State Consumer Disputes Redressal Commission
M/S United Industries vs Oic Ltd. on 18 March, 2015
FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
Consumer Complaint No.51 of 2010
Date of Institution: 20.07.2010.
Date of Decision : 18.03.2015.
M/s United Industries, village Nandpur, Sahnewal, District Ludhiana,
Punjab through its proprietor Sh. Jaitender Pal Singh.
.....Complainant
Versus
1. The Oriental Insurance Company Limited, Oriental House, A-
25/27 Asaf Ali Road, New Delhi-110002, through its Chairman
& Managing Director.
2. Regional Manager, The Oriental Insurance Company Limited,
Regional Office, SCO 109-110-111, Surendra Building Sector
17-D, Chandigarh-160017.
3. Divisional Manager, The Oriental Insurance Company Limited,
Divisional Office, G.T. Road, First Floor Sona Complex, Miller
Gunj, Ludhiana.
4. Branch Manager, The Oriental Insurance Company Limited,
Vishkarma Chowk, near Punjab National Bank, Ludhiana.
5. R.K. Talwar, the then Divisional Manager at Ludhiana in 2007,
resident of 128-A, Sector 51-A, Chandigarh.
6. Rajan Sharda, Surveyor, Resident of 3173, 1st Floor, Sector
27-D, Chandigarh.
....Opposite parties
Consumer complaint under Section
17 of Consumer Protection Act, 1986
Quorum:-
Shri J. S. Klar, Presiding Judicial Member.
Shri Vinod Kumar Gupta, Member.
Present:-
For the complainant : Sh. Karan Nehra, Advocate For the opposite parties : Sh. Rahul Sharma, Advocate .............................................. Consumer Complaint No.51 of 2010 2 J. S. KLAR, PRESIDING JUDICIAL MEMBER:-
The complainant M/s United Industries through its sole proprietor Jaitender Pal Singh has filed this complaint against the OPs, directing them to pay the total amount of Rs.24,16,654/- along with interest @18% to the complainant and Rs.5,00,000/- for mental harassment and Rs.50,000/- as costs of litigation and Rs.1300/- being cost incurred by the complainant on the fire brigade. The complainant is a proprietorship firm and has been manufacturing & processing plant of sulphur and sulphur products, dealing in rubber chemicals and was insured with OPs by a comprehensive policy with regard to all kind of stocks, raw material, building, construction, plot and plant for a sum of Rs.30,00,000/- w.e.f. 23.06.2006 till 22.06.2007 and an additional endorsement of Rs.10,00,000/- w.e.f. 17.11.2006 till 17.11.2007 due to increase in its bank limit. On 21.06.2007, the fire broke out in the above factory of the complainant, due to short circuit and thereby caused immense loss thereat. The police report dated 21.06.2007 was logged about this incident of fire. The fire brigade was pressed into service to put out the fire and complainant paid Rs.1300/- to control the fire to it. The complainant lodged the insurance claim with the OPs qua the damage and loss of the factory and the stocks and so on. The claim lodged by the complainant is reproduced as below: Consumer Complaint No.51 of 2010 3
A. Building Loss (in Rs.)
1. Walls Damage 38,000
2. Flooring Area Damage 26,000
B. Roofing & Steel Structure
1. Asbestos Sheets 48,000
2. Steel Parnell's 37,000
C. Steel Fabrication
3. Steel Storage pit 28,000
4. Main Gate 22,300
Total 1,99,300
D. Machinery &
1. Bag Filter House 42,000
2. Pipe Line with bend 33,000
3. Cyclone 38,000
4. Feeding Hooper 04,600
5. V-belts & Pulley & Shafts 26,000
Total 1,43,600
E. Electricals
1. Electrical Main Connection meter 08,500
(PSEB)
2. Panel Board 17,000
3. 3no's Star Delta Starters 06,600
4. Motors 2 no's 10 H.P. Rewind 19,200
5. Motors 1 no's 02 H.P. Rewind 01,900
6. Complete fitting installation & Labour 17,000
7. Wires & Cables 15,554 (4320+11,064) Total 85,754 F. Material
1. Sulphur Raw Loose 4,95,000
2. Sulphur powder finished product 5,17,000
3. Zinc Oxide 7,45,000
4. Plastic Powder 1,10,000
5. Steric Acid 1,21,000 Total 19,88,000 Total A+B+C+D+E+F = 24,16,654 (Twenty four lacks sixteen thousand six hundred fifty four only Consumer Complaint No.51 of 2010 4 On preliminary survey by the surveyor, who was deputed by the OPs, the complainant was directed to initiate the repair work for the construction of building, plant and machinery in the factory to assess the loss thereto. The complainant entrusted all the demanded documents to the surveyor and even additional documents were also furnished to the surveyor by the complainant. The complainant started the repair work in his factory against the payment. On 29.06.2007, the surveyor sent letter seeking details and documents from complainant. The complainant submitted due reply along with all documents thereto. The surveyor again raised the demand for the same documents, which were already furnished to him by the complainant. The complainant again wrote letter dated 04.07.2007, submitting all the documents, as desired by the surveyor. The complainant was shocked to receive the repeated reminders from the surveyor demanding the submission of the same documents time and again from the complainant and letters dated 05.07.2007 and 11.07.2007 may be referred to in this regard. The complainant again submitted the complete set of documents and handed over them to the surveyor, vide letter dated 18.07.2007. Even after submission of these documents along with bills of repair, all the necessary documents have been completed by the complainant and handed over to the surveyor Mr. Rajan Sharda. Rajan Sharda, the surveyor and R.K. Talwar, Divisional Manager of Oriental Insurance Company Ludhiana, instead of settling the claim of the complainant, started Consumer Complaint No.51 of 2010 5 raising illegal demand of money from the complainant, for settling his insurance claim. The complainant contacted the Bank Manager, Vijaya Bank, who also wrote letter dated 21.08.2007 to the OPs for the earliest settlement of the insurance claim of the complainant.
