O R D E R

 PER SHRI. S.M. RATNAKAR – HON’BLE  PRESIDENT

1)        By this complaint the Complainant has prayed that it be held and declared that the Opposite Party is guilty of deficiency in service and unfair trade practices as per the provisions of the Consumer Protection Act, 1986 (referred to as the Act).  It is also prayed that the Opposite Party be directed to pay sum of Rs.14,64,235/- being the differential claim amount payable to the Complainant under the Fire Insurance Claim with interest @ 18% p.a. from 17/10/2003 till its realization.  It is also prayed that the Opposite Party be directed to pay Rs.3,00,000/- as compensation for mental agony, harassment, hardship suffered by the Complainant and to pay cost of Rs.50,000/- as legal and incidental expenses to the Complainant.

 2)        According to the Complainant, the Complainant is a partnership firm carrying on business as dealers in chemicals and was storing their stocks/chemical goods in various godowns including the godown of M/s. Pravin Warehousing Co. and the godowns owned by Mr. Jayesh Mehta C/o Pravin Warehousing Co. situated at Purna Village, Opp. J.K. Petrol Pump, Thane Bhiwandi Road, Bhiwandi.  It is alleged that the Complainant had taken Standard Fire and Special Perils Insurance Policies on payment of premiums as charged by the Opposite Party covering the stocks lying in the above mentioned godowns. Policy No.111300/11/02/00014, for Rs.50 Lacs covering the stocks of chemicals, solvents, organics etc stored in the godown No.1 & 2 of Mr. Jayesh Mehta, C/o. Praveen Warehousing Co., Bhiwandi was valid for the period 01/04/2002 to 31/03/2003. The another policy no.111300/11/02/001408, for 27 Lacs covering the stock of materials in various godowns as per the schedule attached to the policy was valid for the period 30/04/02 to 29/04/03.  It is submitted that as the said policy covered various locations it was treated as Floater Policy.  Under the said policy various locations including the godowns of Praveen Warehousing Co., Jai Jalaram and Vithal Compound, Purna Village, Bhiwandi and the godown of Mr. Jayesh Mehta C/o. Praveen Warehousing Co., Mangalabai Compound, Bhiwandi, under Item No.12& 14 respectively were also covered as per the schedule attached to the said policy.  The copies of the said insurance policies  are marked as Annexure ‘C1’ colly.

3)        According to the Complainant, in view of the decision of the Hon’ble National Commission in the case of Harsolia Motors V/s. National Insurance Co. Ltd., reported in  I (2005) CPJ 27 (NC) the Complainant is the consumer within the meaning and definition of consumer of the Act.  The Opposite Party is guilty of deficiency of service and unfair trade practice within the meaning u/s.2(1)(g) and (r) of the Act.  The Complainant has therefore, filed this complaint u/s.12 of the Act as the Complainant had taken the aforesaid policies for the purpose of reimburse or indemnity for loss which may be suffered due to various perils.  It is submitted that on 08/03/03 in Purna Village there was a severe fire and the stocks of the Complainant stored in the godown of M/s. Praveen Warehousing Co., Mr. Jayesh Mehta C/o. Praveen Warehousing Co. were severely burnt.  The Complainant estimated the stokes worth of Rs.80,00,0418/- stored in godown no.1& 2 of Mr. Jayesh Mehta and stocks valued at Rs.7,04,700/- stored in godown no.B3 of M/s. Praveen Warehousing Co. were badly burnt in the said fire accident. The Complainant accordingly lodged the claim with the Opposite Party under the  aforesaid policies. The copies of the said claim forms are marked as Annexure ‘C-2’ (colly.).

