State Consumer Disputes Redressal Commission
Jayesh Dhoot, & Dhoot Auto Private Ltd vs The Oriental Insurance Co. Ltd on 25 January, 2024
BEFORE THE RAJASTHAN STATE CONSUMER DISPUTES
REDRESSAL COMMISSION,
BENCH, JODHPUR
COMPLAINT CASE NO: 12/2012
Jayesh Dhoot, Director, M/s Dhoot Auto Private Ltd., 78-A, Pratap
Nagar, Soorsagar Road, Jodhpur.
COMPLAINANT
Vs.
The Oriental Insurance Co. Ltd. through Divisional Manager, 637-B,
3rd Floor, Bhansali Tower, Residency Road, Jodhpur.
RESPONDANT
Date or Argument: - 22.11.2023
Date of Order: - 25.01.2024
Before:
Hon'ble Mr. Justice Devendra Kachhawaha- President
Hon'ble Mr. N.S. Meratwal- Member (Judicial)
Present:
Mr. Anil Bhandari learned counsel for the complainant
Mr. Mukul Singhvi learned counsel for the non-complainant
BY THE STATE COMMISSION (PER HON'BLE MR. N.S.
MERATWAL, MEMBER JUDICIAL)
Complainant Jayesh Dhoot has presented the complaint against the
Oriental Insurance Company Ltd, the brief facts of which are as under:-
1.The complainant was doing business of oil, grease and lubricant from the last 13 years. He is an authorized dealer of M/s Castrol Oil Ltd. since 1998. All the items from M/s Castrol Oil Ltd. were directly purchased by Dhoot Auto Pvt. Ltd. He is maintaining the stock of around One Crore in his business premises all the time. On 16.07.2009 complainant had obtained fire insurance policy through cover note for the period from 16.07.2009 to 15.07.2010 in which all kinds of lubricant oil, gear oil, break oil and grease were insured to the tune of Rs. 97,80,000/-. Apart from this computer set and printer were insured to the tune of Rs.80,000/, fixed furniture was also insured to the tune of Rs. 1,00,000/- and generator set was also insured to the tune of Rs. 40,000/-.
2. That on 09.12.2009 at 9 P.M. unfortunate incident of fire occurred in the business premises of complainant in which all stock of oil, grease and lubricant were burnt. Fixed furniture, computer and other accessories lying in the showroom were also badly damaged. Immediate information was given to fire brigade which could control the fire difficultly. Complainant also lodged first information report with Police Station, Pratap Nagar on the same day. Information of incidence was also made to insurance company on 10.12.2009 in which it was informed that all the stock worth Rs. 92,50,669/- had fully been destroyed. Stock worth Rs. 2,91,180/- was billed for the parties on 09.12.2009 before closing business hours but were to be supplied next day which was also destroyed in the fire. As such Rs. 95,41,787/-. were claimed, apart from Rs. 1,00,000/- for fixed furniture and fixtures and Rs.24,500/- for computer and printer etc.
3. Insurance company appointed V.K. Kharbanda as surveyor and loss assessor to whom all the necessary documents were provided. The complainant also provided documents regarding parties whom items were billed but not delivered along with their confirmation regarding non-receipt of material. Apart from this complainant also submitted the letter of M/s Castrol Oil Ltd. along with the stock on 09.12.2009 with the stock list as all the purchases and sale was intimated to M/s Castrol Oil Ltd. on daily basis. M/s Castrol Oil Ltd. confirmed that on 09.12.2012, the complainant was having stock of 55173.92 liters.
4. The complainant satisfied all the quarries raised by the surveyor appointed by the respondent insurance company since all the documents and computer in which data was stored as regard to the sale and purchase of stock was burnt to ashes. The complainant submitted the proforma trading account prepared by the chartered accountant of the complainant, according to which as on 09.12.2009 total stock of oil, grease and lubricants was for Rs.8114622/- (without VAT) was lying in the showroom of the complainant. Surveyor while calculating the loss has found and admitted this stock on the date of fire. The claim of the complainant was not settled for months together. The complainant has almost on every second day sent e-mails to respondent insurance company to settle the claim of the complainant as the financial condition of the complaint was deteriorating day by day. In absence of claim being settled by the insurance company interest on borrowed amount also increasing day by day. As the claim was not settled, complainant has to resign from the dealership from the Castrol Oil Ltd. due to lack of funds as the complainant was not in a position to pay the money.
