GAJANAND GOYAL vs NEW INDIA ASSURANCE CO. LTD.

THIS order will dispose of both the above titled appeals arising out of the same order dated 23rd October, 1992 passed by the State Commission, Delhi in case No. C-14/92 by which the said Commission has partly accepted the complaint filed by Shri Gajanand (Appellant in F. A. No. 591/92 and Respondent in the cross appeal F.A. No. 592/92) and directed the New India Assurance Co. Ltd. (for short the Insurance Co. and who is Respondent in cross appeal F.A. No. 591/ 92) and Appellant in F.A, No. 595/92 to pay an amount of Rs. 96,000/- with interest at the rate of 16% per annum from the date of filing of the complaint till the payment within a period of three months from the date of the order. Both the parties are not satisfied with that order and have come before this Commission by way of above appeals.

THE facts are that Shri Gajanand, Complainant is carrying on business as a cloth merchant in shop No. E-2, Main Road, Dayal Pur, Delhi, he obtained a shopkeepers insurance policy in respect of his shop for Rs. 1,20,000/- divided as under: On the night intervening 1st and 2nd October, 1991 a fire broke out in the shop of the Complainant as a result of which goods and accounts books lying therein were burnt. It was further alleged by the Complainant that on account of fire in his shop he suffered a loss of Rs. 2.00 lakhs. The Complainant informed the Opposite Party about the incident on 3rd October, 1991. Shri A.K. Gupta was appointed as Surveyor by the Insurance Co. to assess the loss. The Surveyor submitted his report dated 13th December, 1991 assessing the loss of the Complainant at Rs. 20,000/-. The Complainant was not satisfied with the Surveyor''s report nor the Insurance Co. took any further steps to settle the claim. Consequently the Complainant filed a complaint under the Consumer Protection Act, 1986 before the State Commission praying that the Insurance Co. He directed to pay an amount of Rs. 2.00 lakhs with interest at the rate of 18% from the date of loss till recovery. The Opposite Party contested the complaint be means of counter and averred that the accounts books were alleged to have been burnt to receive an exaggerated amount of insurance claim. It was further alleged that the complainant had agreed for the settlement of his claim for a total sum of Rs. 12,000/ - and therefore, he could not claim an amount of Rs. 2.00 lakhs. (It may be mentioned here that there is no evidence to support that plea). According to the Insurance Co. the Complainant did not submit the balance-sheet, stock-register and other necessary records as required by the Surveyor vide letter dated 9th November, 1991 and consequently he was not entitled to the amount claimed.

AS the factum of fire in the shop of the Complainant was not disputed the only question that arose for determination before the State Commission was whether the Complainant was entitled to a compensation of Rs. 2.00 lakhs as claimed by him. The details of the amount of compensation claimed by him are as follows: 1. The price of the stock destroyed in the fire: Rs. 1,50,000/- 2. The price of the furniture and fittings destroyed in the fire: Rs. 20,000/- 3. Damage on account of harassment: Rs. 30,000/- The Complainant produced certain bills invoices about cloth said to have been purchased after 31st March, 1991. The State Commission held that those documents did not inspire confidence as the account books and affidavits of the proprietors of the firms from whom those goods are said to have been purchased had not been produced. The Surveyor had also not placed any reliance on those bills/invoices. Consequently those bills and invoices were rejected. The State Commission took the balance sheet ending 31st March, 1991 into consideration. The closing balance according to that balance sheet, on that date was Rs. 1,53,820/-. The State Commission held that the Complainant must have sold one-Half of the goods during the six months preceding the fire and therefore it was held that at the time of fire the stocks worth Rs. 76,960/- (rounded to Rs. 77,000/-) must be in the shop at the time of fire. The value of fixtures and furniture on 31st March, 1991 was shown in the balance sheet at Rs. 18,152/-vThe Complainant had been claiming depreciation on the furniture at the rate of 10% per annum. The Commission further took the depreciation at 5% upto the date of fire on that item and after deducting that amount from the value of the furniture etc. the value was arrived at Rs. 17,200/-.

ABOUT the report of the Surveyor dated 13th December, 1991 the Commission remarked that no reliance could be placed on it as he has shown the cost of furniture and fixtures in the shop at the time of fire at Rs. 10,000/- and cost of goods not exceeding Rs. 10,000/-. The Surveyor assessed the salvage at Rs. 100/- and thus the total loss assessed by him Rs. 19,900/-. According to the State Commission the report was apparently incorrect and no reliance could be placed on it. It was urged on behalf of the Insurance Company before the State Commission that the balance-sheets, orders of the Income-tax officers had not been handed over by the Complainant to the Surveyor and those should not be taken into consideration while deciding the case. The State Commission found that the Complainant had tried to give all the documents to the Surveyor but he did not accept the same and consequently he sent the documents to the Insurance Co. on 27th December, 1991 and the Insurance Company sent the said documents to the said Surveyor vide letter dated 11th December, 1991 with a copy to the Complainant but it was surprising that the Surveyor did not refer to those documents and thus it was evident that the Surveyor did not take into consideration the relevant documents while making their report.

