State Consumer Disputes Redressal Commission
M/S Omsons Worldwide vs S.L Khosa on 19 January, 2016
Daily Order FIRST ADDITIONAL BENCH STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB SECTOR 37-A, DAKSHIN MARG, CHANDIGARH. Consumer Complaint No.35 of 2011 Date of Institution: 03.05.2011 Date of Decision : 19.01.2016 M/s Omsons Worldwide, A-78, Sector 57, Noida 201 301, District Gautam Budh Nagar (U.P), through its Partner Sunil Mahajan. .....Complainant Versus 1. The New India Assurance Company, 4th Floor, Surya Tower, The Mall, Ludhiana through its Chief Regional Manager. 2. The New India Assurance Company, 356, Guru Teg Bahadur Nagar, Jalandhar through its Sr. Divisional Manager/Chief Manager. 3. The Chief Manager, Grievance Cell, The New India Assurance Building, 87, NG Road Fort, Mumbai 400001 through its Chief Manager. 4. Mr. Sanjay Dwivedi, Sanjay Dwivedi and Associates, Surveyors, Loss Assessors, Investigators & Valuers, IIIA/135, Rachna, Vaishali, District Ghaziabad 201010. 5. The Punjab National Bank, International Banking Branch, Civil Lines, Jalandhar, through its Chief Manager. ....Opposite Parties Consumer Complaint U/s 17 of the Consumer Protection Act, 1986 (as amended up to date). Quorum:- Shri J. S. Klar, Presiding Judicial Member.
Shri H.S Guram, Member.
Present:-
For the complainant : Sh.R.K Bhatti, Advocate For the Opposite party no.1-3 : Sh.R.C Gupta, Advocate For the Opposite party no.4 : Ex-parte. For the Opposite party no.5 : None. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . J. S. KLAR, PRESIDING JUDICIAL MEMBER:-
The complainant/firm M/s Omsons Worldwide obtained a Standard Fire & Special Perils Policy bearing no. 361000/11/09/11/00000816 through OP NO.5/Punjab National Bank on account of credit limit of Rs.425.16 lacs. The said Standard Fire & Special Perils Policy involved a detailed risk cover of sum insured of Rs.7.55 crores and a premium of Rs.97,000. The policy covered building, plant and machinery along with furniture, fixtures and fittings and category-1 stocks and it was operative from 07.03.2010 to 06.03.2011. A major fire erupted in the premises of the complainant on 10.08.2010 and intimation to this effect was given to OPs on the same day and to the police. It was extinguished after strenuous efforts by the fire fighters. The complainant/firm intimated the Fire Incharge Officer Noida regarding outbreak of the fire on 17.08.2010 and about the insurance cover policies, estimate of renovation and details of measurements. The complainant/firm intimated the designated surveyor/OP No.4 regarding damage caused to the first floor of the office block by the fire. Loss was not only to the documents, records and other data, but also to the furniture, fixtures and fittings along with building of complainant itself. The complainant/firm supplied the estimate of renovation and measurements to OP No.4, vide letter dated 19.08.2010 and sought confirmation of the receipt thereof through email dated 23.08.2010. The complainant/firm supplied all the documents to OP No.4 on 01.09.2010, as required by OP No.4 for early settlement of his claim. The complainant/firm also sought confirmation of the receipt thereof, vide email dated 04.09.2010, by supplying of all documents. After confirmation of 1/2 months, complainant wrote letter to Punjab National Bank/OP No.5 about harassment faced by him from OP No.4 in delaying the submission of report. The complainant wrote letter dated 25.08.2010, when OP No.4 without any occasion objected to give the details in the visitors register saying that it was not used to fill up the visitors register. OP No.4 demanded the documentary support in the form of quotations in support of policy report for furniture, fixtures and fittings and insurable interest of the complainant in the said building, vide email dated 11.10.2010. OP No.4 also raised serious concerns regarding the insurable interest of the complainant in the said building, which was provided to its satisfaction. The complainant also disclosed about previous insurance policy of M/s ICICI Lombard, but still OP No.4 insisted that complainant had not disclosed regarding the insurance of the building from ICICI Lombard by the complainant. OP No.4 harassed the complainant intentionally and malafide with some ulterior motive by making out a case of non-insurable interest of the complainant in the said building on account of lack of ownership. The fact remains that the said purchase of the land by sister concern Omsons International Construction of Building thereon by the complainant and subsequently transfer of the building from M/s Omsons International to complainant had been diligently explained to OP No.4 along with documentary proof. The