State Consumer Disputes Redressal Commission
New India Assurance Company Limited vs M/S Uday Indane Service on 19 February, 2016
2nd Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH
First Appeal No. 235 of 2015
Date of institution: 27.2.2015
Date of Decision: 19.2.2016
1. New India Assurance Company Ltd., Regional Office, SCO No. 36-
37, Sector 17-A, Chandigarh through its Manager (Legal)
2. The New India Assurance Co. Ltd., through its Manager, G.T. Road,
Dasuya.
Appellant/Op
Versus
M/s Uday Indane Service at Village Bhattian Rajputan, Gurdaspur Road,
Mukerian, District Hoshiarpur through its Proprietor Sangram Singh.
Respondent/Complainant
First Appeal against the order dated 7.1.2015
passed by the District Consumer Disputes
Redressal Forum, Hoshiarpur.
Quorum:-
Shri Gurcharan Singh Saran, Presiding Judicial Member
Shri Jasbir Singh Gill, Member
Mrs. Surinder Pal Kaur, Member
Present:-
For the appellants : Sh. B.S. Taunque, Advocate
For the respondent : Sh. Mukand Gupta, Advocate
First Appeal No. 235 of 2015 2
2nd Appeal
First Appeal No. 446 of 2015
Date of institution: 24.4.2015
M/s Uday Indane Service at Village Bhattian Rajputan, Gurdaspur Road,
Mukerian, District Hoshiarpur through its Proprietor Sangram Singh.
Appellant/Complainant
Versus
The New India Assurance Co. Ltd., through its Manager, G.T. Road,
Dasuya.
Respondent/Op
First Appeal against the order dated 7.1.2015
passed by the District Consumer Disputes
Redressal Forum, Hoshiarpur.
Quorum:-
Shri Gurcharan Singh Saran, Presiding Judicial Member
Shri Jasbir Singh Gill, Member
Mrs. Surinder Pal Kaur, Member
Present:-
For the appellant : Sh. Mukand Gupta, Advocate
For the respondent : Sh. B.S. Taunque, Advocate
Gurcharan Singh Saran, Presiding Judicial Member
ORDER
This order will dispose of both the above mentioned two appeals as both the appeals are cross appeals against the impugned order dated 7.1.2015 passed in Consumer Complaint No. 34 dated 17.2.2014 by the District Consumer Disputes Redressal Forum, First Appeal No. 235 of 2015 3 Hoshiarpur(in short the "District Forum") vide which the complaint filed by complainant was partly allowed with direction to Op to pay to the complainant a sum of Rs. 3,92,405/- on fulfilling the required formalities. They were further directed to pay Rs. 10,000/- as compensation and Rs. 15,000/- as litigation costs. It was further ordered to pay the amount within 30 days, failing which it shall carry interest @ 9% p.a. from the date of order till realization.
