Delhi

East Delhi

CC/67/2018

VIJAY KR. - Complainant(s)

Versus

N.I.C. - Opp.Party(s)

25 Mar 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION (EAST)

GOVT. OF NCT OF DELHI

CONVENIENT SHOPPING CENTRE, FIRST FLOOR,

SAINI ENCLAVE, DELHI – 110 092

 

C.C. No.67/2018

 

	M/S. VIJAY KUMAR JAIN & SONS Through Its Prop. Sh. Vijay Kumar Jain S/o Shri Surender Kumar Jain R/o H.No.26, Gali No.02, Saheed Bhagat Singh Colony, Karawal Nagar, Delhi – 110094.	….Complainant
Versus
	National Insurance Co. Ltd. Through its Manager Having Office at : 101-106, N-1, BMC House, Connaught Place, New Delhi – 110001.   Bank of India Through its Manager Having Office at : X-918, Chand Mohalla, Near Jheel Bus Stop Gandhi Nagar, Delhi 110031.	…….OP1             ……OP2

 

Date of Institution: 26.02.2018

Judgment Reserved on: 20.03.2023

Judgment Passed on: 25.03.2023

CORUM:

Sh. S.S. Malhotra (President)

Ms. Rashmi Bansal (Member)

Sh. Ravi Kumar (Member)

 

Order By: Ms. Rashmi Bansal (Member)

 

JUDGEMENT

        The present complaint filed by the complainant against OP for deficiency in service in not clearing his insured amount against the Burglary, Fire and Special Peril policy, along with compensation for suffering, mental and physical harassment and litigation cost.

Initially the case was filed against OP1, the insurance company and OP2, the bank, however,OP2 was deleted from the array of the parties vide order dated 08.06.2018 being not a necessary party and as per amended memo of parties, the case is against one OP only.

1. It is the case of the complainant that he is the proprietor of the business of cloth, fabrics and readymade garments running from the rented shop. On the offer from the OP2, for the insurance of his business through OP1, he got his business insured from the OP1 in 2013. For financial year 2016-17, the Standard Fire and special Peril Policy number 390,401/11/15/3100001357 and Burglary B.P policy number 390401/46/15/7500000560 was issued to him for the period from 30.03.2016 to 29.3.2017, on payment of premium of Rs.  3810 and Rs. 790/- respectively and business was insured for a total sum of Rs.20 lakh. The amount of premium used to be deducted from his bank account every year and he was regular to update the stock record with OP.
2. Complainant submits that on 01.08.2016, water logging occurred in the locality of his shop due to heavy rain and the entire stock of the garments was destroyed, because of which he suffered heavy losses in the business. Complainant immediately informed the OP and provided the stock details, as on 01.08.2016. OP’s executive visited the shop, taken the photographs. After 1-2 days, the surveyor, appointed by OP also visited the shop, taken the photograph, collected the evidence of loss and checked the store. All the details as required by OP were provided to the surveyor by the complainant.
3. Complainant further submits that again on 14.09.2016, the executive of the OP came to him for the assessment of loss, and asked for the claim form which was given by the complainant along with all the relevant documents. The loss assessed by the complainant was of Rs.16,35,980/-. Complainant requested OP for the clearance of the same. On 28.09.2016 the complainant has disposed of the salvage after taking permission, which was sold Rs.21,000/- only. Complainant submits that despite several request to OP, his claimed amount of Rs. 16,35,980 /- was not cleared by the OP and due to his poor financial condition, he has accepted under pressure the offer of OP for 50% amount of his claim amount as full and final settlement as assessed by the surveyor.
4. On 22.06.2017, complainant got shocked when he received an amount of Rs.2,69,733/- from OP through RTGS and upon inquiry from OP he was informed that this is interim amount and final amount shall be transferred within some time. Complainant request letters dated 21.08.2017, 07.09.2017 and 26.09.2017 were not replied by OP. Complainant submits that due to the act of the OP, the complainant is mentally and physically harassed, tortured and has suffered irreparable loss but OP did not clear the claim amount, complainant prays for the release of the balances claim i.e.
   Rs. 16,35,980/–, Rs. 2,69,733/-, i.e. Rs. 13,66,247/- amount along with compensation.
5. Upon notice of OP contested the claim and filed its reply, though denying the contents of the complaint, has admitted that the shop was insured with OP,  that the complainant lodged a claim vide letter dated 14.09.2016 and that M/s Adarsh Associates was deputed as surveyor and submitted his report dated 21.03.2017. The policy, the incidence of heavy downpour, water logging/inundation, damage to the stock, the loss to the complainant are not disputed. OP states that there is no deficiency in service on the part of OP as the OP has immediately deputed surveyor to conduct the survey, and as per report of the surveyor, and on receipt of the consent about the settlement of his claim from the complainant, the OP has made a payment of Rs.2,69,733/- on 19.06.2017against the claim amount as a full and final settlement to the complainant. OP further submits that the alleged stock was damaged due to the storage of the rainwater in the shop because it was lower from the road level and the complainant did not make any provision to stop in-flow of water, in case of rain. OP further submits that complainant has received the offer amount from the OP as a full and final settlement and now there is no amount payable towards the complainant.
6. Complainant has filed his rejoinder denying the version of OP is WS and reiterated his case in the complaint. Both the parties had filed their respective evidences, related documents and written arguments.
7. In support of his case, the complainant has filed the following documents

