Before the District Consumer Disputes Redressal Forum, Rohtak.
Complaint No. : 431.
Instituted on : 07.08.2012.
Decided on : 04.03.2015.
Sandeep s/o Sh. Risal Singh r/o Village Khidwali Tehsil Distt. Rohtak.
………..Complainant.
Vs.
The Orietnal Insurance Co. Ltd. Branch Office, First Floor Rohtak Road, Gohana Distt. Sonepat through its Manager.
……….Opposite party.
COMPLAINT U/S 12 OF CONSUMER PROTECTION ACT,1986.
BEFORE: SH.JOGINDER KUMAR JAKHAR, PRESIDENT.
MS. KOMAL KHANNA, MEMBER.
Present: Sh.S.S.Hooda, Advocate for the complainant.
Sh.R.K.Bhardwaj, Advocate for the opposite party.
ORDER
SH. JOGINDER KUMAR JAKHAR, PRESIDENT :
1. The present complaint has been filed by the complainant with the averments that he constructed cattle feed godown-building measuring 110x39 feet in the revenue estate of village Khidwali in the year 2010. It is averred that the complainant got the building insured vide policy no.261403/2011/6 for a period from 25.01.2011 to 24.1.2012. It is averred that due to rain and storm, the building fell down and the complainant moved an application to the revenue authorities to this effect and the revenue officials visited the spot and found the godown building had fallen down largely due to rain and storm. It is averred that the complainant approached the opposite party to compensate the loss accrued to the godown building but the opposite party vide its letter dated 01.06.2012 intimated the complainant that the liability in respect of building in question is repudiated on the false plea that the construction was proposed as 1st class. It is averred that at the time of insurance the building was in existence and open to any inspection and there is no misrepresentation given by the complainant. It is averred that the complainant was compelled to get the loss of the building estimated by one Sh.H.R.Gupta Retd. Engineer and registered Govt. valuer on payment of his fee. The valuer estimated the loss in the sum of Rs.1800000/-. So the opposite party cannot escape from the liability of insuring the aforesaid cattle feed godown building in the sum of Rs.18 lac. It is therefore prayed that an award in the sum of Rs.1850000/- be passed in favour of complainant and against the opposite party with costs.
2. On notice, the opposite party appeared and filed its written reply submitting therein that the building was of Class-1 construction and accordingly the insurance cover note was issued but according to our surveyor report there is no Class-1 construction and the bricks are laid in Mud-Mortor, it is Kachha construction. The surveyor also found that the rain water might have entered the Godown from the opening and the said water seeped through the wall laid in Mud-mortor. Resulting into collapse of walls. On merits, it is submitted that there is no report of Tehsildar, that Godown building was fallen due to rain and storm. In fact meteorological report is required in this case which is not submitted by the complainant after repeated requests. It is averred that the loss was occurred on 12.01.2012 and intimation to the company was given on 23.01.2012. Thus there is a delay of giving information to the insurance company. Even no D.D.was lodged by the complainant in the police station. Thus there is violation of terms and conditions of the policy and the insurance company is not liable to pay any compensation. It is averred that Sh.H.R.Gupta wrongly assessed the loss of Rs.1800000/-. In fact there is a loss of Rs.468639/- as assessed by expert surveyor of the company which is based on true estimate. All the other contents of the complaint were stated to be wrong and denied. Opposite party prayed for dismissal of complaint with costs.
3. Both the parties led evidence in support of their case.
4. Ld. Counsel for the complainant in his evidence tendered affidavits Ex.CW1/A, Ex.CW2/B, Ex.CW3/C, Ex.CW4/D & documents Ex.C1 to Ex.C15 and closed his evidence. On the other hand, ld. Counsel for the opposite party in his evidence tendered affidavits Ex.RW1/A, Ex.RW2, Ex.RW3 & documents Ex.R4 to Ex.R12 and has closed the evidence.
5. We have heard learned counsel for the parties and have gone through material aspects of the case very carefully.
6. In the present case it is not disputed that the complainant had insured his building with the opposite party as per cover note Ex.C7 whereby the insured name is Sandeep s/o Sh. Risal Singh, period of insurance is 25.01.2011 to 24.01.2012, SMI Desc is Building and Sum insured is Rs.2000000/-. It is also not disputed that the complainant moved an application dated 16.01.2012 to the Tehsildar Rohtak submitting therein that his godown had fallen down on 12.01.2012 due to heavy rainfall. It is also not disputed that as per report Ex.C2 of Tehsildar, on inspection it was found that the godown of the complainant had fallen down due to less fodder in the godown and due to rain with high velocity of wind. The contention of ld. Counsel for the complainant is that the complainant intimated the opposite party personally as well as made written application to the opposite party for releasing the loss amount but the same was not replied and the complainant had to depute the approved valuer Sh.H.R.Gupta who as per his report Ex.C8 had estimated the loss amounting to Rs.1800000/-. It is further contended that the opposite party is liable to pay the alleged amount.
7. On the other hand, ld. Counsel for the opposite party has contended that at the time of insurance the complainant had stated that the building was of Class-1 construction but as per the report of surveyor the godown is constructed in mud mortar i.e. katcha construction. It is contended that as per the report of surveyor the loss assessed was Rs.493304/- but the same was not payable as there was misrepresentation by the complainant as to class of construction. As such opposite party is not liable to pay the alleged amount.
