DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, BARNALA, PUNJAB.

 

Complaint Case No : CC/100/2021

Date of Institution : 28.04.2021

Date of Decision : 28.04.2022

M/s Jugal Kishore and Company, #61, Bhatinda Barnala Road, Village Ghunas, Tehsil Tapa, District Barnala through its Proprietor Vijay Kumar son of Sohan Lal resident of Barnala. 

…Complainant

Versus

1. Bajaj Allianz General Insurance Company Limited, Sandhu Tower, 5th Floor, Gurdev Nagar, Ferozepur Road, Ludhiana-141001 through its Branch Manager.

2. Bajaj Allianz General Insurance Company Limited, Head Office at GE Plaza, Airport Road, Yerawada, Pune-411006 through its Authorized Signatory.

…Opposite Parties.

Complaint under Section 35 of the Consumer Protection Act

Present: Sh. SM Gupta Adv counsel for complainant.

Sh. Bhushan Kumar Garg Adv counsel for opposite parties.

Quorum.-

1. Sh. Ashish Kumar Grover : President

2. Smt. Urmila Kumari : Member

3. Sh. Navdeep Kumar Garg : Member

(ORDER BY ASHISH KUMAR GROVER PRESIDENT):

    The complainant Jugal Kishore and Company through its Proprietor Vijay Kumar filed the present complaint under the Consumer Protection Act against Bajaj Allianz General Insurance Company Limited, Ludhiana and another. (in short the opposite parties). 

2. The facts leading to the present complaint as stated by the complainant are that the complainant is running an Edible Oil Cooking Medium and Lite Ghee manufacturing unit at Village Ghunas, District Barnala under the name and style of M/s Jugal Kishore and Company. The complainant purchased the policy from opposite party No. 1 vide policy No. 09193716400100000020 which is valid till 19.3.2020. It is further alleged that on 23.6.2019 the said unit of the complainant caught fire due to which raw material and finished goods i.e. edible oil, cooking medium and desi ghee packed in various packings were totally destroyed and factory building was also collapsed in the said fire causing a loss about Rs. 1 Crore. The complainant immediately informed regarding the said incident to the Fire Department at Barnala and also to the police station, Tapa and also informed to the opposite parties. The said fire also broke out in the adjoining factory M/s JK Industries.  

3. It is further alleged that the complainant filled the fire claim form with the opposite parties and submitted the same with the opposite parties on 29.8.2019 in which a total loss of Rs. 99,66,000/- has been mentioned due to the said fire. The complainant also submitted the detail claim bill and other necessary documents. He also submitted the valuation report of building conducted by M/s Space Architects dated 28.7.2019 and stock register etc. The opposite parties had appointed a Surveyor namely M/s Protocol Insurance Surveyor and Loss Assessor Private Limited, Noida for survey and to assess the loss caused by the said fire to the complainant's concern. But his report has not been provided to the complainant and then the complainant demanded the said interim report under RTI from the opposite parties vide letter dated 12.9.2020 but the same has not been supplied to the complainant within the stipulated period. So, complainant filed the appeal on 19.10.2020 but to no effect. The said Surveyor through email in December 2019 offered assessment of Rs. 31,06,605/- to the complainant which was assessed on volumetric verification whereas the the actual loss as per booked of the complainant is Rs. 77,08,241/-. 

4. It is further alleged that the complainant was called by Surveyor in his office at Noida on 1.2.2020 and under pressure they obtained a new fire claim form from the complainant in which total loss has wrongly been assessed as Rs. 59,06,157/- and also got signed a pre receipt claim discharge voucher and consent letter signed from the complainant for Rs. 55,47,146/-. As the entire business of the complainant was destroyed in the said fire and he was dire need of money so under depression he agreed with the proposal of opposite party No. 1 and signed the pre-receipt claim discharge voucher and gave the new claim form by mentioning the earlier date. The complainant has suffered the loss of Rs. 77,08,241/- and assessment of the surveyor was also the same which was actual loss due to the said fire but the opposite parties has made the payment of Rs. 55,47,146/- to the complainant so he is entitled to recover the remaining amount of Rs. 22,33,095/- and opposite parties are bound to pay the same to the complainant alongwith interest. The complainant written several requests to the opposite parties and also visited the office of the opposite parties with necessary information and documents many times but of no use. The act of opposite parties is deficiency in service and unfair trade practice on their part. Hence, the present complaint is filed seeking the following reliefs.-

1) The opposite parties may be directed to settle the claim of the complainant and pay Rs. 22,33,095/- alongwith interest at the rate of 18% per annum.

