State Consumer Disputes Redressal Commission
United India Insurance Company Limited vs Naryani Herbals on 12 January, 2017
Daily Order FIRST ADDITIONAL BENCH STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB SECTOR 37-A, DAKSHIN MARG, CHANDIGARH. First Appeal No.582 of 2014 Date of Institution: 22.05.2014 Order Reserved on : 11.01.2017 Date of Decision: 12.01.2017 1. United India Insurance Company Ltd., Branch Sangrur, Sangrur through its Branch Manager. 2. United India Insurance Company Ltd., Registered & Head Office, 24, Whites Road, Chennai 600 014 through its authorized signatory. Now both through Smt. Sunita Sharma, Deputy Manager, United India Insurance Co. Ltd., Regional Office, SCO 123- 124, Sector 17 B, Chandigarh. Appellants/Opposite parties Versus M/s Naryani Herbals, C-18, Industrial Focal Point, Ram Nagar, Sibian, Sangrur through it Partner Pankaj Khosla. Respondent/Complainant First Appeal against order dated 15.04.2014 passed by the District Consumer Disputes Redressal Forum, Sangrur. Quorum:- Shri J. S. Klar, Presiding Judicial Member.
Shri.J.S Gill, Member Shri. H.S. Guram, Member Present:-
For the appellants : Sh.D.P Gupta, Advocate For the respondent : Sh.I.S Ratta, Advocate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . J.S KLAR, PRESIDING JUDICIAL MEMBER :-
The appellants of this appeal (the opposite parties in the complaint) have directed this appeal against order dated 15.04.2014 of District Consumer Disputes Redressal Forum Sangrur, accepting the complaint of respondent of this appeal (the complainant in the complaint) by directing appellants to pay the amount of Rs.9,45,439/- paid less to the complainant with interest @ 9% per annum from the date of filing the complaint till actual realization, besides amount of Rs.10,000/- as compensation and litigation expenses. This appeal has arisen out of the order dated 15.04.2014 of District Forum passed in Complaint No. 390, instituted on 23.08.2013, decided on 15.04.2014.
2. The complainant has filed the complaint U/s 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the OPs on the averments that complainant is partnership firm consisting of Mrs. Dimple Bhalla, Ram Pal Bhalla and Pankaj Khosla being the partners. It deals in manufacturing of Herbal Medicines. The unit is situated in total area of 9000 sq. ft. The complainant is consumer of OPs as building of the complainant, plant, machinery and its accessories, stock has been insured with the OPs, vide cover note no. 89599, 947053, 947052 dated 16.12.2011. The complainant paid premiums of Rs. 3640/-, 5537/-, 8053/- respectively to OPs to indemnify the loss for the period from 31.12.2011 to 30.12.2012. The OPs have not supplied the policy containing the terms and conditions to complainant. The cover note/policy the risk covered are fire and allied perils on stock of all kinds of herbal shampoo, stock of raw/semi/finished stock, packing material stored in factory premises and to building also. On 24.09.2012, unfortunately damage was caused to building and material of the complainant due to spread of fire. On 24.09.2012 at about 8.15 am, Pankaj Khosla partner of the company noticed smoke/fire flames from backside of the block. He noticed that window mirror were broken and stock has been badly damaged. The fire was put out with the help of five persons of fire fighting equipments and water pipes. The intimation was given to insurance companies and police station about the damage caused by the fire to building and of material. DDR No. 34 was lodged at police station Sangrur on 24.09.2012. The cause of fire was stated to be short circuit and accidental in nature. Newspaper report was also published in Daily Ajit dated 29.09.2012 and Jagran dated 29.09.2012. The complainant has filed a claim about the loss of above said incidence. Total loss of stock was of Rs. 24,81,000/- as per balance sheet of bank statement and total loss of building was Rs.12,00,000/-. The stock bill, DDR and other relevant material were supplied to OPs. The OPs appointed the surveyor of the company to assess the loss and factual position of the spot. The OPs only paid Rs.8,22,697/- of the stock and Rs.85,659/- of building. The OPs have deduct 20% to 50% of different bills without any verification of the bill. The loss of Rs.24,81,000/- on account of damage of stock and loss of approximately Rs.12,00,000/- on account of building loss has been caused to the complainant. The complainant claimed only Rs.15 lac on account of remaining claim of stock and Rs.4 lac on account of remaining claim of the building loss. The OPs requested number of times to make the payment of the claim of actual loss caused to building and stock, but all in vain. The complainant has, thus, filed complaint praying that OPs be directed to pay Rs.15 lac for remaining amount of claim of loss to stock and Rs. 4 lac for remaining amount of claim of damage to the building. The complainant further prayed to pay Rs.50,000./- for mental harassment and Rs.25,000/- as litigation expenses.
