Complainant M/s.Gupta Furniture Store through its Proprietor Sh.Sunil Gupta through the present complaint has sought the necessary directions to the opposite party to pay Rs.9,61,750/- alongwith interest @ 12% from 22.1.2017 upto the date of realization. Opposite party be further directed to pay Rs.50,000/- on account of pain and suffering and harassment meted out by him, at the hands of the opposite party.

2.      The case of the complainant in brief is that complainant firm deals in the business of Furniture, finished and semi finished, Plywood, Sunmica, Coir Form, Panels, ACP Sheets, Wall Paper, Uform Sheet, teak ply vencer, Form Cushion, all kinds of Sofa material`, Sofa cloth, PVC material, Rexin Cloth, Woods and all kinds of furniture materials, having its business premises at Lakkar Mandi, Batala, District Gurdaspur.  The stock of the firm was insured with the opposite party vide policy no.36050311160300000007. On 22.1.2017 at about 4 AM Sh.Sunil Gupta was called on by Sh.Munish Malhotra and was informed that fire has broken in backside workshop of M/s.Mahajan Furniture House which immediately adjoins the premises of his firm.  As M/s.Mahajan Furniture House  and the complainant firm both are adjoin firms and both deal in the business of Furniture etc, which is highly inflammable, Sh.Sunil Gupta, his brother Anil Kumar and his son Abhi on hearing the call immediately reached on the spot apprehending the fire spreading to the complainant firm. On reaching there, Sh.Sunil Gupta and others came to know that the fire has already spread to the second floor of the complainant firm, where the complainant firm has its workshop. The entire furniture kept on the second floor was burnt to ashes resulting into loss about 10-12 lacs. Fire Brigade Municipal Council was informed about 4.30 AM and the fire tender reached on the spot and brought the fire under control. The complainant firm suffered heavy losses and Sh.Sunil Gupta duly reported the matter to the Police  Chowki, Bus Stand Batala. The complainant firm through Sh.Sunil Gupta lodged the claim of Rs.9,61,750/- with the opposite party on account of loss of furniture in the fire. All the necessary documents as demanded by the opposite party were supplied to the opposite party. The loss only pertained to the furniture.  It has next pleaded that after lodging the claim, Sh.Sunil Gupta had been visiting the office of the opposite party on regular intervals but the  Branch Manager of the opposite party had been putting the matter on one pretext or the other and Sh.Sunil Gupta was never called on to join the proceeding of assessment of claim. Vide letter dated 30.8.2017 the opposite party unilaterally settled the claim for Rs.1,28,875/-. No detail has been given in the letter as to how the amount of claim of Rs.1,28,875/- has been calculated. No reason was assigned in the letter as to why the major portion of the amount claimed by the complainant has been rejected. Thus, there is deficiency in service on the part of the opposite party. Hence this complaint.

3.          Upon notice, the opposite party appeared and filed its written version through its counsel, taking the preliminary objection that the complaint is not maintainable; the loss has been assessed by the surveyor cum loss assessor using average clause on the list of furniture items destroyed, as provided by the insured/complainant (list of 49 items was provided ) and the purchase bill of the items provided by the complainant. While calculating the loss of number of items allegedly destroyed in the fire, the surveyor also kept in view the storing capacity (space) of the premises of Gupta Furniture, the insured by applying the average clause. Since the policy of insurance is Floater Policy, as per deductible clause Rs.10,000/- has been deducted as per terms of the policy. Despite many requests by the surveyor, the insured/complainant did not get the physical verification for the stock done. On merits, it was admitted that complainant lodged a claim of Rs.9,61,750/-. The surveyor has been requesting the complainant to get the physical verification of the stock done but he never got it done. It was wrong allegation that Sunil Gupta was not called to join the proceeding of assessment. The loss was assessed by the surveyor and not the branch manager. The surveyor has done each and everything by physically visiting the premises of the complainant. All the bills, account books and other relevant papers were procured through Sunil Gutpa, who was present throughout the survey and assessment. Hence, the allegations that complainant was not joined in the assessment are not accepted being totally baseless.  All other averments made in the complaint has been vehemently denied and lastly prayed that the complaint may be dismissed with costs.

4.       Complainant tendered into evidence his own affidavit Ex.CW1/A   along with other documents exhibited as Ex.C1 to Ex C7 and closed the evidence.

5.      Counsel for the opposite party tendered into evidence affidavit of Sanjay Sareen Mech Engr. Surveyor and Loss Assessor Ex.OP-1, of Kuldip Raj Sr.Divisional Manager N.I.A. Ex.OP-2  alongwith other documents Ex.OP-3 to Ex.OP-13 and closed the evidence.

