National Consumer Disputes Redressal
Subhash Malhotra vs United India Insurance Co. Ltd. on 26 May, 2014
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION No. 533 of 2008 (from the order dated 04.10.2007 in First Appeal no. 3160 of 2001 of the Haryana State Consumer Disputes Redressal Commission, Panchkula) Subhash Malhotra Son of Shri Puran Chand Malhotra Proprietor/ Manager of Firm M/s Malhotra Trading Company, Jind Road, Hansi District, Hisar Petitioner Presently resident of Kamla Nagar Hisar Vs Divisional Managar United India Insurance Company Ltd., Sirsa Road Hisar Regional Manager Respondents United India Insurance Company Ltd., Sector 8 C Chandigarh BEFORE: HON'BLE MR. JUSTICE V. B. GUPTA PRESIDING MEMBER HON'BLE MRS. REKHA GUPTA MEMBER For the Petitioner IN PERSON For the Respondent Mr A K De, Advocate Pronounced on 26th May 2014 ORDER
REKHA GUPTA Revision petition no. 533 of 2008 has been filed under section 21 (B) of the Consumer Protection Act, 1986 against the order dated 04.10.2007 passed by the Haryana State Consumer Disputes Redressal Commission, Panchkula (the State Commission) in First Appeal no. 3160 of 2001.
2. The facts of the case as per the petitioner/ complainant are that the petitioners firm deals in footwear business since 1996 and mostly deals in Liberty footwear and others standard quality footwear like action, Lakhani etc., mainly retail and also in wholesale to some petty shop-keepers.
3. Petitioner had also got insured his shop, stocks, furniture, sign board etc., with United India Insurance Co. Ltd., Hisar, i.e., with Respondent no. 1 a branch of respondent no. 2, which got renewed on 04.09.1998 vide cover note no. 986094 for duration of 06.09.1998 to 05.09.1999 for Rs.6.08 lakh after paying a premium of Rs.3129/- insured against fire, theft, burglary and other such like calamities.
4. On 01.02.1999 a fire broke out at about 08.00 p m in the shop of the petitioner and the petitioner was informed by someone at his home upon which he informed the fire station about the fire and rushed to the shop immediately and fire brigade also approached there at the spot within few minutes the locks of shutters of the shop were opened by the petitioner. On opening the locks and shutter it was found that all the shelves, stocks, furniture were burning and the fire was controlled by the staff of fire brigade after a long struggle and after throwing a lot of water. But till that time all the foot wears about 1600 pairs, electric fittings, furniture, glow sign board etc., were completely damaged thereby causing a loss of about Rs.6.00 lakh. All the accounts of sale purchase kept in the counter in the shop were also burnt.
5. The petitioner narrated the entire story of the incident through a letter dated 02.02.1999 to respondent no. 1. On 02.02.1999 Branch Manager, State Bank of Patiala also requested respondent no. 1 through a letter to compensate the complainant keeping in view the interest of the Bank and the Branch Manager repeated his request on 22.03.1999 also.
6. The petitioner also informed about the incident of the fire to P S City Hansi and a DD Report was made by PS City Hansi on 04.02.1999.
7. Respondent no. 1 appointed Shri P D Aggarwal Associates representative Shri Keshav Aggarwal for survey about the loss caused by fire, who was supplied all the details of accounts etc., by the petitioner. The list of total claims (Stocks) was also got physically verified from Shri Keshav Aggarwal illegally, arbitrarily and discriminately made many wrong, unjustified deductions and assessed the loss/ claim about of Rs.3,43,900/- which was strongly objected to by the petitioner on the following grounds:
(a) Even after physically verifying the stock which was burnt as of Rs.4,60,134.29 he assessed the stock as of Rs.3,85,254/-
illegally and discriminately which was strongly objected to by the petitioner.
(b) Shri Keshav Aggarwal assessed the cost of salvage as Rs.67,284/- which was very excessive. The petitioner strongly objected to it and asked him to sell the salvage himself and to pay the petitioner the proceed amount but he threatened the petitioner that if the petitioner wants quick disposal of his claim he must accept it as such otherwise he will have to face the hassles of court and he will bear a lot of expenses. The petitioner received only Rs.7,880/- out of this salvage as the goods were deteriorated to a great extent. Some of the samples out of this salvage have been kept by the petitioner to produce them as and when required.
