The present complaint has been registered here in the commission in compliance to the orders dated 11.01.2019 of the honorable National Consumer Dispute Redressal Commission, New Delhi; pronounced vide its judgment of (even date) in Revision Petition No. 1328-1329 of 2015 against the orders dated 12.01.2015 in First Appeal No. 220/2014 & 321/2014 of the honorable Pb. State Consumer Disputes Redressal Commission, Chandigarh; against the orders dated 28.11.2013 of District Consumer Disputes Redressal Commission (then addressed officially as 'Forum'), Gurdaspur in Consumer Complaint # 377 of 2012 filed on 10.09.2012 by the present complainant Sh. Vipan Kumar against i) M/s United India Insurance Co. Ltd., Batala, the OP1 insurer and ii) State Bank of Patiala, Qadian, the OP2 Bank; alleging upon them an unfair, arbitrary repudiation of an otherwise valid fire-loss 'insurance-claim' just to camouflage their own negligence and prompt of resultant anomalies during the course of purchase of insurance by the OP2 bank from the OP1 insurer to cover the complainant owned assets as were duly financed by the OP2 Bank.                                                 

2.         The complaint was partly allowed by the commission (then 'forum') directing both the opposite parties to pay Rs.3.50 Lac to the complainant compensating his fire-caused 'loss', jointly, severally and/or co-extensively. Feeling aggrieved at the orders (28.11.2013), both the opposite parties (the Bank as well as the Insurer) preferred two separate appeals nos. 220/2014 and 321/2014, respectively; before the honorable State Commission who allowed both the appeals setting aside the forum's impugned orders vide its orders dated 12.01.2015.

3.        Upset at the above State Commission's orders (12.01.2015), the complainant filed two nos. of Revision Petitions No. 1328, 1329 of 2015 before the honorable National Consumer Disputes Redressal Commission, New Delhi. The National Commission vide its common Judgment dated 11.01.2019 did finally absolve the OP1 insurer of all its liability under the two nos of policies. However, the honorable Commission probing and proceeding ahead with its judgment did find the OP2 Bank liable as:

          “It is therefore evident that the Bank was deficient in    rendering service to the petitioner/complainant as it had obtained policy in respect of a wrong building though the premium for the said policy was charged by it from the petitioner/complainant by debiting the same to his account. The Bank therefore must necessarily compensate the petitioner/complainant for the loss suffered by him as far as the damage to the commercial building at White Avenue is concerned with the said liability cannot in any case,     exceed Rs.3.5 Lac. As far as stock kept in the said commercial building is concerned, the bank was not under an obligation to get the same insured”.

          The honorable National Commission proceeds further as:

“No evidence was led by the complainant to prove the actual loss on account of damage to the commercial building at White Avenue. The surveyor appointed by the insurer also did not make an assessment of loss in respect of damage to the said building. 

Therefore it becomes imperative to remit the matter back to the District Forum to determine the loss suffered by the petitioner/complainant on account of damage to the commercial building at White Avenue in which the incident of fire took place on 02.02.2011. The parties i.e., the petitioner/complainant and respondent State Bank of India are directed to appear before the concerned District Forum on 12.02.2019”.    

          The Judgment proceeds further with its directives as:

“The District Forum shall thereafter proceed to determine the loss  suffered by the complainant on account of damage to the commercial building at White Avenue, Qadian and award suitable compensation to the petitioner/complainant in the light of this order, after giving opportunity to both the parties to lead evidence as regards the loss on account of the said damage. The insurer United India Insurance Co. Ltd. would not be a necessary party to the said proceedings and its name is therefore deleted from the array of parties.  Both the revision petitions stand disposed of accordingly”.                 

4.        We, at the District Commission, in respectful compliance of the honorable NCDRC orders admitted/registered the present complaint to determine the loss suffered by the complainant on account of damage to his building at White Avenue, Qadian and award him a suitable compensation, in line with the directives of the honorable Commission. The complainant appeared through his counsel on 12.02.2019 before us in compliance to the NCDRC orders. However, the opposite party i.e., State Bank of India (the erstwhile State Bank of Patiala - the OP2) failed to cause appearance and thus summons were issued and the OP Bank appeared on 19.03.2019. Both the parties were provided with ample opportunity to produce their respective assessment/ pleadings along with evidence/arguments pertaining to 'damage' suffered/loss caused to the complainant's building at White Avenue, Qadian, in the fire-incident of 02.02.2011.               

