Punjab

Rupnagar

CC/16/4

M/s Khanna Telesolution - Complainant(s)

Versus

The New India Assurance Company Ltd. & Another - Opp.Party(s)

Sh. S.S.Rattan, Adv.

26 Sep 2016

ORDER

BEFORE THE DISTT. CONSUMER DISPUTES REDRESSAL FORUM, ROPAR

                                                 Consumer Complaint No. : 04 of 18.01.2016

                                                          Date of decision                  : 26.09.2016

 

M/s Khanna Telesolution, Main Chandigarh, Nangal Road, Jawahar Market, Nangal Township, P.S. and Tehsil Nangal, District Rupnagar through its Proprietor.  

                                                                                       ......Complainant

                                             Versus

1. Branch Manager, The New India Assurance Company Limited, Main Bazar, Mehatpur, Tehsil & District Una (H.P.) through its Branch Manager.  

 2. The New India Assurance Co. Ltd, Head Office, New India Assurance Co. Ltd Building 87 MG, Road Fort, Mumbai, 400001, through its Manager

    

                                                                                       ....Opposite Parties

 

                              Complaint under Section 12 of the                                                                     Consumer Protection Act, 1986

 

QUORUM

                              MRS. NEENA SANDHU, PRESIDENT

                              MRS. SHAVINDER KAUR, MEMBER

 

ARGUED BY

 

Sh. S.S. Rattan Advocate counsel for the complainant

Sh. Amit Gupta, Advocate, counsel for Opposite Parties 

 

ORDER

                                      MRS. NEENA SANDHU, PRESIDENT

 

M/s Khanna Telesolutions has filed this complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) against the Opposite Parties (hereinafter referred to as ‘the O.Ps.’)  praying for the following reliefs:-

 

i)       To  pay Rs.2,04,350/- to the complainant

ii)      To pay Rs. 50,000/- as compensation for mental agony and physical harassment suffered by him,

iii)     To pay Rs. 20,000/ as litigation costs along with interest @ 12% per annum till its realization ,  

 

2.                         In brief, the case of the complainant is that the proprietor of the shop M/s Khanna Telesolutions had purchased insurance policy bearing No.360802/48/08/34/00000298 dated 13.6.2008 from the O.P. No.1 and paid a premium of Rs.2418/- covering theft/burglary in the premises of the shop. Unfortunately, on 09.04.2009, a theft/burglary took place in the shop about which FIR No.34 was registered Under Section 380/457 IPC at Police Station, Nangal, on the even date. The total value of stolen items was assessed at Rs.2,21,240/-. The complainant gave intimation of theft/burglary to O.P. No.1, on 09.04.2009 and supplied copies of documents and purchase bills to the surveyor Mr. Vishal Saini. Even after a long time, the O.P. No.1 has not settled his claim and under the compelling circumstances, he filed a complaint No.77 dated 16.5.2011, before this Ld. Forum, which was decided on 23.9.2011 and O.Ps. were directed to settle the claim within a period of two months and liberty was given to the complainant, in case the claim is not settled within the prescribed period, then he can file a fresh complaint. Inspite of that, the O.Ps have not settled his claim and were prolonging the matter on one pretext or the other, aggrieved by the said act and conduct of the O.Ps, he again filed a complaint No.38 dated 02.04.2012, which was also decided on 27.02.2013, by this Learned Forum. While disposing of the said complaint, this Ld. Forum directed the O.Ps. to visit the shop in question on 13.3.2013 for inspection of stock register, cash books of relevant period, vat returns/deposit receipts and service tax returns, if any and also held that in case, the parties feel, the cooperation is not being extended, by the opponent then aggrieved party, may file miscellaneous application for issuance of appropriate directions, so that requisite documents may be got produced, before the learned Forum and further delay in settlement of the claim can be checked. Despite numerous requests the O.Ps have not settled the claim, so far in utter violation of order dated 27.2.2013 passed by this learned Forum and the O.Ps were lingering on the matter on one pretext or the other and when finally they flatly refused to settle his claim, then he moved and application before this Ld. Forum, which was allowed vide order dated 11.6.2015 with the direction to the O.Ps to settle his claim. However, the O.Ps have not settled the claim proportionate to the loss suffered by him and have paid a meager amount of Rs.16,890/- to him, whereas he has suffered a loss of Rs.2,21,240/-. Hence, this complaint. 