5. In the month of January 2012 complainant was informed by the respondent insurance company that surveyor has assessed the loss of the complainant to the tune of Rs. 48,19,069/- only contrary to the claim of Rs. 96,66,287/- which was claimed by the complainant. After receipt of the letter, the complainant was shocked. At first instance the complainant had refused to accept the claim made by the surveyor but after obtaining the report of the surveyor in the month of February, 2012, the complainant personally visited the office of the respondent insurance company and tried to satisfy them that all the stock of oil and lubricants was directly purchased from Castrol Oil Ltd. and stock was maintained by them. The respondent has send the voucher of the full and final settlement to the complainant and threatened that if the full and final voucher is not signed then not a single penny would be paid to the complainant and he may go to the court of law. The complainant was in dire need of funds therefore, he was forced to sign full and final settlement voucher, even without protest under the coercion of respondent insurance company.
6. After signing full and final settlement voucher, complainant sent a notice to respondent insurance company on 20.02.2012 through registered post which was duly served to the respondent on 22.02.2012 but the respondent transferred the amount in his account and did not reply to notice or made payment of further sum claimed in the notice.
7. The survey report submitted by surveyor is ex-facie illegal, arbitrary contrary to the law and material available on record, therefore, the same is liable to be quashed and set aside. The respondent company has not settled his claim for more than 3 and quarter years which is itself a deficiency in service on the part of them. According to the instruction of I.R.D.A the claim has to be settled within 1 month from the date of incident but insurance company took about 3 years. Insurance company had sat on the survey report for more than 1 year, the insurance company should have submit the voucher to the complainant soon after the submission of survey report but the same was offered to him in Feb. 2012 which is a grave deficiency on the part of the respondent.
8. In survey report the surveyor has fallen in deep illegality while calculating the loss of the complainant on the basis of the profit of the last two previous years whereas on perusal of insurance cover note it can be revealed that it was a insurance for the stock of the insured to the tune of Rs. 97,80,000/- and not the profit. The surveyor has admitted the existence of the stock to the tune of Rs.81,14,622/- but surprisingly taken the previous two years profit as average and assessed the stock to the tune of Rs. 52,53,198/- which is contrary to the basic principle of insurance. The average clause is applicable only where the insured has undervalued the stock and has insured the stock less than its actual value.
9. The surveyor has segregated the stock of Rs. 29118/- which was lying in the premises of the complainant. Traders confirmation was given of the stock which was not delivered to the shop keepers. The surveyor has fallen in deep illegality in calculating that above mentioned stock is not covered in the policy as the same was held with the complainant in trust. The sale of item is not completed until and unless delivery of same was made to buyer and payment is received. Therefore, the stock of Rs. 291118/- should be considered for awarding claim to the complainant as the buyer will either ask the payment back or ask the items in lieu of the same. The surveyor ought to have either relied fully upon the proforma trading account prepared by the chartered accountant of the complainant or not to have relied on the same totally. The surveyor cannot be allowed to pick and choose figures according to his wish. Therefore, the survey report submitted by surveyor deserved to be quashed and set aside in toto and the amount claimed by the complainant to the tune of Rs. 9666287/- deserves to be upheld.
10. The surveyor has concluded that furniture, fixtures and computer are under insured, whereas both the items were insured for Rs.80,000/- and 1,00,000/- respectively. Insurance company had insured these articles just three months before the fire incidence on 9.12.2009 as such no depreciation could have been deducted from these items and full value should have been provided to the claimant.
11. It is therefore, been prayed to allow the complaint and loss of remaining amount of Rs.4408259/- towards stock Rs.1,00,000/- for furniture and fixtures and Rs.24500/- for the loss of computer and printers along with the 18% interest from the date of loss of fire.
