DATE OF FILING: 09.03.2015.
DATE OF DISPOSAL: 19.05.2017
Dr. N.Tuna Sahu, Presiding Member:
The complainant has filed this consumer dispute under Section 12 of the Consumer Protection Act 1986, alleging deficiency in insurance service against the Opposite Parties ( in short the O.Ps) and for redressal of his grievance before this Forum.
2. The brief facts of the complainant’s case are that he being an unemployed person with disability for earning his livelihood started a rice mill at village Khajapalli, Budhamba financed by O.P.No.3. The entire building, plant, machinery and paddy stocks were hypothecated with O.P.No.3 and was insured on 8.10.2013 by O.P.No.1 vide policy No.16320/11/13/3100000334 for standard fire and special peril on payment of Rs.5,885/- towards yearly premium for an assured sum of Rs.22,00,000/- that includes Rs.5,00,000/- for building, Rs.3,00,000/-for paddy stocks and Rs.14,00,000/- for machinery of Rice Mill. The policy is valid for the period from 8.10.2013 to 7.10.2014. Similarly, as per the complaint, he was also procured another policy for burglary vide policy bearing No.7500000399 on payment of Rs.7,041/- towards yearly premium of the said policy. The policy is for the period 8.10.2013 to 7.10.2014 for an assured sum of Rs.17,00,000/- which includes Rs.3,00,000/- for stocks and Rs.14,00,000/- towards rice mill machinery. During the policy in force and when the mill is all set to start with stocks in the godown, the severe cyclone phailin on 12.10.2013 completely damaged the building, plant and machinery and the paddy stocks were washed out in the flood and the transformer, electrification works and other machinery of the rice mill got badly damaged. The complainant immediately intimated the loss o the O.P.No.1 through O.P.No.3 bank and the O.P.No.1 & 2 deputed a surveyor to assess the loss on 19.10.2013. The surveyor assessed the loss on spot visit and asked the complainant to submit the claim documents and other relevant papers. The complainant submitted the claim estimate of loss to the tune of Rs.11,43,935/- against the real damages of the rice mill. However, the surveyor after conducting survey assessed the loss of Rs.90,911/- which is unjust and improper as per the loss. It is also contended that the surveyor in his survey report wrongly assessed the paddy stock of another godown bearing khata No. 15 and plot No. 226 instead of Khata No. 352/20. The surveyor submitted a misleading report with less assessment of loss to the O.P.No.1 & 2 who without application of mind decided to settle the claim at Rs.90,991/- as per survey report without deputing another surveyor to make assessment of real loss of the complainant. It is also stated in the complaint that the complainant also lodged a complaint before the revenue authority to find out loss and damage of his mill through the Amin and R.I. and accordingly they have also submitted their reports. When the O.P.No.1 & 2 tried to settle the loss as per the whimsical and arbitrary report of the surveyor, the complainant did not receive the amount which is very much meager and unjust and improper. Even on protest the O.P.No.1 & 2 did not depute a second surveyor and not assessed the loss properly as per real loss. The complainant also issued a legal notice to the O.P.No.1 & 2 but that also did not yield any result. The O.P.No.1 & 2 miserably failed to render the service to the complainant and acted in a very negligent manner. Hence the complainant has filed this consumer complaint alleging deficiency in insurance service on part of the O.Ps and has prayed to direct the O.Ps to pay Rs.11,43,935/- towards the damages of building, plant and machinery and stocks of paddy in the godown as per the estimated loss and damages. The complainant has also demanded Rs.60,000/- towards mental agony, deficiency in service and for litigation expenses and to award cost and relief as the Hon’ble Forum deems fit in the best interest of justice.
