State Consumer Disputes Redressal Commission
M/S.Jain Kirana Store vs B.M. The United India Insurance Co.Ltd. ... on 26 July, 2017
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR (C.G.)
Complaint Case No.CC/2017/09
Instituted on : 23.02.2017
M/s Jain Kirana Stores,
Proprietor : Khemraj Sinha, Aged about 38 years,
S/o Seetaram Sinha,
Address : Ganpat Chowk, Hirapur,
Raipur, Tehsil and District Raipur (C.G.). ... Complainant.
Vs.
(1) Divisional Manager,
The United India Insurance Company Limited,
Amar Complex, Jeevan Beema Marg, Pandri,
Raipur (C.G.).
Present changed address :
Divisional Manager,
The United India Insurance Company Limited,
Divisional Office No.2,
L.I.C. Building, First Floor, Pandri,
Raipur (C.G.) 492001
2. Branch Manager,
Bank of Maharashtra,
Address : First Floor, Shree Complex,
Phool Chowk, G.E. Road,
Raipur (C.G.) 492001 ... Opposite Parties
PRESENT: -
HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT
HON'BLE SHRI D.K. PODDAR, MEMBER
HON'BLE SHRI NARENDRA GUPTA, MEMBER
COUNSEL FOR THE PARTIES:
Shri Sanjay Dadsena, Advocate for the complainant.
Shri P.K. Paul, Advocate for the O.P. No.1.
Shri N.K. Sahu, Advocate for the O.P. No.2.
ORDER
Dated : 26/07/2017 PER :- HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT. The complainant filed this consumer complaint under Section 17 of the Consumer Protection Act, 1986 against the OPs seeking following reliefs :-
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(a) To direct the O.P. No.1 to pay a sum of Rs.31,08,138/-
(Rupees Thirty One Lakhs Eight Thousand, One Hundred Thirty Eight) after deducting a sum of Rs.8,91,862/- from the Rs.40,00,000/- which is insured amount of the kirana items and stock, which was burnt in incident of fire.
(b) To direct the OPs to pay interest on the above amount @ 12% p.a. from the date of incident
(c) To direct the OPs to pay a sum of Rs.5,00,000/- (Rupees Five Lakhs_ towards compensation of unfair trade practice and deficiency in service.
(d) To grant any other relief, which this Commission deems fit.
2. Briefly stated the facts of the complaint of the complainant are that the complainant obtained insurance policy No.190501/11/13/11/0000000, which is Standard Fire and Special Perils Policy and the name of insured is Jain Kirana Stores. The said insurance policy is effective for the period from 04.04.2013 to 03.04.2014. The complainant is proprietor of Jain Kirana Stores. The complainant is running M/s Jain Kirna Stores for earning his livelihood by means of self employment, which is insured with the O.P. No.1. The complainant obtained cash credit facilities from the Bank of Maharashtra, O.P. No.2 and the O.P. No.1, issued Standard Fire and Special Perils Policy and the sum assured was Rs.40,00,000/- in respect of kirana items and stock and according to the sum assured // 3 // amount, the O.P. No.1 has received the premium amount of Rs.9,064/- from the complainant. On 19.02.2014, in the kirana shop of the complainant, fire of incident occurred due to which the entire kirana item and stock damaged due to burning. The complainant immediately gave intimation regarding the incident to local office of the O.P. No.1, in response to which the O.P. No.1 deputed Investigator and Surveyor K.C. Mohapatra, who conducted survey. All documents, which are relevant for settlement of the claim, were provided by the complainant to the Surveyor. The complainant also gave intimation regarding the incident to the office of fire brigade, Raipur. The complainant several time contacted the O.P. No.1 for settlement of his claim, but the O.P. No.1 did not settle the claim of the complainant. The complainant provided audit report to the O.P. No.1 and also provided report issued by fire brigade, bills in respect of all purchase, sales and balance sheet. The Surveyor K.C. Mohapatra demanded documents i.e. claim form, fire brigade report, news paper, stock registered from 01.03.2013 to 31.03.2013, credit account statement, sale purchase and documents regarding other expenses, which were provided by the complainant to the Surveyor. The Surveyor prepared the Survey Report and submitted the same to the Insurance Company, but the complainant has not received the copy of the Survey Report. The complainant is not having knowledge that how much loss has been assessed by the Surveyor. The Surveyor and Loss Assessor K.C. Mahapatra, inspected the spot and after inspecting // 4 // the bills and documents, he prepared Survey Report and submitted the same before the O.P. No.1. The Surveyor also submitted bill to the O.P.No.1 towards service charge of the assessment report. Copies of the same were provided to the complainant. In the Survey Report, the