Karnataka

Kolar

CC/54/2018

Venkateshappa - Complainant(s)

Versus

The New India Assurance Company Limited, - Opp.Party(s)

23 Apr 2019

ORDER

Date of Filing: 29.06.2018

Date of Order: 23.04.2019

BEFORE THE KOLAR DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, D.C. OFFICE PREMISES, KOLAR.

 

Dated: 23^RD DAY OF APRIL 2019

PRESENT

SRI. K.N. LAKSHMINARAYANA, B.Sc., LLB., PRESIDENT

SMT. A.C. LALITHA, BAL, LLB.,  ……  LADY MEMBER

SMT. N.R. ROOPA, B.A., LLB.,  ……  MEMBER

 

CONSUMER COMPLAINT NO. 54 OF 2018

Sri. Venkateshappa,

S/o. Narasimhappa,

Aged About 46 Years,

Pulasanivaddu Village,

Hampasandra Post,

Kasaba Hobli,

Gudibande Taluk,

Chikkaballapura District.                                          ….  COMPLAINANT.

(In-Person)

 

- V/s –

1) The New India Assurance Company

Limited, R.T. Nagar Branch,

# 374, HMT Play Ground,

1^st Floor, Sri Krishna Rukmani

Complex, 5^th Cross, 9^th Main Road,

Opposite to Ganganagara Bus Stop,

R.T. Nagara, Bangalore-32.

(Rep. by Sri. B.S. Sathyanarayana, Advocate)

 

2) The Manager,

Corporation Bank, Gudibande Branch,

Chikkaballapura District.

(Rep. by Sri. N.G. Vasudev Moorthy, Advocate)               …. OPPOSITE PARTIES.

ORDER

BY SRI. K.N. LAKSHMINARAYANA, PRESIDENT

01.   The complainant has filed this complaint against opposite parties claiming compensation of Rs.15,00,000/- towards insurance claim for loss of poly-house due to heavy rain and wind which was caused on 30.04.2017, 09.07.2017 and 10.07.2017 installed in Survey Nos. 28/17, 28/18, 29/15A, 29/15B of Pulasanivaddu Village, Hampasandra Hobli, Gudibande Taluk and so also claiming compensation of Rs.2,00,000/- towards mental agony against OP No.1.

02.   The brief facts of the complainant case is that, he has obtained loan of Rs.37,05,600/- from Corporation Bank, Gudibande, under Krushi Bhagya Yojane through Assistant Director of Horticulture (ZP), Gudibande, with respect to the above said land for construction of Tubular Structure Poly-house.  Out of the above said amount of Rs.37,05,600/- a sum of Rs.25,00,000/- has been sanctioned and he has spent rest of the amount on his own.  The said poly-house was built by M/s. Dhanuja Enterprises, Kambalahalli.  The complainant insured the said poly-house with New India Assurance Company, through Corporation Bank, Gudibande Branch, vide policy No.67210211160100000296.  The said policy was effect from 22.07.2016 to 21.07.2017 and he paid premium through the said Bank.  On 30.04.2017 due to heavy rain and wind the top of the poly-house was destroyed and he sustained loss of Rs.10,00,000/-.  The said fact was published in the Prajavani Daily Kannada Newspaper dated: 01.05.2017.  The complainant informed the said fact to the Manager, Corporation Bank, Gudibande, on 02.05.2017 through application and requested OP No.1 for payment of loss sustained by him under the said policy and on the same day OP No.2 sent e-mail to OP No.1 with respect to the above said incident.  The insurance company did not take any steps for about two months.  On 30.04.2017 the Village Accountant of Hampasandra Revenue Circle Kasaba Hobli, Gudibande Taluk, has inspected the spot with respect to the above said incident and given report on 05.05.2017 and likewise B.A. Enterprises, Specialist: Construction of Poly House, Bhugenahalli Village, Gudibande, were also visited the spot and given report on 12.07.2017 towards loss of Rs.14,43,808/-.  As the insurance company did not take any steps for about two month and the complainant approached the Forum in C.C. No.49/2017.  On 09.07.2017 and 10.07.2017 due to heavy rain and wind the poly-house got completely destroyed and to that effect, the Village Accountant visited the spot and given report.  As the matter was before the Forum he has not informed the above said two incidents to the insurance company.  The said complaint was disposed on 14.06.2018 with liberty to file a fresh complaint.  The complainant has also produced the copy of the order passed in C.C. No.49/2017 and so also the amended petition.  The complainant has produced all the relevant documents i.e., Annexure-1 to Annexure-13.  The complainant has filed the present complaint before this Forum against OPs and prays to allow the said complaint.

