State Consumer Disputes Redressal Commission
M/S Hari Kewal Pvt. Ltd. vs New India Assurance Co. Ltd. on 11 May, 2018
FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
Consumer Complaint No.30 of 2017
Date of Institution: 23.01.2017
Order reserved on: 08.05.2018
Date of Decision : 11.05.2018
M/s Hari Kewal Private Limited, Jakhal Road, Sunam, District
Sangrur, Punjab through its authorized official and Director Bhagwan
Dass.
.....Complainant
Versus
1. The New India Assurance Company Limited, New India
Assurance Comapany, 87, Mahatma Gandhi Road, Mumbai,
through its Branch at Naya Bazar, Sunam, District Sangrur,
Punajb, through its authorized official/Manager.
2. Punjab & Sind Bank, Sunam through its Branch Manager.
3. Parmod Mittal, Surveyor, Mittal Surveyor Private Limited, Mittal
Street, Amrik Singh Road, Bathinda.
.....Opposite Parties
Complaint U/s 17(1)(a) of the Consumer
Protection Act, 1986 (as amended up to
date).
Quorum:-
Shri J. S. Klar, Presiding Judicial Member.
Smt. Surinder Pal Kaur, Member.
Present:-
For the complainant : Sh. Mukand Gupta, Advocate For opposite party no.1 : Sh. R.C. Gupta, Advocate For opposite party no.2 : Sh. Jasneet Singh, Advocate For opposite party no.3 : Ex-parte .................................................................................. J. S. KLAR, PRESIDING JUDICIAL MEMBER:-
The complainant, a private limited company, has filed this complaint through its Director, who has been authorized by virtue of resolution passed by Board of Directors of it, U/s 17(1)(a) of the Consumer Protection Act 1986 (in short the "Act"), against opposite parties (OPs) on the averments that it has been running solvent Consumer Complaint No.30 of 2017 2 extraction plant at Sunam in District Sangrur to extract oil from the rice bran and the finished product thereof is rice bran oil and bye- product is DE Oiled Cake. The complainant took financial help from OP no.2 Bank at Sunam to run its business and OP no.2 Bank has been checking the stock statement of complainant regularly by preparing the audit report at regular intervals. It purchased Standard Fire and Special Peril Policy (insurance policy) from OP no.1 for the period 14.11.2008 to 13.11.2009. OP no.1 supplied the cover note only without detailed terms and conditions of the policy. During the currency of the above policy, fire broke out in the premises of the complainant due to spontaneous combustion on 24.11.2008, gutting all the goods/products such as bye-products/DE Oiled Cake of rice Bran etc. and other materials were also fully destroyed in the said fire. The fire was put out with the assistance of fire brigade and local persons, but the entire goods of complainant were reduced to ashes. Due intimation was given to OP no.1 of this loss caused by the fire and its Branch Manager even visited the spot. The complainant lodged the insurance claim with insurance company regarding the loss suffered by it in the above said incident of fire. The complainant a private limited company, suffered loss approximately of Rs.90,00,000/-, because there were total 12 stacks of DE oiled cake of Rice Bran, which were gutted in the fire and each stack contained approximately 1500 quintals of DE oiled cake of rice bran and there were total 1800 MT DE oiled Cakes of Rice Bran, which were damaged in the said fire and market price thereof was more than Consumer Complaint No.30 of 2017 3 Rs.5,000/- per MT at that time. OP no.1 insurance company appointed Deepak Malhotra, surveyor to assess the loss, who visited the spot and demanded various documents from the complainant by writing letters dated 22.12.2008, 13.01.2009 and 31.01.2009 (Annexures C-4 to C-6) and complainant supplied the same to surveyor by giving reply to surveyor's letters vide Annexure C-7 and C-8. The insurance company has not settled the claim of the complainant on the pretext of non-supply of documents to the surveyor, despite the fact that complainant supplied the same. Surveyor Deepak Mishra gave report on 08.02.2009 to the effect that complainant has not supplied the complete documents and its claim was closed without assigning any reason. Even copy of report of surveyor was not