State Consumer Disputes Redressal Commission
1. New India Assurance Co. Ltd., vs 1. Jagdish Rai Mittal on 30 April, 2014
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH First Appeal No. : 168 of 2014 Date of Institution : 28.04.2014 Date of Decision : 30/04/2014 1. New India Assurance Co. Ltd., SCO No.104-106, Sector 34-A, Chandigarh. 2. P.C.Saini, Senior Divisional Manager, New India Assurance Company Ltd., SCO No.104-106, Sector 34-A, Chandigarh. 3. Chairman, New India Assurance Company Ltd., 87, MG Road, Fort Mumbai 400001. (Deleted). 4. Regional Manager, New India Assurance Company Ltd., SCO No.36-37, Sector 17-A, Chandigarh. (Deleted). 5. Sanjiv Sethi, Surveyor, New India Assurance Company Ltd., SCO No.36-37, Sector 17-A, Chandigarh, resident of H.No.1971, Sector 15, Panchkula. (Deleted). 6. RRR Brokerage Assurance Services Pvt. Ltd., SCO No.222-223, Ground Floor, Sector 34-A, Chandigarh, Agent of Opposite Party No.1, New India Assurance Company Ltd. (Deleted). Now through their authorized signatory, A.L. Madan, Manager, Regional Office, New India Assurance Company Ltd., SCO No.36-37, Sector 17-A, Chandigarh. Appellants/Opposite Parties V e r s u s 1. Jagdish Rai Mittal son of Sh.Dila Ram 2. Vimal Mittal wife of Sh.Jagdish Rai Mittal 3. Anuj Mittal son of Sh.Jagdish Rai Mittal (Complainants No.2 and 3 through attorney Jagdish Rai Mittal) All residents of House No.38, Sector 11-A, Chandigarh. ....Respondents/complainants Appeal under Section 15 of the Consumer Protection Act, 1986. BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT. MR. DEV RAJ, MEMBER.
MRS. PADMA PANDEY, MEMBER Argued by: Sh. J.P. Nahar, Advocate for the appellants.
PER JUSTICE SHAM SUNDER (RETD.), PRESIDENT This appeal is directed against the order dated 25.03.2014, rendered by the District Consumer Disputes Redressal Forum-I, U.T., Chandigarh (hereinafter to be called as the District Forum only), vide which, it partly accepted the complaint, filed by the complainants (now respondents) and directed Opposite Parties No.1 and 2 (now appellants No.1 and 2), as under:-
For the reasons recorded above, the complaint is partly allowed against OPs No.1 and 2. OPs No.1 and 2 are jointly and severally directed :-
i) To make payment of an amount of Rs.1,90,000/- to the complainants towards insurance of burglary & house breaking, all risks for jewellery and baggage insurance, with interest @9% p.a. from the date of filing of the claim till its realization to the complainants.
ii) To make payment of an amount of Rs.40,000/- to the complainants as compensation for pain, agony and harassment.
iii) To make payment of an amount of Rs.11,000/- to the complainants towards litigation expenses.
This order shall be complied with by OPs No.1 and 2 within one month from the date of receipt of its certified copy, failing which, OPs No.1 and 2 shall be liable to refund the above said awarded amount to the complainants along with penal interest @ 12% p.a. from the date of filing of the claim, till its realization, besides costs of litigation, as mentioned above. The complaint fails against OPs No.3 to 6.
