BEFORE THE DISTRICT CONSUMER’S FORUM: KURNOOL
Present: Sri.S.Niranjan Babu, B.A., B.L., President (FAC),
And
Smt. S.Nazeerunnisa, B.A., B.L., Lady Member
Thursday the 6th day of August, 2015
C.C.No.18/2013
Between:
Mr.D.Narasimha Murthy,
Contractor, D.No.2-474,
Parthasarathi Nivas, Postal Colony,
Adoni-518 301, Kurnool District. …Complainant
-Vs-
1. The Branch Manager,
Oriental Insurance Company Limited,
Post Box No.6, Municipal Main Road,
Adoni-518 301, Kurnool District.
2. The Divisional Manager,
Oriental Insurance Company Limited,
Bhupal Complex, 40-803,
Kurnool-518 001. …OPPOSITE PARTies
This complaint is coming on this day for orders in the presence of Sri.M.Sivaji Rao, Advocate for complainant and opposite party No.1 called absent and set exparte and Sri.V.Victor Augustine, Advocate for opposite party No.2 and upon perusing the material papers on record, the Forum made the following.
ORDER
(As per Smt. S.Nazeerunnisa, Lady Member)
C.C. No.18/2013
1. This complaint is filed under section 11 and 12 of Consumer Protection Act, 1986 praying to direct the opposite parties:-
(a)To pay Rs.7,15,191/- with interest at 24% per annum from the date of floods towards the loss suffered by the complainant due to floods.
(b)To pay an amount of Rs.25,000/- towards the compensation for causing mental agony and hardship by not paying the actual loss amount.
(c)To pay the costs of this complaint.
(d) To pass any such other order or orders which are deem to be fit and proper in the circumstances of the case.
2. The case of the complaint in brief runs as follows:- The complainant is a contractor. He obtained a contractor all risks policy bearing No.433101/44/2009/515 for the assured amount of Rs.42, 07,041/- from opposite party No.1 for the insurance coverage of the contract work for providing B.T. Surface to the road widening and laying of road from Holagunda-N, Tanda Road (14/0 of L023) to Nerniki of Holagunda Mandal, Kurnool District. The period of insurance is from 17.02.2009 to 16.02.2010 and the maintenance period is from 16.02.2010 to 15.02.2015. while the work is in progress on 01.10.2012 and 02.10.2012, heavy rains are reported in Kurnool District and all the tanks, Ponds, Lakes breached and overflowed the rain water which resulted heavy damage to the complainant’s worked newly laid roads were washed away and the complainant suffered financial loss total worth of Rs.7,15,191/-. The complainant intimated the same to opposite parties and the opposite parties appointed a surveyor to inspect the damage and assess the loss of complainant. The surveyor inspected the damage and submitted his report to opposite party. But the opposite parties did not settle the claim of the complainant. The complainant got issued a legal notice to the opposite parties. After the receipt of notice the opposite parties are ready to pay a meager amount of Rs.3,86,822/- as against the estimated loss of Rs.7,15,191/-. The nonpayment of the actual loss suffered by the complainant is amounts to deficiency of service. Hence this complaint.
3. Inspite of notice served on opposite party No.1, opposite party No.1 did not choose either to appear or file any written version on behalf of him. Opposite party No.1 called absent and set exparte.
Opposite party No.2 filed written version stating that the complaint is not maintainable either in law or on facts of the case. It is admitted that the opposite party No.1 issued policy bearing No.43101/44/2009/515 in favour of the complainant and the same is valid for the period 17.02.2009 to 16.02.2010 and the maintenance period of insurance is 16.02.2010 to 15.02.2015. The opposite party no.2 denied the alleged contract work by the complainant to provide B.T. Surface and laying of road from Holagunda-N.Tanda Road to Nerniki of Hologunda Mandal and the alleged rain fall on 01.10.2012 and 02.10.2012 at Nerniki of Holagunda Mandal and he suffered a loss of Rs.7,15,191/-. It is submitted that the opposite party No.2 appointed a surveyor. The said surveyor inspected the damaged road and assessed the loss of damage and the opposite party No.2 was in process to make the payment to the complainant and the claim is still pending. The complainant got issued legal notice and file this complaint. Due to Non-Cooperation of the complainant, the opposite party No.2 could not settle the claim of the complainant. There is no deficiency of service on the part of opposite parties. Hence the complaint is liable to be dismissed.
