Punjab

StateCommission

CC/11/102

Navrang Electrovision - Complainant(s)

Versus

OIC Ltd. - Opp.Party(s)

Sandeep Suri

24 Jul 2015

ORDER

                                                               FIRST ADDITIONAL BENCH

 

STATE  CONSUMER  DISPUTES  REDRESSAL  COMMISSION, PUNJAB

          SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.

 

 

                   Consumer Complaint No.102 of 2011

 

 

                                                          Date of Institution: 21.12.2011  

                                                          Date of Decision:  24.07.2015

 

Navrang Electrovision, through Shri Amit Goel, Proprietor, Shingar Cinema Road, Adj.Bobby Marriage Palace, Ludhiana, since dead through the legal heirs a) Mrs Sumedha Goel (wife 34 years), b) Mrs. Raman Goel (mother 62 years), c) Ms.Saira Goel (daughter 10 years) d) Ms.Savera Goel (daughter 5 years) , as per order dated 24.4.2015 passed by this Commission.

 

                                                                             …..Complainant…..

                                                Versus

 

 

Oriental Insurance Company Limited, White House Commercial Complex, Near General Bus Stand, Ludhiana 141001, through its Manager.

 

                                                                             ….Opposite Party….

 

         

Consumer Complaint U/s 17(1)(a) of the Consumer Protection Act, 1986 (as amended up to date).

Quorum:-

 

          Shri J. S. Klar, Presiding Judicial Member.

          Shri Harcharan Singh Guram, Member.

 

Present:-

 

          For the complainant                   :  Sh.Sandeep Suri, Advocate

          For the Opposite party              :  Sh.Satpal Dhamija, Advocate

          . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

 

J. S. KLAR, PRESIDING JUDICIAL MEMBER:-

                                     

           The complainant being proprietor of Navrang Electrovision (since deceased), now represented through his LRs, filed complaint against OP on the averments that complainant was a dealer of electronics goods and dealing in goods manufactured by M/s Sony India, M/s Samsung India Electronics Limited, M/s Whirlpool and others. The complainant took initial policy of insurance from OP for the period from 06.12.2007 to 05.12.2008 for the coverage amount of Rs.35 lac by making the payment of premium. This policy was subsequently renewed by the OP in favour of complainant. OP issued the policy covering building of the complainant for Rs.40 lac and stock  of Rs.35 lac. All kinds of electronic goods like CTV's, refrigerator, washing machines, DVD, LCD, Stereo, Music Systems etc were lying and stored in the godown insured by OP situated at 4813/3 Shingar Cinema Road adjoining Bobby Marriage Palace Ludhiana. A fire broke out on 08.09.2008 in the premises of the complainant covered under the insurance policy at 7.15 to 7.30 PM, which was noticed by Mukesh peon of the complainant, when he went to godown on the first floor of the premises and noticed the smoke and fire in the godown. Upon information to Mr. Amit Goel proprietor, fire brigade was pressed into service to extinguish the fire. The stocks inside the godown on the first floor were totally damaged. Fire brigade was forthwith informed about the fire and the report of the fire brigade dated 08.09.2008 is annexed herewith. Matter was also reported to police in this regard on behalf of the complainant. The OP deputed surveyor Sh. Suresh Vashisht & Company, who conducted the survey, when the fire was still on in the  process of the being extinguished by the fire brigade. As per report of the above surveyor, he was present at the spot and witnessed the fire and the firefighting operations taking place and surveyor had seen the stock inside the godown on the first floor, which was badly damaged. As per report of the surveyor, few items packed in the boxes in the front seemed to be O.K and there was no stock on the second floor and same was only being used for the purposes of stocking thermocole and corrugated empty boxes.  The stocks of the various goods related to the insured's trade namely refrigerators, ACs, LCDs etc have been damaged in the fire. The surveyor prepared the detailed report of the losses caused and surveyor was also provided the sale book, purchase records, bills, balance sheet by complainant, which all formed part of this report. The OP appointed second surveyor Josan & Associates to conduct the second survey and it submitted the report that the stock position at first floor was taken, however the exact identification of make and capacity was not possible, as much of the stock material was beyond recognition. The stock on the first floor of the premises was of Rs.35,98,492/- against the insurance coverage of Rs.35,00,000/-. It was further averred that  all stock lying in the said premises on the first floor was duly covered and hence to disallow any amount on the ground that stock was old, was uncalled for and unjustified. The amount of Rs.2,35,710/- was allowed, as loss to the building by the report of second surveyor Josan Associates. The complainant regularly followed the matter with the OP for  the payment of the insurance claim, but it was not processed by the OP, despite sending letters dated 16.01.2009 and 20.06.2009 to the OP. The OP issued letter dated 31.07.2009 stating that matter has been got investigated by it from Sh. Harjit Singh investigator and he gave report that fire so occurred was not accidental one, hence claim was not covered under the purview of the policy. Instead of providing the report of the investigator to the complainant, the OP wrote letter dated 8.09.09 stating that same had been provided at the shop of the complainant by the Development Officer. Instead of providing the report, OP issued letter dated 30.09.09 that no comments have been received on the investigator's report from complainant,  hence the claim was being considered, as not accidental and being filed, as  'No Claim'. The complainant has alleged that filing of the claim, as 'No claim' basis is arbitrary, unauthorized and unjustified by OP. The complainant further averred that so called expert investigated the location, after a month from the date of fire eruption incident and his report could not be authentic, it was not possible for the alleged expert Sh.S.K.Mahendru  to find out the cause of fire after a month from date of occurrence of the fire. The complainant obtained estimate value of the damaged stock from M/s Khanna Scrap Company at the insistence of the surveyor Mr.Josan Associates. It was further averred that the investigator wrongly stated in the report that no lease deed was executed for the rental but it was against facts, as lease deed was duly executed between Varun Goel, Director  Navrang Electronics & Mr. Harinder Pal Singh owner of the godown with effect from January 2007. The complainant challenged the report of the investigator as baseless, which was obtained by the complainant under Right to Information Act only and was not, in fact,  supplied by the OP. The complainant has, thus, filed the present complaint directing the OP to pay the amount of Rs. 35 lac towards loss of the stock and Rs.40 lac towards damage caused to the building along with interest @ 12% p.a from the date of loss i.e. 08.09.2008 till actual payment and Rs.60,000/- as cost of litigation and Rs.10 lac as compensation for mental harassment and for deficiency in service on the part of OP.

