PER  JAGROOP  SINGH   MAHAL, MEMBER

                    This order will dispose of the aforesaid two appeals, first bearing F.A. No.132 of 2011 filed by the OPs and the second bearing F.A. No.196 of 2011 filed by the complainant against the order dated 11.4.2011, rendered by the ld. District Consumer Disputes Redressal Forum-II, UT, Chandigarh (hereinafter referred to as the District Forum) vide which it allowed the complaint filed by the complainant and directed the OPs as follows:-

(i)       to pay an amount of Rs.52,887/- to the complainant for the loss caused to it due to heavy rains in view of the terms and conditions of the Standard Fire and Special Perils Policy No.353000/11/05/11/  00000325;

(ii)      to pay an amount of Rs.20,000/- as damages on account of deficiency in service on the part of OPs;

(iii)     to pay an amount of Rs.7,000/- as litigation costs.

        The above order was to be complied with by the OPs within a period of 30 days from the date of receipt of its certified copy, failing which OPs were to pay the aforementioned amounts along with interest @18% per annum from the date of filing of the complaint till the date of actual payment besides costs of litigation of Rs.7,000/-.

2.                                                  The brief facts of the case are, that the complainant got its finished and raw material insured  from the OPs vide Standard Fire and Special Perils Policy No.353000/11/05/11/00000325, which was effective from 23.11.2005 to 22.11.2006 vide Cover Note Annexure C-3. It was stated that 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.1,21,350/- and claim thereof was lodged with the OPs. The OPs appointed surveyor, who inspected the spot and thereafter, assessed the loss. The OPs wrote letter dated 7.7.2006 and sought some information. The said letter was duly replied and the required information was sent to the OPs vide letters dated 19.7.2006 and 31.7.2008. Despite it, the OPs did not settle his claim and filed the same being barred by limitation, regarding which the complainant was informed vide letter dated 18/26.9.2008. It was alleged that despite sending letters Annexures C-9, C-10 and ultimately a legal notice, the OPs did not redress his grievance. Hence this complaint. 

3.                                                 In their written reply the OPs admitted that the complainant got its finished goods and raw material insured vide Standard Fire and Special Perils Policy No.353000/11/05/11/  00000325. It was also admitted that the loss was caused to the said material due to rains and the surveyor was appointed and he assessed the loss.  It was admitted that the loss took place on 31.5.2006 and the claim was lodged on the same day. It was alleged that the OPs wrote number of letters dated 30.6.2006, 15.7.2006, 8.11.2006, 11.12.2006 and 25.1.2007 requiring the complainant to furnish the information mentioned in those letters but the complainant failed to do so  due to which, the claim was closed as ‘No Claim’ and intimation to this effect was given to the complainant vide letter dated 20.2.2007. It was pleaded that the present complaint was filed in the year 2010, so, the same was barred by limitation. It was further stated that as the required information was supplied after expiry of two years, the claim of the complainant was rightly not entertained. Denying all other allegations of the complaint, OPs made a prayer for dismissal of the complaint.

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 mentioned in the opening para of this order.

6.                                                  Feeling aggrieved, the instant appeals have been filed,  one by the OPs for setting aside the impugned order and other by the complainant for modification of the impugned order as well as 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.                                                  The learned Counsel for the OP has argued that the complaint was barred by time because the matter was closed on 20.2.2007 vide Annexure R-1-2/A whereas the complaint was instituted on 13.5.2010. However, the complainant has contended that he never received the said letter. This letter was sent through registered A/D.  However, the OP has not produced any postal receipt to show that the letter was ever put in transmission, nor any acknowledgement is placed on file to suggest if the complainant ever received the said letter. Contrary to the facts mentioned in the Annexure R1-2/A, a copy of the Dispatch Register has been produced to suggest that the letter was dispatched vide dispatch No.3643.  Annexure R-1-2/A, however, shows that there is no such dispatch number put on the said letter.  The signatures of the person who received the letter do not exist on the dispatch register.  This dispatch register was not believed to be correct even by the learned District Forum on the ground that it could have been prepared by the OPs at any time.  The delivery of the letter dated 20.2.2007 is therefore, not proved.

9.                                                        There is another circumstance which is equally important to suggest that this letter Annexure R-1-2/A has been fabricated subsequently. When the complainant submitted the documents vide their letter dated 31.7.2008, the complainant was informed by the OPs vide letter Annexure C-8 dated 18/26.9.2008 that the claim has become time barred since more than two years have elapsed. No mention was made in it of the letter Annexure R-1-2/A dated 20.2.2007. The complainant vide letter dated  29.9.2008 (Annexure C-9) wanted to know from the OPs as to under which provision of the Insurance Policy the claim became barred by time and from which date limitation would start.  In reply to this letter the OPs sent a letter Annexure C-10 but no mention of Annexure R-1-2/A was made in it also. The complainant served a notice Annexure C-12, reply thereof was submitted by OPs on 15.2.2010 vide Annexure C-13 in which also the letter dated 20.2.2007 was not mentioned by the OPs. It is therefore, clear that Annexure R-1-2/A did not exist till 15.02.2010, on which date the reply Annexure C-13 was sent to the complainant in response to the legal notice served by him and it has been fabricated subsequently.