supplied to it. The complainant filed earlier complaint before this Commission, wherein this copy of report of Deepak Malhotra was supplied to it. This Commission directed insurance company to decide the claim of the complainant within stipulated period of one month after submission of report of the surveyor in the previous complaint. The insurance company appointed another surveyor Mittal surveyor from Bathinda, who instead of assessing the loss, as per loss suffered by the complainant company and he started issuing various letters to it demanding documents, which were duly supplied to him vide annexures C-18 to C-22. The complainant supplied all the documents including the claim form, estimate of loss, audited balance sheets, trading account, income tax returns, VAT accounts Consumer Complaint No.30 of 2017 4 reports, report of fire brigade, photographs, police report, details of stock of DE oiled cakes of rice bran, purchase and sale account, bank stock statement etc. Mittal surveyor ultimately prepared report on 02.10.2014 without supplying the copy of the same to complainant. The surveyor has not assessed the loss as per actual loss suffered by complainant. The surveyor Mittal has wrongly assessed the loss by stating that the accounts have been manipulated by it, whereas it has placed on record the sale and purchase bills of DE oiled cakes of rice bran from various firms from whom stocks were purchased and stocks were sold by it. The surveyor admitted that DE oiled cake of rice bran was available at the premises of the complainant, which has been damaged due to fire. Mittal surveyor wrongly stated that the dead stocks were very old and as per preliminary surveyor report, the part of the stocks were unaffected, whereas there was no such report given by any preliminary surveyor to the effect that dead stock/DE oiled cake of rice bran was unaffected in fire and Mittal surveyor wrongly recommended to repudiate the claim, as per condition of the insurance policy being fraudulent. Mittal surveyor has wrongly observed that there were 5 stacks of DE oiled cake of rice bran, which were affected by fire. He has relied upon the reports of fire brigade and earlier surveyor Deepak Malhotra in this regard. There is no such mention of 5 stacks either in the report of earlier surveyor Deepak Malhotra or in the fire brigade report. The rate of DE oiled cake of rice bran has been fixed by the surveyor as Rs.300/- per Consumer Complaint No.30 of 2017 5 quintal, whereas the market rate of the DE oiled cake of rice bran at that time was Rs.500/- per quintal. Mittal surveyor has wrongly deducted 50% of the assessed loss for dead stocks and then deducted salvage of 25% therefrom and further deducted on account of excess clause under the policy. The Mittal surveyor wrongly observed that complainant tried to manipulate the record to take undue benefit. The complainant assailed the report of surveyor Mittal surveyor Pvt. Ltd., who was appointed on second occasion by insurance company OP no.1 pursuant to order of this State Commission. The insurance company vide its letter dated 28.01.2015 repudiated the insurance claim of complainant stating that surveyor has assessed the loss to the tune of Rs.8,33,750/-, but the complainant company is not entitled even to the assessed amount, as it has breached the terms and conditions of the insurance policy. The complainant further alleged that Punjab Milk Food Producers Federation, which is a State Procuring Agency, had purchased the DE Oiled Cake of Rice Bran in September in 2008 from one firm M/s Rajesh Enterprises @ Rs.563.40 per quintal. The stock of complainant has been audited by financer Punjab & Sindh Bank, but insurance company and its surveyor presumed that there were no transactions before 24.10.2008, so the accounts/bills seemed to be manipulated. The complainant has alleged deficiency in service and unfair trade practice on the part of OPs and prayed that OP no.1 be directed to pay the amount of Rs.90 Lakhs towards loss of stocks with interest.; further to pay compensation of Consumer Complaint No.30 of 2017 6 Rs.4,00,000/- for mental harassment and Rs.70,000/- as litigation expenses.