Surveyor assessed net loss to the tune of Rs.31,72,637/-. The O.P. No.1 received the Survey Report from the Surveyor, but even the O.P. No.1 is not paying the claim amount and has kept pending the claim. The O.P. No.1 called the complaint in its officer and is making pressure on the complainant to accept a sum of Rs.8,91,862/- towards his claim, but the complainant made protest of the same and refused to take the above amount. Even then the O.P. No.1 deposited a sum of Rs.8,91,862/- in the bank account of the complainant which the complainant is having with Bank of Maharashtra (O.P. No.2). The complainant came to know regarding the same later on and he immediately made protest and sent letter to the O.P. No.1 on 19.10.2016 in which he demand entire sum insured and told the O.P. No.1 to take back the amount of Rs.8,91,862/- which was deposited by the O.P. No.1 in his bank account. The O.P. No.1 received the above letter but even then the O.P. No.1 could not pay the sum assured to the complainant and also did not give any reply to the above letter. Thus, the O.P. No.1 committed unfair trade practice and deficiency in service. The complainant sent legal notice to the O.P. No.1 on 26.11.2016 through registered post. The above notice was received by the O.P. No.1 but the O.P. No.1 did not give reply of the same and also // 5 // did not pay the actual amount of loss. Thus, the O.P. No.1 committed unfair trade practice, due to which the complainant suffered mental agony. Hence the complainant filed the instant complaint.
3. The O.P. No.1 filed its written statement and averred that the complainant is a businessman, therefore, as per provisions of the Consumer Protection Act, 1986, the case is not maintainable. The complainant filed amendment application on 08.05.2017 and averred that the shop is being run by him for earning his livelihood by self employment which is an afterthought and the same has been averred to change the facts. The Banker of the complainant, Bank of Maharashtra, Main Branch Raipur obtained Insurance Policy No.190501/11/13/11/00000005 from the O.P. No.1 for the period from 04.04.2013 to 03.04.2014. The above policy was issued by Genesis Software and now it is changed in G.C.Core Software System. The policy number is change to 2705001113P178414119. On being receiving the intimation regarding the incident of fire in the shop of the complainant on 19.02.2014, the O.P. No.1 appointed Shri K.C. Mohapatra, who is an independent Surveyor, to assess the loss. The Surveyor inspected the spot in presence of the representative of the complainant and demanded various documents. Later on it was found that the documents which were submitted by the complainant, were containing false informations. The Surveyor assessed the loss to the tune of Rs.8,92,122/ and the same is payable in case there was no violation of the terms and conditions of the insurance policy. The bank // 6 // of the complainant, Bank of Maharashtra obtained insurance policy for the complainant in which bank clause was containing. From the amount assessed by the Surveyor a sum of Rs.260/- was deducted as clearance charges and remaining amount of Rs.8,91,862/- was paid through cheque No.014071 drawn on HDFC Bank, Branch Sainagar Raipur dated 30.09.2016 and the same is in the knowledge of the complainant. The audit report of Chartered Accountants of the complainant was not proper and according to the procedure, therefore, the audit report of Chartered Accountants of the complainant, is doubtful and not reliable. The Surveyor and Loss Assessor asked for the complainant regarding the Certificate issued by the Chartered Accountants, but the complainant did not provide above documents to the Surveyor and Loss Assessor. According to the Investigator, the stock shown by the complainant is also doubtful. The complainant submitted Kaccha bills issued by Lalwani Agency, Gudhiyari, Raipur (C.G.), Mayank Traders, Gudhiyari, Raipur (C.G.), Pankaj Grains, Gudhiyari, Raipur (C.G.) and Laxmi Pan Masala, Aamapara, Raipur (C.G.), which shows that the complainant obtained false bills from the above shopkeepers for obtaining insurance amount, therefore, the O.P. No.1 appointed Investigator and also took help of Chartered Accountants to reassess the loss suffered by the complainant. K.C. Mohapatra, Surveyor & Loss Assessor, reassessed the loss to the tune of Rs.8,92,122/- and the above amount was deposited in the bank account of the complainant which he was having with O.P. No.2. The // 7 // O.P. No.1 is not liable to pay entire amount of Rs.40,00,000/- or its part. No cause of action has been accrued against the O.P. No.2. The complaint is liable to be dismissed against the O.P. No.1.
