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O R D E R 


JUSTICE V.K. JAIN, PRESIDING MEMBER (ORAL) 

          The complainant, which is a statutory body constituted under the Delhi Sikh Gurudwara Act 1971 has been organizing pilgrimage to Nanded Saheb.  The complainant made a security deposit of Rs. 1,80,000/- with the petitioner Northern Railways, out of which Rs. 1,50,000/- was deposited on 05.12.2002 and Rs. 30,000/- on 09.12.2002.  Out of the said amount, Rs. 90,000/- was adjusted at the time of issue special ticket no. 71488 and the balance amount was retained as security deposit.  The complainant organized another pilgrimage to Nanded Saheb and made another security deposit of Rs. 1,80,000/-, out of which Rs. 90,000/- were deposited at the time of issue of special ticket no. 71489 and the balance amount was retained as security deposit. Thus, a total sum of Rs. 1,80,000/- remained with the petitioner as security deposit.  The complainant wrote several times to the petitioner seeking refund of the aforesaid security deposit. Since, the petitioner failed to refund the said amount despite repeated requests, a complaint was filed before the concerned District Forum, seeking refund of Rs. 1,80,000/- alongwith interest and Rs. 1 lakh towards compensation. 

(2)     The complaint was resisted by the petitioner/opposite party primarily on the ground that as per Railway Rules, no refund can be given if the folder or ticket is lost or both are not deposited in original.  If the folder is submitted after 15 days to within 6 months of the completion of tour, 50% of the deposit can be refunded with the approval of the CPM, however no amount is refunded if the claim is made after six months.  It was stated in the reply that the complainant did not submit the original folder as per the requirement of the rule and therefore the security amount could not be refunded to it.

(3)     The District Forum, vide its order dated 29.04.2010, directed the petitioner to pay sum of Rs. 90,000/- since balance amount had been paid in the meanwhile.  The petitioner was also directed to pay Rs. 25,000/- as compensation.  Being aggrieved from the order of the District Forum, the petitioner filed an appeal before the State Commission.  The said appeal was dismissed in default.

(4)     Though, the rule referred by the learned counsel for the petitioner has not been placed before us, we presume for the sake of argument that there is a rule which requires the person depositing the security to submit the original folder within the time stated in the reply filed by the petitioner.   However, a perusal of letter dated 18.03.2005 sent by the Directorate of Public Grievances would show that as per the rule 401.13, the said folder was handed over by Chief Commissioner of the Originating to the organizer for reserving the train.  It is the duty of the Station Manager to fill up the details in the folder based on the details provided by the party and affix the station seal before the departure of the train.  The case of the complainant is that no such folder was given to them in respect of either journey, as a result of which they were not in a position to submit the said folder at the time of seeking refund of the security deposit.  We have perused the reply filed by the petitioner before the District Forum.  The aforesaid allegation made in para 15 of the complaint has not been controverted in the reply.  There is no averment in the reply that the Station Master had filled up the requisite details in the folder and had handed over the same to the complainant after initialing the same and affixing seal on them, before departure of the train.  Obviously, the complainant cannot be made to suffer for the lapse of the Railway officials.  Had they handed over the folder duly filled in, only then the complainant could have been called upon to submit the said folder, while seeking refund of the security deposit. 

(5)     Moreover, we fail to appreciate what useful purpose is served from insisting upon production of original folder after the journey has been successfully performed and no complaint had been received by the Railway alleging any malpractice on the part of the tour operator.  The Government is expected to be fair to its citizens and it would be highly unfair on its part to deny refund of the money deposited by a person merely on account of the inability of the petitioner to produce such a document.  We, therefore, find no fault in the view taken by the District Forum.  Since we are not inclined to interfere with the view taken by the District Forum, there is no need to remand the matter back to the State Commission for hearing the appeal on merits. The revision petition is therefore dismissed.

………………………………


V. K. JAIN J.

PRESIDING MEMBER

……………………………….

