1.      The Appellant filed the instant Appeal under section 19 of the Consumer Protection Act, 1986, (the Act”), against the Order dated 05.03.2014 passed by the learned State Consumer Disputes Redressal Commission, Chhattisgarh. (“State Commission”) in CC No. 07/2012, wherein the State Commission dismissed the Complaint with liberty to file the case before a competent Civil Court.

2.      As per the report of the Registry, there is 5 days delay in filing the Appeal. For reasons stated in IA No. 7234 of 2014, the delay is condoned.

3.      For convenience, the parties in the present matter are being referred to as per position held in the Consumer Complaint.

4.      Brief facts of the case, as per the complainant, are that the complainant, Oswal Novelties, owned by Smt. Sharda Jain, is engaged in the wholesale business of mobile handsets, batteries and accessories for livelihood. Business transactions were handled by Shri Gulab Chand Jain, her power of attorney holder. OP-5 bank held the complainant's account and had taken an insurance policy from OP-1 for her establishment, debiting the premium from the account. Over past 2-3 years, premiums had similarly been debited by OP-5 for the policy. On 24.02.2010, the complainant requested the bank to increase the sum insured by ₹5,00,000 and update the firm’s address. On 04.10.2010, a fire occurred at their establishment on Dadabadi M.G. Road, Raipur, destroying mobile handsets, batteries, and accessories valued at Rs.70,00,000. The complainant promptly informed the bank, police, and fire brigade. OP-3 appointed Shri Bakshi, a surveyor who inspected the site on 05.10.2010, took photographs, and supervised the counting of the damaged mobile sets, which were stored per his instructions. The complainant filed an insurance claim with OP-1. On the surveyor’s request, 16 documents were submitted to him, along with a detailed inventory of the mobile sets. They initially purchased 4,284 mobile sets between 01.04.2010 and 02.10.2010, with a total stock of 75,253 sets. After selling 72,529 sets, the remaining stock as of 02.10.2010 consisted of 2,724 sets, valued at about ₹70,00,000. On 28.10.2010, the surveyor requested additional documents, which they provided on 05.01.2011. A second surveyor, Shri Chhari was appointed and sought further documents on 22.01.2011, which were also submitted on 05.03.2011. Despite continuous inquiries, they received no substantial response from OPs regarding the claim. On 08.03.2011, the surveyor sent an email with three quarterly business statements dated 21.03.2010, 30.06.2010, 03.10.2010. On reviewing them, they found errors in the analysis, particularly in calculation of VAT and discounts. Corrected statements were sent on 12.03.2011. After further communication, they visited the OP Regional Office in Bhopal on 06.06.2010, where they were pressured to accept ₹25,00,000 in full settlement, which was refused as the amount was inadequate. They sent letters on 17.06.2011 and 08.08.2011 requesting the survey report but received no response. On 26.09.2011, they received a discharge voucher for ₹27,17,493 as full and final claim settlement, and was pressured to sign under protest, yet the amount was never paid. Upon obtaining the survey report under the Right to Information Act, they identified errors in assessing stock and the number of damaged mobiles. The surveyor undervalued the stock and incorrectly calculated the average gross profit. He valued 6,554 mobile sets @ ₹1,425 each, totalling ₹93,44,745, whereas documents showed the actual stock was 4,284 sets with an average value of ₹2,183. He also incorrectly recorded 872 burnt mobile sets instead of actual 1,100. Further, the surveyor assessed loss of 1,750 mobile sets, while they clarified that 2,750 sets were damaged. The average gross profit was also miscalculated at 1.8% instead of 3.4%. Thus, the complainant seeks compensation of ₹70,00,000 for the burnt stock, along with interest, and other miscellaneous expenses, totalling ₹86,00,000.

