National Consumer Disputes Redressal
Munshi Ram vs New India Assurance Co.Ltd. on 16 July, 2009
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NATIONAL CONSUMER DISPUTES
REDRESSAL COMMISSION
NEW DELHI
CONSUMER COMPLAINT NO. 323 OF 2002
MUNSHI RAM
S/O KHAZANU RAM
R/O VILL. JAGIL, P.O. MITTIAN,
THE NALAGARH, DISTT. SOLAN,
HIMACHAL PRADESH
........ Complainant (s)
Vs.
THE
NEW INDIA ASSURANCE CO.LTD.
REGD. & HEAD OFFICE :
NEW INDIA ASSURANCE BLDG. 87,
MAHATAMA GANDHI ROAD,
FORT, MUMBAI 400001
THE
BRANCH MANAGER,
THE NEW INDIA ASSURANCE
CO.LTD., NANGAL ROAD, ROPAR
........ Opp. Party (s)
BEFORE:
HON'BLE
MR. JUSTICE K.S. GUPTA, PRESIDING MEMBER
HON'BLE MR. S.K. NAIK, MEMBER
For the Complainant
: Mr. Rajesh Kumar, Advocate
For the Opp. Party
: Mr. S.K. Pattjoshi, Advocate
Pronounced on :_16.07.2009
ORDER
PER S.K. NAIK, MEMBER This consumer complaint has been field by Sri Munshi Ram, a contractor by profession.
His grievance is that he had obtained a fire and special perils policy (Material Damage) of Rs.30 lakhs from the Branch Manager, New India Assurance Co. Ltd., opposite party No.2 by paying a premium of Rs.9550/-. This policy was to cover the goods/raw material/finished product of Katha manufactured by him. He had also obtained another policy to cover accident of his workman consisting of one Munshi, three helpers and one Munshi-cum-Accountant and paid a premium of Rs.1871/-. The policies were valid from 20.4.2001 to 19.7.2001. During the currency of the insurance policy and when he had manufactured 60.6 Qtls. of katha till June 2001, a fire broke out in the Bhattis on 20.6.2001 where the manufactured katha was lying. FIR with regard to the fire incident was immediately lodged with the police. A claim thereafter was submitted before the opposite party New India Assurance Co.Ltd. who appointed a surveyor to assess the loss. The surveyor visited the site on the very next day of the incident and subsequently on 19.11.2001 had made certain enquires from the officials of the Forest Department. When sufficient details with regard to the incident had been obtained during his visits/enquires, the surveyor ought to have finalized his report but to the contrary he again asked for some more information vide a letter dated 27.12.2001. The letter was duly replied to by the complainant on 8.1.2002 and all the objections were duly clarified. Not satisfied, the surveyor yet again vide his letter dated 9.2.2002 sought more information which was once again clarified by the complainant vide reply dated 28.2.2002. To his utter surprise, the complainant was informed vide letter dated 31.3.2002 that his claim has been rejected on the ground of his having never purchased the Khair wood. The business of the complainant was to purchase Khair wood trees from its owner, fell them ; cut them into pieces and process the cut pieces in a Bhatti and manufacture Katha which is a very costly material sold primarily to the manufacturers of Pan Masala and other mouth re-fresheners.
Aggrieved by the total rejection of his claim that this complaint has been filed.
On notice being served on the respondent/opposite parties, they have contested the claim. In their written version, they have raised preliminary objections that complaint is not maintainable since there was no deficiency in service as alleged by the complainant and a decision has been taken in good faith after duly considering the relevant facts and circumstances of the case. The opposite parties had followed all norms such as appointment of a surveyor who after visiting the site and making necessary inquiry/investigation in depth submitted his report. The claim was repudiated after taking into consideration the facts of the report submitted by the surveyor and after due application of its mind. It has further been stated in the written version that the case involves complicated question of facts where detailed and elaborate evidence is required to be led and, therefore, it should not be disposed of in a summary manner. In particular, it has been stated that elaborate trial by way of adducing evidence will be required to ascertain the cause of fire which does not stand established because the electric meter and wires were not found either in burnt condition or otherwise at the site on the very next day of the incident when the surveyor visited the site. Similarly, purchase of Khair wood has not been established by any documents specially when there is no transaction through the Bank for purchase of the wood and the complainant does not give any proof of source of fund for the same. Further more, the alleged quantity of Katha lost in the incident at a time which is not the Katha season in the area needs in depth investigation through trial since no prudent person would keep the stock of Katha in thatched huts for more than 2 months. Since, the complainant had admitted that he has not maintained any books of accounts and availed the credit of Rs.80,000/-, the transaction with regard to the purchase of Khair wood, the actual manufacture of Katha and sale transactions have to be proved beyond doubt which may not be possible in proceedings of a summary nature.