DR. B.C. GUPTA
MEMBER

PSM/4

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

 

REVISION PETITION NO. 1166 OF 2014

(From the order dated 28.11.2013 in First Appeal No.1172/2012 of the Delhi State Consumer Disputes Redressal Commission)

  

1. M/s Aviva Life Insurance Co. India Pvt. Limited Regd. Office 2nd Floor, Prakashdeep Building 7, Tolstoy Marg New Delhi-110001Head Office:- M/s Aviva Life Insurance Co. India Pvt. Limited Opposite Golf Course DLF, Phase-V Sector-5, Gurgaon, Haryana



… Petitioner

                                                 Versus

 Mrs. Renu W/o Sh. K.P. Vijay R/o A-170, Sector-15 Noida, U.P.

...  Respondent

 BEFORE: 

HON'BLE MR.JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER

HON'BLE MR. SURESH CHANDRA, MEMBER


 For the Petitioner                  : Ms. Gurmeet Bindra, Advocate

Pronounced on : 23rd July, 2014 

ORDER 

PER SURESH CHANDRA, MEMBER

This revision petition challenges the order passed by the Delhi State Consumer Disputes Redressal Commission on 28.11.2013 in First Appeal No.1172 of 2012 whereby the State Commission has dismissed the appeal filed by the petitioner insurance co. and upheld the order dated 18.9.2012 passed by the Consumer Disputes Redressal Forum- VI (New Delhi). The District Forum vide its aforesaid order has allowed the consumer complaint of the respondent/complainant.

2.         We may note that aggrieved of the aforesaid order of the District Forum, the petitioner insurance co. had filed an appeal before the State Commission but since there was a delay of 61 days beyond the period of limitation in filing the appeal, the petitioner company had also filed an application for condonation of delay before the State Commission. A copy of that application filed by the petitioner before the State Commission is placed on record. On consideration of the reasons which caused the delay in filing the first appeal, the State Commission vide its impugned order held that the explanation for the delay of 61 days in filing the appeal was not satisfactory and hence it dismissed the application for condonation of delay and consequently dismissed the appeal being time-barred.

3.         We have heard learned counsel Ms. Gurmeet Bindra, Advocate for the petitioner and perused the record. Learned counsel has contended that the State Commission failed to appreciate that the delay in filing the appeal by the petitioner was inadvertent, unintentional, bonafide and beyond the control of the petitioner. She has submitted that the impugned order is erroneous in law as the State Commission has adopted a very harsh approach while dealing with the reasons given in the application of condonation of delay in filing the appeal. According to her, the State Commission gravely erred in  not appreciating the fact that the petitioner is an institution  and has to follow elaborate procedure before any decision is taken with respect to challenging a judicial order through an appeal/petition which cannot be filed in a mechanical manner  and hence the State Commission ought to have adopted a pragmatic approach while dealing with the request for condonation of delay and should have condoned the same and decided the appeal on merits. Referring to the ratio laid down by the Apex Court in the case ofState (NCT of Delhi) Vs. Ahmed Jaan [2008 (14) SCC 582], learned counsel pleaded that the State Commission should have adopted a liberal approach and not a pedantic approach while considering the explanation for delay in filing the appeal. She submitted that since in the present case, the State Commission has apparently failed to do so, the revision petition deserves to be allowed and the matter be remanded to the State Commission with a direction to adjudicate the appeal filed by the petitioner on merits.

4.         The first and the foremost issue in this case for our consideration is as to whether the State Commission was not right in dismissing the application for condonation of delay of 61 days in filing the appeal. Perusal of the order of District Forum clearly shows that the District Forum pronounced the order in open court on 18.9.2012. This fact has not been disputed by the petitioner. This being the case, the petitioner ought to have taken steps on priority to challenge the same at the earliest since the period prescribed for filing an appeal as per law is 30 days. Without offering any explanation as to what action was taken by the petitioner company after pronouncement of order on 18.9.2012, it is simply stated in para 13 of the application that the order of the District Forum was received at the reception desk of the petitioner Co. on 23.10.2012. Thereafter, it is stated in the application that vide email dated 9.11.2012, the petitioner requested the law firm Shailender Singh & Associates who had been dealing with the case before the District Forum to hand over the case file with certified copies of the documents to enable the petitioner co. to analyse the case and thereafter file the appeal accordingly. No explanation has been offered by the petitioner  in its application as to why it took 17 days just to make a request to its law firm for handing over the papers when the total period available for filing the appeal is 30 days. Since there was delay on the part of the law firm to provide the documents to the petitioner co., rather than deputing some responsible person to get the necessary documents, the petitioner co. chose to wait for a further period of 21 days and then send a reminder vide email dated 30.11.2012. Thereafter, it is submitted in the application that on 5.12.2012, the newly appointed counsel procured copies of the documents along with other record and prepared the appeal which was eventually filed on 21.12.2012. Perusal of the application for condonation of delay establishes beyond any manner of doubt that the delay in question in filing the appeal was caused solely because of the reason that the petitioner rather than acting diligently dealt with the case in a rather routine and causal manner. The State Commission while dismissing the application of condonation of delay has recorded the following reasons in support of the impugned order :-

