SATISH KUMAR LAVJIBHAI PARMAR vs NATIONAL INSURANCE CO. LTD.

This revision petition has been filed by Satish Kumar Lavjibhai Parmar, against the order dated 13.09.2011 of the State Consumer Disputes Redressal Commission, Gujarat, (in short ''the State Commission'').

The brief facts are that the complainant availed loan of Rs.1.5 lacs from Vis Nagar Nagrik Sahkari Bank, Mehsana, Gujarat against stocks in October, 2001. He further obtained fire insurance policy No.300700/48/01/9802369 from the respondent valid from 25-10-2001 to 24-10-2002 with an insurance cover of Rs.3,00,000/-. Communal riots took place on 28.02.2002 and the shop of the petitioner was robbed and set on fire causing loss of more than Rs.3,00,000/-. The petitioner lodged complaint with the police and informed the insurance company in March 2002. The Insurance company appointed the surveyor and based on his report the Respondent deposited Rs.50,500/- in the account of the petitioner with the Nagrik Sahkari Bank, Mehsana in August, 2002 which was received by the petitioner under protest. The petitioner sent legal demand notice on 03.12.2002 for Rs.2,49,500/- to the insurance company and then filed complaint No.38/2003 before the District Consumer Disputes Redressal Forum, Mehsana on 24.03.2003.

The District Forum allowed the claim of the petitioner on 14.12.2007 and passed the following order:-

"(1) Complaint No.38/2003, filed by the complainant is partly allowed.

(2) The Respondent Insurance Company is hereby directed to pay remaining amount of Rs.2,49,500/- (Rupees Two Lacs Forty Nine Thousand Five Hundred only) along with interest @9% thereon w.e.f. 24.3.2003. In furtherance, respondent is directed to pay a sum of Rs.2000/- as legal expenses.

(3) The above mentioned amount, as per the order shall be paid within the period of 45 days, on failure complainant is given liberty to initiate legal proceedings for recovery of same."

The insurance company filed appeal No.1332/2008 before the State Commission which allowed the appeal and set aside the order of the District Forum vide its order dated 13.09.2011.

Hence this revision petition.

We heard the learned counsel for both the parties and perused the record.

Learned counsel for the petitioner argued that the District Forum had appreciated all the evidence available on the file and had ordered for payment of Rs.2,49,500/- to the petitioner. However, the State Commission has observed that no evidence has been filed by the complainant in support of his claim and State Commission has only allowed the amount assessed by the surveyor appointed by the Insurance Company. The State Commission has not appreciated the fact that the complainant had filed the monthly statement of stocks submitted to the bank from where the loan of Rs.1,50,000/- was taken by the complainant. As per this statement, the stocks was for more than Rs.4,00,000/- and hence the Insurance Company is liable to pay full insurance amount of Rs.3,00,000/-.

Learned counsel for the respondent argued that the Insurance Company immediately appointed the surveyor on receiving information of loss from the petitioner. The surveyor has assessed the loss as Rs.50,500/-, which was paid to the complainant in his bank account as full and final settlement. The State Commission has clearly observed that no evidence has been filed by the complainant in support of his claim to show the availability of the stocks. In these circumstances, the State Commission has rightly decided the claim based on the report of the surveyor. The learned counsel drew our attention towards para 5 of the order of the State Commission which reads as follows and is self explanatory.

"5. That looking at the reply filed by the respondent, complainant is having shop of Auto Parts at Ahmedabad in the name of Auto Engineering at Vis Nagar. He has obtained loan from Vis Nagar Nagrik Sahakari Bank on the goods stock for the value of Rs.1,50,000/-. The Insurance for the value of Rs.3,00,000/- was obtained from respondent. On 28.2.2002, the shop of the complainant was set on fire and goods were rubbed, thereby damage was caused. The complainant informed Insurance Company about that, so surveyor and Investigator was appointed, he has accessed the loss for Rs.50,000/-. This fact is not averred. So in the present case, it is to be decided limited to the fact that whether loss/damages can be assessed as Rs.50,000/- or not. The report of the surveyor is an important document and there is no dispute about that. Complainant has not produced evidence with regard to the stock of goods. The complainant failed to produce last statement of goods given by Vis Nagar Nagrik Sahkari Bank. The complainant could have produced the same for taking decision that how much goods were lying with him.