Another letter was also sent by the Manager of Vijaya Bank to the OPs in this regard for earliest settlement of the insurance claim of the complainant. The complainant was made to run from pillar to post, as he could not grease the palm of the hands of Rajan Sharda surveyor and R.K. Talwar, Divisional Manager Oriental Insurance Company for settlement of the insurance claim. The surveyor Rajan Sharda again asked the complainant to give the statement of incident in writing. When the case was on final stage of finalizing the claim, the complainant again submitted incident in writing of this occurrence, despite the fact that it was already submitted in detail to the above surveyor. The letter dated 06.09.2007 was the desperate effort by the OPs to harass the complainant, as Rajan Sharda Surveyor and R.K. Talwar Divisional Manager were bent upon to settle the claim of the complainant after receiving illegal gratification from it for setting the claim. The complainant also wrote letter dated 17.09.2007 to the surveyor Rajan Sharda, who felt offended therewith. The surveyor again demanded the sale sheets, pursuant to receipt of letter dated 19.02.2007. The complainant again handed over the documents and the VAT returns w.e.f. 01.04.2006 to 20.60.2007, vide letter dated 26.10.2007 about it. When the Consumer Complaint No.51 of 2010 6 complainant went to sign the documents, as per desire of the surveyor, he was again asked to submit the fresh photocopies thereof and to re-submit the same as a means of harassment only. All of a sudden, Harjit Singh (S.P. retired) came to the premises of complainant on 02.11.2007 and intimated the complainant that he has been appointed as new surveyor-cum-investigator by the OPs and he had come to complete the formalities of the insurance claim and to receive all the documents afresh. The complainant felt cheated because period of 5 months had already expired and since then his claim was not settled, despite completing the unending list of formalities from the first surveyor just in futile by the complainant. Harjit Singh (S.P. retired) again recorded the statements and the entire record was re-submitted to him by the complainant, which was already submitted to surveyor Rajan Sharda, as well. The complainant received message from Rajan Sharda, the first surveyor thereafter that complainant should meet him and then settle the matter. The complainant refused to pay the extraneous consideration or demand of money. He was shocked to receive letter dated 08.01.2008 from first surveyor to the effect that details of purchase and sale in a particular format and to sign each and every sheet again, which was required to be re-submitted to him. The two surveyors were appointed, just as a source of harassment to the complainant. OP no.5, R.K. Talwar then Divisional Manager of Oriental Insurance Company Ludhiana called the complainant and Consumer Complaint No.51 of 2010 7 his brother in his office, that too after office hours at 05:50 PM and he raised illegal demand of money from the complainant again to settle its insurance claim. When complainant could not pay the illegal demand to R.K. Talwar then Divisional Manager, he got a false F.I.R. registered against complainant and his brother under Section 323, 451, 506 and 34 of the IPC just to save himself. R.K. Talwar, being well connected person has acquaintance of highest police hierarchy in the State. The complainant moved to the Supreme Authorities of India about his unnecessary harassment in this case. The complainant also applied to the OPs to supply the surveyor's report, but they were not supplied the same to the complainant for the reasons best known to them. The repudiation letter is dated 04.08.2008 of the insurance claim of the complainant sent by the OPs. The complainant also lodged the complaint before the Insurance Ombudsman in April 2009 about this matter, but to no effect. That FIR for illegal gratification was registered against Rajan Sharda surveyor and R.K. Talwar then Divisional Manager about this fact separately. OPs are, thus, deficient in service and are responsible for adopting unfair trade practices as well. The complainant, which is sole proprietorship concern, has filed its complaint against the OPs.