03.   Along with the complaint the complainant has submitted following 13 documents:-

(i) Official Copy dated: 06.08.2016 – Annexure-1

(ii) Loan Sanction Document – Annexure-2

(iii) Document for completion of poly-house – Annexure-3

(iv) Insurance Policy – Anneuxre-4

(v) Prajavani Daily newspaper dt: 01.05.2017 – Anneuxre-5.

(vi) Application dt: 02.05.2017 – Annexure-6.

(vii) email copy – Annexure-7.

(viii) Report of Village Accountant dt: 05.05.2017 – Annexure-8.

(ix) BAS Enterprises Report dt: 12.07.2017-Annexure-9.

(x) Village Accountant Report – Annexure-10.

(xi) Order copy dt: 14.06.2018-Annexure11.

(xii) Amended complaint copy dt:29.12.2017-Annexure-12.

(xiii) Application dt: 18.06.2018 –Annexure-13.

 

04.   The OP Nos.1 & 2 appeared through their counsel separately and filed their version.

 

05.   The OP No.1 has contended that, the complaint filed by the complainant is not maintainable either in law or on facts and it deserves to be dismissed in limine.  The OP No.1 has partly denied the contentions at Para-1 of the complaint with respect to borrowing loan from OP No.2 as no knowledge of the same, but has admitted with respect to the construction of the poly-house and specifically denied the averments made in Para-2 to 7, 9 and 10 as false and put the complainant to prove the said averments.  Further the averments at Para-8 with respect to poly-house scheme, money transaction and repayment of loan, this OP has no knowledge about the same. 

05(a).       This OP has specifically contended at Para-14 that, earlier the complainant had filed complaint in C.C. No.49/2017 and this Forum has dismissed the same on 14.06.2018 by giving liberty to file fresh complaint and the complainant has took undue advantage of the said order by introducing a new version in the above complaint which is not maintainable under law.  This OP has issued standard Fire & Special Perils Policy bearing No.67210211160100000296 valid from 22.07.2016 to 21.07.2017 in respect of poly house constructed in Sy. Nos. 28/17, 28/18, 28/24, 29/15B situated at Pulasanivaddu Village, Kasaba Hobli, Gudibande Taluk, to the complainant for coverage of Rs.37,96,000/- subject to the terms, conditions, exceptions and limitation thereof.  On 02.05.2017 OP No.2 has informed to them through e-mail stating that, the policy holder Mr. Venkatesh, S/o. Late Narasimhappa, Pulasanivaddu, Hampasandra Post, has availed loan for construction of poly-house which was partly damaged due to gusty wind on 30.04.2017 and asked to send the authorized person to inspect and to assess the damage incurred so that, the party may be able to claim compensation.  This OP has entrusted the job of survey to P. Srinivas on 10.05.2017 and he has conducted Survey on 11.05.2017 with respect to damages caused to the poly house due to heavy rain and wind in the presence of complainant.  On 07.07.2017 the said surveyor has submitted his report.  The surveyor has approved the claim for Rs.2,68,619/- with respect to damages caused to the poly house due to gusty rain and wind dated: 30.04.2017.  The approval of the claim has been intimated to the OP No.2 through email dated: 04.08.2017 as the complainant has approached the Hon’ble Forum before the date of his claim approval, and they could not able to settle the approved claim of Rs.2,68,619/- to the complainant.  The OP has not repudiated the claim, but the complainant has approached the Forum without any deficiency of service and cause of action and the complaint is premature and not maintainable under law. 