2. Complaint was filed by complainant under the Consumer Protection Act, 1986 (in short 'the Act') against Op on the averments that being Distributor of Indane LPG at village Bhattian Rajputan, District Hoshiarpur, he got policy from Op for fire, theft and allied perils alongwith cylinder in transit, cash in transit, furniture and all other articles lying in the office of the Company for the period 24.3.2009 to 23.3.2010 after paying the requisite premium and policy No. 361603/46/08/22/00000914 was issued. One Vishnu son of Dhanpati was chowkidar in their firm. On the intervening night of 13/14.1.2010 at about 3.30 a.m., Chowkidar came to his residence and stated that some unidentified persons after criminally trespassing the premises forcibly took the keys of official godown from him, under the threat to kill him. They also took the mobile of Chowkidar. They break open the locks of the office and godown and took away 153 empty cylinders, 11 filled cylinders of 14.2 Kgs., 18 empty cylinders of 19 Kgs. and 1 filled cylinder of 19 Kg., 2 computer sets with UPS, 2 mobile phones having numbers 9877112015 and 9877112016, 2 large inverter batteries and cash worth Rs. 1,16,500/-. FIR No. 9 dated 14.1.2010 was got registered with PS Mukerian. Indane Oil First Appeal No. 235 of 2015 4 Corporation recovered a sum of Rs. 2,67,500/- from the complainant for the theft of said cylinders. Complainant lodged the claim with Op for a sum of Rs. 5,65,192.50p but Op did not pay even a single penny despite his visit to Op number of times, which amounted to deficiency in service on the part of Op. Complainant had filed the complaint, which was decided by the Forum on 21.2.2012 with direction to the complainant to supply non-traceable report to Op within 30 days and thereafter, Op was directed to decide the claim within 30 days. Non- traceable report was available with complainant only in 2013, therefore, he moved an application before the Forum for extension of time with the District Forum and the District Forum vide order dated 25.11.2013 extended the time to supply the non-traceable report within 30 days from the date of receipt of the copy of the order. Complainant received a letter of Op on 10.1.2014 vide which they had approved the claim of Rs. 2,08,000/- for which they required the indemnity bond, subrogation letter, undertaking and bank account number. However, Op had not decided the claim according to the facts, which were supplied to Op. A sum of Rs. 2,08,000/- offered by Op was not acceptable to him. Non-settlement of the claim in a proper manner amounted to deficiency in service on the part of Op. Hence, the complaint with the direction to Op to pay the amount of loss of Rs. 5,65,192.50p, compensation of Rs. 1,50,000/- alongwith interest @ 12% p.a. from the date when the claim was originally filed.
3. Complaint was contested by Op, who filed written reply taking preliminary objections that the claim of the complainant was already settled for a sum of Rs. 2,08,000/- on the recommendation of First Appeal No. 235 of 2015 5 IRDA surveyor and intimation was given to the complainant vide letter dated 10.1.2014 and said claim was pending for want of documents from the complainant as he failed to supply the letter of subrogation, letter of indemnity and letter of undertaking and bank account particulars; complaint was bad for non-joinder of necessary parties; intricate questions of law and facts were involved, which requires lengthy full scale trial, which was not possible in summary procedure under the Act, therefore, the matter be relegated to the Civil Court; complainant was estopped by his act and conduct to file this complaint and that the complainant had not approached the Forum with clean hands. On merits, issuance of the policy was admitted. Complainant was entitled to claim as per terms and conditions of the policy. According to FIR, originally it was mentioned 40-50 cylinders were taken away but lateron the number was increased to 153 cylinders. Claim to the extent of Rs. 5,65,192.50 was lodged. Government approved independent surveyor Sh. Rajesh Gupta was deputed to assess the loss, who assessed the loss to the extent of Rs. 2,08,888/-. It was denied that complainant suffered a loss of Rs. 5,65,192.50p. Therefore, there was no deficiency in service on the part of Op. Complaint was without merit, it be dismissed.
4. The parties were allowed by the learned District Forum to lead their evidence.
5. In support of his allegations, the complainant had tendered into evidence complainant's affidavit Ex. C-1, letter Ex. C-2, policy Ex. C-3, order dt. 25.11.13 Ex. C-4, FIR Ex. C-5, report Ex. C- 6, letter dt. 15.1.10 Ex. C-7, letter of IOC Ex. C-8, invoice/bills Exs. First Appeal No. 235 of 2015 6 C-9 to C-15, order dt. 21.2.12 Ex. C-16, affidavit of Sangram Singh Ex. C-17. On the other hand, Op had tendered into evidence affidavit of Ram Kishan Ex. Op-1, letter dt. 10.1.14 Ex. Op-2, surveyor report Ex. Op-3, ins. Policy Ex. Op-4, ins. Policy details Ex. Op-5, affidavit of Rajesh Gupta Ex. Op-6, ins. Policy Ex. Op-7.
6. After going through the allegations in the complaint, written version filed by Op, evidence and documents brought on the record, the complaint was allowed as referred above.