2. Upon notice, OPs appeared and filed the written reply, raising preliminary objections that the complaint instituted by the complainant is only an abuse of the process of law. No cause of Consumer Complaint No.51 of 2010 8 action ever accrued to complainant against the OPs. The complex facts and law are involved in this case, which cannot be adjudicated in a summary manner by the Consumer Forum, as voluminous evidence is required to the examined for the settlement of the dispute in this case. Such type of litigation is often resorted by the people only to black mail the Corporation, because the consumer complaints are cheaper source of litigation, because no payment of court fee is required thereon. This fact was not disputed by the OPs that complainant was insured with the OPs, under above referred policy in this case. It was further averred that the insurance claim of the complainant was repudiated, vide letter dated 04.08.2008 on the ground that there was a violation of Condition no.8 of the terms and conditions of the insurance policy. That there was a willful act of fraud and act of concealment of facts on the part of the complainant insured, while submitting its insurance claim. The complainant and OPs are strictly bound by the terms and conditions of the insurance policy, which is a contract of insurance between them. It was further pleaded that the intimation regarding loss of fire was received in the concerned branch of OP company in the after-noon of 21.06.2010, wherefrom it reached the Divisional Office at 04:35 PM and surveyor Rajan Sharda was deputed on 22.06.2010 to inspect the premises to assess the loss, caused by the eruption of the fire. The surveyor Rajan Sharda made protracted correspondence with the complainant for supply of relevant information/documents, but complainant was Consumer Complaint No.51 of 2010 9 not willing to part with the information. The insured has not submitted the quantitative details of different raw material purchased and finished goods sold during the year 2006-07 and during the current period. The contradictory statement of insured, as to cause of loss, non-submission of books of accounts on day of first visit of the surveyor transpired. That Harjit Singh, IPS (Retd.) was deputed to investigating into the matter and he submitted his detailed report dated 10.12.2007 to the effect that purchase bills raised by the complainant from M/s Punjab Ferrics were find on paper only and they were found to be fake or doubtful. Said investigator, Harjit Singh unfortunately expired and his affidavit could not be filed on the record by the OPs. It was further pleaded by the OPs that the surveyor, vide his report dated 24.03.2008 returned the finding that amount was not liable to be paid to complainant, as there was willful exaggeration of the claim and many items were misrepresented therein fraudulently. The surveyor further submitted that the claim of the complainant, at the most, was payable upto Rs.2,19,778/- only, subject to the deduction of applicable excess of Rs.10,000/- thereof. The surveyor observed that insured did not produce any financial record for the verification on the date of his visit on 22.06.2007 and even after 5 days therefrom. The numerous reminders were sent to the complainant and complainant gave its misled information only. Verbal version was found different from the written version of the complainant. The purchased bills were got investigated and verified Consumer Complaint No.51 of 2010 10 by Harjit Singh (S.P. retired), who reported that one bill of M/s Punjab Ferrics Limited dated 16.06.2003 amounting to Rs.6,19,840/- was a sister concern of the insured and the telephone numbers mentioned on the bills of M/s Punjab Ferrics Limited and the insured were the same and M/s Punjab Ferrics Limited was paper entity only. The figures of purchased recorded in trading account and purchase statement did not tally. The insured reportedly showed huge purchases from sister concern M/s Punjab Ferrics Limited during 2006-07, the same were Rs.19,41,839/- and in 2007-08 upto 21.06.2007 they were Rs.7,94,546/-. It was further averred by the OPs that the insured valued the damaged stocks after analyzing the various methods of complainant to the extent of Rs.2,19,778/- only. It was further averred by them that the surveyor report carries value and cannot be discarded in a routine manner by the Consumer Fora. The surveyor's report was a valuable piece of evidence, which deserves due credit on the record. The OPs filed detailed written reply and contested the complaint of the complainant on the above referred grounds. It was further pleaded by the OPs that complainant submitted the insurance claim to the Insurance Ombudsman, wherein he stated that with the help of fire brigade, the machinery and building of complainant were saved, but raw material and finished stocks were badly damaged and melted due to high temperature. The OPs further averred that surveyor was handicapped in finalizing his report due to withholding the proper Consumer Complaint No.51 of 2010 11 documents. The OPs controverted the averments of the complainant with regard to its intimation to the insurance company and other dimensions of the case and prayed for dismissal of the complaint.
3. The complainant tendered in evidence his affidavits Ex.C-A and C-B along with documents Ex.C-1 to Ex.C-52 and closed the evidence. As against it, OPs tendered in evidence affidavit of R.K. Talwar, Manager Ex.RW/A along with documents Ex.R-1 to Ex.R-11 (Ex.1/7 is affidavit of Rajan Sharda first surveyor) and closed the evidence.
