BEFORE THE DISTRICT FORUM:KURNOOL
Present: Sri.K.V.H. Prasad, B.A., LL.B President
And
Smt. C.Preethi, M.A.LL.B., Lady Member
Saturday the 6th day of December, 2008
C.C.No. 55/08
Between:
S. Jaya Ramudu, S/o. S.Papanna,
Plot. No.17 and 18, 78-8A-12-2-31, Mayuri Residency, New Krishna Nagar, Kurnool . … Complainant
Versus
Divisional Manager, New India Assurance Company Limited,
R.S. Road, H.D.C.T. Complex, Kurnool. .. Opposite party
This complaint is coming on this day for orders in the presence of Sri.P.Siva Sudharshan, , Advocate, for the complainant, and Sri.P.Ramanjaneyulu , Advocate, for the opposite party and upon perusing the material papers on record, the Forum made the following.
ORDER
(As per Sri. K.V.H.Prasad, President)
C.C.No.55/08
1. This case of the complainant is filed U/S 11 and 12 of C.P.Act seeking direction on the opposite party to pay to the complainant Rs. 16,900/- towards the balance of claim amount , Rs.10,000/- as compensation for mental agony and Rs.3,000/- towards cost of this case alleging deficiency of service and conduct of the opposite party in settlement of claim of Rs.21,800/- for the damage of compound of the complainants house occurred due to the floods to river Hundry on 22-06-2007 and the said property being covered in Insurance Policy No. 611500 /11 /00000159 , to a paltry amount of Rs.4,900/- only in spite of engineering estimate from the complainant side to the tune of Rs.21,800/-, giving undue importance to the surveyors report of the opposite party’s company and the said deficient conduct of the opposite party ensured mental agony and driven him to the forum for redressal.
2. In pursuance of the receipt of the notice of this forum as to this case of the complainant the opposite party has caused its appearance through its counsel and contested the case filling written version denying its liability to the complainants claim alleging justness in the settlement of claim for Rs.4,900/- basing on the report of independent surveyor appointed to enquire into complainants claim and the case of the complainant is with a dishonest intention to have wrongful gain and so for want of proper cause of action seeks dismissal of the complainants case with an exemplary cost of Rs.10,000/- in its favour.
3. In substantiation of the contentions while the complainant side has taken reliance on documentary record in Ex.A1 to A4 and Ex.X1 besides to its sworn affidavit , the opposite party side has taken reliance on documentary record in Ex.B1 to B3 and the sworn affidavit of the opposite party .
4. Hence, the point for consideration is whether the complainant has made out any deficiency in the conduct of the opposite party in settlement of the complainants claim for lesser amount than claimed and there by liability of the opposite party to the complainant’s claim .
5. The Ex.X1 is the Xerox copy of settlement intimation voucher sent by the opposite party to the bank of the complainant which envisages the settlement of claim for Rs.4,900/- and the acknowledgement of said amount of Rs.4,900/- by the complainant . It is called from the bank into the case file on the request of the complainant to say the said amount was received by complainant in part satisfaction of the claim upon company policy No. 611500 /11 /00000159 in respect of S. Jayaramudu (complainant ). The Ex.B3 – original of Ex.X1 -is placed into record by the opposite party to show the acknowledgment of Rs.4,900/- by the complainant there under is in full satisfaction and discharge of complainants claim on the opposite party under policy No. 611500 /11 /00000159. The Ex.X1 is the Xerox of the Ex.B3. While the Ex.B3 contains only striking of the word “ part” , the Ex.X1 envisages not only the striking of the word “part” but also an interpolation there on as “ part”. If the intention of the receipt of the amount of Rs.4,900/- there under by the complainant was only as to part satisfaction of the claim there is any necessity for striking only the word “part” in Ex.B3 already existing , as if the word “full” only was stricken without smudging the word “part” serves the purpose and there will be any necessity for interpolation above the smudged portion as “part” . There is any explanation from the complainant for that un warranted Act . Nor did it examine the person concerned to the bank who must have received Ex.X1 to say that the said Ex.X1 was received in the same state that appears now to believe any bonafidees in the said Ex.X1 as one executed by the complainant in acknowledgment of said amount of Rs.4,900/- in part satisfaction of his claim under policy of insurance of the opposite party and to doubt to the bonafidees of the Ex.B3 which envisages the acknowledgment of amount of Rs.4,900/- by the complainant in full satisfaction of the claim. Nor it is contention of the complainant any where in pleadings that there was compulsion on him to execute the Ex.B3 . Nor any legal notice prior to filling of the case was caused by the complainant on the opposite party with any such averment either that he acknowledge the amount of Rs.4,900/- as part satisfaction of the claim or the Ex.B3 was got executed for full satisfaction under any compulsive circumstances . Hence in the light of above discussion there appears any material to doubt the bonafidees of full satisfaction the claim in token of receipt of Rs.4,900/- by the complainant from the opposite party under Insurance Policy . Therefore the decision cited by the counsel for complainant of the Hon’ble National Commission in Oriental Insurance Company Limited and others Vs. Government Tool Rooms and Training Centre reported in I (2008) CPJ 267 (NC) has relevant application to the above discussed facts and circumstances of this case.