4. On behalf of the complainant Ex.A1 to Ex.A8 are marked and sworn affidavit of the complainant and third party affidavit of Sri.Y.Bhagyaraju, working as Deputy Executive Engineer in Panchayat Raj Department is filed. On behalf of opposite parties Ex.B1 to Ex.B8 are marked and sworn affidavit of opposite party No.2 is filed.
5. Both sides filed written Argument.
6. Now the points that arise for consideration are:
- Whether there is deficiency of service on the part of opposite parties?
- Whether the complainant is entitled for the reliefs as prayed for?
- To what relief?
7. POINTS i and ii:- The complainant in his sworn affidavit stated that he has undertaken contract work for providing B.T. Surface to the road widening and laying of road from Holagunda-N.Tanda Road to Nerniki of Holagunda Mandal, Kurnool District and he took insurance policy from opposite party No.1 for the insurance coverage of the said contract work for an assured amount of Rs.42,07,041/- Ex.A1 and Ex.B1 is the photo copy of policy. Due to the heavy rains on 01.10.2012 and 02.10.2012 all the tanks, Ponds, Lakes breached and overflowed the newly contracted said road was washed only. The complainant got total loss of Rs.7,15,191/-. Ex.A2 is photo copy of statement of Villgers of Holagunda Mandal, Nerniki Gramam stating about the rain fall on 01.10.2012 and 02.10.2012. Ex.A3 is the photo copy of rain fall report issued by Thasildar, Holagunda. Ex.A4 is the photo copy of Certificate of Village Revenue Officer (V.R.O.,) Yellarthi Village, Holagunda Mandal certify about the rain fall. Ex.A5 is the photo copy of Notification of Physical Loss or Damage Claim Form dated 21.06.2010. The complainant informed the same to opposite parties and opposite party No.2 appointed a surveyor and the surveyor inspected the damage and submitted his report but the opposite party did not settle the claim. The complainant got issued legal notice on 17.12.2012, which is marked as Ex.A6 along with postal receipt. The opposite parties gave reply by stating that they are ready to settled the claim for a meager amount of Rs.3,86,822/- instead of total loss. The reply notice is marked as Ex.A7. The complainant filed loss estimation report given by Panchayat Raj, Department Executive Engineer, PIU, Pathikonda and Assistant Engineer, PIU, Alur. The complaint filed third party affidavit of Deputy Executive Engineer in Panjayat Raj, Alur at Kurnool District. The learned counsel appearing for the complainant argued that the complainant estimation by Deputy Engineer, filed affidavit of the Engineer to prove the total loss which he has suffered. The Opposite Party settled the meager amount, so did not accept the same.
8. It is the contention of opposite Party No.2 that an intimation by the complainant, the opposite party No.2 appointed a licensed surveyor and he inspected the damaged road in the presence of complainant and assessed the loss at Rs.3,86,822/-. Ex.B2 is the photo copy of survey report dated 23.08.2011, Ex.B3 is the Contractors all risk Claim Note dated 17.10.2012, Ex.B4 is the Letter dated 29.11.2012, Ex.B5 is the Acknowledgement, Ex.B6 is the Reply Notice dated 18.12.2012, Ex.B7 is the Acknowledgement, Ex.B8 is the photo copy of claim payment voucher dated 09.01.2015. The counsel for complainant received the same but did not come forward for settlement. The complainant filed loss estimation and affidavit by third party Engineer from Panchayat Raj is not added as party and it cannot be given any credence and the surveyor report Ex.B2 and final claim note Ex.B3 are binding on both the parties to the contract of Insurance. There is no deficiency of service on the part of opposite parties.