4. We have heard the learned counsel for the parties and have also examined the record of the case. We refer to evidence on the record to determine the controversy raging between the parties in this case. The complainant took the insurance policy from the OPs with regard to all stocks, raw material, building, construction, plot and plant with effect from 23.06.2006 till 22.06.2007 and also endorsement of Rs.10,00,000/- with effect from 17.11.2006 till 17.11.2007 due to increase in bank limit against premium. The insurance policy document dated 23.06.2006 is Ex.C-1, C-1/A and C-1/B on the record. They have proved this fact on the record that complainant took the policy of Rs.20,00,000/- for stocks of all kind of raw material, rubber, sulphur and so on and additional amount of Rs.10,00,000/- for entire building, plant of land was also insured, vide Ex.C-1/A on the record. This fact is amply proved on the record that there is relationship of insured and insurer between the Consumer Complaint No.51 of 2010 12 complainant and OPs on the record in this case. Unfortunately, incident of fire took place at the factory premises of the complainant on 21.06.2007 due to short circuit of electric wires. The police report was lodged by the complainant in this regard, vide police report no.12 dated 21.06.2007 at police station Sahnewal District Ludhiana. From perusal of this document, it is proved that fire broke out in his factory due to short circuit and the fire brigade was also called to put out the fire. It is stated in the first version of the complainant embodied in the police report Ex.C-2 that the sulphur 45/55 tons and finished goods50/55 tons, Yink near about 21/2 tons etc. including building were damaged in this incident of fire, which spread due to short circuit of the electricity. The complainant also reported the matter to the fire brigade, as per his affidavit on the record in support of his averments. The Municipal Fire Brigade Ludhiana was called and occurrence reports are Ex.C-3 and Ex.C-3/A on the record. Ex.C-3/B is the receipt of Rs.1200/- and the receipt of Rs.100/- in extra is Ex.C-3/C thereof. Even the occurrence report, vide Ex.C-3 has also recorded the loss of raw material, finished goods and other chemicals, electric fitting and so on. The loss suffered by the complainant has been split up in para no.2 of the complaint in detail in tabulated form, which was loss to the building, construction plant and machinery, besides the stock of the complainant. The insurance claim form Ex.C-4 was lodged by the complainant about loss suffered by him with the OPs and due intimation thereof was given Consumer Complaint No.51 of 2010 13 and Rajan Sharda was deputed to assess the loss and he wrote letter Ex.C-4/B to the complainant, asking him to supply the documents, as detailed in it. The complainant stated in his affidavit, as well as stated in the written version in complaint that the surveyor asked him to get the repairs of the factory, so as to make proper assessment of the loss. On his persuasion, the complainant started the repair work and further paid from his own pocket for the repair work thereat, which was carried out solely at the instance of the surveyor by the complainant. The complainant has proved on record the bill no.59 dated 03.07.2007, vide Ex.C-5 paid to Falcon Engg. Works for sulphur storage pit and main gate for Rs.50,300/-. Ex.C- 5/A is bill no.108 dated 28.06.2007 paid to Mohan Lal, the sum of Rs.85,000/- for the cement sheets and other labour charges, Ex.C- 5/B is bill no.41 dated 29.06.2007 of Rs.64,000/- paid by the complainant. Ex.C-5/C is bill no.40 dated 29.06.2007 for Rs.89,600/- paid by the complainant to the Agra Roll Machine Works for the work detailed in it. Ex.C-5/D is bill no.13490 dated 26.06.2007 of Rs.11,064/- paid by the complainant to General Electric & Machinery Corporation. Ex.C-5/E is bill no.13590 dated 02.07.2007 of Rs.4493/- paid by the complainant to General Electric & Machinery Corporation for wire. Ex.C-5/F is the payment receipt of Rs.670/- to PSEB. Ex.C-5/G is bill no.101 dated 28.06.2007 of Rs.61,700/- paid by the complainant to Bansal Control & Power for the work carried out, as recorded in the bill. Ex.C-5/H is the receipt of labour charges Consumer Complaint No.51 of 2010 14 of Rs.10,000/-. Ex.C-5/I and C-5/J are the electricity bills recorded on average basis paid to PSEB by the complainant. The reliance of the complainant is on the above documents to the effect that he entered in repair work for the loss caused by the fire in his factory just at the asking of surveyor Rajan Sharda only.
