National Consumer Disputes Redressal
Rohtas & Anr. vs United India Insurance Co. Ltd. & Ors. on 1 November, 2017
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 400 OF 2011 (Against the Order dated 06/12/2010 in Appeal No. 47/2007 of the State Commission Haryana) 1. ROHTAS & ANR. Shop No. 16, Dada-Pota Market, Sukhdev Nagar Panipat Haryana 2. M/S. DHABRA TRADING COMPANY Through its Proprietor Shri Rohtas, S/o. Sh. Om Prakash, Shop No. 16, Dada-Pota Market, Sukhdev Nagar Panipat Haryana 3. M/S. DHABRA TRADING COMPANY Through its Proprietor Shri Rohtas, S/o. Sh. Om Prakash, Shop No. 16, Dada-Pota Market, Sukhdev Nagar Panipat Haryana ...........Petitioner(s) Versus 1. UNITED INDIA INSURANCE CO. LTD. & ORS. Through its Divisional Manager, LIC Building, Rajguru Market, Near Bus Stand Panipat Haryana 2. UNITED INDIA INSURANCE COMPANY Through its Regional Manager, Regional Office Chandigarh 3. UNITED INDIA INSURANCE COMPANY Through its Regional Manager, Regional Office Chandigarh 4. UNITED INDIA INSURANCE COMPANY Through its Chief Managing Director, Having its Registered Office at 21, White Road Chennai Tamil Nadu ...........Respondent(s)
BEFORE: HON'BLE MR. DR. B.C. GUPTA,PRESIDING MEMBER HON'BLE MR. DR. S.M. KANTIKAR,MEMBER
For the Petitioner : For the Respondent :
Dated : 01 Nov 2017 ORDER
APPEARED AT THE TIME OF ARGUMENTS
For the Petitioners
:
Mr. Aftab Singh Khara, Advocate
Mr. Dushyant Tiwari, Advocate
For the Respondents
:
Mr. A.K. De, Advocate
Ms. Ananya De, Advocate
PRONOUNCED ON : 1ST NOVEMBER 2017
O R D E R
PER DR. B.C. GUPTA, MEMBER This revision petition has been filed under section 21(b) of the Consumer Protection Act, 1986 against the impugned order dated 06.12.2010, passed by the Haryana State Consumer Disputes Redressal Commission (hereinafter referred to as 'the State Commission') in First Appeal No. 2899/2006, "Rohtas & Anr. versus United India Insurance Co." & FA No. 47/2007 "United India Insurance Co. vs. Rohtas & Anr.", vide which, FA No. 2899/2006 filed by the complainant was ordered to be dismissed, whereas FA No. 47/2007 filed by the Insurance Co. was ordered to be accepted and the order dated 08.12.2006, passed by the District Forum, Sonepat in consumer complaint No. 246/2006, filed by Rohtas & Ors. was modified.
2. Briefly stated, the facts of the case are that the petitioner Rohtas is proprietor of M/s. Dhabra Trading Company and he had obtained an insurance policy from the opposite party (OP), the United India Insurance Company, valid from 13.01.2004 to 12.01.2005 for the general merchandise stocks at his business premises at Panipat, Haryana, for a sum of ₹6 lakh. The complainant had a cash credit limit with the Corporation Bank, G.T. Road, Panipat. It is stated that fire took place at the business premises of the complainant on 16.04.2004 between 3AM to 4AM on account of short-circuiting. The said fire was noticed at 3:30AM by a Police petrol party, when they saw smoke come out of the shop. The police officials made a phone call to the fire brigade as well. The factum of fire was reported to the City Police Station also on 16.04.2004 and DDR No. 20 to that effect was registered. The intimation of the fire was also given to the Corporation Bank and the OP Insurance Company on 16.04.2004 itself. The Insurance Company appointed a surveyor to assess the loss. The complainant supplied the ledger and cash book, which was lying with his chartered accountant, to the surveyor. However, the other documents like bills and account books lying in the shop were destroyed in the fire. According to the complainant, goods worth ₹6,10,000/- were destroyed in the fire, and hence, the complainant was liable to get payment of the insured amount of ₹6 lakh from the OP Insurance Company. However, the OP sanctioned a sum of ₹13,941/- only, relying upon the report made by the surveyor. The complainant filed the consumer complaint in question, seeking payment of the insured amount of ₹6 lakh alongwith interest for the loss suffered in fire.
3. The consumer complaint was resisted by the OP Insurance Company by filing a written reply before the District Forum, in which they stated that the surveyor had made its report after verifying the books and documents from the chartered accountant and had assessed the total loss at ₹28,170/- after making deduction for excess clause etc. The surveyor had recommended payment of ₹13,941/-, which had been duly accepted by the OP Insurance Company.
4. The District Forum after considering the averments of the parties, passed their order on 08.12.2006, allowing the consumer complaint and gave directions to the OP Insurance Company to make payment of ₹6 lakh to the complainant alongwith interest @12% p.a. from the date of the incident, i.e., 16.04.2004. Being aggrieved against the order of the District Forum, the complainant as well as the OP Insurance Company filed cross appeals before the State Commission. As stated already, vide impugned order, the appeal filed by the complainant was dismissed, but that filed by the OP Insurance Company was allowed. The State Commission set aside the order passed by the District Forum and directed the OP Insurance Company to make payment of ₹13,941/- only, based on the report of the surveyor. Being aggrieved against the said order of the State Commission, the complainant is before this Commission by way of the present revision petition.
