State Consumer Disputes Redressal Commission
1.Oriental Insurance Company Limited, ... vs 2. Oriental Insurance Company Limited, ... on 6 December, 2012
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, HARYANA, PANCHKULA First Appeal No.63 of 2008 Date of Institution: 08.01.2008 Date of Decision: 06.12.2012 1. Oriental Insurance Company Limited, A-25/27, Asaf Ali Road, New Delhi, through its Chairman/Managing Director/Manager. 2. Oriental Insurance Company Limited, 174, Circular Road, Bhiwani. (Both 1 and 2 through its authorised signatory, Chief Regional Manager, Oriental Insurance Company Limited, Regional Office, LIC Building, 2nd Floor, Jagadhri Road, Ambala Cantt.) Appellant (Ops No.1&2) Versus 1. M/s Shree Balaji Trading Company, Liberty Cinema Road, Bhiwani, Tehsil and District Bhiwani, through its Prop. Ajay Kumar son of Sh. Virender Kumar. Respondent (Complainant) 2. Punjab National Bank, Bhikhaji Cama Place, New Delhi, through its Chairman/Managing Director/Genl. Manager. 3. The Branch Manager, Punjab National Bank, Main Bazar, Loharu Road, Bhiwani, District Bhiwani. Respondents (OP-3) BEFORE: Honble Mr. Justice R.S. Madan, President. Mr. B.M. Bedi, Judicial Member. For the Parties: Shri Rohit Goswami, Advocate for appellants. Shri N.K. Jain, Advocate for respondent No.1-complainant. Respondents No.2 and 3 exparte. O R D E R
Justice R.S. Madan, President:
This appeal has been preferred against the order dated 07.11.2007 passed by District Consumer Forum, Bhiwani whereby complaint bearing No.248/2003 filed by complainant (respondent No.1 herein) against the appellant-opposite party was accepted and following direction was issued:-
..we direct the respondents to pay Rs.8,90,925/- along with interest @ 10% p.a. from the date of repudiation till its final realization. besides it the cost of the litigation is also allowed to the complainant which we quantify Rs.2000/-. The order be complied within two months from today, failing which the complainant is entitled to get interest @ 12% p.a. on the above said calculated amount from the date of default till its final realization. With these observations, the present complaint is hereby disposed of.
Complainant had been C/C limit from Punjab National Bank, Main Branch, Bhiwani (opposite party No.4, hereinafter referred to as Bank) since the year of 1997. Opposite Party No.4 Bank used to purchase Insurance Policy from the opposite parties No.1 and 2 every year on behalf of the complainant and the amount which the Bank used to pay on account of insurance premium, was to be debited to the account of complainant maintained with the Bank.
On the intervening night of 6/7-4-2002 at about 4.00 A.M. fire broke in the insured premises due to which the goods of the complainant were destroyed/burnt valuing Rs.8,90,925/-. Complainant informed the opposite party No.2. Bank official Bhiwani also informed in this regard. Insurance Company deputed Shri S.P. Goyal, Surveyor who visited the shop of the complainant on 7.4.2002. On being asked, the complainant furnished certain documents to the surveyor. But still the Insurance Company rejected complainants claim on 11.02.2003 on the ground that the complainant was not running its independent shop, rather, it was part and parcel of another shop which was run by Virender Kumar. It was further stated that the complainant was not having independent counter and another shop was being run by complainant and Virender Kumar just in record of Sales Tax two premises had been shown but in fact the business was being run in another shop and there was no separate counter for sale. Thus the conclusion arrived at by the Insurance Company was that the premises in which the fire had taken place, was godown of the shop which was being run by the complainant and Virender Kumar jointly. Challenging the repudiation of its claim, the complainant invoked the jurisdiction of the District Forum by filing complaint.
Upon notice, opposite parties appeared and contested the complaint by filing their separate written statements. Opposite Parties No.1 and 2 in their joint written statement justified repudiation of complainants claim on the ground stated in the preceding para of this order and prayed for dismissal of the complaint.
Opposite Parties No.3 and 4 in their joint written statement took the plea that complaint against them was not maintainable. It was stated that a sum of Rs.7,98,974.75 alongwith interest calculated upto 31.03.2003 was due and recoverable from the complainant. They prayed for dismissal of the complaint against them.
The parties adduced evidence in support of their respective claims. On appraisal of the pleadings of the parties and the evidence adduced on the record, District Consumer Forum accepted complaint and issued direction to the opposite parties as noticed in the opening para of this order.
