National Consumer Disputes Redressal
M/S. Sunil General Agencies vs New India Assurance Co. Ltd. & Anr. on 7 July, 2020
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 44 OF 2012 (Against the Order dated 21/10/2011 in Complaint No. 22/2010 of the State Commission Maharashtra) 1. M/S. SUNIL GENERAL AGENCIES (Prp. Shri. Indrajit Banarasidas Agarwal, S No. 116, Kalas-Alandi Road, Pune - 411 015 Maharastra ...........Appellant(s) Versus 1. NEW INDIA ASSURANCE CO. LTD. & ANR. Through its General Manager, The New India Assurance Building, 87, M.G. Road, Fort, Mumbai - 400 001 Maharastra 2. THE NEW INDIA ASSURANCE COMPANY LTD. Divisional Manager, Divisional Office, 15A, Bhale Estate, Mumbai-Pune Road, Wakadewadi, PUNE-411003 Maharastra ...........Respondent(s)
BEFORE: HON'BLE MR. PREM NARAIN,PRESIDING MEMBER
For the Appellant : Mr.Vijay Peshve, Advocate
Mr.Pramod Kumar N Jadhav, Advocate For the Respondent : Mr. Kishore Rawat, Advocate
Mr. Prashant Bhardwaj, Advocate
Dated : 07 Jul 2020 ORDER
This appeal has been filed by the appellant M/s. Sunil General agencies against the order dated 21.10.2011 of the State Consumer Disputes Redressal Commission, Maharashtra, (in short the State Commission') passed in Complaint No.10/22.
2. Brief facts of the case are that the complainant subscribed to shopkeepers policy of insurance bearing No.153200/ 48/08/34/00000104 for amount of Rs.75,00,000/- which is issued by opposite party to provide insurance cover to all types of general items including cigarettes stored in the shop premises of the complainant. During the midnight at about 02:30 a.m. to 02:45 on 27.4.2009, fire erupted in the shop of the complainant due to electric short -circuit and all the goods in the shop were lost/damaged in the fire and also suffered loss to his building including furniture estimated to Rs.70,00,000/-. Prompt steps were taken by the complainant to control the damage by informing fire brigade and police authorities immediately. Complainant also informed opposite party about the fire and therefore the surveyor Shri J.C.Bhansali was appointed by opposite party. All the required documents/list of the stock was furnished to the surveyor. Opposite party informed the complainant on 16.10.2009 that the claim of Rs.20,66,315/- has been approved as full and final settlement. Thereupon the complainant on 20.10.2009 signed and submitted the discharge voucher 'under protest'. Later on, the opposite party informed on 23.10.2009 stating that the claim amount of Rs.20,66,315/- is payment of full and final settlement and requested the complainant to submit fresh discharge voucher. Thereupon the complainant again submitted discharge voucher on 26.10.2009 under protest to accept the said amount of Rs.20,66,315/- reserving his right for balance claim and accordingly, sent letters dated 26.10.2009 and 27.10.2009 to the opposite party. The opponent Insurance Company did not release the said claim amount and therefore, notice through a lawyer was issued by the complainant on 4.11.2009 for release of the claim amount as the complainant was willing to accept the same under protest though loss suffered was to the tune of Rs.70,00,000/- as the complainant was in dire need of money. However, the opposite party did not release the said amount. Aggrieved thereby, the complainant filed consumer complainant and prayed that:-
"To direct opposite party to pay an amount of Rs.87,10,000/- to the complainant as per the particulars of claim.
Pending hearing and final disposal of this complaint, opposite party may be directed to pay Rs.20,66,315/- to the complainant.
3. State Commission vide its order dated 21.10.2011 partly allowed the complaint with cost of Rs.10,000/- State Commission directed opposite party to pay Rs.20,66,315/- to the complainant together with interest @12% p.a. and Rs.10,000/- as compensation.
4. Hence, complainant has filed the appeal against the above order and prays to allow the entire claim made in the original complaint.
