BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL COMMISSION, JALANDHAR.
Complaint No.202 of 2018
Date of Instt. 08.05.2018
Date of Decision:31.05.2022
M/s Dynamic Engineering Services, Suchi Pind Road, Near Speedways Factory, Jalandhar & EG-78, Modan House, Ladowali, Jalandhar through its partner Tilak Raj Chugh.
..........Complainant
Versus
1. Universal Sompo Gen. Ins. Co. Ltd., Jalandhar Civil Lines Branch, Jalandhar City.
2. Universal Sompo Gen. Ins. Co. Ltd., Unit No.401, 4th Floor, Sangam Complex, 127, Andheri Kurla Road, Andheri (E), Mumbai-400059.
….….. Opposite Parties
Complaint Under the Consumer Protection Act.
Before: Dr. Harveen Bhardwaj (President)
Smt. Jyotsna (Member)
Present: Sh. Manuj Aggarwal, Adv. Counsel for the Complainant.
Sh. Vikas. K. Gupta, Adv. Counsel for OPs No.1 and 2.
Order
Dr. Harveen Bhardwaj (President)
1. The instant complaint has been filed by the complainant, wherein it is alleged that the complainant Tilak Raj Chugh is a partner of M/s Dynamic Engineering Services, Suchi Pind Road, Near Speedways Factory, Jalandhar and has been authorized to file the present complaint. The complainant is authorized spares & service dealer/channel partners of Kirloskar Oil Engines Ltd., for the districts of Jalandhar, Amritsar & serving locations at Tarn Taran and Kapurthala having their work places at Suchi Pind Road, Near speed Ways Factory, Jalandhar-144001 and at C/o Dharampal, T-12/616, Gali Bherif Ganj Di, Morh Katra Sher Singh, Amritsar. Complainants got insured from the OPs through policy no.2114/56801977/00/000 under Standard File and Special Perils policy and through policy no.2913/56801974/00/000 for Burglary policy for the stock of goods for Rs.65,00,000/- and for office furniture, fixtures and fittings for Rs.4,00,000/-, total sum inured being Rs.69,00,000/- covering both their business locations at Suchi Pind Road, Jalandhar and at Katra Sher Singh Amritsar for the period from 15.12.2016 to 14.12.2017. Unfortunately, a fire broke out at the business location of complainants, at Suchipind Road, Jalandhar on 1st of May 2017 which was duly insured by the OPs. The incident was immediately reported and intimated to the OPs and to the police authorities. The OPs appointed a Surveyor Arun Kumar & Co. to access the loss caused by the fire and the surveyor Arun Kumar visited the spot on 02.05.2017 and physically verified and made inventory of the entire stock of the business at both the locations of Jalandhar and Amritsar at Rs.68,11,979/- which is duly mentioned in his survey report dated 15.07.2017. Complainants registered a claim of Rs.35,06,946/- on account of damage of good, with OPs for the damage caused by fire. However, the Surveyor Arun Kumar arbitrarily declared some stock to be dead and obsolete stock without considering complainants version regarding the same and further he also assessed the partial loss of some items as per his own terms and conditions and the Surveyor Arun Kumar finally assessed the loss at Rs.24,12,268/- as per his final survey report dated 15.07.2017. It is pertinent to mention here that complainants assessed the total loss at Rs.35,06,946/- and the surveyor assessed the total loss at R.24,12,268/- as per his own rule, terms and conditions without considering the papers and documents submitted by complainant and complainant only accepted the final claim at Rs.24,12,268/- to avoid any litigation and dispute as complainant wants to amicably settle the claim. It is necessary to mention here that complainants only accepted the final claim at Rs.24,12,268/- so as to settle their claim amicably and quickly, so as to start their regular business operations smoothly and to curtail any further loss of business/working. To utter surprise of complainants, the OPs further reduced the claim amount and released only Rs.18,46,061/- against final settlement of Rs.35,06,946/- of complainants, by further reducing the claim on flimsy and irrational grounds. As per rules a period of 30 days is prescribed as a standard for settling the loss, where as OPs unnecessarily delayed the settlement on vague excuses and finally released Rs.18,46,061/- on 01.01.2018, where as the incident took place on 01.05.2017 and the surveyor submitted his final survey report on 15.07.2017, so the delay of nearly six months is unexplained and unjustified for which interest and damages has to be paid to the complainant as per norms. Even the said amount deposited in the bank account directly and no reason was explained about the other deduction till the complainant did not call the same. Even no summary was supplied before depositing the amount into the bank account of the complainant.
