National Consumer Disputes Redressal
M/S. Texcones Tubes Company vs The Oriental Insurance Co. Ltd on 23 March, 2007
National Consumer Disputes Redressal Commission National Consumer Disputes Redressal Commission Circuit Bench at Chennai Original Petition No. 275 of 1999 M/s. Texcones Tubes Company, Rep. By its Managing Director - S.P.Sundarakesari, 1/6, Iluppakkudi, Mathur Road, Alagappapuram, Karaikudi 630 003, Sivaganga District, Tamil Nadu Complainant Versus .1. The Oriental Insurance Co. Ltd., Rep. By its Branch Manager, Sathyamurthy Illam, 1st Floor, 119, Sekkalai Road, P.B. No. 40, Karaikudi 630 001, Sivagangai District, Tamil Nadu. .2. The Bank of Madura Ltd., Rep. By its Branch Manager, Karaikudi Branch, 76, Sekkalai Road, Karaikudi, Sivagangai District, Tamil Nadu 630 001. Opposite Partiess BEFORE: HONBLE MR. JUSTICE M.B.SHAH, PRESIDENT. MRS. RAJYALAKSHMI RAO, MEMBER. For the Complainant : Mr. V.Ramakrishnan, Advocate. For the Opposite Parties : Mr. R.Nageswaran, Advocate. Dated the 23rd March, 2007 O R D E R M.B.SHAH, J. PRESIDENT The only question which requires consideration is : Whether the reduction of assessment of loss for stock from Rs.21,59,568 to Rs.4,53,966/- by the Surveyor is justifiable? If not, what amount is required to be awarded? Damage to plant and machinery and building is not required to be discussed because learned Counsel for the Complainant has submitted that even though the damage is much more than what is assessed by the Surveyor he would confine his submission with regard to assessment of loss to the stocks and the stock in process. Case of the Complainant: It is the say of the Complainant that it is a licenced manufacturer of papercones. It had obtained a fire policy from M/s.Oriental Insurance Co. Ltd., (hereinafter referred to as the Insurance Company) to cover the risks on the building, machinery, stocks, raw-materials, for a sum of Rs.46,50,000/-, and paid a premium of Rs.14,379/-. The details of the insurance coverage are as under: (i). Building Rs.13,00,000/- (ii). Stocks Rs.25,00,000/- (iii). Machinery Rs. 8,50,000/- ---------------------
Rs.46,50,000/-
=========== On the intervening night of 4th and 5th of October, 1997 a massive fire broke out in the processing hall of the Complainants factory and caused extensive damage. This was reported to the Insurance Company, fire bridge and the Police immediately.
On the same day, the Insurance Company deputed M/s.Haniffa Associates, Surveyors to inspect the premises. The Complainant supplied the required information to the Surveyor. Thereafter, on 17.12.1997 the Complainant submitted claim form claiming a sum of Rs.29,53,386.38, for the loss caused to:
the buildings Rs.1,13,830.50 the machinery Rs.2,03,047.00 the rawmaterial Rs. 32,752.49 finished products Rs.25,29,182.00 cones damaged due Rs. 74,573.39 to water spraying.
It is the further case of the Complainant that even after providing the required information to the Surveyors, the Insurance Company did not settle the matter till 20.11.1998. Hence, the Complainant issued a Lawyers Notice to the Insurance Company calling upon them to pay the sum of Rs.24,85,255/- with interest at the rate of 19% p.a. In response thereof, the Insurance Company informed the Complainant that the Surveyors were finalizing their report and that as soon as the same was received, the papers would be processed and needful would be done. Thereafter also the Surveyor sought further clarifications from the Complainant on 25.01.1999.
Subsequently, the Insurance Company vide its letter dated 10.3.1999 offered a sum of Rs.4,53,966/-, which offer was not accepted by the Complainant. He further states that the survey report was also not supplied to him. As all his efforts for fair settlement have failed, he got another legal notice issued on 6.7.1999. Still, there was no response. Hence this complaint is filed claiming the following amounts :
(i) for the loss caused to -
(a) the stocks Rs.24,85,255.00
(b) the building Rs. 1,13,830.50
(c). the machinery Rs. 2,03,047.00
(ii). Interest at the rate of 19% p.a. from the date of claim till the date of payment;
(iii). Rs.5,00,000/- for compensation, mental agony, financial hardship;
(iv). Rs.5,000/-
for costs of this complaint.
Evidence:
It is to be stated that with regard to fire which broke out on 5th October, 1997 at about 1.30 a.m., there is no dispute.