4. The O.P. No.2 filed its written statement and denied the allegations made by the complainant against it. The O.P. No.2 averred that the O.P. No.2 did not receive the notice sent by the complainant to it. The O.P. No.2 did not do any act which comes in the category of unfair trade practice, due to which the complainant suffered mental agony. The complainant is not entitled to get any compensation / relief from the O.P. No.2. If any amount is determined by this Commission towards compensation, then the O.P. No.1 is liable to pay the same to the complainant. The complaint is liable to be dismissed against the O.P. No.2.
5. The complainant has filed documents. Annexure A-1 is Statement of Account for the period from 01.10.2014 to 31.1.2016, Annexure A-2 is Standard Fire and Special Perils Policy, Annexure A-3 is Registration Certificate, Annexure A-4 is Claim Form Fire and Allied Perils etc., Annexure A-5 is letter dated 25.03.2016 sent by the O.P. No.1 o the complainant, Annexure A-6 is postal receipt, Annexure A- 7 is letter dated 19.12.2014 sent by the complainant to the Incharge Officer, Police Station, Kabir Nagar, Raipur (C.G.), Annexure A-8 is letter dated 28.07.2015 sent by the complainant to Shri K.C. Mohpatra Surveyor and Loss Assessor, Annexure A-9 is letter dated 09.01.2015 sent by Shri K. C. Mohapatra, Surveyor and Loss Assessor, to the // 8 // complainant, Annexure A-10 is reply sent by the complainant to Surveyor and Loss Assessor in response to his letter dated 09.01.2015, Annexure A-11 is letter dated 11.10.2014 sent by the complainant to Shri K.C. Mohapatra, Surveyor, affidavit of Khemraj Sinha etc. Annexure A-13 is Indian Income Tax Return Acknowledgement of Khemraj Singh for the Assessment Year 2013-14, Computation of Total Income for Assessment Year 2013-14, Audit Report of Jain Kirana Stores for financial year 2012-13, Annexure A-14 is letter dated 18.06.2014 sent by Sumit S. Jain, Proprietor Sumit Subhash Jain & Company, Chartered Accountants to Shri K.C. Mohapatra, Annexure A-15 is Fire Report issued by Municipal Corporation, Raipur, Annexure A-16 is Statement of Account from 01.03.2013 to 31.03.014, Annexure A-17 is the list of the kirana items available in Jain Kirana Stores, Hirapur, Raipur (C.G.)., A-18 is list of kirana items purchased from different firms and agencies, Annexure A-19 is Trading & Profit and Loss Account for the year ending on 31st March, 2014 of Jain Kirana Stores (Prop. Khemraj Sinha), Schedules, Annexure A-20 is Format for Stock Statement, Annexure A-21 is letter dated 30.03.2013 sent by Chief Manager - Incharge, Bank of Maharashtra Devendra Nagar, Raipur to the Branch Manager, Bank of Maharashtra, Raipur Main Branch, Raipur, Annexure A-22 is paper cutting, Annexure A-23 is letter dated 19.10.2016 sent by Jain Kirana Stores to O.P. No.1, Annexure A-24 is postal receipt, Annexure A-25 is letter dated 26.11.2016 sent by Shri Sanjay Dadsena, Advocate to the O.P. No.1, // 9 // Annexure A-26 is postal receipts. Again document Annexure A-1 is Survey Report dated 18.08.2014 of Shri K.C. Mohapatra, Surveyor and Loss Assessor, Annexure A-2 is Bill.
6. The O.P. No.1 has also filed documents. Document OP-1 is Standard Fire and Special Perils Policy issued for the period from 04.04.2013 to 03.04.2014, Annexure OP-2 is Shopkeepers Insurance Policy issued for the period from 06.05.2013 to 05.05.2014, Annexure OP-3 is letter dated 08.11.2014 sent by Shri K.C. Mohapatra, Surveyor and Loss Assessor to The Divisional Manager, United India Insurance Co. Ltd., Raipur Division, Annexure OP-4 is Investigation Report, Annexure OP-5 is letter sent by Khemraj Sinha to the Senior Manager, United India Insurance Company Limited and PAN Card, Annexure OP-6 is letter sent by Human Lal Sinha to Senior Manager, United India Insurance Co. Ltd., and PAN Card, Annexure OP-7 is Statement of Maan Singh Sinha and PAN Card, Annexure OP-8 is Photographs, Annexure OP-9 is letter dated 09.01.2015 sent by Shri K.C. Mohapatra, Surveyor & Loss Assessor to the complainant, Annexure OP-10 is letter dated 16.03.2015 sent by Shri K.C. Mohapatra, Surveyor and Loss Assessor to M/s Jain Kirana Store, Annexure OP-11 is letter dated 18.06.2015 sent by Shri K.C. Mohapatra, Surveyor & Loss Assessor to Shri Khemraj Sinha, Annexure OP-12 is letter dated 06.09.2015 sent by the O.P. to the complainant, Annexure OP-13 is Technical Scrutiny cum Loss Assessment Report (Expert Report) of Gupta Jeswani & Co., Chartered Accountants, Annexure OP-14 is Survey Report dated // 10 // 15.12.2015 of Shri K.C. Mohapatra, Surveyor and Loss Assessor. Annexure OP-16 is letter dated 03.10.2016, Annexure OP-17 is Claim Disbursement, Annexure OP-18 is Settlement Intimation Voucher, Annexure OP-19 is Claim Disbursement.