7. Aggrieved with the order passed by the learned District Forum, appellant/Op-Ins. Co. has filed First Appeal No. 235 of 2015 for decrease in the compensation amount whereas appellant/complainant has filed First Appeal No. 446 of 2015 for enhancement.
8. We have heard the learned counsel for parties.
FIRST APPEAL NO. 235 OF 2015
9. It has been argued by the counsel for the appellant that policy No. 361603/46/08/22/00000914 was taken by complainant from Op and main features of the policy are as under:-
1. Sec. I. Fire & Allied Perils entire building worth 12,50,000/-
Rs. 5,00,000/-, Furniture Rs. 1,50,000/-
2. Sec. II Burglary & Housebreaking Cylinder + 7,50,000/-
Furniture 6 Lac + 1.5 Lac
3. Sec. III. Cylinder in Transit worth Rs. 3,00,000/- 3,00,000/-
4. Sec. IV. Cash in Transit (Carring limit not 50,000/-
exceed Rs. 50,000/-)
5. to Xxxx xxxx xxxx xxxx xxxx 14
10. It was admitted that after the incident, claim was lodged with Op. Op does not deny the theft/burglary taken place in the First Appeal No. 235 of 2015 7 insured premises but the dispute is only with regard to the quantum of compensation allowed by the District Forum. Counsel for Op has pointed out Clause 2 under which burglary/house breaking for cylinder + furniture Rs. 6 lacs + Rs. 1.5 lacs was covered. Investigator was appointed in this case and investigator's report on the record is Ex. Op-3. He in his report has submitted that total loss with regard to LPG cylinder has been fixed as Rs. 2,73,905/- but on the date of occurrence, stock of the complainant was worth Rs. 17,92,796.01 whereas the policy was taken only for Rs. 6,00,000/-, therefore, average clause will apply and after applying the average clause, he had assessed the loss to the tune of Rs. 90,388/-. Whereas the District Forum has allowed the full amount of Rs. 2,67,500/- without applying the average clause on the plea that the terms and conditions of the policy were not supplied to the complainant.
11. We have gone through the complaint filed by the complainant. The complaint is silent that alongwith the insurance policy terms and conditions of the policy were not supplied to him. Therefore, in case no specific plea has been taken in the complaint then he cannot argue that policy terms and conditions were not supplied to him. Counsel for the appellant/Op has referred to III (2010) CPJ 5 (NC) "United India Insurance Company Ltd. & Anr. Versus Subhash Chandra" wherein it was observed by the Hon'ble National Commission that principle of insurance are fundamental to utmost good faith, forbids contracting parties from non-disclosure of material facts. Respondent being literate, expected to ascertain policy First Appeal No. 235 of 2015 8 terms before hand, therefore, repudiation on the ground of material concealment was justified. Here also the complainant running a Gas Agency, therefore, it was expected from him to go through and verifying the terms and conditions of the policy. To apply the average clause, stock at the time of incident and stock under insurance are to be taken and in case it is under insurance then average clause will apply. On this point, there is judgment of the Hon'ble Supreme Court reported in III(200( CPJ 90 (SC) "Sikka Papers Limited versus National Insurance Company Ltd. & Ors." wherein it was observed by the Hon'ble Supreme Court that if sum assured less than amount required to be insured, insurer will pay in such proportion as sum insured bears to amount insured. Prorata formula applied by Surveyor. Here in this case also the Surveyor had applied the prorata formula as an average clause then he had come to the conclusion that the complainant is entitled to Rs. 90,000/-, therefore, District Forum was not justified to award Rs. 2,67,000/- on account of loss of Gas Cylinder when his stock was under insurance. Even during the course of arguments, counsel for the respondent/complainant was unable to rebut this factual and legal preposition.
