United India Insurance Co v Chitra SaDistrict Consumer Forum, Bokaro
Consumer Case No.-32 /2009
M/s Chitra sales Proprietor- Some Nath Ganguly,
Near Bhalotia Shop, Chas Main Road, Dist.- Bokaro.
Vs.
1. The Branch Manager,
United India Insurance Co. Ltd., Branch Office Chas, Dist.- Bokaro.
2. The Branch Manager,
Canara Bank, B.S.City Branch, Dist.- Bokaro.
Present-
S.M. Alam, President
Sri Vijay Bahadur Singh, Member
Shabnam Praveen, Member
Date of Judgment- 21/11/2009
Date of Case filing-08/05/2009
-: Judgment:-
The complainant has filed this Consumer Case
against the opposite parties for payment of Rs. 1505702/- with interest @ 12% since the date of claim till payment, waive the interest from 26.09.2007 till reestablishment of business and Rs. 50000/- as compensation to the complainant.
2 Brief fact of the case is that complainant is a proprietor of M/s Chitra Sales at By Pass Road Chas, Bokaro the said shop and its godown were covered under insurance policy with the opposite party No.1 for the period from 16.12.2006 to 15.12.2007 vide policy no. 210701/48/06/34/00000182 for Rs. 2000000/-. The complainant was enjoining the benefit of loss from the opposite party no.2 Canar Bank on the hypothecation on the stock in trade the value of which was Rs. 700000/- in Sept. 2005, Rs. 1200000/- in financial year 2006-07 and RS. 2000000/- in financial year 2007-08. Unfortunately fire was broken in his shop due to short circuit on 26.09.2007 at about 10:20 P.M. and turned stock of the complainant to ashes which caused heavy financial loss worth Rs. 1990000/-. The complainant lodged a Sanha vide Sanha No. 743/07 at Chas Police Station and also informed the Fire Brigade who extinguished the fire. The information was also given to both the opposite parties and the claim for Rs. 1990000/- was lodged to the opposite party no.1 (Insurance Co.). The opposite party no.1 appointed a surveyor and loss assessor who visited the shop and assessed the loss to the tune of Rs. 552036.45/- and insurance co. sent Rs. 484298 to the opposite party no.2 without intimation to the complainant. The opposite party no.2 used to visit regularly shop of the complainant for verification of business and stocks did not raise a voice with regard to settlement of claim at such lower value as would be evident from the statement of stock the value of stock was never less than Rs. 1900000/-. It was also duty of the opposite party No.2 to informed the complainant with respect to settlement of the claim at such lower value which was in the knowledge of the opposite party no.2. Having come to learn that the insurance co. had settled the claim at very less amount than the losses caused and claimed by the complainant; he contacted the officials of the insurance co. and requested for a copy of the surveyor but they did not supply the same. The settlement of the claim by the opposite party no.1 was not based on the documents produced by the complainant as also the valuation by the surveyor was also not based on the market value of the goods, the surveyor had himself considered the realized value 5% of fully damaged items and partially damaged stocks as slightly damaged and considered realization value 5% which is still not in accordance with the documents and the said surveyor also not considered that there were some items which were turned to ashes have not valid documents and were brought to the notice but were not considered by the surveyor. The surveyor had considered average rate as RS. 132.89/- of 2856 pieces of Orpet CFL & fittings which were of various capacity and rates further he considered the value of electric wire etc. Rs. 75000/- in place of Rs. 150000/- without any valid reason or proof for the reasons best known to him. The said surveyor has also committed an error by deducting 10% ie Rs. 57737.45 towards insufficient records and in respect of price/value etc. It is also mentioned here that the opposite party no.2 used to charge interest in spite of request made by the complainant to consider his case and waive the interest until his business is established, which clearly shows the negligent service of the opposite party No.1. Thus under the facts and circumstances, the opposite party is not only liable to make payment of insured amount with interest to the complainant but also compensation for the loss caused to him.
