BEFORE THE DISTRICT FORUM: KURNOOL

Present: Sri. T.Sundara Ramaiah , B.Com B.L., President

And

Sri. M.Krishna  Reddy , M.Sc., M.Phil., Male Member

Tuesday the 15^th day of February , 2011

C.C.No 98/10

Between:

1. S.MD. Hussain, S/o S.MD. Gouse,

H.No.34/95, Chatribagh, Old Town, Kurnool District - 518 001.      

1. S.MD. Ismail, S/o S.MD. Gouse,

H.No.34/95, Chatribagh, Old Town, Kurnool District - 518 001.                       

…Complainants

                                  -Vs-

    1. National Insurance Co. Limited.,    Represented by its Branch Manager,

First floor, D.No.40-343/A, Tula Complex, Gandhi Nagar, Kurnool - 518 001.     

1. State Bank of India,Represented by its Branch Manager,

Old Town Branch, Kurnool - 518 001.    

   …Opposite Parties

        This complaint is coming on this day for orders in the presence of Sri M. Azmathulla, Advocate, for complainants, and Sri D. A. Anees Ahamed, Advocate, for opposite party No.1 and Sri V.V. Krishnamaraju, Advocate for opposite party No.2 upon perusing the material papers on record, the Forum made the following.

ORDER

(As per Sri. T.Sundara Ramaiah, President)

   C.C. No. 98/10

1.     This complaint is filed under section 12 of C. P. Act, 1986 praying to direct the Opposite parties:-

(a)    To pay Rs. 3,58,000/- to  the complainants towards the loss estimated by the S. Venkateswara Rao of Aiswarya Associates Kurnool.

1. To award RS.50,000/- towards compensation for causing mental agony  and for hardship to the complainants.

1. To award interest at the rate of 36% p.a. from the date of the accident.

1. To award cost of the complainant.

And

(e)    To pass such other relief or reliefs as the honorable Forum may deem fit and proper in the circumstances of the case.

2.     The case of the complainants in brief is as under:- The complainants are owner of Flats No.1,2,3,4,5 and 6 old town, Kurnool.  The complainants availed loan from opposite party No.2 bank by mortgaging in the Flats.  Opposite party No.2 paid premium to the opposite party No.1 on behalf of the complainants.  The opposite party No.1 issued the policy No. 551001/11/09/3100000196 covering the risk of Flats to the limit of Rs.20,00,000/-.  The said policy is in force from 10-08-2009 to 09-08-2024.  Due to the recent floods on                         02-10-2009 the insured Flats were badly damaged.  The same was informed to the opposite parties.   Opposite party No.1 appointed a surveyor by name B.P.K.Reddy who is not the civil engineer.  Opposite party No.2 got the estimated the loss caused to the property by registered valuer by name S.Venkataswara Rao of Aishwarya Associates, Kurnool.  He estimated the loss at Rs.3,58,000/- and submitted his report.  The opposite party No.1 did not settle the claim of the complainants in spite of several request.  The complainants also got issued legal notice to the opposite party No.1 requesting to settle the claim.  Opposite party No.1 issued reply notice with false allegations. Hence the complaint.

3.     Opposite Party No. 1 and 2 filed written versions separately.  It is stated by the opposite party No.1 that the complaint is not maintainable.  The complainants obtained loan from opposite party No.2 by mortigaging the Flats 1,2,3,4 and 5.  The policy does not cover the risk of furniture, fixtures and fittings.  On receipt of the claim intimation the opposite party No.1 appointed B.P.K.Reddy a licensed surveyor.  He estimated the loss and filed his report.  S.Venkataswara Rao was appointed by opposite party No.2 with out the consent of opposite party No.1.  He is not duly approved by regulatory and development authority as per insurance Act.  The loss assessed by him is not binding on opposite party No.1.  There is no deficiency of service on the part of the opposite party No.1.  The complainant is liable to be dismissed.

        Opposite party No.2 in its written version has stated that opposite party No.1 issued policy covering the residential building for the period from 10-08-2009 to 09-08-2024.  It is not true that opposite party No.2 got estimated the loss caused to the building by registered valuer by name S.Venkataswara Rao.  Opposite party No.2 has no role in settlement of the insurance amount.  The complainant against opposite party No.2 is not maintainable.  The complainant is liable to be dismissed.

4.     On behalf of the complainant, Ex.A1 to A5 are marked and sworn affidavit of the complainants and Sri S.Venkataswara Rao are filed.  On behalf of the opposite parties, Ex. B1 to B4 are marked and sworn affidavits of opposite party No. 1 and 2 and Sri B.P.K.Reddy are filed.

