The present Revision Petition has been filed by the Petitioner/Complainant against order dated 06.12.2012 passed by the Haryana State Consumer Disputes Redressal Commission, Panchkula (for short “State Commission”) in First Appeal No.63/2008.

Along with the Revision, an application for condonation of delay of 30 days has also been filed by the Petitioner. For the reasons mentioned in the application and in the interest of justice, the delay in filing the Revision Petition is condoned and the Application is allowed.

The case of the Complainant is that the Complainant is a dealer in Paints since 30.11.1992. The Complainant was having a C/C limit of Rs.6,00,000/- from Respondent No.4 - Punjab National Bank, Main Branch, Loharu Road, Bhiwani since 1997. The insurance of the shop and godown were required as per the contract between them and the Bank used to pay Respondent Nos.1 & 2/Insurance Company premium on behalf of the Complainant duly debiting the account of the Complainant. Initially the shop was taken on 30.11.1992, whereas the godown was taken on rent much later. A fire broke out in the shop of the Complainant on the intervening night of 6^th & 7^th April, 2002 at about 4.00 a.m.  The goods of the Complainant were destroyed in the fire causing loss of Rs.8,90,925/-. Immediately, the Complainant reported the matter to the Branch Manager of the Insurance Company/Respondent No.2 as well as to Respondent No.4. Surveyor Sh. S.P. Goyal was appointed who visited the shop of the Complainant on 07.04.2002. Though the Complainant supplied all the necessary information to Respondent No.2., on 11.02.2003 the claim was repudiated on the ground that the Complainant was not running an independent shop and it was part and parcel of another shop which was being run by his father Shri Virender Kumar. According to the Insurance Company, the Complainant was not having counter and another shop was being run jointly with his father and only for record purposes of Sales Tax, two premises were shown. Insurance Company/Respondent rejected the claim on the premise that fire took place in the godown of the shop which was being run jointly by the Complainant and his father. Aggrieved by the repudiation of the Claim, the Complainant filed Consumer Complaint No.248 of 2003 with the District Forum with following prayer:-

“a)  Compensation to the tune of Rs.8,90,925/- for the loss goods in fire.

b)  The loss of earning of the Complainant. If godown is not got Insured by the Bank then in that case, if the Insurance Company is not held responsible then Bank should be held responsible for that.

c)   That the interest which the Bank is claiming on the loan amount, after the day of fire should be paid by the Insurance Company, because the just claim of the Complainant has been rejected by the Insurance Company.

d)   Rs.1,00,000/- being the damages suffered by the Complainant due to mental agony, harassment etc.

e)   Cost of these proceedings.

f)  Any other relief to the which the Complainant is found entitled may also be granted to the Complainant.”

The Complaint was resisted by the Opposite Parties. Opposite Party Nos.1 & 2 raised the preliminary objection on maintainability of the Complaint stating that the matter cannot be decided under summary proceedings before the Consumer Court.

On merits it was stated that the case of the Complaint was thoroughly considered in all aspects and being a prudent trustee of the Public Fund, the claim was repudiated in good faith and there was no deficiency in service. Further, the claim of the Complainant was not matching with the estimate filed with the Police. No fire had taken place in the shop and actually it took place in the godown of the Complainant which was not insured. The shop insured by the Complainant was not having the capacity to store the goods described in the Complaint. The early filing of Sales Tax Return for the quarter ending 31.03.2002 also created a doubt because a businessman always files Returns only in the last week. The Complainant is mixing the account of two firms to seek benefit of Insurance and therefore the Complaint be dismissed.

Opposite Party Nos.3 & 4 contested the case stating that the Complainant had no locus standi to file the present Complaint against them as there was no cause of action. The Complaint is bad on account of misjoinder of Parties in as much as the Respondents have been unnecessarily dragged into the litigation. They had merely  sanctioned CC limit to the tune of Rs.6,00,000/- against hypothecation of stock of goods besides other terms and conditions and the stock was got Insured at the request of the Complainant. The Development Officer of the Insurance Company inspected the stocks and premises of the Complainant and issued the Insurance Policy/Cover No.77118 dated 26.09.2001 for the period 26.09.2001 to 25.09.2002. The requisite premium was paid by them on behalf of the Complainant. As such, there was no deficiency in service on their part and the Complainant needs to be dismissed with cost.

