State Consumer Disputes Redressal Commission
M/S Swati Storewell Pvt. Ltd. vs The United Insurance Co. Ltd. on 7 July, 2015
FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB
SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
Consumer Complaint No.29 of 2013
Date of Institution: 14.03.2013
Date of Decision: 07.07.2015
M/s Swati Storewell Pvt. Ltd., Plot No.44-45, Industrial Area, Sector 1,
Parwanoo 173, District Solan, (H.P), through Sh. Ramesh Gupta, its
Director, now merged into M/s Sturdy Industry Limited.
.....Complainant.....
Versus
1. The United India Insurance Company Limited, Divisional Office 3,
Gulmohar Hotel Building, Ferozepur Road, Ludhiana 141001
(Punjab) through its Divisional Manager.
2. The United India Insurance Company Limited, Head Office at Plot
No.24, Whites Road, Chennai 600014 through its
Chairman/Managing Director.
3. Sh. Vinod Kumar, Surveyor & Loss Adjusters, 101, Building No.5,
Local Shopping Centre, Madangir, New Delhi 62.
....Opposite Parties....
Consumer 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.
Shri Harcharan Singh Guram, Member.
Present:-
For the complainant : Sh.Deepak Arora, Advocate
For the O.P No.1 and 2 : Sh.D.P Gupta Advocate
For the OP No.3 : Ex-parte
.............................................. Consumer Complaint No.29 of 2013 2 J. S. KLAR, PRESIDING JUDICIAL MEMBER:-
The complainant M/s Swati Storwell Pvt. Ltd through its Director Sh. Ramesh Gupta, now merged with M/s Sturdy Industry Ltd has filed complaint U/s 17 of the Consumer Protection Act 1986 (in short the "Act) against the OPs on the allegations that complainant is a private limited company engaged in the business of manufacturing of plastic pipes, plastic water storage tanks, HDPE pipes and sprinklers and drip irrigation systems etc. The premises of the complainant company are situated at plot no.44-45 , Industrial Area, Sector 1, Parwanno (HP). Sh. Ramesh Gupta has been authorized by the Board of the Directors to file the complaint by virtue of resolution dated 25.02.2013. The complainant company took Standard Fire and Special Perils Policy bearing no.200900/11/10/11/00000225 dated 29.06.2010 from OPs no.1 and
2 for the assured amount of Rs.8 crores by paying a premium of Rs.45,885/-. The period of the policy was from 29.06.2010 to 28.06.2011. The detail of risk covered under the policy is given as under:
Description of risk: Rs.50,00,000/- on entire plant and machinery &/or allied accessories, tools, dies used for water tank, &/or used for manufacturing of plastic water tanks/plastic pipes &/or sprinklers &/or machinery installed & fitted and lying at insured premiums as above noted premises. Rs.5,30,00,000/- on stock of all kinds of raw material, finished , un-finished, semi-finished goods granules &/or Consumer Complaint No.29 of 2013 3 packing material &/or allied natured of goods, &/or goods in process related to insured trade as.