(c) Shri Keshav Aggarwal further made deduction of 10% on account of dead stock, which was highly unjustified as the petitioner has opened this showroom recently and he had no dead stock. More over the petitioner used to return the defective goods as and when the goods were being supplied to him for sale. So there was no dead stock but under the threat of legal hassles given by Shri Keshav Aggarwal this deduction was also made illegally by the surveyor.
(d) Shri Keshav Aggarwal also deducted illegally the amount of loss of furniture and fixtures and assessed it as Rs.49,800/- whereas the quotations which were supplied by the petitioner were of Rs.93,650/- and later on when petitioner contacted the carpenter and electrician they told that the repair work will cost him Rs.1.20 lakh to bring the furniture and fixtures in its original position. This deduction was also strongly objected to be petitioner.
(e) Shri Keshav Aggarwal also made a deduction of 10% in calculating the loss of glow sign board which was strongly objected to by the petitioner as the cost of glow sign board has increased by 10% then. That while giving account statement and balance sheet for the years 1996-97, 1997-98, 1998-99 to Shri Keshav Aggarwal the petitioner also informed him that the reasons of less sale during the year 1998-99 is that the mother of the petitioner was ill and was bed ridden during this year and who subsequently expired on 28.12.1998, due to which the shop of the petitioner remained closed for many days in different intervals and the business of the petitioner suffered badly, the petitioner being the only son of his mother there was no other to look after her.
8. On 28.04.1999 State Bank of Patiala also supplied the detailed documents to the surveyor, as demanded by him which includes copy of monthly stock statements, copy of trading account, balance sheets, copy of applications, submitted by the petitioner at the time of advance. Even all these documents can prove beyond doubt the actual loss suffered by the petitioner, which were not considered by the surveyor while calculating the loss as these were the genuine documents and were supplied to the respondents by an independent agency, i.e., State Bank of Patiala and so these documents were most reliable and trustworthy.
9. Shri Keshav Aggarwal assured the petitioner of quick payment within 15 days but when it was not made for many days then on 18.05.1999 the petitioner requested the respondents through a letter written through Branch Manager, State Bank of Patiala, Hansi for quick payment as petitioners business was closed due to financial crunch and bank and private money lenders were pressing hard upon the petitioner for the payment and the interest of the amount advanced by them as loan was mounting day by day causing multiple loss to the petitioner. But the respondents did not respond adding further to the mental agony of the respondent.
10. One day Mr Rajan Sharda telephonically informed the petitioner that he had been authorised by Regional Office Chandigarh to enquire about the fire and asked the petitioner to come to his shop, upon which the petitioner along with his friend Krishan immediately reached his shop where Mr Rajan Sharda took some photographs of the samples saved from the salvage. Mr Rajan Sharda asked the petitioner that the assessment of loss has been made on higher side and the petitioner will have to share and saying this he handed over his visiting card to the petitioner and went away from there in his car. The petitioner could not understand his meaning which was obviously an invitation to offer him some illegal gratification to get the actual loss amount.
11. On 24.06.1999 Branch Manager, State Bank of Patiala wrote a letter to the respondent no. 1 for quick payment. On 05.08.1999 he again wrote a letter to the petitioner for regularising his account by depositing the amount, which was informed by the petitioner to respondent no.1, but of no avail as nothing was done by the respondents with malafide intention to cause loss to the petitioner.
12. In spite of all these efforts no response was given by the respondents, the petitioner got issued a legal notice dated 22.09.1999 through his counsel Mr Ashwani Sardana, Advocate Hansi on 23.09.1999 requesting therein that the petitioner has given details of loss of Rs.5,71,150.29 (wrongly typed as Rs.5,91,150.29 which be read as Rs.5,71,150.29) and the surveyor has assessed the loss much less and requested the respondents to pay the amount of actual loss immediately but the respondents did not respond to this notice also.