2.      Upon notice, OP filed written reply and contested the complaint of the complainant vehemently. It was averred in preliminary objections that complainant is a partnership concern, which was insured with OP under Standard Fire and Special Perils Policy for a sum insured for Rs.40 lac for building and Rs.35 lac for stock/ material. The insurance policy covers the risk of fire and allied perils on stock of all kind of electronics goods like TV, Refrigerator, washing machine, DCD, LCD, Stereo, music system etc. The fire took place on 08.09.2008 in the premises of the complainant  and on receipt of the intimation, M/s Suresh Vashisht & Company was appointed, as spot surveyor by OP. It was submitted that Firm was not in a position to give any documents and not a single document was available for checking and stock status whether old or new can be clear only after thorough examination/investigation. M/s Josan & Associates were appointed, as surveyors to conduct the detailed survey, who assessed the loss to the tune of Rs22,84,805.20 towards the loss of the stock and Rs.2,35,710/- towards loss to building and Rs.10,000/- to be deducted as excess clause under the Contract of Insurance. The insurance company deputed an investigator, Sh. Harjeet Singh IPS (Retd.) to look into the matter. After conducting the enquiry, he submitted his detailed report dated 12.12.2008 and found that fire was not accidental and hence was not covered under the purview of the policy. It was further submitted that earlier complaint of the complainant instituted vide no. 27 of 2010 on 09.03.2010 and same was dismissed for want of prosecution, vide order dated 19.10.2010. It was further averred that voluminous evidence has to be required in this case for settlement of dispute and matter cannot be adjudicated in a summary proceedings by Consumer Forum and needs to be relegated to the civil court only. On merits, OP contested the complaint of the complainant, it was admitted that on receipt of information regarding fire by the complainant, the OP deputed M/s Suresh Vashisht & Company to conduct the spot survey. It was also admitted that M/s Josan & Associates was appointed to conduct detailed survey of the spot affected with fire. The loss disbursement thereof was to be issued, as per the terms and conditions of the policy by the competent authority. It was further averred that report of Sh. Harjeet Singh, IPS (Retd) investigator is correct and OP prayed for dismissal of the complaint.

