S.C. Jain, Member:
1) The facts of the case are that the complainant is a Pvt. Ltd. company duly incorporated under the Companies Act, 1956 having its registered office at New Delhi and engaged in the business of manufacturing of readymade garments and woollen knit wear.
2) The complaint through their banker namely Punjab National Bank, took fire policy in the sum of Rs. 2.20 Crores on 7thNovember 2006 for one year. It was further stated that on 26thDecember, 2006 at about 6.00 pm a fire broke out in the premises of the complainant factory which had been insured under the fire policy. Immediately the OP No. 2 had been informed by the complainant about the fire and the bank on its turn informed the OP No. 1 about incident of fire. The Fire Brigade was also called to control and extinguish the fire. It is further case of complainant that the surveyor came to visit the site only on 27thDecember 2006 at about 6.30 pm i.e. after more than 24 hours of breaking out the fire and receiving the information on behalf of the complainant. The officials of fire brigade got control over fire and in the process of extinguishing the fire flow of water had been logged on the flooring of the factory and in that process the finished and semi-finished garments at complaint factory remained sub-merged in the water for more than 24 hours, damaging the quality of the garments.
3) The surveyor visited the factory and carried out the inspection for about 4 hours and completed the same at about 10.00 pm in the night on 27thDecember, 2006. It is further case of the complainant that various times surveyor instructed the complainant to furnish the information, details and various documents in order to claim insured money. Every time the complainant followed the instructions and submitted all the documents and information to the satisfaction of the surveyor.
4) The opposite party no. 1 sent a cheque for amount of Rs. 2,59,074/-, referring the same against the full and final settlement under the policy. No reasons or details were given by the OP to fix the claim of the complainant at Rs. 2,59,000/-, it has been further stated by the complainant that they received the cheque dated 18.05.2007 for amount of Rs. 2,59,074/- under protest. It his further stated by the complainant that a letter dated 14.06.2007 sent to the OP-1 enclosing purchase orders, export invoices and the costs of re-conditioning etc., which was duly received by the OP-1. Subsequent letters have also been sent by the complainant requesting the OP-1 to settle the claim of the complainant however, no action was taken and complainant was assured by the OP-1 to consider the claim of the complainant.
5) OP-1 vide letter dt. 15.12.2008 revised the compensation amount to RS. 5,24,620/-. The OP whimsically and arbitrarily revised the amount of compensation without giving valid and cogent reasons but the complainant stated that they are entitled for indemnification for RS. 22 Lac in view of the loss caused to them on account of incident of fire and such claim has been substantiated by documentary evidence and filed the complaint before this Commission, praying therein to direct the OP-1 to pay a sum of Rs. 21,27,173/- alongwith interest @ 18% p.a. from the date of fire till the date it is paid and has further prayed for award of compensation of Rs. 5 Lac towards mental agony and harassment and inconvenience caused to him and has also prayed for awarding litigation cost also.
6) Registered AD notice was sent to the OP, who appeared and contested their case.
7) The OPs filed written statement raising various preliminary objections and other grounds stating that complainant was not entitled for the compensation. The complaint was opposed on the ground that fire was direct result of inadequate electrical safety provided by the complainant in the insured premises. Further it was contended that OP-1 was not directly informed of the alleged incident and loss. It has been replied by OP-1 that alleged loss has already been assessed by the duly authorised and an IRDA accredited surveyor and the payment as per the assessment has already been made by the OP.
8) The complainant filed replication to the written statement of the OP asserting his claim. Evidence has also been filed on behalf of the complainant but no evidence has been filed either by the OP-1 or OP-2.
9) We have perused the material available on record and have given our thoughtful consideration to the facts and circumstances available on record.
10) First of all it is not in dispute that incident of fire occurred in the premises of the complainant and surveyor of the OP-1 visited the premises and prepared its survey report. It has also been admitted by the OP-1 that first of all a compensation of Rs. 2,59,074/- was paid by the OP-1 to the complainant and subsequently after the requests and reminders of the complainant the amount of compensation was enhanced upto Rs. 5,24,620/-.