7. The O.P. No.2 has not filed any documents.
8. Shri Sanjay Dadsena, learned counsel appearing for the complainant has argued that the complainant obtained Standard Fire and Special Perils Policy from the O.P. No.1. The said policy was effective for the period from 04.04.2013 to 03.04.2014. The complainant is running Kirana Stores in the name and style as M/s Jain Kirana Stores for earning his livelihood by means of self employment, therefore, the complainant is consumer. On 19.02.2014, the incident of fire was occurred in the shop of the complainant and due to fire, all goods which were kept in the shop, were completely burnt. The complainant suffered loss to the tune of Rs.40,00,000/-. The incident was reported to the concerned Police Station as well as to the O.P. No.1. The fire was extinguished by the Fire Brigade. The O.P. No.1 appointed K.C. Mohapatra as Surveyor and Loss Assessor, who initially assessed the loss to the tune of Rs.31,72,637/-, but the O.P. No.1 did not settle the claim of the complainant and the O.P. No.1 again appointed second Surveyor, which is contrary to the provisions of Insurance Regulatory and Development Authority (I.R.D.A.). The O.P. No.1 has no jurisdiction to appoint second Surveyor. The second Surveyor assessed the loss to the tune of // 11 // Rs.8,92,122/-, which is completely erroneous. The O.P. No.1 forced the complainant to receive the above amount . The complainant did not receive a sum of Rs.8,91,862/- and he made protest to the O.P. No.1. The O.P. No.1 pressurised the complainant to receive the above amount, then the complainant gave intimation to the concerned Police Station regarding the pressure given by the O.P. No.1, to receive the above amount. The O.P. No.1 has deliberately and with malafide intention did not settle the claim of the complainant. Hence the complainant filed the instant complaint. The complainant is entitled to get Rs.40,00,000/- along with interest from the O.P. No.1. He placed reliance on Revision Petition No.488 of 1998 - National Insurance Co. Ltd. Vs. New Patiala Trading Company, decided by Hon'ble National Commission vide order dated 8th February, 2002.
9. Shri P.K. Paul, learned counsel appearing for the O.P. No.1 has argued that initially the complainant did not plead he is running kirana shop for earning his livelihood by means of self employment and he later on amended the complainnt, therefore, the complaint is not maintainable under Section 2 (1)(d) of the Consumer Protection Act, 1986 and the complainant is not consumer. K.C. Mohapatra was appointed as Surveyor by the O.P. No.1, but the complainant did not provide relevant documents to the Surveyor and the Surveyor assessed the loss without documents, therefore, the O.P. No.1 took help of Investigator Chartered Accountants, who fully co-operated the Surveyor. With the help of Investigator Chartered Accountants, K.C. // 12 // Mohapatra, Surveyor assessed the loss to the tune of Rs.8,92,122/- and after deducting clearance charges, a sum of Rs.8,91,862/- was deposited in the bank account of the complainant which, he was having with the O.P. No.2 Bank. The complainant is not entitled to get any more amount from the O.P. No.1, therefore, the complaint is liable to be dismissed against O.P. No.1. He placed reliance on Jaisri Mines Products Pvt. Ltd. vs. New India Assurance Co. Ltd. & Anr. II (2009) CPJ 123 (NC), Guinea Exports Pvt. Ltd. & Ors. Vs. National Insurance Company Ltd. & Ors. I (2007) CPJ 95 (NC); Oriental Insurance Company Ltd. V. Vijya Srinivasa Cotton Co. 2009 (3) CPR 389 (NC); Pentagon Steel Pvt. Ltd. Vs. New India Assurance Co. Ltd. & Ors. III (2010) CPJ 339 (NC); Nikon Systems (P) Ltd. Vs. National Insurance Co. Ltd. Through its Branch Manager, 2011 (1) CPR 250(NC); M/s Goel Jewellers Vs. M/s National Insurance Company Ltd. 2011 (3) CPR 272 (NC) and M/s Sikka Papers Ltd. Vs. National Insurance Co. Ltd. & Ors. 2009 (3) CPR 272 (SC).
