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National Insurance Co. Ltd. vs. Shri Giriraj Proteins dated 2012-09-03

 

NATIONAL CONSUMER DISPUTES RERESSAL COMMISSION
NEW DELHI
 
REVISION PETITION NO. 2303 OF 2012
 (From the order dated 09.03.2012 in Appeal No. 722/2004 of the
State Consumer Disputes Redressal Commission, Gujarat)
WITH
IA/1/2012
IA/2/2012
(STAY & EXEMPTION TO FILE ADDL. DOCUMENTS)
 
 
National Insurance Co. Ltd.
Through Manager
Delhi Regional Office-I
Jeevan Bharti Tower-II, Level-IV
124, Connaught Circus
New Delhi – 110 001                                                  …  Petitioner
Versus
 
Shri Giriraj Proteins
Through its Proprietor
Cetanbhai Nitinkumar Shah
R/o Chakliya Road
Shri Ram Builders Compound
Dahod, District Panchmahal                                                 …  Respondent                                                    
         
           
BEFORE:
      HON'BLE MR. JUSTICE J.M. MALIK, PRESIDING MEMBER
      HON’BLE MR. VINAY KUMAR, MEMBER
 
For the Petitioner     :        Mr. Ranjan K. Pandey,  Advocate with
                                          Mr. K.K. Bhat, Advocate
                                                       
Pronounced on _3RD   SEPTEMBER, 2012
 
ORDER
 
 
JUSTICE J.M. MALIK
 
1.      The present  revision  petition  has been filed by National Insurance Company Ltd.  The complaint filed by Sh.Giriraj Proteins was dismissed by the District Forum vide order dated 13.07.2004.  The State Commission has partly allowed this complaint.  Aggrieved by that order, the National Insurance Co. Ltd, the respondent has filed the present revision petition. 
 
2.      The relevant facts of this case  that  will be required to be noticed lie within a short compass.  Respondent/complainant was running a flour mill in Shriram Builders Compound, Opp. Maruti Pulse Pvt. Ltd. Dahod, Chakalia Road, District Dahod.  Plastic and gunny bags were used by the complainant for packing of different products.  The packed material was kept in storage place in the premises of the complainant.  The complainant had obtained the insurance policy for machinery,  goods, stock, packing material, etc., for the period from 08.06.2002 to 07.06.2003 for a sum of Rs.62,00,000/- which also covered the risk of earthquake and terrorism.  He had also taken loan from Dahod Co-operative Bank for transacting the above said business.
 
3.      Fire broke out in the premises of the complainant/respondent on the night intervening 6th and 7th May, 2003.  Due to the above said mishap, some quantities of wheat, flour of wheat, husk, raw material, electric motors and electrical fittings were damaged  due to heavy  flow of water and fire. The complainant informed the insurance company.  The complainant claimed a sum of Rs.28,39,082/-. The insurance company appointed a Surveyor who quantified the loss at Rs.11,17,904/-.The sum of Rs.11,17,904/- was offered to the complainant and he received the same as ‘full and final’ settlement of the claim, and he accepted the amount,  without any protest.  However, the complainant filed a complaint before the District Forum wherein he claimed a total sum of Rs.29,51,305/-, along with interest @ 15% p.a. and an additional sum of Rs.65,000/- as cost of litigation.The complainant also contended that he had accepted the sum of Rs.11,17,904/- under pressure. The District Forum dismissed the complaint vide its order dated 13.07.2004.
 
4.      An appeal was preferred before the State Consumer Disputes Redressal Commission, Gujarat.  The State Commission dismissed the appeal at the admission stage holding that the Appellant/complainant was not a “consumer”.  Feeling aggrieved, the present revision petition was filed before this Commission. On 22.04.2009, the National Commission in RP No.3391/2004  came to the conclusion that the view taken by the State Commission was contrary to the view taken by this Commission in the other connected case, M/s. Harsolia Motors Vs. National Insurance Co. Ltd., decided on 03.12.2004.  This Commission had set aside the order dated 05.10.2004 delivered by the State Commission.  This Commission remitted the case back to the State Commission and referred the parties to appear before the State Commission. 
 
5.      On  28.01.2011, the State Commission remitted the case back to the District Forum, after setting aside the order and directed the District Forum to try the case on merits.  Aggrieved by that order dated 28.01.2011, a revision petition was filed before this Commission.  This Commission vide its order dated 03.11.2011, allowed the revision petition and directed the State Commission to decide the Appeal No.722/2004 on merits after giving appropriate opportunity to the parties.  Vide impugned order, the State Commission  partly accepted the appeal and directed the petitioner/opp.party to pay to the complainant a sum of Rs.14,35,525/-, with interest @ 9% p.a. from 16.09.2003 i.e. the receipt of amount as per voucher, till realization.  The petitioner was also directed to pay to the complainant a sum of Rs.10,000- towards mental agony and another sum of Rs.5,000/- towards costs of the proceedings.
 