5.        The complainant sought but could not avail of the four nos. of opportunities: (on 19.03.2019, 09.04.2019, 23.04.2019 and 06.05.2019) before he finally concluded his evidence on 21.05.2019 by filing his affidavit Ex.Cw1/A along with other evidentiary documents/ receipts, in support of his fire-loss assessment @ Rs.3.88 Lac besides   seeking interest (on this amount of assessed loss) @ 18% PA in addition to cost of litigation @ Rs.165,000/- (from the District Forum to NCDRC - from 2012 to 2021, and still continuing) and Rs.50,000/- as compensation for having suffered harassment, torture and financial loss at the hands of the opposite parties for nine years, in row.              

6.         In turn, the opposite party Bank concluded its evidence on 16.12.2019 by filing the lone Affidavit Ex.OP2/1 of Sh. Abhinav Shukla, its Branch Manager having failed to utilize the earlier eight nos. of opportunities adjourned to 18.06.2019, 29.07.2019, 20.08.2109, 09.09.2019, 24.09.2019, 14.10.2019, 05.11.2019 and 25.11.2019.   

7.        Although, the complaint was first listed for arguments on 27.01.2020 but it was only on 08.09.2021 that the complainant filed his written arguments made mandatory U/ Regulation 13(2) of Consumer Protection Act (Consumer Commission Procedure) Regulations, 2020. However, the OP Bank continuously omitted to file its written arguments and finally on 19.05.2022, we heard oral arguments both the parties, as duly presented forth by the learned advocates for their respective sides.

8.        In brief, the complainant has deposed in his affidavit Ex.Cw1/A that he had spent an amount of Rs.388,361/- in all on the repairs of the damaged building and renovation cum replacement of burnt/ damaged furniture n fixtures. He has further bifurcated the expenses into i) Rs.152,591/- cost of materials used for repair of wall, staircase, supporting beams evidenced by purchase bills Ex.C1 (Saria- Steel Rods Bill Rs.19,741/- 22.02.2011), Ex.C2 (Cement –Rs.51,800/- 25.02.2011), Ex.C3 (Sand – Rs.30,250/- with Bajri etc. - 24.02.2011) and Ex.C4 (Paints and Colors Rs.50,800/- 04.04.2011);

ii) Rs 77,000/- Ex.C5 (Labor Bill 26.03.2011); iii) Rs.10,170/- Ex.C6 (Electrical items Bill 05.06.2011) and so on up to Ex.C11 aggregating to Rs.388,361/-.      

9.        Thus, we observe that the complainant has with cogent documentary evidence by way of 'receipts' dating back to the year 2011 (year of fire-loss n subsequent repairs) has put forth before us the much-hunted figure @ Rs.388,361/-. On the other hand, the OP Bank has filed its lone affidavit through Branch Manager Sh. Abhinav Shukla deposing therein that no such-loss was ever suffered by the complainant and he has only produced false and fabricated bills. The allegation though duly deposed was not even attempted to get supported by an evidence worth the name. We do find the contents of the said affidavit merely an exercise in futility. Herein, the deponent has unnecessarily precipitated the matter that had already attained/amassed finality in adjudication at the hands of the highest consumer court in the country. Evidently, the OP deponent has been bereft of suitable legal advice.  

10.      We have carefully examined the documents/evidence produced on record (along with the scale and scope of ‘adverse inference’ for those ignored to be produced) in order to determine the respective ‘claims’ as pleaded forth by the opposing litigants in the light of the arguments as advanced by their respective learned counsels representing their respective sides.

11.      We observe that the OP Bank has miserably failed to establish its claim of ZERO loss to the complainant on account of the incident of fire at his commercial building in White Avenue, Qadian on 02.02.2011. And, further the OP Bank has not even attempted to prove its allegation of 'false and fabricated' bills produced/ submitted by the complainant. Now reverting back to the issue of 'loss/damage' suffered by the building, in question, in the fire incident of 02.02.2011, we observe that the complainant has very truly and impressively placed on record the details of full amount of Rs.388,361/- spent by him upon repair and renovation of the building after the damage caused to it by the fire incident of 02.02.2011; however, the issue of exact damage caused to the building in terms of financial loss (money) by the fire incident out of the total spent amount of  Rs.388,361/- still stands unattended.

