National Consumer Disputes Redressal
M/S Kum Kum Silk And Sarees vs Branch Manager, United India Insurance ... on 21 May, 2013
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
REVISION PETITION NO. 4416 OF 2012
(From the order dated 24.07.2012 in F.A.
No. 300 of 2011 of the Andhra Pradesh
State Consumer Disputes Redressal Commission, Hyderabad)
M/s Kum Kum Silk and Sarees
Rep. by its proprietor, O. Manohar Singh
S/o Oto Singh,
10/464, Opp. Raghuveera Towers
Subhash Road, Ananthapur Town ...Petitioner
Vs
Branch
Manager
United
India Insurance Company Ltd.
D.
No. 15/130, Subhash Road,
Ananthapur
Town . ...Respondent
BEFORE :
HONBLE
MR.JUSTICE J.M.MALIK, PRESIDING MEMBER
HONBLE
DR.S.M.KANTIKAR, MEMBER
For the Petitioner : Mr.
Sagar Saxena, Advocate
For the Respondent : Mr. Abhishek Kumar, Advocate
Mr. Naveen
Pandey, Advocate
Pronounced on 21st
May, 2013
ORDER
PER DR. S.M. KANTIKAR This revision petition has been filed by the original complainant against the impugned order dated 24/07/2012 was passed by A.P.State Consumer Disputes Redressal Commission,Hyderabad ( in short the State Commission) in FA No 300/2011 and FA No. 366/2011 both in Consumer Complaint 104/2010.
1. Briefly stated the facts of the case are the Petitioner/Complainant is a proprietary firm doing business in selling sarees and dress material on retail basis in Ananthapur. The complainant-firm insured its stock with the opposite party-insurance company under Standard Fire and Special Perils Policy bearing number 051004/11/08/11/00001686 covering for the period from 13.01.2009 to 12.01.2010. On 5.05.2009 at about 10.30 P.M. the complainant-firm premise set on fire due to short circuit resulting in damage to the stock and furniture of the complainant-firm. On receiving intimation the Fire Department arrived at the spot and extinguished the fire. The Fire and Emergency department ,Anantpur issued certificate to that effect and estimated loss of Rs.25 lacs. The complainant-firm lodged complaint on 6/5/2009 with the Police registered as Crime no.146/2009 and for Claim with the opposite party-insurance company. The opposite party deputed surveyor to assess the loss sustained by the complainant-firm. The surveyor assessed the loss to the tune of Rs.5,71,095/-.
2. The complainant contends that the surveyor demanded for certain amount which the complainant refused to pay and the complainant-firm got estimated the loss of the property by an engineer who assessed the loss to the wooden furniture at Rs.3,94,860/- and in addition to the amount, the complainant-firm sustained loss to the tune of Rs.20 lakh, a total amount of Rs.23,94,860/-. The complainant-firm restricted its claim to Rs.20 lakh and got issued notice to the opposite party on 19.06.2010.
3. The claim was resisted on behalf of the opposite party-insurance company on the basis that the complainant is not a consumer; the insurance policy was obtained for commercial purpose; the matter involves complicated questions of facts which cannot be determined without elaborate evidence which can be possible in civil court. The complainant firm had not submitted bank statement for the period from 01.04.2006 to 31.03.2007, 01.04.2007 to 31.03.2008, 01.04.2008 to 31.03.2009 and 01.04.2009 to 31.05.2009 and charge sheet etc in-spite of request made through letters dated 17.08.2009, 8.10.2009, 21.06.2010 and 29.06.2010.
4. It is contended that the surveyor assessed the loss at Rs. 5,71,895/- on all counts. The complainant filed some documents which were not submitted to the surveyor and fabricated for the purpose of filing the complainant. As per Section 64(2) UM of the Insurance Act the opposite party has right to settle claim for an amount different from that assessed by the surveyor. The complainant did not inform the opposite party at any time about the demand made by the surveyor. There was no deficiency in service on the part of the opposite party.
5. The proprietor of the complainant firm has filed his affidavit and the documents Exs. A1 to A10. On behalf of the opposite party, the Assistant Manager has filed his Affidavit and the documents Exs. B1 to B12.
6. The District Forum allowed the complainant on the basis of , that the surveyor omitted to take into consideration of the value of the stock mentioned in the annexures No.1 to XI of his report and the District Forum held the complainant entitled to the sum of Rs. 13,22,790/- towards the loss sustained by the complaint-firm in the fire accident that occurred on 05.05.2009. The District Forum awarded interest @ 9 % p.a. and costs of Rs. 5,000/-.
7. Aggrieved by the aforesaid order of the District Forum, the respondent preferred an appeal being F.A. No. 300 of 2011 challenging the order of the Ld. District Forum; and the petitioner preferred a cross appeal being F.A. No. 366 of 2011 of enhancement of the amount of compensation before the State Commission at Hyderabad.
