Complainant Pawan Kumar Proprietor of M/s.Ramesh Cloth House, Gudaspur, vide the present complaint filed U/S 12 of the Consumer Protection Act, 1986 (hereinafter for short The Act) for issuance of the necessary directions to the opposite party no.1 to make payment of full insurance amount i.e. 16 lacs due to fire occurred in the shop due to short circuit of electricity alongiwth interest @ 12% P.A. from the date of suffering loss till actual realization to him. Opposite party no.1 be further directed to pay compensation amounting to Rs.2,00,000/- on account of mental agony, physical harassment and torture caused by the opposite parties for no fault on his part alongwith Rs.50,000/- as litigation expenses, in the interest of justice.
2. The case of the complainant in brief is that he is running business of cloth merchant under the name and style of Ramesh Cloth House at Nangal Kotli Opp.Buttan Wali Gali Gurdaspur. He obtained loan from the opposite party no.2 against the shop and stock lying therein and his entire stock was hypothecated with opposite party no.2. The opposite party no.2 himself got the shop and stock lying therein insured with the opposite party no.1 under Shopkeeper package policy Schedule, he had been making payment of premiums through opposite party no.2 regularly. Hence he is consumer of the opposite parties. The insurance policy was in force from 00:00 of 21/3/2015 to 23:59 of 20/3/2016. His shop was insured for Rs.16 lacs on account of Fire and alliance perils building and content and Rs.16 lacs for burglary and robbery, as fully mentioned in the policy cover note bearing no.2939/52133054/03/000. He has further pleaded that on 9.4.2015 at about 11 p.m. all of a sudden his shop caught fire due to short circuit of electricity connection installed in the shop and his entire stock/articles lying in the shop including some cash, accounts bills, bill books etc. were converted into ashes within no time. In this incident he suffered loss of more than Rs.18 lacs. Publication to this effect was also made in newspapers. The matter was reported to the police and other authorities and DDR no.33 dated 10.4.2015 was lodged at P.S.City Gurdaspur. He made phone call on toll free number of opposite party no.1 and also intimated to opposite party no.2 on 10/04/2015. Opposite party no.1 deputed its surveyor namely Parveen Goyal from Ludhiana who visited the shop on 11.04.2015, who taken photographs of totally burnt stock of the shop, balance sheets, copy of monthly stock statement etc but thereafter he raised illegal demand of bribe amounting to Rs.50,000/- to settle his claim to which he refused and the opposite party left the site without preparing/assessing loss suffered by him. Thereafter he gave intimation to the opposite party no.1 on the same day regarding act and conduct of their deputed surveyor Parveen Goyal. A Surveyor namely Arun Kumar from Jalandhar was again deputed by the opposite party no.1 who visited his shop on 18.4.2015, after making him repeated requests to visit his shop and assess the loss and settle his claim in time who also took the photographs and obtained balance sheets etc. and left the spot with assurance that he will get full insured amount within fifteen days as he had suffered a total loss, but later on he also connived with above said Parveen Goyal and did not take any action into the matter till today he has suffered loss more than 18 lacs. He has further pleaded that his shop lying closed for a period of more than 3 months continuously due to financial crunch and during this period he approached the opposite parties number of times and requested to settle his claim and to pay the amount of insurance for the loss suffered by him, but all in vain. Thus, there is deficiency in service on the part of the opposite party. Hence this complaint.
3. Upon notice, the opposite party no.1 appeared through its counsel and filed its written version taking the preliminary objections that the complainant has no cause of action to file the present complaint; the complainant does not fall within the definition of consumer. The complainant is running business for commercial purpose and as such does not fall within the definition of consumer; there is no deficiency in service on the part of the opposite party and the complaint of the complainant is not within limitation. On merits, it was submitted that the claim has been filed and the alleged loss has been reported. As per information provided the fire took place on 9.4.2015 and the intimation given on 15.4.2015 and the surveyor has been appointed by the insurance company on the same day i.e. 15.4.2015. The surveyor Arun Kumar and company have been appointed to assess the loss. The survey has been duly conducted on 18.4.2015 and surveyor duly submitted his report. From the perusal of the survey report it becomes clear that complainant failed to supply relevant documents. The reminders dated 28.4.2015, 28.5.2015, 11.6.2015 and 15.7.2015 has been sent by the surveyor in which he made demand of some documents which are very much required for proper assessing the loss. In the letter dated 15.7.2015 it has been duly mentioned that no books of account have been produced for verification, and sales bills, further in his letter it has been duly mentioned that ‘our C.A. is of the opinion that without support of financial documents we cannot rely on closing stock submitted by you’. In the letter it has been duly mentioned that in the absence of these documents they left with no option except to assess the loss only on the basis of physical inventory of stock done by surveyor during their visit to the premises. Even the consent has been requested by them from you for finalize the survey report but inspite of all no such formalities have been completed by you. The surveyor afterward submitted his report on the basis of which the registered letter dated 1.8.2015 has been sent to the complainant and due to the non submission of documents it has been clearly mentioned to send the documents within 10 days. So it is the complainant who is at fault and failed to provide the relevant documents. It was further submitted that the surveyor has submitted his report and as per his report the gross assessed loss Rs.1,96,670/- and there is excess clause of Rs.10,000/- which has been deducted and the net payable amount is Rs.1,86,670/-. So the liability if any is as per survey report. All other averments made in the complaint has been vehemently denied and lastly prayed that the complaint may be dismissed with costs.