 4)        It is submitted that the Opposite Party appointed M/s. J. Bashir and Associates Surveyor’s Pvt. Ltd. to assess the damage towards the loss suffered by the Complainant.  It is submitted that the said surveyor after due verification of the said godowns as well verifying the books and records concerning the stocks held at the said godowns at the time of fire submitted the inspection report dtd.23/04/2003 to the Complainant and further requested the Complainant to furnish additional information. The copy of the said report is marked as Annexure ‘C-3’.  It is alleged that on receipt of the said report immediately the Complainant by the letter dtd.29/04/03 informed the said Surveyor that there were discrepancies, variations in the measurement, size and number of bags in the report and the copy of it was sent to the Opposite Party.  It is submitted that the Complainant also furnished complete details of measurement, size and number of bags burnt during the fire to the surveyor by letter dtd.07/05/03 and copy of it was also submitted to the Opposite Party.  The copies of the letters referred above are marked as Annexure ‘C-4’ colly.  It is the case of the Complainant that in spite of the repeated requests the Opposite Party failed and neglected to furnish the copy of the survey report to the Complainant.  It is alleged that by suppressing the actual calculation and the details of the surveyor’s report the Opposite Party sent cheque No.258701 dtd.17/10/03 for Rs.49,49,000/- and cheque No.258699 dtd.17/10/03 for Rs.9,92,782/- drawn on Bank of India alongwith their claim voucher Nos.4/2003/02007 and 4/2003/0/2005 both dtd.17/10/03. The copies of the said vouchers and the cheques are marked as Annexure ‘C-5’ colly.   

5)        According to the Complainant, by letter dtd.21/10/03 while acknowledging receipt of the said cheques, the Complainant requested for breakup of the amounts worked out by the Opposite Party alongwith the copy of the Surveyor’s Report.  The copy of the said letter is marked as Annexure ‘C-6’.  It is submitted that the Opposite Party  by their letter dtd.06/11/03 furnished the calculation of Rs.59,41,787/- but did not furnish copy of the surveyor’s report which amounts to deficiency in service.  The copy of the letter of the Opposite Party dtd.06/11/03 is marked as Annexure ‘C-7’. It is submitted that the Complainant by letter dtd.19/01/2004 disputed the claim settlement made by the Opposite Party as there was discrepancy in the principles of insurance applied and apparent errors in the calculation worked out by the Opposite Party.  According to the Complainant, based on the stocks held and the breakup furnished by the Opposite Party the total loss payable under the said policies workout to Rs.71,47,663/- and accordingly Complainant demanded the payment of differential amount from the Opposite Party.  The copy of the letter dtd.19/01/04 is marked as Annexure ‘C-8’.  The Complainant by letter dtd.03/02/04 reminded the Opposite Party for payment of balance amount.  The Opposite Party by letter dtd.09/02/04 replied to the said letters and informed that the Opposite Party had already settled the claim of the Complainant after receiving the vouchers dully discharged by the Complainant towards the full and final settlement of the Complainant’s claim.  The copies of the letters dtd.03/02/04 and 09/02/04 are marked as Annexure ‘C-9’ colly. The Complainant by letter dtd.19/04/04 again raised the protest to the letters received from the Opposite Party.  The copy of the said letter is marked at Annexure ‘C-10’.  The Complainant thereafter also wrote letters dtd.19/06/04, 07/03/05 and 04/04/05 to the Opposite Party.  The copies of which are marked as Annexure ‘C-11’ colly.

 6)        It is submitted that the Complainant had also obtained the expert opinion of M/s. Mehta and Padamsey Pvt. Ltd., Mumbai who was the member of National Association of Independent Adjuster, USA, on the computation of the total loss suffered by the Complainant due to the said fire.  It calculated the total loss payable to the Complainant to the tune of Rs.74,06,022/-.  The copy of the said expert opinion is marked as annexure ‘C-12’.  It is submitted that there was an apparent error in calculation of loss payable under the Floater Policy at Rs.10,57,957/- which works out to Rs.24,84,268/-. According to the Complainant, due to the said error in the calculation of the total amount payable have been worked out at Rs.59,41,787/- instead of Rs.74,06,022.  It is submitted that in spite of furnishing all details the Opposite Party was reluctant to look into the error made by it and settled the genuine claim and therefore, the Opposite Party is guilty of deficiency in service.  The Complainant has therefore, suffered grave loss and hardship, for no fault on his part.  The Complainant has therefore, approached to this Forum for the relief’s claimed in Para 1 of this order and prayed for granting the same in its favour. 

