1.      Heard Mr. Ashish Varma, Advocate for the appellant and Mr. Hrishikesh Baruah, Advocate for the respondent.

2.      This appeal has been filed from the judgment of Delhi State Consumer Disputes Redressal Commission, dated 22.09.2014 passed in Complaint Case No.339 of 2012, allowing the complaint and directing the appellant to pay Rs.2560747/- along with interest @ 10% per annum from 25.03.2012 till the date of payment as insurance claim and Rs.One lakh as compensation for mental agony and harassment.

3.      The office has reported that the appeal has been filed with the delay of 6 days. The appellant has filed I.A. No. 8015 of 2014, for condoning the delay in filing the appeal. It has been stated that the impugned order was passed on 22.09.2014 and copy of the order was made ready on 26.09.2014 and dispatched by courier ED No.229598016 –IN on 30.09.2014. The appellant received the copy of the impugned order on 06.10.2014. The Regional Manager, RO-II sought opinion from the Advocate who dealt with the case, who gave his opinion vide letter dated 15.10.2014 to challenge the impugned order. Thereafter, the entire case files with the opinion were sent to the Regional Office I.  The matter was forwarded to the Head Office Bombay for approval. From the Head Office file was received on 24.10.2014. Thereafter the papers were handed over to the Advocate to file the said appeal on 26.10.2014. The appeal was filed on 11.11.2014. Cause shown is sufficient. Delay in filing the appeal is condoned.

4.      Alankar Slimming & Cosmetic Clinic Pvt. Ltd. (the respondent) filed CC/339/2012 for directing the New India Assurance Company Ltd.(the appellant) to pay (i) Rs.3199636/- along with interest @ 18% per annum as the insurance claim; (ii) to pay Rs.500000/- as compensation for mental agony and harassment; (iii) Rs.55000/- as cost of litigation and (iv) any other relief which is deemed fit and proper, in the facts and circumstances of the case.

5.      The facts, as stated in the complaint and emerged from the documents filed along with it, were as follows:

(a) The complainant (the Insured) was a company registered under the Companies Act, 1956 and engaged in the business of providing service of health/ beauty/fitness centre in different part of the country, in the brand name of “VIBES”. The Insured opened a health centre at ground floor, of the building 7/29- B, Ratan Castle, Tilak Nagar, Kanpur, UP, in the year 2007. In the health centre the Insured installed following machineries:

(b).    The Insured obtained Standard Fire and Special Perils policy No.32300/11/9/110000286 for a sum of Rs.5300000/- on its plant, machineries, accessories and consumables for a period of 26.05.2009 to 25.05.2010 from New India Assurance Company Ltd. (the Insurer). In the night of 24/25.12.2009, the fire broke out at the ground floor of the building due to electric short circuit. The fire was first noticed on 25.12.2009 at 1:00 hours by the security guard of the building. The security guard immediately informed the incident to Miss Arina Dhawan, the Manager of the centre, who was residing at Flat No.703 in the same locality in Chitrakoot Apartment. Miss Arina Dhawan informed Mr. Nitin Jain, the Director of the Insured on telephone. The local police immediately reached on the spot, who informed the Fire Service Station from where several fire tenders were deputed on the spot, who could control the fire at around 4:00 hours on 25.12.2009.

(c).    The Insured informed the Insurer about the fire incident and consequent damages to plant, machineries, accessories and consumables. The Insurer appointed R.C. Bajpai, Triveni Nagar, Cantt Kanpur as the surveyor for survey and assessment of the loss, on 25.12.2009. The surveyor inspected the premises on 25.12.2009 at 11:00 am and thereafter of subsequent dates. The Insured initially informed that the equipment worth Rs.5241470/- were damaged at the centre due to fire. Subsequently the claim of Rs.3640465/- was submitted. The surveyor demanded various papers for assessment of the loss, which were supplied by the Insured on 14.01.2010.