12. The respondent has submitted reply with averments that complainant did not fall in the definition of consumer under section 2(d) of the Consumer Protection Act, 1986 and Insurer does not fall in the definition of service provider under section 2(o) of the Consumer Protection Act,1986. Hence, the complaint is not maintainable. The surveyor and loss assessor engaged by the answering respondent undertook a detailed survey and assessed the loss to the tune of Rs.48,19,069/- to the complainant. The complainant has accepted the aforesaid amount of loss without any protest vide full and final settlement voucher. Since the payment has been accepted without any protest, the complainant is estopped by his conduct and cannot be said to have any legitimate grievance with regard to compensation given by the respondent. The complainant has developed a concocted story to the effect that he was pressurized to accept the full and final settlement which is not true. No material has been produced in support of such reckless allegations and the same are on the face of it, false and baseless. The complainant is the director of the company whereas the insurance was in the name of Dhoot Auto Pvt. Ltd. as such the complaint filed by Jayesh Dhoot in his personal capacity and not impleading the company as complainant is not maintainable and is liable to be dismissed. It is submitted that survey report is just and proper and does not suffer from any irregularity or miscalculation. Method adopted by the surveyor for ascertaining closing stock as on 09.12.2009 is just and reasonable and does not suffer any infirmity. Allegations with regard to the threatening given to the complainant for signing the full and final payment voucher by respondent insurance company are empathetically denied. If there be any delay in making the payment of the claim the complainant can at best be said to be entitle for the interest. It is submitted that insurance is not done with regard to the book stock. It is with respect to the actual stock physically lying in the premises and it is the actual loss of stock which is required to be ascertained. Otherwise there would be no need of conducting a survey and loss assessment. The stock in books as mentioned in the proforma trading account is not relevant. It is the balance sheet of the insured person for the year ending on 31.03.2010 which shows the opening stock as on 1.04.2009 as Rs. 46,11,914/-. The copy of the documents submitted before Income Tax Department by the insured person duly certified by Chartered Accountant is produced herewith.
13. The stock of Rs. 2,91,118/- is not liable to be cover under insurance policy as the same was stock held in trust and it was not a stock which was unsold. It is wrong to contend that sale of item is not complete until delivery. Merely because stock was lying in the premises does not necessarily mean that the same would be covered in the insurance policy. It is only the unsold sock which is required to be considered for the purpose of insurance. It is submitted that amount of stock as mentioned in the trading account has not been considered as it is only a stock in books. The surveyor has considered the balance sheet for the relevant year (2009-10) submitted by complainant to the Income Tax Department, It is therefore prayed to dismiss the complainant. The complainant has submitted following citations:-
14. 1. New India Assurance Ltd. Vs. Pradeep Kumar IV (2009) CPJ (SC)
2. United Insurance Co. Ltd. Vs. Uma Polymers Ltd.
MACD 2019 IV (1799)
3. Flowtex Products Vs. United India Assurance Co. Ltd.
III 2023 CPJ 292 (NC)
4. Shree Dhain Auto Transport Corporation Vs. United India Insurance Co. Ltd.
I(2021) CPJ 215 (NC)
5. Sumit Kumar Saha Vs. Reliance General Insurance Co. Ltd. I (2019) CPJ 105 (SC)
6. Dharmendra Goel Vs. Oriental Insurance Co. Ltd.
III (2008) CPJ 63 (SC)
7. National Insurance Co. Ltd. Vs. Pratap Textiles Mills Pvt. Ltd. I (2004) CPJ 50 (NC)
8. Jodhpur Sahkari wholesale Bhandar Ltd. Vs. The new India Assurance Co. Ltd. and ors.
Complaint No. 9/2013 Rajasthan State Consumer Commission
9. Maya Appliances Private Ltd. Vs. United India Insurance Ltd. I (2007) CPJ (3)
15. The respondent has submitted following citations:-
1. Khatima Fibers Ltd. vs. New India Assurance Co. Ltd. and ors. Civil Appeal No. 9050 of 2018
2. M/s MCGD Zines Pvt. Ltd. vs. United India Insurance Co. Ltd.
RFA No. 644/2017 (Delhi)
16. Before adjudicating on the merits of the case, an important factual aspect of this case needs attention that the judgment on the complaint in this case was passed by this Commission on 11.06.2021 dismissing the complaint of the complainant on the ground that since the complainant has received the claim amount of Rs. 48,19,069/- in full and final settlement of the claim voluntarily, the complainant could not claim the remaining amount of his claim on the basis of notice given to the insurance company. On this ground alone the complaint was dismissed against which First Appeal No. 764/2021 was presented by Insurance Company before Hon'ble National Consumer Disputes Redressal Commission in which order dated 11.06.2021 of this commission was set aside and the matter was remanded back to this commission for decision on merits on the essence of the complaint.
