Anup K. Thakur, j. -
(1.) M/S. Jewellery World (the complainant hereafter) is a partnership firm in the business of Gold, Silver, Diamond etc. It had availed facilities of "Cash Credit Limit" & "Term Loan" from Indian Overseas Bank against hypothecation of its stock in trade. It had insured this stock in trade with the Oriental Insurance Co. Ltd. (OP hereafter) through a "Jeweller's Block" policy covering inter-alia stocks of Rs.2,40,00,000/- (Rs 2.4 crore) and cash of Rs.3,00,000/- (Rs 3 lakh). On 03.02.2008, around 3 P.M., in a robbery at gun point, the strong room was forcibly opened and looted. FIR No.0016/2008 was registered. Three culprits were arrested on 14.03.2008. Part of the stolen goods was also recovered. On the same date, 3.2.2008, OP was also informed over telephone.
(2.) On 15.2.2008, insurance claim form was filed with the OP for a loss of Rs.2.40 crore based on a rough assessment (Annexure-V, pg. 106). On 25.2.2008, a revised claim amount of Rs.1,98,16,089/-, after retrieving from computers data on stock statements, and taking into account stock recovered from police, left over stock in the premise, and stock with the makers, was filed. On 21.08.2008, the complainant submitted the police final report, zimanama and value of goods recovered, to the surveyor and the OP. On 18.3.2010, the complainant gave consent to the surveyor for loss assessed at Rs.1,46,28,903/- against loss of stock (Annexure-X1). On 29.3.2010, final report was submitted to OP by the surveyor, assessing the loss at Rs.1,48,28,903/- (Rs. 1,46,28,903/- plus Rs.2,00,000 towards loss of cash) (Annexure-XII). On 18.5.2011, the complainant received a letter from OP containing pre-receipt discharge voucher for Rs.1,39,57,323/-, in full and final settlement of the claim (Annexure-XV). This however was not acceptable to the complainant, so a protest letter dated 24.5.2011 asking for release of the offered amount as an interim payment was sent to the OP (Annexure-XVI). OP however did not release the amount. Alleging deficiency in service, the complainant has filed this consumer complaint seeking the following:
"A. That the respondent is liable to pay an amount or Rs. 13957323/- admitted by it vide discharge voucher dated 18.05.2011. An interim application for release of this amount is prayed for as the banker Indian Overseas Bank has issued demand notice declaring the credit account of the complainant to be irregular.
B. That the respondent is liable to pay an amount of Rs.57,77,185/- towards interest @12% Per Annum on the admitted amount of Rs.1,39,57,323/- from 03.02.08 to 15.07.11 and till its actual payment.
C. The respondent is liable to pay an Rs.871580/- and interest @12% thereon from 03.02.08 till its realization for wrongly deducting the said amount (Value of Jewellery with maker) from Rs.1,48,28,903/- (refer to Point 20 of the Survey Report). It is submitted that on this account Rs.1135000/- has already been deducted by the surveyor while assessing the loss at Rs.1,48,28,903 (refer to Page.20 of survey report), whereas while offering full and final settlement the respondent has arbitrarily deducted Rs.871580/- from assessed amount of Rs.1,48,28,903 and offered full and final settlement at Rs.1,39,57,323.
D. The respondent is liable to pay an additional amount of Rs.45,28,443/- with 12% interest on account of Lower assessment of loss by the Surveyor arbitrarily by adopting the method of Gross Profit (GP) ratio while assessing loss. The surveyor has not explained the reason for applicability of the Gross Profit ratio in arriving at a lower loss figure when the actual Stock Statement(s) regarding the weight of different items and its valuation at average weighted cost price submitted by the claimant in support of loss assessment was not disputed by the surveyor (refer to Clause 24 and Clause 24.3.6 of the Survey report).
E. That the respondent is liable to pay an amount of Rs.1000000/- as mental agony and harassment compensation to the complainant. It is submitted delay in settling claim has caused immense loss and agony to the complainant as the value of gold has increased many fold and the compensation offered by the insurance is not matching with the loss suffered by the complainant on account of appreciation of value of stocks in trade.
F. That the respondent is also liable to pay cost of litigation to be allowed by this Hon'ble Commission." (Ad verbatim per record)
(3.) This complaint was contested through a written version filed by the OP. Preliminary objections have been taken such as: (i) no cause of action as amount of Rs.1,39,57,323/- was offered vide letter dated 18.5.2011; (ii) complaint not maintainable as nothing survived after offer to pay the claim amount; (iii) complaint was not maintainable under Consumer Protection Act, 1986 (Act) as complex questions of facts and law involved; (iv) the complainant not a consumer within the meaning of section 2(1)(d) of the Act as the insurance taken was for commercial purpose. On merit, it is admitted that the showroom of the complainant was insured under Jeweler's Block Policy and that on 4.2.2008, the dacoity incident of 3.2.2008 was intimated. In this intimation, the complainant was not able to give the extent of loss (Annexure- R-5). OP had appointed Shri R.N. Tripathi for a preliminary survey, to begin with, as final surveyor could be appointed only on the basis of quantum of estimated loss, as per IRDA guidelines. Shri Tripathi immediately visited the site on 5.2.2008, and vide letter dated 5.2.2008, requested the complainant to furnish some documents (Annexure-R-6); reminder was sent on 9.2.2008 (Annexure-R7), and the preliminary survey report was submitted on 14.2.2008 (Annexure-R8). It was stated in this report that except the seizure list and copy of the policy, documents sought were not submitted by the complainant. This was brought to the notice of the complainant vide letter dated 18.2.2008, in which a request for estimate of loss was also made (Annexure-R9). Complainant vide letter dated 25.2.2008 submitted estimate of loss as Rs.1,98,16,000/- (Annexure-R10). Thereafter, OP appointed Sanjay Dwivedi and Associates for final survey. In the final survey report, it was depicted that documents were furnished by the complainant in a piecemeal manner. It was also reported that the loss could not be finalized earlier as the culprits were arrested and some recovery from them was made which details were provided only subsequently. These were important factors for the assessment of the loss. Correspondence between the complainant and the OP (Annexure - R-11 colly) was referred to in this regard. Finally, surveyor's report was issued on 29.3.2010 (Annexure- XII) which arrived at a net loss of Rs.1,48,28,903/-, inclusive of loss of cash, Rs.2,00,000/-. Clarifications were sought by the OP from the surveyor vide email dated 20.8.2010 (Annexure-R12) which was replied to vide letter dated 28.8.2010 (Annexure-R13 colly). On request from the head office, further clarifications were sought from the surveyor which were provided vide letter dated 24.3.2011 (Annexure-R4). Post clarifications, the loss payable was finally approved by the head office for an amount of Rs.1,39,57,323/- and communicated to the complainant vide letter dated 18.5.2011 (Annexure-R1). The complainant refused to sign the discharge voucher and sought instead release of the amount as an interim payment. OP informed the complainant that reduction of the claim amount from Rs.1,48,28,903/- to Rs.1,39,57,323/- was on account of gold jewellery worth Rs.11,35,000/- lying with the makers. As such, the OP submitted in their written version that the complaint was not maintainable, had no merit and was liable to be dismissed.;