State Consumer Disputes Redressal Commission
M/S New Mansarowar. vs New India Assurance Co. Ltd. on 26 November, 2020
H. P. STATE CONSUMER DISPUTES REDRESSAL
COMMISSION, SHIMLA
RBT/CC No. : 14/2020
Date of Presentation: 19.12.2018
Order Reserved on : 04.11.2020
Date of Order : 26.11.2020
......
M/s New Mansarowar R/o Shop No.111, Lower Bazar, Shimla,
H.P. Through Sh. Rajeev Wadwa (Prop.) S/o late Sh. R.C. Badwa,
R/o Surender Building, G/F Marina Annexe, Shimla, H.P.
...... 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 complainant, has filed this complaint under Section 17 of the Consumer Protection Act, 1986 for issuance of following directions to the opposite party :-
i) to direct the OP to settle the claim under Insurance Policy No.35140148160600000009 vide customer ID P014423462A/C M/S New 1 Whether reporters of the local papers may be allowed to see the order?
M/s New Mansarowar Versus The New India Assurance Company Ltd.
RBT/CC/14/2020 Mansarowar i.e.Rs.14,33,361/- (Rupees Fourteen Lacs Thirty Three Thousand Three Hundred Sixty One only;
ii) award compensation of Rs.15,00,000/-to the
complainant on account of mental agony,
physically harassment and financial losses;
iii) saddle the opposite parties with special and extraordinary 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. Brief facts, as set out in the complaint, are that Sh.Rajiv Wadwa is proprietor of M/S New Mansarowar which is dealing in the business of sale of mobile phones. He obtained the aforesaid insurance policy, Annexure C-1, to secure losses against Fire and allied perils and burglary and house breaking for a sum insured of Rs.20,00,000/- for the period from 07.04.2016 to 06.04.2017. On 01.01.2017, the locks of the shutter of the shop of the complainant were broken by some unknown persons and mobile handsets of Samsung and Tabs and cash were found missing. The matter was reported to the police on the same day upon which FIR 2 M/s New Mansarowar Versus The New India Assurance Company Ltd.
RBT/CC/14/2020 No.0004 under section 457, 380 IPC dated 02.01.2017 was registered in Police Station Sadar, Shimla. Intimation about this theft was also given by the complainant to the opposite party. After completion of all codal formalities the complainant submitted his claim to the opposite party for the loss suffered by him in this incident. However, even after lapse of one year the opposite party has failed to settle his claim. Hence, this complaint.
3. Upon notice, the OP appeared and filed reply to the complaint by raising preliminary objections inter-alia on the ground that the complainant is not a consumer, this commission has no pecuniary jurisdiction to entertain this complaint, the loss suffered by the complainant is not covered under the policy, complainant is bad for non joinder of necessary parties and that the complaint involves complicated questions of facts and law which cannot be decided by this commission in summary proceedings. On merits the opposite party has submitted that the complainant got insured furniture, fixtures and fittings along with stock in trade i.e. all kinds of mobile accessories and allied goods for a sum of Rs.20,00,000/- under Shopkeepers Insurance Policy and the Insurance policy was effective w.e.f. 07.04.2016 to 06.04.2017. On receipt of intimation about theft, the opposite party appointed Sh.Surender Kumar Soni, Chartered Accountant, Surveyor and Loss Assessor, to conduct the 3 M/s New Mansarowar Versus The New India Assurance Company Ltd.
RBT/CC/14/2020 survey, who conducted the survey on 1st and 2nd of January, 2017 in the presence of the complainant and submitted his report dated 23.04.2017, Annexure OP-3 (colly). The surveyor had assessed the loss and recommended Rs.9,43,002/- subject to terms and conditions of the policy. After receiving the report of the surveyor, it was found that the loss suffered by the complainant was not covered under the subject matter of the policy because under the policy it was all kinds of Nokia mobile phones with attachment and accessories which were insured whereas the loss suffered by the complainant pertained to some mobile phones other than Nokia mobile phones. The opposite party vide letters dated 15.09.2017 and 27.11.2018, Annexures OP-4 and OP-5, requested the surveyor to clarify this discrepancy which was clarified by him vide letter dared 04.12.2018, Annexure OP-6. After receiving the clarification from the surveyor the matter was processed by the opposite party and it was found that the subject matter of the insurance cover under the policy was all kinds of Nokia mobiles and accessories only whereas the loss the loss in question had occurred to other than Nokia mobile phones. The complainant had never informed the opposite party regarding the change of the subject matter of the policy nor he had ever raised any objections regarding the subject matter of the policy. Therefore, on the basis of the clarification given by the final surveyor the opposite party repudiated the 4 M/s New Mansarowar Versus The New India Assurance Company Ltd.
RBT/CC/14/2020 claim of the complainant vide letter dated 10.01.2019, Annexure OP-7, which was also approved by its Divisional Office. There is no deficiency in service or unfair trade practice on the part of the opposite party. Hence this complaint is liable to be dismissed being devoid of merits.
4. The complainant has filed rejoinder in which the pleadings of the opposite party were denied and the averments made in the complaint were reaffirmed.
5. To prove her claim, the complainant has tendered into evidence his affidavit as Ex.C-1. On the other hand, opposite party tendered in evidence affidavits of Sh.Sh.Vikas Garg, Deputy Manager,Ext.OP-1 and surveyor Sh.Surinder Kumar Soni, Ext.OP-2 along with documents as Ex.OP-1 to Ex.OP-7.