The District Forum after hearing Learned Counsel for the Parties at considerable length and going through the record very carefully, held that it was clearly established that the Complainant suffered loss to a tune of Rs.8,90,925/- due to fire incident in the shop for which the Complainant was entitled to get the claim from the Opposite Parties, apart from compensation for hardship due to deficiency and negligence in service on the part of the Respondents/Opposite Parties. The District Forum directed the Opposite Parties to pay Rs.8,90,925/- alongwith interest @ 10% p.a. from the date of repudiation till its final realization. Rs.2000/- was also allowed as litigation cost to be paid to the Complainant. The order was to be complied within two months, failing which the Complainant was entitled to get interest @ 12% p.a. on the above-said amount from the date of default till its realization. 

Aggrieved by the order of the District Forum, Opposite Parties No.1 & 2 filed First Appeal before the State Commission. The State Commission, taking into consideration rival contentions of the Parties, held that assessment of loss of 17 items by the Insurance Company at 30% of the total value of goods, was on the lower side and should not have been less than 50%. Taking the loss at 50%, amount payable to the Complainant was arrived at Rs.2,91,106/-. It ordered that the Complainant be given Rs.2,91,106/- by the Opposite Parties alongwith interest @ 10% p.a. from the date of repudiation of the Complainant’s claim till its realization. The cost of litigation was assessed at Rs.5500/-.  The order of the District Forum was accordingly modified on the terms indicated above.

Aggrieved by the order of the State Commission, the Petitioner/Complainant preferred this Revision Petition with the following prayer: -

“(a)  Set aside and quash the impugned order dated 6.12.2012 of the Ld. State Commission, Panchkula passed in First Appeal No.63 of 2008 and to restore the District Consumer Redressal Forum award dated 17.11.2007.

(b)  Call for the records of the case, if necessary.

(c)  Pass such order and further order(s) that this Hon’ble Commission may deem fit and proper in the facts and circumstances of the present case.”

Heard the Learned Counsel for the Parties and carefully perused the record. Learned Counsel for the Petitioner submitted that the State Commission erred in appreciating the fact that the Surveyor had disallowed the loss of Rs.389979/- without assigning any reason. The State Commission also failed to consider the evidence placed on record by the Complainant. The District Forum had passed a reasoned order and the State Commission did not give any reason while reducing the claim amount. He submitted that the impugned order be set aside and the Revision Petition be allowed.  

Learned Counsel for the Respondents Nos.1 & 2 submitted that the claim of the Complainant was repudiated in accordance with the terms and conditions of the Policy. He submitted that the loss had not taken place in the Insured premises but in the godown of the other shop managed by the father of the Petitioner. Even if the claim of the Complainant was to be allowed, he was not entitled more than the amount assessed by the Surveyor. The State Commission reduced the amount from Rs.8,90,925/- to Rs.2,91,106/-. It was further submitted that the amount claimed by the Complainant did not tally with the amount stated to the Police. The Petitioner filed his Sales Tax Return within 2 days from the end of the quarter whereas normally the returns are filed in the last week of the closing month.

Learned Counsel for Respondents Nos.3 & 4 submitted that the dispute relates to the Petitioner and Respondents Nos.1 & 2. Opposite Parties Nos.3 & 4 had no role to play. There was no allegation against Opposite Parties Nos. 3 & 4 regarding deficiency in service and no relief had been sought against them. The Complainant had unnecessarily impleaded Opposite Parties Nos.3 & 4. The Complaint itself was bad for misjoinder of Parties.   

Issuance of Policy is not disputed by the Insurance Company. Incident of fire is also admitted by the Parties. It is also not disputed that on the date of incident of fire the Policy was in force. The anomaly noticed by the Surveyor was that the Sales Tax Return for the 4^th quarter was filed on 02.04.2002 i.e. within 2 days from the end of the 3^rd quarter. The Surveyor came to the conclusion that the return had been filed taking into consideration the insurance claim. A return being filed earlier cannot be the reason for doubting the bonafides of the Complainant. In fact the returns have been filed before the date of occurrence of loss. Filing of Sales Tax Returns within the prescribed time limit should not be taken as evidence against the loss suffered by the Complainant.

Another concern raised by the Surveyor was regarding difference in figures. The Insured had claimed a loss of Rs.,588,674/- as per FIR with the Police and the claim of the Insured was Rs.8,90,925/-. The Complainant submitted that the Police were given a tentative figure as by then the Insured had not worked out the actual quantum of loss and was mentally disturbed due to fire accident. It is usually a case that the Police are informed immediately after the incident of fire and the figure given may not tally with the actual loss worked out and assessed by the Complainant/Insured before submitting the claim with the Insurance Company.