3.      The complainant tendered in evidence affidavit of the complainant Ex.CW-1/1 along with copies of the documents Ex.C-1 to Ex.C-21. As against it OP tendered in evidence affidavit of Ram Avtar Deputy Manager Oriental Insurance Company Ex.OP-A along with copies of the documents Ex.OP-1 to Ex.OP-4.

4.      We have heard learned counsel for the parties and have also examined the record of the case.  The respective pleadings of both the parties have been duly examined by us on the record.  We have also adverted to evidence on the record. The affidavit of Sh. Amit Goel deceased proprietor of the complainant concern is Ex.CW-1/1 on the record. He stated this fact that the OP filed insurance claim, as 'No Claim' without any application of mind. The necessary information was called from the OP and instead of providing the same, the OP merely closed the case, as No Claim for not providing the comments on 30.09.09 by complainant. He further stated that complainant insured the stock in the store/godown for Rs. 35 lac and building for Rs.40 lac with the OP. The supplementary affidavit of complainant is also placed on the record, which is Ex.CW-1/2 reiterating the averments, as pleaded in the complaint by him. Ex.C-1 is document regarding mentioning the goods in the godown. Ex.C-2 is the report of the Municipal Fire Brigade Ludhiana dated 8.09.2008. This document has proved that on receipt of the intimation, fire brigade came into action to extinguish the fire. DDR No.7 dated 18.09.08 was lodged by Amit Goel with police division no.6 about this incident of fire. The report of first surveyor Suresh Vashisht & Company Ex.C-5 is on the record. We have examined this report with the assistance of counsel for the parties. This report corroborate the fact of occurrence of fire stating that it was not possible to ascertain the exact cause of fire at that time. As per insured representative/newspaper, it seemed to be due to sparking of fire. The survey report further mentioned that the insured showed the burnt account bills, books and no document was available for checking. Pursuant to it, second surveyor was deputed by OP M/s Josan & Associates which submitted the report of survey Ex.C-8 on the record dated 5.5.09. The survey report Ex.C-8 is submitted by Joson & Associates, who was appointed by OP to conduct the survey and it is quite relevant piece of evidence on the record. This surveyor examined the entire matter including the record and gave report that loss to the stock was Rs. 20,59,095.20 and loss to building was Rs.2,35,710.00 totaling Rs.22,84,805.20. Less excess clause Rs.10,000/- and net loss was found by the surveyor Josan & Associates payable, as Rs.22,84,805.20 , as per detailed report Ex.C-8 on the record. Josan & Associates surveyor was duly appointed under the Insurance Act under the guidelines of Insurance Regulatory Development Authority. Ex.C-5 is the fire insurance claim lodged by the complainant with OP. Ex.C-6 is letter dated 12.2.208 sent by the complainant to OP for this claim. Ex.C-9 is the letter sent by OP to complainant  that fire was not accidental and was not covered under the policy. Ex.C-10 is letter of the complainant to OP. dated 21.8.09 regarding sending the report of the investigator, which was not received by complainant from OP with regard to comments of the complainant. Ex.C-11 is reminder sent by complainant to OP on 1.9.09 and Ex.C-12 is letter dated 8.09.09 from OP to complainant that report of investigator has been delivered to the complainant through Sh. J.K.Sharma Development Officer at their shop. Correspondence followed in this regard between the parties, vide Ex.C-13 to Ex.C-15 on the record. The grievance of the complainant is that no report of investigator was ever supplied to it and it was not  in a position to submit its comments, whereas stand of OP that it was duly supplied through Sh. J.K.Sharma Development Officer at the shop of the complainant. The counsel for OP could not point out any substance on the record regarding supply of this investigation report to the complainant. The copy of investigation report taken under Right to Information Act by the complainant is Ex.C-17 on the record.

