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Judgment
This appeal has been filed by the appellant against the order dated 30.4.2015 passed by the Odisha State Consumer Disputes Redressal Commission, Cuttack (in short, ''the State Commission'') in Complt. No. 2/2012 - Manjurani Enterprises Vs. United India Insurance Co. Ltd. & 3 Ors. by which, complaint was dismissed.
Brief facts of the case are that Complainant/appellant being an unemployed youth to earn his livelihood by means of self-employment took distributorship of different consumable products of different companies and the distributorship was named and styled as M/s. Manjurani Enterprises with the sole Proprietorship of the complainant. He took one standard Fire and Special Perils Policy and one Burglary BP Policy vide Policy Nos. 034304/11/10/11/00000082 and 034304/46/10/04/00000223 respectively in respect of godown situated at Nabakalebar Road, Puni covering the period from 20.5.2010 to 19.5.2011 from opposite party nos. 1 to 3/Respondent no. 1 to Respondent no. 3 - United India Insurance Co. Ltd. the assured sum being Rs. 70,00,000/- and the premium paid was Rs.17,372/-. In the midnight of 23/24.11.2010 the said godown and all the goods kept therein were destroyed due to fire. Complainant informed the incident to opposite party nos. 1 to 3 - Insurance Company and lodged FIR. On being informed opposite party no. 3 deputed a surveyor namely, ESEN Insurance and Loss Assessor Pvt. Ltd. for spot inspection and assessment of loss and accordingly, he visited the spot, but without properly verifying the documents assessed the loss at Rs. 9,97,462/-. Accordingly, opposite party nos. 1 to 3 - Insurance Company requested him to receive the said amount and sign the discharge voucher towards full and final satisfaction of the claim. Immediately, he raised objection against it to opposite party no. 3 vide letter dated 4.4.2011, but to no effect. So he brought this fact to the C.M.D. of opposite party nos. 1 to 3 - Insurance Company, who realized the mistake of the first surveyor and deputed a second surveyor namely, Professional Surveyors and Loss Adjusters Pvt. Ltd. a Chennai based Surveyor to reassess the loss. Accordingly, the said surveyor conducted the survey to reassess the loss. Accordingly, the said surveyor conducted the survey on 7.7.2011 and 8.7.2011 and concluded that the value of stock destroyed in fire was Rs.53,00,821/- and after deducting 5% thereof recommended for payment of Rs.50,25,780/-. Again opposite party nos. 1 to 3 - Insurance Company sent a letter to the second surveyor for assessment of the loss of the complainant properly and accordingly, it assessed the loss at Rs.48,96,574/- including the cost of recharge vouchers of Rs.16,91,949/- damaged due to fire. They paid a sum of Rs.32,04,625/- towards full and final settlement of the claim and the complainant received the same with protest by keeping the claim alive. Thereafter, opposite party nos. 1 to 3 - Company wrote a letter to the complainant to clarify certain points. Accordingly, he clarified the same and expressed his willingness to execute the indemnity bond as asked for but till then Rs.16,91,949/- towards the cost of the unused vouchers was not paid to him. Alleging deficiency on the part of OPs complainant filed complaint before State Commission.
Opposite Party nos. 1 to 3 in their written version admitted the insurance policies to have been taken by the complainant. They also admitted that the accidental fire occurred while the policy was in force, but according to them the case was not maintainable since complainants carried on the business for commercial purpose and there were arbitration clauses in the policies to the effect that if any dispute arises between the parties, the same would be adjudicated by the arbitrator. After receipt of the report of the second surveyor, opposite party no. 1 wrote a letter to him on 3.11.2011 to justify the assessment with regard to recharge vouchers of Rs.16,91,949/-, but without conducting any further survey, the surveyor reduced the assessed amount from Rs.50,03,555/- to Rs.48,96,574/- only. The surveyor evasively replied to the specific query of the Insurance Company as to whether regeneration of recharge vouchers can be made by replying that the assessment made was to the best of their knowledge. Thereafter, opposite party no. 1 asked the complainant in writing to submit the followings:- i) A monetary claim to be lodged on the service provider by registered post with acknowledgement due claiming the refund of Rs.16,91,949/- on account of unused recharge vouchers (various denomination) destroyed in fire.
ii. To obtain and submit some authentic documents from service provider (AIRCEL) to the satisfaction of the Insurance Company that you have suffered an irrecoverable monetary loss of Rs.16,91,949/-, in order to avoid double payment. To submit an indemnity bond on non-judicial stamp paper of appropriate value duly notarized required to be submitted for the loss of unused recharge vouchers for an amount of Rs.16,91,949/-.