On the specific allegations of the complainant, the opposite party insurance company has stated that during the visit of the surveyor, it was informed by the complainant that he had purchased Khair wood trees from Shri R.D.Rawal and Shri Nalin Rawal during January, February and March 2000. But, the agreement was entered into on 29.9.2000 which is six months later. Further, the receipts of purchase should have been subsequent to the agreement, but no such receipt has been produced by the complainant. It has also been pointed out that permission to install Katha Bhatti by the Forest Department was first given on 16.3.2000 and again on 29.12.2000. It has further been stated that the complainant did not furnish details of labourers employed and the amount involved either at the time of making claim or when asked by the surveyor during the survey and assessment of the alleged loss. A plea has been taken that this was an afterthought, specially when the complainant has failed to produce any record concerning the employment of labourers and details of payment made to them. Similarly, the claim of engagement of six persons to start the manufacturing process had been contested on the ground that the complainant did not provide the details. On the claim of the complainant that he had obtained an electricity connection for running the Bhattis, it has been contested on the ground that the final payment of the electricity bill was due on 21.6.2001 meaning thereby that the electric supply was disconnected well before the date of fire i.e. 20.6.2001.
If the disconnection of electricity was actually made on 20.6.2001, atleast the Electricity Department could not have been so prompt to remove the meters within hours of request of the complainant. No record to this effect has been produced. The opposite parties have also contested the claim of the complainant that he had taken the private land on lease --for installing the Bhattis since no documents to this effect was furnished by the complainant. It has been stated in the written version that no stock of Katha was found burnt at the site of loss by the surveyor. It has been averred in the written version that Katha manufacturing process is carried out only during winter season and does not continue till June as claimed by the complainant. Denying that the complainant had submitted that record as asked for by the surveyor, it has been stated that any complainant did not furnish copies of records pertaining to purchase of Khair wood and manufactured Katha as also report of the fire brigade. The opposite parties in the written version have therefore, justified their decision to repudiate the claim on the three main grounds ; firstly, that the cause of fire due to electric short circuit was not established ; secondly, the purchase of Khair wood also could not be proved and ; thirdly, that on visual inspection of the site of loss, there was no evidence to support that such a huge quantity of Katha has been burnt. The written version, therefore, concludes by saying that the complaint is mis-conceived and deserves to be dismissed with cost.
On being asked to file their respective evidence, the complainant has filed his own affidavit and has relied upon Annex. C1 to C13 to his complaint.
Annex.C1 is a copy of the alleged agreement which the complainant entered into with Sh.R.D.Rawal and Sh.Nalin Rawal for felling of Khair trees. Annex.C2 is a recommendations of the Range Officer, Forest Range, Ramshehar informing the complainant that necessary sanction for felling down 562 Khair trees have been granted. Annex.C3 is permission to install Katha Bhatti from the Forest Dept. where as Annex.C4 is the agreement which the complainant entered into with one Gulam Mahideen for supply of labour. Annex.C5 is a copy of report prepared by the Range Forest Officer with regard to the felling of Khair trees from 1.6.2000 to 31.5.2001. Annex.C-5/A has been produced in token of the payment for the electricity bill. The other annexures are copies of cover note of the policy for the workman, FIR lodged with the Police, Letter of AAE with regard to the temporary connection and letters exchanged between the complainant and surveyor.
The opposite party insurance company, on the other hand have filed the affidavit of their Asst. Manager and have enclosed a copy of the report of Consolidate Surveyors P.Ltd. and their letter dated 31.3.2002 addressed to the complainant informing him that his case is being closed stating Khair wood was never purchased by him.