5. The complainant further produced, the letter dated 29.06.2007, vide Ex.C-6 on the record, vide which the surveyor Rajan Sharda asked the complainant to supply the documents detailed in it. The complainant supplied the same and the copies of the documents Ex.C-6/A to Ex.C-6/Z/1 are on the record. These are various photocopies of the documents, which were supplied to the surveyor by the complainant pursuant to his letter Ex.C-6. The surveyor again demanded the submission of the documents, which was already received by him from the complainant, vide letter dated 04.07.2007, vide Ex.C-7 on the record. The letter dated 05.07.2007 Ex.C-8 has proved that the surveyor again demanded the documents from the complainant in this case. The complainant sent reply to the letter dated 11.07.2007, vide Ex.C-10 and submitted the requisite documents, as desired by the surveyor, vide Ex.C-9. With the intervention of the complainant its banker Vijaya Bank also wrote reminder dated 21.08.2007 Ex.C-11 to the complainant for the earlier settlement of the insurance claim of the complainant. Instead of settling the claim of the complainant, despite lapse of time, despite reminders by the banker of the complainant to the OPs, the surveyor Consumer Complaint No.51 of 2010 15 continued asking for submission of documents, which were submitted to him by the complainant time and again. Ex.C-13 is letter dated 09.09.2007, sent by the complainant to the surveyor Rajan Sharda in this regard and Rajan Sharda surveyor demanded the documents, vide letter dated 06.09.2007 from complainant, when the letter was sent by the complainant in this regard Ex.C-15 on the record.
6. It has also appeared on the record in the affidavit of complainant as well as the documents, that complainant contacted the surveyor in person for non-settlement of the claim. The letter sent to the surveyor by the complainant dated 19.10.2007 is Ex.C-17 on the record to the effect that complainant has a small unit and is a victim and he bore the loss of the amount of Rs.20,00,000/-. That he felt apology to the surveyor for writing the letter in Punjabi. The surveyor Rajan Sharda again wrote letter Ex.C-18 to the complainant on 22.10.2007 to the effect that receipts of the complainant are unsigned and did not contain the information. The complainant replied to this letter, vide reply through courier dated 26.10.2007, which is Ex.C-19 on the record and submitted the VAT returns, which are obtained from Excise and Taxation Department every quarter, stating that there is no difference of sale detail of the complainant, as provided to them. Rajan Sharda Surveyor again wrote letter dated 27.10.2007 to the complainant, vide Ex.C-20 that the dates of purchases and sales of respective bills are not Consumer Complaint No.51 of 2010 16 mentioned. Thereafter, Harjit Singh (S.P. retired) was appointed another surveyor-cum-investigator by the OPs. He also demanded the same documents from the complainant, which complainant earlier submitted to the surveyor. The above Harjit Singh (S.P. retired) surveyor also recorded the statement of the complainant Ex.C-22. The statements of witnesses are Ex.C-22/A to C-22/D on the record. The above Harjit Singh submitted the report to the OPs regarding the doubt expressed by him with regard to bill of M/s Punjab Ferrics Ltd. It was never conveyed to the complainant either by above Harjit Singh second surveyor or by the OPs. Thereafter, Rajan Sharda, the previous surveyor, wrote letter dated 08.01.2008 after more than 6 months to the complainant asking the complainant, the bill no. date of bill, name of party, amount of invoice and signing every sheet. The complainant again submitted registered reply to this letter, vide Ex.C-24 dated 14.01.2008, expressing the apprehension that he was being harassed by the surveyor, when he had already submitted the documents and the same documents were demanded from him time and again. Ex.C-24/A may also be referred to in this regard.
7. Again, R.K. Talwar then Division Manager called the complainant in his office for settlement of insurance claim and that too after office time and got F.I.R. registered against the complainant, vide Ex.C-25 to Ex.C-25/C regarding misbehaving with him. The complainant wrote various representations to the Consumer Complaint No.51 of 2010 17 authorities and replies thereof are Ex.C-26 to C-26/E and C-27 to Ex.C-34 on the record. The statement of Smt. Goldy in the enquiry is Ex.C-35 on the record. Ex.C-36 is the letter addressed to the complainant by the OPs in connection with above inquiry. The Branch Manager of OPs wrote letter to the complainant, vide Ex.C- 37, repudiating the insurance claim of the complainant on 04.08.2008 after more than one year in this case. The complainant submitted the complaint to the Insurance Ombudsman dated 23.04.2009 on the record, complaining his grievance. The Insurance Ombudsman declined to interfere on the ground that complainant is a firm and complainant is not a consumer. Thereafter, the FIR under the Corruption Act was lodged against surveyor Rajan Sharda and R.K. Talwar then Divisional Manager, vide Ex.C-40 on the record. The complainant wrote letter to the Managing Director of the OPs, vide Ex.C-41 against R.K. Talwar on the record.
8. The OPs also led rebuttal evidence on the record. The OPs took the plea in this case and proved on record the repudiation letter dated 04.08.2008, vide Ex.R1/1. It is stated in this repudiation letter by the OPs that on account of violation of Condition no.8 of the Insurance Policy, the claim of the complainant was repudiated. The terms and conditions of the insurance policy are Ex.R1/2 on the record. This is a Standard Fire and Special Perils Policy (Material Damage) containing the terms and conditions of the policy on the record. Ex.R1/3 is the cover note and Ex.R1/4 is the fire loss claim Consumer Complaint No.51 of 2010 18 dated 25.09.2007 submitted by Rajan Sharda, the first surveyor to the OPs. The surveyor submitted in his report that contradictory statement of insured, as to cause of loss, non-submission of books of accounts on day of first visit, claiming loss of huge quantities not physically supported by burnt remains has led him to make a request to their office to get this case thoroughly investigated. The investigation report submitted by Harjit Singh (S.P. retired) is Ex.R1/5 on the record dated 10.12.2007.