6.     We have carefully examined the documents/evidence produced on record (along with the scope of ‘adverse inference’ for that ignored to be produced) to determine the respective ‘claims’ as pleaded forth by the present litigants in the light of the arguments as advanced by their learned counsels, while adjudicating the present complaint. We observe that the complainant firm had got its Trade-Stocks of Raw Material, U/Work-in-Process & Finished Goods insured for Rs 100 Lac against the usual risks of Fire with the opposite party insurers under its Standard Fire Floater Risks Policy; who however refused to admit the insurance-claim for a loss of Rs. 9,61,750/- incurred by the fire-spread from adjoining building to the complainant’s work-shop gutting the there-in stacked stocks etc. We find that the instant dispute had prompted at the OP insurer’s duly admitted settlement of the impugned insurance-claim for Rs.9,61,750/- @ the reduced amount of Rs.1,69,332/- by way of an allegedly arbitrary and illogical manner resulting into the present complaint.

7.       The OP insurers, in turn, have addressed its settlement as fair and just so as to be in conformity with the terms of the related Policy pertaining to its applicable moderation and other clauses and in support have duly produced the two affidavits (Ex.OP1 & Ex.OP2) one by its Surveyor (loss assessor) and other by its Sub Divisional Manager along with the other evidentiary documents (Ex.OP3 to Ex.OP13). However, we are of the considered opinion that reduction of an insurance-claim of Rs.61,750/- to Rs.1,69,332/- shall not be termed/addressed as moderation but as: penalty penalization. We accept that the claim amount @    verification with invoices (and with application of depreciation etc) could be appropriated to Rs.6,78,487/- but cannot be further reduced to Rs.1,69,332/- thro’ subjection to Policy’s average and other clauses including stack-moderation etc. Such treatment shall decidedly amount to penalty imposition/penalization and entitling it to judicial review/attracting an adverse statutory award. We are certainly not convinced with the logic as put forth by the OP insurers and behold the considered opinion that ‘moderation’ cannot decimate/reduce a figure to its fraction. Thus, impugned settlement here has been totally unwarranted and thus attracts an adverse statutory award to the titled OP insurers. Moreover, the OP insurers here have failed to prove their above allegations by way of some cogent evidence duly produced on records. However, the OP insurers have of course produced the Final Survey/Investigator’s Report that admits the assessment of loss/damage caused to stocks worth Rs.6,78,487/- but have unjustifiably netted the final loss to Rs. 1,69,332/- but for non-convincing/un-acceptable logic/reasons of value dilution of the stocks lost in fire.

8.       On the other hand, the complainant firm has successfully produced its deposition (affidavit Ex.CW1/A) and other evidentiary documents (Ex.C1 to Ex.C7) that satisfactorily prove the complaint-contented allegations to entitle him to a favorable statutory award under the statute to cover the incurred loss of Rs.6,78,487/- subject to applicability to the deductible clause of Rs.10,000/- only (as per Ex.OP2; inadvertently Rs.50,000/- in Ex.OP1) by the OP insurers.

9.        Thus, we find that the impugned claim-settlement of the instant insurance claim at the hands of the OP insurers certainly infringes the consumer rights of the complainant all the more so at the face of their own inadvertent application/interpretation of the average moderation clauses under the policy. Presently, we find that the OP insurers have not been able to justify the impugned ‘claim-settlement’ and did not even attempt to re-settle the ‘claim’ as of ‘now’ during the ‘pendency’ of the present complaint to show/exhibit its bona fide intentions but it chose otherwise and thus we hold it guilty of ‘deficiency in service’ and ‘unfair trade practices’ etc.

10.     In the light of the all above, we partly allow the present complaint and thus ORDER the OP Insurers to settle and pay the impugned claim up to its full amount of Rs.6,78,487/- (under the related terms of the Policy) to the complainant firm besides to pay Rs.5,000/- as compensation and Rs.3,000/- as cost of litigation within 30 days of receipt of the copy of these orders otherwise the aggregate award amount shall attract interest @ 9% PA from the date of the present orders till actually paid. The OP insurers shall however be entitled to receive back the damaged stocks salvage, if any, for its disposal sale etc.

 11.    Copy of the orders be communicated to the parties free of charges. After compliance, file be consigned to record.  

                                                                         (Naveen Puri)

                                                                              President       

ANNOUNCED:                                                        (Jagdeep Kaur)

July, 06 2018.                                                          Member

*MK*