NATIONAL
CONSUMER DISPUTES REDRESSAL COMMISSION
First
Appeal No. 142 of 2002
(from the order dated 07.03.2002 in complaint No. 31 of 1999 of
the State Commission,
The Oriental Insurance Company Ltd., Appellants
Oriental House, PB No. 7037
A-25/27,
The Oriental
Insurance Co. Ltd.,
Quite Office No. 15,
First Floor
Sector 35 A
Through The Manager
Oriental Insurance Co. Ltd.,
Head Office
15,
Vs
M/s Western Nutrients Ltd Respondents
Western House,
SCO No. 341 342
Sector 35 B
Before :
Honble Mr Justice K S Gupta,
Presiding Member
Honble Dr P D Shenoy, Member
For the Appellant : Shri
L R Goyal, Advocate
For the Respondent Shri Ashok Kumar, Advocate
Ms
Shikha Maliyan, Advocate
Dated
ORDER
PER DR P D SHENOY, MEMBER
Dissatisfied
and aggrieved by the order of the State Consumer Disputes Redressal Commission,
UT of Chandigarh, in complaint No. 31 of 1999 dated
Brief facts of the case :
Complainant
M/s Western Nutrients Limited is running an industry for manufacturing of
biscuits at their factory at Kuranwala village, Derabassi. They had taken a fire policy on 06.04.1998 which
was valid upto 05.04.1999 covering building,
machinery, stocks, packing material etc., A fire took place on 27.10.1998 at
about 09.00 P M and the fire brigade was immediately informed, which
extinguished the fire by 01.30A M on 28.10.1998. Thereafter the complainant
lodged an FIR with PS Derabassi on 30.10.1998. It is
the case of the complainant that the fire caused a loss of Rs.
12,86,772/- but the Insurance Company awarded only Rs, 2,09,756/-. According to the complainant he was hard
pressed for the money for adjusting the working capital limit taken from the
Andhra Bank, Mohali and hencehas
received the said claim under protest. Therefore, the complainant filed a
complaint before the State Commission to pay the claim of Rs.12,86,772/- with interest @ 18% per annum.
The
opposite party Insurance Company appointed M/s Duggal
Gupta and Associates as Surveyor who inspected the premises and examined the
stock. On the basis of their report the Insurance Company awarded Rs.2,09,756/-. According to the Insurance Company, they relied
upon the report of the surveyor who had assessed the loss at Rs.1,99,756/- but it increased the amount of loss by a sum of
Rs.10,000/- and awarded Rs.2,09,756/-. The Insurance Company alleged that this
was accepted as full and final settlement, hence no more amount is payable to
the complainant as there is no deficiency in service.
Submissions of the learned Counsel for the appellant :
Learned
Counsel for the appellant Insurance Company submitted that they had paid a
sum of Rs.2,09,756/- which was received by the
complainant without any murmur. The complainant has filed a complaint before
the State Commission after two months. The State Commission has awarded Rs.10,77,015/- in addition to the amount collected by the insured
without any basis. The survey report is very clear and it is worth-while to go
through para 6 of the survey report wherein it is
clearly mentioned that the insured had not submitted some of the important
documents and there are also differences in the quality of biscuits as well as
the insured had reportedly received back certain quantity of biscuits which
were rejected due to lack of taste and quality. The insured had also claimed
relief from the Excise Department towards these rejected biscuits, and, he
cannot be benefited twice by claiming compensation from the Insurance Company.
A perusal of the form of Discharge for Fire Loss signed by the Insured Rs.2,09,756/- indicates that it is in full settlement of all the
claims upon the said company for loss or damage and expenses sustained by the
complainant and of all the demands arising from fire which occurred on
27.10.1998. The learned Counsel also submitted that high rich protein atta manufactured by Unit No. 2 is not covered by the
Insurance Policy. In view of the discharge voucher which is clear that it is a
full and final settlement and which is based on the survey report, the appeal
deserves to be allowed.
Submissions of the learned Counsel for the respondent :
The respondent was the complainant before the State
Commission. The learned Counsel submitted that the complainant was facing
financial crunch and had to adjust the working capital limit over drawn from
the Andhra Bank. Hence, he was under duress and had no choice but to give the
discharge voucher. He quoted the judgement : United India Insurance vs
Ajmer Singh Cotton and General Mills and Ors II
(1999) CPJ 10 (SC) to support his contention that issue of discharge voucher
was as a result of coercive bargaining. However, without any delay he has filed
the complaint before the State Commission.
He
also drew our attention to the coverage of the Insurance Policy which reads as follows :
To
the extent of Rs.34 lakhs only :-
Rs.20,00,000/- On stocks of finished goods such as
Biscuit + Confectionery items.
