This complaint coming up before us for final hearing on                      19-04-11 in the presence of Sri A.R.S. Murhty, advocate for complainant and of Sri J. Nageswara Rao, advocate for OP, upon perusing the material on record, hearing both sides and having stood over till this day for consideration, this Forum made the following: 

O R D E R

Per Sri A. Hazarath Rao, President:-

        The complainant filed this complaint seeking a sum of Rs.20,00,000/- together with interest being the damage caused to the stock stored in godown.

2.    In brief the averments of the complaint are these:

        The opposite party issued two policies bearing Nos.62100011071300000631 and 62100011071300000632 covering the risk of dry chillies, chilli seeds, packing material etc and another policy b.No.62100011071100000432 covering the risk of godown building, compound wall, gates and chillies drying platform.   During the subsistence of the policy a major fire accident took place in the premises of the complainant on 03-05-08 causing damage to the entire stock kept in the premises of the complainant besides damage to the building.   The complainant through letters dated 04-05-08 and 06-05-08 submitted claim forms for a sum of Rs.24,00,000/- towards stock and Rs.2,25,000/- towards damage to the building.   The opposite party appointed a surveyor on 07-05-08.   The complainant provided all the required information to the surveyor.   Fire Department issued a certificate on 23-05-08 about loss of stock to a tune of Rs.23,97,591/- and damage to the building at Rs.5,00,000/-.   At the request of the surveyor the complainant sent AMC market cess particulars upto the date of accident, Municipal Tax receipts etc., on 22-05-08 besides stock particulars.   The complainant furnished entire information on 11-11-08 to the surveyor in pursuance of the letter of the opposite party dated 02-06-08.  The surveyor informed the opposite party that the complainant was entitled to the entire amount claimed.   The opposite party requested the complainant to receive Rs.6,48,015/- and Rs.6,44,815/- respectively under two policies to meet the immediate financial needs of the complainant with a promise to pay the remaining amount.   The complainant also signed on the voucher accepting the amounts towards part satisfaction of his claim.   The opposite party did not furnish surveyors report to the complainant.   The opposite party gave reply on 13-05-09 with false allegations to the notice issued by the complainant.  Not settling the claim properly amounted to deficiency of service.

3.      The contention of the opposite party in brief is hereunder:

        The complainant had taken insurance policies for the open stocks under two floater policies for a sum of Rs.30,00,000/- all together.   The complainant sent claims forms to the opposite party stating that they suffered loss for the chilly stocks due to fire accident situated in the premises located at 238/1, 255/1, 145/c of Ankireddy palem village, G.T. Road, Near Mirch yard, Guntur.   The insured did not prefer any claim for godown as it was not affected by fire.   The opinion of surveyor is not binding upon insurance company as it had no statutory force.  The surveyor ascertained the cause of accident and submitted his report on 06-02-09 assessing the loss at Rs.15,04,609/-.  As per surveyor’s report the stock position of the insured was Rs.1,02,273.37 kgs.   The policy was taken for open stocks and the report was arrived at Rs.25.94 per kg for open stocks in loosen bags.   The total value of the stock at the time of fire accident was Rs.28,02,971/- including packing material worth of Rs.1,50,000/-.  Affected stocks as mentioned by surveyor was Rs.66,541 kgs.  As per volumetric analysis the quantity arrived by the surveyor was different.   As per measurements given in the report the stocks occupied at the time of survey was 2188.85 cubit feet.   But the surveyor has not substantiated the figure of 3199 cubit feet which was taken into consideration.   The surveyor expressed his inability to the Divisional Manager to give any sort of clarification on his report.   The opposite party took the volumetric measurements of the two bagged lots as 2188.85 cubit feet only instead of 3199 cubit feet as mentioned by the surveyor.   The quantity of chilly affected basing upon the damage heap measurement ws 58087.80 kgs against 67328.37 kgs.   Taking into consideration of the quality, quantity of the goods salvaged the value of the gunny bags burnt, the net loss arrived was at Rs.12,96,284/-.  The complainant has accepted the said amount towards full and final satisfaction out of his free will without reserving any right.   The complainant is a business man and as such he is not a consumer.  The opposite party did not commit any deficiency of service.  The complaint therefore be dismissed.    