3. Upon notice, OPs appeared and filed written reply and contested the complaint of the complainant vehemently. It was averred that polices were issued to the account of the complainant by the Bank at branch office Samana, but complainant has not impleaded Punjab National Bank, branch office Samana as OPs and hence complaint on this score is liable to be dismissed. The complaint is alleged to be bad for mis-joinder of necessary parties. The complainant has received full and final settlement without any protest, hence complaint is not maintainable under law. The complainant has concealed material facts and has not come to the Consumer Forum with clean hands. On merits, it was averred that at the request of the PNB Main Branch, Sangrur, account of M/s Narayni Herbals, the branch office of Samana insured stock for Rs.33 lac, building for Rs.25 lac and plant and machinery for Rs.23 lac w.e.f. 31.12.2011 to 30.12.2012 , subject to terms and conditions of the policy. The terms and conditions of the policy were immediately supplied to insured. The OPs / company on receiving intimation, appointed Sh. N. Kumar Surveyor Pvt. Ltd Surveyor / Loss Assessor, Investigator to assess the loss. The said surveyor assessed loss of Rs.9,72,736/- regarding stock and building after deducting excess clause @ 5% from Rs.10,23,933/-, vide report dated 26.03.2013. The surveyor assessed Rs.9,28,273/- regarding stock material and assessed Rs.23940/- regarding Raktoner Syrup instead of Rs.2394/-. After deducting excess amount, the net loss was Rs.9,54,315/- of stock and building. The divisional office of Samana Branch assessed the loss of Rs.8,22,697/-. Pankaj Khosla partner of the complainant firm also gave his consent to accept the amount of Rs.8,23,000/- as full and final settlement of the claim, vide consent letter dated 27.05.2013 by his own handwriting and signed by him. The complainant is not entitled to claim any compensation regarding stock from OPs, as OPs/company already paid the above said amount on 30.05.2013, which was received by the complainant without any protest. As regards building, the complainant concern submitted report of Er. Ajnesh K. Malik approved Surveyor, Valuer and Investigator. The said valuer assessed Rs.2,16,000/- regarding loss of the building, vide report dated 02.10.2012. The Surveyor N. Kumar approved the above said amount i.e. Rs.1,94,000/- after deducting Rs.22,000/- regarding depreciation @ 19% from Rs.2,16,000/-. The valuer Er. Ajesh K. Malik also assessed the total value of the building at Rs.50.70 lac, but the same was insured for Rs. 25 lac only, which was under insurance. As per terms and conditions of the policy, the surveyor assessed the loss of Rs.95660/- after applying average clause thereto. The OPs/company paid Rs.85659/- after deducting excess clause of Rs.10,000/- from the above said amount and same was accepted by the complainant/firm in full and final settlement without any protest. The surveyor deducted 20% to 50% on different bills, as there was expiry in Ayurvedic/Medicine. He also deducted the amount of Rs.1,92,000/- and Rs.1,40,000/- regarding amount of sanitary napkins as the same were not related to the business. It was denied that complainant suffered Rs.24,81,000/- regarding stock and Rs.12,00,000/- regarding building. Any deficiency in service on the part of OP was vehemently denied and it prayed for dismissal of the complaint.
4. The complainant tendered in evidence affidavit of Pankaj Khosla Partner of Complainant Firm Ex.C-1 along with copies of documents Ex.C-2 to Ex.C-8. As against it; OPs tendered in evidence copies of documents Ex.OP/R-1 to Ex.OP/R-12 and closed evidence. On conclusion of evidence and arguments, the District Forum Sangrur accepted the complaint of the complainant by virtue of order dated 15.04.2014. Dissatisfied with the order of the District Forum Sangrur dated 15.04.2014, the OPs now appellants, carried this appeal against the same.
