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Himachal Pharmaceuticals Limited v/s Oriental Insurance Company Limited


    Consumer Complaint No. 08 of 2007

    Decided On, 10 May 2018

    At, Himachal Pradesh State Consumer Disputes Redressal Commission Shimla

    By, THE HONOURABLE MR. JUSTICE P.S. RANA
    By, PRESIDENT & THE HONOURABLE MR. VIJAY PAL KHACHI
    By, MEMBER

    For the Complainant: Peeyush Verma, Advocate. For the Opposite Party: Shilpa Sood, Advocate.



Judgment Text


P.S. Rana, President

1. Present consumer complaint is filed before State Commission under Section 17 of Consumer Protection Act 1986 pleaded therein that complainant is engaged in manufacture and sale of pharmaceuticals drugs. It is pleaded that complainant is a partnership concern and its partners are engaged in earning livelihood by means of self- employment. It is further pleaded that complainant unit was started after obtaining loan from Oriental Bank of Commerce Pathankot. It is further pleaded that M/s. Himachal Pharmaceuticals was insured with opposite party w.e.f. 13.04.2005 to 12.04.2006. It is further pleaded that complainant obtained Fire Standard Policy from the opposite party. It is further pleaded that on dated 25.10.2005 complainant unit suffered extensive damage and information was given to the opposite party. It is further pleaded that opposite party also deputed surveyor-cum-loss assessor. It is further pleaded that opposite party did not settle the claim and committed deficiency in service. Complainant sought relief of payment of Rs.2019689/- (Twenty lac nineteen thousand six hundred eighty nine) alongwith interest @18% per annum w.e.f. 25.10.2005 till the date of actual payment. In addition complainant sought relief of Rs.200000/- (Two lac) as compensation for mental torture and harassment. In addition complainant sought relief of sum of Rs.35000/- (Thirty five thousand) as litigation costs. Prayer for acceptance of consumer complaint sought.

2. Per contra version filed on behalf of opposite party pleaded therein that complainant obtained loan from Oriental Bank of Commerce Pathankot and due to defaults in payment the firm has been declared as NPA. It is admitted that fire took place in the complainant unit on dated 25.10.2005. It is pleaded that survey was conducted by the surveyor namely Duggal Gupta. It is further pleaded that actual loss did not tally with claimed loss. It is further pleaded that M/s. Himachal Pharmaceuticals Limited was declared as NPA in the year 2004. It is further pleaded that as per latest detail of stock dated 31.07.2004 amount of Rs.10594221/- (One crore five lac ninety four thousand two hundred twenty one) was shown. It is further pleaded that complicated facts are involved in the present consumer complaint and complainant be relegated to civil court. It is further pleaded that opposite party did not commit any deficiency in service. Prayer for dismissal of consumer complaint sought.

3. Complainant filed rejoinder and reasserted the allegations mentioned in the complaint.

4. Consumer complaint was decided by the State Commission on dated 28.08.2009. State Commission ordered opposite party to pay sum of Rs. 2019689/-(Twenty lac nineteen thousand six hundred eighty nine) to the complainant alongwith interest @12% per annum w.e.f. 01.04.2006 till date of its payment. In addition State Commission ordered opposite party to pay compensation to the tune of Rs.50000/- (Fifty thousand). In addition State Commission ordered opposite party to pay amount of Rs. 20000/- (Twenty thousand) as punitive compensation. In addition State Commission ordered opposite party to pay Rs.10000/- to the complainant as litigation costs.

5. Feeling aggrieved by the order passed by State Commission insurance company filed Appeal No. 474/2009 before Hon'ble National Consumer Commission. Hon'ble National Consumer Commission set aside the order of State Commission and remanded the consumer complaint back to the State Commission for decision afresh. Hon'ble National Commission directed the parties to appear before State Commission on dated 18.10.2016.

6. We have heard learned advocates appearing on behalf of parties and we have also perused entire record carefully.

7. Following points arise for determination in the present complaint:

1. Whether consumer complaint filed by complainant is liable to be accepted as mentioned in memorandum of grounds of consumer complaint?

2. Final order.

Findings upon point No.1 with reasons:

8. Complainant filed affidavit of Shri B.M. Sood Managing Partner M/s. Himachal Pharmaceuticals Limited Ex.C-1 in evidence. There is recital in the affidavit that M/s. Himachal Pharmaceuticals was insured with opposite party w.e.f. 13.04.2005 to 12.04.2006. There is further recital in the affidavit that insurance policy was Fire Standard Policy and coverage was to the tune of Rs. 8200000/- (Eighty two lacs). There is further recital in the affidavit that fire took place on dated 25.10.2005 in the premises of M/s. Himachal Pharmaceutical Limited and unit suffered extensive damage. There is further recital in the affidavit that factum of incident was intimated to the opposite party by way of telephone and by way of written manner. There is further recital in the affidavit that opposite party deputed surveyor who visited the spot on dated 28.11.2005. There is further recital in the affidavit that requisite documents were supplied to the surveyor-cum-loss assessor by the complainant. There is further recital in the affidavit that opposite party issued cheque of Rs. 106905/- (One lac six thousand nine hundred five) to the loanee bank. There is further recital in the affidavit that opposite party did not pay the adequate compensation to the complainant and committed deficiency in service. State Commission has perused all annexures filed by the complainant carefully.

