SAHARANPUR CLOTH MERCHANT Vs. NEW INDIA ASSURANCE COMPANY LTD

JUDGEMENT

(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.) 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.