2. Upon notice, OP no.1 Insurance Company filed its separate written statement by raising preliminary objections that complaint is barred by time. The loss is dated 24.11.2008, whereas the claim was repudiated by OP no.1 on 30.09.2009. On the direction of this State Commission passed in earlier complaint no.12 of 2011 on 12.02.2014, OP no.1 was directed to reconsider the claim of the complainant after submission of documents by complainant. OP no.1 insurance company appointed M/s Mittal surveyor Pvt. Ltd. Bathinda as surveyor on the second occasion pursuant to direction of this commission to assess the fire loss afresh and on the basis of his report, the liability was repudiated by OP no.1 on account of breach of condition no.8 of the policy by complainant. The complainant has now raised the claim of Rs.90 Lakhs, where it is contrary to the earlier claim of complainant in the previous complaint. OP no.1 challenged the pecuniary jurisdiction of this Commission. The complainant is commercial entity and therefore it is not consumer of OP no.1, as it deals in commercial activities. The complainant firm is unregistered firm and has no locus standi to file the complaint. The matter involved complex question of facts and law, which cannot be adjudicated in summary manner by Consumer Forum. Non-cooperation is clearly established from the pleadings and documents of the complainant and hence no delay and deficiency can be attributed to OP no.1. The detailed terms and Consumer Complaint No.30 of 2017 7 conditions of the policy were supplied to the complainant and it be put to strict proof of the averments in this regard. The earlier claim of complainant was dismissed on account of non-cooperation and non- submission of information and documents, vide letter dated 30.09.2009. Subsequently, on the basis of report of surveyor and documents, the claim was again repudiated on account of fraudulent means adopted by complainant and false declaration. OP no.1 further averred that it appeared that complainant manipulated the documents with malafide intentions to take undue benefit. The complainant did not take immediate steps to stop the fire and try to save the alleged destroyed items from further loss. The insured further ignored the advice for control of the alleged loss, to lodge the FIR/DDR and to take proper service of the fire brigade etc. The complaint is contested by OP no.1 even on merits by denying the other averments of complainant and it prayed for dismissal of the complaint.
3. OP no.2, Punjab and Sind Bank filed its separate written reply by raising preliminary objections that complaint is not maintainable against it and is liable to dismissed, as there is no deficiency alleged against it. The complainant claimed relief from OP no.1 only. The complainant is alleged to be not consumer of OP no.2. On merits, OP no.2 admitted that complainant availed cash credit limit from it and hypothecated stock which was insured with OP no.1. OP no.2 prayed for dismissal of the complaint. OP no.3 Consumer Complaint No.30 of 2017 8 was set exparte in the complaint, vide order dated 03.07.2017 by this Commission.
4. The complainant tendered in evidence affidavit of Bhagwan Dass Director Ex.C-A, affidavit of Ravinder Prakash Mishra Ex.C-B and affidavit of Raj Kumar Ex.C-C alongwith copies of documents Ex.C-1 to Ex.C-30(m), Ex.C-31 & Ex.C-32 and closed the evidence. OP no.1 tendered in evidence affidavit of Parmod Mittal Director of Ms/ Mittal Surveyor (P) Ltd. Ex.OP-1/B alongwith copy of survey report Ex.OP/R-8, affidavit of Deep Shikha, Deputy Manager Ex.OP/1A and affidavit of Deepak Malhotra Ex.OP-1/C alongwith copies of documents Ex.R-1 to R-9 and closed the evidence.