05(b).       This OP has specifically denied the allegations about the alleged damages caused to the poly-house due to heavy rain and wind on 09.07.2017 and 10.07.2017 as there was no oral or written intimation to this OP by the complainant or from OP No.2 with respect to the alleged incident.  This OP has specifically contended that, as per the policy conditions, on happening of any loss or damage the insured shall forthwith give notice thereof to the company and shall within 15 days after the loss or damage in writing.   In this case the complainant has not informed about the subsequent damages caused on 09.07.2017 and 10.07.2017 and the complainant is not entitled for any compensation and prays to dismiss the complaint against this OP.

06.   OP No.2 has contended that, the averments made in the complaint that, the complainant has applied for loan for a sum of Rs.37,56,000/- and out of which, Rs.25,00,000/- was released for the purpose of construction of Tubular Structure Poly-house and the complainant has also invested his own amount and after construction he has insured the same with OP No.1 and the premium from 22.07.2016 to 21.07.2017.  The complainant has paid the premium through the bank, for which Zilla Panchayath and Horticulture Department, Chickaballapura, have also issued necessary certificate.  The averments at Para-2 that on 30.04.2017 due to heavy rain and wind the roof of the poly house was fully destroyed and caused damage up to Rs.10,00,000/- and the same was also published in “Prajavani Paper” and also petition to OP No.1 through OP No.2 are true and correct, but the assessment of damage is not purview of this OP and OP No.1 have to value and assess the damages.  The averments in Para-3 that OP No.2 referred the complainant to OP No.1 and the concerned authorities have also reported and assessed at Rs.14,13,808/- towards damages and this OP is not the person to assess the same.  The averments at Para-4 is admitted by this OP with respect to non-settlement of the claim.  The complainant filed complaint in C.C. No.49/2017 and the same was disposed with liberty to file fresh complaint.  The complainant has borrowed loan for the purpose of construction of poly house and Rs.24,90,000/- was credited to his loan account and he has agreed to pay interest @ 10.65% and also mortgaged the landed properties and agreed to repay the loan in quarterly installments and the loan liability amounted to Rs.29,92,941/- as on 07.06.2018.  This OP No.2 submits that, with respect to any settlement of claim, OP No.1 has to pay the amount to this OP No.2 job to credit to the loan account of the complainant and there is no deficiency of service on the part of this OP. 

07.   On 07.12.2018 complainant submitted his affidavit evidence by way of examination-in-chief and on 19.12.2018 counsel for OP No.1 has submitted affidavit of one Sri. R. Sreedhar, Administrative Officer, of the New India Assurance Company Limited.  OP No.2 did not adduce any evidence on its behalf. 

08.   On 27.12.2018 complainant has submitted written arguments and we heard the arguments on both sides.

09.   Now the points that do arise for consideration are:-

(1)    Whether the complainant has proved deficiency in service on the part of the OPs?

 

(2) Whether the complainant is entitled for the reliefs as prayed by him?

 

(3) Whether the OP No.1 has made out case that, the complaint is pre-mature and there is no any deficiency of service on the part of OP No.1?

 

(4) What order?

 

10.   Our findings on the above stated points are:-

POINT (1) & (2):-      Partly in the Affirmative

as against OP No.1.

POINT (3):-      In the Negative

 

POINT (4):-      As per the final order

for the following:-

REASONS

11.   POINTS (1) to (3):-

These points are taken up together for discussion to avoid repetition of facts and reasonings as they are interlinked to each other.  We have perused the complaint, version, affidavit evidence of complainant and OP No.1 and the documents produced by both the parties, written argument of the complainant, OP No.1, the citations produced by OP No.1, the report of the Surveyor and so also the report of Court Commissioner.  In C.C. No.49/2017 the Surveyor and Loss Assessor of OP No.1 has also filed his affidavit evidence and produced Survey Report along with 27 photographs with respect to the alleged incident that took place on 30.04.2017.  The counsel for OP No1 has also filed Memo dated: 03.08.2018 and prays to put-up the case file of C.C. No.49/2017 to consider the evidence and the documents as the full pleadged evidence were recorded in the said case and the said case file were taken on record in this case.

