KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION

              VAZHUTHACAUD THIRUVANANTHAPURAM

                                        APPEAL NO.655/04

                                 JUDGMENT DATED 31.5.2010

PRESENT

SRI.M.V.VISWANATHAN                         --  JUDICIAL MEMBER

SRI.M.K.ABDULLA SONA                        --  MEMBER                                                                                                                    

The Branch Manager,

United India Insurance Co.Ltd,

Branch Office, Adimali.                                --  APPELLANT

   (By Adv.T.J.Lakshmanan & Ors)

                   Vs.

P.N.Sivan Pillai,

Plasseriyil House,                                         --  RESPONDENT

Kallar, Vattayar.P.O

   (By Adv.Sanu Mathew)

JUDGMENT

SRI.M.V.VISWANATHAN : JUDICIAL MEMBER

          The above appeal is directed against the order dated 28^th April 2004 passed by CDRF, Idukki in OP.204/03.  The above complaint  was filed alleging deficiency in service on the part of the opposite party, the Branch Manager, United India Insurance Company Ltd., Branch Office, Adimali in not   re-imbursing the entire loss sustained by the complainant with respect to the insured building bearing No.9/364 of Pallivasal Panchayath.    The complainant claimed sum of Rs.32066/- as the balance insurance amount with compensation of Rs.5000/- and cost of Rs.3000/-.  The opposite party /United India Insurance  Company entered appearance and filed written version denying the alleged deficiency in service.  The opposite party contended that the damaged  insured building was assessed by the approved surveyor at Rs.5899/- and the opposite party has paid the said  amount to the complainant/insured.  Thus, the opposite party prayed for dismissal of the complaint.

          Before the Forum below, the approved and licensed surveyor who submitted R1 survey report was examined as DW1.  At the  instance of the complainant an expert commissioner was  deputed to assess the loss sustained by the complainant/insured with respect to the insured building.   The expert report filed by the said commissioner has been marked as Ext.C1.  No other evidence was adduced by the complainant.   Based on the evidence on record, the Forum below passed the impugned order directing the opposite party to pay to the complainant a sum of Rs.17,101/-  with cost of Rs.2000/-.  In the event of failure to pay the aforesaid compensation, the opposite party is made liable to pay interest at the rate of 12% from the date of default.  It is against the said order, the present appeal is filed by the opposite party/Insurance Company.

          We heard both sides.

          The learned counsel for the appellant/opposite party submitted his arguments based on the grounds urged in the memorandum of the present appeal.  He argued for the position that the Forum below has gone wrong in relying on C1 commission report without examining the commissioner who filed C1 commission report and that the Forum below has not considered the objection filed by the opposite party to  C1 report.  It is further submitted that the Forum below ignored the R1 survey report filed by the licensed surveyor and the evidence of the licensed surveyor as DW1.  Thus, the appellant prayed for  setting aside the impugned order passed by the Forum below and also for dismissal of the complaint in OP.204/03.   On the other hand, the learned counsel for the respondent/complainant supported the impugned order passed by the Forum below.  It is submitted that the expert commissioner who submitted C1 report considered all the relevant aspects of the case and assessed the actual loss sustained by the complainant/insured.  Thus, the respondent prayed for dismissal of the present appeal.

          There is no dispute that the respondent/complainant insured his building bearing Door No.9/364 situated in Pallivasal Panchayath and that the said building was insured by the appellant/opposite party Insurance Company for a sum of Rs.2 lakhs.  Admittedly, the insured building sustained damages in the lightening and thunder bolt which occurred at 4.55pm on 29.4.03.  As per the complaint in OP.204/03 the complainant estimated his loss at Rs.35,000/-.  On a perusal of the written complaint in OP.204/03would give an indication that the estimation of the loss at Rs.35,000/- is inclusive of the damage to the insured building and also damage to the household articles etc.  So, the claim of the complainant for Rs.35,000/- by way of damages to the insured building cannot be  accepted.

