Oriental Insurance Co. Ltd vs Kush Pandey & Anr

V.K. Jain, J

The complainant/respondent obtained a Shopkeepers Insurance Policy from the petitioner in respect of the stock kept in his shop at P.O. Nuasahi, Balasore in Orissa, to the extent of Rs.10 lakhs for the period from 9.9.2009 to 8.9.2010. A fire broke out in the shop of the complainant on 28.1.2010. Intimation of the loss having been given to the petitioner, a surveyor was appointed to assess the loss. The surveyor assessed the loss at Rs.2,40,000/- as against the claim of Rs.774788/- but recommended payment on non-standard basis on the grounds that (i) the insured had failed to prove the loss (ii) he had prevented physical verification by throw dumping of fire damaged stock (iii) he had not produced the documentary proof of the purchase. The insurer therefore offered a sum of Rs.1,68,000/- to the complainant which was declined. Being aggrieved from non-payment of the claim, the complainant approached the concerned State Commission by way of a consumer complaint.

The complaint was resisted by the appellant primarily on the grounds on which the surveyor had made the assessment and then recommended payment on non-standard basis.

The State Commission vide impugned order dated 11.12.2017, directed the appellant to pay a sum of Rs.774788/- to the complainant along with interest @ 8% p.a. from the date of the claim and cost of litigation quantified at Rs.20,000/-. Being aggrieved, the insurer is before this Commission.

A perusal of the surveyor report would show that the surveyor had made assessment was based upon volumetric analysis. Later the shop of the complainant measured again at the intervention of the Ombudsman and it was found that the free space available in the shop was more than twice the free space measured by the surveyor. Therefore, I am in agreement with the State Commission that the assessment on the basis of volumetric basis is not correct.

The complainant had produced the stock statement which it had submitted to its banker on 1.1.2010, 27 days before the incident of fire, showing the stock position as on 31.12.2009. As per that statement, the value of the stock as on 31.12.2009 was Rs.9,70,000/-. There could be no reason for the complainant to submit an inflated stock statement on 1.1.2010 since he could not have anticipated that a fire will break out in his shop on 28.1.2010. This is not the case of the insurer that it was a case of arson and the fire was not genuine. Therefore, I see no reason to reject the stock statement which the complainant had submitted to the bank on 1.1.2010. This is more so when the stock was also verified by the bank official as would be evident from the endorsement on the said statement. The appropriate methodology for assessment of the loss in my view would have been to add the amount of purchase made by the complainant between 1.1.2010 to 28.1.2010 and deduct the value of the sale made during this period from the amount of Rs.9,70,000/-. The complainant did not produce the purchase bills taking the plea the said bills have been destroyed in fire. In my opinion, it was quite possible to obtain the duplicate bills/invoices from the person to whom the purchase was made by him between 1.1.2010 to 28.1.2010. As far as the sale during this period is concerned since the records are alleged to have been destroyed in fire, only possible method could be to assess the sale on an average basis taking the total sale made in the year 2009, on the basis of computation.

For the reasons stated hereinabove, the impugned order is set aside and the complaint is remitted back to the concerned State Commission to decide the same afresh after giving an opportunity to the complainant to produce the bills of purchase made by him between 1.1.2010 to 28.1.2010. If no such bill of purchase during this period is produced, it will be assumed that no purchase was made by the complainant during this period. Thereafter the State Commission shall make deduction on the basis of the average sale of 28 days, based upon the annual sale of 2009. On the quantum so worked out, the complainant will be entitled to interest @ 8% per annum w.e.f. three months from the submission of the claim till the date of payment. The appellant will be entitled to verify the bills of purchase, if any, purchased by the complainant.

The parties are directed to appear before the State Commission on 30.05.2019. The State Commission shall decide the complaint afresh within three months of the parties appearing before it. The appeal stands disposed of.