3. Upon notice the O.P.No.1 & 2 filed version jointly through their advocates. It is stated that the allegations and averments made in the complaint are all not true and the complainant is put to strict proof of the same as are not admitted herein. The averments made at para-2 and 3 of the complaint petition that the building, plant and machinery and stock of grain of the complainant were insured with this insurance company from 8.10.2013 to 7.10.2014 through its Brach at Janana Hospital Road, Berhampur (O.P.No.1) vide Policy No. 163201/11/13/3100000334 is admitted. But the place of risk, the terms and conditions of insurance, the extent of liability and procedure of settlement of claim are all well mentioned and specifically stipulated in the policy issued by O.P.No.1. In para-3 of the complaint petition the complainant is giving reference of another policy No.163201/46/13/750000339 which is not issued from this Branch. Accordingly, the present complaint petition is bad for non-joinder of necessary party and mis-joinder of cause of action. The present version is confined to the claim pertaining to policy No. 163201/11/13/3100000334 dated 8.10.2013 issued by Berhampur Branch only. Admittedly, the complainant has lodged a claim with O.P.No.1 branch relating to the aforesaid policy alleging loss to the insured property by submitting claim form on 3.2.2014 due to cyclonic storm ‘Phailin’ and Mr. S.N. Nayak, Surveyor and Loss Assessor was appointed and assessed the reported loss. It is also averred that the complainant had submitted his estimated loss to the tune of Rs.11,43,935/- towards the real damage of building, plant, and stock of paddy, electrification works etc. is not true. The estimated loss as submitted by the complainant was one sided, biased and arbitrarily shown at excessive higher side and that the real damage of the complainant was not to the tune of Rs.11,43,935/- as alleged. The learned surveyor Mr. S. N. Nayak had assessed the loss payable at Rs.90,991/- as mentioned at para-7 of the complaint petition. But it is not true to say that the assessment of loss made by the learned surveyor is unjust or improper as alleged by the complainant at para-7 of his complaint petition. In answer to the allegation made at para 8, 9, 10 and 11 of the complaint petition alleging mischief and misleading on the part of the surveyor during the process of assessment of loss is not true and these allegations are manufactured with mala fide intention to invent false cause of action for the present complaint. It is also stated that the concerned surveyor is neither an employee of this Insurance Company nor under the pay roll of this insurance company. He is an independent surveyor duly qualified for assessing the reported loss and authorized/licensed for the said purpose by statutory organization namely Insurance Regulatory Development Authority(IRDA) of Govt. of India. Hence the allegation against the concerned surveyor regarding showing favour to this Insurance Company by suppressing real fact and submitting fake report are not only inherently improbable but also not tenable under the facts and circumstance of the case. The complainant has lodged a complaint to the local Revenue Authority for assessment of his loss, it is submitted that his reported loss as assessed by the Revenue Inspector and Amin have no role to pay in the matter of assessment of loss by the Insurance Company as per the terms and conditions of the Insurance Policy. The assessment of reported loss requires highly skilled and technical knowledge which normally the Revenue Inspector and Amin do not possess. Moreover, the procedure for settlement of loss are covered under the terms and conditions of policy of insurance which is acknowledged and accepted by the insurer and neither the insurer nor the insured can travel beyond the terms of policy of insurance regarding procedure for settlement of loss. They have never agreed to consider report of Revenue Authority for settlement of loss. Accordingly, the loss assessment report of Amin and R.I. as claimed by the complainant can’t be brought to the purview of the suit policy of insurance and the terms and conditions of which are alone relevant for settlement of the reported loss. The allegations made in Para 17 to 21 of the complaint petition that these O.Ps have miserably failed to discharge their duties towards complainant for which the complainant subjected to mental agony financial loss and that the O.P.No.1 and 2 are guilty of depriving the complainant from getting his legitimate claim and that the complainant has suffered loss to the tune of Rs.11,43,935/- and he is entitled for the same from the O.P.No.1 and O.P.No.2 are not true nor tenable in law. The complainant has not suffered loss to the tune of Rs.11,43,935/- as alleged by him nor he is entitled to receive such amount from the O.P. Mr. S.N. Nayak, Surveyor had visited the insured premises i.e. MAA RAMADEVI RICE MILL at Khajapalli along with the insured Sri Bhagirathi Bisoyee the complainant and assessed the reported damage thoroughly taking in to account the relevant evidence and consideration keeping in mind the terms and conditions of policy of insurance presenting the procedure for settlement loss and assessment of Rs.1,70,473.00. The report of the Surveyor also referred, considered and scrutinized by our claim department and after careful consideration of the surveyor report having regard to terms and conditions of policy of insurance and settled rule of norms of insurance finally settled at Rs.90,991/- found payable and transmitted to the complainant through his Banker (O.P.No.1). There is no irregularly or illegality in processing and assessing the loss of the complainant. The complainant is not entitled to the suit relief as prayed for. Hence the O.P.No.1 and 2 prayed to dismiss the complaint in the interest of justice.
