BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SIRSA.

                                                          Consumer Complaint no.161 of 2017                                                                       

                                                        Date of Institution         :    13.7.2017

                                                          Date of Decision   :   20.2.2018.

Ashwani Trading Company, Gali Mochianwali, Bhadra Bazar, Sirsa, through its Prop.

                                                               ……Complainant.

                                      Versus.

The Oriental Insurance Company, Sirsa, through its Branch Manager.

                                                                 ...…Opposite party.

Complaint under Section 12 of the Consumer Protection Act,1986.

Before:        SH. R.L. AHUJA …………..PRESIDENT.

          SH. MOHINDER PAUL RATHEE ……MEMBER.    

Present:       Sh. A. K. Gupta,  Advocate for the complainant.

Sh. Rakesh Bajaj, Advocate for opposite party.

 ORDER

                   The case of complainant in brief is that complainant’s firm M/s Ashwani Trading company deals in wholesale business of spices, grocery goods etc. That the complainant firm obtained a  shopkeeper insurance policy in respect of all kinds of spices kiryana goods etc. lying in the premises of shop of complainant vide policy no./261503/48/2017/190 w.e.f. 19.5.2016 to 18.5.2017. That on 2.7.2016, the complainant had gone out of station for making purchases and on the intervening night of 2.7.2016/3.7.2016, a heavy rain fall took place alongwith a hurricane as a result of which the room on the first floor and the verandah was heavily flooded and the flood water seeped into the room as well as in the verandah where the chili (Mirch) was stored as a result of which the same was damaged. The complainant on coming back immediately informed the Manager Punjab and Sind Bank with whom the aforesaid stocks were hypothecated and a claim was lodged with the op. That the loss took place during the above said policy period. 62 bags of chili weighing 3840 Kgs. were lying in the shop which were damaged on account of the heavy rain fall. The value of the aforesaid Mirch stored in the shop of complainant was Rs.6,14,400/- i.e. at the rate of Rs.160/- per kg. It is further averred that on account of heavy flooding, 2060 Kg. of Mirch was totally damaged. The complainant also got separated the damaged mirch and spent Rs.3600/- as labour charges. The Surveyor namely B.C. Goyal was duly appointed by the company who had made survey of the loss. That a total loss of Rs.3,33,200/- was caused to the complainant. It is further averred that thereafter the complainant had been taking the round of the office of op time and again but now the complainant has come to know that the op has credited an amount of Rs.51,000/- to the account of the complainant as against the loss of Rs.3,50,000/-. That immediately complainant approached the op and lodged his protest and also demanded the report of the surveyor as the claim was paid on highly disproportionate basis to the actual loss. The complainant also got service a notice on 29.3.2017 to the op to supply the copy of the survey report but inspite of the receipt of the notice, the op kept a total silence and even did not respond to the notice and the copy of the survey report was not supplied to the complainant. That the act of op in settling the claim of Rs.51,000/- as against the loss of Rs.3,33,200/- is highly deplorable. The complainant is entitled to the loss caused during the policy period. Hence, this complaint.

2.                On notice, opposite party appeared and filed written statement raising certain preliminary objections. On merits, it is submitted that op on receipt of the information about the alleged incidence, appointed Shri B.C. Goyal, FCA, Surveyor and Loss Assessor, who assessed the loss suffered by the complainant in the said incidences to the tune of Rs.51,016/- . It is wrong that the complainant has suffered the loss of Rs.3,33,200/- rather the complainant suffered the loss of Rs.51,016/- as assessed by the Surveyor and Loss Assessor. It is further submitted that the claim lodged by the complainant was fully observed and scrutinized and as per report submitted by the Surveyor and Loss Assessor, the claim of the complainant was settled at Rs.51,016/- which amount has already been paid to the complainant on 25.1.2017. The complainant has received the above settled amount of Rs.51,016/- as full and final settlement of his claim. Remaining contents of the complaint are also denied.

3.                The parties then led their respective evidence by way of affidavits and copies of documents.

4.                We have heard learned counsel for the parties and have perused the case file carefully.

5.                Learned counsel for complainant has contended that it is a proved case of the complainant that complainant had purchased a shopkeeper insurance policy in respect of all kinds of spices kiryana goods etc. lying in the shop of the complainant for the period 19.5.2016 to 18.5.2017. It is further proved on record that on the intervening night of 2/3.7.2016, a heavy rain fall took place as a result of which the room on the first floor and the verandah was heavily flooded and the flood water seeped into the room as well as the verandah where the Mirch was stored, as a result of which the same was damaged. Due intimation was given to the op and claim was lodged with op to the tune of Rs.3,33,200/- but however the op appointed a Surveyor who conducted survey at the spot and also passed order for separation of the stock but however, op on the basis of false and fabricated report of the surveyor directly transferred Rs.51,016/- in the account of complainant arbitrarily and illegally though complainant has lodged claim for Rs.3,33,200/-. The report of the surveyor is quite defective. He has not given consideration to the stock of the complainant on the date of occurrence and further he has arbitrarily written the stock of the complainant in excess than the insured value of the stock. The report of the surveyor is self contradictory and does not inspire any confidence. He has wrongly come to the conclusion that loss payable to the complainant is only to the extent of Rs.51,016/-. The surveyor has not furnished his affidavit in support of his report nor he has placed on record the documents which were submitted by the complainant at the time of inspection and thereafter before settlement of the claim. The photographs which were taken at the spot were also not produced by the Surveyor despite the best efforts of the complainant and even by serving a legal notice, copy of the survey report was not supplied to the complainant which handicapped the complainant to proceed properly with the claim case with the op. He has further contended that only after the evidence of op, complainant came to know about the report of the surveyor. The surveyor has openly favoured the op. Learned counsel for complainant has relied upon judgment of the Hon’ble Punjab and Haryana High Court in case titled as NIC Vs. Sandeep and others, 2017 (1) RCR (Civil) 621, judgment of the Hon’ble Haryana State Consumer Disputes Redressal Commission, Panchkula in case titled as OIC & ors. Vs. Ambala Wine Traders, I (2017) CPJ 35 (Har.) and judgment of the Hon’ble Himachal Pradesh State Commission, Shimla in case titled as NIC Vs. Naresh Kumar, II (2007) CPJ 118.

