State Consumer Disputes Redressal Commission
The Manager ,Oriental Insurance Co. ... vs Laxmikant Vasantrao Mahamuni on 8 May, 2015
1 F.A.No.:413/2012
Date of filing :12.10.2012
Date of order :08.05.2015
MAHARASHTRA STATE CONSUMER DISPUTE REDRESSAL
COMMISSION,MUMBAI, CIRCUIT BENCH AT AURANGABAD.
FIRST APPEAL NO. :413 OF 2012
IN COMPLAINT CASE NO.: 320 OF 2011
DISTRICT CONSUMER FORUM :OSMANABAD.
1. The Manager,
The Oriental Insurance Co.Ltd.,
Branch office, 1st Floor,
Mathura Complex,
In front of Hotel Shantai,
Tq. & Dist.Beed.
2. The Manager,
The Oriental Insurance Co.Ltd.,
Branch Osmanabad,
Near Bus Stand, Osmanabad. ...APPELLANTS
VERSUS
Laxmikant Vasantrao Mahamuni,
Proprietor Hotel Aditya and Shri.Narsinha Lodge,
Ghargaon, Tq.Kalam, Dist.Osmanabad. ...RESPONDENT.
CORAM : Mr.S.M.Shembole, Hon`ble Presiding Judicial
Member.
Mr.K.B.Gawali, Hon`ble Member.
Present : Adv.K.M.Loya for appellants,
Adv.A.K.Mahamuni for respondent.
O R A L JUDGMENT
(Delivered on 08th May 2015)
Per Mr.S.M.Shembole, Hon`ble Presiding Judical Member.
1. Challenge in this appeal is the judgment and order dated 4.8.2012 passed by District Consumer Forum Osmanabad partly allowing complainant's claim in C.C.No.320/2011 directing 2 F.A.No.:413/2012 appellants/org.opponents to pay to the complainant compensation of Rs.1,90,586/- towards loss of insured stolen goods and Rs.2000/- towards cost of the proceedings.
(For the sake of brevity appellants are herein after referred as opponent insurance company and respondent Shri.Laxmikant Mahamuni as complainant)
2. Brief facts giving rise to this appeal are that:-
Complainant Shri.Laxmikant Mahamuni is running a hotel and lodging under the name and style as Hotel Aditya & Shrinarsinh Lodge respectively at village Shiradon, Tq.Kalam, Dist.Osmanabad. Stock including liquor bottles and furniture from the hotel was insured with the opponent insurance company covering risk of Rs.5 lakhs. Insurance policy was for the period from 25.11.2009 to 12.11.2010. During the subsistence of insurance policy in the night in between 15.1.2012 & 16.1.2012 the unknown persons committed theft of LCD, dish antenna, machine and liquor bottles worth Rs.3,10,715/-. On the basis of his complaint an offence as crime No.6/10 U/s 457 & 380 of IPC was registered with Police Station, Shiradon, Dist.Osmanabad. Moreover, at the same time information was given to the opponent insurance company. Police made investigation but stolen goods could not be recovered. Therefore by notice dated 7.7.2011 complainant claimed compensation from opponents. But opponent gave false reply to his notice and denied the claim. Therefore alleging deficiency in service on the part of opponents, complainant has filed consumer complaint claiming compensation of Rs.3,10,715/- with interest @ 18% p.a. towards loss of insured goods.
3. Opponents by their written version resisted the complaint on the following among other grounds:-
3 F.A.No.:413/2012They did not dispute that goods and furniture from hotel of complainant were insured obtaining insurance policy for goods worth Rs.4,50,000/- and for furniture, fittings & fixture of Rs.50,000/-. They also did not dispute the policy period and during policy period there was theft. However, they have denied that the goods worth @ Rs.3,10,750/- are stolen away. According to them on receipt of information about incident of theft, loss was assessed through its surveyor and as per survey report assessment was made on the basis of average loss as prior to the incident of theft, stock was more than insured amount. It is submitted that as per survey report prior to the incident of theft stock was worth Rs.12,08,826/-. It is further contended that complainant was not sure about exact loss and therefore contrary statements were made by him before the police. Hence surveyor has rightly applied average clause and assessed the loss at Rs.1,69,344/-. Therefore after receipt of the survey report offer of Rs.51,750/- by deduction of 25% on non-standard basis was given to the complainant. But complainant has refused to accept it and filed false complaint. They have denied all other adverse averments made by the complainant and submitted to dismiss the complaint.