5.      OPs-1, 2 & 3, in joint reply, denied complainant's allegations and contended that the insured location in the policy was "Mahalaxmi Cloth Market, Raipur," and no application for address correction was submitted prior to the fire on 04.10.2010. The address was updated only after the incident. The OPs questioned sudden increase in their business in 2009-2010, as compared to 2007-2009 and found it doubtful. They denied the claim that goods worth Rs.70,00,000 were destroyed, stating the surveyor found 2,700 mobiles and assessed the loss at Rs.27,22,966. Despite surveyor’s request, they failed to provide critical documents. While the fire occurred at "Malviya Road, Raipur," the policy mentioned "Mahalaxmi Cloth Market, Pandri, Raipur." After being informed, they accepted the loss of Rs.27,22,966 and requested address correction, which the OP actioned. The final settlement was Rs.27,17,493 after deducting additional premiums, and the amount was offered along with discharge voucher. However, they accepted it under protest. There being no provision for payment "under protest," the payment was withheld. The OPs denied any deficiency in service, maintained willingness to pay Rs.27,17,493.

6.      OP-4, in its reply, asserted that the complainant availed no services from OP-4 and thus they are not ‘consumers’ under the Act. OP-4 admitted CM Bakshi holding preliminary survey on 05.10.2010, but denied that 2,700 mobiles worth Rs.70,00,000 were destroyed. They filed no evidence that the hard drive was sent to Mumbai for data recovery, and intentionally delayed submission. Despite request on 05.01.2011 and 16.03.2011 the records were not submitted. On 06.06.2011, they were offered Rs.25,00,000 as settlement, which was refused. The survey report's valuation of Rs.1,425 per mobile is based on 2009-2010 tax calculations, and correctly recorded 872 burnt sets, not 1,100 as claimed. There is no error in gross profit calculation of 1.8% and asserted the stock assessment as accurate.

7.      OP-5 contended that it was a formal party and the complainant did not seek specific relief against it. They had a cash credit loan facility of Rs.20,00,000 as per loan agreement, it was complainant’s duty to insure the business stock. If they failed to do so, OP-5 was entitled to obtain insurance at their expense. In this case, OP-5 obtained policy No. 450301/1109/11/ 0002709 for Rs.65,00,000 from OP-1, valid from 29.03.2010 to 28.03.2011. Following the fire incident reported on 04.10.2010, OP-5 notified OP-1. The dispute is between the complainant and OPs-1 to 3, as regards OP-4 survey report.

8.    The learned State Commission vide order dated 05.03.2014 dismissed the complaint with the following observations:

“18)       In the present case the main dispute is regarding the number of mobile handsets available in the stock, further average value of per mobile handset and the average profit, which cannot be decided and ascertained correctly in absence of detailed study of material documents.

19)  Looking to the facts circumstances and verification of documents, we have come to the conclusion that the main dispute of the applicant is only about the average cost of each mobile handset and the available stock of mobile handsets on the date of fire. This matter cannot be finalised in absence of evidence of concerned parties as well as on the basis of summary proceedings. Hence the application of the applicant Is rejected with the liberty provided to applicant to file the case before the Civil Court according to procedure against the non applicants to get a proper decision as per law. The applicant is given the benefit of the time spent in order to decide the case by this Commission.”

9.    Being aggrieved, the Complainant (Appellant herein) filed this present Appeal no. 223 of 2014, mainly advancing the following grounds:

1. The State Commission erred in concluding that the dispute was regarding valuation. There was no such dispute, as the surveyor assessed the loss. The surveyor in his report miscalculated the available mobile pieces in stock which was pointed out by the complainant in his complaint. The State Commission erred by giving the direction for approaching before the Civil Court.
2. All documents were part of the survey report before the State Commission. There is no dispute wrt loss of Rs. 27,17,493. The only point to be considered was whether they are entitled for rest of amount claimed. The State Commission passed an illegal order without properly appreciating the judgment and observations of this Commission in National Insurance Co. Ltd. v. Giriraj 2012(4) CPJ 151 (NC), incorrectly held that the benefit of this judgment could not be extended to the complainant.
3. Despite acknowledging that the complainant was willing to accept the amount under protest, the OP failed to pay the sum so assessed by the surveyor. The State Commission directed them to approach the Civil Court. This observation contradicts established legal principles and warrants being set aside.
4. The State Commission, without properly considering the records, complaint, affidavit, rejoinder, and written arguments submitted by the complainant, erroneously concluded that the complainant had not submitted the necessary documents. It overlooked the fact that the complainant had clearly detailed the losses suffered in the complaint, providing a comprehensive statement of sales and purchases.

