State Consumer Disputes Redressal Commission
Oic Ltd. vs Sh. Prem Goel on 11 September, 2009
H H.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION, SHIMLA. ----------- RESERVED ON 1.9.2009. DATE OF DECISION: 11.9.2009. In the matter of: FIRST APPEAL NO.12/2009. Oriental Insurance Company, Branch Office, Kothi No.4, Opposite Anup Service station, Kaithu, Shimla-3, H.P. through its Senior Divisional Manager, Divisional Office, Mythe Estate, Kaithu, Shimla-3, H.P. Appellant. Versus Sh. Prem Goel S/O Sh. Ram Rattan Goel, R/O Marl Brough House, Chhota Shimla, Tehsil & District Shimla, H.P. Respondent. Present: Mr. J.S. Bagga, Advocate, For the appellant. Mr. Dheeraj Kanwar, Advocate, For the respondent. Appeal No.133/2009 Sh. Prem Goel S/O Sh. Ram Rattan Goel, R/O Marl Brough House, Chhota Shimla, Tehsil & District Shimla, H.P. . Appellant. Versus Oriental Insurance Company, Branch Office, Kothi No.4, Opposite Anup Service station, Kaithu, Shimla-3, H.P. through its Senior Divisional Manager, Divisional Office, Mythe Estate, Kaithu, Shimla-3, H.P. Respondent. Present: Mr. Dheeraj Kanwar, Advocate. For the appellant. Mr. J.S. Bagga, Advocate, For the respondent. ------------------------------------------------------------------------------------------- Honble Mr. Justice Arun Kumar Goel (Retd.), President. Honble Mrs. Saroj Sharma, Member. Honble Mr. Chander Shekhar Sharma, Member. Whether approved for reporting? No -------------------------------------------------------------------------------------------------- O R D E R
Justice Arun Kumar Goel (Retd.), President.
1. These appeals are directed against the order passed by the District Forum, Shimla, in Consumer Complaint No.248/2006, decided on 29.11.2008. While allowing the complaint, Insurers hereinafter referred to as the OPs, have been directed to indemnify the complainant, who is being referred to hereinafter as such, in the sum of Rs.2,20,325/-, with interest @ 9% per annum from the date of filing of the complaint i.e. 29.8.2006 till the full payment was made of this amount, alongwith cost of Rs.2,000/-. This order has been directed to be complied with by the OPs within 45 days of the receipt of its copy.
2. Both parties are aggrieved from the said order.
In these circumstances OPs have filed Appeal No.12/2009, whereas complainant has filed Appeal No.133/2009. According to the OPs, impugned order cannot be sustained in the facts and circumstances of this case, as such it is prayed that while allowing their appeal, impugned order may be set aside and complaint dismissed. On the other hand, complainant in his Appeal has prayed for grant of compensation as well as interest after allowing reasonable time for settlement of the claim till the date of its payment to him in addition to punitive costs as well as cost of the appeal.
3. Admitted facts giving rise to these appeals are that on 4.2.2005, when theft took place in the residential premises of the complainant, it was insured under a valid policy of insurance issued by the OPs. House was closed as the complainant alongwith his family members was away due to winter vacations. He received a telephonic message from his younger brother on 4.2.2005 who is also residing in one of the sets on the ground floor of the premises where complainant resides. His brother had found the left side open and monkeys entering the room and the kitchen. Brother of the complainant got the keys from the neighbourer and found that there was theft in the house.
4. In these circumstances, complainant deputed his son who was at Mandi. He on reaching Shimla informed the complainant that window was opened by the thieves and thereafter lock of the room was opened.
Things lying in the room were scattered here and there. Police was immediately approached. S.H.O. with his staff visited the spot and F.I.R. was lodged. Its copy is Annexure C.1. Insurance particulars are contained in Annexure C.2. House was insured under a Householders Insurance Policy against fire and allied perils in the sum of Rs.2,62,000/-, burglary, house breaking also in the same amount, baggage Rs.3,000/-, public liability Rs.25,000/- and personal accident Rs.1,00,000/-.
