| Final Order / Judgement | DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, BATHINDA C.C. No. 290 of 04-11-2019 Decided on : 20-05-2022 Rakesh Steels, Bhatti Road, Bathinda through its Prop. Deepak Bansal aged about 35 years S/o Rakesh Kumar R/o H. No. MCB-Z4/05312, Gali No. 1/1, Sarabha Nagar, Main Bhatti Road, Bathinda. ........Complainant Versus The New India Assurance Company Ltd., Divisional Office, Bathinda, through its Divisional Manager The New India Assurance Co. Ltd., Registered Office at New India Assurance Building, 87, Mahatma Gandhi Marg, Fort, Mumbai 400 001.
.......Opposite parties
Complaint under Section 12 of the Consumer Protection Act, 1986 QUORUM Sh. Kanwar Sandeep Singh, President Sh. Shivdev Singh, Member Smt. Paramjeet Kaur, Member Present For the complainant : Sh. Harraj Singh,, Advocate. For opposite parties : Sh. M L Bansal, Advocate. ORDER Kanwar Sandeep Singh, President The complainant Deepak Bansal (here-in-after referred to as complainant) has filed this complaint U/s 12 of Consumer Protection Act, 1986 (Now C.P. Act, 2019, here-in after referred to as 'Act') before this Forum (Now Commission) against New India Assurance Co. Ltd. and another (here-in-after referred to as opposite parties). Briefly stated the case of the complainant is that he is running business under the name & style of M/s Rakesh Steels, at Bathinda which is the Sole Proprietorship concern of Deepak Bansal. The entire business of the said concern is being conducted under the direct control and supervision of Deepak Bansal and present complaint is being filed by the complainant through its Prop. Deepak Bansal and the aforesaid concern is the only source of livelihood for the family of Deepak Bansal. It is alleged that the complainant deals in the sale of G.P. Coil Sheets, CR Sheets, HR Sheets and all type of Iron sheets. The complainant got the stock lying in his premises insured with the opposite parties under Fire & Allied Perils Policy for the period from 6.6.2019 to 5.6.2020 vide Insurance Policy No. 408568 dated 5.6.2019 on payment of requisite premium for sum assured of Rs.65,00,000/-. The officials of opposite party No. 1 assured the complainant that all the risks would be covered under the said insurance policy in case of any type of damage to the said stock lying in the business premises of the complainant in any manner whatsoever including floods. The complainant alleged that during the heavy rains and flood in July, 2019, the water accumulated on Bhatti Road, Bathinda and entered the business premises of the complainant and over flowed in the shop and caused damage to the stock lying in the shop of the complainant. The complainant suffered huge loss of approx. Rs. 19,65,931/- as different kinds of Sheets have been totally spoiled due to flood and accumulation of water in the shop of the complainant. The complainant lodged the insurance claim with the opposite parties on 16.7.2019 and furnished the requisite documents and requested the opposite parties to pay insurance claim on account of loss to the stock. The opposite parties appointed M/s Mittal Independent Insurance Surveyors & Loss Assessors Pvt. Ltd. The Surveyor appointed by the opposite parties inspected the premises and assessed the loss suffered by the complainant and also took photographs of the damaged stock. The said surveyor also demanded certain documents from the complainant including copy of balance sheet and stock statement etc. and the same were duly supplied/furnished by complainant. The said surveyor sent various e-mails to the complainant which were duly replied by the complainant and the documents required by the opposite parties were also supplied but despite that the opposite parties have failed to honour the claim of the complainant. The complainant suffered huge loss of approx. Rs. 19,65,931/- due to the damage to the stock but the opposite parties have failed to settle the claim and are wrongly alleging that the loss suffered by the complainant is not covered under the policy although the same is very much covered under Fire & Allied Perils as the Allied perils covers the losses on account of Flood, Inundation, storm, tempest, Typhoon, Hurricane, Tornado or Cyclone etc., The opposite parties are bound to pay the amount of insurance claim on account of loss suffered by the complainant but the opposite parties have failed to pay any amount to till date. Due to the said act of the opposite parties, the complainant is suffering from great mental tension, agony, botheration, harassment, humiliation and financial