DISTRICT CONSUMER DISPUTES REDRESSAL FORUM PALAKKAD
Dated this the 29th day of April 2017
Present : Smt.Shiny.P.R. President
: Smt.Suma.K.P. Member Date of filing: 01/09/2015
: Sri.V.P.Anantha Narayanan, Member
(C.C.No.125/2015)
N.Murali,
S/o.Nagarajan
Manager,
Vasavi Vidyalaya Senior Secondary School,
Thanneerpanthal,
Kinassery,
Palakkad – 678 707 - Complainant
(Adv.V.V.Girish)
V/s
1.Branch Manager
National Insurance Co.Ltd.
Branch Office, 3rd Floor,
Kanoos East Fort Resort,
Kunnathurmedu, Palakkad
(By Adv.Raji Vijayasankar)
2.K.C.Muraleedharan Nair,
Surveyor and Loss Assesser,
10/101A, Ushus, Puthur Road,
Thrissur – 680 013 - Opposite parties
(By Adv.P.K.Devadas)
O R D E R
By Smt.Suma.K.P. Member
The complainant had taken a standard fire and special peril insurance from 1st opposite party for the complainant’s school building including compound wall, furniture/fixtures / fittings including electrical wiring, audio visual projector, computer, ups, printers, lab equipments etc. etc. under a valid insurance policy for the period 17/7/2014 to 16/7/2015. Total amount of policy covered is Rs.8,40,50,000/-. On 20/7/2014 at about 12 pm due to heavy rain and abnormal wind, the top portion of the school building got severely damaged. Immediately the complainant informed the 1st opposite party and the official insurance surveyor came and inspected the site and noted the damages and gave permission to proceed with the repair work. After that the complainant submitted the claim form stating the damages along with photographs and estimate showing approximate amount for repair works. After submitting claim form the complainant proceeded with repair works by removing the old and damaged materials. On receiving the claim form and the initial report of the surveyor, the 1st opposite party forwarded the claim to the Divisional office, since the limit exceeds, and appointed another surveyor subsequently. The complainant expected the amount for repair as Rs.12,66,281/- but he incurred Rs.1504749/- for the repairs of the building. After completing the repair works the bills and vouchers were also handed over by the complainant to the first opposite party. On 25/7/2014 a surveyor deputed by the opposite party visited the school premises. A letter dated 24/7/2014 was sent by him to the complainant demanding certain details. According to the complainant he had sent that letter due to some ulterior motive demanding for more documents, which is not material for deciding the damages. Even after the handing over of those documents he kept asking for the very same documents. At last the complainant sent those documents excepting a certificate from the meteorological department to show that there was heavy rain and abnormal wind there at the relevant point of time. Due to this type of attitude taken by the second surveyor the complainant preferred a complaint to the higher authorities of the opposite parties. Even after that the opposite parties fixed damages to the tune of Rs.3,07,047/- only based on the report of the second surveyor. The complainant alleges that there is no basis for arriving, at such some as damages. The opposite parties have failed to give legitimate claim of the complainant which amounts to clear deficiency of service on the part of the opposite parties and they are liable to pay damages to the complainant to the tune of Rs.15,04,749/- alongwith cost and compensation for the mental agony.