3.                On being put to the notice, the O.Ps. filed written version taking preliminary objections; that the claim of the complainant was duly settled and a letter dated 12.8.2015, enclosing cheque No. 194210 dated 5.8.2015 for a sum of Rs. 16,890/- in full and final settlement of the claim, was sent to the complainant. The complainant received the same, thereby now the complainant cannot claim any further amount with regard to the said claim; that this Hon’ble Forum has got no jurisdiction to entertain the present complaint as the policy was obtained from BO Mehatpur in District Hoshiarpur and the claim was lodged with the BO Mehatpur and the claim was also processed at BO Mehatpur and  as such, no cause of action has arisen at Ropar. On merits, it is stated that the shop in question was insured by the answering O.P. vide policy No.360802/48/08/34/00000298 for a period of 13.6.2008 to 12.6.2009 and a cover note was issued strictly as per the terms and conditions of the policy. On lodging of claim, the competent authority deputed Sh. HP Singh, Surveyor and the loss assessor for spot survey. After receipt of the preliminary surveyor report, Sh. Vishal Saini, was deputed as Surveyor and loss assessor to conduct the final survey. The said surveyor Sh. Vishal Saini wrote many letters to the complainant to provide purchase bills along with balance sheets of 3 years, trading account upto the date of the loss, stock register, copy of cash book and certificate of MC despite many reminders, complainant did not supply the requisite documents and as such, the branch office Mehatpur i.e. O.P. No.1 closed the file as no claim and duly informed the complainant vide letter dated 21.12.2010. In complaint case No.77 of 16.5.2011, decided on 23.9.2011 by the Ld. District Consumer Disputes Redressal Forum, Ropar, directed the complainant to submit the following documents with the O.Ps.:-

i)                 The balance sheets of his business for last 3 years preceding the date of theft duly attested by the chartered accountant.

ii)                The trading account up to the date of theft, stock, register maintained by his firm of its business.

iii)               Cash book dated 7.4.2009, 8.4.2009 and 9.4.2009.

iv)               Certificate by Municipal Council of the area.

 The complainant in compliance of order dated 23.09.2011 submitted the following documents vide letter dated 25.11.2011:-

 

i)       Copy of judgment dated 23.9.2011

ii)      Copy of certificate by Sarpanch of the area

iii)     Copy of balance sheets (2006-07, 2007-08, 2008-09) totaling three in number.

iv)     Copy of trading account for the period 1.4.2009, 08.04.2009.

Mr. Vishal Saini, surveyor vide letter dated 21.12.2011, requested the complainant to supply the following documents:-

i)       Non traceability report of lost/claimed items.

ii)      Copy of stock register.

iii)     Police report submitted with us mentions one Nokia 1110 with IMEI Nos. 352670018018690 being stolen but you have claimed 34 mobile sets. If the same have been found lost, you are required to submit the IMEI Nos. of lost mobiles & purchase bills for the same.

 

iv)     The complainant has claimed pen drives & memory cards, I-pods etc, having been stolen but the same have not been mentioned in police report. 

 

v)      Copy of VAT return & deposit receipt if any.

vi)     Copy of service tax returns if any.

The surveyor reminded him vide letter dated 29.12.2011 to supply the requisite documents, even the Insurance company vide letter dated 18.1.2012 also reminded the complainant for submission of the aforesaid documents. Thereafter upon completion of all the formalities, the claim of the complainant was duly settled and and an amount of Rs.16,890/- was paid to the complainant in full and final settlement of the claim vide cheque No.194210 dated 5.8.2015. Rest of the allegations made in the complaint have been denied and a prayer has been made for dismissal thereof.

 

4.                          On being called upon to do so, the learned counsel for complainant tendered affidavit of Sh. Munish Khanna, Proprietor of M/s Khanna Telesolutions Ex.C1, photocopies of documents Ex.C2 to Ex.C17 and closed the evidence.  The learned counsel for the O.Ps. tendered affidavit of Sh. Surinder Pal Sharma, Divisional Manager, Ex.OP-1, photocopies of documents Ex.OP2 to Ex.OP11 and closed the evidence.  

 

5.               We have heard the learned counsel for the parties and gone through the record of the file, carefully.

 

6.                          At the outset, the learned counsel for the O.Ps. submitted that this Hon’ble Forum has no territorial jurisdiction to adjudicate upon the present complaint because the insurance policy in question was obtained from BO Mehatpur in District Hoshiarpur and the claim was lodged and processed by the said Branch. On the other hand, the learned counsel for the complainant submitted that the shop in question is situated at Main Chandigarh-Nangal Road, Jawahar Market, Nangal Township, PS & Tehsil Nangal, District Rupnagar, and before issuance of the insurance policy in question, the employee of the O.Ps. had come at the shop to verify the stock lying therein, and after fully verifying the stock kept in the shop, the O.Ps. have issued the insurance policy in question. Thus, it is apparent that the O.Ps. carries on business within the territory of District Ropar. Therefore, this Hon’ble Forum has territorial jurisdiction to adjudicate upon the matter. We find force, in the submission of the learned counsel for the complainant because O.Ps. have insured the stock, lying in a shop, which is situated within the territory of District Ropar, thus, it is proved that the O.Ps. are doing their business, within the territorial jurisdiction of District Ropar, and as per Section 11 2(b) of the Consumer Protection Act, 1986, the complaint filed by the complainant against the O.Ps. is maintainable, before this Forum.

