REKHA GUPTA, PRESIDING MEMBER

          Revision Petition No.2724 of 2015 has been filed by the petitioner-complainant against the order dated 31.07.2015 passed by the  Chhattisgarh State Consumer Disputes Redressal Commission, Raipur (short, “State Commission”) in F.A. No.794/2014.

2.      The facts of the case as per the petitioner-complainant are that he is the owner of Farmers Consultation Center situated in Village Parri through Farmer Consultation Center.  He runs a business of selling seeds, fertilizer and medicines and earns a living for himself.  The above mentioned consultation center was insured with the respondent no.1/OP No.1 under policy no.2008/1462 for the period from 06.08.2007 to 05.08.2008.  The petitioner on 23.03.2008 had shut down his shop at 9:00 PM and gone when at midnight 1:00 AM his shop neighbor Sh. Ravishankar Rajwade and Arjun Kushwaha shouted and woke him up and informed about the fire in his shop.  He then went to the shop and after opening the lock was able to put out the fire with the help of villagers.  With the above stated fire incident all the papers and stock in the shop were also burnt and destroyed.  The complaint regarding the fire was given verbally to the Surajpur police station on 23.03.2008 where fire accident was registered vide number 05/2008.  The incident of fire was intimated to the insurance/OP No.1 by the petitioner on 24.03.2008.  The claim submitted by the petitioner was registered vide number 48/2008/1462 and surveyor Sh. Pawan Aggarwal and Sh. Gambhir were appointed to assess the damage caused due to the fire.

3.      The petitioner had taken a loan from Central Bank of India, Mahgaon Branch /O.P. No.2 to open the consultation centre and as security the stock kept in the shop was mortgaged and physically verified by the bank.  On the demand of O.P. No.1-insurance company copy of Daily Report, prepared by Central Bank-O.P. No.2 complete details of the damage along with a copy of stock list dated 01.03.2008 was submitted to O.P. No.1. But even after 2 years the relief amount was not given and also no information was given to him.  During the incident there was stock of medicines, seeds and fertilizer worth Rs. 7,47,000/- (Rupees Seven Lakhs Forty Seven Thousand only) that got destroyed.  When for 2 years the damage relief amount was not given appellant on 08.03.2010 submitted miscellaneous information to which the insurance company replied on 12/03/2010 offering to settle the damage by giving an amount of Rs.46,254/-.  A copy of surveyor report was requested by the petitioner but was not provided to him.  The insurance company committed deficiency in service by not providing the damage relief amount of Rs.7,47,000/-.  The petitioner filed a complaint before the District Consumer Disputes Redressal Forum, Surguja-Ambikapur (short, “District Forum”) for the claim amount with 18% annual interest from the O.P. no.1.

4.      Before the District Forum, the OP no.1 denied all the allegations in the complaint except the fact that the M/s. Farmers Consultation Centre was insured with it for the period from 06.08.2007 to 05.08.2008.  According to the above insurance policy, medicines were not under risks covered.  Immediately after receiving the intimation of the incident, surveyor Sh. P.K. Aggarwal was sent to assess the damage and to determine the actual damage and the surveyor Sh. V.S. Gambhir had done the survey.  Inspection of the claim was done by Sh. Rakesh Tiwari.  Damage assessed after the final survey was Rs.46,474 (Rupees Forty Six Thousand Four Hundred  and Seven Four only).  As per the conditions of the insurance policy after doing the necessary deductions the final amount of the damage was set as Rs.46,254/- information of which had already been given to the petitioner but the petitioner did not return the discharge voucher back to the insurance company.  In this situation, the claim could not be paid to the petitioner, for which the OP No.1 is not at fault.  As per the survey report the declaration by the petitioner that all the documents and stock was burnt and damaged are tailored and not true.     The OP no.1 has also stated that the petitioner had not kept a stock register.  Petitioner had got a cash credit limit made from the OP No.2.  The shop building is of petitioner himself.  Stock register, Cash book, Ledger, Sales Tax and Income tax documents were not made available to the surveyor.  Monthly stock estimate was not submitted to the bank-O.P. No.2.  Salvage was not shown to the surveyor.  The basis on which the estimate was prepared was told to the surveyor.  Stock list dated 01.03.2005 was unjustified and baseless.  Even after writing letter to the petitioner, the requested documents were not made available.  In such situation no error has been done by the OP No.1.  Petitioner was aware of the assessment done by the surveyor but he never raised a concern over it.  Likewise OP No.1 did not do any deficiency in service.  The insurance amount to be paid to the petitioner bearing Cheque No.085537 dated 29.09.2008 for Rs.46,254/- (Rupees Forty Six Thousand Two Hundred and Fifty Four only) was ready and safe with OP No.1 and they were willing to pay the same as soon as they received the signed discharge voucher from the complainant. 