4. Upon notice the O.P.No.3 filed version through his advocate. It is stated that the allegations made in the complaint petition filed by the complainant are all not true and the complainant is put to strict proof of the same which are specifically not admitted herein. The case against O.P.No.3 Utkal Grameen Bank Budhambo Branch is not maintainable in law as well as factual aspects. The premium was paid to the O.P.No.1 and 2 in respect of the insure Mill of the complainant and accordingly the Insurance Company issued policy in favour of the complainant Rice Mill i.e. M/s Rama Devi Rice Mill. While the policy was in force the PHAILIN which effected to the insured premises and it caused loss to the M/s Rama Devi Rice Mill. After the said incident the Bank helped the complainant to process and forwards all the papers and documents to the insurer the O.P.No.1 to get his legitimate claim. The insured submitted all his claim documents. The Surveyor and Loss Assessor of the Insurance Company visited the spot and submitted the report. This O.P. Bank made personal approach to the insurer several time for immediate settlement of claim. The O.P.No.1 and 2 settled the claim for Rs.90,500/-. The complainant after being dissatisfied he wanted to initiate matter before insurer to get more claim on the ground that there is no proper survey. The O.P.No.3 issued letter to the Manager, National Insurance Company Ltd, Berhampur vide L.R.No.UGB/12/Insu/75 dated 21.05.2014 along with his grievance to settle the proper loss. The complainant has paid the premium and the O.P.No.1 and 3 have issued the policy in favour of the complainant. So in case any loss or damage caused during subsistence of the period of policy the insurer i.e. The National Insurance Company is to indemnify the loss caused to the complainant. The O.P.No.3 Utkal Grameen Bank is no way liable to pay the claim amount in any manner. In view of the above admitted facts on record it is crystal clear that in case the applicant is legally entitled to get the legitimate amount the insurer/the O.P.No.1 and 2 National Insurance Co. Ltd. is to pay the required amount and is to indemnify the loss in case legal entitled to get claim amount if any. The O.P.No.3 is not liable to pay any claim amount since the Insurance Company has issued the policy and the contract is well between complainant and the insurer/O.P.No.1 and 2 National Insurance Co. Ltd. Any infringement made there in is enforceable against the Insurer/O.P.No.1 and 2 National Insurance Co. Ltd. who is legally answerable and liable to pay the amount. The O.P.No.3 has rendered best of his service in all the times. The O.P.No.3 has never caused any deficiency in service, negligence, severe financial loss, damage and mental agony to the complainant. On the other with Utmost good faith the O.P.No.3 Bank has rendered good service to the complainant. There is absolutely no deficiency of service or negligence on behalf of the O.P.No.3 Bank. The Bank has discharged his duty as a Banker and has not done any high handed action. In case any such deficiency in service is there the insurer O.P.No.1 who is vicariously liable to indemnify the claim if any to the applicant. Since the Bank is not the Insurance Company the O.P.No.3 Bank shall not be liable for any relief as prayed. The O.P.No.3 Utkal Grameen Bank, Budhambo Branch is not necessary or proper party. The complaint petition is bad for mis-joinder of the O.P.No.3 Utkal Grameen Bank, Budhambo Branch. Hence the O.P.No.3 prayed this case be dismissed with exemplary cost.
5. On the date of hearing we heard argument from both sides at length. We have gone through the complain petition, written version, written argument and documents available on the case record. The complainant has also filed an affidavit in support of his case.
During the course of hearing of the case and on perusal of materials on the case record, it reveals that there is no doubt or dispute that the complainant has obtained an insurance policy bearing No.163201/11/13/3100000334 for an assured sum of Rs.22,00,000/- Lakhs that includes Rs.5,00,000/- for insurance of the building, Rs.14,00,000/- towards machinery of the Rice Mill and Rs.3,00,000/- towards insurance of stock of rice, paddy, bran and gunny bags on payment of Rs.5,885/- towards net yearly premium. The policy is valid for the period 08.10.2013 to 07.10.2014 which is not in dispute. We also found that the complainant has procured another policy vide No.153201/46/13/7500000339 for burglary for the period 8.10.2013 to 7.11.2014 for an assured sum of Rs.17,00,000/- that includes Rs.3,00,000/- towards stock and Rs.11,00,000/- for insurance of rice mill machinery on payment of Rs.7,041/- toward yearly insurance premium. However, on careful perusal of the second policy we found that the said policy is pertaining to loss due to burglary as per the terms and conditions of the policy. Hence, the complainant is not entitled to get the claim under the said policy since there is no claim filed for burglary under this policy before the O.Ps. So the present case is for the policy bearing No.163201/11/13/3100000334 which is also admitted by the O.Ps.