2. The facts, in brief, are that the complainants, purchased one House Holders Insurance Policy Annexure C-1, from the Opposite Parties, valid for the period from 17.06.2011 to 16.06.2012, on payment of premium of Rs.2530/-. During the currency of the Insurance Policy, theft/burglary, took place, in the house of the complainants bearing No. 38, Sector 11-A, Chandigarh, on the night intervening 25/26.03.2012. FIR No.94 Annexure C-4 under Sections 457 and 380 of the Indian Penal Code, was lodged with the Police of Police Station, Sector 11, Chandigarh. List Annexure C-3 of the stolen articles was supplied Intimation of the incident was given to the Opposite Parties, on 28.03.2012, vide letter Annexure C-2. The requisite documents were also submitted. The Opposite Parties, appointed Surveyor and Loss Assessor, Mr. Sanjeev Sethi, who visited the premises of the complainants. He met the complainants only once. It was stated that the complainants were never associated, with the process of claim, by the said Surveyor and Loss Assessor. It was further stated that, ultimately, the complainants received a letter dated 28.12.2012 Annexure C-5, to the effect, that their claim had been declined. Thereafter, the complainants served a legal notice dated 08.01.2013, copy whereof is Annexure C-6, requesting the Opposite Parties, to supply the order declining the claim, report of the Surveyor and Loss Assessor, copy of the Insurance Policy, list of articles insured and the list of stolen articles. Opposite Party No.1, sent a letter dated 15.04.2013 Annexure C-7, on 29.4.2013, alongwith which copies of documents Annexures 7-A to 7-E were supplied by it. The complainants, however, did not receive any response, from the Opposite Parties, regarding merits of the claim. It was further stated that bare reading of the order, with regard to the repudiation of claim of the complainants, showed that the Competent Authority of the Opposite Parties, did not apply its mind, and acted, on the report of the Surveyor and Loss Assessor. It was further stated that no list was attached, with the Insurance Policy, received by the complainants. The complainants sent an application dated 22.04.2013-Annexure C-8 to the Opposite Parties, under the Right to Information Act, 2005. In response, the Opposite Parties, sent the list of the insured articles Annexure C-9, which showed that the same pertained to the Policy of the year 2008.
3. It was further stated that the marriage of Mr.Anuj Mittal, complainant No.3, was performed on 25.12.2010. Certain gifts including the silver goods, suit lengths etc., were received, during that marriage. It was further stated that the Insurance Policy, in question, was purchased on 17.06.2011. The valuable articles i.e. laptop, camera, mobile phone, parker pens, silver goods, woolen suit lengths, gold ornaments, and cash upto Rs.10,000/-, were the main articles, which were not to be put in the bank locker. These were got insured vide the Insurance Policy, referred to above. The Opposite Parties were many a time, asked to consider the genuine claim of the complainants, and disburse the amount, but to no avail.
4. It was further stated that the genuine claim of the complainants, was illegally and arbitrarily repudiated by the Opposite Parties. It was further stated that the aforesaid act of the Opposite Parties, by illegally and arbitrarily repudiating the genuine claim of the complainants, amounted to deficiency, in rendering service, as also indulgence into unfair trade practice. It was further stated that a lot of mental agony and physical harassment was caused to the complainants, on account of illegal repudiation of their claim. When the grievance of the complainants, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, directing the Opposite Parties, to pay the amount of Rs.2,35,000/-, i.e. the value of the stolen goods; compensation, to the tune of Rs.2,40,000/-, for damages, mental agony and physical harassment: and cost of litigation, to the tune of Rs.25,000/-.
5. Opposite Parties No.1 to 4, in their joint written version, pleaded that the matter involved complicated questions of law and fact, and could not be decided by the District Forum, the proceedings before which were summary, in nature. It was further pleaded that Opposite Party No.3, Chairman of the New India Assurance Company Ltd., and Opposite Party No.4, Regional Manager of the Insurance Company, had been wrongly impleaded, because the insurance was obtained by the complainants, from the Divisional Office, and their names were liable to be deleted, from the array of the Opposite Parties. It was admitted that the complainants obtained a Householder Insurance Policy, the terms and conditions whereof were supplied to the them (complainants). It was stated that FIR was lodged after four days of the incident of theft/burglary, by the complainants, which was in violation of the terms and conditions of the Policy. It was further stated that, no due care and caution was taken by the complainants, to safeguard their property/articles. It was further stated that the Surveyor and Loss-Assessor, after collecting the information from the complainants, submitted his independent report dated 12.9.2012, copy whereof is Annexure OP/R-2. It was further stated that the Competent Authority of the Opposite Parties, after considering all the facts and due application of mind, found that the goods stolen, list whereof was supplied by the complainants, were not covered under the Insurance Policy. It was further stated that, accordingly, the Opposite Parties, vide letter dated 28.12.2012, Annexure OP/R-3, legally and validly repudiated the claim of the complainants. It was further stated that neither there was any deficiency, in rendering service, on the part of Opposite Parties No.1 to 4, nor they indulged into unfair trade practice. The remaining averments, were denied, being wrong.