The Surveyors found that probable cause was electrical short circuit. The Surveyors have specifically stated that possible malicious act or arson in collusion with the insured was investigated and there was no evidence for such acts.
The dispute is only with regard to the assessment of loss by the Surveyor, particularly, the loss caused to the stock. The Surveyor arrived at the conclusion that as per the books of accounts and records loss could be assessed at Rs.21,64,140/-. However, the Surveyors adopted other dubious method of so called adjustment and reduced the loss to only Rs.4,53,966/-. Whether this adjustment or reduction of the loss is justifiable or not, is required to be decided in this complaint.
For deciding this question we would first refer to some salient features noted by the Surveyor in his report.
I. (1) The Complainant is a small scale industrial unit having Central Sales Tax Number and Tamil Nadu General Sales Tax Number; its sales turnover for the year ending 31st March, 1997 was at Rs.73 lakhs;
(2). The paper cones attract central excise duty and that the Complainant was availing Modvat credit facilities for the raw materials/inputs received for production.
(3). The fire was put off after a struggle of 4 hours, and the incident of fire was reported in local dailies.
(4). The Police investigated and submitted that it was accidental fire.
(5). Books of accounts were examined which included purchase invoices, stock register, register for the stock of finished goods maintained under the Central Excise. The Surveyor has also noted that the register of daily stock accounts for paper cones was periodically monitored by the Central Excise authorities.
He has also noted that at page 15 of the RGI Register, the Superintendent of Central Excise has recorded as under:
Out of 21,67,592 cones, recorded in RGI as closing balance on 4.10.1997, only 30,050 cones were found in tact and unaffected by fire accident. Of these, only 3,420 were totally unaffected by fire. 26,630 were the cones salvaged from the accident site but are now in saleable condition. Apart from 30,050 cones in saleable condition, 47,300 cones affected by water spray during fire fighting operations, were kept separately.
.(6). As per the RG23A-Part-I Register, the closing stock of rawmaterials as on 4.10.1997 was 6,712 kgs.
.(7). Form-V Register was also examined by the concerned officers. That register was maintained as per the instructions of Central Excise authorities for availing of Modvat credit facilities.
.(8). The monthly stock statement submitted to the Bank of Madurai Ltd. was also taken into consideration.
.(9). Profit and loss account was also taken into consideration.
.(10). The Surveyors have analysed the input and output register and have certified that inputs of raw-materials issued to produce cones, as shown in the Stock Register, are justified.
Finally, the Surveyors have taken into consideration that the water damaged cones were 47,300 and destroyed by fire were 20,90,242.
.(10). For buildings, they have assessed the loss at Rs.30,182/- after adjustment.
On the aforesaid basis, the Surveyor has assessed the loss as under:
18-2-A:
The damaged stock of Kraft Board reels is useless for insureds purpose. However, the burnt edges at both sides of reels can be cut out and the center sound portion of Kraft Board reels can be used in making fire works. In all fairness, the salvage may fetch about 50% of their value.
The fire damaged cones and water damaged cones are useless for insureds purpose.
The insured have estimated the weight of fire damaged cones as 2125 kgs. (in our opinion, the weight of damaged cones now available would be still lesser). Insured have been advised to preserve the salvage, till the claim is disposed of.
The insured have offered salvage value at Rs.2.50 per kg. It is reasonable and adopted.
The segregated water damaged cones 47,300 may fetch about 75% of the sound cones.
The details of workings are shown in Annexure-II Net loss assessed on stock, as per Annexure-II is Rs.21,20,998/-.
Valuation:
The Surveyor has made the loss assessment on stock as per Annexure-II, as under:
I. Kraft Board reels 2101 Kgs. @ Rs.15.37 Rs.32,292.37 Less: Salvage value at 50% Rs.16,146.18 ___________ Rs.16,146.18 -A ____________ II. Pre-fire Sound Goods: Rs.17,59,806.40 Sale Return Goods Rs. 4,28,459.92
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Rs.21,88,266.32 Less: Salvage value Rs. 83,415.00
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Rs.21,04,851.32-B
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Loss Assessed (A+B - Rs.16,146.18 + Rs.21,04,851.32) = Rs. 21,20,997.50, Say Rs.21,20,998.00 .II. Despite the aforesaid clear loss assessment, by unjustifiable reasoning the Surveyors gave an alternative loss assessment, as under:
18-2-B:
There are discernible fire marks on the South inner wall readily evidencing the level of pre-fire stack of cones only to the height of 4 from the floor (photos may please be examined). It is reasonable to consider the bottom dimensions of pre-fire stack lying adjoining the Sough wall should have measured 28 at E-W direction and 10 on S-N direction at the bottom and 24 at E-W direction and 10 on S-N direction at the top of the stack, based on the fire marks.
