State Consumer Disputes Redressal Commission
New India Assurance Co. Ltd. vs M/S Sharda Traders. on 30 November, 2015
H.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
SHIMLA.
First Appeal No.: 148/2015.
Date of Presentation: 25.08.2015
Date of Decision: 30.11.2015.
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The New India Assurance Company Limited,
Branch Manager,
Sankhyan Complex, Main Market, Bilaspur,
Through its Senior Divisional Manager,
3rd Floor, Block No.7, SDA Complex,
Kasumpti, Shimla- 171 009.
... Appellant.
Versus
M/s Sharda Traders,
Shop No.4, Near Bus Stand, Bilaspur,
Himachal Pradesh,
Through its Proprietor Shri Chander Shekhar Sharda,
Son of Shri Krishan Kumar Sharda,
House No.7, Roura Sector No.3, Bilaspur,
Himachal Pradesh.
...Respondent
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Coram
Hon'ble Mr. Justice Surjit Singh, President.
Hon'ble Mrs. Prem Chauhan, Member.
Hon'ble Mr. Vijay Pal Khachi, Member.
Whether approved for reporting?1 Yes.
For the Appellant: Mr. Ratish Sharma, Advocate
For the Respondent: Mr. Sanjay Gandhi, Advocate
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O R D E R:
Justice Surjit Singh, President (Oral) Appellant, New India Assurance Company Ltd., herein, has preferred this appeal against the order dated 17.06.2015, of learned 1 Whether reporters of the local papers may be allowed to see the order? The New India Assurance Company Ltd. Vs. M/s. Sharda Traders (F.A. No.148/2015) District Consumer Disputes Redressal Forum, Bilaspur, whereby a complaint, under Section 12 of the Consumer Protection Act, 1986, filed against it by respondent, M/s. Sharda Traders, has been allowed and a direction given to it, to pay a sum of `4,40,000/-, with interest at the rate of 9%, per annum, from the date of filing of complaint, i.e. 17.02.2010, to the date of payment of aforesaid amount of money, on account of insurance money, and a sum of `5,000/- on account of litigation cost.
2. Admitted facts are that respondent/ complainant is a business concern, dealing in haberdashery and general provisions at Bilaspur. Shops and godowns of the respondent are located at four different sites in the town of Bilaspur. One of the premises, where stock is stored, is known as Shop No.7. Other three premises of the respondent are known as Shop No.1, Shop No.4 and a godown near Laxmi Narayan Mandir. Stock-in-trade, kept in all the four premises, was insured with the appellant, in the sum of `15,00,000/-. On 02.05.2009, when the insurance policy was in force, 2 The New India Assurance Company Ltd. Vs. M/s. Sharda Traders (F.A. No.148/2015) a fire broke out in a shop adjoining shop No.7. Fire spread to adjoining shops, including shop No.7 of the respondent, in which a part of the insured stock-in-trade was stored. Intimation of the fire incident was given to the appellant. A Spot Surveyor was deputed by the appellant, who vide report dated 21.05.2009, Annexure R-6, reported that entire stock, kept in the shop, had been gutted in fire. Thereafter, a Final Surveyor was deputed, who submitted report, Annexure R-12. As per this report, total value of the stock, kept in shop, in question, at the time of incident, was `1,08,398.96. This value of stock was reduced by 2.5%, on account of dead-stock. Then, average clause was applied, as the value of total stock at the time of incident, was found to be `23,62,829/-, while the stock was insured in the sum of ` 15,00,000/-. Out of the figure, arrived at by applying average clause, `10,000/- were reduced on account of excess clause and a total amount of `57,095/-, was reported to be payable to the respondent.
