BEFORE THE DISTRICT CONSUMER DISPUTE REDRESSALFORUM,
SHIMLA,H.P
.
Complaint No. 244/2009
Presented On: 20.7.2009
Decided On: 28.02.2015
……………………………………………………………………….............
Sh. Kam Raj Sharma, S/o Sh. Dev Raj Sharma, R/o Village Kuhal, P.O
Deothi, Tehsil Rampur, District Shimla, H.P.
…..Complainant
Versus
1. National Insurance Company Limited, Shimla-2.
2. National Insurance Company through its Branch Manager, Branch
Office, Main Market, Tapri, District Kinnaur, H.P .
…..Opposite parties
………………………………………………………………………………..
CORAM
Sh. K.S.Chandel, President
Smt. Yogita Dutta, Member.
Sh. Subneet Singh Chauhan, Member
………………………………………………………………………………..
For the complainant: Sh. Ashish Bhandari, Advocate vice
Sh.Mohinder Verma, Advocate.
For the Opposite Parties: Sh.Anil Tomar, Advocate
………………………………………………………………………………..
ORDER:
K.S.CHANDEL,( District Judge) President
The complainant Kam Raj has preferred this complaint under
section 11 & 12 of Consumer Protection Act, 1986 against the opposite
parties ( hereinafter referred as OPs for short) claiming deficiency in
service as well as unfair trade practice by the OPs. The complainant has
pleaded and claimed that he constructed a house over kasra no. 1527,
situated at village Kuhal, P.O Deothi, Tehsil Rampur, District Shimla
which was insured with the OPs for a period w.e.f. 7.8.2008 to 6.8.2009
vide policy Annexure C-1. The complainant has claimed that his house
was destroyed in the cloud burst which occurred during the rainy season
of 2008 and this fact was intimated to the OPs on 27.8.2008 vide
Annexure C-2. The said loss as well as damage caused to the
complainant was verified by the Tehsildar, Rampur Bushhar, District


Shimla vide his report Annexure C-3. The complainant has also claimed
that he registered the FIR vide Annexure C-4 dated 27.8.2008 with the
police station , Rampur Bushhar. The complainant has further claimed
that the OPs get the damage assessed through surveyor as per final report
Annexure C-5. The damage was assessed to Rs.41,167/- only. The
complainant has further claimed that he was not satisfied with the report
of surveyor thereafter get the loss and damage assessed through Architect
D.R.Sharma who assessed the loss to the extent of Rs.4,25,081/- as per
report Annexure C-6. The complainant has further claimed that despite
these documents submitted to the OPs, the OPs have failed to settle the
claim even after seeking information under Right to Information Act to
the basis for recommendation of damages for Rs.41,167/- by the
surveyor of the OPs and thereafter the OPs have sought consent letter
vide letter Annexure C-7. The complainant has further claimed that the
damage and loss has been assessed by Local Panchayat as well vide spot
report Annexure C-8, but, the OPs have failed to settle the claim which
amounts to deficiency in service as well as unfair trade practice by the
OPs and thereby the complainant has sought direction to the OPs to pay
the amount of Rs. 4,25,081/- as claimed being loss and damages as well
as damages for mental harassment including litigation expenses. The
complaint is duly supported with an affidavit of complainant.
2. In reply the OPs have taken preliminary objections qua
maintainability and has further claimed that taking into consideration the
information received from the complainant the surveyor visited the spot
on 14.9.2009 who assessed the damages to Rs. 62,689/- and after
deducting depreciation as well as reusable material and excess clause
finally recommended the loss of Rs. 41,167/- as per Annexure R-1 to
R-4. The OPs have further claimed that the complainant failed to give his
consent despite letter Annexure R-5 to R-7 and thereby the claim of the
complainant has been closed as No Claim. On merits, the OPs have
denied the loss and damages as pleaded and claimed by the complainant
and, as such, the OPs have specifically pleaded and claimed that the loss
assessed by the surveyor and recommended Rs. 41,167/- after deducting
depreciation as well as reusable material and excess clause to this loss
assessed to Rs. 62,689/-. The OPs have further pleaded and claimed that


