State Consumer Disputes Redressal Commission
M/S. H.M.R. Herbs Through Sanchalak vs S.B.I. General Insurance Co.Ltd. on 7 April, 2016
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR (C.G.)
Complaint Case No.CC/2015/25
Instituted on : 28.08.2015
M/s. H.M.R. Herbs,
Through : Proprietor / Director Gulam Gous Jilani,
S/o Shri Abdul Gaffar Sharif,
R/o : L.I.C. Colony, Mowa, Raipur (C.G.).
Office : Baanstaal, Raipur (C.G.)
Godown - Plot No.379-382, Urla Industrial Area,
Urla, Raipur (C.G.) ... Complainant.
Vs.
S.B.I. General Insurance Company Limited,
Through : Manager / Competent Officer,
Pujari Chambers, Fourth Floor,
Pujari Park, Pachpedi Naka,
Raipur (C.G.). ... Opposite Party
PRESENT: -
HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT
HON'BLE MS. HEENA THAKKAR, MEMBER
HON'BLE SHRI D.K. PODDAR, MEMBER
HON'BLE SHRI NARENDRA GUPTA, MEMBER
COUNSEL FOR THE PARTIES:
Shri Rajesh Pandey, for the complainant.
Shri P.K. Paul, for the opposite party.
ORDER
Dated : 07/04/2016 PER :- HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT. The complainant filed this consumer complaint under Section 17 of the Consumer Protection Act, 1986 against the O.P. seeking following reliefs :-
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(a) To direct the O.P. to pay claim amount Rs.45,00,000/- (Rupees Forty Five Lakhs) to the complainant along with interest @ 18% p.a. from the date of claim till date of payment.
(b) To direct the O.P. to pay a sum of Rs.2,00,000/- (Rupees Two Lakhs) to the complainant towards compensation for mental agony and harassment.
(c) To direct the O.P. to pay a sum of Rs.2,50,000/- (Rupees Two Lakhs Fifty Thousand) to the complainant towards compensation for financial loss.
(d) To direct the O.P. to pay a sum of Rs.45,000/- (Rupees Forty Five Thousand) to the complainant towards cost of litigation and advocate fees and to grant any other reliefs to the complainant, as this Commission deems fit.
2. Brief facts of the complaint of the complainant are that the complainant is doing business of processing of various seeds and forest produce and purchase & resale in the name of M/s H.M.R. Herbs for the purpose of earning livelihood. The above firm of the complainant is situated at Baanstall, Raipur and the processing of forest produce and the various seeds purchased and storage and sale purchase is done from the godown situated in Urla Industrial Area, Raipur. The complainant filed the instant complainant being proprietor/director of M/s H.M.R. Herbs. The complainant used to purchase various seeds and forest produce and after processing the // 3 // same, the said seeds and forest produce were stored in the godown of the complainant for sale. The complainant got insured the above stored seeds and forest produce for a sum of Rs.1,42,00,000/- by paying premium of Rs.27,659/- to the O.P. The O.P. issued insurance policy No.0000000001854238 which was effective for the period from 10.06.2014 to 09.06.2015. On 22.07.2014 there was heavy rain at Raipur (C.G.) and the rain water entered in the godown of the complainant and submerged it upto four to five feet due to which above 5000 Gunny bags kept in the godown along with other forest produce and stored seeds worth Rs.45,00,000/- were completely damaged. The particulars regarding the rain occurred on 22.07.2014 and 23.07.2014 were obtained from the Additional Regional Meteorological Centre, Nagpur according to which on 22.07.2014, 161.9 mm and on 23.07.2014, 17.7 mm rain was recorded. The complainant gave intimation regarding the loss suffered by him due to water logging/immersion in his godown to the O.P. and the O.P. appointed Smt. Kiran Chhabra as Surveyor and Loss Assessor. On 24.07.2014 she visited the godown of the complainant and inspected the entire godown and had taken photographs. In the inspection it was found by the Surveyor that all bags containing Niger and Cassia seeds were damaged. After completion of the survey, the Niger and Cassia seeds were dried and after drying the damaged Cassia seeds the same were packed in other clean 900 bags of 20 to 40 kgs and the Niger seeds were packed in 20 to // 4 // 25 kgs bags and were kept in open place in front of the godwown in 350 bags and near about 40 bags were kept inside. On 06.01.2015 and 08.01.2015 the authorized Surveyor and Investigator Ashok Chawla came to godown of the complainant and inspected the Niger and Cassia seeds and calculated the bags in presence of the complainant according to which there were 900 bags of Cassia seeds and 390 bags were of Niger seeds. With the consent of the complainant, the Surveyor obtained Certificate of Analysis from Geo-Chem Laboratories (Pvt.) Ltd. in respect of the Niger and Cassia seeds, which were damaged due to rain. Thereafter again the Surveyor and Investigator Ashok Chawla came to the godown of the complainant and weighted the Niger and Cassia seeds which were damaged due to rain and the good seeds. The weight of good seeds of the Cassia seed was 2.83 kg and the weight of goods, which were damaged due to rain was 2.46kg. Thus, the weight of good seeds of the niger was 2.29 kg and the weight of the damaged niger seeds was 2.00 kg. The niger seeds and cassia seeds which were damaged due to rain were kept in the godown. The salvage value of nigher seed was fixed by the complainant Rs.2 per kg and cassia seeds was Rs.1.90 per kg. According to the complainant due to rain on 22.07.2014 and water logging in the godown of the complainant total 558 bags of niger seeds containing 50 kgs per bags total weight 27,900 kg, the value of which was Rs.12,55,500/- @ Rs.45/- per kg and thus 1032 bags of cassia seeds containing 65 kgs weighing // 5 // 67080 kgs, the value of which was 26,83,200/- @ Rs.40 per kg. Besides it 100 bundle containing 50 nos. bags valuing Rs.10/- per bag totaling Rs.50,000/-. Thus the complainant suffered total loss of Rs.39,88,700/-. In addition to it, the loss to the tune of Rs.5,00,000/- was caused to the godown of the complainant and his business. Accordingly, the complainant submitted claim along with all relevant documents before the O.P. During the investigation of the claim the complainant gave written statement regarding the damages to the goods in which the complainant informed that besides this incident earlier he did not suffer any loss due to rain and he did not submit any claim before the Insurance Company. This is the first claim in respect of the damages. The complainant waited for payment of the claim amount, but the O.P. kept the claim pending for a long time. The complainant went to the office of the O.P. many time and requested for settlement of his claim. On 16.06.2015, the complainant submitted an application before the O.P. and requested to provide the claim amount. On 25.06.2015, the complainant received a letter from the O.P. in which a sum of Rs.3,42,796/- was fixed after deducting amounts and directed the complainant to submit discharge voucher along with other documents, which comes in the category of deficiency in service and unfair trade practice. Hence, the complainant filed this complaint before this Commission and prayed for granting reliefs as mentioned in the relief clause of the complaint.
