ORDER

(Per: Ms. Kumkum Rani, Judicial Member II):

This appeal under Section 15 of Consumer Protection Act, 1986 has been directed against the judgment and order dated 08.09.2016 passed by the learned District Consumer Disputes Redressal Forum, Dehradun (hereinafter to be referred as the District Commission) in consumer complaint No. 144 of 2012 styled as Sh. Attar Singh Chauhan vs. National Insurance Company Limited, wherein and whereby the complaint was allowed.

2.       The facts giving rise to the present appeal, in brief, are as such that the complainant – insured has installed a hydro power based Atta grinding mill in the rural and interior area of Garhwal; the site is located about 6 to 7 Km. off the main Chamba – Mussoriee Road and is about 20 Km. away from Chamba.  There was also a water tank at the site where the water from the stream is collected and stored.  This water is sent to the mill through penstock where it runs the water mill and power turbine.  It is alleged in the complaint that the alleged accident occurred on 16.08.2011 due to heavy rains in upper areas, there was sudden rise in the water level of the stream.  The water in stream overflowed and broke the side walls of the channel.  The water with force hit the walls of the water tank at northern side 20X2X6 = 160 cubic meter and caused damages to the tank. In this incident, the insured reported to the insurer that the damages were in the main storage tank installed at the site;  the police report was also lodged. The insured has also given the information to the insurance company immediately. In the said incident, the insured has suffered a loss to the tune of Rs. 7,03,500/-.  The opposite party – insurance company has neither indemnified the loss, nor settled the claim of the complainant – insured.  The insured is covered under the Consumer Protection Act, 1986.  By not settling the claim of the complainant, the insurance company has committed deficiency in service on its part, hence, the complaint was  brought by the complainant. 

3.       In the written statement, the insurance company has averred that it is denied that any flood was caused by the alleged river on the alleged date or as a result therefrom any such damages were sustained to the alleged storage tank / hauz security wall and that towards repair of the same the alleged amount would be incurred.  It is also denied that the opposite party is liable to offset the losses as alleged on the basis of the alleged insurance cover.  There was no deficiency in service on the part of the answering opposite party, hence, the claimant is not entitled to get any claim from the answering opposite party. It is also averred in the written statement that the proceedings before the Consumer Forums are summary in nature. It is also incumbent for the parties to come with clean hands, but the claimant has not come with clean hand, hence, the complaint is liable to be dismissed on this ground alone.  It is further averred that the complainant does not maintain any record of machine operations and its maintenance.  No repair bills have been given to reflect that the alleged gharat was properly maintained and was in effective operation when the alleged losses were sustained.  No construction bills or drawings of storage tanks were supplied nor were bills and costs of repairs to gharat in the year 2009 supplied; final bills were sought towards repairs undertaken and to arrange a meeting with the contractor who allegedly repair was repeatedly sought but no such final repair bills / meeting was arranged, so that the estimate for final repair could be discussed.  The complainant only provided part payment receipts which indicate payment, if any, of Rs. 3,20,000/-.  The tank is alleged to have had dimensions of 60ft. long, 30ft. wide and 9ft. deep. Thus, on these dimensions, the storage capacity comes to 16,200 cubic feet or 4,53,600 litres and on this basis the complainant stated that the tank was having 4 lacs litres holding capacity and not 15 lacs litres holding capacity.  Pertinently, the alleged tank was built 4 years back and considering the useful life to be 16 years depreciation @ 25% is applicable.  There exists no consumer dispute for the complainant to file the present complaint, hence, the complaint lacks any cause of action for him to file the present complaint; the present complaint is liable to be dismissed.

4.       After hearing both the parties and after perusing the record, the learned District Commission passed the impugned judgment on 08.09.2016 wherein it is held as under:-

“उपरोक्तानुसार, परिवादी द्वारा योजित यह परिवाद विपक्षी के विरूद्ध स्वीकार किया जाता है। विपक्षी को आदेशित किया जाता है कि वह परिवादी को क्लेम धन अंकन एक लाख छब्बीस हजार रूपये, क्षतिपूर्ति पन्द्रह हजार रूपये व वाद व्यय स्वरूप अंकन नौ हजार रूपये को भुगतान करे। धनराशि की अदायगी 30 दिन के अन्दर सुनिश्चित की जाय।
यदि निर्दिष्ट अवधि में भुगतान नहीं किया जाता है तो परिवादी उपरोक्त धनराशि पर निर्णय तिथि से वसूली तक 8% वार्षिक ब्याज भी पाने का पात्र होगा।”

