Order by:

Smt.Priti Malhotra, President

1.       The complainant has filed the instant complaint under section 35 of the Consumer Protection Act, 2019 stating that the Complainant company is a Private Limited Company and is doing the business under the name and style of M/s Gavya Corporation Private Limited and is having the storage premises/godown situated at Aara Road, Moga for storing the eatable items such as Lays, Biscuits, Britannia, Fresca, Luffy Rusk, Munchhonn, Pepsico , Laminate for packing and etc. of different qualities and varieties and the complainant company is running this business for earning its livelihood for all the persons engaged in the business including the entire management.

Alleged that on the intervening night of 01.02.2021 and 02.02.2021, a fire incident happened in the warehouse of the complainant and a telephone call was received by the complainant from the neighbours regarding the fire caused in the insured godown of the complainant. At about 12.30 AM, the complainant immediately rushed to the spot. The fire brigade and Police Officials were already there on the spot as they were informed by the neighbors. Statements of the neighbours regarding the fire caused were recorded by the Police and detailed report including the bill of charges pertaining to the use of fire brigade on the said night was prepared by the Fire Brigade Department, Municipal Council, Moga on 09.02.2021. For the insurance of the goods/stock lying in its godown, the complainant company had purchased Standard Fire and Special Perils Policy bearing No.200162121110004792 (w.e.f. 11.01.2021 to 10.01.2022) from Reliance General Insurance Co. Ltd. i.e. Opposite Party No.1 for the total sum assured on stock of Rs.1,10,00,000 (One crore ten lakh). Similarly the complainant company purchased three other polices of Standard Fire and Special Perils Policy from Bajaj Allianz General Insurance Company Limited i.e. Opposite Party No.2. The details of policies are mentioned below: -

(a)      Policy No.OG-21-1225-4008-00000111 (w.e.f. 20.10.2020 to 19.10.2021) for the total sum assured on stocks of  Rs.60,00,000 (Sixty lakh) and for Super structure building of Rs.37,50,000 (Thirty-seven lakh fifty thousand) thereby totaling to Rs.97,50,000 (Ninety-seven lakh fifty thousand).

(b)     Policy No.OG-21-1225-4008-00000112 (w.e.f. 20.10.2020 to 19.10.2021) for total sum assured on stocks of Rs.25,00,000 (Twenty-five lakh) and for super structure building of Rs.7,50,000 (Seven lakh fifty thousand) thereby totaling to Rs.32,50,000 ( Thirty-two lakh fifty thousand).

(c)      Policy No.OG-21-1203-4008-00013008 (w.e.f. 05.01.2021 to 05.01.2022) for the total sum assured of Rs.80,00,000/- (Eighty lakh).

The total sum insured by the complainant company from Opposite Party No.2 i.e. Bajaj Allianz General Insurance Company Limited for Stocks was worth Rs.1,65,00,000 (One Crore Sixty Five lakh) and for Building Rs.45,00,000/-(Forty-five lakh) totaling the total amount of Rs.2,10,00,000 (Two crore ten lakh).

Alleged further that after the incident both the insurance companies i.e. Reliance General Insurance and Bajaj Allianz Insurance co. Ltd. were informed regarding the fire incident through proper channel. The Punjab National Bank i.e. OP No.6 was also informed from whom the complainant company has availed cash credit facility of Rs.80,00,000/-(Eighty lakh) and working capital term loan of Rs.16,00,000/-(Sixteen lakh) against hypothecation of stocks and book debts. Thereafter at the first instance the complainant had lodged the claim against the tentative loss caused by fire in the premises/godown with the Opposite Party No.2 i.e. Bajaj Allianz General Insurance Company Limited for Rs.1,27,11,792.53 (Excluding GST) against the loss of stock and Rs.11,50,000 against the loss of building and Rs.5000/- on account of amount deposited by the complainant with Fire department and besides this Rs.16,08,234.04 paisa paid through GST for the loss of stock and in this way, the complainant had lodged the consolidated claim with Bajaj Allianz General Insurance Company Limited under all the policies for Rs.1,54,75,026.57 paisa only. As at the time of fire and submission of claims, the complainant was not aware of the actual loss of the building and it was only with self-approximation, the loss on account of building was demanded/calculated as to be Rs.22,50,000/-. The complainant has also lodged the tentative claim against the loss caused by fire in the premises/godown with the Opposite Party No.1 i.e. Reliance General Insurance Company Limited for Rs.1,36,15,000/- (Excluding GST) against the loss of stock. After the incident both OP No.1 and OP No. 2 have sent their associated/empanelled surveyor companies i.e. Puri Crawford Insurance Surveyors and Loss Assessors India Private Limited i.e. Opposite Party No.3  and Protocol Insurance Surveyors and Loss Assessors Private Limited i.e. Opposite Party No.4. Both the surveyors of the companies had thoroughly investigated the premises/godown and also visited Bank, fire department and police station and took the required documents from the complainant. Thereafter several communications/mails were exchanged between the Opposite Parties and the complainant regarding the submission/ furnishing the list of documents, which were required to process the claim of the complainant and the complainant always provided the necessary documents without any delay.