3 Upon issuance of notices, the opposite parties appeared and filed their separate written statement. The written statement of the opposite party no.1 in brief is that the stock in trade and furniture to fixtures of m/s Chitra Sales, Main Road Chas, Bokaro belong to the complainant Shree Some Nath Ganguli and was insured with the opposite party no.1 under the policy for the period during 16.12.2006 to 15.12.2007 against fire and allied perils, the sum insured being Rs. 2000000/- only. The said policy was subject to and hypothecation agreement between the insured and opposite party no.2. However on 27. 09.2007 the complainant informed the opposite party nol.1 that in the night of 26.09.2009 there was an incident of fire in the shop and caused loss to him. Therefore, he lodged a formal claim for sum of Rs. 1990000/- where as competent authority of the insurance co. deputed shree A.K. Rungta C.A. to make assessment of the loss alleged to have been suffered by the complainant. After necessary enquiry the surveyor submitted his report on 26.03.2008 and assessed the loss at Rs. 524435/- only giving cogent and convincing reasons. On consideration of the fact that the complainant had failed to produced relevant records, the competent authority of the insurance co. took a decision to deduct 20% from the amount assessed by the surveyor for the insufficient records in respect of the claim as against 10% deduction suggested by the surveyor. Accordingly the opposite party no.1 made an offer of Rs. 484298/- only which was accepted by the complainant and also the opposite party no.2 and with consent of the complainant, the amount was received by the opposite party no.2 by way of full and final discharge of their claim upon the opposite party no.1. In view of the facts and circumstances explained above the complainant does not have any valid ground to assail the action of the opposite party No.1 in settling the claim in the aforesaid manner. The opposite party no.1 further stated that a fire broke out in the insured shop on 26.09.2007 is substantially correct but the further statement that he suffered financial loss to the extent of Rs. 1990000/- is unfounded. It is further submitted that the opposite party no.1 is not aware as to whether the opposite party no.2 was satisfied that the conduct of the complainant in running his business but the contention that the stock statement furnished by him to opposite party n0.2 without having being corroborated books of account, proves that the alleged loss has not been found to be acceptable by the Surveyor, above named for various reasons recorded in his report. So it cannot be said that value of the stock in the shop was more than what has been paid by the opposite party no.1. The complainant was kept informed about the every development by the opposite party no.1 and the amount by way of full and final settlement was paid to the opposite party no.1 without their being any objection from him. The allegation that the complainant was aware of the contentions of the surveyor report is not correct, as he has himself referred to the said report and has also filed a copy thereof along with the complaint. The survivor assessed the loss giving reason which is not liable to be burst aside by the complainant when he himself failed to furnish proper books of account, bills and invoice etc, to corporate his stand about the alleged loss.
4 It is crystal clear from the above mentioned fact and circumstances, the opposite party no.1 cannot be said to be deficient or negligent in their service for the alleged information consideration of the request made by the complainant to opposite party no.2, and the complainant does not have any claim whatsoever is against the opposite party no.1, and that the settlement of the claim without any objection from the complainant, the cause of action if any does not survive. There is no merit in the present complaint, and as such the complainant is not entitled to any relief as against this opposite party no.1.
