I. C. Sharma v. the Oriental Insurance Co. Ltd.

DEEPAK GUPTA, J. 1. This appeal filed by the complainant/ consumer is directed against the order dated 29.09.2014 passed by the National Consumer Disputes Redressal Commission (for short ‘the National Commission’), New Delhi, disposing of the revision pet ition filed by the parties and also against the order dated 22.02.2016 disposing of the review petition filed by the appellant. 2. Briefly stated the facts of the case are that the ap pellant had first purchased a householder insurance policy from the Oriental Insurance Company (‘the Insurance Company’ for short) on 23.12.2000. This policy was renewed till 22.12.2005. As per this policy the coverage of articles/items in the house of the appellant was “as per list”. It is not disputed that thereafter the Insurance Company discontinued “as p er list” policies and instead started issuing policies for consolidated amounts. The original policy had expired on 22.12.2005 and fresh policy as per new scheme was taken out on 19.01.2006 and this was renewed from time to time. The last renewal was from 19.01.2007 to 18.01.2008. 3. The appellant had gone to the United Kingdom. Some time, between 27.01.2008 to 30.01.2008, a burglary took place inside the premises of the appellant, and he was informed about the sam e by a neighbor on 31.01.2008. The appellant requested his nephew to inform I. C. SHARMA v. THE ORIENTAL INSURANCE CO. LTD. the Insurance Company and an FIR was also registered with the Mehrauli Police Station in South Delhi. The Insurance Company was also informed about the burglary on 31.01.2008 or on the next day. The police could not trace out the crime. 4. The Insurance Company first offered a sum of Rs. 3,500/- to the appellant sometime in November, 2008 which he refused to accept. He, thereafter, met certain higher officials of the Insurance Company and an amount of Rs.29,920/- was offered to him. Being dissat isfied, the appellant filed a claim before the District Cons umer Disputes Redressal Forum (for short ‘the District Forum’), which was dispos ed of by the District Forum on the ground that the articles mentioned therein were not mentioned in the list. Thereafter, the appellant filed an appeal before the State Consumer Disputes Redressal Commission (f or short ‘the State Commission’) which was allowed on 15.01.2014 and he was awarded a sum of Rs.4,03,150/-. 5. Revision petitions were filed both by the appellant clai ming interest and compensation and by the Insurance Company agai nst the order of the State Commission. The main ground in the petition filed by the Insurance Company was that a large number of items which had been claimed to be stolen were not insured and there was a lot of under- insurance. The National Commission held that once the appellant had supplied a list of articles for the first policy, if there was any change he should have filed a fresh list and since a large number of articles w ere not mentioned in the list the claimant was only entitled to an amount of Rs.21,000/- towards the value of stolen gold articles; Rs.5,929/- towards the depreciated value of Citizen watch; Rs.7,000/- for repair of door latches etc.; and Rs.16,000/- towards the value of stolen clot hes after making appropriate deduction for under-insurance of clothing. T he complainant was also awarded compensation of Rs.5,000/- towards the cost of litigation etc. The appellant filed an SLP before this Court and he was granted liberty to file a review petition befor e the National Commission mainly on the ground that the policy of 2008-2009 was not considered by the National Commission. 6. The National Commission in the review petition took into consideration the fact that the new insurance policy did not require a list of items to be given. It, thereafter, awarded amounts under var ious heads as follows:- 577 i) Jewellery and valuables - Claimant claimed that the jewellery lost was worth Rs.1,84,150/- but the insurance package was onl y for Rs.1,00,500/-. The National Commission ordered the Insurance Company to pay the amount after making adjustment for under-insurance; ii) Two cutlery sets in silver valuing Rs.31,000/- - The National Commission held that these items were not insured and did not fall under the heading of ‘kitchenware/crockery/cutlery sets’. iii) Clothing - The insured value of clothing was Rs.55,000/- and the claimant claimed Rs.87,000/-. The National Commission dir ected payment of this amount after making adjustment for