As per the telephonic conversation between the complainant and Opposite Parties No. 1 and 2, it was instructed to the complainant to file the joint claim with Reliance General Insurance Company Limited i.e. OP No.1 and Bajaj Allianz General Insurance Company Limited i.e. OP No.2. Accordingly the complainant lodged the joint claim under the policies for Rs.1,43,20,026 (one crore forty-three lakh twenty thousand) i.e. (Stock of Rs.1,27,11,792 + GST of Rs.16,08,234) against stock lying in the insured premises and for Rs.45,00,000 (Forty-five lakh) against building with Bajaj Allianz General Insurance Company Limited and as such, total joint claim was lodged by the complainant under the different policies with both the insurance companies was amounting to Rs.1,65,70,026 (One crore sixty-five lakh seventy thousand twenty-six). The above claim was lodged for Rs.1,65,70,026/- (Excluding GST) against the loss of stock and on account of loss of building to the tune of Rs.22,50,000/-, which had been demanded as per the agreement between the contractor and the owner and Rs.5000/- on account of amount deposited by the complainant to Fire Department and besides this Rs.16,08,234/- was paid through GST on the loss stock. After adding all these amount, the claim amount comes to Rs.1,65,70,026/-. After giving all the relevant documents to the insurance companies and their surveyors, both insurance companies and their surveyors were continuously sending letters to the complainant thereby refusing to pay any claim to the complainant by declaring that the fire in the complainant’s godown was set up deliberately. Alleged that Opposite Party No.4 issued registered AD/letter dated 30.12.2021 to complainant and complainant duly replied the same.

Thereafter, the complainant received an email from the OP No.3 and the complainant was called to its Noida office i.e. in office of the OP No.3 for meeting with the officials of OP No.1 and their surveyors, where the complainant was instructed by the officials present there to accept the claim amount, which they were offering to him without any conditions. Due to the severe financial crisis, the complainant was compelled to comply with the said offer. The acceptance of reduced claim amount by the complainant was under protest.

Alleged further that the outstanding cash credit amount due as on dated 31.01.2022 towards the complainant was more than Rs.80,09,058/- and outstanding WCTL (Working capital term loan) was Rs.13,75,467, total loan amounting to Rs.93,84,525. The first letter was issued by Bank to the complainant thereby warning that if the complainant does not regularize the accounts within 30 days, then the Bank will be at its liberty to proceed further as per Bank guidelines to recover dues including legal recourse. Further, second letter was issued to the complainant again on 05.03.2022 which shows outstanding balance as on dated 28.02.2022 was of Rs.80,03,993 for cash credit facilities and WCTL for Rs.13,44,291, thereby totaling the loan amount to Rs.93,48,284 with the note that if the complainant does not regularize the accounts within 15 days, then the Bank will be at its liability to proceed further as per Bank guidelines to recover dues including legal recourse.

On dated 29.03.2022, the complainant finally received an email from the OP no.4 i.e. Protocol Insurance Surveyors and Loss Assessors Private Limited and regarding claim i.e. final assessment of loss of stocks and building. In that email the OP No.2 i.e. Bajaj Allianz General Insurance Company Limited had assessed the loss of stocks to the value of Rs.46,55,477 and building to the value of Rs.4,32,001 and asked for the consent of the complainant to process the claim. Again another email dated 08.04.2022 was received by the complainant from OP no.4 i.e. Protocol Insurance Surveyors and Loss Assessors Private Limited to give the consent to process the claim. After these e-mails, the complainant sent an email by raising an objection that the amount assessed and offered by them to him during his visit to the premises of the complainant while the survey was being conducted differs from what OP no.2 i.e. Bajaj Allianz General Insurance Company Limited was offering. The complainant requested OP No.2 to share the assessment report of the surveyor, so that the complainant may be able to give the requisite consent as per actual loss and survey. Thereafter, the complainant sent the Opposite Parties other emails with attachments of agreement of repair of the building which was settled between the contractor and owner for Rs.22,50,000/- alongwith other supporting documents, but the Opposite Parties did not give any heed to the emails of the complainant. Thereafter, finally on dated 06.06.2022 the complainant was forced and compelled under the above said circumstances to sign the discharge voucher for the receipt of part payment under the compelling circumstances so as to pay back the loan amount of the bank. Thereafter, the complainant had signed the discharge voucher for the receipt of part payment under the compelling circumstances because the complainant was under heavy debt and he had to pay the loan amount on which the insured stocks were hypothecated and which were burnt in the fire caused in the premises and hence, the Opposite Parties have arbitrarily paid part payment of claim directly in his account.

Alleged further that the Opposite Parties No. 1 and 2, through their surveyors i.e. Opposite Parties No. 3 and 4 had illegally and wrongly deducted the claim amount and had passed a very meager amount against the loss suffered by the complainant due to fire and the amount of Rs.36,52,058/- has been paid against the stock by Opposite Party No.1/Reliance General Insurance Company Limited and Rs.46,55,477/- has been paid by the OP No.2/Bajaj Allianz against the stock. The sum total of all the amounts above comes out to be totaling to Rs.87,39,536/- against total claim amount of  Rs.1,65,70,026. In this way, the Opposite Parties have retained the remaining claim of Rs.78,30,491/- without any reasonable cause. They partially paid amount of Rs.87,39,536/- to the complainant without consulting him and no reason was given as to on what basis they had calculated the said amount. The Opposite Party No.1 has paid the amount of Rs.36,52,058/- without sharing any assessment of loss with the complainant.

