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Judgment
M. Shreesha, J
Challenge in this Revision Petition under Section 21 (b) of the Consumer Protection Act, 1986 (in short "the Act") is to the order dated 12.12.2013 passed by the Tamil Nadu State Consumer Disputes Redressal Commission (in short "the State Commission") in First Appeal No. 568 of 2010. By the impugned order, the State Commission has concurred with the finding of the District Consumer Disputes Redressal Forum , Uthagamandalam (in short "the District Forum") and dismissed the Appeal.
The first point that falls for consideration in the instant case is whether the State Commission has rightly adjudicated that when the Complainant had already participated in the proceedings before the Insurance Ombudsmen and received an award, he can still file a Complaint before the Consumer Forum. In the instant case the District Forum has dismissed the Complaint on the ground that the Complaint was not maintainable as the Complainant had already availed the remedy by approaching the Insurance Ombudsmen. Having regard to the catena of judgements of the Hon'ble Supreme Court, we are of the considered view that the decision of the Ombudsmen is not binding on the Complainant and therefore the Complaint preferred is maintainable under Section 2 (1)(d) of the Act.
The State Commission has rightly observed that under Section 3 of the Act, the reliefs available to the Consumer are in addition to and not in derogation of any other law for the time being in force.
Now we address ourselves to whether the State Commission was right in dismissing the Claim of the Complaint on merits.
The State Commission has observed as follows:
"When the matter was brought before the Insurance Ombudsman, on perusal of the order of the Ombudsman under Ex. A1 and A2, we could find that for each and every item, after ascertaining various details, relating to the claim, estimation was obtained from the insurers, assessed the value by taking into consideration to the market value and depreciation, and other facts, determined the value of each item and awarded the amounts as exgratia amount or otherwise. Now even though the complainant filed some additional documents before this commission to ascertain values relating to the items which are omitted to be filed before the District Forum, as well as Insurance Ombudsman, on the basis of which claim was said to have been rejected. But we are of the considered opinion that since they are belated one and as already adjudications have been made by Insurance Ombudsman, we do not want to open the same once again, on the basis of the additional documents filed under Ex.A3 to A12 at this belated stage. Thereby we are of the considered view that the Insurance Ombudsman had already taken care in settling the claim, and thereby we need not once again to into the same in fixing the values of the goods on the basis of the various policies. Under such circumstances, on this point, the complaint becomes failed, and we concur with the findings of the District Forum in this regard. Accordingly the appeal deserves to be dismissed as devoid of merits."
Learned Counsel appearing for the Insurance Company submitted that they are ready and willing to pay the amount which the Ombudsman has awarded. The counsel appearing for the Complainant submitted that the Ombudsman had given Rs. 85,499/- on ex gratia basis, was never accepted by the Complainant. It is the Complainant's case that the Complainant was a regular holder of the Opposite Party- Insurance Company. The details of the Policy and the Claims made with the Insurance Company are listed as follows:
Policy No. 170501/48/05/32/00063 - Claim on account of Nikon LSR Camera and accessories -Insured Value of Rs.1,17,000-00; Claim Value of Rs.1,04,130-00; date of claim:-14/10/2005; Claim amount allowed Rs.35,000-00 as "ex- gratia".
Policy No. 170501/46/05/39/00000074 - Claim on Toshiba Laptop 4090 XDVD - Insured Value of Rs.87,000-00; Claim Value of Rs.84,500-00; date of claim:-14/10/2005; Claim amount allowed Rs.35,000-00 as "ex- gratia".
Policy No. 170501/48/06/32/00000258 - for National VCR Player -Insured Value of Rs.12,000-00; Claim Value of Rs.6,400-00; date of claim:-02/10/2006; Claim amount allowed Rs.4,000-00;
Policy No. 170501/44/06/58/30000005 - Two Modems -Insured Value of Rs.5,600-00; Claim Value of Rs.3,940-00; date of claim:-30/10/2006; Claim amount allowed Rs.35,000-00;
Policy No. 170501/44/06/58/30000005 - CPU of Desktop Computer -Insured Value of Rs.33,000-00; Claim Value of Rs.7,000-00; date of claim:-18/12/2006; Claim amount allowed Rs.5,999;
Policy No. 170501/31/06/01/0000471 - Refund of excess 3rd part premium on Bolero Jeep - Claim Value of Rs.2,000-00; January, 2007; Claim allowed nil;
Policy No. 170501/48/06/32/00000023 - Water Pump Motor -Insured Value of Rs.5,000-00; Claim Value of Rs.3,307-00; date of claim:-9/4/07; Claim allowed Rs.2,000-00.
