JUDGMENT

 Sri A.K.Patra,President

1. Heard. Peruse the material on record. We have our thoughtful consideration to the submission of rival parties.
2. The captioned Consumer Complaint is filed U/S 35 (a) of C.P.Act 2019 by the complainant Mrs. Pinky Jain alleging negligence & deficiency in service on the part of Opposite Parties for non settlement of insurance claim made on account of stolen of insured property.
3. The complainant has prayed for an order directing the Ops  to pay the  cost of the burglary items of worth Rs.3,44,272/- with interest  and for an award of Rs.1,00,000 towards   loss &  injury sustained by the complainant  and Rs.20,000 towards  cost of litigation - i.e in total claimed for Rs.4,64,274/-.
4.  The factual matrix leading to the case of the complainant is that, the complainant is the Proprietor of M/s A.J.Store, Boringpadar, Main road, Kesinga Road. He has insured the stocks of M/s A.J.Store with the OP/Insurance Company   under Burlglary Starndard Policy  vide No.2605011220P110529314 for the period of 26.11.2020 to 25.11.2021  paying required premium  amount of Rs.2832/-to the OP. On the intervening night of dt.24.06.2021 - 25.06.2021, burglary has been committed in M/s M.J.;Store of the complainant and materials worth of Rs.3,44,274/- was stolen  from the store. The matter of which was reported to the Kesinga Police Station vide Kesinga PS Case No.231 dt.25.06.2021 which has been registered U/s 457/380 of IPC.  In spite of the best effort, the Kesinga Police could not trace out the theft items or the thefts yet. It further stated that, on dt.01.07.2021 the complainant placed a demand before the Op/insurance company to compensate the value of the theft materials as the OP is duty bound to indemnify the complainant under the aforesaid Burglary standard policy but the OPs have not yet settled the claim of the complainant as such the complainant suffered both financially loss and mental agony. The complainant approached several times to the OP/ Company to settle her claim but the OP did not pay any heed to it for which the complainant sent a pleader notice to the OP/insurance Company   on dt. 31.10.2022 asking early settlement of her claim but the OP though received the said pleader notice on dt. 01.11.2022 did not like to respond the same. It is further submitted that, as per the Insurance policy the OP/insurance company is  liable to pay the full value of the theft materials as it covers under the said policy but not yet settled causing financial loss & mental agony to the complainant. Hence this complaint.
5. To substantiate her claim the complainant has filed the self attested  true copy of the following documents supported by an affidavit :-

1. Copy of insurance policy No.2605011220P110529314 valid from 26.11.2020 to 25.11.2021 their in the name/ID of M/S A.J.Store /2309404624, Location ID 23218011884, Description of items insured:-  On stock of all types of hardware items , Sum Insured: Rs.1,000,000/-,Premium paid Rs.2,400/-
2.  Copy of the premium paid receipt No.10126050120111453582 dt.16.12.2020 for an amount of Rs. 2,832/-which include CGST & SGST.
3.  Copy of FIR No.231 dt.25.06.2021 of PS-Kesinga, Dist-Kalahandi alleging offence u/s 457/ 380 of IPC 1860.
4.  Copy of the list of theft items worth Rs.3,44,274/-along with purchased bill  of alleged stolen  materials.
5. Copy of the pleader notice dt.31.10.2022,
6.  Copy of postal receipt No.RO095415266IN
7.  Copy of postal consignment track report No.RO095415266IN .

6.          On being notice the OPs appeared and filed their written version stating there in that, the complainant submitted claim forms after lapse of 5 days. However, the OP 1 after receiving the intimation, deputed surveyor to assess the loss and as the petitioner did not cooperate with the surveyor and when the petitioner could not produce relevant documents mainly the details of estimate & final certified copy of the police report, the surveyor submits his final report on 30.01.2023 to treat the claim as “no claim”. It is further submitted that, in spite of said report of the surveyor the claim has not been closed rather, the OP 1 was waiting to receive the final report of the FIR No.231 dt.25.06.2021 of PS-Kesinga from the petitioner regarding proof of theft.  It is further submitted that, the Ops are not deficient in their service as the claim of the complainant could not be considered till the final form from the concern police is received as per GIPSA guideline. With this submission the OP urged to dismiss this complaint.

7. To substantiate their claim the OPs have filed the Surveyor Report dt.03.01.2023.

8.  After perusal of the complaint petition, written version and all the documents relied on by both the parties placed in the record, the points for consideration before this Commission are that: - Whether the complainant is the consumer of the Op ? Whether the complainant is entitled for insurance benefits there under the alleged insurance policy? Whether the Op has deficient in service for non settlement of insurance the claim of the complainant? And whether the complainants are entitling for the relief(s) claimed?

9.  During hearing of this case the complainant filed her evidence on affidavit, the averments of which are corroborating with the averments of the complainant petition. Thus the Complainant has proved her contention there made in the complainant petition on affidavit remain un-rebutted. 

