DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,

BATHINDA

C.C. No. 259 of 05-09-2017

Decided on : 25-11-2021

Karan Enterprises, through its Proprietor Sh. Mintu Kumar Garg, Street No. 8, Paras Ram Nagar, Bathinda. ........Complainant

Versus

1. United Bank of India, through its Branch Manager, Shop No. 12830, Near Sepal Hotel, Main G.T. Road, Tinkoni Chowk, Bathinda. (deleted )

2. United Bank of India through its MD 11 Hemant Basu Sarani, Kolkata (deleted)

3. Bajaj Allianz General Insurance Company Limited through its Branch Manager, Clock Tower Chowk, 100 Feet Road, Bathinda.

4. Bajaj Allianz General Insurance Company Limited, through its MD, Head Office, GE Plaza 1^st Floor, Airport Road, Yerawada, Pune.

.......Opposite parties

Complaint under Section 12 of the Consumer Protection Act, 1986

QUORUM

Kanwar Sandeep Singh, President

Sh. Shivdev Singh, Member.

Smt. Paramjeet Kaur, Member

Present

For the complainant : Sh. Harinderjeet Singh Dhaula, Advocate.

For opposite parties : OPs No. 1 & 2 deleted.

OP No. 3 exparte

Sh. Vinod Garg, Advocate, for OP No. 4

ORDER

Kanwar Sandeep Singh, President

1. The complainant M/s Karan Enterprises through its Prop. Sh. Mintu Kumar Garg (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 United Bank of India and others (here-in-after referred to as opposite parties).

2. Briefly, stated that the case of the complainant is that the complainant is doing the business of wholesale of Ayuredic and Cosmetics etc., for the last many years. The complainant has raised a cash credit limit of Rs,12,00,000/- from United Bank of India, Bathinda against hypothecation of stocks and United Bank branch, Bathinda got the stock insured from Bajaj Alilianz General Insurance Comanay Limited. The company has issued Standard Fire and Special Perils Policy No.OG-9-1213-4001-00000116 on 07-05-2015 for the period from 27-05-2015 to 26-5-2016. The complainant purchased the aforesaid policy for the stock through United Bank of India, Branch Bathinda, lender of the complainant and Insurance Company has issued the policy to indemnify all losses, if occurred to the stock lying in the shop.

3. It is alleged that on 11.11.2015 some crackers entered into the shop of the complainant and the stock got fired. The intimation was given to the police and fire brigade immediately. Fire brigade and police visited the spot. Fire brigade official blow out the fire and Police officials were also present on the spot. Police Station Canal Colony, Bathinda issued Daily Station/General Dairy No. 31(A) dated 11.11.2015. The intimation regarding fire in shop was also given to United Bank of India, Bathinda on next morning i.e. 12-11-2015 and They forwarded the same to opposite party No. 3. Necessary documents were supplied by complainant to the insurance company through above said bank.

4. It is further alleged that since the date of lodging of claim by complainant, he has been repeatedly approaching opposite parties to settle his claim, but although a period of more than eighteen months has been elapsed, but opposite parties have not settled aforesaid lawful claim of complainant for the best reasons known to them. The complainant has also approached the United Bank of India many time to pressurize the insurance company to settle the claim but all in vain. The complainant is suffering huge financial losses due to harassment by the insurance company in not settling the claim in reasonable time. The opposite parties have failed to discharge lawful duties which tantamount to deficiency in service.

5. It is pleaded that Shri Suresh Vashist & Co Insurance Surveyor and Loss Assessor was appointed surveyor for the assessing the loss He visited the premises of the complainant and asked for some documents, which were handed over to him. That surveyor promised to send survey report and assessment of the estimate loss of stock.

6. It is pleaded that on 18.07.2017 complainant got served legal notice upon the opposite parties for settlement of claim and also payment of damages on account of deficiency in service and unfair trade practice, but the opposite parties neither replied to the legal notice nor settled the claim.

7. On this backdrop of facts, the complainant has prayed for directions to the opposite parties to pay claim of loss of stock amounting to Rs. 10,00,000/- in addition to Rs. 1,50,000/- as compensation and Rs. 22,000/- as litigation expenses.