5. In the aforesaid background, complainant on the demand of the OPs submitted burglary claim form, Annexure C.4, particulars of the items stolen from his flat are mentioned in the statement, copy whereof is at page 16 of the complaint file. According to this list, the total loss sustained because of burglary/theft in his house when it was validly insured, was to the sum of Rs.2,20,025/-. Complainant has also placed on record besides copy of F.I.R., bills to show that he had purchased the stuff which according to him had been burgled by the thieves. Vide Annexure OP.3 dated 17.8.2006, OPs informed the complainant, that the articles claimed to have been stolen by him in his letter dated 2.5.2005 were not covered under the policy as per survey report of Shri R.K. Dhiman, deputed for the said purpose. Description of stolen jewellery and that of covered under policy, these did not tally, and the F.I.R. was silent regarding its theft. As such he was called upon to say what he has to state within 15 days as to why his claim should not be closed as, no claim. Particulars of the articles burgled from the house are given in Annexure OP.4 and OP.4/A.
6. When put to notice in the complaint, OPs resisted the same by raising the plea that the list of burgled articles did not tally with those as detailed in the insurance cover. Similarly some of the goods stated to have been stolen, were not insured according to the OPs. Since the complainant failed to reply to the letter Annexure OP.3 within 15 days, therefore OPs were not liable to pay any amount. While admitting insurance, it pleaded that Surveyor was deputed who after completing the investigation submitted his report dated 6.2.2006 to OP No.2. As per this report, list of articles stolen/burgled was not tallying with the articles insured as per policy issued by the OPs. Plea of the complainant that his claim had been repudiated was denied. As according to them the claim file has not been consigned to record room till date. It was however admitted that the complainant is an old client of the OPs and they were willing to settle the claim in terms of the policy conditions.
7. In rejoinder, the averments made by the OPs which were contrary to the facts detailed in the complaint were denied. Loss having been sustained on account of the insured articles to the extent of Rs.2,20,025/- was reiterated. Reliance is also placed on the affidavits of Shri Rajneesh Kumar Dhiman, Surveyor, as well as of Shri N.K. Hazari, Assistant Manager of the OPs.
What is set out in their reply is reiterated in both these affidavits.
8. In the aforesaid background it was urged on behalf of the OPs that even now they are ready and willing to settle the matter across the table provided the complainant satisfies them about burgled property in terms of the insurance policy as well as of the articles insured as per list attached with it. As according to Mr. Bagga, his clients have never repudiated the claim of the complainant at any point of time. As such, complaint was pre-mature. He thus prayed for a direction to the complainant to approach his clients and after they had been satisfied, OPs would be more than willing to examine the case and release admissible amount, if any.
Alternatively he urged that the articles insured as per list did not tally with the articles including jewellery which is alleged to have been burgled from the house of the complainant. In these circumstances there was no deficiency in service on the part of his client which may justify filing of the complaint. He thus prayed for allowing the appeal by setting aside the impugned order and dismissing the complaint as well as the appeal filed by the complainant.
9. All these pleas were seriously contested and resisted by Mr. Kanwar, learned Counsel for the complainant. Per him in Annexure OP.4 and Annexure OP.4/A, his client had provided threadbare details of the stolen articles which were burgled from his house. In these circumstances, stand of the OPs that the list did not tally with the articles insured is a plea coined by them to unnecessarily delay the payment of genuine claim of his client. According to him, his client was entitled to damages besides punitive costs, cost of this appeal, as well as interest on the amount as awarded by the District Forum below. Thus he prayed for allowing the appeal filed by his client and dismissing the appeal filed by the OPs with costs.
10. On examination of the complaint file, as well as keeping in view the stand of the OPs, what emerges is that since articles stated to have been burgled from the house of the complainant did not tally with the list of insured articles and part of the burgled articles were not covered, as such they were not liable for indemnifying the complainant. However, they gave a chance to the complainant to satisfy them within 15 days as per Annexure OP.3, failing which they would close the file as no claim.
11. In order to succeed that the list of articles which were burgled from the house of the complainant, it is for the OPs to have placed on record the list with which such articles did not tally. Reason being that no such list has been placed on record.
