State Consumer Disputes Redressal Commission
Sh. Rajendra Singh vs The New India Assurance Co. Ltd. on 15 June, 2007
STATE CONSUMER DISPUTES REDRESSAL COMMISSION UTTARAKHAND STATE CONSUMER DISPUTES REDRESSAL COMMISSION UTTARAKHAND DEHRA DUN FIRST APPEAL NO. 452 / 2004 Sh. Rajendra Singh ......Appellant Versus The New India Assurance Co. Ltd. .....Respondent Sh. Anurag Gupta, Learned Counsel for the Appellant Sh. M.N. Mishra, Learned Counsel for the Respondent Coram: Hon'ble Justice Irshad Hussain, President Surendra Kumar, Member Ms. Luxmi Singh, Member Dated: 15.06.2007 ORDER
(Per:
Justice Irshad Hussain, President):
This is complainant's appeal against the order dated 10.08.2004 passed by the District Consumer Forum, Pithoragarh, partly allowing the consumer complaint No. 09 / 2003 for compensation of Rs. 2,65,015/- with interest @9% to indemnify the loss caused to the complainant on account of destruction of his grocery shop in a fire incident during the currency of insurance. Complainant felt dissatisfied with the quantum of compensation awarded. Insurer has not preferred any appeal against the award.
2. We have heard the learned counsel for the parties and have carefully considered their submissions in the light of the material on record and legal aspects of the case.
3. Complainant purchased shopkeepers' insurance policy for sum of Rs. 8,00,000/- and the validity of the insurance was from 24.06.2001 to 23.06.2002. Complainant was running a grocery shop and kirana and general merchandise goods in the shop were gutted down in the fire which broke out in the night of 31.12.2001/01.01.2002. Complainant laid claim for award of compensation to the tune of Rs. 8,00,000/- with interest in addition to damages for mental agony and suffering. Spot surveyor and later on loss assessor and valuer were appointed by the insurer and per report dated 13.06.2002 of Sh. Prabhat Kumar, net loss of Rs. 1,98,761/- was assessed. The District Forum was of the opinion that deduction of Rs. 66,253.78/- for non-maintenance of the accounts by the surveyor was not justified and, as such, it was held that the loss sustained was Rs. 2,65,015/- and the complaint was accordingly allowed for payment of the said sum to the complainant by the insurer.
4. Learned counsel for the complainant persuasively urged that the District Forum fell in error in not placing reliance upon the value of the stock in the shop as verified by the bank official and also the report of the fire extinguisher officer and wrongly placed reliance on the report of the insurer's surveyor to assess the loss occasioned to the complainant and that the complainant was entitled to be awarded compensation on the basis of the value of the stock verified by the bank official. Complainant has had the cash credit limit of Rs. 4,00,000/- and according to the learned counsel, periodical stock statements were submitted to the bank and the surveyor illegally ignored the value of the stock as shown in the statements and verified by the bank official. On the other hand, learned counsel for the insurer supported the judgment of the District Forum and claimed that the loss assessed by the surveyor was based on fair and objective assessment of all the attending factors, namely, the stock declaration, list of goods provided by the insured, average sale per day, storage capacity of the shop and the income tax assessment order to work out the loss occasioned to the complainant as a result of the fire in the shop and that in the totality of the circumstances of the case, there was absolutely no justification to award higher compensation than justified by the District Forum.
5. In the first instance, it need to be stated that the fire extinguisher officer's report (Paper Nos. 29C/8 to 29C/9 of the original record) gave no criterion at all for assessing the loss to the tune of Rs. 7,00,000/- on inspection of the shop, in which the fire broke out. Therefore, the District Forum was fully justified in ignoring the same for assessing the loss. Stock statement said to have been verified by the bank official on 31.12.2001 (Paper Nos. 29C/10 to 29C/13) has interpolation at many places and the District Forum has rightly not placed reliance on it for want of any affidavit of the bank official. The complainant has also nowhere given as to which of the bank official came to physically verify the stock in his shop as on 31.12.2001, when the stock statement was allegedly signed by the bank official.