10 Shri N.K. Sahu, learned counsel appearing for the O.P. No.2. has argued that the O.P. No.2 Bank has sanction cash credit limit to the complainant and the complainant withdrawn the amount accordingly. The O.P. No.2 Bank did not commit any deficiency in service, therefore, the complaint is liable to be dismissed against the O.P. No.2 Bank.
11. We have heard learned counsels appearing for the parties and have perused the documents filed in the instant case.
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12. It is not disputed that the complainant is proprietor of M/s Jain Kirana Stores and he obtained Standard Fire and Special Perils Policy from O.P. No.1 and the insurance policy was effective for the period from 04.04.2013 to 03.04.2014. It is also not disputed that the incident of fire took place in the shop of the complainant on 19.02.2014.
13. Now we shall examine whether the complainant is consumer ?
14. Initially, the complainant has not pleaded that he is running Kirana Shop for earning his livelihood by means of self employment, but later on, he amended the complaint and pleaded that "the complainant is running M/s Jain Kirana Stores for earning his livelihood by means of self employment, which is insured with the O.P. No.1. "
15. It is admitted fact that the complainant had obtained Standard Fire and Special Perils Policy from the O.P. No.1, which was effective for the period from 04.04.2013 to 03.04.2014 and sum assured was Rs.40,00,000/-.
16. In Ashish Vishwakarma Vs. National Insurance Company Limited & Others, II (2012) CPJ 169 (NC), Hon'ble National Commission has observed that "Contract of insurance is a contract of indemnity and therefore, there is no question of commercial purpose in obtaining insurance coverage. It has also been held that the insured could not trade or carry out any commercial activity with regard to the insurance policy, being barred to do so under Section 3 of the Insurance Act, 1938."
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17. In The Divisional Manager, L.I.C. vs. Shri Bhavanam Srinivas Reddy, 1991 (2) CPR 144 (NC), Hon'ble National Commission, observed thus :-
"3. The first point of objection raised by the Insurance Company before the State Commission and reiterated before us namely is that no dispute arising out of a contract of insurance can be made subject matter of adjudication under the Consumer Protection Act. This contention cannot be sustained in view of decision of this Commission dated July 28, 1989 in Shri Umedilal Aggarwal v. United India Assurance Company Ltd., F.A. Nos.3 and 4 of 1989 (Reported in I (1991) CPJ-3, 1991 (1) CPR 217 (NC), wherein we have held as follows :-
"We find no merit in the contention put forward by the insurance company that a complaint relating to the failure on the part of the insurer to settle the claim of the insured within a reasonable time and the prayer for the grant of compensation in respect of such delay will not fall within the jurisdiction of the Redressal Forums constituted under the Consumer Protection Act. The provision of facilities in connection with insurance has been specifically included within the scope of the express 'service' by the definition of the said word contained in Section 2(i)(o) of the Act. Our attention was invited by Mr. Malhotra, learned counsel for the Insurance Company to the decision of the Queen's Bench in National Transit Insurance Company Ltd. vs. Customs and Central Excise Commissioner, (1975) (1) all England Reports Page 303) The observations contained in the said judgment relating to the scope of the expression 'insurance' occurring the schedule of the enactment referred to therein are of no assistance at all to us in this case because the context in which the expression is used in the English enactment considered in the case is entirely different. Having // 15 // regard to the philosophy of the Consumer Protection Act and its avowed object of providing cheap and speedy redressal to consumers affected by the failure on the part of persons providing "service" for a consideration, we do not find it possible to hold that the settlement of insurance claims will not be covered by the expression "insurance" occurring in Section 2(1)(d). Whenever there is a default or negligence in regard to such settlement of an insurance claim that will constitute a 'deficiency' in the service on the part of the Insurance company and it will be perfectly open to the concerned aggrieved consumer to approach the Redressal Forums under the Act seeking appropriate relief. We, accordingly over the objection raised by the Insurance Company regarding the jurisdiction of the State Commission to adjudicate upon the complaint.