17. In compliance of order of NCDRC we have heard the arguments of both the parties and perused the record.
18. Before proceedings to deal with the arguments of the parties, we may first look at the documents submitted by both the parties in the file.
19. Annexure 1 is certificate by Castrol Oil Ltd. to the effect that M/s Dhoot Auto Pvt. Ltd were their authorized distributor from Janurary1998 to May 2011. It has also been certified that all purchases of Castrol and BP branded lubricants and greases by M/s Dhoot Auto Pvt. Ltd have been done directly from Castrol India Ltd.
20. Annexure 2 is fire provisional cover note which has been issued on all kind of lubricants oil, gear oil, brake oil, goods having flash point above 175 FFI. Stock has been insured for 97,80,000/-, generator set for 40,000/- furniture, fixtures & fitting for 1,00,000/- , computer set printer for 80,000/- and in total insurance cover of One crore was issued.
21. Annexure 3 is report of fire brigade office dated 9.12.2009.
22. Annexure 4 is first information report given by complainant company to SHO Pratap Nagar, Jodhpur intimating fire on 9.12.2009 at 8:30 P.M. in their premises.
23. Annexure 5 is letter of V.K. Kharbanda and associates dated 17.12.2009 to complainant company requiring to send the documents mentioned therein.
24. Annexure 6 is reply of complainant company to Sh. V.K. Kharbanda of his later dated 2.03.2010 along with details of purchase from 1.10.2009 to 9.12.2009.
25. Annexure 7 to 25 are letters from the buyers of complainant company that they have not received material from complainant company against bill dated 9.12.2009.
26. Annexure 26 is receipt of complainant dated 18.12.2009 having received a sum of Rs. 1,50,000/- from Abdul Gani towards water mix oil burnt during fire for 50 barrel @3000/- per barrel.
27. Annexure 27 is certificate from Castrol India Ltd. certifying that on 9.12.2009 M/s Dhoot Auto Pvt. Ltd was having a stock of 55,173.92 liters of stock as per daily data received from them along with list of closing stock as on 09.12.2012, according to which 55,173.92 liters of stock was there in the complainants company on 9.12.2009. A list of billing price of stock as on 9.12.2009 has also been enclosed with above letter.
28. At page 62 of the document trading account for Dhoot Auto Pvt.
Ltd as on 9.12.2009 has also been enclosed which shows opening stock of Rs. 46,11,914/-, purchases of Rs. 7,30,24,838/- and sale of Rs. 7,53,68,132/- and the closing stock has been shown at Rs. 8114621.96/- generating gross profit of Rs. 5846001.76/-. This trading account has been certified by Chartered Accountant of the complainant. A list of closing stock as on 09.12.2009, from page 63 to 67 has also been enclosed showing cost price of the goods shown as closing stock along with quantity in liters. Cost price of goods has been shown at 9250669.03/-.
29. Annexure 28 is a surveyor report dated 17.01.2011 in which claim amount of loss has shown as 96,66,287/- and assessed and adjusted amount of loss as Rs.48,19,069/-. At page 3 of the report, claim amount of Rs.96,66,287/- has been bifurcated according to which value of stock as on 9.12.2009 was Rs. 92,50,669/- and value of stock sold but not delivered is Rs. 2,91,118/-. Claim for furniture and fixture is Rs.1,00,000/- and all computer set is Rs. 24,500/-. The surveyor had verified the proforma of trading account prepared by complainant chartered accountant as on 9.12.2009 and found that total value of stock as on 9.12.2009 as per books works out to be Rs. 81,14,622/- (without VAT). It has been further stated that VAT is applicable only on sale and in case of destruction of the said stock, the same is not required to be paid to the government and if paid the same is adjustable in the future sale. Hence the same is not considered in value. The said value of stock is worked out by considering gross profit @ 7.76% in the proforma trading account against the gross profit of 3.83% and 4.09% during the previous 2 years i.e. 2008-09 and 2007- 08 respectively as per the audited balance sheets. Thus in order to arrive at the actual value of the stock on the date of loss, the surveyor has considered the average of above two GPs i.e. 3.96%. The value of stock thus works out to be Rr. 52,53,198/- substituting gross profit @3.96% at Rs.29,84,578/- against proforma trading account in which gross profit was shown at Rs.58,46,001.76/-.
