Chandigarh

StateCommission

A/149/2015

Ajit Karam Singh International Public School (AKSIPS) - Complainant(s)

Versus

M/s National Insurance Co. Ltd, - Opp.Party(s)

Anish Babbar

01 Jul 2015

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

                                                                 

First Appeal No.	:	149 of 2015
Date of Institution	:	26.06.2015
Date of Decision	:	01.07.2015

 

Ajit Karam Singh International Public School (AKSIPS), Sector 45/A, Chandigarh through its Executive Director Sh. Jasdeep Kalra.

……Appellant/Complainant.

Versus

M/s National Insurance Company Ltd., SCO 85-86, Sector 17-D, Chandigarh through its Authorised signatory.

....Respondent/Opposite Party.

 

Appeal under Section 15 of the Consumer Protection Act, 1986.

 

BEFORE:   JUSTICE SHAM SUNDER (RETD.), PRESIDENT.

                SH. DEV RAJ, MEMBER.

                SMT. PADMA PANDEY, MEMBER.

               

Argued by: Sh. Anish Babbar, Advocate for the appellant.

                  

PER DEV RAJ, MEMBER

            This appeal is directed against the order dated 25.05.2015 rendered by the District Consumer Disputes Redressal Forum-I, UT, Chandigarh (hereinafter to be called as the District Forum only) vide which, it dismissed the complaint filed by the complainant (now appellant), with liberty to agitate the issues in the Civil Court.

2.           The facts, in brief, are that in order to protect its  building  and  infrastructure, against  unforeseen risk, the complainant  got  the  insurance  cover  from  the Opposite Party under the Standard Fire & Special Perils  Policy  vide  Policy No.400101/11/12/3100000458 for  the  period 5.12.2012 to 4.12.2013  and  the same was got renewed against consideration price/premium.  It was stated that the sum assured was Rs.2,21,18,000/-, out of which, Rs.1,94,78,000/- was exclusively for covering the risk of building, as per the terms and conditions of the contract and the remaining amount was to cover the furniture, fixtures fittings etc. It was further stated that according to the complainant, on 16.7.2013, due to sudden rainfall/inundation, the boundary walls (two sides) of the school premises got badly affected and part of the boundary wall facing Burail village totally collapsed and the full boundary wall facing the Govt. School, Sector 45, Chandigarh tilted resulting into loss. It was further stated that the complainant intimated this fact to the Opposite Party and submitted the claim in the prescribed manner alongwith requisite documents. 

3.         It was further stated that the complainant initially submitted the claim for the complete wall construction, but since the liability of the Opposite Party was restricted to the brick construction of the collapsed and damaged portion only, as such, the revised claim was submitted for the actual loss of Rs.9.84 lacs.  It was further stated that in order to investigate the loss, the Opposite Party appointed M/s Protech Engineers & Loss Assessors, the Surveyor whereof visited the site of occurrence on the same day and agreed that the loss had occurred to the premises and same shall be indemnified. It was further stated that the Opposite Party vide letter dated 4.12.2013 (Annexure C-2) informed the complainant that the Surveyor had submitted his report and had settled the claim and assessed the loss at Rs.13,310/-.  It was further stated that the Opposite Party had not provided copy of the Surveyor report nor any details as to how the said calculation was arrived at, by the Surveyor, and just arbitrarily directed the complainant to submit the desired documents. It was further stated that after correspondence at length, a photocopy of the Surveyor report was provided to the complainant on 6.2.2014 by the Opposite Party. It was further stated that the Surveyor report appeared to be ironical and mockery on the genuine loss of the complainant where the claim of Rs.9.84 lacs approx. had been reduced to just Rs.13,310/-. It was further stated that the complainant with an intent to authenticate its actual claim, got the report of a Govt. approved valuer, M/s Continental Foundations, Chandigarh and submitted the detailed abstract (Annexure C-5) of expenditure required to be incurred for the reconstruction of the walls.  It was further stated that the actual expenditure for constructing a brick wall as existed earlier calculated by the approved valuer came to be Rs.9,84,202/- which itself proved beyond doubt that the observations of the Surveyor appointed by the Opposite Party were far from the actual loss. It was further stated that the complainant also got issued legal notice (Annexure   C-6) to the Opposite Party which was replied to by it vide Annexure C-7. It was further stated that the aforesaid acts of the Opposite Party amounted to deficiency, in rendering service and indulgence into unfair trade practice.

4.         When the grievance of the complainant was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, seeking directions to the Opposite Party, to quash the Surveyor report dated 01.10.2013; settle the claim in terms of the observations given by the Approved Govt. Valuer i.e. Rs.9,84,202/- alongwith interest @12% per annum from the date of actual loss till realization; pay Rs.5 Lacs as compensation for mental agony and physical harassment; Rs.20,000/- towards travelling and correspondence & Misc. expenses besides Rs.20,000/- as cost of litigation.  