Learned Counsel appearing for the Complainant contended that on 14.10.2005, the Complainant lost his baggage at Chennai Central Station wherein his costly Nikon SLR Camera and accessories, Toshiba Laptop computer 4090 XDVD and an FIR was lodged but the stolen items were never found and the police has also given a certificate to that effect. Despite repeated requests the Insurance Company did not settle his claim and therefore the Complainant approached the Ombudsman, who vide order dated 23.01.2008 allowed only Rs. 85,499/- against the total claim of Rs. 2,11,277/-.
It is seen from the record that the Ombudsman award was not disputed by the Insurance Company. The only point for consideration is whether the Complainant is entitled to the entire claim amount. It is the case of the Complainant that the Insurance Company having collected the premium for the policies, specially higher premium at 3 times the usual value for the said contingency policy, to have honoured the claim.
The Police Certifeicate dated 29.04.2006 reads as follows:
"1. Case No. 791/C/05
Namd and Address : Mr, Ravikumar, Age52...
Date & time of Occurrence : 14-10-05 at 06.00 hrs.
Date & time of Report : 14-10-05 at 06.30 hrs.
Place of Occurrence : In front of Hotel Saravana
Bhawan, Chennai Central
Details of Property Lost : The complainant's son in law Mr. Lalith was standing near the luggage near Hotel Saravana Bhawan while the complainant was purchasing tea token. When checked after two minutes a black colour bag was found missed which contains one Toshiba 4090 X DVD satellite Laptop and Nikon Camera and flash and zoom lambs and cloths, the case is under investigation."
It is relevant to mention that the Insurance Company in the repudiation letter stated that to admit the Claim they need a non-traceable certificate and also closure certificate. It is relevant to mention here that it is an admitted fact that the Police issue a non-traceable certificate and therefore this ground raised cannot be said to be a substantial or cogent ground to repudiate the claim. The Insurance Ombudsman had directed the Insurance Company to pay the aforenoted amount and the Complainant to accept the said amount within a period of one month, which the Complainant had admittedly not accepted. It is relevant to mention that Insurance Ombudsman Shri K. Sridhar has mentioned in his award that not only was the settlement delayed, the handling of the matter by the Insurance Company was also deprecated. The Insurance Company has sent a discharge voucher for the following amounts:
Laptop : Rs. 17,500/-
Nikon Camera & Accessories : Rs. 27,075/-
Water Pump Motor : Rs. 1,450/-
National VCR : Rs. 3,050/-
Desktop CPU : Rs. 4,400/-
D. Link Modems (2) : Rs. 3,200/-
We find force in the contention of the Complainant that when the Laptop was valued at Rs. 87,500/- and premium was paid accordingly, the assessment @ Rs. 40,000/- was unjustified. It is further submitted that the electronic equipment is valued at under one lakh and the policy excess chargeable ought to be Rs. 1,00,000 and not Rs. 2,500/-. As regarding the Nikon SLR Camera along with accessories the same was insured under Section 3 of the House Holders Policy for a total amount of Rs. 1,17,000/-. It is observed from the record that the Policy was valid at the time of cause of action, the Camera with the accessories was covered under Section 3, and the police FIR has clearly stated that it was untraceable having regard to the fact that the premium is paid after the valuation done by the Insurance Company with respect to the 'Sum Assured' we are of the considered view that the act of the Insurance Company in deducting the amount willingly is totally unjustified. We find force in the contention of the Complainant that the deductions are arbitrary.
For all the aforenoted reasons, this Revision Petition is allowed, the order of the State Commission modified, and the Insurance Company is directed to pay to the Complainant an amount of Rs. 2,11,277/-, which is reasonable and justified. We also find it a fit case to award interest @ 9% p.a. on Rs. 2,11,277/- from the date of filing of the Complaint till the date of realisation together with costs of Rs. 10,000/-. The interest @ 9% p.a. is being awarded specically keeping in view the observation made by the Insurance Ombudsman that the Claim was made way back in 2007 and the amount was still not paid.
Time for compliance is four weeks from the date of receipt of a copy of this order, failing which, the amount shall attract interest @ 12% p.a. for the same period.