When the matter was taken up for final argument, learned counsel for the complainant has submitted that the complainant had entered into an agreement on 29.9.2000 with the Rawal brothers of Village Kumarhatti for the purchase of 562 Khair Wood trees. The agreement had been entered into only after the owners had obtained permission from the Forest Department. Evidence with regard to the letters from Forest Department according permission have been filed, the complainant had engaged a labour contractor for felling of the trees and the agreement entered into between the labour contractor and the complainant has also been filed for the processing of Khair wood, the complainant had also obtained permission to install Katha Bhatti from the Forest Department of Himachal Pradesh.
In order to execute the work of manufacturing process of Katha at the Bhattis, the complainant had also obtained an electric connection from the Electricity Department of H.P. from January 2001 to June 2001. Proof in the form of payment of electricity bill was also produced. There is ample evidence with regard to the felling of Khair wood trees and reporting by the officials of the Forest Dept. in their periodical returns/report to higher officials. FIR had been lodged immediately after the incident of fire on 20.6.2001 and the fire Brigade had also been informed. The complainant had also moved an application before the concerned Jr. Engineer of the Electricity Dept. to give a report on the cause of the fire since the temporary meter as well as the electric wire had been destroyed in the fire.
Since, the entire stock of Katha was destroyed in the fire, the complainant was fully entitled to the claim as per the policy which, learned counsel contends has been illegally denied to him.
On being asked to clarify certain points, learned counsel has clarified that the surveyor has wrongly pointed out in his report that after the incidence of fire, some wooden posts of the huts were still seen after the incident of fire whereas the intensity of the fire was so high that it had destroyed not only the entire stock of manufactured Katha but also the temporary huts. On the quantum of compensation, learned counsel has stated that the market price of Katha at that point of time being Rs.50,000/- per quntl. approx. value amounted to Rs.30 lakhs since 60.6 qntl. of Katha got burnt in the fire incident. On the query of this Commission with regard to a meager amount of loan on which a huge business transaction was conducted, the counsel has submitted that the complainant had obtained loan from persons who were known to him. He has named 9 persons from each of whom amounts varying between Rs.2 lakhs to Rs.2,50,000/- is claimed to have been taken as loan.
It has been contended that the surveyor has completely ignored the evidence and has held that the cause of fire i.e. short circuit could not be established. Similarly, reports of Forest Dept. has been ignored in holding that the purchase of Khair wood also have not been established.
Further, it has been wrongly held that the visual inspection of the site of loss did not support that a huge quantity of Katha had been burnt since no residue/remnants have been observed.
Thus the surveyors report runs contrary to the evidence on record. Report of assessment about the loss having been made after 7 months, cannot be held to be correct and appears to have been made on mere assumption without referring to the factual and documentary evidence produced by the complainant.
Learned counsel, therefore submits that the complainant has a full proof case and the respondent insurance company has wrongly and illegally denied him the claim which deserves to be allowed.
On the other side, learned counsel for the opposite party has contended that this is a case of absolutely no claim since the entire claim has been lodged on the basis of well orchestrated incident of minor fire where no valuable finished product has been burnt.
The claim is false and has been filed to derive undue benefit. In support of his contention, learned counsel has brought to focus to the attention to this Commission ; firstly, the fact that the complainant had cleverly obtained a short term fire policy for three months covering the period from 20.4.2001 to 19.7.2001, while the entire business cycle revolved around Jan., 2001 to June 2001. Secondly, the complainant has obtained credit limit of Rs.80,000/- and even there he has no transaction. It is inconceivable that a contractor would undertake a business running over Rs.30 lakhs without any Bank transaction which only goes to prove that a false incident has been fabricated with malafide intention. Questioning, the so-called agreement entered into by the complainant with Shri R.D.Rawal and Shri Nalin Rawal, the learned counsel submits that the complainant does not produce any receipt with regard to the payments made from time to time and does not disclose the source from where he got the money for such payments stating that it is only after the query by this Commission that the complainant has produced some affidavits from 9 persons, who, he claims that he borrowed amounts ranging from Rs.2 to Rs.2.5 lakhs from each one of them. This is clearly an afterthought and cannot be accepted as valid proof since, a part from bald affidavit, no details have been given as to whether the amounts were received through cheques/draft or in cash.
