KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM. APPEAL No. 40/2008 JUDGMENT DATED: 09-12-2009 PRESENT: SHRI. M.V. VISWANATHAN : JUDICIAL MEMBER APPELLANT M/s New India Assurance Co. Ltd., Aristo Complex, Near Post office, Mahe-673 310, Rep. by its Manager V. Ramachandran. (Rep. by Adv. M/s Sheriff Associates) Vs RESPONDENTS N. Raju, S/o Kelu, Narikodan House, Poothakundu, P.O. Aralam, Kannur District. (Rep. by Adv. Sri. Rajesh Sukumaran . K) JUDGMENT SHRI. M.V. VISWANATHAN : JUDICIAL MEMBER The above appeal is preferred from the order dated 1st February, 2007 passed by the CDRF, Kannur in OP No. 198/02. The complaint in the aforesaid original petition was filed by the respondent herein as complainant against the appellant/opposite party claiming the insurance amount of Rs. 2,00,000/- for the damage caused to the insured building bearing Nos. AP-III/179 to 180. The complainant alleged deficiency in service on the part of the opposite party M/s New India Assurance Company Ltd. in repudiating the insurance claim. The opposite party entered appearance and filed written version denying the alleged deficiency in service on its part. The opposite party justified their action in repudiating the insurance claim. They contended that the complainant/insured intentionally caused damage to the insured building by deliberate arson. Thus, the opposite party insurance company justified their action in repudiating the insurance claim. 2. Before the Forum bellow, the complainant was examined as PW1 and a witness on his side was examined as PW2 who submitted A5 estimate for reconstruction of the building which was burnt in the fire accident on 22-10-2001. Exts. A1 to A5 documents were also marked on the side of the complainant. No oral evidence was adduced from the side of the opposite party. Exts. B1 to B9 documents were produced and marked on the side of the opposite party insurance company. On an appreciation of the evidence on record, the Forum below allowed the complaint and thereby directed the opposite party to pay the insurance amount of Rs. 2,00,000/- with compensation of Rs. 10,000/- and costs of Rs. 2,000/-. Aggrieved by the said order, the present appeal is filed by the opposite party insurance company. 3. The learned Counsel for the appellant/opposite party insurance company submitted his arguments based on the grounds urged in the memorandum of the present appeal. He much relied on B2 investigation report and B3 report submitted by the Electrical Inspector and argued for the position that the insured building was damaged as a result of the deliberate arson. So, the appellant/opposite party justified their action in repudiating the insurance claim. Thus, the appellant requested for setting aside the impugned order passed by the Forum below. On the other hand, the respondent/complainant supported the impugned order passed by the Forum below and prayed for dismissal of the appeal. 4. The points that arise for consideration are: 1. Whether there was any deficiency in service on the part of the appellant/opposite party insurance company in repudiating the insurance claim put forward by the respondent/complainant? 2. Whether the appellant/opposite party insurance company can be justified in repudiating the claim on the ground that the fire accident occurred due to the deliberate arson committed by the insured? 3. Whether the Forum below can be justified in awarding Rs. 2,00,000/- as the insurance amount for the damage sustained to the insured building bearing Door Nos. AP-111/179 and AP-III/180? 4. Is there any sustainable ground to interfere with the impugned order dated 01-02-2007 passed by CDRF, Kannur in OP 198/02? 5. Point Nos. 1 to 4: There is no dispute that the respondent/complainant insured the building bearing Door Nos. AP-III/1179 & AP-III/180 owned by him. The said building was insured under Standard Fire and Special Perils Policy for an amount of Rs. 2,00,000/-. Admittedly, during the existence of such a valid insurance policy, the insured building damaged in fire accident on the night of 22-10-2001. The complainant submitted the insurance claim for the damage sustained to the insured building. The appellant/opposite party M/s New India Assurance Company Ltd. repudiated the insurance claim on the ground that it was not a fire accident but it was a deliberate arson. There can be no dispute that the burden is upon the opposite party/insurance company to substantiate its contention regarding deliberate arson. The opposite party/insurance company relied on B2 investigation report dated 26-03-2002; but the person who conducted the investigation and submitted B2 investigation report has not been examined in this case. No evidence is forthcoming from the side of the opposite party/insurance company to prove B2 investigation report. It is to be noted that the so called investigation was conducted by a private investigator appointed by the opposite party/insurance company. No sanctity can be given for B2 investigation report submitted by a private investigator. There is nothing on record to show as to how the investigator came to the conclusion that the insured building was burnt as a result of deliberate arson. So, the Forum below has rightly discarded B2 investigation report. 6. Admittedly, the accident spot was inspected by Electrical Inspector who submitted B3 report. In B3 report, it is stated that there was no material to come to a conclusion that the fire occurred because of electrical short circuit. It is to be noted that the electrical inspector was not in a position to report or certify the cause of the fire accident. B3 report would not show that the building was burnt as a result of deliberate arson. The mere fact that there was nothing left in the accident spot indicative of electrical short circuit cannot be taken as a ground to hold that the fire accident occurred not due to electrical short circuit. So, B3 report submitted by the Electrical Inspector would not support the case of the opposite party insurance company that the fire occurred as a result of deliberate arson. 7. The approved surveyor was deputed at the instance of the opposite party/insurance company. The insurance surveyor and loss assessor (licensed surveyor) Mr. K.P. Raghavan submitted Ext.B4 survey report dated 26-01-2000. He inspected the accident spot on 23-10-2001. Thus, the surveyor had the opportunity to visit the accident spot on the very next day of the fire accident. In Ext.B4 survey report, the surveyor has reported the proximate cause of fire as electrical short circuit. It is also reported by the approved surveyor that his considered opinion about the cause of fire is that the fire caused due to electrical short circuit in the voltage stabilizer or the electrical power point connection to the stabilizer due to a sudden increase in the voltage. The licensed surveyor has also placed reliance on the fire station report submitted by Fire Officer. Thus, B4 survey report would show that the fire accident occurred due to electrical short circuit. There is no reason or ground to doubt the report submitted by the licensed surveyor. It is a well settled position that the report of an approved surveyor cannot be ignored or brushed aside without assigning any valid reason. It has been held by the Hon’ble Supreme Court [(2002) 10 SCC-19] that the approved surveyor’s report is an important document and its non-consideration would result in miscarriage of justice. 