Haryana

StateCommission

CC/44/2013

Samarjit Singh - Complainant(s)

Versus

New India Insurance Company Limited - Opp.Party(s)

21 Dec 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

                                                 

Complaint No     :      44 of 2013

Date of Institution:    12.06.2013

Date of Decision :     21.12.2016

 

Samarjit Singh s/o Sh. Chander Bhan Singh, Resident of House No.1260, Urban Estate, Jind, Prop M/s Bidhan Feed & Farms, Village Pegan, Kaithal Road, Jind.

                                      Complainant

Versus

 

New India Insurance Company Limited through its General Manager, Jind.

                                      Opposite Party

 

CORAM:             Hon’ble Mr. Justice Nawab Singh, President.

                             Mr. B.M. Bedi, Judicial Member.

                                                                                                         

Argued by:          Shri Sansar Kundu, Advocate for complainant.

                             Shri R.S. Sharma, Advocate for opposite party.

 

                                                   O R D E R

 

B.M. BEDI, JUDICIAL MEMBER

 

          Samarjit Singh – Complainant has filed the present complaint under Section 17 of the Consumer Protection Act, 1986 (for short ‘the Act, 1986’), averring as under:-

2.                The complainant is the proprietor of M/s Bidhan Feed & Farms, Village Pegan, Kaithal Road, Jind. He obtained loan from State Bank of India, Jind. At the time of disbursing loan firm had been insured with The New India Assurance Company Limited (for short ‘the Insurance Company’)-Opposite Party vide cover note Exhibit C-1 for the period January 27^th, 2011 to January 26^th, 2012 for Rs.3,21,00,000/-.

3.                In the month of May, 2011 a strong wind storm occurred in Village Thua in which the entire building of the feed farm alongwith poultry farm shed measuring 48000 square feet and godown measuring 7200 square feet was damaged. According to the complainant, he suffered loss to the extent of Rs.25.26 lacs as per the report of Shri R.K. Gupta, the registered valuer HFC Chandigarh. The complainant approached the Insurance Company-Opposite Party to compensate for the loss suffered by him but it did not pay any heed. Legal Notice (Exhibit C-2) was served upon the opposite party. The Insurance Company repudiated complainant’s claim vide letter dated 23^rd July, 2013 (Exhibit R-4) stating as under:-

“1.     That Shri I.B. Mehta, Government approved Surveyor & Loss Assessor submitted survey and assessment report bearing Memo No.IBM/Fire/12-13/3082 dated 15.06.2012 in respect of loss due to fire at the insured premises at VPO Pegan, District Jind and in respect of loss due to the fire at village Thua in the company. the insured firm did not intimate regarding the premises at village Thua and did not endorse the premises at village Thua in the policy cover and the loss occurred at village Thua does not fall within the insured premises. the  loss assessed by Shri I.B. Mehta, Government approved Surveyor & Loss assessor in his survey report at village Pegan is as under:-

          Assessment of Building at village Pegan:-

18 GI Sheets of Size 9*3 were damaged in Godowns of Feed Store: Total 486 Sqft @ 40/-	19,440/-
Less Dep.@ 5%	972/-
Depreciated value	18,468/-
Amount assessed after applying Average clause 18468*5	9,234/-
Less Excess clause	10,000/-

2.      That from the perusal of report of Shri I.B. Mehta, Government Approved Surveyor and Loss Assessor, it is evident that the loss occurred in the insured premises at village Pegan comes under excess clause and as such, is not payable as per terms and conditions, exclusion clauses of policy cover. the insured did not intimated regarding the premises at village Thua and did not endorse the premises at village Thua in the policy cover and the loss occurred at village Thua does not fall within the insured premises.

3.      The insurance policy between the insurer and the insured represents a contract between the parties. Since the insurer undertakes to compensate the loss suffered by the insured on account of risk covered by the insurance policy, the terms of the agreement have to be strictly constructed to determine the extent of the liability of the insurer. The insured cannot claim anything more than what is covered by the insurance policy.

          From the above, it is clearly established that the company is well within their right to close your Fire claim file as ‘NO CLAIM’ and your claim is repudiated/declined in view of afore said reasoning and this letter of repudiation is issued without any prejudice.”

4.                Aggrieved by the repudiation of his claim, the complainant has filed the instant complaint.

5.                Opposite Party-Insurance Company contested complaint by filing reply raising plea that the complainant is running a business for commercial purpose and therefore he does not fall within the definition of “consumer”. Denying the averments of the complaint, it was prayed that the complaint be dismissed.