under-insurance. iv) Electrical/Mechanical appliances - The appellant clai med a sum of Rs.66,000/- for loss of electrical and mechanical appliances, as against the coverage of Rs.1,82,500/-. This claim was rejected on t he ground that the claimant failed to produce bills of invoices towards this amount. v) Miscellaneous items - The appellant claimed Rs.28,000/- f or loss of miscellaneous items including watches valuing Rs.2 0,000/- as against the coverage of Rs.41,000/-. He has been awarded only Rs.8,000/ - and the claim for watches of Rs.20,000/- has been rejected on t he ground that he failed to produce purchase invoices. vi) Repair of locks, doors, latches, safe etc. - The appellant w as awarded Rs.7,000/- for repair of locks, doors, latches, saf e etc., as claimed by him. vii) The claimant was also awarded compensation of Rs.10,000/- and interest @ 9% per annum. 7. Aggrieved, the appellant is before this Court. 8. The only legal issue which arises for consideration is “what is under-insurance – and the effect thereof?”. Under-insurance b asically means that the insured has taken out an insurance policy in which he has valued the insured items for a sum which is less than the actual value of the insured item. In a country like India this is normally done to pa y a lesser premium. This is, in fact, harmful to the policy holder and not to the Insurance Company because even if the entire insured prope rty is lost, the policy holder will only get the maximum sum for which t he property has been insured and not a paisa more than the sum insured. To give an example, in case a person takes out the householder policy I. C. SHARMA v. THE ORIENTAL INSURANCE CO. LTD. [DEEPAK GUPTA, J.] covering fire insurance and gives the value of the structure of his house and goods stored therein at Rs.50,00,000/- even though the value of the same is Rs.1,00,00,000/- then even if the entire house and goods ar e completely lost in a fire, he cannot get an amount above Rs.50,00,000/- even though the value may be more. 9. If all the insured goods are lost then there is no problem. The insured is entitled to the amount for which the goods were insured even if that be less than the actual value of the goods. In case a person gets a painting insured for Rs.1,00,000/- though the value of th e same is Rs.10,00,000/-, if the painting is lost the insured is entitled to Rs.1,00,000/- only. If all the insured goods falling under one head are stole n or lost then the insurance company cannot apply the principle of averaging out because, though the loss may be Rs.10,00,000/-, the claimant will get only one Rs.1,00,000/-as per the value assessed and t he insurance premium paid by him. 10. The Insurance Company can however apply the principle of averaging out when all the goods are not destroyed. Supposing the entire house was insured for Rs.50,00,000/-, but on valuation it is found that the value of the structure and the goods was Rs.1,00,00,000/- and if the policy holder claims that he has suffered loss of Rs.40,00,000/- then he will be entitled to only Rs.20,00,000/-, by applying the principle of averaging out. What this means is that if the value of the goods is more than the sum for which they are insured then it is pres umed that the policy holder has not taken out insurance policy for the un-insured value of the goods. The claim is allowed by applying the principle of averaging out, i.e. the insured is paid an amount proportionate to the exte nt of insurance as compared to the actual value of the goods insured. 11. To clarify the matter further, we may give another example. Supposing, the insurer owns two paintings of Rs.5,00,000/- each but pays premium for insurance cover of Rs.1,00,000/- for both the paintings. If one painting is lost, even though the value of the pa inting may Rs.5,00,000/- he will not get Rs.1,00,000/- but will get only Rs.50,000/-, as proportionate amount. Therefore, when a group of items is insured under one heading and only some of the items and not all items are lost/ stolen then the principle of under-insurance will apply. However, if all or most of the items of value covered under the policy are stolen, then the insurance company is bound to pay the value of the goods insured. 