13. On 12.10.1999 the petitioner again received a letter from the State Bank of Patiala to regularise his account by paying the amount. On 14.10.1999 the respondent no. 1 sent a disbursement voucher of Rs.1,91,162/- which was received by the petitioner on 16.10.1999 and the petitioner was shocked upon receiving this and he wrote a protest letter on 20.10.1999 to respondent no. 1 but he was forced to sign the disbursement voucher involuntarily under compelling circumstances. The respondents instead of considering the protest of the petitioner and without giving him any opportunity of hearing sent a cheque of Rs.1,91,162/- bearing number 765095 dated 03.11.1999, which was received by petitioner on 05.11.1999 under protest, involuntarily under compelling circumstances and the protest was brought to respondents knowledge by petitioner by telegram dated 05.11.1999.
14. During this period the petitioner requested the respondents several times to compensate him by giving him actual loss amount as he had no money to do any business and his business was closed since February 1999 and he had to pay the loan taken from bank and private money lenders and interest thereupon was also mounting day by day and the petitioner had been suffering a loss of Rs.10,000/- per month on account of loss of income and suffering a further loss on account of interest on loan account, which the respondents were legally bound to pay to the petitioner as the respondents had failed to provide the required services which respondents were bound to provide to the petitioner and thus respondents have committed a grave deficiency in services. Further, due to all these factors, i.e., non-payment of loan, closer of business, the petitioners reputation has been lowered down considerably in the eyes of society and general public for which the petitioner reserves his rights to proceed against the respondents for defamation and damages in a competent court of law as and when the occasion arises.
15. The respondents have got signature of the petitioner on claim disbursement voucher by fraud, misrepresentation, undue influence and due to coercive, bargaining compelled by circumstances and the petitioners full claim remained unsatisfied and an amount of Rs.3,72,118.29 remained due towards the respondents balance along with damages of Rs.10,000/- per month on account of loss of income from the date of fire till the date of realisation, along with damages to the tune of Rs.50,000/- on account of mental agony harassment and suffering given by the respondents to the petitioner along with interest, which the respondents are legally bound to pay to the petitioner.
16. The petitioner got issued a legal notice dated 13.11.1999 by Registered AD to the respondents through his counsel Mr Praveen Mittal, Advocate, Hansi on 13.11.1999 requesting therein that balance claim of Rs.3,72,118.29 along with damages of Rs.10,000/- per month on account of loss of income from the date of fire till the date of realisation, along with damages to the tune of Rs.50,000/- on account of mental agony, pain and suffering given by the respondents to the petitioner along with interest be paid to the petitioners within 15 days of receipt of the notice, which notice was duly received by the respondents, but they neither replied to the notice nor paid a single paisa till today and adverse inference be drawn against them that by not replying to the notice they have admitted its contents. Hence, the respondents have committed a grave deficiency in services which they were bound to provide to the petitioner, hence, this complaint.
17. In their written statement the respondents admitted that there had been a fire on 01.02.1999 and that the petitioner had an insurance policy (cover note) no. 986094 and the policy was shop-keeper policy and was valid for the period from 06.09.1998 to 05.09.1999. This policy covers the furniture and stocks in trade consisting of all kinds of shoes, chappals and boots. Policy was subject to terms and conditions as contained therein.
18. Contents of complaint were admitted to the extent that respondent no. 1 appointed Shri P D Aggarwal Associates representatives Mr Keshav Aggarwal for survey about the loss caused by fire.
Rest of the contents of this paragraph were wrong and hence denied. It was denied that Mr Keshav Aggarwal, illegally, arbitrarily and discriminately made many wrong, unjustified deductions and assessed the loss/ claim amounting to Rs.3,43,900/- as alleged. The surveyor Mr Keshav Aggarwal assessed the loss and then the matter was referred to the Regional Office since, it was within the purview of the Regional Office. Regional Office appointed Mr Rajan Sharda surveyor and Loss Assessor and he examined/assessed the loss as follows:
Value of stocks at the time of incident Rs.2,15,564/-
Loss :
Salvage value as recommended by final surveyor Rs. 67,284/-
Less :
10% on account of dead stock Rs.1,48,280/-
Loss assessed Rs.1,33,462/-
Loss of stocks Rs.1,33,462/-
Loss of furniture Rs. 49,800/-
Loss of glow signs Rs. 7,150/-
Fire Brigade Cheques Rs.
