State Consumer Disputes Redressal Commission
M/S Innova Captab. vs National Insurance Co. Ltd. & Ors. on 10 January, 2019
H. P. STATE CONSUMER DISPUTES REDRESSAL
COMMISSION SHIMLA
Consumer Complaint No.: 13/2017
Date of Presentation: 27.07.2017
Order Reserved On : 18.09.2018
Date of Order: 10.01.2019
......
M/s. Innova Captab a partnership firm through its Manager
Accounts (A/C) and Authorized Officer Shri Mukesh Kumar
Singh Factory at Plot No.81-E EPIP Phase-I Jharmajri District
Solan H.P.
...... Complainant
Versus
1. The National Insurance Company Limited DO-I SCO 133-
135 Sector 17-C Chandigarh.
2. The National Insurance Company Limited 3 Middleton
Street Post Box No.9229 Kolkata-700071 through its
Managing Director.
3. M/s. N. Kumar Surveyors Pvt. Ltd. SCO 1094-95 Sector
22B Chandigarh through its proprietor.
...... Opposite parties
Coram
Hon'ble Justice P.S. Rana (R) President
Hon'ble Mr. Vijay Pal Khachi Member
Whether approved for reporting?1 Yes.
For Complainant : Mr. Pradeep Sharma Advocate
vice Mr. Gaurav Sharma Advocate
For Opposite Parties No.1&2: Mr. Deepak Bhasin Advocate.
For Opposite Party No. 3 :Ex-parte.
JUSTICE P.S. RANA (R) PRESIDENT:
O R D E R :-
1. Present consumer complaint is filed under Section 17 of Consumer Protection Act 1986 pleaded therein 1 Whether reporters of the local papers may be allowed to see the order? Yes.
M/s. Innova Captab Versus National Insurance Co. Ltd. & Ors. (C.C. No.13/2017) that complainant firm took a burglary insurance policy from opposite parties No.1 and 2 which was operative w.e.f. 17.10.2011 to 16.10.2012. It is pleaded that policy was obtained for a sum of Rs.70000000/- (Seven crore). It is further pleaded that as per insurance policy stock risk was covered. It is further pleaded that factory of complainant firm was closed w.e.f. 25.10.2011 to 30.10.2011 for Diwali vacations. It is further pleaded that when factory was opened after vacations it was found that glass of raw material door was broken and raw material was stolen. It is further pleaded that FIR No.89/2011 was filed on dated 31.10.2011 at Police Station Barotiwala District Solan H.P. under Section 457/380/34 IPC. It is further pleaded that opposite parties No.1 and 2 appointed surveyor-cum-loss assessor. It is further pleaded that surveyor-cum-loss assessor did not assess the factual loss. It is further pleaded that insurance company committed deficiency in service. Complainant sought relief of payment of Rs.1356527/- (Thirteen lac fifty six thousand five hundred twenty seven) with interest @12% w.e.f. 26.10.2011 till date. In addition complainant sought compensation for harassment to the tune of Rs.150000/- (One lac fifty thousand). In addition complainant also sought relief of payment of litigation costs to the tune of Rs.100000/- (One lac). Prayer for acceptance of consumer complaint sought.
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M/s. Innova Captab Versus National Insurance Co. Ltd. & Ors. (C.C. No.13/2017)
2. Per contra version filed on behalf of opposite parties No.1&2 pleaded therein that relief of complainant is barred under Section 69(2) of the Partnership Act. It is pleaded that complaint is barred by time. It is further pleaded that cause of action accrued on dated 28.04.2015 and complaint was instituted in July 2017 after expiry of limitation. It is further pleaded that complainant is estopped from filing the present complaint due to its own act, deed, conduct and acquiescence. It is further pleaded that activity of the complainant firm is commercial activity and complainant does not fall within the definition of consumers. It is further pleaded that complainant has no cause of action against the opposite parties and dispute is of civil nature. It is further pleaded that H.P. State Consumer Commission has no territorial jurisdiction because repudiation letter was issued from Chandigarh. It is further pleaded that complainant violated the terms and conditions of the insurance policy. It is further pleaded that opposite parties did not commit any deficiency in service. Prayer for dismissal of consumer complaint sought.
