FIRST APPEAL NO. 109 OF 2005 (From the order dated 01.03.05 in Complaint No. 18/2001 of Himachal Pradesh State Consumer Disputes Redressal Commission) 1. The New India Assurance Co. Ltd. Sansar Villa, Near H.P. High Court, Shimla Through its duly constituted signatory, Mr. S.K. Kundra, Assistant Manager, Jeevan Bharti Connaught Circus, New Delhi 2. The Branch Office, New India Assurance Co. Ltd., Pathankot, through its duly constituted Signatory, Mr. S.K. Kundra, Assistant Manager, Jeevan Bharti, Connaught Circus, New Delhi. … Appellants Versus M/s. Himachal Pharmaceuticals Ltd. Village and Post Office Kandrori, Tehsil Indora, District Kangra Himachal Pradesh Through its Partner Sri Brij Mohan Sood … Respondent AND FIRST APPEAL NO. 147 OF 2005 (From the order dated 01.03.05 in Complaint No. 18/2001 of Himachal Pradesh State Consumer Disputes Redressal Commission) M/s. Himachal Pharmaceuticals Ltd. Village and Post Office Kandrori, Tehsil Indora, District Kangra Himachal Pradesh Through its Partner Sri Brij Mohan Sood … Appellant Versus 1. The New India Assurance Co. Ltd. Sansar Villa, Near H.P. High Court, Shimla Through its duly constituted signatory, Mr. S.K. Kundra, Assistant Manager, Jeevan Bharti Connaught Circus, New Delhi 2. The Branch Office, New India Assurance Co. Ltd., Pathankot, through its duly constituted Signatory, Mr. S.K. Kundra, Assistant Manager, Jeevan Bharti, Connaught Circus, New Delhi. … Respondents BEFORE:- HON’BLE MR. JUSTICE ASHOK BHAN, PRESIDENT HON’BLE MR. B.K. TAIMNI, MEMBER For New India Assurance Co. Ltd. : Mr. Ramesh Chandra Mishra, Advocate For M/s. Himachal Pharmaceuticals Ltd. : Mr. Himinder Lal, Advocate PRONOUNCED ON 23rd NOV. 2009 O R D E R MR. B.K. TAIMNI, MEMBER These two appeals arise from a common order passed by the State Commission in a complaint filed by M/s. Himachal Pharmaceuticals Ltd. (Appellant in FA No. 147 of 2005) against New India Assurance Co. Ltd. (Appellant in FA No. 109 of 2005) alleging deficiency in service. For clarity sake, we refer the parties as they appeared before the State Commission. Undisputed facts of the case are that the complainant Himachal Pharmaceuticals Ltd. obtained two insurance policies for a sum of Rs.94 lakh and Rs.12 lakh covering the risk to building, stock, machinery and laboratory equipment for the period from 29.10.99 to 28.10.2000. There was an episode of heavy storm on the intervening night of 30th and 31st May 2000 as a result of which the damage was caused to the building, stock, machinery and laboratory equipments. Intimation of this episode was given to the Insurance Company, who appointed a spot surveyor and gave a report on 14.6.2000 under the head estimated loss, as follows:- “Estimated Loss:- The insured has not submitted detailed estimates regarding the loss however, he has conveyed the loss to be in the tune of Rs.8.15 lac as detailed below:- Loss to building Rs.3.25 lacs Loss to stocks Rs.4.70 lacs Loss to Lab equipments Rs.0.20 lacs” (emphasis supplied) Thereafter a final surveyor was appointed who assessed the loss at Rs.31,834/-. After examining the report of surveyor, the insurer repudiated the claim. It is in these circumstances, a complaint was filed before the State Commission, who after hearing the parties and perusal of material on record, allowed the complaint and directed the insurer to pay Rs.1,50,086/- alongwith interest @12% p.a. from the date of filing of the complaint till realisation, Rs.10,000/- were awarded as compensation and Rs.2200/- were also awarded as costs. Aggrieved / dissatisfied with this order, both the parties filed two separate appeals before us. FIRST APPEAL NO. 109 OF 2005 In this appeal, the plea of the appellant is that they are not contesting the amount awarded by the State Commission, i.e., Rs.1,50,086/- but the State Commission committed an error by not deducting Rs.1 lakh under ‘excess clause’ as per condition of the Policy. Counsel for the appellant drew our attention to the Terms of the policy. Under the heading ‘special-conditions’ the following appears:- “Special conditions:- It is understood and agreed that the entire property in one complex / compound / location is extended to cover risk of Storm, Cyclone, Typhoon, Hurricane, tornado, Flood and inundation and the sum insured for this extension is identical to the sum insured against the risk covered under fire Policy C. No consequential loss or damage of any kind or description, nor any loss or damage caused by confiscation or wilful destruction by Government or any Municipal or Local Authority is covered under this Policy; In the even of the insured making any claim for loss or damage under this policy in respect of the above-mentioned perils he must (if so required by the Company) prove that the loss or damage was occasioned by or through or in consequence of the said perils. It is understood and agreed that in respect of all the above mentioned perils the Company shall only be liable under this Policy of loss or damage if the ascertained loss or damage sustained by the Insured in respect of the property hereby insured exceeds. 