State Consumer Disputes Redressal Commission
M/S Chandan Associates vs Micro Office, N.I.A.C. Ltd. on 26 November, 2015
FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB
SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
Consumer Complaint No.39 of 2013
Date of Institution: 02.04.2013
Date of Decision : 26.11.2015
M/s Chandan Associates, franchisee of Vishal Megha Mart, Opposite
HDFC Bank, Bassi Road, Sirhand, Tehsil Sirhind and District Fatehgarh
Sahib, Punjab, through its sole proprietor Sh.Chandan Wadhwa s/o Sh.
Prem Chand Wadhwa, r/o Bassi Pathana, Tehsil Sirhand and District
Fatehgarh Sahib.
.....Complainant.....
Versus
1. Micro Office, The New India Assurance Company Limited, Bassi
Road, Preet Nagar, Sirhind, District Fatehgarh Sahib through its
Branch Manager/Incharge.
2. The New India Assurance Company Limited, Rajpura Branch,
District Patiala through its Branch Manager.
3. State Bank of India, Main Branch, Sirhind, District Fatehgarh Sahib
through its Manager.
....Opposite Parties....
Consumer Complaint U/s 17 of the
Consumer Protection Act, 1986 (as
amended up to date).
Quorum:-
Shri J. S. Klar, Presiding Judicial Member.
Shri Harcharan Singh Guram, Member.
Present:-
For the complainant : Sh.H.S Saini, Advocate For the Opposite party no.1&2 : Sh.Parminder Singh, Advocate For the Opposite party no.3 : Ex-parte.
.............................................. Consumer Complaint No.39 of 2013 2 J. S. KLAR, PRESIDING JUDICIAL MEMBER:-
The complainant M/s Chandan Associates franchise of Vishal Mega Mart through its sole proprietor Sh. Chandan Wadhwa has filed the complaint against OPs on the averments that complainant is the sole proprietorship concern of Chandan Wadhwa dealing in the business, as a franchise of Vishal Mega Mart in the rented shop at Bassi Road Sirhind. The complainant concern obtained a Standard Fire & Special Perils Policy from OP no1 and 2 through the State Bank of India Main Branch Sirhind/OP no.3, vide insurance policy no.36120111110100000634, which was valid from 20.02.2012 to 19.02.2013. The said Vishal Mega Mart shop run by M/s Chandan Associates concern through its sole proprietor Sh. Chandan Wadwa was fully insured in all respects to the tune of Rs.1,15,00,000/- i.e. Rs.100,00,000/- for stocks and stocks in progress and Rs.15,00,000/- for furniture, fittings, fixtures and other contents. The complainant has been getting shop insured with OP no.1 and 2 since 2009. The above shop was closed on 15.04.2012 at night in a routine manner and when Chandan Wadhwa sole proprietor along with his brother Munish Wadhwa came to the shop early in the morning on 16.04.2012, he found a lot of smoke and heat inside the shop. Fire Brigade services were requisitioned to put out the fire forthwith and they were set in motion to extinguish the fire. The fire occurred due to electric short circuit and cause of fire was accidental. The complainant concern availed cash credit limit from OP No.3 in the year 2011-12 for Rs.50,00,000/- and the shop was Consumer Complaint No.39 of 2013 3 duly insured through OP no.3 with OPNo.1 and 2 and fire claim was lodged with OP no.1 and 2 forthwith after occurrence of this incident of fire on 16.04.2012. Even police report no.23 dated 16.04.2012 was lodged about this incident of fire at police station Fatehgarh Sahib and thereby claiming the loss to the tune of Rs.70,00,000/-.
The complainant concern had turn over Rs.90,00,000/- during the year 2009-10, Rs.1,83,00,000/- during the year 2010-11, Rs.6,70,00,000/- during the year 2011-12 only. The fire occurrence report was also issued, vide reference no. 349-dated 18.04.2012 about it. The fire incident was also published in Punjab Kesri daily newspaper dated 17.04.2012, in which it was duly reported that the loss was of Rs.70,00,000/- of goods etc. and loss of furniture, fittings, fixtures and other contents was of Rs.15,00,000/- . The large volume of different types of items/stock i.e. food items, non-food items, toiletries, plastic, crockery, gifs items, glass items, cooking utensils, SIM Cards & Recharge Coupons, karyana items, lays, kurkureys and garments etc. were also damaged in the fire. The entire stock and furniture, fittings, fixtures and other were also damaged in fire in shop of the complainant. The entire stock was displayed as lying inside the shop and also in the godown i.e. rear end i.e. back side of the shop and no safe stock was retained by the complainant concern. OP No.1 and 2 deputed Sh. Vinay Mittal Surveyor on 16.04.2012 to assess the loss. Sh. Vinay Mittal submitted his preliminary report dated 10.07.2012 to OP no.1 and 2 for the consideration of insurer and left it to final surveyor, because Consumer Complaint No.39 of 2013 4 the liability of the insurer exceeded the financial limits allotted to above surveyor. OP No.1 and 2 then deputed consolidated Surveyors Pvt. Ltd to assess the loss and submitted the final report dated17.09.2012 and 27.09.2012. Final survey report on the basis of preliminary report of Sh. Vinay Mittal Surveyor and assessed the loss to the tune of Rs.30,29,430/- . As per report of the surveyor, a sum of Rs.30,23,106/- was credited in the cash credit limit account of the complainant with OP no.3 on dated 27.10.2012 on account of insurance claim for fire loss. The complainant challenged the report of the surveyor and the amount of reimbursement of the loss, as awarded by OP no.1 and 2 to the extent of Rs.30,29,430/- only, it has been challenged by the complainant on below noted grounds :-
(A) That the complainant firm has got lodged the estimated loss to the tune of Rs.70,00,000/- to Rs.80,00,000/- in the Fire Report, D.D.R., News paper and in the claim form and also informed the loss of Rs.70 to 80 lacs to the OP no.1 and 2 even than the OP has deputed Sh. Vinay Mittal Surveyor and Loss Assessor to assess the loss knowingly that he is not competent to conduct the survey in the present case as his financial limit is less than the reported loss i.e. actual loss.
