Umesh Chandra Saha vs National Insurance Co. Ltd.

THE present revision petition has been filed by Umesh Chandra Saha (hereinafter referred to as the Petitioner) against the order of the State Consumer Disputes Redressal Commission, Tripura (hereinafter referred to as the State Commission) in favour of National Insurance Co. Ltd.(hereinafter referred to as the Respondent).

THE case of the Petitioner, who was the original complainant before the District Forum was that he had purchased one Shopkeepers Package Policy on 30.01.2001 from the Petitioner/Insurance Company in respect of his shop premises which covered various types of risks including burglary and which was valid upto 29.01.2002. On the night of 26/27.12.2007 some unknown miscreants stole huge quantity of goods from his shop premises and the Petitioner accordingly lodged an FIR with the Police on 27.12.2001 itself. Petitioner also gave necessary intimation to the Respondent on that date. THE police visited the premises for investigations on 28.12.2001 and one Nantu Das, representative of the surveyor appointed by the Petitioner also visited the premises and took photographs etc. and advised the Petitioner to meet the surveyor in his office. Petitioner accordingly met the surveyor and submitted his claim along with a large number of documents which included the police report, audited accounts for financial years 1999 to 2002, list of stolen goods, clearance certificates issued by banks and some original purchase memos. Petitioner also requested that the Respondent may settle his claim at Rs.1,28,981/- being the loss suffered by him as a result of the burglary to enable him to run his business. THE Police assessed the approximate value of the stolen goods at Rs.1 lakh. However, the surveyor never visited the premises of the Petitioner but sent his representative to do so. Respondent settled the claim after several reminders at Rs.17,905/- only against the claim filed by Petitioner of Rs.1,28,981/-. Petitioner being aggrieved with this amount, pursued the matter with the Insurance Ombudsman, Guwahati who referred the matter back to the Respondent to deal with the matter fairly taking into account the loss of Rs.1,28,981/-. However, Respondent did not pay any heed to the order of the Insurance Ombudsman and confirmed the settlement at Rs.19,905/-. Aggrieved by this order, Petitioner filed a complaint before the District Forum requesting that the Respondent be directed to pay him Rs.1,28,981/- being the loss sustained due to the burglary of the insured premises with interest @ 18% per annum from 27.12.2001 to 09.10.2003, Rs.1 lakh as cost of harassment and mental agony amount to a total claim of Rs.3,02,718/-.

Respondent on the other hand stated that the Petitioner did not file relevant documents or evidence to support his excessive claim of Rs.1,28,981/-. On the other hand the Surveyor on the basis of site inspection and taking into account the necessary documents made available to him rightly assessed the loss to be at Rs.19,562/-.

THE District Forum after hearing both parties partly accepted the complaint. According to the District forum, the quantum of loss due to burglary at Rs.1,28,981/- had not been disputed but the surveyor had deducted 80% from the value of cigarette items of Rs.97,793/- while assessing the loss. Even the Insurance Ombudsman had observed that there did not appear to be any logical reason for deduction of 80% amount. THE District Forum also concluded that the Petitioner had submitted necessary documents to the Surveyor and, therefore, the surveyors contention that this was not made available to him is not correct. THE operative part of the order of the District Forum reads as follows: From the award of the Insurance Ombudsman, it is very much evidence that quantum of burglary of Rs.1,28,981/- was not disputed and the surveyor calculated physical stock after burglary at Rs.3,12,149/- and the venue of stock at risk prior to theft as per account is Rs.4,41,130/-. It is the main contention from the side of the O.P. that the complainant did not produce his purchase memo for the period from 01.04.2001 to 28.12.2001 to the Surveyor of the O.P. and the list of copy of documents submitted on behalf of the complainant is manipulated in respect of submission of purchase memo to the Surveyor. It is stated in the written objection that the Surveyor vide his letter dated 28.04.2003 gave reply to the O.P. that the complainant never handed over the purchase memo to him but the said letter dated 28.04.2003 given by the surveyor to the O.P. is not submitted the said surveyor is also not examined from the side of the O.P. to show that the complainant did not produce the purchase memo for the period from 01.04.2001 to 26.12.2001 to the Surveyor. Moreover, the report of Surveyor on the basis of which the O.P. offered Rs.17.905/- to the complainant to settle his claim or any other document is not submitted from the side of the O.P. though from the record it revealed that several adjournments were granted in favour of the O.P. for submitting necessary document. As such on the basis of materials on record it can be safely presumed that the complainant produced the relevant purchase memo of his shop premises for the relevant period from 1.4.2001 to 26.12.2001 to the Surveyor in respect of his claim. In view of the above, considering the totality of the facts and circumstances and material on record we are of the considered view that the complainant is entitled to get Rs.1 lakh as loss of stock due to burglary, after lump sum deduction of Rs.28,981/- as per rules.