6. On further perusal of the case record, it appears that it is also not in dispute that the complainant intimated the loss of the said rice mill to the O.Ps insurance company through O.P.No.3 (bank) which was forwarded to the O.P.No.1 by O.P.No.3 vide his letter No.UGB/12/19/442 dated 16.10.2013 i.e. immediately after the devastating Phailin for settlement of the claim. It also reveals that the O.Ps deputed the surveyor and loss assessor Sri S.N. Nayak who also done the inspection of the spot on 28.10.2013 and asked the complainant to submit relevant documents vide his letter No.SN/090 dated 29.10.2013. It is also a fact which is not in dispute or doubt that the surveyor submitted his Survey and Assessment Report to the O.P.No.1 on 18.03.2013 vide his survey report No.SN/Fire/106 pertaining to policy No.163201/11/13/3100000334 for an assessed loss of Rs.90,991/- payable towards liability as per terms and conditions of the aforesaid policy. However, the complainant did not receive the claim amount as offered by the O.Ps due to lower assessment of the loss by the surveyor and loss assessor. It is also on record that the complainant through his learned counsel Sri Surya Narayan Pattnaik issued a legal notice on 25.4.2013 for the settlement of the claim of the complainant within 15 days of the receipt of the notice. In response to the aforesaid notice, the O.P.No.1 also sent a reply with acknowledgement on 06.05.2014 along with the information that the complainant was requested to send the pre-receipt voucher to release the payment at the earliest. The complainant had also filed a grievance letter on 21.5.2014 before O.P.No.3 regarding lower assessment of loss of the complainant and to take necessary action for enhancement of the loss amount. It is further found that the Revenue Inspector, Budhambo Circle has also submitted an inquiry report regarding Rama Devi Rice Mill of the complainant which stands on plot No.859, Khata No.352/20 under Khajapalli Mouza which also stands in the name of Arakhita Bisoyi. The I.I.C., K.S. Nagar and Sarpanch, Khajapalli Gram Panchayat have also certified on the loss of the complainant but the Sarpanch in her certificate has mentioned about the loss of modern rice mill which is not belongs to proprietor Sri Bhatirathi Bisoyi. Hence, the report of Revenue Inspector, Budhambo Circle, I.I.C, K.S. Nagar and certificate of the Sarpanch issued for the said loss is not material to this case and bears no merit since they are not competent to certify the loss of the complainant against the O.P. insurance company.
7. During the course of the hearing of the consumer dispute, the learned counsel for the complainant contended that the complainant had lodged a claim of estimated loss of Rs.11,49,935/- before O.P. Insurance Company due to damage in Phailin against real damage of building, plant and machinery, stocks and electrification works under policy No.163201/11/13/3100000334 with the allegation that the surveyor and loss assessor has improperly and unjustly assessed the loss of the complainant and submitted the survey report mentioning loss of Rs.90,991/- which is payable as per terms and condition of the policy. The learned counsel for the complainant ardently argued that the surveyor made spot visit, verified the physical loss of the complainant and photographed damaged transformer and the paddy stocks which was heaped inside the mill premises under flood water but the claim of the complainant was not assessed properly by the said surveyor as per the standard perils policy and to substantiate his arguments he also cited an authority of Hon’ble National Commission in the case of Oriental Insurance Co. Ltd and Another Vs. R.P. Bricks in 2013 STPL (CL) 2597 NC. He further contended that the surveyor has mislead certain important facts and submitted his survey report with wrong Khata number of the godown and the insured godown where paddy stock was kept was not taken into the assessment and he has shown in his report another godown bearing Khata No.15 and Plot No.226 instead of Khata No.352/20. Hence, the surveyor has not assessed the real loss of the complainant and whimsically submitted the survey report to the O.Ps. So the loss of the complainant should have been surveyed or assessed by deputing another surveyor to find out real loss and damage of the complainant. He also argued that the report of the surveyor is not binding and conclusive one as per the decision of the Hon’ble apex court in the case of New India Assurance Co. Ltd Vs. Pradeep Kumar reported in 2009 STPL (CL) 3846 (SC) and prayed to consider the claim of the complainant as per the complaint.
