Paul Departmental Store filed a consumer case on 23 Feb 2015 against NIC Ltd. in the StateCommission Consumer Court. The case no is CC/11/2 and the judgment uploaded on 07 Apr 2015.
FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
Consumer Complaint No.02 OF 2011
Date of Institution: 06.01.2011
Date of Decision : 23.02.2015
1. Paul Departmental Store, Proprietorship Concern, Basti Jodhewal, Ludhiana, through its Proprietor Sh.Hardeep Singh.
2. Hardeep Singh, Proprietor of M/s Paul Departmental Store, Basti Jodhewal, Ludhiana.
…..Complainants…..
Versus
1. National Insurance Company Ltd., Mehtab House, Near Ujagar Service Station, Dhulkot Road, Ahmedgarh, Sangrur, Punjab.
2. United India Insurance Company Limited, 151-A, Industrial Area-A, Cheema Chowk, Ludhiana Punjab.
Second Address :
United India Insurance Company Limited 136, Ferozegandhi Market, Ludhiana.
3. ICICI Lombard General Insurance, Zenith House, Keshav Rao Khadye Marg, Mahalaxmi, Mumbai.
….Opposite parties….
Consumer Complaint U/s 17 of the Consumer Protection Act, 1986 (as amended up to date).
Quorum:-
Shri J. S. Klar, Presiding Judicial Member.
Shri Vinod Kumar Gupta, Member.
Present:-
For the complainant : Sh.Vibhav Sehgal, Advocate
For the Opposite party No.1 : Sh.Parminder Singh, Advocate
For the Opposite party No.2 : Sh.D.R Bansal, Advocate.
For the Opposite Party No.3 : Sh.Sandeep Puri, Advocate.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
J. S. KLAR, PRESIDING JUDICIAL MEMBER:-
The complainants have filed this complaint through its proprietor Hardeep Singh U/s 17 of the Consumer Protection Act 1986 (for short the "Act) against the OPs. The brief facts of the case are that complainant no.2, the proprietor of complainant no.1 a sole proprietor concern. That complainant no.1 is engaged in the retail sale of a range of goods involving personal household and other commodities like readymade garments, hosiery, shoes and so on. The business of the complainant is highly prominent and they are known amongst the customers for rendering services. That complainant took policy from OP No.1/National Insurance Company for covering the risk with regard to extremely valuable goods lying in the departmental store of the complainant. The complainant took insurance policy, vide No.401308/11/3100000092 dated 6.6.08 and the insured amount was Rs.10,00,000/- with the coverage period from 14.6.08 to 13.6.09, against the premium of Rs.16,500/-, and furniture, fixture and fittings and other stocks lying in the departmental store of the complainant and they were insured for Standard Fire & Special Perils Policy issued by National Insurance Company/OP No.1. That complainant also took policy, vide No.201002/11/08/11/00000540 dated 5.12.2008 from United India Insurance Company/OP No.2 for insured amount of Rs. 30,00,000/- against the premium of Rs.5880/- for the period from 15.12.2008 to 14.12.2009. The complainant also took policy, vide policy no.4017/ICICI-HSP/209447/00/000 dated 31.05.2008 from OP No.3/ICICI Lombard General Insurance Company Limited for the insured amount of Rs.4,11,569/- for building and Rs.1,64,628/- for Standard Fire and Special Perils The Policy was against the premium of Rs.1813/- with the covering period from 31.05.2008 to 30.05.2009. That the fire erupted in the above referred store of the complainant in the evening of 30.04.2009 at about 7 A.M and the neighbor of the complainant Pritam Singh noticed the smoke belching out of the above store of the complainant. The Fire Brigade services were requisitioned, which fought relentlessly for a long time to put out the fire and the stock of the complainant lying in the departmental store was incinerated in the fire and complainant suffered incalculable loss therewith. The complainant also got the survey done from Protocol Surveyors and Engineers, private limited appointed by OP No.1 on receipt of intimation of the insurance claim for assessing the loss. The complainant cooperated with the surveyor, as referred above and appointed by OP No.1. The complainant also provided trading account from 1.4.2009 till the date of loss i.e. 30.04.2009 to the surveyor, besides providing the vat returns of the last four quarters. The above referred surveyor M/s P.K Goel and Associates Chartered Accountants categorically stated in report that total purchases and sales, as per vat returns tallied with balance sheet of 2008 