          Admittedly, the appellant/opposite party Insurance Company deputed licensed and approved surveyor to assess the loss.  Ext.R1 is the survey report dated 10.6.03 submitted by the approved and licensed surveyor V.P. Mohammed Shaji, B.Tech.   The aforesaid surveyor was examined as DW1.  There is no dispute regarding the competency and expertise of the surveyor to assess the loss to the insured building.  As per R1 survey report the net loss to the insured building has been assessed at Rs.5,899/-.  The surveyor has also produced the photographs of the damaged building with negatives.  The aforesaid photographs and the R1 survey report would show that only miner damages were  caused to the insured building.  It is true that the opposite party/Insurance Company admitted the damage caused to the insured building.  DW1, the surveyor has deposed in support of R1survey report.  There is nothing on record to doubt the testimony of DW1 and the R1 survey report submitted by him.  Nothing could be brought out in the cross examination to disbelieve the testimony of DW1or his R1 report.   It is also to be noted that there was no effective cross examination of DW1 with respect to the R1 survey report.  The Forum below cannot be justified in not relying on the testimony of DW1 and his R1 survey report.  The finding of the Forum below that the commissioner who filed C1 commission report has taken into account the actual expenses for reconstructing the damaged portion of the   building and that the licensed surveyor failed to assess the actual expenses cannot be upheld.   The aforesaid finding is without any basis.  The Forum below could not point out any irregularity or  omission on the part of the approved surveyor in assessing the actual loss to the insured building.  It is also to be noted that the opposite party/Insurance company filed objection to C1 report.  But, the Forum below did not consider the objection filed by the opposite party to the C1 commission report.  It is also to be noted  that the expert commissioner who filed C1 report has not been examined in this case.  Thus, the appellant/opposite party Insurance Company did not get the opportunity to cross examine the expert commissioner with respect to the C1 commission report.  On the other hand, the approved surveyor who submitted R1 report was examined before the Forum below as DW1.  Thus, in all respects, the Forum below cannot be justified in not relying on the survey report.  It is to be noted that the Forum below has gone wrong in deputing another expert without setting aside the survey  report available on record.  It has been held by the Hon. Supreme Court that survey report is an important document and its non consideration would result in serious miscarriage of justice.    [United India  Insurance Company Ltd. and Ors. Vs. Roshanlal Oil Mill Ltd and Ors (2000) 10 SCC 19].    The Forum below has gone wrong in discarding the testimony of DW1 and R1 survey report.  The impugned order passed by the Forum below based on C1 commission report and by ignoring R1 survey report cannot be upheld.

          The approved and licensed surveyor assessed the loss to the insured building at Rs.5,899/-.  But the appellant/opposite party Insurance Company paid only Rs.2,934/- to the respondent/complainant (insured). But the balance amount due to the complainant/insured was paid only after the institution of the complaint in OP.204/03.   The failure on the part of the opposite party/Insurance Company to pay the entire amount of Rs.5,899/- would amount to deficiency in service.  So, the forum below is justified in awarding cost  of Rs.2000/- to the complainant.  The balance  amount due to the complainant was paid   by the opposite party during the pendency of the complaint in OP.204/03 on the file of CDRF, Idukki.  So, the appellant/opposite party insurance Company can be made liable only to pay the cost of Rs.2000 which was ordered by the Forum below.  In all other respects, the impugned order passed by the Forum below is set aside.  

                    In the result, the appeal is allowed to the extent as indicated above.  The impugned order dated 28.4.04 passed by CDRF, Idukki directing the opposite party/Insurance Company to pay to the complainant a sum of Rs.17,101/- is set aside.  But the order awarding cost of Rs.2000/- to the complainant is upheld.  As far as the present appeal is concerned, the parties are directed to suffer their respective costs. 

 M.V.VISWANATHAN  --  JUDICIAL MEMBER

M.K.ABDULLA SONA  --  MEMBER