5.      The District Forum vide their order dated 14.11.2014 while allowing the complaint gave the following order:-

    “Likewise in relation to the considered point no.1 to 3 after the above interpretation basis the solution we are of the opinion that the complainant was able to successfully prove his claim partially against the O.P. No.1, hence, the complaint of the complainant against Opposite Party no.1 is accepted partially and the following order is being passed-

1. Opposite Party no.1 to pay within 45 days complainant for the damage caused by fire to his shop damage relief amount of Rs.6,90,000/- (Rupees Six Lakh Ninety Thousand only) and on it from date 22.03.2010 to complete payment date 6% annual normal interest.

2. Opposite party no.1 to pay complainant Rs.3,000/- (Rupees Three Thousand only) for the physical, mental and financial agony and inconvenience. 

3. Opposite party no.1 to bear his as well as complainant’s litigation charges of Rs.1000/- (One Thousand only) that includes the advocates fees.

4. Complainant’s complaint against opposite party no.2 is not accepted, opposite party to bear its own expenses.”

6.      Aggrieved by the order of the District Forum, the respondent no.1/OP No.1 filed an appeal before the State Commission.  The State Commission by modifying the order of the District Forum observed and gave the following order as under:

“12.     In the episode the insurance company has presented the survey report dated 11/06/2008.  According to this the primary investigation was done on date 24.03.2008 by the surveyor for the fire that took place on date 23.03.2008 according to which in his report surveyor Sh. P.K. Aggarwal had given his acceptance to the below mentioned stock in the fire:-

“The sum insured for the contents as per insurance policy if Rs.7,00,000/- (Seven Lakh only) & insured has not produced any book of account to establish the stock position.  The same is to be verified during final survey.”

             Comment on the fire incident was done by Sh. Tiwari through opposite party, the explorer on date 24.03.2008 explored and on date 09.08.2008 presented the deliberation and the description of the exploration was presented as below:-

“Information obtained from the exploration described as below:-

            During the exploration I went to complainant Fulsaay Kushwaha’s related shop Farmer’s Consultation Center that is situated in Parri post Surajpur.  In the shop the complainant sells chemical fertilizer, seeds, pesticides and equipments related to farming.  I did graphical verification and took picture of the incident spot.  First observation it does not appear that the assessment of the damage done by the complainant that is Rs.7,47,000/- (Seven Lakh Forty Seven Thousand only) is correct.  As per the picture taken it is clearly evident that the almirah kept next to the counter in the shop was partially affected by the fire.  Other than this no other part of the shop where there was items for sale has been affected.  Few medicine bottles were affected by smoke and one rack where vegetable seeds were kept were affected by fire.  Other than this all other area was safe.  This was informed by the shop owner himself that at midnight 1 AM after receiving the information he opened the shop and with the help of neighbours.”

            The final surveyor report by the insurance company was submitted on date 06.09.2009 according to which it was expressed that during the fire incident the stock available in the shop related registered/books were not made available hence actual damaged stock information could not be obtained.  Expressions as below:-

            UNDER INSURANCE: As insured had not shown his book of a/c hence his actual stock at the time of fire could not be known.  During investigation I understood that his stock were within sum insured hence benefit of doubt were given to insured and no under insurance factor is applied.”

And Rs.48,089/- (Rupees Forty Eight Thousand Eighty Nine only) as the damaged relief amount liability was set on the  insurance company.  The complainant was supposed to submit a monthly report of the stock in the opposite party no.2 to bank but because of the fire incident on date 23.03.2008 the stock monthly report was not possible to the submitted and the report given to the bank 22 days prior to the incident in this condition is acceptable but after the survey the surveyor report presented has the information of the stock as mention below:-

INSPECTION

“……… Thus in absence of any records like stock register, bill of purchase/sale and other record it was hard disk to assess the losses and to decide the insurer’s liability.  The spot Surveyor had also not taken any stock position lying safe after fire.  Salvage were also not shown to undersigned  stating the same had been thrown away thus under the circumstances there being no any way let but to adopt some other way to assessed to losses.  Hence undersigned interrogated the prop deeply about his actual loss keeping in mind the comments about the extent of loss written in preliminary report of Mr. Pawan Aggarwal.  On my interrogating I concluded that insured’s losses were not even 1/10 of what he had claimed in my observation the loss sustained by the insured were max as per following and still possibility of some variation in quality/rate can’t be overruled.”