5. It was argued by the learned counsel for the petitioner/complainant that they had been regularly furnishing stock statements to their bank, from which they had obtained the Cash Credit Limit. The Bank had been carrying out verification of the said stock statements as well. Based on these statements, the complainant was entitled for the payment of the entire insured amount, i.e., ₹6 lakh alongwith interest, as had been rightly allowed by the District Forum. The report made by the surveyor was not based on a correct interpretation of the facts and circumstances on record. The learned counsel further stated that the gross turn-over (GTO) of their firm for the period 01.01.2004 to 31.03.2004 was ₹9,64,249.89ps as per the return dated 30.04.2004 submitted to the Excise and Taxation Department.
6. The learned counsel for the respondent/OP Insurance Company has drawn attention to the report submitted by the surveyor in which it has been stated as follows:-
"The balance-sheet as on 31.03.2004 produced by the insured and certified by Mr. Vinod Gupta, Chartered Accountant of M/s. Vinod Jagdish Rai & Co. of Sambalkha is not in accordance with the cash book and ledger produced."
7. The surveyor has further stated that the report of M/s. Manik Talia and Co., Chartered Accountant dated 14.06.2004 clearly stated that efforts had been made to inflate the stocks by increasing dummy purchases. Since the balance-sheet was not matching with the account books, the surveyor rightly refused to place reliance upon the balance-sheet and trading account produced by the insured. The learned counsel stated that the order passed by the State Commission was in accordance with law and should be upheld.
8. We have examined the entire material on record and given a thoughtful consideration to the arguments advanced before us.
9. The report dated 14.06.2004 made by the surveyor appointed by the Insurance Company, Bharat Bhushan & Co., surveyor licence No. SLA-20913 is an important document on record to be taken into consideration while adjudicating the present case. The surveyor observed that the insured was not maintaining stock register for the contents. The said surveyor further observed as follows:-
"The insured has submitted the balance sheet for the year 2002-03 & 2003-04 duly verified and certified by Chartered Accountant M/s Vinod Jagdish Rai & Co. of Samalkha, District Panipat.
Our representative checked the insured account books & ledger for calculating the total value of stock before mishap. There was difference in the balance sheets & account books produced, so, we hired the services of Chartered Accountants M/s. Maniktaliya and Co. of Sonepat.
The balance sheet for the year 2003-04 is not in accordance with the account books, for detail see the report of Chartered Accountants M/s. Maniktaliya and Co. dated 14.06.04.
The insured has also produced the provisional trading account as on 15.04.04 duly verified by Chartered Accountant M/s. Vinod Jagdish Rai & Co. but the same is also not correct due to carried forward stock of last year, i.e., 2003-04. The balance sheet is not matching with account books, so, we can't rely upon the balance sheet & trading account as on 15.04.04 produced by the insured."
10. The surveyor further stated in their report in the concluding paragraph as follows:-
"16.0 REMARKS We asked from the insured about the discrepancies in account books and balance sheet but he did not give any satisfactory reply. As such there is no need for clarification because we have calculated and assessed the loss on the basis of physical inspection, counting, volumetric analysis, remnants of burnt items and enquiries made which is much more appropriate, real and true picture of stock than books of accounts.
The insured also accepted and acknowledged the damaged and safe stock quantity prepared at the time of survey but later on he refused to give the consent for assessed amount."
11. It would be seen from the above report of the surveyor that he has taken the material provided by two different chartered accountants, while coming to their conclusion. It has been brought out that the balance sheet was not matching with the account books and hence, reliance could not be placed upon the same and the trading account as on 15.04.2004, produced by the insured. The surveyor further stated that they had based their conclusions and assessment on physical inspection, accounting, volumetric analysis, remnants of burnt items etc. It is clear from above that the report made by the surveyor is based on methodical assessment done in a professional manner. The petitioners have not been able to pin-point any irregularity or shortcoming in the said report. The case of the petitioner is that the bank statements of stocks etc. reflect a different picture. However, it is made out from the report of the surveyor that he has taken into consideration the stock statements as well, while making his report. The surveyor has remarked at one place that the stock statement submitted to the bankers for the month of March 2004 was inflated by ₹1 lakh by manipulating the calculations.
12. It is a settled legal proposition that the report made by a surveyor in the discharge of his professional duty should be accepted unless some serious discrepancies/shortcomings are pointed out in the same. This view has been expressed by the Hon'ble Supreme Court in their judgment in "Sri Venkateswara Syndicate Vs Oriental Insurance Company Limited & Anr. [2009 8 SCC 507]", in which it has been held as under:-
"Scheme of Section 64-UM, particularly of sub-sections (2), (3) and (4) would show that the insurer cannot appoint a second surveyor just as a matter of course. If for any valid reason the report of the surveyor is not acceptable to the insurer may be for the reason if there are inherent defects, if it is found to be arbitrary, excessive, exaggerated, etc., it must specify cogent reasons, without which it is not free to appoint the second surveyor or surveyors till it gets a report which would satisfy its interest. Alternatively, it can be stated that there must be sufficient ground to disagree with the findings of surveyor/surveyors. There is no prohibition in the Insurance Act for appointment of second surveyor by the insurance company, but while doing so, the insurance company has to give satisfactory reasons for not accepting the report of the first surveyor and the need to appoint second surveyor."
13. In the present case there is nothing on record to justify that the report made by the surveyor should be brushed aside.
14. Based on the discussion above, we do not observe any irregularity, illegality or jurisdictional error in the orders passed by the State Commission, which may merit interference in the exercise of the revisional jurisdiction. This revision petition is, therefore, held to be without merit and is ordered to be dismissed and the impugned order passed by the State Commission is upheld. There shall be no order as to costs.
...................... DR. B.C. GUPTA PRESIDING MEMBER ...................... DR. S.M. KANTIKAR MEMBER