5. We have heard the learned counsel for the parties and have also examined the record of the case. The first submission of counsel for OP no.1 is that complainant is an un-registered firm and as such complaint is not maintainable. We find no substance in it, the complainant is a private limited company, as pleaded in the complaint and even the surveyor appointed by OP no.1 has so admitted in his report. The complainant placed on record the memorandum of association Ex.C-1/A of complainant company to the effect that it is a private limited company. The contention of counsel for OP is rejected on this point. The next argument of counsel for OP no.1 is that complainant is not consumer, because complainant deals in commercial activities. Much emphasis has been laid on this point by counsel for OP no.1 insurance company. We find no substance in it and the contention deserves to be Consumer Complaint No.30 of 2017 9 rejected on the face of it. Undoubtedly, the complainant is a private limited company dealing in commercial activities. Since, the complainant has taken the insurance policy not for generating profits but for indemnification of loss and as such it would not stand in the way of complainant to file this complaint. On this point, we find support from law laid down by the National Commission in case titled as "Harsolia Motors Vs. National Insurance Company Limited"
2005(1)CPJ-27, wherein it has been held that an insurance policy is availed for indemnifying the loss, which may be suffered by the assured. It is for protection and not making any profit. It would be unjustified to arrive at a conclusion that where complainants are carrying on business/trading activity and they having taken the insurance policy, there are not entitled to approach the Consumer Fora. The policy is taken for reimbursement or for indemnity for the loss which may be suffered due to various perils. Moreover, under Section 3 of the Insurance Act 1938, no person is permitted to carry on business of insurance unless he obtains a certificate of registration from the Insurance Recovery and Development Authority. On the basis of law laid down by the Hon'ble National Commission in this authority (supra), the contention of OPs is rejected and complainant is held to be its consumer. The next argument of the complainant is that detailed terms and conditions of the policy were not supplied to it and as such they are not binding upon it. We find no force in the substance, as raised. The counsel for complainant raised submission that complainant company is a Consumer Complaint No.30 of 2017 10 private limited company dealing with commercial activity and has been inured in taking the policies for the protection of its stocks. It cannot be presumed that it has not received the terms and conditions of the policy by any stretch of reasoning. On the other hand, there is positive overwhelming evidence by insurance company that they were sent to the complainant. The complainant company paid the premium of the policy and it was special peril policy and it is not possible that complainant has not received terms and conditions of the policy from OP. The contention of complainant is found without merit and is rejected on this score.
6. Now, we come to grip with the controversy in this case, as to whether OP no.1 insurance company has rightly repudiated the insurance claim of the complainant in this case or not. The complainant claimed the loss of 12 stacks of DE oiled cake on account of burning in the fire, whereas the insurance company has pleaded that they were five stacks and not 12 stacks. The next point of controversy pertains to the rate of DE oiled cakes per quintal at the relevant time. The next point of controversy is as to what amount of loss has been suffered by the complainant and so what amount of indemnification of loss, it is entitled to from the insurance company. We have carefully gone through the pleadings of the parties and also appraised the relevant documents in evidence on the record in this case. Ex.C-1 is the cover note of the policy showing that complainant company took insurance policy for special perils for the period 14.11.2008 to 13.11.2009 against payment of Rs.1,40,947/-. This Consumer Complaint No.30 of 2017 11 policy covered the stocks of DE oiled solvent extraction cake and/or DOC Rice Bran and other goods of like nature related to insured's business, whilst lying and/or stored in processing blocks, godowns, and other areas of said unit. These stocks also included stocks of rice, paddy, rice husk, sun-flower seed, sun-flower DOC, sun-flower oil and oils of all other types. The risk covered as per standard fire of special perils policy with add on cover of spontaneous combustion. The complainant gave intimation to fire brigade for extinguishing the fire and report of the fire brigade dated 24.11.2008 is Ex.C-2 on the record. Fire tender PAT-5568 was pressed into service by the fire brigade authorities to control the fire in the