2. The act and conduct of the OPs amounted to gross negligence in services. Due to that the complainant had suffered huge business losses and was burdened with the loss of business and working and as such necessity arose to file the present complaint with the prayer that the complaint of the complainant may be accepted and OPs be directed to release pending claim amount of Rs.16,60,885/- alongwith damages to the tune of Rs.2,00,000/- in lieu of harassment suffered by complainant and Rs.21,000/- as litigation expenses.
3. Notice of the complaint was given to the OPs, who filed reply and contested the complaint by taking preliminary objections that the present complaint is not maintainable under any provision of law against answering OP and is liable to be dismissed with heavy cost. It is further averred that there is no negligence and unfair trade practice on the part of the answering OP which brings the present complaint adjudicable by this Commission. Hence the present complaint is liable to be dismissed. This Commission has got no jurisdiction to try and entertain and decide the present complaint. It is submitted that complainant is a firm and has obtained the preset insurance for the commercial purpose as such this Commission has got no jurisdiction to try, entertaining and deciding the present complaint. The contract of insurance is entered upon between the parties on the basis of certain terms and conditions as mentioned in the insurance policy and terms and conditions of the insurance policy and in case any issue is to be decided then the same is to be decided on the basis of agreed terms and conditions of the insurance policy. It is further averred that this Commission has got no pecuniary jurisdiction to try, entertain and decide the present complaint. It is further averred that after receipt of claim intimation answering OP has appointed the IRDA Licensed Surveyor M/s Arun Kumar and Co. to access the loss of the complainant. After going through the documents submitted by the complainant and stock statements and physical verification of the stocks the surveyor has initially assessed the net loss amounting to Rs.24,12,268/ vide its survey report dated 15.07.2017. After going through the same the answering OP asking for some queries and clarification vide the email dated 05.09.2017 and agreeing with the same the surveyor revised the accessed loss to Rs.21,12,865/-. The surveyor has assessed the loss on the basis of his physical inspection and trading account of the insured as on the date of loss. The value at risk considered by the surveyor is as per the closing stock statements the provisional trading account as on the date of loss. The Surveyor has deducted Rs.10,000/- on account of excess clause where as the answering OP has deducted 5% from the assessed amount as per excess clause as per the policy terms and conditions. Hence the answering OP has assessed the loss Rs.16,34,541/- and in the statement the answering OP deducted Rs.2,58,998/- from the gross assessed loss towards VAT of 12.5% on the damaged item. On merits, it is admitted that the complainants got insured from the OP under Standard Fire and Special Perils Policy, but the other allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits, the same may be dismissed.
4. In order to prove the case of the complainant, the counsel for the complainant tendered into evidence affidavit of the complainant Ex.CA alongwith documents Ex.C-1 to Ex.C-37 and closed the evidence.
5. In order to rebut the evidence of the complainant, the counsel for the OPs No.1 & 2 tendered into evidence affidavit Ex.OPA alongwith some documents Ex.OP-1 to Ex.OP-9 and closed the evidence.
6. We have heard the learned counsel for the respective parties and have also gone through the case file very minutely.
7. The contention of the Ld. Counsel for the OP is that the present complaint is not maintainable as the complainant is not a consumer, but this contention is not tenable. Section-2 (1) (d) of Consumer Protection Act, 1986 and Section 2 (7) of Consumer Protection Act, 2019 deals with the meaning of consumer, which are as under:-
(d) “consumer” means any person who,—
(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment, when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or
(ii) [hires or avails of] any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who [hires or avails of] the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person [but does not include a person who avails of such services for any commercial purpose];
8. As per law laid down by the Hon’ble Supreme Court in a Civil Appeal No.1042 of 2020, date of decision 06.02.2020, titled as “Canara Bank Vs. M/s United India Insurance Col Ltd. & Ors.”, that the definition of the consumer under the Consumer Protection Act is very wide and it not only includes the person, who hires or avails of the services for consideration, but also includes the beneficiary of such services who may be a person other than the person who hires or avails of services. In the present case, the complainant has got the insurance, under standard fire and special perils policy. Unfortunately the fire broke out and the complainant suffered loss. Tilak Raj, being partner of the M/s Dynamic Engineering Services, filed the present complaint as the claim registered by the complainant for the damages caused due to fire was partially released out of Rs.35,06,946/- and not completely. The complainant accepted the claim for Rs.24,12,268/-. The OPs have paid Rs.18,46,061/- and the claim pending is for Rs.16,60,885/-. Since the services of OPs were availed by the complainant, hence the complainant is consumer and the complaint is maintainable. The complainant has challenged the change in assessment of loss by the OPs alleging the same to be deficiency in service and unfair trade practice.