On the contrary, the learned counsel for the O.P.No.1 &2 submitted that the complainant being the proprietor of M/s Rama Devi Rice Mill, Khajapalli, alleging to have sustained loss to his stock of paddy, plant and machinery and building of rice mill had lodged an estimated loss for Rs.11,49,935/- under the said policy and on receipt of the claim the O.P. Insurance Company had entrusted the job of assessment of loss to Mr. S.N. Nayak, Independent Surveyor who is duly licensed by the Insurance Regulatory Development Authority (IRDA) under Insurance Act. The learned surveyor had visited the insured premises along with the insured Sri Bhagirathi Bisoyee, the complainant and assessed the reported damage thoroughly taking into account to the relevant evidence and keeping the terms and conditions of the policy in mind and assessed the reported loss. The learned surveyor has assessed the reported loss as follows:
- Assessment of Mill Building
The mill building was found to be 62’ X 37’ = 2294 sq. ft with height 14’ and looking into the nature of construction and the then market price, the value of mill building was assessed at Rs.12,61,700/- (calculated the rate of Rs.550/- as the reasonable rate to be incurred per sq. feet). But the building was insured for Rs.5 Lakhs . Hence, building insurance was found to be under insured for 60.38% which is adjusted against assessment of loss.
Gross loss assessed … Rs. 1,42,000/-
Less depreciation @5% … Rs. 7,102/-
Less salvage … Rs. 7,500/-
Rs.1,27,439/-
Less under insurance 60.38%.. Rs. 76,947/-
Net Loss assessed of mill building Rs. 50,491/-
- Assessment on stock of paddy:
The stock is insured for Rs.3,00,000/- but on physical quantification as on the date of loss stock arrived at 922 quintals as against stock reflected at 478 quintals.The value of physically quantified loss (922 quintals) comes to Rs.12,44,700/- (Rs.1350/- per quintals X 922). Hence according to the sum insured the physically quantified stock is found under insured by 75.90%. The surveyor has found out of 922 quintals and 573.6 quintals were partially soaked and considered damage at the rate of 50% which the insured stated to have agreed.286.80 quintals paddy at the rate of Rs.1350/- per quintals amount to gross loss assessed-Rs. 3,57,180/-
Loss salvage for 286.80 quintals -Rs. 51,360/-
Rs. 3,29,820/-
Less under insurance 75.90%-Rs. 2,50,334/-
Net loss assessed -Rs.79,486/-
(C ) Assessment on Plant and Machinery
Towards machinery repairing - Rs. 25,500/-
Towards repairing, cleaning/
Drying of electrical reders - Rs. 25,000/-
Net loss assessed - Rs. 50,500/-
Thus total computation of loss under three heads comes to - Rs.1,80,477.00
Less excess at the rate of - Rs. 10,000.00
Rs.1,70,477.00
It is also contended that out of the loss assessed towards paddy stock found not payable as the stock kept inside a rural godown not related to the insured mill premises which one owned by Sri Arakhita Bisoyee father of the insured and the said rural godown financed by State Bank of India, Polosara and insured by National Insurance Company, Nayagada Branch. Under the circumstance the surveyor in his report deducted an amount of Rs.79,486/- i.e. the loss assessed for stock of paddy hence the O.P. insurance company decided to settle the insurance claim of the complainant on payment of Rs.90,991/- as per terms and condition of the policy.
8. We have heard and thoughtfully considered the submissions made by learned counsel for the complainant as well as for O.Ps through oral as well as written arguments. In the above view of the case, the Forum is to decide whether the surveyor has assessed the loss properly and whether the report of the surveyor is just and proper as per loss sustained by the complainant?