10.  In his arguments, learned Counsel for Appellant/ Complainant reiterated the grounds of appeal, factual background, contentions of the OPs and the findings of the impugned order. He asserted that the State Commission failed to pass a reasoned order arguing that it did not take the documents and evidences reiterated by the complainant on record, thereby passing an order bad in law. Thus, he urged that the impugned order be set aside and the appeal be allowed.

11.    On the other hand, the learned counsel for OPs-1 to 3 argued that the policy in question was procured by the OP-5, which specified "Mahalaxmi Cloth Market" Pandri Raipur as the insured location and it was issued without any objections from either complainant or OP-5. During a physical inventory check, 2700 mobiles were counted, yet the value of Rs.70,00,000 they claimed was speculative. They got a letter from OP-5 indicating that the loss assessment of Rs.27,22,966 was satisfactory, contingent upon policy corrections. Consequently, the policy location was amended, and a revised policy was issued. While OP sought consent for this assessment, they submitted a Discharge Voucher under protest, suggesting a deliberate attempt to create a dispute and preventing payment by OP. He contended that the complainant did not provide necessary documents to the surveyor even five months post-occurrence, citing that the hard disk was sent to Mumbai for retrieval. They submitted fabricated documents and failed to provide any records to Mr. V Chari, the surveyor, during his visit to Raipur on 18.11.2010. They did not provide the regular stock register and failed to counter surveyor’s report. Regarding their objection to the surveyor's calculation of RGP at 1.8%, he argued that it should be based on the past three years' RGP of 3.4%. He affirmed the State Commission findings and observations that this matter fell under the jurisdiction of a Civil Court as appropriate.

12.    The learned counsel for OP-4 argued that the complainant was not a consumer in relation to them as there was no privity of contract between them. Thus, both the appeal and the complaint lacked merit and should have been dismissed as this fora had no jurisdiction to entertain the complaint. Upon being appointed by the insurers for inspection, verification and assessment of loss on 04.10.2010, OP-4 submitted Report No. FIR/NIA/BHOPL/ 10-11/1079 dated 21.06.2011 to the insurers. It contained details of inspection, verification, observations, and loss assessment. He relied on the grounds taken in their written version and asserted that the complainant's allegations, contrary to the Survey Report and the written version, were incorrect and untenable.

13.    Learned counsel for OP-5 asserted that State Bank of India was a proforma party and no relief was sought against OP-5. The State Commission did not grant relief against it. The core dispute involved is the accuracy of the order dated 05.03.2014, specifically regarding stock count and valuation of mobiles and no deficiency of service was alleged against OP-5. He argued that the fire incident on 04.10.2010 was reported to OP-5, which promptly notified the insurer. It is a matter of record that the insurance company issued a discharge voucher of Rs.27,17,493 against a claim of Rs.70,00,000. The appeal against OP-5 was legally and factually unfounded.

14.  I have examined the pleadings and associated documents placed on record and rendered thoughtful consideration to the arguments advanced by learned counsels for both the parties.