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3. The O.P. filed its written statement and denied the allegations made by the complainant against the O.P. in the complaint. The O.P. averred that the complainant does not fall within the four corners of the word 'Consumer' as the godown and the plant was being run for commercial purposes purely with a profit motive. The complaint also suffers from non-joinder of a necessary party, the bank as 'Agreed Bank Clause' is applicable under the policy in question. The complainant used to purchase various seeds and forest produce and after processing the same, the seeds and produce were stored in the godown of the complainant for sale, to earn profits. The entire gamut of transactions starting from procurement, processing and selling them on a wide scale can in no way be construed to be just for earning livelihood. Standard Fire and Special Perils Policy (Material Damage) No.00000000001854238 was issued by the O.P. on 10.06.2014 for the period from 10.06.2014 to 09.06.2015, for a sum insured of Rs.1,42,00,000/- covering Buildings & Stocks, where the insured was State Bank of India A/c HMR Herbs, subject to applicable clauses, exclusions clauses and relevant policy wordings which form an integral and inherent part of the above policy and binding on the contractual parties thereto. On 22.07.2014 it was raining heavily but that rain water was not entered and submerged it upto four to five feet. Due to above, 5000 Gunny bags kept in the godown along with other forest produce and stored sees worth Rs.45 lacs were not completely // 7 // damaged. Smt. Kiran Chhabra was deputed as a Surveyor by the O.P. and the survey, inspection and analysis started from 24.07.2014. On inspection it was not found by the Surveyor that all the bags containing Niger and Cassia seeds were damaged. Instead there were many safe bags in the lot and hence the Surveyor asked the insured complainant to segregate the same into the affected material and the safe ones for facilitating proper quantification of the affected material and also for conducting analysis of the alleged affected material and to prevent the unaffected and safe material from being damaged in the contact with the affected one. Also the complainant insured took out the safe material from various bags as a result of which the quantity of the material and bags affected could not be calculated exactly. Further the insured complainant kept 350 bags alleged to be containing Niger Seeds in the open ground of the complainant's premises. On being asked by the Surveyor to store the same inside, the complainant did not pay any heed thus exposing the said material to further damage deliberately. The counting began on 06.01.2015 and 08.01.2015 subject to an exception that the same could not be done previously as the insured complainant had taken on steps to segregate the stocks as required by the Surveyor, before those dates. On inspection it was not found that 900 bags of Cassia and 390 bags of Niger seeds were damaged in contact with water. The fact being that the affected bags of Cassia were counted to be 896, but as the weight in the above counted // 8 // bags were not uniform and the damage inflicted was also not uniform and were of different magnitude for a given number of bags, the assessment of loss was done after taking the average as agreed by the complainant. Out of the above 896 bags of affected Cassia 10% have been taken @ 20 kg., 10% as 30 kg and the rest 80% @ 40 kg, further 15% weight deduction on account of being wet for certain period of time have been added and thereby the assessed loss for Cassia Seed out of these 896 bags was 38.130 MT less the salvage value. As for the Niger seed, the 350 bags kept in open was not Niger at all as per laboratory test report. The lab test revealed that the material kept in these bags were a mixture of sand, mitti and hull without any trace of Niger seed. The above revelations are self explanatory and a reflection of ulterior motives and malicious designs of the complainant to befool the insurer O.P. The Surveyor and the concerned Investigator had taken the weights of affected and fresh Cassia & Niger seed of different bags and noted down the details. The weight of the fresh Cassia was 2.83 kg and that of the affected Cassia was 2.46 kg and in the same way the weight of fresh Niger was 2.29 kg and of the affected one was 2 kg, but the above is subject to a clarification that the weight of the affected and fresh Cassia & Niger seed respectively was measured in one contained to ascertain the weight reduction on account of getting wet and in both the cases the reduction of weight was taken at 15%. Due to rains on the fateful night of 22-07-2014, the complainant has not // 9 // suffered a total loss of Rs.39,88,700/- under various heads. The claim lodged by the complainant has been highly exaggerated and is devoid of any objectivity and hence not sustainable. Further the loss of Rs.5 lacs to the business of the complainant is not substantiated by the complainant and moreover the said business loss is outside the scope of the policy and hence the claim of the complainant on this count also fails. One Gulam Gous Gilani as proprietor of the complainant firm had not given a written statement that no previous claim has been lodged against any insurance claim. The complainant has not been kept waiting by the O.P. and the claim has not been protracted without any reason by the O.P. The incident occurred on 22-07-2014 and the complainant, after repeated reminders by the O.P., took about six months to segregate the affected material and as such the counting of the damaged material also could not be started. Further the claim form was submitted by the complainant insured only on 05-02-2015 i.e. seven months after the date of the unfortunate incident. The facts and figures in the documents submitted by the complainant to the Surveyor did not reconcile with the bank statements or the books of accounts. The stock figures shown in the Audit Reports were in wide variance with those of the Bank Stock Statements. Hence after in-depth assessment of all the determining factors the Surveyor Report was prepared on 16-05-2015 and the investigator report was prepared by Ashok Chawla on behalf of National Claims Bureau INC on 25-05-2015. After the receipt of the // 10 // above reports, the O.P. promptly scrutinized the papers and the Net Assessed loss by the Surveyor was conveyed to the complainant. Letters and reminders dated 25th June, 7th July, 28th July and 10th August, 2015 were sent but the complainant did not respondent to the above letters. The O.P. did not receive any letter dated 16-06-2015. The findings which formed the basis of assessment were duly intimated by the Surveyor and the Investigator to the complainant during the course of the survey and also after concluding the survey. The complainant was fully informed of the developments and was aware of the proceedings and hence could not connive at the events that have unfolded right from the start. The net assessed loss of Rs.3,42,796/- has been arrived at by the Surveyor after deducting from the gross loss, the salvage @ Rs.3/- for the both the Cassia and Niger seeds and the under insurance @ 43.15% based on stock figures as at 31-07-2015 which was Rs.2,05,79,995/- as calculated by the Surveyor in page No.8 of the Final Survey Report. The upshot of the above clearly shows that the insurer O.P. has not committed any deficiency, as have been alleged by the complainant. The claim as lodged by the complainant for 45 lacs lacked substance. The documents and the reports were doctored by the complainant to suit its needs as and when required. The complainant has not approached this Commission with clean hands and many facts have been suppressed by the complainant.
// 11 // The complaint filed by the complainant against the O.P. be dismissed and compensatory costs be allowed to the O.P. from the complainant.