4. Upon notice, the opposite party no.2 appeared through its counsel and filed its written version submitting therein that the opposite party has no personal knowledge about the time of occurrence of incident and about the loss to the complaint, but the opposite party only received information on 10.4.2015 from the complainant regarding occurrence and loss. Rest of the averments of the complaint have been denied and dismissal of the complaint has been prayed.
5. Counsel for the complainant tendered into evidence affidavits of complainant Sh.Pawan Kumar Ex.CW1/A, of Sh.Ramesh Kumar Ex.CW2/A and of Sh.Satinder Kumar Ex.CW3/A alongwith the other documents exhibited as Ex.C1 to Ex.C9, Ex.C-11 to Ex.C31 alongwith CD Ex.C10 and closed the evidence.
6. On the other hand, counsel for the opposite party no.1 tendered into evidence affidavit of Piyush Shankar Ex.OP1, alongwith the other documents Ex.OP2 to Ex.OP33 and closed the evidence.
7. Counsel for the opposite party no.2 tendered into evidence affidavit of Sh.Anoop Mahajan Branch Manager Ex.OP-2/1 and closed the evidence.
8. We have thoroughly examined the available documents/evidence on the records so as to interpret the meaning and purpose of each document and also the scope of adverse inference on account of some documents ignored to be produced by the contesting litigants against the back-drop of the arguments as put forth by the learned counsels for their respective contestants. We find that the present dispute has arisen on account of the alleged ‘delay & non-settlement’ of the insurance-claim (by the OP1 insurers) as filed by the present complainant pertaining to the alleged ‘total-loss’ incurred to the ‘insured’ stocks as a result of the ‘fire-incident’ of 09.04.2015.
9. We find that the complainant firm had availed of ‘credit/finance’ against the hypothecation of its saleable stocks that were also insured for Rs. 16.00 Lac (Ex.C1) against the usual risks of Fire & Allied perils by the OP2 Bank with the principals (the OP1 insurers) in the capacity of its ‘corporate agents’. Incidentally, the insured stocks were lost in ‘fire’ and the related ‘claim’ was filed along with the supporting evidentiary documents as also produced herein as Ex.C2 to Ex.C31. However, the two surveyors as assigned by the OP1 insurers did neither approve the alleged fire-loss nor could produce any cogent reasons to reject/disapprove the same but somehow reduced (though arbitrarily) its quantum from the ‘total-loss’ to a meager sum of Rs.1,86,670/-. The related survey reports Ex.OP13 & Ex.OP14 do not even honor the stock statements Ex.C2 to Ex.C4 (for the months of January’ 2015 to March’ 2015) duly verified by the OP2 Bank (OP1’s own corporate agent) and also arbitrarily rejected many purchase invoices without assigning any good logic. Moreover, the complainant has leveled (though through depositions, only) some serious aspersions upon the working of the ‘designated’ surveyors and as such their related ‘adverse’ reports should not have been accounted for/perused (in the interest of natural justice) while settling the claim, in question. Lastly, we find that the complainant’s last financial statements (unaudited but acceptable to the Income Tax authorities), the last assessment years Income Tax Returns and the last monthly stock-statements (as submitted and verified by the OP2 Bank) are in full cognizing commensuration with the quantized assessment of the ‘stocks’ lost in the accidental fire-incident of 09.04.2015. Further, the Police DDR (Daily Diary Report) # 33 of 10.04.2015, the published ‘news item’ in city edition of the national paper Punjab Kesari, the statement/depositions of on-looker third parties, the recorded CD, duplicate invoices, the fire loss photographs, the exchanged communiqués etc all primarily vouch for the factum of ‘fire’ & collaterally nod to its ‘loss-quantum’. A close perusal of the documentary evidence as produced by the OP1 insurers exhibited here as: Ex.OP2 to Ex.OP33 duly confirms that the factum of the fire-incident and the resultant loss of ‘insured stocks’ has been consentingly admitted with however its ‘quantum of loss’ put under vehement contest.
10. We do not find even a one good reason for the OP1 insurers to follow/ go by the reports of the surveyors rather than ‘accepting’ the verified monthly stock-statements of its own corporate agent (OP2 Bank) taken in its routine stride. The OP1 insurers have also not produced on record any good reason/ acceptable logic for ‘rejecting’ these stock-statements duly supported by the financial statements and ITRs of the complainant firm except the only apparent motive to delay and defer the otherwise a well valid claim. We find the above act of the OP1 insurers as an unfair trade practice coupled with deficiency in service and that renders it liable to an adverse statutory award under the applicable Act.
11. In the light of the all above, we partly allow the present complaint and thus ORDER the OP1 insurers to settle the impugned claim on merits strictly in terms of the related policy in accordance with the IRDA guidelines on ‘settlement of claims’ besides to pay Rs.5,000/- as compensation and Rs.3,000/- as litigation expenses to the complainant within 30 days of receipt of the copy of these orders otherwise the aggregate payable claim amount (after settlement of the claim) shall carry interest @ 9% PA from the date of the orders till actual payment.
12. Copy of the order be communicated to the parties free of charges. After compliance, file be consigned to record.
(Naveen Puri)
President
Announced: (Jagdeep Kaur)
August 03, 2016 Member
*MK*
