PER  JAGROOP  SINGH   MAHAL, MEMBER

                    These two appeals are directed against the order dated 19.4.2011, rendered by the ld. District Consumer Disputes Redressal Forum-II, UT, Chandigarh (hereinafter referred to as the District Forum) vide which the complaint was allowed and the OP/Insurance Company was directed to pay an amount of Rs.19,082/- for the loss caused plus Rs.10,000/- as damages and Rs.7,000/- as litigation costs within a period of thirty days, failing which they were to pay the amount of Rs.29,082/- with interest @ 18% per annum from the date of filing of complaint till actual payment, besides costs of Rs.7,000/-.

2.                          The facts, in brief, are that the complainant got its finished and raw material insured from the OPs vide Standard Fire and Special Perils Policy effective from 23.2.2006 to 22.2.2007. On 31.5.2006, due to heavy rains, the material lying in the godown was badly damaged and the complainant suffered a loss of Rs.26,185/- for which it lodged a claim with the OPs. The OPs appointed surveyor who inspected the spot. The information/documents sought by the OPs for settling the claim were duly supplied by the complainant vide letters dated 19.7.2006 and 31.7.2008 but still, the claim was repudiated by the OPs vide letter dated 18/26.9.2008. Thereafter, the complainant wrote letters dated 29.9.2008 and 4.12.2008 for the release of the amount but to no effect. The complainant also served a demand notice dated 6.2.2010 which was replied by OPs vide letter dated 15.2.2010. When the grievance of the complainant was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as the Act) was filed.

3.                          The OPs in their reply at the outset took preliminary objection that the complaint was barred by time as the cause of action arose on 31.5.2006 and the file was closed as no claim on 29.9.2006.  On merits it was admitted that the complainant got its finished goods and raw material insured with them; that the loss was caused to the said material due to rains and that the surveyor was appointed who assessed the loss. It was stated that they wrote letters dated 19.6.2006, 30.6.2006 and 7.7.2006 requiring the complainant to supply the information/documents mentioned in those letters but the same were not furnished. It was submitted that the surveyor assessed the loss to the tune of Rs.6,134/- only and after applying the excess clause  of Rs.10,000/-, the claim was falling below the excess limit and thus the file was closed as ‘No Claim’ and intimation to this effect was given to the complainant. Remaining averments were denied, being wrong.

4.                          Parties led evidence in support of their case.

5.                          After hearing the ld. Counsel for the parties and on going through the evidence on record, the ld. District Forum allowed the complaint, as stated in the opening para of this order.

6.                          Feeling aggrieved, the instant appeals have been filed, one by the appellants/OPs for setting aside the order and, the other by the appellant/complainant for enhancement of compensation.

7.                          We have heard the ld. Counsel for the parties and have gone through the  evidence on record of the case carefully. 

8.                          Learned Counsel for the OP has argued that the claim of the complainant was barred by time because the complainant had been informed vide Annexure R-1-2/C dated 29.9.2006 that the claim falls within excess limit and therefore, it was no claim.  The complainant denied having received any such letter. A perusal of Annexure R-1-2/C shows that it was sent through courier and also by registered post. No receipt was placed on file, nor any postal receipt showing that the letter was put in transmission by the OPs.  There is no acknowledgement of either the letter having been delivered to the complainant by the courier or by the postal authorities.  The letter was proposed to be signed by S.K. Gupta, but there are no signatures of Mr. Gupta on this letter. Further there is a column where the reference number of the letter was to be mentioned, which is lying blank which shows that the letter was never despatched.  Earlier some letters were sent to the complainant through registered A.D. Cover and the postal receipts thereof have been placed on file as Annexure R-1-2/E. But in case of this letter Annexure R-1-2/C no such postal receipt is attached.  There is therefore, no doubt about it that the letter dated 29.9.2006 was never issued by the OP, it was never put in transmission and the question of it having been sent to or received by the complainant does not arise.

