Sri.D.Krishnappa,<br /> President<br /> <br /> 1. The Complainant has approached this Forum against the Opposite party with his grievance that he is a Tobacco grower by profession constructed a barren house measuring 16’ x 16’ for the purpose of processing of Tobacco leaves. That he had borrowed loan from the Cauvery Kalpatharu Grameena Bank, Kittur Branch, Periyapatna Taluk. In order to secure the loan of the Bank had insured tobacco leaves kept in the building with the Opposite party. That tobacco barren caught fire on 24.09.2007 at about 11.00 am. As the result, the entire building and tobacco leaves was destroyed and sustained heavy loss. Thereafter, he made a claim with the Opposite party, but the Opposite party without assessing the actual loss, only paid a sum of Rs.17,000/- through the Cauvery Bank Branch. But, his request for compensating the actual loss did not yield any result, therefore has prayed for a direction to the Opposite party to pay the entire insured amount to him with cost.<br /> 2. The Opposite party has filed version admitting issue of an insurance policy on the tobacco leaves stock in the barren and also the building. The Opposite party has also admitted the fire incident dated 24.09.2007 and contended that the surveyor visited the spot assessed the actual loss of the stock and building at Rs.33,600/-. After deducting Rs.5,600/- as under insurance and Rs.10,000/- for policy excess, a sum of Rs.17,500/- is paid to the complainant. The complainant after receipt of the said amount claimed excess loss, estimating the loss as more than Rs.1,00,000/-, which is frivolous. Therefore, there are no merits in the complaint and thereby has prayed for dismissal of the complaint.<br /> 3. In the course of enquiry into the grievance of the complaint, the complainant and one Ramesh Babu for the Opposite party have filed their affidavit evidence reiterating what they have stated in their respective complaint and version. Heard the counsel for both the parties and perused the records. The complainant has filed a copy of the assessment of loss made by him, the Opposite party has produced a copy of the report of a surveyor.<br /> 4. On the above contentions, following points for determination arise.<br /> 1. Whether the complainant proves that the assessment of loss arrived at by the Opposite party is inadequate and the act of the Opposite party in not paying the actual damages amounts to deficiency? <br /> 2. To what relief the complainant is entitled to? <br /> 5. Our findings are as under:-<br /> Point no.1 : Answered in the Affirmative in part.<br /> Point no.2 : See the final order.<br /> <br /> REASONS<br /> <br /> 6. Point no. 1:- There is no dispute between the parties with regard to the fact that the complainant as a tobacco grower maintained a barren measuring 16’ x 16’ stocked tobacco leaves in it for processing and that caught fire on 24.09.2007 at 11.00 am resulting in the destruction of tobacco leaves and building to some extent. The complainant though in the complaint and affidavit evidence has stated that the assessment of loss made by the surveyor of the Opposite party is inadequate and payment of Rs.17,000/- made to him is also inadequate, but, has not been in a position to spell out as to what was the loss or damage caused to the barren and exact amount of loss he sustained. However, the complainant has enclosed a copy of mahazar prepared by him at the spot claiming to had stocked 500 Kgs of tobacco leaves worth Rs.35,000/-, which was all burnt, assess damaged to certain building materials and also building and claimed a total amount of Rs.1,20,000/-. Whereas the Opposite party has produced the report of a surveyor who has in his report stated, though the dimension of the barren is shown as 16’ x 16’, but it actually measured as 14’ x 16’ in its dimension and that the building had been insured for Rs.75,000/- and the tobacco leaves stock was insured for Rs.15,000/- and further indicated in his report partial damages to the building accessories in side, and that he did not notice any damage to door, windows, and ventilator as claimed by the complainant and also did not notice any damage to the building, and therefore stated that the estimate furnished by the complainant is exaggerated. The surveyor further in his report has stated that the complainant had stocked 400 tobacco leaves worth Rs.18,000/- and it was under insurance of Rs.3,000/-, therefore arrived to the loss of stock at Rs.15,000/-. Further, he has in the report shown the details of the damages to accessories and has worked out the total loss of the building and accessories at Rs.18,570/- added Rs.5,800/- as labour charges, thereafter he deducted Rs.28% as depreciation towards the building accessories valued salvage at Rs.570/- and thus arrived to total loss of building with accessories at Rs.18,600/-. The surveyor further adding the loss of stock, loss to the accessories and labour charges reached the figure of Rs.42,370/- out of this he has assessed the net loss taking into consideration, the loss of stock and loss of accessories of the building at Rs.33,600/- leaving the labour charges, then he further deducting Rs.5,200/- towards under insurance and Rs.10,000/- towards the policy excess reached the figure at Rs.18,000/-, the amount payable to the complainant, but the Opposite party said to have paid only Rs.17,000/- to the complainant. As could be seen from the affidavit evidence filed by the complainant he has not questioned or disputed the correctness of the report of surveyor in any way. The complainant has also not disputed the observation of the surveyor that he did not actually notice any damage to the building except the damages to the accessories. The total amount of damages to the accessories he has arrived has also not been disputed by the complainant. Therefore, the report of the surveyor relied upon by the Opposite party remained unrebutted, therefore we find no reasons as to why we should discard the report of the surveyor. The complainant has not denied that he had insured the tobacco stock to an extent of Rs.15,000/- only and building was insured for Rs.75,000/-. The complainant as could be seen having insured the tobacco stock at Rs.15,000/- claim to had stocked tobacco worth Rs.35,000/-. Therefore, the complainant is not entitled for more than Rs.15,000/- towards loss of tobacco, but the surveyor as could be seen has not added the labour charges of Rs.5,800/-, which he arrived the figure of net loss as Rs.33,600/-. Therefore, if we take into consideration, the loss of stock at Rs.15,000/- loss to the building and accessories at Rs.18,600/- and labour charges of Rs.5,800/- with comes to Rs.39,400/- out of which the surveyor deducted Rs.5,600/- towards the under insurance also deducted Rs.10,000/- as policy excess, but we find no basis for deduction of Rs.10,000/- as policy excess, as the conditions of policy do not speak for deduction of Rs.10,000/-, which in our view is unreasonable. Therefore, we propose to deduct Rs.5,600/- towards under insurance and Rs.5,000/- towards policy excess, therefore if we deduct Rs.10,600/- out of total loss arrived by us from Rs.39,400/-, the complainant would be entitle to Rs.28,800/- out of which the complainant has been paid Rs.17,000/- only. Therefore, the complainant is still entitled to the balance amount of Rs.11,800/-. The Opposite party has contended as if the complainant has received Rs.17,000/- towards the full satisfaction of his claim, which cannot be heard and it is not a bar for the complainant to approach a Legal Forum to claim more damages or compensation, if it is able to establish it. Therefore, for these reasons, we hold that the Opposite party is therefore is deficient in its service and thus the complainant is entitled for the relief as observed above and we answer point no.1 accordingly and pass the following order:- <br /> ORDER<br /> <br /> 1. The Complaint is allowed in part.<br /> 2. The Opposite party is directed to pay Rs.11,800/- to the complainant within 60 days from the date of receipt of this order, failing which it shall pay interest at 15% on that amount from the date of this order till the date of payment.<br /> 3. The Opposite party shall also pay cost of Rs.500/- to the complainant.<br /> 4. Give a copy of this order to each party according to Rules.<br />