DR. SADHNA SHANKER, MEMBER 1. These four appeals have been filed under Section 19 of the Consumer Protection Act, 1986 (hereinafter referred to as “the Act”) assailing the impugned common order dated 01.11.2018 passed by the State Consumer Disputes Redressal Commission, Bihar (hereinafter to be referred to as ‘State Commission’) in complaints No. 16 and 17 of 2014 whereby the complaints were allowed. 2. We have heard the learned counsel for M/s Hari Om Surgicals and M/s Hari Om Engerprises (hereinafter referred to as the ‘complainants’) and the learned counsel for the Oriental Insurance Co. Ltd. (hereinafter referred to as the ‘insurance company’) and perused the record including the State Commission’s impugned Order dated 01.11.2018 and the memorandum of appeal. No one appears for the State Bank of India (hereinafter referred to as the ‘bank’). 3. Since these four appeals have been filed against common Order dated 01.11.2018 and similar questions of facts and same questions of law were involved therein, they are being disposed of by this common order. 4. The appeals have been filed with reported delay (15 days in F.A. No. 353 and 354 of 2016 and 191 days in F.A. No. 1021 and 1022 of 2016). In the interest of justice, inter alia considering the reasons given in the applications for condonation of delay, the delay in filing the appeals is condoned. 5. The brief facts of the case are that the complainant, namely, M/s Hari Om Surgicals, in F.A. No. 353 of 2019, which is dealing in business with surgical items, took an insurance policy for the period from 23.02.2012 to 22.02.2013 for sum insured of Rs.10,00,000/- against the building, Rs. 12,50,000/- for stock in trade and money from the insurance company. The complainant, namely, M/s Hari Om Enterprises, in F.A. No. 354 of 2019, engaged in the sale of LG brand mobiles, obtained a Shopkeeper Policy for the period from 10.05.2011 to 09.05.2012 for sum insured of Rs.32,20,000/- in respect of stock in trade and money from the insurance company. Both establishments shared the same premises, one, at ground floor and, two, at second floor and the proprietor used the first floor of the same premises for residence purpose. In the mid-night of 30.03.2012, a fire broke out due to electrical short circuit in the ground floor causing substantial damage to both the shops and the overall premises. The incident was promptly reported to the Adampur Police Station and the insurance company. The insurance company issued a claim form on 27.04.2012 and the complainant submitted the claim form on 20.06.2012. The insurance company appointed surveyors, Mr. Anand Kumar Rungta as also Mr. Ajay Kumar Ojha in order to assess the fire-related loss, demanded certain documents from the complainant. As the necessary documents were burnt in the fire, the complainant submitted verified bank stock statements for specific periods and other financial documents as evidence of the stock at the time of the incident. However, the insurance company, through a letter dated 29.10.2012, again demanded the documents already destroyed in the fire, just to evade the claim. It is alleged that the provided stock statements, profit and loss account, and balance sheet are adequate for assessing the stock at the insured premises during the fire and the failure on the part of the insurance company to process the claim without apparent cause is deficiency in service on its part. 6. Being aggrieved by non-processing of the claim by the insurance company against M/s Hari Om Surgicals, the complainant filed a complaint bearing no. 16 of 2014 before the State Commission with the following prayer:- - Fire insurance Claim of Rs.12,31,230/- as against the Insurance Company on the basis of the terms and conditions of Insurance Policy and Rs. 10,04,069/- for damage of insured building.
- Compensation of Rs.2,00,000/- on account of deficiency in service on the part of the opposite party in settling the genuine claim of the insure which resulted in grave mental and physical harassment besides economic loss in the profession of the complainant-insured.
- Litigation cost of Rs.20,000/-.
The complainant further prayed that interest @ 18% be also given on the above amount from the date of order till realization. - The other relief/reliefs to which the Hon'ble Commission fines entitles in favour of the complainant.
Also, being aggrieved by non-processing of the claim by the insurance company against M/s Hari Om Enterprises, the complainant filed another complaint bearing no. 17 of 2014 before the State Commission with the following prayer:- - Fire insurance Claim of Rs.30,75,480/- as against the Insurance Company on the basis of the terms and conditions of Insurance Policy.