In the ordinary course of things, before undertaking the insurance/renewing the existing insurance policy, it is the duty of the Agent/Development Officer to have satisfied himself as to what was being insured and whether it actually exists or not.
We will go to the extent of holding in this behalf, that when the insurance was undertaken while renewing the policy in question, the Agent/Development Officer had satisfied himself regarding what was being insured. Therefore, the report of the Surveyor that some of the articles were not insured whereas other did not tally is a finding based on no acceptable evidence.
Reason being that there is no list produced on record by the OPs. Whereas during the relevant period, appellant has produced on record not only complete details of the articles burgled but also the date of purchase and in some cases bills have also been placed on record. There is no rebuttal to this.
12. Suffice it to say in this behalf that when it comes to insuring, the OPs would accept the details given by an insured like complainant in these appeals before us, but when it comes to settlement of claim, all sorts of hurdles are put forth to defeat the claim. Best person to have said anything in this behalf is either the Agent or the Development Officer, who had undertaken renewal of insurance regarding his having satisfied as to what was insured and/or what was not insured. They were the best persons to have given evidence, have not been examined nor their affidavits filed. Why, Mr. Bagga could not satisfy us. Though he persisted with vehemence that his clients could settle the claim provided necessary information etc. is given by the complainant. Theft is of 4th February, 2005. It is more than 4 years, OPs want the clock to be taken back. Till now, the complainant has been running to the Police Station and then has been dragged to litigation without having seen the face of the coin.
13. In this behalf we may also observe that it is not the case of the OPs that the house of the complainant was not burgled and/or theft had not taken place. Their only plea was that some of the burgled articles were not insured, whereas list of others did not tally. This aspect we have already dealt with earlier in this order. Only thing being reiterated at the risk of repetition is that list of articles stated to have been insured during the relevant period has been withheld by the OPs. Therefore, adverse inference needs to be drawn against them, that in case the same had been produced, it would not have supported their defence set out while contesting the complaint filed by the complainant.
14. Thus on an overall examination of the whole case, and on the basis of the materials on record, as well as of preponderance of evidence, we are of the view that there is no substance in the appeal filed by the OPs-Insurers, i.e. Appeal No.12/2009 and it is liable to be rejected.
15. Now coming to the appeal No.133/2009 filed by the complainant. In the ordinary course of things, OPs were supposed to have settled the claim within reasonable time.
And as already observed in the preceding paras, list of the articles insured under the policy, that was in force per OPs on the date of burglary has admittedly not been produced by them. Why, could not be explained by Mr. Bagga, their learned Counsel. We feel that within 6 months from the date of theft i.e. 4.2.2005, the claim should have been settled. District Forum below has allowed interest on the compensation awarded from 29.8.2006 i.e. the date of complaint. In our opinion, it should have been with effect from 5th of August, 2005. Impugned order needs to be modified.
16. So far claim of compensation as well as plea of enhancement of interest is concerned, we do not find any substance on an overall examination of the whole case, therefore the claim made in that behalf is rejected.
17. No other point was urged.
In view of the aforesaid discussion, Appeal No.12/2009 filed by the OPs is dismissed. All interim orders passed in this appeal shall stand vacated forthwith.
So far Appeal No.133/2009 is concerned, it is partly allowed, thereby holding that interest on the sum of Rs.2,20,325/- will be payable at the rate of 9% per annum, but from 5.8.2005 till the date of payment/deposit whichever is earlier. Cost assessed by the District Forum is upheld. At the same time complainant is also held entitled to cost of this litigation fixed at Rs.3,000/-.
Subject to this modification, order of the District forum below in Complaint No.248/2006, dated 29.11.2008 is modified in these terms. Both the appeals stand disposed of.
Office is directed to place an authenticated copy of this order on the file of Appeal No.133/2009.
Learned Counsel for the parties have undertaken to collect copy of this order free of cost from the Court Secretary as per rules.
Shimla, September 11, 2009.
( Justice Arun Kumar Goel ) (Retd.) President ( Saroj Sharma ) Member ( Chander Shekhar Sharma ) /BS/ Member