State Consumer Disputes Redressal Commission
M/S Raj Dairy. vs Oriental Insurance Co. Ltd. on 12 July, 2016
H.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
SHIMLA.
First Appeal No.: 143/2016
Date of Presentation: 13.05.2016
Date of Decision: 12.07.2016
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M/s. Raj Dairy, Shop No.3,
Summer hill, Shimla-5, H.P.,
Through its Proprietor Raj Kumar,
Son of late Shri Basaria Ram,
Summer hill, Shimla-5, H.P.
... Appellant.
Versus
The Oriental Insurance Company Limited,
Divisional Office Mythe Estate Kaithu,
Shimla-3, Himachal Pradesh.
...Respondent
...........................................................................................
Coram
Hon'ble Mr. Justice Surjit Singh, President.
Hon'ble Mr. Vijay Pal Khachi, Member.
Whether approved for reporting?1
For the Appellant: Mr. Raj Kumar, Advocate vice
Mr. Himanshoo Panwar, Advocate
For the Respondent: Mr. P.S. Chandel, Advocate
.......................................................................................
O R D E R:
Justice Surjit Singh, President (Oral) Appellant has preferred this appeal against the order dated 07.01.2016, of learned District Consumer Disputes Redressal Forum, Shimla, whereby his complaint, under Section 12 of the Consumer Protection Act, 1986, which he filed against the respondent has been partly allowed, because as against the claim for `3.00 lacs, on 1 Whether reporters of the local papers may be allowed to see the order? M/s. Raj Dairy Versus Oriental Insurance Company Ltd.
(F.A. No.143/2016) account of insurance money, only a sum of `20,000/-, has been directed to be paid.
2. Appellant filed a complaint, under Section 12 of the Consumer Protection Act, 1986, against the respondent, alleging that he had been running a shop, in the name of M/s. Raj Dairy, in Summer Hill, and the stock-in-trade was being got insured with the respondent, for the last ten years. It was alleged that last policy, in the sum of `3.00 lacs, was purchased on 18.10.2008, which was to remain in force up to 17.10.2009. According to the appellant, on 13.09.2009, when the policy was in force, structure of the shop collapsed, due to heavy rain and goods kept in the shop, were damaged. Intimation of incident was given to the respondent, who deputed a Surveyor. Loss was assessed by the Surveyor at `20,000/-. Respondent repudiated the claim on the ground that as per proposal form, the shop was A class Pukka structure, while the Surveyor found that the shop, consisted of wooden and tin structure only.
3. Appellant then filed a complaint, seeking a direction to the respondent to pay a sum of `3.00 lacs, on account of insurance money. He also claimed compensation and litigation expenses. 2
M/s. Raj Dairy Versus Oriental Insurance Company Ltd.
(F.A. No.143/2016)
4. Respondent contested the complaint, on the same ground, on which the claim had been repudiated. Learned District Forum has directed the respondent, vide impugned order to pay `20,000/-, 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 the aforesaid amount of money and also to pay `10,000/-, on account of punitive compensation and `5,000/-, as litigation expenses.
5. Appellant is aggrieved by the impugned order in so far as it pertains to quantum of indemnification. So, he has preferred this appeal.
6. No appeal has been filed by the respondent against the order of learned District Forum, rejecting its plea that shop was shown to be as A-class Pukka structure in the policy, while on the spot, it was found to be a structure of wood and tin sheets.
7. The only issue that needs to be determined is as to what is the amount of loss, in monetary terms, suffered by the appellant, due to collapse of structure. Appellant has claimed a sum of `3.00 lacs, on account of loss, sustained by him. Cover note, Annexure P-1, submitted with the 3 M/s. Raj Dairy Versus Oriental Insurance Company Ltd.
(F.A. No.143/2016) complaint, shows that the appellant had insured stock-in-trade, in the sum of `2,70,000/- and the furniture, fixtures & fittings, including the counter, in the sum of `30,000/-.
