1.      The present First Appeal has been filed under Section 19 of the Consumer Protection Act, 1986 (“the Act”) against the Order dated 11.02.2016 passed by the State Consumer Disputes Redressal Commission, UP, Lucknow (“the State Commission”), in Consumer Complaint No. 113 of 2013, wherein the Complaint filed by the Complainant (Respondent No.1 herein) was partly accepted.

2.      There is 35 days delay in filing the appeal. For the reasons stated in IA/4032/2016 seeking condonation, the delay is condoned.

3.      For Convenience, the parties in the present Appeal being referred to as mentioned in the Complaint before the learned State Commission. “M/s. S.K. Mini Rice Mill” is referred to as the Respondent No.1/Complainant, “National Insurance Co. Ltd.” is referred to as the Petitioner/OP1/Insurer and Punjab National Bank is referred to as Respondent No.2/OP2 in this matter.

4.      Brief facts of the case, as per the Complainant, are that the Complainant had obtained a Fire and Special Perils Insurance policy No.450106/11/11/3100000070 from Petitioner/Opposite Party no.1, National Insurance Co. Ltd (OP-1) valid from 06.07.2011 to 05.07.2012 for which the Complainant paid premium of Rs.16,131/-. 5.          The Complainant's Mill caught fire in the night of 17/18.05.2012 resulting in loss of Rs.42,76,168.20/- as follows:-

6.      Fire brigade reached on spot and by the efforts of fire brigade and villagers fire was extinguished but the stock of Rs.4,97,210/- only could been saved. The intimation of fire was given to OP-1 on 19.05.2012 and same day report was lodged in concerned police station and Punjab National Bank. The Complainant forwarded all records to sale tax and income tax department as per rules and regular audit of his stock was also done. Closing balance of stock was Rs.37,64,260.76/- on 31.03.2010; Rs.46,68,655.50/- on 31.03.2011; and Rs.45,52,518.00/- on 31.03.2012. A surveyor was appointed by the insurer in respect of damages from fire and the complainant forwarded all papers asked by the surveyor like FIR, Report of Fire Brigade, Newspaper cutting, copy of audit report to him. The surveyor has submitted his report but no copy of it was given to the Complainant. Later, the OPs by conspiring with each other, prepared discharge voucher of Rs.8,50,551.00/- and by having the signature of Punjab National Bank, the above amount was deposited in the Complainant’s account. On coming to know, they informed the insurer on 28.02.2013 that the amount is so less which is not acceptable to him. Insurance Company had committed deficiency in service by assessing the above amount by its own will and the report of surveyor was also not given. Being aggrieved, the Complainant filed a Complaint before State Commission claiming total loss of Rs.42,76,168.20/- and if Rs.8,50,551 is deducted from it the remaining amount is Rs.34,25,617.20/- for which he prayed relief and interest @ 18% per annum on the above amount, Rs.5,00,000/- for mental agony and Rs.50,000/- for cost of case.

7.      In its reply, the Petitioner/OP-1 denied the contentions in the complaint that the claim of closing stock on 31.03.2012 by the Complainant’s as not correct. The assessment of loss was done by the surveyor. The survey report was sent to bank and the payment was also made to the financer bank. Survey report was not made available to the complainant. The insurer admitted the insurance of stock on the date of incident in its reply and deduction of 25% in the amount assessed by the surveyor. OP-2/ Bank has stated in its reply that the transfer of Rs.8,50,551/- in the account of complainant was received from insurer. Bank has not committed any deficiency.

8.      The learned State Commission vide order dated 11.02.2016 partly allowed the complaint, with the following observations: -

  “In the light of aforesaid reference it is necessary to see that in this case the report made by the surveyor is how much genuine. From the perusal of surveyor report it is clear that the surveyor has assessed the approximate loss on the basis of volume of one bag, height of the hips and volume and the affected area. There is no concrete basis of this approximation when the surveyor himself gave the description of the stock of the year 2011 and 2012 in his report and admitted total stock for Rs.66,02,811.45/- in April 2012. The surveyor in its report has also stated that according to closing stock audit was of Rs.45,54,518.08/- on 31.03.2012 but according to bank statement it was Rs.57,20,366.34/-, in this circumstance in spite of giving the total stock, the assessment of loss of Rs.11,45,288.00/- is seems to be baseless, in this circumstance the evidentiary value of surveyor report becomes valueless. On the contrary the complainant has submitted the entire balance sheet along with audit report and the complainant himself shown the loss of Rs.40,36,940/- in trading account and balance sheet, there is no reason to disbelieve the same. It is admitted fact that the insurance company has paid Rs.8,50,551.00/-, thus by deducting this amount from Rs.40,36,940.00/- the amount Rs.31,86,389.00/- remains balance, the complainant is entitled to get the same.

  The complainant shall also be entitled to get an interest @ 8% per annum on the above amount from the date of institution of complaint 29.07.2013 till payment. As the interest is being awarded to the complainant along with compensation as such there is no propriety to pass the damages Rs.5 Lacks additionally for mental agony it will be justiciable to award to award Rs.5,000/- as cost of the complaint. Accordingly this complaint is deserves to be partly allowed.