4.    Exs.A-1 to A15 and Exs.B-1 to B-11 on behalf of complainant and opposite party were marked respectively.

5.        Now the points that arose for consideration are:

1. Whether the opposite party committed deficiency of service?
2. Whether the complainant is entitled to compensation and if so to what amount?
3. To what relief?

6. Admitted facts in this case are these:

1. The complainant insured dry chillies kept in the premises bearing Dr. No.238/1 and 251/1 near mirch yard, G.T. Road, Guntur, D.No.149/c, near Mirch Yard, G.T. Road, Guntur for Rs.15,00,000/- besides the stock kept open in the said premises and the said godown (Ex.A-1=B-2 and B1).
2. Complainant intimated the about the damage to the mirch (Ex.B-3=Ex.A-2).
3. The opposite party appointed one B.Nageswara Rao as surveyor to assess the loss and submit his report (Ex.B-4).
4. There was exchange of notices between the complainant and the opposite party (Ex.A-14=B-10, Ex.A-15=B-9).
5. The complainant received two cheques on 16-04-09 for Rs.604805/- and Rs.644815/- (Ex.A-12 and A-13).

7.    POINT No.1:-    The contention of the opposite party is that the complainant received the amounts covered by Ex.A-12 and A-13 towards full satisfaction, while the contention of the complainant is that it received those amounts towards part satisfaction only.   Xerox copies of the receipts did not disclose whether the amount covered by Ex.A-12 and A-13 were either towards full or part satisfaction of the claim.   

8.     In Oriental Insurance Company Limited vs. Vallabhbhai Naranbhai Dobaria (2011) CTJ 344) it was held that mere execution of discharge voucher and acceptance of insurance claim would not stop insured from making further claim from the insurer under the circumstances which can be termed as exercise of undue influence or coercion or the like.   

9.     In Oriental Insurance Company Limited vs Government Tool Room and Training Centre, (I 2008 CPJ 2667 (SC) it was held that it is a wrong practice followed by insurance companies in not paying single pie without having discharge voucher, it is a coercive bargaining as insured has no option to sign the discharge voucher, mere execution of discharge voucher and acceptance of insurance claim will not stop the insured from making further claim.  

10.   The same view has been reaffirmed by the National Commission in National Insurance Company Limited vs. Vasavi Traders (2008 (I) CPJ 487) and SM Herbals Limited vs. New India Assurance Company Limited (2009 (4) CPJ 50 NC).

11.   The above decisions revealed the nature of the insurance company in settling the claims.  Taking a clue from the above decision, we are of the view that the complainant received those amounts covered by Ex.A-12 and A-13 towards part satisfaction.

12.   The other contention of the opposite parties is that the surveyors report is not binding either on the opposite party or on the complainant not being a statutory surveyor.   At this stage it is quite opt to mention that the opposite party appointed one Sri B. Nageswara Rao as surveyor to assess the loss.    While considering the evidentiary value of surveyors report it was held,     in United India Insurance Company Limited vs. Jadhav Kirana Stores 2005 (1) CPR 96 (NC) it was held

        “there cannot be any dispute that as has been held by the Apex        Court as also this commission, the report of the surveyor is an     important document and should not be shunned without     sufficient reasons”. 

        Taking a clue from the above decisions, the opposite party cannot ignore the surveyor’s report.

13.  The complainant has not filed Xerox copies of statements submitted to the sales tax authorities regarding stock position.  Under those circumstances the availability of the stock as mentioned in      Ex.B-4 report has to be taken into consideration.   The surveyor appointed by the opposite party namely Sri B. Nageswara Rao estimated the loss of chillies at Rs.15,04,609/-.  When the surveyor actually counted the available stock in the godown of the complainant again applying to estimate the quantity by volumetric analysis in our considered opinion is not just and reasonable.  It was already observed that the complainant received the amounts covered by                  Ex.A-12 and A-13 was only towards part satisfaction of the amount.   Therefore the remaining loss regarding stocks i.e., Rs.2,11,779/- (15,04,609 – 12,92,830) has to be indemnified by the opposite party in our considered opinion.   Under those circumstances, awarding Rs.2,11,779/- towards stocks will meet the ends of justice.