and 2009. The photographs were taken by the surveyor of the departmental store, where the above fire broke out. The vat retruns, Annexure C-5 to Annexure C-9 were duly supplied to them by the complainant. The above-referred account was also certified by P.K. Goel and Associates Chartered Accountants, after verifying the account and comparing with relevant purchase and sale vouchers and tax returns of the complainant. The complainant availed the cash credit limit facility from Indian Overseas Bank Rahon Road Ludhiana, and bank gave certificate stating the fact that limit has been sanctioned against the collateral services of land and building as per bank scheme and no stock statements were required for the purpose of loan. The above certificate is Annexure C-11, document of P.K. Goel and Associates Chartered Accountants is Annexure C-12. Balance Sheet of the complainant dated 31.03.2009 is Annexure C-13, trading account of the complainant for the ending year 31.03.2009 is Annexure C-14, current assets, loans and advances is Annexure C-15 and balance sheet of the ending year March 2008 is Annexure C-16, copy of DDR was lodged with the police regarding this incident of fire by the complainant, vide Annexure C-17. The photograph of departmental store is Annexure C-18 and fire report issued by the Assistant Divisional Fire Officer, Ludhiana is Annexure C-19, statement of furniture and fixture for the period from 1.4.09 to 29.4.09 is Annexure C-20, newspaper report dated 1.5.09 regarding report of incident of fire Annexure C-22. It was further pleaded in the complaint that OP No.1/National Insurance Company committed the deficiency in service and wrongly ignored the trading account of the complainant for the year 1.4.09 to 29.04.09 on the ground that there was abnormal increase in the purchase made in the month of April 2009, despite the fact that it was verified by P.K Goel Associates and Chartered Accountant. That loss suffered by the complainant was decreased from Rs.1,32,50,100/- to Rs.1,05,63,602/- by OP No.1 unreasonably. That OP No.1/ National Insurance Company applied unnecessary deductions for slow moving stocks and dead stocks in the insurance claim of the complainant. That OP No.1, thus, rendered deficient service to the complainant. It has been pleaded that stock constitute 10% of the total stocks, which is reasonable. OP No.1/National Insurance Company caused wrongful loss to the complainant by reducing the claim to the extent of Rs.19,01,416/-. The depreciation made by OP No.1/National Insurance Company on furniture, fixtures and fittings is 50%, which is against the rules and regulations of the Income Tax Act, whereas, it should have been 10%. The complainant challenged the deductions of Rs. 1,62,186/-,as salvage made by OP No.1/National Insurance Company. The complainant further averred that deduction of 50%, as salvage value of furniture by OP No.1 is unjustifiable. The OP No.1/ National Insurance Company alleged that the complainant accepted the amount of Rs. 90,48,204/- as full and final settlement under policy No.401308/11/09/3193100000092 and it is completely unreasonable being the case of gross deficiency in service. OP No.1 misrepresented the facts. The complainant also averred that OP No.2/United India Insurance Company also committed deficiency in service to the complainant as it the quantum of loss as quantified by OP No.1/National Insurance Company as correct. OP No.2 rejected the claim of the complainant by stating that complainant has received the claim from OP No.1. The surveyor M/s Cunningham Lindsey International Pvt. Ltd was deputed by OP No.2. Intimation of OP No.1 to the complainant that the clam of the complainant has been provided by OP No.1, is unjustified. Similarly the complainant averred that the surveyors appointed by OP No.1 and 2 placed on record the interim survey report dated 2.6.09 and final survey report dated 20.10.09. The complainants have, thus, filed the consumer complaint U/s 17 of the Act against the OPs directing them to pay the total amount of Rs.1,32,50,100/- on the basis of its properly audited trading account. The complainant has also prayed that its claim with regard to furniture, fixture and fittings be enhanced from Rs.7,50,000/- to Rs.10 lacs besides Rs.20 lacs as compensation for mental harassment along with interest @ 12% per annum from the date of claim till its payment.