9. Consumer complaint was listed for evidence of opposite party after remand on dated 21.07.2017 and 21.08.2017 but opposite party did not adduce any rebuttal evidence qua controversial facts by way of affidavits. State Commission has carefully perused the report of surveyor- cum-loss assessor namely Duggal Gupta.

10. Submission of learned advocate appearing on annum w.e.f. 25.10.2005 till actual payment is decided behalf of complainant that complainant is legally entitled for damage to the tune of Rs.2019689/- (Twenty lac nineteen thousand six hundred eighty nine) alongwith interest 18% per annum w.e.f. 25.10.2005 till actual payment is decided accordingly. Hon'ble National Commission in First Appeal No. 474/2009 decided on dated 22.09.2016 held that it is not justified to reject the claim of the complainant for the stock altogether whether material was at research stage or as a final product lying at the premises of the complainant at the time of incident of fire. State Commission is of the opinion that directions of Hon'ble National Commission are binding upon State Commission. Hon'ble National Commission has directed in positive manner that stock altogether whether at research stage or as a final product should be assessed for compensation. Opposite party deputed surveyor-cum-loss assessor and surveyor-cum-loss assessor has excluded the loss of stock of Taxol which is claimed to the tune of Rs.1524000/- (Fifteen lac twenty four thousand). As per direction of the Hon'ble National Commission claim of damaged stock should also be considered. State Commission decided to assess the value of stock also. M/s. Himachal Pharmaceuticals has sent letter annexure A-2 to the opposite party on dated 26.10.2005. There is recital in the letter that estimated loss was to the tune of Rs. 8 to 10 lacs. M/s. Himachal Pharmaceuticals company itself mentioned loss to the tune of Rs.8 to 10 lacs by way of written manner to the opposite party. State Commission has also perused the report submitted by Up-Pradhan of Gram Panchayat Annexure A-3. Up-Pradhan has mentioned loss of complainant to the tune of Rs.8 to 10 lacs. Similarly Nakal Rapat No. 15 dated 26.10.2005 was filed in the police station by Brij Mohan Sood and Brij Mohan Sood himself mentioned in the Nakal Rapat the tune of Rs.8 to 10 lacs only. that he sustained loss to State Commission is of the opinion that letter issued by Shri B.M. Sood Annexure A-2, report of Up-Pradhan Gram Panchayat Annexure A-3 and Nakal Rapat dated 26.10.2005 Annexure A-4 filed by Shri B.M. Sood himself could be used for corroborative purpose under Consumer Protection Act 1986. In view of the fact that complainant himself admitted that he sustained loss to the tune of Rs. 8 to 10 lacs by way of written letter Annexure A-2 issued by Shri B.M. Sood and Nakal Rapat dated 26.10.2005 filed by Shri B.M. Sood himself and in view of the fact that complainant did not adduce any report of surveyor-cum-loss assessor in rebuttal State Commission is of the opinion that complainant is legally entitled for damage to the tune of Rs. 1000000/- (Ten lac) only. It is well settled law that written facts admitted by complainant could be used against complainant under law.

11. Submission of learned advocate appearing on behalf of complainant that complainant is legally entitled for compensation to the tune of Rs.200000/- (Two lac) for mental torture and harassment is decided accordingly. State Commission is of the opinion that Rs.25000/- (Twenty five thousand) for mental torture and harassment is sufficient in the ends of justice and on the principle of natural justice to complainant.

12. Submission of learned advocate appearing on behalf of complainant that complainant is legally entitled for litigation costs to the tune of Rs.35000/- (Thirty five thousand) is decided accordingly. Complainant did not place on record advocate fee receipt. State Commission is of the opinion that complainant is legally entitled for reasonable litigation costs to the tune of Rs.10000/- (Ten thousand). State Commission is of the opinion that litigation costs to the tune of Rs. 10000/- (Ten thousand) is sufficient and reasonable costs in the ends of justice and on the principle of natural justice.

13. Submission of learned advocate appearing on behalf of insurance company that no punitive damage claimed by the complainant in the relief clause of complaint and complainant is not entitled for punitive compensation to the tune of Rs.20000/- (Twenty thousand) is decided accordingly. State Commission is of the opinion that relief should be granted to a party strictly as prayed by the party in the relief clause. In view of the fact that complainant did not claim any punitive compensation from the opposite party it is held that complainant is not entitled for punitive compensation.