the complainant has failed to give consent despite request and thereby his
claim has been treated No claim. Hence, the OPs have sought for the
dismissal of the complaint. . The reply of OP is duly accompanied with
an affidavit of Manager of the OPs.
3. We have heard the ld. Counsel for the parties and considered the
record carefully.
4. The only dispute between the parties to the assessment of loss
and damages caused to the house of the complainant as the complainant
has pleaded and claimed Rs.4,25,081/- as assessed by D.R. Sharma and
Associates Architect Consulting Engineer and Interior Designer vide his
report Annexure C-6. The OP has pleaded and claimed that the surveyor
has assessed the loss and damage to Rs. 41,167/- only after deducting the
depreciation value as well as reusable material including excess clause
from the total damages assessed by the surveyor to Rs.62,689/-. During
the pendency of the proceeding a Local Commissioner was appointed to
assess the damages/loss to the house of the complainant being Assistant
Engineer, HPPWD (B&R) Sub Division Taklesh, who has given his
report after the assessment of the loss /damages of the spot and as per his
report he has assessed the loss to Rs. 4,63,957/-. The Local
Commissioner has been cross-examined by the OP as well in which the
Local Commissioner has specifically denied to repair the house with
minor repairs and further that he has wrongly prepared the report for
damages/loss. Therefore, there are three assessments to the loss/damage
to the house of the complainant one is relied by the complainant
Annexure C-6 prepared by D.R.Sharma and Associates Architect
Consulting Engineer and Interior Designer who visited the spot on
15.11.2008 and assessed the damage to Rs. 4,25,100/-. The complainant
has also relied upon the report of the Local Gram Panchyat Annexure
C-8 in which the loss has been assessed to Rs.5,00,000/-. The OP has
relied upon the surveyor report Annexure R-3 prepared by Surender
Kumar Soni, Chartered Accountant who has assessed the loss to
Rs.62,689/- and after deducting depreciation @12% salvage as well as
excess clause the liability has been recommended to Rs.41,167/-. The
surveyor of the OP is a Chartered Accountant and he has claimed in the
assessment of loss that after making the detailed discussion with civil


engineer the loss has been assessed, but, there is no supporting document
with the surveyor report Annexure R-3 of any civil engineer vide which
the loss has been assessed by the surveyor having no background of civil
engineer and, as such is not reliable being contrary to facts. The third
report is of Local Commissioner , Assistant Engineer HPPWD (B&R)
Sub Division Taklesh dated 10.9.2012 who has assessed the loss and
damages to Rs. 4,36,957/- based on details of measurement site plan. The
complainant has also filed an affidavit of D.R. Sharma and Associates
Architect Consulting Engineer and Interior Designer, who has prepared
the report Annexure C-6 as well as Annexure CW3/A based on technical
site visit report including the site plan. Therefore, the loss and damage
assessed by Desh Raj Sharma Architect Consulting Engineer and Interior
Designer Annexure C-6 as well as Annexure CW3/A and the loss and
damages assessed by the Local Commissioner/Assistant Engineer vide
his report dated 10.9.2012 loss and damage caused to the house of the
complainant is established and proved to be Rs.4,25,100/- being reliable
based on facts. Therefore, the present complaint is allowed. The OPs are
directed to pay Rs. 4,25,100/- to the complainant with interest @9% per
annum from the date of filing the complaint i.e.20.7.2009 till realization.
The complainant is also entitled for compensation on account of mental
harassment including litigation expenses of Rs 25,000/-. The OPs are
directed to pay this amount within 45 days from the receipt to the copy of
the order. Hence, the present complaint stands allowed. Copy of this
order be supplied to the parties free of cost as per rules.
Announced on this 28th day of February ,2015
( K.S.Chandel)
President
(Subneet Singh Chauhan)
Member
(Mahajan)