Later on, the OP No. 2 i.e. Bajaj Allianz General Insurance Company Limited had accordingly paid the amount as per the assessment of OP No.1. However, there was no assessment of loss made by the OP No.1 and never discussed with the complainant which is totally inappropriate and against the terms of the policy. Alleged further that very meager amount was mentioned by the OP No.2 i.e. Bajaj Allianz General Insurance Company Limited in the statement of assessment of loss towards stocks. As per the loss to the complainant, the claim against building was lodged for Rs.22,50,000/-, but the Opposite Parties had only taken an amount of Rs.7,45,570 as to be the gross loss to the complainant on account of damage to building. Thereafter other deductions were also made under different heads and an amount of Rs.4,32,001/- was made out as the net liability of the insurer towards loss of building.

Alleged further that the first point is the residue stock which was saved from damage of fire was of the value of Rs.9,17,061.92 (Excluding GST), but despite giving the Opposite Parties the proof i.e. all the documentation about the valuation of the saved stocks lying in the insured store and which was not affected by fire, the Opposite Parties have taken the amount of  Rs.18,96,505 (Excluding GST), which is totally inappropriate and baseless. The amount taken by the Opposite Parties of the saved stock i.e. Rs.18,96,505 (Excluding GST) and another amount of Rs.1,69,478 (Excluding GST), thereby totaling to Rs.20,65,983 (Excluding GST) and the said amount had been deducted by the Opposite Parties on their own with no justification and there is no document how the Opposite Parties had calculated this amount. The closing stock as per the books was taken for Rs.1,36,13,799/-, but the complainant had lodged the claim for Rs.1,27,11,792/- as the complainant has already deducted the amount of saved stock i.e. Rs.9,17,061 from the total value of stocks in the godown and lodged the claim accordingly.

          Secondly, in the damaged stock, particulars of print laminates were given and value of print laminates was Rs.14,00,163.41 which were destroyed due to the fire, but the Opposite Parties had not considered this amount for the reason that the laminates might have been consumed as the complainant was not maintaining any productions record for consumption and that the value of same is reflecting in books of account since opening of 01 April 2019, which has been adjusted against the claim, but there were some trademark issues due to which consumption could not be made and after that due to the Covid-19, the said laminates remained unused and laminates do not have any shelf life for expiry. The Opposite Parties had not even considered a single penny on account of the value of print laminates and no amount was paid to the complainant on this aspect of matter regarding print laminates.

          Thirdly, the Opposite Parties had deducted 20% on the value of total loss towards stock, which they had made after all the deductions by assigning the reason “Reduction towards variation in quantity and rates in the absence of physical quantification and/or other dead stock or stocks near expiry etc”. There is no explanation that how the Opposite Parties had deducted Rs.19,84,731/- (Excluding GST) from the total amount of Rs.99,23,653/- (Excluding GST) after all the deductions as an additional deduction of 20%. Thereafter OP No.4 had demanded various documents as proof that the Supplier takes back the expired stock and reimbursed the value of goods or give new manufactured stock to the Super Stockist. Then the complainant had sent certain documents as proof i.e. two years of reimbursement details by the supplier, other supporting documents and agreement/ company policy made with the supplier that they accept the rejected/ expired/ damaged stock of multiple companies. But then also after all this the Opposite Parties have deducted 20% of the total claim, which is irrelevant, wrong and immoral.

          Deduction of dead stocks was made two times from the claim amount, amount of Rs.7,04,892 (Excluding GST) was deducted and further again for the reason of dead stocks amount of Rs.19,84,731 (Excluding GST) was deducted as both are under the same heads i.e. dead stocks and therefore the Opposite Parties had done this mischievously to reduce the claim amount of the complainant. Regarding the claim of the building, there was an agreement between the contractor and the owner of godown that there will be expenses of Rs.22,50,000 in total for the repair of the building and the owner i.e. Jugal Kishore Bansal, had paid the whole amount to the contractor, but the Opposite Parties had not at all given a glance at this agreement and had passed a very less amount of Rs.4,32,001, which is inappropriate and biased on the part of the Opposite Parties. While calculating the claim of the complainant, the OP No.2 i.e. Bajaj Allianz General Insurance Company Limited had not taken into account the Policy No.OG-21-1225-4008-00000112 (w.e.f. 20.10.2020 to 19.10.2021) for total sum assured on stocks of Rs.25,00,000 (Twenty-five lakh) and for super structure building of Rs.7,50,000 (Seven lakh fifty thousand) thereby totaling to Rs.32,50,000 (Thirty-two lakh fifty thousand) without any reason and on their own and had considered only two policies at the time of sanctioning of claim, which were pertaining to the Stocks worth Rs.1,40,00,000 (One crore forty lakh) and Building Rs.37,50,000 (Forty-five lakh). But the OP No. 1 i.e. Reliance General Insurance Company Limited had taken all the policies in account to calculate the claim of the complainant. There is deficiency in service on the part of the OP No. 2 i.e. Bajaj Allianz General Insurance Company Limited in this regard.