6. The learned counsel for the complainant places for appreciation the decisions of Hon’ble Rajasthan State Consumer Disputes Redressal Commission at Jaipur in Murarilal Vs United Insurance Company Limited and another reported in IV (2008) CPJ 119 and of Uttaranchal State Consumer Disputes Redressal Commission at Dehradun in New India Assurance Company Limited Vs Gajendra Singh Butolu and another reported in IV (2008) CPJ 12 which envisages the power of the District Forum to interfere in the value arbitrarily assessed by the surveyor by rejection of surveyors assessment and making of its own assessment in variance to surveyors report .
7. Hence the further point remaining consideration is whether there is any arbitrariness in assessment of loss made by surveyor under Ex.B2 and the assessment in Ex.A1 got by the complainant is worthy of reliance in case the surveyors assessment in EX.B2 is held arbitrary .
8. The Ex.B2 and the Ex.A1 are in agreement each other as to the assessment loss of damage to the tune of Rs.15,980/- towards brick massonary compound wall working out to 7.99 cubic meters ( M 3) and cost of its value @ Rs.2,000/- per M3 . Hence from the above circumstances it remains clear that the dimension of said compound wall 7.99 cubic meters . The recital of Ex.B2 says the size of said compound wall as of 60 feet length and 5 feet in height with one layer of hallow cement brick with inside plastering alone . There is any material from the complainant side disputing the correctness of said averment of Ex.B2 as to dimensions and nature of work found there in to said damaged compound wall .
9. The said dimension of said compound wall in Ex.B2 was mentioned for plastering of one side @ Rs.650/- to a value of Rs.2,258/- and the said amount of Rs.2,258 /- is doubled to Rs.4,517/- as cost of plastering for two sides of the compound wall . When the plastering to damage compound wall was alleged in Ex.B2 as on one side only and the said fact being not disputed by examining the author of Ex.A1 in substantiation of the fact of plastering on two sides of the said damaged compound wall , there appears every justification in the assessed value of Rs.2,258/- in Ex.B2 report towards the loss on account of damage to one side plastering of the compound wall and so the assessment of valuation towards said item mentioned in Ex.A1 is not remaining justifiable to the entitleness of it to the complainant.
10. The third item of loss assessed in Ex.B2 was as to white wash of the said compound wall . While the Ex.B2 observing the outsider of the wall was not plastered assessed the loss towards white wash of one side of said compound wall to Rs.417/- , the Ex.A1 estimates the white wash of said compound wall for both sides with first quality Janatha Cem to Rs.834/- . Irrespective of the fact whether the said compound wall was white washed with first quality of Janatha Cem – as the said estimation given in Ex.A1 being doubled to the value assessed in Ex.B2 estimation of single side of the wall and in the circumstances of one side plastering only to the said compound wall there remains any possibility for white washing on two sides of the compound wall and so there appears any justification in the assessed value of Rs.834/- towards said item in Ex.A1 to give any supercessive value to it on the value of Rs.437/- assessed in Ex.B2 for said item of work .