But the complainant failed to produce those documents. According to opposite party nos. 1 to 3 - Insurance Company the unused recharge vouchers alleged to have been destroyed by fire can be regenerated by the service provider. The said amount of Rs.16,91,949/- can only be paid to the complainant as and when he will produce a certificate from the service provider to the effect that the recharge vouchers cannot be regenerated and the loss to that effect cannot be recovered. Under such premises, opposite party nos. 1 to 3 prayed to dismiss the Consumer Complaint. Opposite party no. 4/Respondent no. 4 in his written version contended that there was no cause of action against him. In the event the claim is allowed, the complainant may be directed to adjust same amount with the loan of Rs.32,63,309.97 pending against him. Learned State Commission after hearing parties dismissed complaint against which this appeal has been filed.
Heard learned Counsel for the parties finally at admission stage and perused record.
Learned Counsel for appellant submitted that inspite of proving that unused recharge vouchers damaged due to fire cannot be regenerated, learned State Commission committed error in dismissing complaint; hence, appeal be allowed and impugned order be set aside and value of vouchers be awarded. On the other hand, learned Counsel for Respondent No. 1 to 3 submitted that order passed by learned State Commission is in accordance with law; hence, appeal be dismissed. Learned Counsel for Respondent No. 4 supported appellant.
It is not disputed that complainant obtained insurance coverage from OP No. 1 to 3 and during subsistence of insurance policy, godown of complainant was destroyed due to fire including recharge vouchers. It is also not disputed that OP No. 1 to 3 made payment of Rs.32,04,625/- and did not make payment of Rs. 16,91,949/- towards recharge vouchers.
The core question to be decided is whether complainant was entitled to Rs.16,91,949/- towards recharge vouchers without submitting requisite documents as demanded by OP.
Perusal of record reveals that OP by letter dated 5.12.2011 asked complainant to lodge claim for refund of uncharged vouchers and also obtain authentic documents from service providers (Aircel) to avoid double payment, but complainant vide letter dated 12.12.2011, agreed to execute only indemnity bond, but did not comply with other directions and in such circumstances, OP vide letter dated 14.12.2011 rejected claim towards unused recharge vouchers.
OP by letter dated 17.12.2013 sought information from DGM (Sales), BSNL, Bhubaneswar whether unused recharge vouchers if destroyed in fire can be regenerated by the service provider and BSNL vide letter dated 23.1.2014 apprised that unused recharged vouchers amount can be refunded only after getting status of the vouchers from IN Kolkatta. Admittedly, complainant has not obtained requisite opinion from IN Kolkatta or from service provider (Aicell) and only on the basis of report dated 4.11.2011 given by professional surveyors it cannot be held that there is no scope for regenerating RCV from the service provider without any opinion obtained from service provider. In such circumstances, learned State Commission has not committed any error in dismissing complaint.
OP in its written statement has clearly narrated that amount of unused recharge vouchers can be paid to the complainant as and when produced certificate from service provider to the effect that recharge vouchers cannot be regenerated and loss to that effect cannot be recovered which clearly shows bonafides on the part of OP to pay amount of unused recharge vouchers on submission of definite opinion. I do not find any deficiency on the part of OP in rejecting claim of complainant towards claim of value of recharge vouchers.
Learned Counsel for the appellant submitted that firstly opposite party should have made payment and then should have taken steps to recover this amount from the Company which issued recharge vouchers. In support of his contentions, he placed reliance on I (2015) CPJ 279 (NC) - Indraprastha Gas Ltd. Vs. New India Assurance Co. Ltd. & Ors., but facts of aforesaid case are not applicable to present case at all. In the case in hand, complainant was required to obtain requisite authentication from the service provider for claiming aforesaid claim and without obtaining requisite authentication, OP was not under any obligation to pay amount claimed by complainant and I do not find any illegality in the impugned order and appeal is liable to be dismissed.
Consequently, appeal file by appellant is dismissed. OP is expected to refund amount as and when complainant fulfils requirement of OP for payment of claim towards unused recharge vouchers. Parties to bear their costs.