Aggrieved against the order of the District Consumer Forum, the opposite parties No.1 and 2 have come up in appeal.
Arguments heard. File perused.
On behalf of the appellants it has been argued that the District Forum has miserably failed to appreciate the surveyors report which is a vital piece of evidence. The complainant himself had disclosed the loss as Rs.5,88,674/- in the D.D.R. which too is exaggerated. The surveyor on the basis of information supplied by the complainant had assessed the net loss payable to the tune of Rs.1,50,323/-.
On the other hand learned counsel for the respondent No.1 (complainant) has argued that the order of the District Forum is based on cogent and convincing evidence available on the record. The loss of the complainant was about of Rs.8,90,925/- . The basis of calculation of this loss is that the closing stock of the firm as on 31.03.2002 was Rs.9,96,882.99 which includes Rs.90,590.99 for the stock lying in the Godown of the firm, which remained safe. According to the complainant the sale of goods for six days comes to Rs.15,681/- approximately and thus the payable amount comes to Rs.8,90,925/-.
Having taken into consideration the rival contentions of the parties, we feel that a close scrutiny of the surveyors report would help us to decide this appeal. The relevant part of the surveyors report is as under:-
The insured claimed that the items affected as total loss, however, only packing of certain goods has been affected which can be sold, therefore, the same has been allowed at 30%. The items which has been burnt has been allowed at 100%.
The insured has not produced any books of accounts and there is wide variance in sales & purchases of different period, however, the insured has produced records from Sales tax & Income tax. Therefore, it would be justified to make a lower deduction @ 10% to cover up element of difference in rates, quality and quantity etc. As the insured is in trade for last 10 years, there may be certain goods which were not saleable and even the rates of items claimed may have decreased due to change in technology, fashion etc. Therefore, a deduction of 20% has been made on a/c of dead & slow moving items on account of change in fashion, technology etc. The perusal of the report further reflects that the loss of the following items was assessed as 30% of the total value of the goods which in our view is on lower side and should not be less than 50%. Thus, by taking 50% loss of those items instead of 30%, the amount assessed comes as under:-
Sr. No. Particulars Qty.
Amount % less Amount Assessed 1 Super Sanosum (Gunny Bags) affected due to water & smoke 112 bags 50% 49448 2
-do-
70 bags 64428 50% 32214 3
-do-
80 bags 73632 50% 36816 4
-do-
36 bags 33135 50% 16567.5 5 Asian Royal Paint (Burnt) 3 Drum 13281 100% 13281 6 Asian Royal Paint (Packing affected) 2 Drum 8854 50% 4427 7 ICI Velvet Touch paint (Burnt) 2 Drum 10774 100% 10774 8 Asian Plastic paint (Burnt) 4 Drum 11092 100% 11092 9 Enamel Asian Royal Paint (Packing affected) 3 Drum 6450 50% 3225 10
-do-
5 Drum 10285 50% 5142.5 11 1 Bori Lakh Dana 50 Kg 8000 100 8000 12 Dodti (Burnt) 500 Pc 9500 60% 5700 13 Enamel paint 1 Ltr (Packing affected) 230 Ltr 27600 50% 13800 14
-do-(Destroyed) 350 Ltr 42000 100% 42000 15
-do-(Packing affected) 600 Ltr 72000 50% 36000 16 Oil Bound Distemper (20 Litre packing) 5 Balti 3369 100% 3369 17 DA Paching 90 Ltr.7650
100% 7650 Total Rs. 2,99,506 +Fire Brigade charges 1,600 (-) Policy Clause 10,000 Net amount payable Rs.2,91,106 In view of our aforesaid calculation the payable amount to the complainant comes to Rs.2,91,106/-. Hence, direction is given to the appellants-opposite parties to pay Rs.2,91,106/- to the complainant alongwith interest @ 10% per annum from the date of repudiation of complainants claim till its realization. The cost of litigation is assessed at Rs.5500/-.
The impugned order is modified on the terms indicated above and the appeal stands disposed of.
The statutory amount of Rs.25,000/- deposited at the time of filing the appeal be refunded to the appellants against proper receipt and identification in accordance with rules, after the expiry of period of appeal and revision, if any filed in this case.
Announced: Justice R.S. Madan 06.12.2012 President B.M. Bedi Judicial Member