F.A.No.1180/2009 against  C.C.No.80/2008, DISTRICT FORUM-II,

EAST GODAVARI DISTRICT AT RAJAHMUNDRY

Between

1. Dhulam Krupa Lakshmana Rao,

    S/o.Thimmaraju, 39 years,

    S.Yanam Village, Uppalaguptham Mandal,

    E.G.Dist.

2. Dhulam Kasi Annapurna,

    W/o.Krupa Lakshmana Rao, 30 years,

    S. Yanam Village, Uppalaguptham Mandal,

    E.G.Dist.                                                                                                               …Appellants/

                                                                                                                                    Complainants       

  And

1. The Manager, State bank of India,

    Bandarulanka, Amalapuram Mandal,

    E.G.Dist. 

2. The Branch Manager,

    United India Insurance Co.Ltd,

    Kuchiminchi Agraharam, Amalapuram,

    E.G.Dist                                                                                                            Respondents/

                                                                                                                             O.P’s

Counsel for the Appellant      :  M/s.T.Sarada

Counsel for the Respondents :  R1 served.

     B.Purushothama Reddy-R2 

QUORUM:THE HON’BLE JUSTICE SRI D.APPA RAO, PRESIDENT

AND

SRI R.LAKSHMINARASIMHA RAO, MEMBER

FRIDAY, THE TWENTY SECOND DAY OF JULY,

TWO THOUSAND ELEVEN.

Oral Order (Per  Hon’ble Justice Sri D.Appa Rao, President )
                                                          *****

            The complainants preferred the appeal against inadequacy of compensation granted under one of the policies, and total dismissal of the claim in regard to the second policy            pertaining to tank bund and fish stored in it.

        The case of the complainants in brief is that they own Ac.10.72 cents wherein they were cultivating fish  by converting into tanks. While so they took two policies, one for bunds for Rs.1,75,000/- and another policy covering the value of the fish for Rs.1,85,566/-.  While so in the month of August, 2006 there was heavy devasting flood and the entire Uppalaguptham Mandal was submerged as a consequence of which the tank bunds were washed away along with the fish in it.  When a claim was made, the insurance appointed Sri Usaff Khan, a surveyor, who visited the tanks and requested the complainants to furnish Certificate of M.R.O., Tax paid receipts, pass book and estimation of loss etc.,.  Accordingly they have submitted the documents but the claim was not settled and therefore they issued a legal notice dated 04-6-2007 demanding to settle their claim.  After receipt of notice, 2^nd opposite party issued a settlement intimation settling the claim at Rs.30,000/- in regard to loss of bunds while in regard to fish they did not settle the claim as they did not believe that there was any fish at the time of flood.  Assailing the settlement, the complainants filed the complaint  claiming Rs.1,75,000/- for the tank bunds totally damaged and Rs.1,85,566/- towards value of fish together with interest at 24% p.a. and costs.

        The insurance company while resisting the case admitted the issuance of policies towards bunds and fish.   When the damage was intimated, they have appointed a surveyor, who estimated the value of bunds at Rs.30,000/- However, with regard to the claim for fish, it was totally denied on the ground that no fish were available at that time in the tank.  The complainant did not file or produce any bills to show the purchase of fish and the damage occurred to them due to the floods and therefore it requires elaborate examination of witnesses and evidence and prayed for dismissal of the complaint with costs.

        The complainants in proof of their case filed affidavit evidence of the first complainant and filed Exs.A1 to A27 while the opposite parties filed Exs.B1 to B11.

        The District Forum after considering the evidence placed on record, opined that that the estimation at Rs.38,687/- by the surveyor is reasonable and therefore directed the insurance company to pay the said amount together with interest at 9% p.a. from the date of filing of complaint i.e. 01-7-2008 till the date of realization together with costs of Rs.1,000/-.  So far the claim towards value of fish it was dismissed on the ground that the complainants could not prove that at the time when the flood occurred there was stock of fish.