4. The complainant filed documents. Annexure 1 is registration certificate dated 02.12.1997, Annexure 2 is insurance policy for the period from 10.06.2014 to 09.06.2015, Annexure 3 is published newspaper dated 22.07.2014, Annexure 4 is whether report dated 25.09.2014, Annexure 5 is Certificate of Analysis dated 03.04.2015, Annexure 6 is statement of the complainant, Annexure 7 is letter dated 16.06.2015 sent by the complainant to the Manager, S.B.I. General Insurance Company Limited, Mumbai, Annexure 8 is letter dated 25.06.2015 sent by the O.P. to the complainant, Annexure 9 is email sent by the O.P. to the complainant and reply sent by the complainant, Annexure 10 is letter dated 07.09.2015 sent by the O.P. to the complainant, Annexure 11 is Enterpreneurs Memorandum for Setting Up Micro, Small or Medium Enterprise, Annexure 12 is Tax Invoice dated 15.06.2014, Annexure 13 is Tax Invoice dated 08.07.2014, Annexure 14 is Tax Invoice dated 15.07.2014, Annexure 15 is Tax Invoice dated 15.07.2014, Annexure 16 is letter dated 16.08.2014 sent by Smt. Kiran Chhabra, Surveyors and Loss Assessors to the complainant, Annexure 17 is letter dated 06.10.2014 sent by National Claims Bureau Inc. to the complainant, Annexure 18 is email dated 18.12.2014, Annexure 19 is letter dated 12.02.2015 sent by National Claims Bureau Inc. to the complainant, Annexure 20 is EFT Mandate Form For Claim // 12 // Payment, Annexure 21 is Discharge Voucher, Annexure 22 is Annual Report for 2011-2012 of H.M.R. Herbs, Raipur, Annexure 23 is Balance Sheet as at 31st March, 2013, Annexure 24 is Form No.3CB, Annexure 25 is emails, Annexure 26 is Certificate issued by Geo-Chem Laboratories (P) Ltd.
5. The O.P. has also filed documents. Document OP-1 are Standard Fire & Special Perils Policy with terms and condition vide Policy No.0000000001854238, OP-2 is Standard Fire and Special Perils Policy Claim Form, OP-3 is Final Survey and Assessment Report dated 16.05.2015 of Smt. Kiran Chhabra, Surveyors and Loss Assessors, OP-4 are Monthly Statement of Stock and Book Debts as on 31.07.2013, 31.08.2013, 30.09.2013, 31.10.2013, 30.11.2013, 31.12.2013, 31.01.2014, 28.02.2014, 31.03.2014, 30.04.2014, 31.05.2014, 30.06.2014 and 31.07.2014, OP-5 is email dated 18th December, 2014, OP-6 is Statement, OP-7 is letter dated 09.06.2015 sent by Jagannath Herbal and Foods Pvt. Ltd., OP-8 is detailed export data of cassia tora seeds, OP-9 is Certificate of Analysis dated 19.01.2015, OP-10 is Certificate of Analysis dated 30.01.2015, OP-11 is Investigation Report of Investigator Ashok Chawla, National Claims Bureau Inc. Raipur dated 25.05.2015, OP-12 is Consent of Deepak - Padmawati Sales Corporation, Raipur, OP-13 is consent of Rajlaxmi Trading Company, Raipur, OP-14 is Book Debts as on 31.07.2013, OP-15 are Certificate of Fitness issued by Sumit Chemical and Company, Raipur on various dates, OP-16 is letter // 13 // dated 22/25.09.2014 sent by the Assistant Meteorologist- I Climatological Section, Nagpur, OP-17 is bill dated 10.07.2014 issued by Sharif International, Bhairopur (Deori), District Mahasamund (C.G.), OP-18 is bill dated 10.07.2014 issued by Sharif International, Bhairopur (Deori), District Mahasamund (C.G.), OP-19 is bill dated 13.07.2014 issued by Sharif International, Bhairopur (Deori), District Mahasamund (C.G.), OP-20 is Computer Generated Invoice No.07 dated 19.09.2014 issued by Pacific Western Commo, OP-21 is Invoice No.NGP-SI-14-15- 02018 dated 30.01.2015 issued by Geo Chem Laboratories Pvt. Ltd., Mumbai, OP-22 is Computer General Tax Invoice No.06 dated 18.07.2014 issued by Pacific Western Commo, OP-23 is Tax Invoice No.05 dated 16.07.2014 issued by Pacific Western Commo, OP-24 is letter dated 07.09.2015 sent by the O.P. to the complainant
6. On the basis of averments of the parties, the points for determination are :-
1. Whether the complainant is consumer ?
2. Whether the complainant is entitled to get compensation from the O.P., if yes, then to what extent ?
Discussion and its conclusion:
Question No.1.
7 Shri P.K. Paul, learned counsel appearing for the O.P. has argued that the complainant does not fall within the definition of consumer because the plant and godown is being run for earning profit. The // 14 // complainant used to purchase various seeds and forest produce and after processing the above seeds and forest produce are stored in the godown of the complainant and the same were sold to earn profit, therefore, the complainant is not a ''consumer' under Section 2(1)(d) of the Consumer Protection Act, 1986.
8. Shri Rajesh Pandey, learned counsel appearing for the complainant has argued that the complainant is consumer because he obtained the insurance policy for protection of his property and not for earning profit.
9. In the instant case, the complainant purchased the insurance policy for protection of his property. Annexure No.2 is Standard Fire and Special Perils Policy in which it is mentioned that Buildings is insured for Rs.25,00,000/- and Stocks is insured for Rs.1,17,00,000/- totaling Rs.1,42,00,000/-.
10. In Ashish Vishwakarma Vs. National Insurance Company Limited & Others, II (2012) CPJ 169 (NC), Hon'ble National Commission has observed that "Contract of insurance is a contract of indemnity and therefore, there is no question of commercial purpose in obtaining insurance coverage. It has also been held that the insured could not trade or carry out any commercial activity with regard to the insurance policy, being barred to do so under Section 3 of the Insurance Act, 1938."
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11. In The Divisional Manager, L.I.C. vs. Shri Bhavanam Srinivas Reddy, 1991 (2) CPR 144 (NC), Hon'ble National Commission, observed thus :-
"3. The first point of objection raised by the Insurance Company before the State Commission and reiterated before us namely is that no dispute arising out of a contract of insurance can be made subject matter of adjudication under the Consumer Protection Act. This contention cannot be sustained in view of decision of this Commission dated July 28, 1989 in Shri Umedilal Aggarwal v. United India Assurance Company Ltd., F.A. Nos.3 and 4 of 1989 (Reported in I (1991) CPJ-3, 1991 (1) CPR 217 (NC), wherein we have held as follows :-
"We find no merit in the contention put forward by the insurance company that a complaint relating to the failure on the part of the insurer to settle the claim of the insured within a reasonable time and the prayer for the grant of compensation in respect of such delay will not fall within the jurisdiction of the Redressal Forums constituted under the Consumer Protection Act. The provision of facilities in connection with insurance has been specifically included within the scope of the express 'service' by the definition of the said word contained in Section 2(i)(o) of the Act. Our attention was invited by Mr. Malhotra, learned counsel for the Insurance Company to the decision of the Queen's Bench in National Transit Insurance Company Ltd. vs. Customs and Central Excise Commissioner, (1975) (1) all England Reports Page 303) The observations contained in the said judgment relating to the scope of the expression 'insurance' occurring the schedule of the enactment referred to therein are of no assistance at all to us in this case because the context in which the expression is used in the English // 16 // enactment considered in the case is entirely different. Having regard to the philosophy of the Consumer Protection Act and its avowed object of providing cheap and speedy redressal to consumers affected by the failure on the part of persons providing "service" for a consideration, we do not find it possible to hold that the settlement of insurance claims will not be covered by the expression "insurance" occurring in Section 2(1)(d). Whenever there is a default or negligence in regard to such settlement of an insurance claim that will constitute a 'deficiency' in the service on the part of the Insurance company and it will be perfectly open to the concerned aggrieved consumer to approach the Redressal Forums under the Act seeking appropriate relief. We, accordingly over the objection raised by the Insurance Company regarding the jurisdiction of the State Commission to adjudicate upon the complaint.
