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Judgment
AGGRIEVED by the order dated 17.5.2006 passed by the West Bengal State Consumer Disputes Redressal Commission, Kolkata in S.C. Case No. 460/A/2004, the original complainant has approached this Commission by filing the present petition purportedly under Section 21 (b) of the Consumer Protection Act, 1986. The appeal before the State Commission was filed by the opposite party-Insurance Company against the order dated 7.10.2004 passed by the District Consumer Disputes Redressal Forum, Siliguri in complaint case No. 28/S/2003. By the said order, the District Forum allowed the complaint of the complainant and directed the Insurance Company to settle the insurance claim of the complainant in respect of the loss and damage suffered by him at his factory premises and stocks lying therein at Rs. 5,06,344 with a stipulation that the amount shall be paid within sixty days from the date of the said order, failing which the complainant was granted liberty to seek enforcement of the said order in terms of the Sections 25 and 27 of Consumer Protection Act, 1986. In appeal, the State Commission after discussing the whole gamut of controversy and pleas put forth from the side of the parties at length, lastly came to the conclusion that the case was not fit enough to be decided by a Consumer Fora in exercise of its Summary jurisdiction and, therefore, it was required to be proceeded in a fulfledged manner before the appropriate Forum. Hence this petition.
WE have heard Mr. Sanjay Dewan, learned Counsel for the petitioner and Mr. M.N. Singh, learned Counsel for the respondent-Insurance Company and have considered their submissions. Before we dwell on the respective submissions, it is pertinent to note that when the revision petition came up for its preliminary/admission hearing on 13.2.2007, this Commission passed the following order: "District Forum without having any pecuniary jurisdiction entertained the matter and awarded compensation of Rs. 5,06,344 without considering the amount of salvage. The complainant/petitioner refused to surrender the salvage. The State Commission on appeal held that the matter could be decided only in the Civil Court. In view of the fact that the petitioner is inclined to take by way of interim measure the amount awarded by the District Forum minus salvage as assessed by the Surveyor for the present. Admit. Issue notice to the respondent returnable on 30.4.2007. "
It would appear that the said order was passed by the Commission and limited notice was issued to the respondent-Insurance Company going by the findings and order made by the District Forum as also several specific observations made by the State Commission in its order. In this way, the gamut of controversy between the parties has been narrowed to the question as to whether the complainant is entitled to the awarded amount minus salvage value as assessed by the Surveyor.
THE facts and circumstances, which led to the filing of the complaint are amply noted in the orders of the Fora below and need no repetition at our end. The complainant-petitioner had taken a fire policy to cover the risk of ply board factory against the risk of various perils including fire peril in the sum of more than Rs. 43.00 lacs. According to him, there was a heavy cyclone in the area as a result of which the part of the shed of the factory was dismantled, besides causing damage to the finished and stocks of raw material lying there. Though, a preliminary and thereafter a final Surveyor was appointed, who failed to ascertain the loss claimed by the complainants for various reasons. Insurance Company repudiated the claim. Complainant filed the complaint claiming a sum of Rs. 5,06,344, which was resisted by the Insurance Company on the same ground it had already repudiated the claim. Counsel for the petitioner-complainant would assail the impugned order passed by the State Commission and submits that the same is not based on the correct and proper appreciation of the facts and circumstances of the case and least it being in consonance with the legal position as laid down by the Hon ''ble Supreme Court. We find force in this contention because surprisingly, the State Commission has come to the conclusion that the case was not fit to be tried in a summary jurisdiction after having discussed the entire gamut of controversy and the pleas raised by the parties before the State Commission. In our view, the State Commission has erred in making the order relegating the complainant to the other Forum of a regular jurisdiction for adjudication of his claim.
