Complaint Case No. 25 of 2010. Case: Saharanpur Cloth Merchant Vs New India Assurance Company Ltd.. Uttar Pradesh State Consumer Disputes Redressal Commission

Case NumberComplaint Case No. 25 of 2010
Party NameSaharanpur Cloth Merchant Vs New India Assurance Company Ltd.
CounselFor Appellant: Sushil Kumar Sharma, Advocate and For Respondents: J.N. Mishra, Advocate
JudgesVirendra Singh, J. (President), R.C. Chaudhary and Sanjai Kumar, Members
IssueIndian Penal Code 1860, (IPC) - Sections 350, 380, 457; Insurance Act, 1938 - Section 2(6A)
CitationIII (2014) CPJ 71 (UP)
Judgement DateMarch 21, 2014
CourtUttar Pradesh State Consumer Disputes Redressal Commission

Order:

Virendra Singh, J. (President)

  1. This complaint has been filed by M/s. Saharanpur Cloth Merchant. Saharanpur against New India Assurance Company Limited and another with the prayer that the opposite party No. 1 Insurance Company be directed to pay to the complainant a sum of Rs. 30,00,000 along with interest @ 18% as damages and also a sum of Rs. 2,00,000 for physical and mental harassment as well as costs. The facts of the case stated in brief are that the complainant is engaged in the business of cloth merchant at Saharanpur. The complainant took the insurance policy of a sum of Rs. 30,00,000 towards the fire and allied perils for his business premises and assets from opposite party No. 1. The policy bearing No. 353503/48/08/34/0000/1592 dated 26.2.2009 was valid for the period from 1.3.2009 to 28.2.2010. In the night of 14/15.7.2009 fire broke out in the premises of the complainant. The complainant informed the police on 15.7.2009. The fire brigade people reached the premises of the complainant and brought the fire in his premises under control. The complainant informed the Insurance Company also on 16.7.2009 regarding occurrence of the fire in his premises in the night of 14/15.7.2009. The Insurance Company appointed Sri Vinay Mittal as Surveyor and he demanded certain documents and information from the complainant related to the fire. The complainant provided the demanded documents and information to the Surveyor. The complainant alleged that the opposite party has not decided the insurance claim and there is deficiency in service on the part of the opposite party No. 1 in not deciding the claim of the complainant. The complainant had taken loan from the opposite party No. 2, Union Bank of India and has to pay back the loan amount.

  2. The opposite party No. 1 Insurance Company pleaded in its Written Statement saying thereby that insurance policy in favour of the complainant, as alleged in the complaint, it not denied. The facts mentioned in the complaint require strict proof from the complainant. The complaint is not maintainable because the sole deficiency in service alleged in the complaint does not sustain and survive any more since the Insurance Company vide letter dated 31.3.2010 has decided the insurance claim thereby considering the recommendations of the Surveyors and investigators appointed for assessment of loss, deciding to offer Rs. 2,96,000 as the amount of claim payable as full and final settlement of the insurance claim to the complainant. The complaint is further not maintainable because the complainant has concealed the facts that during the pendency of the complaint, the alleged deficiency in service has been rectified and a cheque of Rs. 2,96,000 dated 31.3.2010 was sent to the concerned bank and the cheque amount has been cleared through the bank and was never returned by the complainant. The complainant had manipulated the records and made incorrect statement and grossly exaggerated the loss caused to him. The insurance policy requires that notice of theft or loss should be given immediately to the policy and to the company, but the complainant gave the information to the police nearly after a month (precisely 26 days), and to company after delay of 16 days from the date of alleged theft. As per Survey Report dated 25.10.2014 there was no evidence of any forcible entry into the premises. This is corroborated from the fact that the charge sheet was issued under Section 380 of the Indian Penal Code, for simple theft only, and not for theft and house breaking and/or burglary, under Sections 457/350, Indian Penal Code. It is also stated that even if the loss had been caused, then it would not have been covered under the Insurance Policy, since simple theft is not covered thereunder. Thus, on this account too, complaint was not legally sustainable.

  3. Perusal of the aforesaid pleadings of both the parties shows that there is no dispute in respect to the facts pertaining to the cloth merchant business of the complainant, the insurance cover of the said business provided by the opposite party No. 1, the insurer, on the date of alleged occurrence and the alleged occurrence of fire occurred in the business premises of the complainant. The only dispute seems to be decided by this Commission remains as to:

    (1) Whether the complaint is not maintainable as pleaded by the opposite party.

    (2) To what amount if any the complainant is entitled to get beyond the assessment made by the Surveyor appointed by the opposite party.

  4. In support of the facts of the complaint the complainant filed his affidavit dated 9.1.2012 as well as his rejoinder affidavit dated 18.9.2012 and the following papers have been filed as documentary evidence by him.

    Complainant's Annexure No. 1--Copy of insurance policy cover note.

    Complainant's Annexure No. 2--Copy of information of police.

    Complainant's Annexure No. 3--Copy of Fire Brigade Report.

    Complainant's Annexure No. 4--Copy of letter dated 16.7.2009 sent by the complainant to the Insurance Company.

    Complainant's Annexure No. 5--Copy of letter dated 24.7.2009 of the Surveyor demanding documents from the complainant.

    Complainant's Annexure No. 6--Copy of letter dated 19.9.2009 sent by the complainant to Surveyor Sri Vinay Mittal along with documents.

    Affidavit's Annexure No. A--Letter dated 1.4.2010 by complainant to the insurer refusing to accept the cheque amount of Rs. 2,96,000 as claim sent by insurer to the Union Bank of India, the opposite party No. 2.

  5. On behalf of opposite party, an affidavit dated 28.8.2012 of Mr. Vijay Kumar Sinha, Deputy Manager (Legal Cell), an affidavit dated 15.3.2012 of Vinay Mittal the Surveyor have been filed in the evidence of the opposite party along with the documents as follows:

    Annexure No. C.A. 1, the photocopy of letter dated 24.7.2009 and 27.7.2009 by Vinay Mittal, Surveyor and Loss Assessor addressed to M/s. Saharanpur Cloth Merchants demanding some documents and preparing the inventory of damaged documents in the shifting of them from the shop.

    Annexure No. C.A. 2, the photocopy of Investigation report dated 27.7.2009 by Capt. Lekh Raj Batra (Retd.) concluding confirmed occurrence of fire due to electric short circuit.

    Annexure No. C.A. 3, copy of survey report dated 24.11.2009 by Sri Vinay Mittal assessing the loss of Rs. 2,96,000 only.

    Annexure No. C.A. 4, copy of letter dated 14.1.2010 sent by the Insurance Company to the complainant demanding some papers from the complainant.

    Annexure No. C.A. 5, copy of investigation report dated 18.3.2010 by Mr. K.N.S. Sodhi, Investigator and Consultant.

    Annexure No. C.A. 6, copy of letter dated 31.3.2010 by the Insurance Company to Manager, Union Bank of India, Saharanpur sending a cheque of Rs. 2,96,000.

  6. We have heard Mr. Susheel Kumar Sharma, learned Counsel for complainant and Mr. J.N. Mishra, learned Counsel for opposite party the insurer.

    In respect to issue No. (1) in dispute as above, perusal of the record shows that since the insurance claim allowed by the...

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