Per – Hon’ble Mr. Narendra Kawde, Member
This complaint has been filed by the Complainant alleging deficiency of service on the part of the Opponent Insurance Company in settlement of claim due to loss of stocks by fire.
[2] The Complainant, as stated in the complaint, subscribed to Shopkeepers policy of insurance bearing No.153200/48/08/34/ 00000104 for amount of `75,00,000/-, which is issued by the Opponent Insurance Company to provide insurance cover to all types of general items including cigarettes stored in the shop premises of the Complainant. Goods/items including soaps, talcum powder, tooth-paste, cigarettes, Dabar Hair Oil and etc. valuing worth `63,66,450.21ps. were stored as on 27/4/2009. During the midnight at about 02:30 a.m. to 02:45 a.m. on 27/4/2009, fire erupted in the shop of the Complainant due to electric short-circuit and all the goods in the shop were lost/damaged in the fire and also suffered loss to his building including furniture estimated to `70,00,000/-. On intimation to the Opponent Insurance Company, an officer of the Opponent visited the shop on 27/4/2009 at about 11:00 a.m. who saw the damaged and burnt condition of shop and goods. Prompt steps were taken by the Complainant to control the damage by informing Fire brigade and police authorities immediately.
[3] Undisputed facts on perusal of record are that the Complainant submitted fire insurance claim of estimated loss of `70,00,000/- to the Opponent Insurance Company. Shri J. C. Bhansali was appointed as a surveyor by the Opponent to assess the loss due to fire. All the required documents/list of the stock was furnished to said surveyor. On 16/10/2009, the Opponent No.2 informed the Complainant that the claim of `20,66,315/- has been approved by the Opponents as full & final settlement and the Complainant was required to sign Discharge Voucher. Thereupon the Complainant on 20/10/2009 signed and submitted the discharge voucher ‘under protest’ without prejudice to the Complainant’s right to claim balance amount of compensation. However, the Opponent Insurance Company informed on 23/10/2009 stating that the claim amount of `20,66,315/- is payment of full and final settlement and requested the Complainant to submit fresh Discharge Voucher. Thereupon the Complainant again submitted Discharge Voucher on 26/10/2009 under protest to accept the said amount of `20,66,315/- reserving his right for balance claim and accordingly, sent letters dated 26/10/2009 and 27/10/2009 to the Opponents. The Opponent Insurance Company did not release the said claim amount and therefore, notice through a lawyer was issued by the Complainant to the Opponent on 4/11/2009 for release of the said claim of `20,66,315/- as the Complainant was willing to accept the same under protest though loss suffered was to the tune of `70,00,000/- as the Complainant was in dire need of money. However, the Opponents did not release the said amount. Aggrieved thereby, the Complainant filed present consumer complaint with allegations against surveyor saying that survey report prepared by Shri Bhansali and accepted by the Opponents is totally wrong, baseless, illegal and contrary to records.
[4] It is the case of the Complainant that all the required documents/information sought by Shri Bhansali, the surveyor appointed by the Opponents, was supplied to facilitate smooth survey of loss suffered by the Complainant due to fire. According to the Complainant, the entire stock as per list dated 28/4/2009 valuing `63,66,450/- was lost due to fire and in addition to this damage was caused to the building and thus, resulting to total loss of `70,00,000/-. Grievance of the Complainant is that settlement of claim was getting delayed as the surveyor filed the survey report in the month of September-2009 though constantly followed/requested to expedite the survey work. Shri Bhansali, Surveyor, allegedly demanded `75,000/- in cash from the Complainant for making a favourable survey report. The Complainant on 4/9/2009 and 14/9/2009 reported this incidence to the Divisional Office of the Opponent Insurance Company. However, the Opponents did not change the surveyor nor appointed someone to investigate these allegations.
[5] Main grievance of the Complainant is that this surveyor did not take into consideration the loss of stock of cigarettes of different makes worth `42,91,625/- burnt in fire alongwith other goods/items as per claim as over powering smell of cigarettes was not noticed in preliminary survey conducted by Shri Limaye on 27/4/2009 at 10:15 a.m. nor identifiable remains of cigarettes were available for confirmation of loss. According to the Complainant, dispute of the claim is limited to loss of entire stock of cigarettes worth `42,91,625/- which is not accounted for by the surveyors and included in survey report.
[6] We have carefully perused all the related documents led by the parties including survey report prepared on 25/9/2009 by Shri Bhansali, Surveyor and Loss Assessor appointed by the Opponent. Vital point considered by the said surveyor is that of ‘space’ required for storing of this entire cigarettes stock as per the purchase vouchers produced by the Complainant. The Complainant identified the place of storage of cigarettes as per the sketch appended to the survey report. Thereupon the surveyor identified the requirement of place of storage of cigarettes on the basis of ‘volumetric analysis’ of the storage place required for stocking the cigarettes claimed to have been stored as per the quantity mentioned in purchase bills. Place required for storing of cigarette stock of 5630 boxes around 50,000 packs, as claimed by the Complainant, comes to 421 cubic feet as against the space shown by the Complainant where cigarette stock stored was 25 cubic feet only in the affected shop premises.