 7)        The Opposite Party contested the claim by filing written statement. It is contended that the Complainant insured the specific Fire Policy for Rs.50 Lacs on 01/04/2002 which was valid upto 31/03/03 for the material stored at the godown of which address was mentioned in the said policy.  It is alleged that on 30/04/2002 the Complainant had taken another Floater Policy for the materials stored in various godowns for sum of Rs.27 Lacs and the same was valid upto 29/04/03. On 21/04/03 the Complainant submitted claim from for estimated loss of Rs.87 Lacs due to damage caused to the material at Bhiwandi godown as the fire broke out on 08/03/02 i.e. within validity period of above mentioned policies.  It is submitted that the Opposite Party  upon receipt of claim form immediately appointed M/s. J. Bashir Associates Ltd. as their Surveyor with instructions to survey and inspect the godown mentioned in the claim form and submit the inspection report. The said Surveyor surveyed and inspected the godown of the Complainant at Bhiwandi in presence of 1) Mr. Jayesh V. Mehta, Owner of the Complainant, 2) Mr. Rajendra B. Ghanekar, Representative, 3)Mr. J. Bashir, Chief Surveyor of M/s. Bashir & Associates and Mr. B. Singh and Sameer Desai, Surveyors of the J. Bashir & Associates and submitted report on 23/04/03 and copy of the same was forwarded to the Complainant.  It is contended that thereafter on receipt of Addendum Report from aforesaid Surveyor on 06/10/2003 in respect of fire damage to the goods and chemicals stored in the Complainant’s godown at Bhiwandi the report in respect of the same was sent to Regional Claims Committee of Opposite Party comprising of three Managers of Regional Office No.1 by D.O.No.111300, for settlement of the Complainant’s claim. The Regional Committee confirmed the net amount of loss as mentioned in the Addendum Report of Surveyor to the tune of Rs.59,72,957/-.

8)        It is contended that the Regional Claims Committee had approved the claim of the Complainant to the tune of Rs.59,41,787/- by deducting salvage value and permitted excess on 15/10/03.  The Complainant received claim by two cheques on 17/10/03 for Rs.49,49,000/- and Rs.9,92,787/- and had given discharge for the claim settled by the Opposite Party.  The copies of the said discharge vouchers are marked at Annexure 1 & 2.  It is contended that thus, the Complainant is estopped from demanding any enhance claim on the ground of mistake in calculation as alleged in the complaint.  It is contended that the calculations arrived at by the Complainant are based on wrong formulated calculation which is apparent from the clause no.3 of the clause attached to the said declaration and floater policy. It is denied that the Complainant is consumer in view of the ruling relied upon in the complaint.  It is denied that the Opposite Party is guilty of deficiency in service and unfair trade practices. It is denied that the Opposite Party failed to furnish the copy of the survey report to the Complainant.  It is contended that the representative of the Complainant before accepting the cheques had visited the office of the Opposite Party on several occasions and had taken inspection/report as well as the xerox copy of the same.  It is contended that at the time of executing disbursement voucher and accepting the cheques the representative of the Complainant who had accepted the cheques had not lodged any protests with the Opposite Party.  It is contended that the amount which has been calculated by the Opposite Party is as per the correct formula of calculating the loss under the Floater Policy.  It is contended that the calculations arrived by M/s. Mehta and Padamsey Pvt. Ltd., is based on wrong calculation and the same is erroneous one.  It is denied that the Opposite Party is liable to pay differential amount of Rs.14,64,235/- and other reliefs.  It is denied that the Opposite Party is guilty of deficiency of service.  The Opposite Party has prayed for dismissal of claim made in the complaint alongwith cost.

 9)        The Complainant has filed the affidavit of Shri. Jayesh Mehta, Partner of the Complainant to prove the claim.  The Opposite Party also filed affidavit of S.N. More, Divisional Manager.  Both the parties also filed affidavit of their Surveyor’s  i.e. J. Bashir the Surveyor of the Opposite Party and Saumil Mehta – Director of M/s. Mehta & Padamsey Pvt. Ltd. of whose expert opinion is submitted by the Complainant.  Both the parties filed their written arguments and relied the various judgments in support of their contentions.  We heard the Ld.Adv.Smt. Rashmi Manne for the Complainant and Ld.Adv.Shri.Prakash Bhaud, for the Opposite Party.