complainant again explained the valid and tangible insurable interest of the complainant in the policy of the said building, vide letter dated 18.10.2010 addressed to OP No.4. The complainant explained that insurance with ICICI Lombard was on account of loan taken from Money Line Credit Limited against equitable mortage of the said building and insurance from ICICI Lombard for the said building has been granted in the name of the managing partner Sh. Sunil Mahajan, which was disclosed at item no.6 of claim form. The complainant further reiterated that the ownership of the building was explained by way of declaration and documents submitted along with claim form on 01.09.2010. OP No.4, the surveyor of OP No.1 to 3 sought other clarifications regarding the building and documents, as allotment letter, approved drawings and completion certificate etc., apart from disputing the price of various furniture, fixtures and fittings. It only exhibited that OP no.4 intended to procrastinate the matter. OP No.4 again visited complainant's office on 22.10.2010 for rechecking of the premises and after almost two months of first inspection, OP No.4 again handed over a list of documents to be supplied by the complainant. OP No.4 was trying to create hurdles in an unfair manner to jeopardize the interest of the complainant. OP No.2 with the Chief Manager of Punjab National Bank, visited the premises of the complainant on 07.02.2011 to inspect the stock etc, but OP No.2 failed to divulge any details and further stated that the issue was yet to be discussed with ICICI Lombard and only after that ,the claim would be settled, but to no effect. On 25.11.2010, OP no.4 sent an abysmally low estimate just for the purpose of its own pleasure, which is not only deficiency in service but also unfair trade practice. OP No.4 is adamant as reflected from email dated 25.11.2010. As per unofficial survey report, the claim has been assessed to the extent of Rs.12,06,188/-, which was on the lower side. The complainant raised number of objections regarding computation of the claim on account of number of items being taken, as part of FFF, which were part of the building, the depreciation of the administrative block ought not to be more than 2% valuation rate ought to have been Rs.825/- per sq. ft., the actual additions to furniture being Rs.37,44,600/- instead of computed Rs.41,23,730.88 and lastly that the depreciation of the furniture should not be more than 30%. The complainant intimated OP No.2 about the compelling circumstances necessitating the change of surveyor and it also sent damage picture of the front orientation of the building and continuing dilapidated condition on account of lack of settlement of the claim. OPs no.1 to 3 have not bothered to seek any explanation from OP No.4. The complainant tried to contact OP No.2, but to no effect and he sent an email on 03.12.2010 to OPs. The complainant served short notice on 07.12.2010 after email sent by OP No.4 on 02.12.2010 seeking another two days for filing the survey report, but OP No.4 kept on procrastinating the matter. Even after almost five months, the complainant failed to have any information from either OP No.1 or 2 and OP No.4 had clearly told the complainant that he would not let the claim to be processed in a normal manner. The complainant made number of visits to the office of OP No.2 for settlement of his genuine claim, but to no effect. The complainant also filed complaint to highest levels of the insurance company i.e. Central Grievance Cell/OP No.3, the regional office of the said insurance company, vide letter dated 06.01.2011. Sh. Sunil Mahajan along with Chief Manager of Punjab National Bank i.e. OP No.5 went to OP No.2 on 22.12.2010, but OPs failed to give any response. Despite submission of all required documents by the complainant to OP No.4 and despite unfair act of OP No.4, nothing was done to settle the claim of the complainant. The complainant waited for response from OP No.1, after sending reminder dated 13.01.2011 to OP No.1, but OP No.1 had not bothered to reply the same. The complainant again sent reminder on 16.02.2011, but to no effect. OP No.1 to 3 and 4 are not only deficient in service, but also guilty of unfair trade practice. OP No.2 instructed the OP No.4 to contact ICICI Lombard and to get the report of assessment in order to further proceed with the matter, vide letter dated 21.02.2011 after almost four months of the receipt of OP No.4, on the point that the claim would be settled after considering the claim with M/s ICICI Lombard. The complainant sent legal notice 26.02.2011, vide registered AD and UPC to OPs. OP No.2 acknowledged the receipt of the legal notice, but failed to take any remedial