premises of complainant. Ex.C-3 is the copy of fire insurance claim. On intimation of loss to OP no.1, Deepak Malhotra was appointed as surveyor by OP no.1, who visited the spot of fire. He wrote letter to complainant vide Ex.C-4 dated 22.12.2008 demanding the documents. Ex.C-5 is the copy of letter dated 13.01.2009 from Deepak Malhotra surveyor to complainant for supplying the documents, as detailed in it. Ex.C-6 is the copy of final reminder dated 31.01.2009 for demanding the above documents. Vide Ex.C-7 and C-8, the complainant supplied the documents to surveyor. Ex.C-9 is the copy of fire report dated 29.12.2008. Deepak Malhotra, first surveyor on the basis of documents sought by him from complainant submitted the survey report Ex.C-10 dated 08.02.2009. He found that fire originated on account of spontaneous combustion, which is covered under the policy. He observed that complainant has not segregated the Consumer Complaint No.30 of 2017 12 unaffected stock from the affected stock and it has not informed him about segregation of the material, which was affected and unaffected in the fire. He further observed that he instructed the complainant/insured to apply the full force alongwith the crane to control the loss and to intimate him again as soon as the material got segregated, but insured did not inform the surveyor. Prem Prakash Branch Manager also visited the insured premises to see the current position and found no change by the insured despite directions given to it by him and the surveyor. Deepak Malhotra surveyor also found from verification of books of accounts and other record of complainant, that it has not provided the estimate of loss. He recommended the filing of the claim, as no claim. The insurance company repudiated the claim of complainant. Ex.C-11 is the repudiation letter dated 30.09.2009 from insurance company to complainant repudiating its insurance claim on the basis of report of Deepak Malhotra surveyor. The complainant filed complaint no.12 of 2011 before this Commission against OP no.1 previously, wherein State Commission directed to insurance company to decide the claim within a period of one month, after submission of report of surveyor and submission of documents by insured. The present complaint was filed pursuant to above instructions given by State Commission in the previous complaint. OP insurance company appointed M/s Mittal surveyor Pvt. Ltd., as surveyor on the second occasion. Mittal surveyor wrote letter dated 08.04.2014 to complainant demanding certain documents for assessing the claim Consumer Complaint No.30 of 2017 13 followed by another letters Ex.C-14 to C-17. Vide Ex.C-18 dated 06.05.2014, complainant submitted the document to Mittal surveyor. Ex.C-19 is reply to letter dated 05.06.2014 by complainant. Ex.C-20 is the copy of letter dated 25.06.2014 submitting the documents by complainant to Mittal surveyor. The complainant wrote letter on 08.07.2014 to Mittal surveyor regarding submitting the balance sheet. Vide C-22 complainant supplied the documents to Mittal surveyor. The report of surveyor is Ex.C-23 on the record dated 02.10.2014. The surveyor observed that the cause of fire is spontaneous combustion. In the column of evaluation, the surveyor observed that complainant provided the detail of document as under:
Opening stock 5,11,15,667.00 Sales 18,30,40,246.00 Purchase 15,43,76,576.00 Closing stock 4,13,92,246.00 Direct 37,76,363.00 Expenses Gross Profit 1,51,63,886.00 Total 22,44,32,492.00 22,44,32,492.00 The surveyor found that as per above trading account, the stocks were adequately insured, hence average clause will not apply. The insured provided the copy of the account of the parties from whom sale/purchase of DOC rice Bran was made. The insured has shown sales to Ms/ Reghbir Chand & Sons, Khanna from 23.10.2008 to 31.10.2008 for Rs.25,93,344/-. There was no transaction with the above party before 23.10.2008 and after 31.10.2008. Even no payment or advance was received from this party. The complainant Consumer Complaint No.30 of 2017 14 further showed sale of Rs.25,94,921/- from 29.10.2008 to 02.11.2008 to M/s Pooja Rice & Gen. Mills, Khanna, but there was no transaction before 29.10.2008 and after 02.11.2008. No payment was received from this concern. There was no past history of sales to the above parties by complainant. The insured was having cash credit limit from OP no.2 bank and was paying heavy interest to the bank. No payment was received upto 31.03.2009. No businessman will sell the goods without payment for months together. It is concluded that only bills are issued to exaggerate the rates. The surveyor further found that there was past practice of purchasing DOC from M/s Ess Gee Enterprises Sunam. The party also seemed to be the sister concern of the insured in the purchase bills, the telephone number is 220309 which is the telephone number of the insured as printed in the bills of the insured. Even the format of the invoice of both the concerns is