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New India Assurance Co. Ltd. Dro-I, Legal Departmnt, Jeevan Bharti, Connaught Circus, New Delhi v/s M/s. Aarti Extractions Pvt. Ltd.

    First Appeal No. 143 of 2012

    Decided On, 23 August 2021

    At, National Consumer Disputes Redressal Commission NCDRC

    By, THE HONOURABLE MR. C. VISWANATH
    By, PRESIDING MEMBER

    For the Appellant: Nemo. For the Respondent: A.K. Singla, Advocate.



Judgment Text

The present Appeal is filed against the order dated 19.01.2012 in CC No. Consumer Complaint No.12 of 2009 passed by State Consumer Disputes Redressal Commission, Lucknow (for short "State Commission").

Brief facts of the case are that Complainant is a registered Private Limited Company engaged in manufacturing and export of extracted oil from rice bran and has been in the business since 1994 at N.H.-2, G. T. Road at Chandauli, Uttar Pradesh. The Opposite Parties are Insurance Company having its Divisional Office at 2ndfloor at Arihant Complex, Sigra, Varanasi [Opposite Party No.-l] , its Regional Office at Kanpur [Opposite Party No.-2] and its Registered & Head office at Mumbai [Opposite Party No.-3].Opposite Party No.-1 insured the Complainant's stock of rice bran, hay and other stock, vide Policy no.-420700/11/07/11/00000109, for total cover ofRs.2,00,00,000/-. The Complainant paid Rs.68,200/- towards premium, vide Money Receipt No.420700/81/07/000001068 dated 04.05.2007. Opposite Party No.-1 also insured the Complainant's building, Plant & Machinery, vide Policy No.-420700/11/07/11/00000107, for total cover of Rs.3,45,50,000/-. On June 2007 at about 03:45 A.M. fire broke in the Complainant's factory which affected the Stocks, Plant & Machinery. Complainant informed Opposite Party No.-1 about the fire and requested to depute Surveyor to assess the loss sustained. Fire was also reported to the Fire Department and Police in-charge P.S. Kotwali, Chandauli. Opposite Party No.-1 appointed local Surveyor, Shri S. D. Mishra for spot inspection and thereafter entrusted Shri B. S. Chawla, Surveyor & Valuer, to conduct the Final Survey and assess the loss suffered by the Complainant. The Fire Department, issued Fire Analysis report on 28.06.2007 which mentioned the cause of fire as "spontaneous combustion". The Complainant furnished a claim bill of Rs. 79,15,000/- for loss occurred due to fire. The Surveyor Shri B. S. Chawla in his report dated 30.10.2007 assessed the net loss as Rs.38,17,418/- after adjusting the salvage against the Complainant's claim of Rs.79,15,000/-. After the Complainant's repeated reminders, Opposite Party No.-1 informed the Complainant that the claim file had been sent to the competent financial authority i.e., Opposite Party No.-2 .Opposite Party No.2 deputed fraud Investigator Shri R. C. Bajpai, vide letter dated 19.09.2008, without intimating the Complainant. On verification , the Investigator held that the bills/vouchers were found to be fake and the net loss was calculated as Rs.10,47,206/-.The Complainant accepted the same under protest and requested for the settlement of insured amount of stocks which was denied by the Opposite Party. It was alleged that Opposite Party Nos.-l & 2 deliberately delayed the claim settlement and the matter was unnecessarily kept pending for long. On 13.01.09, the Complainant sent a legal notice to the Opposite Parties. Aggrieved by the delay in settling the claim , the Complainant filed Consumer Complaint No. 12 of 2009 before the State Commission with the following prayer -

"That the Complainant, therefore, most respectfully prays;

a) That this Hon'ble Commission may be pleased to direct and order the Opposite Parties to pay to the Complainant towards the claim of loss is Rs.79,15,000/- along with interest calculated @12% per annum from the date of loss and up to the final payment.

b) that this Hon'ble Commission may be pleased to direct and order the Opposite Parties to pay the Complainant Rs. 1,50,000.00 (Rupees One lakh fifty thousand only) incurred towards expenses for settlement of the aforesaid Claim towards traveling and legal Consultancy along with interest calculated @ 12% per annum up to final payment.

c) That this Hon'ble Commission may be pleased to direct and order the Opposite Parties to pay the Complainant Rs. 50,000 (Rupees Fifty thousand ) with interest calculated @ 12% per annum from the date of claim up to final payment towards mental agony and harassment.

d) For costs of and incidental to this Complaint.

e) For such further and other relief as this Hon'ble Commission may deem fit and proper"

3. The Complaint was resisted by the Opposite Parties/Appellants by filing written statement in which they stated that the Complainant after their own calculation submitted the claim of Rs. 11,27,830 Lacs. As the Complainant was not satisfied with the report of the Final Surveyor Sri B.S. Chawla, the claim was sent to Opposite Party No. 2 for due probe and decision, and thereafter Sri R.C. Bajpai was appointed by Opposite Party No-2. It was further mentioned that bills of the Complainant pertaining to suppliers from Bihar State amounting to Rs.66,91,872/- were found to be false/bogus. Shri. R.C. Bajpai, after making a thorough inquiry in the matter, submitted his detailed report on 06.01.2009 and assessed the total loss for stock, and building as Rs. 10,47,206/- which was offered vide letter dated 18.02.2009. The Complainant accepted the same and accordingly the insurance amount was settled, vide discharge voucher dated 23.03.2009. It was stated that the Complainant approached the State Commission with unclean hands by deliberate concealment of facts which was not just and fair.