9. We find that on the alleged investigation report Ex.R1/5 dated 10.12.2007, only last page of this report is signed and rest of the pages of the report are not signed by its investigator on the record. The affidavit of Harjit Singh second surveyor has not been filed by the OPs on the record, as he is stated to have expired and his death certificate has not been placed on record by the OPs to substantiate this fact. We find that the original report has not been placed on the record of Ex.R1/5. Even each page thereof has not been signed by the above investigator and only last page thereof is signed. In the circumstances of the case, we are not able to place any reliance on this report, as this report is not supported by any affidavit of Harjit Singh nor there is any death certificate on the record proving that he has died and original report has not been placed on record and even each page of report is not signed and only last page is signed. Ex.R1/6 is the report dated 24.03.2008 submitted by Rajan Sharda the first surveyor in this regard recording Consumer Complaint No.51 of 2010 19 the claim of the complainant is liable to be repudiated, as available information has been withheld by him. Affidavit of Rajan Sharda surveyor Ex.R1/7 is on the record. The affidavit of R.K. Talwar, then Divisional Manager Ludhiana Ex.RW/A is on the record. He has reiterated the pleadings of the OPs in his affidavit on the record.
10. The complainant also produced on record his affidavit Ex.C-B in rebuttal. The complainant also produced on record the attested report of Ralson (India) Limited on the record, vide Ex.C-42. The report of Bali Laboratories (Regd.) (Govt. Approved Test House) is Ex.C42/B dated 21.03.2011 on the record. The affidavit of Kamaljeet Singh of M/s General Electricals is Ex.C-43, affidavit of Dinesh Bhati, Prop. Of M/s Harmilap Wheat Mlls is Ex.C-44, affidavit of Mohan Lal prop. Of M/s Sh. Mohal Lal is Ex.C45, affidavit of Parminder Singh Director of M/s Punjab Ferrics Ex.C-46, affidavit of Sukhwinder Singh prop. Of M/s Bansal Control and Power is Ex.C-47, affidavit of Balbir Singh prop. Of M/s Agra Roll Machine Works Ex.C-48 and affidavit of Amarjit Singh prop. Of M/s Falcon Engineering Works Ex.C-49 are on the record. These affidavits substantiate this fact that complainant got the repair work done in the factory from them. That M/s Punjab Ferrics is not sister concern of complainant and is an independent concern from the complainant. The complainant also produced in rebuttal evidence, the report of the Chief Manager, Vijaya Bank on the record. The complainant also placed on record the certificate of Chief Manager of Vijaya Bank Consumer Complaint No.51 of 2010 20 Ex.C-51 in this regard. Ex.C-52 is the document regarding taking of the policies by the complainant on the record.
11. We have carefully heard the submissions of counsel for the parties and have also examined the respective evidence on the record, as discussed above. We find that submission of the counsel for the OPs is that complainant/insured, submitted the complaint to Insurance Ombudsman, vide Ex.C-38 on the record in this case dated 23.04.2009, Ex.C-38/A is the postal receipt thereof. Vide Ex.C-30, Insurance Ombudsman refused to interfere on the ground that "insured person means an individual by whom or on whose behalf an insurance policy has been taken on personal lines". Personal lines means an insurance policy taken or given to an individual capacity and the policy issued in the name of firm, your complaint would fall outside the jurisdiction of Insurance Ombudsman. The submission of the OPs is that in the complaint to Insurance Ombudsman Ex.C-38, the complainant stated that when they reached the factory and got help by fire brigade, its machinery and building were saved and raw material and finished stocks were damaged. Emphasis was laid on this point by counsel for the OPs that complainant admitted this fact in this complaint that with the help of fire brigade their machinery and building were saved. We find that the submission of the OPs is not a valid one on the record. The first version, which was lodged by the complainant, just after the eruption of this due to short circuit, is Consumer Complaint No.51 of 2010 21 Ex.C-2 on the record. It has recorded the fact that the building and raw material were damaged therein. In the first information report lodged with police Ex.C-2, it is clearly stated that the building was damaged and the raw material stored in it, as detailed in the report was also damaged. The complainant also submitted the intimation of this fire incident to OPs, vide Ex.C-4 on the record. On the intervention of the surveyor Rajan Sharda, the complainant was asked to complete the repair work for the assessment of the loss. The complainant did get the repair work completed and the various bills paid by the complainant on repair work Ex.C-5 and Ex.C-5/A to C-5/J are on the record to substantiate this point. The above referred bills, which amount was paid by the complainant to the different persons, were found to be authentic and they have clearly proved this fact that the complainant also suffered loss to the building as well as the other plant. Otherwise, there is no question of entering into the repair thereof by the complainant. The submission of the OPs on this point is not found to be valid one for its acceptance by us.
