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M/s. Avleen Motors v/s The New India Assurance Company Limited & Another

    Consumer Complaint No. 47 of 2018

    Decided On, 14 January 2019

    At, Punjab State Consumer Disputes Redressal Commission Chandigarh

    By, THE HONOURABLE MR. J.S. KLAR
    By, PRESIDING JUDICIAL MEMBER & THE HONOURABLE MR. RAJINDER KUMAR GOYAL
    By, MEMBER

    For the Complainant: R.P. Singh, Advocate. For the Opposite Parties: Vinod Gupta, Advocate.



Judgment Text

J.S. Klar, Presiding Judicial Member.

1. The complainant has filed this complaint U/s 17(1)(a) of the Consumer Protection Act 1986 (in short the "Act) against OPs on the allegations that it deals in two wheelers agency of TVS Motors and deals in sales, spare parts and service of all kinds of motorcycles, scooters, Mopeds and their spare parts and accessories, as manufactured by the said TVS Motors. The complainant took a “Shopkeepers Insurance Policy” from OPs, vide no.36060348150600000144 for the period 19.02.2016 to 18.02.2017 against payment of premium. No exclusion terms of the policy were supplied to the complainant by OPs. The complainant has been regularly taking the insurance policies year after year continuously for the last many years. On 31.01.2017 at about 11.15 p.m, a fire broke out due to electric short in the premises of the firm of the complainant, where spare parts and accessories of the vehicles were stored. The services of fire brigade were requisitioned to extinguished the fire, who also submitted its report in that regard. Due intimation was given of the loss caused to complainant by the fire to the police station Mukatsar, vide DDR no.32 dated 31.01.2017. Intimation was also given to OPs about the loss caused by the fire to the above insured material. The estimate of loss of spare parts and engine oil were assessted to the tune of Rs.21,31,636.61. OPs appointed surveyor under name and style of M/s Mittal Independent Surveyor to assess the loss, who visited the spot on 31.01.2017 and thereafter on 09.02.2017 fo

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r that purpose. The complainant supplied all other documents to the surveyor as demanded by him, but for stock register of the store room maintained electronically in the computer placed in the store room, which could not be supplied on account of burning of computer in the incident of fire. One copy of stock statement procured by complainant from the company supplying the spare parts was supplied to the surveyor. The complainant supplied copy of the stock statement to its banker and balance sheets for the financial year 2013-14, 2014-15 and 2015-16, provisional accounts (balance sheets, P&L account, capital account etc). The complainant sent legal notice dated 08.06.2017 to OPs for not paying the claim to it. OPs closed the claim of the complainant as “no claim” for not completing the formalities and non-submission of claim documents by it. OPs treated the claim as ‘no claim’ on the ground that policy was covering the stock of motor cycles and accessories only, whereas the said fire stock of spare parts were affected thereby, which were not insured with OPs in this case. Repudiation letter dated 09.06.2017 of the insurance claim of complainant was sent by OPs to complainant in this regard. The claim of the complainant has been repudiated despite submission of documents by complainant by way of emails, courier etc to OPs. The complainant obtained information under RTI Act, where under it was found that surveyor assessed the loss of Rs.13,49,966/- even after deducting 5% stock claimed as dead , 10% deductions due to variations in stocks, 15% deductions due to recovery of saved components and a sum of Rs.15,000/- for salvage and further deducting 7.37% on account of under insured stocks and 5% on account of excess clause. OPs stated in repudiation letter that complainant had not segregated the stock for physical verification, whereas the photographs arranged by surveyor appointed pointed out that small size spare parts were so mixed and plastic and rubber parts were destroyed and so as to make it impossible to segregate them. The complainant has prayed for below noted reliefs against OPs :-

i. OPs be directed to pay Rs.13,49,966/- as assessed by the surveyor along with interest @ 18% p.a from the date of loss i.e. 31.01.2017 till actual payment.

ii. OPs be directed to pay Rs.5,00,000/- as compensation for harassment and Rs.1,50,000/- as litigation expenses.

2. Upon notice, OPs appeared and filed written reply and contested the complaint of the complainant as not maintainable, because these are disputed facts, which cannot be decided in summary manner by consumer forum. The claim amount is less than 20 lac and as such, this Commission has no pecuniary jurisdiction to try the complaint. On merits, OPs admitted the fact of issuance of insurance policy to complainant against payment of premium. OPs specifically denied this fact that the terms and conditions were not supplied to complainant in this case of the policy. It was denied that complainant supplied the documents to the surveyor, as required by him in connection with this assessment of the loss. The complainant has not segregated the stock for physical verification despite email sent to him on 17.05.2017 and he also failed to complete the formalities required from him. The claim was repudiated by OPs correctly in this case because affected stock of spare parts were not insured with OPs. Only motorcycle and accessories were insured by OPs and not spare parts of the complainant. The report of the complainant self appointed surveyor relied upon by complainant of Mittal and Garg Chartered Accountant dated 20.04.2017 is an afterthought version and is of no consequence. OPs punctuated this point in the written version that spare parts , which allegedly affected by the incident of fire were not insured with OPs and as such OPs have correctly repudiated the insurance claim of the complainant on account of no insurance of spare parts being the source of loss to complainant. OPs prayed for dismissal of the complaint.