[7] Value of stock of cigarettes supported by the purchase bills as claimed by the Complainant is not disputed by surveyor. Dispute relates to the size of storage place required to accommodate stock of about 5,630 outers/boxes, as claimed by the Complainant. Volumetric study to store this much stock requires 421 cubic feet of space as reported by the surveyor, whereas the actual space where cigarettes stock was stored, shown to the surveyor by the Complainant himself was around 25 cubit feet. Detail diagram/sketch is available at Annexure-III (page 233). Actual storage is 25 cubic feet and the volume of burnt cigarettes in this storage space is shown 2,26,859 number of cigarettes as against 7,26,435 cigarette quantity (i.e. 5,630 boxes) as claimed to have stored by the Complainant (Annexure-II, page 232).
[8] Findings to the extent of loss of cigarettes due to fire are disputed and Complainant filed an affidavit denying the survey report to the extent of loss of cigarette. Further what we observe from the record is that the entire documents required by surveyor including Balance Sheet were produced by the Complainant on 25/8/2009 (internal page 11 of the survey report) and thereafter survey report came to be prepared and filed on 25/9/2009. Surveyor is appointed by a statutory provision and unless his malafides are proved by leading/adducing evidence, we have to rely upon the survey report. The Complainant failed to establish alleged malafides by adducing further evidence as provided under Section-13(4) of the Consumer Protection Act, 1986 except denial of report by filing affidavit. Survey report is an important piece of evidence and cannot be disbelieved unless there is a proof on record to the contrary.
[9] Heard the learned advocates for the parties. Various judgments were relied upon by the Complainant to establish that the Complainant is a ‘consumer’ under the provisions of Section-2(1)(d) of the Consumer Protection Act, 1986 and there is deficiency of service on the part of the Opponent Insurance Company. Complainant being a ‘consumer’ is an undisputed fact as it was held earlier in several judgments by Hon’ble National Consumer Disputes Redressal Commission. Insistence of the Opponents to accept claim amount of `20,66,315/- as full and final settlement amounts to limit the choice of the Complainant. The Opponents should have released the offered claim amount to the Complainant who was willing to accept the same ‘under protest’ as the Complainant was in dire need of finances to restore his business. We, therefore, hold that the Opponents’ illogical action not to release the claim amount based on survey report leads to deficiency of service on their part. We are inclined to award this amount to the Complainant together with interest thereon @ 12% p.a. as the money was unduly held-up by the Opponent. The Complainant could have utilized this money for business purposes had there been prompt payment on the part of the Opponent.
[10] Learned Advocate for the Complainant relied on various judgments here-in-below to relate the claim of the Complainant:-
(a) Techno Economic Service Private Limited Vs. New India Assurance Company Limited ~ IV-(2008)-CPJ-337;
(b) Cholamandalam DBS Finance Ltd. Vs. Kishore Jain ~ I-(2008)-CPJ-214-(NC);
(c) Sahara India Limited Vs. Mritunjay Nath Tripathi ~ II-(2003)-CPJ-444;
(d) Banaras Beads Ltd. & Ors. Vs. New India Assurance Co. Ltd. & Ors. ~ II-(2005)-CPJ-111-(NC);
(e) Mullangie Spintex Pvt. Ltd. Vs. New India Assurance Co. Ltd. & Ors. ~ I-(2007)-CPJ-363-(NC);
(f) Texcones Tubes Company Vs. The Oriental Insurance Co. Ltd. & Anr. ~ II-(2007)-CPJ-122-(NC);
(g) Sudhakar Traders Vs. National Insurance Co. Ltd. & Anr. ~ IV-(2005)-CPJ-25-(NC).
What we observe that ratio of judgments in these cases is not relevant as the facts and circumstances differ with this case.
[11] Compensation for business loss of `16,50,000/- claimed by the Complainant is not admissible in view of the well-settled principle of Apex Court.
For the above-cited reasons, we partly allow this present complaint in the following manner and pass the order accordingly:-
ORDER
(1) The complaint is partly allowed.
(2) The Opponent/Insurance Company is hereby directed to pay to the Complainant, an amount of `20,66,315/- (Rupees Twenty Lacs Sixty Six Thousand Three Hundred and Fifteen only) together with interest thereon @ 12% p.a., as from the date of filing of the complaint viz. 11/Feb/2010 till realization of the amount.
(3) The Opponent/Insurance Company is further directed to pay to the Complainant, an amount of `10,000/- (Rupees Ten Thousand only) by way of compensation towards mental harassment & agony.
(4) The Opponent/Insurance Company shall also pay to the Complainant, an amount of `10,000/- (Rupees Ten Thousand only) by way of costs of the complaint.
(5) Rest of the claims of the Complainant stands rejected.
(6) Parties be informed accordingly.
Pronounced on 21st October, 2011
