Heard learned counsel for both the sides.

2.              This case is  filed  U/S-17 of erstwhile  Consumer Protection Act,1986(herein-after called the Act). Hereinafter, the parties to this complaint  shall be referred to  with reference to their respective status before the learned District Forum.

3.                      The case  of the complainant, in nutshell  is that the complainant  has  got a fire  and allied perils like   flood, cyclone etc.  duly purchased from OP No.1.  It is alleged  inter-alia that on 18.06.2008  there was storm  and  flood causing damage   to the plant and machinery and thereafter  the matter was informed to the OP who deputed the surveyor. The surveyor after inspecting  the damages found that  paddy,chuda, gunny bags were damaged. Accordingly, he computed loss at Rs.1,41,000/- to which the complainant did not agree. The complainant engaged another surveyor who computed loss at Rs.15,67,528/-.  Since, the complainant’s request  is acceded to by the OP, the complainant  filed complaint claiming compensation and interest thereon.   He also prayed  for compensation for mental agony and harassment. So, the complaint was filed.

4.            The  OP    filed  written version stating that  they have got the information and during currency of the policy the surveyor  was deputed and he has computed the loss which comes to Rs.1,41,008/-. They averred that the amount was  given to the complainant but the complainant  did not receive same.  

5.          After  going through pleadings we  frame  two issues in this case.

Issue No.1.   Whether the complainant has proved the deficiency in service on the part of the OP.

Issue No.2.  Whether complainant is entitled to any compensation and the quantum   of compensation on all basis including for mental agony  and harassment.

Issue No.1

                        It is   settled in law   that the complainant has to prove the deficiency in service on the part of the OP. It is admitted fact that during currency of the policy  there was damage to  the stocks  and machinery by storm and rain.  It is also admitted fact that the surveyor was deputed by the OP. It is revealed   from the statement of the complainant   with the affidavit that they have requested the surveyor to compute  actual  loss but they did not  listen and the OP insisted to accept the loss computed by their surveyor. Learned counsel for the complainant submitted that the OP has taken a signature in the blank paper  to utilize same  but same fact is not found from the complaint. However, the claim has not been settled so far. It is settled in law that  sitting over the claim of the complainant for indefinite  period is deficiency in service on the part of the OP.  Thus, the complainant has proved the deficiency in service  on the part of the OP.

6.                  Learned counsel for the OP submitted that they have sent the  voucher computed by the surveyor to the financer but complainant has not signed.  Accepting same argument being a defence of the OP  is another unfair trade practice on the part of the OP because the complainant has to sign the discharge voucher.  When the complainant is a applicant, the discharge voucher has to be signed by the complainant not by the financer. Facts  remain  that the financer has  requested  the insurer for settlement  but on the application by the complainant. Therefore, the complainant has not only proved the deficiency in service but also unfair trade practice on the part of OP.  The issue No.1 is answered accordingly.

Issue No.2

7.              The  complainant is  to prove that he  is entitled to the loss asked for in the complaint. On the otherhand, OP submitted that the loss computed by the surveyor should  be the loss of settlement of claim.   We have found from the complaint accompanied  with the affidavit that the complainant   has engaged one private surveyor duly  having license from the Indian Institute Insurance Surveyor and Loss Assessor. He has submitted  the loss at Rs.15,67,528/-. At the same time learned counsel for the OP relied  on the report of the surveyor deputed by them because the surveyor was  deputed by the insurer  and the report  should be accepted unless  inherently improble and impartial. Now  two surveyor report, have to be  balanced or evaluated by this Commission.

8.             We have to find  out  first to test the report of the surveyor deputed by the insurer. After going through same we found  that he  has  estimated the loss for the paddy,chuda,ukhuda, gunny bags etc. and it  was estimated  at Rs.31,71,669/-. While assessing  the expenditure of loss he has given remark that  half of  stocks of the paddy and the chuda  were  completely damaged or rest of paddy and chuda were half damaged  and  both should be separately to be evaluated  to find out loss. Not only this but also he has also deducted the salvage. We are surprise to find out that  when the paddy and  the chuda which are already damaged  by the flood water  whether it is half damage or full damage is not consumable by human being.  Moreover, the question of salvage does not arise in such good stock. So, the deduction made by the learned surveyor of the insurer is not acceptable to compute the loss.

9.         On the otherhand, we have found that the loss computed by the surveyor appointed by the complainant has got the basis and reasons  are more stable and rational and he has computed loss at Rs.15,67,528/- and there is no bar to accept same.  The observation of the surveyor at page-99 is as follows:-

  “    Paddy, Chuda & Bran are  highly decomposable with contact  of water and gets rotten  and put refied. The flood water entered on 17/18.06.2008 and the unit was inundated  for more than five days. The complete wet and drenched stock can not be used or dried for use due to rotting and de-composition. “

 10.                   In view of aforesaid discussion, we are of the view that the complainant is entitled to get Rs.15,67,528/-  towards the loss  of the damaged to the stock and other machinery   etc. Therefore, the OP is liable to pay same towards compensation under policy.

11.                 It is revealed from the complaint  that the complainant has also  suffered financially and mentally due to non-settlement of the claim for the period from 2008 till now and for that we are of view  that compensation must be Rs.5.00 lakhs payable   and also imposed Rs.1,00,000/- towards cost. The issue No.2 is answered accordingly.

CONCLUSION

12..            In view of aforesaid analysis,  we allow  the complaint   with compensation and cost. The OP is directed to pay Rs.15,67,528/-  towards  the settlement of the claim, Rs.5,00,000/- towards compensation  and Rs.1,00,000/- towards cost. All the amounts  would be paid by the OP to the complainant within a period of 45 days from the date of order, failing which it will carry 18 % interest from the date of  submission of claim petition till date of payment.

                   The complaint is disposed of accordingly.

                   Free copy of the order be supplied to the respective parties or they may download same from the confonet  or webtsite of this  Commission to treat same as copy of order received from this Commission.