(B) That the consolidated Surveyors Pvt. Ltd has prepared the final report on the basis of the preliminary report of Sh.Vinay Mittal whereas Sh. Vinay Mittal is not competent to conduct the survey in the present case as such how on the basis of the report of Sh. Vinay Mittal the final report can be prepared. Consumer Complaint No.39 of 2013 5 (C) That the surveyor has wrongly assessed the salvage value and wrongly deducted of Rs.1,50,000/- and Rs.20,000/- on account of salvage whereas in fire cases the same cannot be deducted. (D) That the surveyor has wrongly deducted of Rs.1,59,443/- on account of policy clause which is not applicable in the present claim as the available sum insured is adequately more than the value of risk, further it was also not disclosed to the complainant firm by the OPs at the time of issuance of the insurance policy.
(E) That the surveyor has wrongly deducted 5% in Annexure-C and D, 2.5% in Annexure A,B,E and F on account of dead stock which comes to Rs.60,341/- , Rs.39,722/-, Rs.2,024/-
and Rs.6,844/- whereas in fir case the same cannot be deducted.
(F) That the surveyor has wrongly deduced 14.73% in Annexure B on account of profit and it comes to Rs.97,960/- without any reasoning.
(G) That the surveyor has wrongly deducted 18.32% in Annexure-
D on account of profit and it comes to Rs.99,250/- without any reasoning.
(H) That the surveyor has wrongly assessed the loss of Rs.80960/-
in Annexure F whereas the total cost price of damages items is Rs.3,23,576/- and has not given any reasoning why he has assessed the loss to the extent of 10%, 25%, 50%, 100% etc. Consumer Complaint No.39 of 2013 6 in different items as such he has wrongly assessed the loss as such the complainant firm is entitled to loss of Rs.3,23,576/-. (I) That the surveyor has not considered the letter dated 18.08.2012 of the complainant firm regarding the explanation of damages.
(J) That the surveyor has not considered the stock of garments of Rs.17,40,260/- which was lying in the shop in the rear end i.e. godown in the shop without any reasons where as the said stock is dully covered under the insurance policy and the present fire claim as such the complainant firm is also entitled for Rs.17,40,260/-.
(K) That the surveyor has wrongly rejected the claim of Rs.2,91,824/- on account of recharge coupons without any reasons where as the said recharge coupon was duly insured and covered under the present claim as the same were lying in the shop and the concerned company has not taken back the said stock as such the complainant firm is entitled for Rs.2,91,824/- .
(L) That the surveyor has not considered the karyana items of Rs.9,25,000/- without any reasons which were lying in the shop in the rear and i.e. godown of the shop and the said stock was also duly covered under the present fire claim and also under the above said insurance policy as such the complainant firm is also entitled for Rs.9,25,824/-
Consumer Complaint No.39 of 2013 7As such, the reports of surveyors are unjustified, unreasonable, illegal, without any sufficient reasons being non speaking one, against the principle of natural justice and also against the rules and regulations and the law and further surveyor have under assessed the loss and also wrongly rejected the claim of the complainant concern and also wrongly deducted the amount of different heads therefrom.