8. The opposite party-insurance company contended that the District Forum awarded amount of Rs.13,22,790/- with interest contrary to the assessment made by the surveyor and in contravention of settled principles of law. The State Commission heard counsel of the both parties and on the basis of evidence on file and the Surveyors decided the point that whether the order of the District Forum is vitiated by mis-appreciation of facts or law on record made observations on? The relevant pars of observations made by State Commission are reproduced as follows:
12. Many of the facts of the case are beyond dispute as to the issuance of insurance policy in respect of the stock and furniture of the complainant-firm, occurrence of accident, damage cause to the insured stocks and furniture and assessment of loss caused to the stocks and furniture and assessment of loss caused to the stocks and furniture by the surveyor. The District Forum awarded the amount of Rs. 13,22,790/- on the premise that the surveyor has not taken into consideration of the stocks purchased by the complainant-firm from Calcutta, Surat, Vijayawada, Bangalore and he did not mention the stocks are whether good or bad. The District Forum had drawn interference that the Surveyor has not mentioned in Annexure-IV, VI, VII and VIII were good stocks or damaged stocks and therefore it presumed that the stocks mentioned in the said annexure are only damaged stocks.
14. The District Forum under mistake came to the conclusion that the surveyor had not mentioned in the annexure IV as to whether the stocks are good or bad. The surveyor had considered all aspects and assessed the loss at Rs.
5,71,095/-. The surveyor had prepared his report on the basis of physical stock inventories, which were tallied with the purchase bills produced by the complainant. In the annexure IV, VI, VII and VIII has also filed, the surveyor had specifically mentioned the damage caused and assessed the loss in appropriate manner which at any time was not found fault with.
15. The Surveyors report and the assessment made therein cannot be ordinarily deviated from, except in the circumstances, where the insured would establish the arbitrary assessment made by the surveyor. In the instant case we do not find any infirmity or arbitrariness in the assessment of the surveyor. The District forum had taken an erroneous view that the surveyor had not mentioned that whether the stocks mentioned in the annexures were whether in good or bad condition.
17. The surveyor, in our opinion had taken into consideration all parameters while assessing the loss and he came to the conclusion only on being satisfied with the entries in the purchase bills and those available at the time of preparing the physical stock inventory. The District Forum has misdirected itself from deviating from the assessment of the loss as was made by the surveyor and as such the order of the District Forum awarding the amount more than what was assessed by the surveyor is liable to be modified.
9. The State Commission disposed of both the above mentioned F.A. Nos. 300 and 366 of 2011 by its common order on 24/7/2012 which allowed the appeal F.A. No. 300 of 2011 and modified the order of the Ld. District Forum thereby reducing the amount of compensation from Rs. 13,22,790/- to Rs. 5,71,095/-. The State Commission dismissed the FA No.366/2011.
10. Aggrieved by the order of State Commission the petitioned preferred this revision petition before us.
11. The counsel of both parties vehemently argued the matter and reiterated the submissions made before the State Commission.
12. There was no dispute about the Petitioner insured his business with the respondent by a Standard Fire and Special Perils Policy for the effective period from 13.01.2009 to the midnight of 12.01.2010. Petitioner suffered loss due to fire of his shop on 5/5/2009 and subsequently registered before the concerned Police Station vide Cr. No. 146/2009 and intimated the respondent to settle the claim.
13. Petitioner submitted that, the respondent deputed a surveyor to access the loss due to fire. The petitioner handed over the requisite original files to surveyor to facilitate the surveyor for preparing survey report the petitioner. But, the Fire Survey Report dated 28.01.2010 prepared by the surveyor with mala-fide intentions. The report showed the net loss suffered by the petitioner as Rs.5,71,095/- which was prepared without taking consideration of all ( I to XI) Annexure while calculating the net loss due to fire.
14. But, the Respondent (OP) put more emphasis on Ex A10 documents as which are nothing but created for the purpose of claiming huge compensation towards damages and as such they said documents cannot be relied upon. Under insurance clause as per the terms and conditions of the Standard Fire and Special Perils Policy and as per Ex.B12 surveyors report, the net loss to the complainant in the said accident was @ Rs. 5,71,095/-. OP contended that the surveyors report has to be accepted for arriving net loss sustained by the complainant in the said accident and in support of his contentions he placed reliance on several reported decisions which held that Surveyors report as an important document; can not be brushed aside easily without valid justification: { Priya Gopal Stores Vs. National Insurance Co. Ltd. 1 (2009) CPJ 22 (NC); Pentagaon Steel Pvt. Ltd., Vs. New India Assurance Company Ltd. & ors III (2010) CPJ 339 (NC);Ashu Textiles Vs. New India Assurance Company Ltd. & anr. III (2009) CPJ 272 (NC);Dabiruddin Cold Storage Vs. New India Assurance Company Ltd. & or I (2010) CPJ 141 (NC);New India Assurane Company Ltd., Vs. Rabindra Naryana. I (2010) CPJ 80 (NC)}.