THE State Commission allowed interest at the rate of 16% w.e.f. 1st December, 1991 (this date was arrived at by giving 2 months, time to the Insurance Company within which period the claim should have settled) till the date of filing the complainant i.e. 16th January, 1992 on the amount of Rs. 77,000/- + Rs. 17,000/- = Rs. 94,000/-. This interest was calculated at Rs. 1,926/-. Thus the total amount was arrived at Rs. 96,000/- in round figures. As noticed earlier the Complainant was also allowed interest on Rs. 96,000/- at the rate of Rs. 16% from the date of filing the complaint till the date of recovery. The Complainant was not allowed Rs. 30,000/- as claimed by him as compensation for mental harassment on the ground that the claim was covered by the amount of interest granted.

IN the appeal filed by the complainant, his contention is that he has suffered loss of Rs. 1,50,000/- in respect of the stock and he should be allowed that amount with interest at the rate of 18% per annum from 1.1.1992 i.e. after three months from the date of fire till the date of actual payment. He has also claimed Rs. 30,000/- as compensation for harassment and mental agony and Rs. 5,000/- as costs. The Complainant''s contention is that the bills of purchases which were produced by him before the State Commission were genuine document. He has in his memorandum of appeal has tried to explain discrepancy in those cash memos/invoices which were noticed by the State Commission.

IN the appeal filed by the Insurance Co. the contention is that there was no deficiency in the rendering of service as the Complainant did not cooperate with the Surveyor in not supplying the necessary documents. It was also alleged that at one time the Complainant had agreed to receive amount of Rs. 12,000/- for the loss in full and final settlement of his claim (It may be mentioned here that these is no evidence about this plea).

WE have heard the parties and carefully gone through the records of the case. We do not find any merit in either of these appeals. First we take up the appeal of the Complainant Le. F.A. No. 591. The Complainant of course could not produce Stock Register from proving his stock in his shop on the date of fire because according to him the accounts books were burnt in the fire. He did produce some cash memos/ bills/invoices before the State Commission but those were not held reliable as the Complainant has not produced any evidence either oral evidence or in the shape of affidavit of the persons who had issued those cash memos etc. Of course, a few days before incident of fire the Complainant had got the policy of insurance revised showing stock in the shop at Rs. 1,50,000/- but the onus was upon him to show that at the time of occurrence the stock of that value was in fact in his shop. It was also argued on behalf of this Complainant-Appellant that the State Commission was in error in taking the balance sheet ending on 31st March, 1991 as the sole document for arriving at the findings because from 1st April, 1991 to the date of fire the Complainant must have purchased some stocks for sale. As noticed earlier the State Commission held the evidence produced about the purchase of the stock as not of much evidential value. Therefore, in our opinion the State Commission was right in arriving at the conclusion that taking the stock in the shop on 31st March, 1991 at Rs. 1,53,920/-, one-half of the stock must have'' been sold by the Complainant during the six months preceding the date of fire. Hence we are of the opinion that the State Commission arrived at a just and equitable decision.

THE appeal of the Insurance Company is also liable to fail. The contention of the Insurance Company that the stock in the shop of the Complainant at the time of fire was only about worth Rs. 10,000/- cannot be given much weight. The Surveyor did not collect any evidence to show that in the days preceding the fire the Complainant had removed any article from his shop. The fact that about a week before the incident the Complainant had got his policy revised shows that the stock in the shop must be much more than Rs. 10,000/-.

IT was also pointed out that there was some dispute between landlord and the tenant Le. the Complainant. This argument has been noticed just to reject it. There is nothing on the file to show that the Complainant himself set fire to the shop, after removing the goods, to harm the landlord. The argument raised on behalf of the Insurance Co. that only a few days before the incident the Complainant had got enhanced the risk in respect of value of stock covered under the policy just to claim exaggerated amount has also no force. The enhancement was only to the extent of Rs. 50,000/-. As noticed earlier the last balance-sheet on 31st March, 1991 of the Complainant showed stock worth Rs. 1,53,920/-. Thus it cannot be said that the Complainant got the policy revised on 26th September, 1991 with a view to cheat the Insurance Company. As a result we confirm the order of the State Commission. Consequently we dismiss both the appeals. We make no order as to costs.