2. The complainant concern suffered loss of rent to the tune of Rs.1,80,000/- i.e. Rs.60,000/- per month for three months and loss of salary of two employees to the tune of Rs.18,000/- i.e. Rs.3000/- each per month. The complainant concern has to retain the shop till finalization of the fire claim, as per the directions of OP no.1 and 2 and surveyor. It also suffered the loss of interest on the delayed payment. OP no.1 and 2 got the signatures of the sole proprietor of the complainant on blank two claim receipts, vouchers and on consent letter i.e. summary of loss claim by misrepresentation, undue influence, coercion and pressure. The complainant concern was facing financial crunch and tried to adjust the cash credit limit overdrawn from OP no.3 at that time. The complainant concern after calculating the actual loss with the assistant of Sales Manager, account Officer and Chartered Accountant, has withdrawn its consent, vide letter dated 18.08.2012 before the assessment of the loss. The complainant concern sent registered letter dated 27.10.2012 to OP No.1 and 2 to give the balance claim amount, as complainant concern was not satisfied with the amount of Consumer Complaint No.39 of 2013 8 Rs.30,23,106/- and registered letter dated 29.11.2012 and 30.01.2013 were also sent to the OPs in this regard. The shop was full of different items on 16.04.2012 of Rs.73,72,180/- and furniture etc of Rs.15,00,000/- were also in the shop. As per the trading account of the complainant concern of dated 01.04.2012 to 15.04.2012, stock statement of dated 31.03.2012, Feb. 2012 and Jan. 2012, vet returns form 01.07.2011 to 30.09.2011, 1.10.2011 to 31.12.2011 and 01.01.2012 to 31.03.2012, income tax returns of 2011-2012 and audit report dated 11.08.2012 and stock and stocks in progress was near about of Rs.73,72,180/- and furniture, fittings, fixtures and other contents were of Rs.15,00,000/- at the time of incident of fire. Only above payment has been given to the complainant and not the entire reimbursement of the total loss of Rs.73,72,180/- was given by the OPs. The OPs have committed unfair trade practice in this case, besides being deficient in service. The complainant has, thus, filed this complaint praying that OP no.1 and 2 be directed to pay balance amount of Rs.60,52,885/- to the complainant, besides interest @ 18% per annum, which comes to Rs.3,58,406/- . It was further prayed that OP no.3 be directed not to demand any amount of loan from complainant till the decision of the present complaint.
3. Upon notice, OP no.1 and 2 appeared and filed written reply and contested the complaint of the complainant by raising preliminary objections that complainant concern deals in commercial activities and is not a consumer of the answering OPs, as defined Consumer Complaint No.39 of 2013 9 under the Consumer Protection Act 1986 (hereinafter referred to as Act). The complaint is alleged to be not maintainable and complainant is alleged to be guilty of misrepresentation and concealment of material facts, as well. It was admitted by the answering OPs that complainant obtained Standard Fire and Special Perils Policy in question for a sum of Rs.1,15,00,000/- on furniture, fitting, fixtures and Rs.15,00,000/- on stocks, which was valid from 20.02.2012 to 19.02.2013. On receipt of intimation from the complainant regarding incident of fire, OP No.1 and 2 deputed Mr. Vinay Mittal Surveyor to conduct the preliminary survey of the alleged loss and after survey, he submitted his report dated 10.07.12. The insurance company thereafter deputed Consolidated Surveyors Pvt. Ltd, Surveyor & Loss Assessor Chandigarh an IRDA approved Surveyors and Loss Assessors to conduct the survey and to assess the alleged loss. After visiting the spot and hearing the complainant, they assessed the loss to the tune of Rs.30,29,430/-, vide report dated 17.09.12. The above IRDA approved surveyor also took the photographs from different angles covering all the places of fire to show the extent of damage and nature of fire. After receipt of the survey report, the claim of the complainant was processed and approved by OP no.1 and 2 to the extent of Rs. 30,29,429/- after adjusting the amount of policy, excess clause, by the competent authority, as per details mentioned below :-
Items Estimated Gross Loss after
Loss assessed Depreciation
Stocks 37,11,241.00 31,61,293.76 28,71,015.45
Consumer Complaint No.39 of 2013 10
F.F.F 5,92,545.00 4,58,190.00 3,17,858.00
------------------
31,88,873.45
Less Excess Clause 1,59,443.87
------------------
30,29,429.78
Less Reinstatement Charges 6,323.78
------------------
Net payable 30,23,106.00
After approval of the claim by the competent authority, the complainant was informed regarding approval of the claim and was requested to submit the necessary disbursement voucher duly signed and stamped to enable the insurance company to release the amount. The complainant submitted a disbursement voucher for a sum of Rs.30,23,106.00 dated 26.10.12 towards full and final settlement of the claim and it was duly signed and stamped by their banker / OP No.3. Upon receipt of the aforesaid disbursement voucher, the claim for Rs.30,23,106/- , which was duly received by the complainant against clear receipt towards full and final settlement of the claim of complainant without any protest or reservation whatsoever. The complainant submitted a typed letter mentioning the date with ink as 27.10.12 in the office on 08.11.12, wherein clearly admiting the execution of the above said discharge voucher towards full and final settlement of the claim. The letter was duly replied by answering OPs, vide letter dated 15.11.12 stating that nothing more was due from OP no.1 and 2 to the complainant thereafter. The complainant received the amount of Rs.30,23,106/- Consumer Complaint No.39 of 2013 11 towards full and final settlement of the claim. Any misrepresentation, undue influence, coercion or compelled circumstances exercised upon complainant by OP No.1 and 2 were totally denied in the written statement. It was further pleaded that as per condition no.13 of the Contract of Insurance, there is arbitration clause in this case and matter can be decided by the arbitrator. The complainant is alleged to have misused the process of law to achieve his wholly false claim. The necessary deduction has been made to complainant against payment voucher towards full and final settlement of the claim, as per contract of insurance. The complaint was also contested by OP no.1 and 2 on the above referred grounds even on merits. It was further pleaded vehemently that there was no loss to the complainant on account of SIM cards and recharge coupons in as much, as complainant has already surrendered the distributorship in December 2011, much time earlier to the date of incident of this fire and the claim for the said loss was, thus, not considered. The complainant agreed and signed that the actual estimated loss towards stocks and F.F.F was Rs.37,11,241/- and Rs.5,92,405/- respectively. The loss was assessed on the basis of report of Consolidated Surveyors Pvt. Ltd, Surveyor & Loss Assessor, an IRDA approved Surveyor as Rs.30,29,430/-, which has been received by the complainant by executing full and final discharge voucher. It was further pleaded that the salvage value of Rs.1,50,000/- and Rs.20,000/- was deducted by the surveyor in a fair and reasonable manner only. It was further averred that amount of Consumer Complaint No.39 of 2013 12 Rs.1,59,443/- was deducted towards the excess clause in a fair and reasonable manner. The amount of 14.73% was deducted by the surveyor on account of profit on the basis of last three years account statements. The surveyor correctly deducted 18.32% on account of profit. OP No.1 and 2 pleaded that both the report of preliminary survey and final survey are fair and conclusive. OP No.1 and 2 prayed for dismissal of the complaint by controverting the averments of the complainant, as contained in complaint.
