JAGANNATH BAG, MEMBER
The petition of complaint has been filed u/S 17 of the Consumer Protection Act, alleging deficiency in service on the part of the OPs and praying for direction upon the OPs to settle the insurance claim of Rs. 24,63,909/- together with interest @ 12 % p.a. and also for payment of compensation of Rs. 20,000,00/- and litigation cost of Rs. 50,000/-.
The Complainant obtained a Standard Fire and Special Perils Policy, which was valid from 16.09.2011 to 15.09.2011 for a sum of Rs. 25,00,000/- covering the risk of the plant and machinery, stock in process and also the plastic factory known as M/s Shib Parbati Industries. During the currency of the policy, a fire took place in the factory premises of the Complainant on 15.10.2011. The local Police was intimated. The Fire Brigade was called . The damages caused by the fire were in respect of the electric room , G.C. sheet of the roof , plant and machinery, electric wires , meter box, board etc, raw materials of plastic scrap and ready goods and a grinding machine. The banker of the Complainant was also informed of the incident . A surveyor was appointed by the Insurance Company and he inspected the site on 17.10.2011. The Fire Brigade report dated 07.11.2011 was submitted from where it appeared that the cause of fire was electric short circuit . The renovation and repairing of the factory caused expenditure to the tune of Rs. 24,63,909/- . Proforma OP No. 4, in furnishing bank statements and stock statements, requested the OP for early settlement of the claim. A claim form was supplied after lapse of more than eight months. In spite of submission of the claim form on 19.06.12 the claim was not settled. In response to the letters of the Complainant dated 13.08.2012 and 13.10.2012 with request for early settlement , the OP Insurance Company offered ,vide their letter dated 23.08.12 for settlement of the claim for an amount of Rs. 71,300/- out of total claim of Rs.24,63,909/-. No proper explanation for such meager amount was advanced by the OP Insurance Company . In the circumstances, the complaint has been filed seeking direction for settlement of the claim of Rs. 24,63,909/- with interest @ 12% p.a. and also compensation of Rs. 20,00,000/- and cost of Rs. 50,000/-.
Notices being duly served upon the OPs , the matter has been contested by OP Nos. 1 - 3.
In their W.V. the OPs have denied all material statements , averments and allegations. It has been stated , inter alia, that after receiving the intimation a surveyor-cum-loss-assessor was engaged and the said surveyor upon examination of the documents provided by the insured assessed the net loss at Rs. 71,300/- . A discharge voucher was sent along with a letter dated 23.08.12 for acceptance of the amount. As there was no response for a long period, the claim was closed and the Complainant was informed by a letter dated 06.10.12 accordingly. Denying all allegations , the OPs claimed that there was no deficiency in service on their part and the complaint was liable to be dismissed.
Both parties filed their respective evidence , questionnaire and replies which have been perused. OPs filed brief notes of argument.
Ld. Advocates appearing for both parties have been heard.
Ld. Advocate appearing for the Complainant submitted that during the validity of the policy , the incident of fire took place which was intimated to the local police station forthwith and also to the OPs including the Proforma OP No.4, being the Branch Manager, Central Bank of India , New Jalpaiguri Branch. As required by the Surveyor, the Branch Manager, Central Bank of India , New Jalpaiguri Branch, furnished vide their letter dated 10.05.2012 statements showing stocks and value of such stock month wise from 30.04.2011 to 15.10.2011wherefrom it would reveal that the Complainant’s stock as on 15.10.2011 was more than Rs. 20,00,000/-. There was no question of depreciation of value of the machineries as new machines were purchased. The assessment of loss by the Surveyor has been wrongly made on the basis of volumetric measurement of debris in spite of bank statements about the value of stock as lying under the Complainant prior to the incident of fire. The Insurance Company failed in their responsibility to take proper view of the bank statements and other documents and the assessment of loss by the surveyor was quite arbitrary. The OP never informed about the details of the assessment of loss in the factory . All records regarding purchase and sale were duly verified by the surveyor, but the survey report was not at all reliable . The complaint should be allowed giving due consideration to the fact that the claim has not been properly examined on the basis of the statements and relevant information furnished.