5.     Both sides filed written arguments.

6.     The points that arise for consideration are:-

1. Whether there is deficiency of service on the part of the Opposite Party No.1?

1. Whether the complainants are entitled to reliefs as prayed for?

1. To what relief?

7. POINT No.1 & 2 :-   Admittedly the complainants obtained loan from opposite party No.2 and got the Flats insured by paying premium Ex.B1 is the copy of the policy.  The said policy was in force from 10-08-2009 to 09-08-2024.  It is the case of the complainants that their Flats were damaged due to floods that took place on 02-10-2009.   The fact that there was damage to the Flats of complainant is not under dispute.  Admittedly after intimation of the damage to the Flats the opposite party No.1 appointed Sri B.P.K.Reddy as surveyor.  He visits the Flats and filed his report Ex.B2.

8.     It is the case of the complainants that as Sri B.P.K.Reddy was not a civil engineer the opposite party No.2 got estimated the loss through a registered valuer by name S.Venkataswara Rao.  Ex.A3 is the copy of the report of Sri S.Venkataswara Rao.   It is the contention of opposite party No.1 that Sri S.Venkataswara Rao was appointed as surveyor without it is consent and that his report Ex.A3 is not binding on it.  The opposite party No.2 also in its written version has stated that it is not aware about the appointment of S.Venkataswara Rao as surveyor. The complainants filed sworn affidavit of S.Venkataswara Rao.  In Ex.A3 report it is not stated at whose instance he inspected the building of the complainants.  Had opposite party No.2 appointed him to estimate the damage, he would stated so in his report.  As opposite party No.1has not given its consent, A3 report cannot be given any wait.  Further Sri S.Venkataswara Rao is not duly approved by IRDA as per the insurance Act.

9.     Admittedly Sri B.P.K.Reddy was appointed as a surveyor by opposite party No.1 he filed his report Ex.B3.  Sri B.P.K.Reddy in his affidavit evidence has clearly stated that the net loss was assessed at Rs.35,875/-.  In Ex.B3 report also it is clearly stated that the net loss assessed by him is Rs.35,875/- only.  He took in to consideration the amount required for painting, cleaning etc.  There is no mention in Ex.B1 policy that it covers furniture and fittings in the Flats.  In Ex.A3 report it is mentioned that damage was caused to motors, tiles etc.   As already stated the policy does not cover the risk regarding furniture and fittings.  Sri B.P.K.Reddy surveyor rightly assessed the damage caused to the Flats of the complainants.  The report of the approved surveyor must be given due weight.  Even after the legal notice got issued by the complainants, opposite party No.1 did not send the amount of Rs.35,875/- as assessed by the surveyor.  There is deficiency of service on the part of the opposite party No.1. The complainants are entitled to Rs.35,875/-.

11.    In the result the complainant is partly allowed directing opposite party No.1 to pay damages of RS. 35,875/- to the complainants with interest at 9% from the date of complainant i.e., 04-05-2010 till the date of payment along with cost of RS.500/-.  The complainant against opposite party No.2 is dismissed.

 Dictated to the stenographer, transcribed by her, corrected and pronounced by us in the open bench on this the 15^th day of February, 2011.

            Sd/-                                                                       Sd/-

    MALE MEMBER                                                       PRESIDENT

      APPENDIX OF EVIDENCE

Witnesses Examined

For the complainants: Nil            For the opposite parties : Nill

List of exhibits marked for the complainants:-

Ex.A1                Policy NO.551001/11/09/3100000196 issued by OP1.

Ex.A2         Photo copy of letter dt.31-12-2009.

Ex.A3         Photo copy of Estimated copy of the

S.Venkateswara Rao, of Aiswarya Associates, Kurnool.

Ex.A4        Legal notice dt.03-04-2010 along with postal receipt

        to the OP1.

Ex.A5        Reply of OP1 dt.08-04-2010.

List of exhibits marked for the opposite parties:

Ex.B1                Photo copy of Policy NO.551001/11/09/3100000196.

Ex.B2.       Photo copy of Flood Report dt.18-03-2010.

Ex.B3                Photo copy of Reply of OP1 dt.8-04-2010.

Ex.B4                Photo copy of License of the Surveyor Mr. B.P.K.Reddy.

            Sd/-                                                                   Sd/-

    MALE MEMBER                                                   PRESIDENT

// Certified free copy communicated under Rule 4 (10) of the

A.P.S.C.D.R.C. Rules, 1987//

Copy to:-

Complainant and Opposite parties

Copy was made ready on :

Copy was dispatched on   :