4. On hearing both side and considering evidence on record District Consumer Forum held that though goods worth Rs.1,83,086/- and furniture worth Rs.7500/- were stolen away, opponent insurance company committed deficiency in service by refusing to reimburse the total loss and thereby committed deficiency in service giving offer of Rs.51,750/- on non-standard basis. In keeping with these findings Dist.Consumer Forum has partly allowed complainant's claim as noted above.
5. Feeling aggrieved by that judgment and order, opponent insurance company came to this Commission in appeal.
4 F.A.No.:413/20126. We heard Shri.K.M.Loya learned counsel for the appellants/opponents and perused the written notes of argument submitted by the counsel for both side. We have also perused the copy of impugned judgment and order, copies of complaint, written version survey report, notice, reply, evidence affidavit, F.I.R. and other documents. However, we have had no opportunity to hear complainant as well his counsel Shri.A.K.Mahamuni as they remained absent at the time of final hearing.
7. Almost all the facts except the assessment of loss made by surveyor and offer of the opponent by 25% deduction of amount on non-standard basis are not disputed.
8. Therefore the crux in this matter is as to whether surveyor has legally made assessment applying average basis clause and further whether opponents legally deducted 25% amount on non-standard basis or not?
9. Mr.Loya learned counsel appearing for the appellants pointing out average clause from the copy of insurance policy submitted that since undisputedly value of the stock was more than the insured amount, surveyor has rightly made assessment by applying average clause. Further pointing out the copy of F.I.R. and supplementary statement of complainant recorded by police it is submitted that complainant is not sure about the exact loss. Therefore initially while giving complaint to the police he has shown different amount of loss in the F.I.R. and in order to get more compensation from insurance company gave supplementary statement showing loss of excess amount. Whereas while submitting claim he has shown loss of Rs.2,55,875/- in the claim form. Further it is submitted that though the goods worth Rs.4,50,000/- were insured at the time of inspection by the surveyor goods worth more than Rs.12 lakhs were found prior 5 F.A.No.:413/2012 to the date of incident. Therefore the surveyor by applying average clause rightly made assessment at Rs.64,319/-.
10. Moreover, it is submitted by Shri.Loya learned counsel for the complainant that though as per terms and conditions of the policy complainant was required to take proper care of insured goods by appointing guard, no guard was appointed but only agriculture labour was sleeping during fateful night and thereby complainant committed breach of terms and conditions of the policy. Hence opponent insurance company has rightly deducted 25% amount of loss on non- standard basis. But District Consumer Forum without considering all these facts committed error in awarding compensation at Rs.1,90,586/-. But we find no force in the arguments advanced by Shri Loya learned counsel appearing for the appellants. Firstly, because though prior to the date of incident stock was more than value of insured amount, since the insurance claim is not more than amount of insurance average clause cannot be applied. Accordingly learned counsel for the complainant in his written notes of arguments mentioned. He has also relied on the decision of Hon'ble National Commission in case of Oriental Insurance Co. -Vs- Sumangal Steel Ltd. (1993) III CPJ(NC). Even a bare glance at average clause from insurance policy it manifests that same clause cannot be applied if the value of the insured stolen goods is not more than sum insured. This clause is being unambiguous, cannot be disputed. But Shri.Loya learned counsel for the opponent insurance company tried to justify the survey report submitting that since the stock was excess than the insured stock, the surveyor has rightly applied average clause while making assessment. This submission of Mr.Loya is being contrary to the average clause cannot be sustained.
11. Further submission of Mr.Loya learned counsel for the opponent insurance company that the complainant has committed breach of terms and conditions of the policy by not taking proper 6 F.A.No.:413/2012 care is being after thought cannot be sustained. Because neither surveyor in his survey report nor the opponents in their written version disclosed this fact. This contention was also not made before District Consumer Forum. Therefore District Consumer Forum has rightly discarded the contention of opponents that they have legally deducted 25% amount of loss on non-standard basis etc.
12. On perusal of copy of impugned judgment and also copy of survey report it reflects that District Consumer Forum has rightly accepted the complainant's claim to the extent of Rs.1,90,586/- on the basis of survey report as surveyor has assessed the loss at Rs.1,83,086/- towards stolen liquor and beer bottles stock and Rs.7500/- towards stolen furniture, fittings & fixture and other items. Therefore we find no error or infirmity in the impugned judgment and order. Hence no interference is warranted.
13. In the result, appeal is being devoid of any merit liable to be dismissed. Hence the following order.
O R D E R 1. Appeal is dismissed. 2. No order as to cost.
3. Copies of the judgment be supplied to both the parties.
Sd/- Sd/- K.B.Gawali S.M.Shembole, Member Presiding Judicial Member Mane