Rs.10,00,000/- Packing material
Rs. 2,50,000/- On the stock of raw material for
manufacturing of Biscuits + Confectionery items.
Rs.1,00,000/- Stocks in process
Rs. 50,000/- Diesel in tanker
The said stocks are lying in the building
of Ist class construction
belonging to the insured i.e. M/s Western Nutrients Ltd., at village Kuranwala, Derabassi, District Patiala.
Unit
No. 2 which manufactures protein rich atta which
itself is a raw material for biscuits manufacturing is located in the same
building and is not excluded from the coverage . He
showed several lacunae in the surveyors report. Survey report is signed for
M/s Duggal Gupta and Associates, Surveyors and Loss
Assessors by Shri Sanjeev Duggal and Shri Sanjay Gupta,
whereas it can be seen from the order of the State Commission wherein Shri Sanjeev Duggal
had categorically admitted in his cross examination that he had not accompanied
Shri Sanjay Gupta for conducting joint survey and as
a matter of fact that he did not go at all to the said premises. Whereas Shri Sanjeev Duggal
has stated in his cross examination about deputing Shri
Mukesh Gupta his partner to visit the premises at Derabassi, but neither Shri Mukesh Gupta has signed the survey report nor he has been
examined in this case and further Shri Mukesh Gupta has not filed any affidavit, so both the
affidavits lose their importance. The ld Counsel
submitted that the company has been regularly filing the statement before the
Bank and had declared the stocks to the bank. Further the complainant had filed
an affidavit and he was not cross examined by the Insurance Company. In support
of his contention he has submitted that in 2001 (3) Civil Court Cases 622 (SC)
Rajinder Pershad (Dead)
by L Rs vs Darshana Devi which reads as under :
Evidence Act, 1872, S 138 Cross examination To
impeach the credit of a witness an opportunity must be given to him to explain
his statement by drawing his attention to that part of it which is objected to
as untrue, otherwise his credit cannot be impeached.
FINDINGS :
The
incident :
The biscuit factory of M/s Western Nutrients Ltd was covered by fire policy
issued by the appellant and the policy was in currency on the date of fire
accident on 27.10.1998. Fire accident is not disputed and that the fire force
doused the fire in more than 2 hours and subsequently FIR was lodged with the
police department is also not disputed. The claim was filed with the Insurance
Company within the time limit prescribed is also not disputed. The Insurance
Company wants to rely upon the report of the surveyor. Whether
the factory Unit No. 2 manufacturing protein rich atta
was covered by the policy. The policy document does not make any
distinction between Unit Nos. 1 and 2 located at the same premises. It reads as
follows :
The said stocks are lying in the building of M/s
Western Nutrients Ltd., at village Kuranwala, Derabassi, District Patiala,
belonging to the insured built at the class Ist construction.
As observed by the Apex Court in M/s Shobika Attire vs New India
Assurance Co. Ltd., and Anr (Supra) :
Where the insured has discharged the initial burden regarding
destruction, damage of the showroom and the stocks therein by fire and riot in
support of the claim under the insurance policy, it is then for the insurance
company to disprove such claim with evidence, if any.
It
was for the Insurance Company to have taken efforts to disprove the same.
The
discharge voucher is not a bar in filing a complaint before the Consumer fora.
In this case, it is worthwhile to go through in detail the relevant paragraphs
of the judgment of the
The mere execution of the discharge voucher would
not always deprive the consumer from preferring claim with respect to the
deficiency in service or consequential benefits arising out of the amount paid
in default of the service rendered. Despite execution of the discharge voucher,
the consumer may be in position to satisfy the Tribunal or the Commission under
the Act that such discharge voucher or receipt had been obtained from him under
the circumstances which can be termed as fraudulent or exercise of undue
influence or by mis-representation or the life. If
in a given case the consumer satisfies the authority under the Act that the
discharge voucher was obtained by fraud, mis-representation,
under influence or the like, coercive bargaining compelled by circumstances,
the authority before whom the complaint is made would be justified in granting
appropriate relief. However, where such discharge voucher is proved to have
been obtained under any of the suspicious circumstances noted hereinabove, the
Tribunal or the Commission would be justified in granting the appropriate
relief under the circumstances of each case. The mere execution of the
discharge voucher and acceptance of the insurance claim would not estopple insured from making further claim from the insurer
but only under the circumstances as noticed earlier. The Consumer Disputes Redressal Forums and
Commissions constituted under the Act shall also have the power to fasten
liability against the Insurance Companies notwithstanding the insurance of the
discharge voucher. Such a claim cannot be termed to be fastening the liability
against the Insurance Companies over and above the liabilities payable under
the contract of insurance envisaged in the policy of insurance. The claim
preferred regarding the deficiency of service shall be deemed to be based upon
the insurance policy being covered by the provisions of Section 14 of the Act.
