State Consumer Disputes Redressal Commission
M/S Strutech Computers vs 1. The New India Assurance Company Ltd on 17 August, 2012
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH Complaint case No. : 72 of 2011 Date of Institution : 25.10.2011 Date of Decision : 17.08.2012 M/s Strutech Computers through its Proprietor Shammi Garg, SCO No.332, 1st Floor, Sector 9, Panchkula, Haryana (present address S.C.O. 7, First Floor, Sector 15, Panchkula, Haryana), complainant V e r s u s 1. The New India Assurance Company Ltd., through its Chief Manager, Regd. & Head Office:- New India Assurance Bldg. 87, M.G. Road, Fort Mumbai-400 001 2. The New India Assurance Company Ltd., through its Senior Divisional Manager Bancassurance, Divisional Office: 350300, S.C.O. 37-38, Sector 17-C, Chandigarh. 3. Consolidated Surveyors Pvt. Ltd., through its Director Sh. N.S. Sidhu, #171, Sector 36-A, Chandigarh-160036 4. Sh. Sanjay Gupta, Investigator, House No.2243, Sector 38-C, Chandigarh .... Opposite Parties Complaint under Section 17 of the Consumer Protection Act, 1986. BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT. MRS. NEENA SANDHU, MEMBER
Argued by: Ms.Anupam, Advocate for the complainant.
Ms. Neena Madan, Advocate for the Opposite Parties.
PER JUSTICE SHAM SUNDER (RETD.), PRESIDENT.
1. The facts, in brief, are that the complainant, through its Sole Proprietor, namely Shammi Garg, having one of its Offices at SCO No.332, 1st Floor, Sector 9, Panchkula, Haryana (present address S.C.O. 7, First Floor, Sector 15, Panchkula, Haryana), is engaged in the business of selling laptops, desktops, networking and allied products. Vide insurance policy No.350300/46/09/04/0000409 (infact 350300/46/ 09/04/00000409), issued on 16.06.2009, valid for the period from 28.06.2009 to 27.06.2010, by the office of Opposite Party No.2, the stock of laptops, desktops, networking, allied products and other electronic products, pertaining to the business of the complainant, were insured, in relation to SCO No.332, 1st Floor, Sector 9, Panchkula office, for a sum of Rs.40 lacs. The premium in the sum of Rs.4,412/- was paid on the same day. It was stated that the complainant was made to understand, that all the losses, if any, incurred, on account of any calamity or mishap, in respect of the goods insured, would be accounted for and made good.
2. Unfortunately, on the night intervening 20/21.11.2009, burglary was committed at the business premises of the complainant, situated at Panchkula, by breaking open the lock of the showroom. It was found that the laptops, TFTs, which formed the subject matter of the aforesaid Insurance Policy, were stolen. F.I.R. No.525 dated 21.11.2009, was got registered under Sections 457/380 IPC, at Sector 5, Police Station, Panchkula. A list of the stolen items, was appended with the report, made by the complainant, on the basis whereof, the FIR was registered. In that list, the complainant, showed that products worth Rs.27,14,052/- had been stolen. Telephonic intimation of burglary was given to Opposite Party No.2 on 22.11.2009, followed by a letter dated 24.11.2009, which was sent by the complainant, to the office of Opposite Party No.2. The office of Opposite Party No.2, acknowledged the same, and started its proceedings. A claim form, in this regard, was filled in by the complainant, in the sum of Rs.27,14,000/- approximately. After a series of correspondence, some documents were requisitioned by Opposite Party No.2, which were duly submitted by the complainant, except the final Police report, which had not been received, by that time, from the Police Station. However, the same was sent to the office of Opposite Party No.2, as soon as, it was received, from the Police Station. It was further stated that whatever documents were requested by respondents no.3 and 4, were also submitted to them, by the complainant. It was further stated that despite compliance of all the requirements of the Opposite Parties, a letter dated 05.04.2011- Annexure C-8, was received from Opposite Party No.2, to the effect that it had approved the claim of Rs.27,14,052/-, only to the extent of Rs.9,20,052/-. It was further stated that it was beyond the comprehension of a prudent man, as to how, such a little amount, was calculated, for such a huge loss, and the basis for the same, appeared to be incorrect or incoherent. Thereafter, letters dated 08.04.2011 and 18.04.2011, were sent to the office of Opposite Party No.2, by the complainant, regarding the same, but to no avail. In reply to the letters aforesaid, a letter dated 15.04.2011-Annexure C-11, was received from the office of Opposite Party No.2, stating therein, that the claim of Rs.9,20,052/-, had been approved, on the basis of assessment made by M/s Consolidated Surveyors Pvt. Ltd., Chandigarh. The complainant, made a request to Opposite Party No.2, vide letter dated 02.06.2011, to reconsider the claim. Reply dated 27.06.2011 was received from Opposite Party No.2, stating that the entire stock of the other two premises, located at Zirakpur and Manimajra, as per the books, was lying at Panchkula, and, therefore, Average Clause was applied.