12. Counsel for the appellant/Op further assailed the order of the District Forum with regard to payment of Rs. 1,16,500/- i.e. cash loss. Again in case we go to the policy clause 2, burglary/house breaking was for cylinder and furniture and not for cash or other articles. Otherwise there was insurance for cash in transit upto Rs. 50,000/- but no cash was taken away while in transit, therefore, Clause 4 will not apply. Whereas counsel for respondent/complainant First Appeal No. 235 of 2015 9 has argued that burglary/house breaking covered everything in the premises. Apart from cash, the complainant had alleged the theft of two computers, two mobile sets, two large inverter batteries. The Surveyor in his report stated that except Gas Cylinder other items were not covered nor these were appearing in the balance sheet of the insured. Therefore, in case batteries, mobile, computers were not insured then how the cash lying in the insured premises was insured. In that manner, even the Surveyor had wrongly allowed a sum of Rs. 1,16,500/- as a loss of the cash. When there is no specific coverage for the cash and other items then Op or the Consumer Fora cannot allow that claim because we cannot go beyond the terms and conditions of the policy. It has been so held by the Hon'ble National Commission in the judgment III (2010) CPJ 432 (NC) "New India Assurance Company Ltd. & Ors. versus Anil Traders" wherein it was held that parties are bound by terms and conditions incorporated in insurance policy. Consumer Fora cannot alter or modify terms of contract just because they consider to be unreasonable. Therefore, complainant will not be entitled to a sum of Rs. 1,16,500/- i.e. loss of cash from the insured premises. A sum of Rs. 6,405/- i.e. on account of LPG Gas, repair of furniture, repair of building has not been challenged by counsel for the appellant during the course of arguments. Therefore, the order so passed by the District Forum requires modification.
First Appeal No. 235 of 2015 10
13. In view of the above, we partly accept the appeal. Instead of Rs. 3,92,405/-, complainant will be entitled to Rs. 90,388/- + Rs. 6,405/- + Rs. 2,000/-, total Rs. 98,793/-. So far as compensation and litigation expenses are concerned, it will be the same as allowed by the District Forum.
FIRST APPEAL NO. 446 OF 2015
14. This appeal has been filed by complainant for enhancement of the amount. However, keeping in view our findings in First Appeal No. 235 of 2015, complainant will not be entitled to enhancement because amount as allowed by the District Forum has been decreased by us in view of the findings recorded in that appeal. However, counsel for appellant/complainant stated that interest has been awarded by the District Forum from the date of order whereas it should have been from the date of filing the claim or after deducting a reasonable time for settling the claim. Claim was lodged by the complainant but no specific date has been mentioned in para No. 5 of the complaint. However, complaint was filed on 23.9.2011, which was decided on 21.9.2012 with the direction to Op to settle the claim of the complainant, therefore, atleast the interest should have been awarded from the date of that complaint. Therefore, instead of date of order, the complainant will be entitled to interest @ 9% w.e.f. 23.9.2011 till the date of payment.
15. The appellant-New India Assurance Co. Ltd. in F.A. No. 235 of 2015 had deposited an amount of Rs. 25,000/- & Rs. 1,75,000/- with this Commission in the appeal. Out of these amounts, Rs. 98,793/- with interest @ 9% p.a. w.e.f. 23.9.2011 till the date of First Appeal No. 235 of 2015 11 payment; be remitted by the registry to respondent/complainant by way of a crossed cheque/demand draft and the remaining amount with interest accrued thereon, if any, be remitted by the registry to appellant No. 1 by way of a crossed cheque/demand draft after the expiry of 45 days, from the despatch of the order to the parties; subject to stay, if any, by the higher Fora/Court.
16. The arguments in these appeals were heard on 16.2.2016 and the orders were reserved. Now the orders be communicated to the parties as per rules.
17. The appeals could not be decided within the statutory period due to heavy pendency of Court cases.
(Gurcharan Singh Saran) Presiding Judicial Member (Jasbir Singh Gill) Member February 19, 2016. (Surinder Pal Kaur) as Member