5.           The Opposite Party, in its written version, took up certain preliminary objections, that the complainant was having no locus standi to file the complaint. It was admitted that the Opposite Party issued the Policy in question. It was stated that only portion of one wall was damaged and that too only a stretch of 92 feet. It was further stated that the Surveyor had physically inspected the boundary wall and had reported that “no damage to the plinth i.e. area of boundary wall below road level was observed”. It was further stated that loss to the plinth and foundations was not payable as the complainant had not opted for the same while obtaining the Policy.  It was further stated that the loss was to one wall only and only the portion of wall was affected and for that, Surveyor had assessed the loss for Rs.1,34,032.50.  It was further stated that the net loss was assessed as Rs.13,310/- after reducing the amount towards depreciation, salvage, under insurance and excess clause as per Policy.  It was admitted that the complainant had earlier submitted an estimate of Rs.33,36,581/- but it was later on changed to Rs.9,91,877/-.  It was also admitted that the settlement of claim for Rs.13,310/- was conveyed vide letter dated 4.12.2013. It was further stated that the building was insured for Rs.1,94,78,000/- but as per the information supplied by the insured, the Surveyor had worked out the value at risk as Rs.4,38,62,256.33 and, thus, there was under insurance of 55.58%. It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Party, nor it indulged into unfair trade practice. The remaining averments, were denied, being wrong.

6.         The complainant filed replication, wherein it reiterated all the averments, contained in the complaint, and repudiated the same, contained in the written version of the Opposite Party.

7.         The Parties led evidence, in support of their case.

8.         After hearing the Counsel for the parties and, on going through the evidence, and record of the case, the District Forum dismissed the complaint, as stated above, in the opening para of the instant order. 

9.         Feeling aggrieved, the instant appeal, has been filed by the appellant/complainant.

10.       We have heard the Counsel for the appellant/complainant, at the preliminary stage, and have gone through the evidence, and record of the case, carefully. 

11.       The Counsel for the appellant/complainant submitted that the findings of the District Forum were against the material facts and evidence on record and based on surmises and conjecturers, which had no substance. He further submitted that the District Forum did not appreciate the process of reconstruction or repair of the wall. He further stated that there was loss to the wall and the wall which tilted could not be made      intact by applying any stretch, support or pressure. He further submitted that the same required to be demolished and re-constructed from the foundation level. He further submitted that the claim was submitted for the actual loss and not beyond the plinth level. He further submitted that the Surveyor in its report, referred to only one wall and took contradictory stand in paras 7 & 10 of the reply. He further submitted that the complainant had placed, on record, detailed abstract made and approved by the Govt. approved valuer and assessor and, as such, the evidence could not be negated unless proved otherwise. He further submitted that the District Forum ignored the legal proposition and had gone more on the technical aspect vis-à-vis depreciation value, salvage etc. He further submitted that the depreciation value was to be settled on the actual claim, which was yet to be settled and was in dispute. He further submitted that no complicated and complex issues were involved requiring detailed examination and cross-examination of the witnesses and production of voluminous documentary evidence. He further submitted that the matter, in issue, could certainly be decided by the Fora below by resorting to the summary procedure. He further submitted that the District Forum was wrong in relegating the parties to the Civil Court for adjudication of the matter. He further submitted that the order passed by the District Forum, being illegal, be set aside.

12.       After giving our thoughtful consideration, to the contentions, raised by the Counsel for the appellant/complainant, and the evidence, on record, we are of the considered opinion, that the appeal is liable to be dismissed, at the preliminary stage, for the reasons to be recorded hereinafter.

13.       It is evident from record that the appellant/complainant, obtained Policy No.400101/11/ 12/3100000458 from the respondent/ Opposite Party valid for the period from 5.12.2012 to 4.12.2013 (Annexure C-I) for the total insured sum of Rs.2,21,18,000/-, out of which, the sum insured for school building was Rs.1,94,78,000/-; equipment used for school for Rs.18,46,486/- and furniture/fixture & fittings for Rs.7,93,514/-. The appellant/complainant paid premium of Rs.8,833/-. It has further come, on record, that during the subsistence of the Policy, due to sudden rainfall/inundation on 16.7.2013, boundary walls of the school premises got damaged/tilted and the appellant/complainant intimated the respondent/Opposite Party regarding loss to the boundary wall (Annexure C-2). It is also, on record, that the respondent/Opposite Party appointed Protech Engineers & Loss Assessors, to assess the loss, the Surveyor whereof submitted its report dated 01.10.2013 (Annexure C-3).