On perusal of report of Surveyor and Loss Assessor, it reveals that the surveyor and loss assessor got intimation from O.P.No.1&2 for survey on 18.10.2013 and visited premises of insured on 19 &20.10.2013 to conduct assessment of loss of the complainant and submitted his survey report to the O.Ps insurance company on 18.3.2014. As per survey report, the complainant insured the aforesaid rice mill under a special peril policy bearing No.163201/11/13/3100000334 for an assured sum of Rs.22,00,000/- Lakhs which includes Rs.3,00,000/- for insurance of the of stock of rice, paddy, bran and gunny bags and Rs.14,00,000/- towards plant and machinery, along with Rs.5,00,000/- for insurance of building of the rice mill. The estimated loss of the complainant as assessed by himself is Rs.11,43,935/- against which the surveyor reported gross assessed loss of Rs.5,79,720/- but recommended to make payment of Rs.90,991/- as per terms and condition of the policy. The surveyor has also admitted to have received and enclosed the claim form, copy of stock register and purchase register, copies of original invoices of plant and machineries, estimate of stock, repairing for building and machinery separately. He has also enclosed the report of Revenue Inspector and local Sarpanch on the loss and final survey report along with professional bills in duplicate and 22 numbers of photographs of the damaged mill.
9. On careful verification of survey report and documents enclosed thereof placed on the case record, we found that the complainant has submitted before the surveyor all bills and vouchers/ invoices, quotations of materials purchased for the construction of the building and bills & vouchers and quotations of electrification works. He has also submitted before the surveyor documents relating to records of physical stocks etc. It further discloses that the complainant has also submitted an estimated amount of Rs.1,62,000/- towards repairing charges of the damaged building prepared by the Junior Engineer, M.T. Section, Kodala on 7.11.2013. The complainant has also filed the copy of commercial tax payment and VAT returns before the surveyor along with acknowledgement receipts thereof to prove that he has been making payment of taxes regularly. The surveyor along with his survey report has also enclosed two numbers of way bills bearing No.271306289718321 dated 28.6.2013 and 271306282593455 dated 28.6.2013 respectively along with tax invoices of Sriram industries relating to purchase of machinery by the complainant from Hyderabad, Andhra Pradesh on payment of Rs.5,55,000/- and Rs.7,06,000/- respectively in the name of the Rice Mill. The surveyor has also enclosed the stock details and purchase account of paddy of the said rice mill along with twenty five photographs of damaged building and paddy stocks which were on germinated conditions. The complainant has submitted all aforesaid documents in support of his claim before the surveyor and loss assessor who has also submitted all those documents before the O.P. No.1&2 along with his survey report. Accordingly, the surveyor in his survey report has quantified the gross loss of Mill building as Rs.1,42,040/- and net loss assessed as Rs.50,491/- after deducting depreciation of 5% along with less salvage and less of under insurance of 60.38% for the mill building. Similarly, the surveyor has assessed Rs.3,87,180/- as gross loss of paddy stock and deducted towards less salvage for 286.80 quintals at the rate Rs.200/- per quintal along with deduction of 75.90% of stock for under insurance and the net loss was assessed as Rs.79,486/- towards damage of stocks. Further, with regard to the assessment of plant and machinery, the survey report discloses that Rs.50,500/- has been assessed as net loss on plant and machinery. As per the discussions made above, the surveyor has assessed an amount of Rs.5,79,720/- as gross loss of the complainant’s rice mill as per his survey report. However, the surveyor has assessed an amount of Rs.1,70,477/- as net liability of O.P. insurance company after making less of Rs.10,000/- towards excess. The surveyor has also deducted a sum of Rs.79,486/- towards stock of paddy and has recommended for making payment of Rs.90,991/- to the complainant towards his insurance claim as per the terms and conditions of the policy.
