The New India Assurance Co. Ltd. and Another Vs. Deorao Madhavrao Chothmal - Court Judgment

SooperKanoon Citationsooperkanoon.com/1147396
CourtNational Consumer Disputes Redressal Commission NCDRC
Decided OnFeb-22-2012
Case NumberREVISION PETITION NO. 1 OF 2012 IN APPEAL NO. 407 OF 2007
JudgeASHOK BHAN, PRESIDENT & THE HONOURABLE MRS. JUSTICE VINEETA RAI, MEMBER
AppellantThe New India Assurance Co. Ltd. and Another
RespondentDeorao Madhavrao Chothmal
Excerpt:
consumer protection act, 1986 - sections 2(1)(g), 14(1)(d), 21(b) - comparative citations: 2012 (2) cpr 225, 2012 (2) cpj 100per vineeta rai, member 1. the present revision has been filed by the new india assurance co.ltd. and anr. (hereinafter referred to as the petitioner) against the order of the state consumer disputes redressal commission, maharashtra in first appeal no.407/2007 in favour of deorao madhavrao chothmal, respondent herein, who was the original complainant before the district forum. 2. the facts of the case are that the respondent had obtained an insurance policy from the petitioner/insurance company in respect of his shop and the goods therein for a sum of rs.2 lakhs from 21.12.2004 to 20.12.2005.  on 25.02.2005 during the validity of the insurance policy, at about 11.00 pm a fire broke out in the shop due to short-circuit and respondent sustained a loss of rs.1,45,000/- in respect of his stocks.  he accordingly filed a claim with the petitioner/insurance company and after several reminders and issue of a legal notice, petitioner/insurance company sent a discharge voucher of rs.26,500/- only as settlement of the claim.  aggrieved by the unsatisfactory settlement of the claim, respondent filed a complaint before the district forum on grounds of deficiency in service and requested that petitioner/insurance company be directed to pay the respondent, rs.1,45,000/- towards the insurance claim besides damages for mental tension and monetary loss. 3. the above contentions were denied by the petitioner/insurance company who stated that  on receipt of a report about the incident a surveyor was appointed who visited the site and assessed the actual loss as being rs.26,500/-, the reasons for which were listed out in detail in his survey/assessment report . 4. the district forum after hearing both parties and considering the evidence on record allowed the complaint and directed the petitioner/insurance company to pay the respondent, rs.1,35,000/- in settlement of his claim with interest @ 9% per annum from the date of filing of the complaint and rs.2,000/- towards litigation cost. 5. aggrieved by this order, petitioner/insurance company filed an appeal before the state commission which dismissed the same.  the relevant part of the order of the state commission is as follows: œit be noted that it is not disputed that the shop and goods in the electrical shop of the complainant was insured with opponent and fire to the shop on 26.02.2005 was during the currency period of the policy.  it is also not disputed that in that fire goods and some furniture in the shop was burnt causing loss to the complainant.  complainant therefore, is entitled for compensation.  as per copy of panchanama dated 26.02.2005 conducted by police and revenue authority, it is apparent that fire to the shop was because of short-circuit.  complainant also filed affidavits of panchas and circle inspector to prove contents in panchanama.  both the panchanamas clearly reveal that loss caused in the fire is about rs.1,45,000/- to 1,50,000/-.  though the opposite party relied upon report by valuer shri manohar totla and affidavit of totla, but the report reveals that the inspection of spot made by valuer is on 26.02.2005 and the report was submitted on 6.1.2006 i.e. after about more than 10 months.  there is no cogent reason for such delayed report.  documents on record clearly reveals that complainant was having account in the state bank of hyderabad, kalamnuri wherein cash credit of rs.2 lakh was provided for running the shop and complainant has submitted periodical stock statement to the bank.  copies of the trade account of the relevant period with the bank stock statement were submitted in the forum.  learned forum has considered all these evidence on record and has rightly come to the conclusion that complainant is entitled for compensation of rs.1,35,000/- and cost of rs.2,000/-.  there is nothing on record to interfere with the well-reasoned and detailed order passed by the forum.? hence, the present revision petition. 6. counsel for petitioner in his oral submission stated that the learned fora below erred in not taking into account the fact that the claim at rs.26,450/- was rightly assessed because this was a blatant case of under insurance as is clear from the surveyors report.  as per the detailed survey report, the insurance policy was taken for a total amount of rs.2 lakhs (rs.1,80,000/- for stocks and rs.20,000/- for furniture) whereas at the time of fire incident the goods stocked were valued at rs.2,80,0000/-.  hence, applying the law of averages and after deducting the salvage as per the calculation shown in the survey report, the total loss was assessed at rs.28,000/- and the net liability came to be rs.26,500/- which was offered to the respondent. 7. we have heard learned counsel for petitioner and have gone through evidence on record.  we note that the plea pertaining to under insurance was never taken by the petitioner either before the district forum or in their grounds of appeal before the state commission.  the state commission while reaching its findings relied on credible documentary evidence including the panchnama conducted by the police and the revenue authorities, affidavits of the panchas and circle office inspector as also respondents account in the state bank of hyderabad wherein cash-credit of rs.2 lakhs was provided for running the shop.   the periodical stock statements submitted by the respondent to the bank were also taken into account.  since the plea of under insurance was never one of the grounds of appeal, state commission did not give any finding on this aspect.   counsel for petitioner has also conceded this fact.  we have also gone through the report of the surveyor, specially in respect of valuation of the value of the stocks assessed by him.  we are unable to understand on what basis he has arrived at the higher value assigned to a number of items stocked in respondents shop and therefore, are of the view that the assessment/report suffers from infirmities and cannot be relied upon.  on the other hand, as stated earlier there is credible evidence to prove that the loss suffered by the respondent was rs.1,45,000/-. 8. in view of the above facts, we uphold the order of the state commission and the revision petition being without merit is dismissed.  petitioner/insurance company is directed to pay the respondent, rs.1,35,000/- in settlement of his insurance claim with interest @ 9% per annum from the date of filing of the complaint and rs.2,000/- towards cost within six week from the date of receipt of this order failing which interest @ 12% will be applicable on the entire amount.
Judgment:

PER VINEETA RAI, MEMBER

1. The present revision has been filed by the New India Assurance Co.Ltd. and Anr. (hereinafter referred to as the Petitioner) against the order of the State Consumer Disputes Redressal Commission, Maharashtra in First Appeal No.407/2007 in favour of Deorao Madhavrao Chothmal, Respondent herein, who was the original complainant before the District Forum.

2. The facts of the case are that the Respondent had obtained an insurance policy from the Petitioner/Insurance Company in respect of his shop and the goods therein for a sum of Rs.2 lakhs from 21.12.2004 to 20.12.2005.  On 25.02.2005 during the validity of the insurance policy, at about 11.00 pm a fire broke out in the shop due to short-circuit and Respondent sustained a loss of Rs.1,45,000/- in respect of his stocks.  He accordingly filed a claim with the Petitioner/Insurance Company and after several reminders and issue of a legal notice, Petitioner/Insurance Company sent a discharge voucher of Rs.26,500/- only as settlement of the claim.  Aggrieved by the unsatisfactory settlement of the claim, Respondent filed a complaint before the District Forum on grounds of deficiency in service and requested that Petitioner/Insurance Company be directed to pay the Respondent, Rs.1,45,000/- towards the insurance claim besides damages for mental tension and monetary loss.

3. The above contentions were denied by the Petitioner/Insurance Company who stated that  on receipt of a report about the incident a Surveyor was appointed who visited the site and assessed the actual loss as being Rs.26,500/-, the reasons for which were listed out in detail in his Survey/Assessment Report .

4. The District Forum after hearing both parties and considering the evidence on record allowed the complaint and directed the Petitioner/Insurance Company to pay the Respondent, Rs.1,35,000/- in settlement of his claim with interest @ 9% per annum from the date of filing of the complaint and Rs.2,000/- towards litigation cost.