6. Opposite Party No.6, in its written version, pleaded that it was only an agent and facilitator, for providing the Insurance Policy. It was stated that the loss of jewellery and household goods, suffered by the complainants, was to be indemnified by the Insurance Company, as per the terms and conditions of the Insurance Policy. It was further stated that neither there was any deficiency, in rendering service, on the part of Opposite Party No.6, nor it indulged into unfair trade practice. The remaining averments, were denied, being wrong.
7. Despite service, through Registered A.D. cover, none put in appearance, on behalf of Opposite Party No.5, as a result whereof, he was proceeded against exparte.
8. The complainants, Opposite Parties No.1 to 4, and 6, led evidence, in support of their case.
9. After hearing the Counsel for the complainants, Opposite Parties No.1 to 4, 6, and, on going through the evidence, and record of the case, the District Forum, partly accepted the complaint, in the manner, referred to, in the opening para of the instant order.
10. Feeling aggrieved, the instant appeal, has been filed by the appellants/Opposite Parties.
11. We have heard the Counsel for the appellants, at the preliminary stage, and, have gone through the evidence, and record of the case, carefully.
12. Since, the complaint against Opposite Parties No.3 to 6 (now appellants No.3 to 6) was dismissed by the District Forum, they could not be said to be the parties aggrieved, as envisaged by Section 15 of the Act, and, thus, the appeal instituted by them, was not maintainable. The appeal filed by them, was, thus, misconceived. Their names were, thus, ordered to be deleted, from the array of the appellants.
13. The Counsel for the appellants, submitted that, no doubt, the complainants purchased one House Holders Insurance Policy Annexure C-1, from the Opposite Parties, valid for the period from 17.06.2011 to 16.06.2012, on payment of premium of Rs.2530/-. He further submitted that the theft/burglary was reported after four days, which was in violation of the terms and conditions of the Policy, in question, as a result whereof, the Insurance Company was deprived of investigating the matter properly. He further submitted that the Insurance Policy Annexure OP/R-1, contained item-wise/ section-wise details of the items covered, with sum insured, as per the list Annexure C-9, supplied by the complainants, in the year 2008. He further submitted that the complainants did not intimate any change, in the subsequent renewals, after the year 2008. He further submitted that, as such, the list provided, in the year 2008, when the Policy for that year was obtained, continued to be applicable to the instant Policy. He further submitted that the list Annexure C-3, containing the stolen articles, which was supplied by the complainants, to the SHO, Police Station, Sector 11, Chandigarh, on 27.03.2012, showed that the items mentioned therein, were not covered, under the Insurance Policy. He further submitted that, as such, the District Forum, illegally allowed the complaint. He further submitted that the order of the District Forum, being illegal, and invalid, is liable to be set aside.
14. The first question, that falls for consideration, is, as to whether, the complainants lodged the FIR, after four days of the incident of theft/burglary. The theft/burglary, in the instant case, took place, on the night intervening 25/26.03.2012. It is evident, from Annexure C-4, copy of the FIR, registered under Sections 457/380, by the Police of Police Station, Sector 11, Chandigarh , that the same was lodged on 26.03.2012. It means that the FIR was lodged by Mr. Lalit Sharma, Advocate, on behalf of the complainants, as they (complainants) were statedly out of station, immediately, after the incident of theft/burglary. The submission of the Counsel for the appellants, that FIR was lodged, after four days of the theft/burglary, therefore, does not appear to be correct. Since there was a prompt lodging of the FIR, with the Police, with regard to the incident of theft/burglary, there was no violation of the terms and conditions of the Policy. The submission of the Counsel for the appellants, in this regard, being devoid of merit, must fail, and the same stands rejected.
