Heard learned counsel for both the sides.
2. Captioned appeal is filed u/s 15 of the erstwhile Consumer Protection Act, 1986 (hereinafter called the ‘Act’). Parties to this appeal shall be referred to with reference to their respective status before the District Forum.
3. The case of the complainant in nutshell is that the complainant on availing a loan from the State Bank of India, Kotpad constructed a residential building and the same was insured with the opposite party under the Fire and Special Peril Policy for a period of ten years commencing from 20.10.2000 on payment of Rs. 428/-. It is submitted that while the said policy was in force, the building was collapsed due to heavy rain on 13.6.2004. Thereafter the local Tahasildar enquired into the damages and confirmed vide letter dated 23.9.2004. The matter was reported by the insured but the insurer remained silent. It is further submitted that the complainant preferred a claim of Rs. 1,80,000/- but suddenly the opposite party-insurer settled the claim at Rs. 7446/- as per direction of Hon’ble High Court of Orissa. Since the complainant has not agreed to the settlement made by the opposite party, complaint case was filed.
4. The opposite party filed written version stating that they have assessed the loss through a surveyor and the complainant is entitled to get Rs. 7446/-, so there is no deficiency in service on the part of the opposite party.
5. After hearing both the parties, learned District Forum have passed the following order:-
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“ Hence ordered that the complaint petition is allowed in part and the O.P. is directed to pay Rs. 1,78,500/- towards net loss to the complainant within four weeks from the date of communication of this order failing which the awarded sum shall carry interest @ 12% p.a. from the date of occurrence i.e. 13.6.2004 till actual payment.”
6. Learned counsel for the appellant submitted that learned District Forum without verifying the Surveyor’s report has accepted the inspection report submitted made by a retired Municipal Engineer produced by the complainant illegally. According to him, the survey was made by a Licensed Surveyor and as such he has come to a conclusion of total loss of Rs. 7446/-. He further submitted that the learned District Forum ought not to have relied on the report of a retired Municipal Engineer, Kotpad. Therefore, he prayed to set aside the impugned order by allowing the appeal.
7. Considered the submissions, perused the DFR and the impugned order.
8. There is no doubt that the complainant has purchased a policy under Fire and Special Peril Policy for a period of ten years commencing from 20.10.2000 on payment of Rs. 428/-. It is also admitted fact that the complainant requested the opposite party to pay the amount as per the report of a retired Municipal Engineer, but suddenly the opposite party-insurer settled the claim at Rs. 7446/- as per direction of Hon’ble High Court of Orissa. The findings of the retired Municipal Engineer engaged by the complainant is Rs. 1,78,500/- towards the loss.
9. Learned District Forum has not accepted the report of the Licensed Surveyor but accepted the report of the Engineer engaged by the complainant. Now the question arises as to whether it is a loss in high lost level.
10. It is always settled in law that Surveyor’s report should be accepted if it is not otherwise found to be mistaken one. Not only this, but also the Engineer engaged by the complainant has not given satisfactory report so far assessment on every component is concerned.
11. The Surveyor’s report submitted shows that he has deducted Rs. 10000/- as the policy excess after final loss at Rs. 7500/-. This finding is not acceptable. However, it appears from the report that total amount claimed is Rs. 3,80,000/- out of which the Licensed Surveyor found the loss only at Rs. 7500/- which is treated as compensation. When the counting of loss is assessed at Rs. 7500/-, thereafter Rs. 10000/- was deducted, it is not understood how such deduction is possible. So the Surveyor’s report is not correct. But the fact remains that there was occurrence of heavy rain on 13.6.2004 and house of the complainant was damaged.
12. It is reported in M/s. Oswal Plastic Industries Vrs. Manager, Legal Deptt. N.A.I.C.O. Ltd, 2023 Livelaw (SC)34 where Their Lordships have observed that as per second part of Clause 9 of Section 2 of the policy, the complainant shall be entitled to the reinstatement value and not the depreciated value as such we have come to the conclusion that the complainant is entitled towards reinstatement value of the ground floor damaged whereas the 1st and 2nd floor are likely to be collapsed for which the Surveyor has not taken the same into consideration because the damages in 1st and 2nd floor have not happened so far.
13. In view of the aforesaid analysis and decision of Hon’ble Apex Court we confirm the impugned order by modifying the operative portion of the order by directing to pay Rs.1,00,000/-( Rupees One Lakh) to the complainant by the opposite party. The rest of the impugned order remained unaltered.
DFR be sent back forthwith.
Supply free copy of this order to the respective parties or the copy of this order be downloaded from Confonet or Website of this Commission to treat same as copy supplied from this Commission.
