PER SHRI. A.Z.KHWAJA, HON’BLE  JUDICIAL MEMBER

Appellant SBI General Insurance Co.Ltd. has preferred the present appeal Under Section 15 of the Consumer Protection Act,1986 challenging the order dated 30/12/2017 passed by the Larned District Consumer Commission, Buldana in Consumer complaint No.CC/16/86 whereby the comlaint filed by the Complainant Kailash Dhirbasi came to be partly allowed and the Appellant/OP was directed to pay a sum of Rs.19,50,000/- towards the damage to the goods due to fire as well as compensation of Rs.10,000/- and Rs.5000/- towards cost of proceedings. (Appellant & Respondent are hereinafter referred by their nomenclature in the original complaint). 

2. Short facts leading to the filing of appeal may be stated as under..

The complainant, Kailash Dhirbasi was running a Garments shop at Motala, District Buldhana under the name and Style as Chunnu Munnu Dresses, and he had insured the goods in the shop by taking fire insurance policy with SBI General Insurance for a sum of Rs.26 lacs and the period of policy was from 19/9/2015 to 18/9/2016. Complainant has alleged that in the night of 12/11/2015 at about 2.40 a.m., fire broke out in the shop of the complainant and the entire goods stored in the shop to the tune of Rs.30 lac came to be completely damaged and gutted. Complainant, thereafter immediately lodged a report with Borkhedi Police Station. Police staff came to the spot and prepared spot panchnama. Complainant has contended that  he had purchased readymade garments and dress materials from various dealers worth Rs.38,40,895/- during the period from 1/4/2015 to 7/11/2015, out of which some clothes were sold and goods worth Rs.24,70,201/- was lying in the shop and were damaged. Complainant Kailash then lodged the claim with the SBI General Insurance. After filing of the claim, the OP appointed a Surveyor to assess the damage caused to the goods due to fire and the surveyor then submitted his report on 31/.12/2015. Complainant has contended that the Surveyor had falsely assessed the damage to the extent of Rs.4,45,173/- and the same was also paid to the complainant which was accepted by the Complainant. Complainant, thereafter, demanded balance amount from SBI General Insurance company but the same was refused and the claim to the extent of sum assured was also declined amounting to deficiency in service. Complainant was therefore compelled to lodge the complaint regarding deficiency in service. Complainant has therefore claimed a sum of Rs.20 lacs alongwith compensation of Rs.25,000/- and cost of Rs.10,000/- and so the present complaint.

3.          Opposite Party, namely SBI General Insurance Co.Ltd.appeared in response to notice and file written version thereby strongly resisting the contents in the complaint. Opposite party has not seriously disputed that the Complainant had taken a fire insurance policy for a sum of Rs.26 lacs and the period of the policy was from 19/9/2015 to 18/9/2016. OP has also not disputed the fire that broke out on 21/11/2015 in the shop leading to damage to the goods consisting of readymade garments and dress material in the shop of the complainant. The Opposite party has taken a plea that earlier the complainant had insured the goods only for a sum of Rs.5 lac but subsequently Two days before the fire broke out, the complainant had enhanced the sum assured to Rs.26 lacs without submitting any documentary report. Opposite Party, thereafter appointed a surveyor and he visited the spot on 13/11/2015 and demanded necessary documents like purchase bills, stock registers, stock statements, but the complainant failed to provide the same to the surveyor and so, the surveyor took into consideration the Income Tax Returns of the complainant for the year 2012-13, 2013-14 and 2014-15. Opposite party has denied that the complainant had purchased goods worth Rs.38,40,895/- during the period 1/4/2015 to 7/11/2015 for business purpose. Opposite party has also taken a plea that as per the Survey report, the Insurance company had paid the claim of Rs.4,45,273/- to the complainant by discharge voucher dated 22/2/2016 and the same was also accepted by the Complainant towards full and final settlement of the claim. Opposite party has contended that since the complainant had accepted the amount towards full and final settlement, he had no right to claim any other amount and so had no locus standie to file the complaint. Complaint filed by the Complainant is devoid of any substance and so deserves to be dismissed with cost.

4.        Learned District Consumer Commission, Buldhana, thereafter, recorded the evidence led by the complainant. Learned District Consumer Commission thereafter went through the documents and notes of arguments filed by the Opposite party and, after appreciating the oral and documentary evidence on record , the learned District Consumer Commission partly allowed the complaint and directed the Opposite party to pay a sum of Rs.19,50,000/- towards damage to the goods and Rs.10,000/-by way of compensation towards mental and physical harassment and Rs.5,000/- by way of cost of litigation. Against this judgement and order, dated 30/12/2017 passed by the District Consumer Commission, the present appellant has come up in appeal.

5.       We have heard Smt.Renuka Nalamwar, Learned advocate appearing for the Appellant and Shri.Aditya Joshi Learned advocate for Respondent. We have also gone through the record and proceeding copy of which are filed on record. On the basis of the facts stated above, following points arise for our determination with our findings recorded against the same as under,

REASONS

                Smt.Nalamwar, Learned advocate appearing for the Appellant SBI General Insurance Co.Ltd. has challenged the judgement and order dated 30/12/2017 passed by the District Consumer Commission, Buldana on several counts and we will deal with them one by one..