10. From the above discussion, it clearly reveals that the surveyor has under assessed and estimated the loss of the complainant. The surveyor and loss assessor has not made any remark regarding fraudulent claim made by the complainant in his survey report but has raised plea of under insurance of stocks by 75.90% of paddy in his godown. In the survey report, it is admitted by the surveyor that the insured has procured 478 quintals of paddy from different farmers and physically verified the stocks found available of 922 quintals out of which some 573.6 quintals were partially water soaked. It is also admitted by the surveyor that the paddy stocks were germinated in the godown and he estimated the damage randomly considering damage at the rate of 50% and assessed 286.80 quintals of paddy stock as damaged and quantified the rates for paddy @1,350/- per quintals as per market rate which appears to be reasonable and the gross loss of paddy stock assessed as Rs.3,87,180/- but again deducted Rs.200/- per quintal towards salvage which comes to a total cost of Rs.57,360/- plus Rs.2,50,333/- deducted towards under insurance of 75.90% of paddy stock and the net adjusted loss is Rs.79,486/- on paddy stock. In fact, the surveyor has adjusted the total loss and deducted total amount of stock of paddy from the net assessment of loss. In this context, we would like to state that the surveyor has deducted and drastically reduced the claim amount of paddy stock by not entertaining even those stocks of 478 quintals of paddy which were physically available and verified by the surveyor procured from different farmers. It is also a fact that the surveyor has admitted to have reported in his survey report that the said paddy stocks were germinated due to water soaked in the godown. But, the surveyor remarked in his warranties clause that the said stock of paddy is not coming under the purview of policy since the paddy stocks were not stored inside insured’s declared risk premises. He has further reported that the stock was kept inside a rural godown adjacent to insured mill premises which are owned by Sri Arakhita Bisoi who is father of the insured and the said rural godown building is also financed by SBI, Polosara and insured by underwriters Nayagarh branch vide policy No.163203/11/12/3100000203 for building only. In this regard, we would like to view and it is pertinent to point out that what prevent the surveyor not to submit the authentic documentary evidence thereof along with the survey report. He has only raised the contention but not corroborated his contentions with documentary proof and he has not filed any convincing documentary evidence to support his contentions hence we are not inclined to accept the same. On deeper scrutiny of the survey report and on perusal of the ocular evidence placed on the case record in shape of photographs and documents submitted by the surveyor, we found that the surveyor has unreasonably deducted and drastically reduced the claim amount of the complainant with regard to stock of paddy since as per the policy conditions the stock of paddy was insured for Rs.3,00,000/- and the O.P. insurance company can’t avoid his liability on the report of the surveyor. The surveyor has not filed any plausible documentary evidence along with his report that the stock of paddy was kept in a rural godown adjacent to insured mill premises. He has also not filed any documents regarding insurance or finance of the said premises with the aforesaid bank branch or insurance branch. It is also a fact the surveyor in its report has not disputed that there was damage to the stocks of paddy and rather the surveyor has submitted photographs of germinated paddy stock in the godown along with his survey report. Hence, the stock of paddy of the complainant is logically covered under the policy and the insurance company is liable to compensate the loss/damage in the phailin. With regard to plant and machinery, the surveyor has assessed a sum of Rs.50,500/- as loss against the insured amount of Rs.14,00,000/-. In his survey report the surveyor has mentioned that the plant and machinery are found wet and needs overhauling. One electrical transformer found uprooted and damaged and has considered for repairing charges but the charges recommended for repairing is inadequate. Similarly, regarding assessment of loss of mill building, the surveyor has assessed gross loss of the mill building is Rs.1,42,040/- out of which the surveyor has deducted 5% towards depreciation, less salvage of Rs.7,500/- and deducted Rs.76,947/- for under insurance of 60.38% of the building and loss is adjusted on mill building for Rs.50,491/- only. As per survey report and as per policy, the mill building is insured for a sum of Rs.5,00,000/- against present market value of Rs.12,61,700/- as assessed by the surveyor and loss assessor hence on verification of the loss of mill building by the surveyor it is reported that the mill building found to be under insured for 60.38% which is adjusted in assessment of loss. In this connection, we feel that the surveyor has also under estimated the loss of the mill building and has drastically deducted the amount of loss of the mill building. Accordingly, the surveyor has assessed the net liability of the O.P. insurance company as Rs.1,70,477/- after making less of excess amount of Rs.10,000/- and less of net adjusted for stock of paddy of Rs.79,486/- and recommended to pay the complainant an amount of Rs.90,991/- towards his insurance claim. Under the aforesaid fact and circumstance of the case, in our considered opinion the report of the surveyor is not the last and final word and is neither binding upon the insurer nor on the insured as was held by the Hon’ble Supreme Court of India in the case of New India Assurance Company Ltd. Vs. Pradeep Kumar reported in IV (2009) CPJ 46 SC. In the said case the Hon’ble Apex Court has held that although the assessment of loss by approved surveyor is a pre-requisite for payment or settlement of claim, but the report of the surveyor is not the last and final word and is neither binding upon the insurer nor on the insured. In the instant case the O.P. could have settled the claim of the complainant at least as per the actual loss suffered by the complainant after going through the survey report. In the survey report the surveyor though assessed the gross loss of the complainant an amount of Rs.5,79,720/- but in fact recommended to settle the claim of the complainant on payment of Rs.90.991/- as net liability towards insurance claim as per policy conditions. In view of the case and under the present fact and circumstance, in our considered view, the surveyor has deducted and drastically reduced the claim amount on the pretext of under insurance and no where it was stated that the claim of the complainant is false or exaggerated. Under these circumstances, it would not be fair or reasonable to reject even the genuine claims of the insured which has been verified and found to be correct by the surveyor. It is also not just and proper to decline the genuine claim of the complainant as per the survey report. The O.P. insurance company at least could have settled the claim of the complainant on payment of Rs.1,80,477/- (Rs.50,491/-+ 79,486/- + 50,500/-) as the total loss assessed by the surveyor towards mill building, stock of paddy and plant & machineries respectively. However, the O.P. insurance company even not settled the claim of the complainant as per the surveyor report and due to wrong and misleading information supplied by the surveyor to the insurance company regarding the stock of paddy of the affected rice mill, the insurance company was forced to consider the claim of the complainant as Rs. 90.991/- towards their net liability. In our considered view, the insurance company is liable to settle the claim of the complainant as per the assessment of loss made by the surveyor but without deduction of Rs.79,486/- towards net adjusted loss of paddy stock.
