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    Complaint 46 Of 1992

    Decided On, 24 August 1993

    At, High Court of Judicature at Bombay


    For the Appearing Parties: -----

Judgment Text


( 1 ) IN this complaint, it is alleged that the opposite party has been deficient in rendering the service to the complainant in not settling the complainants insurance claim. Shortly stated the facts are that the complainant had obtained the shopkeeper insurance policy dated 21-6-1990 which was valid for a period upto 7-03-1992. The said policy is named as "shopkeeper policy" and covers loss of building, shop and all kinds/type of cloth, hosiery, garment and such other materials belonging to the complainant. The complainant alleged that in a devastating fire on 13-5-1991 between 3. 30 to 7. 30 a. m. , the entire shop was reduced to ashes. The complainant lodged a report to the police on the same day and also intimated the occurrence of fire to the opposite party. The opposite party conducted the survey of the incident of fire through the surveyor, M/s. Jodh Joshi and Co. , and M/s. Maharashtra Surveyor. A preliminary report of the said surveyor dated 17-7-1991 has been appended with the list of shops which were damaged in the said fire. The complainant name appears at serial number 10. It is mentioned in the said report that the complainants shop has been turned to ashes. The complainant therefore alleged that he suffered a loss of Rs. 4,50,000/- in the said fire. However, according to complainant he learnt that his claim was sanctioned only for Rs. 2,58,000/- and not for Rs. 3,50,000/- as per value of his insurance policy. It is further alleged that the complainant protested to receive the insufficient compensation for his loss. But he was forced to receive the cheque by the opposite party which he received under protest. The complainant alleged that he was not allowed to write a word "under protest". The complainant further alleged that his insurance policy covers the risk upto Rs. 3,50,000/- for which he was charged the premium amount although he suffered a total loss. He was paid insufficient compensation without any convincing reason. The complainant therefore valued his claim for the balance amount of Rs. 92,000/- with interest and professional damage amounting to Rs. 2,04,600/ -. The complainant also alleged that there has been delay in settlement of his claim. The opposite party in its written version admitted the incident of fire and that the complainant was issued the policy in question, for the value of Rs. 3,50,000/ -. However, the contention of the opposite party is that the total claim is valued on the averages.

( 2 ) WE have heard S. S. Tipnis, Advocate for the complainant and Shri Ramdas, Advocate for the opposite party.

( 3 ) GRANTING of shopkeeper policy to the complainant for the value of Rs. 3,50,000/- and that the complainants shop was reduced to ashes, is an admitted fact. The following points arise for our consideration. 1) Whether the complainant is entitled for full value of his insurance policy? 2) Whether the grant of partial claim to the complainant amounts to deficiency in the service of opposite party ?

( 4 ) FROM reading of the survey report of M/s. Maharashtra Surveyors, dated 17th July 1991 it is abundantly clear that 15 to 16 shops including the complainants shop were completely charred and burnt, leaving ashes of stock-in-trade. It is further mentioned that the entire building structure was completely burnt to ashes and none of the wooden material left uncharged. It is also stated therein that the Police panchanama was conducted and a certificate of loss due to fire was also issued by the Nagar Parishad. The copies of the said two documents were annexed with the report, of the Surveyor. It is also stated therein that the entire electric fittings were also burnt down. The Books of Accounts of the complainant were also burnt in fire. It is also stated that there was no breach of warranty committed by the shopkeeper. As against this loss caused to the complainant, the opposite party rejected the complainants claim to the tune of Rs. 92,000 on the ground that the complainants loss was assessed on the averages. Shri Ramdas, the learned Advocate for the opposite party, was not able to substantiate his arguments as to why the complainants loss was worked out on the basis of averages, when its claim is of total loss. Shri Ramdas is also unable to support his submission on the basis of any rules and/or regulations framed by the Insurance Co. , to deal with such a situation. Therefore, in our view, reduction of the complainants claim for Rs. 92,000/- on the basis of the averages is unreasonable. In fact, there is no basis to work out the averages in case of total loss. We fail to understand that, when there is total loss caused to the complainant why he should not get the full claim of his policy amount, when the circumstances warrant the full claim. The point No. (1), therefore, requires to be answered in affirmative.