11. There being any provision in the Ex.B1 policy to compensate for any incidental expenses consequent to loss or damage to the insured property there appears any justification for the claim of Rs.500/- shown in Ex.A1 towards cleaning debris , cleaning charges due to inundation of building in floods and there by the there is any entitleness of it to the complainant .
12. Hence the loss assessed as to item Nos. 1 to 3 ( i.e, compound wall, plastering and white wash) in Ex.B2 suffers with any infirmities so as to give any side by to it and give preference to the loss assessed in Ex.A1 .
13. There is any provision in Ex.B1 policy and its terms and conditions envisaging the rate of depreciation of percentage that is to be worked out in relation to the age of the property insured or for any under insurance and salvage when claim has arisen for its damage or loss . The Ex.B2 deducts an amount of Rs.2,125/-towards salvage / re usuals without taking reference to its particulars in said Ex.B2 . It also shows a depreciation of Rs.6,530/-working out at 35% alleging the age of the property as 7 years old and a depreciation of Rs.5,070/- working out the depreciation for under insurance at 50.70% . The opposite party not even filed any affidavit evidence of said surveyor for showing justification in said depreciations with reference to any provision for such depreciation . Hence there appears any justification for said deduction of Rs.2,125/- , Rs.6,530/- and Rs.5,070/- from the amount of the loss assessed to the tune of Rs.18,655/- .
14. Therefore the settlement of assessed loss of Rs.18,655/- for Rs.4,900/- basing on Ex.B2 survey report and paying Rs.4,900/- only to the complainant vide Ex.X1/B3 is highly arbitrary on the part of the opposite party irrespective of the fact whether the said acknowledgment of Rs.4,900/- by complainant is in part satisfaction or in full satisfaction of the claim . When arbitrariness in the assessment of loss is felt in Ex.B2 surveyors report and the opposite party has merely acted upon it without applying its rational mind , in the interest of justice and in the light of the above decisions as said assessment in Ex.B2 could be interfered with by this Forum by its own rational assessment in supercession to of said Ex.B2 assessment , the complainant entitleness for the damage to the compound wall under said policy of insurance at the liability of the opposite party , remains at Rs.18,655/- .
15. As the opposite party by its conduct of arbitrary settlement of the claim for a paltry amount of Rs.4,900/- , not only ensured mental agony to the complainant but also driven the complainant to the forum for redressal of grievances , the opposite party liability remains for compensating the complainant for ensured mental agony and cost of the litigation , with Rs.5,000/- and Rs.2,000/- respectively , which appears to be justifiable in the circumstances of the case.
16. Consequently, the case of the complainant is allowed directing the opposite party to pay Rs.18,655/- towards damage occurred to the compound wall covered under insurance policy in Ex.B1 and Rs.5,000/- as compensation for mental agony and Rs.2,000/- as cost of this case within a month of receipt of this order. In default the supra stated award shall be payable by the opposite party to the complainant with 12% interest from the date of default till realization.
Dictated to the stenographer, transcribed by her, corrected and pronounced by us in the open bench on this the 6th day of December, 2008.
Sd/- Sd/-
MEMBER PRESIDENT
APPENDIX OF EVIDENCE
Witnesses Examined
For the complainant :Nil For the opposite parties :Nil
List of exhibits marked for the complainant:-
Ex.A1. Detailed estimate & its extract dated 03-11-2007 issued by
H. Babu Venkatesh Prasad.
Ex.A2.. Letter dated 07-07-2007 of complainant to SBI TIFC Branch, Kurnool.
Ex.A3. Letter dated 28-03-2008 of OP to complainant.
Ex.A4. Letter dated 30-10-2007 of OP to complainant.
Ex.X1. Office copy of the settlement intimation voucher called
from SBI TIFC Branch, Kurnool.
List of exhibits marked for the opposite parties:
Ex.B1. Policy No.611500/11/07/11/00000159 along with terms
and conditions.
Ex.B2. Survey report dated 30-08-2007.
Ex.B3. Original settlement of intimation voucher dated 24-03-2008.
Sd/- Sd/-
MEMBER PRESIDENT
// Certified free copy communicated under Rule 4 (10) of the
A.P.S.C.D.R.C. Rules, 1987//
Copy to:-
Complainant and Opposite parties
Copy was made ready on :
Copy was dispatched on :