8. Appellant himself submitted to the respondent claim form, Annexure OP-2, per which, he had salvaged goods worth `8,718/-. He also submitted the list of articles, which were destroyed. This list forms part of Annexure OP-2. As per this list, articles worth `26,137/-, had been destroyed. In addition, furniture, fixtures & fittings, worth `40,000/-, were alleged to have been destroyed.
9. Surveyor, per his report, Annexure OP-6, has noticed that the appellant claimed `34,855/-, on account of loss of stock-in-trade. He reduced this amount by `6,310/-, on account of stock, comprising of cosmetic items. Then he reduced the resultant figure by `11,737/-, with the observation that neither the salvage of the items worth this amount, nor their purchase bills, had been produced. Figure, so arrived, was further reduced by 20%, on account of approximation. Further, he reduced the resultant figure by 8%, on account of margin of profit. He added `40,000/-, to the resultant figure, on account of furniture, fixtures, 4 M/s. Raj Dairy Versus Oriental Insurance Company Ltd.
(F.A. No.143/2016) fittings etc. The total amount, worked out by him, was `52,813.76/-. From this amount, he deducted `20,000/-, on account of depreciation in the value of furniture, at the rate of 50%. From the figure, arrived after subtraction of `20,000/-, on account of depreciation, he reduced an amount of `2,813.76/-, on account of salvage value of the furniture, fixtures etc. Then he subtracted an amount of `10,000/-, on account of excess clause and worked out the net amount payable at `20,000/-.
10. Surveyor's observation that the appellant had claimed `34,855/-, on account of loss of stock-in-trade, is not correct. Lists submitted by the appellant, with the claim form, Annexure OP-2, relied upon by the respondent itself, show that the appellant claimed that goods worth `26,137/- only, had been destroyed. He gave another list of items, worth `8,718/-, which had been salvaged and the stock of cosmetic items was included in this list. List of destroyed items does not include any cosmetic item. Surveyor has nowhere stated that these items had not been destroyed. Otherwise also, when the stock-in-trade was insured, in the sum of `2,70,000/-, and as against the insured sum, the appellant in, Annexure OP-2, had claimed that 5 M/s. Raj Dairy Versus Oriental Insurance Company Ltd.
(F.A. No.143/2016) goods worth `26,137/- only, had been destroyed, there could not have been any reason for the Surveyor to have suspected this claim, or reduced this figure, simply for the reason that the appellant could not produce their procurement bills. This amount, at the most, could have been reduced by 8%, on account of margin of profit and when so reduced, the amount comes down to `24,046/-.
11. Surveyor has accepted appellant's claim with regard to damage to the furniture, fixtures & fittings. However, he was not justified in reducing the value of furniture by 50%, on account of depreciation. The furniture was insured in the sum of `30,000/-, only eleven months before the incident, resulting in their loss, took place. Within a period of just eleven months, there could not have been 50% depreciation in their value.
12. However, we find that there is average clause in the policy. The furniture, according to the appellant, was worth `40,000/-. It was insured in the sum of `30,000/- only. Therefore, by application of average clause, the appellant is to be taken to be his own insurer, in respect of the amount, by which the value of furniture, fixtures etc., exceeds the sum insured. This way, the sum insured, i.e. 6 M/s. Raj Dairy Versus Oriental Insurance Company Ltd.
(F.A. No.143/2016) `30,000/-, for the furniture, fixtures etc., is required to be reduced by 25% and when so reduced, it comes down to `22,500/-. The appellant is thus shown to have suffered loss to the tune of `46,546/-. From this amount a sum of `10,000/-, is required to be deducted, on account of excess clause. Thus, the total amount payable comes to `36,546/-
13. As a result of the above discussion, appeal is partly allowed and it is ordered that instead of paying a sum of `20,000/-, on account of insurance money, respondent shall pay a sum of `36,546/-, with interest, from the date and at the rate, as directed by the learned District Forum and shall also pay compensation and costs, awarded by the learned District Forum.
14. A copy of this order be sent to each of the parties, free of cost, as per Rules.
(Justice Surjit Singh) President (Vijay Pal Khachi) Member July 12, 2016.
GAURAV) 7