5. Aggrieved by this order, Petitioner/Insurance Company filed an appeal before the State Commission which dismissed the same.  The relevant part of the order of the State Commission is as follows:

œIt be noted that it is not disputed that the shop and goods in the electrical shop of the complainant was insured with opponent and fire to the shop on 26.02.2005 was during the currency period of the policy.  It is also not disputed that in that fire goods and some furniture in the shop was burnt causing loss to the complainant.  Complainant therefore, is entitled for compensation.  As per copy of panchanama dated 26.02.2005 conducted by Police and Revenue Authority, it is apparent that fire to the shop was because of short-circuit.  Complainant also filed affidavits of panchas and Circle Inspector to prove contents in panchanama.  Both the panchanamas clearly reveal that loss caused in the fire is about Rs.1,45,000/- to 1,50,000/-.  Though the opposite party relied upon report by valuer Shri Manohar Totla and affidavit of Totla, but the report reveals that the inspection of spot made by valuer is on 26.02.2005 and the report was submitted on 6.1.2006 i.e. after about more than 10 months.  There is no cogent reason for such delayed report.  Documents on record clearly reveals that complainant was having account in the State Bank of Hyderabad, Kalamnuri wherein cash credit of Rs.2 lakh was provided for running the shop and complainant has submitted periodical stock statement to the bank.  Copies of the trade account of the relevant period with the bank stock statement were submitted in the Forum.  Learned Forum has considered all these evidence on record and has rightly come to the conclusion that complainant is entitled for compensation of Rs.1,35,000/- and cost of Rs.2,000/-.  There is nothing on record to interfere with the well-reasoned and detailed order passed by the Forum.?

Hence, the present revision petition.

6. Counsel for Petitioner in his oral submission stated that the learned Fora below erred in not taking into account the fact that the claim at Rs.26,450/- was rightly assessed because this was a blatant case of under insurance as is clear from the Surveyors report.  As per the detailed survey report, the insurance policy was taken for a total amount of Rs.2 lakhs (Rs.1,80,000/- for stocks and Rs.20,000/- for furniture) whereas at the time of fire incident the goods stocked were valued at Rs.2,80,0000/-.  Hence, applying the law of averages and after deducting the salvage as per the calculation shown in the survey report, the total loss was assessed at Rs.28,000/- and the net liability came to be Rs.26,500/- which was offered to the Respondent.

7. We have heard learned Counsel for Petitioner and have gone through evidence on record.  We note that the plea pertaining to under insurance was never taken by the Petitioner either before the District Forum or in their grounds of appeal before the State Commission.  The State Commission while reaching its findings relied on credible documentary evidence including the Panchnama conducted by the Police and the revenue authorities, affidavits of the Panchas and Circle Office Inspector as also Respondents account in the State Bank of Hyderabad wherein cash-credit of Rs.2 lakhs was provided for running the shop.   The periodical stock statements submitted by the Respondent to the Bank were also taken into account.  Since the plea of under insurance was never one of the grounds of appeal, State Commission did not give any finding on this aspect.   Counsel for Petitioner has also conceded this fact.  We have also gone through the report of the Surveyor, specially in respect of valuation of the value of the stocks assessed by him.  We are unable to understand on what basis he has arrived at the higher value assigned to a number of items stocked in Respondents shop and therefore, are of the view that the assessment/report suffers from infirmities and cannot be relied upon.  On the other hand, as stated earlier there is credible evidence to prove that the loss suffered by the Respondent was Rs.1,45,000/-.

8. In view of the above facts, we uphold the order of the State Commission and the revision petition being without merit is dismissed.  Petitioner/Insurance Company is directed to pay the Respondent, Rs.1,35,000/- in settlement of his insurance claim with interest @ 9% per annum from the date of filing of the complaint and Rs.2,000/- towards cost within six week from the date of receipt of this order failing which interest @ 12% will be applicable on the entire amount.