 

12.   On perusal of the case file it is a fact that, the complainant has obtained loan of Rs.37,05,600/- with OP No.2 under Krishi Bhagya Yojane through the Assistant Director of Horticulture (ZP), Gudibande, for construction of poly-house in the land of the complainant bearing Sy. Nos.28/17, 28/18, 29/15A, 29/15B of Pulasanivaddu Village, Hampasandra Post, Gudibande Taluk.  To that effect he has produced sanctioned order as per Annexure-1 and so also produced Bank extract for obtaining loan from OP No.2 as per Annexure-2.  Out of the above said loan a sum of Rs.25,00,000/- was sanctioned and the complainant has spent rest of the amount on his own and constructed the said alleged poly-house through Dhanuja Enterprises as per Annexure-3 dated: 07.07.2016.  The complainant has insured the above said poly-house with OP No.1 vide policy No.67210211160100000296, valid from 22.07.2016 to 21.07.2017 and so also produced Standard Fire & Special Perils Policy as per Annexure-4, Prajavani paper publication dated: 01.05.2017 as per Annexure-5, letter given by the complainant to OP No.2 dated: 02.05.2017 regarding the incident that took place on 30.04.2017 as per Annexure-6 for requesting compensation from OP No.1 and the same was forwarded to OP No.1 as per Annexure-7, the report of the Village Accountant for the incident that took place on 30.04.2017 as per Annexure-8.  The above said material facts clearly goes to show that, the alleged incident was took place on 30.04.2017 and the poly-house was destroyed partly due to heavy rain and wind in the alleged land of the complainant.

 

13.   The complainant has contended that, on 30.04.2017 due to heavy rain and wind the top of the poly-house was destroyed and he undergone loss of Rs.10,00,000/- and the said fact was published in the Prajavani Daily Kannada Newspaper dated: 01.05.2017 i.e., Annexure-5.  The complainant has also produced the report given by B.A.S Enterprises who visited the spot on 12.07.2017 and given loss estimate of Rs.14,43,808/- as per Anneuxre-9.  But the complainant has not examined the said person who issued Annexure-9 which is exceeding the claim of the complainant and so also to that of the amount mentioned in the news paper Anneuxre-5 and the complainant has also not produced any documents to support Anneuxre-9 and the said Annexure-9 is not helpful to the complainant to consider the said report and it is goes in vain.  Further it is relevant to state here that, the complainant has not at all intimated the insurance company OP No.1 to take steps about heavy rain and wind which was alleged to be caused on 09.07.2017 and 10.07.2017 and the entire poly-house was destroyed, though the earlier complaint was pending and the mere filing of amendment application does not give raise as notice to the OP No.1 with respect to the alleged incident that took place on 09.07.2017 and 10.07.2017 and hence the complainant is not entitle to seek any compensation for the loss of the poly-house which was alleged to be caused on 09.07.2017 and 10.07.2017 due to heavy rain and wind.

 

14.   The Administrative Officer of OP No.1 has filed affidavit evidence in both cases and produced 02 documents i.e., copy of standard fire and special perils policy as per Exhibit-D.1 and so also produced Authorization Letter dated: 11.04.2018 as per Exhibit-D.2 (in CC No.49/2017).  The surveyor and loss assessor of OP No.1 has also filed his affidavit evidence in C.C. No.49/2017 and he has produced original Survey Report dated: 07.07.2017 as per Exhibit-D.3 and 27 photographs under Exhibit-D.4 with respect to the alleged incident that took place on 30.04.2017.  On perusal of Sl. No. 4 of the photograph it reveals about damage caused to the top of the poly-house and the structure of the poly-house is intact and at serial No.25 and 27 of the photographs it also reveals that the structure is intact and serial No.16, 17 & 27 reveals about 02 shed of poly-house and Exhibit-D.3, the report of the surveyor also reveals about the details of the damages. 