3. It was further stated that letter dated 28.06.2011, alongwith a cheque dated 28.06.2011, bearing no.000569, for the amount of Rs.9,20,052/-, was received from the office of Opposite Party No.2, as full and final payment, towards the claim, in question. It was further stated that a letter dated 01.06.2011 (infact 01.07.2011), was also sent by the complainant, accepting the said payment, as part payment towards the claim, and it requested for a copy of the report of the Surveyor and Investigator. It was further stated that the complainant had maintained separate books of account, including trading accounts, and other relevant books, at each office, situated at Panchkula, Zirakpur and Manimajra. It was further stated that the complainant had separate Sales Tax numbers, in respect of his three premises. It was further stated that, so far as the burglary was concerned, that was only with regard to the products, kept in the premises at Panchkula, in respect whereof, the aforesaid Insurance Policy had been purchased. It was further stated that those products, did not have any connection, whatsoever, with the items kept at Zirakpur and Manimajra, which were separate entities. The complainant sent a number of letters, to the Opposite Parties, for reconsidering his claim, and payment of the remaining amount, but to no avail. It was further stated that the aforesaid acts of the Opposite Parties, amounted to deficiency, in rendering service, as also indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 17 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), for directions to the Opposite Parties, to pay a sum of Rs.29,66,212/-, together with future interest, @18% P.A., from the date of filing of the complaint; Rs. 5 lacs as compensation/damages for mental agony, and physical harassment; and Rs.1,000/- for each day, till the said amount was fully paid, was filed.
4. In their written version, Opposite Party No.1 and 2, pleaded that the complaint was not maintainable. It was further pleaded that the complainant had no locus standi, to file the complaint. It was stated that the claimed amount had been intentionally exaggerated by the complainant, so as to attract the pecuniary Jurisdiction of this Commission. It was further stated that the interest, calculated by the complainant @18% P.A., on the amount, which according to it, was still allegedly due to it, upto the filing of the complaint, could not be added to the other reliefs, claimed by it, with a view to determine the pecuniary Jurisdiction of the Commission. It was further stated that the policy, in question, was purchased by the complainant, for a sum of Rs.40 lacs, in respect of the products, mentioned in the complaint, at its Panchkula premises. It was further stated that the complainant did not cooperate with Opposite Parties No.1 and 2, the Surveyor and Investigator, appointed by them, as it did not supply the documents, asked for, from it, by sending the letters to it, again and again. It was further stated that, on receipt of the claim of the complainant, two Surveyors were appointed. It was further stated that the first Surveyor gave the Interim Survey report, and the second Surveyor gave the final Survey report. It was further stated that, infact, the complainant had not separately shown the products allegedly kept at two other locations, and was also claiming indemnification, in respect of the same. It was further stated that the second Surveyor, after making inquiry from the representative of the complainant, and on going through the documents, which were supplied by him, was right in coming to the conclusion, that a sum of Rs.9,20,052/-, was payable to the complainant. It was further stated that once a cheque in the sum of Rs.9,20,052/-, was received by the complainant, in full and final settlement of the claim, and the same was got encashed by it, later on, it could not raise any grouse, that it received that amount, only as a part payment of the claim, made by it. . It was further stated that neither there was any deficiency, in rendering service, on the part of Opposite Parties No.1 and 2, nor they indulged into unfair trade practice. The remaining averments, were denied, being wrong.
5. Opposite Parties No.3 and 4, the Surveyors and Investigators, filed their separate short replies.
6. The complainant filed rejoinder/replication, by way of the detailed affidavit, of its sole Proprietor namely Shammi Garg, by way of evidence, alongwith which, a number of documents were attached.