6.                On the other hand, learned counsel for opposite party has strongly contended that claim of the complainant was considered thoroughly in accordance with law and the surveyor was appointed who inspected the stock and passed order for segregation of the stock after giving due opportunities to the complainant to produce the requisite documents i.e. stock register, bank statement of accounts sent to the bank with which stock was pledged and all other necessary documents which were required for the settlement of the claim and after considering all these factors and stock which was found after separation, the surveyor had come to the conclusion that out of the total stock, some of the stock was undamaged, some was semi damaged and some was fully damaged. After evaluating the value of the semi damaged stock, he has submitted his detailed report in which he has categorically mentioned that on the date of occurrence, stock of the complainant was excess than the insured stock of complainant and further the complainant has shown the high value of the stock than the market price of the product and further more, as complainant was holding excess stock an average clause was applicable as per the terms and conditions of the policy. The loss was properly assessed by the surveyor and amount which became due for settlement of the claim of complainant was paid to the complainant vide Ex.R3. Learned counsel for op has further contended that judgments relied upon by learned counsel for complainant are of no help to the case of complainant as facts reported in these judgments are quite different from the facts of the present case. The report of the Surveyor is genuine and trustworthy.

7.                We have considered the rival contentions of the parties and have perused the case file carefully.

8.                The perusal of the record reveals that complainant in order to prove his case has furnished his affidavit Ex.C1 in which he has reiterated all the averments made in his complaint. He has also relied upon documents i.e. claim bill Ex.C2, detail of occurrence Ex.C3, copy of policy schedule Ex.C4, copies of documents showing stock to the bank Ex.C5 to Ex.C11, copy of letter of Surveyor Ex.C11, copy of legal notice Ex.C12, postal receipt Ex.C13 and copies of details of stock Ex.C14 to Ex.C16, copies of statements of account, stock details and copies of ledger account as Ex.C17 to Ex.C25, copy of return Ex.C25A and copy of GST return Ex.C26. On the other hand, op has furnished affidavit of Sh. Sushil Kumar, Senior Divisional Manager Ex.R1 in which he has deposed on the lines of written statement of op and has also relied upon copy of survey and assessment report Ex.R2 and copy of claim payment voucher Ex.R3.

9.                It is undisputed fact between the parties qua the issuance of the policy as well as occurrence during which the stock of the complainant was damaged due to heavy rain fall. It is also undisputed fact that surveyor was appointed who visited the spot and taken photographs and after taking all the requisite documents and after order of segregation of the stock, he submitted his report Ex.R2.

10.              The bone of contention between the parties is qua the report of the surveyor. As per contention of learned counsel for complainant, Surveyor has not assessed the loss of the complainant properly and had not given the proper consideration to the loss suffered by the complainant though on the other hand op has taken a stand that loss which was found payable by the surveyor has been paid by op to the complainant. The complainant cannot claim the excess amount of the stock nor he can claim damages of all the stocks since after segregation some of the stock was found to be undamaged and semi damaged.

11.              The perusal of the record reveals that op has not placed on file affidavit of the surveyor which was legal obligation of the op to place on record. Nor the op has placed on record the relevant documents which were attached with the survey report like copies of the stock register, document regarding assessment of the loss, photographs, record the bank where stock of the complainant was hypothecated, nor the op has placed on record copy of the insurance policy and terms and conditions of the policy which were settled between the parties at the time of inception of the insurance contract. So, under these circumstances, it appears that there should be re-consideration of the claim of the complainant by op after going through all the relevant papers and terms and conditions of the policy and pass fresh order of assessment of loss.

12.              In view of the above, we partly allow the present complaint and direct the opposite party to re-examine and re-evaluate the loss of the complainant after giving thoughtful consideration to the documents which have been submitted by the complainant to the op and its duly authorized surveyor and also to take into consideration terms and conditions of the policy qua alleged excess stock as well as market price of the product damaged, semi damaged and not damaged at the time of occurrence and keeping in view the quality and condition of the product after the occurrence and to pass fresh order of assessment and to settle and pay the claim after deducting the amount so paid by op to the complainant. The opposite party is directed to comply with this order within a period of 45 days from the date of receipt of copy of this order.  A copy of this order be supplied to the parties free of costs. File be consigned to the record room after due compliance.      

Announced in open Forum.                  Member                      President,

Dated:20.2.2018.                                                           District Consumer Disputes

                                                                                       Redressal Forum, Sirsa.