30. It has also been mentioned in the surveyors report that the value of stock sold but not delivered and kept in premises is Rs.2,91,118 with VAT and Rs.2,55,367/- without VAT. Although the insured later reversed the sale thereof vide return dated 31.12.2009, but the same has been found to be held in trust on the date of loss and the stock held in trust is not covered under the policy, the same has not been considered. The value of the saved stock works out to be Rs. 1,10,959/-. Salvage value of the goods was worked out at Rs. 3,57,200/-. The capitalized value of the furniture and fixture has been assessed as Rs. 1,71,952/- as on 1.04.2006 in which there is appreciation of 5% per annum and depreciation @10% per annum from the date of installation till date of fire. After adding the depreciation of 20% in capitalize value and reducing depreciation @ 40% the value of furniture has been arrived at Rs.1,23,805/- whereas the sum insured is one lakh. Therefore, it was found that the furniture and fixtures was undervalued by 19.3%. Similarly the value of the computer was arrived at 1,15,467 which is underinsured by 30.7% and in the last the loss was calculated at Rs. 48,19,069/-
31. Annexure 29 is notice dated 20.02.2012 from complainant to insurance company, in which it has been stated that against the claim of Rs. 96,66,287/- claim of Rs. 48,19,069/- has been accepted after about one year. It has been stated that due to fire, their economical condition has deteriorated and for this the company had requested the insurance company many times to accept their claim but after a long time a voucher for Rs. 48,19,069/- was sent to them which was signed by them out of coercion for full and final payment. It has also been stated that insurance company has directly paid the claim amount in their bank account. It has, therefore, been prayed that the remaining amount of Rs. 44,09,747/- may kindly be paid as balance claim amount.
32. Annexure 30 is postal receipt of this notice which was delivered to insurance company on 22.02.2012.
33. The insurance company has submitted annexure R/1 which is letter of complainant company to the insurance company dated 8.12.2012 by which complainant company has sent discharge voucher fully filled and signed by them along with no objection certificate of the bank manager to transfer the claim amount to their bank account. A copy of discharge voucher has also been annexed with this letter on which no date has been mentioned and which has been executed by complainant in full and final settlement of claim amount of Rs.48,19,067/-. A letter of ICICI Bank dated 8.02.2012 has also been annexed in which they have been informed the insurance company that limit sanctioned in favour of M/s Dhoot Auto Pvt. Ltd. was already cancelled and they have no objection for transfer of claim amount to the party current account. A resolution of M/s Dhoot and co. also been annexed with the above letter in which the company has authorised Sh. Jayesh Dhoot for execution of documents with regard to the settlement of claim.
34. Annexure R/2 are mails sent between insurance company and complainants company.
35. Annexure R/3 is a depreciation chart of the furniture and other assets and movable assets.
36. Audited balance sheet of complainant company as at 31.03.2010 has also been produced which is at page 33. In the profit and loss account of the company, loss by fire of the stock has been shown as Rs. 80,03,665/-. In schedule F of this audit report inventories has taken value and certified by management has been shown at Rs. 46,11,914/- which is on 31.03.2010. It is pertinent to mention here that as on 9.12.2009 when fire broke out at the premises of Complainant Company the value of the stock was shown around Rs.81 lacks approximately. In schedule J of audit report the same closing stock of Rs.46,11,914/- which was shown in the trading account as on 9.12.2009. It is pertinent here to mention that no trading account of audited balance sheet has been produced by the insurance company for year ending on 31.03.2010 whereas, complainant company has submitted trading account as on 9.12.2009 the date on which fire broke out in the premises of the complainant company.