7. The Parties led evidence, in support of their case.
8. We have heard the Counsel for the parties, and, have gone through the evidence, and record of the case, carefully.
9. The first question, that falls for consideration, is, as to whether, the amount of Rs.6,72,212/-, as interest, calculated @18% P.A., upto the filing of the complaint, could be added to other reliefs, sought for, by the complainant, for the purpose of determining the pecuniary Jurisdiction of this Commission, or not. In our considered opinion, the component of interest, claimed/calculated by the complainant, to the extent of Rs.6,72,212/-, @18% P.A., upto the filing of complaint, could not be taken into consideration, for the purpose of determining the pecuniary Jurisdiction of this Commission. The complainant also could not calculate the interest @18% per annum, on its own volition, on the amount, which according to it, was still due to it, against Opposite Parties No.1 and 2, till the date of filing the complaint, so as to attract the pecuniary Jurisdiction of this Commission. In Shahbad Cooperative Sugar Mills Ltd. Appellant Vs. National Insurance Co. Ltd. & Ors. Respondents II (2003) CPJ 81 (NC), a case decided by a three Member Bench of the National Consumer Disputes Redressal Commission, New Delhi, the facts were that the complainant, filed a consumer complaint before the State Consumer Disputes Redressal Commission, Haryana, claiming an amount of Rs.18,33,000/-, with interest @18% per annum, on this amount, from the date of claim, till realization. It also claimed suitable damages, on account of loss caused to it. The State Consumer Disputes Redressal Commission, vide order dated 08.08.2002, disposed of the complaint with liberty reserved to the complainant, to approach the National Consumer Disputes Redressal Commission, holding that if interest @18% P.A. was allowed, on the amount of Rs.18,33,000/-, the amount will exceed Rs.20 lakhs ( at that time the pecuniary Jurisdiction of the State Consumer Disputes Redressal Commission was upto Rs.20 lacs), for which it had no pecuniary Jurisdiction. Feeling aggrieved, the complainant/appellant filed the aforesaid appeal. The National Consumer Disputes Redressal Commission, in the aforesaid appeal, held as under:-
Bare reading of the prayer made would show that the interest claimed by appellant pertains to the period upto the date of filing complaint, pendente lite and future. Rate and the period for which interest has to be allowed, is within the discretion of State Commission and the stage for exercise of such a discretion would be the time when the complaint is finally disposed of. Thus, the State Commission had acted erroneously in adding to the amount of Rs. 18,33,000/- the interest at the rate of 18% per annum thereon till date of filing of complaint for the purpose of determination of pecuniary jurisdiction before reaching the said stage. Order under appeal, therefore, deserves to be set aside. However, in view of change in pecuniary jurisdiction w.e.f. 15.3.2003, the complaint is now to be dealt with by the District Forum instead of State Commission.
Accordingly, while accepting appeal, the order dated 8.8.2002 is set aside. On complaint being returned by the State Commission, the appellant is permitted to file it before the appropriate District Forum for being decided on merits in accordance with law. No order as to costs.
10. The principle of law, laid down, in the aforesaid case, is fully applicable, to the facts of the instant case. In the instant case, the complainant claimed a sum of Rs.17,94,000/, by way of indemnification, on account of loss of its goods, which were got insured by it, from Opposite Parties No.1 and 2, and which amount was not paid by them (Opposite Parties No.1 and 2), or was illegally retained by them. It was, on account of this reason, that it claimed interest @18% P.A., upto the filing of the complaint, which according to its calculation, came to be Rs.6,72,212/-. The submission of the Counsel for the complainant, that the lumpsum amount of interest @18% P.A., claimed by it, upto the filing of the complaint, on the amount of Rs.17,94,000/-, which came to be Rs.6,72,212/-, could be added to the said amount and other reliefs sought for by it, for determining the pecuniary Jurisdiction, being devoid of merit, and contrary to the principle of law, laid down, in Shahbad Cooperative Sugar Mills Ltd.`s case (supra), is rejected. On the other hand, the submission of the Counsel for Opposite Parties No.1 and 2, that the amount of interest could not be added to the amount of Rs.17,94,000/-, claimed by the complainant, by way of indemnification, for determination of pecuniary Jurisdiction, of this Commission, appears to be correct, and is accepted.