LEARNED Counsel for the petitioner-complainant has then invited our attention to certain observations made by the State Commission on internal pages 3, 4 and 5 of the Judgment and then in the opening paragraph of the internal page-7 of the impugned order, which we would like to extract herein for the facility of reference: "The Respondent in its written argument stated Firstly -the pecuniary jurisdiction -It is undisputed that the claim amount was Rs. 5,06,344 before the learned District Forum at Siliguri. It is similarly true and correct that on the date of filing of the complaint before the learned District Forum at Siliguri, the limit of pecuniary jurisdiction was Rs. 5,00,000 only as alleged. The complaint was filed on 12.3.2003. It is equally admitted position of Law and subsequently by way of amendment w.e.f. 15.3.2003 the amount of pecuniary jurisdiction was raised to Rs. 20,00,000. Therefore, on 12.3.2003 the amount claimed was certainly beyond the pecuniary jurisdiction of the learned District Forum. But, the position of settled law is quite different as it would appear from the under mentioned decision reported by the different State Commission, National Commission and Supreme Court. It would appear that the appellant raised the point of pecuniary jurisdiction for the first time before the Commission in this appeal is the important aspect which we should bear in mind. My humble submission that as the appellant did not raise this question before the lower Forum there has been statutory waiver of its right to take this plea of pecuniary jurisdiction at the appeal. "
Secondly, "the argument of the learned Lawyer for the appellant as appearing in Para-3 of the written argument is the admission as to the claim amount to Rs. 5,06,344, and learned District Forum decreed the complaint awarding the claim amount to the tune of Rs. 5,06,344.The only consideration whether the salvage charge of Rs. 2,65,000 can be allowed and which can be deducted from the claim amount of Rs. 5,06,344 and thereafter the sum of Rs. 2,41,344 can be awarded as per appellant hereto. There is no dispute regarding value of the claim which is Rs. 5,06,344 as said above. The dispute is regarding the salvage charge of Rs. 2,65,000. That the appellant Insurance Company referred two documents, namely, the quotation of salvage from Graphics dated 27.2.2002 to the Surveyor-Indranil Bhattacharji, being Rs. 2,65,000 for the materials namely, Core Veneer, Face Veneer and Ply Board of different sizes which was made on the basis of the photographs as shown to them, and the other quotation was from Pradeep Wood Crafts dated 24.2.2002 to the same Surveyor -Indranil Bhattacharji being Rs. 2,78,000 on the basis of photographs for the salvage materials. Those documents (Quotations) issued were subsequently retracted by the firms themselves are submitted for kind perusal. That the Graphics under its letter dated 1.6.2004 stated that the concerned quotation does not bear any documentary value and so also Pradeep Wood Crafts under their letter dated 1.6.2004 similarly stated there quotation has no documentary value. The quotations were given on the basis of photographs as shown and version and description and on good faith of the Surveyor Mr. Indranil Bhattacharji and without any physical verification by them. The appellant Insurance Company has not submitted any photographs before the District Forum. The complainant (respondent) has sworn affidavit dated 24.6.2004 and retracted. The salvage materials it is submitted are, (1) Core Veneer, (2) Face Veneer, and (3) Ply Board of various sizes. The Surveyor Indranil Bhattacharji under his letter dated 16.2.2002 (para-2) has directed the complainant (respondent) to surrender only the salvage article like ply board and not the raw materials like Core Veneer and Face Veneer which are also the salvage materials. The value of ply board is only Rs. 51,576 the value of Core Veneer Rs. 77,072.80 and Face Veneer Rs. 1,27,730.40. Thus total value of these three articles is Rs. 2,56,379.20 as assessed by the Complainant (respondent). It is surprising there the cost price/claim value of these items are Rs. 2,56,379 how salvage shall be value at Rs. 2,65,000 i.e. more than cost/claim value. Therefore, the case of the appellant Insurance Company that the salvage value is Rs. 2,65,000 has no basis and value whatsoever. It is not true that complainant (respondent) did not agree to surrender the ply board and refers the letter dated 4.3.2002 -in para-3 where it is stated that we are always ready to surrender but the damaged ply board should not be sold in open market because that may have the negative effect on the trade mark and goodwill of the complainant (respondent). When did the Surveyor Mr. Indranil Bhattacharji submit Survey Report? He is submitted the report on 12.5.2003. The consumer complaint was submitted before the District on 12.3.2003. In his report there is no conclusion he has arrived at. Therefore, the appellant Insurance Company has no explanation to give for such long delay. It ''s act are arbitrary. Thirdly, the appellant Insurance Company raised the point in its written argument that the complainant (respondent) has violated the terms and conditions of the Insurance Policy. I beg to differ and draw the kind attention of the insurance policy at page-2 main factory-brick wall and open sides with roof of C.J. sheets, office-cum-godown built of partly brick and partly thatched walls open side with roof of thatch and C.I. Sheets. Moreover, the Field Department Officer of appellant on being verified and after satisfaction, recommend than policy issued. So, there is no suppression and/or mis-description in the policy of insurance which the learned Lawyer for the appellant Insurance Company seeks the Commission to believe. " Fourthly, whether the complainant (respondent) is a consumer? The cause of action arose on 16.1.2002 and after several correspondence the complaint-petition was submitted on 12.3.2003. The Exclusion Clause of commercial purpose came into effect on 15.3.2003. Therefore, the present case in hand does not came within the mischief of the Exclusion Clause. In this connection I beg to refer to the decision of the National Commission reported in III (2004) CPJ 