BEFORE THE A.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION
AT HYDERABAD.
F.A. 1647/2007 against C.C. 416/2005, Dist. Forum, Ongole.
Between:
1). Ganipineni Venkaiah, S/o. Subbarayudu
Age: 70 years, Agriculturist
R/o. Pallamalli
Chimakurthy Mandal,
Prakasham Dist.
2) Ganipineni Ramulu
S/o. Subbarayudu
Age: 60 years, Agriculturist
R/o. Pallamalli
Chimakurthy Mandal,
Prakasham Dist. *** Appellants/
Complainants.
And
1) The Bajaj Alliance General Insurance Company Ltd.
Rep. by its Manager.
3B, Balaji Mangalagiri Chambers
VIP Road, CBM Compound
Visakapatnam-3,
2) Corporation Motor Royal Sundaram
Alliance Insurance Co. Ltd.,
Claims Department
46, Whites Road,
Chennai-600 014.
3) The Auction Superintendent
Tobacco Board, Vellampalli
Korisapadu Mandal
Prakasham Dist.
*** Respondent/
Opposite Parties.
Counsel for the Appellant: M/s. CH. Shankmukha Rao.
Counsel for the Resp: M/s. V. Gourisankara Rao (R1)
M/s. Kota Subba Rao. (R2)
CORAM:
HON’BLE SRI JUSTICE D. APPA RAO, PRESIDENT
&
SMT. M. SHREESHA, MEMBER
WEDNESDAY, THE NINETEENTH DAY OF MAY TWO THOUSAND TEN
Oral Order: (Per Hon’ble Justice D. Appa Rao, President)
***
1) This is an appeal preferred by the complainants against inadequacy of the amount granted by the Dist. Forum.
2) The case of the complainants in brief is that they jointly own a tobacco barn in Pallamalli village of Chimakurthy mandal for which a policy for Rs. 1 lakh was obtained from the insurance company. While so, on 30.10.2004 due to heavy rains the barn was damaged and collapsed. When they submitted the claim for Rs. 1,30,000/- they were neither paid the amount nor repudiated the claim. On that a legal notice was issued but the insurance company did not give any reply. Therefore they prayed that an amount of Rs. 1,30,000/- together with interest, compensation and costs be awarded.
3) R1 Bajaj Allianz General Insurance Company Ltd. resisted the case. While denying each and every allegation made in the complaint, it alleged that immediately after receiving intimation it had appointed a surveyor. He inspected the barn and reported that the rain did not cause any damage. At any rate, the policy does not cover the loss or destruction due to rain. The damage should occur due to cyclone, typhoon, tempest, hurricane, tornado, flood or inundation etc. The meteorological report shows that the rain fall on 30.10.2004 was moderate which could not result in collapse of barn. For the notice issued, they gave a correct reply. Therefore, it prayed for dismissal of the complaint with costs.
4) R2 Royal Sundaram Alliance Insurance Company Ltd., resisted the case alleging that it had nothing to do with the policy in question. There was no specific allegation made against them. Therefore it prayed for dismissal of the complaint with costs.
5) R3 Auction Superintendent, Tobacco Board resisted the case. However he admitted that the barn was registered with its Board for the year 2004-2005 crop season, and that it was insured with effect from 11.9.2004 to 10.9.2005. Name of the complainant was enrolled by the insurance company on 11.9.2004. At any rate, they were not liable to pay any compensation and therefore prayed for dismissal of the complaint with costs.
6) The complainants in proof of their case filed affidavit evidence and got Exs. A1 to A11 marked, while R3 filed Exs. X1 to X3. R1 insurance company filed the affidavit evidence of its authorized signatory and got Exs. B1 to B21 marked.
7) The Dist. Forum after considering the evidence placed on record opined that the barn that was insured was damaged due to rain and the surveyor has assessed very low amount. Therefore, it assessed the damage at Rs. 15,490/- and directed R1 insurance company to pay the said sum with interest @ 9% p.a., from 25.1.2005 till the date of realization together with compensation and costs of Rs. 1,000/- each. The complaint against R2 & R3 was dismissed.
8) Aggrieved by the said decision, the complainants preferred the appeal contending that the Dist. Forum did not appreciate the facts in correct perspective. It ought to have awarded the entire amount claimed by them. They prayed that the entire amount claimed be allowed together with interest, compensation and costs.
9) The point that arises for consideration is whether the order of the Dist. Forum is vitiated by mis-appreciation of fact or law?
10) It is an undisputed fact that the complainants own a tobacco barn insured with R1 for Rs. 1 lakh covering the period from 11.9.2004 to 10.9.2005. It is also not in dispute that the said barn was collapsed during the rain fall on 30.10.2004. In fact, the very insurance company on the claim made by the complainant appointed Sri N. Varaha Swamy, Surveyor and loss assessor to assess the loss. He categorically observed that
“ During my survey I have inspected the damaged barn and made thorough enquiry and learnt that the narration given by the insured is true.” He further observed that the barn northern side wall north-west portion i.e., adjacent to entrance door western side portion was collapsed completely. On keen observation of collapsed wall and the remaining structure it was learnt that the wall was collapsed due to flow of rain water on the wall, that was collected from the roof as the roof was sink slightly to north-west-north direction. As a result the rain waster that collects/accumulates on the roof sink in that area and drained through the wall. Therefore, the wall constructed mud-mortar was drenched, wetted, soaked and some of the wall joints mud-mortar might have drained through water due to incessant rains in consequence of low pressure developed in the Bay of Bengal. As a result, gaps were developed in between the stones of the wall and that develops the un-even settlement of stones in the wall and finally, the wall was collapsed that particular area.”
He also mentioned that replacement value of the same barn works out for Rs. 96,700/-. Curiously the surveyor estimated the value at Rs. 7,710/- calculating the rates of stocks, mud, sand, cement, masonry charges etc. He did not attend any schedule of the rates for his estimation.
12) Though the insurance company alleged that the terms of the policy do not cover the damage of the barn due to rain, the Dist. Forum based on the report of the surveyor assessed the damage at Rs. 15,490/- giving out its own reasons and rejected the rest of claim. Admittedly the insurance company did not prefer any appeal against the order fixing the liability on the insurance company to pay compensation. We may state that the inundation which was caused due to rain and consequent collapse of the barn is covered. At any rate, since the very insurance company did not prefer any appeal, there is no reason to go into the said question. Even otherwise, as we have held that the complainant was entitled to the damage caused in this regard.
13) The complainant established that the damage to the barn would come to Rs. 96,700/- as opined by the very insurance surveyor, obviously in order to profit the insurance company he mentioned at Rs. 7,550/- for which there was no basis. He gave his own assessment without considering as to how a barn worth Rs. 7,550/- could be insured for Rs. 1 lakh, while agreeing that replacement would work out to Rs. 96,700/-. This is contradictory in terms. No doubt the complainants had claimed Rs. 1,30,000/- though the policy was taken for Rs. 1 lakh. They could not claim more than the amount for which property was insured. Therefore, we are of the opinion that the complainants are entitled to the value of the barn as the very insurance surveyor had mentioned that it was damaged beyond retrieval.
14) In the result the appeal is allowed modifying the order of the Dist. Forum, and consequently, R1 insurance company is directed to pay Rs. 96,700/- together with interest @ 9% p.a., from 25.1.2005 till the date of realization. Rest of the order of the Dist. Forum is confirmed. The complainants are also entitled to costs of Rs. 2,000/- in the appeal. Time for compliance four weeks.
1) _______________________________
PRESIDENT
2) ________________________________
MEMBER
Dt. 19. 05. 2010.
*pnr