The complainant company maintained the proper books of accounts including cash book, ledger, purchase records and similarly VAT is charged on local sales and VAT is, thus, adjustable. The complainant company has also been paying CST on purchases outside the State and regular audit of the company was done by the Chartered Accountants. The complainant company has also taken Cash Credit Limit from the Punjab National Bank, Parwanoo. Accounts are running regular and monthly stocks statements are also submitted to the bank regularly. Fire broke out in the factory premises of the complainant on 22.07.2010 during the currency of the above-referred policy, which was noticed at around 10.00 am in the store room of the accessories and fittings, thereby accessories and fittings kept in the store room were destroyed. The newspaper clippings dated 23/24.07.2010 have been attached. The complainant reported the matter of incident of fire to the concerned fire brigade, which reached the site and controlled it after 2-3 hours. The complainant also reported the matter to the police and DDR No.21(A) dated 22.07.2010 was lodged with Police Station Parwanoo to this effect. The fire incident was also reported to the insurance company on the same day and copy of intimation letter dated 22.07.2010 was sent through fax no.061-2442350. Later on, claim form and claim bills to the tune of Rs.77,65,336.78 loss Consumer Complaint No.29 of 2013 4 sustained by the complainant company during the fire incident were submitted, which were received by the OP No.1 and 2 in their record and accordingly claim no. 200900/11/10/11/90000025 was issued. The OP No.1 and 2 deputed a Surveyor and Loss Assessor namely Mr. Vinod Sharma from Delhi to assess the loss, who visited the spot on 24.07.2010 and he required the complainant company to submit more documents. The surveyor was supplied all the requisite documents and information whatever was required, vide letter dated 19.08.2010. Copies of the stock statements submitted to PNB , w.e.f. January 2010 to July 2010 and copy of the stock register for the relevant period are attached. The complainant company also sent intimation to the Senior Divisional Manager of the OP No.1 and 2 regarding compliance of all required formalities, as desired by the Surveyor, vide letter dated 07.10.2011. OP No.1 and 2 repudiated the claim of the complainant, vide letter dated 17.05.2012, despite furnishing all required documents and information, the insurance claim was repudiated by OP no.1 and 2 on the ground that as per observation of the surveyor Mr. Vinod Sharma and investigator M/s Royal Associates, the complainant had denied an opportunity to physically verify the circumstances of loss, condition of the burnt goods immediately after the loss, as the entire goods were removed outside before the visit of the surveyor. The damaged goods were packed in the bags with no proper justification/explanation. The burnt material was mixed scrap and waste, so as to inflate the claim. The Consumer Complaint No.29 of 2013 5 remains of the burnt material were much more than the storage capacity in affected storage room because it was not possible to store such a huge quantity of goods in the racks in the rooms. The cause of the loss was also not substantiated nor it was confirmed from the circumstances of loss. No fire brigade report was submitted and investigation report of police was not submitted as well. The complainant company, vide letter dated 11.06.2012 (duly acknowledged by OP No.1) had clarified all the queries and submitted the relevant information/document to Surveyor OP No.3 but OP No.1 and 2 repudiated the entire claim of the complainant at their whim in an arbitrary manner. The complainant company got copy of the surveyor report as well as investigation report, by writing repeated letters to OP no.1 and 2 , which revealed that the same was not based on the correct appreciation of facts and circumstances explained and material and data supplied to him by the complainant. In the column of physical inventorization, the surveyor admitted that it was not possible to make physical inventories of the complete burnt stocks. The entire plastic goods were burnt, melted, became lumps and hence were not in a condition for inventorization. However, according to the surveyor, the inventory of aluminum, steel and brass items were with great difficulty in huge heaps of burnt goods. It was further reported that though traces of plastic goods were found but inventorization was not possible. The surveyor tried to blow hot and cold in one breath. Consumer Complaint No.29 of 2013 6
In one breath, he was denied an opportunity of physical inspection of loss and on the other hand by stating that complete stock was burnt and physical inventorization was not possible due to huge loss of the stock. The surveyor after making deductions to the maximum extent i.e. 20% dead stock allowance and price variation and for estimation of quantity considering only 25% on plastic and rubber goods claimed loss, which was on the basis of storage capacity available in the affected area, salvage 2.5% lumpsum and making deductions on account of policy excess clause, ultimately, assessed the loss to the tune of Rs.19.90,265/- , which was on the basis of physical verification of the damaged case. The investigation report dated 16.11.2010, submitted by M/s Royal Associates reveals that it was based on the surmises and conjectures only. The surveyor and investigator tried to put burden on each other's shoulder. M/s Royal Associates did not give any confirmed finding and the opinion given by it, is without any basis. The complainant did not destroy the material so burn/un-burnt during the fire incident and same was presented in the courtyard, which was total waste and no junk dealer was ready to take the same. After the decision of the insurance claim, the same would be dumped in a secluded place, with the permission of concerned department of the Government and the Pollution Authorities. The surveyor has not appreciated the stock register maintained by the complainant as, such, stock statement were regularly supplied to the bank from which cash credit limit was Consumer Complaint No.29 of 2013 7 availed. The loss was assessed by the surveyor to the extent of Rs. 19,90,265/- arbitrarily without any basis. OP No.1 and 2 repudiated the insurance claim of the complainant in an arbitrary manner despite the fact that