12. In The Divisional Manager, L.I.C. vs. Uma Devi, 1991 (1) CPR 662 (NC), Hon'ble National Commission, observed thus :-
"8. The very fact that the Insurance Act provides for a machinery for remedy for grievances arising out of repudiation of a claim under section 45 leads to show that the Corporation has to satisfy a Court that the repudiation was justified. Accordingly, it is for the consumer to choose a forum convenient to him to seek remedy for the loss suffered because of deficiency in service. As the provisions of this Act are in addition to and not in derogation of any other law for the time being in force, the State Commission has the jurisdiction to entertain the complaint and to investigate whether the repudiation was justified or not and to grant such relief as deems fit if it is satisfied that there was deficiency in service. We therefore, cannot uphold this contention in view of the decision of this Commission in Revision Petition No.12 of 1990 (New India Assurance Co. Ltd. v. Vipro Electronics Pvt. Ltd., // 17 // 1991 (1) C.P.R. (NC) 531, where the identical point has been elaborately discussed".
13. In The New India Assurance Co. Ltd. vs. M/s Vipro Electronics Pvt. Ltd., 1991 (1) C.P.R. (N.C.) 531, the Hon'ble National Commission, observed thus :
"We are not impressed with the contention raised by Shri S.K. Paul, learned counsel appearing on behalf of the Petitioner that merely because of Insurer had totally repudiated his liability in respect of the claim, no proceedings could be validly initiated under the Consumer Protection Act by the insurer. This contention squarely falls within the ruling given by this Commission in Ummedilal Agrawal v. United India Assurance Co. Ltd. (O.P.No.3 & 4 of 1989, decided on 28.7.1989". In that decision this Commission has observed that it is not possible to hold that settlement of a disputed insurance claim will not be covered by the expression "service" occurring in Section 2(d) of the Act. It was laid down that whenever there is default or negligence in regard to service that will constitute "deficiency in service" on the part of the insurer and it is perfectly open to the aggrieved party for seeking appropriate relief under the Act.
In the result, the Revision Petition has no merits and it is accordingly dismissed".
14. In M/s. Harsolia Motors vs. M/s. National Insurance Co. Ltd. & Ors. (Supra), Hon'ble National Commission, has observed thus :-
"13. In Halabury's Laws of England Vol. 25, 4th Edition, the origin and common principles of insurance is discussed and in paragraph 3 it has been discussed and in paragraph 3 it has been mentioned that it is based on principle of indemnity. Thereafter, relevant discussion is to the effect that most of contract of insurance belong to general category // 18 // of contracts of indemnity. In the sense that insurers' liability is limited to the actual loss which is , in fact, proved. The contract is one of indemnity and, therefore, insured can recover the actual amount of loss and no more.
14. In this view of the matter, taking of the insurance policy is for protection of the interest of the assured in the articles or goods and not for making any profit or trading for carrying on commercial purpose.
16. We would refer to few relevant judgments :
In Regional Provident Fund Commissioner vs. Shiv Kumar Joshi, (2000) 1 SCC 98, the Court elaborately considered the provisions of Sections 2(1)(d) and 2(1)(o) as well as earlier decisions and held that :-
"The combined reading of the definitions of 'consumer' and 'service' under the Act and looking at the aims and object for which the Act was enacted, it is imperative that the words "consumer" and "service" as defined under the Act should be construed to comprehend consumer and services of commercial and trade-oriented nature only. Thus any person who is found to have hired services for consideration shall 'be deemed to be a consumer notwithstanding that the services were in connection with any goods or their user. Such services may be for any connected commercial activity and may also relate to the services as indicated in Section 2(1)(o) of the Act."
The aforesaid ratio makes it abundantly clear that the services may be for any connected commercial activity, yet it would be within the purview of the Act."
15. The insurance policy has been taken by the complainant for protection of the property and not for making any profit, therefore, the // 19 // complainant is a "consumer" and dispute between the parties comes within purview of "consumer dispute".
Question No.2.
16. Shri Rajesh Pandey, learned counsel appearing for the complainant has argued that the complainant has obtained insurance Policy from the O.P. Insurance Company, which was effective for the period from 10.06.2014 to 09.06.2015 for the sum assured Rs.1,42,00,000/- and sum of Rs.27,659/- was paid as premium. On 22.07.2014, there was heavy rain at Raipur (C.G.) and rain water was entered into godown of the complainant and water level was near about 4 to 5 ft. Due to water logging in the godow of the complainant, near about 5000 gunny bags kept in the godown along with other forest produce and seeds were completely damaged. Regarding heavy rains, the documents were submitted by complainant which were obtained from Meteorological Centre, Nagpur. According to Meteorological Report, on 22.07.2014, 161.9 mm and on 23.07.2014, 17.7 mm rain was recorded. The complainant suffered loss of near about Rs.45,00,000/-. He gave intimation regarding the incident to the O.P. The O.P. appointed Smt. Kiran Chhabra, Surveyor for conducting survey. She conducted survey and taken photographs/ The Surveyor found that all bags containing Niger and Cassia seeds were damaged. After drying the Niger and Cassia Seeds, the Cassia seeds were packed in other clean 900 bags of 20 to 40 kgs and the Niger seeds were packed in 20 to // 20 // 25 kgs bags and were kept in front of the godown in 350 bags and near about 40 bags were kept inside. Thereafter again the Surveyor and Investigator Ashok Chawla came to the godown of the complainant and weighted the Niger and Cassia Seeds which were damaged due to rain and good seeds. The weight of good seeds of the Cassia seed was 2.83 kg and the weight of the goods which were damaged due to rain was 2.46 kg. and near about 558 bags of niger seeds containing 50 kgs per bags total weight 27900 kgs a value of which was Rs.12,55,500/- @ Rs.45/- per kg and 1032 bags of Cassia seeds containing 65 kgs weighting 67080 kgs, the value of which was Rs.26,83,200/- @ Rs.40/- per kg was damaged. The complainant suffered total loss of Rs.39,88,700/-. The complainant submitted claim before the O.P. but the O.P. did not settle the claim of the complainant. On 25.06.2015, the complainant received a letter from the O.P. in which a sum of Rs.3,42,796/- was fixed after deducting amount and the complainant was asked to submit discharge voucher, but the complainant refused to submit discharge voucher because the complainant suffered loss as mentioned in the complaint, therefore, he is entitled to get the compensation, as mentioned in the complaint. Shri Rajesh Pandey, has further argued that the Surveyor in page 4, 7 and 8 of her Survey Report gave reasons which shows that the Surveyor prepared the Survey Report to favour the O.P. and wrongly assessed the loss, therefore, the Surveyor's Report, is not a reliable document. The // 21 // complainant filed a document which shows that the complainant actually suffered loss to the tune of Rs.45,00,000/-. The complainant also obtained Certificate from Geo-Chem Laboratories (Pvt.) Ltd. in which it is mentioned that the sample submitted was submerged in flood water and mixed with mitti it has roten due to exposure of sun. As such it is decomposed totally and it's exact analysis is not possible. The analyzer confirm that the sample is of Niger Seed indeed., but the Surveyor gave finding against the said report, and therefore, the report of the Surveyor, is not reliable.