9. The allegations of the complainant are that the trading account of the complainant was reconstructed as on the date of loss taking average of the GP ratios of the previous four years in two accounts. The value at risk and consequential under insurance calculated by the Surveyor was changed. The Surveyor had deducted Rs.10,000/- on account of excess clause whereas the OPs have deducted 5% from the assessed amount as per excess clause and after deducting the Rs.2,58,998/- from the assessed loss amount arrived at Rs.18,48,323/-, the total loss was assessed as Rs.16,34,541/-, but the complainant has disputed the VAT of 12.5%.
10. Ex.OP-3 is the Fire Survey Report of the Surveyor namely Arun Kumar & Co. who, while assessing the loss has considered the value of the insured stock before the occurrence, cause of loss, parameters of assessment, in which he has categorically mentioned that purchased price of stock was taken into consideration while assessing the loss and he has physically verified the stock at both the locations of the complainant’s business, to check adequacy of sum insured. He has also mentioned about the obsolete stock @ 05% in the final assessment for the purchases of 2015 onwards, damaged stock was also bifurcated into two categories i.e. total loss/burnt stock & partial loss, which was reusable after allowing some discount. He has also assessed the extent of damages and ultimately after verifying each aspect of the loss, net loss was assessed by him was Rs.24,12,268/- and the same was recommended subject to the terms and conditions of the policy. In letter dated 14.07.2017 Ex.OP-4, the complainant has accepted the assessment of the fire claim to the extent of Rs.24,12,268/-. Vide email dated 05.09.2017, the Surveyor Arun Kumar was asked to review the assessment alleging that he has allowed more than that of the total stock alleged by the complainant and vide Ex.OP-5, the surveyor reassessed the loss and the revised assessment was arrived at by the Surveyor was Rs.21,12,865/- and the OPs assessed the loss and adjusted the same as Rs.18,48,323/-. The Surveyor, on the receipt of the email from the OP reassessed the loss without giving notice to the complainant and without hearing him and in his reassessment of the loss, he has simply stated that they give the revised assessment as mentioned in Ex.OP-5. No reason has been mentioned by the Surveyor as to where was the fault in previous assessment of the loss and on what grounds, he has given the revised assessment and how he has calculated the dead stock and less amount and why did he assess the loss to the extent of Rs.24,12,268/- earlier. Nothing has come on the record. He has given the revised assessment of his own without hearing and giving opportunity to the complainant, which is unfair trade practice. Even while sending the email to the Surveyor, it has not been mentioned by the sender as to how he has come to the conclusion that he has allowed more items than that of the total stock as per the stock statement as on the date of loss, whereas the Surveyor has physically verified and calculated and counted each and every stock and has bifurcated the stock also as per his assessment report. No opinion of any technical expert was called while reaching to the conclusion that Arun Kumar Surveyor has wrongly assessed the loss vide Ex.OP-3 Rs.24,12,268/-. Nothing has come on the record for reassessing the loss again. Once the Surveyor of the OP has assessed the loss to the extent of Rs.24,12,268/-. Just to avoid the payment to the complainant for the loss suffered by him, the surveyor was asked to reassess the stock and the loss. Since, nothing has come on record justifying the reassessment in the absence of the complainant, this tantamounts to deficiency in service. Thus the loss assessed by the Surveyor as Rs.24,12,268/- was a genuine as per record. Rs.18,46,061/- have already been paid by the OPs to the complainant.
11. In the light of above detailed discussion, the complaint of the complainant is partly allowed and OPs are directed to refund the remaining amount i.e. Rs.5,66,207/- (Rs.24,12,268/- which was assessed by the Surveyor – Rs.18,46,061/- which was already paid by the OPs to the complainant) to the complainant. Further, OPs are directed to pay a compensation of Rs.15,000/- for causing mental tension and harassment to the complainant and Rs.7000/- as litigation expenses. The entire compliance be made within 45 days from the date of receipt of the copy of order. This complaint could not be decided within stipulated time frame due to rush of work.
12. Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.
Dated Jyotsna Dr. Harveen Bhardwaj
31.05.2022 Member President