11. The next objection, which was taken, by Opposite Parties No.1 and 2, in their written version, was to the effect that the complainant had intentionally exaggerated the amount of claim, with a view to attract the pecuniary Jurisdiction of this Commission. In our considered opinion, this objection of Opposite Parties No.1 and 2, does not appear to be correct, as would be discussed hereinafter. The complainant lodged the claim of Rs.27,14,052/-, with Opposite Parties No.1 and 2, in respect of the loss of the goods, in a burglary, which were got insured with Opposite Parties No.1 and 2, as it had taken the Insurance Policy, in the sum of Rs.40 lacs. Out of this amount, Opposite Parties No.1 and 2, approved the claim of the complainant, only to the tune of Rs.9,20,052/-. It was, under these circumstances, that the complainant, claimed that the amount of Rs.17,94,000/- (i.e. Rs.27,14,052/-
claimed amount (-) minus Rs.9,20,052/- received amount), had been illegally retained by Opposite Parties No.1 and 2, without any rhyme or reason. This fact could only be proved, from the evidence, to be led during the course of trial of the complaint. Primafacie, it, therefore, could not be said that the amount of Rs.17,94,000/-, claimed by the complainant, was exaggerated. The complainant also claimed a sum of Rs.5 lacs, as compensation/damages, for mental agony and physical harassment, caused to the Sole Proprietor thereof. It also claimed a sum of Rs. 1,000/- , per day, till the aforesaid amount was paid to it. It could also, by no stretch of imagination, prima-facie, be said that the amount of Rs.5 lacs, claimed by the complainant, on account of mental agony and physical harassment, caused to its Sole Proprietor, was an exaggeration on its part. The amount of compensation, if any, which may be granted to the Proprietor of the complainant, for mental agony and physical harassment, could only be determined, after the parties are allowed to lead evidence. At the time of determination of the pecuniary Jurisdiction, the Consumer Fora, is not to see whether the relief claimed by the complainant would ultimately, be granted to it or not. Both these amounts i.e. Rs.17,94,000/- (+) plus Rs.5,00,000/-, claimed by the complainant, if totaled up, fall beyond the pecuniary Jurisdiction of the District Forum. In these circumstances, the objection of Opposite Parties No.1 and 2, that the amount claimed by the complainant, was exaggerated, just with a view to attract the pecuniary Jurisdiction of this Commission, being devoid of merit, must fail, and the same stands rejected.
12. The Counsel for Opposite Parties No.1 and 2, however, placed reliance on Consumer Complaint No.135 of 2011, titled as Ramesh Kumar Sihan Hans, Vs. Goyal Eye Institute and Ors., decided on 30.03.2012, by the National Consumer Disputes Redressal Commission, New Delhi, in support her contention, that the claim, made by the complainant, in the complaint, was highly exaggerated, just with a view to attract pecuniary Jurisdiction of this Commission. The perusal of the facts of Ramesh Kumar Sihan Hans`s case (supra) clearly goes to show that the complainant, got his both eyes operated. For right eye, he also underwent second surgery. The total amount, which was spent by him, for operations, hospitalization, fee paid to the Doctors, spectacles, injections, bandage & dressing and medicines came to be Rs.86,050/-. He claimed compensation to the tune of Rs.3 crores, including the cost of treatment and losses incurred due to the negligence of the respondents, with interest @12% P.A., from 12.03.2010, till the date of actual payment. After detailed discussion, the National Consumer Disputes Redressal Commission, New Delhi, in the aforesaid case, came to the conclusion, that though the complainant had incurred expenses of Rs.86,050/- only, towards his medical treatment, yet he had claimed Rs.2.99 crores, towards non- pecuniary damages, without giving breakup of such high claim. It was further held by the National Consumer Disputes Redressal Commission, New Delhi, that the compensation for medical negligence or deficiency, in treatment, has to be commensurate with the resultant loss and injury to the patient or his heirs. Ultimately, the National Consumer Disputes Redressal Commission, New Delhi, came to the conclusion, that the claim made by the complainant, was highly exaggerated, grossly overvalued, and unrealistic. It was, under these circumstances, that the National Consumer Disputes Redressal Commission, New Delhi, in the aforesaid case, held that the complaint did not fall within its pecuniary Jurisdiction. It, accordingly, returned the complaint, to the complainant, with a liberty to file the same, before the appropriate Forum, after suitably modifying the valuation of the complaint. The facts of the aforesaid case, are clearly distinguishable, from the facts of the instant case. In the instant case, the complainant is not claiming, the compensation, to the tune of Rs.3 crores. The claim, made by the complainant, therefore, could not be, said to be highly exaggerated, grossly overvalued or unrealistic. Under these circumstances, no help can be drawn, by the Counsel for Opposite Parties No.1 and 2, from Ramesh Kumar Sihan Hans`s case (supra) to contend that the exaggerated claim had been made by the complainant, only to attract the pecuniary Jurisdiction of this Commission. The submission of the Counsel for Opposite Parties No.1 and 2, therefore, being devoid of merit, must fail, and the same stands rejected.
13. The next question, that falls for consideration, is, as to whether, the complainant, failed to cooperate with Opposite Parties No.1 and 2, and their Surveyors and Investigators, after lodging the claim, when the Proprietor thereof, was asked to submit various documents, by them (Surveyors and Investigators), and, as such, it was guilty of non-cooperation. This objection, taken by Opposite Parties No.1 and 2, in the written reply, also does not appear to be correct. There is, no dispute, about the factum that the complainant had taken Insurance Policy, in respect of the goods, in its premises at Panchkula, for the Insured Declared Value of Rs.40 lacs. The burglary, in the said premises was admittedly committed, on the night intervening 20/21.11.2009. The matter was reported by the complainant to the Police Station, Sector 5, Panchkula, on 21.11.2009, as a result whereof F.I.R. No.525 dated 21.11.2009, was registered under Sections 457/380 IPC. The complainant lodged the claim. Sanjay Gupta, Surveyor and Loss Assessor, wrote a letter annexure C-6 dated 03.03.2010 to M/s Strutech Computers, SCO 332, Sector 9, Panchkula, complainant, for submitting the documents as under:-
1.