 10)      The case made out by the Complainant that the Complainant is a consumer within the meaning and definition of consumer under the Act, in our view is covered in view of the decision of the Hon’ble National Commission in the matter of Harsolia Motors V/s. National Insurance Co. Ltd. reported in I (2005) CPJ 27 (NC), wherein it is held that contract of insurance generally belongs to general category of contract of indemnity, services may be for any connected commercial activity.  In the said case it is also held that such services would be within the purview of the Consumer Protection Act and therefore, the Complainant is consumer within the meaning and definition of consumer of the said Act.  We therefore, find that the case made out by the Complainant that the Complainant is consumer within the meaning of the Act and the complaint is maintainable against the Opposite Party is proved by the Complainant.

 11)      In this case it is undisputed that the Complainant had estimated loss to the tune of Rs.87/- Lacs and the Opposite Party had disbursed an amount of Rs.49,49,000/- under the policy covering the stocks of Rs.50/- Lacs vide cheque dtd.17/10/03 and Rs.9,92,787/- under the other Floater Policy covering the stocks of material in various godown for Rs.27/- Lacs.  The Opposite Party  has contested the claim on the ground that the payments made by it to the Complainant as above being full and final settlement the present complaint is not maintainable and liable to be dismissed.  While considering the controversy on this point, it is necessary to be seen that on receipt of the cheques dtd.17/10/03 the Complainant had asked the Opposite Party  to sent the Complainant working report with breakup and the copy of he survey report vide letter dtd.21/10/03 which is Annexure ‘6’ to the complaint.  The Opposite Party  by letter dtd.06/11/03 i.e. as per Annexure ‘7’ submitted the assessment made by the Surveyor on the basis of stock statement submitted by the Complainant. The Complainant then by letter dtd.19/01/04 protested the assessment of the loss mentioned by the Opposite Party  in the letter dtd.06/11/03 vide Annexure “8’ and claimed the differential amount of Rs.14,66,056/- by giving specific explanation.  The Opposite Party  by letter at Annexure ‘C-9’ dtd.09/02/04 informed the Complainant that the Opposite Party  had already settled the claim after receiving the voucher, duly discharged by the Complainant towards full and final settlement of the claims.  The Opposite Party also informed that therefore, the question of balance payment does not arise.  The said letter is at Annexure ‘C-9’. In view of this correspondence it is necessary to be seen that the claim vouchers which are placed on record by both the parties do not indicate that whether the amount paid by the Opposite Party to the Complainant is towards full/partial satisfaction of the claim made by the Complainant.  On the said vouchers neither the Opposite Party had specifically mentioned that the payment made under the said vouchers were made to the Complainant towards full satisfaction nor the Complainant had noted on it that it is accepted towards partial satisfaction. On perusal of the two vouchers under which the Opposite Party alleged that the said payments have been accepted by the Complainant as full satisfaction of the claim cannot be accepted as there is no specific mentioned to that effect on the said vouchers.  Furthermore the Complainant immediately on 21/10/03 had called upon the Opposite Party to give working report with breakup and also called upon the Opposite Party  to furnish the copy of the Survey Report.  It is pertinent to note that the Opposite Party by letter dtd.06/11/03 had submitted the details of the assessment on the basis of stock statement submitted by the Complainant, however, the Opposite Party  did not submit the survey report alongwith the said letter to the Complainant.  The survey report dtd.05/09/2003 and nor of the date 24/04/2003 as contended in written statement is placed on the record by the Opposite Party in this proceeding. In the said survey report on page 29 & 30 the loss of assessment, material covered under Fire Policy, material covered under Floater Policy have been specifically noted by the Surveyor. According to the Surveyor, he had recommended an amount of Rs.49,15,000/- under the Fire Policy and an amount of Rs.22,32,662/- towards Floater Policy.  He had estimated net amount of loss payable to the tune of Rs.71,47,662/- in favour of the Complainant.  However, the Opposite Party made payment of Rs.49,49,000/-under Fire Policy and Rs.9,92,989/- under Floater Policy. The Opposite Party has filed on record the addendum report of J.Bashir and Associates Surveyors Pvt. Ltd. dtd.06/10/03 from which it appears that the said addendum report was submitted in accordance with the discussion with Mr. Vishwanathan, Administrative Office of the Opposite Party, dtd.01 & 03/10/03.  