18. In The Divisional Manager, L.I.C. vs. Uma Devi, 1991 (1) CPR 662 (NC), Hon'ble National Commission, observed thus :-
"8. The very fact that the Insurance Act provides for a machinery for remedy for grievances arising out of repudiation of a claim under section 45 leads to show that the Corporation has to satisfy a Court that the repudiation was justified. Accordingly, it is for the consumer to choose a forum convenient to him to seek remedy for the loss suffered because of deficiency in service. As the provisions of this Act are in addition to and not in derogation of any other law for the time being in force, the State Commission has the jurisdiction to entertain the complaint and to investigate whether the repudiation was justified or not and to grant such relief as deems fit if it is satisfied that there was deficiency in service. We therefore, cannot uphold this contention in view of the decision of this Commission in Revision Petition No.12 of 1990 (New India Assurance Co. Ltd. v. Vipro Electronics Pvt. Ltd., 1991 (1) C.P.R. (NC) 531, where the identical point has been elaborately discussed".
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19. In The New India Assurance Co. Ltd. vs. M/s Vipro Electronics Pvt. Ltd., 1991 (1) C.P.R. (N.C.) 531, the Hon'ble National Commission, observed thus :
"We are not impressed with the contention raised by Shri S.K. Paul, learned counsel appearing on behalf of the Petitioner that merely because of Insurer had totally repudiated his liability in respect of the claim, no proceedings could be validly initiated under the Consumer Protection Act by the insurer. This contention squarely falls within the ruling given by this Commission in Ummedilal Agrawal v. United India Assurance Co. Ltd. (O.P.No.3 & 4 of 1989, decided on 28.7.1989". In that decision this Commission has observed that it is not possible to hold that settlement of a disputed insurance claim will not be covered by the expression "service" occurring in Section 2(d) of the Act. It was laid down that whenever there is default or negligence in regard to service that will constitute "deficiency in service" on the part of the insurer and it is perfectly open to the aggrieved party for seeking appropriate relief under the Act.
In the result, the Revision Petition has no merits and it is accordingly dismissed".
20. In M/s. Harsolia Motors vs. M/s. National Insurance Co. Ltd. & Ors. 2005 (1) CPR 1 (NC), Hon'ble National Commission, has observed thus :-
"13. In Halabury's Laws of England Vol. 25, 4th Edition, the origin and common principles of insurance is discussed and in paragraph 3 it has been discussed and in paragraph 3 it has been mentioned that it is based on principle of indemnity. Thereafter, relevant discussion is to the effect that most of contract of insurance belong to general category of contracts of indemnity. In the sense that insurers' liability is limited to the actual loss which is , in fact, proved. The contract is one // 17 // of indemnity and, therefore, insured can recover the actual amount of loss and no more.
14. In this view of the matter, taking of the insurance policy is for protection of the interest of the assured in the articles or goods and not for making any profit or trading for carrying on commercial purpose.
16. We would refer to few relevant judgments :
In Regional Provident Fund Commissioner vs. Shiv Kumar Joshi, (2000) 1 SCC 98, the Court elaborately considered the provisions of Sections 2(1)(d) and 2(1)(o) as well as earlier decisions and held that :-
"The combined reading of the definitions of 'consumer' and 'service' under the Act and looking at the aims and object for which the Act was enacted, it is imperative that the words "consumer" and "service" as defined under the Act should be construed to comprehend consumer and services of commercial and trade-oriented nature only. Thus any person who is found to have hired services for consideration shall 'be deemed to be a consumer notwithstanding that the services were in connection with any goods or their user. Such services may be for any connected commercial activity and may also relate to the services as indicated in Section 2(1)(o) of the Act."
The aforesaid ratio makes it abundantly clear that the services may be for any connected commercial activity, yet it would be within the purview of the Act."
21. The insurance policy has been taken by the complainant for protection of the property and not for making any profit, therefore, the complainant is a "consumer" and dispute between the parties comes within purview of "consumer dispute".
// 18 // 22 The O.P. No.1 appointed K.C. Mohapatra as Surveyor and Loss Assessor. Initially K.C. Mohapatra, Surveyor and Loss Assessor assessed the loss to the tune of Rs.31,72,637/- and subsequently he revised his assessment and assessed net loss to the tune of Rs.8,92,122/-.
23. The main objection of the complainant is that when first Surveyor had already assessed the loss and gave his report, then the O.P. No.1 has no jurisdiction or right to appoint second Surveyor for assessment of the loss, therefore, second Survey Report is not acceptable. On the basis of first Survey Report, the complainant is entitled to get compensation to the tune of Rs.31,72,637/- from the O.P. No.1.