11) From the record it is also quite apparent that neither OP-1 nor OP-2 have filed their evidence despite opportunities meaning thereby that written statement and contentions of the OP have not been proved in accordance with law and thus, claim of the complainant stands un-cotroverted and evidence filed by the complainants remains un-rebutted. We are further convinced with the arguments advanced by the counsel for the complainant that despite the service of repeated representation served upon the OP-1, no reply or explanation was submitted to the complainant. In our considered opinion it was mandatory on the part of the OP-1 to reply that surveyor appointed by the OP-1 was qualified and he prepared the survey report, exercising his due diligence and fairness. If the OP-1 have chosen to maintain silence then it will amount to acceptance to the challenge of qualification of surveyor by the complainant.
12) Our attention has also been drawn upon the report confirmed by Fire Department and supported by OP-2 to whom goods were hypothecated. Copy of the report of fire department of UP has been placed on record as Ex. P-20 by the complainant. This report of fire department estimates the loss to the complainant to the tune of Rs. 35 Lac. Further we find force and merit in the case of the complainant that genuinely and fairly it has been explained by the complainant that the efforts were made by the complainant to rectify the damaged Garments to make them usable and saleable. Thus complainant attempted to reduce and minimize the loss by making such rectification. Once, it has also been confirmed by the fire department also that loss occurred to complainant was to the tune of Rs. 35 Lac then in these circumstances we do not find any reason why the claim of compensation of Rs. 22 Lac with interest should not be granted to the complainant.
13) It is strange that first of all loss was assessed by the surveyor at Rs. 2,59,074/- in terms to the damaged goods then without giving the reasons the OP-1 himself enhanced the amount of compensation to the tune of Rs. 5,24,620/-. The OP-1 failed to assess the loss caused to the complainant genuinely and fairly and thus the same is wrong, whimsical and arbitrary action on the part of the OP-1 which certainly amount to deficiency in service rendered by OP-1.
14) The complainant having been taken the policy of insurance definitely false within the definition of consumer against OPs under Consumer Protection Act. Hence, we are not agreed with the submissions of the OP that complainant does not fall within the definition of consumer. The Honble National Commission in Harsolia Motors case took the same view that availing of insurance services by firm or company is not hiring services for commercial purpose because insurance is indemnification of future loss whenever it is caused and insurance policy is not taken for making profit.
15) In view of the aforesaid discussed facts and circumstances, we are of the considered opinion that surveyor appointed by the OP-1 failed to exercise his due diligence and the report prepared by him assessing the loss to the complainant was not genuine and fair. The authenticity of the report of the surveyor was also questioned by the OP-1 himself that is why the loss assessed by the surveyor was enhanced by the OP-1 himself. Further complainant has produced all the documents required by the OP-1 and cooperated fully with them. We do not find any force in contention of the OP-1 that incident of fire was not reported directly by the complainant to the OP-1. It is quite evident that there was no delay or negligence on the part of the complainant in reporting the matter of incident to OP-1 which was done through their Banker i.e. OP-2. It is not the case of theOP-1 that complainant failed to supply the requisite documents or the complainant failed to cooperate with the OP-1. It is also more significant that despite the opportunities evidence has not been given by the OP-1 in order to counter to the claim of the complainant. Ex-P-20 has also proved the case of the complainant wherein fire department has assessed the loss to the complainant more than claimed by the complainant before this Commission. In view of these facts and circumstances, the complaint filed by the complainant deserves to be allowed.
16) Hence complaint filed by the complainant before this Commission is allowed and OP-1 is directed to pay to the complainant an amount of Rs. 21,27,173/- less Rs. 2,59,741/- (which had already been paid by OP-1 to the complainant) this remaining amount is to be paid by the OP-1 with 10% interest from the date of filing of the complaint i.e. 15.07.2009 till the realisation of the amount. The OP shall also pay an amount of Rs. 1,00,000/- to the complainant as compensation for mental agony and harassment and inconvenience caused to the complainant. This will include cost of litigation also.
17) Copy of the order be made available to the parties free of cost as per law and case file be consigned to record room.