ORDER

(Per: Mrs. Veena Sharma, Member):

          This appeal, under Section 15 of the Consumer Protection Act, 1986, is directed against the judgment and order dated 30.05.2012 passed by the District Forum, Tehri Garhwal in consumer complaint No. 15 of 2010, whereby the District Forum has allowed the consumer complaint and directed the opposite party-insurance company to pay the complainant a sum of Rs. 50,000/- and interest @ 6% per annum on the said amount from the date of filing the consumer complaint.

2.       Briefly stated the facts of the case, as mentioned in the consumer complaint, are that the complainant-Sh. Mahavir Singh is the owner of the Atta Chakki at Hoonkhal, Tehri Garhwal.  The said atta chakki was insured with the National Insurance Company Ltd.-opposite party for the period from 12.11.2008 to 11.11.2009 for a sum of Rs. 2,50,000/-.  Due to heavy rainfall and thundering of clouds on 06.09.2009, the shop, where the atta chakki was installed, became damaged.  The information of the above incident was given to the Branch Manager of insurance company on 10.09.2009.  The insurance company had appointed a surveyor, who gave his report to the insurance company. The insurance company sent a letter dated 22.12.2009 to the complainant that he did not submit the estimate of his loss/damage till now.  The complainant made an estimate from the Diploma Engineer, who estimated the loss/damage as              Rs. 99,789/-.  The opposite party informed the complainant that the surveyor, to whom the insurance company appointed, gave his report that the room which became damaged is of Kuchcha construction, where the complainant kept the diesel engine to start the attak chakki.  The complainant have total three chakki and all are installed at main room, which is class-I constructed.  So neither the atta chakki nor the room, where the three chakki installed, was damaged, only the kuchcha house became damaged, which was not insured.  It is also stated that as per the policy concern, the atta chakki has only been insured where neither the atta chakki nor the room damaged.  So there arises no liability on the part of the insurance company-opposite party.  So the insurance company closed the file by treating it “no claim”.  By alleging deficiency in service on the part of the insurance company, the complainant filed a consumer complaint before the District Forum, Tehri Garhwal.

3.       The insurance company-opposite party filed written statement before the District Forum and accepted to insured only atta chakki for a sum of Rs. 2,50,000/-.  The opposite party further stated that on 10.09.2009, the complainant informed the insurance company that due to continuous rain since 06.09.2009, the premises where the insured atta chakki was installed became damaged.  The opposite party appointed     Sh. Praveen Kumar Verma, Insurance Surveyor & Loss Assessor, who informed the insurance company that the atta chakki and room, where the atta chakki was installed, was not damaged. So the insurance company was not entitled to give any claim to the complainant.  The District Forum vide its order dated 30.05.2012 allow the consumer complaint in the above terms. Aggrieved by the said order, the opposite party-insurance company has filed the present appeal.

4.       We have heard learned counsel for the parties and perused the material placed on record.

5.       Learned counsel for the appellant-opposite party Sh. Deepak Ahluwalia argued that the insurance company had rightly repudiated the complainant’s claim because the complainant is not entitled to the reliefs claimed. The terms and conditions of the insurance policy on the basis of which the impugned insurance cover was provided, the complainant is not entitled to the relief awarded.  He further stated that the District Forum erred in holding that besides the atta chakki, accessories were also covered under the policy, but no premium was received for the accessories and, thus, the same were not covered under the impugned insurance policy. According to the learned counsel for the appellant only atta chakki was insured against the risk of Fire & Special Perils.

6.       In support of the arguments, learned counsel for the appellant referred the report of the surveyor, appointed by the insurance company (Paper Nos. 12 & 13) who observed that the size of the shop is approx. 12’x12’ of Class-I construction and on left adjoining side the room which became damaged is of Kuchcha construction, where the insured kept the diesel engine to start the atta chakki and pulley system is also there.  The insured have total three chakki and all are installed at main room of Class-I construction.  Due to heavy raining water the wall of that Kuchcha house became damaged, which was not insured.  As per the insurance policy concern, the atta chakki has only been insured, where neither the atta chakki nor their room damaged. 

7.       Learned counsel for the complainant-respondent Sh. Shardul Negi, while refuting the contention made on behalf of the appellant, submitted that it was incorrect to say that the respondent had only insured atta chakki.  Besides atta chakki, accessories and premises, where the atta chakki was installed, were also covered under the policy.  Further the learned counsel also submitted that the proposal form was filled by the insurance company’s agent. 

8.       Learned counsel for the appellant has also relied upon the judgment of the Hon’ble National Commission in the case of United India Insurance Co. Ltd. vs. Deen Dayal; II (2009) CPJ 45 (NC).  In the said case, the Hon’ble National Commission has held that “Surveyor’s report being important document, cannot be brushed aside lightly without any material to contrary on record – Nothing produced on record to contrary, to rebut the loss assessed by Surveyor.”  The facts of the said decision are not much variance to the facts of the instant case. 

9.       We considered the submissions made by the learned counsel for the parties. There is no dispute between the parties regarding the policy which was valid for the period from 12.11.2008 to 11.11.2009, premium for a sum of Rs. 527/-.  It is also not disputed that the insured had loss for its Kuchcha construction due to heavy rain water.  The only dispute is in respect of the refusal of the insurance company to pay the said amount.  “The atta chakki is in act and have no loss. So there arises no liability of the insurance company, hence, no assessment is derived hereunder.”

10.     The insurance policy, which is filed on paper No. 14 shows that “Risk Covered – Atta and Cereal Grinding (excluding Dal Mills); Description of Risk – Atta Chakki; Sum insured Rs. 2,50,000/-, total premium Rs. 527/-.  In the insurance policy, the premises where the atta chakki was installed was not covered under the policy.

11.     The District Forum has not considered all the facts and circumstances of the case and has erred to allow the consumer complaint per impugned order, which cannot legally be sustained and is liable to be set aside and the consumer complaint is liable to be dismissed. Consequently, the appeal is adequate to be allowed.

12.     For the reasons aforesaid, the appeal is allowed.  The impugned judgment and order dated 30.05.2012 passed by the District Forum, Tehri Garhwal is set aside and the consumer complaint No. 15 of 2010 is hereby dismissed.  No order as to costs.

(MRS. VEENA SHARMA)                               (D.K. TYAGI)                      (JUSTICE B.C. KANDPAL)