The only reason given for the delay is on account of some departmental internal problems. This reason does not provide any justified ground for condonation of such a long delay in filing the appeal. The Law of limitation calls for explanation for each day delay after expiry of period of limitation, an explanation for delay has to be rational, reasonable and realistic and to be acceptable. Delay in official procedure is no exception provided in the proviso given under Section 15 of the Consumer Protection Act, which provides for limitation.”

5.         As rightly observed by the State Commission, the view taken by it is in line with the ratio laid down by the Apex Court and this Commission in a number of cases referred to by it in the impugned order. We agree with the view taken by the State Commission. Nothing has been put forth before us either in the revision petition or during the course of arguments by learned counsel which would persuade us to take a different view on the application of the petitioner co. for condonation of delay in filing its appeal. We, therefore, uphold the impugned order of the State Commission dismissing the application of condonation of delay which resulted in the dismissal of the main appeal as well.

6.         Even on merits, we do not find any reason to interfere with the well-reasoned order passed by the District Forum. The only reason for rejection of the claim filed by the respondent/complainant by the petitioner insurance co. is the wrong mention of the date of birth of the life assured in the proposal form as 18.11.1954  instead of 18.11.1952. The District Forum after considering the evidence adduced by the parties before it, non-suited the defence of the petitioner co. and accepted the complaint of the respondent. We have carefully considered the submissions made by the parties in their pleadings but do not find any ground to modify the order of the District Forum. Keeping in view the undisputed fact that the deceased life assured was a well-educated senior executive, the conclusion drawn by the District Forum regarding the inadvertent omission in respect of the correct date of birth is fully justified and supported by the evidence. In the circumstances, even on merits, there is no case for our interference with the impugned order.

7.         We are convinced that it was an inadvertent mistake which crept into the proposal form and no case could be established by the petitioner co. to hold that there was any element of cheating or misleading on the part of the deceased life assured. The District Forum, therefore, was right in concluding that it is a case of deficiency in service on the part of the insurance co. while rejecting the claim of the complainant. In the circumstances, we dismiss the revision petition but with no order as to costs.


..……………Sd/-………………..

(AJIT BHARIHOKE  J.)

PRESIDING MEMBER
....………Sd/-……………………

(SURESH CHANDRA)

MEMBER

SS/


NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

 

FIRST APPEAL NO. 109 of 2008

(Against the order dated 31.1.2008 in RBT No. 40 of 2007 in Complaint Case No.22 of 2005 of the State Commission, UT Chandigarh)

 

  



The Oriental Insurance Company Ltd. Through its duly constituted attorney, Manager,

Head Office: Oriental House, Post Box No.7037, A-25/27, Asaf Ali Road, New Delhi- 110002

......Appellant

 Versus


M/s. Rishabh Refectories Ltd. Registered Office & Works Jawaharpur Tehsil Dera Bassi, District Patiala

.....Respondent

 

 

FIRST APPEAL NO. 110 of 2008



 

M/s. Rishabh Refectories  V/s The Oriental Insurance Company Ltd.


 

BEFORE

HON’BLE MR. JUSTICE D. K. JAIN, PRESIDENT

HON’BLE MRS. VINEETA RAI, MEMBER

HON’BLE MR. VINAY KUMAR, MEMBER

 

 FA/109/2008



For the Appellant  :     Mr. Mahabir Singh, Sr. Advocate Mr. Abhishek Kumar, Advocate & Mr. Nikhil Jain, Advocate

 

For the Respondent :  Mr. Joy Basu, Sr. Advocate Mr. Abhinav Singh, Advocate



 

FA/110/2008

 

For the Appellant:          Mr. Joy Basu, Sr. Advocate Mr. Abhinav Singh, Advocate