4. OP No.3 filed its separate written reply by raising preliminary objections that complainant has not approached the Consumer Forum with clean hands. Any above-referred deficiency in service was stoutly denied by OP no.3 in the complaint. The complaint is alleged to be without any cause of action. It was further pleaded by OP No.3 that the complainant enjoyed the credit facilities from OP No.3 since December 2008, but they did not want to repay the same and complainant has, thus, filed the complaint with ulterior motive. The borrower cannot be compelled to forego their just and legal claims, which is basically a part of contract. OP No.3 has no role to play, as far as insurance of the complainant is concerned except to ensure the stocks so that they remained properly insured with the insurance company and in the interest of borrowers too. On merits, the complaint was also contested by OP No.3. Loans are given out of public funds and bank is mere trustee and duty bound to demand the repayment, being trustee of public funds. OP No.3 prayed for dismissal of the complaint.
Consumer Complaint No.39 of 2013 13
5. The complainant tendered in evidence the affidavit of Sh. Chandan Wadhwa Ex.CW-1, affidavit of Sh. Rajinder Kumar Ex.CW- 2, affidavit of Mohan Singh Partner of S. Mohan & Associates Chartered Accountants Ex.CW-3 along with copies of documents Ex.CW-1/1 to Ex.CW-1/40. As against it, OP no.1 and 2tendered in evidence affidavit of Sh. A.L Madan Manager New India Assurance Co. Ltd Ex.OP-1/A, affidavit of Sh. N.S Sidhu Director Consolidated Surveyors Pvt. Ltd Ex.OP-1/B along with copies of the documents Ex.OP-1/1 to Ex.OP-1/23.
6. We have heard learned counsel for the parties at considerable length and have also examined the record of the case including the written submissions placed on record by OPs. The first point of argument before us by the OPs is that the complainant dealt in commercial activities and as such, the complainant is not a consumer. On the other hand, the counsel for the complainant countered this point by submitting that insurance contract is primarily meant for reimbursement purposes and there is no question of commercial or non-commercial activities in such type of matter. The OPs referred to law laid down in "Laxmi Engineering Works Vs. P.S.G. Industrial Institute", reported in II (1995) CPJ-1 (SC), "Birla Technologies Ltd. Vs. Neutral Glass and Allied Industries Ltd.", reported in 1(2011) CPJ-1 (SC) and "Economic Transport Organization Vs. Charan Spinning Mills (P) Ltd, & Anr." Reported in 1(2010) CPJ-4 (SC). We find that the above-referred authorities are on different footings and would not be applicable in Consumer Complaint No.39 of 2013 14 this case. There is a dispute pertaining to reimbursement of the loss sought from the insurer by the insured. On the other hand, the law on this point, has been laid down by the Hon'ble National Commission in Ashish Vishwakarma Vs. National Insurance Co. Ltd & Ors, reported in II(2012) CPJ 169 (NC) wherein it has been held that motor vehicle was purchased for commercial purpose was not accepted. Contract of insurance is a contract of indemnity and therefore there is no question of commercial purposes in obtaining the insurance coverage. The National Commission has also examined this type of matter in Oriental Insurnce Company Ltd.. versus Loknete Rajarambabu Patil Hospital & Research Centre, reported in IV (2012) CPJ 625 (NC), wherein it has been held that insurance contract cannot be termed as commercial activity. National Commission also held in Harsolia Motors versus National Insurance Co. Ltd, reported in 2005(1) CLT Page 97 that whether insurance policy taken by commercial units could be held to be hiring of services for commercial purpose and thereby excluded from the purview of the Consumer Protection Act. It was held that a person who takes insurance policy to cover the envisaged risk does not take the policy for commercial purpose. Policy is only for indemnification and actual loss. It is not to generate profit. On the basis of law laid down by National Commission in the above-referred authority, it is amply clear that it is immaterial whether services have been hired for commercial purposes or not in a contract of insurance. The Consumer Complaint No.39 of 2013 15 contention raised by the OPs on this point is repelled by us on the basis of law, as discussed above.