surveyor was deputed on 23.07.2010, who visited the spot on 24.07.2010 and took the photographs and signed the stock register on that day. The finding of the surveyor about the size of the plot is far from the real and true facts. The unit of the complainant company is situated in the industrial town on the road itself and it was very difficult for the fire brigade to enter into the factory premises to extinguish the fire. The complainant company wrote letter dated 5.09.2012 to Sr.Divisional Manager to Grievance Cell , Head Office, Chennai with request to intervene in the matter but to no effect. The report of the surveyor has been made on the basis of OP No.1 and 2 to repudiate the genuine claim of the complainant. The complainant was not at fault, if police has not provided the final report to the insurance company. The cover note/insurance policy was issued at Ludhiana and OP No.1,2 and 3 worked for gain at Ludhiana and hence Commission is competent to entertain this complaint. The complainant has, thus, filed the present complaint directing the OP no.1 and 2 to pay the amount of Rs.77,65,336/- to the complainant, besides compensation of Rs.3 lac for inconvenience and financial loss. The complainant has also further claimed interest @ 15% per annum on the entire amount from the date of loss i.e. 22.07.2010 till its actual realization. Consumer Complaint No.29 of 2013 8
2. Upon notice, OP No.1 and 2 filed written reply raising preliminary objections that complaint is not maintainable. The complainant company has ceased to exist and hence it is no more a person competent to file the complaint under the Act. The complex question of facts and law are involved in this case, which cannot be adjudicated in summary proceedings by the Consumer Forum and only civil court is competent to adjudicate the matter. The reason for repudiation of the insurance claim were conveyed to complainant, vide letter dated 17.5.2012 by OP No.1 and 2 and it cannot be termed as deficiency in service. This Forum has no jurisdiction to entertain the complaint. The complaint has been filed by an unauthorized person as complainant company has ceased to exist and hence there is no question of any Board of Directors of the complainant company in existence. Ramesh Gupta is not competent to file the complaint. It was further averred that in the written reply by OP No.1 and 2, surveyor appointed by them pointed out that complainant did not produce any stock register of accessory and fittings during the visit at the premises of the complainant. Rough register shown by the complainant was not having the complete details of value reference/details of issue/purchased quantity. It was incumbent upon the complainant to produce stock register immediately after the loss before the surveyor on his visit to the complainant. The complainant supplied incomplete data to the surveyor and sent few registers to the surveyor for verifications. Consumer Complaint No.29 of 2013 9 Entries were made subsequently in the above registers without any proper delay. It was admitted that fire took place in the premises. It was further pleaded in the written reply that damaged accessories and fittings were removed from the store prior to the visit of the surveyor. The complaint was supposed to keep the spot in same condition so that the surveyor could inspect the spot and could make his assessment accordingly. The complainant had not provided the report of the fire brigade to the surveyor before finalization of survey report. The police also mentioned that this burnt material was sent for laboratory test for analysis, but complainant failed to submit the investigation report of police to the surveyor before the finalization of report by the surveyor. It is specified by the police that the burnt items would be sent to the laboratory for further analysis and investigation. It was not disputed that complainant submitted claim form and claim bills to the OP No.1 and 2 for Rs. 77,65,336.78. It was further averred that in spite of communications by the surveyor, the complainant had not submitted the complete documents and information, as required by the surveyor, vide his letter dated 25.10.2010 and there is, thus, breach of terms and conditions of the policy on the part of the complainant. It was further averred that the insurance claim of the complainant was repudiated, vide letter dated 17.5.2012 by the OPs. The complainant denied opportunity to physically verify the circumstances of the loss, condition of the burnt goods forthwith after the loss as the entire goods were removed from Consumer Complaint No.29 of 2013 10 the spot to outside before the visit of the surveyor and thereby complainant already disturbed the spot of occurrence. The complainant had also packed damaged goods in the bags without any explanation or justification from the spot. The burnt material was mixed with scrap and waste just to inflate the claim by the complainant only. The surveyor also found that the remains of burnt material were much more than the storage capacity in the fire affected store room, as it was not possible to store such huge quantity of goods in racks in the said room. It was denied that the surveyor took any wrong stand in this case of the complainant. It was further averred that if complainant was aggrieved by surveyor, it could have approached the Insurance Regulatory and Development Authority, as per provisions of the Insurance Act and said authority could have appointed another surveyor by issuing an appropriate direction to the OPs for settling the claim in appropriate manner, but complainant has failed to avail the said statutory remedy provided under the Insurance Act. The complainant removed the goods from the affected room prior to the arrival of the surveyor to inspect the spot for inspection. It cannot be said that the identity of goods as shown in the photographs, were actually damaged in the said store by the fire in the premises of the complainant. It was denied that statements were duly verified by the bank officials. Column meant for office use only was lying blank in all these stock statements submitted by the complainant to the bank, as they were examined by Consumer Complaint No.29 of 2013 11 the surveyor. The OPs further averred that at the most, liability of the OP no.1 and 2 is limited to assessment of Rs.19,90,265/- as assessed by the surveyor. The OP No. 1 and 2 prayed for dismissal of the complaint.