 

For the Respondent:     Mr. Mahabir Singh, Sr. Advocate Mr. Abhishek Kumar, Advocate & Mr. Nikhil Jain, Advocate

 

 

PRONOUNCED ON:   23 July 2014 



ORDER                                                                  

                                               



PER MR. VINAY KUMAR, MEMBER

          Consumer Complaint No.22 of 2005, filed by M/S. Rishabh Refractories Ltd, was decided by the State Consumer Disputes Redressal Commission UT of Chandigarh on 31.1.2008.  The insurance claim of the Complainant Company against rain damage was allowed for a sum of Rs.19,54,666/- together with 12% interest from two months after the date of the surveyors report i.e. with effect from 4.10.2005.

2.       The above verdict has been challenged by both sides. In FA No.109 of 2008, the Oriental Insurance Company Ltd, has sought reconsideration of the award by this Commission.  In FA No.110 of 2008 the Complainant Company has prayed for enhancement of the award to the level of the claimed amount of Rs.80,74,646/-, together with an increase in the rate of interest awarded by the State Commission.

3.       The facts, as presented before the State Commission are that the complainant Company has been in the business of manufacturing high quality fire bricks, insulation bricks, high aluminium bricks, salt-glazed pipes and several other types of fire and acid resistant clay insulators.  ‘Refractories’ are products which are manufactured from materials like clay, silica, quartz and bauxite. They can withstand very high temperatures and pressures and are essential to steel, glass and cement industries. In 2002 the Company took up its modernization with Rs.85 lakhs term loan from the State Bank of Patiala.  The bank also sanctioned and extended cash credit limit of Rs.25 lakhs to the Complainant Company.  The modernization plan was implemented during 2002-2004 period, under the continuous scrutiny and supervision of the lending Bank.  Further, in three policies taken in April, May and June 2004, the stocks were provided insurance cover of Rs.100 lakhs. 

4.       On the night intervening 2/3.8.2004, there was extra ordinary rain of 330 mm in Chandigarh and its surrounding areas, which was highest in past 47 years. The rain caused  huge accumulation of water on roads as well as the land.  Due to the rain, water also accumulated in and around the factory land and building of the Complainant. The boundary wall of the factory premises also broke and  water entered the godown and the factory premises causing huge damage to the machinery as well as the material lying in the factory premises.   In addition to the damage caused to the material and machinery, the water also damaged the office record including the account books and accessories.  The computers installed in the office were also damaged due to water seepage in the hard disc, data of which, despite best efforts, could not be retrieved.

 5.      As per the Complainant, the loss amounted to Rs.80.47 Lacs. As claimed, the stock position of the Complainant Company on 31.7.2004 was Rs.1,01,34,849/- and the stock position in the Financial Year 2004-05, on certain dates till the date of loss, as per Stock statements was-

 


Sr. No.                 Stock in Month & Year                     Value of Stock

1.                          02nd April 04                                    8,00,414.00

2.                          03rd May 04                                     23,11,048.51

3.                           22nd May 04                                  81,23,605.00

4.                          July 04                                           1,02,07,372.50

5.                          1st Aug. 04                                      1,01,34, 849.00

 

6.       The Surveyor vide letter dated 12.8.2004 sought assistance of the Complainant by way of providing relevant documents and records.  The Complainant Company informed the surveyor that it needed some time to reply as the entire records had been washed away in the floods and had to reconstruct the same was a time consuming exercise.  The Complainant continued to provide documents and information required by the surveyor and on 18.1.2005, it wrote to the surveyor to settle the claim at an early date as the Company was incurring heavy financial loss.


7.       In view of inordinate delay in finalization of the claim, the Complainant served a legal notice on the OP on 2.2.2005 and another letter on the same issue on 12.4.2005, eliciting no response.  However, vide letter dated 3.9.2005, OP communicated to the Complainant that the surveyor had assessed the damage to the tune of Rs.6.77 Lacsonly. The Complainant avers that apart from the loss of Rs.80.74 Lacs suffered  due to damage to the insured items, it has further suffered financial loss to the tune of Rs.33.90.           