10. The Op /insurance company, to substantiate his contention, has filed the photo copy of the surveyor report  dt.03.01.2023 and photo copy of settlement procedure Sl.No 7 .BURGLARY INSURANCE which we have gone thoroughly.  No evidence affidavit as prescribed under C.P.Act is filed by the Op/insurance Company.

11.  Here in this case insurance and theft of the insured materials there from the M/s M.J.Store of the complainant is not disputed rather insurance claim is treated as “no claim” for alleged no-cooperation of the insured/complainant. The Op /insurance company has solely relied on the surveyor report dt.03.01.2023 placed on the record. Law is well settled that , surveyor is an export   and its report stands on the footing of export evidence and has to be corroborated from other evidence on record, in order to examine its correctness and bonafied/malafide.(held before the Hon’ble National Commission reported in 2022 (2) CPR Page -465.) .

12. The learned counsel for the complainant draws our attention on the CLAIM PROCEDURE IN RESPECT OF A GENERAL INSURANCE POLICY their stipulated there u/s 15 of  the Insurance Regulatory and Development Authority of India (Protection of Policyholders’ Interests) Regulations, 2017   which we may quote here  for proper understanding .

Section 15 of CLAIM PROCEDURE IN RESPECT OF A GENERAL INSURANCE POLICY:-

1. An insured or the claimant shall give notice to the insurer of any loss arising under contract of insurance at the earliest or within such extended time as may be allowed by the insurer. On receipt of such a communication, a general insurer shall respond immediately and give clear information to the insured on the procedures that he should follow. In cases where a surveyor has to be appointed for assessing a loss/claim, it shall do so immediately, in any case within 72 hours of the receipt of intimation from the insured. Insurer shall communicate the details of the appointment of surveyor, including the role, duties and responsibilities of the surveyor to the insured by letter, email or any other electronic form immediately after the appointment of the surveyor.

 2. The insurer / surveyor shall within 7 days of the claim intimation, inform the insured / claimant of the essential documents and other requirements that the claimant should submit in support of the claim. Where documents are available in public domain or with a public authority, the surveyor/insurer shall obtain them.

3. The surveyor shall start the survey immediately unless there is a contingency that delays immediate survey, in any case within 48 hours of his appointment. Interim report of the physical details of the loss shall be recorded and uploaded/forwarded to the insurer within the shortest time but not later than 15 days from the date of first visit of the surveyor. A copy of the interim report shall be furnished by the insurer to the insured/claimant, if he so desires.

 4. Where the insured is unable to furnish all the particulars required by the surveyor or where the surveyor does not receive the full cooperation of the insured, the insurer or the surveyor, as the case may be, shall inform in writing to the insured under information to the insurer about the consequent delay that may result in the assessment of the claim. It shall be the duty equally of the insurer and the surveyor to follow up with the insured for pending information/documents guiding the insured with regard to submissions to be made. The insurer and/or surveyor shall not call for any information/document that is not relevant for the claim.

 5. (i) The surveyor shall, subject to sub-regulation 4 above, submit his final report to the insurer within 30 days of his appointment. A copy of the surveyor’s report shall be furnished by the insurer to the insured/claimant, if he so desires. Notwithstanding anything mentioned herein, in case of claims made in respect of commercial and large risks the surveyor shall submit the final report to the insurer within 90 days of his appointment. However, such claims shall be settled by the insurer within 30 days of receipt of final survey report and/or the last relevant and necessary document as the case may be. (ii) Where special circumstances exist in respect of a claim either due to its special / complicated nature, or due to difficulties associated with replacement/reinstatement, the surveyor shall, seek an extension from insurer for submission of his report. In such an event, the insurer shall give the status to the insured/claimant fortnightly wherever warranted. The insurer may make provisional/ on account payment based on the admitted claim liability.

6.  If an insurer, on the receipt of a survey report, finds that it is incomplete in any respect, he shall require the surveyor, under intimation to the insured/claimant; to furnish an additional report on certain specific issues as may be required by the insurer. Such a request may be made by the insurer within 15 days of the receipt of the final survey report. Provided that the facility of calling for an additional report by the insurer shall not be resorted to more than once in the case of a claim.

7. The surveyor, on receipt of this communication, shall furnish an additional report within three weeks from the date of receipt of communication from the insurer.

8. On receipt of the final survey report or the additional survey report, as the case may be, and on receipt of all required information/documents that are relevant and necessary for the claim, an insurer shall, with in a period of 30 days offer a settlement of the claim to the insured/claimant. If the insurer, for any reasons to be recorded in writing and communicated to the insured/claimant, decides to reject a claim under the policy, it shall do so within a period of 30 days from the receipt of the final survey report and/or additional information/documents or the additional survey report, as the case may be.