3. OP No.3 was set exparte in this case, vide order dated 6.05.2013 of this Commission.
4. The complainant tendered in evidence affidavit of Sh. Ramesh Gupta Ex.C-A along with copies of documents Ex.C-1 to Ex.C-22 and Ex.C-26 to Ex.C-28, copies of photographs Ex.C-23 to Ex.C-25. As against it, OPs tendered in evidence affidavit of Anil Kalia, Senior Divisional Manager, United India Insurance Company Ex.O-A, affidavit of Vinod Sharma, Surveyor and Loss Adjustor Ex.O-B, affidavit of Sh. Kashmir Singh dated 25.07.2013 Ex.O-C along with copies of documents Ex.O-1 to Ex.O-3.
5. We have heard learned counsel for the complainant and counsel for OP No.1 and 2 as OP No.3 is exparte in this case and have also examined the record of the case.
6. The submission of OPs is that complainant which took the insurance policy stood merged with the present complainant/company and as such, there is no privity of contract of OPs with complainant. We find from perusal of order of Hon'ble Himachal Pradesh High Court Ex.C-1/A dated 05.01.2011 in Appeal No.02 of 2010 along with connected appeal no.3,4,5,6 and 7 of 2010 under the Company Act that M/s Swati Storewell Pvt. Ltd was Consumer Complaint No.29 of 2013 12 merged with M/s Sturdy Industry Ltd with terms of scheme of amalgamation present before the company under Section 391 and 394 of the Companies Act 1996. The company appeals were disposed of accordingly by Himachal Pradesh High Court. We find that present complaint has been filed by M/s Swati Storewell Pvt. Ltd under the Act, as such there is privity of contract between the complainant and OP No.1 and 2. In view of law laid down by National Commission in Harsolia Motors versus. National Insurance Company reported in 2005(1) CLT, Page 97, even the insurance policy taken by commercial units would be a consumer because a person who takes policy to cover the envisaged risk does not take the policy for commercial purpose. Policy is only for indemnification of actual loss and it is not to generate profit, The complainant is, thus, held to be consumer of the Ops.
