SMT. RAVI SUSHA  : PRESIDENT

         Complainant filed this complaint under sec.35 of the Consumer Protection Act 2019 seeking to  get an order directing opposite party to pay Rs.1890626/- the balance claim amount to the complainant.

   Brief facts of the case  are that  the business of complainant is insured with the OP from 20212 onwards   as standard fire and special perils policy  for the period of 6/5/2019 to 5/5/2020, total sum of Rs.50 lakh and the premium was paid by the complainant from their accounts.  In the year of 2019 August  due to heavy rain and flood the entire first floor of the shop room was totally flooded for more than two days and  all the  stock and furniture’s kept in the shop room was fully damaged.  The damage was caused due to natural calamity and the complainant is entitled to get total loss up to the limit of Rs.50 lakh from the insurance company.  The complainant intimated about the natural calamity and consequent loss to the OP,  the OP sent their surveyor for assessment of the damages.  The total claim for Rs.37 lakhs was submitted to the OP and the complainant submitted all the bills and vouchers for the sanctioning  of insured amount  But after 13 months the OP sanctioned only Rs.16,22,481/-.  Immediately after knowing the sanction  of above said amount the complainant make a representation before the OP requesting to reconsider the matter  and for awarding  the full claim  amount as compensation.  On 14/12/2020 the complainant received a letter from grievance cell for giving additional  payment of Rs.1,86,893/-. Thus from a total claim of Rs.37lakhs the complainant received  only Rs.18,09,374/-.  The OP is liable to compensate to the total loss claimed by the complainant  since it is within the policy coverage amount.  The non payment of total claim amount without any reason is a deficiency of service.  Hence the complaint.

   After receiving notice, OP filed written version, admitting the policy and claim of Rs.18,09,374/- to the complainant.  The OP stated that on receipt of  the claim form from the complainant, the OP deputed surveyor and loss assessor to conduct a  detailed survey  and assess the extend of damage caused to the insured property due to the flood.  Accordingly the surveyor inspected the shop building furniture, fittings fixtures and the stock in trade on several occasions and has meticulously made  an assessment by taking  into consideration of the salvage value  and value of the stock in trade by taking into consideration of the age of the stock etc.  Hence on the basis of the assessment of the surveyor the OP has allowed the claim of the  complainant and settled the claim of the complainant for a sum of Rs.16,22,481 on 29/9/2020 itself. But the complainant moved before  the insurance grievance cell, stating that he is entitled for the sum insured without deducting any salvage value or policy excess. The grievance cell directed the OP to recondiser the deduction of the salvage value  from 20% to 10% and  the OP paid an additional amount of Rs.1,86,893/- to the complainant .  The  claim of  the complainant was processed strictly in accordance with the insurance policy and its conditions and on the guidelines provided to the surveyors for loss assessment  by the IRDA.  Subsequently on receipt of  the order of the  grievance cell the OP has paid Rs.1,86,893/- in addition to the  amount they already assessed.  Hence the claim of the complainant  is not maintainable  and prayed for the dismissal of the complaint.

    At the evidence stage, complainant has filed chief affidavit, examined as PW1 and Exts.A1 to A4 were marked.  On the side of OP, the Deputy Manager Mr.  Jayaprakash M.V has filed his chief affidavit and examined as DW1.  Exts.B1 to B3 were marked.  The insurance surveyor and Loss assessor , who prepared report assessing quantum of loss happened to the complainant was examined as DW2.  All witness were cross examined for the rival parties.  After  that the learned counsel of complainant has filed written argument note.

   We have perused the pleadings of both parties, evidence (oral and documentary) available before us, survey report, and also submissions of learned counsels of parties.

   There is no dispute about the issuance of policy Ext.A1 to the complainant and the incident alleged by  complainant was happened within the policy period.  It is also a fact that the complainant submitted claim application for an amount of Rs.37,00,000/- to the OP without  any delay.  OP has no case that the incident alleged in this case is not indemnifiable.  Also  a fact that Rs.1809374/- was sanctioned  as eligible claim amount to the complainant and  it was transferred to the complainant’s account.  According to OP, the claim amount was assessed by the surveyor and  loss assessor on the basis of policy terms and conditions and the amount was disbursed as per the assessment made by the insurance surveyor.

