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Judgment
COMPLAINANT has filed the complaint petition against the O.P. with a prayer for settling the insurance claim of the complainant as quantified at Rs. 5,33,371.75 paise besides interest.
THE brief fact of the case is that the complainant firm M/s. Khaitan Enterprises which dealt with the distribution of surgical manufacturing companies having its office at Frazer Road, Patna-1, was insured with the O.P. Nos. 1 to 4. O.P. No. 5, the Union Bank of India is the banker of the Firm. It is alleged that on 29.7.1994, the complainant learnt that a theft was committed in the premises of the firm and an FIR was lodged with the Kotwali Police Station on the same day. A case under Section 379/461, I.P.C. bearing Kotwali Police Case No. 281/1994 was registered against unknown. THE police submitted final report on 31.8.1994 stating case true against the unknown, which was accepted by the C.J.M., Patna. It is also alleged that the period of Insurance was from 10.9.1993 to 9.9.1994 and the theft took place within the period of Insurance. THE complainant placed the claim before the O.Ps. on 3.8.1994. THE Insurance Company asked for several documents, which were supplied and received by the Insurance Company. A Surveyor was appointed by the Insurance Company. THE Surveyor report was not submitted within time and the Insurance Company did not settle the claim in spite of several requests made by the complainant. THEreafter, the complainant case was filed. THE O.P. Insurance Company appeared, filed written statement and also filed affidavit of O.P. Nos. 1 to 4. THE main contention of the Insurance Company is that the Surveyor report has been received, which has fixed net liability to the extent of Rs. 2,14,126.26. THE Insurance Company further found that Hosiery item is not covered under the insurance policy of the Scheme of theft, therefore, the item of Hosiery requires to be excluded from the computation of the amount, assessed by the Surveyor. THE Insurance Company after applying average clause accounting a sum of Rs. 1,95,913/- which it is ready to pay to the complainant, as full and final settlement. Annexure I is the report of Surveyor Mr. H.L. Sah. It is further contention of the O.P. Nos. 1 to 4 is that the complainant is not entitled for more than 1,95,913 as stated above and since the complainant did not accept the said amount, there is no deficiency in service on the part of the O.P. Nos. 1 to 4. O.P. No. 5 (Union Bank of India) which was added as party at the instance of the complainant also appeared and filed written statement. Its contention is that the complainant happens to be customer of the Bank and theft of the insured goods were the primary security of the Bank. But the security claim of the complainant as submitted to the Insurance Company O.P. Nos. 1 to 4 are liable to pay the amount claimed by the complainant with which the Bank has no concern.
At the time of argument on behalf of the parties report of the Surveyor Mr. H.L. Sah, has been placed before us. It is a detailed report. At paragraph 26 of the report, there is assessment of loss of stock and after accounting, the Surveyor has mentioned that the loss due to burglary was to the tune of Rs. 3,83,331.75 paise. Further at paragraph 26 of the report under heading liability of the insured and insured factor, it is mentioned that "as per stock statement submitted to us the stock before loss of Rs. 11,03,334.23 and the insurance is of Rs. 7,25,000.00 only. Hence by applying average clause, the liabilities will be determined as under : 7,25,000.00 x 3,25,865.99 11,03,334.25 Thus, the net liability is Rs. 2,14,126.26 only. Para 28 mentioned that the occurrence of theft to be genuine. The police report also supported the case (occurrence) as well local people. We failed to understand why the Insurance Company has calculated the net liability on the basis of average claim to the tune of Rs. 1,95,913/-. Learned Counsel appearing on behalf of the O.P. failed to convince us on their calculation. The Surveyor has already applied "average clause" and has determined the liability to the tune of Rs. 2,14,126.26. The O.P. Nos. 1 to 4 have not been able to point out any valid ground for not accepting the Surveyor''s report. Having considered the Surveyor report and the submission made on behalf of the parties, we are of the view that the report of the Surveyor, which has fixed net liability after applying average clause, to the tune of Rs. 2,14,126.26 the O.P. Nos. 1 to 4 are liable to pay to the complainant. The O.P. Insurance Company without valid reasons has not accepted the Surveyor report and delayed the payment on one ground or another. In the result, the claim of Rs. 2,14,126.26 is allowed and the O.P. Nos. 1 to 4 are directed to pay this amount within two months from the date of this order to the complainant with interest at the rate of 9 per cent from the date after three months from the Surveyor''s report dated 29.9.1997 till the date of payment. However, there shall be no order as to cost or towards mental compensation, as claimed by the complainant. Complaint allowed.