ORDER

  By allowing this complaint partly, the opposite party no.1 is directed to pay Rs.31,86,389.00/-(Thirty One Lacks Eighty Six Thousand) to the complainant as compensation within two months. The complainant shall be entitled to get 8% interest per annum on the above amount of compensation from the date of institution of complaint 29.07.2013 till payment.

  The complainant shall get Rs.5,000/- (Five Thousand) from the Opposite Party No.1 as cost of complaint additionally.

  This complaint is deemed to be dismissed against opposite party no.2.

  The certified copy of this order should be made available to the parties free of cost as per rules.”

9.      Being aggrieved by the impugned order, the Appellant/OP1 filed this present Appeal seeking the following:-

  “In the circumstances it is therefore most humbly and respectfully prayed that this Hon’ble Commission may kindly be pleased to call for the records and set aside the impugned order dated 11.02.2016 passed by the U.P. State Consumer Disputes Redressal Commission, U.P., Lucknow in Complaint No. 113 of 2013 titled M/s. S.K. Mini Rice Mill Vs. National Insurance Co. Ltd. & Anr.

 Any such other and further orders which this Hon'ble Commission may deem fit and proper on the facts and circumstance of the case may also be pleased.”

10.    In the Appeal, the Appellant mainly raised the following issues:

(a)  The State Commission wrongly and erroneously held that the surveyor has assessed the approximate loss based on volume of one bag, height of heaps and volume of affected area and there is no concrete basis for it. It further wrongly and erroneously held that the assessment of loss of Rs.11,45,288/- as baseless and the survey report has no evidentiary value.

(b)  The State Commission wrongly and erroneously held that the Complainant submitted the balance sheet and has shown the loss of Rs.40,36,940/- and that the Complainant is entitled to this amount and after deducting a sum of Rs.8,50,551/- from Rs. 40,36,940/- i.e. balance amount of Rs.31,86,389/-. They have been erroneously directed to pay Rs.31,86,389/- together with interest @ 8% from the date of complaint i.e., 29.07.2013 till payment and costs of Rs.5,000/-.

(c)  The State Commission failed to appreciate the survey report submitted by the surveyors and has proceeded on conjectures and surmises, without any cogent evidence and brushed aside the survey report without any basis or material.

11.    Upon the notice on the memo of Appeal, the Complainant/ Respondent No.1 filed the Written Synopsis and affirmed the facts of the case and reiterated the order of the State Commission. OP-2 vide order dated 23.12.2022 was proceeded ex-parte.

12.    In his arguments, the learned counsel for the OP-1 reiterated the grounds stated in the Appeal. His arguments are centered on the issue that the survey report is an important piece of evidence and the same cannot be brushed aside in the absence of any cogent evidence.  He relied upon the following judgments:

(i) National Insurance Co. Ltd. Vs. Harsolia Motors & Ors, 2023 SCC OnLine SC 409;

(ii) United India Insurance Co. Ltd. Vs. Kantika Color Lab & Ors., (2010) 6 SCC 449;

(iii) United India Insurance Co. Ltd. & Ors. Vs. Roshan Lal oil Mills Ltd. and Ors., (2000) 10 SCC 19;

(iv) Sikka Papers Vs National Insurance Co Ltd(2009)7SCC 777

(v) New India Assurance Co. Ltd. Vs. Pradeep Kumar (2009) 7 SCC 787;

(vi) Sri Venkateswara Syndicate Vs. Oriental Insurance Co. Ltd., (2009) 8SCC 507;

(vii) New India Assurance Co. Ltd. Vs. Luxra Enterprises (P) Ltd. & Anr., (2019) 6 SCC 36;

(viii) New India Assurance Co. Ltd. Vs. Sri Buchiyamma Rice Mills & Anr., (2020) 12 SCC 105;

(ix) National Insurance Co. Ltd. Vs. Hareshwar Enterprises (P) Ltd. & Ors., 2021 SCC Online SC 628;

(x) Khatema Fibres Ltd. Vs. New India Ass. Co. Ltd., 2021 SCC Online SC 818;

(xi) United India Insurance Co. Ltd. Vs. Ajmer Singh Cotton & General Mills & Ors., (1999) 6 SCC 400;

(xii) National Insurance Co. Ltd. Vs. Nipha Exports (P) Ltd., (2006) 8 SCC 156;

(xiii) UoI & Ors Vs. Master Construction Co (2011)12 SCC 349;

(xiv) New India Ass. Co. Ltd. Vs. Genus Power Infrastructure Ltd., (2015) 2 SCC 424;

(xv) United India Ins. Co. Ltd. Vs. Antique Art Exports (P) Ltd., (2019) 5 SCC 362;

(xvi) Wapcos Ltd. Vs. Salma Dam Joint Venture & Anr., (2020) 3 SCC 169;

(xvii) Export Credit Guarantee Corporation of India Ltd. Vs. Garg Sons International, (2014) 1 SCC 686;

(xviii) Surajmal Ran Niwas Oil Pvt Ltd Vs UOI(2010)10SCC 567;

(xix) United India Insurance Co. Ltd Vs Harchand Rai (2004)8 SCC 644;

(xx) Vikram Greentech India Ltd. Vs. New India Ass. Co. Ltd., (2009) 5 SCC 599;

(xxi) Oriental Insurance Co. Ltd. Vs. Sony Cherian, (1999) 6 SCC 451;

(xxii) General Assurance Society Ltd. Vs. Chandmull Jain, AIR 1966 SC 1644;

(xxiii) National Insurance Company Ltd. Vs. Chief Electoral Officer & Ors., (2023) 6 SCC 441.