24. In M/s Galada Power and Telecommunication Ltd. Vs. United India Insurance Co. Ltd. and Another Etc., 2017 (1) CPR 4 (SC), Hon'ble Supreme Court has observed thus :-
"1. When the Insurer appointed a surveyor on receipt of belated claim and the letter of repudiation does not whisper about delay in lodging claim, it can safely be concluded that the insurer had waived the right which was in its favour, under the duration clause.
2. When the Insurer, after the first surveyor submitted its reports, appoints a second surveyor / investigator without explaining the reason for such appointment, report of the first surveyor prevails."
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25. In New India Assurance Company Limited Vs. R.P.Oil Industries, IV (2016) CPJ 627 (NC), Hon'ble National Commission has observed that "If Insurance Company had some doubts on surveyor's report, it could have asked for clarification / documents from complainant. No evidence on record as to whether any documents / information / clarification had been sought from the complainant either by Insurance Company or the Investigator. Although there is no prohibition under Insurance Act, 1938 for appointment of second surveyor by Insurance Company but while doing so, Insurance Company has to give cogent and sufficient reasons for disagreeing with findings of first surveyor."
26. Now we shall examine whether the O.P. No.1 has rightly took assistance of the Investigator Chartered Accountants for reassessment of the loss, initially assessed by K.C. Mohapatra, Surveyor and Loss Assessor ?
27. The O.P. No.1 appointed Krishna Kumar G.R. as Investigator and he submitted his report dated 19.12.2014 to the O.P. No.1. During the course of investigation he recorded the statements of Khemraj Sinha, Human Lal Sinha and Maan Singh Sinha. The complainant Khemraj Sinha stated in his statement before the Investigator that he suffered loss of near about Rs.12 lakhs. Maan Singh Sinha stated in his statement before the Investigator that he suffered loss of near about Rs.10-15 lakhs. The Investigator Krishna Kumar G.R. specifically mentioned in his investigation report that the signatures of Khemraj Sinha, Maan Singh Sinha and Human Lal Sinha were obtained in the // 20 // presence of the witnesses in their statement. In the statement of Khemraj Sinha, (complainant), signatures of Human Lal Sinha and Maan Singh Sinha are present. In the statement of Maan Singh Sinha the signature of the also signature of the witnesses Human Lal Sinha and Khemraj Sinha are present. It shows that the Investigator record statement of the complainant in the presence of the witnesses, therefore, the statements recorded by the Investigator is admissible and reliable.
28. Initially, K.C. Mohapatra, Surveyor and Loss Assessor had assessed the loss on estimate basis. Subsequently, the O.P. No.1 took assistance of Gupta Jeswani & Company, Chartered Accountants for assessment of loss. Gupta Jeswani & Company, Chartered Accountants gave detailed report. On the basis of Technical Scrutiny Cum Loss Assessment Report given by Chartered Accountants, K.C. Mohapatra, Surveyor and Loss Assessor again assessed the loss suffered by the complainant and he assessed the loss to the tune of Rs.8,92,122/-/
29. The complainant filed document A-18, which are Kachha Bill dated 13.2.2014 issued by Lalwani Agency, Gudhiyari, Raipur (C.G.) for Rs.10,78,825, Kachha Bill dated 10.02.2014 issued by Mayank Traders, Gudhiyari, Raipur (C.G.) for Rs.2,99,400/-, Kachha Bill dated 15.02.2014 issued by Pankaj Grains, Gudhiyari, Raipur for Rs.8,03,500/-, Kachha bill dated 19.02.2014 issued by Laxmi Pan Masala, Aamapara, Raipur (C.G.) for Rs.25,08,700/-. All the above // 21 // bills are Kachha Bills. In the above bills, signatures of the shopkeepers, who issued the bills, are not present and their TIN are also not mentioned, therefore, the above Kachha Bills are not reliable and acceptable. Initially K.C. Mohapatra, Surveyor and Loss Assessor assessed the loss on the basis of above documents and subsequently the complainant had not provided documents, which were sought from him by the Surveyor & Loss Assessor, therefore, in the instant case, there is sufficient ground for taking help of Chartered Accountants and also asking for the Surveyor to reassess the loss with the help of Chartered Accountants.