12. The next submission of the OPs is that various documents were asked from the complainant by the surveyor Rajan Sharda, but the complainant has not complied with the same. On the other hand, the submission of counsel for the complainant is that the complainant has been submitting the documents and Rajan Sharda for extraneous reasons, who was surveyor, again demanded the Consumer Complaint No.51 of 2010 22 same documents from the complainant time and again, just to unnecessarily harass him for extraneous matters. From the various correspondence, which took place between the complainant and the surveyor Rajan Sharda, as referred to above, we have come to this conclusion that the surveyor has been demanding the same documents from the complainant time and again. The surveyor himself inspected the spot and again asked the complainant after a lapse of sufficient time to submit the cause of the incident of fire again, in the factory. We find only malice on the part of the OPs and nothing else in this case. It was the bounden duty to the OPs through its surveyor to collect the documents on one or two occasions and then to process the insurance claim of the complainant. Allegations and counter allegations have to be leveled in this case from both sides and FIRs also came to be registered against each of them. The various correspondence, as referred to above, leads us to this conclusion that OPs demanded the same documents from the complainant time and again without any valid reason when they were already with them and thereafter appointed the second surveyor as well, as investigator Harjit Singh (S.P. retired), who again entered into the enquiry and collected the same documents from the complainant. The insured, who pays the premium and gets the insurance of his factory is not supposed to pay the premium, so as to face uncalled for harassment thereof at the later stages from the insurer. We find that the attitude of the Insurance Company is far Consumer Complaint No.51 of 2010 23 from friendly like a Corporation in this case. Otherwise, there was no question of getting F.I.R. registered under the Corruption Act by the complainant against the surveyor and the Divisional Manager of the OPs. Why, a consumer would go to this extent has not been explained to us by the counsel for the OPs?
13. We find that the report of the investigator is only photocopy, it is not signed at all pages by above Harjit Singh. There is no opinion of electrical expert obtained by the OPs to rule out the cause of short circuit of the fire, no opinion of any laboratory has been taken by the OPs in this regard. On the other hand, the complainant placed on record, the reports of laboratories in this case, vide Ex.C-42, the test report of Ralson (India) Limited and Ex.C-42/A the test report of Bali Laboratories (Govt. Approved Test House). Ex.C-42/A is the literature in this regard. The above referred test reports remained un-rebutted by the OPs on the record in this case. We agree with the submission of counsel for the complainant that there is no opinion of electrical expert in this case, nor any report of laboratory taken by the OPs in this case to falsify the complaint of the complainant with regard to incident of fire in his factory particularly in the presence of police report and fire brigade reports. We also find that the material stored by the complainant therein was sulphur, which is highly inflammable. There is no report by the surveyor, under the circumstances of high temperature fire, and no such sample is on the record to disprove the above records Consumer Complaint No.51 of 2010 24 relied upon by the complainant on the record. Even the banker of the complainant also wrote letter to the OPs, request for settling the claim at the earliest of the complainant, vide Ex.C-11 on the record. The same information was sought by the complainant from the OPs, vide Ex.C-12, C-13, C-15 and C-17 on the record repeatedly. There is no explanation with the OPs as to how the same information was being sought from the complainant by the second surveyor as well, the alleged investigator Harjit Singh again entrusted on investigation and again conducted enquiry by receiving all the documents from complainant again.
14. The OPs further submitted that the above investigator Harjit Singh found M/s Punjab Ferrics Ltd., being a sister concern of complainant. There is mere report to this effect in the investigation report of Harjit Singh, which is only photocopy and original has not been produced by the OPs, even all pages of report are not signed by the investigator and there is no affidavit of Harjit Singh surveyor to substantiate it on the record. Nor there is death certificate of Harjit Singh surveyor to prove his death on the file. The complainant relied upon the bank certificates Ex.C-50 and Ex.C-51 to the effect that complainant is not sister concern of M/s Punjab Ferrics Ltd. We also find that there is no investigation got carried out by the Registrar of companies to come to the conclusion that complainant and other concerns were sister concerns. There is no clarification sought from the complainant by the OPs on this point, as to whether the alleged Consumer Complaint No.51 of 2010 25 concern is sister concern of the complainant or not. Even the alleged investigator never investigated the returns, filed by the complainant. The report of the OPs is not scientific. The fact that the fire took place has never been disputed by the OPs in any of the reports. There is no verification that bills of M/s Punjab Ferrics Ltd. Ludhiana and M/s Action Chemicals Ludhiana were suspicious and doubtful. The sole report to this effect unsupported by any evidence by the alleged investigator is of no consequence. Why they have not been got verified from the chartered accountant in this case by the OPs remaining inexplicable? Even, there are affidavit of Parminder Singh, Director of M/s Punjab Ferrics (P) Ltd., vide Ex.C-46 on the record to the effect that M/s Punjab Ferrics Ltd. is not sister concern of complainant. That M/s Punjab Ferrics Ltd. has been in operation since 2003 and was incorporated in 1993. That the above company has been filing the income tax returns annually. There is mere report of the investigator to this effect without any evidence, alleging it to be sister concern of complainant, whereas solemn affirmation of Parminder Singh its Director is on the record contained in his affidavit, that it has no concern with the complainant. Consequently, we find it established on the record by the complainant that the OPs have miserably failed to establish it on the record, that the above M/s Punjab Ferrics Ltd. is the sister concern of the complainant in the presence of affidavit of Parminder Singh and bank certificates Ex.C-50 and C-51.