14. Submission of learned advocate appearing on behalf of insurance company that complainant is legally entitled to the loss to the tune of Rs.107447/- (One lac seven thousand four hundred forty seven) as assessed by surveyor- cum-loss assessor namely Duggal Gupta appointed by insurance company is decided accordingly. State Commission has carefully perused the report of surveyor-cum-loss assessor namely Duggal Gupta. Insurance company did not file affidavit of Duggal Gupta surveyor-cum-loss assessor. No reason assigned by the insurance company as to why insurance company did not file the affidavit of surveyor-cum- loss assessor who has personally assessed the loss qua controversial facts. Hence adverse inference is drawn against the insurance company for non-filing affidavit of surveyor- cum-loss assessor relating to controversial facts. Surveyor has himself mentioned in the report that as per report of Pradhan estimated loss sustained by the complainant was Rs. 8 to 10 lacs. Surveyor has specifically mentioned in his report that cause of accident was fire which was caused due to sudden breaking of flask containing methoxsalene while it was on heating mental on which it was being heated. Surveyor has not assessed loss of stock of Taxol on the ground that product was in research stage only. Report of surveyor that complainant is not entitled for loss of Taxol stock because Taxol stock was in research stage was overruled by the Hon’ble National Commission in Appeal No. F.A. No. 474 of 2009 tilted Oriental Insurance Company Limited v. M/s. Himachal Pharmaceuticals Limited, I (2017) CPJ 352 (NC) decided on dated 22.09.2016. Hon’ble National Commission held that product whether at research stage or as a final product lying at the premises of the complainant at the time of incident of fire ought to have been evaluated in proper manner. Direction of Hon’ble National Commission is binding upon State Commission and State Commission is under legal obligation to comply direction of Hon’ble National Commission. Hence it is held that complainant is also legally entitled for the stock which was available in the premises of the complainant at the time of fire incident whether at research stage or as a final product. Complainant himself has admitted in letter dated 26.10.2005 Annexure A-2 that he sustained loss of stock to the tune of Rs. 8 to 10 lacs corroborated by the report of Up-Pradhan Annexure A-3 and corroborated by Nakal Rapat filed by complainant himself Annexure A-4. Opposite party did not file any positive cogent and rebuttal evidence. Even no official on behalf of opposite party filed any affidavit relating to controversial facts. Hence adverse inference is drawn against Oriental Insurance Company Limited for non-filing affidavit of Senior Divisional Manager or any authorized official qua controversial facts. See III (1999) SLT 70=II (1999) CLT 184 (SC)=AIR 1999 SC 1441 Vidhyadhar v. Mankik Rao. See II (1999) SLT 597=I (1999) BC 580 (SC)=II (1999) CLT 103 (SC)=AIR 1999 SC 1341 Iswar Bhai C. Patel v. Harihar Behera. It is well settled law that proceedings under Consumer Protection Act 1986 are quasi-judicial proceedings. It is well settled law that burden of proving fact always lies upon person who asserts it. See AIR 2011 SC 2344 Rangammal v. Kuppuswami & Anr.

15. Submission of learned advocate appearing on behalf of insurance company that complicated facts are involved in the present complaint and complainant be relegated to civil court is decided accordingly. State Commission is of the opinion that consumer complaint could be disposed of in summary manner and it is not expedient in the ends of justice and on the principle of natural justice to relegate the complainant to civil court.

16. Submission of learned advocate appearing on behalf of insurance company that complainant has been declared as NPA since 2004 and present consumer complaint is not maintainable is decided accordingly. It is proved on record that insurance company has admitted that insurance policy was issued in favour of complainant which was operative w.e.f. 13.04.2005 to 12.04.2006. It is proved on record that fire incident took place in the premises of complainant on dated 25.10.2005 when insurance policy was in operation. It is proved on record that insurance company has received premium from the complainant. State Commission is of the opinion that case of complainant falls within the definition as mentioned under Section 2(o) of Consumer Protection Act 1986. It is he

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ld that service relating to insurance company falls within the domain of section 2(o) of Consumer Protection Act 1986. It is held that insurance company is under legal obligation to indemnify the complainant. Point No.1 is decided accordingly. Point No.2: Final Order 17. In view of findings upon point No.1 complaint is partly allowed and it is ordered that opposite party would indemnify the complainant to the tune of Rs.1000000/- (Ten lac) only alongwith interest @9% per annum w.e.f. 16.7.2007 till realization. In addition it is further ordered that opposite party would pay compensation for mental torture and harassment to the tune of Rs.25000/- (Twenty five thousand) to the complainant. In addition it is further ordered that opposite party would pay litigation costs to the complainant to the tune of Rs. 10000/- (Ten thousand). It is further ordered that opposite party would be legally entitled to adjust the advance payment of cheque to the tune of Rs. 106905/- (One lac six thousand nine hundred five) paid to the loanee bank if the cheque has been enchased by the loanee bank. Letter sent by Shri B.M. Sood Managing Director of complainant company dated 26.10.2005 Annexure A-2, report of Up-Pradhan Annexure A-3 and Nakal Rapat No. 15 dated 26.10.2005 would form part and parcel of order. File of State Commission be consigned to record room after due completion forthwith. Certified copy of order be transmitted to parties forthwith free of costs strictly as per rules. Consumer Complaint No.08 of 2007/RBT No.01 of 2017 is disposed of. Pending application(s) if any also disposed of. Complaint partly allowed.
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