9. In case, the amount admitted is less than the amount claimed, then the insurer shall inform the insured/claimant in writing about the basis of settlement in particular, where the claim is rejected, the insurer shall give the reasons for the same in writing drawing reference to the specific terms and conditions of the policy document. 10. In the event the claim is not settled within 30 days as stipulated above, the insurer shall be liable to pay interest at a rate, which is 2% above the bank rate from the date of receipt of last relevant and necessary document from the insured/claimant by insurer till the date of actual payment.

13. It is found from the record that, loss caused on the intervening night dt. 24.06.2021 -25.06.2021 and reported the matter to the Kesinga police earliest on 25.06.2021 and claim made on dt.01.07.2021. Insurance company deputed surveyor on 06.07.2021 and the survey said to have conducted on 07.07.2021 and report prepared on 03/01/2023 which is admittedly in too late. It is found that, the Op/insurance Company has failed to procure the surveyor report earliest to settle the claim of the complainant which clearly proved the negligence & deficient service of the Op /insurance company. Law is well settled that, complainant (s) cannot be made to wait for an indefinite time and suffered financially & mentally, (held before the Hon’ble National Commission reported in 2023 (3) CPR Page -494.)

14. It is contended there in the copy of the surveyor report dt. 03/01/2023 placed on the record that:- “ the under signed requested the insured to submit the book of accounts such as stock register, purchase & sale register with purchased bill & sale invoice ,loss profit trading accounts till the date of loss & balance sheet & income tax return  of last year and others. After few days the insured submitted through mail in brief stocks of stolen items only without date, seal, & signature which were not authentic to submitted our end. Later on the undersigned met several time to insured while on the way to Bhawanipatna and requested to provide documents and made letter corresponding but the insured did not responded.” But we found no cogent evidence  placed on record to hold that, the surveyor has ever made communication verbally or in writing at any point of time asking the complainant to produce any additional document for assessment of loss rather the complainant on her affiliate evidence stated that :-“ I have cooperated with the surveyor to whom the OP deputed to assessed the loss I sustained in the afore said burglary and submitted all relevant documents as he asked but till date he has not given me a copy of his report “ remain un-rebutted .

15. The complainant has filed the details of the bill towards purchased of the subject stolen property along with other documents as per list there available in the record and stated in para 13 of her affidavit evidence that, those relied documents placed on the record are true & correct as such we have perused those documents and accepted as evidence and unable to disbelieve that, as on date of loss during policy period the complainant had no such stuck of materials worth Rs. 3,44,274/-available in M/S A.J.Store . The insurance company has failed to assessed the quantum of loss although so long time has been taken rather, the complainant has proved loss of Rs. 3,44,274/- on affidavit along with relevant purchased bill of subject stolen materials  worth Rs 3,44,274 remain un-rebutted.

 16. It is not disputed that, in intervening night of dt.24.06.2021 - 25.06.2021, theft was committed in M/s M.J.;Store of the complainant, matter of which is   reported earliest to the Kesinga Police Station vide FIR  No.231 dt.25.06.2021 and  complainant  placed her insurance claim before the Op/insurance company  on dt.01.07.2021 .We are of the opinion that , as the matter of theft was reported to the law enforcing agency earliest ,the delay of 5(five) days in intimation to the insurance company shall not be a ground to flee from the liability to indemnify the loss caused to the insured. Rather, the complainant is entitled to be indemnified by the Op/Insurer under the subject insurance policy which was undisputedly in force as on date of loss.

 17. It is proved that, the complainant sent a pleader notice to the OP/insurance Company   on dt. 31.10.2022 through registered post vide postal receipt No.RO095415266IN asking the OP/insurance Company to settle her claim which is duly delivered to the Op on dt.01.11.2022 is proved from the undisputed postal consignment track report No.RO095415266IN there placed in the record but the ops/the authorities of the insurance company has deliberately ignored it and procured the surveyor report on dt. 03.01.2023 i.e in too late clearly proved the  negligence & deficient service on the part of Op/insurance company certainly caused  financial loss & mental agony to the complainant need to be compensated by the Ops /insurance company so also the Op/insurance company is liable  pay punitive damages for such deficient services so that it shall not be repeated.