Your Statement regarding the occurrence of loss giving the date time and circumstances under which the loss had occurred.
2. Copy of FIR, alongwith the list of claimed stolen items duly endorsed and forming part of the FIR.
3. Copies of Stock Register.
4. Item wise claim bill along with copies of purchase bills of the claimed lost items.
5. Copies of Balance Sheets for the year 2006-07,2007-08 and 2008-09.
6. Certified Trading and Profit & Loss Account from 01.04.2009 to the date of loss/or Certified statement from CA giving details of total stocks held at the above location as on date of loss.
7. Copy of Lease Deed/Rent deed of the Premises.
8. Details of stock held by you on other two locations/go-downs as on date of loss.
9. You shall be required to provide final investigation report as and when issued by the Police and also the order of the Competent Court assigning the case as untrace
14. In reply to the same, Annexure C-7, dated 31.03.2010, was sent by Mr. Shammi Garg, Proprietor of M/s Strutech Computers, complainant, vide which, he supplied the following documents:-
1.
Statement regarding the occurrence of loss
2. Copy of FIR
3. Copy of Stock Register
4. Item wise claim bill along with copies of purchase bills of the claimed lost items.
5. Balance Sheets for 2006-07,2007-08 and 2008-09.
6. Trading Account from 01.04.2009 to 20.11.2009
7. Copy of rent deed
8. Stock held on Firms other two locations.
15. Copy of Final Police Report was not supplied, as the same was not received from the Police. It was intimated vide the letter Annexure C-7, by the complainant, that the same would be submitted immediately, on its receipt, which was later on supplied. It is, therefore, evident, that whatever documents were sought for, by the Surveyor and Loss Assessor, from the complainant, the Proprietor supplied the same. Under these circumstances, it could not be said that the complainant did not cooperate with Opposite Parties No.1 and 2, and its Investigators and Surveyors. In the written reply, Opposite Parties No.1 and 2, no doubt, took up the plea, that the complainant did not cooperate with the Investigator and Surveyor, appointed by them. Alongwith this reply, a short affidavit, by way of evidence was filed. However, this short affidavit, does not bear the name of the person, who swore the same. After the title of the complaint, the words short affidavit of Shri New India Assurance Co., in support of reply, are written. This affidavit was required to be filed by a particular person, duly authorized, by Opposite Parties No.1 and 2, on solemn affirmation. No doubt, in para number 1 of this short affidavit, it was stated that the above named deponent do hereby solemnly affirm and declare as under, but the name of the deponent was not written, above the same. This affidavit, therefore, could not be read into evidence, as it is only a waste paper, having not been sworn by any person. Even the Surveyor and Investigator, filed their short replies and short affidavits. Opportunity was granted to Opposite Parties No.1 and 2, to file their detailed replies and detailed affidavits, but the Counsel for the Opposite Parties submitted that the Opposite Parties did not want to file the detailed affidavits. Under these circumstances, the contents contained in the replies, only remained allegations, unsubstantiated through any evidence, on record. Under these circumstances, the version, set up the complainant, that it supplied all the documents, as asked for from it, which was duly established, from the letter dated 31.03.2010, and supported by the detailed affidavit of its Proprietor, is required to be believed. It is, therefore, held that the complainant, cooperated with Opposite Parties No.1 and 2, as also their Investigators and Surveyors, and submitted all the documents, asked for from it, for the purpose of proper investigation. The submission of the Counsel for the Opposite Parties, in this regard, being devoid of merit, must fail, and the same stands rejected.
