State Consumer Disputes Redressal Commission
Oriental Insurance Company Limited vs Ashok Kumar Bhandari on 22 April, 2014
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, DAKSHIN MARG, SECTOR-37A, CHANDIGARH
1st Additional Bench
FIRST APPEAL NO. 598 OF 2013
Date of Institution: 27.05.2013
Date of Decision: 22.04.2014
Oriental Insurance Company Limited, Branch Office, Chhoti
Baradari, Patiala through Sh.Ram Avtar, Deputy Manager, Oriental
Insurance Company Ltd., Regional Office, SCO No.109-110-111,
Sector-17-D, Chandigarh.
.....Appellant/Opposite Party
VERSUS
Ashok Kumar Bhandari S/o Late Sh.Chuni Lal Bhandari, R/o House
No.44, Ranjit Bagh, Near Modi Mandir, Patiala.
.....Respondent/Complainant
First Appeal against the order
dated 16.4.2013 passed by the
District Consumer Disputes
Redressal Forum, Patiala.
Quorum:
Sh. Baldev Singh Sekhon, Presiding Member
Sh. Jasbir Singh Gill, Member Present:
For the appellant : Sh.D.P.Gupta, Advocate
For the respondent : Sh.Satyaveer Singh, Advocate
BALDEV SINGH SEKHON, PRESIDING MEMBER
This appeal has been filed by the appellant/opposite party against the order dated 16.4.2013 passed by the District Consumer Disputes Redressal Forum, Patiala (in short "District Forum"), vide which the complaint filed by the respondent was allowed with costs of Rs.4,000/- and the opposite party was directed to make the payment of Rs.1,86,444/- with interest @ 9% per annum from the date of discharge voucher, Ex.C-17 dated 11.7.2012 till final payment. First Appeal No. 598 of 2013 Page 2 of 9
2. The facts, as stated in the complaint, are that the complainant obtained a House Holders Package Policy from the opposite party for the period of 16.11.2010 to 15.11.2010 for a sum insured of Rs.16,83,800/- covering risk against burglary and house breaking. On the intervening night of 24/25.9.2011, a burglary took place at his house and number of valuable household items were stolen. The matter was reported to the PS, Civil Line, Patiala, in respect of which FIR No.168 dated 25.9.2011 under Section 380/452 of IPC was lodged. The theft was also intimated to the opposite party on 25.9.2011, telephonically as well as in writing on 27.9.2011. They deputed Sh.Gurdeep Singh, Investigator and Loss Assessor, who investigated the matter and submitted his report. However, No copy of the investigation report was not supplied to him despite repeated requests. Copy of the same was obtained only when he invoked the provisions of the Right to Information Act, 2005. He visited the office of opposite party a number of times for the settlement of his claim and even sent letters dated 27.9.2011, 17.10.2011, 2.4.2012, 25.5.2012, 13.8.2012, 18.8.2012 and 31.8.2012 but to no avail. The culprits, who committed the offences of burglary and house breaking were arrested by the police and some articles were recovered from their possession which were got released from police on Sapurdari under the orders of the court of JMIC, Patiala. On 11.7.2012, he was called upon by the opposite party in its office and was asked to sign a discharge voucher for a sum of Rs.78,000/- towards full and final settlement of his claim whereas his claim was for Rs.2,25,600/-. He was informed that it was not possible for the opposite party to pay the First Appeal No. 598 of 2013 Page 3 of 9 full claim. He, being in need of money and under compelled circumstances, signed the aforesaid discharge voucher. Even then the opposite party failed to disburse the amount of Rs.78,000/- to him. He supplied a detail of stolen items, including the insured and non- insured items, amounting to Rs.3,92,712/-. He further prepared a list of items recovered by the police and got released on Sapurdari out of which only two items were shown to have been insured. The opposite party was thus liable to pay an amount of Rs.2,25,640/- being the price of the remaining stolen articles. It was intimated by the opposite party that a claim of only Rs.43,018/- had been approved by them. There was no ground to reduce the claim of Rs.2,25,640/- to Rs.78,000/- and then to Rs.43,018/-. Therefore, the same was not acceptable to him. Hence, he filed the complaint before the District Forum seeking directions to the opposite party to pay the amount of Rs.2,25,640/- alongwith interest @ 24% per annum from the date of loss and also to pay him Rs.50,000/- by way of compensation on account of harassment and the mental agony experienced by him besides Rs.15,000/- as cost of the complaint.