Alleged further that the complete policy with the details of coverage, terms and conditions, exceptions and warranties was not sent to the complainant by the Opposite Parties-Insurance Companies. The Opposite Parties had offered a partly sum of claim i.e. Rs.87,39,536 as full and final settlement against the claimed amount without any justification and contrary to the actual assessment of loss on the basis of the report of the surveyors. However, no details of assessment and calculations were given to the complainant. In view of this, there is deficiency in service on the part of the Opposite Parties and they have illegally repudiated the genuine and legal claim of the complainant without explaining any reason.

Furthermore, at the time of issuing the policy in question as mentioned above, alongwith this cover-note, the Opposite Parties never issued any terms and conditions of the policy documents. Hence this complaint. Vide instant complaint, the complainant has sought the following reliefs:-

(a)     Opposite Parties may be directed to pay the remaining insurance claim of the complainant amounting to i.e. Rs.78,35,490.57 plus amount of interest i.e. Rs.42,05,842.25 due to the loss caused by fire in the gowdown of the complainant thereby totaling Rs.1,20,41,332.82/- (upto 15.03.2023) from the date of loss dated 02.02.2021 till date of its actual realization.

(b)     To pay a sum of Rs.20,00,000/- on account of unnecessary harassment (monetary as well as physical), unfair trade practice, extreme mental tension, torture, agony, damages, financial loss and loss of work, which the complainant has suffered on account of deficiency of service, unfair trade practice and negligence at the hands of the opposite parties.

(c)     To pay the litigation costs amounting to Rs.1,00,000/-.

(d)     And any other relief which this Commission may deem fit and proper be granted to the complainant in the interest of justice and equity.

2.       Opposite Party No.1 appeared through counsel and contested the complaint by filing written reply taking preliminary objections therein inter alia that the complainant has alleged that it has purchased insurance policies for the goods and services for the value of Rs.3,20,00,000/- from both the opposite party insurance companies. Thus the value of the goods or services paid as has exceeded fifty lakh rupees & therefore, this District Commission has no jurisdiction to entertain the present complaint; the Complainant is not a Consumer of answering opposite party in terms of Section 2 Sub section 7 (ii) of The Consumer Protection Act 2019 as amended up to date (herein after referred as Act). The complainant itself is a private limited company which has been dealing in sale of various eatables at mass scale for the Commercial purposes. There is no proof whatsoever that complainant conducted business for its self employment or for earning his livelihood only; the alleged dispute involves complicated questions of law and facts among the parties to the complaint and requires voluminous elaborate oral as well documentary evidence, which is not possible before this Commission having limited jurisdiction. Thus present matter may be relegated to the Civil Court for the just and proper adjudication of the dispute in question; the complainant is estopped to file the present false and frivolous complaint due to its own act and conduct; the complainant has not come up with clean hands; the insured has already executed duly signed discharge voucher and consent letter voluntarily accepting the claim amount in full and final settlement of all the claims from opposite parties without any coercion, undue influence, misrepresentation and pressure and submitted the consent letter and satisfaction voucher both dated 09.03.2022 claim discharge cum accepting total amount of Rs.36,52,058/- for the loss occurred to the stocks caused reportedly due to fire under insurance policy no.200162121110004792 from the opposite party no.1. The complainant has accepted the claim without any objections and protest at that time and now as an afterthought it has created a concocted story for lodging this false complaint for the recovery of remaining amount which is not payable in the eyes of law. Moreover the claim was properly entertained and a competent surveyor namely Puri Crawford Insurance Surveyors & Loss Assessors Pvt Ltd was appointed immediately to assess the alleged loss and who has investigated and inquired the alleged loss and has submitted its independent final survey report dated 28.02.2022 assessing the total loss of Rs. 83.13 lacs inclusive of GST and the net liability of answering opposite party no.1-Reliance General Insurance Company Ltd. was found to be Rs.36.57 lacs inclusive of GST on prorata basis among both the insurance companies as per the exposure and coverage of respective insurance policies, which has been paid by the opposite party no.1 without any delay to the complainant according to its valid and voluntary consent without any protest whatsoever. Thus, there is no deficiency in rendering services on the part of answering opposite party no.1. Averred further that the report of the surveyor is a vital and important document and same cannot be rejected without any cogent reasons. There is no rebuttal and objections against the said report of surveyor. On merits, all other allegations made in the complaint are denied and a prayer for dismissal of the complaint is made.