measurements. The complainant supplied a copy of report of surveyor to ICICI Lombard General Insurance but at the same time, it requested OP No.2 to supply copy of surveyor's report submitted by the surveyor with OP No.2, which was unfair against the complainant. The complainant wrote letter dated 7.4.2011 to OP No.2 to expedite the settlement of the claim of the complainant. OP No.2 after almost eight months of the incident of fire told the complainant that in view of the difference of assessment in both the surveyor's reports of M/s ICICI Lombard and the New India Assurance Company, the matter has been taken up by OP no.2 with the surveyor i.e. OP No.4 and further stated that claim would be settled only after the comments of the surveyor/Mr. Sanjay Dwivedi. The complainant filed the complaint on the averments that the policy was issued from unit no.361000, 356, Guru Teg Bahadur Nagar, Jalandhar and hence this Commission has territorial jurisdiction to try the case. The OPs have committed unfair trade practice in this case, besides being deficient in service. The complainant has, thus, filed this complaint praying that OPs be directed to pay Rs.72,86,972/- to complainant, besides compensation of Rs.5 lacs for harassment and Rs.25,000/- as costs of litigation.
2. Upon notice, OP no.1 to 3 appeared and filed written reply and contested the complaint of the complainant by raising preliminary objections that complaint has not been filed through duly authorized person and as such is not maintainable. The complaint is alleged to be filed being an abuse of the process of law only. The complaint filed against S.L Khosa Chief Regional Manager, Sh.M.S Randhawa Senior Divisional Manager and Mr.Arun Boregohain Chief Manager in their individual capacity only, who are not legal entities. The matter involves complex questions of facts and law, which cannot be adjudicated in summary proceedings by the Consumer Fora. The complainant is a commercial entity and is not a 'consumer'. If there exists other policy of insurance with respect to the parties concerned and qua the allegedly property; the liability of the OPs cannot be more than its share on pro rata apportionment, to be contributed by all the insurers as per the coverage granted, subject to the terms and conditions and exceptions of the same. The alleged loss took place on 10.08.2010 and the surveyor was appointed to assess the loss. The complainant took time in completion of formalities and documents, all the same, there is total non-cooperation and disclosure of all material facts from complainant's side. The insurance company in the right earnest made payment of Rs.12,01,072/- in full and final settlement of the claim, vide Form No.A-25 dated 25.5.2011 duly discharged its financers i.e. Punjab National Bank for self and on behalf of the insured. After taking into consideration the assessment of loss vis-a-vis the comparison with the assessment of ICICI Lombard General Insurance Company Limited, an addendum final survey report dated 06.05.2011 was submitted to the underwriters subject to admission of liability. The claim has been lodged by the complainant under Standard Fire and Special Perils Policy issued in favour of M/s Omsons Worldwide covering the risk of engineer workshop as mentioned in the schedule of the policy in the name of Punjab National Bank. The complainant got building insured with another insurer i.e. M/s ICICI Lombard General Insurance Company Limited, vide letter of complainant dated 22.2.2011. The insurance company has made payment of the entire payable claim to its bankers under intimation to the insured, as per free, fair and unbiased assessment made by the expert Surveyor Loss and Assessor. The complaint filed by the complainant is rendered infructuous. The insured/complainant did not raise any objection, when the payment of Rs.12,01,072/- was released to its loan account with its financers in the loan account with Punjab National Bank. The complaint is not accompanied by a proper affidavit, as per provisions of law. On merits, it was averred that policy terms and conditions were issued to be read as part of the reply. Factum of loss in eruption of fire in the premises of the complainant was not denied by the OPs. It was further pleaded that complainant only made an afterthought version with an ulterior motive to substantiate it by filing the present complaint, which is not tenable, as per law. The allegations with regard to delay made by the complainant are superfluous, as such, loss occurred on 10.8.2010 and Surveyor & Loss Assessor contacted the insured on a number of occasions. After about one month of alleged loss, writing to bankers by the complainant on 14.09.2010, do not cast any reflection