18.  The matter of theft of insured material is reported earliest to the Kesinga Police Station vide FIR  No.231 dt.25.06.2021 and preparation of final report/charge sheet by duly  investigating the matter is the duty of the law enforcing agency and certainly it is not within the purvey of the complainant &  beyond his control as such non submission of final certified copy of the police report to the surveyor by the complainant as alleged by the Ops shall not be treated as negligence or non-cooperation on the part of the insured rather it is the duty of the surveyor to collect required information/final police report from the concern police station and there is nothing excusable cause assigned for non collection of required information/document on the part of the surveyor. Law is well settled that, while settling claims, insurance company should not be too technical and asked for documents, which insured is not in a position to produce due to circumstances beyond his control, held in Gurmel Sing vrs B.M,National Insurance Co.Ltd. Reported in 2022  (2) CPR 390 (S.C)

19. The Op/insurance Company has solely relied upon surveyor report. However, neither the said documents is produced in original nor the surveyor is examined or have filed his affidavit evidence as prescribed under C.P.Act to proved the contention of the said photo copy of surveyor report. So also the Ops in no way stated anywhere that, the contentions of the said photo copy of surveyor report placed on record are true & correct. Law is well settled that, it is necessary to proof the handwriting and signature of the person who had purportedly recorded the facts in the documents but the op has failed to prove the contentions of their relied document/surveyor report. Law is well settled that, placing documents in the case record or marking of the document as exhibits are mere reference and convenience of Commission and it has nothing to do with its evidentiary value. Even just because a documents is marked without objection will not dispense with the proved of the said documents in accordance with law. We found much weight on the submission of the learned counsel for the complainant that, the surveyor report placed in the record by the OP/Insurance company is  nothing but self –serving documents having no authentication may not be hold trust worthy. Accordingly we are unable to accept the photo copy of the   surveyor report as evidence in support of the pleading of the OP. The OPs/insurance Company has failed to proved non-cooperation there on the part of the complainant for settlement of the claim rather law is well settled that, rrepudiation of claim cannot be accepted merely on placing contention without proof. (Reliance may placed in Manik Chandra Pahari vrs LIC of India reported in 2017 ,NCJ ,378 (NC).

20. Here in this  present case, keeping in view of the admission of fact that, the subject insurance policy was in force as on date of loss, the insurer has deliberately neglected to follow the procedure for settlement of the claim as prescribed  there u/s 15 of  the Insurance Regulatory and Development Authority of India (Protection of Policyholders’ Interests) Regulations, 2017 .  Accordingly we are of the opinion that, denial of insurance benefit is not seems to be justified on the allegation of non-cooperation of the insured rather the Op /insurance company is liable to release insurance benefit as claimed by the complainant under the subject insurance policy with interest @ 9% P.A to the complainant from the date of loss till it’s realization.

19. Law is well settled that, Insurance Policy is taken for reimbursement or for indemnity of loss which may be suffered on account of insured peril, the services of the insurer cannot be said to have hired or availed for a commercial purpose hence, we are of the opinion that, the complainant is the consumer of the Ops/Insurance Company. Insurance claim as not yet settled and treated as “no claim” as per the survey report dt. 03.01.2023 which is found to be not justified rather caused injuries to the complainants as such we are of the opinion that, there is sufficient cause to file this complaint. This complaint is filed on 24.01.2023 which found to be in time well within the jurisdiction of this Commission.

20. Based on the above discussion & settled principle of law, we are of the considered view that, the complainants are entitled for insurance benefit under the said insurance policy and denial for  release of insurance benefit is found to be   arbitrary & not justified  as such we hold deficiency in service & unfair trade practice   on the part of Ops certainly caused financial loss & mental agony to complainant as such the Ops are jointly liable to  compensate the injuries of  the complainant  by realizing  the undisputed claimed amount of Rs 3,44,274/- to the complainant also liable to pay minimum Rs. 25,000/- as compensation towards mental agony suffered due to inordinate  delay in settlement of the insurance claim of the complainant though it shall not be assess in terms of money but such amount may heal the injuries to some extent  and further the OP are liable to  pay minimum Rs 10,000/- towards cost of this litigation to the complainant . Hence, it is ordered.

                                    ORDER

           This consumer complaint is allowed in part against the Ops on contest with the following direction:-

1.    The United Insurance Company Limited authorities/OP 1&2 are here by directed to release the claimed amount of Rs.3,44,274/-  as insurance benefit with interest @ 9% from the date of filling of this complaint i.e from 24.01.2023 to the complainant under the subject insurance policy and further directed to  pay Rs 25,000/- towards  mental agony caused to the complainant with Rs 10,000/- towards cost of this litigation.
2.     It is further directed that, this order be complied within 45 (forty-five) days from the date of received of this order failing which the OPs 1&2 / the United Insurance Company Limited authorities/OP 1&2 shall be personally liable to pay Rs.500/- each per day as delayed compensation to the complainant till compliance of this order.

    Dictated and corrected by me.

      Sd/-  

President

                     I   agree.                            

     Sd/-                            

Member   

Pronounced, in the open Commission today on this 8^th day of November    2023 under the seal and signature of this Commission. The pending application if any is also stands disposed off accordingly. Judgment could not be pronounced on time in want of quorum. 

The judgment be uploaded forthwith in the website of the Commission and free copy of this order be supplied to the respective parties or they may download the same from the Confonet to treat the same as copy of the order received from this Commission .Ordered accordingly.