8.       On merits, the reply of the OP is that there has been no delay on the part of the OP in settling the claim.  The delay, if any, is on the part of the Complainant due to his non cooperative approach and non production of required documents.  Further, the allegations levelled against the surveyor by the Complainant have been vehemently denied.  The specific case of the OP is that the surveyor observed huge purchase of raw material during the period from 1.4.04 to 2.8.04.  However, no supporting documents were supplied by the Complainants to justify the same on the ground that all accounts and records had been washed away in floods.  The OP has basically relied upon the surveyor’s report filed as Annexure R-5 wherein the surveyor has mainly pointed out the following:-

(a)    The space in the factory premises was inadequate to hold the additional stock other than the damaged/intact stock found by the surveyor during his visit.

(b)    The surveyor was never informed during his visit that 4,47,589 pieces of semi-finished refractories and 97,227 pieces of WIP/Green Mix had been washed away and this was only included in the subsequent claim form by the Complainant.

(c)    The factory was capable of maximum production of 73,429 refractories per month and was, therefore, capable of producing only 2,93,716 pieces of refractories during the period of four months i.e. 1.4.04 to 2.8.04.

(d)    There is wide variation in the sale purchase and stock levels shown of the coal as on 2.8.04 as also in the figures of sales, purchase and debitor/creditor details given by the Complainant.

(e)    As per the surveyor, the power bill for the period 1.4.04 to 2.8.04 did not indicate any appreciable change from the power bills of the last year.

(f)     He has taken 12,392 pieces of refractories kept in Hot Kiln as semi finished refractories because they were still work- in-process.

9.     The main grounds urged in the appeal filed by OP/ Oriental Insurance Company are that—

a.    The State Commission was wrong in considering the stock statements for the period 3.8.2003 to 2.3.2004, as this was six months prior to the loss which occurred on 3.8.2004. The stock position of this period was of no help in assessing the loss which occurred on 3.8.2004.  Correct approach would have been to consider the stock statements of a month or two, close to the date of loss.

b.    It is also argued that the stock statements submitted to the bank for the period 1.4.2004 to 2.8.2004 were made available to the surveyor, They could not have been relied upon, as the bank had not carried out any stock audit and made only routine visits.  Similarly, the balance sheet as on 30.6.2004 filed by the bank was provisional, unaudited and contained highly exaggerated figures of purchase and gross profit.

c.    The factory premises did not have enough space to accommodate 504923 pieces of semi-finished refractory and 97277 pieces of work in progress before the flood.

10.    In the cross appeal filed by the Complainant seeking enhancement of compensation, the main grounds raised are—

a.    The State Commission was wrong in determining the stock position on the basis of average holding for the period 3.8.2003 to 2.3.2004.  It should have appreciated the fact that the Complainant/appellant had availed cash credit facility from its bankers, State Bank of Patiala and therefore it was mandatory for it to submit monthly stock position to the bank.  Therefore, the stock statements as on 31.7.2004 should have been relied upon by the State Commission.  According to this statement the total value of finished/semi-finished goods was Rs.68,32,349/- and of raw materials Rs.33,02,500/-.

b.         That having chosen the seven months period from 3.8.2003 to 2.3.2004 for determination of the stock holdings, the State Commission should not have further limited it to the stock level of 31.7.2004 only in cases where it showed a lower figure, by applying the principle “whichever is less”.

11.     On detailed consideration of evidence before it, the State Commission has arrived at the following findings of fact:-

1.          The report of surveyor makes an observation that the insured premises did not have adequate space to store the finished/semi-finished goods and raw materials, claimed by the Complainant as per the stock statements given to the Bank.  That the Surveyor has not placed on record any calculation or other evidence in support of the claim of inadequate space made in his report.  On the other hand, Mrs. Daya Sukhija, Manager Business Re-engineering, Head Office, State Bank of Patiala has, in her cross examination, confirmed that the premises in question had adequate space for such storage. 

2.    In three insurance polices the Complainant Company had covered stocks worth Rs.1 crore against loss.  It would have been illogical on the part of the Complainant to seek such a high limit of coverage  if the premises did not have enough space for storage of stocks worth this amount.  Even the insurance company would not be expected to extend coverage, in the absence of adequate space for stocks worth Rs.1 crore.  In support, the State Commission has also relied upon a professional report filed by the Complainant before it. This report of Lieutenant Colonel A.K.Suri, Government and Banks Registered Valuer shows that the premises had adequate space to hold 13.70  lacs pieces of semi-finished goods in half the space and storage capacity for 1,000 MTs of coal and other raw materials.

