STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA
Date of Institution: 23.05.2018
Date of final hearing: 07.12.2023
Date of pronouncement: 31.01.2024
First Appeal No.672 of 2018
IN THE MATTER OF :-
M/s Rajindra Textile through its Prop. Rajender Kumar, situated near Master Dye House, Babail Road, Panipat. ....Appellant
Versus
Oriental Insurance Company Limited, through its Sr. Branch Manager, Branch Office, GT Road, Panipat. …..Respondent
CORAM: Sh. Naresh Katyal, Judicial Member
Argued by:- Sh. Sandeep Kotla, counsel for the appellant.
Sh. Ashish Naik, counsel for respondent.
ORDER
NARESH KATYAL, JUDICIAL MEMBER:-
Challenge in this Appeal No.672 of 2018 filed by appellant-complainant has been invited to legality of order dated 26.03.2018 passed by District Consumer Disputes Redressal Forum-Panipat (In short “District Consumer Commission”) in complaint case No.92 of 2017, vide which appellant’s complaint has been partly allowed.
2. Complainant alleged that: on 04.12.2016 at 7.45 pm, his factory got fired; caused loss about Rs.20 to 25 lacs due to burning of raw material and machines etc. He reported about fire to police vide DDR No.15 dated 05.12.2016 and also informed fire brigade-Panipat. Complainant’s firm was insured with OP-insurer vide insurance policy No.261401/11/2017/612. Complainant firm also informed OP; submitted all details of loss regarding burnt raw material and furnished required documents for settlement of claim for total damages of Rs.5,17,220/- caused to it. Complainant also submitted details of burnt goods/stocks and bills and other documents required for settlement of claim. OP-insurer approved claim of Rs.66,200/- out of Rs.5,17,220/- vide its letter dated 15.03.2017, in claim No.261401/11/2017/030003. Thereafter, complainant visited OP; requested to make payment of remaining claim, but nothing has been done by OP which, as per plea, amounted to deficiency in services on part of OP-insurer and it has filed complaint praying for direction against OP to pass claim of Rs.5,17,220/- along with interest.
3. OP-insurer raised contest. In defence so entered; it is pleaded that: complaint is not maintainable; complainant has no locus standi and cause of action. Complainant has concealed true and material facts. Complainant took “Standard Fire and Specific Perils & Policy” for insurance of stock of all kinds, as described in cover note No. 357983 dated 22.07.2016 for sum insured Rs.40.00 lacs and policy No. 261401/11/2017/612 effective from 23.07.2016 to 22.07.2017 from OP. Complainant sent intimation on 05.12.2016 regarding fire loss took place in insured premises on 04.12.2016 at about 7.45 pm. OP registered the claim of insured; immediately deputed Sh. S. K. Aggarwal & Company, Surveyor and loss assessor-an approved surveyor and loss assessor from IRDA, who immediately conducted survey; met insured; obtained relevant documents from insured and submitted complete report dated 04.02.2017 before OP-insurer and assessed loss of insured of Rs.66,200/-. OP sent registered letter to complainant/insured on 15.03.2017 stating that: competent authority has approved claim of Rs.66,200/- and complainant is required to send consent letter for acceptance of claim and discharge voucher duly filled and signed to OP-insurer, otherwise, OP cannot settle the claim. Insured/complainant has not sent consent letter of claim and discharge voucher of Rs.66,200/- duly filled and signed to OP. There is no deficiency in service of OP. By denying other pleas; dismissal of complaint has been prayed.
4. Parties to this lis led their respective evidence; oral as well documentary before learned District Consumer Commission-Panipat.
5. By critically analyzing the same, learned District Consumer Commission-Panipat vide order dated 26.03.2018 has partly allowed complainant’s complaint and directed OP to make payment of Rs.66,200/- to complainant within a period of 30 days from the receipt of order. Feeling dissatisfied, complainant has filed this appeal.
6. Learned counsel for parties has been heard at length. Record of complaint has also been perused with their able assistance.
7. Learned counsel for appellant/complainant, in his attempt to accept this appeal, has urged that impugned order 26.03.2018 suffers from illegalities, both on legal and factual front. It is urged that report of surveyor dated 04.02.2017 will not form any base for acceptance of part claim, of fire loss suffered by complainant. Instead, the complainant is entitled to amount towards full loss of Rs.5,17,220/- so suffered on account of fire at its premises. It is urged that insurer cannot evade its liability as the premises of insured, was duly insured along with stocks and machinery, from 23.07.2016 to 22.07.2017, with insured value of Rs.40.00 lacs. Fire at premises of complainant had taken place on 04.12.2016 i.e. within currency of insurance.
8. Per contra, learned counsel for respondent/OP has urged that report dated 04.02.2017 authored by S.K. Aggarwal & Company-an approved surveyor of IRDA is comprehensive in nature and has been rightly relied upon by District Consumer Commission-Panipat to decree part claim. Insurer has been fastened with the liability of Rs.66,200/-. Over and above this amount, as per contention, insured is not entitled to anything. On these submissions; learned counsel has urged that no interference in the order dated 26.03.2018 of learned District Consumer Commission-Panipat is warranted.