7. Now, we come to next point involved in this case, as to whether the complainant is entitled to the balance amount, as prayed for in the complaint for the loss of fire suffered by it in the shop, which was insured for stock, stock in progress, fittings, fixture with OP No.1 and 2. The complainant has challenged the findings of the surveyor on the point that the loss sustained by the complainant in the incident of fire is to the extent of Rs.70,00,000/- to Rs.80,00,000/-. The complainant sought corroboration from DDR No.23 dated 16.04.2012 Ex.CW-1/2, fire occurrence report Ex.CW- 1/3 dated 18.04.12, Newspaper clippings Ex.CW-1/4, Fire Insurance Claim Form Ex.CW-1/5, wherein the complainant has stated the loss suffered by fire to the extent of Rs.70 lac. The submission of complainant is that these documents have been ignored by the surveyor from the reports in assessing the loss of fire caused to the complainant. The complainant also submitted that surveyor wrongly assessed the salvage and deducted Rs.1,50,000/- and Rs.20,000/- on account of salvage, whereas in the case of fire, it was not admissible. It was further maintained that the surveyor wrongly deducted Rs.1,59,443/- on account of policy clause, which is not applicable. The surveyor deducted 5% on account of dead stock, which comes to Rs.60,341/-, Rs.39,722/- , Rs.2,024/- and Rs.6,844/- , whereas the same could not be deducted in the fire. Similarly, the surveyor wrongly deducted 14.73% on account of profit to the extent Consumer Complaint No.39 of 2013 16 of Rs.97,960/- without any reasoning and surveyor wrongly deducted 18.32% on account of profit, which comes to Rs.99,250/- without any logic. The surveyor also gave no reason for Rs.80960/- as cost of damages items, which comes Rs.3,23,576/- whereas loss to the extent of 10%, 25%, 50%, 100% etc in different items. Similarly, it was submitted by the complainant that surveyor has not considered the stock of garments of Rs.17,40,260/- lying in the shop in the rear side of godown and this amount has been excluded by the surveyor from the assessment report. The surveyor wrongly rejected the claim of Rs.2,91,824/- . The surveyor has not considered the karyana items of Rs.9,25,000/- without any reason. The complainant raised the grouse to inadequacy of insurance claim on the above referred grounds. We have refer to evidence on the record for reaching the findings, as to whether the complainant was rightfully entitled to the above-referred amounts or not. Evidence adduced by the complainant is required to be looked into in this regard by us. Ex.CW-1/1 is Standard Fire and Special Perils Policy issued by OP no.1 and 2 proving that the stock and stock in progress was insured for Rs.1 crore and furniture, fittings, fixtures and other contents were insured for Rs.15 lac for the period 20.02.12 to 19.02.2013 by the complainant with OP no.1 and 2. The OPs have disputed the fact of eruption of fire in the shop of the complainant. Ex.CW-2/6 is document obtained by the complainant under RTI Act, which is preliminary survey report and fire report. Ex.CW-1/9 to Ex.CW-1/15 are emails sent by the complainant to OP no.1 and 2 for reminding Consumer Complaint No.39 of 2013 17 them for settlement of the claim. Ex.CW-1/20 is copy of letter addressed to OPs by the complainant regarding short payment of fire claim to it. In this letter Ex.CW-1/20, we observed that the date 27.10.2012 is not typed in symmetry with other typed contents of this letter, rather it has been written differently with ink of pen on it. Ex.CW-1/21 is postal receipt dated 29.10.2012 to the effect that some letter was sent to OPs by the complainant on 29.10.2012. Ex.CW-1/22 is letter to OPs for updating the payment of the claim of balance claim by the complainant dated 29.11.12. Ex.CW-1/24 is another letter dated 31.01.13 sent to OPs for reminding them to pay the balance amount to complainant. Ex.CW-1/25 is postal receipt dated 02.02.13. Ex.CW-1/26 is photocopy of trading account for the period 1.04.12 to 15.04.12 to the extent of Rs.7,887,455.00, closing stock is Rs.7,372,180.00 and gross profit is Rs.40,471.00. Ex.CW- 1/27 is copy of stock statement for the month of 31st March 2012 of Rs.73,17,500/-. Ex.CW-1/28 is copy of stock statement for the month of February 2012 to the extent of Rs.6803128.00. Ex.CW-1/29 is stock statement for the month of January 2012 to the extent of Rs.6779510.00. Ex.CW-1/30 is copy of Vat -15. Ex.CW-1/31 to Ex.CW-1/34 are the income tax returns. Ex.CW-1/35 is Form No.3CB. On the basis of the above referred evidence, Ex.CW-1/36 to Ex.CW-1/39 and affidavit of Sh. Chandan Wadhwa Ex.CW-1 sole proprietor of complainant and affidavit of Rajinder Kumar Ex.CW-2 and affidavit of Mohan Singh Partner of S. Mohan & Associates Chartered Accountant Ex.CW-3, the evidence of the complainant is Consumer Complaint No.39 of 2013 18 that OP no.1 and 2 have settled the claim of the complainant on the lower side on the basis of report of the surveyor, which are not conclusive in nature and surveyor has overlooked the important documents of loss of the complainant.