(d) The surveyor made inquiries in respect of the machineries from its supplier/distributer namely, M/s. KLB Instruments Company Ltd. and M/s. Perfect Marketing. The Insured closed the centre at Kanpur after fire incident. The Insured requested the surveyor to permit him to shift the machinery, fixtures and furniture from the building Ratan Castle to New Delhi, which was permitted on 25.03.2010. The surveyor thereafter asked the Insured to revise the estimate of repairs, after shifting equipment to Delhi as such revised estimates were filed before the surveyor vide letters dated 27.05.2010, 28.05.2010 and 29.05.2010. After revising the estimate, the insurance claim remained for Rs.3199636/-. It may be mentioned that the equipment worth Rs.1016000/- were completely burnt and equipment worth Rs.200000/- were not repairable.

(e) Although the required papers were submitted to the surveyor till May 2010, but the surveyor delayed his survey report, which was submitted by the surveyor on 29.07.2010, without supplying its copy to the Insured. The surveyor, in his report dated 29.07.2010, observed that the supplier M/s. A.S. Marketing and Perfect Sales did not exist on the given address and were bogus entities. The surveyor further observed that fire affected premises was seized by Administration up to 24.03.2010, as such no inspection of the premises was possible as the illegal activities were run in a residential building.

(f)      The observations of the surveyors were incorrect. As soon as the Insured was informed by the surveyor that the letter sent to Perfect Sales has been returned back as un-served, the Insured contacted Perfect Sales, who informed that in response of the letter of surveyor dated 26.04.2010, copies of invoices were sent to him along with letter dated 12.07.2010. Perfect Sales again sent the copies of the invoices to the Insured vide letter dated 08.11.2010. Similarly M/s. A.S. Marketing also informed that letter of surveyor dated 26.04.2010 was duly replied on 07.06.2010, which was confirmed by the surveyor in his letter dated 14.06.2010.

(g) The activities in the centre of the Insured were falling within the purview of health club. The Insurer filed an affidavit that as per provision of Kanpur Mahanagar Yojna, health club activities can be run in the residential accommodation. The police have also submitted final report on 11.02.2010 stating that there was no criminal liability. The final report was accepted by the concerned Magistrate on 24.03.2010. The mala fide act of the surveyor as well as his deliberate inaction was also complained by the Insured to the Regional Manager vide his letters dated 01.10.2010, 10.10.2010 and 18.10.2010. The Insured had no information about the Final Survey Report of the surveyor, as such, vide letter dated 11.11.2010 requested Regional Manager to change the surveyor.

(h) The Insurer raised some objections against the Final Survey Report dated 29.07.2010, then the surveyor issued an addendum report dated 04.10.2010. However, the Insurer was not satisfied with these reports and appointed R.N. Sharma & Company, Pritampura, Delhi for his examination and opinion who after examination in the matter submitted his report dated 24.11.2010. He confirmed the claim for Rs.3199636/-. Thereafter again the Insurer did not proceed in the matter, therefore, the complaint was filed on 13.09.2012 before the State Commission.

(i) After filing the complaint, the claim was repudiated vide letter dated 28.12.2012 on the ground that chassis number and other important specification of the machine alleged to have been supplied by M/s. A.S. Marketing and Perfect Sales were missing. No documents were produced in respect of after sale service contract. The original documents relating to purchase of the machinery from the manufacturer has not been supplied in spite of repeated requests. The details of customers who were rendered services from lazer machine just before the fire incident was not provided. Specifications of machines mentioned in the catalog were altogether missing in the purchase bill provided by the insured. During physical verification some books and records unaffected by fire were got packed in cartons, but later on the Insured had not provided these records in spite of repeated requests of the surveyor. TIN No.07320297601 of M/s. A.S. Marketing and M/s. R.N. Sharma & Company has been cancelled and TIN No.7150268740 of M/s. Alankar Slimming and Cosmetic Clinic Pvt. Ltd. does not exist.