6.      Three-fold arguments  submitted  by  the  Counsel for the petitioner are these.  The learned counsel for the petitioner highlighted the fact that the report of  the Surveyor should have been made the basis of the quantum for damages. There are two reports of  the same Surveyor.  The first Surveyor is dated 24.08.2003 wherein the loss in damage was assessed upto Rs. 10,88,333/-.  The second report is dated 19.09.2003 which  mentions  “Thus revised assessed loss amount works out to be Rs. 11,17,904/-“.  The learned counsel for the petitioner vehemently argued that they have already paid the said amount to the complainant and the Insurance Company should not be burdened with any other amount.
 
7.      This  argument is devoid of merit.  The learned State Commission has held that as per the Hon’ble Supreme Court of India, authorities reported in New India Assurance Co. Ltd. Vs. Pradeep Kumar, IV (2009) CPJ 46 (SC) and New India Assurance Co. Ltd. Vs. Protection Manufacturers Pvt. Ltd., II (2010) CPJ 40 (SC), “the report of the Surveyor is not the last and final word.  It is not a conclusive proof.  It can be ignored if it is perverse or arbitrary, based on mere inferences or surmises and/or in suspicion”. It is, therefore, unequivocal that the acceptance of the report  of  Surveyor cannot be made a rule of thumb.  There can be exceptions.
 
8.      The reports  made by  the Surveyors  are  contradictory.  The same are based on observations made and the details collected from the insured, from time to time.  It must be borne in mind that the books of accounts maintained by the insured are audited.                                                 
9.      Secondly, bank account was properly maintained and copies of audited balance sheets and accounts were supplied to the Surveyor.
 
10.    Thirdly, the complainant is an Income Tax Payee and the complainant is covered under the Income Tax Act, 1861 and as such, they are required to maintain the Stock Register, Bill Vouchers, etc.  The  accounts of the complainant are being audited by a Chartered Accountant. The details of Machinery, Stock, etc., are submitted to the Bank.  Again,  the Stock and Stock Register  are physically detailed and verified by the Bank.
 
 
11.    It is apparent that the counsel for petitioner could find nothing to cavil about this kind of evidence.  The entire case has to be viewed holistically.  It  cannot be considered in bits and pieces. It was never argued that bank accounts, the audited books of account or  the income tax  return were having some flaws and as such those have to be eschewed out of consideration.   The reasons for difference in opinion of Surveyor and the evidence addressed by the complainant were never listed.  The complainant  has  adduced irrefutable  evidence and his case stands proved  without  ‘ifs and buts’. 
 
12.    The claimant has claimed different amounts for the loses.    Rs.5,54,960/- for damaged stock, Rs.90,662/- for loss of packing material, Rs.5,90,120/-  for salvage of damaged stock and Rs.3,09,785/- for repair of machines.  The total amount claimed excluding damages to electric wiring and fittings, which did not come within the purview of the policy would come to Rs.15,35,525/-.  The petitioner has not produced any evidence in rebuttal.  They have failed to show that the claim made by the petitioner does not tally with their  accounts books, Stock register, bill vouchers, etc.  The learned State Commission rightly held that as per the report of the Surveyor, there is minor or marginal revision so it directed the  petitioner/opp.party, Insurance Company to pay the complainant/respondent a sum of Rs.14,35,525/- along with interest @ 9% p.a.  We see no illegality or infirmity in this order.                                      
13.    The second submission made by the counsel for the petitioner was that once the complainant had accepted the amount of Rs.11,17,904/- they are estopped from calling the same into question.  The revision petition should be accepted on this score only.
 
14.    The learned State Commission did not listen to this eye-wash in view of the authorities of this Commission, reported in New India Assurance Co. Ltd.  Vs. Kohinoor Sizing Factory, II (2006) CPJ 237 and Smt. Niharika Maurya Vs. Chief Manager, New India Assurance Co. Ltd. & Ors, pronounced on 21.04.2011,  wherein this Commission has held that mere execution of  discharge voucher and acceptance of insurance claim would not estop the insured from  making further claim from the Insurance Company.
 
15.    In Central Water Transport Corporation Ltd. Vs. Tarun Kanti Sengupta, (1986) 3 SCC 156, the Hon’ble Apex court has held that “Where a man has no choice or rather no meaningful choice but to give consent to contract or sign on the dotted line in prescribed or other forum or to accept set of rules as part of contract, however, unfair, unreasonable and unconscionable, a clause in that contract may be, the courts will not enforce and will when called upon to so, strike down as unfair and unreasonable clause in a contract entered into between the parties who are not equal in bargaining power”.
 
16.    In Oriental Insurance Co. Ltd. Vs. Government Tool Room and Training Centre, I (2008) CPJ 267 (NC), this Commission has held that “it is wrong practice followed by insurance companies in not paying single pie without having discharge voucher.  It is a coercive bargaining as insured has no option but to sign the discharge voucher. Mere execution of discharge voucher and acceptance of insurance claim will not estop the insured from making further claim”.
It is well said that purpose of law is to prevent the strong always having their.
 
17.    The revision petition is meritless and the same is dismissed.
 
 
..…………………..………J
    (J.M. MALIK)
      PRESIDING MEMBER
 
                                                           
  ……………….……………
                                                        (VINAY KUMAR)
                                                                           MEMBER
 
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