THE District Forum directed the Respondent to pay the Petitioner Rs.1 lakh as insurance claim from the date of filing of the complaint i.e. 28.10.1993 till the date of realization with interest @ 6% per annum on the said amount. Aggrieved by this order, Respondent filed an appeal before the State Commission which partly accepted the appeal. According to the State Commission considering the space of the shop, it did not appear to be correct that the Petitioner had stocked cigarette items worth Rs.97,793/- and, therefore, State Commission believed the surveyors report that the Respondent had inflated the loss amount pertaining to cigarettes at Rs.97,793/- and accepted the surveyors assessment of the loss at Rs.19,562/-. The State Commission further observed that it was not clear as to why the Surveyors report is silent about the fact that the Petitioner had stocked other non-cigarette items worth Rs.31,172/- which were stolen during the burglary; perhaps because of non-production of bills and vouchers in support of this. However, State Commission felt that the Petitioner is still entitled to reasonable compensation on account of non-cigarette items which it assessed at Rs.21,172/- and, therefore, directed the Petitioner to pay to the Respondent, Rs.40,734/- along with interest @ 6% per annum and Rs.1,000/- as litigation cost. Aggrieved by this order, the present revision petition has been filed by Petitioner. Learned counsel for both parties made oral submissions. Learned counsel for Petitioner stated that the State Commission erred in settling the claim, ignoring the actual loss suffered on account of cigarette items by the Petitioner which was worth Rs.97,793/- and from which Respondent had arbitrarily deducted 80% amount. Apart from this the District Forum which is a court of fact had after taking into consideration the evidence produced before it concluded that the Petitioner, in fact, had produced the necessary purchase vouchers etc. regarding all stocks which were stolen and, therefore, had awarded him Rs.1 lakh which was a more realistic estimate of the loss suffered by the Petitioner which the Respondent was duty bound to indemnify.

COUNSEL for Respondent reiterated that the Petitioner did not cooperate in providing necessary documents to the surveyor and the surveyor after site inspection rightly concluded that cigarettes worth Rs.97,793/- could not have been stocked there and finalized the claim accordingly. The report of the surveyor is a credible piece of evidence and this has been confirmed by several rulings of this Commission as well as of Apex Court. Petitioner has not presented any cogent reasons to controvert with findings of the surveyor based on factual reasoning. The revision petition therefore, deserves to be dismissed.

WE have considered the averments made by the learned counsel for both parties and have gone through the evidence on record. The fact that an insurance policy was taken by the Petitioner for his premises from the Respondent is not in dispute. It is also not disputed that a burglary took place in which the Petitioner suffered losses. It is on record that the Police had assessed the loss at about Rs.1 lakh. WE note that the main reason for the Respondent settling the claim at a much lesser amount was because the surveyor in his report deducted 80% of the cost of the cigarette items reported to have been stolen, thus, substantially reducing the estimated loss. The reason given by the surveyor for this deduction was that the shop was too small to stock cigarettes worth Rs.97,793/-. The surveyor in his report has not indicated the dimensions of the shop and other relevant details to substantiate this finding. On the other hand, stocking of cigarettes worth Rs.97,793/- would not occupy much space and we note that Insurance Ombudsman had also expressed doubts about the drastic 80% reduction in determining the loss for cigarettes by the surveyor. WE are thus not convinced by the report of the surveyor in the absence of supporting details for disputing the claim pertaining to the cigarette items stolen during the burglary. It is also a fact that the surveyor has disregarded the loss suffered by the Petitioner on account of other items which were burgled, estimated to be Rs.31,192/-. Even the State Commission which has otherwise given a favourable order so far as the Respondent is concerned, has also observed that the surveyor should have assessed the loss of non-cigarette items for settling Petitioners claim. While we agree that the report of the surveyor is important evidence but in this case for reasons recorded above, we are unable to agree with these findings. The District Forum which is the first court of fact after examining the evidence and also taking into account the survey report had assessed the loss as Rs.1 lakh and directed that this amount be paid by the Respondent to the Petitioner in settlement of his insurance claim. WE find that the order of the District Forum is sound and rational and arrived at after considering all relevant facts and evidence on record and, therefore, uphold the same. The order of the State Commission is set aside. The Respondent is directed to pay the Petitioner Rs.1 lakh as insurance claim from the date of filing of the complaint i.e. 28.10.1993 till the date of realization with interest @ 6% per annum on the said amount within six weeks from the date of this order. The revision petition is disposed of accordingly.