3. Complainant filed rejoinder and reasserted the allegations mentioned in the complaint.
4. It is proved on record that initially consumer complaint was filed before District Forum-II U.T. Chandigarh 3 M/s. Innova Captab Versus National Insurance Co. Ltd. & Ors. (C.C. No.13/2017) vide Consumer Complaint No. 211 of 2017. On dated 14.03.2017 District Forum Chandigarh dismissed the complaint as withdrawn. Learned District Forum Chandigarh further ordered that complainant would be at liberty to file a fresh complaint on the same cause of action before appropriate authority, Court, Forum and Commission having pecuniary jurisdiction as per Law. It is proved on record that thereafter complainant filed Consumer Complaint No.1134 of 2017 before Hon'ble National Consumer Commission. Hon'ble National Consumer Commission ordered that complaint falls within the pecuniary jurisdiction of State Commission and directed the registry to return the complaint to complainant for filing the same before State Commission Himachal Pradesh. It is proved on record that thereafter complainant filed Review Petition No.109 of 2017 before Hon'ble National Consumer Commission and same was disposed of on dated 04.07.2017 and Hon'ble National Consumer Commission held that there was no error apparent on the face of record which call for review of order and application of review was dismissed. Thereafter complainant filed the present consumer complaint before H.P. State Consumer Commission on dated 27.07.2017.
5. We have heard learned advocates appearing on behalf of complainant and opposite party No.1&2 and we have 4 M/s. Innova Captab Versus National Insurance Co. Ltd. & Ors. (C.C. No.13/2017) also perused entire record carefully. Opposite party No.3 was proceeded ex-parte by State Commission.
6. Following points arise for determination in the present complaint:
1. Whether consumer complaint filed by complainant is liable to be accepted as mentioned in memorandum of grounds of consumer complaint?
2. Final order.
Findings upon point No.1 with reasons:
7. Complainant filed affidavit of Mukesh Kumar Singh Ex.C-1 in evidence. There is recital in the affidavit that complainant is a partnership firm having three partners namely Mr. Manoj Kumar Lahoriwala, Mr. Vinay Kumar Lahoriwala and Mr. Gian Prakash Aggarwal. There is further recital in the affidavit that partners are engaged in the pharmaceutical business of manufacturing medicines from raw materials for the purpose of earning their livelihood in the name and style of M/s. Innova Captab. There is further recital in the affidavit that complainant firm took burglary insurance policy from opposite parties No.1 and 2 which was operative w.e.f. 17.10.2011 to 16.10.2012. There is further recital in the affidavit that policy was obtained for a sum of Rs.70000000/- (Seven crore). There is further recital in the affidavit that 5 M/s. Innova Captab Versus National Insurance Co. Ltd. & Ors. (C.C. No.13/2017) factory of complainant firm was closed w.e.f. 25.10.2011 to 30.10.2011 for Diwali vacations. There is further recital in the affidavit that on 31.10.2011 when factory was opened after vacations it was found that glass of raw material door was broken and raw material was stolen. There is further recital in the affidavit that FIR No.89/211 was filed on dated 31.10.2011 at Police Station Barotiwala District Solan H.P. under Section 457/380/34 IPC. There is further recital in the affidavit that incident was also reported to the insurance company. There is further recital in the affidavit that opposite parties No.1 and 2 appointed surveyor-cum-loss assessor. There is further recital in the affidavit that surveyor-cum-loss assessor did not assess the factual loss sustained by the complainant firm. There is further recital in the affidavit that insurance company repudiated the insurance claim in illegal manner and committed deficiency in service. State Commission has carefully perused all annexures filed by complainant alongwith complaint.
8. Opposite parties No.1 & 2 filed affidavit of Narender Negi AO Legal Ex.OP1&2 - 1 in evidence. There is recital in the affidavit that claim of complainant is barred under Section 69(2) of the Partnership Act. There is further recital in the affidavit that present complaint is barred under Section 24A of the Consumer Protection Act 1986. There is 6 M/s. Innova Captab Versus National Insurance Co. Ltd. & Ors. (C.C. No.13/2017) further recital in the affidavit that complaint was not filed within two years from cause of action. There is further recital in the affidavit that complainant is estopped from filing the present complaint due to its own act, deed, conduct and acquiescence. There is further recital in the affidavit that activity of complainant firm is commercial in nature and complainant does not fall within the definition of consumer. There is further recital in the affidavit that dispute is of civil nature and complainant be relegated to civil court. There is further recital in the affidavit that complainant has no cause of action. There is further recital in the affidavit that H.P. State Consumer Commission has no territorial jurisdiction to entertain and dispose of the consumer complaint. There is further recital in the affidavit that complainant has violated conditions No.2, 3 and 9 of the insurance policy.