In the said report the said surveyor for the reasons mentioned in the addendum report had suggested to pay an amount of Rs.50/- Lacs under specific policy insured for Rs.50/- Lacs and an amount of Rs.10,27,057/- payment under Floater Policy.  The said Surveyor  also suggested to deduct an amount to the tune of Rs.75,000/- towards salvage and Rs.10,000/- as deductible excess and suggested to pay Rs.59,72,957/-. However, it appears that the Opposite Party made total payment under both the policies to the tune of Rs.59,41,787/- by showing an amount of Rs.31,170/- is also recoverable towards premium for reinstatement of sum insured from the date of loss to expiry of policy on assessed amount.  It is also brought on record by the Opposite Party vide Annexure ‘4’ to the written statement that the Regional Claims Committee vide their report dtd.07/10/03 and the letter dtd.15/10/036 as Annexure 5 to the written statement had approved the claim under both the policies to the tune of Rs.59,72,957/- and did not considered the recovery of Rs.71,170/- as shown in Annexure ‘7’ to the written statement.  Thus, it appears that the claim amount paid to the Complainant appears to have been considered by different authorities on different basis of the Opposite Party.  The Surveyor - J.Bashir filed his affidavit before this Forum and admitted that he had suggested net amount of loss payable under both the policies was to the tune of Rs.71,47,662/-.  In para 8 of his affidavit he has specifically stated that the underwriter of the Company advised to consider each policy independently and carryout the assessment.  He has further stated that accordingly by appreciating the under writers contention he had submitted addendum report dtd.06/10/2003.  In the affidavit of J. Bashir, it is mentioned that the contents of addendum report were discussed at length with Insured (Complainant) Mr. Jayesh Mehta and his Chartered Accountant explaining the reason for addendum report and this was the reason, the Complainant had accepted the quantum so assessed by the Opposite Party without any protest and for whatever may be the reason and the Insured had subsequently resorted to file the complaint against the Opposite Party, itself cannot be believed as till filing of the complaint the Opposite Party did not provide the copy of the survey report as well as addendum report to the Complainant.  The Surveyor - J. Bashir in his affidavit though stated that the subsequent survey report was submitted without pressure from the officers of the Company, in our view the said submission made in his affidavit also cannot be accepted. As in the addendum report there is specific mention about the discussion with Mr. Vishwanathan, Administrative Officer of the Opposite Party on 01 & 03/10/2003.  Furthermore in the said addendum report there is no mention that the said addendum report was prepared by discussing the contents of it with the Complainant and his Chartered Accountant.  Considering this facts we are of the view that the Opposite Party had tried to bring various amounts as mentioned above payable to the Complainant and lastly paid total amount to the tune of Rs.59,41,787/- for the loss sustained by the Complainant under both the policies which can be said arbitrary and by creating certain record in favour of the Opposite Party through its Surveyor.  We therefore, hold that the contention raised by the Opposite Party  that the Complainant had accepted an amount of Rs.49,49,000/- and Rs.9,92,787/- towards full and final settlement cannot be accepted as the Complainant had made certain queries and also requested to pay differential amount by the Opposite Party by submitting specific reasons and details. The Complainant has also placed on record the Survey Report prepared by M/s. Mehta and Padamsey Pvt. Ltd., at Annexure ‘C-12’ to the complaint in which it appears that the said company being International loss adjustors had considered the net loss sustained by the Complainant to the tune of Rs.74,06,022/-.  In our view the amount of loss arrived by M/s. Mehta and Padamsey Pvt Ltd. and by the Surveyor of Opposite Party  J. Bashir vide his report is of similar amount.  In the report of J. Bashir dtd.05/09/03 which is placed on record in this complaint wherein he had assessed loss under both the policies to the tune of Rs.71,47,662/- and held that the said amount of loss is payable to the Complainant and in the report of M/s. Mehta and Padamsey Pvt. Ltd. the loss sustained by the Complainant has been assessed to Rs.74,06,022/-. The Complainant has also filed the affidavit of Mr. Saumil Mehta, the Director of M/s. Mehta and Padamsey Pvt. Ltd., who has affirmed that in the opinion of their company the loss payable by the Opposite Party has been worked out as Rs.74,06,022/- and the contents of the report submitted by their company are true and correct.  