National Consumer Disputes Redressal
New India Assurance Co. Ltd. vs M/S. Balaji Emporium on 9 January, 2015
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 1687 OF 2009 (From order dated 02.02.2009 in First Appeal No. 558/2007 of the State Consumer Disputes Redressal Commission, Himachal Pradesh, Shimla) New India Assurance Company Ltd. Regional Office-I, Jeevan Bharti 124, Connaught Circus New Delhi 110 001 Petitioner Versus M/s. Balaji Emporium Through Sh. Puran Chand Nagpal House No. 9, New Housing Board Colony Bilaspur, District Bilaspur Himachal Pradesh Respondent BEFORE: HONBLE MR. JUSTICE J. M. MALIK, PRESIDING MEMBER HONBLE DR. S. M. KANTIKAR, MEMBER For the Petitioner : Mr. Salil Paul, Advocate For the Respondent : Ex-parte PRONOUNCED ON 9th JANUARY, 2015 O R D E R
JUSTICE J.M. MALIK
1. Shri Puran Chand Nagpal, Proprietor of M/s. Balaji Emporium, the complainant, transacts his business at House No. 9, New Housing Board Colony, Bilaspur, Himachal Pradesh. He obtained an insurance policy from New India Assurance Company Ltd., the OP, through the Punjab National Bank, Bilaspur, and hypothecated his firm, for a period of one year commencing from 27.12.2004 to 26.12.2005, in the sum of ₹ 5,00,000/-.
2. Unfortunately, on 22.02.2005, a fire broke out in the garment shop of the complainant at Shop No.3, near RTO Office, Bilaspur, which gutted all the articles kept lying in the shop, including furniture and clothes. The police as well as the insurance company and the Punjab National Bank, were informed of the incident on the following day, i.e., on 23.02.2005.
3. The Surveyor assessed the loss at ₹ 58,406/-. While aggrieved, the respondent /complainant filed a complaint before the District Forum seeking an amount of ₹4,46,791/- towards stock destroyed in fire, ₹ 25,260/- towards loss of furniture, ₹ 20,000/- towards mental agony and ₹ 10,000/- towards costs.
4. The District Forum partly allowed the complaint and directed the OP-insurance company to pay the complainant a sum of ₹58,406/- with interest @ 9% p.a., and costs at ₹ 1,000/-.
5. The complainant, aggrieved by that order, filed appeal before the State Commission. The State Commission enhanced the award by directing the OP-insurance company to pay a sum of ₹ 2,12,600/- to the complainant, with interest at the rate as awarded by the District Forum.
6. We have heard the counsel for the petitioner/OP. Respondent/ complainant was proceeded against ex-parte vide our order dated 03.12.2014.
7. We have perused the judgment of the State Commission. While discussing the survey report, the State Commission gave details of it in para No.4, which runs as follows :-
4. On receipt of information regarding the fire incident, preliminary survey was got done by the respondent from on Shri Vineet Kaura, Surveyor/Loss Assessor, copy of his report is Annexure R.3. Final survey was got done by the respondent from Shri Surinder Kumar Soni, Chartered Accountant. Copy of his report is Annexure R.4. Amongst other things, observation made by the Surveyor who carried out preliminary survey in Annexure R.3 about the loss is, that it was highly impossible to keep the stock of Rs.4.5 lakhs in a shop of the size of 10x14, and that too provided with furniture/fixtures. In his final survey report, Annexure R.4, Chartered Accountant while assessing the loss has taken note of the income tax returns for the year ending on 31.3.2002, 31.3.2003 and 31.3.2004. In addition to these, he has also taken note of the sales tax returns for the quarters starting from 1.4.2003 to 31.3.2004 and 1.4.2004 to 31.12.2004.