7.                          On merits, the learned counsel for the complainant submitted that on 13.06.2008 theft took place in the duly insured shop in question and goods worth Rs.2,21,240/- were stolen. The O.Ps. instead of indemnifying for the loss of Rs.2,21,240/- had paid just a meager amount of Rs.16,890/- on 05.08.2015. Therefore, O.Ps. be directed to pay the remaining amount of Rs.2,04,350/-, along with interest.

On the contrary, the learned counsel for the O.Ps. submitted that on receipt of the information regarding theft in the shop in question, the O.Ps,. immediately deputed a surveyor to assess the loss, who demanded certain documents from the complainant but the same were not provided by the complainant and due to non submission of requisite documents, the claim was closed. Thereafter, upon completion of all the formalities, the claim to the tune of Rs.16,890/- was paid to the complainant vide cheque No. 194210 dated 5.8.2015, in full and final payment. The delay in settling the claim is not due to any fault of the O.Ps. but it was due to non submission of requisite documents by the complainant in time, therefore, the complaint filed by the complainant be dismissed with costs.   

In the revised assessment report dated 14.7.2015, Ex.OP11, the surveyor has stated that “ the loss has been re assessed on the basis of claim bill, purchase bill, submitted and considering loss items as per police report. Regarding assessment of mobiles, although the insured has claimed mobile phones, but as per FIR, new & mobiles lying in the shop for repair had been stolen from the shop. However, the insured has not submitted purchase bill of mobile phones lost with IMEI numbers, till date despite of sending reminders. As per FIR, one number of mobile phone set make Nokia model 11101 has been stolen and as per investigation report of Mr. J.K. Walia, thirteen no.s of mobiles have been recovered. The insured has however not submitted IMEI no.s of those which has been stolen or those which have been recovered. Also the insured has not maintained any stock register for the mobile/other stocks in the shop. We have however, physically verified the stock present in the shop of insured at the time of survey and made a list of the same which had been signed by the insured. So, in the absence of purchase bills of lost mobiles with IMEI no.s, mobiles loss could not assessed”. However, the said surveyor assessed the loss to the tune of Rs.22,520/-. This report of the said surveyor has not been challenged by either of the parties. In the case of New India Assurance Co.Ltd. vs. Roshan Lal Oil Mills’ 2000 (10) SCC 19, the Hon’ble Supreme Court has already held that the surveyor’s report has significant evidentiary value and cannot be displaced unless it is contradicted by credible evidence to the contrary. In the case, 2006 (2) CLT NC 349, ‘National Insurance Co. Ltd. & others Versus Aleyamma Verghese & others’ it has been held that surveyor’s report is an important document, which cannot be brushed aside, as such, assessment made by him has to be specifically agreed or rebutted.

From the cheque dated 05.08.2015, it is evident that the O.Ps. have paid a sum of Rs.16,890/- to the complainant. No reasons, whatsoever, has been given by the O.Ps, as to why they have paid Rs. 16,890/- instead of Rs. 22,520/- as assessed by the surveyor. Thus, by not paying the total amount as assessed by the surveyor, the O.Ps. have committed deficiency in service and they are still liable to pay Rs. 5630/ (Rs. 22,590 - Rs.16890) along with interest from 05.08.2015 (the date on which the O.Ps. have paid Rs.16,890/), to the complainant. The O.Ps. are also liable to pay compensation on account of mental agony and physical harassment suffered by him along with litigation costs.

8.                In view of the aforesaid discussion, we partly allow the complaint against the O.Ps. and they are directed in the following manner:-

 

1. To pay Rs.5630/- along with interest @ 8% per annum from 05.08.2015 till its realization.

2.  To pay Rs. 10,000/- as compensation.

3.  To pay Rs. 5000/- as litigation cost.

          The O.Ps. are further directed to comply with the said order within the period of 30 days, failing which, interest @ 12% per annum shall be charged on the amount mentioned above, besides litigation costs.

9.                The certified copies of this order be supplied to the parties forthwith, free of costs, as permissible under the rules and the file be indexed and consigned to Record Room.

ANNOUNCED                                           (NEENA SANDHU)

Dated 26.09.2015                                       PRESIDENT

 

 

                                                                     (SHAVINDER KAUR)

                                                                                       MEMBER.