30. The Investigator specifically mentioned that the complainant himself admitted that he suffered loss to the tune of Rs.10-15 lakhs. Gupta Jeswani & Company Chartered Accountants, mentioned in their report that according to the letter of Surveyor dated 09.01.2015, which was sent to the insured, Surveyor demanded affidavit of Proprietor / Partner & Directors of all the firms from whom the insured has purchased the stock giving details of TIN of their firm, stating the Stockiest and Wholesaler of the companies whose cigarettes, bidi, pan masala / tobacco they are selling to M/s Jain Kirana Stores (Insured). The Surveyor also asked for the complainant for submitting details of total sales made to the insured during the year 2011-12, 2012-13 & 2013-14 and VAT returns of all parties submitted to Chhattisgarh VAT Department showing sales and purchases. The above documents were not submitted by the complainant to the Surveyor. The // 22 // complainant had failed to submit duplicate purchase invoices. Gupta Jeswani & Co., Chartered Accountants recommended that the insured is entitled for Rs.8,42,688/- towards compensation.
31. The complainant filed document A-18 which are Kachha bills issued by Lalwani Agency, Gudhiyari, Raipur, Mayank Traders, Gudhiyari, Pankaj Grains, Gudhiyari, Raipur and Laxmi Pan Masala, Aamapara, Raipur. According to the above Kachha bills, the above shopkeepers sold the articles of the huge amount to the complainant. If the articles would have been sold by the above shopkeepers to the complainant, they certainly provide pacca bills, which bear TIN and registration No. of the shop. Had the bills were fairly issued by the above shopkeepers, the complainant would have filed affidavits of the above shopkeepers and would have asked them to produce duplicate bill book of their shops, but the complainant did not produce the bill book maintained by the above shopkeepers. Hence, the above bills issued by Lalwani Agency, Gudhiyari, Raipur, Mayank Traders, Gudhiyari, Pankaj Grains, Gudhiyari, Raipur and Laxmi Pan Masala, Aamapara, Rapur are not reliable, therefore, K.C. Mohapatra, Surveyor and Loss Assessor has rightly assessed the loss to the tune of Rs.8,92,122/- with the help of Gupta, Jeswani & Company, Chartered Accountants.
32. In Jaisri Mines Products Pvt. Ltd. Vs. New India Assurance Co. Ltd. & Anr. (Supra), Hon'ble National Commission has observed that "Fire to factory set deliberately cannot be safely inferred from // 23 // above facts. Fire accidental, caused due to electric short circuit proved by evidence on record. Out of 90 sale and purchase bills, 87 found written by one and same person. Documents and account books submitted by complainant after 6 months of incident. Explanation given for late submission of documents does not inspire confidence. Surveyor's report coupled with reports of Investigator, FSL and CID proves that documents and books of accounts fabricated by complainant to support the claim made. Repudiation of claim justified. No relief entitled."
33. The O.P. No.1 has filed document OP-16 which is letter sent by the O.P. No.1, in which it is mentioned thus :-
"I/We hereby acknowledge having received from BOM Main Br. A/c Jain Kirana Stores.
My / our Motor Car/Vehicle /Cycle No. which has been repaired to my / our satisfaction, and I / We admit that the payment of Rs.8,91,862/- on account of such repairs by United Insurance Company Limited is in full discharge of my / our claim upon the said Company under Policy No.2705001113P178414119 in respect of the damage caused to the said Stock / Car/ Vehicle/ Cycle in an accident that occurred on or about 21.03.2014 12:01 AM."
34. It shows that the above payment of Rs.8,91,862/- was paid to the O.P. No.2 Bank from where the complainant had obtained Cash Credit Limit facilities.
35. In the instant case, the kachha bills submitted by the complainant are doubtful. Initially, K.C. Mohapatra, Surveyor and // 24 // Loss Assessor assessed the loss on the basis of above Kachha bills, therefore, the O.P. No.1 took assistance of Gupta, Jeswani & Company, Chartered Accountants and thereafter K.C. Mohapatra, Surveyor & Loss Assessor against reassessed the loss to the tune of Rs.8,92,122/-, therefore, appointment of Gupta, Jeswani & Co., Chartered Accountants by the O.P. No.1 is just and proper. There is sufficient ground to the O.P. No.1 for taking assistance of the Chartered Accountants for reassessment of loss, therefore, the appointment of the subsequent Investigator of Surveyor by the O.P. No.1is not illegal.
36. On the basis of Survey Report and the Report of the Chartered Accountants, the complainant is only entitled for Rs.8,91,862/- which was already paid by the O.P. No.1 to the O.P. No.2. The O.P. No.1 did not commit any deficiency in service and unfair trade practice. The complainant is not entitled to get any further amount from the O.P. No.1.
37. Therefore, the complaint filed by the complainant against the OPs, is liable to be dismissed, hence the same is dismissed. Parties shall bear their own costs.
(Justice R.S. Sharma) (D.K. Poddar) (Narendra Gupta)
President Member Member
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