He has also considered the trading account. Sale between 1.1.2005 to 22.5.2005 being Rs.1,43,368/- were also considered. Further as per his report, in case of stocks between 1.4.2003 to 31.3.2004 as also increase in income for 2002/2003 was also considered by him. However, he came to the conclusion that the corresponding increase in the profits does not justify the increase in the volume of increase in the stocks. Finally after taking note of the quantities claimed, as also the sum claimed by the appellant, Shri Soni has recommended compensation after concluding that the total loss on account of stocks and furniture worked out to Rs.68,406/-. Then after applying excess clause, he recommended the liability to the respondent-insurer at Rs.58,406/-.
8. However, the State Commission did not agree with the same and tried to conduct the survey of the case by itself. In para Nos. 9 & 10 of its judgment, it was mentioned as under :-
9.From the record as well as final survey report, Annexure R.4, it is evident that the appellant had availed drawing limit to the extent of Rs.1,00,000/- from the Punjab National Bank. He was submitting quarterly stock statements much before the date of fire. Quarter-wise stock statements of the quarters ending from 30-3.2004 to 31.1.2005 are as under:-
S.No. Period ending Value of stock (In Rs.) Annexure Page 1 31.01.2005 4,58,500/-
C-20 & 21 46-47 2 30.06.2004 3,59,500/-
C-22 48 3 30.09.2004 5,09,000/-
C-23 49 4 31.12.2004 4,75,000/-
C-24 & 25 50-51 5 30.03.2004 3,99,000/-
C-27 53 6 31.12.2003 4.05,000/-
C-26 52 These are the documents which had been furnished by the appellant to his banks. These in our opinion indicate the stock position fluctuating between Rs.3,59,500 to Rs.5,09,000/-.
10. For the period ending on 31.01.2005, stock statement showing the details of the stock held by the appellant on this date is Annexures C-20 & 21 and its value is Rs.4,58,500/-. When a reference is made to the final survey report, Annexure R-4 none of these have been taken note of.
And in the end, its Para No.16, it mentions as under :-
16. Now the question arises as to how to determine the extent of loss sustained by the appellant. According to him, the value of the stock that was destroyed in the fire was Rs.4,46,791/- and of furniture Rs.25,260/-. In this behalf, as per Annexures C-20 & 21, stock of the value of Rs.4,58,500/- was available with the appellant on 31.01.2005. And sale was to the extent of Rs.1,43,368/- as per the appellant as noted in Annexure R-4. In these circumstances, it is felt that some guess work has to be done.
Thus, it is felt that after deducting the value of stock, as also taking note of the dead stock, etc., interest of justice will be served if a sum of Rs.2,00,000/- is allowed instead of the sum claimed by the appellant or that has been allowed by the District Forum below. Similarly, loss of furniture, etc., needs to be slashed down to half. Accordingly, it is held that the appellant is entitled to Rs.2,00,000/- qua the burnt stock in trade and Rs.12,630/- or say Rs.12,600/- for the furniture, etc. This brings the total sum to Rs.2,12,600/- to which the appellant is held entitled to as compensation. Ordered accordingly.
9. We are of the considered view that the report made by the Surveyor appears to be correct. It is bolstered by solid and unflappable evidence. He has also considered the income tax reports and entries in the stock register. The conclusion of the State Commission is vague, evasive and leads us nowhere. When the State Commission was satisfied that a loss of more than ₹ 4,00,000/- was committed, why did it reduce to ₹ 2,00,000/-.
10. The report of the Surveyor appears to be correct and reliable. It is well settled that the report of the Surveyor is to get due weightage. There should be some solid reasons for rejecting the same. This was so held in United India Insurance Co. Ltd. Vs. Roshan Lal Oil Mills Ltd. & Ors., (2000) 10 SCC 19, para 7, D.N. Badoni Vs. Oriental Insurance Co. Ltd., I (2012) CPJ 272 (NC).
11. Consequently, we accept the revision petition, restore the order of the District Forum, which be complied with, immediately.
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(J. M. MALIK, J) PRESIDING MEMBER ...
(DR.S. M. KANTIKAR) MEMBER