Haryana

StateCommission

CC/94/2014

M/s Global Health Care Poultry Farm - Complainant(s)

Versus

The Oriental Insurance Company Limited - Opp.Party(s)

22 Aug 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

                                                 

Complaint No.94:     94 of 2014

Date of Institution:   16.09.2014

Date of Decision :    22.08.2016

 

M/s Global Health Care Poultry Farm, through its Proprietor Shri Parveen Khatri s/o Sh. Surender Singh Khatri, Resident of Village Panchhi Jattan, Tehsil Ganaur, District Sonipat.

                                      Complainant

Versus

1.      The Oriental Insurance Company Limited, through its Divisional Manager, Divisional Office, Rajguru Market, LIC Building, near Bus Stand, Panipat, District Panipat.

2.      The Oriental Insurance Company Limited, through its Branch Manager, Booth No.57, 1^st Floor, New Grain Market, Samalkha, District Panipat.

3.      Punjab National Bank, Ganaur, District Sonipat, Haryana, through its Branch Manager.

                                      Opposite Parties

 

CORAM:             Hon’ble Mr. Justice Nawab Singh, President.

                             Shri B.M. Bedi, Judicial Member.

                             Shri Diwan Singh Chauhan, Member   

 

Argued by:                    Shri T.P.S. Teji, Advocate for Complainant.

Shri D.C. Kumar, Advocate for Opposite Parties No.1 & 2.

Shri H.S. Bhatia, Advocate for Opposite Party No.3.

 

                                                   O R D E R

 

B.M. BEDI, JUDICIAL MEMBER

 

M/s Global Health Care Poultry Farm–complainant, filed complaint under Section 17 of the Consumer Protection Act, 1986, submitting that the complainant had set up a poultry farm in its agricultural land by investing huge amount from its own sources besides raising loan of Rs.91,34,816/- from Punjab National Bank-Opposite Party No.3. The poultry farm was insured with The Oriental Insurance Company Limited (for short ‘the Insurance Company’)-Opposite Parties No.1 and 2, vide Standard Fire & Special Perils Policy (Exhibit C-1), covering risk for furniture, fixtures  and fittings for Rs.40.00 lacs and building for Rs.70.00 lacs. The total sum insured was Rs.1.10 crore and the period of insurance was from May 6^th, 2013 to May 5^th, 2014.

2.                On March 11^th, 2014, there was heavy storm in the area where poultry farm has been set up, as a result of which one shed marked as Shed No.2, was totally damaged causing loss of layers, building, fittings, fixtures and machinery etcetera. The complainant immediately informed the Insurance Company as well as the bank and also moved application to the competent authorities. The complainant got the loss assessed from S. Sourabh & Associates, Chartered Engineers, Architects and Government approved Valuers, who submitted report dated 26^th March, 2014 assessing loss of Rs.91,28,600/- with plinth and without plinth at Rs.77,59,310/-. The surveyor appointed by the Insurance Company assessed the loss only at Rs.13,15,978/-, vide report dated 25^th July, 2014. Thus, the complainant challenged the report of surveyor and sought compensation.

3.                The Opposite Parties No.1 and 2 filed written version inter alia pleading that the complainant was not a consumer as the poultry farm was being run for commercial purpose. It was stated that the loss was assessed by the surveyor at Rs.13,15,978/-. The opposite parties had sent the Discharge Voucher, which the complainant did not sign; consequently the amount was not paid. The complainant having set up the poultry farm, raised loan from the bank and it being insured, was not denied. It was further stated that loss was assessed by an independent surveyor.

4.                The Opposite Party No.3 – Punjab National Bank in its reply stated that the complainant had raised loan from the bank and denied any deficiency in service on its part.

5.                The complainant examined CW-1 Sushil Kumar-Revenue Patwari, CW-2 Sri Bhagwan-Sadar Kanungo, CW-3 Sourabh Singal-Chartered Accountant, CW-4 Anil Dhall-Senior Manager, PNB and complainant himself appeared as CW-5.

6.                The Insurance Company-Opposite Parties No.1 and 2, examined Ashok Baroka-Assistant Manager as OPW-1; Samir Aggarwal-Surveyor as OPW-2 and Kuljeet Singh-District Manager, appeared as OPW-3 on behalf of Punjab National Bank.  

7.                Counsel for the parties have been heard. File perused.

8.                The complainant having set up the poultry farm is not disputed. It is also not disputed that the complainant had already raised two sheds and third shed was under construction. There was storm in the area and caused loss to shed No.2 is also not disputed. Besides Sushil Kumar-Revenue Patwari, deposed that the complainant had moved an application (Exhibit C-2) before Tehsildar, Ganaur and on receipt of order (Exhibit C-2/1) he prepared the report Exhibit C-3 regarding loss.

9.                CW-2 Sri Bhagwan-Sadar Kanungo, deposed that on the application Exhibit C-4 by claimant, he submitted report Exhibit C-5 about storm followed by heavy rain and damage to the shed because of storm.