Thus during the spot examination also salvage or remains were thrown away by the complainant else by the seeing the salvage the damage could have been assessed.  Hence even if it is accepted that the according to the stock register as presented by Central Bank there was stock of Rs.7,40,000/- (Seven Lakh Forty Thousand only) in the shop on the day of incident but how can this be accepted that during the fire incident entire stock worth Rs.7,00,000/- (Seven Lakh only) was burnt and destroyed.  The last survey report of the part of the initial survey has in it stated that the during initial survey the surveyor had observed that there were few changes done in the shop by the complainant and all farming equipment were removed, the rack and counter position were changed and on being asked about the burnt stock the complainant said that all the burnt items were dumped in a big pothole behind the shop and the photographs of all the items were taken.  And according to the report less than half the area was affected by fire.  “After reading the above mentioned survey report due to lack of evidence we cannot assume that in the mentioned fire incident the entire stock in the shop of complainant was burnt hence this objection of the appellant qualifies for acceptance that the assessment of the damage relief was done on the basis insurance amount by the District Forum.  The relief provided on the basis of the above qualifies to be dismissed. 

13.      After the discussion on the facts of the episode we have reached to this conclusion that the appeal of the appellant qualified to be accepted hence is being accepted and instead of the damage relief amount as set under review clause no.24 of Rs.6,90,000/- (Rupees six Lakhs Ninety Thousand only) Rs.48,089/- (Rupees Forty Eight Thousand Eighty Nine only) is being approved.  Interest relief amount, litigation charges and remaining orders will remain as is:-

1.        Opposite Party no.1/Appellant to pay the complainant within 30 days Rs.48,089/- (Rupees Forty Eight Thousand Eighty Nine days) as is damage relief amount due to fire in his shop and on that from date 22/03/2010 6% normal annual interest on the above amount to be provided. 

  No order is being passed on the appeal expenses.”

7.      Hence, the revision petition.

8.      We have heard the learned counsel for the petitioner,

9.      The counsel for the petitioner contended that the order of the State Commission is devoid of law as the State Commission has not perused the documents and affidavit filed by the complainant properly.  He also drew our attention to the statement of the bank placed on record showing the stock as on 01.03.2008.  He admitted however that while the insurance policy covered seeds and pesticides, it did not cover medicines. 

10.    We have carefully gone through the record.  The State Commission has dealt at length the facts of the case and gave a detailed order.  A careful reading of the survey report indicates that the petitioner-complainant was remiss in removing the salvage and stating thereafter that the same had been thrown away.  It was his duty and obligation to keep the same for inspection during survey.  It is also an admitted fact that as mentioned in the survey report, the petitioner-complainant informed the surveyor that he had not maintained books of account, stock register, cash book, ledger during account balance sheet and sales tax record.  That he only maintained purchase bills and sales bills and that too were destroyed in the fire.  He could not explain to the surveyor on what basis the petitioner had pegged his loss at Rs.7,47,000/-.  It is also not known that in the absence of the records mentioned above, on what basis, the bank had prepared the statement of stock in godown and compound.  Even assuming, it was on the basis of purchase and sales bills, the position given is as on 01.03.2008.  The petitioner cannot hold that the position would remain the same and unchanged as on 23.02.2008 i.e. the date of fire.

11.    The Hon’ble Supreme Court in Mrs. Rubi (Chandra) Dutta Vs. M/s United India Insurance Co. Ltd., 2011 (3) Scale 654   has observed:

“ Also, it is to be noted that the revisional powers of the National Commission are derived from Section 21 (b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view than what was taken by the two Forums.  The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts.  This is not the manner in which revisional powers should be invoked.  In this view of the matter, we are of the considered opinion that the jurisdiction conferred on the National Commission under Section 21 (b) of the Act has been transgressed.  It was not a case where such a view could have been taken by setting aside the concurrent findings of two fora.”

12.    Thus, we find that no jurisdictional or legal error has been shown us in the impugned orders to call for our interference under Section 21 (b) of the Act.  The order of the State Commission does not call for any interference nor does it suffer from any infirmity or erroneous exercise of jurisdiction or material irregularity.  Hence, we dismiss the revision petition and we uphold the order of the State Commission dated 31.07.2015 in F.A. No.794/2014.