3.    The report of the surveyor does not show the basis on which it has disallowed large quantities of raw materials as well as semi-finished products.   Therefore, the recommendation in the surveyor’s report to allow only 10 MT of coal and  20 MT of other raw materials is arbitrary.     

4.    On consideration of the stock statements over a seven months  period from 3.8.2003 to 2.3.2004 the State Commission has estimated the average total value of stock as about 59.94 lacs. This is much less than the stocks claimed to have been damaged/lost. It therefore observed that the Complainant has not been able to explain the sudden surge in stock holding of semi-finished products in the stock statements of 22.5.2004, 10.6.2004, 8.7.2004 & 1.8.2004. It is nearly double of the holding of semi-finished stocks till March 2004. Therefore, the State Commission has not taken the stock statements after 31.3.2004 into consideration.

12.     It is thus a case where the loss as per the complaint was of the order of Rs.80.74 lacs; the amount recommended by the surveyor (before adjustment under the excess clause and sub-standard clause) was Rs.9.60 lacs and the amount awarded by the State Commission is Rs.19.54 lacs.  During the course of consideration of the two appeals, we have carefully examined the evidence on record with reference to the finding of the State Commission and the contentions raised in the two appeals.  On behalf of the Oriental Insurance Company Mr. Mahavir Singh, Sr. Advocate assisted by Mr. Abhishek Kumar & Mr.Nikhil Jain has been heard.  The case of M/s. Refractories Ltd. has been argued by Mr. Joy Basu Sr. Advocate assisted by Mr. Abhinav Singh.   

13.     A perusal of the report of the insurance surveyor S.K.Bhasin shows that he had attempted to visit the insured premises of the Complainant on the day of the incident itself, but the entire stretch beyond Derabassi was under flood waters and the road was not motorable. He was therefore, forced to return on the 3rd of August, and was able to visit only on the 5th of August, 2004.  This would by itself show the intensity of the rain and the extent of damage, it would have caused to a unit, which was in the business of manufacturing clay refractory bricks and other clay insulators.  

14.     It was argued on behalf of the appellant/Complainant that the report of the surveyor claimed that the assessment was based on physical inspection of the left over stocks.  However, the report gives no idea how 100% of the finished stock is found intact and undamaged.  It was explained that these items are meant for insulation in units like steel, glass, cement and other manufacturing mills, which work under very high pressures and at very high temperatures. Even a hairline crack or slight chipping of sides would make them totally unusable. 

15.     Our attention was drawn to the certificate of the State Bank of Patiala dated 3.4.2004 (four months before the date of loss).  It certifies that the Complainant had invested Rs.86.14 lacs during 2002-2003 and Rs.71.14 lacs during 2003-2004 into modernization and expansion, involving upgradation of building, plant and machinery and on preoperative expenses.  This included the enhanced working capital limit of Rs.65 lacs, which had been released after 15th March, 2004.  Learned counsel argued that as a result of this modernization and expansion, production and therefore, consumption of raw materials had substantially increased. Hence, there was no justification in the surveyor’s assumption of unit operation at 60% capacity even after expansion and modernization.  Therefore, learned Arguing Counsel strongly contended that the figures in the Bank statements, relied upon by the Complainant, clearly showed that as a result of completion of modernization plan the levels of production and therefore inventory had substantially increased. Therefore, the State Commission by adopting figures of pre-modernization months i.e. August, 2003 to March 2004 had effectively deprived the Complainant of the gains of investment in capacity enhancement.  Shri Basu argued that the report of the surveyor did refer to the enhancement of capacity from 10080 MT to 17760 MT per year.  But, he has very unjustifiably limited the utilization to 60% only of the enhanced capacity. 