of the alleged delay and deficiency on the part of the OPs. The demand of documentary proof by OP No.4 an authorized Surveyor & Loss Assessor constituted the part of process of fair assessment of loss by him on behalf of insurer. The insurable interest of the complainant in the building in question is required to be established by the insured with cogent evidence. The building in question was said to be insured with M/s ICICI Lombard General Insurance Company Limited, which fact the complainant tried to conceal from OPs. It was denied that OP No.4 bore any grudge against complainant and latter only made derogatory remarks against OP No.4. The time period consumed also speaks for itself about the quickness of the Surveyor & Loss Assessor in completing the job. The complainant tried to create a new case after acceptance of the loss assessment to the tune of Rs.12,06,188/- and that too its entire satisfaction and find ways only to file the present complaint. The statistical explanations and calculations given by the complainant in the complaint are denied by the OPs. It was averred that the provisions of the Insurance Act, 1938 also bar the request for change of surveyor by the OPs. OPs settled the claim of the complainant within the shortest possible time. The time consumed in documentation and collection of information by Insurance Company, clearly depended upon the cooperation of the insured by way of submission of timely information and documents and the delay on the part of the complainant itself. The allegations only showed the baseless frustration of the complainant. It was denied that complainant is entitled to insurance claim of Rs.72,86,972/- on the basis of the averments contained in the complaint. OP No.1 to 3 prayed for dismissal of the complaint.
3. OP No.4 did not appear before this Commission, despite service and, thus, was proceeded against ex-parte, vide order dated 04.08.2011.
4. OP No.5 filed its separate written reply averring that complainant took credit limit of 425.16 lacs from OP No.5 and in compliance of terms and conditions thereof, the complainant took a Standard Fire and Special Perils Policy from the New India Assurance Company involving the risk cover of sum insured Rs.7.55 crore. The policy covered building, plant and machinery, furniture, fixture and fittings and category-1 stocks. It was further pleaded that on 10.08.2010, a major fire broke out at complainant's office-cum-factory premises causing substantial damage. The complainant acted with diligence and promptly informed the bank, insurance company and other authorities. OP No.4 was appointed as Surveyor by New India Assurance Company and complainant duly complied with the instructions given by the surveyor. All relevant documents along with the estimate of renovation were duly furnished in time, as complainant was interested in timely settlement of the claim. It was further pleaded that surveyor visited the office of the complainant on 25.08.2010, but did not settle the claim till 14.09.2010. The complainant wrote a letter to his banker PNB narrating the problem faced by it due to delay in settlement of its claim. Another letter dated 13.10.2010 was received from the complainant by OP No.5, whereby complainant narrated the incident dated 25.08.2010. OP No.4 deliberately was creating hurdles in the settlement of the claim. The complainant served a legal notice dated 07.12.2010 to OPs for early settlement of the claim. Letter dated 20.12.2010 from Assistant General Manager PNB Jalandhar was sent to the New India Assurance Company for settlement of the claim at the earliest. OP No.5 visited the premises of the complainant on 07.02.2011 to carry out routine inspection of stock etc and was surprised to know that the claim has not yet been settled. The matter was taken up with OP No.2, who stated that the issue was not yet discussed with ICICI Lombard and settlement of the claim shall take place shortly thereafter. OP No.5 again sent a letter dated 07.04.2011 to OP No.2 for settling the claim of the complainant. OP No.5 wrote various letters, made telephone calls, met the officials of OP No.2 personally for the settlement of the claim of the complainant, but to no effect. Any deficiency in service on the part of OP No.5 was denied. OP No.5 prayed for dismissal of the complaint.
5. The complainant tendered in evidence the affidavit of Sh. Sunil Mahajn partner of complainant/firm Ex.C-A along with copies of documents Ex.C-1 to Ex.C-38. As against it; OPs No.1 to 3 tendered in evidence affidavit of Sh. A.L Madan Manager New India Assurance Company Limited Ex.O-A, affidavit of Sh. Sanjay Dwivedi, Surveyor and Loss Assessor Ex.OP-B along with copies of documents Ex.O-1 to Ex.O-5.