2. Upon notice, OP No.1 filed the written reply and contested the complaint of the complainant on the preliminary objections that complainant is a concern dealing in commercial business organization and is not consumer of OP No.1 and hence the instant complaint is not maintainable. Any deficiency in service was denied by OP No.1/National Insurance Company in this case on its part. The fact of issuance the insurance policy to the complainant was admitted by OP No.1. OP No.1 pleaded that the amount of Rs.10 lacs was for covering the risk to furniture, fixtures and fittings and a sum of Rs.1 crore covering the risk to the stock, which was valid from 14.6.2008 to 13.6.2009 under the policy in question. That on receipt of intimation from the complainant regarding alleged fire, the OP No.1 deputed M/s Protocol Surveyors and Engineers Pvt. Ltd., Noida, an IRDA approved Surveyors and Loss Assessors to conduct the survey and to assess the alleged loss. The said surveyor after physical verification of the loss, assessed the loss to the tune of Rs.92,50,000/- in respect of stocks, furniture, fixtures and fittings, vide survey report dated 20.10.09, vide Annexure R-3. That in response to certain queries raised by the competent authority of OP No.1, vide e-mail dated 01.12.2009 , the aforesaid amount of loss was revised to Rs.92,10,000/- by the surveyor, vide revised assessment report dated 09.12.2009. It is further averred by OP NO.1 that the complainant submitted its consent for accepting the aforesaid amount of Rs.90,64,704/- towards full and final settlement of the claim through consent letter dated 15.12.09, vide Annexure R-5. That after receipt of the aforesaid revised assessment report and consent letter dated 15.12.009, the claim of the complainant was processed and approved for Rs.90,64,704/- by the competent authority, subject to deductions of reinstatement premium as per Clause 15 of the terms and conditions of the policy, agreed Bank Clause and compliance of all formalities, as per claim procedural manual. The aforesaid approval of claim was conveyed by the Regional Office Chandigarh to the concerned Divisional Office, Ludhiana, vide letter dated 04.01.2010, vide Annexure R-6. It was further conveyed to the concerned Branch Office Ahmedgarh, vide letter dated 11.01.2010, vide Annexure R-7. B.O Ahmedgarh, thereafter, it released the amount of Rs. 90,48,204/- after deducting Rs.16500/- towards reinstatement premium to the complainant, vide cheque no.831063 dated 05.02.2010, vide Annexure R-8, payment voucher dated 5..2.2010, vide Annexure R-9, which was duly received by the complainant towards full and final settlement of the claim without any protest. The net amount was Rs.90,48,204/-, which as been voluntarily and willingly accepted by the complainant towards full and final settlement of the insurance claim. That once claim has been settled with the consent of the complainant, then the matter came to a final closure. The amount of Rs. 90,48,204/- also included share of the liability of the OP No.2/United India Insurance Company, being the co-insurer. The complainant has tried to mislead this Commission by placing on record a copy of interim survey report dated 23.09.09, vide Annexure C-25 and also concealed the final survey report submitted by the surveyor deputed by the United India Insurance Company, who assessed the loss to the tune of Rs.67,53,078/-. That there is provision for referring the matter to the Arbitrator and this Commission has no jurisdiction to entertain and decide the present complaint. OP No.1 controverted the other pleadings of the complaint regarding his entitlement of the amount of claim, as pleaded by him. OP No.1 specifically pleaded that the claim has been finally settled for Rs.90,48,204/-, which has been received by the complainant as full and final settlement of its insurance claim. It is further averred that OP No.1 has discharged its liability and hence it prayed for dismissal of the complaint.
3. OP No.2/United India Insurance Company filed its separate written reply and contested the claim of the complainant to the effect that complainant has claimed increase in the claim against stock from Rs.85 lacs to Rs.1,32,50,100/- along with interest. The claim of the complainant is highly exaggerated as pleaded by it and it goes to Rs.1,62,50,100/-, which is out of pecuniary jurisdiction of this Commission. The complaint of complainant is alleged to be false, frivolous and vexatious. The complaint is alleged to have been filed by suppressing the material facts only. It was further averred that the commercial transaction is involved in this case, which is out of the jurisdiction of this Commission. The complainant took the policy from OP No.1 from 14.6.08 to 13.6.08 before obtaining the policy for insuring the stock of 30 lacs from 15.12.08 to 14.12.09. That surveyor was appointed by OP No.2 on receipt of the intimation regarding the incident of above fire. That stocks were insured with the National Insurance Company, which cannot be separated from the stocks, which was got insured with OP No.2 by the complainant. OP No.2 further pleaded that had it been brought to its notice that the stocks of complainant have been insured with OP No.1 and they cannot be separated therefrom. OP No.2 has further averred that complainant has agreed to accept the claim as full and final settlement and it cannot raise any dispute thereafter and is estopped from doing so. OP No.2 has prayed for the dismissal of the complaint alleging that the claim of the complainant has been finally settled in this case.
