State Consumer Disputes Redressal Commission
M/S Garg General Store vs National Insurance Company Limited on 22 October, 2013
FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB
SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
First Appeal No.293 of 2009.
Date of Institution: 09.03.2009.
Date of Decision: 22.10.2013.
M/s Garg General Store, Bassi Khawaju, Hoshiarpur (Punjab), through
Prop. Gurbaskh Rai Garg.
.....Appellant.
Versus
1. National Insurance Company Limited, Madan Building, Phagwara
Road, Hoshiarpur, through Divisional Manager.
2. National Insurance Company, Sector 34-A, SCO 332-34,
Chandigarh, through Regional Manager.
...Respondents.
First Appeal against the order dated
02.02.2009 passed by the District
Consumer Disputes Redressal Forum,
Hoshiarpur.
Before:-
Shri Inderjit Kaushik, Presiding Judicial Member.
Shri Vinod Kumar Gupta, Member.
...................................
Present:- Ms Jyoti Sareen, Advocate, counsel for the appellant.
Sh. Rajneesh Malhotra, Advocate, counsel for the respondents.
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INDERJIT KAUSHIK, PRESIDING JUDICIAL MEMBER:-
M/s Garg General Store, Bassi Khawaju, Hoshiarpur, through Prop. Gurbaskh Rai Garg, appellant/complainant (In short "the appellant") has filed this appeal against the order dated 02.02.2009 First Appeal No.293 of 2009 2 passed by the learned District Consumer Disputes Redressal Forum, Hoshiarpur (in short "the District Forum").
2. Facts in brief are that the appellant filed a complaint under section 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the respondents/opposite parties (hereinafter called as "the respondents"), asserting that it is running a general store at Bassi Khawaju, Hoshiarpur. The appellant got insured his general store vide policy no.401/800/48/07/9800000719. This is a three storeyed general store and the appellant is running the business for the last 30 years and is selling all types of cosmetic, under garments, gifts, toys, artificial jewellery, crockery, leather goods and other items covered under general store and the amount insured was Rs.25.00 lacs.
3. On 01.02.2008, the insured shop was totally damaged due to fire and the news was published in the newspaper dated 02.02.2008. The appellant intimated the respondents and submitted the documents. The appellant received a letter dated 25.02.2008 from Sh. N. Kumar, Surveyor Pvt. Ltd. who sought information which the appellant sent vide letter dated 01.03.2008 along with all documents required by the surveyor and a telephonic message was received from the surveyor that the loss has been assessed to the tune of Rs.5.00 lacs, whereas the total loss was Rs.27.38 lacs.
4. The appellant sent a representation dated 24.03.2008 that the total loss was about Rs.27.38 lacs, whereas the surveyor assessed the loss to the tune of Rs.5.00 lacs only and requested to reconsider the same and to take the second opinion. A representation dated 05.04.2008 was also sent and ultimately, the appellant received a letter dated 18.04.2008 along with a cheque of Rs.6,10,924/- as full and final payment, but it was against the total loss of Rs.27.38 lacs. Since the First Appeal No.293 of 2009 3 insurance was of Rs.25.00 lacs, the appellant is entitled to the remaining amount of Rs.18,89,807/-. The insurance of the general store was for an amount of Rs.25.00 lacs which was done after due inspection of the shop by the officers of the respondents and after satisfaction that there is stock worth Rs.25.00 lacs and the shop was insured. The appellant approached the appellants to settle the claim, but no heed was paid and the appellant suffered mental tension and harassment and is entitled to compensation.
5. It was prayed that the respondents may be directed to pay the remaining insured amount along with interest and Rs.50,000/- as compensation.
6. In the written version filed on behalf of the respondents, preliminary objections were taken that the case involves voluminous evidence in the form of documents regarding sales tax/VAT returns and the civil court is competent. A sum of Rs.6,10,924/- was assessed and the claim was settled and the appellant signed the discharge form, by accepting the same as full and final settlement voluntarily and the complaint is not maintainable. The appellant is estoped by his act and conduct to file the complaint.
