State Consumer Disputes Redressal Commission
M/S Sanitary Sales vs The New India Assurance Co. Ltd. on 27 March, 2018
FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
Consumer Complaint No.292 of 2017
Date of Institution: 28.04.2017
Order reserved on: 26.03.2018
Date of Decision : 27.03.2018
M/s Sanitary Sales, through Sole Proprietor Sunder Chabra aged
about 48 years s/o Sh. Ram Chand, Amrik Singh Road, Bathinda.
.....Complainant
Versus
1. The New India Assurance Co. Ltd. Divisional Office, The Mall,
Bathinda, through its Divisional Manager.
2. H.D.F.C. Bank, Guru Kashi Marg, Bathinda through its
Manager.
.....Opposite Parties
Complaint U/s 17(1)(a) of the Consumer
Protection Act, 1986 (as amended up to
date).
Quorum:-
Shri J. S. Klar, Presiding Judicial Member.
Smt. Surinder Pal Kaur, Member.
Present:-
For the complainant : Sh. Nitish Garg, Advocate For opposite party no.1 : Sh. Vinod Gutpa, Advocate For opposite party no.2 : Ex-parte .................................................................................. J. S. KLAR, PRESIDING JUDICIAL MEMBER:-
The complainant has instituted this complaint U/s 17(1)(a) of the Consumer Protection Act 1986 (in short the "Act"), against opposite parties (OPs) on the averments that complainant has been running the wholesale and retail business of sanitary related goods etc. for livelihood. The complainant got its stocks, interior (furniture fixtures) insured with OP no.1 under shopkeeper Consumer Complaint No.223 of 2017 2 insurance for Rs.15,00,000/- for furniture, fixtures and fittings and Rs.60,00,000/- for stocks etc. (total for Rs.75,00,000/-), vide insurance policy no.36060148150600000086 for the period from 06.09.2015 to 05.09.2016. Before issuing the policy, office of OP no.1 inspected the furniture, fixtures of building i.e. false ceilings and total stocks etc. of it. On 03.03.2016, the shop/building/booths of the complainant caught huge fire, in the early morning hours. The building was damaged due to the fire and further the stocks and furniture and fittings were also damaged due to fire, which were duly insured with OP no.1. The intimation was given to the concerned police station, fire brigade and also to the insurance company/OP immediately. OP no.1 appointed Mr. Parmod Mittal Director of M/s Mittal Independent Insurance Surveyors and Loss Assessors Pvt.
Ltd., Bathinda as surveyor for the assessment of the loss of stocks, furniture fixtures etc., as per their insurance, which was illegal and they just appointed him in connivance with Parmod Mittal for reducing the claim with his own mind and more over the said surveyor is not independent surveyor, as he was working for OP no.1. The above surveyor demanded the documents from complainant i.e. all books with balance sheets since 2013 till fire, map of the shop, stock statements given to OP no.2 bank from time to time, all purchases and sale data, fire brigade report, DDR, statement of neighbors, estimate loss with quotations, complete list of damaged stock lying in the shop at the time of fire and photographs etc. The fire was so huge and stocks to the tune of Consumer Complaint No.223 of 2017 3 Rs.17,84,474/- were got destroyed out of total stocks of Rs.38,46,169/- against the insured amount of Rs.60,00,000/- and furniture, fixtures and fittings etc. (FFF) of Rs.16,82,807/- was damaged against the sum assured of Rs.15,00,000/-, totaling to Rs.34,67,281/-. The complainant received Rs.14,50,127/- against total loss of Rs.34,67,281/-. OP no.1 and above surveyor took the letter of full and final payment of Rs.14,50,127/- against total loss of Rs.34,67,281/- from the complainant under coercive method on the pretext that they would not release the said part payment without this letter of full and final settlement and the complainant signed the same under compulsion. The complainant has alleged deficiency in service and unfair trade practice on the part of OPs and prayed that OPs be directed to pay the balance claim amount of Rs.20,17,154/-, as per law alongwith interest @18% per annum compounding monthly; Rs.One lakh as compensation for mental harassment and Rs.One lakh as litigation expenses.