Though the Complainant claimed a total loss, the Surveyor arrived at a figure of 30% for goods which were not totally affected and allowed 30% of the value of goods without any basis. Another deduction of 10% was made as books of accounts were not produced and sales and purchases differed over a period of time. It is but obvious that when the shop is gutted in a fire accident, the books of accounts are destroyed and no Complainant/Insured can produce books of accounts which are destroyed in fire. On the other hand the Insured had produced records from the Sales Tax and Income Tax Department to support their claim. We are unable to understand why yet again an amount of 10% has been deduced. Last but not the least, a very unusual argument has been made that since the Complainant was in the trade for the last 10 years, there may be certain goods which were not saleable and even the rates of items claimed may have decreased due to change in technology, fashion etc., a deduction of 20% had been made on account of dead and slow moving items on account of change in fashion, technology etc.

All the above deductions made by the Surveyor are without any basis, arbitrary and totally unacceptable. The Surveyor by making assumptions, presumptions and calculations not backed by any logic/evidence had arrived the net amount payable at Rs.1,50,323/-.

Based on the Surveyor’s Report, the Opposite Parties/Insurance Company repudiated the claim.  The Opposite Parties held that there was no fire in the shop of the Complainant and the premises affected by fire was a Godown. Further both Shri Virender Kumar and Shri Ajay Kumar were running business in the same premises, hence the claim of the Complainant was treated as no claim. The next issue raised was regarding the occurrence of fire, whether it was the Shop of the Complainant which was Insured or the Godown, as also the loss to the goods and compensation to be paid. The District Forum clearly noted that “It is established on record that before issuance of policy in question and acceptance of proposal for insurance the insurance company has inspected the stock and premises and after his fully satisfaction respondents No.1 and 2 issued the policy in question on 26.9.2001 for a period of one year i.e. 26.9.2001 to 25.9.2002 for a sum of Rs.10,00,000/- and accepted the premium paid by the bank authorities on behalf of complainant.”

It also noted that the “complainant has successfully proved his version by producing his own affidavit and serval other documents and the affidavits of Mukesh Kumar son of Purshotam Dass and Naresh Kumar son of Shri Shiv Shankar. It is clearly proved on record that there was two different shops of Virender Kumar and Ajay Kumar out of which one shop of the complainant is being run by him and another shop was of his father, namely, Virender Kumar son of Laxmi Narain and his father used to sit there for running his business. Besides it, it is also proved on record that both the shop are in different premises and there is a gate of Dharamshala between both the shops. It is also proved on record that fire was broken out in the shop of complainant and not in the godown, as alleged by the respondents and this fact is proved by the complainant by producing affidavits and other documents. It is further proved on record that the disputed shop in which fire was broken in the shop as alleged, whereas godown at a considerable distance in the other building of one Shri Ghanshyam Dass. The complainant has produced the affidavit of one Shri Radhey Shyam, Sales Tax Inspector of Excise & Taxation Department to establish that both the shops have the separate unit and separate sales tax number of another shop of Virender Kumar is 7593.”

As regards the assessment of loss, the Surveyor has made deductions in the total loss based on many assumptions, presumptions and surmises which are not backed by documents or evidence. This has been further compounded by the State Commission which again made another assessment of loss. The State Commission felt that goods which were assessed at 30% of the value was on the lower side and raised it to 50% not based on any evidence and without giving any reasoning. It has only stepped up the loss by putting a higher percentage without any explanation/supporting documents and evidence and arrived at a compensation of Rs.2,91,106/-.

On the other hand, the District Forum has dealt with each issue in detail, based on documents and evidence and arrived at a loss of Rs.8,90,925/- and directed that the Respondents to pay Rs.8,90,925/- alongwith interest @ 10% p.a. from the date of repudiation till its final realization, apart from litigation cost of Rs.2,000/- to be paid within two months, failing which the Complainant was entitled to get interest @ 12% p.a. on the above said calculated amount from the date of default till its final realization.

In view of the foregoing discussion, we set aside the order passed by the State Commission. The District Forum had passed a very well-reasoned order and we uphold the same. The Revision Petition, therefore, is allowed. No order as to costs.