First opposite party entered appearance upon notice from the Forum and filed version stating the following:
The complainant is not a consumer and the complaint is not maintainable. The policy issued by the company is to Vasavi Vidyalaya, and not to the complainant Shri.Murali, and he has no authority or right to file a complaint of this nature. It is true that the first opposite party had issued the cheques for the assessed amount with full and final settlement receipt but the insured was not ready to reply or return the final settlement voucher for a pretty long time and this has necessitated the company to close the file as no claim. The complainant’s contention was totally denied and they contended that no serious damages was caused to the building. The spot survey was conducted by Shri.Sukumaran, and reported that the incident was due to poor maintenance deterioration due to ageing. The estimate submitted by the complainant was without any basis. His estimate was Rs.7,12,745/- and that too without any basis. After the spot survey final survey was arranged and an expert was appointed by first opposite party and he demanded certain essential documents but the complainant was not ready to co-operate, most of the structures were constructed without proper permit from the Panchayath and there was no proper plan. The policy issued by the opposite party was for the construction legally made in accordance with the law. The surveyor issued several letters to furnish the details but the intention of the complainant was to hide something to topple down the survey proceedings. It was true that the spot survey was arranged and immediate attention was given to facilitate the complainant to settle the claim as early as it possible. The allegation that the intention of the surveyor was to delay or defeat the claim of the complainant was totally false. The further allegation that the opposite party inspite of several request reluctant to settle the claim is totally absurd. The final survey report of Mr.A.R.Muralidharan Nair received by the company dated 7/5/2015 was informed to the complainant. But the complainant was not satisfied by his report and issued complaint letters addressed to the Chairman National Insurance Co., Calcutta, tarnishing the image of the surveyor and to make him as a controversial figure by alleging that “we never gave a bribe to surveyor to settle the claim”. It was not a standard letter addressing a public authority. If there was any demand, as educated man, it was for the complainant to inform the CBI or to the IRDA authority to cancel his license. It is necessary to implead the surveyor in the part array as a necessary party since the allegations are against the surveyor. No deficiency of service can be attributed against insurance company. Immediately on receipt of the survey report dated 7/5/15 the first opposite party in its letter 23/6/15 offered to settle the claim for Rs.3,07,047/- based on the report of the surveyor. The company has no option except to accept the report of the surveyor and as per the insurance act, there is a remedy opened to the complainant to approach higher authorities, if he is not satisfied with the assessment made by the licensed surveyor. The allegation that the complainant had spent 14,04,739/- for repairs was denied by the first opposite party. They also contended that the above dispute is not a consumer dispute because of the fact that M/s.Vasavi Vidyalaya is a commercial unit working under Arya Vyasa Educational Trust. The claim of the complaint is not genuine one and his intention was to bribe someone to reach his goals by extracting money from a public institutions. Hence the complaint has to be dismissed with cost.
As per the contention of the first opposite party the complainant impleaded the surveyor as second opposite party. He entered appearance and filed a version stating the following:
He had an experience of more than 25 years and is an independent insurance surveyor and loss assessor with license No.SLA7402 from IRDA. The complainant has no locus standi to represent the institution. There is no privity of contract between 2nd opposite party and the complainant and no relief is claimed against him. The Division office of first opposite party at Thrissur had entrusted a survey work on 24/7/14 to him for a claim lodged by M/s.Vasavi Vidyalaya, Thannerpanthal, Kinassery for the damage caused to roof of 3rd floor of school building, which was alleged to have been insured with 1st opposite party, their branch office. He had only acted as per the direction of 1st opposite party and what is legally permitted in this matter. He had gone to the premises of the insured after informing them. It was noted that the front portion of the damaged area was totally demolished, dismantled and removed before his inspection. When enquired the insured informed that another independent surveyor had visited the site earlier on the day of occurrence and also taken photos of the damage caused. As a part of his work and instructions from the insurer, he had requested the complainant to submit necessary documents by a registered letter dated 26/7/2014 and over telephone. But the complainant neither submitted any documents nor corporate with him. Instead they have threatened him over telephone and made baseless allegation against him. Hence he had no allegation but to inform the 1st opposite party by registered letter dated 5/11/2014 apart from several other letters, that he is not interested in proceeding with the survey and he is ready to hand over the claim file to the office. But as per further request he proceeded with the survey and submitted the final report dated 1/1/2015 to the divisional office of the insurer at Trichur recommending to close the file as it was getting delayed as the complainant was not co-operating and submitting the necessary documents. There after due to some discussion by the complainant with the insurance company based on some documents submitted by the complainant requested him to visit again and submit the survey report based on the available documents submitted by the complainant for finalizing the claim. As per this request he visited the place again on 24/4/2015 and noted that the front damaged portion was modified and completely altered to new design. He had also tried to get the confirmation from the Kannady Grama Panchayath and District Collector regarding the cause of damage to the institution and its reconstruction. Based on the claim from, estimate, inspection, preliminary survey report, photos and other available document she submitted his survey report dated 7/5/2015 with photos and all documents were handed over in respect of the claim submitted by the complainant. The final decision, payment of claim subject to policy condition etc. are done by the first opposite party as the contract is between the insured and the first opposite party. As an independent surveyor he had done his duties honestly and impartially and submitted the report only based on the documents submitted, his inspection and findings. Hence, the complaint has to be disallowed.
