DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,

BATHINDA (PUNJAB)

CC No. 314 of 15-07-2010

Decided on : 18-11-2010

Gurdeep Singh aged about 37 years S/o Sh. Karamjit Singh R/o Village Bhokhra, District Bathinda.

.... Complainant

Versus

1. United India Insurance Company Limited, 7-A, Civil Lines, G.T. Road, Bathinda, through its Manager.

2. United India Insurance Company Limited, Regd. & Head Office 24 Whites Road, Chennai through its General Manager

   ..... Opposite parties

Complaint under Section 12 of the Consumer Protection

Act, 1986.

 

QUORUM

Ms. Vikramjit Kaur Soni, President

Dr. Phulinder Preet, Member

Sh. Amarjeet Paul, Member

For the Complainant : Sh. Navdeep Singh Jeeda, counsel for the complainant.

For the Opposite parties : Sh. M.L. Bansal, counsel for the

opposite parties.

O R D E R

VIKRAMJIT KAUR SONI, PRESIDENT

1. The complainant has filed this complaint under Section 12 of the Consumer Protection Act, 1986 (here-in-after referred to as 'Act'). The complainant is owner of one cattle shed which was insured by the opposite parties vide Standard Fire and Special Perils Policy No.200401/11/08/11/000000795 against risk of cattle shed, cattle feed, milk machine etc., as well as cattle was insured vide Cattle Insurance Policy No. 200401/47/08/01/0000079 for the period of 00.00 hrs of 25-10-2008 to midnight of 24-10-2009. The complainant has been running dairy farm for self-employment. As per terms and conditions of the Insurance policy, the Insurance company would be liable to any loss covered by standard fire and special perils Insurance policy (material damage) and any loss caused to insured property i.e. cattle shed, cattle, milk machine and cattle feed. The insured cattle shed was damaged and totally demolished due to storm/cyclone on 30-06-2009. The complainant approached the Insurance company for the claim but the opposite parties asked the complainant to get prepared an estimate of loss suffered from an Architect and present the report to the Insurance company so that the claim could be released. The complainant approached Dhaliwal Architects to survey and prepare the assessment report of the loss suffered as well as amount for reconstruction of the cattle shed on the same place where earlier cattle shed existed. One Gurjant Singh Dhaliwal on behalf of Dhaliwal Architects prepared an estimated loss to the tune of Rs. 4,56,150/- suffered by the complainant due to storm/cyclone and the cost of reconstruction of the demolished cattle shed on place of existing demolished shed which was insured with the opposite parties to the tune of Rs. 6,29,220/-. The Insurance company has paid to the complainant a sum of Rs. 1,80,330/- only out of assessed amount as a claim of the damage of the cattle shed and the cattle. The complainant alleged that he is entitled for the claim of Rs. 4,56,150/-to be paid by the opposite parties as compensation for demolished cattle shed and loss of cattle. The opposite parties have paid partial amount of Rs. 1,80,330/- out of the assessed amount of Rs. 6,29,220/- and the remaining amount of Rs. 4,48,890/- is due towards the opposite parties. The complainant has also sent legal notice to the opposite parties which has been replied by them on 7-5-2010. The opposite parties in para No. 2 of reply to legal notice has stated that complainant himself has executed a consent letter to receive the assessed loss as per full and final payment on account of loss suffered, which is totally baseless and false as the complainant has never executed any consent letter on account of full amount of loss suffered by him. Rather the opposite parties have obtained the signatures of the complainant on some blank papers stating it as the formality for realisation of the insured amount. Hence, the complainant has filed this complaint.

2. The opposite parties have submitted in their joint written statement that complainant has concealed the fact that he has accepted the loss assessed by the surveyor as genuine. The complainant executed a consent letter to receive the assessed loss as full and final and has taken support of law laid down in 2008(2) CLT 299 (SC), AIR 1999 3027 (SC) and 2007(3) CLT 479 (NC). Now the complainant has estopped from raising any objections at this stage after getting the payment in full and final settlement as assessed by the surveyor who submitted his report after visiting the site. The opposite parties have further pleaded that the complainant is running dairy for earning huge profits and the Insurance policy was obtained for commercial unit as such, dispute in hand does not fall within the ambit of Consumer Protection Act, 1986. After receiving the intimation regarding the incident, loss occurred to the cattle shed/insured property, the opposite parties deputed Er. Rakesh Kumar Gupta, Surveyor & Loss Assessor to assess the loss, who vide report dated 3-10-2009 assessed the loss to the tune of Rs. 1,80,495/-. Thereafter the complainant himself executed a consent letter to receive Rs. 1,80,495/- as full and final payment of the claim on account of loss suffered by him. Accordingly, the payment of Rs. 1,80,495/- was made to the complainant. The amount of loss as assessed by surveyor and as consented by the complainant himself has already been to the complainant and as such, now the complainant is not entitled for any more amount. The opposite parties have pleaded that they have not obtained signatures of the complainant on any blank papers.