3.       Opposite Party No.2 appeared through counsel and contested the complaint by filing written reply taking preliminary objections therein inter alia that the complainant has not filed all the relevant records along with present complaint; the Complainant has not come to this Commission with clean hands and has concealed various material facts; that the complainant intimated the answering Opposite Party about its loss on 02.02.2021. On 03.02.2021 itself, an independent IRDA approved surveyor namely Protocol Insurance Surveyors and Loss Assessors Private Limited was appointed to assess the loss and the extent thereof. Averred that when the claim was filed by complainant with answering Opposite Party, at that time complainant submitted the two Policies bearing number OG-21-1225-4008-00000111 and OG-21-1203-4008-00013008 and same was mentioned in claim form. Therefore, complainant failed to produce the Policy bearing number OG-21-1225-4008-00000112 at the time of registering the claim as well as at the time of assessment done by surveyor. Submitted that the IRDA approved Surveyor visited the site of loss on 05.02.2021. After carrying out detailed investigation into the matter, the Surveyor submitted two separate elaborate loss assessment reports dated 22.06.2022 and assessed the loss at Rs.26,60,272/- and Rs.24,27,205/- towards policy number OG-21-1203-4008-00013008 and OG-21-1225-4008-00000111. Averred further that during assessment, independent IRDAI approved surveyor found that most of the stock lying in the insured premises are expired or near to expiry date. Thereafter on 05.07.2022, the complainant itself agreed to settle the matter in terms of the Survey Reports and issued a letter of consent whereby, the complainant accepted an unconditional, full and final settlement of its insurance claim at Rs.50,87,478/-. The letter of consent was executed by the Partner of the Complainant’s Firm namely Mr.Parteek Bansal and it clearly specified that an amount of Rs.46,55,477/- was being accepted towards the settlement of accounts against loss to the "Stocks" while the remaining amount of Rs.4,32,001/- was being accepted towards settlement of accounts against the loss to the "Building". The letter of consent further clearly mentions that the answering Respondent shall stand discharged of all its liabilities (past, present and future) pertaining to the claim in question. Averred further that entire case of the complainant is based on the disagreement with its own consent given to an IRDA approved Surveyor whereby its claim was settled at Rs.50,87,478/-. Submitted that the complainant after having accepted the sum of Rs.50,87,478/- is bound by the Rule of Estoppel and cannot be permitted to reopen the entire controversy. Averred further that this Commission does not have the jurisdiction to try and entertain the present proceedings. As per the terms and conditions of the policy, if any dispute or difference arises as to the quantum to be paid under the Policy (liability being otherwise admitted) such difference shall be referred to Arbitration. Submitted that the present case involves intricate questions of facts which require detailed evidence for determination of the issues and the same can only be decided by a Civil Court of competent.

Averred further that when the claim was filed by complainant with answering respondent, at that time complainant submitted the two Policy bearing number OG-21-1225-4008-00000111 and OG-21-1203-4008-00013008 and same was mentioned in claim form. This answering respondent first became aware of such policy i.e. OG-21-1225- 4008-00000112 only after the complainant filed compliant before this Commission and placed on record the policy OG-21-1225-4008-00000112. If this Commission found that answering respondent Policy bearing number OG-21-1225-4008-00000112 need to be consider in that case it is humbly submitted to this Commission that answering respondent gave the opportunity to file the Addendum Surveyor Report i.e. amended calculation and submitted that the loss assessed by the surveyor will remain the same only the contribution amount will change and they are willing to pay the addition liability falling under OG-21-1225-4008-00000112 on the basis of Addendum Surveyor Report. Averred further that complaint is filed by company and is not the consumer and as per latest judgement of Apex Court titled as National Insurance Co. vs Harsolia Motors and Ors. In parawise reply, all other allegations made in the complaint are denied and a prayer for dismissal of the complaint is made.

4.       Despite service of notices, none appeared on behalf of Opposite Parties No.3 & 4. Hence, Opposite Parties No.3 & 4 were proceeded against exparte, vide order dated 25.07.2023.

5.       Opposite Parties No.5 & 6 appeared through counsel and contested the complaint by filing written reply taking certain preliminary objections therein inter alia that complaint is not maintainable; the complaint is bad for mis-joinder of parties. The Opposite Parties No.5 & 6 arrayed unnecessarily in the complaint. The entire complaint clearly shows that there is no consumer dispute between complainant and Opposite Parties No.5 & 6. No cause of action arose to complainant against Opposite Parties No.5 & 6. The complainant has obtained loan facilities from answering Opposite Parties and the complainant has not raised any dispute regarding those loan facilities. The complainant has neither lodged any claim with answering Opposite Parties nor any claim has been repudiated by answering Opposite Parties. The complainant has not assigned any reason why the answering Opposite Parties have been impleaded in above noted complaint. On merits, all other allegations made in the complaint are denied and a prayer for dismissal of the complaint is made.

6.       In order to prove the case, the complainant has placed on record affidavit of Sh.Parteek Bansal, Authorized Signatory/Manager, M/s Gavya Corporation Pvt. Ltd. as Ex.CW1/A alongwith copies of documents Ex.C1 to Ex.C35.

7.       On the other hand, Opposite Party No.1 has placed on record affidavit of Sh.Suryadeep Singh Thakur, Area Manager Legal, Reliance General Insurance Co. Ltd. as Ex.OP1/A alongwith copies of documents Ex.OP1/1 to Ex.OP1/5.

Whereas, Opposite Party No.2 has placed on record affidavits of Sh.Saurav Khullar, Authorized Representative as Ex.OP2/1 & Ex.OP2/2 alongwith copies of documents Ex.OP2/3 to OP2/20 and affidavits of Sh.Tarun Roi Arora, Working for Gain at Protocol Insurance Surveyors and Loss Assessors Pvt. Ltd. as Ex.OP2/21 and Ex.OP2/22.