17. Shri P.K. Paul, learned counsel for the O.P. has argued that it appears that the insured value declared by the complainant comes within under insurance. Smt. Kiran Chhabra, was deputed as a Surveyor by the O.P. and she conducted survey and inspected the premises. On inspection it was not found by the Surveyor that all the bags containing Niger and Cassia seeds were damaged. Instead there were many safe bags in the lot and hence the Surveyor asked the insured complainant to segregate the same into the affected material and the safe ones for facilitating proper quantification of the affected material and also for conducting analysis of the alleged affected material and to prevent the unaffected and safe material from being damaged in the contact with the affected one. The insured complainant did not count the bags, therefore, counting began on 06.01.2015 and 08.01.2015 subject to an exception that the same could not be done // 22 // previously as the insured complainant had taken on steps to segregate the stock as required by the Surveyor, before those dates. On inspection it was not found that 900 bags of Cassia and 390 bags of Niger seeds were damaged in contact with water. The affected bags of Cassia were counted to be 896 but as the weight in the above counted bags were not uniform and the damage inflicted was also not uniform and were of different magnitude for a given number of bags, the assessment of loss was done after taking the average as agreed by the complainant. As for the Niger seed, the 350 bags kept in open was not Niger at all as per laboratory test report. The laboratory test revealed that the material kept in these bags were a mixture of sand, mitti and hull without any trace of Niger seed. The claim lodged by the complainant is highly exaggerated. The Surveyor Smt. Kiran Chhabra conducted survey on 24.07.2014 and the samples were sent by her to Analyst Shri Piyush Tiwari and Geo Chem Laboratories (Pvt.) Ltd. The Investigator Shri Ashok Chawla had also sent samples to Sumit Chemical & Co. and also to Geo-Chem Laboratories (Pvt) Ltd. and they received reports from both the laboratories and on the basis of laboratory reports, the reports were prepared by Smt. Kiran Chhabra, Surveyor and Shri Ashok Chawla, Investigator. The Surveyor also recorded the statement of Shri Gulam Gous Jilani, in which it is mentioned that with the consent of the complainant, the report was obtained from the laboratory. Therefore, on the basis of the laboratory // 23 // report and investigation, the Surveyor assessed the loss to the tune of Rs.3,42,796/-. The net assessed loss of Rs.3,42,796/- has been arrived at by the Surveyor after deducting from the gross loss, therefore, the complainant is only entitled for Rs.3,42,796/-, which has been assessed by the Surveyor. The Report of the Surveyor is a valuable document and is reliable document unless it is rebutted by cogent and reliable evidence. In the instant case, the complainant has not filed any document or any circumstantial evidence to prove that Surveyor's Report is perverse and is not genuine. The complainant has not led any cogent and convincing evidence to rebut report of Surveyor. Mere assumption and presumption by way of affidavit of the complainant cannot be taken as trustworthy. He placed reliance on M/s. BHC Industries Vs. Export Credit Guarantee Corp. & Anr. 2015 NCJ 761 (SC); Sikka Papers Limited Vs. National Insurance Company Limited, 2010 NCJ 9 (SC); Khimjibhai & Sons Vs. New India Assurance Co. Ltd. IV (2011) CPJ 458 (NC); Amit Joshi Tours and Services Centre Pvt. Ltd. Vs. New India Assurance Co. Ltd. IV (2011) CPJ 590 (NC); Jaisri Mines Products Pvt. Ltd. Vs. New India Assurance Co. Ltd. & Anr. II (2009) CPJ 123 (NC); Iffco Toko General Insurance Company Limited Vs. Beena Raghav, III (2015) CPJ 75 (NC); Oriental Insurance Co. Ltd. Vs. Vijya Srinivasa Cotton Co. 2009 (3) CPR 389 (NC); Pentagaon Steel Pvt. Ltd. Vs. New India Assurance Co. Ltd. III (2010) CPJ 339 (NC); Hind Auto Center Vs. National Insurance Company Limited, IV (2014) CPJ 356 (NC).
// 24 //
18. We have heard learned counsel for both the parties and have perused the documents.
19. According to the O.P., the insured value declared by the complainant comes within under insurance. The O.P. relied on Sikka Papers Limited Vs. National Insurance Company Limited (Supra) in which it is observed by the Supreme Court that where the sum assured is less than amount required to be insured than insurer will pay in such proportion as sum insured bears to amount insured. In the instant case, the value of the insured goods was declared by the complainant and the employees of the O.P. after inspection and verification, accepted the value of the insured goods and thereafter the insurance policy was issued by the O.P. in favour of the complainant, therefore, it cannot be presumed that the insurance policy obtained by the complainant is under insurance, therefore, the above judgment is not applicable in the instant case.
20. The complainant delivered questionnaires to Smt. Kiran Chhabra, Surveyor and Shri Ashok Chawla, Investigator.
21. Shri Ashok Chawla, Investigator has specifically gave answer to the question no.2 to the effect that in his investigation report Page No.3 he clearly mentioned that as per the risk location cover by the policy is Plot no.27/28, Industrial Area, Urla, Raipur but on my visit to the above location I found that M/s. SMV Beverages Pvt. Ltd. situated at // 25 // the same location. He visited to the loss location and it found in the entrance gate sign board it clearly mentioned that the address as plot no.379 to 382, Urla industrial Area, Raipur. Also the same location mentioned in the insured firm's letter head. I inquired the insured's proprietor about the above mismatching of the address and he told us that his stock yard address is Plot No.379 to 382, Urla Industrial Area but he had no idea about the address Plot No.27/28, Urla Industrial Area, that mentioned in the policy copy.
22. In his report, Shri Ashok Chawla, Investigator gave his finding and mentioned that after being observed all the above of our finding and the circumstantial evidence, we got during investigation, here we have a opinion that the intention of the insured is totally incertitude for this claim and he tried to exaggerate the claim amount. So here we requested to the insurer to give an keen observation on the above our finding before take any decision this claim. Statement of Shri Gulam Gous Jilani was enclosed with investigation report.
23. Smt. Kiran Chhabra, was appointed as Surveyor. She visited the premises of the complainant and after considering the facts and evidence available before her reached to the conclusion that the complainant suffered loss to the tune of Rs.3,42,796/-. The O.P. filed Final Survey and Assessment Report dated 16.05.2015 of Smt. Kiran Chhabra, Surveyors and Loss Assessors.