3. The parties have led evidence in support of their respective pleadings.

4. We have heard the arguments at length and have gone through the record and perused written submissions submitted by the parties.

5. The opposite parties have raised the legal objection that the complainant is earning huge profit from the dairy farming This objection of the opposite parties is not tenable as they have not produced any evidence on file to prove their this version. Hence, this Forum is of the view that complainant is running dairy farm for self-employment. Thus, he is consumer to the opposite party.

6. The complainant had purchased a Standard Fire and Special Perils Policy No. 200401/11/08/11/000000795 Ex. C-1 covering the risk of Building to the extent of Rs. 6,70,000/- and stocks for a sum of Rs. 9,00,000/- for the period from 00.00 hrs of 25-10-2008 to midnight of 24-10-2009. The cattle were also got insured by the complainant for a sum of Rs. 17,60,000/- vide Cattle Insurance policy No. 200401/47/08/01/00000079 Ex. C-2 from 00.00 hrs of 25-10-2008 to midnight of 24-10-2009. The dairy was being run by the complainant for self-employment. Due to heavy storm/cyclone on 30-06-2009 due to which he suffered a huge loss of his cattle as well as insured property. The complainant got prepared as estimate from an Architect Gurjant Singh of Dhaliwal Architects who has estimated the loss suffered by the complainant to the tune of Rs. 4,56,150/- for the reconstruction of demolished cattle shed on place of existing demolished cattle shed. The Insurance company has paid to the complainant a sum of Rs. 1,80,330/- only as the claim of damaged cattle shed whereas he was entitled for the claim of Rs. 4,56,150/-. The opposite parties have submitted that they have paid Rs. 1,80,330/- to the complainant as assessed by their surveyor and the complainant has received this amount as full and final claim.

7. According to clause VI of Standard Fire & Special perils Insurance policy (meterial damage) Ex. C-1 :-

   “VI. Storm, Cyclone, Typhoon, Tempest, Hurricane, Tornado, Flood and Inundation : Loss destruction or damage directly caused by Storm, Cyclone, Typhoon, Tempest, Hurricane Tornado, Flood or Inundation excluding those resulting from earthquake, Volcanic eruption or other convulsions of nature. (Wherever earthquake cover is given as an “add on cover” the words “excluding those resulting from earthquake volcanic eruption or other convulsions of nature” shall stand deleted.”

   The complainant got prepared estimate Ex. C-3 from Gurjant Singh Dhaliwal of Dhaliwal Architects who has estimated the loss suffered by the complainant to the tune of Rs. 4,56,150/- and the cost of construction of new shed on place of demolished shed to the tune of Rs. 6,29,220/-. The opposite parties deputed Er. Rakesh Kumar Gupta, Surveyor & Loss Assessor who has submitted his surveyor report Ex. C-4 dated 03-10-2009 assessing the loss to the tune of Rs. 1,80,495/-. The said surveyor in his report Ex. R-4 at page No. 2 has mentioned :

   “The sum insured is adequate and hence no average clause will apply in the claim”