8. On the statement of learned counsel for complainant, name of opposite parties No. 1 & 2 were deleted from the array of the parties vide order dated 8-9-2017.

9. Upon notice, none appeared on behalf of opposite party No. 3. As such, exparte proceedings were taken against opposite party No. 3.

10. The opposite party No. 4 appeared through counsel and contested the complaint by filing written reply. In written reply, the opposite party No. 4 raised legal objections that the complainant has concealed material facts and documents from this Commission as well as the oposite party therefore, he is not entilted to any relief. The complainant has concealed the facts that he did not provide required documents for processing and decision of claim although numerous letters were sent to the complainant. The opposite party No. 4 deputed M/s Suresh Vashisht & Co. of Ludhiana for conducting survey and assessing the loss. The said surveyor wrote letters dated 16.11.2015, 15.12.2015, 06.01.2015 and 5.03.2016 calling upon the complainant to submit claim bill with photocopies of supporting bills of each claim item with suppliers name, saved stock details, verified item wise and a list with their purchase price before VAT, electricity bills of previous 3 months and map of building of premises/documents in proof of its status as occupant of the premises alongwith other documents. Even, opposite party No. 4 sent various letters including letter dated 30.11.2015, 16.12.2015, 23.01.2016 and 04.03.2016 for supply of various documents mentioned therein but no such documents were supplied by the complainant. As per terms and conditions of the policy, the complainant is duty bound to co-operate and to submit documents called upon him for processing and decision of claim.

11. Further legal objections are that the complaint is pre-mature and that there is no cause of action in favour of the complainant against opposite party. The complainant is not the consumer; the complainant has no locus standi or cause of action and that the complaint is not maintainable in the present form.

12. On merits, opposite party No. 4 pleaded that availing of cash credit limit by complainant from oppposite parties No.1 & 2 and obtaining of isurance policy from oposite party No. 4 is matter of record. It is denied that all typs of losses were covered under the policy. The insuracne policy is always subject to coverage and terms and conditons mentioned therein. The date and manner of accident is also denied. It is admitted that opposite party No. 4 deputed M/s Suresh Vashisht & Company to conduct survey and assess the loss. The said surveyor wrote various letters to the complainant for supply of documents, but to no effect. Therefore, the surveyor assessed the loss as per record available and after survey vide survey report dated 13.06.2016. The complainant supplied only one VAT return to the surveyor & other returns were not supplied. The stock register was not maintained and provided. Further there was under insurance as the insurance was for Rs.14,00,000/- whereas the stocks after adjustment were found to be of Rs.16,12,803/-. Therefore, the surveyor after considering various facts, assessed the loss at Rs.3,91,428/- after applying average clause, excess clause and as per other terms and conditions. Therefore, the complainant cannot claim any amount over and above the assessed loss and that too after completion of formalities and submission of documents. The opposite party also denied that opposite party is not settling the claim. Rather it is the complainant who is at fault in not supplying the required documents. After denying the other averments of the complaint, the opposite party No.4 prayed for the dismissal of the complainant.

13. In support of his averments, the complainant has tendered into evidence affidavit dated 1-9-2017 of complainant (Ex. C-1), photocopy of legal notice (Ex. C-2), photocopy of receipts (Ex. C-3 to Ex. C-6), photocopy of DDR (Ex. C-7), photocopy of letter (Ex. C-8), photocpy of receipt (Ex. C-9), photocopy of fire report (Ex. C-10), photocopy of transactions inquiry (Ex. C-11), photocopy of account statement (Ex. C-12), photocopy of policy (Ex. C-13), photocopy of balance sheet (Ex. C-14) and closed the evidence.

14. In order to rebut this evidence, the opposite party No. 4 has tendered into evidence, the opposite party No. 4 has tendered into evidence affidavit dated 3-9-2018 of Sh. Shresh Vashish (Ex. OP-4/1), affidavit dated 27-9-2018 of sh. Navjeet Singh (Ex. OP-4/2), photocopy of claim form (Ex. OP-4/3), photocopy of policy (Ex. OP-4/4), photocopy of letters and receipts (Ex.,OP-4/5 to Ex. OP-4/17), photocopy of survey report (Ex. OP-4/18) and closed the evidence.