same. It is evident that the insured has manipulated the record to take undue benefit from the insurance company. In the column of dead stock, the surveyor found that the stocks of DOC Rice Bran which were reported to have been affected in the fire were very old. It is evident from the balance sheet provided by the insured for the period 01.04.2008 to 24.11.2008. During this period, the purchase of the rice bran from which the DOC is produced was for Rs.2,43,997/- only. Therefore, there was nominal production of DOC Rice Bran during the year. All the affected and un-affected stocks were of the previous years. The photographs taken by the preliminary surveyor also showed that the stocks of Consumer Complaint No.30 of 2017 15 DOC rice Bran in the unaffected stacks have discolored, hence it is clear that these stocks were old and dead in nature. The complainant gave intimation of fire to Fire Brigade Office after one hour of the incident of above fire. Fire was noticed on 24.11.2008 at about 5:15 AM and was controlled by 12:40 in the noon and even at 9:30 two employees were discharged from their duties. There were only five stacks of goods burnt, which were in open ground. Mittal surveyor also relied upon report of Deepak Malhotra previous surveyor and report of fire brigade that there were only five stacks of DOC, which were involved in the fire. Mittal surveyor ultimately submitted the report finding the loss to the tune of Rs.8,33,750/-. The report of surveyor has been seriously assailed by the complainant before this Commission. The insurance company rejected the claim of the complainant vide Ex.C-24 dated 10.11.2014. The complainant wrote letter to OP no.1 for reviewing the case, but to no effect. OP no.1 insurance company also wrote letter Ex.C-26 pointing out the discrepancies in the case of complainant. Ex.C-27 is the copy of rates of DE oiled rice branch as Rs.5634 per MT issued by Punjab State Co-operative Milk Producers' Federation Limited. Terms and condition of policy are Ex.C-28 on the record. The photographs of damaged stock are Ex.C-30(a) to Ex.C-30(m) on the record produced by complainant. The complainant tendered in evidence affidavits of Ravinder Prakash and Raj Kumar Ex.C-B and C-C on the record. Ex.C-31 and C-32 are the balance sheet of complainant. Consumer Complaint No.30 of 2017 16
The above evidence has been brought on record in this case by complainant.
7. The insurance company tendered in evidence affidavit of Parmod Mittal Director of M/s Mittal Surveyors and Loss Asesso Ex.OP-1/B stating that he submitted the survey report correctly. He stated that insured has shown false and frivolous transactions with M/s Reghbir Chand & Sons, Khanna and M/s Pooja Rice & General Mills, Khanna and there was no past history of such sale with the above parties nor were any payments received upto 31.03.2009. He further stated that stocks affected in the alleged fire were very old as it evident from balance sheet of 2008 till the date of loss. Moreover, the production was nominal whereas the stocks were old and dead in nature, as observed by the preliminary surveyor as well. Affidavit of Deep Shikha Seth Dy. Manager of OP no.1 is Ex.OP-1/A on the record. This witness stated that OP no.1 authorised this witness to pursue the case, vide annexure OP/RX. This witness further stated the many letters were written to the complainant by the surveyor vide Ex.R-1 to R-5 for demanding the documents, but to no effect. Ex.R-6 is the copy of insurance policy. Ex.R-7 is the copy of repudiation letter dated 28.01.2015 by OP no.1 to complainant. The insurance company relied upon the report of Mittal surveyor Ex.R-8 on the record in this regard. The documents brought on record by the insurance company have been perused by us. OP no.2 has not tendered any evidence.
Consumer Complaint No.30 of 2017 17
8. Taking into account the totality of the circumstances and the case and the evidence brought on the record, we have come to this conclusion that there is no cogent evidence on the record to this effect whether the stacks were 12 or 5. We have to fallback on the report of surveyor Mittal surveyor Pvt. Ltd. Ex.C-23 and Ex.R-8 on the record. The report of surveyor is generally taken as correct, as surveyor is appointed under the Insurance Act and is licensed by Insurance Regulatory Development Authority of India to conduct the survey. The surveyor Mittal Surveyor in the report dated 02.10.2014 Ex.R-8 has found that complainant showed sales from 23.10.2008 to 31.08.2008 for Rs.25,93,344/- with M/s Reghbir Chand & Sons, Khanna and from 29.10.2008 to 02.11.2008 of Rs.25,94,921/- with M/s Pooja Rice & General Mills, Khanna, but there were no transactions with above parties before 23.10.2008 and after 31.10.2008 and before 29.10.2008 and after 02.11.2008. There was no past history of complainant of sales to the above parties. The complainant was having cash credit limit from the Bank and has been paying heavy interest to the Bank. No payment