2. Upon notice, OP no.1 appeared and filed written reply and contested the complaint of the complaint vehemently. It is averred in preliminary objections that complaint is not maintainable, as complainant has already received the full and final payment of Rs.14,50,127/-, as per report of the surveyor, through NEFT on 16.09.2016 and the present complaint has been filed on 25.04.2015, after eight months from the date of receipt of full and final compensation. On merits, it is admitted that complainant purchased shopkeeper insurance for a sum of Rs.75,00,000/-. The terms and Consumer Complaint No.223 of 2017 4 conditions of the policy were duly supplied to the complainant. It is denied that surveyor was not an independent person. The IRDA issued the licenses to those surveyors, who fulfilled the qualifications and are independent. When OPs appointed Mittal independent surveyor as surveyor, the complainant did not raise any objection thereto. There was opportunity with the complainant to appoint their own surveyor to assess the loss to prove that the report given by the surveyor appointed by OP company was not correct, but no contrary evidence has been proved by the complainant. The value of the furniture cannot be same which was purchased 2, 3 and 5 years back and there is depreciation clause in the condition of the insurance policy. The full and final payment letter was given by the complainant himself after receiving the payment with their sweet will, as he was fully satisfied and there is no role of the surveyor after submitting the report and full and final payment received letter was given by the complainant to the insurance company. OP no.1 has controverted the other averments of the complainant and prayed for dismissal of the complaint. OP no.2 was set exparte, vide order dated 25.10.2017 in this case.
3. The complainant tendered in evidence his affidavit Ex.C-A alongwith copies of document Ex.C-1 to Ex.C-20 and closed the evidence. As against it, OP no.1 tendered in evidence affidavit of Charanjit Singh Assistant Manager of OP no.1 Ex.OP-A alongwith copies of document Ex.R-1/1 and Ex.R-1/2 and closed the evidence. Consumer Complaint No.223 of 2017 5
4. We have heard the learned counsel for the parties and have also examined the record of the case. The grievance of the complainant is that he suffered total loss of Rs.34,67,281/- (Rs.17,84,474/- was got damaged out of total stocks of Rs.38,46,169/- against the insured amount of Rs.60,00,000/- and furniture, fixtures and fittings etc. (FFF) of Rs.16,82,807/- was damaged against the sum assured of Rs.15,00,000/-). The complainant has alleged in this complaint that OP no.1 issued less amount of Rs.20,17,154/- to him towards above loss suffered by him in the engulfment of fire. Ex.C-1 is the copy of policy schedule for shopkeepers insurance. Ex.C-2 is the copy of DDR no.031 regarding above incident of fire, which took place in the shop of complainant. Ex.C-3 is the copy of intimation to OP company by complainant. Ex.C-4 is the copy of survey report. The complainant is aggrieved by the report of the surveyor Ex.C-4 in inadequately assessing the loss amount to it.
5. The report of surveyor Ex.C-4 dated 25.07.2016 is the significant document on the record. As per report of surveyor, the fire was caused by electric short-circuiting and it was treated as accidental in nature and liability of insurer was fixed under the policy. He provided the stock statement submitted to the bank as under:
Month Amount
July 15 Rs.1,36,50,000.00
August 15 Rs.1,27,50,000.00
August 16 Rs.1,23,75,000.00
Consumer Complaint No.223 of 2017 6
He further provided the important financial data as under:
Items 31.03.2013 31.03.2014 31.03.2015 02.03.2016 Sale 8,11,43,505.00 4,38,71,026.00 4,77,67,525.00 3,66,84,770.00 Gross Profit 90,54,848.00 52,61,892.00 54,09,446.00 41,70,710.00 Net Profit 24,89,513.00 11,43,342.00 11,34,274.00 Prop. 62,55,885.00 59,22,196.00 61,59,740.00 Capital Secured 96,40,047.00 1,22,04,905.00 90,17,574.00 Loan Stocks 1,88,18,600.00 2,17,26,300.00 2,33,24,600.00 1,71,14,596.00 The above data shows that complainant company was in profits. The stocks for jaquar etc.; bodies, sink maxtures, showers etc. These were badly damaged. The inside rubber parts were also melted rendering them unsaleable and the loss is assured for 85% after deducting15% as scrape value. Similarly, the steam bath and steam column made up of acrylic sheet had melted and is of heavy loss. Stocks of artize etc. were premium items and not so extensively damaged. Similarly for other branded items, grohe, perryware etc. loss is considered for 50%, which is quite reasonable. After minute examination, it was found that there was no loss to the electronic system. The surveyor assessed the loss as under:
Sr.No. Item Amount considered percentage claimed
1. badly 4,98,300.43 4,23,555.00 85% damaged jaquar:
Bodies, sink mixtures, showers etc.
2. badly 1,17,208.69 1,11,348.00 95% damaged Consumer Complaint No.223 of 2017 7 accessories and sanitaryware
3. partially 5,37,166.30 2,68,899.00 50% damaged stocks of artize etc.