8. On the other hand, counsel for OPs argued that whatever loss has been suffered by the complainant in the incident of fire has been duly reimbursed to him. The complainant executed the discharge voucher towards full and final settlement of the claim and is thus, estopped from challenging it later on. It was submitted by counsel for OPs that original bills of sale & purchase and original documents have not been produced on record by the complainant in this case. The OPs primarily relied upon the preliminary survey report Ex.OP- 1/2 of Vinay Mittal in this case to contend that he has examined the items affected by fire of the complainant in the beginning. The fire incident was reported to be correct by him. He observed in his survey report that the jeans, shirts, suits had marks of slight burning, which could not be set right even by dry-cleaning, whereas other items like furniture, fittings, fixtures were found, as totally damaged. Other items like pressure cookers, dinner sets in corrugated boxes were saved to large extent, which constitute about 1% of the total claim amount. He further observed in his report that furniture, fittings, fixtures were damaged and list of damaged items was enclosed. He prepared physical inventory of the entire damaged stock lying in the shop. He assessed the loss around Rs.34 lac to Rs.35 lac and that exceeded the financial limits allotted to him. He submitted that Consumer Complaint No.39 of 2013 19 preliminary survey report and final survey report of Consolidated Surveyors Pvt. Ltd concluded the assessment of the loss. The factum of visiting the spot and submitting the report regarding loss caused to the complainant by the fire by Consolidated Surveyors Pvt. Ltd Ex.OP-1/3 is on the record and its Director Sh. N.S Sidhu has filed his affidavit Ex.OP-1/B to prove it. We have examined his final survey report Ex.OP-1/3 on the record and the same is proved by Sh. N.S.Sidhu on behalf of OPs. This survey report is exhaustive and list of inventory was prepared at the shop of the complainant, which were affected in the fire incident. The surveyor in his report Ex.OP-1/3 found the opening stock, balance sheet for the last three years, which are reproduced as under :-
Particulars 200910 2010-11 2011-12 Upto
15.04.2012
Opening stock 4138530 4839492 5765000 7317500
Purchase 8733152 17399028 59879784 529484
Closing stock 4839492 5765000 7317500 7372180
Sales 8974515 18344682 59738237 515275
Gross profit 942325 1871162 1410953 40471
G.P Ratio 10.50% 10.20% 2.36% 7.85%
The surveyor observed that turnover of the complainant increased during the year 2011-12. The complainant stated that during the year 2011-12, they started distributorship of SIM Cards and recharge coupons of Vodafone and it resulted in very high sale volume. The insured explained to the insurer that the margin in this trade was less than 5% and involved huge transaction of cash and the main business was of departmental store, which only suffered set back. Consumer Complaint No.39 of 2013 20 The surveyor recorded in the survey report that complainant surrendered distributorship of SIM Cards and recharge coupons of Vodafone in December 2011. The trading account of the insured for the year 2011-12 has been revised by deducting the sale and purchase of recharge coupons and SIM Card, whereas incident of fire was much time thereafter. The surveyor further recorded this observation that they visited the spot and some of the part of salvage or damaged stock was disposed of and some part was thrown away by the complainant, therefore, the surveyor had no other alternative except to assess the loss on the basis of inventory prepared by preliminary surveyor in the absence of the above material. The trading account of the complainant for the period 01.04.12 to date of loss recorded, the total value of closing stock on date of loss was Rs.73,72,180.00, but as per the inventory, the total value of stock was Rs.43,28,152.00 and that too on MRP. The insured was asked to clarify the same by them and breakup of the stock on the date of loss was as under :-
Stock of Sim and Recharge = Rs. 2,91,824.00 Stock of Garments (Purch. Return) = Rs.17,40,260.00 Stock of Chips (Safe) = Rs. 3,03,810.00 Stock of Karyana = Rs. 9,25,060.00 Stock totally damaged = Rs.42,28,152.00
Exhaustive report has been prepared by the surveyor finding the net assessed loss of Rs.30,29,429.78, which has been received by the Consumer Complaint No.39 of 2013 21 complainant without any protest and demur and complainant executed the discharge voucher for full and final settlement of the insurance claim, vide Ex.OP-1/2. The surveyor also took the photographs of the site of fire incident from all angles, which are proved on record, vide Ex.OP-1/4 to Ex.OP-1/20. The surveyor primarily recorded observation that distributorship of SIM and Vodafone coupons was already surrendered in December 2011 and complainant showed the profit from the same despite the fact that he was no longer the dealer of the distributorship of SIM Cards and coupons of Vodafone. The OPs, thus, submitted before us that the claim of the complainant has been rightly settled by considering the report of the surveyor and amount has been released to the complainant which was found due and it has been received towards full and final settlement of the claim by the complainant and discharge voucher has been issued by it in this regard. Similarly, it was argued by counsel for the OPs that when the surveyor visited the spot, the complainant had disposed of the allegedly affected material partly at Patiala and some stocks were already taken away by a salvage buyer from Patiala, as disposal of the salvage was allowed by the preliminary surveyor. Some stock was lying packed in card board boxes to be lifted by the salvage buyer. The insured was requested not to dispose of the salvage till the claim has been settled. The surveyor has further submitted that fire was confined to one corner of the shop and the material was packed there and burnt material was mostly of grocery items and rest of the stock mainly Consumer Complaint No.39 of 2013 22 consisting of food items, toiletries, crockery and garments. The counsel for OPs submitted that report of the buyer is generally valuable piece of evidence and has to be given due importance because surveyor is statutorily appointed under Section 64 UM of Insurance Act and his report cannot be brushed aside lightly.