was received upto 31.03.2009 from above parties by complainant. The Mittal surveyor concluded that no businessman would sell the goods without payment for months together and the bills were issued to exaggerate the rates. M/s Mittal surveyor further found that there was no past practice of purchasing DOC from M/s Ess Gee Enterprises Sunam. The complainant and M/s Ess Gee Enterprises Sunam are sister concerns, as telephone number of both is same. Consumer Complaint No.30 of 2017 18 The insured manipulated the record to take undue benefit with regard to dead stock. There was nominal production of DOC Rice Bran during the year. All the affected and un-affected stocks were of the previous years. The photographs taken by the preliminary surveyor also showed that stocks of DOC Rice Bran in the unaffected stacks have discoloured, hence they were old and dead in nature. M/s Mittal Surveyor assessed the loss to the tune of Rs.8,33,750/- in this case by applying less deduction for dead stocks @50%, less salvage value @25% and excess clause as per policy, because the complainant has not taken prompt action to save the stock from the fire. Even the photographs, which were taken at the time of survey by Deepak Malhotra first surveyor were duly considered in that regard by Mittal Surveyor. It is now for the complainant to prove that the report of the Mittal surveyor is erroneous. We have gone through the evidence of the complainant on the record in this regard. The complainant has failed to rebut this report of surveyor. Generally, the report of surveyor is accepted as correct unless it is proved to be wrong. There is no substance on the file by the complainant to prove this report of surveyor as erroneous. Mittal surveyor considered the photographs taken by first surveyor Deepak Malhotra, which showed that the stocks of DOC Rice Bran in the unaffected stacks have discoloured, as the stocks were old and dead in nature. We find no reason to differ with the report of Mittal surveyor in this regard, as there is no cogent evidence by the complainant against it. Consequently, we agree with the report of Consumer Complaint No.30 of 2017 19 M/s Mittal Surveyor to the effect that complainant sustained loss to the tune of Rs.8,33,750/-.
9. The next point for consideration is whether the complainant manipulated the entries in the record, which led to repudiation of this claim by insurance company. There is no direct evidence of any manipulation except the inference drawn by surveyor that the complainant has no previous sales with M/s Reghbir Chand & Sons, Khanna, M/s Pooja Rice & General Mills, Khanna and M/s Ess Gee Enterprises Sunam. We are of this view that there should be sufficient evidence on record to prove the manipulation or forgery of the entries by the complainant and no conjectural inference can be allowed to take its place. On the point of market rate of DE oiled cake, as pressed by complainant, we find that there are different varieties of DE oiled cakes, because some are of good quality and some are of poor quality and there is no evidence by complainant to this effect as to what was the quality of the DE oiled cake of rice bran, which was allegedly burnt in this case. In the circumstances of the case, while accepting the report of surveyor, we have come to this conclusion that complainant suffered loss of Rs.8,33,750/- as assessed by M/s Mittal surveyor private limited and there is no reason to deny this claim to the complainant on the alleged premise of manipulation of entries, which have not been substantiated on the record by OP no.1. So far as role of OP no.2 is concerned, it is only financer and has nothing to do with the Consumer Complaint No.30 of 2017 20 alleged deficiency in service on the part of OP no.1 Insurance Company.
10. As a result of our above discussion, we accept the complaint of complainant with following directions to OP no.1 only:
(i) OP no.1 is directed to pay Rs.8,33,750/- to complainant with interest @8% per annum from the date of repudiation of the claim till actual payment.
(ii) to pay Rs.40,000/- as cost of litigation to complainant because complainant has to come to the Forum again.
The complainant seeks compensation of Rs.4,00,000/- for mental harassment. The complainant is a private limited Company and there is no question of its suffering any mental harassment, as it is not a natural being. Consequently, the complainant is not entitled to any amount of compensation for mental harassment being a corporate body. The above amounts shall be payable by OP no.1 to complainant within 45 days from the date of receipt of certified copy of the order
11. Arguments in this complaint were heard on 08.05.2018 and the order was reserved. The certified copies of the order be communicated to the parties, as per rules.
12. The complaint could not be decided within the statutory period due to heavy pendency of court cases.
(J. S. KLAR) PRESIDING JUDICIAL MEMBER (SURINDER PAL KAUR) MEMBER May 11, 2018.
(MM)