9.                          When the OPs did not pay the amount of compensation, the complainant kept on writing letters to the OP, upon which the OP informed the complainant vide Annexure C-6 dated 18/26.9.2008, intimating him that his case had already been closed.  A reference of the aforementioned letter dated 29.6.2006 was made in it.  However, the complainant came to know of this fact for the first time on receipt of the letter Annexure C-6 dated 18/26.9.2008 and the present complaint filed on 13.5.2010 is within time.  The learned Counsel for the OP has also argued that the surveyor had requested the complainant vide Annexure R-1-2/E to supply certain record,  some of the record as demanded by the Surveyor was supplied vide Annexure C-4 and the remaining vide Annexure C-5.  Instead of reopening the case on receipt of Annexure C-5 the OP chose to close the matter and intimated this fact to the complainant vide letter dated 18/26.9.2008, copy of which is annexed as Annexure C-6.  It may be mentioned again for the sake of repetition that prior to that date no intimation was given to the complainant of the case having been closed and the letter Annexure R-1-2/C was fabricated by the OP subsequently to justify the delay on their part.  The documents sent by the complainant vide Annexure C-5 were required to be considered by the OP but the same were not considered before issuing letter dated 18/26.9.2008.

10.                     The learned Counsel for the OP has argued that in view of the Report Annexure R-1-2/A of the Surveyor, the compensation fell below the payable amount and therefore, the complainant was not entitled to anything.  His contention is that the District Forum has wrongly ignored this fact. Needless to mention that the report of the surveyor is not a sacrosanct document and is not binding on the complainant.  A perusal of the report shows that the surveyor has not applied his mind to the facts of the case and has given a false report in order to bring down the amount of compensation below the payable limit.  As per claim Annexure C-3 190 Kgs of Agarbathi raw-sticks valuing @29/-, 305 Kgs of WIP Agarbathi semi-finished @35/- and 250Kgs of Agarbathi un-perfumed @40/- were damaged in the rain. None of the material was carrying the rate of 41/-. However, the surveyor while assessing the loss has mentioned in para 15 that the rate claimed was Rs.41/-.  The surveyor has allowed the claim at this rate, though according to the complainant the rate was Rs.40 per kg.

11.                     Without going through the record, the surveyor wrote from his own not only rate of Rs.41/- alleged to have been claimed by the complainant but also the quantity as 248 Kg. It is mentioned in para No.15 that later on, when verification was done on 9.6.2006, the complainant settled the loss at 248 Kg. (instead of 250 Kg.) of unperfumed Agarbathi.  The contention of the complainant is that no such settlement took place with him nor he ever agreed for any such settlement and the surveyor has mentioned this fact from his own imagination.  There is no statement of the complainant on record, recorded by the surveyor for the said settlement of 248 kg. Moreover, no mention has been made in the report regarding 190 Kg. of raw sticks and 305 Kg. WIP.  It may be mentioned for the sake of repetition that all the documents which were required by the surveyor had been submitted vide letters Annexure C-4 and C-5 in view of which the claim was made out for payment of compensation of Rs.26,185/-.

12.                     In para No.15 of the survey report the surveyor has deducted the profit margin @20% of the amount totaling to Rs.2034/-. There is no such agreement between the parties, if any such profit margin is to be deducted from compensation.  It is not only goods but profit also which the complainant lost in the said goods due to the damage.  In the absence of an agreement, or the terms and conditions of the insurance policy, no such deduction could be made by the surveyor but it has been done simply to bring down the amount of compensation below the payable limit. Such a report, which is not based on facts, but has been generated by imagination, therefore, cannot sustain.

13.                     The learned District Forum, however, went wrong in not allowing the deductions of Rs.10,000/-, which is available to the OP under clause 12 of the insurance policy (Annexure R-1-2/B)

14.                     In view of the above discussion, we are of the opinion that the complainant is entitled to Rs.16,185/- (i.e. Rs.26,185/-  minus Rs.10,000/-) with interest @9% p.a. since 11.9.2006 (one month after the Surveyor Report Annexure R-1-2/A).  It would also be entitled to Rs.10,000/-as damages on account of deficiency in service on the part of OPs and Rs.7,000/- towards costs of litigation as ordered by the learned District Forum and also to penal interest allowed in default in para 13 of the impugned order. The rate of penal interest is, however, reduced from 18% p.a. to 12% p.a.

15.                     In view of the above discussion we are of the opinion that both the appeals are partly allowed with the modifications referred to above. The complainant would be entitled to litigation costs of Rs.5,000/-  from the OPs in appeal bearing F.A. No.197 of 2011. 

16.                     The OPs are free to recover, in accordance with law, the amount of interest, costs and damages from the surveyor, who gave the wrong report and generated this litigation between the parties.

                    Copies of this order be sent to the parties free of charge.

Pronounced.

3^rd October, 2011                                                                   sd/-

                          [JUSTICE SHAM SUNDER]

PRESIDENT

Sd/-

[NEENA SANDHU]

MEMBER

Sd/-

[JAGROOP SINGH MAHAL]

MEMBER