- Compensation on account of deficiency in service on the part of the opposite party in settling the genuine claim of the insure which resulted in grave mental and physical harassment besides economic loss in the profession of the complainant-insured.
- Litigation cost of Rs.20,000/-.
The complainant further prayed that interest @ 18% be also given on the above amount from the date of order till realization. - The other relief/reliefs to which the Hon'ble Commission fines entitles in favour of the complainant.
7. The insurance company contested the complaints by filing written statements and stated that the complainant is involved in business of surgical items and engaged in mobile sales, therefore, it is not a consumer and the complaint is not maintainable. Another ground is that the State Commission has no pecuniary jurisdiction to entertain this complaint. It is further stated that due to the complainant's failure to provide requested documents, the assessment could not be made. An investigation, prompted by an RTI application to the commercial taxes department, revealed discrepancies that the bills supplied by the complainant were not reflected in VAT returns. The insurance company asserted that the complainant's inability to substantiate the claim, coupled with the substantial amount sought, indicated a lack of genuineness, warranting the dismissal of the complaint.Top of Form 8. The State Commission, after considering the facts and circumstances of both the cases, passed the following order: “Accordingly, in complaint case bearing no. 16/14 it is directed to op no.1 Insurance co. to pay to complainant sum of Rs.7,50,000/ ( Seven Lac Fifty thousand) only i.e. 60% of the insured amount on account of loss for-stock in trade with interest @ 9% p.a. and Rs.5,00,000/- (Five Lacs) only i.e. 50% of the insured amount on account for damages to building along with litigation cost Rs.10,000/- (Ten Thousand) only. The awarded amount shall be paid with interest @ 9% p.a. within two months of this order. If the order is not complied within time as mentioned above, the op no. 1 shall be liable to pay interest @ 12% p.a. on aforesaid payable amount from the date of order till payment to complainant. In complaint case bearing no. 17/14, it is directed to op no.1 Insurance co. to pay in favour of the complainant through its bank loan account for sum of Rs.17,13,933/- (Seventy lacs thirteen thousand Nine hundred thirty three) only with interest @ 9% p.a. within two months from date of order along with litigation cost Rs.10,000/- (Ten Thousand) only. If the awarded amount is not paid within aforesaid period as mentioned above, the interest rate shall stand enhanced to 12% p.a. payable to complainant from the date of order till final payment to complainant.” 9. Being aggrieved by the order dated 01.11.2018, both the sides have filed appeals before this Commission. Appeals no. 353 and no. 354 of 2019 have been filed by the complainants for enhancement of compensation. Cross appeals no. 1021 of 2019 and 1022 of 2019 have been filed by the insurance company for setting aside the Order dated 01.11.2018 of the State Commission. 10. Learned counsel for the complainants has argued that the direction of the State Commission to the insurance company to pay only a portion of the claimed amount was without a valid basis. Despite the surveyor acknowledging a total loss, the State Commission allowed only 60% of the insured amount for stock loss and 50% for building damage. The counsel further argued that the loss of Rs.12,31,230/- was precisely determined from documents submitted to the insurance company and the surveyor assessed the loss on the basis of documents submitted by the complainant before him, therefore, there was no justification for deducting any amount from the assessed loss. 11. The Learned counsel for the insurance company has argued that the State Commission failed to appreciate that the complainant is not a ‘consumer’ under the purview of the Act. The counsel further contends that despite repeated requests, the complainant failed to provide the purchase bills for proper loss assessment and many bills submitted by the complainant were not confirmed in the VAT returns filed for the purchased goods. Additionally, the counsel asserted that the State Commission did not duly consider the significance of the surveyor's findings, emphasizing that if these findings are to be rejected, compelling reasons must be provided. 12. The question which falls for our consideration is whether the insurance company is obligated to fulfill the insurance claim and, if so, to ascertain the extent of the loss to be compensated to the complainant. 13. As per the insurance company the complainant failed to provide essential documents for proper loss assessment and that discrepancies in bills and purchase transactions raise doubts about the genuineness of the claim. On the other side, the complainant contended that they have submitted adequate evidence, including verified bank stock statements and other financial documents, to support the claim. 