4. The State Commission after hearing both the Parties and perusing the record, vide order dated 19.01.2012, partly allowed the Complainant as follows -

"Allowing the present complaint partially, the Opposite Party/ insurance company is ordered to pay Rs 71,23,500.00 (Rupees Seventy One Lacs Twenty Three Thousand Five Hundred) along with 08% simple interest per annum to the Complainant. The Interest shall be calculated from the date of filing of complaint till the date of actual payment. This order shall be complied by the Opposite Party/ insurance company within 02 months from the date of receipt of certified copy of this Judgment. Both the parties shall bear their own costs."

5. Aggrieved by the order of the State Commission Appellant/Opposite Parties filed the present Appeal before this Commission with the following prayer -

"It is, therefore, most respectfully prayed that the Appeal of the Appellant may please be allowed/accepted and the judgment dt.l9.01.20I2 passed by State Consumer Disputes Redressal Commission, U.P., Lucknow, in Complaint No. 12/2009 may please be set aside with costs."

6. None appeared on behalf of the Appellant on 06.08.2020 and 25.11.2020 when last opportunity was given to the Appellants to appear. He was therefore proceeded ex-parte on 16.02.2021.

7. Heard the Learned Counsel for the Respondent and carefully perused the record. The Learned Counsel for the Respondent submitted that that on 3rd June 2007 at about 03:45 A.M. fire broke in their factory which affected the stock, plant & machinery. Complainant informed Opposite Party No.-1 about the fire and requested for the appointment of Surveyor to assess the loss caused by fire. It was submitted that on the basis of bills and other relevant documents loss amount of Rs. 79,15,000/- was claimed. The Final Surveyor, vide Survey Report dated 30.10.2007, however assessed the net loss at Rs.38,17,418/-, after adjusting the salvage. It was argued that the Complainant protested on the Survey Report, as the reduction in the claim amount was arbitrary and unjust. Thereafter Opposite Party No.-2 deputed Shri R. C. Bajpai, without intimating the Complainant. Also, the Opposite Parties did not bother to seek the reasons for disallowing a major portion of the claim from the Investigator. The Appeal be allowed and the order of the State Commission be set aside.

8. Respondent/Complainant is engaged in manufacturing and export of oil extracted from rice bran. He took Insurance Policy to cover building, plant & machinery and stock. Fire occurred during the Policy period which he reported to the Opposite Party/ Appellant as well as the Fire Department and the Police. Spot Surveyor and later Final Surveyor were appointed by the Appellant. The Respondent submitted a claim bill of Rs.79,15,000/- for the loss due to fire. The Surveyor Shri B.S Chawla, after detailed inspection, vide his report dated 30.10.2007, assessed the net loss at Rs.38,17,418/-. The Appellant further appointed Investigator Shri R.C. Bajpai, vide letter dated 19.9.2008. He assessed the net loss at Rs.10,47,206.12/- as payable. He did not give any credit for the loss of stock, as he held that the Insured's claim of stock was the not tenable on the ground that bills furnished were bogus and fake. The Complainant accepted the amount under protest and sought settlement of the claim, which was denied by Opposite Party No.1. Aggrieved by the delay in settling the claim, the Complainant filed a Consumer Complaint before the State Commission.

9. The State Commission observed that the Investigator had wrongly held that the Complainant had not purchased goods from the suppliers in question and that the bills were bogus/fake. The State Commission held that the bills were genuine and the Insurance Company by its whimsical acts caused deficiency in service by not paying the insured amount of stock lost in the fire. Form-31 was issued by Trade Tax Department tor a purchase of stocks made from outside the State. Form-31 is a legally recognized public document and bore the signatures of senior officers of the Trade Tax Department. Also suppliers of the Complainant were brought on affidavit and were not fake. If the Investigator Shri R.C. Bajpai had accorded sufficient opportunity to the Complainant, the Complainant would have provided all the documents to the Investigator. The Investigator had also reported that the stocks available were worth Rs.79,43,891/ before the fire. The Investigator had not taken into account this stock and disputed the purchase bills of the stock. In view of the same, the State Commission rejected the Investigator's report.

10. I concur with the finding of the State Commission that the report of the Investigator cannot be relied, as he did not give the Complainant sufficient opportunity to produce relevant documents and merely rubbished the claim

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for the stock on the ground that the bills submitted were fake / bogus, though sufficient evidence had been provided by the Complainant which contradicted the report of the Investigator. I am, however, unable to agree with the State Commission which has simply gone by the claim of the Complainant with a deduction of 10%. The Surveyor Shri B.S. Chawla had inspected the site on several occasions and discussed with the Insured. He had made a very detailed assessment of the loss caused to the stock, building & plant and machinery, totaling to Rs.38,17,418/-. I do not see any reason to disagree with the detailed assessment and calculations made by the Surveyor. I hold that ends of justice would be met if the assessment of loss made by the Surveyor is accepted. 11. The Petitioner is, therefore, directed to pay an amount of Rs.38,17,418/- along with 9% simple interest to the Respondent from the date of filing of the Complaint till the date of actual payment, duly adjusting the amount paid, if any. This order shall be complied within 45 days from the date of receipt of the certified copy of the order. No order as to costs.
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