          On the other hand, Opposite Parties No.5 & 6 has placed on record affidavit of Sh.R.K. Arora, Branch Manager, Punjab National Bank as Ex.OP5,6/1.

8.         We have heard the ld. counsel for both the parties, gone through the written arguments submitted on behalf of the parties and also gone through the record.

9.       Non disputed facts of the complaint are as under:-

Complainant’s company availed ‘Standard Fire and Special Perils Policy’ bearing No.200162121110004792 (w.e.f. 11.01.2021 to 10.01.2022) from Reliance General Insurance Co. Ltd. i.e. Opposite Party No.1 for the total sum assured on stock of Rs.1,10,00,000 (One crore ten lakh) and also purchased following three polices namely ‘Standard Fire and Special Perils Policy” from Opposite Party No.2: -

(a)      Policy No.OG-21-1225-4008-00000111 (w.e.f. 20.10.2020 to 19.10.2021) for the total sum assured on stocks of  Rs.60,00,000 (Sixty lakh) and for Super structure building of Rs.37,50,000 (Thirty-seven lakh fifty thousand) thereby totaling to Rs.97,50,000 (Ninety-seven lakh fifty thousand).

(b)     Policy No.OG-21-1225-4008-00000112 (w.e.f. 20.10.2020 to 19.10.2021) for total sum assured on stocks of Rs.25,00,000 (Twenty-five lakh) and for super structure building of Rs.7,50,000 (Seven lakh fifty thousand) thereby totaling to Rs.32,50,000 ( Thirty-two lakh fifty thousand).

(c)      Policy No.OG-21-1203-4008-00013008 (w.e.f. 05.01.2021 to 05.01.2022) for the total sum assured of Rs.80,00,000/- (Eighty lakh).

          On the intervening night of 01.02.2021 and 02.02.2021, a fire incident happened in the insured warehouse of the complainant. Thereafter, the complainant had lodged the claim of Rs.1,54,75,026.57 paisa against the tentative loss caused by fire in the premises/godown with the Opposite Party No.2 i.e. Bajaj Allianz General Insurance Company Limited. At the first instance, the complainant had lodged the tentative claim against the loss caused by fire in the premises/godown with the Opposite Party No.2 i.e. Bajaj Allianz General Insurance Company Limited for Rs.1,54,75,026.57 paisa only under all the three policies and also lodged the tentative claim against the loss caused by fire in the premises/godown with the Opposite Party No.1 i.e. Reliance General Insurance Company Limited for Rs.1,36,15,000/- (Excluding GST) against the loss of stock. After the incident, both the Opposite Parties i.e. OP No.1 and OP No.2 appointed their respective  associated/empanelled surveyor companies Puri Crawford Insurance Surveyors and Loss Assessors India Private Limited i.e. Opposite Party No.3  and Protocol Insurance Surveyors and Loss Assessors Private Limited i.e. Opposite Party No.4 for assessing the loss and for investigation. Thereafter, on the instructions of the Opposite Parties No.1 & 2, the complainant had filed joint claim with OP No.1 and OP No.2. Thereafter, settlement has been effected between the parties and in view of the settlement, complainant accepted the amount of Rs.36,52,058/- against the policy bearing 200162121110004792 of Opposite Party No.1 and received Rs.50,87,477/- against the policies bearing no.OG-21-1225-4008-00000111 and OG-21-1203-4008-00013008 issued by Opposite Party No.2.

10.     Now, we come to the disputed facts. The complainant alleged that the complainant has given the consent for the settlement and signed the discharge vouchers for the receipt of reduced payment under compelling circumstances, because the complainant was under heavy debt and he had to pay the loan amount on which the insured stocks were hypothecated and which were burnt in the fire caused in the premises and the Opposite Parties have arbitrarily paid part payment of claim. The other allegation of complainant is that while settling the claim, Opposite Party No.2 considered the two policies of the complainant and one policy is left to be considered by them for the loss occurred to the insured building in question. Further submitted that  against the building loss, the Opposite Parties have made unreasonable deductions and against the claimed amount of Rs.22,50,000/- only allowed an amount of Rs.4,32,001/-.

11.     The main objection raised by counsel for the complainant is that Opposite Parties No.1 & 2 had passed a very meager amount against the loss suffered by the complainant due to fire. They paid only Rs.87,39,536/- against total claim amount of  Rs.1,65,70,026. The amount of Rs.36,52,058/- has been paid by Opposite Party No.1/Reliance General Insurance Company Limited and Rs.46,55,477/- has been paid by the OP No.2/Bajaj Allianz against the stock. As such, the Opposite Parties have retained the remaining claim of Rs.78,30,491/- without any reasonable cause. Claimed further that also they have not considered the print laminates amounting to Rs.14,00,163.41 which were destroyed due to fire and about the stock near to expiry. Argued further that complainant signed the discharge vouchers and accepted the less amount as offered by Opposite Parties under compelling circumstances, as he was suffering from severe financial crisis and Opposite Parties pressurized him to accept the said offer. The acceptance of reduced claim amount by the complainant was under protest.