1) as regards any individual building, including its contents, and any properties (other than stocks in the open) either a) 2.5% of the Total sum insured by all policies in the name of the insured on such building and … b) Rs.1,00,000/-” (emphasis supplied) On this issue we heard Counsel for the insured / complainant. He could not show any thing to not to agree with the condition of the Policy. He was unable to persuade us as to why the appeal filed by the Insurance Company should not be allowed in terms of the provision of Policy. In these circumstances, the appeal filed by the Insurance Company (FA No. 109 of 2005) is allowed to the extent that, their liability in terms of the order passed by the State Commission would be limited to pay Rs.50,086/- only alongwith, interest @12% p.a. from 24.09.2001 till the date of realisation alongwith compensation of Rs.10,000/- and cost of Rs.2,200/- as awarded by the State Commission for the simple reason that in terms of the excess clause of the Policy Rs.1,00,000/- had to be deducted. FIRST APPEAL NO. 147 OF 2005 This appeal has been filed for enhancement of compensation. According to the Counsel for the complainant the first surveyor had estimated the estimated loss in following terms:- “Estimated Loss:- The insured has not submitted detailed estimates regarding the loss however, he has conveyed the loss to be in the tune of Rs.8.15 lac as detailed below:- Loss to building Rs.3.25 lacs Loss to stocks Rs.4.70 lacs Loss to Lab equipments Rs.0.20 lacs” The State Commission erred in not awarding this amount as assessed by the first surveyor. After hearing the Counsel for the parties, we find that the report on which the appellant wishes to rely upon is a ‘preliminary-survey’ report. Secondly, a plain reading of the ‘estimated loss’ being relied upon by the counsel for the appellant for enhancement of compensation, we see that this figure as reported by the preliminary surveyor, is based on the ‘estimated-loss’ conveyed by the appellant / complainant to the Insurance Company, but were not based on any assessment of loss by the preliminary surveyor. It was also the case of the Counsel for the appellant, that 6 different surveyors were appointed but he has not been able to show us with the help of the material on record that there were more than 2 surveyors appointed by the insurance company, in view of which, we find no merit in this contention. Indeed as per accepted practice, on receiving information from the insurer, a spot surveyor is appointed to carry out a preliminary survey, who notes down the first hand information, immediately obtaining, after the episode. The assessment is made by a surveyor who files final survey report. In the present case, the surveyor after due consideration has arrived at the loss in following terms:- ABSTRACT OF LOSS Loss assessed on A/c of stocks Rs.27,690.00 Loss assessed on A/c of building / shet Rs.1,04,144.00 Total loss assessed Rs.1,31,834.00 Less excess clause Rs.1,00,000.00 Net loss adjusted Rs.031,834.00 Subject to acceptance of liability by the insurers net loss of Rs.31,834/- (Rupees thirty one thousand eight hundred thirty four only) is hereby assessed. By now, it is well-settled proposition of law that surveyor’s report cannot be brushed aside unless something to the contrary is shown duly supported by any expert or a professional. In this case, nothing is produced on record to contradict the loss assessed by the surveyor. The only document brought on record is the affidavit of the party concerned, who is an interested party. Since there is no material to rebut the report of the surveyor, we are afraid we cannot take any other view than the one taken by the State Commission, except for non-provision/ non-deduction under ‘excess’ clause, in view of which we find no merit in this appeal (FA No. 147 of 2005), which is dismissed. Both the appeals stand disposed off in above terms.