16. Undisputedly, the complainant took Insurance Policy for the Insured Declared Value of Rs.40 lacs, in respect of his goods, lying in the premises at Panchkula. Annexure C-20 is the final survey report, which was given by the Surveyor of Opposite Parties No.1 and 2. At page 65 of this report, the Surveyor came to the conclusion, that the total value of the stolen goods was Rs.24,76,375/- (excluding the one recovered by the Police). He, deducted dead stock to the tune of 10% from the amount of Rs.24,76,375/-, i.e. Rs.2,47,637.50P. From this amount, he again deducted 58.77%, being the amount of under insurance to the tune of Rs.13,09,829/- and came to the conclusion that the complainant was entitled to Rs.9,18,908.50P. At page 66 of the District Forum file, the detail of this amount, is mentioned. The complainant, in this case, lodged the claim of Rs.27,14,052/-. Alongwith the FIR, it also attached the list of articles, which were stolen, during the course of burglary, in its premises, at Panchkula. There is no condition, in the Insurance Policy, that 10%, on account of dead stock was to be deducted, from the total value of the goods stolen. How the Surveyor came to the conclusion, that 58.77% on account of under insurance was to be deducted, from the amount of Rs.24,76,375/-, is also not known. The mere fact that the complainant was also having its two other premises at Zirakpur and Manimajra, with different Sales Tax Numbers, and was maintaining different books of account, in respect thereof, as is proved from the affidavit of Mr. Shammi Garg, Sole Proprietor thereof, that did not mean that he was keeping articles of those premises also in the premises at Panchkula. No evidence was produced, by the Opposite Parties to the effect, that infact all the articles/goods were being kept, in the premises at Panchkula. No doubt, an observation was made by the Surveyor, in his report Annexure C-20, that when the premises at Zirakpur and Manimajra were visited, no stock was found there. There is no evidence on record, as to in whose presence, these premises were visited by the Surveyor. The name of the representative of the complainant, in whose presence the premises at Zirakpur and Chatt, were allegedly visited by the Surveyor was not mentioned. It was only on the basis of presumptions and conjectures that the Surveyor came to the conclusion, in his report Annexure C-20, that the articles/goods of the premises being maintained by the complainant at Zirakpur and Chatt, were also kept, in its premises at Panchkula, in respect of the stock whereof, the Insurance Policy had been taken by it. As stated above, there is no legally valid affidavit, to rebut the claim of the complainant. The affidavits of the Surveyors being short, bereft of details, though an opportunity was granted to file their detailed affidavits, but the Counsel for the Opposite Parties, stated that he did not want to file the same, as is evident from the Zimini order (short order), dated 15.02.2012, also cannot be read into evidence. Annexure R-1 to Annexures R-11, produced by the Opposite Parties, without being proved through any legal evidence, cannot be read. The Surveyor, in his report Annexure C-20, was wrong, in coming to the conclusion, that on account of under insurance 58.77% deduction (by applying average clause) was made, which came to be Rs.13,09,829/-. He was also wrong, in deducting the value of the alleged dead stock to the extent of 10%. The report of the Surveyor cannot be accepted as a whole, blindly. If any part of the same is found to be not supported by material, data, and legally admissible cogent and convincing evidence, then that can be ignored. As stated above, the complainant lodged the claim in the sum of Rs.27,14,052/-. Some of the goods were recovered by the Police. It was, under these circumstances, that the Surveyor vide report Annexure C-20 come to the conclusion, the total value of the stolen items was Rs.24,76,375/-. Both the aforesaid deductions, made by the Surveyor, from the value of the stolen goods, after subtracting therefrom the value of the goods recovered by the Police, were illegal and improper. It is, therefore, held that the complainant was entitled to the indemnification of loss to the tune of Rs.24,76,375/-, and not to the tune of Rs.9,20,052/-, which were paid to it, through cheque. By not indemnifying the loss of the complainant, to the tune of Rs.15,56,323/-, Opposite Parties No.1 and 2 were completely deficient, in rendering service, as also indulged into unfair trade practice.
17. It was, however, submitted by the Counsel for Opposite Parties No.1 and 2, that once the cheque of Rs.9,20,052/-, was received by the complainant, in full and final settlement of the claim, without raising any protest, and even that cheque was got encashed, later on, he could not turn round, and say that the amount was not in full and final settlement. Annexure C-14 is the letter dated 28.06.2011, with which a cheque in the sum of Rs.9,20,052/- was attached. No doubt on 02.07.2011, the cheque was got encashed by the complainant. However, vide letter Annexure C-16 dated 01.07.2011,(wrongly mentioned as 01.06.2011) , the complainant, in clear-cut terms, intimated Opposite Party No.2 that he was in receipt of letter dated 28.06.2011, alongwith which a cheque in the sum of Rs.9,20,052/- was attached. It was further intimated vide this letter, that the cheque had been accepted, as part payment of claim, till the time the full claim of Rs.27,14,052/-, was settled. Immediately, after the receipt of the cheque, he wrote back vide Annexure C-16 to Opposite Parties No.1 and 2, that the cheque had been received, only as part payment of the claim. It was not that the Proprietor of the complainant slept over the matter, for a number of days, and, thereafter, when he woke up from his deep slumber, he wrote back vide letter Annexure C-16, to Opposite Party No. 2, that the cheque of Rs.9,20,052/-, received by him vide letter dated 28.06.2011, was on account of part payment. Had the Proprietor of the complainant, slept over the matter, for a number of days, or months, and then intimated Opposite Party No.2, that the cheque was accepted by him, only as a part payment, then it would have been said, that he was estopped from doing so. Since the Proprietor of the complainant, at the first available opportunity, without wasting any time, wrote letter Annexure C-16, that the cheque of Rs.9,20,052/-, was accepted by him, as a part payment, it could not be said that he was estopped from claiming the remaining amount, which was due to it.