2) To pay Rs. 10,00,000/- on account of compensation for mental agony and harassment and Rs. 1,00,000/- as litigation expenses. 

3) Any other fit relief may also be given. 

5. Upon notice of this complaint, the opposite parties filed written version taking legal objections on the grounds that the present complaint is abuse of process of law and not tenable. Further, there is no deficiency in service on the part of the opposite parties. Further, the complainant raised a claim on account of fire to the insured assets and the loss was assessed by the Surveyor to the tune of Rs. 55,47,146/-. The answering opposite parties accordingly satisfied the claim of the complainant against the duly signed discharge voucher as full and final settlement so the principle of estoppal complainant is barred to raise further claim against the opposite parties. Further, the present complaint is not maintainable. The complainant has not come to this Commission with clean hands and suppressed the material facts from this Commission. Further, this complaint is very complex in nature involves intricate questions of facts and law and complaint be returned to competent civil court for proper adjudication of the matter. The present complaint is bad for non joinder of necessary part as Kotak Mahindra Bank is necessary party who is financier of complaint and as per policy upon any monies becoming payable the same shall be paid by the company to the bank. 

6. On merits, it is submitted that M/s Jugal Kishore and Company obtained the Standard Fire and Special Perils policy bearing No. OG-19-3716-4001-00000020 from the opposite parties valid from 20.3.2019 to 19.3.2020 and paid premium of Rs. 14,217/- and got insured building for a sum of Rs. 65,00,000/-, Plant and Machinery for a sum of Rs. 10,00,000/- and stock for a sum of Rs. 70,00,000/- and same was subject to the conditions and exclusions of the policy. Further, on receiving information of loss the opposite parties immediately appointed independent and IRDA approved Surveyor M/s Protocol Insurance Surveyor and Loss Assessor Private Limited to asses the loss who assessed the loss and submitted the report to opposite parties. The opposite parties paid the claim to the complainant as per assessment made by the said Surveyor. On 29.6.2019 the said Surveyor visited the effected premises of insured who carried out physical verification and requested the insured to prepare a detail estimate of loss and asked to inform them suitable date and time for detail verification of loss. After submission of estimate of loss the said Surveyor again visited the premises of the insured on 13.7.2019 and carried out detailed verification and quantification of loss. Thereafter the said Surveyor assessed the loss to the insured and submitted his report dated 27.2.2020 to the opposite parties. As per his report the said Surveyor calculated the loss of stock by way of two method one by theoretical assessment of loss based on books accounts and second method is Volumetric Verification i.e. maximum available storage volume as per physical verification. The insured has submitted provisional balance sheet on dated of loss i.e. 23.6.2019. As per his balance sheet closing stock as on last date was of Rs. 77,98,162/- whereas sum insured of stock is of Rs. 70,00,000/- which means under insurance of stock was to the extent of 10.24% then the actual stock. As per terms and conditions of policy if stock is got under insured then the actual stock available then in that case if any claim arises the same shall be reduced proportionately. As report by the Surveyor insured has got under insurance of stock to the extent of 10.24% therefore the assessed claim amount will be reduced to that extent as per terms and conditions of the policy and surveyor made assessment of loss of stock of Rs. 51,78,170/- as per account books produced by the complainant. On the second method the said surveyor firstly verified the maximum available storage volume at the insured premises and found that the actual storage volume is 3105 cubit feet. After that he calculated the volume of each items available in the stock of the insured at the time of loss and claimed by him and further calculated total volume of entire items claimed by the insured as per his account booked on the date of loss which comes to 4703.76 cubit feet i.e. more than the available storage volume which is not possible so the record of stock is not being properly maintained or prepared afterwards. Surveyor has assessed the claim of stock by considering the entire storage volume though it may be possible that stock may be less than the amount taken by the Surveyor and may have not occupied entire storage volume. The said Surveyor found difference in storage volume actually available at the spot and volume calculated by considering entire items/stock volume claimed by the insured as per his account books on the date of loss. The storage volume is fundamental factor to arrive at maximum volume of entire stock so the Surveyor has calculated the loss by considering storage volume and assessed the loss of stock to the tune of Rs. 42,37,474.73 after deducting salvage of Rs. 50,000/- and deducting 5% on account of rate variance. The surveyor assessed the loss of building to the tune of Rs. 8,37,916/- by applying DSR rate of various items prevailing at the respective period. Surveyor has give 1% of debris removal to the insured and deducted 15% depreciation i.e. 2.5% per year the age of building was around 6 years besides this Rs. 3,41,000/- has been deducted towards salvage of old bricks, GI sheets and MS angle as offered by insured himself. The rates of machinery have been taken by the surveyor on the basis of purchase invoices provided by the insured. GST of Rs. 9243/- has not been considered by the surveyor because the in put credit of said GST might already have been taken by the insured. The machinery is always subject to depreciation and surveyor has taken depreciation of machinery 5% per annum which is genuine. The surveyor has made deduction under the head salvage 10% of the depreciated value of the machinery. In this way the surveyor assessed the loss of Plant and Machinery of Rs. 7,63,710/-. The total amount of loss Rs. 55,47,146/- has been assessed by the surveyor and same has been paid by the opposite parties to the complainant. The complainant agreed with the assessment made by the surveyor and receive the said amount. So, there is no deficiency in service on the part of opposite parties. Lastly the opposite parties prayed for the dismissal of the present complaint with costs. 