16.     Learned counsel also referred to the observation in the survey report to the effect that the premises did not have enough storage space for the quantities of semi-finished material and work in progress claimed by them.  The report has also observed that storage of the quantities of coal, coal dust, fire clay bauxite powder etc. claimed to have been washed away in the flood could not have been possible in the available space.  In this behalf he drew our attention to the report of Lt. Colonel A.K.Suri, RegisteredValuer, which has made a detail estimation of storage capacity and given the following conclusions:-

a)   The location of the unit is low lying as compared to the main highway serving that area.  The total area of the unit is 12,000 sq. yrds (3 acres).

b)   There is also a huge storage capacity in the open area of the Unit for storage of clay and other raw materials used in the manufacturing process of refractories.

c)   The finished goods sheds- three in Nos. have capacity to store more than 3.00 lacs nos. of different type of refractory bricks in addition to the open spaces capacity.   

d)   The unit has open space to store about 1000 MT of steam coal/coal dust etc. at any one time.

e)   The unit has sufficient open space for the circulation/movement of vehicles to unload the raw material and to load the finished goods and other industrial materials.

It was therefore argued that quantity reduction assumed by the surveyor on the basis of inadequacy of storage space cannot be sustained. 

17.     On the other hand, the Arguing Counsel for the appellant/Oriental Insurance Company Mr. Mahabir Singh, vehemently argued that the assessment of surveyor was based what was actually found.  The State Commission itself had given reasons for not accepting the stock statements as furnished by the Complainants to the Bank. It was further pointed out that the figures arrived at are also verified with individual suppliers to the extent of details made available by the Complainant. In this context, learned counsel pointed out that on actual verification with purchasers and suppliers the reported figures of sale of finished goods and purchase of raw materials were found to be substantially higher:-

 


(i) Sales During 1.4.0 to 2.8.04:

As per Manufacturing and Profit and loss                   Rs.85,64,416.00

Account for the said period submitted by

Insured


 

As confirmed by Customers                                        Rs.58,18,517.00

(Details attached in annex-1

 

(ii) Purchase of Raw Material and Coal during 1.4.0 to 2.8.04:



 

As per Manufacturing and Profit and loss

Account for the said period submitted by

Insured                                                                     Rs.1,13,78,443.00

 

 

As confirmed by Customers                                        Rs.92,55,424.80



(Details attached in annex-2)            

 

18.     State Commission and the Surveyor have both observed that even with enhancement of manufacturing capacity from 10080 MTs to 17760MTs, the stock levels at the time of loss, as claimed by the complainant, would appear to be very high.  Both do not accept that in just four months it could have grown from Rs8.00 lacs on 2.4.2004 to 101.34 lacs on 1.8.2004. Therefore, both have adopted alternative ways of determining the stocks.


19.     From a detailed consideration of his report we find that while assessing the loss, the survey has relied very heavily on the following assumptions—

a.    While noting the enhancement of manufacturing capacity to 17760 MT level, he has assumed that its operation remained at 60%, as in previous years. We find no basis for this assumption.

 

b.    Surveyor’s report has proceeded on another major assumption that the premises did not have enough storage space for the quatum/volume of stocks claimed by the complainant. To counter this assumption, the complainant produced expert evaluation of Col. A K Suri, before the State Commission. We have mentioned it earlier in this order. It shows that the premises has sufficient storage space for the claimed quantum of raw materials and finished stocks. In our view, this assumption of the Surveyor is unprofessional, to say the least. No Bank would have funded  modernisation and expansion of a manufacturing unit which did not have requisite storage space.


 

c.    Having rejected the stock statements as submitted to the Bank, the Surveyor claims to have assessed the loss on his visual/physical evaluation of what remained after the damage. Neither the appeal memorandum nor the counsel for Oriental Insurance Co, have explained as to how he could, having rejected the stock statements, evaluate what he did not see. As noted earlier, the report of Col. Suri also shows that the unit was situated in a low lying area, where materials stocked in the open would be at a greater risk, in the event of high rainfall.

 

20.     Therefore, in our view, the State Commission was right in rejecting the assessment of loss in the Surveyor’s report. It has also observed that while listing the quantum of loss claimed, rejected and allowed, the Report does not give the basis for rejecting or limiting the claim in each item. Since the complainant too has not justified the sudden surge in stocks figures since March 2004, the State Commission has rightly refused to take the current stock reports as the basis for deciding the claim.


 

21.     In the impugned order, the assessment of loss has been made on the basis of average holdings as per stock statements for the period 3.8.2003 to 2.3.2004. This comprises seven months just before the steep surge in stock figures. However, we accept the logic in the contention of the complainant that having adopted it as the basis, the State Commission should not have further compared it to stock reports of 31.7.2004, merely for limiting the claim to ‘whichever is less’. This would amount to accepting the latest stock reports when un-favourable to the insured and rejecting them for the rest of the claim. Therefore, we do not agree with the State Commission on limiting the stock figure to ‘whichever is less’. With this limited modification, the computation of admissible loss is re-worked as follows—

 

 


Sr. No.