1. the copy of the rent agreement for the period of 2015–2016 and 2016–2017, Ex. CW1/A and Ex. CW1/A1;
2. the copy of the policy, Ex. CW1/B;
3. the copy of the stock record duly received by OP2 for the month of April, 2016 – July 2 017, Ex. CW1/C1 – Ex. CW1/C3;
4. the copy of the stock dated 01.08. 2 016, Ex. CW1/D;
5. the photographs of the stock – loss, Ex. CW1/E;
6. the copy of the fire claim form, Ex. CW1/F;
7. the copy of the permission of selling the salvage, EXCW1/G

8. OP has filed following documents in support of its contention,
   1. The copy of the insurance policy, Ex. RW1/1,
   2. report of the surveyor Ex. RW1/2,
   3. copy of detail of the stock, Ex. RW1/3,
   4. copy of declaration is Ex. RW1/4,
   5. statement of complainant, Ex. RW1/5;
   6. copy of the rent agreement, Ex. RW1/6, RW1/7;
   7. calculation set, Ex. RW1/8;
   8. copy of cancelled cheque, receipt and payment of Rs.2,69,7,33/-,Ex. IW1/9;
9. The Commission has carefully gone through the documents filed by both the parties and heard the Ld. Counsels for the parties. There is no dispute between the parties with respect to the goods in shop insured, the downpour on 01.08.2016 and the damage caused to the goods due to accumulation of water.  The surveyor reported that loss fall under coverage of the policy and has recommended for the indemnification of the net assessed loss of Rs. 6,22,995/-  being the least of his assessment. The whole issue is as to how much loss has actually caused to the complainant and how much loss was to be indemnified by OP in the facts and circumstances of the case. Complainant has claimed a loss of Rs.16,35,988/- and OP has paid Rs. 2,69,733/- taking the plea that complainant has agreed to accept the 50% of the assessed amount by the surveyor.
10. Perusal of the surveyor report shows that surveyor has considered assessment of the insurance on two basis, first on the basis of trading account, prepared for the period 01.04.2016 till date of loss to the total value of Rs.6,22,995/-  and the other on the basis of costing/valuation of a stock, physical inventory made by them on the date of loss at the total value of Rs. 12,02,945/- but has recommended to settle the loss at Rs.6,22,995/-  being the least of the two basis.
11. No ground or reasoning given by the surveyor or by OP for granting least of the two amounts of Rs. 6,22,995/-. Just because the said amount is least cannot be considered as sufficient ground to grant the less claim amount to complainant. No conditions has been filed by OP to support its grant of the least amount to the complainant. The perusal of the documents on record filed by the complainant show that the regular stock details were filed with OP and immediately before the heavy rain on 01.08.2016, i.e. the stock of May and June 2016 is more than 20 lakh, which is not denied by OP and after the mis happening, in August 2016 the complainant assessed loss as Rs. 16,35,980/- on the basis of the stock available in the shops, which provide preponderance of probability that stock in the month of July 2016 may be approximately somewhere near the 20 lakhs in the shop.  Even the cost of the total stock as valued by the surveyor physically, as per its report’s table 2, was assessed Rs. 18,06,249/- and damaged stock, Rs. 14,62,509.09/-, which also corroborate approximately complainant assessment of Rs. 16,35,980/-.
12. Out of value of the damaged stock of Rs. 14,62,509.09/-, the surveyor has deducted cost of sound stock, 10% towards non-moving/shop soiled stock, less salvage value of 50,000/-, less 5% towards policy excess and thereafter assessed the net adjusted loss to Rs. 12,02,945/, but failed to explain how these deductions have been done, how the salvage amount is assessed to 50,000/- and how much soiled stock / sound stock is assessed. The salvage value as filed by the complainant of Rs. 21,000/- is not denied by OP.
