile phones stolen from the shop of the complainant were covered under the insurance policy. The opposite party has closed the claim of the complainant on the ground that the complainant has failed to submit untraced report duly accepted by the court. However, this objection raised by the opposite does not survive in view of the investigation report of Sh.Kamal Narian, Annexure OP-4 (colly) produced by the opposite party itself. This report shows that during investigation by the police it was revealed that three persons were involved in this theft out of which one person was arrested while remaining two persons involved in this case could not be arrested and proceedings to declare them as proclaimed offenders were initiated against them.The investigation report further shows that out of the stolen property only 7 mobiles were recovered by the police and the remaining stolen property was untraced. The investigation report is silent about the condition of the recovered mobiles and its value. The mobile phones allegedly recovered from the accused persons are also yet to be produced in the court and identified by the complainant as his stolen property. In view of this, the loss of the 6 M/s Comfort Wear Versus New India Assurance Company Ltd.
RBT/CC/15/2020 complainant is to be treated as total loss. As such the complainant is entitled for compensation for the entire loss suffered by him in this incident of theft, as per terms and conditions of the insurance policy.
10. Now coming to the question of quantum of compensation. The learned counsel for the complainant has contended that the complainant is entitled for a sum of Rs.9,11,000/- which was the value of the stolen mobile phones. On the other hand, the learned counsel for the opposite party has argued that in case the complainant is held entitled to compensation from the opposite party he is only entitled to the compensation which has been assessed by the surveyor vide his report, Annexure OP-3 (colly).
11. The complainant has claimed a sum of Rs.9,11,000/- as compensation. In support of his claim except for his self serving statement contained in his affidavit, Annexure C-1 he has not produced any other evidence to show that the loss suffered by him was to the tune of Rs.9,11,000/-. On the other hand the opposite party has assessed his loss at Rs.5,18,882/- on the basis of the report of surveyor, Annexure OP-3 (colly). We have perused the report of the surveyor. This report shows that as per list submitted by the complainant the total value of the mobile handsets was Rs.6,35,884/-.The surveyor had applied 7 M/s Comfort Wear Versus New India Assurance Company Ltd.
RBT/CC/15/2020 depreciation of 5% on account of discount,10% depreciation on account of price variation and further made deduction of 4% on account of average clause as at the time of loss, the value of the stock in trade was more than the value of the stock insured. In view of this, the surveyor has assessed the loss of the complainant at Rs.5,18,882/-. It may be noted that the survey report has to be given due credence unless rebutted by the party disputing the same with credible evidence. In this context reference can be made to the judgment of the Hon'ble National Commission in D.N. Badoni vs. Oriental Insurance Co. Ltd. 1(2012) CPJ 272 (NC) wherein it was held that a Surveyor's report has significant evidentiary value, unless it is proved otherwise, the same has to be relied upon. In the instant case the complainant failed to rebut the same and there is no ground to discard the survey report prepared by IRDA licensed Surveyor. Therefore, on the basis of the report of the surveyor, Annexure OP-3 (colly) we hold that the complainant is entitled to compensation of Rs.5,18,882/- for the loss suffered by him in this incident of theft.
12. For the foregoing reasons, this complaint is partly allowed and the opposite party is directed to pay a sum of Rs. Rs.5,18,882/- to the complainant along with interest at the rate of 6 % per annum from the date of filing this complaint 8 M/s Comfort Wear Versus New India Assurance Company Ltd.
RBT/CC/15/2020 till actual payment. The complainant is also awarded litigation cost to the tune of Rs.5000/- against the opposite party. This order shall be complied with by the opposite party within a period 45 days from the date of receipt of copy of this order.
13. This complaint could not be decided within stipulated period due to huge pendency of cases and Covid-19 lockdown.
14. Copy of this order be supplied to the parties free of cost. File after its due completion be consigned to Record Room.
Sunita Sharma Presiding Member R.K. Verma Judicial Member 26.11.2020 Manoj 9