12.      We are inclined to make it pertinently clear here that usually 'repairs' succeeding an accidental damage to an 'immovable' property do include some additional say extra expenses towards additions/alterations/improvements etc and that need be deleted or at least moderated out of total cost of repairs succeeding the accidental damage. Here, we are again faced with the same situation (as was during the trial of this very complaint in the year 2013) of assessment of the quantum of fire-loss. At that point of time we picked-up the fire-brigade's assessment of loss @ Rs.7.0 Lac as our light-house figure and had allowed Rs.3.5 Lac @ 50% moderation as a fair compensation competent to deliver justice to all the parties. However, we respectfully concur with the honorable State Commission's Orders of 12.01.2015 observing therein that Fire-brigade is neither competent nor an authorized agency to assess the fire-losses. Presently, we have the complainant's declaration of repairs along with bifurcations of items/expenses and are thus better equipped to determine the quantum of fire loss to the building, in question. We have scrutinized the bills (Ex.OP1 to Ex.OP11) of repairs amounting to Rs.388,361/- and exclude the bills (exhibiting expenses on somewhat additions/alterations and unrelated items etc.) amounting to Rs.72,570/- (Ex.C6 Rs.10,170/-+Ex.C8 Rs.8,500/- being Electrical Items, Ex.C9 being Fans Rs.7,200/-, Ex.C10 Being Beds Rs.26,400/- and then Ex.C11 Steel Shutter for Rs.20,300/- = Total Rs.72,570/-) and thus finally asses the fire-incident loss (net of salvage) to the building @ Rs.315,791/- that incidentally is well within the liability set at its highest end @ Rs.3.50 Lac by virtue of the NCDRC's Orders (11.01.2019).

13.      Now comes the issue of interest, litigation cost and compensation to the insured/complainant for having suffered pangs of deprivation/violation of consumer rights throughout the long NINE years on all primary and collateral counts. We understand that the honorable National Commission has by virtue of its judgment (11.01.2019) has limited the OP Bank's liability @ Rs.3.50 Lac to cover the direct loss, only. Quote: “As noted earlier, the said liability in any case cannot exceed Rs.3.50 Lac”.

14.      We must understand here as to what the honorable National Commission meant to limit i.e., “... the said liability in any case cannot exceed Rs.3.5 Lac”. The honorable Commission is referring to 'liability' to compensate the 'direct loss' as a result of the fire-incident of 02.02.2011. In, insurance parlance 'liability' is only towards 'direct loss' suffered by/ caused to the insured i.e., insurable loss qua the terms of the related agreement. We see, in general insurance agreements no consequential loss succeeding the primary loss are covered unless specifically mentioned therein. However, the consumer-law jurisprudence that governs the legislated statutes do provide for the consequential losses also that are thus open to and are subject matter of compensation. Here, the honorable National Commission has pronounced its judgment under the legislated consumer-law statute and thus the OP Bank's liability to compensate the consumer for consequential losses stays uncapped. In our considered opinion, the said orders do proceed to limit the OP Bank's liability towards direct-loss as a result of the fire-incident of 02.02.2011 @ Rs.3.5 Lac since the related insurance policy's sum insured (S.I.) stood at Rs.3.5 Lac; and these orders do not include or limit compensation towards consequential damage/loss suffered by complainant and the commission can always proceed ahead to award suitable compensation to the consequential losses succeeding the direct loss.

15.      We observe that the complainant has claimed Rs.165,000/- as cost of litigation and conveyance etc spent in attending the courts. He has religiously/dutifully submitted the details of traveling/rail-ticket receipts as well as the court's adjournments etc.; and has also claimed Rs.50,000/- as compensation. We are again inclined to apply the rule of moderation here as compensation means to lessen/lighten the burden of loss to a certain moderate extent only. The compensation should better be confined within the periphery of moderation lest it may not turn into a retributive penalty marring the career of the delinquent for times to come. The compensation has to be in commemoration with both 'loss' & 'misconduct' to be fair and seem so.

16.      In light of the above findings during the trial held in compliance to the honorable National Commission Orders (11.01.2019) we assess the damage/ loss caused to the Commercial Building owned by the complainant Vipan Kumar at White House, Qadian during the incident of 'fire' on 02.02.2011 @ Rs.315,791/- and thus ORDER the opposite party the erstwhile State Bank of Patiala now State Bank of India, Qadian to pay Rs.315,791/- to the complainant with interest @ 9% PA with effect from date of the fire-incident i.e., 02.02.2011 till paid in totality besides to pay him   a lump sum amount of Rs.100,000/- as cost of litigation and compensation within  45 (forty-five days) of the receipt of certified copy of these orders.                                     

17.     The complaint could not be decided within the stipulated period due to heavy pendency of Court Cases, vacancies in the office and due to pandemic of Covid-19.

18.     Copy of the order be communicated to the parties free of charges. After compliance, file be consigned to record.

                                                       (Naveen Puri)

                                                               President.   

ANNOUNCED:                            (B.S.Matharu)

MAY 19, 2022.                                       Member.

YP.