        Aggrieved by the said order, the complainants preferred this appeal contending that the District Forum did not appreciate either facts or law in correct perspective. It ought to have seen that the estimate given by Sri Sai Associates under Ex.A26 was for Rs.1,00,000/- as the entire bunds were damaged.  Equally the District Forum went wrong in totally denying the claim towards value of fish.

        The point that arises for consideration is whether the complainants have sustained loss due to floods to the bunds and fish as prayed for by the complainants?

        It is an undisputed fact that the complainants have taken two policies, one for tank bunds at Rs.1,75,000/- and another for fish in tanks at Rs.1,85,566/- covering the period from 19-10-2005 to 18-10-2006 under Exs.A1 and B1.  It is also not in dispute that during the floods in August, 2006, the entire village was submerged.  The tanks were washed away along with the fish. When the surveyor, Sri Usaff Khan was deputed to assess the loss, he estimated the loss of bunds at Rs.38,687/- under Ex.B4 while rejecting the claim towards loss of fish under his report Ex.B3.  It may be stated herein that when the surveyor demanded the complainants to produce the certificate from M.R.O., bills to show the purchase  of seed, as well as feed, the complainants have submitted Ex.A9, M.R.O. certificate wherein he stated that the tanks were washed away.  The Fisheries Development Officer in his statement, Ex.A27, mentioned  the details of fish, their initial number and weight, final weight and number from September, 2005 to August, 2006. Despite the fact that the complainants have produced these documents emanating from the Government Officers       and also Exs.A15  to A25 to show that he had purchased seed, feed and other items, the surveyor did not cross check.  In fact the complainants have purchased the feed under those receipts but the surveyor did not state that those bills were fabricated for purpose of laying the claim before the insurance company.  The very purpose for which the surveyor will be appointed is to find out whether the claim of the complainants is genuine or not.  When the M.R.O. and Fisheries Development Officer has issued statements stating that there was flood and the bunds were washed away along with the fish, the insurance surveyor ought to have assessed the loss basing on those statements.  It may be stated herein that the rejection of the claim by the insurance surveyor in regard to value of fish is highly unjustified.  He ought to have verified the existence of fish or otherwise by considering Ex.A27 issued by Fisheries Department besides Exs.A15 to A25 filed by the complainant. 

In regard to estimation of loss of bunds, the complainants have filed Ex.A26, estimation issued by Sri Sai Associates.  It is not as though Sri Sai Associates have surveyed the bunds and assessed the loss at Rs.1,75,000/- for which the policy was taken.  When the policy was issued, undoubtedly the insurance company must have noted the value of the bunds and issued the policy.  The surveyor equally did not cross check Ex.A26, he has given his own estimate without there being any evidence to show that the bunds that were washed away was to a particular extent contradicting the extent noted by Sri Sai Associates under Ex.A26.  At any rate as the report under Ex.A26 estimating the loss at Rs.1,00,000/- was not contradicted, the complainants are entitled to Rs.1,00,000/- (as estimated under Ex.A26) in regard to loss of bunds.

The complainants in order to claim the value of fish, filed Exs.A15 to A25 showing an amount of Rs.4,95,852/- was spent.  We may state that the complainants insured the fish for Rs.1,85,556/- though a loan was taken for Rs.5,20,000/-. At any rate, the complainants could not file any document in order to prove that the stock worth Rs.1,85,556/- was existing by the date of floods.  The facts remain that there were fish and the same were washed away along with the bunds  when flood occurred.  Considering the nature of loss and the fact that the complainants did not maintain any accounts and did not file any documents, however, in the light of Exs.A15 to A25, an amount of Rs.1,00,000/- could be granted towards loss of fish.  The complainants have to blame themselves for not adducing any evidence to prove the value of fish to claim  the entire amount covered under the policy.

In the result this appeal is allowed in part granting a sum of Rs.1,00,000/- each under the policies totalling Rs.2,00,000/- together with 9% p.a. from the date of complaint i.e. 01-7-2008  till the date of realization together with costs of Rs.1,000/- to be paid within one month from the date of receipt of this order.     

Sd/-PRESIDENT.

Sd/-MEMBER.

JM                                                                                                     Dt. 22-07-2011