6. We have heard the learned counsel for the parties and have also carefully gone through record.
7. Learned counsel for the complainant vehemently argued that the complainant got insured the entire furniture, fixtures and fittings and stock in trade which included the mobiles of all makes and models. The shop of the complainant was burgled during the period when the insurance policy of the complainant was in force. The complainant had suffered loss to the tune of Rs.14, 33,361/- in this occurrence which was also verified by the surveyor appointed by the opposite party, who had also recommended 5 M/s New Mansarowar Versus The New India Assurance Company Ltd.
RBT/CC/14/2020 to pay compensation to the complainant. The opposite party has, however, wrongly and illegally refused to indemnify the complainant for the loss suffered by him. Therefore, in the facts and circumstances of the present case the complainant is entitled to claim atleast the amount of compensation recommended by the surveyor appointed by the opposite party.
8. Per contra, the learned counsel for the opposite party has argued that the relationship between the parties are governed by the terms and conditions contained in the insurance policy which are binding on both of the parties. According to him the stock in trade which was insured by the complainant vide policy, Annexure OP-1, included all types of Nokia mobile phones with attachment and accessories only whereas the theft in question had occurred in respect of the mobile phones other than Nokia mobile phones. Therefore, the loss suffered by the complainant was not covered under the policy in question and as such the opposite party has no obligation under policy in question to indemnify the complainant for the loss suffered by him. Hence the opposite party has rightly repudiated the claim of the complainant vide letter dated 7.12.2018, Annexure, OP-7.
9. We have given our thoughtful consideration to the contentions raised by the learned counsel for the parties. 6
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10. The relationship between the insurer and the insured are governed by the terms and conditions contained in the Insurance Policy. It is also to be noted that the terms of the policy have to be construed as it is and there is no scope for adding or subtracting something. However liberally the policy may be construed, such liberalism cannot be extended to permit substitution of words which are not intended. (See United India Insurance Co. Ltd. V Harchand Rai Chandan Lal (2004) (8) SCC 644 and Polymat India (P) Ltd. V. National Insurance Company Ltd. and Ors. (2005 (9) SCC
174).
11. In the present case the shop of the complainant was insured by the opposite party vide policy, Annexure OP-1. A perusal of this policy reveals that the stock in trade including the goods held in trust in the shop of the complainant included all types of Nokia mobile phones with attachment and accessories. As per report of the surveyor, Annexure OP-3, on spot survey conducted by the surveyor no Nokia mobile phone and its attachments and accessories were found stolen from the shop of the complainant. The record produced by the complainant before the surveyor shows that mobile phones of the brands namely, Samsung, Honor, Lenovo, Videocon and Micromax etc. were found stolen from the shop of the complainant. The 7 M/s New Mansarowar Versus The New India Assurance Company Ltd.
RBT/CC/14/2020 complainant has not placed on record any material to show that he had informed the opposite party about the change of the subject matter of the policy or that the subject matter contained in the policy, Annexure OP-1 was not correctly mentioned. In view of the law laid down by the Hon'ble Supreme Court in United India Insurance Co. Ltd. V Harchand Rai Chandan Lal (supra) and Polymat India (P) Ltd. V. National Insurance Company Ltd. and Ors.(supra) the terms and conditions stipulated in the insurance policy containing the subject matter of the policy as Nokia phones cannot be extended to include all kinds of mobile phones. Therefore, in terms of the insurance policy, Annexure,OP-1 the opposite party was only liable to indemnify the complainant for the loss suffered by him in respect of Nokia mobile phones.
12. It is true that the surveyor in his report had recommended payment of compensation of Rs.9,43,002/- to the complainant vide his report, Annexure OP-3 but this recommendation was subject to terms and conditions of the policy. As per terms and conditions of the policy mobile phones other than the Nokia phones were not covered under the policy. The surveyor in his letter dated 4.12.2018, Annexure OP-6 has clarified that as per information given by the insured he was carrying on the business of Nokia mobiles 8 M/s New Mansarowar Versus The New India Assurance Company Ltd.
RBT/CC/14/2020 which he closed down and shifted to Microsoft mobiles and this business was also closed by him at later stage and then he started dealing in all types of mobile phones. The burglary had occurred to mobiles other than Nokia mobiles. He further clarified that he had assessed the loss to avoid any dispute on quantum of loss. Thus, in view of the clarification given by the surveyor it is clear that the burglary had occurred to mobiles other than Nokia mobiles which were not covered under the policy. In view of this the complainant is not entitled to any compensation solely on the ground that initially the surveyor had recommended payment of compensation to him. Moreover, the report of the surveyor is not binding on the insurer as held by the Hon'ble Supreme Court in New India Assurance Co. Ltd. versus Pradeep Kumar, IV (2009) CPJ 46 (SC) that surveyor report is not the last and final word. It may be basis for settlement of a claim but neither binding upon the insurer nor insured.
13. As a sequel to our discussion above, we hold that the loss suffered by the complainant was not covered under the policy and as such the opposite party has rightly repudiated the claim made by the complainant. Consequently, this complaint is devoid of any merit and accordingly the same is dismissed leaving the parties to bear their own costs. 9
M/s New Mansarowar Versus The New India Assurance Company Ltd.
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14. The complaint could not be decided due to heavy pendency of work and Covid-19 lockdown.
15. 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 10