15. The next question, that falls for consideration, is, as to whether, the theft/burglary took place, in the house of the complainants. From the FIR, copy whereof, is Annexure C-4, it was proved that there was a theft/burglary, in the house of the complainants, on the night intervening 25/26.03.2012. When intimation of theft/burglary was given to the Insurance Company, it appointed a Surveyor and Loss Assessor. The said Surveyor and Loss Assessor, gave the Report Annexure OP/R-2 dated 12.09.2012. It is evident from the Report of the Surveyor and Loss Assessor that he came to the conclusion that the theft/burglary took place, in the premises, in question. It is further evident, from the Survey Report, that the burglars had entered into the house of the complainants, from the front side, which was open and attached to the main road, making it easily accessible. Thereafter, they broke open the locks/latches of the front door, and gained entry to the house, as was apparent from the photographs. The Surveyor and Loss Assessor further concluded that complete house was ransacked, including cupboards, drawers, beds, almirahs etc. The locks of the almirahs and cupboard were found broken/tampered. The articles were lying scattered, in the house and had been searched thoroughly. It was further concluded by the Surveyor and Loss Assessor, in his Survey Report, that the insured had suffered loss, when some unidentified persons broke into their house, by forcibly breaking open the front door, at the ground floor, gaining access to the same. The incident of theft/burglary, in the house of the complainants, in respect whereof, the Policy had been obtained, was, thus, proved from the cogent and convincing evidence.
16. The next question, that falls for consideration, is, as to whether the list of articles insured, vide Policy Annexure C-1, was produced by the Opposite Parties, or not. According to the complainants, the articles, mentioned in Annexure 7-E, which are detailed hereunder, were stolen :-
S.No. Description (Gold) Amount Claimed
1.
Gold earrings 4 30,000.00
2. Gold Rings 3 30,000.00
3. Silver Plate 30,000.00
4. Silver Tumbler 12,000.00
5. Silver Bowl 6,000.00
6. Silver Coins 4 6,000.00
7. Silver Whistle 12,000.00
8. Laptop 67,000.00
9. Suit Lengths 4 20,000.00
10. Parker Pen Set 3 1,800.00
11. Video Camera 35,000.00
12. Mobile Phone 1,100.00
13. Cash 5,000.00 Total 2,55,900.00
17. From copy of the Insurance Policy Annexure C-1/OP-R-1, it is evident that Section 2 thereof related to Burglary and Housebreaking. The sum insured against Section 2 above was Rs.1,60,000/-. Section 3A of the Policy related to all risks of jewellery. The sum insured against this Section was Rs.20,000/-. Section 8 of the Policy related to baggage insurance. The sum insured against this Section was Rs.10,000/-. The details of Household goods insured under Section 2 of the Policy, were as per the list attached, as is evident, from the schedule attached with Annexure C-1, at page 16 of the District Forum file. The Opposite Parties did not produce any list of the insured articles, under Section 2 of the Policy, which was handed over by the complainants, at the time of obtaining the same (Insurance Policy), for the period from 17.06.2011 to 16.06.2012. When the complainants applied for supply of a list of the insured articles, under the Right to Information Act, 2005, Opposite Party No.1, supplied Annexure C-9 list dated 13.06.2008. Once, the Insurance Policy, for the period from 17.06.2011 to 16.06.2012 was obtained, by the complainants, and it was mentioned therein, that the articles were insured, as per the list attached, by no stretch of imagination, the list dated 13.06.2008, could be made applicable, to those articles. It was not the case of the Opposite Parties, that the list was not obtained by them, at the time of issuance of the Insurance Policy, for the period from 17.06.2011 to 16.06.2012. The act of the Opposite Parties, making the list dated 13.06.2008, applicable to the articles, which were stolen, in house breaking, during the currency of the Insurance Policy, for the period from 17.06.2011 to 16.06.2012, was not at all legally justified. The District Forum was also right, in holding so.