37. We perused the citations produced by complainant. In New India Assurance Company Ltd. versus Pradeep Kumar, it has been held by the Supreme Court that surveyor's report is not last and final word, it may be basis for settlement of claim but neither binding upon the` insurer nor insured. Hon'ble Rajasthan High Court in United India Assurance Company Ltd. versus Uma Polymers Ltd. has held that surveyor's report is not final. Hon'ble National Commission in Flotex Products versus United India Insurance Co. Ltd. has also held that surveyor's report is not final word and binding upon insured or insurer. In National Insurance Co. Ltd. Versus Pratap Textile Mills Pvt. Ltd. Hon'ble National Commission held that total amount towards loss not paid, deductions made by surveyor for depreciation and for under insurance from assessed loss not justified, insurance company is liable to pay balance with interest. In Dharmendra Goel vs. Oriental Insurance Co. Ltd. Hon'ble Supreme Court has directed that courts must take realistic view, compensation if possible on material on record should not be denied on hyper technical pleas. Insurance Company is bound by value put on vehicle while renewing policy. In Shree Dhain Auto Transport Corporation Vs. United India Insurance Co. Ltd. case Hon'ble National Commission has held that surveyor is expert in branch of assessing damages is required to give reasons as to on what basis and for what reasons claim of complainant was not justified. In the absence of such reasons surveyor's report cannot be accepted. Hon'ble NCDRC in case Maya Appliances Pvt. Ltd. Versus United India Insurance Co. Ltd. compensation was assessed with the yardstick of interest @ 12% per annum. This commission in complaint case no. 9/2013 Jodhpur Sahkari Upbhokta Wholesale Bhandar Ltd. Vs. New India Assurance Co. Ltd. has held that reduction in valuation of purchase prize by arbitrary percentage from the details submitted by the insured, was not justified.
38. In M/s MCGD Giants Pvt. Ltd. Vs. United India Insurance Co.
Ltd. Hon'ble Delhi High Court has held that once claimant insured has executed the discharge voucher and accepted the amount in full and final settlement of the claim the petitioner is estopped from claiming in further amount. The only exception carved out by the Supreme Court to the said rule is that the acceptance of insurance claim could not barred the insured from making further claim from the insurer in case the discharge voucher has been obtained in circumstances which could be termed fraudulent or by exercise of undue influence or misrepresentation or the like.
39. In Khatima Fibers ltd. Vs. New India Insurance Co. Ltd. Hon'ble Supreme Court has held that a consumer forum which is primarily concerned with an allegation of deficiency in service cannot subject the surveyor's report to forensic examination of its anatomy just as a Civil Court could do. Once it is found that there was no inadequacy in the quality nature and manner of performance of duties and responsibilities of the surveyor, in a manner prescribed by the regulations as to their code of conduct and once it is found that report is not based on adhocism or vitiated by arbitrariness then the jurisdiction of consumer forum to go further would stop.
40. The counsel for complainant has argued that insurance company has committed deficiency in services by not disposing off his valid claim for a period of more than one year. It has also been argued that full and final discharge voucher was submitted by complainant on account of coercion committed on it by the insurance company officials. It has further been argued that in view of fully vouched purchase and sales, the surveyor has committed grave illegality in adopting average of gross profit for last two years at 3.96% despite that fact that financial year was to close on 31.03.2010 and in view of recorded purchase and sales of goods by the principle of complainant, gross profit rate at 7.76% was genuine, in view of summary submitted by Castrol Ind. Ltd. of actual purchase and sales of stock by the complainant as on 9.12.2009. It has further been argued that the surveyor has wrongly calculated the value of furniture and computer which needs correction.
41. It has also been argued that the surveyor has committed illegality in rejecting claim for goods sold to the customer but was not supplied on 09.12.2009 as all the suppliers has submitted their statement that they have not received goods and in view of that the suppliers would either demand supply of billed goods or refund of consideration. In view of this situation the stock sold to the customer which was lying in his premises should be included in the closing stock and compensation should have been allowed to him.
42. Learned counsel for insurance company has argued that survey report has been prepared by an expert on which no finger can be raised regarding assessment and adjustment of loss. It has been argued that the complainant has executed full and final payment voucher willingly, therefore, notice thereafter is of no use. It has further been argued that after execution of full and final voucher, complainant is estopped from begging for release of remaining amount of his claim. It has therefore been prayed to reject that claim.