                 At the outset, it is submitted by Smt.Nalamwar learned advocate for the appellant that learned District Consumer Commission has not properly taken into consideration the fact that the present complainant had accepted the amount of Rs.4,46,000/- towards full and final settlement of the claim and thereby had also discharged SBI General Insurance Co.Ltd. from any liability, under claim No.214890. It is submitted by the learned advocate for the appellant that after having accepted the amount of Rs.4,46,000/- towards full and final settlement of claim, there was no question of paying  any further amount to the claimant under the Insurance Policy. It is argued by the learned advocate for appellant that the present complainant had raised no objection to the amount of claim. Learned advocate Shri. Aditya Joshi for the Respondent has strongly rebutted this contention and has drawn our attention to the copy of insurance policy which was taken for the period from 19/9/2015 to 18/9/2016. We have gone through the said policy copy of which is on record and the same shows that the Complainant who was owner of the shop of readymade garments had taken the fire Insurance Policy for a sum of Rs.26 lacs. It is pertinent to note that the Complainant had also paid the premium for the same. We have also gone through the copy of the discharge voucher which shows that the complainant had accepted the amount of Rs.4,46,500/. But we will deal with this aspect subsequently.

                    During the course of argument, learned advocate for appellant has also drawn our attention to the copy of Survey report filed on record. It is submitted by the learned advocate for the appellant that the learned District Consumer Commission has not at all properly appreciated the fact that the surveyor had submitted the report after taking into consideration the Income Tax Return for the year 2012-13 for Rs.5,23,680/- for 2013-14 of Rs.5,75,000/-  and for the year 2014-15 of Rs.9.26m300/-. Surveyor had also submitted in the report that after taking all aspects into consideration, surveyor had assessed the loss at Rs.5 lac and not Rs.24,70,201/- as claimed by the complainant. But this aspect was not properly taken into consideration.

                     Learned advocate for the Respondent/complainant Kailas Dhirbasi has strongly rebutted this contention and has submitted that the surveyor appointed by the Insurance Company has not at all properly assessed the loss of goods in the shop of the complainant. Learned advocate for the Respondent has submitted that the Complainant was running a shop of readymade garments and complainant had purchased garments from various dealers to the extent of Rs.38 lac. It is further submitted by the learned advocate for the Respondent that the surveyor appointed by the insurance company had also not taken into consideration the stock statement as well as purchase receipts and other material documents and on the other hand had taken into consideration only Income Tax Returns which were not at all a proper guide in making assessment of the loss of goods. According to the learned advocate for the Respondent, it was bounding duty of the surveyor to make assessment of the loss on the basis of the documents namely the stock statement, purchase register and other registers maintained by the shop owner. Learned advocate for the Respondent pointed out that the complainant had purchased goods consisting of readymade dress from various dealers worth Rs.38,40,895/- during the period from 1/4/2015 to 7/11/2015. The complainant had also filed copies of the 79 receipts on record, but they were not considered by the surveyor. In order to buttress his point, the learned advocate for the respondent has drawn our attention specifically to the copy of the stock statement dated 1/11/2015. Bare perusal of this stock statement shows that the complainant was having goods worth Rs.24,09,825/- when the fire broke out. Further the learned advocate for the Respondent has also drawn our attention to copies of 79 receipts which clearly goes to show that the present complainant had purchased readymade garments from various dealers during the aforesaid period prior to the date when the fire broke out. Complainant has further placed on record copy of purchase register which also supports the contention of the complainant regarding purchase of goods worth Rs.30,63,381/-. We have also gone through the report of the surveyor and it appears that the surveyor has also not taken into consideration these valuable documents namely purchase register and the stock statement and has only placed reliance upon Income Tax Returns which was erroneous. If we go through the impugned judgement and order passed by the Learned District Consumer Commission, Buldana, the learned District Consumer Commission has also gone into these aspects and has not accepted the Income Tax Returns as a proper yardstick for making assessment of loss of goods due to fire. If we turn to the report submitted by the surveyor Mr.M.H.Khatri, the surveyor has simply stated that since the stock is totally gutted, it is not possible to make physical verification. But we feel that it was necessary for the surveyor to verify the stock register, stock statement as well as purchase register which were very much with the complainant. Learned District Commission has also dealt with this aspect and has therefore, not accepted the report submitted by the surveyor as regards assessment of loss of goods due to fire and we do not see any error in the said findings.

                So far as the aspect relating to the discharge voucher dated 22/2/2016 is concerned, we are unable to accept the contention advanced by the appellant that it was not open to the complainant to file the Consumer complaint as the complainant had received the amount towards full and final settlement. Admittedly, the complainant had insured the goods in the shop for a sum of Rs.26,00,000/- and had also paid the premium for the same. As such, merely because the complainant had accepted the amount of Rs.4,46,500/-, it can not be said that the complainant had no right to claim the assured sum.

               In view of the above discussion, the appeal is devoid of merit and as such we proceed to pass the following order..

ORDER

1. Appeal is dismissed.
2. Copies of the order be supplied to both the parties free of cost.