15. We have heard learned counsel for the complainant and opposite party No. 4 and also gone through the record.

16. These are undisputed facts between the parties that complainant availed cash credit limit from bank i.e. opposite parties No. 1 & 2 against hypothecation of stocks and said bank obtained insurance policy from opposite parties No. 3 & 4 covering the risk of stocks. Photocopy of Insurance Policy is Ex. C-13/OP-4/4. It is also admitted that incident of fire took place in the shop of complainant and complainant intimated the loss to bank who onward intimated to opposite parties No. 4. The opposite party No. 4 deputed the surveyor M/s Suresh Vashisht & Company, Ludhiana who inspected the site and assessed the loss.

17. The version of complainant is that he furnished all the required documents to surveyor of opposite party No. 4, as demanded by him whereas the plea of opposite party No. 4 is that complainant has been issued various letters to furnish the required information, but he failed to do so.

18. A perusal of Standard Fire and Special Perils Policy (Ex.C-13/Ex. OP-4/4) reveals that all type of stocks of Japani Tail B. Capsule, Kesh King, Dabur Product Ayurved, Medicine and Cosmetic good etc., in the shop premises of complainant are insured under the above detailed fire policy and the Sum Insured is Rs. 14,00,000/-. The opposite party No. 4 has placed on file Survey Report of Suresh Vashisht & Company (Ex. OP-4/18) which reveals that said surveyor has assessed the loss considering the damaged items, as claimed by complainant, to the tune of Rs. 6,66,186/- and net assessment of loss is made amounting to Rs. 3,91,428.10. The surveyor has made deduction @25% being stock register not maintained and for variation of any kind or calculation mistakes and or omission if any & rate & quantity variation, if any etc., The complainant has not produced any evidence to prove that stock register were being maintained by him or he has furnished all the documents as required by the said surveyor but the opposite party No. 4 has placed on file copies of various letter/reminders issued to complainant by opposite party No. 4 as well as surveyor demanding documents required for assessing the loss.

19. As detailed above, the stock insured was Rs. 14,00,000/- whereas at the time of fire, stock found in shop was to the tune of Rs. 22,63,584/- and this figure has been furnished by complainant himself to the surveyor in the form of provisional balance sheet duly attested by CA. Since the stock at the time of loss was found more than the insured stock/Sum Insured, the surveyor after applying average clause assessed the loss as per terms and conditions of policy.

    Hon'ble National Commission in the case titled New India Assurance Co. Ltd Vs. Kamal Naryan 2007(1) CLT 112 (N.C) has held :- “Report of Surveyor is an important piece of document and evidence – Cannot be brushed aside without sufficient reasoning.”

20. There is no specific averments against the surveyor persuading this Commission to disbelieve the report/assessment of surveyor. Therefore, the loss assessed by surveyor is accepted and the complainant is entitled to claim amount to the tune of Rs. 3,91,428/- with interest from the date of institution of complaint till payment.

21. A perusal of file reveals that date of loss is 11-11-2015, The surveyor submitted his survey report dated 13-6-2016, but the opposite parties No. 3 & 4 till the date of filing of complaint neither rejected nor paid the claim of the complainant. This act of the opposite parties amounts to deficiency in service on their part. .

22. In view of what has been discussed above, this complaint is partly accepted with Rs. 10,000/- as cost and compensation against opposite parties No. 3 & 4. The opposite parties No. 3 & 4 are directed to pay to complainant Rs. 3,91,428/- with interest @ 9% P.A. w.e.f. 6-09-2017 (date of institution of complaint) till payment.

23. The compliance of this order be made by opposite parties No. 3 & 4 jointly and severally within 45 days from the date of receipt of copy of this order.

24. The complaint could not be decided within the statutory period due to heavy pendency of cases.

25. Copy of order be sent to the parties concerned free of cost and file be consigned to the record.

    Announced :

    25-11-2021

    (Kanwar Sandeep Singh)

    President

     

     

    (Shivdev Singh)

    Member

     

    (Paramjeet Kaur)

    Member