7. In support of his complaint, the complainant tendered into evidence affidavit of Vijay Kumar Ex.C-1, copy of policy schedule Ex.C-2, copy of letter dated 6.7.2019 Ex.C-3, copy of General Diary Details  Ex.C-4, copy of claim form Ex.C-5, copy of letter dated 9.1.2020 Ex.C-6, copy of letter dated 12.9.2020 Ex.C-7, copy of letter dated 19.10.2020 Ex.C-8, copy of Fire Claim Form Ex.C-9, copy of discharge voucher  Ex.C-10, copy of consent letter Ex.C-11, copy of valuation report of building Ex.C-12, copy of estimate Ex.C-13 and Ex.C-14, copy of stock book Ex.C-15, copy of letter dated 24.1.2020 Ex.C-16 and closed the evidence.  

8. To rebut the case of the complainant the opposite parties  tendered in evidence affidavit of Saurav Khullar Legal Officer Ex.OPs-1, copy of discharge voucher Ex.OPs-2, copy of policy alongwith terms and conditions Ex.OPs-3, copy of surveyor report Ex.OPs-4, affidavit of Tarun Roi Arora Ex.OPs-5 and closed the evidence. 

9. We have heard the learned counsel for the parties and have gone through the record on the file. Written arguments also filed by the opposite parties. 

10. The complainant alleged in the complaint that the complainant firm suffered a loss of Rs. 77,08,241/- and the opposite parties has made the payment of Rs. 55,47,146/-. Therefore, this Commission comes to the conclusion that there is only dispute regarding the quantum and rest of the facts of the case are admitted by the opposite parties. The complainant alleged that the complainant firm suffered the loss of Rs. 77,08,241/- and the assessment of surveyor was also the same which was actual loss due to the fire occurred in the premises of the complainant firm on 23.6.2019 but the opposite parties has made the payment of Rs. 55,47,146/- only to the complainant and as such the complainant is entitled to recover the amount of Rs. 22,33,095/- from the opposite parties. The complainant mentioned in the complaint that the complainant lodged the claim of total loss of Rs. 99,66,000/- alongwith the documents. The complainant further alleged in the complaint that the complainant was called by the surveyor in his office at Noida on 1.2.2020 and under pressure they obtained a new fire claim form from the complainant in which the total loss has wrongly been assessed as Rs. 59,06,157/- and also got signed a pre receipt claim discharge voucher and consent letter signed from the complainant for Rs. 55,47,146/-. 

11. On the other hand the opposite parties filed the written version and alleged that on intimation the opposite parties immediately appointed independent IRDA approved Surveyor namely M/s Protocol Insurance Surveyor and Loss Assessor Private Limited to assess the loss who assessed the loss and submitted the report to the opposite parties. The surveyor assessed the loss to the tune of Rs. 55,47,146/- and opposite parties satisfied the claim of the complainant against the duly signed discharge voucher as full and final settlement, as such by the principle of estoppal complainant is barred to raise further claim against the opposite parties. 

