Haryana

StateCommission

A/649/2014

UIIC - Complainant(s)

Versus

Aggrawal Oil Mills - Opp.Party(s)

P S Saini

21 Oct 2016

ORDER

 

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

 

                                                         First Appeal No.649 of 2014  

Date of Institution: 24.07.2014

                                                               Date of Decision: 21.10.2016

 

United India Insurance Company Limited, Regional Office SCO No.123-124, Sector 17-B Chandigarh, through its duly constituted Attorney Smt.Sunita Sharma, Dy. Manager.

…..Appellant

Versus

 

M/s Aggarwal Oil Mills, Jind Road, Hansi, through Sh.Purshottam Dass S/o Shri Balu Ram Rayal Partner R/o Arya Samaj Road, Hansi.

                                      …..Respondent

 

CORAM:             Mr. R.K.Bishnoi, Judicial Member.

                             Mrs. Urvashi Agnihotri, Member.                                                                                                                                        

Present:              Shri P.S.Saini, Advocate counsel for the appellant.

Shri Neeraj Gupta, Advocate counsel for the respondent.

                                                   O R D E R

R.K.BISHNOI, JUDICIAL MEMBER:

          It was alleged by the complainant that he obtained fire peril policy from the opposite party (O.P.) for Rs.35,00,000/-.  On 04.07.2009 fire broke out in factory premises at 12.45 p.m. and the insured goods worth Rs.21,00,993/- were damaged.  In view of the salvage value recovered from the stocks burnt, he assessed loss to the tune of Rs.18,69,993/- which is as under:-

 

“a	Loss of cottonseed totally Burnt & destroid 1288.77 at.(@) 1084.39	1396987.00
B	Loss of Khal totally burnt & destroid 52.85 qt.@ 840/-	44394.00
C	Loss of oil totally burnt and destroid 74.09 Qt. @ 4100/-	303769.00
D	Loss of Bardana burnt & destroid 7577 Nos. @ 9/-	68193.00
E	Labour charges for removing & drying up of water effected stocks	25000.00
F	Fire fighting chages by our own staff and removal burnt stocks and clearin etc.	15000
G	Fire Brigade charges as per receipts submitted	16650.00
	Total Rs.	1869993.00”

 

Instead of accepting that claim O.P. assessed loss to the tune of Rs.5,58,241/- without any reason.

2.      O.P. filed joint reply controverting his averments and alleged that the loss has been assessed as per preliminary report of Sh.S.P.Goyal and final surveyor report of M/s P.K.Garg Associates ( In short “Garg Associates”) approved surveyors. Garg Associates wrote letters dated 06.07.2004, 23.07.2004, 27.07.2004, 02.08.2004, 14.08.2004, 23.08.2004, 18.09.2004 and 27.10.2004 to complainant to submit the requisite documents, but, to no avail.  Ultimately loss was assessed to the tune of Rs.5,58,281/- which was not accepted by complainant.   He refused to receive that amount and insisted to pay Rs.18,69,993/-.  As statement of account regarding sale and purchase and bank statement were not correct, so they were not  taken into consideration in surveyor report prepared by M/s P.K.Garg Associates.

3.      After hearing both the parties, learned District Consumer Disputes Redressal Forum, Sirsa (In short “District Forum”) allowed the complaint vide order dated 10.06.2014 and directed as under:-

“Resultantly, the complaint is hereby allowed  with a direction to the opposite parties, to pay a sum of Rs.18,69,993/- to the complainant, with interest @ 9% per annum from the date of incident i.e. 04.07.2004 till payment minus Rs.5,50,240/- which have already been paid to him. the complainant is also hereby awarded Rs.20,000/- for his harassment, mental agony etc. and litigation expenses of Rs.5500/- against the opposite parties.”

4.      Feeling aggrieved therefrom O.P has preferred this appeal

5.      Arguments heard.  File perused.

6.      Learned counsel for the appellant vehemently argued that  S.P.Goyal surveyor visited the spot on 04.07.2004 and submitted his preliminary report on 14.07.2004. Garg Associates visited the spot on 05.07.2014 and submitted final report dated  08.01.2005. S.P.Goyal only gave preliminary report whereas  Garg Associates submitted final report.  Why Garg Associates disagreed with report of S.P.Goyal is clearly mentioned therein. Report of B.D.Singh , Sr.Civil Engineer cannot be relied upon because that was submitted after three years of the incident and chartered accountant submitted his report after one year.  It was not possible for them to have the first hand knowledge of the incident.  Learned District forum failed to take into consideration this aspect and wrongly granted compensation as mentioned above.  At the most complainant can be awarded compensation to the tune of Rs.5,58,281/-  as mentioned  in Garg Associates report. Report of surveyor cannot be brushed aside without any sound reason.