17. The surveyor in his report ExB12 has shown the details of stocks verified by him as :
Annexure-I Physical Stock Inventor Good Sarees Category-I (Surat Fancy item).
Annexure-II Silk Combination (Good stock) Annexure-III Fancy Rolling Sarees Good Stock Annexure-IV Purchased from Calcutta , Surat and Vijayawada Work Saree Material(Fancy).
Annexure V-Loss purchased from weavers Gadwal Saree Annexure-VI Banaras stock Annexure VII Dress Material (Fancy) Surat Annexure-VIII Silk Sarees purchases from Dharamavaram/Bangalore Annexure-IV Dharamavaram Silk Sarees (Loss).
Annexure-X Partial Loss Damages and Full damages fire Annexure-XI Miscellaneous stock (Magutam silk).
18. The surveyor in his report has assessed the loss assessment which is extracted hereunder:
Loss assessment.
A. Loss on Stock of Sarees/Misc. Stocks
1. Physical Loss from Annexure IX Rs.
1,95,145-00
2. Physical Loss from Annexure-X Rs.
2,80,460-00
3. Physical Loss from Annexure-XI Rs. 23,300-00 Rs.
4,98,935-00
Less Salvage Value Rs. 98,800-00
Rs. 4,00,935-00
B. Loss
of FFF(Furniture,Fixures,Fittings)
1. Physical
Loss from Annexure FFF
Rs. 1,80,160-00
Less Policy Excess Rs. 10,000-00
Rs. 5,71,095-00
Net
Loss suffered by insured Rs. 5,71,095-00
19. On perusal of the above mentioned both paras 17 & 18 and the gross discrepancies are evident. In Para No 17 the Annexure-V mentioned as loss purchased from weavers Gadwal Saree. Therefore, the value mentioned in the said Annexure V of Rs.89775/- also has to be taken in to consideration to assess the loss sustained by the complainant in the said fire accident.
Similarly, we have noted on file that the surveyor has only taken total damage value of Rs. 3,49,860/- in respect of ward robes, cash counter and wooden ceiling but he has not calculated and not taken into consideration the damage costs of beds over the flooring which the surveyor himself stated as LS and the damage cost is mentioned at Rs. 45,000/- and he has not given any reason in Ex B12 for not considering the same. Accordingly, the complainant is also entitled for the said amount of Rs. 45,000- towards loss sustained.
Therefore, we are in opinion that there is an apparent mistake in surveyors report as calculated erroneously and incomplete one. The surveyor has excluded wrongly the damages under heading of Annexure V mentioned as loss purchased from weavers Gadwal Saree for Rs.89,775/-
and damage of cost of beds over flooring Rs.45,000/- apart from Rs.5,71,095/-
Such is the case, the complainant is entitled for Rs.5,71,095 + Rs.89,775 + Rs.45,000/- = 7,05,860/- in total. Hence, there is deficiency in service by the OP.
20. We have referred the authority B.N.Badini Vs Oriental Insurance Co Ltd; I 2012CPJ 272(NC). It is well settled in law that a Surveyors report has significant value unless it is proved otherwise which petitioner has to failed to do so in the instant case.
Therefore, we set aside the order of State Commission and pass the order that; the respondent is directed to pay Rs.7, 05,860/- to the complainant. The order should be complied within n45 days failing which it will carry interest @ 9% per annum till the recovery.
The parties shall bear their own costs.
...
(J. M. MALIK,J.) PRESIDING MEMBER ...
(S. M. KANTIKAR) Mss MEMBER
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 4416 OF 2012 (From the order dated 24.07.2012 in F.A. No. 300 of 2011 of the Andhra Pradesh State Consumer Disputes Redressal Commission, Hyderabad) M/s Kum Kum Silk and Sarees Rep. by its proprietor, O. Manohar Singh S/o Oto Singh, 10/464, Opp. Raghuveera Towers Subhash Road, Ananthapur Town ...Petitioner Vs Branch Manager United India Insurance Company Ltd.
D. No. 15/130, Subhash Road, Ananthapur Town . ...Respondent BEFORE :
Honble MR.JUSTICE J.M.MALIK, PRESIDING MEMBER HONBLE DR.S.M.KANTIKAR, MEMBER The enclosed order is sent herewith for your kind perusal. If approved, the same may be listed for pronouncement.
(Dr. S. M. KANTIKAR) MEMBER ...
(J. M. MALIK,J.) PRESIDING MEMBER