9. We have gone through the evidence on the record and heard the submissions of counsel for the parties. The complainant has claimed loss to the extent of Rs.70 lac to 80 lac in this case, whereas, the loss has been assessed to Rs.30,29,429.78 by the OPs. We find that the surveyor relied upon the DDR report, fire brigade report and newspaper clippings, none of them is expert evidence to evaluate the exact loss caused to the complainant which is admissible as per the Contract of Insurance. The salvage value has been rightly deducted by the surveyor because the complainant disposed of the salvage partly at Patiala and some of the salvage was ready to be disposed of and hence a regular surveyor could not examine the same thoroughly to assess the loss.
10. The next point canvassed is with regard to deduction of Rs.1,59,443/- on the ground that policy clause is not applicable. We are strictly governed by the Contract of Insurance in this case. In the policy document Ex.OP-1/1, it is set out that the insurance under the policy is subject to clauses like Clause 3 designation property clause, clause 4 reinstatement value policy clause, clause 5 local authorities clause. Since there is a express contract regarding the insurance under the policy, which is subject to clauses, hence the Consumer Complaint No.39 of 2013 23 contention of the complainant that amount of Rs.1,59,443/- has been wrongly deducted is not accepted by us. The further submission of the complainant is that amounts of Rs.60,341/-, Rs.39, 722/-, Rs.2,024/- and Rs.6,844/- have been wrongly deducted on account of dead stock by the surveyor. The surveyor gave the detailed report by preparing the inventory on the basis of record duly explaining it. Consequently, we do not find any force in the submission of the complainant that above-referred deductions have been wrongly made by OP no.1 and 2. Similarly, the deductions of 14.73%, 18.32% and loss to the extent of 10%, 25%, 50% and 100% in different items have not been proved to be wrong by the complainant by citing any cogent evidence before us. The counsel for the complainant referred to law laid down by Himachal Pradesh State Consumer Disputes Redressal Commission Shimla in Chuni Lal versus Oriental Insurance Co. Ltd., reported in III(2007) CPJ 286 that in case of fire, no deductions allowed, as insured assets had been reduced to ashes. Next reliance of complainant is on law laid down by National Commission New Delhi in Oriental Insurance Company Limited vs. M/s Girdhari Lal Tulshi Ram Joshi, reported in 1 (1997) CPJ 50 (NC) that State Commission directed the OP to pay full insured amount, where the shop was reduced to ashes in the incident of fire.
11. We have examined the above-referred authorities, but we factually find that the complainant had already disposed of the most of affected material and hence surveyor of the OPs remained Consumer Complaint No.39 of 2013 24 deprived of the opportunity to examine it. It was duty of the complainant to preserve it so that final surveyor could have examined it in assessing the loss. These authorities would have been attracted in this case, had the complainant not disposed of the material party at Patiala and partly to be disposed of somewhere else. Similarly, the submission of counsel for the complainant is that some of the affected material was lying in the godown in the rear side of the shop, which was not properly accounted for by the surveyor. There is no separate godown proved on the record by the complainant from its shop in dispute. It is part of the shop and survey was conducted of the entire shop, as proved before us. We do not find any force in this submission of the complainant that the affected material of Rs.17,40,260/- was lying in the godown of the shop, which is not a separate unit and is rather part and parcel of the shop only, which was thoroughly examined by the surveyor. Similarly, the contention of the complainant is that the surveyor deducted Rs.2,91,824/- on account of recharge coupons, but we find that distributorship was already surrendered by the complainant in December 2011 before the incident of fire and this amount was duly considered by the surveyor. There is no material on the record to prove and surveyor has not been considered the grocery item of Rs.9,25,000/-, as pressed before us by the complainant. The report of surveyor, which is supported by duly prepared inventory, was prepared by Vinay Mittal due to already disposal of the material by complainant and it was duly relied upon by the final surveyor on the Consumer Complaint No.39 of 2013 25 basis of the inventory and detail of loss of items with bills. Final report was prepared by the surveyor and the net loss was, thus, assessed of Rs.30,29,429.78. Even earlier surveyor Vinay Mittal, who submitted preliminary survey report, assessed the loss in between 34 to 35 lac only. Resultantly, we are not impressed with the submissions of the counsel for the complainant that above- referred amounts have been wrongly deducted by the OPs from the amount payable to the complainant.