3. Upon notice, the opposite party appeared and filed written version in which it was admitted that the complainant had purchased the "Household Package Policy" for a sum insured of Rs.16,83,000/- but pleaded that the compensation, if any, was to be paid as per the terms and conditions of the policy. It was further admitted that on receiving the intimation regarding theft, Sh.Gurdeep Singh, Surveyor/Loss Assessor/Investigator/Valuer was appointed to assess the loss, who assessed the same in a sum of Rs.77,000/- (Rs.78,000/- First Appeal No. 598 of 2013 Page 4 of 9 minus Rs.1,000/- of excess clause). It was further pleaded that a pre- receipt voucher was got signed from the complainant on 11.7.2012 but that was a tentative one since the complainant was specifically told by the opposite party that the claim was subject to the approval by the competent authority. The claim of the complainant was initially erroneously recommended for payment of Rs.77,000/- but the concerned branch of the opposite party, while processing the claim observed that the insured was having jewellery worth Rs.3,92,712/- as against a sum insured of Rs.2,19,400/-, and therefore, average clause was applicable as the insured had not insured whole of the jewellery and valuables held by him. Therefore, the payable amount on average basis was worked out to be Rs.43,018/- i.e. Rs.77,000/- X Rs.2,19,400/- ÷ Rs.3,92,712/-. Thus, the claim had rightly been sanctioned for Rs.43,018/-. The complainant was informed accordingly, vide letter dated 31.8.2012. It was further pleaded that opposite was ready to pay the said amount of Rs.43,018/- subject to the complainant furnishing the letter of subrogation and undertaking form duly filled and signed by him on a stamp paper.
4. The parties led their evidence by way of affidavits and documents and the District Forum, after going through the pleadings of the parties and evidence on record, allowed the complaint in the aforesaid terms.
5. Aggrieved by this order, the opposite party has come up in appeal on the ground that the District Forum has erred in holding that the "average clause" would not be applicable as the same has been specifically excluded under Section III of the insurance policy. It has First Appeal No. 598 of 2013 Page 5 of 9 failed to appreciate that as per insurance policy, the complainant has not opted for any coverage under Section III of the policy. Hence, the exception clauses, as applicable to the coverage under Section III of the policy, are not applicable to this case. The average clause as contained under general condition No.9 of the policy is applicable. The District Forum has incorrectly held that the value of the jewellery i.e. gold and silver has escalated on the date of loss and the same is to be considered for the purpose of calculation of the amount payable to the complainant. The complainant himself has given an undertaking for Rs.77,000/- as full and final settlement of the claim and now he cannot claim any amount over and above that. The District Forum has further erred in not issuing any direction to execute necessary papers in favour of the opposite party so that in the eventuality of articles having been recovered the same can be taken over by the opposite party. Acceptance of the appeal and setting aside of the impugned order was prayed.
6. On the other hand, learned counsel for the complainant submitted that there was no merit in the appeal and the same be dismissed.
7. We have thoroughly gone through the pleadings of the parties and have carefully perused the evidence on record.
8. Admittedly, the jewellery held by the complainant was duly covered by the insurance policy issued by the opposite party that was valid for the period from 16.11.2010 to 15.11.2011. The fact regarding burglary having been taken place is not disputed. The complainant has contended that his jewellery worth Rs.3,92,712/- was First Appeal No. 598 of 2013 Page 6 of 9 stolen out of which certain items were recovered from the miscreants and were taken back on Sapurdari and after adjusting the same the net loss suffered by him was to the tune of Rs.2,25,640/-. The details of the items which were stolen but not recovered by police are detailed below:-
Sr.No. Items Weight Qty. Value Rs.
1. Silver Tea set 800 gm 03 piece 47360/-
2. Silver Bowl 500 gm 02 piece 29600/-
3. Gold Ear Rings 8 gm 02 pair 21120
4. Gold Bangles 24 gm 02 piece 63360/-
5. Silver plates 500 gm 03 piece 29600/-
6. Silver Tray (round) 500 gm 01 piece 29600/-
7. Repair of Almirah 5000/-
Door and Lock &
Grill
Total 2,25,640/-
9. Sh.Gurdeep Singh, who was appointed as Surveyor/ Valuer/ Loss Assessor to assess the loss, submitted his report on 12.6.2012, which is proved on record as Ex.C-6. A scrutiny of this report shows that the surveyor compared the items mentioned in the above list with those which were insured under the policy and the un-insured items were excluded and the net liability of the opposite party was worked out to be Rs.78,000/- and after adjusting the compulsory excess clause, Rs.77,000/- were recommended to be the liability of the First Appeal No. 598 of 2013 Page 7 of 9 opposite party. It is not the case of the complainant that the items excluded by the surveyor were covered under the policy.