3 The New India Assurance Company Ltd. Vs. M/s. Sharda Traders (F.A. No.148/2015)
3. Appellant demanded certain documents, particularly documents pertaining to the ownership of shop No.7 from the respondent and conveyed the figure of loss, assessed by the surveyor. Respondent wrote to the appellant, vide letter dated 27.11.2009, copy Annexure C-35, that he was dissatisfied with the quantum of loss, reported by the Surveyor and that fresh survey be conducted. Appellant did not address this concern of the respondent and kept on writing for the production of proof of ownership/lease of shop No.7 and finally closed the claim as 'no claim', vide letter dated 25.03.2010, Annexure R-4.
4. Respondent even before the closure of claim, filed complaint under Section 12 of the Consumer Protection Act, 1986, against the appellant before the learned District Forum, Bilaspur. Complaint was presented on 17.02.2010. Respondent sought a direction to the appellant to pay a sum of `5,50,000/-, which according to it, was the value of stock-in-trade, kept in the shop, in question.
4 The New India Assurance Company Ltd. Vs. M/s. Sharda Traders (F.A. No.148/2015)
5. Complaint was contested by the appellant and it was pleaded that claim had been filed as 'no claim', because of the respondent's failure to produce any proof that shop No.7, in which the fire had broken out, belonged to it or it was occupied by it (the respondent) as a tenant. With regard to the assessment of loss, it was stated that the Surveyor had correctly assessed the loss and respondent was not entitled to any amount of money, in excess of the amount reported by the Surveyor.
6. Parties adduced evidence in the form of documents before the learned District Forum.
7. It has been held by the learned District Forum that Surveyor, deputed by the appellant, did not physically verify the stock, kept in three other premises, to work out the value of stock, that was supposed to be in the shop, that was gutted in fire. With this finding, complaint has been allowed and a direction given to the appellant to pay an amount of `4,61,381/-, as claimed by the respondent to be the value of stock, that was available in the shop, at 5 The New India Assurance Company Ltd. Vs. M/s. Sharda Traders (F.A. No.148/2015) the time of fire incident. From this amount, the learned District Forum has deducted a sum of `10,000/-, on account of excess clause and an amount equivalent to 2.5% of the value of stock, on account of dead-stock.
8. We have heard learned counsel for the parties and gone through the record.
9. As per insurance policy, Annexure C 1, respondent had got its stock-in-trade, kept in four premises, insured with the appellant. Fire had broken out only in one of the premises, i.e. Shop No.7, Mandir Market near Bus-stand. In para-13 of his report, Annexure R-12, the Surveyor has stated that the total stock, available with the respondent, on the relevant date, was worth `.24,23,415/- and this stock was kept in the four premises, described in the insurance policy, Annexure C 1. Incident of fire had taken place only in one of the premises, i.e. Shop No.7. Respondent claimed that value of the stock, that was available in the premises, was `4,61,381/-. Surveyor, though in para-7.1 of his report stated that it was not possible to identify the 6 The New India Assurance Company Ltd. Vs. M/s. Sharda Traders (F.A. No.148/2015) items, but somehow he had taken the inventory of damaged stock and assessed the loss on the basis of inventory of damaged stock. In para 15.4, he stated the inventory of the damaged stock and its value was worked out at `1,08,398.96. Spot Surveyor, in his report, Annexure R-6, stated that the entire stock, kept in the shop, in question, had been completely gutted.
10. Now when, as per Spot Surveyor, the entire stock kept in the shop, in question, had been completely gutted and the final surveyor stated in his report, vide para 7.1 that it was not possible to identify the items, how could he have worked out the value of stock, destroyed in fire, just on the basis of inventory of damaged stock. He prepared the inventory of only that stock, which was partly burnt or traces of which were available. He himself observed in para 7.1 that it was not possible to assess the value. Perhaps it was for the reason that inventory of those items of the stock, which had been completely brunt and reduced to ashes, could not be prepared.