14.   The other contention of the opposite party is that the complainant did not intimate damage to the building.  To prove it the complainant relied on Ex.A-3 dated 04-05-08. Neither acknowledgment nor receipt by the opposite party regarding Ex.A-3 was filed by the complainant. Ex.A-10 is the Xerox copy of FIR given to the police on 03-05-08 by one P. Naga Brahmam, Secretary, grade-II of Agricultural Marked Yard, Guntur.   The relevant portion in Ex.A-10 is extracted below for better appreciation:

        “

15.   The opposite party filed Ex.A-8 certificate dated 21-06-08 said to have been issued by SDOP, Guntur and Ex.A-9 certificate issued by Station Fire Officer, Guntur wherein the damage to the building was mentioned at Rs.5,00,000/- and to the stock of chillies Rs.22,76,191/-.   Ex.A-10 revealed that the SDOP, Guntur revealed who issued Ex.A-8 mentioned the value as per the available record and local opinion.  The same value was mentioned by the Station Fire Officer in Ex.A-9.  But the complainant in Ex.A-14 notice dated 24-09-09 claimed the damage to the building to Rs.2,25,000/- only. 

16.   The recitals in Ex.A-10 revealed that damage took place to godown and platforms.   Nothing prevented the complainant to mention about damage to the godown in Ex.A-2 itself.   Both Ex.A-2 and Ex.A-3 emanated on the same day.   The complainant in Ex.A-10 dated 22-11-08 forwarded the copy of estimates showing damage to the godown building for consideration by the opposite party.   For the reasons best known to the complainant it did not place such material before this Forum to ascertain the nature of damage and the amount incurred by it in getting the damage repaired.   The value mentioned in Ex.A-10 notice deferred from the value mentioned in Ex.A-8 and A-9.   The surveyor in Ex.B-4 report did not make any whisper regarding damage to godown.  In the absence of any credible evidence showing damage to the building and the amount incurred towards its repair no reliance can be placed on the worth of damage mentioned in Ex.A-8, A-9 and A-14.   As no allegation was made against surveyor regarding his report credence can be given to the recitals mentioned in Ex.B-4.  Under those circumstances, the amount claimed by the complainant towards damage and godown cannot be accepted.  However a sum of Rs.20,000/- can be awarded nominally to cover the damage to godown.

17.   The relevant portion in Ex.A-11 dated 11-11-08 reads as follows:

     “10.  We are enclosing the final investigation report issued by                 the police department in respect of godown fire accident.

      11.  We are enclosing the estimate copy of damages to the                           godown building for your kind consideration.

      12. We are further forwarding the filled up claim forms for                     the total loss to the stocks and godown property                             individually.

        We highly regret for the delay in submitting the papers as        all of the directors were busy in family and religious functions        during the past four months.   Hence, we kindly request your       good selves to do the needful at your earliest and oblige”.     

19.   The above recitals in Ex.A-11 revealed that it is the complainant who did not submit all material papers to the opposite party to process the claim on some ground or other.  Under those circumstances, awarding interest from 01-01-09 will meet the ends of justice.

20.  POINT No.3:-   In view of the above findings, in the result, the complaint is partly allowed as indicated below:

1. The opposite party is directed to pay Rs.2,11,779/- (Rupees two lakhs, eleven thousand, seven hundred and seventy nine only) towards damage of dry chillies and Rs.20,000/- (Rupees twenty thousand only) towards damage caused to the building together with interest @9% p.a., from 01-01-09 till payment.

        2. The opposite party is further directed to pay Rs.1,000/-                                (Rupees one thousand only) towards costs.

        3. The amounts ordered above shall be paid within a period of                  six weeks from the date of receipt of the copy of the order. 

Dictated to junior stenographer, transcribed by her, corrected by me and pronounced in the open Forum, dated this the 3rd day of April, 2011.         

MEMBER                                             MEMBER                                        PRESIDENT

APPENDIX OF EVIDENCE

  DOCUMENTS MARKED

For Complainant:

For opposite party:        

                                                                                           PRESIDENT