3. The complainant tendered in evidence his affidavit Ex.C-A, affidavit of Ashok Garg as Ex.C-B along with copies of documents Ex.C-1 to Ex.C-11 and closed the evidence. As against it; OPs tendered in evidence affidavit of Ms. Deepshikha Deputy Manager of OPs as Ex.OP-A and closed the evidence.

4. We have heard learned counsel for the parties at considerable length and have also examined the record of the case.

5. The complainant adduced in evidence the authority letter Ex.C-1 given by complainant firm to Harmeet Singh Sodhi its partner. Even otherwise, partner has implied authority to act on behalf of the firm under Indian partnership Act. Ex.C-2 is copy of the policy no. 36060348150600000144 for the period 19.02.2016 to 18.02.2017 covering stock in trade including goods held in trust which have been described as stock of motorcycles and accessories. Copy of policy schedule for shopkeepers insurance policy is Ex.C-2 which has proved this fact that complainant insured the stock of motorcycles and accessories with OPs for the insured amount of Rs.28 lac for the period 19.02.2016 to 18.02.2017 against parells under shopkeepers insurance policy. Fire broke out in the premises of the complainant on 31.01.2017 as deposed by Harmeet Singh Sodhi in his deposition contained in his affidavit Ex.C-A. He requisitioned fire brigade authorities to extinguished the fire and Fire Service Muktsar submitted its report dated 31.01.2017 Ex.C-3 on the record. The complainant also gave intimation of loss to the police station City Mukatsar, vide DDR no. 32 dated 01.2.2017 Ex.C-4 on the record. Estimate of loss in fire as relied upon by complainant is Ex.C-5. The complainant has shown the spare parts and engine oil loss to the tune of Rs.21,31,636.61 in estimate Ex.C-5. As per estimate of loss of fire prepared by complainant, there was loss of spare parts and loss of engine oil only. There were no loss of motorcycles as they were saved to the tune of Rs.7,42,082.64 and spare parts were saved to the tune of Rs.1,49,233/- only . This admission of complainant contained in estimate of loss Ex.C-5 is to the effect that loss of the complainant was restricted to spare parts and engine oil to the tune of Rs.21,31,636.61 as caused by fire. Ex.C-5 is the document of the complainant and has been produced by it and it is binding on complainant. The complainant also relied upon audit report submitted by chartered accountant vide Ex.C-6 dated 19.08.2015. The surveyor was appointed by OPs in this case, who visited the spot on 31.01.2017 and thereafter on 09.02.2017 to make an assessment of loss. The version of the complainant is that he supplied copies of record to surveyor as called upon by him, but claim of the complainant has been repudiated without any reason by OPs. He relied upon Ex.C-6 copies of documents submitted to surveyor and Ex.C-7 courier receipt regarding supplying of above documents to surveyor, as appointed by OPs in this case. This witness has further deposed that OPs treated claim as ‘no claim’ on account of non-submission of documents by complainant and subsequently repudiated it on the ground that the loss of spare parts is not covered under the contract of insurance between the parties. The complainant sent legal notice dated 08.06.2017 to OPs in this regard, vide Ex.C-8. Repudiation letter dated 09.06.2017 vide Ex.C-9 on the record. He further stated that he approached M/s Mittal and Garg Chartered Accountant surveyor under name and style of M/s Mittal Independent Surveyor and self appointed surveyor of the complainant found that complainant firm is entitled to claim of Rs.13,49,666/- even after deducting 5% stock as dead stock, 10% less variation in stocks, 15% less recovery of saved components and Rs.15,000/- for less salvage in shape of scrap as per report Ex.C-10 of the surveyor of the complainant. This witness further deposited that genuine claim of the complainant has been repudiated by OPs without any valid reason. The complainant also relied upon affidavit of Ashok Garg c/o Mittal & Garg surveyor of complainant Ex.C-B on the record to establish the net sum payable to him by OPs in the contract of insurance as Rs.13,49,966/- on the basis of calculations given in his deposition in the form of affidavit.