12. The opposite parties has produced the surveyor report Ex.OPs-4 vide which the surveyor has assessed the loss of stock by way of two methods one by theoretical assessment of loss based on account books and second method is Volumetric Verification i.e. maximum available storage volume as per physical verification. The insured has submitted provisional balance sheet on date of loss i.e. 23.6.2019. As per the balance sheet closing stock as on last date was of Rs. 77,98,162/- whereas sum insured of stock is Rs. 70,00,000/- which means under insurance of stock was to the extent of 10.24% than the actual stock. The surveyor assessed that as per terms and conditions of policy if stock is got under insured then the actual stock available then in that case if any claim arises the same shall be reduced proportionately. As report of  Surveyor insured has got under insurance of stock to the extent of 10.24% therefore the assessed claim amount will be reduced to that extent as per terms and conditions of the policy and surveyor made assessment of loss of stock of Rs. 51,78,170/- as per account books produced by the complainant. On the second method the said surveyor firstly verified the maximum available storage volume at the insured premises and found that the actual storage volume is 3105 cubic feet. After that he calculated the volume of each items available in the stock of the insured at the time of loss and claimed by him and further calculated total volume of entire items claimed by the insured as per his account books on the date of loss which comes to 4703.76 cubic feet i.e. more than the available storage volume which is not possible so the record of stock is not being properly maintained or is prepared afterwards. The total amount of loss of Rs. 55,47,146/- has been assessed by the surveyor with the volumetric method. 

13. The complainant himself produced the claim form Ex.C-9 vide which he mentioned in the claim form that total loss was Rs. 59,06,157/-. The complainant accepted the amount which was assessed by the surveyor and issued pre receipt claim discharge voucher i.e. Ex.OPs-2. It is mentioned in the said document that the complainant has received the assessed amount of claim amount towards full and final settlement of claim under the policy. The same discharge voucher was submitted by the complainant on 4.6.2020 and the present complaint was filed by the complainant on 28.4.2021 i.e. approximately after 11 months. In between the complainant neither approached the opposite parties nor submitted any protest letter. It shows the conduct of the complainant that the complainant is satisfied with the claim amount of Rs. 55,47,146/-. The learned counsel for the complainant argued that the surveyor obtained a new fire claim form from the complainant in which the total loss has wrongly been assessed as Rs. 59,06,157/- under pressure but complainant failed to produce any evidence to establish that the insurance company or surveyor used any coercive method to obtain the alleged claim form or pressurized the complainant to accept the assessed loss amount of Rs. 55,47,146/-. Therefore, this Commission observed that the principle of estoppal is applicable in the present case. The complainant accepted the assessed claim amount without any protest as full and final settlement. 

14. Learned counsel for opposite parties argued that opposite parties paid the entire loss amount as per the report given by the surveyor and as surveyor assessed the loss with the volumetric method. Learned counsel for the opposite parties also produced the judgment of Hon'ble Supreme Court of India Civil Appeal No. 9050 of 2018 titled as Khatema Fibres Limited Vs New India Assurance Company Limited and Another. In the said case Surveyor adopted the volumetric analysis and assessed the loss. The learned counsel for the opposite parties also argued that the surveyor report is an important document which cannot be ignored. Learned counsel for the opposite parties also produced judgment of Hon'ble National Consumer Disputes Redressal Commission, New Delhi titled Mohan Lal Meean Versus United India Insurance Company decided on 27.1.2021 in which Hon'ble National Commission has given weightage to the surveyor report. 

15. In view of the above discussion and detailed facts of the present complaint, the complainant is failed to prove his case and the complainant has already received the claim amount from the opposite parties, therefore the present complaint is dismissed. However, no order as to costs or compensation. Copy of the order be supplied to the parties free of costs. File be consigned to the records after its due compliance.

ANNOUNCED IN THE OPEN COMMISSION:

        28th Day of April 2022

 

            (Ashish Kumar Grover)

            President

              

(Urmila Kumari)

Member

 

(Navdeep Kumar Garg)

Member