Per Mr.S.R.Khanzode, Hon’ble Presiding Judicial Member            

          This appeal takes an exception to an order dated 07/5/2009 passed in consumer complaint no.68/2007, M/s.Malpani Textiles through its partner Mr.Rameshwar Suvalal Malpani v/s. Iffco Tokyo General Insurance Co.Ltd., passed by District Consumer Disputes Redressal Forum, Nasik.

          Appellant/original complainant had filed the consumer complaint alleging deficiency in service on the part of respondent/Insurance company (herein after referred as “Insurance company”) alleging that they have settled the claim at lesser amount and, thus, in effect repudiated part of the claim without any justification. Forum below found the settlement of the claim by the Insurance company proper and, thus, holding that there is no deficiency in service on the part of Insurance company dismissed the consumer complaint.  Feeling aggrieved thereby this appeal is preferred by the original complainant. 

          Undisputed facts are that appellant/org.complainant (herein after referred as ‘complainant’) runs a stationary business. He runs his business from the premises “Vastra Bhandar 1109, Main Road”.  He has his godown where the stock is kept, at 73, Main Road, Nasik, which is the premises just across the road in front of Vastra Bhandar.  Stock at both the places was insured under Trade Protector Policy issued by the Insurance company for the period 00:00 Hours on 22/11/2005 till midnight on 21/11/2006 as per Policy no.47025198.  Earlier policy document was issued on 29/11/2005 and, thereafter, corrected policy document was issued as it appears from the record, on 18/8/2006.  Insurance company stand by the corrected document issued on 18/8/2006.

          On 23/1/2006, there was a fire in the adjoining premises bearing property no.74, which eventually spread to property no.73 where the stock of cloth was kept belonging to complainant. Entire stock either was gutted to fire or fully damaged in an effort to extinguish the fire.  The insurance claim was made.  Based upon the report of surveyor, Insurance company awarded claim of Rs.4,93,468/- against the claim of Rs.9,48,000/- i.e. the stock alleged in the premises 73, main road. According to complainant said assessment of loss was arbitrarily made by the surveyor and wrongly accepted by the Insurance company. Therefore, the consumer complaint was filed since the Insurance company did not respond to request of the complainant to reassess the loss.

We heard Ld.counsel Mr.N.H.Lahoti appearing for the appellant. None appeared for respondent though served. Perused the record. 

In the instant case, referring to the survey report dated 10/5/2006, it could be seen that the surveyor on actual investigation on the basis of burnt stock came to the conclusion that there was stock worth Rs.6,23,162/-.  He has given details of the assessment made which is based upon an exercise in an objective way and there is no arbitrariness in it.

However, holding that insured value is undervalued at 81.19% he suggested ratio of such under valuation and, accordingly, after calibration, claim was settled by the Insurance company as stated above.  This particular action appears arbitrary and without looking to the ‘floater clause’ applicable and for which extra premium was charged.  Besides this, referring again to the exercise of the surveyor from valuing burnt stock against the total stock claimed at both the places i.e. shop and godown at Rs.12,31,622/- value of the burnt stock was assessed at Rs.6,23,162/- and after deducting fire fighting charges less excess of Rs.10,000/- loss was assessed at Rs.6,18,387/- taking into consideration value of the stock at the shop as assessed and the value of the burnt stock.  Total value comes below Rs.10 lakhs as at the time of event in question.  As earlier observed floater clause is also applicable in the instant case. Therefore, it cannot be said that the insurance is undervalued and, therefore, reduced the loss on prorata basis is an action without any justification nay arbitrary.  Taking into consideration this fact, complainant is entitled to the compensation without any deduction on prorata i.e. calculating @ 81.19% as mentioned in the letter of the Insurance company dated 15/12/2006. Thus, the Insurance company has settled the claim at lesser amount by Rs.1,19,417/- Deficiency in service of the Insurance company can be fixed to this extent only. We hold accordingly and pass the following order:-

                             OPERATIVE ORDER

1.                 Appeal is allowed

2.                 Impugned order of dismissal of consumer complaint dated 07/05/2009 is set aside.

3.                 Respondent/org.O.P./Insurance company shall pay to the appellant/original complainant Rs.1,19,417/- along with interest @ 6% p.a. from the date of consumer complaint i.e.09/04/2007 till its realization.

4.                 In the given circumstances both the parties to bear their costs.

5.                 Appeal stands disposed of accordingly.