8. After going through the file and hearing the parties it is observed that it is not in dispute that the building of the complainant had destroyed and he had suffered a great loss but the claim of the complainant has only been repudiated on the ground that the complainant has misrepresented the fact regarding the class of construction of building. In this regard it is observed that as per policy Ex.C7/Ex.R6 there is no construction detail. To prove its contention opposite party has placed on record proposal form Ex.R10 but the same is merely a photocopy and hence cannot be relied upon. On the other hand, as per the affidavit Ex.PW1 of Jaivir s/o Risal Singh the Insurance Company had visited and inspected the cattle feed godown fully and after their full satisfaction, insured the godown. From this affidavit, it is proved that before issuing the insurance cover the spot was inspected by the opposite party and at that time no objection regarding Kachha construction was raised by the opposite party. Hence the repudiation of claim on this ground is illegal and amounts to deficiency in service and the opposite party is liable to pay the claim amount to the complainant. Now the question arises that as to what amount of compensation is awarded to the complainant? In this regard we have observed the report of H.R.Gupta Ex.C8 submitted by the complainant as well as the report of surveyor Ex.R4 submitted by the opposite party. As per the report Ex.C8 the loss is assessed at Rs.18 lacs but in this report no depreciation or salvage has been deducted. On the other hand, as per the report Ex.R4, the total loss is assessed Rs.1437969/- less depreciation 10% but the salvage is deducted for Rs.800868/- which is on very higher side because as per the photographs placed on record Ex.C11 to Ex.C14 the whole building is destroyed and bricks and tin sheds are lying on the ground. Some bricks had fallen upon the tin shed. After felling down the building, the material is destroyed and cannot be used as it is, so it usually won’t amount too much. Hence the assessment of salvage as per the report of surveyor vide his report Ex.R4 cannot be accepted being on higher side. As such the law cited by ld. Counsel for the opposite party cited in IV(2013)CPJ 233 titled as Dipali Das Vs. United India Insurance Co. Ltd. is not applicable on the facts and circumstances of the case. On the other hand, we have placed reliance upon the law cited in II(2010)CPJ12(NC) titled as CIMMCO Birla Limited Vs. National Insurance Company Ltd. & Ors. whereby Hon’ble National Commission has held that: “Stocks submerged in water for days, could not be segregated-Settlement on basis of indemnification of loss agreed by insurer-Loss assessed by surveyors, reduced on flimsy grounds-Deficiency in service on part of insurer proved-Relief entitled”, as per IV (2009) ACC 356(SC), titled New India Assurance Co. Ltd. Vs. Pradeep Kumar whereby Hon’ble Supreme Court has held that: “The approved surveyor’s report may be basis or foundation for settlement of a claim by the insurer in respect of loss suffered by the insured but surely such report is neither binding upon the insurer nor insured”, as per 2013(3)CPC 18 titled as Kum Kum Silk and Sarees Vs. United India Insurance Co. Ltd. Hon’ble National Commission, New Delhi has held that: “Insured stock was destroyed in fire-Surveyor gave report not supported by valid evidence. Several items were wrongly excluded from list of damaged articles-District Forum allowed the claim by ignoring incomplete and unreliable report of surveyor-State Commission set aside the compensation granted by the District Forum-Hence revision-As the report of the surveyor is not based on cogent evidence and certain amount has been excluded from total compensation the report cannot be given significant importance-Respondent is directed to pay total sum of Rs.705860/- as a valid claim-Petition allowed” as per 2006(2)CLT 91 titled V.Amutha Vs. S.Swamikannu(Dr.) it is held that: “Deduction of 25% from the amount of loss assessed by surveyor-No justifiable reason given. Complainant entitled to full amount of loss assessed by the surveyor”. In view of the aforesaid law which are fully applicable on the facts and circumstances of the case, it is observed that the act of opposite party of reducing the genuine claim of the complainant is illegal and amounts to deficiency in service. As per survey report Ex.R4, the surveyor after deducting the 10% depreciation had assessed the loss of Rs.1294172/- and has also deducted the salvage value @ 50% & 60%. In our view it would be suffice to deduct the 20% on account of salvage value for the material from the alleged amount.
9. As such it is directed that the opposite party shall pay the alleged loss of Rs.1294172/- less salvage @ 20% which comes to Rs.1294172/- -20% = Rs.1035338/-(Rupees ten lac thirty five thousand three hundred thirty eight only) along with interest @ 9% p.a. from the date of filing the present complaint i.e.07.08.2012 till its realization and shall also pay a sum of Rs.2200/-(Rupees two thousand two hundred only) as litigation expenses to the complainant maximum within one month from the date of decision failing which the awarded amount shall carry interest @ 12% p.a. from the date of order. Complaint is allowed accordingly.
10. Copy of this order be supplied to both the parties free of costs.
11. File be consigned to the record room after due compliance.
Announced in open court:
04.03.2015.
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Joginder Kumar Jakhar, President
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Komal Khanna, Member.