Consumer Complaint No.51 of 2010 26
15. The complainant has also incurred expenses on the repair of his building and machinery and plant and affidavits of various persons Ex.C-43 to C-49 have been adduced by the complainant on the record to support this fact.
16. Undisputedly, the report of surveyor is a valuable piece of evidence. Yet, it is not conclusive, if the complainant, being insured is able to prove by any other evidence that the report of surveyor is not correct and the same can be discarded by the Consumer Forum. Herein, there is allegation of malice by the complainant against the surveyor and strong evidence is required on the side of the OPs to rely upon the report of above surveyor, when F.I.R. under Corruption Act has been registered against him by the complainant. We have come to this conclusion from appraisal of above referred evidence on the record that stock statements were never considered viz.-à-viz. the vat returns by the surveyor. Some difference is negligible in the trading account and sale statement, which needs to be ignored. The submission of counsel for the OPs that fraud is involved in this case and Consumer Forum should refrain from deciding the case is devoid of any force. We find that mere allegation of fraud, raised without substance, would not deprive the Consumer Forum from entertaining the complainant, as the matter cannot be left to the entire whims of the surveyor either to accept or to reject the claim on his sole discretion alone. There must be evidence and documents on the record to this effect to validate it. Consumer Complaint No.51 of 2010 27 When the bills of other companies have been duly verified to be correct, the same yardstick has not been adopted by the OPs for the verification of M/s Punjab Ferrics and M/s Action Chemicals Ludhiana's bills through its surveyor, the alleged investigator.
17. We have come to this conclusion after evaluation of above evidence that the Insurance Company often allures the insured to take the claim, when they are to issue the policy after receiving premium. Subsequently, they adopt the dilatory tactics, just to repudiate the contract of insurance. The Insurance Ombudsman has also wrongly declined to intervene in the matter on the baseless premise that complainant is not consumer in the contract of insurance. The contract of insurance is for the purpose of indemnification only. The complainant is sole proprietorship concern and when the contract of insurance is for indemnification of the loss, therefore, it cannot be said that the complaint is not maintainable, as observed by the Insurance Ombudsman. On the point of violation of Condition no.8 of the insurance policy, which led to the repudiation of the insurance claim, we find that there is no material on the record with the OPs to prove any fraudulent exaggeration of the insurance claim by the OPs in this case. This clause no.8 of insurance policy Ex.R1/2 has been invoked by the OPs, just to repudiate the insurance claim of the complainant. We do not find any violation of Condition no.8 by the complainant. On the basis of our above Consumer Complaint No.51 of 2010 28 findings, we find that complaint of the complainant deserve to be accepted in this case by this Commission.
18. In the light of our above discussion, we hereby accept the complaint of the complainant against OP nos.1 to 4 and direct them to pay the amount of loss of Rs.24,16,654/- (Twenty four lakhs sixteen thousand six hundred fifty four only) to the complainant within a period of 45 days from the date of receipt of certified copy of the order of this Commission, failing which the complainant shall be entitled to interest @ 9% p.a. thereon from the date of order till its actual payment. OP no.1 to 4 also directed to pay Rs.10,000/- (Fifteen Thousand) as costs of litigation and the amount of Rs.40,000/- (Fourty Thousand) as compensation for the mental harassment. The complaint of the complainant is accepted against OP nos.1 to 4 only, whereas OP nos.5 and 6 have been impleaded in their individual capacity and hence no order is passed against them in this case.
19. Arguments in this complaint were heard on 11.03.2015 and the order was reserved. Now the order be communicated to the parties. The complaint could not be decided within the statutory period due to heavy pendency of court cases.
(J. S. KLAR) PRESIDING JUDICIAL MEMBER (VINOD KUMAR GUPTA) March 18, 2015. MEMBER (MM)