43. After perusing whole of the record including evidence and documents and citations placed on record, we are of the considered view that the surveyor has arbitrarily worked out value of closing stock by taking gross profit of 7.76% despite availability of whole purchase and sales in the books of accounts of M/s Castrol Ind. Ltd. which is principle of complainant and which kept details of every purchase and sales of complainant's company through software developed by it. It is pertinent to note that gross profit rate of last two previous years has been calculated after the completion of financial year but in this matter financial year has not came to an end. The insurance company has presented the audited balance sheet of the complainant for the year ending on 31.03.2010 which failed to show the result of trading account and shows loss by fire at Rs.80,03,665/-. It also depicts opening stock of Rs.46,11,914/-, therefore, audited balance sheet for year ending 31.03.2010 also supports complainant who has shown value of stock loss at Rs. 80 lacks and above in its proforma trading account duly certified by C.A. Besides this, the surveyor in his report has taken total value of stock as on 09.12.2009 at Rs.81,14,622/- (without VAT) but despite taking opening stock of Rs.46,11,914/-, sales at Rs. 7,53,68,133/- and purchase at Rs.7,30,24,839/-, mysteriously changed the value of stock by applying gross profit rate of 3.96 % without any basis which comes out at 29,84,575/- which is not the real position depicted in audited balance sheet in the year ending on 31.03.2010. The insurance company has tried to show in its reply that book value of the stock is different from actual value of the stock. We are afraid that we are not in agreement with the view of the insurance company because in this case each and every detail of closing stock has been supplied by the Castrol Ind. Ltd. which has not been disputed by the surveyor while calculating closing stock, therefore, book value and actual value of closing stock as on 09.12.2009 was Rs.81,14,622/- (without VAT). Besides it the surveyor has not disputed quantity of stock at 55,173.92 liters of stock as on 09.12.2009. The surveyor has also not disputed list of closing stock as on 09.12.2009 supplied by complainant. The surveyor has also not disputed list of closing stock as on 09.12.2009 at Rs.92,50,669.30. In view of above facts we are of the view that the surveyor was at fault by applying gross profit percentage of 3.96% for arriving at value of closing stock at Rs.52,53,198/- (without VAT). He should have assessed the closing stock at Rs.81,14,622/- in view of documents supplied by complainant of Castrol Ind. Ltd. and proforma trading account.
44. The salvage value of the stock has been taken at Rs.3,57,200/-
which was not sold even after tender for the same was published in newspaper.
45. The receipt dated 18 December 2009 shows that 50 barrels of water mix oil burnt during fire was sold by complainant for Rs. 1,50,000/-. The rest of the salvage which include 24 barrels of heat damaged stock and loose/ burnt material was valued by surveyor at Rs.1,68,000/- and Rs.10,000/- respectively. As such total salvage value comes to Rs.3,28,000/-
46. The surveyor has valued furniture and fixtures at Rs.
1,23,805/- which is under insured by 19.3% and computers at 1,15,467/- which is under insured by 30.7%. The valuation of both these items are as per norms in which complainant is not entitled for any increase.
47. So far as the goods sold to the customers but not delivered, the position of law is very clear. As soon as goods is sold to the customer by making a bill, the property in goods transfers to the customer and no property in the goods remains with seller. In the present case the complainant has sold the goods by making bill of goods sold. In this situation whether payment is received or not and whether goods have been delivered or not does not matter because there is no evidence on the record which suggests that property in goods was not transferred to the customers of the complainant. Hence, in view of this commission the complainant is not entitled for loss on account of goods sold but not delivered to the customer valuing Rs. 2,91,118/-.
48. In view of the above assessment and adjustment of loss may be computed as under:-
STOCK Total value of stock 81,14,622 Less: Value of stock saved 1,10,959 Less: Stock held in Trust 2,91,118 Less: Salvage value of burnt, 3,28,000 Semi burnt & water damaged stock ________ 7,30,077 73,84,545 Add: Furniture and fixtures 34,862 Add: Computer 9,168 ________ 44,030 74,28,575 Less: Excess Clause 10,000 74,18,575 As per total, value of loss to the complainant on account of fire is Rs.74,18,575/-.