Thorough perusal of the record reveals that all the objections raised by the complainant are not genuine, as from the perusal of the correspondences exchanged between the parties nowhere reveals that the complainant was compelled to give his consent regard receiving of less amount. Further perusal of the emails (Ex.C27) clearly reveals that the objections qua  laminates and damaged stock were  already raised and  discussed between the parties. However, vide email dated 02.06.2022 written by Protocol Surveyor to complainant reveals that vide this mail, “they asked the complainant that if the complainant has any difference of opinion on any deduction carried out by them, spell out now or else put the matter to rest and provide its free will consent”. For the sake of convenience, the contents of said email are reproduced as under:-

“Your noted consent under duress is not in accordance with the discussion held. Therefore, for the sake of clarity, if you still have any difference of opinion on any deduction carried out by us, you are requested to kindly spell out now or else put the matter to rest and provide your free will consent.

We would like once again to place on record that the assessment has been carried out under the terms and conditions of the operating policy of insurance and has been strictly based on out inspection of the damages and the documents submitted by you.”

Thereafter, vide email dated 06.06.2022, the complainant sent his consent letter requesting the opposite parties  to pay his claim as early as possible, copy of the consent letter of complainant is Ex.C23, the contents of that consent is reproduced as under:-

“I hereby provide my unconditional consent for full and final settlement of the claim to my complete satisfaction and this acceptance means to me that the above mentioned amount is full and final settlement in respect of this claim. I will not claim anything related to this incident/claim in future. In case, I do, the same will not be considered by the Insurance Company.”

Perusal of the record further reveals that Directors of the complainant’s company have also given their ‘free will consent’ dated 05.06.2022 for an amount of Rs.50,87,477/- as full and final settlement of the subject insurance claim, copy of the said consent letter is attached alongwith Ex.C23.  The Complainant also gave his letter of consent in the shape of affidavit on behalf of his company. The relevant contents of that affidavit are reproduced as under:-

“5.    All deductions in assessment such as price variation, dead stock, unregistered purchases, profit margin, depreciation, salvage, under-insurance and excess along with consideration of GST towards damaged stocks on actual basis were explained to me. We are agree of the same.

6.       That by signing this document, my company hereby agree full & final settlement of the loss at the afore-mentioned amount of INR Rs.50,87,478/-. My company also agrees that on remitting this amount Rs.50,87,478/- to ‘Bajaj Allianz General Insurance Co. Ltd, shall stand full discharged from all liability (past, present, future) pertaining to this loss in terms of the aforesaid policy.

7…

8.       That this letter of consent being executed by me on behalf of my company is clear, unconditional and mutually agreed manner & is not obtained from me or my company under duress. That my company agrees to execute the claim discharge voucher to Bajaj Allianz General Insurance Co. Ltd. In furtherance of our acceptance of the claim amount as unconditional, full & final settlement.”

The complainant’s company also signed ‘Claim Discharge cum Satisfaction Voucher’ against the amount of Rs.36,52,058/- as settled by Opposite Party No.1 i.e. Reliance General Insurance Company Ltd. and given their consent letter regarding the same, copy of the discharge voucher and consent letter is Ex.OP1/3 & Ex.OP1/4, respectively. Further perusal of the emails (Ex.C27) clearly reveals that the point of laminates and damaged stock was already discussed between the complainant and surveyor. From the above, it is evident that complainant with his free will signed the discharge vouchers and given his consent and received the less amount with regard to the claim in question after understanding each and every facts of the agreement. There is no document revealing that the complainant has given his consent under protest. Further, the complainant’s company’s directors already given their willful consent without any protest, then the plea of complainant that Opposite Parties made the payment of less amount against the actual loss is not sustainable and no deficiency in service is attributable on the part of Opposite Parties on this account of less settlement of claim in question.

The complainant has also not placed on record any cogent evidence revealing that any protest was ever raised by the complainant within reasonable time with Opposite Parties qua the settlement entered into between the parties. The Hon’ble National Commission, New Delhi, in case titled as M/s M.L. Spinners Pvt. Ltd.,  Vs  United India Insurance Company, II (2014)  CPJ 692 (NC) held that “mere pleadings without any corroborating evidence cannot be take the shape of proof”. We are also guided by the latest pronouncement of the Hon’ble National Consumer Disputes Redressal Commission, New Delhi in case titled as Saptagiri Cotton Industries Vs  United India Insurance Co. Ltd. & Ors., III (2024) CPJ 240 (NC).

12.     The other objection raised by counsel for the complainant is that while calculating the claim of the complainant for the insured building in question the OP No.2 i.e. Bajaj Allianz General Insurance Company Limited had not taken into account the Policy No.OG-21-1225-4008-00000112 w.e.f. 20.10.2020 to 19.10.2021 for total sum assured on stocks of Rs.25,00,000/- and for super structure building of Rs.7,50,000, totaling to Rs.32,50,000/-. The other objection raised by counsel for the complainant is that against the building loss, claim was lodged for Rs.22,50,000/-, but the Opposite Parties had only taken an amount of Rs.7,45,570 as to be the gross loss to the complainant on account of damage to building and after deductions made under different heads and an amount of Rs.4,32,001/- was made out, which is wrong and illegal.