5. We have heard learned counsel for the parties and have examined the record of the case.
6. The District Forum Sangrur found that loss of the stock of building is Rs.1659,795/- and loss to the building is Rs.1,94,000/-, totaling Rs.18,53,795/-. The OPs paid sum of Rs.8,22,697/- on account of the stock and Rs.85,659/- on account of building i.e. total Rs.9,08,356/-. The OPs have, thus, paid Rs.9,45,439/- loss to the complainant. The District Forum Sangrur accordingly directed in its impugned order dated 15.04.2014 to OPs to pay Rs.9,45,439/- to complainant along with interest @ 9% p.a from the date of filing the complaint till actual payment. This order passed by District Forum has been assailed in this appeal by OPs now appellants. In fact, the dispute between the parties pertains to the quantum of compensation in this case only. The fact that complainant took insurance policy from OPs by paying premium is not in dispute in this case. The complainant alleged that damage was caused to building due to eruption of fire on 24.09.2012. Similarly, the fact that DDR No.34 dated 24.09.2012 was lodged about this accident is not in dispute. The complainant claimed total loss of Rs.24,81,000/- in this incident of fire, as per balance sheet of the bank statement and total loss of the building as Rs.12 lac. The surveyor was appointed by OPs, who assessed the loss of Rs.8,22,697/- for stock and Rs.85,659/- for building. The grievance of the complainant is that OPs deducted 20% to 50% on different bills without any verification thereof. The total loss of building has been lodged by the complainant to be Rs.12 lac, out of the total loss of Rs.24,81,000/-. The complainant claimed amount of Rs.15 lac in this complaint from OPs. The version of OPs is that policy was taken by the complainant from Branch office of Samana, stock was insured for Rs.33 lac, building for Rs.25 lac and plant and machinery for Rs.23 lac w.e.f. 31.12.2011 to 20.12.2012, subject to terms and conditions of the policy.
The surveyor was appointed by OPs, who assessed the loss of Rs.9,72,736/- regarding stock and building after deducting excess clause @ 5% from 10,23,933/-, vide report dated 26.03.2013. The surveyor assessed Rs.9,28,273/- for stock, but inadvertently assessed Rs.23,940/- on account of Raktoner syrup instead of Rs.2394/- only. The net loss after deducting excess loss is of Rs.9,54,315/- of stock and building only. The submission of the OPs is that report of Engineer Ajesh K. Malik is on the record assessing the loss of Rs.2,16,500/- for building, vide report dated 02.10.2012. The Surveyor N. Kumar approved above said amount of Rs.1,94,000/- after deducting amount of Rs.22,000/- regarding depreciation @ 10% from Rs.2,16,000/-. The valuer Ajesh K. Malik assessed the total value of building at Rs.50.70 lac, but same was insured for Rs.25 lac only, which was under insurance. The surveyor assessed the loss of Rs.95,660/- only. The affidavit of the complainant Pankaj Khosla partner of the complainant/Firm is Ex.C-1 in support of his pleaded case regarding actual loss of Rs.24,81,000/- for damage of stock and Rs.12 lac for loss of building. The complainant claimed balance of Rs.15 lac for stock and Rs.4 lac for building loss. Ex.C-2 is letter dated 01.07.2013 addressed to complainant on behalf of Narayan Herbels for supplying of particulars of the loss, as assessed by OPs along with report of Surveyor N. Kumar Surveyors Pvt. Ltd, as appointed by OPs to assess the loss. The surveyor in his report assessed the loss of Rs.9,72,736/- after adjusting the excess clause @ 5% and applying under insurance clause, as well. Photographs are also part of this report. Ex.C-3 is cover note for policy taken by the complainant for building operative from 31.12.2011 to 20.12.2012. Ex.C-4 is cover note for building boundary wall and plant machinery operative from 31.12.2011 to 30.12.2012. Ex.C-5 is another cover note of the insurance policy covering stock of the complainant for the period 31.12.2011 to 30.12.2012. Ex.C-6 is copy of DDR dated24.09.2012. Ex.C-7 is the newspaper report. Ex.C-8 is computer generated entries shown in the statement of account of the complainant with Punjab National Bank, Sangrur. This is only evidence relied upon by the complainant in support of the averments.
7. OPs relied upon terms and conditions of the policy Ex.OP/R-1 and Ex.OP/R-2. Ex.OP/R-3 is intimation sent to Ops by complainant on 24.09.2012 regarding eruption of fire. Report of surveyor Er. Ajesh K. Mlaik is Ex.OP/R-4 on the record. Ex.OP/R-5 is report of N.Kumar Surveyors Pvt. Ltd have been examined by us with the able assistance of counsel for the parties. The surveyor assessed the net assessed loss of Rs.9,72,736/- in the report after adjusting excess clause under insurance to building. This amount was recommended to the underwriters for consideration. Ex.OP/R-6 is certificate signed by the partner of the complainant-company regarding amount of Rs.8,23,000/- for accepting the complaint and expressing satisfaction therewith. Ex.OP/R-7 is the statement of account and Ex.OP/R-9 and Ex.OP/R-10 are fire claim note. The affidavit of Ashok Mahajan Director N. Kumar Surveyors Pvt. Ltd Ex.OP/R-11 on the record. Affidavit of Meena Kumari authorized signatory United India Insurance Co. Ltd Branch Office Samana is Ex.OP/R-12.