Description of Stock/item

Average holding based on stock statements from 3.8.03. to 2.3.04

 

(A)



Salvage/Goods intact inspected by the surveyor.

 

 



(B)

 


Quantity damaged/washed away.

 

 



 

 

 



(C)

 

[C= A - B]



Average rate of item.

 

 



 

 

 



(D)

Amount of loss. (Rs.)

 

 



 

 

 



 

(E)


1.

Finished stock of refractories

Rs. 1,21,000

-12392 =108608



50,370

58238

Rs.18/-

10,48,284

2.

Semi finishedrefractories

99,250+12392

=111642


29534

82,108

Rs.11/-/

9,03,188


3.

Steam coal

(Grade A)



322 MT

75 MT

247

Rs.3500/-

8,64,500

4.

Coal Dust

142 MT

20 MT

122

Rs.1750

2,13,500/-

5.

Fire Clay

280 MT

155

125

Rs.1000

1,25,000

6.

Bauxite Powder

12 MT

2 MT

10

Rs.4000

40000/-

7.

Washed Clay Powder

Nil

 

 

 


Nil

8.

HA Grock

82 MT

4 MT

78

Rs.2000

1,56,000

9

TOTAL

 

 

 

 

33,50,472

 

 

22.     In view of the detailed consideration above, FA/109/2008 filed by M/S Oriental Insurance Co is held to be devoid of any merit and dismissed as such, with cost of Rs.50,000/- to be paid to the complainant. FA/110/2008 filed by M/s. Rishabh Refractories Ltd is partially allowed. The insurance company is directed to pay the complainant the enhanced sum of  Rs.33,50,472/-. The same shall be paid with interest at 9% per year from 4.8.2005. Delay, if any, shall carry additional interest at 2% for the duration of the delay.



………………Sd/-………….

(D.K. JAIN, J.) PRESIDENT

……………Sd/-…………….



(VINEETA RAI) MEMBER 

………………Sd/-………….



(VINAY KUMAR) MEMBER                    

S./-


NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

REVISION PETITION NO.2320 OF 2013

(Against the order dated 28.2.2013 in First Appeal No.806/2011 of the U.P. State Consumer Disputes Redressal Commission, Lucknow)

 

Alok Garg s/o Shri Shiv Kumar Garg r/o C-22, Sector-39, Noida-201303


…..... Petitioner

Versus


1. Ghaziabad Development Authority Vikas Path, Ghaziabad-201001 Service to be affected through its Vice Chairman 

2.  Ghaziabad Development Authority Vikas Path, Ghaziabad-201001 Service to be affected through its Secretary

3.  Shipra Estate Limited Corp Office-C-36, Patel Nagar-II, Ghaziabad 

4.  Shipra Estate Limited Reg. Office at : D-32, Laxmi Nagar, Vikas Marg New Delhi – 110092

                                                           …...... Respondents

 

 REVISION PETITION NO.3817 OF 2013



(Against the order dated 28.2.2013 in First Appeal No.806/2011 of the U.P. State Consumer Disputes Redressal Commission, Lucknow)

Shipra Estate & another Versus Alok Garg



WITH

INTERIM APPLICATION NO.4769 OF 2013

INTERIM APPLICATION NO.4749 OF 2014

(CONDONATION OF DELAY & CORRECTION OF ORDER)

BEFORE:

HON’BLE MR. JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER

HON’BLE MRS. REKHA GUPTA, MEMBER

IN RP NO. 2320 OF 2013

For the Petitioner                 :           In person

For the Respondents 1&2  :     Mr. Shantanu Krishna, Advocate

For the Respondents 3&4  :     Mr. Saurabh Suman Sinha, Advocate


IN RP NO. 3817 OF 2013

For the Petitioners                :     Mr. Saurabh Suman Sinha, Advocate

For the Respondent-1         :     In person

For the Respondents 2&3  :     Mr. Shantanu Krishna, Advocate



PRONOUNCED ON :   23rd  JULY,2014



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