Moreover complainant has filed complaint before police. Sometimes estimated lossess are being mentioned in the panchanama prepared by police. Complainant has not produced such evidence. Complainant has not produced bills for purchase of goods. In other words complainants has not produced any evidence before Surveyor or us to show that how much goods were present in shop. In that circumstances, if report of the Surveyor has not been produced but if complainant has mentioned in the complaint that surveyor has mentioned in his report that loss was assessed as Rs.50,000/- then it is liable to believe. Complainant has not filed any other evidence with regard to loss. On the basis of the report of surveyor, complainant is entitled to recover a sum of Rs.50,000/-, accordingly said amount is paid to him. Complainant has to prove his case, complainant has not produced any evidence to prove that goods with Rs.3,00,000/- were present in shop. In that circumstances, the amount paid to complainant is proper and it can not be considered as deficiency in service by the respondent. Appeal is liable to be allowed."

We have carefully considered the arguments advanced by both the parties and have gone through the documents. The petitioner is relying on the monthly statements of stocks submitted to the bank by the petitioner in respect of the credit facility of Rs.1,50,000/- obtained from the bank. The copies of these statements were submitted before the District Forum. The State Commission has not discussed anything about these statements in its judgment. The surveyor has also not mentioned anything about these statements in his survey report dated 18.07.2002. In fact the report of the surveyor is very sketchy and for the valuation and loss, it mentions only the following:-

"8.00. THE VALUATION:

8.01 We verified Insureds available records and after verifying nature and trend of business, size and location of the shop and inquiry in the neighbourhood, total value of Insureds Stock of Auto Spare parts whilst stored/lying in the premises at the time was worked out as under:

Section 1 B- Stock in Trade

Value of Insureds Stock of Auto Spare parts of every description whilst stored/lying in the shop premises at the time as per verification: Rs.50,500/ -

Total Value : Rs.50,500/-

(Insureds were fully covered)

00 THE LOSS & DAMAGE:

9.01 Due to looting/fire, intense heat and smoke effects, Insureds Stocks of Auto Spare Parts of every description whilst stored/lying in the premises were looted/ransacked/total loss. Insureds furnished us their estimate of loss and damage to Stocks based on memory. We verified the same and after prolonged discussions with the Insureds, the amount of loss was worked out as per the details given her under:

Section1 B- Stock in Trade

Value of looted/ransacked/destroyed/total loss stock of Auto Spare parts of every description whilst stored/lying in the shop premises at the time as per valuation having no commercial value of salvage: Rs.50,500/-

Amount of Loss : Rs.50,500/-

Surveyor has not mentioned about the documents examined. It is not clear as to how the surveyor has arrived at the figure of Rs.50,500/- without giving any details of the documents or accounts book or purchase bills or stock register examined. We also observe that the panchnama of the police also mentions that "his shop entire spare parts have been burnt out cost of Rs.5,60,000/- and machinery were theft and carried with them which was cost of Rs.3,00,000/- thus total cost of Rs.8,60,000/- lost occurred as per witness.."

From the above examination, we reach to the conclusion that the true picture of valuation and loss has not been assessed by the surveyor in his sketchy report. The surveyor has not even mentioned what documents were submitted by the complainant to him and which documents were examined. In this situation, surveyor''s report cannot be relied upon. Now, we are left with the question of deciding the actual insurance claim amount. In the circumstances that the monthly stock statements submitted to the bank show a stock position of more than Rs.4,00,000/- and panchnama mentioning loss of Rs.8,60,000/-, we can safely infer that the complainant must be maintaining stocks at the level that he must have purchased with the loan amount of Rs.1,50,000/-. Accordingly, we are of the view that the complainant may be allowed the insurance claim of Rs.1,50,000/- only. As Rs.50,500/- has already been credited to the account of the complainant, the Insurance Company is directed to pay Rs.99,500/- (Rupees Ninety Nine Thousand Five Hundred only) to the complainant along with interest at the rate of 7% p.a. from the date of order of the District Forum i.e.14.12.2007. Accordingly, the order of the State Commission dated 13.09.2011 stands modified. This order may be complied within a period of 60 days, failing which, the Insurance Company shall be liable to pay interest on the amount of Rs.99,500/-(Rupees Ninety Nine Thousand Five Hundred only) at the rate of 12% from the date of this order till realization. No order as to costs.