43 (NC) at Page 44 para-3 and held that services rendered for commercial purposes not excluded from Act prior to amendment in 2003. It is only after the amendment made in 2003 (15.3.2005) that services rendered for commercial purposes has been excluded. In view of this position this argument that the complainant (respondent) is not a consumer lacks any merit. (d) The loss of the Respondent was duly assessed by the Surveyor and Investigator of the Appellant and admittedly "there is no dispute regarding value of the claim which is Rs. 5,06,344 as said above. The dispute is regarding the salvage charge of Rs. 2,65,000. " On the strength of the above observations/findings of the State Commission, the Counsel for the petitioner submits that the petitioner is entitled to atleast a sum of Rs. 2,41,344 after deduction of the value of the salvage. On the other hand, Mr. M.N. Singh, supports the order of the State Commission and submits that even if the appeal had been answered on merits, the complainant was not entitled to any amount whatsoever towards the damage at his premises and stocks because he failed to produce cogent evidence by way of accounts books etc., to substantiate the extent of the loss suffered by him, particularly in respect of the loss of damage to the finished and unfinished raw material. We have considered the preliminary and survey reports of the Surveyor filed on record. The conclusive finding/observations made in the report of the final Surveyor dated 12.5.2003 are relevant which we would like to reproduce here: "If we consider that the stock statement as submitted by the insured were inclusive of the damages then the audited final accounts has to be treated as unsure which is not permissible order of law of the land. In the time insured also stated than the audited statement of accounts along with the audit report were not correct. If we consider that the register of the insured stands corrects than the saw dust is not payable it should be deleted from the loss under the law of the land. In no time the insured also stated that the Audited Statement of Accounts along with the Audit Report were not correct. If we consider that the stock statement as submitted by the insured were inclusive of the damages then the audited final accounts has to be treated as unsure which is not permissible order law of the land. In the time insured also stated than the audited statement of accounts along with the audit report were not correct. If we consider that the register of the insured stands corrects than the saw dust is not payable it should be deleted from the loss. If we consider the statement of the auditors as correct then there was no damaged proper of the insured kept at the factory on 31.3.2002. Due to the difference of the physical stock and the book balance the loss was not ascertainable due to the non-submission of the records as asked for and non-co-operation of the insured regarding the verification of the damaged stock/goods, I cannot form and opinion regarding the quantity and value of the damaged goods. Remarks The undersigned in absence of the complete books of the account and discrepancies not able to ascertain the loss. The undersigned observed the violation of the warranty and the condition No. 1 of the policy the insurer may deny the liability as the suppression leads to the enhancement of the risk which is a materials concealment on the part of the Insured. The undersigned not in post on the recommend the loss as there was no loss of the insured as the salvage value as obtained from the quotation are same so far the item finished product core veneer face veneer was concerned. The Saw Dust was sustained no loss as per the records submitted by the insured himself. The loss of chemicals and other raw materials as per the statement of the insured was present but the same was not mentioned in the stock register. Audit Report was contrary to the statement of the insured in some cases the loss as stated by the insured and audit report are contrary. As the insured declined to surrender the salvage in the months of March, April, 2002, there after one years elapsed mean while the market conditions are changed. In this changed scenario the salvage will not be acceptable as the salvage buyers are declined to accept the salvage. The cost of the salvage will be deleted from the final assessment of the loss of the finished products core and face veneer, if any. The report is issued without prejudice and it is subject to all and singular terms, conditions stipula-tions, provisions, warranties, and the amount of insurance in the policy number which the claim is made. "
THE above observations and findings of the final Surveyor would clearly show that the complainant has failed to substantiate its claim atleast in respect of the raw material,i.e. the saw dust and the finished and non-finished goods. However, so far as the claim of Rs. 1,78,875 towards the reconstruction cost of the blown off sheds, we are of the view that this loss having been admitted by the preliminary Surveyor and no contrary evidence have been brought on record there should have been no difficulty for the Insurance Company to have settled the claim of the complainant to the above extent, if not the whole claim.
THUS , having considered the matter in its entirety, we are of the opinion that the Insurance Company should have settled and paid atleast a sum of Rs. 1,78,875 to the complainant. We allow the revision petition, set aside the order passed by the State Commission and modify the order passed by the District Forum to the extent that the respondent-Insurance Company is directed to pay a sum of Rs. 1,78,875 to the complainant. Since there was undue delay in settling the insurance claim of the complainant, we consider it appropriate to award interest @ 9% per annum on the awarded amount with effect from the date of filing of the complaint till payment. The payment of the awarded amount along with interest shall be paid within six weeks from the date of this order, failing which the interest rate shall stand enhanced to 12% per annum from the date of default. Parties to bear their respective costs throughout. The Revision Petition is disposed of in the above terms. Revision Petition disposed of.