5.       On having been aggrieved by the aforesaid judgment and order of the District Commission, the appellant – complainant has preferred the present appeal for enhancement of the awarded amount alleging that the District Commission has failed to take into consideration that due to the heavy rain, the north-eastern wall of the storage tank / hauz was badly damaged.  It is further averred that the District Commission has erred while not perusing the documents such as certificate issued by the Pradhan, photographs of the site, estimate and part payment receipts and other documents filed for showing the loss actually occurred to the Hauz / Gharat, thereby the District Commission has passed the impugned judgment without perusing and appreciating the evidence available on record. It is further averred that the learned District Commission has relied only on the surveyor report and has avoid the measurement shown in the documents filed by the claimant. Therefore, the impugned judgment is based on surmises and conjectures and the Commission below has exercised the jurisdiction not vested in it.  It is further alleged that the Commission below has committed material irregularity and illegality while passing the impugned judgment, hence, the Commission be pleased to allow the appeal and the impugned judgment is liable to be modified and the amount mentioned in the complaint be awarded in favour of the insured – appellant. 

6.       We have heard both the sides and perused the record.

7.       We have perused the impugned judgment wherein in page No. 3 of the impugned judgment, the District Commission has held as under:-

“हमने पक्षगण द्वारा प्रस्तुत की गई समस्त साक्ष्य का परिशीलन किया। परिवादी पक्ष धनराशि अंकन 7,03,500.00 रू का एस्टीमेट प्रस्तुत कर रहा है - सम्बन्धित प्रपत्र में विस्तृत विवरण का अभाव है। परिवादी ने 3,20,000/-रू की जो प्राप्ति रसीद दाखिल की है, पर प्राप्तकर्ता का कोई पता, दूरभाष नम्बर व अन्य विवरण अंकित नहीं है - कथित रसीद पर कोई रसीदी-टिकट भी नहीं लगा है और न ही प्राप्तकर्ता का कोई शपथपत्र दाखिल कराया गया है। ऐसी दशा में परिवादी, व्यय का कोई ठोस विवरण प्रस्तुत नहीं कर पाया है। इस तरह खर्चे का कोई प्रूफ सप्लाई नहीं किया गया। हाँ इतना अवश्य है कि पत्रावली पर जो फोटोग्राफ विद्यमान हैं, के परिशीलन से सुस्पष्ट है कि घराट क्षतिग्रस्त अवश्य हुआ। विपक्षी के सर्वेयर ने अपनी रिपोर्ट व क्षति का आंकलन, रिकार्ड पर प्रस्तुत किया है जिसमें Gross Assessment अंकन 1,40,000/-रू0 प्रदर्शित है जिसमें डेप्रिशेसन काटकर शुद्ध दायित्व सर्वेयर ने अंकन 95,000/-रू0 निर्धारित किया है। डेप्रिशेसन 25प्रतिशत के रूप में काट लिया गया।
उपरोक्त विधि-सिद्धान्त के सुप्रकाश में सर्वेयर की रिपोर्ट एक महत्वपूर्ण साक्ष्य है परन्तु डेप्रिशेसन की दर अधिक काटी गई है - मंच की राय में मात्र 10प्रतिशत डेप्रिशेसन काटकर अंकन 1,40,000 - 14,000 बराबर 1,26,000/-रू0 परिवादी को विपक्षी से दिलाया जाना न्यायोचित पाया जाता है। मामला सेटिल न हो सकने की स्थिति में परिवादी को मानसिक संताप होना भी एक स्वाभावित स्थिति है। ऐसी दशा में तत्विषयक क्षतिपूर्ति हेतु 15,000/-रू0 तथा वाद व्यय की मद में 9,000/-रू0 परिवादी को दिलाना न्यायसंगत है। वाद तदनुसार निस्तारित।”

8.       The above observation of the District Commission has clearly mentioned that the relevant / required documents such as construction bills or drawings, rate of construction as provided by the Government agency were not submitted by the complainant in support of his estimate worth      Rs. 7,03,500/-. 