6. We have heard learned counsel for the parties at considerable length and have also examined the record of the case.
7. We have to determine this point, as to whether the complaint filed by complainant/firm for claim of insurance is maintainable or not? This is contract is of indemnification in the shape of insurance, as held by National Commission in " M/s Harsolia Motors vs. M/s National Insurance Company Limited" 2005 (1) CPC 53. In the Contract of Insurance, which is mainly the contract of indemnification of the loss; even the company is held to be a 'consumer'. The next submission is that as to what is the effect of the name of the officers who have been shown, as OP No.1 to 3 before the name of New India Assurance Company. Undoubtedly, it is an irregularity only and it would not vitiate the proceedings because the officers act as the representative of the insurance company only. Basically, the complainant has directed the complaint against insurance company and mere pre-fixing name of the officers before New India Assurance Company is not fatal in our opinion.
8. The next submission for adjudication before us is whether the discharge vouchers issued by the financer/OP No.5 for the amount of Rs.12,01,072/- would discharge the liability of the complainant or not. After evaluation of evidence on the record, we hold that complainant is a firm, vide Form A Ex.C-37 on the record. It is registered, as Firm with Registrar of Firms, Delhi on 21st June 1999. Reliance has been made by OPs on its discharge voucher Ex.O-3 on the record, which has been issued by the financer of complainant OP No.5. We are of this view that the discharge voucher Ex.O-3 is dated 25.5.2011 and it has been issued by PNB/OP No.5, as financer of the complainant. This discharge voucher has not been issued by the complainant and rather it has been issued by its banker only. The complainant has been protesting over inadequate claim right from the beginning to the OPs. The discharge voucher has not been issued by the complainant in this case, as held by National Commission in " Target Plywood Industries Ltd versus Oriental Insurance Company and another," reported in 2006(3) CLT Page 270-71, that discharge voucher was executed by the banker alone without obtaining any acknowledgement from the complainant/insured; It cannot bind the complainant/insured; such settlement is unfair and is not binding on the complainant. This authority is fully applicable to the fact situation of the case. In this case, there is no consent given by the complainant to discharge voucher nor there is any such acknowledgement by the complainant without raising any objection thereto. Rather complainant has been protesting over inadequate settlement from the very beginning. We, thus, repel the submission of OPs that discharge voucher Ex.O-3 would discharge liability the OPs in this case.
9. From examination of entire evidence on the record and hearing respective submissions of counsel for the parties, we find that the fact that complainant took insurance policy from OPs is undisputed, vide policy document Ex.C-1. Ex.C-2 is intimation of fire to the OPs on 10.8.2010 by the complainant/firm. Ex.C-3 may be also referred to in this regard as addressed to Fire In-charge Officer Sector 58 Phase 3 Gautm Budh Nagar Noida. Ex.C-4 is letter addressed to Surveyor New India Assurance Company Limited. Ex.C-4 is estimate submitted by the complainant to OPs. The complainant has claimed the total amount of Rs.72,86,972.01 in this case and this estimate was supplied to OPs by the complainant. The complainant also supplied the detail of measurement conducted by Orbitech Design India Architects, Engineers, Interior Designers Ex.C-4 in this regard in support of their estimate claim. Ex.C-5 is email dated 23 August 2010 in which both estimate for renovation and detail of measurement were sent to OPs by the complainant. Certain documents were demanded by the surveyor from the complainant, which were supplied by the complainant to OP's surveyor and there is correspondence to this effect on the record, vide Ex.C-6. The fact of eruption of fire is undisputed and the fact of sufferance of loss by the complainant to the building, which was insured with OPs is an admitted fact.
10. The bone of contention arose between the parties on the point that the OPs relied upon final survey and assessment report submitted by Sanjay Dwivedi & Associates, vide Ex.O-2 on the record. As submitted by the surveyor in the above report; the loss was assessed as Rs.1201964/- being net payable. The submission of the OPs is that the report of surveyor is a valuable piece of evidence and has to be given due weightage in this case. On the other hand, argument of the complainant before us is that the surveyor report is not a gospel truth and if there is any evidence on the record to disprove or rebut it; then it can be discarded by the Consumer Forum. We find that generally, report of surveyor carries weightage, but if there is, substance on the record to the contrary; then it could be de departed from. The complainant/firm has written various correspondences to OPs for settlement of their claim, but delay has been allegedly made by the OPs on account of submission of report by the surveyor. The argument of counsel for OPs is that delay took place on account of fault of the complainant only because documents were not supplied from to time by the complainant to the OPs.