 

15.   The complainant has contended that, the Insurance Company did not take any steps for about two months and thereafter the complainant approached the Forum and filed Consumer Complaint in C.C. No.49/2017 on 07.07.2017 the said complaint was dismissed on 14.06.2018 with liberty to file a fresh complaint and the complainant has filed the present Consumer Complaint on 29.06.2018. 

 

16.   Now it is relevant to state here that, in the earlier complaint in C.C. No.49/2017 filed by the complainant, wherein the complainant has specifically stated in the said complaint itself that, due to heavy rain and wind dated: 30.04.2017, ¾^th of the top of the poly-house was destroyed but not stated about the loss of Rs.14,43,808/- as contended in the complaint and so also the complainant has not stated about the incident that took place on 09.07.2017 and 10.07.2017 in the earlier complaint.  Now with malafide intention the complainant has stated about the said facts in this complaint by taking undue advantage of filing the present complaint only to get more compensation.

 

17.   The complainant has filed application i.e., IA No. IV for appointment of Court Commissioner before the Forum to assess about the loss caused to the poly-house due to heavy rain and wind dated: 30.04.2017, 09.07.2017 and 10.07.2017 and the said application was allowed on 30.10.2018 by directing the Court Commissioner to assess the loss of 3/4^th of the poly-house which was damaged due to heavy rain and wind which was caused on 30.04.2017.  The Court Commissioner has submitted his report on 22.11.2018 for Rs.7,61,061.32 with respect to effective utilization of the poly-house based on the present market value.  The counsel for OP No.1 has argued that, the complainant has not examined the said Court Commissioner and so also not marked the report of the Court Commissioner and the same is lying in the file and the said report is not based on the direction issued by the Hon’ble Forum it cannot be looked in to.  The said arguments of the counsel for OP No.1 is not sustainable and it goes in vain.  Wherein when any documents is placed before the Forum it is the bounden duty of the Forum to look upon the said document as the evidence act is not strictly applicable to the Consumer Forum. 

 

18.   On perusal of the Court Commissioner report, wherein the Court Commissioner has stated in his report that, he has inspected the damages caused to the poly-house on 15.11.2018, the materials required for effective utilization of the poly-house was quantified, based on the quantity considered by the department for fixing the unit cost of poly-house and the actual cost for repairing the structure was estimated based on the present market rate and assessed the total cost of loss as Rs.7,61,061.32 paise.  On perusal of the said fact, it clearly goes to show that, the Court Commissioner has estimated the loss for effective utilization of poly-house based on the present market rate.  But the Forum has directed the Court Commissioner to give report by assessing the loss of 3/4^th of the top of the poly-house and other damaged parts as per the photographs which was caused due to heavy rain and wind dated: 30.04.2017, but the Court Commissioner has violated the said order of the Hon’ble forum and prepared the above said report and it is not in accordance with the directions of the Forum.  Further on perusal of Surveyor report produced by DW-2 i.e., Exhibit-D.3 dated: 07.07.2017 and the report of the Court Commissioner dated: 22.11.2018, there are variation in the report submitted by the Court Commissioner to that of Exhibit-D.3 with respect to quantity of Poly film Genegar, Mono film Insect proof net, Mono film Shade net, Aluminum profile, Zig zag spring, SD Screws and pipes.  The Court Commissioner has increased the quantity in his report and it is not based on the damages occurred on 30.04.2017.  Hence the report given by the Court Commissioner is not sustainable in the eye of law and it is not acceptable and it goes in vain.  Hence as discussed above, the report of the Court Commissioner is not acceptable and the report of the Court Commissioner is goes in vain.

