Haryana

StateCommission

A/673/2019

IFFCO TOKIO GENERAL INSURANCE CO. LTD. - Complainant(s)

Versus

ROHTASH - Opp.Party(s)

YOGESH GUPTA

29 Aug 2024

ORDER

 STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

 

                                                Date of Institution:30.07.2019

                                                         Date of Final Hearing:12.07.2024

                                                     Date of Pronouncement:29.08.2024

 

First Appeal No.673 of 2019

 

1.      IFFCO TOKIO General Insurance Company Ltd., service C/o Hafed District Office, SCO No.19-20, Part-1, Sector-12, Karnal through its Area Manager.                

2.      Managing Director, IFFCO TOKIO General Insurance Company Ltd., Head Office, Plot No.3, Sector-29, Gurugram through the Managing Director.                                                .....Appellants

Versus

1.  

.....Contesting Respondent

2.  

.....Proforma Respondent

 

Argued by:-       Mr. Yogesh Gupta, counsel for appellants.

Shri S.P. Chahar, counsel for respondent No.1.

Service of respondent No.2 dispensed with vide order dated 09.01.2020.

 

CORAM:             Mr. Naresh Katyal, Judicial Member

                             Mr. S.C. Kaushik, Member

 

                                                ORDER

PER:- NARESH KATYAL, JUDICIAL MEMBER:-

                    In this appeal; legality of order dated 01.07.2019, passed by learned District Consumer Disputes Redressal Forum-Rohtak (“District Consumer Commission”) has been questioned by insurer. Vide this impugned order dated 01.07.2019; complainant’s complaint has been allowed and he has been held entitled to claim amount of Rs.5,19,804/- along with interest @ 9% p.a. from date of filing of complaint till actual realization. Rs.5,000/- has been further awarded to him as compensation and litigation expenses.

2.                Factual matrix: Complainant alleged that he obtained loan from Sarv Haryana Gramin Bank for installing ‘Poly House’ and got it installed in his agriculture land. ‘Poly House’ was insured with Insurer/Appellant through Sarv Haryana Gramin Bank as Bank deducted amount from his Loan Account for insurance. Due to natural climate, ‘Poly House’ was broken/badly damaged and he complained to OPs about it. Insurer/Appellant got it (damaged/broken Poly House) surveyed from its surveyor and thereafter with permission of surveyor; he (complainant) got ‘Poly House’ repaired by spending Rs.11,00,000/-. He applied for insurance claim but Insurer/Appellant paid Rs.4,06,201/- to him. Thereafter, he requested OPs to pay him the remaining amount, but to no effect. By alleging deficiency in service of OPs on above facts; complaint has been filed for issuance of directions to pay him (complainant) balance amount of Rs.6,93,799/- with interest, compensation and litigation expenses.

3.                OPs No.1 & 2 (Insurer/Appellant) raised contest. In written statement, it is pleaded that its surveyor had assessed loss of ‘Poly House’ for Rs.4,06,201/- as per Policy Terms & Conditions. Amount of compensation has been calculated after taking into account depreciation percentage on plastic/perishable material, metal portion etc. minus salvage value, minus, previous claim amount, which was not reinstated and applicable compulsory excess 5% (as per details mentioned in surveyor’s report). Insurer/Appellant paid Rs.4,06,201/- as per surveyor’s report to complainant in full and final settlement after taking discharge /satisfaction voucher from complainant. On these pleas, dismissal of complaint has been prayed.

4.                Sarv Haryana Gramin Bank in its separate written version has pleaded that complainant availed loan facility of Rs.37,40,000/- for ‘Poly House’ on 26.03.2013 from it. Amount of Rs.15,19,400/- is still outstanding due in the Loan Account as on 31.03.2018. Insurance contract is between complainant and OPs No.1 & 2. It (OP No.3-Bank) has nothing to do with regard to visit of surveyor or payment of insurance claim. Due to non-payment of loan amount in time by complainant, penal interest was imposed upon him.

5.                Parties led evidence, oral as well as documentary. On analyzing the same, the learned District Consumer Commission vide order dated 01.07.2019 has allowed the complaint in a manner as enumerated herein before. Feeling dissatisfied; insurer has filed this appeal. We have heard learned counsel for Insurer/Appellant as well as learned counsel for complainant at length and with their able assistance; entire record of complaint case too has been perused.

6.                Learned counsel for Appellant/Insurer, while urging for acceptance of this appeal has contended that surveyor’s report is exhaustive and explanatory in nature. Rs.4,06,201/- as assessed by surveyor has already been paid to complainant, in full and final satisfaction of complainant’s claim regarding damage to the ‘Poly House’. Discharge/satisfaction voucher from complainant has been obtained while paying this amount. It is further urged that ‘Poly House’ in question was purchased on 15.11.2013 and loss to it had occurred it on 23.05.2016, therefore, as per contention; depreciation on various metal and non metallic parts was bound to occur. Insurer’s surveyor has analyzed all these relevant facets and ground realities with regard to nature of damage to ‘Poly House’ and thereafter, furnished its report strictly within the parameters of policy. It is urged that learned District Consumer Commission has committed an illegality while deviating itself from substratum of surveyor’s report without giving any cogent reason.

7.                Refuting the contentions, learned counsel for complainant/Respondent No.1 has urged that insurer has been taking premium of insurance of Poly House on Rs.37,40,000/- for three consecutive years without effecting any depreciation on its metallic and non-metallic parts. Now, insurer cannot be allowed to urge that its surveyor has evaluated the quantum of damage caused to Poly House by enforcing depreciation. It is urged that even if complainant has furnished satisfaction/discharge voucher to Insurer/Appellant, while receiving Rs.4,06,201/- from it, still this fact, ipso-facto, will not foreclose his rights to claim remaining amount (Rs.6,93,799/-) from insurer by filing complaint. It also contended on above submissions that no interference in the impugned order dated 01.07.2019 is warranted.

