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State Consumer Disputes Redressal Commission

New India Assurance Co. Ltd. vs M/S Manoj Kumar Vipin Kumar & Another on 23 January, 2012

       STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
                  UTTARAKHAND, DEHRADUN

                        FIRST APPEAL NO. 13/2009


New India Assurance Co. Ltd.
A 34, Model House, New Tehri
District- Tehri
Through its authorized signatory
Divisional Office, Astley Hall,
Dehradun
                                             ......Appellant/ Opposite Party No. 1

                                   Versus

1.    M/s Manoj Kumar, Vipin Kumar
      General Merchant
      Through Proprietor Sh. Tara Chand
      S/o Sh. Dhaniram
      R/o Village & P.O. Tyuni
      District Dehradun
                                             ......Respondent No. 1/ Complainant

2.    State Bank of India
      Tyuni, P.O. Tyuni
      District Dehradun
                                   ......Respondent No. 2/ Opposite Party No. 2

Mr. T. S. Bindra, Learned Counsel for the Appellant
None for Respondent No.1
Mr. Ravindra Singh, Learned Counsel for the Respondent No. 2

Coram: Hon'ble Mr. Justice B.C. Kandpal,        President
       Mr. C.C. Pant,                           Member
       Mrs. Kusumlata Sharma,                   Member

Dated: 23/01/2012

                                   ORDER

(Per: Mr. C.C. Pant, Member):

This appeal is directed against the order dated 26.12.2008 passed by the District Consumer Forum, Dehradun allowing the Consumer Complaint No. 69/2007 and directing the opposite party No. 1, the New India Assurance Co. Ltd., to pay to the complainant a sum of Rs. 20,500/- together with interest @ 9% per annum from the date of filing the complaint till the date of actual payment.

2. The facts of the case in brief are that the complainant Shri Tara Chand runs a shop in the name and style of M/s Manoj Kumar Vipin Kumar General Merchant as its sole proprietor. The complainant got the shop insured with the New India Assurance Co. Ltd. - opposite party No. 1 for the period from 16.08.2004 to 15.08.2005 for a sum of Rs. 4 lacs against the risk of fire and allied perils, housebreaking, burglary etc. On 10.05.2005, a fire broke out in Naya Bazar, Tyuni (District Dehradun) where the said shop is situated. The said shop also caught fire and, as alleged by the complainant, all the stock worth Rs. 12 lacs kept in the shop got gutted in fire. The complainant lodged the report of the incident with the Patwari Chowki, Tyuni and also informed the insurance company. According to the complainant, the insurance company - opposite party No. 1 did not take any action in the claim filed by him, which led him to file a consumer complaint before the District Forum, Dehradun on 07.05.2007. The District Forum, after an appreciation of the facts of the case, allowed it in the above terms vide its order dated 26.12.2008. Aggrieved by the order, the opposite party No. 1 has filed this appeal.

3. We have heard the learned counsel for the appellant - opposite party No. 1 and respondent No. 2 - opposite party No. 2 and also perused the material placed on record. None appeared for the complainant - respondent No.1 despite the following order passed by the Commission on 07.10.2011.

"Sh. T.S. Bindra , learned counsel for the appellant and Sh. Ravindra Singh, learned counsel for respondent No. 2 are present. None is present on behalf of respondent No. 1 - complainant, although the Vakalatnama of Sh. Dinesh Sharma, Advocate is available on record. It appears from the perusal of the order-sheet that the learned counsel for the complainant - respondent No. 1 has never appeared before the Commission on any date fixed. However, in case if on the next date fixed, the learned counsel for the complainant -

respondent No. 1 is not present before the Commission, the matter shall be heard and decided finally. Put up on 17.01.2012."

4. The learned counsel for the appellant challenged the impugned order mainly on the ground that the amount awarded by the District Forum is not in accordance with the terms and conditions of the insurance policy and the surveyor's report. He drew our attention to the exclusion clause of the policy which is as under:-

"GENERAL EXCLUSIONS This Policy does not cover (Not applicable to Policies covering Dwellings/House Holder Policy) The first 5% of each and every claim subject to a minimum of Rs. 10,000 in respect of each and every loss arising out of "Act of God perils" such as Lightning, STFI, Subsidence, Landslide and Rock slide covered under the policy. The first Rs. 10,000 for each and every loss arising out of other perils in respect of which the Insured is indemnified by this policy. The Excess shall apply per event per insured."

5. The learned counsel also pointed out to the surveyor's report at paper No. 44 wherein the surveyor has stated that-

"The net assessed loss in the claim therefore amounted to Rs. 20,500.00 less Rs. 10,000.00 policy excess i.e. Rs. 10,500.00 only."

6. The learned counsel for the appellant further submitted that a cheque for this amount, i.e. Rs. 10,500/-, was sent to the State Bank of India - respondent No. 2, the Bank did not accept it. Thus, the appellant had not made any deficiency in service. The District Forum has failed to consider this aspect of the case and has wrongly awarded the sum of Rs. 20,500/- and interest @ 9% per annum thereon.

7. We considered the submissions made by the learned counsel for the appellant. We are surprised to note as to how the District Forum made the observation in its order that there was no justification for the deduction of Rs. 10,000/- in the assessed loss despite the fact that the appellant, opposite party No. 1 before the District Forum, had very clearly stated in its written statement filed before the District Forum that after deducting Rs. 10,000/- under the policy's excess clause, a sum of Rs. 10,500/- was remitted to the State Bank of India - respondent No. 2 vide letter dated 06.12.2006. However, the respondent No. 2 returned the cheque vide its letter of 31.03.2007 on the pretext that "the amount is not accepted by the customer." The consumer complaint was filed on 07.05.2007 and the complainant has concealed this fact in his complaint. The District Forum has, thus, made a grave error in the assessment of the evidences and appreciation of the facts of the case and has completely ignored the exclusion clause of the policy. Therefore, the impugned order needs modification accordingly. Further, the facts and circumstances of this case lead us to conclude that the appellant had taken timely action in respect of the settlement of the claim filed by the complainant and had also remitted the cheque for the settled amount to the Banker of the complainant and, thus, had not committed any deficiency in service. Therefore, the insurance company - appellant cannot be held liable for the payment of interest on the settled amount. Thus, this appeal deserves to be allowed and the impugned order dated 26.12.2008 needs to be modified accordingly.

8. The Appeal is allowed. The amount of Rs. 20,500/-, as awarded by the District Forum, Dehradun vide its order dated 26.12.2008 is reduced to Rs. 10,500/- and the order in respect of awarding an interest @ 9% per annum is set aside. The impugned order dated 26.12.2008 stands modified accordingly. Cost of the appeal made easy.

(MRS. KUSUMLATA SHARMA) (C.C. PANT) (JUSTICE B.C. KANDPAL)