9. Opposite parties No.1 & 2 filed affidavit of Ashok Mahajan Director M/s. N. Kumar insurance surveyor & loss assessor Ex.OP1&2 - 2 in evidence. There is recital in the affidavit that deponent is approved surveyor-cum-loss assessor. There is further recital in the affidavit that deponent carried survey and assessed the loss at Rs.1162574/- (Eleven lac sixty two thousand five hundred seventy four) which was adjusted to Rs.1090458/- (Ten lac ninety thousand four hundred fifty eight) on account of under 7 M/s. Innova Captab Versus National Insurance Co. Ltd. & Ors. (C.C. No.13/2017) insurance and same was recommended for consideration. There is further recital in the affidavit that thereafter insurance company asked the deponent to further examine the matter. There is further recital in the affidavit that thereafter after examining the matter under Section 173 Cr.P.C. there was recovery of 11 Kg 815 gms of raw-material. There is further recital in the affidavit that raw-material was almost the same so deponent concluded that there was no loss and submitted report that insurance company is not liable. There is further recital in the affidavit that insured has violated the conditions No.2, 3 and 9 of the insurance policy.
10. Opposite parties No.1 & 2 filed affidavit of Shri R.N. Sharma Retired Superintendent of Police and approved Investigator of General Insurance Corp. of India Ex.OP1&2 - 3 in evidence. There is recital in the affidavit that deponent carried out the investigation and concluded that most of the raw material of pharmaceutical has been recovered and till date insured has not obtained the same on superdari.
11. Submission of learned advocate appearing on behalf of complainant that complainant is entitled for sum of Rs.1356527/- (Thirteen lac fifty six thousand five hundred twenty seven) alongwith interest @12% w.e.f. 26.10.2011 and on this ground complaint be allowed is decided accordingly. It is proved on record that insurance company appointed 8 M/s. Innova Captab Versus National Insurance Co. Ltd. & Ors. (C.C. No.13/2017) surveyor-cum-loss assessor namely M/s. N. Kumar and M/s. N. Kumar has assessed the loss to the tune of Rs.1090458/- (Ten lac ninety thousand four hundred fifty eight). Complainant did not file any counter loss assessment report. Report submitted by M/s. N. Kumar relating to loss sustained by complainant firm remained unrebutted on record. M/s. N. Kumar is licence holder surveyor-cum-loss assessor under SLA. It is well settled law that report of surveyor-cum-loss assessor is substantial piece of evidence and should not be brushed aside unless contrary is proved. See 2012 (1) CPJ 420 NC H.C. Saxena Versus New India Assurance Co. Ltd. See 2012 (4) CPJ 103 NC National Insurance Co. Ltd. Versus Jyothi Tobacco Traders. See 2009 (3) CPJ 194 NC Nand Kishore Jaiswal Versus National Insurance Co. Ltd. See 2009 (1) CPC 166 NC Pradeep Kumar Versus National Insurance Co. Ltd. See 2010 (3) CPJ 401 NC New India Assurance Co. Ltd. Versus Pushpa Chhabra. See 2010 (1) CPC 696 NC Champa Lal Versus Oriental Insurance Company. State Commission is of the opinion that insurance company could not be allowed to disbelieve the report of its own surveyor- cum-loss assessor appointed by insurance company qua loss sustained by complainant firm.
12. It is proved on record that initially M/s. N. Kumar submitted loss assessment report on dated 13.01.2012 and 9 M/s. Innova Captab Versus National Insurance Co. Ltd. & Ors. (C.C. No.13/2017) thereafter subsequent report was submitted by M/s.N. Kumar on dated 30.03.2015 and in subsequent report it is submitted that complainant violated the conditions No.2, 3 and 9 of the insurance policy and it was further submitted that 11 kg 815 gms of raw-material was recovered and same was not got released by the complainant. State Commission is of the opinion that it is not expedient in the ends of justice and on the principles of natural justice to believe the subsequent report submitted by M/s. N. Kumar through its Director Ashok Mahajan. State Commission is of the opinion that subsequent report is afterthought report submitted by surveyor-cum-loss assessor. See 2000 (10) SCC 19 United India Insurance Company Ltd. Versus Roshal Lal Oil Mills Ltd.