8.                Sole moot proposition before this Commission is: ‘as to whether loss amounts to Rs.4,06,201/- as assessed by
Appellant’s/Insurer’s Surveyor through its report dated 08.09.2016 was the outcome of meticulously evaluated by analyzing all relevant facets or not’? Answer to this moot question has to be in affirmative. Surveyor’s report dated 08.09.2016 is very exhaustive, elaborate and explanatory in itself. Irrespective of fact that complainant’s ‘Poly House’ was insured by appellant/insurer at Rs.37,40,000/-, yet this insured amount, would become foreign to this case for simple reason that ‘Poly House’ of complainant had already covered a span of more than two years, before ill-fated day, when it got damaged. By no stretch of any legal interpretation, it can be viewed that despite ‘Poly House’ having already run a life of more than two years still it will not attract any depreciation, qua its metallic and non-metallic parts. This Commission is not oblivious of the fact that any property/asset, irrespective of its nature and type (moveable or immoveable) will always carry some life span. Therefore, while keeping this adage in mind, it would be legitimate to observe that any asset, moveable or immoveable would certainly suffer decay and depreciation, due to efflux of its life span. Of course, it is well settled legal proposition by now that: surveyor’s report cannot be termed as so sacrosanct, not to be deviated form. If, surveyor’s report is exhaustive and subjectively cover all material aspects, with regard to subject in question, then the same would certainly become a formidable and acceptable base to be relied upon. There is no exception, so far as present case is concerned. More so, surveyor’s report in case in hand dated 08.09.2016 has never been rebutted by complainant through leading any evidence admissible in law. Consequently, this Commission does not find any reason to disbelieve the authenticity and credibility of surveyor’s report dated 08.09.2016. Surveyor has appropriately induced the element of depreciation, viz-a-viz ‘Poly House’ while arriving at conclusion that as per policy, complainant is entitled to Rs.4,06,201/- towards its loss. While arriving at this conclusion; the surveyor had noticed that in normal course ‘Poly House’ has life span of four (04) years. So far as this case is concerned, ‘Poly House’ was purchased on 15.11.2013 and loss to it had occurred on 23.05.2016. Thus, it was already 2½ (two and half) years old and would, therefore, fetch and attract depreciation in any circumstance.  Accordingly, on that basis, surveyor had proceeded ahead regarding analysis of loss to ‘Poly House’. Above quality approach adopted by surveyor in the arena of analyzing the loss is obviously germane at legal pedestal. No bias on the part of surveyor is deciphered even remotely keeping in view the ground realities of factual scenario.

9.                Since, dispute in the case pertains to quantum of award to be disbursed, hence on factual aspects of this case; it would be apt to specify the law laid down by our Hon’ble High Court in case titled as “National Insurance Co. Ltd. Versus Shree Salasar Interlocking Tiles and others” CWP N0.1991 of 2015, decided on 07.02.2024. The Hon’ble High Court, while appreciating the facts of that case, has held that as under in paragraph 14:

“14.            It is evident from a perusal of the documents available on record that there is no evidence on the basis whereof it can be held that the depreciation/deduction applied by the Surveyor, in his report which is exhibited before the Permanent Lok Adalat (Public Utility Services), Bhiwani Camp Court at Jind, was incorrect or was in violation of the approved accounting principles and as approved by the IRDAI. Further, the Hon’ble Supreme Court has already upheld the applicability of the depreciation due to normal use or exposure of the machinery in the judgment of “Sumit Kumar Saha versus Reliance General Insurance Company Limited” passed in Special Leave Petition (Civil) No.27695  of 2018 decided vide judgment dated 30.01.2019.

 10.             This Commission has considered above laid down ratio of law in the light of facts of present case and come to an inescapable conclusion that guiding principles have been laid down in above quoted judgments, wherein Hon’ble Apex Court and Hon’ble High Court have set at rest, the controversy by upholding surveyor’s report which carry element of deduction and depreciation. Consequently, it has held that Insurer’s/Appellant has an indefeasible right to induce element of deduction and depreciation of ‘Poly House’ in question despite insuring it at Rs.37,40,000/- during the insurance period during which the loss to ‘Poly House’ had resulted. This right of Insurer/Appellant can never be termed to have been foreclosed. Rightly, the Insurer/Appellant had paid Rs.4,06,201/- to the complainant as per its surveyor’s report dated 08.09.2016.

11.              In view of above elaborate and critical discussion, this Commission holds that impugned order dated 01.07.2019 contains fallacy, vide which Rs.5,19,804/- has been awarded to complainant with interest, along with allied relief of compensation and litigation expenses amounting to Rs.5,000/-. This impugned order dated 01.07.2019 is perverse and accordingly, it is set-aside. As a legal corollary so flowing, present appeal is allowed and Consumer’s complaint is dismissed.

12.              Statutory amount of Rs.25,000/- deposited by Insurer/Appellant while filing this appeal (F.A. No.673 of 2019), be refunded to it after due identification and verification as per rules.  Registry of this Commission is accordingly directed.  

13.              Application(s) pending, if any stands disposed of in terms of the aforesaid judgment.

14.              Copy of this judgment/order be provided to all parties, free of cost, as mandated by the Consumer Protection Act, 1986/2019. This judgment/order be also uploaded forthwith on website of this Commission for perusal of parties.

15.              File of this appeal be consigned to record room.

                                    

Date of pronouncement: 29^th August, 2024

 

 

 

                             S.C. Kaushik                         Naresh Katyal                                          Member                                 Judicial Member

Addl. Bench                         Addl. Bench