4. OP No.3/ICICI Lombard filed its separate written reply averring that no relief has been claimed by the complainant against OP No.3. That the relief of the complainant has been directed against OP No.1 and 2 only. It has further averred that the full amount under the insurance policy has already been paid on 19.07.2010 amounting to Rs.2,27,666/- towards full and final settlement by the complainant. The complainant has also signed the claim discharge-cum-satisfaction voucher on 19.07.2010 in acceptance thereof. OP No.3 prayed for dismissal of the complaint by unnecessarily dragging it into litigation.
5. The complainant tendered in evidence his affidavit copies of insurance policy Annexure C-1 , copy of Standard Fire and Special Perils Policy Annexure C-2, copy of insurance policy Annexure C-3, copy of claim form Annexure C-4, copy of VAT returns from 01.10.2008 to 31.12.2008 Annexure C-5, copy of VAT returns from 1.7.09 to 30.09.2008 Annexure C-6, copy of VAT returns 1.10.08 to 31.12.08 Annexure C-7, copy of VAT returns from 1.1.09 to 31.3.09 Annexure C-8, copy of trading account of the complainant for the period from 1.4.09 to 29.4.09 Annexure C-9, copy of sale account of the complainant Annexure C-10, copy of certificate Annexure C-11, copy of Significant Accounting Policies/Notes on Accounts Annexure C-12, copy of balance sheet of the complainant Annexure C-13, copy of trading account for the ending year 31.3.2009, copy of current assets, loans and advances Annexure C-15, copy of balance sheet Annexure C-16, copy of DDR Annexure C-17, photographs Annexure C-18, copy of fire report Annexure C-19, copy of furniture and fixture for the period from 1.4.09 to 29.4.09, copy of fixed assets Annexure C-21, copy of cutting of newspaper dated 1.5.09 Annexure C-22, copy of trading account of the complainant for the period from 1.4.09 to 29.4.09 Annexure C-23, copy of final survey report Annexure C-21-A, copy of interim report Annexure C-24. As against it, OPs tendered evidence copy of Standard Fire and Special Perils Policy Annexure R-2/1, copy of insurance policy Annexure R-1, copy of fire claim form Annexure R-2, copy of report of Protocol Surveyors and Engineers Pvt. Ltd. Annexure R-3 , copy of report of Vikram Johar Annexure R-4, copy of document of National Insurance Company Limited , Branch Office, Ahmedgarh Annexure R-5, copy of leter dated 4.1.2010 from National Insurance Company to Divisional Manager , Ludhiana Annexure R-6, copy of document of Fire Claim Account Paul Departmental Store Annexure R-7, copy of receipt dated 5.2.2010 for Rs.9048204/-, copy of document of National Insurance Company Annexure R-9, copy of bank statement Annexure R-10, copy of judgment decided on 2.5.2011 by State Commission, Punjab Chandigarh.