10.                                                    The claim was, lodged by the complainant on the date on which he suffered damage.  The claim remained under consideration with the OPs  and they repudiated the claim for the first time vide letter dated 18/26/.9.2008 Annexure C-8.  The limitation therefore, would start running from this day and the present complaint filed on 13.5.2010 is within limitation.

11.                                              The OPs have taken another ground in Annexure C-8 and C-10 that documents were not submitted by the complainant for about two years and therefore, the claim has become time barred.  The complainant requested the OPs to intimate the relevant provisions under which a claim, which is pending for payment with the OPs would be barred by time if for two years they do not make payment of the amount claimed.  The learned Counsel for the OPs is unable to point out towards any of the condition of the policy.  Otherwise also the Surveyor had already been appointed, who had submitted his report Annexure R-1-2/B on 4.9.2006.  Even, in spite of receipt of the report payment was not made to the complainant, which was therefore, severe negligence on the part of OPs and deficiency in service that even after receiving the report of the surveyor under which the amount was payable to the complainant, they neglected to pay the amount and when subsequently, the complainant asked them about the claim they took shelter behind an unknown provision of law that the claim has become barred by time. This contention of the OPs contained in letters Annexure C-8 and C-10 is therefore, devoid of merit.

12.                                                    Since the claim was pending with the OPs and they have not cleared the same, therefore, they were bound to consider the documents sent by the complainant vide letter Annexure C-6 and remaining documents already sent by complainant on 19.7.2006 vide annexure C-5. There was therefore, deficiency in service on the part of the OPs.

13.                                                    The learned counsel for the OPs has argued that in view of the survey report Annexure R-1-2/B of the surveyor, only a sum of Rs.15827/- was payable but the District Forum has allowed the compensation in excess of the report, which cannot sustain. We do not find merit in this arguments.  There is no denying of the fact that the report of surveyor is a relevant document to determine the amount of compensation but it is not so sacrosanct that the  complainant cannot claim compensation in excess of the amount mentioned by the Surveyor. In the present case the report shows various discrepancies, which lead us to conclude that the Surveyor did not apply his mind before submitting the report.  The complainant had claimed compensation for 340 Kgs of unperfumed Agarbathi as mentioned in Annexure C-4 but the Surveyor has mentioned the quantity claimed as 290Kgs instead of 340Kgs.  Regarding finished goods the complainant had claimed 9000/ units  @7/- per unit but the Surveyor mentioned only 1158 pieces as the quantity claimed instead of 9000/-. So far as 123Kg perfume, is concerned the Surveyor showed claimed amount as Rs.27,060/- as the value @220/- per kg but did not allow any compensation on the ground that laboratory report has not been produced.  The contention of the complainant is that when the perfume mixes with water, it evaporates and therefore, there could not be any laboratory report in this respect. The OPs have not produced any such evidence to suggest if there could be any laboratory report regarding the perfume which has been damaged or destroyed due to rains and consequently evaporated.  We are of the opinion that the District Forum has rightly allowed Rs.27060/- on account of damage to the perfume.

14.                                              The Surveyor has deducted the profit margin @20%  from the claimed amount. He has not mentioned the condition of the insurance policy under which such an amount could be deducted from the amount claimed. Even it is not proved if the profit margin in case of Agarbathi is @20%. The learned Counsel for OPs has also failed to show as to under which provision the profit margin could be deducted from the amount claimed. Along with the damage to the Agarbathi,  the complainant not only lost the material but the profit thereon also.    The Surveyor therefore, wrongly allowed the deduction of Rs.8951/-

15.                                              The learned District Forum rightly rejected the deduction of Rs.10,000/- made by the Surveyor because it does not fall under general exclusion No.1 and 5 of the policy placed on file.

16.                                              In view of the above discussion, we are of the view that the complainant was entitled to an amount of RS.64,297/- (Rs.44757 + Rs.27,060-7520 (salvage) =Rs.64297/-) with interest @9% p.a. since 4.10.2006 (one month after the report Annexure R-1-2/B of the surveyor). Remaining directions in the impugned order regarding damages and litigation costs shall remain the same except the payment of penal interest @18% p.a., which is reduced to @12%.p.a. Therefore, both appeals are partly allowed and the impugned order is modified.  The complainant would also be entitled to Rs.5,000/- as costs of litigation in Appeal No. 196 of 2011.

17.                                              The amount of interest, costs and damages may be recovered from concerned official of the OPs who even in spite of receipt of report Annexure R-1-2/B of the Surveyor did not pay the amount of compensation to the complainant for about 4 years.

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

Pronounced.

                                                          Sd/-  

4^th October, 2011                                       [JUSTICE SHAM SUNDER]

PRESIDENT

Sd/-

[NEENA SANDHU]

MEMBER

Sd/-

[JAGROOP SINGH MAHAL]

MEMBER

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