13. Even in the present matter it is proved on record that National Insurance Co. has been impleaded through its Managing Director. No personal affidavit filed on behalf of Managing Director of insurance company. Affidavit was filed by Shri Narender Negi AO Legal. Shri Narender Negi AO Legal is not co-party in the present consumer complaint. No reason assigned by the insurance company as to why personal affidavit of Managing Director not filed. Hence adverse inference is drawn against the insurance company for non- filing affidavit of co-party i.e. Managing Director of insurance 10 M/s. Innova Captab Versus National Insurance Co. Ltd. & Ors. (C.C. No.13/2017) company. See AIR 1999 SC 1441 Vidyadhar Versus Mankik Rao & Anr. See 1999 Apex Court 1341 Ishwar Bhai C. Patel Versus Harihar Bahera. See AIR 1971 Allahabad 29 DB Arjun Singh Versus Virendra Nath & Anr. It is well settled law that proceedings under Consumer Protection Act 1986 are quasi- judicial proceedings. See 2018 (2) CPJ 89 Calcutta M/s. Keso Ram Industries Limited Versus Allahabad Bank. See 1996 (2) CPC 524 Madras H.C. Manager Indian Bank & Ors. Versus District Consumer Disputes Redressal Forum. State Commission is of the opinion that it is not expedient in the ends of justice and on the principles of natural justice to treat the affidavit of Narender Negi AO Legal as personal affidavit of Managing Director because AO Legal is not co-party in the present consumer complaint. It is well settled law that power of attorney holder is not entitled to appear as witness for party appointing him because word act does not mean to appear as witness on behalf of party. See AIR 1998 Rajasthan 185 titled Ram Prasad Versus Hari Narain & Ors.
14. Submission of learned advocate appearing on behalf of complainant that complainant is legally entitled for compensation to the tune of Rs.150000/- (One lac fifty thousand) on account of mental harassment and agony and on this ground complaint be allowed is decided accordingly. State commission is of the opinion that complainant is legally 11 M/s. Innova Captab Versus National Insurance Co. Ltd. & Ors. (C.C. No.13/2017) entitled for the reasonable compensation for mental harassment and agony and it is also held that complainant has claimed excessive harassment costs.
15. Submission of learned advocate appearing on behalf of complainant that complainant is legally entitled for litigation costs to the tune of Rs.100000/- (One lac) is decided accordingly. State Commission is of the opinion that complainant has engaged advocate before Consumer Commission. Complainant did not place on record advocate fees receipt. It is held that litigation costs claimed by complainant is excessive in nature. State Commission is of the opinion that complainant is legally entitled for reasonable litigation costs from opposite parties.
16. Submission of learned advocate appearing on behalf of insurance company that consumer complaint filed by complainant is barred under Section 69(2) of the Partnership Act and on this ground complaint be dismissed is decided accordingly. State Commission is of the opinion that remedy under Consumer Protection Act 1986 is additional remedy not in derogation of any other law as per Section 3 of Consumer Protection Act 1986. It is held that in view of Section 3 of the Consumer Protection Act 1986 consumer complaint filed by complainant is maintainable. 12
M/s. Innova Captab Versus National Insurance Co. Ltd. & Ors. (C.C. No.13/2017)
17. Submission of learned advocate appearing on behalf of insurance company that complainant has sustained loss for commercial activity and insurance company is not legally liable to indemnify the complainant and on this ground complaint be dismissed is decided accordingly. State Commission has carefully perused the insurance policy. Insurance company has issued the insurance policy for sum of Rs.70000000/- (Seven crore). Insurance company received the premium to the tune of Rs.6895/- (Six thousand eight hundred ninety five) and as per description of items covered under the insurance policy are stock of all kinds of drugs and other related items of the insured trade business unit lying or kept or stored. In view of the fact that insurance company has covered the stock of all kinds under the insurance policy after receiving the premium amount it is held that insurance company could not be exonerated from liability. Even as per Section 2(o) of the Consumer Protection Act 1986 any service rendered by insurance company falls within the Consumer Protection Act 1986. Hence it is held that present consumer complaint falls within section 2(o) of Consumer Protection Act 1986.
18. Submission of learned advocate appearing on behalf of insurance company that H.P. State Consumer Commission has no territorial jurisdiction to dispose of 13 M/s. Innova Captab Versus National Insurance Co. Ltd. & Ors. (C.C. No.13/2017) consumer complaint and on this ground complaint be dismissed is decided accordingly. It is proved on record that Hon'ble National Consumer Commission has specifically ordered in Consumer Complaint No.1134 of 2017 on dated 12.05.2017 that complaint be returned to complainant for filing the same before H.P. State Consumer Commission. In view of direction given by Hon'ble National Consumer Commission cited supra it is held that State Commission has territorial jurisdiction to entertain and dispose of consumer complaint. It is well settled law that direction of Hon'ble National Consumer Commission is binding upon all State Consumer Commissions.