7. The evidence is required to be examined by us on the record to settle the dispute between the parties. Affidavit of Ramesh Gupta, Director of M/s Swati Storewell Pvt. Ltd is Ex.C-A on the record. He stated in his affidavit that complainant company is a private limited company and present complaint has been filed through its Director, who is authorized to file the complaint by virtue of Company's Board Resolution dated 25.02.2013. He further stated that the merger order of Hon'ble Himachal Pradesh High Court dated 5.01.2011 is Ex.C- 1/A. He further stated that complainant company took Standard Fire and Special Perils Policy bearing no.200900/11/10/11/00000225 Consumer Complaint No.29 of 2013 13 dated 29.6.2010 from OP No.1 and 2 with sum assured of Rs.8 crores by paying a premium of Rs.45,885/-. The period of the policy was from 29.06.2010 to 28.06.2011 and description of risk was Rs.50,00,000/- for entire plant and machinery and allied accessories, tools, dies used for water tank or used for manufacturing of plastic water tanks, plastic pipes and sprinklers or machinery installed and fitted and lying at insured premises as above noted premises. Rs.5,30,00,000/- on stock of all kinds of raw material, finished, un- finished, semi-finished goods granules or packing material or allied natured of goods or goods in process related to the complainant. He further advised the complainant company to maintain the proper books accounts including cash books, ledger, purchase records and paying VAT on local purchases and similarly VAT is charged on local sales , as such VAT is adjustable. He further testified that during the currency of the period of policy, fire took place in the factory preemies of the complainant, which was noticed in the store room of accessories and it took a serious nature, spread to the entire store of accessories and fittings and caused loss on 22.07.2010. The clippings of the newspapers dated 23/24.07.2010 are Ex.C-4 and Ex.C-4/A. He further deposed that fire brigade were called to extinguished the fire and DDR dated 21(1) dated 22.07.2010 was lodged with the Police Station Parwanoo, vide Ex.C-6 and final report of the police Ex.C-7. He further stated that intimation was given to the insurer on 22.07.2010 through fax no.061-2442350 , Consumer Complaint No.29 of 2013 14 vide Ex.C-8. Later on, claim form and claim bills to the tune of Rs.77,65,336.78/- for the loss sustained by the complainant company during the fire was submitted, which were duly entertained by the OPs and issued claim form no. 200900/11/10/11/90000025. He further deposed that surveyor was deputed to assess the loss and vide letter dated 28.7.2010 , he asked the complainant to submit the certain documents and surveyor was supplied all the requisite documents and information whatever asked for, vide letter dated 19.08.2010., copy of which Ex.C-10. Copies of stock statements were submitted to PNB with effect from January 2010 to July 2010. Copies of the stock register for the relevant period are Ex.C-11 to Ex.C-17. This witness further testified that the complainant company sent intimation to Senior Divisional Manager of OP No.1 and 2 that all the required formalities , as desired by the surveyor, have been complied with, vide letter dated 07.10.2011, vide Ex.C-18. This witness further stated that OP No.1 and 2 repudiated the insurance claim of the complainant, vide letter dated 17.05.2012 Ex.C-19 on the record on the ground that as per the observations of the surveyor Mr. Vinod Sharma and investigator M/s Royal Associates , the complainant had denied an opportunity to physically verify the circumstances of loss, condition of burnt goods immediately after the loss as the entire goods were removed outside before the visit of the surveyor. The damaged goods were packed in bags with no proper justification or explanation. The burnt material was mixed with scrap Consumer Complaint No.29 of 2013 15 and waste so as to inflate the claim. The remains of burnt material were much more than the storage capacity in the affected storage room because it was not possible to store such a huge quantity of goods in the racks in the rooms. Cause of loss was also not substantiated nor it was confirmed. The complainant company, vide letter dated 11.06.2012 duly acknowledged by OP No.1 clarified all the queries, but OP No.1 and 2 only gave the weigthage to the report of the investigator and surveyor, vide letter dated 11.06.2012 Ex.C-
20. Copy of the survey report was got by complainant company and investigator report of the surveyor dated 4.08.2011 Ex.C-21 pointed out that in the column of "Physical Inventorization", the surveyor admitted that it was not possible to make physical inventories of the complete burnt stocks. The entire plastic goods were burnt, melted, became lumps, and hence, were not in a condition for invetorization. The surveyor has tried to blow hot and cold in one breath. In one breath he stated that opportunity of physical inspection of the loss was denied to him, whereas on the other hand it is stated that it was not possible to physical inventorize the complete burnt stocks due to huge loss at the spot. This witness also testified that surveyor ultimately assessed the loss to the tune of Rs.19,90,265/- , which was on the basis of his physical inspection of the damaged goods. The investigation report dated 16.11.2010 Ex.C-22 submitted by M/s Royal Associates further divulged that it was based on hypothesis only and has not received the confirmed findings on any concrete Consumer Complaint No.29 of 2013 16 basis. The repudiation of the insurance claim was absolutely unjustified by the OPs of the complainant. The latest photographs are Ex.C-23 to Ex.C-25 on the record. The surveyor omitted to appreciate that he compared the stock with the stock register physically including the record, bank statement, stock statement and after doing all this technical exercise, he assessed the loss to the tune of Rs.19,90,265/- arbitrarily without taking into account the materials and data against the loss , which was Rs.77,65,336/-. This witness further relied upon the fire brigade report Ex.C-5 and police report Ex.C-6 and detailed explanation, vide letter dated 11.06.2012 Ex.C-20 written to the Sr. Divisional Manager. The grievance of the complainant was also acknowledged by the Insurance Company, vide acknowledgment dated 13.09.2012. The repudiation of the insurance claim by the OPs was lamented by the complainant in this case. The above-referred documents, as recorded in the affidavit of this witness, have been duly examined by us on the record.