750/-
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Total Rs.1,91,162/-
(a)The loss was rightly assessed by Mr Rajan Sharda.
It was wrong to say that even after physically verifying the stocks which was burnt were of Rs.4,60,134.29 as alleged.
(b)The contents of sub-paragraph (b) of the complaint are wrong and hence denied. Shri Keshav Aggarwal has rightly assessed the cost of salvage Rs.
67,284/-.
(e) It was denied that a deduction of 10% in calculating the loss of glow sign board was unjustified as the cost of glow sign board had increased by 10% then.
19. Mr Rajan Sharda was appointed by the Regional Office and he went to the spot and assessed the loss to the tune of Rs.1,91,162/-. He had rightly assessed the loss. It was denied that the petitioner could not understand its meaning which was obviously and invitation to offer him some illegal gratification to get the actual loss amount.
20. The voucher was sent to the petitioner through registered post which he signed and sent back to the respondent. After that a cheque of Rs.1,91,162/- was sent to the petitioner which he encashed and received the same. There was no pressure upon the petitioner. The petitioner voluntarily signed the voucher and got encashed the cheque after accepting the same..
21. It was denied that the respondent got the signature of the petitioner on claim disbursement voucher by fraud, misrepresentation, undue influence and due to coercive, bargaining compelled circumstances and the petitioners full claim remained unsatisfied and an amount of Rs.3,72,118.29 remained due towards the respondents balance along with damages of Rs.10,000/- per month on account of loss of income from the date of fire till the date of realization, along with damage to the tune of Rs.50,000/- on account of mental agony, harassment and suffering given by the respondents to the petitioner along with interest which the respondents are legally bound to pay to the petitioner. The payment has been received by the petitioner voluntarily and there was no pressure of any type.
22. District Consumer Disputes Redressal Forum, Hisar, (the District Forum) vide its order dated 17.07.2001 allowed the complaint. In its order the District Forum has observed as under:
the deduction made by Keshav Aggarwal on account of dead stock seems to be illegal and wrong because as shown by the counsel for the complainant Shri G L Balara that the complainant has been returning back the out fashioned defective footwear back to the wholesaler whose entries are there in the bills produced by the complainant. Moreover, even if there has to be any deduction on this account it should not be more than 2%. So deduction on account of dead stock is hereby reduced from 10% to 2%. Next as argued by the learned counsel for the complainant that the amount of compensation has been delayed by the respondents as they must be awarded with interest from the date of fire, i.e., from 01.02.1999 onwards. We find that one month time must be given to the respondents to complete all the formalities regarding the payment of compensation amount. So, we hereby allowed the interest from 01.03.1999 to 16.10.1999 on the complete amount, i.e., on Rs.3,43,900/- as per the report of Keshav Aggarwal plus Rs.25,467.16 paisa increase on account of deduction of dead stock i.e., Rs.3,69,367.16 paisa at the rate of 12% per annum and the interest of 12% per annum is allowed on the balance amount from 16.10.1999 till the date of realization. Further as argued by the learned counsel for the complainant the complainant has been harassed and has suffered severe mental agony, paid as his business has been spoiled due to non-availability of the funds and the complainant has further suffered a great loss due to lowering down of his reputation in the minds of creditors and we award Rs.20,000/- as damages on all these accounts, which must be paid within one month of the pronouncement of this order failing which an interest of 12% per annum will have to be paid on this amount of Rs.20,000/- also from the date of decision till the date of realization.
Hence, in the light of arguments, discussion and findings mentioned above, we order the respondents to pay to the complainant the total compensation amount of Rs.1,70,205.16 paisa (after deduction Rs.1,91,162/- already paid) along with interest at the rate of 12% per annum from 16.10.1999 till the date of realization along with interest on the total compensation amount of Rs.3,69,367.16 paisa at the rate of 12% per annum from 01.03.1999 to 16.10.1999 along with Rs.20,000/- as damages on account of business loss, mental agony, pain, sufferings, loss of reputation etc., which amount will also carry interest at the rate of 12% per annum from the date of decision till the date of realization if not paid within one month of the decision.