(Emphasis supplied).
In
this case the complainant borrowed loan from the Andhra Bank and the working
capital limit was exhausted and he was under pressure to adjust the working
capital limit. So it is a clear case of coercive bargaining.
Affidavits: In this case the complainant filed a
detailed affidavit indicating the date of accident, insurance coverage and the
loss sustained to the tune of Rs.12,86,772/-
but the Insurance Company has not cross examined the complainant.
Accordingly, his evidence has gone un-rebutted. The case cited (Supra) by the
learned Counsel for the complainant/ respondent that in 2001 (3) Civil Court
Cases 622 (SC) Rajinder Pershad
(Dead) by L Rs vs Darshana Devi is relevant wherein
it is held that:
there
is a age old rule that if you dispute the correctness of the statement of a
witness you must give him opportunity to explain his statement by drawing his
attention to that part of it which is objected to as untrue, otherwise you
cannot impeach his credit.
On
the other hand, the evidence of affidavit of the surveyors are
full of loopholes. Shri Sanjeev
Duggal who has not at all
gone to inspect the premises, has signed the survey report and has also
admitted the same during his cross examination. On the other hand, one Mr Mukesh Gupta a partner of Shri Sanjeev Duggal
has gone to the premises but has not filed any affidavit and accordingly, he
was not examined in this case.
The
following is the extract of affidavit of Shri Sanjeev Duggal, Surveyor where in
he has stated that :
I alongwith
Shri Sanjay Gupta, jointly conducted the survey of
the property at the premises of M/s Western Nutrients Ltd., at their factory at
Dera Bassi under the
instructions of the Senior Divisional Manager of the Oriental Insurance
Company.
In his cross examination, Shri
Sanjeev Duggal has stated
as follows:
The report dated 01.01.1999 Annexure R 1 has been
seen by me and it was prepared by me and bears my signatures. It is correct
that I was working with Shri Tarsem
Garg, C A on salary basis
but it was about 14 years ago. It is correct that I did not visit the premises
in question. It was only Shri Mukesh
Gupta, my partner who visited the premises at Derabassi
on 28.10.1998 and 16.12.1998.
Since I myself did not visit the factory, I am unable
to tell how recycling process is carried out. It is correct that I did not
visit the premises at all.
The
following is the extract of affidavit of Shri Sanjay
Gupta, Surveyor wherein he has stated that :
I alongwith
Shri S Duggal, jointly
conducted the survey of the property at the premises of M/s Western Nutrients
Ltd., at their factory at Derabassi under the
instructions of the Senior Divisional Manager of the Oriental Insurance
Company.
In
his cross examination Shri Sanjay Gupta, Surveyor has
stated as follows:
I alongwith Shri Mukesh Gupta and one person
concerning the complainant went to the premises on 16.12.1998. I went there in
the capacity of joint surveyor alongwith Shri Mukesh Gupta.
High Protein Atta may or
may not be used for manufacturing the biscuits. It depends upon the type of
biscuits which is proposed to be manufactured.
The report of the valuer
M/s Creativ Consortium, Annexure A 9 was not
adopted by because it was on higher side. It was not necessary to mention in
our report that the assessment made by the valuer was
on higher side. It is correct that fire continued for two days and the remains
continued simmering for seven days.
The
above extracts leads us to the conclusion that their
affidavits have lost much of their evidentiary value.
Whether
there were declared stocks :
The complainant had been submitting his stocks statement regularly to the
Andhra Bank, Mohali. For example, the insured had
submitted the following stocks statement :
S No. Date/Month Amount (Rs.)
1. 15.09.1998 Rs.30,14,700/-
2. 30.09.1998 Rs.29,62,075/-
That
the insured had submitted his statement is not in dispute. The surveyor has
stated that the report of the valuer M/s Creative
Consortium was not adopted because it was on a higher side. The rationale of
this conclusion for treating the report of the valuer
on a higher side has not been explained by the surveyor
Shri S S Dawan, Director of the
respondent in his affidavit has submitted that :
the respondent company have
not received any excise benefit and also not claimed any excise benefit of the
product received back from the customers and lying at the time of fire of
factory.
Accordingly, as the Company had not
received any excise benefit from the returned stocks, it may not be proper to
deduct any amount towards the same.
In
view of the above analysis we do not find any infirmity in the order passed by
the State Commission. Accordingly, the appeal is dismissed. There shall be no
order as to costs.
J
[ K
Presiding Member
[ P D Shenoy ]
Member
Rsk