579 12. Applying this principle we may now deal with this case. i)Jewellery and valuables - The entire jewellery and val uables were insured for Rs.1,00,500/- but the claimant claimed that the value of jewellery stolen was Rs.1,84,150/-. In this case the entire jewellery was stolen. Therefore, the averaging out clause will not apply and the claimant is entitled to a sum of Rs.1,00,500/- under this head. ii) Silver cutlery sets - The case of the claimant is that these were insured under the head of ‘kitchenware/crockery/ cu tlery’ items. According to him, the value of these sets is Rs.31,000/-. Obviousl y kitchenware/crockery/cutlery will include many other items lying in the kitchen and in the dining room. Silver cutlery sets would normally fall under the head ‘jewellery and valuables’ and since the claimant has been awarded the maximum amount payable under that head, now he cannot divert the claim for silver cutlery to the head ‘ki tchenware/ crockery/cutlery’. This Court can take judicial notice of the fact that in any middle class household kitchenware/crockery/cutlery would value more than Rs.18,000/-. It is obvious that silver cutlery valuing Rs.31,000/- could not be insured under the head kitchenware/crockery/cutlery’ which was valued only for Rs.18,000/-. Therefore, the National Commission was right in holding that there was no coverage for this item. iii) Clothing - The appellant claims that he has suffered a loss of Rs.87,000/- , as against the coverage of Rs.55,000/-. However , on perusing the statement of the appellant himself we find that he has shown Rs.87,000/- to be the value of only six items of clothing. There must have been many other items of clothing in the house and when all the clothing has been insured under one heading, it will include clothing items of all types, both expensive and in-expensive. Admittedly, all items of clothing were not stolen and, therefore, in this case the principle of under- insurance will have to apply and the National Commission was right in directing that the payment be made after applying principl e of under- insurance. iv) Electrical/Mechanical appliances - The coverage under this head was Rs.1,82,500/- and the claimant claimed only Rs.66,000/- and he gave the details of the items. This claim has been rejec ted only on the ground that he had not produced invoices of the same. The case of the appellant was that those items were gifted by his s on. The items such as CD changer, video camera, DVD player, Camera etc. could be found in any middle class household. It is not the case of the Insurance I. C. SHARMA v. THE ORIENTAL INSURANCE CO. LTD. [DEEPAK GUPTA, J.] Company that these items were not stolen. The claim should not have been rejected only on the ground that invoices were not produced. The affidavit of the appellant clearly indicates both the nature of the items lost and the value thereof. This is supported by corroborative evidence of the list of items given to the police. Once the insurance company itself changed its policy from ‘as per list policies’ to ‘policies for consolidated amounts’, then an insured is not expected to give the item- wise details along with the valuation. We may also add that if the insurance company desires that item-wise valuation should be given for items over and above a certain value then it is the duty of the insurance company to advise the insured at the time of issuing the first policy of insurance and at the time of each renewal. The insurance comp any must at the time of accepting the premium advise the poli cy holder properly. The insurance company cannot accept the premium without asking for any details and later deny its liability on the ground that such details were not given. Therefore, we accept the claim of the claimant and he is entitled to Rs.66,000/- under this head. v) Miscellaneous items - On the same reasoning as given for electrical/mechanical appliances we accept the claim of the appellant of Rs.20,000/- for loss of four watches and, therefore, he is entitled to Rs.28,000/- under this head. vi) Repair of locks, doors, latches, safe etc. - The claim ant has already been awarded Rs.7,000/- under this head. 13. In addition thereto, we are of the view that the claimant should be awarded Rs.25,000/- towards compensation and litigations expenses etc. On the aforesaid amounts the appellant shall be entitled to an interest @12% per annum w.e.f. 01.01.2009 till payment. The Insurance Company shall be entitled to adjust/deduct the amounts alrea dy paid/ deposited by it. 14. The appeal is disposed of in the above terms. P ending applications, if any, shall also stand disposed of. 15. The Registry is directed to send a certified copy of this judgment to the appellant, who appeared in person. Divya Pandey Appeal disposed of.