9. This Commission has subjectively analyzed above rival submissions put before it.
- Admittedly, premises of complainant is insured with OP vide insurance policy namely “Standard Fire and Specific Perils & Policy”-Ex.R-1 which has currency from 23.07.2016 to 22.07.2017. Sum insured as per this policy is Rs.40.00 lacs for stocks etc. Admittedly, fire at premises of complainant had taken place on 04.12.2016. Document Ex.C-3 recites about details of stocks as on 05.12.2016 concerning complainant’s firm. As per this document, stock valuing Rs.21,65,570/- was lying there. Document Ex.C-4 is details of burnt stock, which is of value of Rs.5,17,220/-. Both these documents bear stamp and signature of Sunil Jain and Associates-Chartered Accountants. Said Chartered Accountant has neither stepped into the witness box, nor filed his affidavit, during pendency of proceedings of learned District Consumer Commission, in order to lead credence to documents Ex.C-3 and Ex.C-4. Enormous doubt is otherwise cast upon genuineness of documents Ex.C-3 and Ex.C-4 if the text, mentioned underneath these documents is subjectively perused. Significantly, on document Ex.C-3 there is a recital saying, “above details is as per information provided by party”. Likewise, on document Ex.C-4 there is recital saying, “above detail is as per information provided by client. No investigation has been conducted by us (i.e. Sunil Jain & Associates-Chartered Accountant)”. Meaning thereby, the chartered accountant has himself not authenticated the credibility of documents Ex.C-3 and Ex.C-4. Instead, above quality recitals mentioned underneath documents Ex.C-3 and Ex.C-4 would prove that genuineness of both these documents have been negated by chartered accountant himself. Consequently, no constructive reliance can be placed upon these documents, at legal pedestal. Document Ex.C-3 and Ex.C-4 will not stimulate any cause of complainant, even remotely.
11. Report of surveyor dated 04.02.2017 is Ex.R-4. This report under its heading No.7 captioned as Insured’s Claim specifies that: insured has put forward a claim of Rs.5,17,220/-, but it further specify that insured has not been able to provide the basis of computing the damaged quantity. While assessing loss, surveyor’s report under its heading No.9 captioning Assessment of Loss states that: as per site verification, estimated loss in stocks was 770 kg and around the machine and 500 kg in the shape of cones. Thus, as against claimed loss of for about 6580 kg by the insured, we (surveyor) considered total 1270 kg stock as fired damaged, based on site verification and inspection. The ratio of shoddy yarn is higher in the weaving of the cloth, based on this consideration, we (surveyor) used average rate of Rs.60/- kg (including marginal process cost) for assessment of loss in the stock. Accordingly, net liability of insurer has been assessed as Rs.66,200/-. In opinion of this Commission, surveyor’s report Ex.R-4 running in 5 pages and accompanying photographs of loss of stocks/machinery has, indeed has formed an acceptable base. There is no reason before this Commission to discard this report of surveyor. Rightly, it has been relied by learned District Consumer Commission-Panipat.
12. According to Insurance Act, 1938, an approved surveyor’s assessment is necessary for a claim. The legal position with regard to issue under controversy (credibility of surveyor’s report) is no more res integra. In catena of judgments it has been held on the aspect of surveyor’s report that: “although the assessment of loss by approved surveyor is pre-requisite for payment of settlement of claim, but surveyor’s report is not the last and final word. Insurer has discretion to settle the claim for a different amount, than, what is assessed by surveyor. It is not that sacrosanct that it cannot be departed from; it is not conclusive. Approved surveyor report may be the basis or foundation for settlement of claim by insurer in respect of loss suffered by insured but still such report is neither binding on insurer nor on insured. The key question is to the extent to which the surveyor’s report is binding and under what conditions, can it be overridden in. Meaning thereby, the surveyor report is subject to rebuttal in legal parlance, though it has significant evidentiary value unless proved otherwise. While observing so, on above mentioned ratio of law, this Commission derives strength on judgments in cases viz. New India Assurance Company Ltd. and others Vs. M/s Mudit Roadways, Civil Appeal No. 339 of 2023 decided on 24.11.2023 (2023 INSC 1022) and New India Assurance Company Ltd. Vs. Pardeep Kumar 2009 (7) SCC 787. While applying these authoritative pronouncements to facts of this case, the only inescapable conclusion is that: complainant/insured has not led any evidence to blush aside the surveyor’s report Ex.R-4 dated 04.02.2017. The documents (Ex.C-3 and Ex.C-4) relied upon by complainant no evidentiary value, in view of discussion herein before. Surveyor’s report dated 04.02.2017 has been rightly accepted by learned District Consumer Commission-Panipat while awarding justifiable compensation of Rs.66,200/- to complainant through its order dated 26.03.2018. There is no fallacy in the approach of learned District Consumer Commission-Panipat.
13. On the face of above subjective and critical analysis of all relevant facets of this case; this Commission does not find any justifiable ground to upset the well reasoned finding recorded by learned District Consumer Commission-Panipat through its order dated 26.03.2018 and to interfere in same. Resultantly, impugned order dated 26.03.2018 is maintained, affirmed and upheld. Present appeal of complainant, being devoid of any substance is dismissed.
14. Any other application(s) if pending, too stand disposed of in terms of the aforesaid judgment.
15. A copy of this judgment be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986/2019. The judgment be uploaded forthwith on the website of the Commission for the perusal of the parties.
16. File be consigned to record room.
Date of pronouncement: 31st January, 2024
Naresh Katyal
Judicial Member
Addl. Bench-II