16.    It is undisputed that OP-1 to 3 issued the Standard Fire & Special Perils Policy No. 450301/1109/11/0002709 to complainant’s establishment from 29.03.2010 to 28.03.2011, after receiving the premium from OP-5. The insured address mentioned in the policy was initially "Mahalaxmi Cloth Market, Pandri, Raipur". But was later changed to "Satyanarayan Kala Bandar, Dadabadi, MG. Road, Raipur." It is admitted that fire incident occurred on 04.10.2010 at the establishment located at Dadabadi, M.G. Road, Raipur, resulting in destruction of mobile handsets, batteries, and accessories. Following the incident, on 05.10.2010 OP-4's surveyor Shri Bakshi inspected the site and submitted a report. The point of contention between the parties pertains to the amount assessed by the surveyor in his report and the complainant's calculations concerning the loss, which are based on the number of mobile devices. The complainant contended that the surveyor erred in his assessment by failing to include the correct number of damaged devices in his calculations. In support of this contention, they placed on record a stock summary for the period from 01.04.2009 to 31.03.2010, amongst other documents. After due consideration, the State Commission concluded that the complainant had not produced all the relevant documents necessary to ascertain whether there was any discrepancy in the surveyor's assessment and the complainant's calculation. The complainant contended that as of 01.04.2010, the total mobile sets stock was 4,284. Whereas, the surveyor calculated the stock as 6,554, which reduced the average value per set to Rs.1,425. However, they failed to produce stock register or any other document to prove the actual number of mobiles in the godowns as of 01.04.2010. Further, there was a discrepancy regarding number of burnt mobile sets stored in bags by the surveyor. Admittedly the complainant was present when the surveyor collected and stored these mobile sets, yet there remains a difference between the number of sets listed by the surveyor and the number claimed by the complainant. The State Commission categorically pointed out that no document had been produced by the complainant to establish the number of mobiles stored in each box or bag, nor was any written record submitted detailing the quantity of mobiles. Moreover, the complainant failed to produce the Tax Audit report for 2009-2010 to contradict the calculations of the surveyor. There were also no updated records, such as registers which the complainant ought to have reasonably maintained, showing the stock levels as on the date of the fire. Additionally, the surveyor noted that essential documents were not provided, and the complainant cited that the hard disk containing relevant data was sent to Mumbai. Taking all these factors into consideration, it is evident that it was not expedient or reasonably possible for the surveyor to determine an exact figure of the loss, and as a result, he provided an estimated figure based on the inputs available and his professional expertise. Upon reviewing the complainant’s statements, it is evident that mere repetition of figures in different pleadings, without supporting documentary evidence, amounts to speculation and cannot not form basis for rejecting the report of independent surveyor.

15.    For the aforementioned reasons, the State Commission rightly held that in the present case, the exact number of mobile sets and the corresponding loss assessment as claimed by the complainant could not be determined in the absence of valid supporting documents. At the same time, is an admitted position that, after due consideration of the policy in question, the claim preferred by the complainant and the detailed report of the surveyor on record, the Insurer had approved payment to the Complainant to the extent of Rs.27,17,493 and notified the same vide Discharge Voucher dated 26.09.2011. As the same was accepted under protest by the complainant, it was not disbursed by the Insurer, in the absence of unconditional acceptance. 

16.    Thus, as regards the issue whether the complainant is entitled for the rest of amount claimed, I am also of the considered view that the matter requires proper evidence and witnesses testimony which cannot be decided in summary proceedings. In view of the above, the order of the learned State Commission in CC No. 07 of 2012 dated 05.03.2014 is modified as follows:

ORDER

1. The Opposite Party No-1 to 3 Insurance Company is directed to pay the Complainant Rs.27,17,493 as notified to the Complainant vide Discharge Voucher 26.09.2011 along with simple interest @ 6% from the date of the claim till the date of complete payment, within a period of one month from the date of this order. In the event of delay beyond one month, the interest element applicable shall be @ 12% for such extended period. The amount already paid to the complainant shall be adjusted in terms of the Order dated 12.01.2023 passed by this Commission.

2. Considering the facts and circumstances of the case, with respect to the additional claim, the Complainant is granted liberty to approach appropriate Civil Court. The applicant is granted the benefit of the time spent in order to decide the case by this Commission.

17.    The First Appeal No. 223 of 2014 is disposed of with the above directions. There shall be no order as to costs. All pending Applications, if any stand disposed of accordingly.