7. On merits, it was admitted that the policy was issued in good faith as per the representation made by the appellant. The surveyor of the respondent insurance company called upon the appellant to produce the documents, like insurance policies for the last year, sales tax and VAT returns from 01.04.2006 to 31.12.2007 and the account as on date of fire, trading account for the previous two years, copy of purchase bill and items lost/burnt in fire for the last one years, books of accounts and other purchase bills etc. from 01.04.2006 till the date of loss. The appellant submitted only the statement of Sham First Appeal No.293 of 2009 4 Narula, photocopy of DDR, certificate of Fire Brigade, Layout Plan, photocopy of newspaper, estimate of loss of stock and FFF, balance sheet, income tax return. The appellant did not supply the documents as demanded by the surveyor. The surveyor sent letters dated 07.02.2008, 25.02.2008, but the appellant failed to provide the documents. The amount was accepted by the appellant without any objection and the cheque was issued on 26.08.2007 in his favour which he duly received and acknowledged the same and now the complaint is not maintainable. All other allegations were denied and it was prayed that the complaint may be dismissed with costs.
8. Parties led evidence in support of their respective contentions by way of affidavits and documents.
9. After going through the documents and material placed on file and after hearing the learned counsel for the parties, the learned District Forum observed that the appellant has received the amount of Rs.6,10,924/- in full and final settlement of the claim and executed discharge voucher Ex.OP-9 and there is no allegation of fraud, undue influence or mis-representation and now he cannot maintain the complaint, and the complaint was dismissed.
10. Aggrieved by the impugned order dated 02.02.2009, the appellant has come up in appeal.
11. We have gone through the pleadings of the parties, perused the record of the learned District Forum and have heard the arguments advanced by the learned counsel for the parties.
12. The appeal was filed on the ground that the appellant submitted all the documents Ex.C-2 to Ex.C-13 and it is proved that the stock worth Rs.24,88,594-20p was available on the date of fire. The calculation is as follows:-
First Appeal No.293 of 2009 5
Stock Value of Stock
12% Taxable items Rs.10,83,398-30p
4% Taxable items Rs.12,26,790-72p
Tax Free Items Rs.1,78,405-18p
Total Stock Rs.24,88,594-20p
The documents were duly submitted on 01.03.2008 vide Ex.C-13, but still the claim to the tune of Rs.6,10,924/- only was allowed. Under the compelling circumstances, the appellant accepted the amount and wrote letters dated 24.03.2008 and 05.04.2008 for making payment of the actual loss. The complaint was immediately filed after the receipt of the cheque. The District Forum has not considered all these facts and the order passed by the District Forum is not sustainable. The surveyor has wrongly declined full claim. The purchases on the higher side were according the demand and the report is liable to be set aside. The surveyor accepted the same for the period from 01.04.2007 to 31.01.2008 for Rs.13,98,545/- and there was no reason to disbelieve the trading account submitted by the appellant pertaining to the purchase of stocks and the claim was allowed of a meager amount and the impugned order is liable to be set aside.
13. On the other hand, learned counsel for the respondents has contended that the report of the surveyor is based on cogent reasons and the appellant could not produce the documents, to support the stock statements. The surveyor accurately came to the conclusion and the cheque Ex.OP-9 was duly issued in payment of the full and final settlement of the fire claim and the same was duly received on 22.04.2008 and the receipt is Ex.OP-10. No objection was raised and First Appeal No.293 of 2009 6 the impugned order is legal and valid and the appeal deserves dismissal.
14. We have considered the respective version/submissions of the parties and have minutely scrutinized the entire record.
15. The District Forum has only relied upon the document Ex.OP-9 as per which the cheque for the amount of Rs.6,10,924/- was issued as full and final settlement of the fire claim. This document Ex.OP-9 is dated 18.04.2008 and the same was received by the appellant on 22.04.2008 vide Ex.OP-10. This cheque was sent to the appellant vide letter Ex.OP-11 dated 12th June, 2008 on the basis of the survey report. No prior consent of the appellant was obtained regarding the full and final settlement of the claim and he filed the complaint immediately on 24.07.2008. Before that, the appellant has written letters dated 24.03.2008 and 05.04.2008 for re-considering the matter, as the loss was much more than that. The letter is Mark C-14 on the file.