8. As against it, the contesting OPs tendered in evidence, affidavit of Sh.Kashmir Singh of M/s Royal Associates. This witness has stated in his affidavit Ex.O-C that he conducted investigation in this case and recorded statements of Parveen Gupta, Surjeet Singh, D.N Sharma, Om Parkash Sharma, Ram Narain Tripathi, Mukesh Kumar, Sanjeev Chauhan, Ram Kumar Motiyal and Lalin Singh. He further deposed that he has also visited the spot and inspected the site of the loss. He testified that he concluded that it was not possible Consumer Complaint No.29 of 2013 17 to store such a huge quantity of goods in the racks in the rooms, where the alleged fire erupted. He further maintained in his affidavit that complainant removed burnt goods from the store and mixed it with un-burnt and waste material lying in open before the surveyor visited the site. This witness further submitted in his report along with the statements recorded and other evidence and copy of his complete report with all enclosure EX.R-3. This final survey report submitted by Sh. Vinod Sharma is Ex.O-1 on the record. The surveyor was appointed by insurance company to assess the loss and report of the surveyor Vinod Sharma, who has been appointed by the Insurance Regulatory Development Authority is Ex.O-1 under the Insurance Act.
9. From the critical analysis of our above-referred evidence on the record and hearing the respective submissions of counsel for the parties, we proceed to determine the dispute between the parties in this case. The Ops repudiated the insurance claim of the complainant on the basis of the report of the investigator and surveyor to the effect that the insured had removed the burnt goods and mixed them with the material lying in open before the surveyor's visit. The investigator concluded that the insured manipulated to increase the amount of the claim by showing huge quantity of goods destroyed in the fire. Some material was removed in safe condition. The insured, claimed the entire goods lying in the store remains being destroyed in fire and also some in safe condition. As per Consumer Complaint No.29 of 2013 18 investigator, it is not possible to store huge quantity of the material in the rack, primarily swayed by the above report of the investigation and surveyor Ex.OP-1. The OPs repudiated the insurance claim of the complainant. We have examined the documents, as discussed in the evidence on the record. The policy terms and conditions are Ex.C-2 and Ex.C-3 on the record. Ex.C-4 is newspaper clipping report, Ex.C-5 is report of the Sub Divisional Officer Fire Station, Ex.C-6 is report lodged with the police with regard to incident of fire, Ex.C-7 is report of the police that the fire erupted due to short circuit and caused damage. Ex.C-8 is the intimation given to the OPs by authorized signatory of M/s Swati Storewell Pvt.Ltd about incident of fire, Ex.C-9 is letter addressed to complainant by Sh.Vinod Sharma Surveyor. The documents, which were supplied to the Surveyor Sh.Vinod Sharma are enumerated in Ex.C-10, stock statements Ex.C-11 to Ex.C-17 on the record. Similarly, the documents, which exchanged between the parties have also been considered by us, vide EX.C-18, Ex.C-19 is letter dated 17.5.2013 addressed by Sr. Divisional Manager of OPs to complainant regarding the repudiation of insurance claim, Ex.C-20 is clarification sent by the complainant to OPs. The report of final survey report submitted by Vinod Sharma Ex.C-21 is on the record.
