State Consumer Disputes Redressal Commission
National Insurance Co. Ltd. vs Inderpal Singh on 8 October, 2015
2nd Additional Bench
PUNJAB STATE CONSUMER DISPUTES REDRESSAL
COMMISSION,
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH
First Appeal No. 255 of 2013
Date of institution: 06.03.2013
Date of decision : 08.10.2015
1. The National Insurance Company Ltd, Reg & H. No : 3,
Middleton Street, Post Box No. 9229, Kolkata-7000071,
through its General Manager/Director.
2. The National Insurance Co. Ltd., Branch-III, Link Road,
Cheema Chowk, Ludhiana, through its Br. Manager.
Both through authorized signatory of its Regional Office, SCO
No. 332-334, Sector 34-A, Chandigarh
.....Appellants/opposite parties
Versus
Inderpal Singh, Prop. Of Marwaha Shopping Centre, Sherpur, 675/1,
Focal Point Road, Ludhiana
..Respondent/complainant
First Appeal against the order dated
24.01.2013 passed by the District
Consumer Disputes Redressal Forum,
Ludhiana.
Before:-
Sh. Gurcharan Singh Saran, Presiding Judicial Member
Mrs. Surinder Pal Kaur, Member Present:-
For the appellant : Sh. R.C. Gupta, Advocate For the respondent : Sh. Chandandeep Singh, Advocate GURCHARAN SINGH SARAN (PRESIDING JUDICIAL MEMBER) Order This appeal has been preferred by appellants/OPs (hereinafter referred as 'OPs') under Section 15 of the Consumer First Appeal No. 255 of 2013 2 Protection Act, 1986 (hereinafter referred to as the 'Act') against the order dated 24.01.2013 in C.C. No. 364 of 02.05.2012 passed by the learned District Consumer Disputes Redressal Forum, Ludhiana, (in short the 'District Forum') vide which the complaint filed by the respondent/complainant (hereinafter referred as 'complainant') was allowed with directions to OPs to settle and pay the claim of the complainant on the basis of the report of the surveyor (Ex. R-10) as per the terms and conditions of the policy alongwith interest @ 9% per annum from the date of lodging the claim till realization subject to furnishing the letter of subrogation and special power of attorney. They were further directed to pay Rs. 15,000/- as compensation and Rs. 2000/- as litigation expenses.
2. A consumer complaint was filed by the complainant that complainant deals in readymade garments, suiting shirting and all other kinds of clothes & General Items under the name and style of Marwaha Shopping Centre. For the safety and security of the goods, the complainant got insured his goods through OPs vide insurance policy No. 404501/1110/31000000-65 dated 29.06.2010 valid upto 28.06.2011 for sum assured of Rs. 25,00,000/- after paying the premium of Rs. 5625/-. However on the night of 19.10.2010 at 10.00 pm, they had closed their shop and on the next date i.e. 20.10.2010 when the complainant opened the shutter, they saw that the locker (Galla) was lying broken and the goods were lying scattered hither and thither. The locks of iron gate shutter of second floor were also broken. There was house breaking of one wall on second floor. Some unknown persons had committed theft First Appeal No. 255 of 2013 3 and took away valuable Sarees, Shawls, blankets, cash from the Galla, winter wearing jackets, jeans pants, Mink Blankets, Attaches, Costly shoes, Costly suiting and shirtings with them. The matter was reported to the police and FIR No. 313 dated 04.12.2010 u/s 380/457 IPC was registered at police station Focal Point, Ludhiana. The matter was also reported to OPs who sent their official at the spot to inquire the matter. They directed the complainant to furnish the documents, i.e. FIR report, detailed claim bill, claim form and as per their directions these were submitted and later on, OPs refused to pay the claim on the ground that claim does not fall under the terms and conditions of the policy. Legal notice was served to them but without any result. Hence the complaint with the directions to OPs to pay a sum of Rs. 3,04,500/- alongwith interest @ 18% per annum and to pay Rs. 1 lac as compensation and Rs. 11,000/- as counsel fee.