16. Hon'ble Supreme Court in case "National Insurance Company Limited Vs Setia Shoes" 2008 (3) Civil Court Cases-207 (SC), held that the complaint is maintainable and mere receipt of the amount without any protest does not always debar the claimant from filing the complaint. In the above case, the matter was remitted by the Hon'ble Supreme Court. Hon'ble Supreme Court in Para-8 (relevant portion) observed as follows:-
"There is no dispute that the discharge voucher had been signed by the respondent. There has to be adjudication as to whether the discharge voucher was signed voluntarily or under coercion. We remit the matter to the District Forum for fresh consideration." First Appeal No.293 of 2009 7
17. In view of above proposition of law laid down by the Hon'ble Supreme Court, it has to be seen whether the discharge voucher was issued and was accepted under coercion. In the present case, there was no discharge voucher, but it was only the letter Ex.OP11 written by the respondent insurance company and in the letter, it was mentioned as follows:-
"We are pleased to inform you that Competent Authority has approved your claim under above said policy. Please find enclosed a cheque No.817157 dated 12.06.2008 amounting to Rs.6,10,193/- (Rs.6,10,924/- less Rs.731/- as re- instatement value{premium}) of your policy for the remaining period.
Please acknowledge its receipt.
Thanking you."
18. In the letter Ex.OP-11, it is nowhere mentioned that the competent authority has approved the claim as full and final settlement and receipt Ex.OP-9 is not a discharge voucher, but it only finds mention of full and final settlement of fire claim. As stated above, the appellant has been raising protest, writing letters that his loss is more than Rs.27.00 lacs, whereas a meager amount has been assessed and he filed the complaint immediately. That amounts to protest.
19. The surveyor was of the respondents and he has discussed all the documents and under the head 'Verification of Record/Evaluation', he calculated the stock as per the available data and concluded that from 01.04.2007 31.01.2008, the sales were Rs.13,98,545/- and the purchase was forRs.8,60,278/- and Rs.22,22,944/-. The surveyor has observed that there is no purchase- sale ratio and the purchase-sale ratio has increased more than double and on that, he raised eyebrow, but that was not the duty of the surveyor. The surveyor was to see as to what was the stock available First Appeal No.293 of 2009 8 and give the report accordingly. There have been withdrawals and deposits which prove the business transactions.
20. The surveyor, referring the above data, observed that there is no justification in the purchase-sale ratio of the insured and the purchase-sale ratio has increased from 0.72 to almost more than double in 2006 and remained the same till 31.01.2008.
21. Thus, from the above observation, it is clear that the purchase-sale ratio of the insured was double than the earlier from 2006 onwards and it remained the same till 31.01.2008. It cannot be said that the purchase-sale suddenly increased just before the incident of fire because it has remained the same constantly for the last two years before the fire took place. The surveyor has worked the actual loss on hypothetical terms and of its own casted the trading accounts, reducing the figures of opening stock, freight, purchases etc. Even as per the surveyor, from 01.04.2007 to 31.01.2008, the total stock of sale and purchase was of Rs.20,00,612/-. After making various deductions, the salvage, excess clause etc., the recommendation was only Rs.6,10,924/- and accordingly, this amount was sent as full and final settlement by the respondent insurance company, but as discussed above, this cannot be taken to be as full and final settlement. The appellant has taken the insurance cover for a sum of Rs.25.00 lacs and as per the survey report, the stock available from 01.04.2007 to 31.01.2008 was of the value of Rs.20,00,612/-. In our opinion, a lumpsum compensation of Rs.15.00 lacs, after taking into consideration the various deductions, salvage etc., is payable by the respondent insurance company to the appellant. The amount of Rs.6,10,924/-, if has been received by the appellant, then the same shall be deducted. First Appeal No.293 of 2009 9
22. In view of above discussion, the order passed by the District Forum is against the facts and evidence and the law laid down and is not sustainable in the eyes of law.
23. Accordingly, the appeal is accepted and the impugned order under appeal dated 02.02.2009 passed by the District Forum is set aside. Consequently, the complaint filed by the appellant/ complainant is allowed and the appellant is held entitled to the compensation of Rs.15.00 lacs (Rupees Fifteen Lacs) in lumpsum from the respondents and in case, the appellant has received and encashed the amount of Rs.6,10,924/-, the same shall be deducted from this amount and the remaining amount should be paid by the respondents. The respondents shall also pay Rs.10,000/- as litigation expenses to the appellant.
24. The entire amount shall be paid by the respondents to the appellant/complainant within 45 days after the receipt of copy of the order, failing which the entire amount shall earn interest @ 7.5% per annum from the date of filing of the complaint till realization.
25. The arguments in this appeal were heard on 08.10.2013 and the order was reserved. Now the order be communicated to the parties.
26. The appeal could not be decided within the stipulated timeframe due to heavy pendency of court cases.
(Inderjit Kaushik) Presiding Judicial Member (Vinod Kumar Gupta) Member October 22, 2013.
(Gurmeet S)