13.    On the other hand, the learned Counsel for the Respondent No.1/Complainant argued in support of the impugned order and sought to dismiss the present First Appeal with costs.

14.    I have examined the pleadings and connected documents placed on records and rendered thoughtful consideration to the arguments advanced by learned Counsels for both the parties.

15.    It is uncontested position that the Complainant had obtained a Fire and Special Perils policy No.450106/11/11/3100000070 from OP-1 valid from 06.07.2011 to 05.07.2012. During the validity of the policy, on the nigh rog 17-18.05.2012, the Complainant's Mill caught fire and he sustained loss of Rs.42,76,168.20/-. It is also undisputed that the Complainant had taken all necessary actions including notifying the OP-1. The Complainant had forwarded all records to sale tax and income tax department as per rules and regular audit of stock was also done. Closing stock balance was Rs.37,64,260.76/- on 31.03.2010, Rs.46,68,655.50/- on 31.03.2011 and Rs.45,52,518.00/- on 31.03.2012. OP-1 had appointed a surveyor to assess the loss, and the Complainant had forwarded necessary records to the surveyor. The surveyor assessed the loss and submitted his report. However, the same was not provided to the Complainant. Later, the OPs prepared a discharge voucher for Rs.8,50,551 and by taking signature of OP-2, the amount was deposited in the Complainant’s account. On realising the same, the Complainant protested on 28.02.2013 that the amount is unacceptable to him and claimed the total loss sustained by him amounting Rs.42,76,168.20/- and as Rs.8,50,551 was paid the balance is Rs.34,25,617.20/- due to be paid.

16.    It is undisputed that the Complainant produced the records and substantially established that the stocks destroyed in fire in the incident is to the extent of Rs.42,76,168.20. It is also a matter of record vide surveyor report dated 21.09.2012 that to assess the damage and loss, the surveyor had taken recourse to approximation of the loss based on volume of one bag, height of the heaps and volume and the affected area. This is clearly inaccurate calculation, that too when once the surveyor himself had brought out the description of the stock of the year 2011 and 2012 in his report and admitted the total stock in April 2012 as Rs.66,02,811.45/-. The surveyor in his report has also brought out that according to closing stock audit, it was Rs.45,54,518.08/- on 31.03.2012. However, it was Rs.57,20,366.34/- as per bank statement. Notwithstanding these clear documentary details with respect to stocks, which are not refuted, based on the approximation of one bag, heap of bags and area, the surveyor approximated the same and assessed the loss as Rs.11,45,288. Clearly, the said method of approach of the surveyor towards assessment of loss, while the stock records are available otherwise, is questionable and does not reflect the loss suffered by the Complainant. On the other hand, the Complainant produced the requisite accounting records, including the balance sheet and audit report and established the loss as Rs.40,36,940/-. There is nothing on record to refute or disbelieve the same. It is also admitted position that OP-1 paid Rs.8,50,551/-, to the Complainant. Therefore, deducting this from Rs.40,36,940/- the amount due to be paid by the Insurer to the Complainant is Rs.31,86,389/-.

17.    In Narsingh Ispat Ltd. Versus Oriental Insurance Company Ltd. & Anr., 2022 SCC OnLine SC 535, the Hon’ble Supreme Court has held as under:

“13. In paragraph 8 in the case of Ishar Das Madan Lal1 , this Court held thus:

“8. However, there may be an express clause excluding the applicability of insurance cover. Wherever such an exclusionary clause is contained in a policy, it would be for the insurer to show that the case falls within the purview thereof. In a case of ambiguity, it is trite, the contract of insurance shall be construed in favour of the insured. [See United India Insurance Co. Ltd. v. Pushpalaya Printers (2004) 3 SCC 694, 5 Peacock Plywood (P) Ltd. v. Oriental Insurance Co. Ltd. (2006) 12 SCC 673 and United India Insurance Co. Ltd. v. Kiran Combers & Spinners (2007) 1 SCC 368]”        (emphasis added)        

18.    With due regard to the foregoing deliberations, I do not find any reason to interfere with the order of the learned State Commission in CC. No. 113 of 2013 dated 11.02.2016. The First Appeal No. 437 of 2016 is therefore Dismissed.

19.    All pending Applications, if any, stand disposed of accordingly.

20.    The Registry is directed to release the Statutory deposit amount, if any due, in favour of the Appellant, after compliance of the order of the learned State Commission.