6.      The Insurer filed written reply and contested the case.  The material facts relating to issue of insurance policy and business of the complainant and the fire incident have not been denied. It has been stated that the complainant was running commercial activities and was not consumer. As soon as the Insurer received the information regarding the fire incident, he appointed surveyor namely R.C. Bajpai & Co. Triveni Nagar, Kanpur for survey and assessment of the loss. The surveyor submitted his final report dated 29.07.2010 and addendum report dated 04.10.2010. In these reports, it has been mentioned that the purchase of machineries from M/s. A.S. Marketing and Perfect Sales could not be verified as existence of two suppliers was not found at the time of survey and verification. Since serious abnormalities were observed by the surveyor in respect of purchase bill produced by the Insured, the violation of Condition No.8 of the Policy was apparent. The surveyor also observed that Insured was given full opportunity to get purchases confirmed from the supplier but the Insured did not make any effort for confirmation of the purchases. In purchase invoices of M/s. A.S. Marketing abnormalities i.e. chassis number and other important specifications of the machine were missing. There was no sale service contract in the bills. It was not mentioned that M/s. A.S. Marketing was a dealer of the manufacturer namely Cellotherm. The paper relating to original purchases were not produced. The existence of M/s. A.S. Marketing was not verified on the given address. In the purchase invoices to Perfect Sales also similar discrepancies, were found. In the light of the various discrepancies, the Insurer obtained a second opinion from M/s. R & N. Sharma & Co., Pritampur Delhi, who submitted report dated 24.11.2011. Before whom also actual purchase cannot be substantiated by the Insured. In view of the fact that the purchases pertaining to machineries could not be substantiated by the Insured, the claim was repudiated by letter dated 28.12.2012. There was no deficiency in service on the part of the complainant.

7.      The Insured filed his rejoinder reply. Both parties have filed their documentary evidence. State Commission after hearing the parties vide judgment dated 22.09.2014 held that the Insurer has not accepted his report of the surveyor dated 29.07.2010 and addendum report dated 04.10.2010 and appointed a second surveyor. The second surveyor in his report dated 24.11.2011 has specifically stated that the objection of the first surveyor are not justified and warranted. The various objections have no bearing on the genuineness of the purchases of the equipment. None of the two surveyors could deny the existence of damaged machineries. The second surveyor has assessed the loss to Rs.2560747/- in respect of genuineness of the bills of M.S. Marketing and Perfect Sales. The second surveyor has given his finding holding that this purchase was genuine and verified.  On these findings the complaint was allowed for Rs.2560747/- with interest @10% per annum and compensation of Rs.One lakh for mental agony and harassment. Hence this appeal has been filed.

8.      We have considered the arguments of the counsel for the parties and examined the record. The surveyor classified these machineries into three heads in Addendum Report dated 04.10.2010, i.e. fully damaged, not repairable, semi damaged repairable and semi damages but not reparable due to non-availability of spare parts. The following machines were found fully damaged:

I. FULLY DAMAGED

II. NOT REPAIRABLE DUE TO NON AVAILABILITY OF SPARE PARTS:

III. SEMI DAMAGED EQUIPMENT ASSESSED ON REPAIR BASIS

9.      The claim of the Insured was in respect of machineries were categorized in three heads i.e. (i) machinery, which were repairable, (ii) machinery which were totally damaged and (iii) the machineries which were not repairable due to unavailability of spare parts. While assessing the loss, the surveyor has assessed its deprecated value and not replacement value. In such circumstances even if the original purchase was not verified, but the machineries and damages were verified, the claim on the basis of deprecated value as assessed by the surveyor was payable. In Addendum Report of the surveyor dated 04.10.2010 was liable to be accepted, but the Insurer had repudiated the claim only on the ground that the original purchase of the machineries were not verified although insurance of the machineries and its damages were fully verified. In such circumstances, State Commission has not committed any illegality in allowing the complaint of the complainant.

10.    So far as the demand of details of customers who were rendered services from lazer machine just before the incident and books of accounts and other records relating to business of the Insured namely cash book, ledger, gym book register, walking register and sales register etc. are concerned as the complainant has not made any claim for compensation for business loss as such these records were neither necessary nor relevant for assessing the loss.

ORDER

          The Appeal has no merit and it is dismissed.