 

19.   Now it is relevant to peruse the surveyor’s report of the insurance company OP No.1.  Wherein DW-2 the insurance companies authorized surveyor and loss assessor has estimated the loss of Rs.2,90,355.20 paise as per Exhibit-D.3 dated: 07.07.2017.  On perusal of the survey report of Insurance Company the said report was prepared and estimated in the presence of the complainant and it was prepared at the earliest point of time of the alleged incident that took place on 30.04.2017 and the Surveyor has submitted his report on 07.07.2017 about the loss of poly-house at Rs.2,68,619/- with regard to the damages caused to the said poly-house as on the date of the said alleged incident and the same was intimated to OP No.2 through e-mail on 04.08.2017 and by that time, the complainant had already approached the Hon’ble Forum before the date of his claim approval and OP No.1 could not approach the complainant.  But to the said report of the insurance surveyor the complainant has not filed any objections to the said Survey Report and the complainant has also not cross-examined DW-2 i.e., the Surveyor who has given the report i.e., Exhibit-D.3 and the said report of the Surveyor i.e., Exhibit-D.3 is unchallenged.  Hence the report of the Surveyor of the insurance company can easily acceptable.  As the said report has significant evidentiary value unless it is proved otherwise and it carries enough value.  In this regard we relay the judgment of Hon’ble State Commission of Rajasthan reported in 2017 (3) PCJ Page-170.  Wherein their lordship has held that, Survey Report is an important document and could not be brushed aside without strong evidence to contrary.  The principles of the above said citation is fully attracted to the above said facts and circumstance of the case on hand as discussed above to consider the survey report of the insurance company i.e., Exhibit-D.3.  Hence the said report of the surveyor i.e., Exhibit-D.3 is accepted and the complainant is entitled for the gross loss as assessed by the Surveyor of Rs.3,58,133.84 paise, without deducting less depreciation and salvage, as the alleged incident was took place due to the act of the god and no negligence is attributed on the part of the complainant. 

 

20.   The counsel for OP No.1 has specifically taken up the contention that, the OP No.1 has not repudiated the claim and the complainant has approached the Forum without any deficiency of service, cause of action and the complaint is pre-mature and not maintainable under the law and it deserves to be dismissed on the other hand the complainant has also taken up the contention that, he has intimated the alleged incident that took place on 30.04.2017 to OP No.2 on 02.05.2017 and on the same day the OP No.2 has intimated to OP No.1 through e-mail that, the policy holder by name Venkateshappa has availed loan for construction of poly-house and which was partly damaged due to heavy rain and wind dated: 30.04.2017 and asked to send the authorized person to inspect and to assess the damages incurred to claim compensation.  The OP No.1 has entrusted the matter to the Surveyor by name P. Srinivas on 10.05.2017 and he conducted survey on 11.05.2017 with respect to the damage caused to the poly-house due to alleged heavy rain and wind in the presence of the complainant and on 07.07.2017 the said Surveyor has submitted his report for approval of the claim of Rs.2,90,355.20 paise and the same was intimated to OP No.2 through e-mail dated: 04.08.2017 and by that time the complainant has approached the Forum before the date of claim approval and they could not able to settle the approved claim of Rs.2,90,355.20 paise to the complainant.  The above said fact clearly goes to show that, the OP No.1 has with hold the said admitted claim amount and has not at all come forward to settle the amount though the matter was pending before the Hon’ble Forum and it amounts to deficiency of service.  At this stage it is relevant to state here that, the OP No.1 has admitted about the claim of the complainant through OP No.2 as on 02.05.2017 and when the claim is made by the complainant that itself is auctionable and it cannot be strictly construed to disadvantage the consumer and the complaint is not pre-mature.  Hence the cause of action arose on 02.05.2017 on which date the complainant has informed about the alleged incident to OP No.2 and in-turn OP No.2 has intimated the alleged incident to OP No.1 as per Annexure-7 and the date on which OP No.1 has intimated about the approval amount to OP No.2 on 04.08.2017 as per Annexure-2 at relevant page No.102 and there is a continuous cause of action arise for the present case.  In this regard, we relay citation reported in 2016 (I) PCJ Page-8 of the Hon’ble State Commission, New Delhi.  Wherein their lordship has held that, no law permits the Insurance Company to with hold the admitted claim amount to the complainant by the Insurance Company.  The learned counsel for OP No.1 has relied 02 judgment, i.e., (i) R.P. dated: 03.05.2017 of Hon’ble National Consumer Disputes Redressal Commission between Manoj Kumar – V/s- New India Assurance Company Limited, and (ii) F.A. No.932/2007, dated: 26.11.2007, of Hon’ble Maharashtra State Commission, between Mahindra & Mahindra Financial – V/s- Vishvanath Punjaji Gadakh.  We have perused the above said two citations and on perusal of the above said citations, wherein, the facts of those cases are different from the facts of the case on hand hence the principles of the said citations are not attracted to the facts and circumstances of the case on hand.