10. We have carefully considered the affidavit of Vinod Sharma Surveyor Ex.O-B on the record proving his report Ex.O-1 in this case. The surveyor Vinod Sharma has stated on oath that he was Consumer Complaint No.29 of 2013 19 directed to conduct the survey by OPs on 23.07.2010 and to assess the loss due to eruption of fire, which spread at the premises of the complainant on 22.07.2010. He visited the factory on 24.07.2010 and found that complainant had changed the entire position of burnt goods. The entire burnt goods were lying outside the open area. Most of the burnt stocks were packed in the bags and also lying in the open in a heap. The complainant had already removed the burnt goods and mixed them with waste materials lying in open before the surveyor's visit and hence could not give any reason for explanation for doing so by means of manipulation to claim higher amount of compensation. Apparently, volumes of burnt stocks were much more than the area available for storage for these goods in the affected storage area. Huge scrap/used materials were deliberately mixed in the burnt goods. He further stated that insured/complainant did not submit the complete documents for verification to OPs, on the basis of incomplete information provided by the complainant. The surveyor proceeded with the case the loss has been assessed by this witness. The surveyor has not verified the record with any inventory of burnt goods. He proved his report Ex.R-1 on the record. He further stated that all information and stock statements submitted to bank, copy of stock register were examined by him, but he did not find any change of his opinion recorded in report Ex.R-1, that he informed the OPs through letter Ex.O-2, similarly affidavit of Kashmir Singh of Royal Associates is Ex.O-C on the record. His investigation report is Ex.O- Consumer Complaint No.29 of 2013 20
3. From perusal of his investigation report Ex.O-3, he recorded that some goods/material were removed from the godown and saved as claimed by one worker. There are two small rooms used for store and goods were stored in the racks in these rooms, which was not possible to be stored. Insured removed the burnt goods from the store and mixed it with un-burnt and waste material lying in open before the visit of the surveyor and thereby disturbed the ensemble of the spot. Manipulation has been done by the complainant just to increase the amount of the claim in this case.
11. From the above-referred discussion, we find that primarily the dispute between the parties is of quantum dispute. Whatsoever the case may be, Vinod Sharma Surveyor has assessed the loss to the tune of Rs. 19,90,265/-, vide Ex.R-1 on the record. On this point, Hon'ble National Commission has held in Champalal Verma Vs. Oriental Insurance Co. Ltd, III(2008), CPJ 93 (NC) that the Consumer Forum cannot go into question of quantum dispute, as it involves detailed investigation, which cannot be dealt with in summary proceedings by Consumer Fora. The complainant relied upon the stock documents on the record. We find that there is no cogent evidence on the record as to what stock was actually burnt and what stock actually remained un-burnt and what loss was claimed by complainant. Nothing can be ascertained form the documents of the stock, registers on the record. Consequently, in the circumstances of the case, we are of this opinion that the report of Consumer Complaint No.29 of 2013 21 the surveyor Vinod Sharma has to be relied upon by us in this case. Report of the surveyor Vinod Sharma is proved by his affidavit Ex.O- B and his report is Ex.O-1 on the record. The surveyor has assessed the loss in this case to the extent of Rs.19,90,265/-. The surveyor stated in report that they assessed the loss on the basis of the physical inspection of the damaged goods, but same were without any authentic verification on the record and some inventory of burnt goods, whatever the case may be. The surveyor found loss to the extent of Rs.19,90,265/- , which was concluded on the basis of search in the affected area. The report of the surveyor Ex.O-1 duly proved by his affidavit Ex.O-B is on the record, which is a valuable piece of evidence. There is no motive for him to give false report in favour of any party, as he was appointed under the Insurance Act. The surveyor report should be given due weightage, as held by Hon'ble National Commission in case Champalal .. versus ..
Oriental Insurance Company (supra)
12. In view of our above-referred discussion, we accept the complaint of the complainant by directing the OP No.1 and 2 to pay the amount of Rs.19,90,265/-(nineteen lac, ninety thousand, two hundred and sixty five only) as per the report of the surveyor Ex.O-1 on the record. The complainant is also awarded the amount of Rs.20,000/- as costs of litigation. The above-referred total amount be paid by the OP no.1 and 2 jointly and severally to complainant within a period of 45 days from the date of receipt of the certified copy of Consumer Complaint No.29 of 2013 22 the order, failing which complainant shall be entitled to interest @ 9% from the date of loss till its actual payment.
13. Arguments in this complaint were heard on 30.06.2015 and the order was reserved. Now the order be communicated to the parties.
14. The complaint could not be decided within the statutory period due to heavy pendency of court cases.
(J. S. KLAR) PRESIDING JUDICIAL MEMBER (HARCHARAN SINGH GURAM) MEMBER July 7, 2015.
(ravi)