7 The New India Assurance Company Ltd. Vs. M/s. Sharda Traders (F.A. No.148/2015)
11. Furthermore, the Surveyor himself reported that total stock, available with the respondent in all the four premises, insured with the appellant, was worth `24,23,415/-. Stock kept in only one of the four premises had been gutted in fire. Stock in the remaining three premises was intact. The surveyor, by physically checking the stock in three other premises and working out their value, could have very easily arrived at the exact value of the stock, that was available in the shop, in question, when the fire broke out. He was supposed to have totalled up the amounts of value of the stock, available in other three premises and reduced that figure from the total value of the stock, which as per him was available in all the four premises, when the incident of fire took place and by adopting this simple formula, the exact figure of value of stock in the premises, in question, at the time of fire, could have been worked out. Failure on the part of the Surveyor to follow this procedure vitiates its report.
8 The New India Assurance Company Ltd. Vs. M/s. Sharda Traders (F.A. No.148/2015)
12. The appellant was requested by the respondent when figure of loss, assessed by the Surveyor, was conveyed to it that a fresh survey be conducted. Appellant, for the reason best known to it, did not pay any heed to the request of the respondent, which he made through Annexure C-35. Appellant is, therefore, liable to adverse inference.
13. In view of the above discussion and finding, we are left with no alternative, but to assess the value of stock, available in the shop, in question, on the basis of estimate submitted by the respondent to the Surveyor vide statement, Annexure C-5. As per this statement, respondent purchased goods worth `4,95,650.51, against twenty bills, which are attached with this list, from various stockiest/suppliers. Dates of bills are given. Out of this stock, goods worth `34,269.51 are stated to have been sold. Twenty bills, mentioned in Annexure C-5, bear the dates from 11.02.2009 to 30.04.2009. It is not in dispute that the premises, in question, were being used as godown. This fact finds mention in the Surveyor's report also. Dates of 9 The New India Assurance Company Ltd. Vs. M/s. Sharda Traders (F.A. No.148/2015) two bills, included in Annexure C-5, are 11.02.2009 and 09.03.2009. These are long before the date of incident, i.e. 02.05.2009. It can legitimately be presumed that goods, purchased against these two bills, might have been sold or shifted from the godown to retail premises, by the time, incident of fire took place. Total value of the goods, purchased against these two bills comes to `61,027/-. This amount, in our considered view, should be reduced from the total value of stock indicated by the respondent in Annexure C-5, i.e. `4,61,381/-. Value of the goods thus comes to `4,00,354/-.
14. Total stock in all the four premises was worth `24,23,415/-, as per Surveyor's own report, Annexure R-12. Insurance policy, Annexure C-1, contains average clause, in accordance with which if the value of stock-in-trade is found to be in excess of the sum for which the stock was insured, the insured has to bear loss in ratable proportion. Stock was insured in the sum of `15.00 lacs, vide Annexure C-1. By applying average clause, per which the respondent has to bear loss in ratable 10 The New India Assurance Company Ltd. Vs. M/s. Sharda Traders (F.A. No.148/2015) proportion, the amount in respect of which he can claim indemnification comes down to `2,47,805/-. This amount is required to be reduced by 2.5% on account of value of dead-stock. Figure comes to `2,41,610/-. Out of this amount, a sum of `10,000/-, is required to be deducted on account of excess clause. Net amount, payable to the respondent, thus works out at `2,31,610/-.
15. As a result of the above findings and discussion, appeal is partly allowed and it is ordered that instead of paying `4,40,000/-, on account of insurance money, with interest at the rate of 9%, per annum, from the date of filing of complaint, to the date of payment of insurance money, as ordered by the learned District Forum, appellant shall pay only a sum of `2,31,610/-. In addition, the appellant shall also pay costs of complaint, as awarded by the learned District Forum. Interest shall also be payable by the appellant on the reduced amount of insurance claim, at the rate of 9%, per annum, from the date of filing of complaint, 11 The New India Assurance Company Ltd. Vs. M/s. Sharda Traders (F.A. No.148/2015) to the date of payment of aforesaid amount of money.
16. A copy of this order be sent to each of the parties, free of cost, as per Rules.
(Justice Surjit Singh) President (Prem Chauhan) Member (Vijay Pal Khachi) Member November 30, 2015.
DKM) 12