3. The complaint was contested by OPs who filed written reply taking preliminary objections that the complaint was not maintainable in the present form as it was false, frivolous and vexatious and was liable to be dismissed under section 26 of the Act. The complaint was bad for non joinder and mis joinder of necessary parties. The complainant had not come to the Forum with clean hands and suppressed the material facts. The complainant failed to provide the required documents. Vide letter dated 25.08.2011 he was asked to submit the untraced report duly attested by Magistrate and final reminder dated 08.12.2011 was issued and then on 21.03.2011. Otherwise OPs were ready and willing to pay the loss of Rs. 55,987/- First Appeal No. 255 of 2013 4 assessed by the surveyor on submission of letter of subrogation and special power of attorney. The claim cannot be settled due to non cooperation of the complainant. Intricate questions of law and facts were involved which cannot be settled in the summary procedure under the Act as it required elaborate evidence and the matter was required to be referred to Civil Court. On merits, issuance of the policy was admitted. The claim was lodged but delay in submission of the claim was due to delay on the part of the complainant as he failed to submit the required documents as referred above. The coverage was upto Rs. 25 lac whereas goods were much more than that, therefore, the surveyor applied the average clause and ultimately he assessed the loss at Rs. 55,987/- to which OPs were ready to pay subject to submission of the documents as referred above. Notices issued by the complainant were duly replied. It was submitted that the complaint was without merit and it be dismissed.
4. Parties adduced evidence in support of their contentions. Complainant tendered into evidence his affidavit Ex. CA, copy of insurance policy Ex. C-1, FIR Ex. C-2, loss detail Ex. C-3, newspaper cuttings Ex. C-4 & Ex. C-5, claim form Ex. C-6, legal notice Ex. C-7 and postal receipts Ex. C-8 and Ex. C- and closed the evidence. On the other hand OPs tendered into evidence affidavit of R.L Sharma, Ex. RA, intimation letter dated 21.10.2010 Ex. R-1, letter dated 21.10.2010 Ex. R-2, letter dated 31.12.2010 Ex. R-3, letter dated 10.02.2011 Ex. R-4, letter dated 09.03.2011 Ex. R-5, letter dated 15.03.2011 Ex. R-6, reminder dated 20.06.2011 Ex. R-7, letter dated 21.07.2011 Ex. R-8, reminder dated 21.07.2011 Ex. R-9, First Appeal No. 255 of 2013 5 surveyor report dated 31.07.2011 Ex. R-10, photographs Ex. R-11 to Ex. R-57, claim form Ex. R-58, detail of items Ex. R-59, certificate dated 11.02.2011 Ex. R-60, letter dated 25.08.2011 Ex. R-61, letter dated 08.12.2011 Ex. R-62, Final reminder 21.09.2012 Ex. R-63, loss estimate Ex. R-64, letter dated 06.12.2010 Ex. R-65, reply to legal notice dated 02.05.2012 Ex. R-66, postal receipt Ex. R-67, acknowledgement Ex. R-68 and closed the evidence.
5. After going through the allegations as alleged in the complaint, written reply filed by OPs, evidence and documents on the record, the learned District Forum allowed the complaint in terms stated above.
6. Aggrieved with the order, appellants/OPs have filed this appeal.
7. We have heard the learned counsel for the parties and have perused the record
8. In the grounds of appeal, it has been argued by the counsel for the appellants/OPs that the complainant failed to cooperate with OPs with regard to completion of documents. OPs vide letter Ex. R-2 of Mr. Vikas Sharma, surveyor and loss assessor vide which he had asked the complainant to show possible forcible entry point, the shop premises were not in any kind of disaaray and seemed quite normal, books of account, record of VAT. Vide letter Ex. R-3, the surveyor demanded copy of FIR, claim bill, claim form etc. Vide letter Ex. R-4 again claim form, balance sheet, detailed stocks statement, FIR, VAT returns, trading account, claim bills, detail of balance as on 20.10.2010, supporting documents, last three First Appeal No. 255 of 2013 6 years policies and current policy were demanded. Ex. R-6 is a letter written by OPs to the complainant to submit the documents as demanded by the surveyor, Ex. R-7, Ex. R-8 & Ex. R-9 are the reminders. Ex. R-10 is the report. According to this report in Para No. 8 (f), it has been observed that the entire sock at the premises was found to be for 91.85 lacs and that for the clothing material and the stock was valued for Rs. 81.5 lacs whereas the insurance policy was for Rs. 25 lac. The claim of the complainant was of Rs. 3,04,500/- whereas the surveyor has assessed the loss to the tune of Rs. 1,50,300/- after applying the average clause. The loss payable was said to be Rs. 55,986/-. The main grouse was that untraceable report duly attested by Magistrate was not submitted whereas theft/burglary was intimated. Intimation was given to OPs on the next date vide letter Ex. R-1 and intimation was also given to police and FIR Ex. C-2 was registered. It has been stated by the complainant that whatever the record was with him, that was submitted to OPs and ultimately OPs had assessed the loss to the extent of Rs. 1,50,300/-. The grouse of OPs is that District