13. OP has also failed to show that complainant has been explained about the manner of assessment of loss in case of any damage, what would be the depreciation amount and what deductions will be made. It is settled position of law that OP can take advantage of only those terms and conditions, which have been specifically explained by the insurance company to the insured and the signature of the insured are taken after having understood the terms of the policy. Therefore, the deductions made by OP are not justified.        
14. Moreover, It is universal rule of interpretation that every beneficial legislation or beneficial contract should be interpreted in a manner that it should provide and receive beneficial interpretation and no other way round. Every effort should be not as to how to defeat the rightful claim of the insured. In New India Assurance Company Limited vs. Pradeep Kumar (2009) 7 SCC 787, Hon'ble Supreme Court of India  has held that “though the assessment of loss by an approved surveyor is a prerequisite for payment or settlement of the claim, the surveyor report is not the last and final word. It is not that sacrosanct that it cannot be departed from and it is not conclusive. The approved surveyor’s report may be the basis or foundation for settlement of a claim by the insurer in respect of loss suffered by insured but such report is neither binding upon the insurer nor insured.”
15. On the proposition of law that the surveyor’s report cannot be considered as a sacrosanct document and insofar as the assessment relating to the loss due to destruction of stock, the consideration of the same has been adverted in the stock reports as declared to the OP itself , Ex. CW1/C1- C3, wherein the complainant has made detailed references, the OP is found to be deficient in its services in not considering the legitimate claim of the complainant.
16. OP has paid Rs. 2,69,733/- to complainant as per the undertaking given by complainant, which implies that OP admitted the loss occurred to the complainant, however the amount of Rs. Rs. 2,69,733/- is not justified by the OP as nowhere it is shown by OP how the loss is assessed and why the least amount was taken to be paid to the complainant. Moreover, even Rs. 2,69,7333/- is not the 50% of the recommended amount of Rs. 6,22,995.00/- by the surveyor, which actually comes to Rs. 3,11,497/-, which fact establish that OP’s mala fide in its service. Granting claim to Rs. 2,69,733/- is highly unjustified in the facts and circumstances of the case. Moreover, the photographs filed by the complainant, and not denied by the OP shows the water logging has spoiled the goods at the worst condition in the shop and the loss is expected higher than the assessed.
17. Therefore, this commission is of the opinion that Rs. 14,62,509/- as physically inventoried and assessed by surveyor towards damage stock is the actual loss occurred to the complainant, and by not paying the same OP has committed deficiency of service. Therefore, we find OP liable to pay the complainant the amount of Rs.14,62,509/- towards the cost of damaged stocks, less salvage sold of Rs. 21,000/- amount, i.e. Rs. 14,41,509/-. Further, in view of the admitted position of the complainant to accept 50% of the same, and receipt of Rs. 2,69,733/- by the complainant from OP, the liability of the OP reaches to Rs. Rs. 4, 51,021/- (50% of the 14,41,509/- i.e. Rs. 7,20,754/- less Rs. 2,69,733/-). Therefore, OP is directed to pay to the complainant Rs. 4,51,021/- along with interest at the rate 9% per annum from the date of filing the complaint till its actual realization along with compensation of Rs. 25,000/- for sufferings due to harassment and mental agony which shall include legal charges. 
18. The above stated order be complied with within 30 days from the date of the receipt of the order failing which the OP shall be liable to pay an interest @9% p.a. on the compensation amount also. Interest on 25,000/- shall begin after expiry of 30 days from the date of receipt of order.
19. A copy of this order as per statutory requirements, be forwarded to the parties free of charge and thereafter the file be consigned to the record room.
20. The complainant could not be decided in time due to heavy pendency of the cases.
21. This order contains 10 pages each bears our signature.
22. Pronounced on 25.03.2023.