The complainant filed proof affidavit and he was cross examined as PW1 and documents A1 to A11 were marked. Manager of the first opposite party was examined as DW1. Ext.B1 to B10 were marked on the side of the 1st opposite party and the second opposite party was also examined as DW2 and Ext.B11 to B15 was marked.
Evidence was closed and matter was heard.
The following issues are considered in this case are.
1.Whether there is any deficiency in service from the side of opposite parties ?
2.If so, what are the reliefs entitled to the complainant ?
Issues 1 & 2
The first opposite party contended that the complainant has no locus standi to represent the school. The complainant had produced Ext.A11 which is a resolution showing that the complainant was appointed as Manager of the School run by the trust and the copy of the trust deed was produced and marked as Ext.A10. Ext.A1 was submitted by the complainant himself and that was admitted by DW1 the Manager of first opposite party. The second opposite party had also deposed (DW2) that the first opposite party gave the number of Murali stating that he is the Manager of the School. Hence, the contention raised by the opposite party that he has no locus standi is not sustainable. The another contention raised by the opposite party was that the school is a commercial unit. DW1 at the time of examination cannot explain why such contention was made. He had also stated that he is not having the knowledge with regard to the norms of the CBSE Board. The complainant submits that as per the CBSE norms the sanctioning of the school is only to charitable institutions. As such the above contention is not sustainable. Moreover, our National Commission has held in 2012 CPJ 625 NC4, that Insurance contract in question cannot be termed as a commercial activity. Further contention of the opposite party was that the complainant is entitled only for the damage to the tune of Rs.3,07,047/- that too on the basis of the report of the second opposite party. The complainant was not satisfied with the assessment made by the second opposite party. The complainant submits that the incident had occurred on 20/7/2014 at about 12 noon. The first opposite party on receiving information of the incident sent a surveyor for spot survey who visited at 3 pm on the same day who had noted down all the damages and directed to remove the top floor portion and proceeded with the work. He further alleges that such a direction was given because of 1200 students were studying in the school and to avoid accidents by falling down the articles. After removing the damaged top floor, claim form was submitted (Ext.A2) on 23/7/14 before the opposite party. On receiving the primary assessment by the first spot surveyor and the amounts noted in the claim form exceeds the branch office limit (above 10lakhs) the branch manager forwarded the same to the divisional office. Accordingly the second opposite party was appointed for the final survey. The second opposite party should go through the estimate and commend which of them are correct and which are false. In this regard the complainant had placed a decision reported in 2009 Kerala High Court 4944 the Supreme Court held that the genuine and bonafide claims of the insurance should not adopt attitude of avoiding payments on one pretext or other. The second opposite party has not stated that what is the exact damage caused on the site. Ext.B2 is the earlier surveyors report, which has stated, the reason for the incident and directions to proceed with the work etc. etc. Second opposite party (DW2) deposed that he was not supplied by the Ext.B2 by the first opposite party. At the time of examination he has stated that the scrap value was around Rs.43,000/- and the original values will be around 300% to 500% higher. The main contention of opposite party was that this complainant has constructed more than the damaged area and that too without approval from the authorities. The bills vouchers etc. produced from the complainant are not disputed by the opposite parties. The complainant alleges that the second opposite party has filed the final report as per the direction of the first opposite party without any basis. The second opposite party states that inspite of several request the complainant did not co-operate and did not produce the documents. Excepting the meteorological department report, everything was handed over to the surveyor by the complainant. The spot surveyor has assessed the cause for the incident as heavy rain and abnormal wind. Hence in the final surveyor cannot demand for a report from the concerned department since there are no equipments installed at the premises to measure speed of the wind. The final surveyor had filed a report which was marked Ext. B7 in which he has assessed the total expenditure as Rs. 3,23.207.00 . He has assessed the said amount for total plinth area of 112.5 square meters only. As per Ext. B8 it is seen that permit was sanctioned for total area of 138 square meter from Kannadi Panchayath . Accordingly the 1st opposite party is bound to pay expenditure for the total area of 138 square meter. As per Ext. B7, the opposite party 2 has calculated expenditure for tress work as 112.5 square meter x 10.76 @Rs.150 per meter . Since the sanction was provided for 135 m2 the same shall be calculated in terms of the same proportion. He had assessed the expenditure as 3,23,207.00 for 112.5 square meter as per Ext. B7. Accordingly for a plinth area of 138m2 the propionate amount shall cost approximate sum of Rs. 5 lakhs and the 1st opposite party is liable to pay an amount of 5 lakhs to the complainant being the amount spend on repairing the building.