10.              CW-3 Sourabh Singal-Chartered Accountant, prepared the estimate for the construction of shed at Rs.35,15,250/- and proved report Exhibit C-6.

11.              The evidence of CW-4 Anil Dhall-Senior Manager, PNB, is regarding advancement of loan of Rs.96.00 lacs as term loan and Rs.27.00 lacs C.C. Limit to the complainant besides that the bank had got the poultry farm insured for Rs.1.10 crore.

12.              The complainant himself appeared as CW-4 and stated that the poultry farm was insured and loan of Rs.96.00 lacs as term loan and Rs.27.00 lacs as C.C. Limit raised from PNB. Shed No.2 of the poultry farm was damaged due to storm, the area of which was 16500 Square Feet. Sourabh Singal, C.A. assessed the loss to shed at Rs.35,15,250/- vide report Exhibit C-6.

13.              OPW-1-Ashok Baroka, Assistant Manager of the Insurance Company deposed that on intimation regarding loss being received, the surveyor was appointed who assessed loss at Rs.13,15,978/- i.e. Rs.12,34,240/- to the building and Rs.1,15,000/- to the fixtures and fittings. Thus, the total loss was of Rs.13,85,240/- and after deducting 5%, the net loss was of Rs.13,15,978/-.

14.              Samir Aggarwal-Surveyor while appearing as OPW-2, deposed that he was associated with B.S. Chawla and Company, Surveyor and Loss Assessor and that they inspected the shed and also took photographs. He proved report Exhibit OP-69 and photographs Exhibit OP-70 to Exhibit OP-183.

15.              OPW-3 Kuljeet Singh, District Manager, PNB, deposed that cost of the total construction was  Rs.1,30,00,000/- for two sheds and that only one shed was damaged. on being cross-examined he stated that the loss was stated by him to be more than Rs.50.00 lacs on account of expenses incurred by the complainant for construction and that a sum of Rs.90.00 lacs was advanced to the complainant during the course of construction. He also deposed that the salvage could not be used because the construction was scientifically made.

16.              The question is only to what extent there was loss to the building, furniture, fixtures and machinery of the complainant and to what amount of compensation complainant is entitled to.

17.              CW-3-Sourabh Singal, C.A. submitted report Exhibit C-6. According to him, the cost of re-construction of damaged shed was Rs.35,15,250/-. Nothing substantial was put to him during the cross-examination except suggesting that the complainant was required to get loss assessed from the Insurance Company. The Insurance Company-Opposite Party examined Samir Aggarwal-OPW-2, who stated that he remained associated with B.S. Chawla, during inspection of the poultry shed. This witness has stated about taking the photographs. A perusal of the photographs (Exhibits OP-70 to OP-183) is sufficient to show that one of the shed was completely damaged. The perusal of photographs clicked by the surveyor appointed by the Insurance Company-opposite party and placed on file, is sufficient to ignore the report of surveyor. Surveyor does not say how the report of C.A. Sourabh Singal, is wrong. In addition to the cost of re-construction as assessed by CW-3 Sourabh Singal, C.A., the complainant has also placed on the file bills/tax invoices mark A and B, for providing the fittings and fixtures while setting up of the shed. Mark-A of Rs. 4,47,523/-, Mark-B of Rs.17,80,830/- the total of which comes to Rs.22,28,353/-. These items are tax paid. Therefore, their genuineness cannot be disputed. By adding this amount to the cost of reconstruction as estimated by Sourabh Singal, C.A. vide report Exhibit C-6, total amount to which claimant is entitled to works out to Rs.57,43,603/- which figure is rounded to Rs.57,44,000/-, which this Commission considers sufficient to settle the claim of the complainant.  

18.              Coming now to the question as to whether the complainant can be granted compensation beyond the report of the surveyor. Although assessment of loss by the approved surveyor is a pre-requisite for payment or settlement of claim but surveyor’s report is not the last and final word. It is not that sacrosanct that it cannot be departed from; it is not conclusive. The approved surveyor’s report may be basis or foundation for settlement of a claim by the insurer in respect of the loss suffered by the insured but surely such report is neither binding upon the insurer nor insured. Support to this view can be had from the judgment rendered by Hon’ble Supreme Court in Civil Appeal No.3253 of 202, New India Assurance Company Limited versus Pradeep Kumar, decided on 9^th April, 2009. 

19.              In view of this, it is held that the complainant is entitled to the amount of Rs.57,44,000/- alongwith interest @ 9% per annum which shall start after three months from the date of occurrence, that is, 11^th June, 2014 as the occurrence took place on 11^th March, 2014, till the date of its realization. The entire amount be paid by the Opposite Parties No.1 and 2-Insurance Company, within a period of 45 days, from the date of receipt of the order.             

 

Announced 22.08.2016

(Diwan Singh Chauhan) Member

(B.M. Bedi) Judicial Member

(Nawab Singh) President

CL