9.       Here it is to add that in the estimate of construction is not the conclusive proof of the expenses actually in the construction work of the Gharat. 

10.     We have also perused the District Commission’s record, wherein the claimant has submitted some papers vide list paper No. 4Kha/1.  First Paper (No. 4Kha/2 to 4Kha/5) the copy of notice to the insurance company alongwith receipt. Paper No. 4Kha/6 is the request letter sent by the complainant to the insurance company to settle his claim, Paper No. 4Kha/7 is the repair estimate having excessive amount under the total heading, but with this estimate, there is no bill of construction, which was actually incurred by the complainant. Paper No. 4Kha/9 is a letter of the insurance company sent to the complainant alleging that the insurance company has received a letter of the complainant for settling his claim.  Paper No. 4Kha/10 & 4Kha/11 is the insurance policy cover note, wherein it is specifically mentioned that the building, water tank 4 lac ltr., plant / machinery and accessories was shown to have covered under the insurance coverage for sum insured Rs. 12,68,300/- under Standard Fire and Special Perils Policy for the above Gharat.  Paper No. 4Kha/13 to 17 are the photographs of the Gharat mill, which was totally damaged in heavy rain, but neither the negative, nor the affidavit of the photographer (who has taken the such photographs) were filed on behalf of the complainant to prove the version of the complaint before the District Commission. No other document has been submitted in the lower Commission by the complainant.  These records are not sufficient to assume the estimate of repair and construction worth Rs. 7,03,500/- as appropriate.

11.     Whereas the rival evidence is the surveyor report, which is available on record of the District Commission vide paper Nos. 13Kha/13 to 13Kha/18, in support of which an affidavit of the surveyor vide Paper No. 13Kha/1 to 13Kha/2 was also submitted before the District Commission by the appellant.   

12.     In the surveyor report, it is specifically mentioned that the insured provided repair estimate of Rs. 7,03,500/- as per following detailed breakup-

13.     The surveyor has further observed that the insured was not able to provide initial construction bills or drawings of the above tank.  During inquiry, the insured confirmed to us that the subject tank was damaged in 2009 also. But, he could not provide bills of repair and reconstruction of damages as occurred in 2009.  The surveyor has further observed that during our enquiry the insured elaborated that due to excessive flow of water, the water in the tank overflowed and weakened the walls of the tank.  The water contained in the tank caused the tank wall to burst and thus, damaged it.  He also confirmed to us that he had already got the damages repaired and the tank was now fully functional. We asked the insured to provide final bill of repair and to arrange meeting with the contractor to discuss the rates and the quantities claimed but the insured did not arrange any meeting and insisted that the contractor could be contacted at the address mentioned in the estimate for required details directly.  There was no contact cell phone number on the estimate of repair.  The final repair bill was also not provided.  The insured however, provided photos of the repaired tank, as enclosed with the report.  The insured provided part payment receipt issued by the contractor M/s S.S. Construction, as enclosed.  During the site visit, the insured told us in writing that the tank was of 15 lacs litres capacity. As we pointed out to the insured that reported damages were in tank of 15 lacs litres capacity, but the insured tank was of 4 lacs litres capacity, the insured retorted that the figures of 15 lacs litres was artificially invented by us.  The insured’s insinuation in this regard was not correct. The insured further stated that the tank was 60’ long, 30’ wide and 9’ deep.  This way, the total holding volume of the tank was 16,200 cubic feet, i.e. 4,53,600 litres.  On this basis, the insured stated that the tank was of 4 lacs litres holding capacity and not of 15 lacs litres holding capacity.  The surveyor has further assessed the loss alleging that during survey, we verified that there were damages in the wall of the water tank wall, measuring 30’ long, 15’ high and 4.5’ thick. The wall was plastered from inside.  The external side was without plaster.  The wall was built of RR stone masonry.  The tank was about 4 years old.  Considering useful life of 16 years for the tank, we applied 25% depreciation for four years of use.  In our opinion, the applied depreciation is reasonable. There would not be any salvage value for the damaged material.  Based on the above, the assessed loss is worked out as under:-

14.     Surveyor has assessed the total loss occurred to the Gharat of the complainant was to the tune of Rs. 95,000.00.

15.     Learned counsel for the respondent has contended that the surveyor report is an important piece of document and it cannot be brushed aside, unless there is some cogent and reliable evidence against it.  The learned District Commission has legally passed the impugned judgment in correct way, hence it deserves to be affirmed.