In the above context, we direct the first opposite party to pay Rs.5 lakhs (Rupees Five lakhs only) to the complainant with interest @9% from the date of filing this complaint, being the amount spend on repairing the building. We also direct the 1st opposite to pay Rs. 5000/- (Rupees Five thousand only) as cost of the above proceeding.
Order shall be complied within one month from the date of receipt of order, failing which the complainant is entitled for 9% interest for the whole amount from the date of order till realization.
Pronounced in the open court on this the 29th day of April 2017.
Sd/-
Shiny.P.R.
President
Sd/-
Suma.K.P.
Member
Sd/-
V.P.Anantha Narayanan
Member
Appendix
Exhibits marked on the side of complainant
Ext.A1 – Photocopy of policy issued by opposite party in favour of complainant
Ext.A2 – Photocopy of fire claim form submitted by complainant to opposite party
dated 23/07/2014
Ext.A3 – Photocopy of letter dated 26/07/2014 submitted by surveyor to the
complainant
Ext.A4 - Break up details of work submitted by contractor R.Jayakumar texture
builders, Palakkad
Ext.A5 series – Photograph(8Nos) showing damages caused to the building
Ext.A6 – Paper cutting dated 21/07/2014(Thuranna kathu)
Ext.A7 – Photo Copy of letter issued from the opposite party dated 23/06/2015
informing petitioner of loss assessed by surveyor and offer of final
settlement.
Ext.A8- Photocopy of letter dated 27/06/2015 issued by opposite party to the
complainant informing that the claim would be treated as no claim
Ext.A9- Original bills along with payment vouchers spend by complainant towards
repairs.
Ext.A10- Abstract of resolution passed in the meeting held on 10/09/2005.
Ext.A11- Photocopy of trust deed by the complainant.
Exhibits marked on the side of Opposite parties
Ext.B1 –Policy copy (original)
Ext.B2 – proposal for fire insurance
Ext.B3 – letter dated 2/6/2015 issued by the Insurance surveyor to opposite party
Ext.B4 series– Preliminary survey report of Sukumaran, insurance surveyor
Ext.B5 – letter dated 16/03/2015 issued by complainant to opposite party
Ext.B6 – photocopy of letter dated 12/06/2015 issued by the complainant to opposite party
Ext.B7-Addendum fire survey report dated 07/05/2015
Ext.B8-No objection certificate dated 21/11/2011 issued by
Kannadi Grama Panchayath
Ext.B9-Letter dated 01/10/2014 issued by opposite party to the complainant
Ext.B10-repair work details dated 20/03/2014 submitted by texture builders
Ext.B11-photocopy of form IRDA-7LF
Ext.B12 series-Letters send to complainant by surveyor Muraleedharan Nair(4 Nos)
Ext.B13series-Letters send to opposite party by surveyor Muraleedharan Nair(3 Nos)
Ext.B14-Letter dated 02/12/2014 send by Muraleedharan Nair surveyor to
Kannadi Grama Panchayath
Ext.B15- Letter dated 26/11/2014 send by Muraleedharan Nair surveyor to District
Collector, Palakkad.
Witness Examined on the side of Complainant
PW1-N.Murali
Witness Examined on the side of opposite party
DW1-Johny Thattil
DW2-K.C.Muraleedharan Nair
Cost
Rs.5000/-