 

 

21.   Now it is relevant to state here that, the Consumer Protection Act is a beneficiary legislation and the Forum has to render substantial justice to the consumers.  The complainant has waited for two months after intimating the alleged incident that took place on 30.04.2017 to OPs and by that time the Surveyor has not submitted report and the complainant has filed the Consumer Complaint.  The Surveyor has submitted his report during the pendency of the earlier complaint, but at that time OP No.1 has not come forward to settle the matter though the matter was/is pending before the Forum and OP No.1 with holded the claim amount without any valid reasons.  The OP No.1 cannot with hold the said amount for any purpose and it amounts to negligence and deficiency of service on the part of OP No.1.  OP No.1 cannot escape from their liability stating that, the complaint is pre-mature and there is no deficiency of service on the part of OP No.1 and the complaint filed by the complainant is not maintainable are all goes in vain in the ends of justice and equity and to avoid conflicts of litigation.  The alleged incident was took place on 30.04.2017 and the earlier complaint was filed on 07.07.2017 now we are in the year March-2019 and to get compensation the complainant has waited for long period and the complainant is entitled for the compensation as per the report of the Surveyor i.e., Exhibit-D.3 for the gross assessed loss of Rs.3,58,133.84 paise.  The Insurance Company is not entitled for the less amount of depreciation and salvage as stated in the surveyor’s report as the complainant is an agriculturist and the alleged incident was took place due to the act of God and the complainant should not be deprived of in granting just and reasonable compensation.  Hence as discussed above we answer the above point No.1 to 3 accordingly as against OP No.1 only.

 

 

22.   The OP No.1 has also produced copies of two other judgment reported in (i) W.P. No.53492/2014 of Hon’ble High Court of Karnataka (ii) W.P. No.31886/2016 of Hon’ble High Court of Karnataka.  We have perused the said citations.  In this regard it is relevant to state here that with respect to Court Commissioner the complainant has filed application i.e., I.A. No.1 for appointment of Court Commissioner before this Forum and the Court Commissioner has also submitted his report, but the complainant has not at all challenged the order on I.A. No.1 dated: 30.10.2018 and the said order become final.  Hence the said citations relied by the OP No.1 are goes in vain.

 

POINT (4):-

23.   In view of our findings on Point Nos.1 to 3 and the discussion made thereon, we proceed to pass the following:-

 

ORDER

01.   The complaint filed by the complainant is partly allowed as against OP No.1.  The complaint against OP No.2 is dismissed.

 

02.   The OP No.1 is directed to pay gross assessed loss amount of Rs.3,58,133.84 paise as per the Surveyor’s report dated: 07.07.2017 along with compensation of Rs.15,000/- and litigation expenses of Rs.5,000/- to the complainant within 30 days from the date of receipt of the order.  If the OP No.1 failed to pay the said amount of Rs.3,58,133.84 paise within 30 days to the complainant, it will carry interest @ 6% per annum from the date of receipt of this order till realization of the said amount.

 

 

03.   Send a copy of this order to both parties free of cost.

(Dictated to the Stenographer, transcribed by him, corrected and then pronounced by us on this 23^rd DAY OF APRIL 2019)

 

 

 

LADY MEMBER                  MEMBER                     PRESIDENT