6.                In evidence complainant has appeared as CW-1 and also examined Shri R.K. Gupta-CW-2 and Mithun Singh CW-3.

7.                Opposite Party-the Insurance Company examined Trilok Chand Pruthi- Development Officer (Admn) as OPW1.

8.                Counsel for the parties have been heard at length. File perused.

9.                Learned counsel for the complainant has argued that the as per the report of Shri R.K. Gupta, Valuer the complainant suffered loss of Rs.25,50,000/- which the Insurance Company is liable to pay.

10.              On the other hand learned counsel for the opposite party has argued that as per report (Exhibit R-4) of Shri I.B. Mehta, Surveyor & Loss Assessor, after applying average clause, the the loss occurred in the insured premises comes under excess clause and as such is not payable as per the terms and conditions of the policy.        In support, reference was made to surveyor’s report (Exhibit R-4) and the Standard Fire and Special Perils Policy (Exhibit R-6).

11.              Indisputably, the complainant had obtained Standard Fire and Special Perils Policy (Exhibit R-6) from the opposite party. It is also not disputed that on 27^th May, 2011 because of storm fire took place in the insured premises due to which about 7000 parent birds were burnt in the fire and the shed fell down. The only dispute is with respect to the quantum of damage and the loss suffered by the complainant.

12.              The question for consideration before this Commission is as to whether the claim of the complainant falls under excess clause or not?

13.              To decide the issue involved, evidence led by the parties has to be considered minutely. The complainant has placed on the file photographs (Exhibits C-9 to C-16) of damaged building of poultry farm which is the clinching evidence. From the photographs placed on the file the loss is clearly visible. Besides, the complainant himself has appeared as CW-1 and also examined Shri R.K. Gupta, Sub Divisional Engineer, P.W.D. B&R (Retd.) CW-2, who in his statement stated as under:-

“I retired as Sub Divisional Engineer, PWD ( B & R), Haryana. On 27.06.2011 I inspected the poultry farm in the name and style M/s Bidhan Feed and Farm, situated at Village Pegan, Tehsil and District Jind owned by Samarjit Singh. The poultry farm shed, godown etc were totally damaged due to the storm and fire, which took place on 12.05.2011.  The area of the poultry farm shed was 48000 square feet. Godown area was 7200 square feet.  I estimated the loss.  It was about Rs.25,56,000/- which I rounded off at Rs.25,50,000/-.  My report is Exhibit C-5.  I had also given the certificate in this respect which is Exhibit C-6.  The site plan (Exhibit C-7) was also prepared by me.  The estimate was prepared by me, taking into consideration the price of the ACC sheets i.e. Rs.30/- per square feet and Rs.15/- per square feet was estimated as cost of the labour. The sheets used by the owner were ACC, which were totally broken and were not in a position to be used.”

14.              The opposite parties do not dispute the photographs of the damaged building of poultry farm situated at Pegan and not of Thua.  

15.              From the evidence available on the record, it is established that the complainant has been able to prove that the report of surveyor appointed by the Insurance Company-opposite party was not as per factual situation. At the same time, it is settled principle of law that although assessment of loss by the approved surveyor is a pre-requisite for payment or settlement of claim but surveyor’s report is not the last and final word. It is not that sacrosanct that it cannot be departed from; it is not conclusive. The approved surveyor’s report may be basis or foundation for settlement of a claim by the insurer in respect of the loss suffered by the insured but surely such report is neither binding upon the insurer nor insured. Support to this view can be had from the judgment rendered by Hon’ble Supreme Court in Civil Appeal No.3253 of 202, New India Assurance Company Limited versus Pradeep Kumar, decided on 9^th April, 2009. 

16.              In view of the evidence produced by the parties and the legal position enunciated above, the complaint is allowed. In the considered view of this Commission after considering photographs of damaged sheds the ends of justice would be met suitably if the complainant is awarded lump sum compensation of Rs.5.00 lacs alongwith interest @ 9% per annum from the date of filing complaint till its realisation; Rs.10,000/- for harassment mental agony and harassment and Rs.10,000/- litigation expenses. It is ordered accordingly. The Insurance Company-opposite party shall pay the awarded amount to the complainant within 45 days from the date of receipt of copy of the order.

 

Announced: 21.12.2016

(B.M. Bedi) Judicial Member

(Nawab Singh) President

 

CL