18. The Counsel for Opposite Parties No.1 and 2, however, placed reliance on Bhagwati Prasad Pawan Kumar-Appellant Vs. Union of India-Respondent, (2006-03) The Punjab Law Reporter, 76 (SC), and United India Insurance Co. Vs. Ajmer Singh Cotton & General Mills & Ors. etc., 1999(2) CPC, 601 (SC) in support of her contention, that once the amount of cheque in the sum of Rs. 9,20,052/-, was accepted by the complainant, in full and final settlement of the claim, the Sole Proprietor thereof, could not turn round, and claim the remaining amount of claim. In Bhagwati Prasad Pawan Kumar`s case (supra) the Railways made an offer to the appellant vide a letter dated 07.04.1993 laying down the conditions, that if the offer was not acceptable to it, the cheque should be returned forthwith, failing which it would be deemed, that it accepted the offer, in full and final satisfaction of its claim. It was further clarified, in this letter, by providing that retention of the cheque, and/or encashment thereof, will automatically amount to satisfaction, in full and final settlement of the claim. The appellant accepted the cheque, and encashed the same, without any demur or protest. Ultimately, vide letter dated 20.08.1993, it raised a protest that it did not accept the offer, in full and final settlement of the claim. It was, under these circumstances, held by the Apex Court, that once the offer was accepted without any protest or demur, by the appellant, and the cheques were got encashed by it, it did so, in full and final settlement of the claim. In United India Insurance Company`s case (supra) the principle of law, laid down, was that, when the claim was accepted by the complainant, without any objection or without any protest, as full and final settlement of the claim, made by the insurer, then it could not be allowed, to seek any further relief. It was further held that mere execution of the discharge voucher could not deprive the claimant of the consequential relief, particularly when such discharge voucher was obtained by fraud, misrepresentation or under coercion or by way of coercive bargain. There is, no dispute, with the principle of law, laid down, in the aforesaid cases. The facts and circumstances of Bhagwati Prasad Pawan Kumar`s case (supra) are completely distinguishable, from the facts and circumstances of the instant case. In the aforesaid case, protest was made after more than 4 months after the acceptance of the offer. In the instant case, the protest was made in 3 days of the receipt of cheque of a paltry amount. In the instant case, no condition was mentioned, in the letter, vide which the cheque was sent, that, in case, the same was not returned or was got encashed, it would be deemed that the offer was accepted in full and final settlement of the claim. In United India Insurance Company`s case (supra) it was, in clear-cut terms, held that mere execution of discharge voucher would not always deprive the consumer, from preferring claim, with respect to the deficiency, in service, of consequential benefit arising out of the amount, paid in default of the service rendered. Despite execution of the discharge voucher, the consumer may be in a position, to satisfy the Tribunal or the Commission under the Act, that such discharge voucher, or receipt had been obtained from him, under the circumstances, which can be termed as fraudulent or exercise of undue influence, or by misrepresentation, or by coercive bargaining, compelled by the circumstances. However, where such discharge voucher is proved to have been obtained, under any of the suspicious circumstances, the Tribunal or the Commission, would be justified, in granting the appropriate relief. In the instant case, no doubt, the cheque was accepted by the complainant, and was got encashed, but, immediately, thereafter, the Proprietor of the complainant, wrote a letter Annexure C-16, that the same was only received, as part payment of the claim, made by him. At that time, the complainant had no meaningful choice than to accept the cheque. He was in disadvantageous position, whereas, the Insurance Company i.e. Opposite Parties no.1 and 2, were in dominating position. Under these circumstances, it could be said, that it was a case of coercive bargaining, where a person in disadvantageous position, was pitted against a person, which is in a dominating position. In such circumstances, the person in a disadvantageous position, always accepts whatever little, offered to him, otherwise, he may not be able to get anything. It cannot be imagined that a person who filed claim of Rs.27,14,052/-, on account of loss of goods, in burglary, would accept a paltry amount of Rs.9,20,052/-, in full and final settlement of the claim. Surely, the Proprietor of the complainant had been coerced to do so. The alleged consent, given by the complainant, for accepting this amount, in full and final settlement was not proved, as no legally admissible evidence, of any authorized signatory, was produced, on record, by the Opposite Parties, to prove the averments, contained in the written reply. As stated above, even the affidavits of Surveyors and Investigators, were short and those could not be read into evidence. Under these circumstances, it is held that the complainant only accepted a sum of Rs.9,20,052/-, on account of coercive bargaining, entered into between a person in dominant position and a person in disadvantageous position. The complainant, was, thus, entitled to claim the remaining amount. It is, therefore, held that the complainant is entitled to a sum of Rs.15,56,323/-, (Rs.24,76,375/-, the loss assessed by the Surveyor vide Annexure C-20 (-) Rs. 9,20,052/ paid by Opposite Parties No.1 and 2, vide the cheque, aforesaid, by way of indemnification). The submission of the Counsel for Opposite Parties No.1 and 2, being devoid of merit, must fail, and the same stands rejected.