16.     We have also perused the cited case laws.

17.     In the case of Sikka Papers Limited vs. National Insurance Company Limited and Others, (2009) 7 Supreme Court Cases 777, the Hon’ble Supreme Court has held that it is true that the surveyor report is not the last word, but there must be legitimate reason for departing from such report.  If the complainant has failed to show any reason to justify the rejection of the surveyor report; no infirmity is found in the order.

18.     In the case of National Insurance Co. Ltd. vs. Noli Ram and Sons, 2017 (4) CPR 388 (NC), the Hon’ble National Commission has held that surveyor report cannot be disbelieved and cannot be rejected without any forceful evidence on the part of the complainant.

19.     In the case of Ashish Kumar Jaiswal vs. ICICI Lombard General Insurance Company Ltd. and Ors., 2017 (3) CPR 71 (NC), the Hon’ble National Commission has held that the surveyor’s report is only reliable document which is to be considered for settling the insurance claim, the petitioner has failed to put forward any cogent reasons to dispute surveyor’s report and there is no reason to reject it.

20.     In the case of Sri Venkateswara Syndicate vs. Oriental Insurance Company Limited and Another, (2009) 8 Supreme Court Cases 507, the Hon’ble Supreme Court has held that option to accept or not accept report of surveyor lies with the insurer, however, if report is prepared in good faith, with due application of mind and in the absence of any error or ill motive, insurance company cannot reject report of surveyors; Courts or other forums can intervene only if rejection is arbitrary and based on no acceptable reasons. 

21.     In the case of Pradeep Sharma vs. Bajaj Allianz General Insurance Co. and Anr., 2017 (1) CPR 259 (NC), the Hon’ble National Commission has held that the assessment made by surveyor must be given due weightage. The complainant failed to provide stock of medicines which did not expire at the time of fire in shop and in such circumstances, surveyor rightly assessed loss and State Commission has enhanced loss to Rs. 20,000/-; petitioner could not place any document on record to substantiate that complainant suffered loss more than Rs. 20,000/- pertaining to medicines having validity period, there is no illegality, irregularity or jurisdictional error in impugned order. 

22.     In the case of Devender Malhotra vs. United India Insurance Co. Ltd. & Anr., 2016 (3) CPR 461 (NC), the Hon’ble National Commission has held that the report made by the surveyor cannot be disbelieved unless there are cogent and convincing reasons to do so; report of the surveyor has to be given effect to unless there are contrary reasons to disregard the same.  The appellant has not advanced any cogent and convincing reasons to disbelieve report of surveyor and assessment of loss made by surveyor is based on a correct appreciation of material made available to him. 

23.     In the case of National Insurance Company Ltd. vs. Manjit Singh and Ors., 2017 (4) CPR 384 (NC), the Hon’ble National Commission has held that the impugned order passed by the District Forum reflects a correct appreciation of issues involved in case and they rightly concluded that insurance company should make payment as per report given by surveyor.

24.     In the case of Rohtas and Anr. vs. United India Insurance Co. Ltd. and Ors., 2017 (4) CPR 502 (NC), the Hon’ble National Commission has held that insurance policy was taken for general merchandise stocks at business premises and the loss caused due to fire, report made by surveyor in discharge of his professional duty should be accepted unless some serious discrepancies / short comings are pointed out in same.

25.     The principles laid down in the above cited case laws are fully applicable to the case in hand. 

26.     We are of the definite opinion that the report of the surveyor is an important piece of document and it cannot be disbelieved unless there is any cogent and convincing reason to do so and the assessment made by the surveyor should be given proper weightage unless and until there are contrary reasons to disregard the same. We also find that the impugned judgment of the learned District Commission is perfect and needs no interference.

27.     We hold that the appeal is liable to be dismissed and the impugned judgment deserves to be confirmed.

28.     Appeal is dismissed.  Impugned judgment and order dated 08.09.2016 is hereby confirmed. No order as to costs.

29.     A copy of this Order be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986 /2019.  The Order be uploaded forthwith on the website of the Commission for the perusal of the parties. The record of the District Commission be returned to the concerned District Commission alongwith copy of this judgment for record and necessary information.

30.     File be consigned to record room along with a copy of this Order.