6. OPs admitted the fact of issuance of insurance policy to complainant, but took plea that loss of spare parts suffered by complainant was not insured under the contract of insurance. OPs case is further that complainant has not supplied the documents as demanded by surveyor appointed by OPs to look into the matter and claim was treated as ‘no claim’ on that basis and repudiated it primarily on the ground of uninsured articles of spare parts under the contract of insurance, which was only affected in this incident of fire. OPs relied upon affidavit of Deepshikha Deputy Manager as Ex.OP-A on the record. This witness further stated that complainant was asked by the surveyor to segregate the affected stock for physical verification by sending email dated 17.05.2017 to complete the formalities, but to no effect. This witness further stated that complainant relied upon report of M/s Mittal and Garg Chartered Accountant surveyor dated 20.04.2017, which has been done after lapse of nine months period from the date of fire and as such this report is an afterthought version without any consequence.

7. From careful appraisal of above referred material evidence on the record and hearing respective submissions of counsel for the parties, we find that the only point involved for adjudication in this case is whether the loss suffered by complainant is under the contract of insurance with OPs or not? The complainant pleaded loss on account of spare parts and engine oil as reported by complainant to OPs as pleaded in paragraph no.5 of the complaint. Even estimate relied upon by complainant is Ex.C-5 which has established this fact that complainant Harmeet Singh Sodhi estimated loss of spare parts and engine oil as Rs.21,31,636.61, whereas there is no loss of vehicles and other stock mentioned in Ex.C-5 estimate of loss in fire by the complainant. This document has been signed by Harmeet Singh Sodhi and it is binding on complainant. The complainant has, thus, restricted the loss of spare parts and engine oil caused by fire in this case only on the basis of Ex.C-5. On the other hand, submission of counsel for OPs before this Commission is that complainant insured only stock of motorcycles and accessories in this case. The accessory is an additional item primarily intended to adorn the vehicle. The accessory cannot said to be an essential component of the vehicle to make it complete under Motor Vehicles Act 1988. Consequently, as gathered by us from the contract of insurance Ex.C-2 on the record, it is plain that complainant only insured stock of motorcycles and accessories with OPs in this case. Engine oil, which is separately stored, is neither covered under the category of stock of motorcycles and accessories. The stock of motorcycles means the number of motorcycles parked in the shop of the complainant for sale purposes. Accessory items are extra items only which are meant to give further features to the vehicle for the purpose of convenience and adoration only. As per pleading contained in para no.5 of the complaint as well as estimate prepared by complainant of the loss Ex.C-5, loss suffered by complainant was of spare parts and engine oil only. The complainant relied upon report of Mittal & Garg Chartered Accountant Ex.C-10 on the record. The above CA submits its report regarding spare parts and oil lubricants. As against it, report of statutory surveyor to look into the matter carries greater credibility as the surveyor is IRDA approved and appointed under Insurance Act for that purpose. The statutory surveyor recognized by Insurance Act duly approved by IRDA has submitted his report is Ex.C-11. The report of statutory surveyor is to be relied upon unless it is disproved on the record by the contrary evidence on the record. Statutory surveyor in his report Ex.C-11 stated that spare parts were stacked in the showroom, where the fire erupted and loss was sustained by complainant thereby as mentioned in his report Ex.C-11 to the that effect that affected and unaffected stock affected by fire was never segregated by complainant despite his giving intimation to it. This witness further submitted that the complainant lodged the claim of spare parts and engine oil of Rs.21,31,636.61 only. The statutory surveyor found stock of motorcycles of Rs.7,42,083/-, stock of spare parts of Rs.6,49,005.00, stock of mobile oil of Rs.50,000/- total Rs.14,41,088.00. Motorcycles were saved as per case of the complainant given in the estimate Ex.C-5 and complainant suffered the loss of spare parts and mobile oil only as stored in the store room, which was affected by fire. In the contract of insurance, neither the spare parts were insured with OPs nor mobile oil was insured under the category of spare parts which were separately to be insured with OPs. Consequently, submission of OP’s counsel is accepted that loss suffered by complainant is of spare parts and engine oil only which items were not insured with OPs under the contract of insurance Ex.C-2 and as such, OPs rightly repudiated the claim of the complainant in this case.

8. As a result of our above discussion, we have not come across any illegality in the repudiation letter of the claim of the complainant by OPs contained in Ex.C-9. The insurance company is not bound to pay to complainant for un insured loss of the material. Finding no merit in the complaint, same is hereby dismissed.

9. Arguments in this complaint were heard on 11.01.2019 and the order was reserved. Certified copies of the order be communicated to the parties under rules.

10. The complaint could not be decided within the statutory period due to heavy pendency of court cases
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