7.      On the other hand learned counsel for the complainant vehemently argued that as per opinion of Hon’ble Supreme court expressed in Sri Venkateshwara Syndicate Vs. Oriental Insurance Company Ltd. and Anr.  2009 (3) CPC 281 without reasonable cause second surveyor cannot be appointed.  There was no reason for the O.Ps. to appoint Garg Associates as surveyor when S.P.Goyal was appointed.  Garg Associates wrongly mentioned in report dated 08.01.2005 that bags, as alleged by complainant and mentioned in report of S.P.Goyal, could not be stored in the area measuring 50’ x 35’ x 8’. As per report of B.D.Singh, Civil Engineer the area was 17,900 cubic feet and 5100 bags of cotton seed  were stored but actually there were 2576 bags. There is no reason to disbelieve his report. Chartered accountant K.K.Bansal has prepared the audit report  vide which complainant turnover was more than Rs.Two crores. As per stock statement of bank, goods of much higher value were lying in the effected premises.  Learned District Forum has rightly assessed the compensation, so the appeal be dismissed. 

8.      As far as the question of appointment of Garg Associates to assess the loss is concerned it cannot be opined that appellant was not authorized to appoint that because S.P.Goyal surveyor only submitted preliminary report. Had he submitted final report then it could have been a different matter. In Sri Venkateshwara Syndicate Vs. OIC and Anr. case (Supra) Hon’ble Supreme court has discussed appoint of regular surveyor after one and another. In that case two surveyors submitted their reports and thereafter insurance company again deputed third surveyor to assess the loss, whereas it is not so in the present case.  

9.      Main bone of contention in the present case is about the bags which could be stored in the premises. It is not disputed by either of the parties that the wooden platform was 55x35 feet. Garg Associates presumed that 50% of that area was used as working space and passage.  Garg Associates have not given the details on the basis of which this presumption can be drawn.  A person will try to use each and every inch of the area. So it can be safely presumed that presumption about 50% is on higher side. Working space and passage area can be considered 25%. Garg Associates have taken the height of 8 feet for storage, whereas after considering height of platform to the extent of 10 feet. The remaining height was eight feet.  As already mentioned above nobody would like to leave three feet space vacant because less stock will be exhausted very soon and one has to again bring the material. So the height of  area for storage can be presumed to be seven feet instead of 05 feet because one feet space must be required for placing and taking bags. 

10.    Normally size of bag is 25” x 41” and it cannot be presumed that one bag will consume 8-9 cubic feet. Presumption drawn by Garg Associates seems to be on higher side.  If we take into consideration all these aspects then it can be safely presumed that  cotton seed more than 220 quintals were stored, but, S.P.Goyal stated in his preliminary report that loss of cotton seed of 1763.27 quintal. There is also difference in between the bags mentioned by Garg Associates in his observation i.e. 2387 bags and the claim lodged by complainant i.e. 1763 bags. If he calculated the capacity  to store as discussed above, it can be presumed that 650 qtl. cotton seeds could be stored. In this way total price of 650 qtl. cotton seeds comes to Rs. 650x 920=5,98,000/- but, Garg Associates assessed loss to the tune of Rs.2,02,400/- whereas  S.P. Goyal assessed the loss to the tune of Rs.9,60,250/-. The loss assessed by  Garg Associates  about cotton seed, bardana, oil seems to be proper. So if we modified the loss assessed, it comes to Rs.5,58,240- 2,02,400/-= 2,98,000/- total can be presumed equal to Rs.10,00,000/- lacs. Further, chartered accountant is not the person who is to assess the loss. He can only give calculation as per documents. Even otherwise he submitted his report after one year as mentioned above. R.P.Singh submitted his report after three years of incident. So no reliance can be placed on the same.  Learned District Forum fell into error by relying upon the report of R.P.Singh.  So impugned order dated cannot be sustained.  In view of our above discussion, the complainant is awarded Rs.10,00,000/- as lumpsum.

11.    With the above modification, appeal stands disposed off.

12.    The statutory amount of Rs.25,000/- deposited at the time of filing of the appeal be refunded to the appellant against proper receipt and identification.

 

October 21st, 2016     Urvashi Agnihotri                                R.K.Bishnoi,                                                               Member                                              Judicial Member                                                         Addl. Bench                                        Addl.Bench                

S.K.