loss for which he claims compensation to the tune of Rs. 25,000/-. On this backdrop of facts, the complainant has prayed for directions to the opposite parties to pay Rs. 19,65,931/- being insurance claim of damaged stock and also pay Rs. 25,000/- as compensation in addition to Rs. 5,000/- as litigation expenses. Upon notice, the opposite parties put an appearance through counsel and contested the complaint by filing joint written reply raising legal objections that complaint has been filed by the complainant only to injure the goodwill and reputation of the opposite parties. Even otherwise, the complaint is false, frivolous and vexatious to the knowledge of the complainant. That the intricate questions of law & facts are involved in the present complaint, which requires voluminous documents and evidence for determination which is not possible in the summary procedure under the Act and appropriate remedy, if any, lies only in the Civil Court. That the complainant has concealed material facts and documents from this Commission as well as from the opposite parties. It has been pleaded that the true facts are that on receipt of intimation regarding alleged loss due to heavy rain and accumulation/entrance of rainy water in the premises of complainant, the opposite parties immediately deputed M/s Mittal Independent Insurance Surveyors & Loss Assessors (P) Ltd., Bathinda, who made three visits and inspected the premises of complainant and the alleged loss to the insured articles and ultimately, he after getting all the requisite formalities completed and after the final visit made on 17.10.2019 (inadvertently and oversight and due to clerical mistake the date of final visit has been wrongly mentioned in the report as 27.10.2019 instead of 17.10.2019) submitted his report dated 21.10.2019, which was received by the opposite parties on 22.10.2019. The claim of the complainant is under process, but the complainant without waiting for the reasonable period about the fate of his claim, has filed the present complaint in hurry up manner. According to the report of Surveyors & Loss Assessors, as aforesaid, loss has been assessed on quality allowance basis to 24.50 MT of GP Sheets @ Rs.10/- per kg. and Rs.5.00 per kg. as detailed in the report itself and accordingly the loss was assessed to the tune of Rs.1,80,000/- plus labour charges for salvaging to the tune of Rs.5,000/- minus Excess clause as per policy to the tune of Rs.10,000/-. In this way, the surveyor has assessed the net loss to the tune of Rs.1,75,000/-, which the opposite parties are ready to pay to complainant, but the complainant is adamant to get the claim of entire stock to the tune of Rs.19,65,931/-, which was lying in the premises of the complainant, which is not permissible as per terms & conditions of the policy. Further legal objections are that the present complaint is pre-mature. That the complainant is not consumer as defined under the 'Act' as the complainant has purchased the aforesaid policy for commercial purposes to earn huge profits.. That the complainant has no locus standi or cause of action to file the present complaint and that the complaint is not maintainable in its present form. On merits, the opposite parties have reiterated their version as pleaded in legal objections and detailed above. After controverting all other averments of the complainant, the opposite parties prayed for dismissal of complaint. In support of his complaint, the complainant has tendered into evidence his affidavit (Ex. C-1) and the documents (Ex. C-2 to Ex. C-14). In order to rebut the evidence of complainant, opposite parties tendered into evidence affidavit of Ashish Pal (Ex. OP-1/1), affidavit of Himanshu Mittal (Ex. OP-1/2) and documents (Ex. OP-1/3 & Ex. OP-1/4). The learned counsel for the parties reiterated their stand as taken in their respective pleadings. We have heard learned counsel for the parties and gone through the record. There is no dispute between the parties regarding insurance and flood loss to the stock insured with the opposite parties. The submission of learned counsel for the complainant is that despite submission of all the documents, opposite parties have not honoured the lawful claim of the complainant till date. The complainant has suffered loss to the tune of Rs. 19,65,931/-. Thus, he is entitled to the said loss amount with interest. On the other hand, learned counsel for the opposite parties submitted that after intimation of loss, surveyor Mittal Indepedent Insurance Surveyors & Loss Assessors (P) Ltd., were appointed. The said