5 The written statement of the opposite party no.2 is that the opposite party no.2 has been unnecessarily made party in the present proceeding, caused much harassment and loss of public of the opposite party no.2. It is dispute of amount of compensation between insurer and the insured and the opposite party no.2 is neither insurer nor insured. The agreement of the insurance in between the complainant and the opposite party no.1 and opposite party no.2 has nothing to do with the same. It is true that shop of the complainant was insured by the opposite party no.1 for the period from 16.12.2006 to 15.12.2007 vides policy number above mentioned. The stock of the complainant shop is subject to varry from day to day. The opposite party no.2 has verified the stock of the complainant shop on 31.07.2007 and given the report to the above effect with the stock of the day and time of verification was Rs. 1911300/- and the incident of the fire took placed on 26.09.2007. It is further stated that it is the responsibility of insurance co. to assess the loss incurred by the fire and pay the compensation and the opposite party no.2 has to do nothing. If the complainant has any grievances against the insurance co. regarding the compensation amount he may preferred protest petition before the appropriate authority challenging the compensation amount. However there is no any agreement between the complainant and the Bank that no interest will be charged in the event of such happening nor there is rule of opposite party No.2 bank to waive the interest on any such happening as be cause the bank hands over fettered and bond to follow the rule and aggrieved terms. The opposite party no.2 had charged the interest as per agreement and rules of the bank which is legal and valid. The opposite party no.2 has not responsibility for such happening. The opposite party no.1 is responsible to compensate the entire loss and the bank has nothing to do with the same. There is no allegation of any harassment against the opposite party no.2 in the complaint petition and hence the complainant’s all compensation for harassment etc, doe not sustain against the opposite party no.2. Therefore, the complainant is not entitled to any relief as claimed against the opposite party no.2 and the proceeding may be dropped against the opposite party no.2.
6 We heard both the parties and perused the case records and documents filed on behalf of the parties. The insurance of the shop in question for Rs. 2000000/- with opposite party no.1 and the fire in the shop on 26.09.2007 during the period of insurance coverage are admitted facts. After the complainant put up his claim for Rs. 1990000/- against his losses due to fire in his shop, the insurance co. appointed a surveyor who assessed the loss at Rs. 552036.45/- against which the insurance co. paid Rs. 484298/- only.
7 On scrutiny of the survey report dated 26.03.2008 filed by A.K. Rungta, the surveyor appointed by the insurance co., it is observed that there are many lapses on the part of the surveyor while assessing the loss. It appears that the surveyor has not taken into his consideration the actual quantity of the items burnt during the fire in the shop. It is even found that the surveyor has done under pricing of the items taken into consideration while assessing the loss. Besides, the surveyor has also considered realizable value for fully damaged items and partially damaged items. The surveyor has further allowed 10% deduction while valuing the damage stocks on account of none production of invoices. This deduction was enhanced to 20% by the insurance co. while settling the claim of the complainant without any valid and proper grounds thereon.
8 We are of the opinion that the fully and partially burnt items don’t have any realizable value. In our view only old and second hand items can have a resaleable value. It is further revealed that the invoices and accounts books of the complainant relating to the shop in question also got burnt in the fire. As required by the surveyor, the complainant could arrange the duplicate invoices from the suppliers which are listed in para 5 of the survey report. Altogether there are 15 numbers of such duplicate invoices which are available in the case records. These invoices pertained to the period from 01.04.2007 to 26.09.2007. The total value of procurement of stocks against these invoices is Rs. 1829360/-. The genuinity of these invoices is deemed to be accepted by the surveyor but the surveyor has failed to take into consideration the valuation of the complainant’s stocks as per these invoices which got damaged during the fire in the shop. The Surveyor has also admitted in his para-2 , the stocks statement of the complainant submitted to Bank, from Sept. 2006 to Aug. 2007 to tune of Rs. 1900000/- plus.
9 In view of the above, we have arrived at the conclusion that the complainant stocks available valued at 1829360/- got burnt and damaged due to the fire in his shop on 26.09.2007. We, therefore, hold the opposite parties insurance co. negligent and deficient in service while paying only Rs. 484298/- against the claim of the complainant. The Insurance co. is as such held liable to further pay Rs. 1345062/- only (Rs. 1829360/ – Rs. 484298/) to the complainant besides other reliefs.
10 Under the facts and circumstances of the case, the opposite party no.1 Branch Manger, United India Insurance Co. Ltd. Branch Office, Chas Dist.- Bokaro is directed to pay Rs. 1345062/- (Rs. Thirteen lacks forty five thousand sixty two) only to the complainant within 30 days from the date of this order. The above opposite party is further directed to pay Rs.5000/- (Rs. Five thousand) only as compensation to the complainant within 30 days from the date of this order.
Member (Lady) Member President
les