Padmavati Enterprises vs Manager, New India Assurance Company Ltd. & 3 Ors

Deepa Sharma, Presiding Member

The present Appeal has been filed against the order dated 14.01.2020 of the State Commission in CC No. 49 of 2019.  The complaint was not admitted by the State Commission and it was dismissed at the stage of admission in limine

The brief facts of the case, as disclosed in the complaint, are that complainant is running a mobile shop at Ahmednagar since 2011 under the name of “Padmavati Enterprises”. Running the shop is the only source of livelihood.  He purchased the insurance policy from New India Assurance Company in the year 2015 covering the risk of Rs.40,30,000/- of the stocks lying in his shop against burglary, housebreaking or fire.  He had paid annual premium of Rs.11,572/-. During the validity of the policy period, burglary took place in his shop in the night of 26.05.2018 and mobiles, mobile accessories and electronic material were stolen from the shop.  He lodged the FIR at Kotwali Police Station on 26.05.2018. Since complainant had taken loan of Rs.9.00 lacs from Bhinagar Cooperative Bank, the said Bank had also taken the policy number 1625002617F113728110 covering risk of Rs.11.00 lacs. of United India Insurance Co.  The complainant was not aware of the said policy. The complainant informed the bank about the said burglary on 26.05.2018.  The complainant, however, did not file any insurance claim against United India Insurance Co.  Information of the incident was also sent to the New India Assurance Co. and the surveyor visited the spot. The details of loss of material and accessories in burglary along with photocopies of shop after the theft and report of available stocks after theft was also given to the surveyor  which comes to Rs.7,17,544/-.  The loss of accessories / pen drives amounting to Rs.15,44,099/- was also submitted to the surveyor.  His submissions were, however, not considered by the surveyor and the Surveyor calculated the available stock value after the incident at Rs.22,61,643/- and calculated the net loss in burglary at Rs.14,49,734/- after deduction @ 12.45%.  The New India Assurance Co., however, settled the claim of the complainant for Rs.16,55,892/- and awarded 75% of the claim and shifted 25% liability to United India Insurance Co.  His signatures were obtained by New India Assurance Co. on the blank papers and sum of Rs.12,53,675/- was paid to him.  It was alleged in the complaint that surveyor had not considered the profit and loss account statement prior to and after the theft incident and also the profit and loss account from chartered accountant.  A letter dated 03.05.2019 was issued by the New India Assurance Co. to the complainant alleging therein that complainant had failed to disclose the facts of above two different policies from two different companies  and complainant answered it on 14.05.2019. It had been alleged that complainant had suffered loss of Rs.40,30,000/- and filed the complaint with following prayers:

“A] The instant complaint may kindly be allowed;

B] The respondent Nos. 1 to 3 may kindly be directed to pay the insurance policy amount of Rs.40,30,000/- which is covered under the policy certificate dated 27/10/2017 issued by respondent Nos.1 to 3 company in favour of the complainant for the insured shop of namely "Padmavati Enterprises".

C] The fire survey report dated 31/03/2019 submitted by surveyor of respondent Nos. 1 to 3 with the respondent no.3 may kindly be quashed and set aside.

D] The claim approval letter/order dated 15/05/2019 issued by Senior Divisional Manager Ahmednagar D.O. 151800 of New India Assurance Company Ltd., may kindly be quashed and set aside.

E] The respondent Nos. 1 to 3 may kindly be directed to consider the insurance policy claim of the complainant i.e. shopkeeper insurance policy bearing policy No.15180548170600000024, dated 27/10/2017 and to pay the insurance amount as per the risk cover under the policy along with accrued interest thereof.

F] The respondent Nos. 1 to 4 may kindly be directed to pay the compensation amount of Rs.9,00,000/- to the complainant for mental and physical harassment and loss of income due to default of insurance payment.

G] Any other just and proper relief may kindly be granted in favour of the complainant in the interest of justice.””

The State Commission heard the arguments of counsel for the complainant at the time of admission of the  complaint and perused the documents in support of the claim and, thereafter, dismissed the complaint in limine.  The State Commission had dismissed the claim of the complainant on merit as well as considered the jurisdictional restriction it had while dealing with the complaint.

The main contention of the complainant had been that he had lost the stocks of Rs.39,17,535/- in the burglary.  The State Commission, however, has taken into consideration the contents of the FIR which the complainant had filed immediately on the same day of the burglary i.e. after the theft and in the FIR the complainant had repeated that 20 mobiles amounting to Rs.3,00,000/- and cash amount of Rs.40,000/- was also stolen from his shop. The State Commission, therefore, has taken note of the fact that as per the complainant’s own statement in the FIR, which was under his signature, the value of the stocks which was stolen from his shop was of value of Rs.3,00,000/-.  The State Commission has also taken note of the allegation of the complainant in his complaint that surveyor had prepared the false report and while dealing with the said contention  has held as under :

“(6) It appears that the complainant has allegation against the surveyor that the surveyor prepared the false report. The complainant is requesting to reject the surveyor's report and requesting to consider his case of loss of pen drives/ accessories for loss of Rs.15,44,099/-. The complainant alleged that the surveyor wrongly assessed the loss case and reported that there is available stock of pen drives /accessories worth Rs. 15,44,099/- after theft when it was case of loss We have perused the said report. The report on page No.114 in complaint compilation reads as under.