Ld. Advocate appearing for the OP insurance company submitted that the documents as provided by the insured were considered duly by the surveyor who assessed the total loss at Rs. 71,300/- . Accordingly, the discharge voucher was sent to the insured along with a letter dated 23.08.2012. There was no objection in the matter of assessment of loss by the Surveyor-cum-Loss Assessor . No document in support of the claim preferred by the Complainant could establish that the claim was justified . In fact , no response in regard to the letter of the OP Insurance Company dated 23.08.12 was received . There being no scope of verification of stock with the documents requisitioned by the Surveyor volumetric measurement of debris had to be resorted to from which the loss was assessed at an approximate sum of Rs. 75,000/- in regard to the stock in process, applying the clause of average . The insurer’s liability was to the tune of Rs. 68,137.60 which has been shown in the survey report. After final calculation of loss , the net amount stood at Rs. 71,518/-. In fact, after deduction of RI Premium of Rs. 218/- , the net amount payable stood at Rs. 71,300/- which was offered to the Complainant by a letter dated 23.08.2012. There was no response from the Complainant about the acceptance or otherwise of the amount offered. There was no negligence or deficiency in service on the part of the OPs . As such the complaint does not have any merit and is liable to be dismissed.
Decision with Reasons :
Going by the petition of complaint, pleadings of both parties and materials on record , we take up the following points for our consideration:
- Is the Complainant a consumer ?
- Is there any deficiency in service on the part of the OPs?
- Is the Complainant entitled to the reliefs as prayed for ?
There is no dispute that the Complainant purchased a Standard Fire and Special Perils Policy from the Insurance Company on payment of consideration and the insurance service as obtained by the Complainant was not used for any commercial purpose. As such, the Complainant is a consumer as provided under Section 1 (d) of the Consumer Protection Act , 1986.
The other two points are taken up together for the purpose of brevity of discussion and decision.
There is no dispute that the insured suffered a loss owing to a fire generated from electric short circuit which extended to the electrical room and damaged wiring , machinery and stock in trade in part. Admittedly, as observed in the survey report , stock in trade was damaged in part while electrical fittings like tube lights , ceiling fans were completely burnt and turned to debris.
The fact goes that the Complainant could not furnish all necessary documents for the purpose of verification by the Surveyor. It has been observed by the Surveyor in his report that in spite of sending a letter to the insured for submission of balance sheet with trading account of last two years, purchase memos, trade licence, intimation letter to police station and fire station etc. only some documents were received and accordingly, clause of average was applicable . The volumetric measurement of loss was assessed to be approximately Rs. 75,000/- and as per fresh stock verification , the loss was assessed to be more or less the same. It appears that till the finalization of the survey report documents had not been filed as asked for by the Surveyor. The building not being covered under the policy , the loss in respect of stock in process and the machineries have been taken into consideration by the surveyor.
It is striking to note that though the Complainant in their evidence, vide paragraph 16 and 18, admitted that the OP Insurance Company issued a letter dated 23.08.12 offering for settlement of claim for an amount of Rs. 71,300/- it has been denied vide written reply to question No. 6 raised by the OP Insurance Company stating that he has not received the letter dated 23.08.2012 . Such contradictory statements are ridiculous. The fact goes, that in spite of receipt of the letter dated 23.08.2012 , the Complainant preferred stoic silence without any question or query as to why and under what circumstances, the assessment of loss was limited to the meager amount of Rs. 71,300/-. The survey report went unchallenged and it is here that the Complainant failed to produce any counter evidence challenging the survey report and the assessment of loss. No cogent evidence to counter the assessment of the loss made by the surveyor has been put forth , though the copy of the survey report was made available to the Complainant along with the W.V. filed by the OP Insurance Company.
Ld. Advocate for the OPs cited the Orders of the Hon’ble National Consumer Disputes Redressal Commission as reported in IV (2006) CPJ 84 (NC) , the order of the Hon’ble National Commission as passed in First Appeal No. 493 of 2006 , the order of this Commission in FA/406/2010 , the order of this Commission passed in FA/379/2012 and the order of this Commission in FA/137/2013 and it has been argued that the report of Surveyor is an important piece of document and evidence which can not be brushed aside without sufficient reasoning.
In the present case, the Complainant does not appear to have produced sufficient or cogent proof to show that the report of the surveyor as prepared could be countered by any convincing document/ evidence .
Lastly, it is worth mentioning that the sum of Rs. 24,63,909/- is said to have been spent for ‘renovation and repairing of the factory’ (Paragraph 11 of the complaint petition) though the claim of the same amount is related to the alleged loss of stock and machineries. Such statement of the Complainant is only confusing and makes no point .
Going by the above discussion we are inclined to hold that the claim of the Complainant shall be limited to the assessment of loss as made by the Surveyor, i.e., Rs. 71,300/-. Hence
Ordered
that the complaint be and the same is allowed on contest in part . The OPs.1-3 shall jointly and/or severally pay Rs. 71,300/- to the Complainant with interest @ 8% p.a. w.e.f. 15.10.2011. Such amount shall be paid within 40 days from the date of this order. In default, the Complainant shall be at liberty to take lawful action against the said OPs. There shall be no order as to costs.