23. Dissatisfied by the order of the District Forum the petitioner filed an appeal before the State Commission. The State Commission while dismissing the appeal for enhancement held as under:
The above report clearly indicates that the surveyor and loss assessor had taken into account in detail the items of loss occurred on the basis of date furnished from the side of the complainant and after complete discussions with the complainant. During the course of trial the complainant could not furnish any other additional evidence which could justify the rejection of the report of the Loss Assessor. The District Forum in its order dated 17.07.2001 has already reduced the deduction from 10% to 2% in respect of valuation of the dead stock assessed by the Surveyor and Loss Assessor. The District Forum has already allowed the interest on the above amount from 01.03.1999 to 16.10.1999 plus Rs.25,467.16 as increase on account of deduction of dead stock @ 10% and interest has been further allowed on the balance amount from 16.10.1999 till the date of realization. Under the circumstances of the case, the appellant/ complainant has failed to make out any case for further increase in the compensation amount as claimed in the memorandum of appeal.
For the aforesaid reasons, there is no merit in the appeal and the same is accordingly dismissed.
24. Hence, the present revision petition has been filed by the petitioner/ complainant.
25. The main grounds for the revision petition are that:
The District Forum and State Commission also wrongly held the value of stock same as held by Shri Keshav Aggarwal first surveyor. The stock should have to be verified from the stock statement duly attested by the Bank, i.e., State Bank of Patiala Branch Hansi where the revisionists was having CC limit of Rs.2 lakh and just two days before the mishap/ incident the revisionists submitted the stock statement in the bank which were duly supplied to the insurance company/ surveyor and were the best authentic proof about the stock in the shop of complainant. The surveyor in his report even relied upon the stock statement and same were also relied by District Forum but the surveyor with malafide intention deliberately enhanced the sale figures in place of Rs.4,58,603/- to Rs.5,37,762/-, i.e., he illegally and without any basis deducted Rs.79,159/- which was ignored by State Commission and District Forum which has resulted into miscarriage of justice.
If otherwise believed on the report of Shri Keshav Aggarwal then he also wrongly assessed the loss and over looked the entire documentary evidence produced by the revisionists which were clinching proof to establish the claim of the revisionists and he himself physically verified the stock but just to favour the company he filed a false report which was brought to the notice of the insurance company but the learned District Forum and State Commission ignored this fact which resulted into failure of justice.
The State Commission and District Forum have totally overlooked and ignored the fact that even as per the report of surveyor the following amount is due on the respondent being admission by the surveyor, i.e., Balance value of stock (after paying Rs.3,01,667/-) Rs.1,58,467.29 paisa, balance value of furniture, fixtures and electric fitting (after paying Rs.49,500/-) Rs.52,410/- totally amounting to Rs.2,10,877.29 paisa.
26. We have heard the petitioner in person and also the learned counsel for the respondent and have gone through the records of the case carefully. It is an admitted fact that the petitioner has received the cheque for Rs.1,91,162/- vide voucher dated 14.10.1999 and the same has been encashed. Learned counsel for the respondent also stated that they have since then paid further amount of Rs.1,78,205.16 along with interest @ 12% per annum from 16.10.1999 till date of realisation. Further interest of 12% on the total compensation amount of Rs.3,69,367.16 has also been paid from 01.03.1999 to 16.10.1999 along with Rs.20,000/- damages. Petitioner who was present in person also admitted to have received the same.
27. Though he has alleged that the discharge voucher was signed under undue influence and coercive bargaining, but he has not filed any evidence to support the same. Discharge voucher was sent to him by Registered Post and he signed the same and sent it back. He has also encashed the cheque of Rs.1,91,162/- sent to him. Thereafter the District Forum granted further relief of Rs.1,98,205.16 (after deducting Rs.1,91,162/- already paid) from the total awarded amount of Rs.3,69,367.97. He has also been awarded interest due on the full amount at 12%. Admittedly, the insurance company has also paid the same and which has been received by the petitioner. The orders of the both the Fora below are very well-reasoned and have dealt with the report of the surveyor in detail. The petitioner has failed to make out any case for further increase in the compensation amount.
28. Hence, we find that there is no jurisdictional error, illegality or infirmity in the order passed by the State Commission warranting our interference. The revision petition is accordingly, dismissed with no order as to cost.
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[ V B Gupta, J.] Sd/-
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[Rekha Gupta] Satish