ASSESSMENT-

After getting the information only the Surveyor and Loss assessors visited to the insured's shop and taken the necessary photographs and inspected thoroughly and counted the balance stock as on the date of loss. It was found that only mobile sets were stolen by culprits and accessories were found intact. Balance/Saved stock is as under (As per the list submitted by the insured)

Mobile sets of                       -  Rs.7,17,544.00

Accessories                            -  Rs.15,44,099.00

Total                                      -  Rs.22,61,643.00

So the saved stock was of Rs.22,61,643.00

So, the loss assessed as under:-

Total stock as on the date of loss

39,17,535.00

Saved stock/balance stock

22,61,643.00

16,55,982.00

Less under insurance 12.45%

2,06,158.00

Net Loss

14,49,734.00

So, the net loss assessed of Rs. 14,49,734.00 (Rs. Fourteen Lakhs forty nine thousand seven hundred thirty four only)”

The State Commission had also rejected the contention of the complainant that surveyor had not considered the documents supplied to him by the complainant and State Commission has held as  under :

“(7) The complainant is contending that he has informed the theft loss of pen drives to the surveyor. He has also relied upon one document as his reporting to the surveyor. However, it is revealed that the surveyor on receiving his submissions assessed the actual loss. He has specifically stated that he counted the balance stock as on the date of loss. And it was found that only mobile sets were stolen and accessories were found intact. It appears from the report of surveyor that, he accepted the availability of material before burglary for Rs. 39,17,535/- And after thoroughly inspection and counting of the stock after burglary, the left out stock is of Rs. 22,61,643/- (Rs.7,17,544/- for mobiles and Rs. 15044/- for accessories). It appears that the complainant has not adduced any evidence to counter the report except his bare statement.”

The State Commission has also found the falsity in the contention of the complainant in its complaint regarding the value of the stocks lost in burglary and the value of stocks available with him after burglary. The State Commission has held as under :

“(9) The complainant has come with a case for payment of Rs.39,17,535/- towards insurance. The complainant in the complaint referred that the stock on burglary was Rs.39,17,535/-. The complainant himself admitted the stock of Rs.7,17,544/- was communicated by him as available stock. The policy is for Rs.34,30,000/- for stocks. Therefore, it reveals that, there is inconsistency in pleadings of the complainant.”

It is also apparent that complainant had not filed any claim against the United India Ins. Co. and this contention has also been considered by the State Commission in the impugned order and it has been held as under :

“(10) The complainant is also alleging that the opponents paid him only 75% of the amount of the settled claim and shifted the liability of rest of the claim on opponent No.4 insurance company. It revealed that the complainant has also taken one more policy through his creditor Bank. It is not the case of complainant that the opponent No.4 has not considered his claim. However, the complainant is coming with a case of total loss of Rs. 39,17,535/- against opponents-1,2 and 3. However, it is not the case of complainant for the balance payment of 25% of the settled claim from opponent No.4 or any of the opponents.”

The State Commission on the basis of the above observations reached to the conclusion that no deficiency has been made out.  From the perusal of the record, it is apparent that surveyor has given its report on the basis of information supplied by the complainant and after going through all the documents submitted by the complainant and despite the fact that initially the complainant had reported the theft of value of Rs.3,00,000/- and odd, it had on the basis of  material available before it assessed the loss much more than what had been initially reported to the police by the complainant.  Based on the findings of the assessment of the surveyor, the insurance company has duly made payment which has been accepted by the complainant.  The impugned order is based on the cogent evidences on record and I found no illegality and infirmity in the impugned order. However, the loss assessed by New India Assurance Co is sum of Rs.16,55,892/- but it has paid only a sum of Rs.12,53,675/- as per the claim note dated 14.05.2019.  Balance of Rs.4,02,217/- still remains to be paid.  Al-though New India Assurance Co. has alleged that under the rules, he is bound to pay 75% as there were two insurance policies but no such rules has been shown to me.  I, therefore, while disposing of the present Appeal having no merit in it, direct the New India Assurance Company to pay balance sum of Rs.4,02,217/- with liberty to them to recover it from United India Insurance Co. if it is so recoverable under the terms and conditions of the insurance policy.  The payment be made within 8 weeks

The Appeal stands disposed of.