surveyor has assessed the net loss to the tune of Rs.1,75,000/-, which the opposite parties are ready to pay to complainant, but the complainant is adamant to get the claim of entire stock to the tune of Rs.19,65,931/-, which is not permissible as per terms & conditions of the policy. A perusal of file reveals that Ex. OP-1/3 is the Survey Report of Mittal Independent Insurance Susrveyors & Loss Assessors (P) Ltd., A perusal of survey report reveals that surveyor has discussed the loss in detail. The relevant portion of reports as reproduced as under :- “At the time of first visit the photographs were clicked and the claim was discussed with the insured. The insured was advised to provide the estimate of loss. Accordingly, after few days the insured provided an estimate for Rs. 6,07,000/-. During second and third visit, the detailed inspection of the affected stocks was made and the discussions were held with the insured. Initially the insured wanted the total loss, but it was not feasible. It was observed that the stocks of GP sheets were affected with dirty drainage water. As per estimate, insured has claimed loss of 24.50 MT of GP sheets and 8.00 MT of mixed material. At the time of 3rd visit on 27-10-2019, insured wanted the claim of 40 MT of GP Sheets, however, as per record, he was having stocks of 24.5 MT of GP sheets. The claim of scrap material and side cutting of the sheets is not considered as the water had not affected the scrap. After discussions, the insured agreed for quality allowance @ 10/- per kg and 5/- per kg but wanted the claim against 40 MT which is not possible as books of accounts are showing stocks of 24.5 MT of stocks. The said surveyor has further mentioned in survey report that insured was maintaining the books of accounts and he provided balance sheet for the last 3 years. The surveyor has also attached with the survey report Estimate of loss. In the said estimate, the complainant has specifically mentioned that the stock mentioned is approximate as no stock register is being maintained by complainant. Thus, keeping in view the evidence of the parties, this Commission is of the considered opinion that the surveyor has assessed the loss after going through the record of complainant and as per actual position of the site/stock available at the time of inspection after flood loss. The complainant has claimed the loss to the tune of Rs. 19,65,931/- but he has himself admitted that no stock register is being maintained by him. In the absence of stock register, total stock as well as sold stock could not be ascertained at the time of loss. So, the surveyor has assessed the loss after physical verification of stocks and keeping in view the affected stocks while inspecting the site. Hon'ble National Commission in case of Narinder Kumar Joshi Vs. Reliance General Insurance Company Limited IV 2017 CPJ 366 (NC) has observed that the insurance claim is to be settled on the basis of surveyor report unless legitimate reasons are pointed out for not accepting the surveyor report. Similarly, in case of Sri Venkatshwar Sindikat Vs. Oriental Insurance Company and Anr., II (2010) CPJ 1 (SC), Hon'ble Supreme Court of India has observed that the surveyors were appointed under statutory provisions and they are linked between insurer and insured when question of settlement of loss or damage arises. The report of the surveyor could become base for settlement of claim by the insurer in respect of loss suffered by the insured. Therefore, keeping in view the evidence placed on file by the parties and settled law as detailed above, this Commission is of the considered opinion that there deficiency in service on the part of the opposite parties in not paying the claim amount to complainant as assessed by Insurance surveyor. Resultantly, this complaint is partly allowed with Rs.10,000/- as cost and compensation against the opposite parties. The opposite parties are directed to pay insurance claim amount of Rs. 1,75,000/- with interest @ 8% p.a. w.e.f. date of institution of complaint i.e. 4-11-19. The compliance of this order be made by the opposite parties jointly and severally within 45 days from the date of receipt of copy of this order. The complaint could not be decided within the statutory period due to covid pandemic and heavy pendency of cases. Copy of order be sent to the parties concerned free of cost and file be consigned to the record. Announced : 20-05-2022 (Kanwar Sandeep Singh) President (Shivdev Singh) Member (Paramjeet Kaur) Member
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