14. It is admitted that a fire occurred on the night of 30.03.2012 in the insured premises. The appointed surveyor assessed the loss at Rs.17,13,933/- after deducting 40% of the amount for non-submission of relevant documents by the complainant. Despite the deduction, the surveyor, under the 'Remark' column, expressed the opinion that the claim is not payable to the complainant due to non-furnishing of documents. In the case of M/s Hari Om Enterprises, we find no reason to interfere with the State Commission’s Order since the surveyor has already deducted 40% on account of non-submission of account papers while arriving at the figure of loss of fire i.e. Rs.17,13,933/-. 15. However, in complaint no. 16 of 2014 which is M/s Hari Om Surgicals, the case of the insurance company is that the complainant failed to furnish the relevant documents and when they verified the documents furnished by them through the VAT returns it was found that many of the purchases were not reflected in their VAT return. 16. As regards the discrepancies with respect to VAT returns is concerned, the contention does not seem to be of any merit as the transactions between the complainant and the commercial taxes department is not relevant to the assessment of loss due to fire. The complainant had furnished the documents which were available with them, which the Insurance Company has not denied. In this regard, the Order of the Hon’ble Supreme Court in “I.C. Sharma v. Oriental Insurance Co. Ltd., (2018) 2 SCC 76” is relevant, wherein it was held that - “12.4. … The claim should not have been rejected only on the ground that invoices were not produced. The affidavit of the appellant clearly indicates both the nature of the items lost and the value thereof. This is supported by corroborative evidence of the list of items given to the police…. …We may also add that if the insurance company desires that item wise valuation should be given for items over and above a certain value then it is the duty of the insurance company to advise the insured at the time of issuing the first policy of insurance and at the time of each renewal. The insurance company must at the time of accepting the premium advise the policyholder properly. The insurance company cannot accept the premium without asking for any details and later deny its liability on the ground that such details were not given…” It is thus apparent from the above observations by the Hon’ble Supreme Court that non-production of the original documents/invoices cannot be a ground for repudiation when other corroborative documents are available. The insurance company cannot raise question over the tax compliance of the insured when they have to only deal with the stocks that were damaged at the time of fire. 17. It is also clear that non-processing of the claim of the insured, in both the cases, is not correct in view of the decision of the Hon’ble Supreme Court in “I.C. Sharma (supra) and amounts to deficiency in service. In the case of M/s Hari Om Surgicals, it is seen that although there is no survey report but the State Commission has adopted the reasoning of the surveyor from the surveyor’s report filed in the case of M/s Hari Om Enterprises and deducted 40% of the amount of the loss claim which in our opinion is fair and reasonable. As regards the claim against damage of the building, it was further contended by the insurance company that the complainant has not made any claim with regard to the building for which the State Commission has granted 50% of the valuation as per the valuation report filed by the insured. As per the Insurance Claim Form filed, the following is given: 2. Please give following details pertaining to : All the policies involved in fire/accident ___________________________________________________________________________ Policy No. Risk Covered Location Sum Insured Estimated amount of loss 332900/98/2012999 Shop Rani Chandra Rs. 12,50,000 Rs. 11,50,000 It is evident that in the claim form, the sum insured as mentioned is Rs.12,50,000/- which pertains to the stock in trade as per the policy and the estimated amount of loss is Rs. 11,50,000/-. Hence, we are of the opinion that when the claim was not made against the building before the insurance company, the direction to pay Rs. 5,00,000/- i.e. 50% of the insured amount on account of the building is liable to be set aside. 18. Therefore, the direction to pay an amount of Rs. 5,00,000/- towards damage of the building, in complaint no. 16 of 2014, is set aside and the rest of the directions of the State Commission, in both the cases, are not disturbed. The awarded amount shall be paid within a period of four weeks from today. 19. In view of the above, all the four appeals are disposed of. All pending applications, if any, stand disposed of. | 