10. The terms and conditions of the policy have been proved on record by the opposite party as Ex.OP-11/5 and the policy document is proved as Ex.OP-11. The complainant himself has placed on record the list of articles covered under the House Hold Insurance Policy as Ex.C-3 which shows that under Section-G, listed jewellery items were insured for Rs.2,44,600/-. Thus, the complainant cannot claim more than the amount insured against each item mentioned in this section. The opposite party was within its right to exclude the items which were not mentioned in the list attached with the policy document. The surveyor has further clarified in his report that the assessment made by him was made as per the coverage in the insurance policy and was on the "sum insured basis" and not as per the value of silver and gold jewellery at the time of loss. It has been specified that the rate of silver was Rs.20/- per gm. at the time of insurance whereas the same was Rs.60/- per gm. at the time of theft. Similarly, the value of the gold at the time of insurance was Rs.1,200/- per gm whereas the same was Rs.2,630/- per gm. at the time of theft. Apparently, the complainant has not disputed assessment made by surveyor with regard to items covered under the policy and signed the discharge voucher as full and final settlement. He was, thus, not entitled to more than Rs.77,000/- as the compensation for the loss of the articles. But the opposite party has further reduced this amount to Rs.43,018/- by applying the average clause on the ground that the jewellery worth Rs.3,92,712/-, held by the complainant, was got insured for First Appeal No. 598 of 2013 Page 8 of 9 Rs.2,19,400/-. Learned counsel for the complainant argued that average clause was not applicable under Section III All Risks (Jewellery and Valuable). But careful perusal of Ex.OP-11/2 shows that jewellery worth Rs.2,19,400/- was covered under Section II only and not under Section III of policy schedule. Therefore, average clause was applicable. But the careful scrutiny of the facts of the case reveals that this average clause has been erroneously applied by the opposite party. On the one hand the surveyor excluded the items which were not covered/insured under the policy and reduced the claim to mere Rs.78,000/- on the other hand included the same items to work out the value of total jewellery held by him for the purpose of applying the average clause. It has resulted into double jeopardy the complainant. Moreover, the report of the surveyor clearly mentions that the value of the gold/silver items was assessed as per the rate prevalent at the time of issue of the policy. A careful perusal of the jewellery items insured under the policy as mentioned in Ex.C-3 shows that the insured value of the items was as per market rates assessed by the surveyor i.e. Gold @ Rs.1,200/- per gram and silver @ Rs.20/- per gram. Thus, it cannot be said that the jewellery items were not insured as per its prevalent value. Hence, the average clause cannot be invoked in the present case. The complainant was, therefore, entitled to the amount as assessed by the surveyor without applying average clause.
11. In view of the above discussion and findings, the appeal of the appellant/opposite party is partly allowed and the impugned order of the District Forum is modified to the extent that the opposite party is First Appeal No. 598 of 2013 Page 9 of 9 to pay Rs.77,000/- instead of Rs.1,86,444/- to the complainant alongwith interest @ 9% per annum from the date of filing the complaint till actual realisation within one month of receipt of copy of this order. Amount of Rs.4,000/- allowed by the District Forum as costs of complaint is set aside. No order as to costs.
12. The appellant/opposite party deposited a sum of Rs.25,000/- at the time of filing of the appeal. This amount, alongwith interest, which has accrued thereon, if any, shall be remitted by the registry to the respondent/complainant by way of a crossed cheque/demand draft after the expiry of 45 days.
13. Remaining amount be paid by the opposite party to the complainant immediately as directed above.
14. The arguments in the case were heard on 11.4.2014 and the order was reserved. Now, the order be communicated to the parties.
15. The appeal could not be decided within the statutory period because of the heavy pendency of the court cases.
(BALDEV SINGH SEKHON) PRESIDING MEMBER (JASBIR SINGH GILL) MEMBER April 22, 2014 VINAY