(necessary access for handling the cones both at East side and West side, access for door opening, etc. were taken into account, while considering the dimensions of the stack).
We measured the volume of 25,000 sound cones stack and it worked out 82.875 Cft.
Therefore, it is logic that the total quantity of cones in the Southern major stack should have been [28 + 24] x 10 x 4 (height) = 1040 Cft.
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21040/82.875 x 25,000 = 3,13,725 Cones.
Estimating a quantity of 1,00,000 cones (small stacks) lying in the hall at the time of fire (other than the stack lying near the Southern wall), the total quantity of the cones lying in the entire process hall works out only 4,13,725 cones, as against the total cones, as per the figures in books, at 21,67,592 cones. Hence, loss assessment is worked out based on the physical evidence after the fire.
Loss assessment on 21,67,592 cones .. Rs.21,04,851.32 Proportionate loss assessment on 4,13,725 cones = Rs.21,04,851.32
------------------------ x 4,13,725 cones 21,67,592 . Rs. 4,01,749.78 Despite of our repeated requests, the insured were not able to explain the physical presence of 21,67,592 cones in the process hall and they stuck to the stand that the records would speak. In our opinion, it is proper to link the available salvage evidences after the fire to find out the quantity of pre-fire stocks.
Therefore, the net loss assessment on stock:
Rs.16,146.18 + Rs.4,01,749.78 = (Kraft Board + Cones) Rs.4,17,895.96 Hence, we recommend to consider the Loss assessment on the stock .. Rs.4,17,895.96 Findings:
In our view, for the reasons stated below, we have to accept the loss of assessment as per paragraph 18-2-A, i.e. net loss on the stock at Rs.21,20,998/- and disregard the alternative assessment.
.A. (i) there is no justifiable reason to discard the books of accounts maintained by the Complainant which consist of purchase invoices, stock register, register for finished goods and the sale register.
.(ii). There is no reason to doubt the register maintained under RGI Register under the Central Excise Rules;
.(III). There is no reason to doubt the endorsement made by the Superintendent of Central Excise with regard to the cones which affected and unaffected by fire;
.(iv). There is no reason to doubt the monthly stock statement submitted to the Bank of Madurai from where the Complainant has taken the loan;
Apart from the aforesaid aspects, the loss assessment valuation made as per para 18-2-B is purely hypothetical, imaginative, and on assumptions and presumptions.
.B. Secondly, even the Surveyors have mentioned that the said assessment is made on the basis of the evidence such as fire marks left behind by the burnt cones, the extent of damages to the building and the scene of fire occurrence by ignoring the fact that the fire marks may not exist because of spraying of water .C. Thirdly, it is to be stated that the Surveyors carried out survey on 5th October, 20th October, 1997 thereafter, on 10th February, 31st March, and on 9th October, 1998. But, for the undisclosed reasons best known to them, the survey report was not submitted till the complaint was filed despite the legal notice. The survey report is dated 12th February, 1999. This reveals that for some reasons the Surveyors delayed submission of report and finally tendered the report by reducing the amount to a large extent by unjustified method after the complaint was filed.
In this view of the matter, we accept the assessment of loss for the stock as per para 18-2-A. The Complainant is, therefore, entitled to have reimbursement of a sum of Rs.21,20,998/- (rounded of to 21,21,000/).
Conclusion:
In the result, the Complainant is entitled to have the sum of Rs.21,21,000/- for loss caused to stock, namely, raw-material, finished products, damaged cones (water damaged); Rs.30,182/- for the damage caused to the building as assessed by the Surveyor; and, Rs.8,387/- for the damage caused to the machinery (including power wiring). Thus, the total amount to be payable to the Complainant would be Rs.21,59,569/-.
Hence, the Insurance Company is directed to pay the amount of Rs.21,59,500/- (rounded) to the insured with interest at the rate of 12% p.a. from 5th April, 1998 (i.e. six months after the date of the incident) till its payment. The Insurance Company shall also pay litigation cost quantified at Rs.50,000/-. The complaint is disposed of accordingly.
Sd/-
.J. ( M.B.SHAH ) PRESIDENT Sd/-
(RAJYALAKSHMI RAO) MEMBER.