49. The insurance company has challenged the capacity of complainant to file the present complaint on account of execution of full and final payment voucher for Rs. 48,19,069/-. On perusal of the record, it transpires that the insurance company has not settled the claim of the complainant for more than one year. Despite the surveyor submitted its report dated 17.01.2011 to insurance company, the settlement voucher was got executed in the month of February 2012 as submitted by the complainant. From the letter of ICICI bank dated 08.01.2012 it came to notice that the settlement voucher was executed in the month of February 2012 itself because no date has been mentioned in the discharge voucher.
50. The complainant has pleaded that the discharge voucher was got executed by coercion because after fire broke out at its premises, the Castrol Ind. Ltd. terminated its agency to complainant due to its poor financial condition. It has also been pleaded that business with Castrol Ind. Ltd. had come to an end. The Insurance company has not provided them any interim amount of claim after submission of report of surveyor, but after the lapse of one year the amount of so called discharge voucher was directly credited to its bank account for which the complainant could not raised any objection. It has also been pleaded that complainant was in dire needs of funds therefore, he executed discharge voucher in view of extreme financial hardship. These arguments of the complainant have no denial from the insurance company and the circumstances goes to prove that complainant was forced to execute discharge voucher of the half of the claimed amount. In these situations the complainant raised objection to the discharge voucher by his notice dated 20.02.2012 which cannot be termed as afterthought. Since, coercion by insurance officials has been proved, the complainant was free to make this complaint for claiming rest of the amount of his insurance claim. The insurance company in its reply has admitted that claim was delayed for which interest can be provided to the complainant. This admission goes to prove that delay was without any reasonable cause and the insurance company was bent upon to settle the claim with complainant at a value lesser than the amount claimed.
51. In these circumstances the arguments of the insurance company that the complainant is estopped from making complaint after execution of discharge voucher is not of any force in view of coercion apply by them directly or indirectly.
52. In view of the above discussion we came to the conclusion that the surveyor's report is not last word and hence, we calculated the loss to the complainant at Rs. 74,18,575/-. which complainant was entitled to receive but out of that amount complainant has received only a sum of Rs. 48,19,069/- making a shortfall for Rs. 25,99,506/- which complainant is now entitled to receive from the insurance company. The complainant is entitled to receive interest at the rate 9% on this amount from the date of presentation of complaint before this commission on 01.11.2012 to the date of this order. If insurance company fails to pay this amount within two months of this order the complainant shall be entitled to interest at the rate 12% on Rs. 25,99,506/- besides interest at the rate 9% till the date of this judgment. The complainant is also entitled to receive a sum of Rs. 2,00,000/- towards mental agony and sufferings on account of misdeeds of insurance company which shall be payable within two months of this order, failing, which interest at the rate of 12% per annum shall be payable by the insurance company to the complainant.
53. The complainant shall also be entitled to interest at the rate 9% on the amount of Rs.48,19,069/- paid to complainant as full and final settlement from the date of surveyor's report 17.01.2011 to February 2012.
ORDER
54. The complaint of Jayesh Dhoot, Director, M/s Dhoot Auto Pvt.
Ltd. is allowed against the Oriental Insurance Co. Ltd. and the Oriental Insurance Co. Ltd. is directed to pay the complainant remaining amount of the claim of Rs.25,99,506/- with interest at the rate 9% from the date of presentation of complaint to the date of this order. The Oriental Insurance Co. Ltd. shall pay to the complainant interest at the rate 12% if it fails to pay this amount within two months of this order. The Oriental Insurance Co. Ltd. is directed to make payment of Rs. 2,00,000/- towards mental agony and sufferings to the complainant within two months of this order, failing which interest at the rate 12% shall be payable by it to the complainant. The Oriental Insurance Co. shall also pay to the complainant interest at the rate 9% on the so called amount of full and final settlement of Rs. 48,19,069/- from 17.01.2011 to February 2012. The parties shall bear their own costs.
(N.S. Meratwal) (Devendra Kachhawaha)
Member Judicial President