( 5 ) SHRI Tipnis, learned Advocate for the complainant has argued that there is deficiency in the service of the opposite party not only in respect of reduction of the complainants claim to the tune of Rs. 92,000/- but also there has been inordinate delay of nine months to settle the complainants claim. Even the amount of Rs. 2,58,000/- was offered to the complainant after a period of 7 months. According to Shri Tipnis, it is serious deficiency in the service of the opposite party in as much as the complainant was out of business due to total loss of his shop. We find that the complainant was out of business for a considerable period and thus suffered substantial loss of income.

( 6 ) SHRI Ramdas, the learned Advocate for the opposite party, in order to justify reduction in the complainants claim has submitted that the complainant, while accepting Rs. 2,58,000/- on 10-1-1992 has written on the voucher that he received the aforesaid amount in full and final settlement of his claim and, therefore, he is not entitled to claim Rs. 92,000/- as mentioned in the complaint. Shri Tipnis, Advocate for the complainant, submitted that the opposite party did not allow the complainant to write on the voucher that the said amount was accepted under protest. The complainant, therefore, on the next day, i. e. on 11-1-1992 sent a communication to the opposite party informing that he accepted the amount of Rs. 2,58,000/- under protest. The said letter is on record at annexure XI. From the contents of that letter, we are satisfied that the complainant accepted that amount under protest. Lastly Shri Ramdas submitted that there is an arbitration clause in the policy and, therefore, the complainant should have referred the matter to the arbitrator and hence, this commission has no jurisdiction to decide this complaint.

( 7 ) IN view of the facts and circumstances of this complaint, we find that there is no substance in any of the submissions made by the opposite party. There is, therefore, no justification for the opposite party to oppose the complainants claim. Clause of arbitration clearly states that either party has to refer it to the arbitration within a period of two months after receipt of the notice in writing requiring appointment of an arbitration. In the instant complaint, the period of two months has already expired and, therefore, there is no question of a reference of the dispute, to the arbitration. Moreover, the opposite party has accepted the complainants claim that his shop has been reduced to ashes due to the fire in question and, therefore, offered Rs. 2,58,000/- to him. In our view, the opposite party should have settled the complainants claim in full value of Rs. 3,50,000/ -. Failure on the part of the opposite party to reduce the complainants claim arbitrary unfairly amounts to deficiency in the service of the opposite party. The National Commission in Original Petition No. 42 of 1991, decided on 30-1-1992 (M/s. Uniplast India Ltd. v. National Insurance Co. Ltd.) has taken a view that the Insurance Co. , has reduced the amount payable under policy arbitrarily unfairly and has not settled the claim with reasonable expedition has thus been held guilty in it service. In that case, the complainants claim was granted with 18% interest per annum. In our view, therefore, although complainant claimed 24% interest per annum, we would like to grant to the complainant 18% interest per annum on the entire amount of his from 1-8-1991. Similarly, the complainan

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t is also entitled to claim, apart from unpaid amount of Rs. 92,000/- an amount of Rs. 25,000/- towards compensation for the loss of income. Hence, we pass the following order : the complaint is allowed. The opposite party is directed to pay to the complainant Rs. 92,000/- towards balance of his Insurance Claim together with interest @ 18% per annum from 1-8-1991 till realisation. Similarly, the opposite party is also directed to pay to the complainant interest @ 18% per annum towards his claim of Rs. 2,58,000/- from 1-8-1991 to 7-1-1992. The opposite party is also directed to pay the complainant Rs. 25,000/- towards compensation for the loss of income. All the aforesaid amounts be paid to the complainant by the opposite party within a period of 30 days from the date of receipt of this order, failing which the opposite party will be liable for action under Clauses 25 and 27 of the Consumer Protection Act, 1986. Order accordingly.