19. Submission of learned advocate appearing on behalf of insurance company that present consumer complaint is not within limitation and on this ground complaint be dismissed is decided accordingly. It is proved on record that initially consumer complaint was filed before District Forum Chandigarh and thereafter consumer complaint was filed before Hon'ble National Consumer Commission and thereafter review petition was also filed before H.P. State Consumer Commission which was disposed of on dated 04.07.2017. It is held that complainant has agitated the matter before District Forum and Hon'ble National Consumer Commission till 04.07.2017. It is held 14 M/s. Innova Captab Versus National Insurance Co. Ltd. & Ors. (C.C. No.13/2017) that complainant has continuously agitated matter before other District Forums and Hon'ble National Consumer Commission till 04.07.2017 and it is not expedient in the ends of justice to dismiss consumer complaint on the point of limitation. Present consumer complaint was filed before H.P. State Consumer Commission on dated 27.07.2017.
20. Submission of learned advocate appearing on behalf of insurance company that complainant did not receive raw-material of 11 kgs 815 gms on superdari even after recovery by investigating agency and on this ground complaint be dismissed is decided accordingly. Complainant has specifically mentioned in the complaint that raw material was to be kept in controlled temperature not less than 15 degrees Celsius and not more than 25 degrees Celsius. It is proved on record that raw material of 11 kgs 815 gms was stolen and was exposed to open temperature and thereafter raw material diminished its basic nature and was eroded. Same fact is proved from the report of Auriga Research Ltd. annexure C-13 placed on record. It is held that in view of above stated facts it is not expedient in the ends of justice to dismiss the consumer complaint filed by complainant.
21. Submission of learned advocate appearing on behalf of insurance company that complainant has violated conditions No.2, 3 & 9 of the insurance policy and on this ground complaint be dismissed is decided accordingly. There 15 M/s. Innova Captab Versus National Insurance Co. Ltd. & Ors. (C.C. No.13/2017) is no evidence on record in order to prove that conditions No.2, 3 & 9 of insurance policy were explained to the complainant in its own vernacular language. See 2007 (3) CPJ 34 NC National Insurance Co. Ltd. Versus D.P. Jain. In view of above stated facts it is held that insurance company could not be allowed to take benefit of its own laxity and inaction.
22. Submission of learned advocate appearing on behalf of insurance company that complicated facts are involved in the present consumer complaint and complainant be relegated to Civil Court for adjudication of dispute is decided accordingly. State Commission is of the opinion that present matter could be settled inter se parties in summary manner under Consumer Protection Act 1986 and it is not expedient in the ends of justice to relegate complainant to Civil Court. Point No.1 is decided accordingly. Point No.2: Final Order
23. In view of findings upon point No.1 above complaint is partly allowed. It is ordered that opposite parties No.1 & 2 jointly and severally shall pay Rs. 1090458/-(Ten lac ninety thousand four hundred fifty eight) to the complainant alongwith interest @ 9% per annum from the date of filing consumer complaint before H.P. State Consumer Commission till its realization. In addition it is further ordered that opposite parties No.1 and 2 jointly and severally shall pay amount to the tune of Rs.30000/- (Thirty thousand) for 16 M/s. Innova Captab Versus National Insurance Co. Ltd. & Ors. (C.C. No.13/2017) mental harassment and agony to the complainant. It is further ordered that opposite parties No.1 & 2 jointly and severally shall pay costs of litigation to the tune of Rs.10000/- (Ten thousand) to the complainant.
24. It is further ordered that opposite parties No.1 & 2 shall be legally entitled to the possession of 11 kgs 815 gms of raw-material recovered by investigating agency. It is further ordered that complainant shall execute the subrogation deed in favour of opposite parties No.1 & 2 relating to raw-material of 11 kgs 815 gms within thirty days from the date of receipt of certified copy of order. Complaint against opposite party No.3 is dismissed. Insurance policy annexure R-1, Report of Auriga Research Ltd. Annexure C-13 and loss assessment report of M/s. N. Kumar Annexure C-7 shall form part and parcel of order. Certified copy of order be transmitted to parties forthwith free of costs strictly as per rules. File of State Commission be consigned to record room after due completion forthwith. Consumer Complaint No.13/2017 is disposed of. Pending application(s) if any also disposed of.
Justice P.S. Rana (R) President Vijay Pal Khachi Member 10.01.2019 *GUPTA* 17