18. As stated above, the sum insured against burglary and housebreaking was Rs.1,60,000/-. The Household Goods, covered against burglary and house-breaking were as per the list attached, indicated in the schedule, at page 16 of the District Forum file, forming part of the Policy Annexure C-1. Since the list of household goods, insured as per the instant Policy, was not produced by the Opposite Parties, despite demanding the same, by the complainants, it could be very well said that the same was intentionally withheld by them. Thus, an adverse inference could be drawn, against them, that had that list been produced, it would have falsified their claim that the goods stolen were not covered under the Policy. Since the list Annexure C-9, supplied by the Opposite Parties was of 13.06.2008, which was not relatable to the Policy, valid for the period from 17.06.2011 to 16.06.2012, no reliance on the same could be placed. Under these circumstances, the list Annexure 7E, of the stolen household articles, supplied by the complainants, first in point of time, duly corroborated by Mr. Jagdish Rai Mittal, one of the complainants, by way of his affidavit was rightly relied upon by the District Forum. Value of the house-hold goods (except jewellery and baggage) stolen, as mentioned in the list Annexure 7E, depicted in para 16 above, far exceeded the sum of Rs.1,60,000/-. Under these circumstances, the complainants were entitled to a sum of Rs.1,60,000/-, the sum assured, against burglary and house breaking, as per the Policy aforesaid. The District Forum was also right, in holding so.
19. All risks for jewellery, as per Section 3A of the Insurance Policy Annexure R-1, were for the sum insured, to the tune of Rs.20,000/-. In the description of jewellery, given in the Insurance Policy, kara, chain and tops were mentioned. The gold ear-rings, value of which was Rs.30,000/-, were stolen, as per Annexure 7-E, the list supplied by the complainants. The District Forum was also right, in holding that the ear-rings, which were stolen, fell within the description of tops, which were insured. The District Forum was, thus, right in holding that the complainants were entitled to Rs.20,000/-, the sum assured, in respect of the jewellery, referred to above.
20. The baggage containing personal effects, was also insured, for a sum of Rs.10,000/-, as per the Insurance Policy. The District Forum, came to the conclusion that certain gifts including the suit lengths, camera, parker pens etc., were lying in the house. The District Forum was also right, in coming to the conclusion that these articles were covered under the baggage insurance, which was to the tune of Rs.10,000/- only. The District Forum, was, thus, right in holding that the complainants were also entitled to a sum of Rs.10,000/-, towards baggage insurance.
21. The District Forum was, thus, right in holding that the complainants were entitled to be reimbursed, to the extent of Rs.1,90,000/-, in all, under various heads, referred to above. The findings of the District Forum, in this regard, being correct are affirmed.
22. Thus, by repudiating the genuine claim of the complainants, Opposite Parties No.1 and 2, were certainly deficient, in rendering service. The District Forum was also right, in coming to such a conclusion. The findings of the District Forum, in this regard, being correct are affirmed.
23. No other point, was urged, by the Counsel for the appellants.
24. In view of the above discussion, it is held that the order passed by the District Forum, being based on the correct appreciation of evidence, and law, on the point, does not suffer from any illegality or perversity, warranting the interference of this Commission.
25. For the reasons recorded above, the appeal, being devoid of merit, must fail, and the same is dismissed, at the preliminary stage, with no order as to costs. The order of the District Forum is upheld.
26. Certified copies of this order, be sent to the parties, free of charge.
27. The file be consigned to Record Room, after completion Pronounced.
30/04/2014 Sd/-
[JUSTICE SHAM SUNDER (RETD.)] PRESIDENT Sd/-
(DEV RAJ) MEMBER Sd/-
(PADMA PANDEY) MEMBER Rg