// 26 //
24. Now we shall examine whether the Survey Report given by Smt. Kiran Chhabra, Surveyor is reliable and acceptable ?
25. In Final Survey and Assessment Report dated 16.05.2015 of Smt. Kiran Chhabra, Surveyor, it is mentioned thus ::-
"3. Identification :
The undersigned has inspected the premises and the address mentioned in the entry door of the premises of insured is 379- 382, Urla Industrial Area, Sector A, Raipur. The photo of gate is also enclosed with this report in CD.
5. Particulars of Survey/Observations :
The insured godown cum plant was inspected and noted that the godown cum plant building was inundated with water due to occurrence of heavy rains and overflowing of drains thus the stocks of Cassia and Niger stored in gunny bags have got wet and affected.
It was noted that the bags have been affected with different intensity and many bags were noted to be badly wet and affected. We requested the insured to segregate the same so that the affected bags can be counted / weighted for settlement of the loss and safe material can be taken out i.e. proper segregation needs to be done. It was further noted that stocks were lying in loose condition also and it has also been affected as a result of inundation.
The safe and affected stock was to be segregated for quantification and it was requested by me to insured many times and on second visit it was observed that the affected bags lying on ground floor in single layer has been arranged in heap // 27 // form and the loose material lying on the same floor which also got affected has also been filled in gunny bags and HDPE bags so the same were checked on date 08.08.2014 and 09.08.2014 by me but it was noted that both the products i.e. Cassia and Niger are kept in mixed condition and further many safe/fresh bags were also found to be mixed in that heaps so it could not be calculated exactly and further the packing in each bags was also not uniform i.e. as the insured took out safe portion of stocks from gunny bags so the packing quantity also got changed. It was further noted that insured has kept about 350 bags of Niger in open ground of the premises and we asked the insured that these will get wet so he should store them inside i.e. in covered section having roof but it was later observed that insured has kept it in same condition when we visited in January, 2015 for counting when the insured segregated all the goods for inspection. So the insured has himself kept the 350 bags of niger in open deliberately rendering it to deteriorate further.
We requested the insured to get the material tested from laboratory but he has not submitted any reports of lab test from his side till date.
We got the affected material and fresh material tested from laboratory and test details are enclosed herewith the report.
8. Assessment of loss :
The insured has claimed for loss of two product i.e. "CASSIA" & "NIGER" and as per our physical inspection the no. of Bags of "Cassia" counted is 896 and weight has been non uniform in the bags so the quantum worked out is as under :-
896 * 80% @ 40kg + 15% = 716.8 bag * 46 = 32978 kg 896 * 10% @ 20 kg + 15%=89.6% * 23 = 2060.8 kg // 28 // 886 * 10%@ 30 kg+ 15%=89.6*34.5=3091.2 896 Bags = 38130 kg of loss.
The loss of "CASSIA" has been assessed for 38130 kg = 38.130 MT less salvage value etc. as mentioned in our assessment. As per the laboratory test report of "NIGER" the 350 bags lying outside is not NIGER seed and it is a hull and quantity of SS found is above normal limits which indicates that the insured has mixed the "NIGER" hull and sand and presented before the surveyors and investigator that the stocks is of NIGER and also claimed for these bags. The insured has tried to befool the insurance company by wrong presentation i.e. showing niger hull i.e. nil value commodity has been claimed as if it is fresh raw material so we have assessed the loss for only 40 nos. of bags inside the godown iwith average weight of 20 Kg per bag and added the percentage.
40 bags*20 kg + 15% = 40*23 = 920 kg.
The insured has stored 350 nos. of bags in open ground after occurrence of inundation so this material was left for further deterioration due to rains. As per physical observation it appeared that there is mixture of foreign material in the stocks of 'NIGER' (As per insured) so it was checked from two laboratories and the laboratory test report proved that it is NIGER hull and sand etc. so there is no stand of insured to claim for these 350 bags of NIGER.
The insurers if deem fit can explore the possibilities that insured tried to misguide and exaggerate the claim by mixing sand and hull so if it can be made 'NO CLAIM' then it will curb these type of wrong practices. However we have reduced the loss amount to minimum i.e. to a justified loss by first finding out 200 bags in heap of cassia and separating bags filled with sand, stones and stock dust plus a few fresh bags in the heap of affected / claimed bags of "CASSIA". Further the // 29 // claim of "NIGER" has been minimized to actual loss and unnecessarily piled up stocks of NIGER hull and sand mix as proved by laboratory test have been discarded.
As there has been much variation in the cost of Cassia i.e. purchase price of cassia on which the claim needs to be settled. The following points needs attention before reaching to any conclusion.
The bank stock statement states that last purchase has been done by insured in October 2013 of 1300 Qtls. for Rs.23.10 lakhs so the purchase price comes out to be Rs.1776.92 (Rs.1777/Qt. [round off].
As per bank statement submitted by insured up to 31.07.2014 there has been no purchase of cassia so if we take the basis of bank stock statement which has been prepared by insured himself then the stocks of cassia which has been affected is of purchase price of Rs.1777.00 per quintal.
We requested Shri Mukesh Dholakia of M/s. Babulal Sarabhai & Co. to provide us some supporting safe / purchase bills of third party traders of cassia as he is National Secretary General of All India Minor Forest products but he could not provide the same to the investigator. The investigator report also needs to be checked on this aspect and his comments will also be crucial for the settlement of the claim.
10. Remarks "
The insured has tried to exaggerate the claim amount by showing the product 350 bags which are not actually the Niger seeds but Niger hull sand (mitti) and foreign material so the claim of 350 bags of Niger has been discarded and only claim of // 30 // 40 bags of Niger lying inside have been considered by the undersigned.
The salvage value as enquired from market by showing the sample of cassia is Rs.800/quintal in Dec. 2014 and the salvage buyers after observing the Niger said that it is not Niger and it is a wastage and Niger Hulls so they were not interested in giving any quotation for Niger (as per insured) kept outside in open ground.
As the undersigned has taken extra efforts to contain this loss to minimum level and visited the plant more than normally required met traders of this product salvage buyers and further visited along with investigator also so on account of this we have charged extra fees as per the GIPSA fee schedule and request the insurers to kindly consider the same considering the fact that originally the insured loss amount as per his intimation was about Rs.40-50 lakhs and the same has been brought down to justified level by putting extra efforts.
Test report (Sumit Chemical & Co.) We got tested 04 nos. of samples of Niger and 04 nos. of samples of Cassia from different bags of which few were safe i.e. fresh samples also and it were checked on different parameters.
The sample of Niger (N2) was fresh and safe piece and in it the oil content is 33.33% in comparison to wet sample (N3) lying inside having 21.80% and the Niger (N1) lying outside is containing oil of only 0.15% which clearly indicates that the Niger N1 i.e. 350 bags lying outside is not Niger but niger hull and foreign matter as the SS sand silica in N-1 is 31.20% where as in N2 it is 3.5% and N3 it is 3.30%. The moisture content in wet samples is higher than the safe and fresh sample.