Considering these facts we hold that the amount which was paid by the Opposite Party  to the Complainant under the cheques dtd.17/10/03 cannot be held paid as full and final settlement towards the claim lodged by the Complainant or accepted by the Complainant towards full satisfaction. The submissions therefore, made by the Advocate of the Opposite Party in our view cannot be accepted.  The authorities relied by him in the case of Shri. Venkateshwara Syndicate V/s. Oriental Insurance Co. Ltd., (2009) 8 Supreme Court cases and Branch Manager, The New India Assurance Co. Ltd. V/s. Hemant Anant Khanvilkar, 2012 (6) all M.R. (General) 44 have gone through by us. In our view the observations in the said authorities are not at all applicable to the facts of this case.  We also hold that the authorities relied by the Ld.Advocate for the Complainant reported in the case of Pankaj Varity Hall V/s. Oriental Insurance Co. Ltd., I (2008) CPJ 4 (NC) and in the case of Oriental Insurance Co. Ltd. V/s. The Government Tool Room and Training Centre, of F.A.No.383/2005 decided by the Hon’ble National Commission on 17/05/07 and the Oriental Insurance Co. Ltd. V/s. Managing Director Shri. Vithal Sahakari Saakhar Karkhana Ltd., decided the Hon’ble State Commission in F.A.No.284/2011 are also not applicable to the facts of the present case. In view of the aforesaid discussions we hold that the Opposite Party  ought to have considered the net amount payable to the Complainant and earlier recommended by the Surveyor J. Bashir vide his reported dtd.05/09/03 to the tune of Rs.71,47,662/- was just and proper.  In our view the addendum report and the decision taken by the Regional Claims Committee as per Annexure ‘4’ and thereafter, the payment made to the Complainant to the tune of Rs.59,41,787/- as per Annexure ‘7’ appears to be arbitrary, as the Opposite Party tried to get the favourable addendum report to suit its estimation of loss of stock in the fire incident which according to us is illegal and shatters the confidence and trust of the people on the very purpose of the insurance. We therefore, find that the payment made by the Opposite Party of Rs.59,41,787/- to the Complainant under both the policies was not according to the loss assessed by Surveyor - J.Bashir and actual loss sustained by the Complainant but it paid the said amount which was suitable to its estimation of loss of stock in the fire incident.  In our view the same was not according to the loss sustained by the Complainant and recommended by its Surveyor – J. Bashir vide his report dtd.05/09/03 wherein he had shown net loss payable to the tune of Rs.71,47,662/-.  In our view without providing the copy of survey report to the Complainant, the Opposite Party had come out with the case of addendum report and the decision of Regional Claims Committee.  In our view the said actions and decision of the Opposite Party is nothing but the deficiency in service and the Opposite Party is guilty for the same.  We therefore, hold that the Opposite Party is liable to pay an amount of Rs.12,05,875/- to the Complainant i.e. net loss payable suggested by Surveyor - J. Bashir vide report dtd.05/09/03 Rs.71,47,662/- - Rs.59,41,787/- paid to the complainant under both the policies.  The Complainant is also entitled to interest @ 6%  p.a. on the aforesaid amount from 17/10/03 till its realization.  The claim made by the Complainant of Rs.3/- Lacs being compensation for mental agony, harassment and stress cannot be granted as it is a partnership firm and the complaint is filed by the said firm. In our view the Complainant, however, is entitled for the cost of Rs.10,000/- towards this complaint.  In the result the following order is passed –

O R D E R

i.                    Complaint No.127/2005 is partly allowed against the Opposite Party.

ii.                 It is hereby declared that the Opposite Party is guilty of deficiency in service in granting the amount of loss sustained by the Complainant and is liable to pay differential amount to the Complainant.  

iii.               The Opposite Party is directed to pay an amount of Rs.12,05,875/-(Rs.Twelve Lacs Five Thousand Eight Hundred Seventy Five Only) to the Complainant alongwith interest @ 6% p.a. from 17/10/2003 till its actual payment.

iv.               The Opposite Party is directed to pay an amount of Rs.10,000/- (Rs. Ten Thousand Only) to the Complainant towards the cost of this complaint.

v.                  The Opposite Party is directed to comply the aforesaid order within one month from the date of receipt of this order.

vi.               Certified copies of this order be furnished to the parties.