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NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
Ram Surat Ram Maurya, Presiding Member
M/s. Goyal and Company and Anr. – Appellants
versus
United India Insurance Company
Limited and Ors. – Respondents
First Appeal No.4 of 2015 and First Appeal No.417 of 2015
Decided on 12.1.2022
Consumer Protection Act, 1986 – Section 21(a)[Consumer Protection Act, 2019 – Section 58(1)(a)(i)] – Services – Insurance – Fire Accident – Insurance Act, 1938 – S.68UM – Insurer has filed appeal, on the ground that State Commission has illegally assessed compensation on the basis of self-made Provisional Trading Accounts and List of Purchasers, which were not corroborated with Bills and Purchasers Statement of Account, as such, order is illegal – Whether Insured could prove his case – Before State Commission the bills or any proof from the supplier in respect of these huge purchases of Rs. 12375486/- has not been filed – The Insured worked out his claim on these purchase + closing balance on 31.03.2009 – total sales during 01.04.2009 to 17.10.2009, as these credit purchases have not been proved from any reliable evidence, as such, his loss through this process is not proved – State Commission has failed to analyse the facts and the evidence on record as such its finding is illegal – claim as set up by the Insured is not proved from the evidence produced by him – Therefore, Judgement of State Commission is illegal and liable to be set aside – Appeal is allowed. [Paras 8 to 17]
Held: The Surveyor found that Insured had his stocks on 12 racks in left side and 9 racks in right side, on which, partly burnt clothes existed which was corroborated with Photos of burnt suits/cloths in the shop on the racks and floor (Exibit-C-53 to C-68, Exibit-C-70 to C-90). On the demand by the Surveyor, the Insured supplied a List of partly burnt suits kept on the racks (Exibit-C-29), which was corrected on the basis of joint physical verification on 24.11.2009. According to the corrected list total 5052 pieces of ladies suits were found in the shop of the Insured and loss was assessed on its basis. Rate of the suits were determined on the basis of total claim divided by total cloths as disclosed by the Insured. 5052 pieces of ladies suits occupied entire space of racks lying in the shop. For this reason also it was not possible to store 26422 pieces ladies suits and 115406 meter cloth of ladies suits, in the shop.
It is mandatory for the Insurer to appoint a surveyor for assessment of loss, exceeding Rs.25000/- under Section 68 UM of Insurance Act, 1938. In the aforementioned cases, has been laid down that where the report of the surveyor is challenged by the aggrieved party, then, its correctness has to be examined in the light of evidence on record. Although the report is liable to be given due weight but it is not a sacrosanct. The surveyor is an expert and its report stands on the footing of expert evidence and has to be corroborated with other evidence on record, in order to examine bonafide / malafide of the Surveyor.
Result: Appeal allowed.
ORDER
Ram Surat Ram Maurya, Presiding Member.—Heard Mr. Aman Preet Singh Rahi, Advocate, for M/s. Goyal and Company and Mr. Rajesh K. Gupta, Advocate, for United India Insurance Company Ltd. and Mr. Himanshu Munshi, Advocate, for Indian Bank.
2. M/s. Goyal and Company filed Consumer Complaint No.25 of 2010, for directing United India Insurance Company Ltd. (the Insurer) to pay (i) balance insurance claim of Rs.7520335/- with interest @18% per annum, with monthly rest, under two insurance policies (ii) Rs.10/- lacs as compensation for mental torture and harassment (iii) Rs.3/- lacs as the cost of litigation and (iv) Rs.50000/- as expenses incurred in preparation of photographs, debris sheet and map, etc. State Commission, by impugned order dated 07.11.2014, allowed the complaint and directed United India Insurance Company Ltd. to pay (i) balance insurance claim of Rs.5908872/-, (ii) Rs.1/- lac as compensation and (iii) Rs.11000/- lacs as the cost of litigation. The Insured and the Insurer, both have filed their separate appeals. As these appeals arise out of the same order passed in one complaint as such, these appeals were consolidated and heard together.
3. The facts, as stated in the complaint and emerged from the documents attached with the complaint, are as follows:-
(a) M/s. Goyal and Company (the Insured) was a sole proprietorship concern and dealing in wholesale business of ladies suits and clothes at Bathinda. The Insured had cash credit facility up to Rs.10/- lacs from Syndicate Bank Bathinda, which was subsequently enhanced to Rs.20/- lacs. Later on the Insured obtained cash credit facility from Indian Bank, Bathinda from 23.12.2008 and closed its account in Syndicate Bank, which was later on enhanced to Rs.30 lacs.
(b) United India Insurance Company Ltd. (for short the Insurer) is a public insurance company, engaged in the business of providing insurance services of different nature. M/s. Goyal and Company (the Insured) obtained Shopkeepers Insurance Policy vide Cover Note No. 68565, for a sum of Rs. 10/- lacs on 06.11.2007. It was renewed vide Cover Note No.453425, (Policy No.200400/48/08/34/00000860) on 10.11.2008, by the Insurer through Syndicate Bank, valid from 11.11.2008 to 10.11.2009, sum insured was Rs.25/- lacs, covering risk of Fire & Allied Perils, on stock of all kinds of cloths in trade, including furniture, fixture, fitting. The Insured obtained another Shopkeepers Insurance Policy on 17.08.2009, from the Insurer vide Cover Note No.502452 i.e. Policy No.200400/48/09/34/00000241, through Indian Bank, valid from 17.08.2009 to 16.08.2010, sum insured was Rs.70/- lacs, covering risk of Fire & Allied Perils, on stock of all kinds of cloths in trade, including furniture, fixture, fitting. It was alleged that Indian Bank was Development Officer cum agent of the Insurer.
(c) On the intervening night of 17/18.10.2009, fire was broke out in the shop at ground floor. Smt. Rubina, the wife of Ramesh Kumar had another textile shop in the name of M/s. Balaji Textiles, on first floor of the same building. Sandeep Singh and Varinder Singh, who were living in the neighbourhood of the shop, noticed the fire at about 2:10 AM. They informed Ramesh Kumar, the proprietor, who informed Fire Service Station Bathinda, from where, two fire tenders were deputed on the spot, which controlled the fire, after hectic efforts. But the fire caused extensive damages in the two shops. The Insured informed the local police about the fire incident, where it was registered vide DDR No.10 dated 18.10.2009.
(d) The Insured informed the Insurer regarding the incident of the fire in the shops, on telephone on 18.10.2009 and in writing on 20.10.2009. The Insurer appointed M/s. Mittal Surveyor Pvt. Ltd., Bathinda, on 18.10.2009, for survey and assessment of the loss. Mr. Parmod Mittal, the Surveyor inspected the shops on 18.10.2009, 19.10.2009 and 26.10.2009 and submitted his preliminary report dated 05.11.2009, in which, he had mention
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