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NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
Ram Surat Ram Maurya, Presiding Member and
Dr. Inder Jit Singh, Member
M/s. Gaurav Aircon
Computers Pvt. Ltd. —Complainant
versus
National Insurance
Company Ltd. and Ors. —Opp. Parties
Consumer Case No.514 of 2019
Decided on 3.11.2022
For the Complainant:Ms. Shobha Gupta, Advocate Mr. Nishant Bahuguna, Advocate Ms. Pooja Tripathi, Advocate Mr. Shubham, Mr. Rajendra Kumar, Advocate Mr. Tarjana, Advocate and Ms. Prachi Sharma, Advocate
For the Opp. Party:Mr. Niraj Singh and Mr. Dev Hans Kasana, Advocates
IMPORTANT POINTS
(1) Liability of VAT -So long as the goods are kept in the warehouse of the Insured, the Insured is not liable to pay VAT on it. It is only when the goods are sold, the Insured is entitled to collect VAT from the purchase and pay it to the Government.
(2) Salvage - The salvage were auctioned and the Insured did pay any charge or to bear any expense for removal of salvage. As such claim under these heads were not payable. Settlement of the claim does not suffer from any illegality.
(3) Claim for VAT - If the goods are damaged before sale, the Insured is not liable to pay VAT. Under the contract of indemnity, the Insured can claim actual loss and not speculative profit. Claim for VAT was not maintainable.
Headnote:
Consumer Protection Act, 1986—S. 21(a)(i) —[Consumer Protection Act, 2019—S.58(1)(a)(i)]—Services – Insurance – Fire Accident - Repudiation of Claim – Destruction of original records – Computation / Assessment of Loss – Salvage rightly not paid - Liability of Insurance Company to pay VAT – When goods are Sold - Complaint has been filed for the alleged deficiency of service - The contract of insurance is a contract of indemnity, in which, the Insurer is liable to indemnify the actual loss to the Insured, if the loss falls within the terms and condition of the policy. Admittedly the Insured was engaged in the business of distribution of electronic items. So long as the goods are kept in the warehouse of the Insured, the Insured is not liable to pay VAT on it. It is only when the goods are sold, the Insured is entitled to collect VAT from the purchase and pay it to the Government. If the goods are damaged before sale, the Insured is not liable to pay VAT. Under the contract of indemnity, the Insured can claim actual loss and not speculative profit. Claim for VAT was not maintainable - Admittedly all original records (hard copies and soft copies) relating to the damaged goods were burnt. The Insured provided duplicate invoices relating to purchase of the damaged goods on FIFO basis but has not provided details of goods sold, as such, it was not possible for the surveyor to determine the value of damaged goods on the basis of duplicate invoices relating to purchase - The policy provides 5% excess clause for Act of God and Non-Act of God Perils subject to minimum of Rs. 10000/- - The salvage was auctioned and the Insured did pay any charge or to bear any expense for removal of salvage. As such claim under these heads were not payable. Settlement of the claim does not suffer from any illegality – Thus, Insured is entitled to interest @ 9% per annum after six months of the loss. The Insured submitted all the papers of 02.06.2017. Six months period expired on 02.02.2017. Payment was done on 29.03.2018. The Insured was entitled for interest at the rate of 9% per annum from 02.12.2017 till 28.03.2018 – Compliant allowed. [Paras 9 to 13].
Result: Complaint allowed.
ORDER
Heard Ms. Shobha Gupta, Advocate, for the complainant and Mr. Niraj Singh, Advocate, for the opposite parties.
2. M/s. Gaurav Aircon Computers Private Limited (the Insured) has filed above complaint, for directing National Insurance Company Limited (the Insurer) to pay Rs.31264174/- with interest @18% per annum from due date till the date of payment, towards balance insurance claim, Rs.15/- lacs, as the compensation for mental agony and harassment, Rs.35/- lacs, as the compensation for business loss, Rs.5/- lacs, as the cost of litigation and any other relief, which is deemed fit and proper in the facts and circumstances of the case.
3. The complainant stated that M/s. Gaurav Aircon Computers Private Limited (the Insured) was a company, incorporated under the Companies Act, 1956, in the year 2002 and engaged in the business of distribution of electronic items. The Insured took a warehouse, admeasuring 16332 sq.ft. (15532 sq.ft. RCC roofed building and 800 sq.ft. tin shed building) at E-168, Road No.-9-J, Vishwakarma Industrial Area, Jaipur, Rajasthan, on lease, vide lease deed dated 04.12.2015. This warehouse was shared by the Insured to the extent of 3200 sq.ft. and its sister concerns M/s. Ganesham Electrotech Supermarket Private Limited to the extent of 5500 sq.ft., M/s. Chandra Electronics Appliances Pvt. Ltd. to the extent of 5032 sq.ft., M/s. Chandra Entrepreneurs Pvt. Ltd to the extent of 800 sq.ft. and M/s. Vareto Electro Pvt. Ltd. to the extent of 1800 sq.ft. National Insurance Company Limited (the Insurer) was a public insurance company and used to provide different insurance services to the public. The Insured obtained “Standard Fire And Special Perils Policy” No.376002111610000162 from National Insurance Company Limited (the Insurer), for the period of 30.03.2017 to 29.03.2018, for a sum insured of Rs.7/- crores, on the Stock of Electric, Electronics and Health Equipment, Mobile, T.V., Fridge, A.C., L.C.D. Mobile, Computer, UPS and similar types of Electronic Items, stored at E-168, Road No.-9-J, Vishwakarma Industrial Area, Jaipur.
4. Major fire broke out at the warehouse of the Insured in morning of 26.04.2017. Ishwar Lal Meena, the Security Guard on duty at the warehouse noticed the fire at 7:00 hours and immediately informed Ashish Dhoka, son of the director Lalit Dhoka, on telephone. Lalit Dhoka immediately informed Fire Service Station, at Vishwakarma Industrial Area, Jaipur, from where, 7 fire tenders were deputed on the spot, who could control the fire at about 20:00 hours on 26.04.2017. The Insured informed the fire incident to the local police station on 28.04.2017, where it was noted in General Diary at 21.05 hours. The Insured informed the Insurer on telephone about the fire incident at its warehouse on 26.04.2017. The Insurer appointed G.L. Sharma, Surveyors & Loss Assessors, Jaipur as the preliminary surveyor on 26.04.2017, who visited the spot on 26.04.2017, inspected the warehouse and took photographs. G.L. Sharma submitted Preliminary Survey Report dated 27.04.2017 that warehouse consisted 4 halls i.e. three RCC roofed halls and one tin shed hall, out of which two RCC roofed halls and one tin shed hall were fully affected with fire and the stock stored there were completely burnt and destroyed. One RCC roofed hall was safe and stock of that hall were shift to other location. The Insurer appointed Sanjay Dwivedi & Associates, Delhi as the surveyor on 26.04.2017. The surveyor visited the spot on 27.04.2017. He inspected the fire affected premises on the same day and on subsequent dates. The surveyor asked the Insured to segregate the burnt stock according to its product category. The surveyor, vide letter dated 02.05.2017 asked the Insured to submit claim form and the requisite papers for assessment of loss. After segregation of burnt stock, the surveyor verified them on 14.05.2017 and prepared its lists. The Insured submitted claim form and supplied all the papers up to 02.06.2017 to prove the