5. Heard the learned counsel for the parties and perused the record. Learned counsel for the appellant/complainant stated that on 27.04.2009 fire erupted due to short-circuit and two fire brigades and three tankers were utilized for subsiding the fire. Police was also informed and the panchnama was conducted. Learned counsel stated that the main dispute is in respect of stock of cigarettes. In fact stock of cigarettes was for Rs.42,00,000/-, however, the surveyor has assessed the total loss of Rs.22,66,315/- including the cigarettes. In fact, surveyor was demanding Rs.75,000/- to give favourable report, but, the complainant did not oblige the surveyor, therefore, a wrong assessment has been submitted by the surveyor. Learned counsel mentioned that the total loss was of Rs.70,00,000/- for which the claim was filed but the surveyor has not assessed the correct loss. Learned counsel further stated that Mr. Limaye was appointed as a preliminary surveyor, and his report was not filed before the State Commission by the Insurance Company, but the State Commission has taken note of the report of the preliminary surveyor and has observed that the preliminary surveyor did not find the smell of cigarettes at the time of preliminary survey. The learned counsel stated that in the reply filed by the opposite party, though a list of enclosed documents was attached, however, the documents were not filed. The complainant applied before the State Commission and the State Commission vide order dated 27.06.2010 allowed the application at a cost of Rs.2,500/-. In fact Mr. Limaye has not filed any affidavit before the State Commission and therefore, the State Commission should not have relied on the report given by the preliminary surveyor.
6. It was further argued by the learned counsel for the complainant that the surveyor in his report has stated that the complainant has shown the space where the cigarettes were kept and the volume of that space has been approximately 25 cubic feet. Learned counsel further stated that the complainant never showed any space for keeping cigarettes. In fact, the space where the cigarettes were kept was more than 600 cubic feet. The sketch map of the space of about 25 cubic feet was attached along with surveyor's report and the same was not supplied to the complainant when the report of the surveyor was supplied. The learned counsel further stated that the surveyor in his report has admitted that the complainant purchased the cigarettes for about Rs.43,00,000/-. The surveyor has not believed these purchases mainly on two grounds. The first is that there was no sale from February, 2009 till April, 2009 when the fire broke out in the shop and the second reason is that the space indicated by the complainant where the cigarettes were kept was only 25 cubic feet. In respect of the sale, learned counsel stated that the complainant was holding this stock with the hope that the price will increase with the Budget. However, main Budget was not presented during this time, but was presented in July, 2009. Therefore, there is no doubt that the stock of cigarettes present at the time of fire was of atleast Rs.42,00,000. The surveyor in his volumetric analysis has stated that the space indicted by the insured for cigarettes was 421 cubic feet, therefore, it is wrong to say that the insured ever indicated space to the surveyor which was around 25 cubic feet.
7. Learned counsel for the complainant relied upon the judgment in New India Assurance Company Limited Vs. Pradeep Kumar, (2009) 7 SCC 787, to emphasise that the surveyor report is not the final word. The judgment reads as under:-
"22. In other words although the assessment of loss by the approved surveyor is a prerequisite for payment or settlement of claim of twenty thousand rupees or more by insurer, but surveyor's report is not the last and final word. It is not that sacrosanct that it cannot be departed from; it is not conclusive. The approved surveyor's report may be the basis or foundation for settlement of a claim by the insurer in respect of the loss suffered by the insured but surely such report is neither binding upon the insurer nor insured."
8. Learned counsel for the complainant further relied upon the following judgment to prove that if all the documents supplied by the complainant are not considered by the surveyor then the surveyor report may be considered as biased and may not be accepted.
1. Texcones Tubes Company, Rep. by its Managing Director-S.P.Sundarakesari Vs. The Oriental Insurance Co. Ltd. II (2007) CPJ 122 (NC).
2. Sudhakar Trader Vs. National Insurance Co. Ltd. & anr, IV (2005) CPJ 25 (NC)
9. On the other hand, learned counsel for the respondent Insurance Company stated that the preliminary surveyor was appointed on the same day and he visited the spot. Then the main surveyor was also appointed. The main surveyor submitted his report on 25.09.2009. On the basis of the loss assessed by the surveyor, the Insurance Company offered Rs.20,66,315/-. Learned counsel has mentioned that the complainant is raising a new plea of space where cigarettes were kept. In fact, the surveyor's report was available to the complainant before filing of the complaint, but, no such question was raised in the complaint. In appeal, the issue of volumetric analysis by the surveyor has been challenged.