5.      The Opposite party tendered in evidence copy of the policy Ex.OP-1. Ex.OP-2 is original policy and report of investigation Ex.OP-3 on the record. On careful examination of the entire material on the record, we find that OP could not establish this point on the record that report of the investigator was ever supplied to the complainant. Sh.J.K. Sharma Development Officer has not been examined by OP to prove this fact on the record that report of the investigator was ever supplied to complainant at its shop by him. There is no receipt to this effect placed by OP on the record nor there is any statement of Sh. J.K Sharma Development Officer to prove this fact on the record. In the absence of the above-referred substance, we can safely conclud that report of the investigator was never supplied to the complainant by the OP and, thus, the complainant remained deprived of the valuable opportunity of submitting its comments to the report of the investigator. Even otherwise, from perusal of the report of the investigator, it is plain that his report on the basis of certain discrepancies and there are no affidavits of those persons on the  record to prove them. He also based his report on report of Sh.S.K. Mahendru expert in this matter. We find that S.K Mahendru of Electricity Department alleged examined the spot much time later than more than one month from the time of occurrence of fire. It was not possible for him to get the clues, as to whether cause of fire was accidental or intentional, when he inspected the spot after such passage of time, when evidence became non-existent thereat. Since Sh.S.K. Mahendru has not been called on the spot when the evidence to this effect was available just after occurrence and was called on the spot when the water had already flown under the bridges and hence it cannot be said that Sh. S.K. Mahendru was in a position to point out the cause of fire being not accidental. There is no affidavit of Sh.S.K. Mahendru on the record produced by the OP to establish this fact in this case. His affidavit must have been placed on record to substantiate his report. Consequently, when the surveyor Josan & Associates found the loss on the spot of occurrence and assessed the loss in detailed report Ex.C-8 and hence we have to give due weightage to it. The OP appointed investigator subsequently because OP was not interested in paying the claim to the complainant. The investigator based his report only on minor considerations like slight discrepancy regarding time of giving information to fire brigade and recording of statements of the witnesses. No statement of the witnesses has been placed on the record by OP before us to examine the substance, as to whether they made any statement or not before investigator Harjit Singh. The OP could have easily obtained report of the police , as to whether fire was accidental or not and this material document has been withheld by OP from this Commission, which raises an adverse inference against them.

6.      From appraisal of above-referred evidence on the record, we have come to this conclusion that complainant insured material/stock for Rs. 35 lac and building for Rs.40 lac with the OP on the date of accident of fire on 08.09.08. They were duly insured with the OP on the basis of the insurance policy Ex.OP-1. This fact is not in dispute in this case. The surveyor M/s Josan & Associates has been appointed under Section 64 UM of the Insurance Act by the OP. The report of the surveyor is a valuable piece of evidence on the record. The report of the surveyor is usually given weightage unless there are strong reasons to the contrary. Investigator was appointed by the OP subsequently and he based his report on the report of the Sh.S.K. Mahendru, who allegedly examined the spot after passage of a long time from the incident of fire,  when no such evidence was available regarding cause of fire thereat. Consequently, we are unable to rely upon the report of the investigator Harjit Singh so as to  discard the report of the surveyor  M/s Josan & Associates  Ex.C-8 on the record. Consequently, we rely upon report of the surveyor M/s Josan & Associates, which carries weightage in our opinion, vide Ex.C-8 on the record.

7.      In view of the above report of the surveyor, he found loss to the stock of Rs. 20,59,095.20 and loss to building was Rs.2,35,710.00 totaling Rs.22,84,805.20. Less excess clause Rs.10,000/-  has to be effected in this case. The surveyor M/s Josan & Associates found the net claim payable, as Rs.22,84,805.00 from OP to complainant. The report of the surveyor is duly supported with the documents supplied by complainant to him. The claim of the complainant is, thus, accepted on the basis of the report of surveyor Ex.C-8.

8.      As a result of our above discussion, we accept the complaint of  the complainant and direct the OP to pay the amount of Rs.22,84,805.20 (twenty two lac eighty four thousand eight hundred five rupees and twenty paise only) , as net amount payable by the OP to complainant along with interest @ 9% p.a from the date of complaint till its actual payment. The complainant is also awarded cost of litigation of Rs.30,000/- in this case.

9.       Arguments in this complaint were heard on 20.07.2015 and the order was reserved. Now the order be communicated to the parties.

10.    The complaint could not be decided within the statutory period due to heavy pendency of court cases.

 

                                                                          (J. S. KLAR)

                                                             PRESIDING JUDICIAL MEMBER

 

 

                                                            (HARCHARAN SINGH GURAM)

                                                                                MEMBER

 

July 24 ,   2015.                                                             

(ravi)