Particulars / sale Bill Statement "
The insured has submitted purchase bills of Niger and the details of same have been enclosed in Annexure D of the report."
// 31 //
26. In Jaisri Mines Products Pvt. Ltd. Vs. New India Assurance Co. Ltd. & Anr. (Supra), Hon'ble National Commission has observed that "Burden to prove that fire was deliberate act on insurer. Second policy of Rs.115 lakh taken during continuance of first policy, when factory lying almost closed. Letter from bank for purchase of policy to cover the risk, not filed. Fire to factory set deliberately cannot be safely inferred from above facts. Fire accidental, caused due to electric short circuit proved by evidence on record. Out of 90 sale and purchase bills, 87 found written by one and same person. Documents and account books submitted by complainant after 6 months of incident. Explanation given for late submission of documents does not inspire confidence. Surveyor's report coupled with reports of Investigator, FSL and CID, proves that documents and books of accounts fabricated by complainant to support the claim made. Repudiation of claim justified. No relief entitled."
27. In Oriental Insurance Co. Ltd. Vs. Pavan Enterprises & Anr. I (2016) CPJ 503 (NC), Hon'ble National Commission has observed thus :-
"12. I see no reason to discard the report of the Surveyor. He appears to be a guideless witness. No motive was ever attributed to him. There must be some reasonable ground or doubt to reject his report. The report of the Surveyor carries infinite significance as was held in Roshan Lal Oil Mills Ltd. & Ors., 2014 (SLT Soft) 1 = 2014 // 32 // (CPJ Soft) 1 = (2000) 10 Supreme Court Cases 19 and in D.N. Badoni v. Oriental Insurance Co. Ltd., I (2012) C.P.J. 272 (NC)."
28. In United India Insurance Co. Ltd. And Others Versus Roshan Lal Oil Mills Ltd. And Others (2000) 10 SCC 19, Hon'ble Supreme Court, has observed thus :-
"7. The appellant had appointed joint surveyors in terms of Section 64-UM(2) of the insurance Act, 1938. Their report has been placed on the record in which a detailed account of the factors on the basis of which the joint surveyors had come to the conclusion that there was no loss or damage caused on account of fire, was given and it was on this basis that the claim was not found entertainable. This is an important document which was placed before the Commission but the Commission, curiously, has not considered the report. Since the claim of the respondent was repudiated by the appellant on the basis of the joint survey, the Commission was not justified in awarding the insurance amount to the respondent without adverting itself to the contents of the joint survey report specially the factors enumerated therein. In our opinion, non-consideration of this important document has resulted in serious miscarriage of justice and vitiates the judgment passed by the Commission. The case has, therefore, to be sent back to the Commission for a fresh hearing."
29. In D.N. Badoni versus Oriental Insurance Co. Ltd. I (2012) CPJ 272 (NC), Hon'ble National Commission, has observed thus :-
"11. We see no reason to disbelieve the report of the Surveyor particularly since the petitioner has not been able to produce any credible evidence to contradict the same. The contention of the authorized agent of the petitioner that the Surveyor had admitted that the loss suffered was Rs. 93,340 is not correct. In fact, in his report // 33 // Surveyor has just quoted the assessment and the details of the repairs given by the petitioner. In the next column of his report, he has listed out the approximate net amount of the loss as Rs. 3,665.63. The District Forum erred in not taking this important evidence into consideration and relied only on the petitioner's version of the loss suffered based on some bills produced by him which have not been proved. It is well settled law that a Surveyor's report has significant evidentiary value unless it is proved otherwise which petitioner has failed to do so the instant case. The State Commission a part from being a Court of appeal in also a Court of fact and has correctly concluded that the actual loss suffered to the vehicle as reported by the Surveyor was Rs.3,715. To this amount the Surveyor has added another Rs.4,000 being the actual amount paid for the toeing charges and by not deducting Rs. 1,500 as excess clause, which is reasonable. We, therefore, agree with the well reasoned order of the state Commission that the petitioner is entitled to get Rs. 7,500 from the respondent as insurance and there is no other compensation warranted in the instant case."
30. In Dipali Das versus United India Insurance Co. Ltd. & Anr. IV (2013) CPJ 233 (NC), Hon'ble National Commission, has observed thus :-
7. In D.N. Badoni versus Oriental Insurance Co. Ltd. I (2012) CPJ 272 (NC), it was observed that it is well settled that a Surveyor's report has significant evidentiary value, unless it is proved otherwise, which the petitioner has failed to do so in the instant case.
8. The Hon'ble Apex Court in United India Insurance Co. Ltd. V. Roshanlal Oil Mills & Ors. (2002) 10 SCC 19, was pleased to hold:
"The appellant had appointed joint surveyors in terms of Section 64-UM(2) of the insurance Act, 1938. Their report has // 34 // been placed on the record in which a detailed account of the factors on the basis of which the joint surveyors had come to the conclusion that there was no loss or damage caused on account of fire, was given and it was on this basis that the claim was not found entertainable. This is an important document which was placed before the Commission but the Commission, curiously, has not considered the report. Since the claim of the respondent was repudiated by the appellant on the basis of the joint survey, the Commission was not justified in awarding the insurance amount to the respondent without adverting itself to the contents of the joint survey report specially the factors enumerated therein. In our opinion, non-consideration of this important document has resulted in serious miscarriage of justice and vitiates the judgment passed by the Commission. The case has, therefore, to be sent back to the Commission for a fresh hearing."
31. In the case of Ashu Textiles v. New India Assurance Company & Anr., III (2009) CPJ 272 (NC), Hon'ble National Commission observed that "the Surveyor's report has to be given more weightage than the report of Fire Brigade and compensation to be assessed on basis of detailed survey report."
32. In Khimjibhai & Sons v. New India Assurance Co. Ltd., (Supra), Hon'ble National Commission observed that "It is to be noted that it is in accordance with the requirement of law that a surveyor is required to be appointed by the Insurance Company and when such a surveyor who is licensed professional to assess such loss gives a report with reasons to support // 35 // the same, such a report can be discredited only on the basis of specific grounds which are required to be recorded in the order."
33. In the case of Ankur Surana v. United India Insurance Co. Ltd., I (2013) CPJ 440 (NC), Hon'ble National Commission observed that "it is well established by now that the report of the surveyor is an important document and the same should not be rejected by the Fora below unless cogent reasons are recorded for doing so. The State Commission has stated that it did not see any legal ground before the District Forum to reject the report of the Surveyor. The report of the surveyor should have been rebutted on behalf of the complainant/petitioner since the respondents/OPs had filed the surveyor's report as their evidence."
34. In Iffco-Tokio General Insurance Company Limited. Vs. Beena Raghav, (Supra), Hon'ble National Commission has observed that "respondent failed to explain her reluctance and refused to get the car repaired and thereafter claiming cost incurred based on actual bills for repair. No cogent reason for dismissing survey report as untrustworthy. Total loss not established."
35. In New India Assurance Co. Ltd., vs. Pave Infrastructures Pvt. Ltd., 2015 (3) CPR 577 (NC), Hon'ble National Commission has observed that "Loss of assessment by approved Surveyor can be discarded only on cogent reasons".
