National Consumer Disputes Redressal
New India Assurance Co. Ltd. vs M/S Uni Ply Industries on 16 July, 2013
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 342 OF 2013 (From the Order dated 10.10.2012 in Appeal No. 441/2008 of Haryana State Consumer Disputes Redressal Commission, Panchkula) New India Assurance Co. Ltd. Yamuna Nagag Through its Manager Petitioner Regional Office, S.C.O. No.36-37 Sector 17-A, Chandigarh Versus M/s Uni Ply Industries Respondent Village Jorian Yamuna Nagar Through Sh. Rajiv Gupta S/o Shri H.R. Gupta R/o House No.523-L Model Town, Yamuna Nagar Haryana BEFORE: HONBLE MR. JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER HONBLE MR. SURESH CHANDRA, MEMBER For the Petitioner : Shri Mohan Babu Aggarwal, Advocate Pronounced on : 16th July, 2013 O R D E R
PER SURESH CHANDA, MEMBER The petitioner Insurance Co. which was OP before the District Forum has filed this revision petition against the concurrent finding of both the Fora below holding the petitioner company liable for deficiency in service in terms of the impugned order passed on 10.10.2012 by the State Consumer Disputes Redressal Commission, Haryana, Panchkula in FA No.441/2008. By its order, the State Commission dismissed the appeal of the petitioner Co. and upheld the order dated 3.1.2008 passed by the District Forum, Yamuna Nagar in consumer complaint No.1115 of 2007. The District Forum had allowed the complaint of the respondent / complainant by granting the following reliefs:-
Resultantly we allow the complaint of the complainant and direct the respondent to pay the balance amount of Rs.10,86,592/- along with interest at the rate of 12% per annum after three months of the causing of fire till realization and to pay Rs.11,000/- as litigation expense. Order be complied within one month.
2. Briefly stated, the respondent/complainant had insured stock of its factory for a sum of Rs.30 lakhs vide cover note valid from 10.4.2005 to 9.4.2006 issued by the petitioner Co. The insurance cover was renewed for next year also by the respondents and was valid upto 9.4.2007. According to the respondent/complainant, the petitioner Insurance Co. issued one page cover note only of the said policy and never issued the terms and conditions with this policy to the complainant. On the intervening night of 5-6th April 2006, a fire broke out in factory premises resulting into huge loss of stock. The complainant lodged the DDR on 6.4.2006 with the local police followed by intimation to the petitioner Co. which deputed spot surveyor who verified the fact of fire along with Branch Manager of the petitioner Co. The petitioner Co. appointed another surveyor for assessing the loss. The complainant lodged a claim with the petitioner Co. for Rs.19,46,800/- along with necessary documents for settling the claim. The petitioner Co. informed the complainant about the settlement of the claim at Rs.8,60,208/- for which a cheque dated 1.12.2006 was issued by the petitioner Co. to the complainant after making certain deductions from the sum of Rs.10,86,592/- which had been assessed as loss by the surveyor. The respondent / complainant received the said amount and signed the discharge voucher indicating it to be only a partial settlement and thereafter the respondent continued to represent against the deduction made from the sum of Rs.10,86,592/-. Since the differential amount which had been deducted from the figure of loss assessed by the surveyor was not allowed by the petitioner Co., the respondent / complainant filed a consumer complaint alleging it a case of deficiency in service on the part of the petitioner Co. On being noticed, the petitioner Co. contested the complaint and raised the plea that it had already settled the case of the complainant within a reasonable time and paid a sum of Rs.8,60,208/- as full and final settlement and nothing remained due to the complainant by the OP Co. It was further submitted by the OP Co. that the claim was settled as per the report of an IRDA approved independent surveyor and loss assessor who had arrived at a net loss figure of Rs.8,60,208/ subject to terms and conditions as well as limitations and exceptions provided in the insurance policy. Since certain amount was deducted as per excess clause and the net amount had been disbursed as per full and final settlement, the OP Co. denied any kind of deficiency in service on its part and prayed for dismissal of the complaint.
3. The District Forum after hearing the parties and appraising the evidence placed before it, allowed the complaint in terms of the aforesaid order which after challenge by the OP insurance co. before the State Commission came to be confirmed in appeal.