11. In this consumer dispute, the learned counsel for the complainant has contended that as per the authority of Hon’ble Supreme Court of India in the case of New India Assurance Company Ltd. Vs. Pradeep Kumar reported in IV (2009) CPJ 46 SC, the O.P. insurance company is liable to pay Rs.11,43,935/- towards damage of building, plant & machinery and paddy stock in the godown due to phailin as assessed by the complainant himself. On the contrary as discussed above, the surveyor in his survey report has assessed as amount of Rs. 5,79,720/- as gross loss of complainant in the phailin. In this connection, we would like to view that we have carefully perused the report of the surveyor and have also pointed out the unjustified deductions of loss of paddy stock and agreed to direct the insurance company to make payment as per the survey report but without deduction of Rs.79,486/- towards net adjusted loss of paddy stock. With regards to mill building, plant and machinery etc, we would like to hold that the insurance company should make payment as per the survey report since the complainant has not produced any cogent and convincing documentary evidence that he has actually incurred the loss as estimated by himself in the aftermath of the phailin. We are, therefore, not inclined to brush aside in toto the report of the surveyor and as per our discussion made above, we would like to direct the insurance company to settle the claim of the complainant on payment of Rs.1,80,477/- to the complainant towards his insurance claim from the date of filing this complaint in this Forum. With regard to prayer of the complainant for payment of Rs.60,000/- by the O.Ps towards expenses for mental agony, deficiency in services and litigation cost, we would like to view that the complainant has not submitted any substantial documentary evidence before this Forum to consider the same by the Forum. However, we are agreed to direct the O.Ps insurance company to pay interest at the rate of 7% per annum on the amount to be paid to the complainant towards his insurance claim as discussed above and at the same time we are also agreed to direct the O.P. insurance company to pay a sum of Rs.4,000/- towards the cost of litigation since the complainant has hired the services of an advocate to file and contest his case against the insurance company. Consequently, in the light of the aforesaid discussion, deliberation and considering the fact and circumstances of the case, we partially allowed the case of the complainant against O.P. No.1 &2 and dismissed against O.P.No.3 due to devoid of any merit.
12. In the result, we partially allowed the case of the complainant against O.P.No.1&2 and dismissed against O.P.No.3. The O.P.No.1 & 2 are directed to pay Rs.1,80,477/- (Rupees One Lakh Eight Thousand Four Hundred Seventy Seven) only to the complainant towards his insurance claim together with interest thereof at the rate of 7% per annum from the date of filing of this complaint petition i.e. from 09.03.2015 till its actual payment. The O.P.No.1 & 2 are also directed to pay a sum of Rs.4,000/-(Rupees Four Thousand) only towards cost of litigation to the complainant at the same time. The above orders shall be complied by the O.Ps insurance company within two months from the date of receipt of this order failing which the entire amount shall carry interest at the rate of 8% per annum thereafter. The case of the complainant is disposed of accordingly.
13. The order is pronounced on this day of 19th May 2017 under the signature and seal of this Forum. The office is directed to supply copy of order to the parties free of cost and a copy of same be sent to the server of