6. We have heard Ld.Counsel for the parties and have also examined the record of the case. The submission of the counsel for the complainant is that the stock statement and the trading statement, which were also verified by the Chartered Accountant, have been completely ignored in settling the claim of the complainant by the OPs. The complainant relied upon various documents like claim form Annexure C-4, vat returns Annexure C-5 to C-8, trading account of the complainant for the period from 1.4.09 to 29.4.09 Annexure C-9, sale account of the complainant showing sales from 1.4.09 to 29.4.09 Annexure C-10, certificate of the bank Annexure C-11. The document, showing the significant accounting policies/notes on accounts Annexure C-12, balance sheet of the complainant, as on 31.3.2009 Annexure C-13, trading account of the complainant for the ending year on 31.3.2009 Annexure C-14, current asses, loans and advances showing closing the stock of the complainant on 31.3.2009 Annexure C-15, balance sheet of the complainant for the year 31.3.2009 Annexure C-16, DDR lodged with the police about this incident of fire and loss caused thereby in the Departmental Store Annexure C-17, photographs Annexure C-18, fire report certified by Divisional Fire Officer, Municipal Corporation Ludhiana Annexure C-19, furniture and fixture account of the complainant for the period from 1.4.09 to 29.4.09 Annexure C-20, fixed assets account of the complainant showing furniture and fixture from 1.4.08 to 31.3.09 Annexure C-21, newspaper cutting dated 1.5.09 Annexure C-22 about the incident of fire which erupted at the departmental store of the complainant.
7. The complainant submitted that the trading account of the complainant for the year 1.4.09 to 29.4.09 has been ignored on the ground that there is absolute increase in the purchases made in the month of April 2009 despite the fact that it was verified by P.K Goel Associates and Chartered Accountant and prepared in accordance with the books of the accounts. That the purchase and sale vouchers and vat returns have been properly verified. The total loss suffered by the complainant is Rs. 1,32,50,100/- and the claim has decreased to Rs.1,05,63,602/- by the OPs unreasonably. It was further contended by the complainant that unreasonable deductions have been made by OP No.1 while proceeding on the basis of the industry standards, slow moving stocks, relying only 50% of their price constituting about 20% of the total stocks, which is arbitrary and unreasonable. That the liability has been reduced by the OPs by Rs.19,01,416/- without any basis. It was contended by the complainant that once this is case of total loss of the complainant, nothing absolutely can be provided as deductions for salvage value out of it. The complainant accepted the amount of Rs. 90,48,204/- as full and final settlement under policy No.401308/11/09/3193100000092 and it is completely unreasonable and amounts to gross deficiency in service by the OPs. Similarly, it was submitted that conduct of the OP/United India Insurance Company is arbitrary in stating that once claim of the complainant is settled by OP No.1, hence it cannot be enforce against OP No.2. It was further argued that the survey report submitted by M/s Cunningham Lindsey International Pvt. Ltd deputed by OP No.2 is also on the record to this effect.
8. The submission of the OPs is that the claim has been finally settled for a sum of Rs. 90,48,204/- and complainant has received this amount towards full and final settlement and nothing is due, thereafter, in this case. Much emphasis has been laid down by the OP that once claim has been finally settled, it cannot be reopened again by the complainant.
9. From careful appraisal of the documents on the record and hearing the respective submissions of counsel for the parties, we find that complainant has claimed total value of the gutted goods in the fire to the extent of Rs.1,32,50,100/- in this case. The prayer of the complainant is that total amount of Rs.1,32,50,100/- be awarded to him including the amount of Rs.90,48,204/-already received by it. We find that the relief clause of the complainant claimed total loss of Rs.1,32,50,100/- , part payment as per own version of the complainant is also out of this total claim of Rs.1,32,50,100/-, which is part of the same transaction and cannot be disintegrated from it. Once the complainant claimed total relief of Rs.1,32,50,100/- in this case and the jurisdiction of this Commission only is up to one crore only, consequently, the Commission is not competent to look into the matter on the ground that the jurisdiction of this Commission is limited to the jurisdiction up to the value of goods or deficiency in service up to one crore only and not beyond that. This Commission on this score is not competent to entertain this complaint.
10. Even assuming for the sake of arguments and not admitting, now the dispute is confined to the remaining amount only by deducting the amount of Rs.90,48,204/- out of the amount of Rs.1,32,50,100/-. Even from that premise, we find that the complaint of the complainant is without substance. The complainant has already received the amount of Rs. 90,48,204/- as full and final settlement of the policy. Now, the submission of the counsel for the complainant before this Commission is that complainant has not received the above referred amount of Rs.90,48,204/- as full and final settlement.