12. The most vital point to be determined by us is whether the claim was fully and finally settled between the parties and complainant voluntarily executed the discharge voucher therefor, vide Ex.OP-1/21 dated 26.10.12. It is evident from perusal of this discharge voucher Ex.OP-1/21 duly counter-signed by the banker of the complainant OP No.3 that the amount of Rs.30,23,106/- was duly credited in the account of the complainant. No such protest was lodged by the complainant immediately at that time with OP no.1 and
2. The complainant submitted before us that the discharge voucher has been wangled from the complainant by exercise of coercion, undue influence, misrepresentation and fraud by OP No.1 and 2. It is settled principle that any person who alleges any such vitiating atmosphere of the document is required to prove it to strengthen his case. The complainant relied upon bank voucher Ex.CW-1/16 and Ex.CW-1/17 singed by the complainant. The counsel for OPs submitted that complainant managed to obtain the blank vouchers from the office of OPs and then misused them. They have not been Consumer Complaint No.39 of 2013 26 got produced from the custody of the OPs no.1 and 2 in this case. They have been produced by the complainant only from its own custody. It is quite possible that the complainant itself signed the blank vouchers and prepared them to show that fraud has been exercised upon him by OPs. We find no substance in this submission of the complainant. On the basis of these blank vouchers Ex.CW-1/16 and Ex.CW-1/17, which have been produced by the complainant itself from its custody, we are only to persuade, as to how these vouchers came in the possession of the complainant, if they were with the OPs. Resultantly, we rely upon Ex.CW-1/16 and Ex.CW-1/17, as projected before us by the counsel for the complainant. No apparent fraud, undue influence or misrepresentation has been proved before us by the complainant on the record in forcing him to issue above discharge voucher towards full and final satisfaction of it insurance claim. The complainant then relied upon emails Ex.CW-1/9 to Ex.CW-1/15 of the subsequent dates after executing the discharge voucher by the complainant in favour of the OPs. The reliance of the complainant is on letter Ex.CW-1/20, but we find that date of this letter i.e. 27.10.12 has been written with pen, which is out of symmetry of the typed letter. At the most, postal receipt Ex.CW-1/21 indicates that it was sent on 29.10.12 only. It is the subsequent invention of the mind of the complainant to move the letter and emails after receiving the above amount and then to press for more amount from the OPs. Undoubtedly, National Commission has held in Amirali A. Consumer Complaint No.39 of 2013 27 Mukadam versus United India Insurance Co. Ltd., reported in IV (2007) CPJ 234 (NC) that protest registered by complainant within reasonable time and if carries undue influence applied then insurance company is liable to pay interest on amount paid. We find no coercion or undue influence or misrepresentation has been proved on the record before us by the complainant in this case. The complainant referred to law laid down in New India Assurance Co. Ltd. versus Pradeep Kumar, reported in IV (2009) CPJ 46 (SC) that surveyor's report is not last and final word. It may be basis for settlement of claim, but neither binding upon insurer nor insured. The above law cited of the Apex Court is not disputed, but it must be proved by convincing evidence that report of surveyor is not correct. Undoubtedly, the Apex Court has held in United India Insurance versus Ajmer Singh Cotton & General Mills and others, reported in 1999 (3) Page 499-500 that if consumer satisfies that the discharge voucher was obtained by fraud, misrepresentation, undue influence or coercion, the authority would be justified in granting appropriate relief. We do not dispute the cited proposition of law laid down in this authority, but we find that there is no vitiating circumstance of discharging the voucher issued by complainant in favour of OPs towards full and final settlement of the insurance claim. Consequently, complainant is not entitled to claim more than settled amount as complainant remained unable to establish it on the record. that discharge voucher is the result of fraud, undue influence, coercion on the part of OP no.1 and 2. The present complaint was Consumer Complaint No.39 of 2013 28 filed on 02.04.2013 by the complainant, whereas discharge voucher is dated 26.10.12 vide Ex.CW-1/36 on the record. We, thus, find no ground to enhance the insurance claim exceeding the claim already received by the complainant from OPs on the basis of discharge voucher towards full and final settlement of the claim.
13. In the light of our above discussion, the complaint filed by complainant is hereby dismissed without any order as to costs.
14. Arguments in this complaint were heard on 18.11.2015 and the order was reserved. Now the order be communicated to the parties.
15. The complaint could not be decided within the statutory period due to heavy pendency of court cases.
(J. S. KLAR) PRESIDING JUDICIAL MEMBER (HARCHARAN SINGH GURAM) MEMBER November 26, 2015.
(ravi)