BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

CACHAR :: SILCHAR

Con. Case No. 10 of 2017

                Sri Gias Uddin Mazumder,

            S/o Lt. Kashim Ali Mazumder, Hazi Kadiria Lane

            Old Lakhipur Road, Madhurbond, Silchar …………………………………………         Complainant. 

                                                            -V/S-

1. The New India Assurance Co. Ltd.

Represented by its Regional Manager,

North East Regional Office, Guwahati-5…………………………………..O.P No.1.

2. The Divisional Manager.

The New India Assurance Co. Ltd.

Silchar Divisional Office, Club Road, Silchar ………………………………….O.P No.2.

Present: -                                 Sri Bishnu Debnath,                                          President,

District Consumer Forum,

                                                Cachar, Silchar.                                            

                                                            Sri Kamal Kumar Sarda,                                       Member,

                                                            District Consumer Forum,

                                                            Cachar, Silchar.                                            

            Appeared: -                 Mr. Prasenjit Deb, Advocate for the complainant.

Mr. Shibojyoti Choudhury, Advocate for the O.Ps.

                            Date of Evidence                                         13-12-2017, 02-05-2018

                         Date of written argument                             20-09-2018, 05-12-2019

                         Date of oral argument                                   15-03-2019. 25-04-2019

                         Date of judgment                                           13-05-2019

JUDGMENT AND ORDER

                                 Sri Bishnu Debnath,

1. Gias Uddin Mazumder purchased an Earthquake Insurance Policy No. 53060011150100000208 from the New India Assurance Co. Ltd., Silchar Division on 24-06-2015 for one year ending on 23-06-2016. Sum Assured was Rs.1,00,00,000/- (Rupees One Crore). The said insurance policy was purchased to shift risk of loss on account of damaging of his residential building situated as Hazi Kadiria Road, Old Lakhipur Road, Madhurbond, Silchar due to Earthquake etc.
2. On 04-01-2016 the said building was partially damaged by the intensity of a massive earthquake. Accordingly, the complainant intimated the incidence to the concern officer of the New India Assurance Co. Ltd. Silchar Division and 13-01-2016 lodged claim for compensation of RS. 7,55,488/-. He submitted relevant documents and damages assessment report of a renowned Civil Engineer Mr. S.C. Karmakar alongwith claim Form to justify his claim amount
3. Later on, surveyor of the D.M, the New India Assurance Co. Ltd. (referred as O.P No.2) visited the damaged property twice. But to the utter surprise to the complainant, the O.P No.2 vide letter memo No. 530600/claims/16-17/1262 dated 09-03-2017 intimated that the O.P estimated loss of Rs. 84,000/- and the said amount has been sanctioned to pay to the complainant. The complainant did not agree with the above proposed amount of Rs.84,000/-. For which he brought this instant case for award of Rs.7,55,448 with interest and any other reliefs as entitiled.
4. The New India Assurance Co. Ltd. North Eastern Regional Office, Guwahati is the O.P No.1. Both the O.P No.1 and O.P No.2 in their joint W/S stated inter-alia that the report for Rs.7,55,448 was prepared through consulting engineer without the presence of the officials/any authorized representative of the O.Ps . Moreover, the basis of the calculation of compensation appearing in the report of consulting engineer impounded while inspection and survey is conducted on the alleged accident by the approved surveyor/loss assessor of the O.P Company who assessed the total loss at Rs.84,400/-
5. The O.Ps further stated in the W/S that initially their appointed surveyor Mr. Swapan Bhattacharjee vide his report dated 04-11-2016 assessed the liability at Rs.1,85,610. Thereafter when send the said report for approval to the higher authority by the O.P No.2, the O.P No.1 did not approved the said amount rather the Technical Department of the New India Assurance Co. Ltd. finally evaluated and examined the same and found that damage like beam, roof slabs are not substantiated by photographs and necessary classifications which are mandatory for assessment of liability even dis-mentally and repairing of brick wall in same places were not found justified. As such the said technical Department re-calculated and accepted to be Rs.84,400/- and same amount has been approved by the competitive authority on 06-03-2017.
6. During hearing the complainant submitted deposition and some documents including insurance policy, e-mails etc. The O.P side also submitted deposition of Bibhuti Bhusan Chanda. After closing evidence both sides’ counsels submitted their written argument. I have heard both sides’ counsels and perused the evidence on record including written argument.
7. In this case in view of evidence on record it is of opinion that except challenging the amount regarding loss due to damaged residential building of the complainant and all other material facts, such as partially damaging of the building by earthquake, submitting claim Form and documents including report of loss assessment etc. are not denied.
8. It is a fact that the complainant submitted his claim of Rs.7,55,448/- supporting the report of Civil Engineer. It is also a fact that the Civil Engineer Mr. S.C. Karmakar assessed the loss due to damage of the building without consulting any representative of the O.P. It is also not revealed from the evidence on record that the complainant engaged the aforesaid Civil Engineer with consultation of the O.P or within the knowledge of the O.P. No law and procedure is placed before this District Forum by the complainant that in the given situation the Civil Engineer Mr. S.C. Karmakar is authorized to assess the loss caused due to damage of the building without consulting the O.P. or without presence of representative of the O.P. Moreover, the said report is not available before this District Forum to look into as how loss assessed and calculated Rs.7,55,448/- as loss of damage or what data’s have been taken in to consideration to assess the loss of Rs.7,55,448/-
9. Of course, in the evidence it is revealed that the O.P received the report of the Civil Engineer S.C. Karmakar regarding assessment of loss of Rs.7,55,448/- but the objection of the O.P is that when the O.P made inspection and survey of the building did not find the fact  which received from the report of Sri S.C. Karmakar. However, in which point the surveyor of the O.P differ with the Civil Engineer Sri S.C. Karmakar is not known to this District Forum because no such evidence is available in the record.
10. Nevertheless, the O.P assessed the loss and re-calculated by Technical Department and come to a find that total loss due to damage of the building is Rs.84,400/-. How the loss is assessed what are the basis for such valuation of loss are not clear to this District Forum due to non-producing of the valuation report and relevant evidence.
11. However, in view of evidence in record the fact is true that the building of the complainant has been partially damaged due to earthquake and as such he is entitled compensation from the Insurance Company in view of aforesaid insurance policy to an amount of actual loss suffered subject to limitation to the sum assured. The Insurance Company is liable to pay such actual loss amount without delay.
12. In this case, claimant calculated Rs.7,55,448/- as loss of damaged but O.P calculated Rs.84,400/- only. Nothing found in the record as how they calculated two different                                                                                                                                                                    
13. As such in this case keeping in mind the provision of section 3 of the Consumer Protection Act 1986 as additional relief. I am of opinion that complainant may receive the offered amount of Rs.84,400/- from the O.P and approach the competent Civil Court for declaration of his calculation of loss of damage as Rs.7,55,448 as true and correct and also may pray for consequential relief if any. However, in the event of getting any decree with consequential relief from the competent Civil Court, the amount receives from this District Forum may be adjusted if the competent Civil Court deemed it fit and proper. The aforesaid order and observation is passed for the ends of justice because the matter in question is complicated requiring evidence of exparts valuer of losses due to damage caused by earthquake.
14. With the above, this case is disposed of on contest. Supply free certified copy to the parties. Given under my hand and seal of this District Forum on this the 13^th day of May 2019.