Firstly, no body will lend such huge amount of money without any security and without imposing any condition with regard to the rate of interest and period of return on the mere asking of the complainant. Secondly, the complainant has not produced any books of accounts from where it could be verified that he indeed received the amounts as loan from the individual and made payment in connection with the purchase of trees or other process involved in the manufacture of Katha. The story of having obtained an electric connection also appears doubtful since no burnt electric meter or cable wire was seen at the site of the incident when the surveyor visited the site on the very next day. Even otherwise, the due date of electric bill No.1076349 was 21.6.2006 which is final bill raised by the Electricity Department from which it is proved that the complainant had already got the power line dis-connected because the due date of the bill is never the next day of the date of the bill.
Relying on the surveyors report, learned counsel submits that at the time of inspection only a uniform thin layer of ash showing that only the Sarkanda grass and the thatched huts were burnt was seen. This indicated that there was only a low intensity of fire.
Besides, the wooden posts on which the huts were built were still standing unburnt. Learned counsel has referred to a number of inconsistencies such as the Katha manufacturing season being upto 31st March, no explanation has been offered as to why the finished product was kept at the site of the Bhattis for 2 months until it caught fire. He contends that no sensible business man/contractor will ever keep the valuable finished products for such a long duration when it would have fetched handsome return on its sale immediately after processing. The other glaring inconsistency can be seen from the records submitted by the complainant himself that permission for Katha manufacturing was initially obtained for the year 1999-2000 but the complainant has stated that no Katha was manufactured during 1999-2000 season. From the payment receipts made to Shri R.D.Rawal and Shri Nalin Rawal, it is evident that a sum of Rs.2,95,000/- was paid to them between Jan. 2000 to March 2000.
When viewed in this context, it appears that permission for installation of Katha Bhatti was granted to the complainant for the year 1999-2000 season and the complainant may have manufactured Katha during that season or may have sold the Khair wood to some outside agency without proper record and a case has now been fabricated with malafide intention.
Referring to para 14.6. to the surveyors report, the counsel has further contended that the inconsistencies in the dates mentioned therein reveal that these reports have been prepared at one go, thus, exposing the design of the complainant. Concluding his arguments, learned counsel has submitted that the entire incident has been well planned and the complainant has failed in his attempt to dovetail all the fabricated evidence and by his own conduct has been exposed to the reality that there was no finished product as claimed at the site on the date of the fire and the claim has, therefore, been rightly repudiated.
To us, it appears to be a case where, no doubt an incident of fire has taken place but with regard to the claim of the complainant that 60.6 qtls. of manufactured Katha was burnt or destroyed in the fire raises serious doubts, as would be gathered from analysis of evidence that follows.
To our mind, the complainant has from the very beginning missed out on a number of counts to make out a case, e.g. the agreement purported to have been entered into with the owners of Khair trees has been made on plain paper and it has been executed at Chandigarh rather than at Nalagarh in H.P. and it has been signed only by Shri R.D.Rawal. It bears no signature of Shri Nalin Rawal, who is the other co-owner.
While, it contains a clause that the felling and payment of the first lot shall be completed by Dec., 2000, details of the number of trees felled by that date and the payment made to the owners have not been indicated any where.
In fact there are no details as to when and what amount was paid to the owners of the trees and for how many trees.
There are also inconsistencies in the record with regard to whether the permission which was obtained from the Forest Department for the year 1999-2000 was availed or it was only a carry forward of the permission to the next year i.e. 2000-2001. This casts a serious doubt with regard to the genuineness of returns of Forest Dept. filed by the complainant.
Even, if it is accepted that certain number of Khair wood trees have been felled, they must have been cut into pieces of suitable length for being transported to the site of the Bhatti where it was to be processed. The complaint does not mention anything with regard to the transportation of the logs from the site ; whether it was undertaken by trucks or transported through trolleys of the tractors and from whom did he obtain the services for such transportation and the consideration there of.
With regard to the electricity connection also, it is difficult to believe that it would have caused any short circuit as the final bill exposes the design of the complainant when the due date of the final bill has been stated as 21.6.2001 whereas the fire incident is on 20.6.2001 which, as pointed out by the learned counsel for the opposite party proves that the complainant had got the electricity supply discontinued/disconnected much prior to the date of the fire. It is also difficult to believe that the electric meter and the wires would have completely got burnt leaving no semblance of any remains on the spot specially when we find from the photographs that the wooden posts and the planks used for making shelves are still visible and partially burnt. The theory of fire of low intensity arising out of the burning of Sarkanda grass used on the roof of thatched huts appears more probable specially when the photographs reveal uniform layer of ash.