9. Admittedly the opposite parties issued policy bearing No.433101/44/2009/151 in favour of the complainant for an assured amount of Rs.42, 07,041/- for the insurance coverage of above said contract work (Ex.A1=Ex.B1). As seen from Ex.A2 to Ex.A4 it is evident that on 01.10.2012 and 02.10.2012 due to heavy rain fall all the tanks, ponds and lakes were breached and overflowed the water in Kurnool District including the Nerniki of Holagunda Mandal also. Admittedly an information by complainant, the opposite party No.2 appointed a surveyor and the said surveyor inspected the damaged road and assessed the loss at Rs.5,39,431/- (Ex.B2). But he had deducted the salvage amount policy excess at 5%, Average Gross profit at 8% and insurance premium/re-installment. The complainant submitted the estimation of loss of Rs.7,15,191/- prepared by Deputy Executive Engineer in Panchayat Raj Department at the time of inspection to the surveyor also. The opposite party did not choose to cross examine the said engineer, who has given estimation of loss and also affidavit to prove the said estimation. The surveyor un-necessarily deducted the salvage amount and policy excess amount. The policy assured for a sum of Rs.42,07,041/- and the opposite party had collected the premium for the said assured amount. The surveyor assessed amount is less than the assured amount. Due to rain fall and floods the newly road was washed away, the complainant could not collected the cement, sand and stones from the road which were washed away as a result flood water, either the complainant or the opposite party did not file any photos of damaged road in order to correct appreciation of quantum of loss. The surveyor is the person, who inspected the damaged road and assessed the loss. But the said surveyor deducted the salvage amount of Rs.84,466/- and policy excess amount at 5% Rs.21,522/- is not justifiable.
10. We persued all the material available on record and facts and circumstances of the case, we are of the opinion that there is a deficiency of service on the part of opposite parties for not settling the claim within a reasonable time and caused mental agony to the complainant.
11. In the result, the complaint is partly allowed directing the opposite parties jointly and severally liable to pay a sum of Rs.4,92,810/- with interest at 9% per annum from the date of complaint i.e., on 18.03.2013 till the date of realization and further direct to pay Rs.10,000/- towards mental agony and Rs.1,000/- as costs of the case. Time for compliance is one month from the date of this order.
Dictated to the stenographer, transcribed by her, corrected and pronounced by us in the open bench on this the 6th day of August, 2015.
Sd/- Sd/-
LADY MEMBER PRESIDENT (FAC)
APPENDIX OF EVIDENCE
Witnesses Examined
For the complainant: Nil For the opposite parties: Nil
List of exhibits marked for the complainant:-
Ex.A1 Photo copy of Policy bearing No.433101/44/2009/515.
Ex.A2 Photo copy of Letter of Villagers
Ex.A3 Photo copy of Rain Fall Report of Thasildar of Holagunda Mandal
dated 21.12.2009.
Ex.A4 Photo copy of Certificate of VRO, Yellarthi Village of Holagunda
Mandal.
Ex.A5 Photo copy of Notification of Physical Loss or damage (Claim Form)
dated 21.06.2010
Ex.A6 Office copy of Legal Notice dated 17.12.2012 along with Postal Receipt.
Ex.A7 Reply Notice dated 18.12.2012.
Ex.A8 Loss Estimation Report.
List of exhibits marked for the opposite parties :-
Ex.B1 Photo copy of Policy bearing No.433101/44/2009/515 along with terms and conditions.
Ex.B2 Photo copy of Survey Report dated 23.08.2011.
Ex.B3 Contractors all Risk Claim Note dated 17.10.2012.
Ex.B4 Letter dated 29.11.2012.
Ex.B5 Acknowledgement.
Ex.B6 Reply Notice dated 18.12.2012.
Ex.B7 Acknowledgement.
Ex.B8 Photo copy of Claim Payment Voucher dated 09.01.2015
Sd/- Sd/-
LADY MEMBER PRESIDENT (FAC)
// Certified free copy communicated under Rule 4 (10) of the A.P.S.C.D.R.C. Rules, 1987//
Copy to:-
Complainant and Opposite parties :
Copy was made ready on :
Copy was dispatched on :