14.       The core question, that falls for consideration, is, as to whether, the controversy/dispute involved in the present complaint could be decided by the Consumer Fora in summary proceedings. The District Forum, in Para 8 of its order, after evaluating the evidence, and facts, on record, held that since the issues, involved in the complaint, were so complicated and complex, it was not possible to decide the same through summary adjudication. It (District Forum) after appraisal of the entire evidence, came to the conclusion that a number of complicated questions of fact and law were involved which required decision by the Civil Court. The District Forum discussed, in detail, in Para 7 of its order, as to how the complicated and complex questions were involved, the adjudication whereof was not possible by it in summary proceedings. Para 7 of the impugned order is extracted hereunder:-

“7.        Though the complainant has locus standi to file the present complaint, yet after appraising the entire evidence, we find that a number of complicated questions of facts and law are involved in the case which require detailed evidence, including cross-examination of the witnesses, therefore, the matter is beyond the summary jurisdiction of this Forum.  This would be clear from the discussion that follows:-

1. According to the allegations in para 2 of the complaint, due to sudden rainfall/inundation on 16.7.2013 the boundary walls (two sides) of the school premises got badly affected and part of the boundary wall facing Burail village totally collapsed and full boundary wall facing Govt. School, Sector 45, Chandigarh got tilted resulting in the loss.  Further, in accordance with para 10 of the complaint, the second wall which had although not fallen but had got tilted cannot be said to be intact and required the same process as required for the fallen portion. According to the complainant, as the wall was tilted dangerously, the entire wall had to be demolished and rebuilt. However, as per reply of the OP, only the portion of one wall was damaged and that too only a stretch of 92 feet.  Furthermore, as per reply of the OP, the loss was to one wall only because only the portion of one wall was affected.  According to the OP, its liability is restricted to only damaged portion of the wall but the complainant is insisting on paying for the entire wall which is not damaged even.  At the same time, as per para 10 of the written reply, the surveyor has not observed any tilting of another wall.  Having regard to all the circumstances, detailed evidence of the parties is necessary. 
2. Secondly, the surveyor has settled the claim and assessed the loss at Rs.13,310/- only while the complainant has got the loss calculated from the approved valuer which comes to Rs.9,84,202/-.  There is a vast difference between the loss assessed by the surveyor and calculated by the approved valuer of the complainant.  The complainant has tried to maximise its loss and the OP has tried to minimise the loss suffered by the complainant. Without calculating the expenses incurred on each material and consequential labour charges, it is not possible to calculate the actual loss suffered by the complainant.
3. Thirdly, according to the OP, the assessment of the loss is to be restricted to the extent of damaged portion of burnt brick construction, though the insured has reconstructed the entire wall in RCC.  Since the building was built in the year 2004, depreciation of 2% per year is also to be applied and the applicable deprecation on the date of loss was 18%.  This question can also not be decided without detailed evidence. 
4. Fourthly, according to the OPs, most of the bricks were usable after cleaning and 70% bricks were taken as usable and the salvage value of the bricks was taken as Rs.57,090.03, while according to the complainant, due to break up of wall, hardly any brick was usable. The bricks were lying broken in heaps all over the school ground and the salvage value at its end is nil.
5. Fifthly, according to the OP, the building was insured for Rs.1,94,78,000/- but, as per the information supplied by the insured, the surveyor has worked out value at risk as Rs.4,38,62,256.33 and thus, there was under insurance of 55.58%. 
6. Sixthly, the OP has drawn our attention to the copy of the proposal form Annexure R-2 in accordance with which, the complainant did not get its building insured for plinth and foundations. The OP has specifically contended that loss to the plinth and foundations is not payable as the complainant had not opted for the coverage for plinth and foundations while obtaining the policy.  However, the complainant has contended that it is required to firstly set the foundation and then any construction can be raised over and above the said base of the wall which will further strengthen the base of the constructed walls.”

15.       Perusal of the afore-extracted para clearly reveals that for just determination of the claim/dispute, it would definitely require examination and cross-examination of the witnesses and leading of voluminous documentary evidence. There being complex and complicated questions of law, and fact, involved in the case, the same could not be adjudicated upon by the Consumer Fora, in summary proceedings. The District Forum was, thus, right in directing the appellant/complainant to approach the Civil Court for adjudication of the matter.

16.       No other point, was urged, by the Counsel for the appellant/complainant.

17.       In view of the above discussion, it is held that the order passed by the District Forum, being based on the correct appreciation of evidence, and law, on the point, does not suffer from any illegality, warranting the interference of this Commission.

18.        For the reasons recorded above, the appeal, being devoid of merit, is dismissed, at the preliminary stage, with no order as to costs. The order of the District Forum is upheld.

19.       Certified copies of this order, be sent to the parties, free of charge.

20.       The file be consigned to Record Room, after completion.

Pronounced.

July 01, 2015.

Sd/-

[JUSTICE SHAM SUNDER (RETD.)]

PRESIDENT

 

 

Sd/-

 [DEV RAJ]

MEMBER

 

 

Sd/-

 [PADMA PANDEY]

 MEMBER

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