11. We examined the sanctioned estimate Ex.C-4 submitted by the complainant and detail of measurements carried out by Orbitech Design India Ex.C-4/A, which has to be relied upon by us and report of surveyor Ex.O-2 to determine the loss suffered by the complainant. From perusal of the report of surveyor, with the able assistance of counsel for parties, we find that the complainant submitted estimate regarding the loss to the building. The building was covered to the extent of Rs.2 crore, vide copy of insurance policy Ex.C-1, on the record. In Ex.C-4, the complainant/firm submitted at point no.6 - Providing and fixing wooden partition teak wood/good cedar wood of the amount of Rs.3,50,262.00. The complainant also demanded at point no.7 in Ex.C-4, the amounts of Rs.3,49,601/- and Rs.68,834/- for providing and fixing wooden doors, windows, ventilators and partitions with good teak wood moulding and beading with float glass 6.0 mm thickness with toughened glass 12.0 mm thickness, at point 8, the complainant claimed Rs.7,86,547/- for providing and fixing wooden railing on staircase in Ex.C-4 on the record, at point 37, the complainant claimed the amount of Rs.6,69,590/- for furniture, fittings and office equipments. The above-referred amounts have been wrongly shown to be a part of building of the complainant in the estimate Ex.C-4, as submitted by the OPs. In fact, anything, which is permanently fixed with the building, would be the part of the building only. We, thus, find that complainant wrongly claimed the total amount of Rs. 29,58,785.63 being part of the building in the estimate Ex.C-4, which is actually not the part of building and is also not fixed with the building. Ex.C-4/X is the measurements submitted by Orbitech Design India Architects Engineers Interior Designers by deducting the amount of Rs.29,58,785.63 out of the claimed amount of Rs.72,86,972.01 by the complainant. The estimate showing loss to the complainant is Rs.43,28,186/- only. The complainant has already received the amount of Rs.12,01,072/-, as settled by the surveyor in his survey report Ex.O-1 and Ex.O-4. This amount is shown to be part of building and as such loss comes to Rs.31,28,186.00. The surveyor in his report Ex.O-1 and Ex.O-2 admitted that insured is a partnership firm and it maintained the proper accounts books, as required by law. In the head Summary of Assessment at point 20.0, it is recorded that building/share is 54.79%, which is now taken to be 55%. The Surveyor has not taken into account the estimate as submitted by the complainant to the extent of Rs.43,28,186.00 (Rs.72,86,972 minus Rs.29,58,785 = 43,28,186.00) in the survey report Ex.O-1 and Ex.O-2. In summary of survey report; the gross loss of building is Rs.13,93,506/- and depreciation is of Rs.3,06,659/- and total loss is Rs. 10,87,247/- and less salvage of Rs.18,078/- and, thus, net loss of building is Rs.10,69,169/- and their share is 45.79% of the insurance cover. We, thus, conclude that the complainant suffered the loss to the extent of Rs.43,28,186.00 and share in the building of the insured amount is 54.79% only, which comes to Rs.23,80,400/-. The complainant has already been awarded the amount of Rs.12,01,072/-, vide discharge voucher Ex.O-3. By deducting the amount of Rs.12,01,072/- out of the amount of Rs.23,80,400/-, as determined by us, the remaining amount is of Rs.11,79,328/- only. The complainant is held entitled to further balance amount of compensation of Rs.11,79,328/- only.
12. In view of our above discussion, we accept the complaint of the complainant/firm and it is held entitled to the balance amount of Rs.11,79,328/- from OPs no.1 to 3 along with interest @ 9% from the date of loss till its actual payment. We also award costs of ligation of Rs.25,000/- to the complainant. It is made clear in this order that the liability shall be of New India Assurance Company only and not of ICICI Lombard. The compliance of the order be made by New India Assurance Company/OPs no.1 to 3 within 45 days from receipt of copy of this order.
13. Arguments in this complaint were heard on 11.01.2016 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 January 19, 2015.
(ravi)