8. Ext.B6 is the fire report submitted by the Station Officer, Fire Station, Mattannoor. It is dated 22-10-2001. It is to be noted that the fire fighting force reached the accident spot immediately on getting the insured building set on fire. As per B6 report, the probable cause of the fire accident is reported as electrical short circuit. Thus, B4 survey report and B6 fire report would support the case of the complainant/insured that the fire accident occurred due to electrical short circuit. On the contrary, there is nothing available on record to support the case of the opposite party/insurance company that the insured building caught fire as a result of the deliberate arson. So, the appellant/opposite party insurance company cannot be justified in repudiating the insurance claim on mere presumption or assumption. There is no justification on the part of the opposite party insurance company in repudiating the insurance claim. So, the Forum below has rightly held that there was deficiency in service on the part of the opposite party insurance company in repudiating the insurance claim put forward by the complainant/insured. 9. Admittedly, the insured building was insured for a sum of Rs. 2,00,000/-. The complainant/insured submitted the claim for Rs. 2,00,000/- and the Forum below without considering the B4 survey report awarded the entire insurance claim of Rs. 2,00,000/-. No valid reason is stated for discarding or ignoring Ext.B4 survey report submitted by an approved surveyor. It is pertinent to note at this juncture that PW2 Sabu Abraham submitted A5 estimate. Even as per A5 estimate, the possible cost for reconstruction of the building has been estimated at Rs. 1,50,000/-. But the Forum below has awarded more than the estimate made by PW2. It is to be noted that PW2 submitted the A5 estimate without making any deduction towards depreciation. Admittedly, the insured building was an old building constructed in laterate stones. According to the approved surveyor, the building was aged 15 years. The complainant has not adduced any evidence to show the age of the insured building. So, there can be no doubt that some amount has to be deducted by way of depreciation. So, the A5 estimate made by PW2 cannot be accepted as such. Moreover, PW2 submitted A5 estimate for reconstruction of a new building. So, the evidence of PW2 that the insured building was worth Rs. 1,50,000/- cannot be believed or accepted. 10. The approved surveyor assessed value of the building at Rs. 1,38,609.30. He deducted 30% of the total loss by way of depreciation. Thus, a sum of Rs. 41,582.79 was deducted towards depreciation and a sum of Rs. 3,500/- towards salvage value. The net loss assessed would come to Rs. 93,526.51. As per B4 survey report, the approved and licensed surveyor has assessed the loss at Rs. 93,527/-. The B4 survey report is also accompanied by the photographs of the damaged building. He has also given the details of the loss assessed by him. This Commission is of the view that there is no ground to doubt the correctness of the loss assessed by the surveyor. The B4 survey report submitted by the surveyor can be accepted. The Forum below cannot be justified in discarding or ignoring P4 survey report. So, the Forum below cannot be justified in awarding Rs. 2,00,000/- representing the insurance amount due to the complainant insured. This Commission is of the view that the complainant insured is only entitled to get the net loss assessed by the surveyor. So, the insurance amount of Rs. 2,00,000/- awarded by the Forum below is reduced to Rs. 93,527/-. The appellant/opposite party insurance company is liable to pay the aforesaid amount of Rs. 93,527/- being the loss suffered by the complainant on account of the damage caused to the insured building in the fire accident which occurred on the night of 22-10-2001. 11. The Forum below has also awarded compensation of Rs. 10,000/-. It is to be noted that the opposite party repudiated the insurance claim on the strength of the investigation report submitted by the investigator. So, there was nothing wrong on the part of the officials of the insurance company in repudiating the insurance claim at the first instance and thereby compelled the complainant/insured to approach the Forum below. The Forum below directed the opposite party/insurance company to pay the insurance amount on account of the damage suffered by the complainant/insured. There is nothing on record to award a further compensation of Rs. 10,000/- over and above the actual loss suffered by the insured. So, this Commission is of the view that the complainant/insured is not entitled to further compensation over and above the actual loss suffered by the insured. Hence, the compensation of Rs. 10,000/- ordered by the Forum below is set aside. The cost of Rs. 2,000/- ordered by the Forum below can be treated as just and reasonable and the same is confirmed. The impugned order passed by the Forum below is modified to the extent as indicated above. The respondent/complainant insured is entitled to get interest on the aforesaid amount of Rs. 93,527/- from the date of the impugned order passed by the Forum below (01-02-2007) at the rate of 9% per annum till the date of realization. These points are answered accordingly. In the result, the appeal is allowed partly. The impugned order dated 01-02-2007 is modified and thereby the appellant/opposite party insurance company is directed to pay a sum of Rs. 93,527/- to the respondent/complainant (insured) as the insurance amount due on account of the damage sustained to the insured building in the fire accident which occurred on the night of 22-10-2001. The aforesaid insurance amount would carry interest at the rate of 9% per annum from the date of the impugned order passed by the Forum below in OP 198/02 (01-02-2007) till the date of realization. The opposite party/insurance company is also liable to pay the cost of Rs. 2,000/- awarded by the Forum below. As far as the present appeal is concerned, the parties are directed to suffer their respective costs. M.V. VISWANATHAN : JUDICIAL MEMBER Sr. |