    Here Exts.B2&B3 are the insurance survey report.  In the present case neither OP nor the insurance surveyor has a case that the  stock details of the textile in dispute, submitted by the complainant is not correct and also does not have a case that the insured had not submitted necessary documents to the insurance company for  assessing the  quantum of loss happened.

   Here the basis of claim amount settled by OP company  on Exts.B2& B3 report.  Hence Exts.B2&B3 are having much importance.  On analyzing the survey reports, it is seen that 50% was deducted as depreciation and an amount of Rs.50,000/- was deducted as salvage value for furniture , fittings. The learned counsel  of complainant submitted that there is no clause in the  policy for deducting depreciation  and salvage value .  It is reported  by the  surveyor that all the furniture are made with plywood and he deposed before the court  that the damaged play wood furniture could not be used for any purpose.  So the deduction of depreciation and salvage value is baseless and illegal.  Deducting depreciation  and salvages value the damages finally calculated is Rs.3,18,084/- only.  This claimant is entitled to get total damages of Rs.7,85,835/- in the head of furniture and fittings.  Further submitted by the surveyor that the basement room was under flood water for more than 48  hours and all the stock in that room was badly  affected.  The surveyor assessed total damages of stock as Rs.20,18,538.23.  The said calculation is after deduction of gross profit of 32.5%.  The learned counsel of complainant  argued that the gross profit could not be deducted from the  actual damage because the profit  is available  only after sale of the stock.  The actual damage includes the profit of the trader when the  entire stock was damaged in calamity.  So the actual damage is 20,18,538 plus 32.5% of the said value  Rs.26,74,563/-. Further  as per the request of OP the 50% of depreciation  is enhanced to 75% without any basis  While cross examining the surveyor admitted that “ കമ്പനി ആവശ്യപ്പെട്ട പ്രകാരമാണ് 50%ൽ നിന്ന് 75%ആക്കിയത്”.

     Considering the entire facts and circumstances of this case, the percentage of calculation made by the insurance surveyor is not correct.  There is deficiency in service on the part of OP.  Hence the complainant is entitled to get relief.  It would be unreasonable and unfair  if deducting 75% of the  assessed loss  and the case of stock and 50% deduction in case of furniture.  In view of this, the deductions on account of both these items would be wrong.  We find that the surveyor has made a fair assessment but the deductions made are not fair.  In the policy, terms and condition also, no criteria is mentioned for calculating  the percentage of deduction from the assessment amount.

   Keeping in view of the above , the complainant shall be entitled to get a claim amount by deducting 10% as depreciation  from the assessed amount by the surveyor in Ext.B3 report in case of stock and also in case of furniture.

   Hence, complaint is allowed in part.  Opposite party is directed to pay the calculated amount to the complainant within one month from the date of receipt of the certified copy of this order.  Failing which the calculated amount will carry interest @7% per annum from the date of order till realization.  Complainant is at liberty to file execution application against the opposite party as per the provision in Consumer Protection Act 2019.

Exts;

A1- Insurance policy

A2- Copy of letter to the OP  by complainant

A3- reply notice

A4-Letter to grievance cell of  OP

B1-copy of  Standard Fire and special peril policy

B2-copy of Addendum report

B3-copy of Survey report dt.12/2/2020

PW1-Madhusoodhanan.E- Complainant

DW1-Jayaprakash.M.V- OP

DW2-Raghunathan Puthenpurayil- witness of OP

Sd/                                                   Sd/                                                     Sd/

PRESIDENT                                             MEMBER                                               MEMBER

Ravi Susha                                       Molykutty Mathew                                    Sajeesh K.P

eva           

                                                                       /Forwarded by Order/

                                                                   ASSISTANT REGISTRAR