19. The next question, that falls for consideration, is as to whether, the complainant is entitled to interest, if so, at what rate, and from which date? The claim was lodged by the complainant on 21.11.2009. Its Proprietor also submitted the documents, vide Annexure C-7 dated 31.03.2010, to Sanjay Gupta, Surveyor and Loss Assessor, as demanded by him. The Opposite Parties were required to settle the claim of the complainant, at the latest within 6 months from 31.03.2010, when the documents, as required, were supplied by its Proprietor. The claim was, thus, required to be settled, on or before 30.09.2010. On the other hand, Opposite Parties No.1 and 2, lingered on the claim, and, ultimately, only paid a paltry amount of Rs.9,20,052/-, to the complainant, vide cheque dated 28.06.2011, Illegally retaining the remaining amount of Rs.15,56,323/-. Had the amount of Rs.15,56,323/-, been paid to the complainant, within 6 months, from the date of supply of all the required documents by it, i.e. from 31.03.2010, it would have invested the same, in business, and earned handsome returns thereon. The complainant was, thus, caused financial loss. The complainant is, thus, entitled to interest @9% p.a., on the amount of Rs.9,20,052/- from 30.09.2010 upto 28.06.2011. The complainant is also entitled to interest @9% p.a. on the amount of Rs.15,56,323/- from 30.09.2010, onwards.
20. No doubt, the complainant also claimed compensation in the sum of Rs. 5 lacs. The complainant is a Proprietorship concern, of which, Shammi Garg is the Sole Proprietor. Since, the complainant has been granted interest @9% p.a., on the amounts, referred to, in the foregoing paragraph, in our considered opinion, that would take care of the claim of compensation, made by the complainant, in this complaint. The complainant, is, thus, not held entitled to any separate compensation, claimed by it.
21. Insurance policy was purchased by the complainant, from Opposite Parties No.1 and 2. Opposite Parties No.1 and 2, were liable to indemnify the complainant, for the loss suffered by it, on account of burglary committed, in its premises. Opposite Parties no.3 and 4, are only the Surveyors, appointed by Opposite Parties No.1 and 2. They are not personally liable for the indemnification of loss, as they only conducted survey, to find out the estimated loss, caused to the complainant, on account of burglary. The complaint, against Opposite Parties No.3 and 4, is, therefore, liable to be dismissed.
22. No other point, was urged, by the Counsel for the parties
23. For the reasons recorded above, the complaint is partly accepted, with costs, in the following manner, against Opposite Parties No.1 and 2:-
i. Opposite Parties No.1 and 2, are directed to pay Rs.15,56,323/- i.e. (Rs.24,76,375/, the loss assessed by the Surveyor vide Annexure C-20 (-) Rs. 9,20,052/-, already paid to the complainant by Opposite Parties No.1 and 2).
ii. Opposite Parties No.1 and 2, are further directed to pay interest @9% P.A., on the amount of Rs.15,56,323/- from 30.09.2010, onwards, and on Rs.9,20,052/- from 30.09.2010 upto 28.06.2011 iii. Opposite Parties No.1 and 2, are further directed to pay Rs.20,000/-, as costs of litigation.
iv. The amounts mentioned in clauses (i) and (ii) shall be paid by Opposite Parties No.1 and 2, within 45 days, from the date of receipt of a certified copy of the order, failing which they shall be liable to pay the same, alongwith penal interest @12% P.A., instead of interest @9% P.A., from the dates indicated above, till realization, besides payment of costs of Rs.20,000/-
24. The complaint against Opposite Parties No. 3 and 4, is dismissed, with no order as to costs.
25. Certified Copies of this order be sent to the parties, free of charge.
26. The file be consigned to Record Room, after completion Pronounced.
August 17, 2012 Sd/-
[JUSTICE SHAM SUNDER(RETD.)] PRESIDENT Sd/-
[NEENA SANDHU] MEMBER Rg