11. We have examined the matter on its merits on the record. Our attention has been drawn to Para No.10 of the complaint, wherein complainant itself admitted that it has accepted the amount of Rs.90,48,204/- from the OPs in this case. The affidavit of Vikram Johar of M/s Protocol Surveyors and Engineers Pvt.Ltd, Protocol House, A-56, Sector-7, Noida is on the record to the effect that physical verification of the articles caused to the stock furniture, fixture and fittings, due to alleged fire was conducted. That he assessed the loss to the tune of Rs.92,50,000/- in respect of stock, furniture, fixture and fittings, vide survey report dated 20.10.2009, annexure R-3 is on the record. There is an affidavit by the above surveyor to this effect that he found loss of Rs.92,50,000/- in this case. The report of the surveyor carries weightage and it is strong piece of evidence on the record. Surveyor is appointed under the Insurance Act. The report of the surveyor can be discarded, when there is contrary cogent evidence on the record. Consequently, on the basis of the survey report, the claim was found to be Rs.90,48,204/- by the OPs in this case. The complainant received this claim amount regarding loss of the articles due to fire under the policies. Final survey report is Annexure C-23-A by Protocol Surveyors and Engineers private limited. The final net amount payable, is Rs.91,04,116/-, as has been examined by us. The final report of the surveyor would prevail over the interim report. Undisputedly, the complainant received an amount of Rs.90,48,204/- towards the full and final settlement of this claim from the OPs. The counsel for the complainant was specifically asked by this bench as to whether complainant lodged any protest about the receipt of claim of Rs.90,48,204/-. The counsel for the complainant could not point out any substance on the record to the notice of this bench to the effect that it received the above insurance claim under any protest. The complainant, if dissatisfied with this claim amount, could have returned this cheque amount under protest or it could have lodged protest with the OPs forthwith without any delay expressing its dissatisfaction over this amount of settlement of insurance claim. The counsel for the complainant is unable to point out any document to our notice on this point except filing this complaint. The instant complaint was presented by the complainant before this Commission on 06.01.2011. The complainant received full and final settlement amount of Rs. 90,48,204/-, vide affidavit of Sh.S.K. Takkar, Managing Director of the United India Insurance Company on the record and Annexure R-10 on the record. The claim form is Annexure R-2 , the survey after physical verification found the loss assessed to the tune of Rs.92,50,000/- vide survey report dated 20.10.09 Annexure R-3 and Annexure R-4 revised assessment report dated 9.12.2009. The complainant submitted their consent for accepting the amount of Rs. 90,64,704/- towards full and final settlement, vide Annexure R-5, which is signed by Hardeep Singh Complainant. Strong reliance is upon Annexure R-5, vide which, the complainant accepted the full and final settlement of Rs. 90,64,704/- without any protest on 15.12.2009. The instant complaint was filed by the complainant on 06.01.2011 before this Commission much time thereafter. From 15.12.09 to 06.01.2011, there is no document pointed out to our notice by the complainant that he ever lodged any protest with the OPs for inadequate amount or settlement of Rs.90,64,704/-. On this point, there is an authority of the Apex Court in United India Insurance Company Vs. Ajmer Singh Cotton and General Mills & Ors , reported in II(1999) CPJ 10 (SC) , wherein Apex Court held that : "discharge voucher executed voluntarily, complainant had not alleged their execution under fraud, absence of the pleadings and evidence to this effect on the record, the discharge voucher was admittedly executed voluntarily towards full and final settlement. The mere delay for couple of day would have not authorized to the National Commission to grant relief particularly when the insurer had complained of no delay during the acceptance of insurance amount under the policy."
12. Consequently, the matter stood finally settled as per the observation of the Apex Court in the above authority and discharge voucher is not proved to be fraudulent, hence the complaint of the complainant is without merit. The complainant is estopped from challenging it again, once the complainant has accepted the full and final settlement of the claim for Rs. 90,48,204/-, vide Annexure C-5 on the record from the OP No.1.
13. In view of our above discussion the complainant does not succeed on any of the counts and the complaint of the complainant is accordingly dismissed even assuming that this Commission has jurisdiction to try the complaint for the purpose of arguments.
14. Arguments in this complaint were heard on 19.02.2015 and the order was reserved. Now the order be communicated to the parties.
15. The complaint could not be decided within the statutory period due to heavy pendency of court cases.
(J. S. KLAR)
PRESIDING JUDICIAL MEMBER
(VINOD KUMAR GUPTA)
MEMBER
February, 23 2015.
(ravi)
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