   Er. Rakesh Kumar Gupta has given details of each and every item with quantity and rate etc., and estimated the loss to the tune of Rs. 4,76,360/- whereas he has assessed the loss to the tune of Rs. 1,90,495/-. A perusal of his surveyor report reveals that insured has suffered huge loss as cattle shed of the complainant totally demolished and one cow died and three injured by falling of shed on them. The said surveyor has not given any cogent and convincing reason for reducing the loss to such an extent. He has not placed any document on file to show that from where he has ascertained this price of the material meaning thereby that he has not placed on file in evidence the rate list of the material mentioned in his surveyor report. The support can be sought by the law laid down by the Hon'ble Supreme Court in Civil Appeal No. 3252/2007 decided on 09-04-2009 titled New India Assurance Co. Ltd. Vs. Pardeep Kumar wherein it has been held that surveyor must give sound and cogent reason for not accepting the claim of the claimant. Further support can be sought by the precedent laid down by the Hon'ble National Commission in the case titled K L Malhotra Vs. Oriental Insurance Co. Ltd., 2003(1) CPJ 107 (NC) wherein it has been held : - “Consumer Protection Act, 1986 – Section 21(b) – Revision – Insurance _ Accident – Loss assessed by authorised agent of manufacturer awarded by Forum – Amount reduced by State Commission without any justification – Order set aside – Order of Forum restored.” . The reliance can also be put on the precedent laid down by the Hon'ble National Commission in case titled Oriental Insurance Co. Ltd., Vs. Mehar Chand 2009(IV) CPJ 230 (NC) wherein it has been held :- “... Estimated cost of repairs given by authorised garage, not accepted by Surveyor – Contention, authaorised garages normally give inflated estimate, not acceptable – Surveyor required to give sound and cogent reasons for disallowing estimated claim – No reasons given by Surveyor disallowing estimated claim given by authorised garage....”

   When the surveyor of the opposite parties himself has estimated the loss to the tune of Rs. 4,76,320/- how he arrived at the figure of Rs. 2,34,700/- as per page 3 of Ex. R-4, is not understandable. The surveyor was deputed by the opposite parties and he has to follow the instructions given by the Insurance company. Thus, the complainant is entitled to the amount as per estimate of the surveyor i.e. Rs. 4,76,360/- minus depreciation, excess clause and salvage value, on account of his demolished shed. However, as far as the consent letter given by the complainant for an amount of Rs. 1,80,495/- is concerned, a perusal of this consent letter which is attached with the survey report of Er. Rakesh Kumar Gupta Ex. R-4 reveals that this letter is without any date, hence it cannot be said that it was submitted by the complainant at the time of receiving the claim as the complainant has alleged in his complaint that opposite parties have obtained his signatures on some blank papers. This consent letter might have been got signed by the opposite parties when it was blank i.e. prior to giving the claim. Moreover, the complainant had suffered huge loss and if he has executed the consent letter that must have been executed by him under coercion. The support can be sought from the law laid down by the Hon'ble National Commission, New Delhi, in the case titled 2008(1) CPJ 267 (NC) wherein it has been held :-

   “Consumer Protection Act, 1986 – Section 21- Insurance – Full and Final settlement of claim – Concept of coercive bargaining – Discharge voucher signed under compulsion – wrong practice followed by Insurance Company in not paying single pie without having discharge voucher – Mere execution of discharge voucher and acceptance of insurance claim, not estop insured from making further claim”

8. The complainant had purchased separate Insurance for cattle. He has not produced any document on the file to show that he has also filed the claim with the opposite parties regarding cattle. Er Rakesh Kumar Gupta has assessed the loss vide Ex. R-4 for the cattle shed under policy No. 200401/11/08/11/00000795. Thus, the complainant may file his claim with the opposite parties for cattle separately under policy No.200401/47/08/01/00000079, if not filed so far.

9. Keeping in view the facts, circumstances and the evidence produced on file by the parties, this Forum is of the view that there is deficiency in service on the part of the opposite parties. Hence this complaint is accepted with Rs. 10,000/- as cost and compensation for mental harassment. The opposite parties have already paid an amount of Rs. 1,80,495/- after deducting Rs. 9000/- on account of salvage, Rs. 10,000/- on account of excess clause and depreciation @15% from the loss assessed by the surveyor. Thus, the opposite parties are directed to pay jointly and severally an amount of Rs. 2,51,485/- ( Rs 2,95,865/- minus depreciation @15% as per policy terms and conditions i.e. Rs. 44,380/- = Rs. 2,51,485/-) to the complainant balance claim amount on account of loss suffered by him for his cattle shed.

   The compliance of this order be made within 30 days from the date of receipt of copy of this order and in case of non-compliance of the order within the stipulated period, the complainant shall be entitled for interest @9% P.A. on the amount of Rs. 2,51,485/- till realisation.

10. A copy of this order be sent to the parties concerned free of cost and the file be consigned to record.

Pronounced

18-11-2010

(Vikramjit Kaur Soni)

President

(Dr. Phulinder Preet)

Member

(Amarjeet Paul) Member