Forum has not considered the average clause and has given the full payment of Rs. 1,50,000/- as assessed by the surveyor without applying the average clause. However, if we go through the report of the surveyor Ex. R-10, he has assessed the physical stock of clothing 81.5 lac but alongwith his report he has not attached any document i.e. purchase or sale tax, ledger book or any trading account, in case, he says that he has assessed it on the basis of physical verification then detail of each item alongwith valuation of First Appeal No. 255 of 2013 7 that item has not been given. Therefore, valuation given by the surveyor is not based upon the actual facts but on the hypothetical reasons. No doubt that report of surveyor is valuable report but it cannot be considered as gospal truth. In case, there is report on any material fact then it should be supported by some documentary evidence. In the present case, he has assessed the physical stock with the complainant as 81.5 lacs for clothing section as referred above, but he has not given what was the basis to calculate the valuation of stocks lying in the shop of the complainant. Therefore, without any basis, the assessment of the physical stock given by the surveyor cannot be accepted. This view is supported to the judgment of Hon'ble National Commission reported as "New India Assurance Co. Ltd. Vs. Dr. M.M. Krishan" II (2011) CPJ 301 that surveyor report is important unless arbitrary and biased. There is another judgment of Hon'ble National Commission titled as "National Insurance Company Vs. Raja Poiltry Farm" I (2011) CPJ 43 in that case, the Fora below clearly recorded reasons, where ever Surveyor's report is not accepted. Plea of OP that Fora interfered with Surveyor's report in absence of any material evidence is not accepted. Another judgment of this Commission reported as "New India Assurance Company Ltd. Vs. Paramjeet Kaur" III (2014) CPJ 230 in which it was observed that report of the surveyor not reliable and could not have been made the basis for assessing the loss. Therefore, without any basis to give the valuation of stocks of physical verification to the extent of Rs. 81.5 lac cannot be First Appeal No. 255 of 2013 8 accepted. Therefore, average clause will not apply as adopted by the surveyor.
9. It was contended that there is no expert report. The report of the surveyor accepted the happening of theft/burglary and theft of the stocks of the complainant, then it is a matter of calculation. What type of expert evidence is required has not been explained by counsel for the appellant because the District Forum has accepted the assessment made by the surveyor and not the loss as claimed by the complainant.
10. It was further argued that there was delay of 134 days in lodging the FIR, whereas the complainant has given the intimation to OPs on 21.10.2010 i.e. on the very next date, therefore, in case, OPs had come to know about the incident and they had appointed the surveyor who verified the circumstances at the spot, then virtually there is no delay in lodging the claim. The purpose of immediate information to the police is that the culprits could be napped otherwise OP can also approached the police to register the FIR because they were to pay the claim. However, the complaint in his complaint has stated that he has given the information to the police immediately thereafter. It is different matter that they registered the FIR on 04.12.2010. Therefore, in view of the circumstances on the record that intimation was given to OPs without delay, therefore delay could not be the criteria to reject the claim.
11. The next point of arguments is argue that the compensation and interest are on the higher side. Since the claim was not paid by First Appeal No. 255 of 2013 9 OPs and delayed for a long time, then they should pay the claim which was payable, on that account interest is required to be paid by OPs. The complainant suffered lot of physical and mental tension and harassment for a long time in settlement of his claim and on that account Rs. 15,000/- has been awarded as compensation and Rs. 2000/- only as cost of litigation. It does not seem to be on the higher side.
12. In view of the above, we are of the opinion that the order passed by the District Forum is totally justified and we affirm the same. Accordingly, we do not see any merit in the appeal and the same is hereby dismissed with no order as to costs.
13. The appellant had deposited a sum of Rs. 25,000/- with this Commission at the time of filing the appeal. The amount of Rs. 25,000/- along with interest accrued thereon, if any, be remitted by the registry to respondent/complainant by way of a crossed cheque/demand draft after the expiry of 45 days, subject to stay, if any, by the higher Fora/Court.
14. Remaining amount shall be paid by the appellant to respondent within 30 days from the receipt of the copy of the order.
15. The arguments in this appeal were heard on 29.09.2015 and the order was reserved. Now the order be communicated to the parties as per rules.
(GURCHARAN SINGH SARAN) PRESIDING JUDICIAL MEMBER October 08, 2015.
Rupinder (MRS. SURINDER PAL KAUR)
MEMBER
First Appeal No. 255 of 2013 10