It has been stated in complaint that the finished products were stored in wooden boxes and gunny bags. While one can understand that gunny bags will get burnt instantly, wooden crates would not get burnt so quickly. It is to be noted that the manufacturing of Katha requires huge quantity of sand as the liquid Katha is required to be spread over beds of sand over which filter cloth is spread for the purpose of draining out the access water from the liquid Katha. The process also requires huge quantity of water as Khair wood is cut into small pieces and, thereafter, boiled in water. When such huge quantity of water and sand are required for the processing of Katha, the complainant must have stored sufficient quantity of water as well as sand in the premises. There is no explanation as to why the two Chokidars who were present at the site when the fire occurred at about 5.00 a.m. did not make any effort to douse the fire by either sprinkling water or cover it with sand at the initial stage.
The whole story also appears to have been concocted since as per letter dated 29.12.2000 (at page 16 of the paper book) from the Divisional Forest Officer (DFO) Nalagarh according permission for installation of Katha Bhatti at Village Behal, the complainant was given permission for installation of Katha Bhatti consisting of not more than 64 Handis. The complainant, under the circumstances, should have installed a large number of Handis to process the Khair wood and the Handis would not have got totally burnt without living any trace of their existence. The falsity of the claim also gets established from the facts that the Police report at page 33 of the paper book only 4 to 5 (perhaps) Handis were found for processing the Khair wood. This discrepancy indicates that only a small exercise was undertaken to manufacture a small quantity of Katha so as to fabricate a story of a huge fire destroying a large quantity which never existed.
In so far as the alleged quantity of Katha claimed to have been destroyed in the fire is concerned, we again notice that the complainant has not been consistent with regard to the same. In the complaint, he alleges that the entire quantity of 60.6.qtls. of Katha was burnt whereas his own Munshi had deposed before the Police Authority that there was 26 qtls. of Katha which got destroyed in the fire.
Even otherwise, no prudent business man will keep such a huge quantity of finished product at the processing site which by no means can be presumed to be safe for storing such a valuable item.
We have carefully perused the evidence specially the photographs produced by the opposite parties and find that the wooden logs/posts on which the huts were constructed are still standing, though partly burnt. No Handi/pots used for boiling the Khair wood is seen on the photographs whereas the complainant in his written submission at page 112 of the paper book wrongly asserts as under
:-
It is submitted that the learned surveyor has wrongly pointed out in his survey and assessment report that after the incidence there was standing wooden posts of the huts at the spot. It is specifically submitted that the intensity of the fire was so high that nothing has been left after the incidence, except the layer of ash.
Thus, it cannot but be said that there was no such burning of huge quantity of finished product but it was only a stage managed incident of fire.
Another aspect which contribute to the suspicion of a concocted story relates to the resources under the command of the complainant to undertake such a huge business. While he has opened an account with the State Bank of Patiala and obtained a Bank credit of Rs.80,000/-, it is surprising that he has not conducted any transaction from the said account. On the other hand, when asked to clarify this point, the complainant has stated that he had obtained a loan of Rs.20 lakhs from 9 persons known to him and each one of them has extended him loan ranging from 2 to 2.5 lakhs. This explanation cannot be accepted on its face value since, it cannot be believed that a person will extend such a huge loan without any benefit to him and without any receipt or terms of the return. The complainant has not produced any such agreement. It has also not been explained as to whether the persons who extended the loan were so well endowed as to spare such huge amounts to him on his request as villagers are normally not found to be so rich as to keep huge amount of cash. Besides, the complainant has failed to produce any account when he received the amount and how he utilised them. Lastly, the theory of labour contractor having been engaged from such a far away place as from Kashmir sounds improbable, if not totally unbelievable.
In the totality of these circumstances, we are of the view that the complainant has tried to fabricate a claim which he has failed to establish. Under the circumstances, we find no merit in the complaint and the same is, accordingly, dismissed with no order as to cost.
Sd/ (K.S. GUPTA) (PRESIDING MEMBER) Sd/ (S.K. NAIK) MEMBER St/19