4. We have heard arguments of learned counsel Sh. Mohan Babu Aggarwal, Advocate for the petitioner. Learned counsel submitted that petitioner had appointed IRDA approved surveyor and loss assessor to give his preliminary surveyor report and it had also appointed another surveyor to certify and assess the final loss in the premises of the insured. He submitted that based on the surveyors report which assessed the loss to the tune of Rs.8,60,208/- after making necessary deductions on account of excess clause, the amount was immediately disbursed to the complainant and the complainant accepted it. He contended that the surveyor is the best person to assess and ascertaining the loss and its recommendations should have been accepted as provided in the Insurance Act. Another contention raised by learned counsel was that the payment made by the insurance co. was by way of full and final settlement of the claim lodged by the complainant and since he accepted the amount sent by cheque and signed the discharge voucher, the complainant is not entitled for any further relief. In view of this, learned counsel submitted that the Fora below erred in ignoring these aspects while awarding further compensation over and above that recommended by the surveyor and already accepted by the complainant towards full and final settlement of its claim. In the circumstances learned counsel prayed for setting aside of the impugned order and acceptance of the revision petition.
5. We have considered the arguments of learned counsel and perused the reports of the surveyors as well as the orders of the Fora below. The points raised by learned counsel have been considered at length by the District Forum in its order which has been upheld by the State Commission by the impugned order. The submission of the learned counsel regarding settlement of claim by way of full and final settlement is obviously not correct since it was submitted by the complainant and upheld by the Fora below that the respondent / complainant had accepted the cheque of Rs.8,60,208/- as partial relief and that too under protest. Nothing has been placed before us to rebut this fact. Besides this, it is settled law that surveyors report cannot be treated as last word and a gospel truth. The District Forum after considering the report has given its cogent reasons to disagree with the final figure of loss while giving the desired relief to the complainant. The State Commission has agreed with the finding. The State Commission while dismissing the appeal of the petitioner has made the following observations in its impugned order:-
After gone through the file as well as arguments of counsel for both the parties, we are of the considered view that it is admitted fact the factory of the complainant namely Unit Ply Factor was insured with the OP for amounting to Rs.30,00,000/-
and the said factory was enjoying CC limit against the stock statement with Oriental Bank of Commerce, Yamuna Nagar. It is also admitted that on intervening night of 5/6.4.2006 the fire broke out in the said factory and intimation in this regard was given to the OP and the complainant also lodged DDR with the police. It is also admitted that on intimation the OP appointed two surveyors, one for spot survey and second for conduct the final survey. It reveals from the final survey report that maximum quantity of insured stock of material was burnt and mixed up beyond recognition and it was not possible to prepare inventory of the damage stock. The surveyor after inspect the stock statement which are issued by the bank, the surveyor observed that on an average the insured is having stock worth Rs.29 lacs comprising of finishing raw material and made clear that the statement of account dated 31.3.2006 is shown the stock of Rs.29,29,067/- vide which this is clear that after deducting the said stock which was not damaged the insured suffered a loss to the tune of Rs.19,46,800/- lying in the factory premises due to fire. The surveyor after using the excess clause deduct the 20% as is clear from the surveyor report. But in our view if the ambiguity in terms and surveyor apply the excess clause of the policy which were not supplied the OP cannot claim benefit of the said clause. Moreover, the full and final settlement was not matured because the complainant accepted the amount under protest and endorsement to this effect was made on the voucher that it is part payment. Thus, deficiency in service on the part of appellant/opposite party stands proved. District Consumer Forum after considering each and every aspect of the case, rightly allowed the complaint of complainant.
6. The powers of National Commission flows from section 21(b) of the Consumer Protection Act, 1986 which reads thus:-
(b)to call for the records and pass appropriate orders in any consumer dispute which is pending before or has been decided by any District Forum within the State, where it appears to the State Commission that such District Forum has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested or has acted in exercise of its jurisdiction illegally or with material irregularity.
7. On reading of the above, it is obvious that the National Commission under its revisional jurisdiction have very limited powers in exercise of revisional jurisdiction. The National Commission can interfere with the orders of the Fora below if they have exceeded their jurisdiction under law or failed to exercise their jurisdiction or have acted in exercise of its jurisdiction with illegality or material irregularity. In the instant case on perusal of the record, we find that both the Fora below have returned their concurrent finding of fact. On perusal of the impugned order, we find that the State Commission has based its finding on analysis of the evidence produced. Counsel for the petitioner has failed to point out any material evidence ignored by the State Commission. Therefore, it cannot be said that the State Commission while passing the impugned order has committed any material irregularity, illegality or jurisdictional error which may call for interference by this Commission, in exercise of its revisional jurisdiction under section 21(b) of the Act. We, therefore dismiss the revision petition in limine with no order as to costs.
Sd/-....
(AJIT BHARIHOKE, J.) PRESIDING MEMBER Sd/-.
(SURESH CHANDRA) MEMBER SS/