On this, the plea taken by Opposite Party No.2 is that when the claim was filed by complainant with answering respondent, at that time complainant submitted claim under two policies bearing number OG-21-1225-4008-00000111 and OG-21-1203-4008-00013008 respectively and same were mentioned in claim form. Submitted that Opposite Party No.2 became aware of the policy bearing no.OG-21-1225-4008-00000112 after filing of the present complaint by complainant.

But as per the record made available by the parties, the plea taken by the Opposite Party No.2 is not genuine, as ‘Fire Claim Form’ (Ex.C10) placed on record is evident of the fact that complainant lodged the claim with Opposite Party No.2 under the three policies in question i.e. OG-21-1225-4008-00000111, OG-21-1225-4008-00000112 and OG-21-1203-4008-00013008, however, the Opposite Party No.2 wrongly and illegally has not considered the policy no.OG-21-1225-4008-00000112. Hence, there is deficiency in service on the part of Opposite Party No.2 while considering the policies of the complainant for assessing the loss in question qua the insured building. Further it has also been written in the written reply of Opposite Party No.2 and acknowledged by Opposite Party No.2 that they shall reconsider the claim qua the deductions on account of under value of the insurance. For the sake of convenience the relevant para of the written reply of Opposite Party No.2 is reproduced as under:-

“If this Commission found that policy bearing no. OG-21-1225-4008-00000112 need to be considered in that case it is humbly submitted to Hon’ble Commission that answering Opposite Party gave the opportunity to file the Addendum Surveyor Report i.e. amended calculation. However, it is to be noted that the loss assessed by the surveyor will remain the same only the contribution amount will change and we are willing to pay the addition liability falling under OG-21-1225-4008-00000112 on the basis of Addendum Surveyor Report.”

13.     It is apt to mention here that the complainant alleged that he lodged the tentative claim against the building loss for an amount of Rs.22,50,000/-, but the Opposite Parties had only taken an amount of Rs.7,45,570/-. However perusal of Ex.C8 reveals that the complainant lodged the tentative claim against the building loss for an amount of Rs.11,50,000/- only.

14.     In order to set at rest the controversy qua the less settlement of the claim on account of insured building in question, we have carefully gone through the report of Protocol Insurance Surveyors & Loss Assessors Pvt. Ltd. (Ex.OP2/7), in which, at serial no.12.2 under the heading Building, the surveyor calculated the ‘Value at Risk’ as under:-

Building:- To arrive at Value at Risk of Building, the following points were noted.

Insured has provided the total constructed area of the building Ground Floor + First Floor on the basis of the constructed area we have calculated the current market value of the building summarized as below:-

          Rates have been taken as per current market rates Rs.1250/Sqft.

As confirmed by insured the building was constructed in the year of 2017, accordingly we have applied @ 5% depreciation for four years.

Less deduction/variation @ 5% if any in the absence of actual records.

Based on above, Value at Risk is calculated as under:-

The value at risk of Building is calculated at Rs.54,37,563/- which is greater than the available sum insured of Rs.37,50,000/- Thus under insurance of 31% is being applicable.

However, in the above said table the surveyor has taken the sum insured as Rs.37,50,000/- and applied deduction of 31% on account of under insurance, whereas as per the discussion above, the Opposite Party No.2, failed to consider the policy no. OG-21-1225-4008-00000112, wherein there was another coverage of Rs.7,50,000/- in addition to the amount of Rs.37,50,000/- for which it was already insured for the building in question. So, in actual the sum insured was Rs.45,00,000/- qua the building in question. The Value at risk of Building has been calculated by the Opposite Parties as Rs.54,37,563/- which is still greater than the actual sum insured of Rs.45,00,000/- and thus under insurance 17.24% is being applicable only instead of 31% as applied by Opposite Party No.2. In this way, the right calculation for deduction percentage is as under:-

It has been observed that after assessing the Value at risk, the surveyor of Opposite Parties after applying the deduction of 31%, assessed the loss towards the building as under:-

Now, the above said calculation is recalculated after taking the 17.24% of Less under Insurance instead of 31%, which is as under:-

Out of the above amount of Rs.5,23,416/-, admittedly the Opposite Party No.2 has already paid Rs.4,32,001/-. As such, there is a difference of Rs.91,415/- in assessment of loss towards the building. As the building in question is covered under the policies issued by Opposite Party No.2 i.e. Bajaj Allianz General Insurance Company Limited, so the liability to pay the balance claim lies with Opposite Party No.2 only.

15.     Sequel to the above discussion, the present complaint is allowed in part and Opposite Party No.2 is directed to pay Rs.91,415/- (Rupees Ninety One Thousand Four Hundred Fifteen only) as difference of assessment of loss towards the building. Opposite Party No.2 is also directed to pay compository costs of Rs.10,000/-(Rupees Ten Thousand only) as compensation and litigation expenses to the complainant. The pending application(s), if any also stands disposed of. Complaint against Opposite Party No.1 and Opposite Parties No.3 to 6 stands dismissed. The compliance of this order be made by the Opposite Party No.2 within 30 days from the date of receipt of copy of this order, failing which, the Opposite Party No.2 is further burdened with additional cost of Rs.10,000/-(Rupees Ten Thousand only) to be paid to the complainant for non compliance of the order. Copies of the order be furnished to the parties free of costs. File is ordered to be consigned to the record room.

Announced on Open Commission