// 36 //
36. In Garg Acrylics Ltd., Through Sh. Anish Bansal G.M. (G.M.) Authorised Representative vs. United India Insurance Co. Ltd., 2015 (1) CPR 273 (NC), Hon'ble National Commission has observed thus :-
"11.................. This is settled Law that the report of the surveyor is to be given much more weightage than any other piece of evidence. See the Law laid down in United India Insurance Co. Ltd. & Others Versus Roshan Lal Oil Mills Ltd. & Ors. (2000) 10 Supreme Court Cases 19 & in D.N. Badoni Vs. Oriental Insurance Co. Ltd. I (2012) C.P.J. 272 (NC)".
37. In The Oriental Insurance Co. Ltd., Through its Regional Manager vs. Ishwar Singh, 2015 (1) CPR 157 (NC), Hon'ble National Commission has observed thus :-
"17. Counsel for the petitioner has also drawn our attention to the Apex Court Judgment in the case Sri Venkateswara Syndicate vs. Oriental Insurance Company Ltd., and Another, (2009) 8 Supreme Court Cases 507 wherein the Apex Court has held as under :-
"There is no disputing the fact that the surveyor/surveyors are appointed by the insurance company under the provisions of the Insurance Act and their reports are to be given due importance and one should have sufficient grounds not to agree with the assessment made by them".
38. In Shankarlal Virji Thakkar vs. United India Insurance Co. Ltd. 2015 (1) CPR 821 (NC), Hon'ble National Commission has observed thus :-
// 37 // "7. The report of the Surveyor appears to be quite reasonable and just. There is no evidence whatsoever to 501 affected bags + other bags which were not counted. Thos bags must have fetched some amount.
There is no reason to discard the report of the Surveyor. It is a balanced report. It has considered all the factors. It is well settled that the report of the Surveyor has to be given due weightage in view of the celebrated authorities of the Hon'ble Apex Court in United India Insurance Co. Ltd. & Others Versus Roshan Lal Oil Mills Ltd. & Ors. (2000) 10 Supreme Court Cases 19, para 7, D.N. Badoni Vs. Oriental Insurance Co. Ltd. I (2012) CPJ 272 (NC).
39. In New India Assurance Company Ltd. vs. Balaji Emporium, I (2015) CPJ 588 (NC), Hon'ble National Commission has observed thus :-
"9. We are of the considered view that the report made by the Surveyor appears to be correct. It is bolstered by sold and unflappable evidence. He has also considered the income tax reports and entries in the stock registered. The conclusion of the State Commission is vague, evasive and leads us nowhere."
40. In Sunanda Kishor Bhand & Anr. v. United India Insurance Co. Ltd. I (2014) CPJ 369 (NC), Hon'ble National Commission has observed thus :-
"11. It is well settled law that a surveyor's report has significant evidentiary value, unless is proved otherwise, which the complainant has failed to do so in the case. This view was taken in the case of D.N. Badoni v. Oriental Insurance Co. Ltd., I (2012) CPJ 272 (NC).
// 38 //
41. In M/s. Hinafil India Limited vs. United India Insurance Company Limited & Another, 2015 (3) CPR 35 (NC), Hon'ble National Commission, has observed that "Surveyor being a third person, report submitted by him is entitled to a great weight and should ordinarily be accepted."
42. We have perused the Investigation Report dated 25.05.2015 of Shri Ashok Chawla, Investigator and Survey Report dated 16.05.2015 of Smt. Kiran Chhabra, Surveyor. The Surveyor specifically mentioned in her report that she got tested 04 nos. of samples of Niger and 04 nos. of samples of Cassia from different bags of which few were safe and it were checked on different parameters. The report of the analyst was obtained by the Surveyor and the Surveyor mentioned the data given by the Analyst, in her report and she considered all relevant facts and material available before her and she also inquired the complainant and she counted the bags, thereafter she gave her report. Every aspect was taken into consideration by the Surveyor, therefore, report of the Surveyor is reliable document and the report of the Surveyor is an important and reliable document unless and until it is rebutted by cogent and dependable evidence by the other party.
43. In the instant case, the complainant has not been able to adduce any cogent and dependable evidence to rebut the report of the Surveyor.
// 39 //
44. The complainant submitted that he suffered loss to the tune of Rs.45,00,000/- and sought above amount from the O.P. along with interest @ 18% p.a., but we find that the complainant did not produce any cogent and reliable evidence to show that he suffered loss to the tune of Rs.45,00,000/-. On the contrary, in the instant case Smt. Kiran Chhabra, Surveyor and Shri Ashok Chawla, Investigator, gave their reports. Smt. Kiran Chhabra, Surveor assessed the loss to the tune of Rs.3,42,796/-. The Report of the Surveyor is a reliable evidence, therefore, the Surveyor's Report is genuine and dependable. On the basis of Surveyor's Report, it is evident that the complainant suffered loss to the tune of Rs.3,42,796/-, therefore, the complainant is entitled get compensation to the tune of Rs.3,42,796/- (Rupees Three Lakhs Forty Two Thousand Seven Hundred Ninety Six) from the O.P.
45. The complainant prayed for granting interest @ 18% p.a., which is on higher side. Looking to the facts and circumstances of the case, the complainant is entitled for interest @ 9% p.a. with effect from the date of filing of the complaint i.e. 28.08.2015 till realisation on amount of Rs.3,42,796/- (Rupees Three Lakhs Forty Two Thousand Seven Hundred and Ninety Six). The complainant has also prayed for granting compensation of Rs.2,00,000/- (Rs. Two Lakhs) for mental agony and harassment suffered by the complainant and a sum of Rs.2,50,000/- (Rupees Two Lakhs Fifty Thousand) for deficiency in service and unfair trade practice committed by the O.P. and also a sum // 40 // of Rs.45,000/- (Rupees Forty Five Thousand) as cost of litigation and advocate fees.
46. In our view, the complainant is not entitled for compensation for mental agony and harassment & compensation for deficiency in service and unfair trade practice, therefore, prayer of the complainant for granting compensation of Rs.2,00,000/- towards compensation for mental agony and harassment and compensation of Rs.2,50,000/- for deficiency in service and unfair trade practice, is turned down. The complainant is entitled to get a sum of Rs.10,000/- (Rupees Ten Thousand) from the O.P. towards cost of litigation and advocate fees.
47. Therefore, we partly allow the complaint of the complainant and it is directed that the O.P. (Insurance Company) will pay a sum of Rs.3,42,796/- (Rupees Three Lakh Forty Two Thousand Seven Hundred Ninety Six) along with interest @ 9% p.a. with effect from 28.08.2015 i.e. date of filing of the complaint till realisation and a sum of Rs.10,000/- (Rs. Ten Thousand) only towards cost of litigation and advocate fees to the complainant.
(Justice R.S. Sharma) (Ms. Heena Thakkar) (D.K. Poddar) (NarendraGupta) President Member Member Member 07/04/2016 07/04/2016 07/04/2016 07/04/2016