10. It was further stated that the State Commission has accepted the report of the surveyor. Otherwise also, the report of the surveyor cannot be rejected without any cogent reason. The complainant is challenging the surveyor's report only on the ground that the volumetric analysis done by the surveyor is not correct and the surveyor has not considered the actual area in the shop where the cigarettes stock was kept. It has been alleged that the surveyor demanded Rs.75,000/- for giving a favourable report. The surveyor himself has filed an affidavit where this allegation has been totally denied. If this had been true, the surveyor could have disallowed the total claim. Moreover, if any money was demanded by the surveyor, a complaint should have been lodged by the complainant before the police or some other competent authority which could have taken cognizance of the same. The sketch map drawn by the surveyor for the space occupied by the cigarettes has not been challenged by the complainant in the complaint though the same was annexed with the surveyor's report. Learned counsel for the complainant has argued that this sketch map was not provided along with surveyor's report. There is a reference of map in the surveyor's report. If the same was not supplied, the complainant should have asked for the same.
11. The surveyor has doubted the stock on another count that, though there were purchases right from February, 2009 till April, 2009, but there was no sale during this period. The explanation given by the complainant that he was only holding the stock with the hope that price will increase after Budget. There should have been regular sale during this period also, if the complainant was in the business of purchase and sale of cigarettes.
12. Learned counsel further mentioned that on 31.03.2008 stock was Rs.9.21 lacs, therefore, on 31.03.2009 the stock cannot be expected to increase to the level of about Rs.42 lacs. Thus, the surveyor has rightly assessed the stock of the cigarettes by also confirming the same from the volumetric analysis.
13. I have carefully considered the arguments advanced by the learned counsel for the parties and have examined the record. The State Commission has already directed the Insurance Company to pay amount of Rs.20,66,315/- as assessed by the surveyor to the complainant along with 12% p.a. interest. This appeal has been filed mainly for enhancement of compensation in respect of cigarettes assessed by the surveyor. The appellant's case is that there was stock of cigarettes worth Rs.42,00,000, but the surveyor has assessed this stock only for Rs.3,81,478/-. In respect of cigarettes stock, the surveyor has assessed the following:-
"As observed by us also, in the area identified as storage place of cigarettes, we have not observed debris/salvage equivalent to the magnitude of around 50,000 cigarette packets.
As explained by insured cigarettes are packed in the packets containing 10 & 20 cigarettes each.
These packets are packed in a small carton of 50 & 100 packets, which are again packed in a bigger carton.
In the area marked as storage of cigarettes, we have observed heap of salvage/debris of soap, paste, brush, oil etc. only & not that of cigarettes."
In conclusion, we state our remarks as under:
The purchases of cigarettes are done by insured during February 2009 to April 2009.
There is no sale of cigarettes as claimed by insured during the period of three months i.e. February 2009 to April 2009, even when the purchases were to the tune of Rs.43 Lacs.
Thereby, insured claims that entire purchases of Rs.43 Lacs were in stock at the time of loss.
As observed by preliminary surveyor & also by us the debris/salvage of around 5000 boxes i.e. 50,000 packets of cigarettes were not available after fire at the place identified for storage of cigarettes.
Remarks
6. We have done volumetric analysis of the storage place required for the stock claimed to have been burnt, which works out to around 421 cubic feet. Had the stock in so much of area would have burnt, substantial identifiable debris/ash would have remained in the said area, which he was not there in the area identified.
8. Considering the area required for storage of volume of stock claimed by insured; the debris of cigarettes in the area identified by insured was not available, the debris at the place was for items other than cigarettes.
9. As per the our observations the area of storage in which the debris could be seen was only the racks towards south outside the cabin & certain quantity below the racks, around half burnt packets out of which could be physically seen in debris. And in no other place debris/remains of the burnt cigarettes could be seen.