4. imported, 5,04,166.30 2,52,083.15 50% parryware, grohe, duravit
5. Duravit Senso 1,27,000.00 0% wash excell Total 17,84,474.11 10,55,885.15 Less: 52,794.00 Deduction @5% for possibility of variation in quantity & rates Balance 10,03,091.15 Less: 50,154.56 Deduction @5% for dead stocks and slow moving items Loss 9,52,936.59 Assessed The insured provided estimate of loss for various items and quotations for some of the items. After discussion, the loss is assessed at Rs.11,97,028/-, whereas complainant company claimed Rs.16,82,807.00. The surveyor assessed the loss as per average clause and excess clause as under:
Particulars Stocks FFF Total
Sum Insured 60,00,000.00 15,00,000.00 75,00,000.00
Value at Risk 38,46,169.00 10,00,000.00 48,46,169.00
Loss Assessed 9,52,936.00 11,97,028.00 21,49,964.00
Less Depreciation - 5,98,514.00 5,98,514.00
Less Salvage - 25,000.00 25,000.00
Net Loss 9,52,936.00 5,73,514.00 15,26,450.00
Assessed
Average Clause - - -
Loss after 9,52,936.00 5,73,514.00 15,26,450.00
average
Consumer Complaint No.223 of 2017 8
Excess Clause 76,323.00
Adjusted Loss 14,50,127.00
The surveyor submitted his above detailed survey report to OP company. The report of the surveyor is generally taken as correct by the Forum unless it is rebutted by the contrary evidence on the record. The onus is now shifted to the complainant to rebut the report of the surveyor by leading contrary evidence on the record.
The complainant has not led any cogent evidence on the record to refute this technical report of the surveyor in this case. The simple submission of counsel for the complainant is that stock, which was placed in the shop was in excess and less amount has been paid to the complainant by OP towards settlement of this insurance claim. The complainant relied upon stock statement and some Photostat copies of receipts and bills on the record to this effect only. We have carefully examined all these documents in the shape of bills and receipts and so on placed on the record by the complainant. We find that the surveyor assessed the loss by tabulating it and there were certain items, which were counted to the tune of 50%. Mere stocks, which were partially damaged cannot be taken towards loss of the complete items. Consequently, we find that the report of the surveyor remained unrebutted by the complainant on the record. The report of surveyor is generally a reliable piece of evidence unless it is rebutted by contrary evidence on the record. Consequently, the report of surveyor Ex.C-4 is held to be correct by us and is the basis of adjudication of this case. The complainant could not make a dent in the report of surveyor in our view.
Consumer Complaint No.223 of 2017 9
6. In addition to that, OP no.1 has paid the amount as assessed by the surveyor to the complainant, vide settlement Ex.R-1/1, whereby net loss of Rs.14,50,127/- has been received by the complainant. The complainant has executed this document of full and final settlement and received the amount of Rs.14,50,127/- towards this loss as full and final settlement and complainant has not received it under protest and thereafter filed this complaint against OPs after eight months period in the year 2017. The complainant relied upon one circular dated 24.09.2015 issued by Insurance Regulatory and Development Authority of India that execution of such voucher does not foreclose the right of policy holder to seek higher compensation before any judicial fora or any other fora established by law. Even otherwise, the report of surveyor has not been proved to be a wrong report by the complainant and even relying upon this circular, as cited by counsel for complainant, even there is no infirmity in the report of surveyor on the record. Consequently, while considering the law laid down in "Ramdas Sales Corporation Vs. The New India Assurance Company Ltd. and another"2016(3)CPJ-40 and in "M/s Modern Insulators Ltd. Vs. Oriental Insurance Co. Ltd." 2000(1)CPC-596 by the Apex Court and law laid down by the National Commission in "United India Insurance Company Ltd. Vs. P.S. Mani" 1992(2)CPJ-354, we have reached this conclusion that the report of surveyor can be relied upon by us. The reliance of complainant on law laid down in "New India Assurance Company Limited Vs. Pradeep Kumar" Consumer Complaint No.223 of 2017 10
2016(1)CPR-434 by the Apex Court that report of surveyor is not sacrosanct and it is no conclusive. The Apex Court simultaneously observed that approved surveyor's report may be basis or foundation for settlement of a claim by the insurer in respect of the loss suffered by the insured. We find that the complainant could not rebut the report of surveyor on the record in this case in our view by leading contrary evidence.
7. As a result of our above discussion, we find that there is no merit in the complaint filed by the complainant and the same is hereby dismissed without any order as to costs.
8. Arguments in this complaint were heard on 26.03.2018 and the order was reserved. The certified copies of the order be communicated to the parties, as per rules.
9. The complaint could not be decided within the statutory period due to heavy pendency of court cases.
(J. S. KLAR) PRESIDING JUDICIAL MEMBER (SURINDER PAL KAUR) MEMBER March 27, 2018.
(MM)