8. From evaluation of above referred evidence on the record and hearing the arguments of counsel for the parties, we find that the complainant could not establish it on the record by means of any chartered accountant's report or other cogent evidence on the file that the loss to the stock and building was more than as assessed by the surveyor. The complainant mainly relied upon affidavit of Ex.C-1, report of surveyor and statement of account only. As against it, OPs appointed surveyor, who is appointed under the Insurance Act statutorily and is licensed by the IRDA. The report of the surveyor has generally to be accepted unless there is strong evidence to the contrary on the record. We have not come across any cogent evidence adduced by the complainant to falsify the report of the surveyor in this case. In the circumstances of the case, we have no option what to accept the report of the surveyor and valuer in this case. The report of the surveyor has generally to be accepted and we do accept the same by relying upon the report of the surveyor. It is a valuable piece of evidence and has to be believed unless it is rebutted on the record. We hold that after applying under insurance clause, average clause etc, the surveyor rightly found the net assessed loss as Rs.9,72,736/- payable to the complainant in this case for loss, which took place in the incident of fire. The District Forum ignored the report of the surveyor without any valid evidence on the record to the contrary. The finding of District Forum is vitiated for discarding the report the surveyor without a valid reason.
9. The next submission of counsel for the appellant is that the claim has been finally settled between the complainant and OPs by virtue of document Ex.OPR/6 dated 27.05.2013 and hence, relationship of consumer and service provider comes to an end thereby. The counsel for appellant relied upon host of the authorities in this case i.e. Yogesh Kumar Sharma (Dr.) versus National Insurance Company Ltd reported in 2013(2) CPJ 178, Vijay Stationers versus United India Insurance Co. Ltd, reported in 2013(1) CPJ 637 and K.B Sport Wear Goods World Wide versus New India Assurance Co. Ltd reported in 2013(1) CPJ 73, judgments of National Commission New Delhi in this case. We find that purported document discharge voucher Ex.OP/R-6 contained the signatures of the partners of the complainant with a huge space from the writing below to the signatures, where the writing comes to an end. The signatures should have been appended thereunder, but a huge space has been left, which is not explained. Consequently, we find force in the submission of the counsel for complainant that signatures were taken earlier and then discharge voucher was converted from blank signatures of the complainant. We, thus, do not attach any significance to this discharge voucher on account of huge space between the signatures of complainant and other writing on the record. We have, thus, come to conclusion that surveyor is appointed under IRDA and his report carries credibility because it has not been refuted by the complainant by contrary evidence on the record. There is neither any stock statement by complainant nor chartered accountant report nor any other credible evidence to prove the falsity of the report of the surveyor. We, thus, hold that the net loss in the fire after considering average clause, under insurance clause etc was Rs.9,72,736/- only, as assessed by the surveyor. The order of the District Forum to the contrary is not sustainable in the eyes of law in this appeal. Consequently, we partly accept the appeal of the appellants by holding that complainant now respondent in this appeal are entitled to recover the amount of Rs.9,72,736/- from OPs now appellants, as net loss assessed by the surveyor, vide Ex.C-2. We affirm the order of the District Forum with regard to composite compensation and costs of litigation.
10. We, thus, modify the order of the District Forum by directing the appellants/OPs to pay Rs.9,72,736/-. The appellants/OPs are at liberty to deduct the amount of Rs.9,08,356/-, which has been received by the complainant having been already paid by the OPs, from the above said awarded amount of Rs.9,72,736/-.
11. As a sequitur of our above discussion, we partly accept the appeal of the appellants by modifying the order of the District Forum, as referred to above.
12. The appellants had deposited an amount of Rs.25,000/- with this Commission at the time of filing the appeal and further deposited Rs.4,52,720/- in compliance of the order of this Commission. Registry is hereby directed to remit the amount of Rs.64,380/- (i.e. difference of Rs.9,72,736/- minus Rs.9,08,356/- already paid) to the complainant /respondent with interest @ 9% p.a from the date of loss i.e. 24.09.2012 till actual payment. Remaining amount be remitted to the appellants/OPs by the registry within 45 days from receipt of the copy of this order
13. Arguments in this appeal were heard on 11.01.2017 and the order was reserved. Copies of the order be communicated to the parties as per rules.
14. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(J. S. KLAR) PRESIDING JUDICIAL MEMBER (J.S GILL) MEMBER (H.S GURAM) MEMBER January 12, 2017 (ravi)