6. The veracity of the stock statement also stand assailed on the basis of factual position of the shop and what was actually found there soon after the incident. Spot surveyor Sh. Chandrapal Singh Tomar vide his report dated 20.03.2003 (Paper Nos. 19C/2 to 19C/4) specifically mentioned that the shop was made up of tin shed measuring about 15X12 feet only. Soon after the fire, S.H.O. of the concerned police station has reached at the spot and what was observed was reported thereto and endorsed in G.D. report No. 4 of 3:30 A.M. dated 01.01.2002 (Paper Nos. 19C/5 to 19C/6). In the shop of the complainant Sh. Rajendra Singh Bisht, seven empty kerosene oil drums, one old bajaj scooter, three or four gunny bags of rice and small quantity of other grocery items in burnt condition were found lying there. Almost similar description of the burnt items has been given in the above mentioned report of the fire extinguisher officer. Considering these items having been found in the complainant's shop measuring about 15X12 feet, it was absolutely impossible that large number of grain bags and other grocery items as have been detailed in stock statement referred above, could have also been stored in such a small shop. The complainant in his affidavits has nowhere challenged the size of the shop as has been measured and given out in the report of the spot surveyor as is also the case with regard to the burnt scooter, seven empty kerosene oil drums and other items as referred above with reference to the G.D. and fire extinguisher officer's report. In the face of the factual position of the shop and the items mentioned above, other items, namely, cereals (30 gunny bags), rice (95 full gunny bags and 90 half gunny bags), flour (10 gunny bags), coarse ground floor (3 gunny bags), fine flour (3 gunny bags), sugar (9 gunny bags), mustard oil (35 canisters), bidis (22 bastas), dry cell batteries (6 wooden boxes), electric bulbs (12 wooden boxes), refined oil (15 canisters), another brand of mustard oil (10 canisters) and very large number of other grocery items as detailed in the above mentioned stock statement could not have at all been stored in the shop as on 31.12.2001, prior to the incident of fire. This aspect of the matter indicate that the stock statement clearly appear to be a got up document and the District Forum was fully justified in discarding the same in the matter of assessment of the loss sustained as a result of the fire in the shop.
7. The above conclusion is lent credence to by the fact that record of the sale and purchase had not been maintained by him and this was the reason that not a single duplicate voucher of purchase of huge quantity of cereals etc. could be placed on record by the complainant. Not only this, the bank statement (Paper Nos. 31C/2 to 31C/5) reveal that on almost every occasion, the money had been withdrawn in cash by the complainant and on no occasion, the amount stand debited in the account on the basis of encashment of the cheque to even a single supplier of the goods or items bought for sale by the complainant. It is difficult to believe that a shopkeeper who had allegedly been maintaining a stock of more than Rs. 7,00,000/- in his grocery shop, has had no occasion to purchase the items for the shop through cash memo or through bank transaction, particularly when large quantity of the food grains, cereals and other items were allegedly shown to have been kept ready for customers in the shop. Therefore, we are also left with only one option, that is, to keep out of reckoning the stock statement for actual assessment of the loss. The arguments advanced by the learned counsel for the complainant are thus, not sustainable.
8. From above, it is thus evident that the surveyor and loss assessor Sh. Prabhat Kumar vide his report dated 13.06.2002 had considered the relevant aspect of the matter in proper prospective including the average sale per day and the income earned by the insured for the financial year 2000-2001 to determine the loss sustained and his report being objective and based on definite criterion was fit to be considered reasonably for determination of the compensation payable to the complainant. The surveyor had assessed the gross loss at Rs. 3,07,692/- and from it, deductions for margin of profit, for dead stock and for non-maintenance of accounts were made to work out the net loss. The District Forum did not agree for deduction on account of non-maintenance of accounts only. Considering the totality of the circumstances of the case and since the entire shop was gutted down in the fire, it would have been reasonable if deductions under other two heads were also to be disallowed and the compensation awarded on the basis of gross loss assessed by the surveyor. We are, therefore, of the view that the loss sustained by the complainant as a result of the fire was to the tune of Rs. 3,07,692/-, for which he was entitled to be indemnified by the insurer.
9. In view of above, the appeal succeed partly and is to be allowed accordingly.
10. Appeal is partly allowed. The complainant is held entitled to compensation of Rs. 3,07,692/- instead of Rs. 2,65,015/- with interest @9% p.a. w.e.f. 01.07.2002 till payment. If any payment has already been made, the principal and the interest thereof shall be deducted and the remaining amount be paid to the complainant. Cost of the appeal made easy.
(MS.
LUXMI SINGH) (SURENDRA KUMAR) (JUSTICE IRSHAD HUSSAIN)