10. As no remains/debris of the cigarettes was available in the area identified for storage, the loss to the tune of around 50000 packets (5630 boxes) is not justified. Even, preliminary surveyor have commented that there was no overpowering smell of cigarettes & no identifiable remains of cigarettes were available when they visited."
14. From the analysis of the surveyor, it is brought out that though the purchases are entered into register of the complainant from February, 2009 till April 2009, but there is no sale during this period. Moreover, the sudden increase in the stock is also not explained. The insured has stated that he was holding the stock of cigarettes anticipating price rise after the Budget. However, the Budget was presented only in July, therefore, no stock could be sold. On 31.03.2008, the stock of cigarettes was only Rs.9.21 lacs. Moreover, the surveyor has done volumetric analysis in respect of the space in the shop and has concluded that a space of only 25 cubic feet could have been occupied by the cigarettes and accordingly assessed the loss to the tune of Rs.3,81,478/-. Clearly the stocks as alleged by the complainant seems to be non-genuine as the surveyors have not found any debris for the huge stocks or even any smell of cigarettes when they inspected the shop. Moreover, the surveyors are appointed under the Insurance Act, 1938 and their report forms the basis for settlement of the insurance claim. The report of the surveyor cannot be rejected without any cogent reason as held by Hon'ble Supreme Court in the case of Sri Venkateswara Syndicate vs. Oriental Insurance Company Limited &Anr., (2009) 8 SCC 507, wherein it has been observed :-
"31. The assessment of loss, claim settlement and relevance of survey report depends on various factors. Whenever a loss is reported by insured, a loss adjuster, popularly known as loss surveyor, is deputed who assesses the loss and issues report known as surveyor report which forms the basis for consideration or otherwise of the claim. Surveyors are appointed under the statutory provisions and they are the link between the insurer and the insured when the question of settlement of loss or damage arises. The report of the surveyor could become the basis for settlement of a claim by the insurer in respect of the loss suffered by the insured.
32. There is no disputing the fact that the surveyor/surveyors are appointed by the insurance company under the provisions of the Insurance Act and their reports are to be given due importance and one should have sufficient grounds not to agree with the assessment made by them. We also add, that, under this Section the insurance company cannot go on appointing surveyors one after another so as to get a tailor-made report to the satisfaction of the officer concerned of the insurance company; if for any reason, the report of the surveyors is not acceptable, the insurer has to give valid reason for not accepting the report."
15. From the above, it is clear that the report of surveyor cannot be rejected without any cogent reason. No cogent reason has been given by the complainant for dismissing the report of the surveyor except that it has been alleged that the surveyor demanded Rs.75,000/- from the complainant to give report in his favour. The surveyors are independent loss assessor and they have to professionally survey and assess the loss. If any unprofessional act was shown by the surveyor and particularly if any amount was demanded by the surveyor then the complainant should have lodged the complaint with the competent authority or the Police, however, no such complaint seems to have been filed. No other proof has been filed by the complainant in order to substantiate his allegation. A consumer forum is not supposed to prejudice its mind on the basis of such allegation. Moreover, it is seen that the complainant is now alleging that the copy of the site plan prepared by the surveyor was not given to him along with survey report. There is a mention of this site map in the report of the surveyor and therefore, if the same was not enclosed with the report, the complainant should have demanded the same from the Insurance Company. It is all the more surprising that the complainant has not raised the issue of assessment of cigarettes as per the volumetric analysis by the surveyor in the complaint and now at the appellate stage this issue has been raised. It seems that it is only the afterthought of the complainant. Thus, I do not find any substance in the allegation of the complainant and no cogent reason for not accepting the report of the surveyor. The State Commission has rightly accepted the report of the surveyor.
16. In the above circumstances, this Commission does not find any justification for enhancing the amount of compensation for the loss of cigarettes. Consequently, I do not find any merit in the appeal and accordingly, First Appeal No.44 of 2012 is dismissed.
...................... PREM NARAIN PRESIDING MEMBER