Date of filing: 13.07.2016 Date of disposal: 01.04.2019
Complainant: BHOROSHA RICE MILL PVT. LTD., Village & Post Office: Paraj, Police Station: Galshi, District: Burdwan, represented by its Director, Mohobubal Haque.
- V E R S U S -
Opposite Party: 1. United India Insurance Company Ltd., having its office at 24, Whites Road, Chennai – 600 014, represented by its Chairman.
2. Divisional Manager, United India Insurance Company Ltd., Palika Bazar, Rudco, 3rd Floor, G. T. Road, Burdwan, PIN – 713 101.
Present:
Hon’ble President: Smt. Jayanti Maitra (Ray).
Hon’ble Member: Smt. Nivedita Ghosh.
Hon’ble Member: Dr. Tapan Kumar Tripathy.
Appeared for the Complainant: Ld. Advocate, Subrata Ghosh, Rumania Bagchi Ghosh & Debdas Rudra.
Appeared for the Opposite Party Nos. 1 &2: Ld. Advocate, Ahi Bhushan De.
J U D G E M E N T
The brief fact of the case of the complainant is that as an owner of the rice mill, namely, “Bhoraosha Rice Mill Pvt. Ltd.” was insured under standard Fire and Special Perils Policy bearing No. 031600/11/20/11/00000287 for the period from 14.08 hrs of 11.08.2010 to midnight of 10.08.2011 for the amount of total sum of Rs. 2,00,96,000=00 (Rs. 72,00,000=00 for building and Rs. 1,28,96,000=00 for plant & machinery) issued by the Ops. Due to ‘Kal-Baishaki’ storm on 03.05.2011, the said mill suffered severe damages. The roof shed of paddy godown and paddy cleaning shed was totally blown away and bore cyclones full wrath the wall and pillar of the machine room were severely damaged, the boiler pipe line was broken down by the storm. As a result the rice mill suffered loss approximately to the tune of Rs. 14, 00,000=00. The scale of damage suffered was duly intimated to the O.C., Galshi P.S., Paraj Gran Panchayat, B.D.O., Galshi-1 on 04.05.2011 as well as to the OP-1 on 05.05.2011. The complainant lodged claim before the OP-1 vide letter dt. 05.05.2011 to the tune of Rs. 14, 00,000=00 to indemnify the loss suffered due to storm on 03.05.2011. Then, the OP kept mum for a period of about one year and did not take any steps to settle the claim. Thereafter, vide letter dated 16.04.2012 and 13.05.2012 complainant requested the OP-1 as well as IRDA to inform about the status of the claim as well as settle the claim.
Thereafter, from the letter dated 19.06.2012 issued by the OP-1 to the M/s. S. N. Associates, Surveyor & Loss Assessor, came to learn that the M/s. S. N. Associates, Surveyor & Loss Assessor appointed to assess the loss of the complainant and the said Surveyor has submitted his report bearing No. SN/2014/12-13, dt. 12.04.2012. From the letter dt. 19.06.2012 complainant came to learn that Surveyor did not submit copy of G.D. & copy of letter issued by the Pradhan of Paraj Gram Panchayat along with his report. The complainant thereafter submitted the copy of G.D. and copy of letter issued by the Pradhan of Paraj G.P. before the OP-1 along with a letter dt. 28.06.2012 and asked the OP-1 to settle the claim without any delay.
Surprisingly the OP-1 vide letter No. 031600/Claim/0288/2012, dt. 09.08.2012 informed the complainant that the Competent Authority of the Divisional Office of the OP has settled the claim of the complainant amounting to Rs. 84,029=00 in full and final. After receiving the said letter complainant became astonished and vide letter dt. 18.07.2012 complainant asked for details of assessment and details of calculation on the basis of which the OP calculated the loss to the tune of Rs. 84,029=00 only instead of Rs. 14, 00,000=00. After receiving the letter, the OP vide letter dt. 19.07.2012 informed the complainant that the Survey Report, the copy of which has not yet been given to the complainant of M/s. S. N. Associates, Surveyor & Loss Assessor have clearly mentioned “whereas the sum insured is of Rs. 10, 00,000=00, the under insured clause will be applicable and after application of the average clause”, the loss has been settled to that amount. The complainant was not satisfied with the logic behind the assessment of the claim of the complainant to the tune of Rs. 84,029=00 instead of Rs. 14, 00,000=00. Consequently, complainant did not receive Rs. 84,029=00 as full and final settlement of the claim. Thereafter, the OP vide letter dt. 21.08.2012 informed the complainant that if they do not receive any amount from the complainant within 10 days from the date of receipt of the letter, they have no other option but the claim file will be closed.
The complainant after receiving the letter dt. 21.08.2012 categorically informed the Ops that the reply of the letter dt. 18.07.2012 of the complainant was not satisfactory and vide letter dated 03.10.2012 informed the OP-1 that the complainant totally disagree with the assessment of the OP. The ground on the basis of which the Ops had settled the claim of the complainant initially to the tune of Rs. 84,029=00 instead of Rs. 14,00,000=00 was arbitrary, illegal and not tenable in the eye of law. Ultimately the complainant filed a complaint against the OP before this Ld. Forum being C.C. No. 196/2012 and the ld. Forum was pleased to pass order dated 15.07.2014 thereby stating that it is very difficult for the ld. Forum to ask the OP to pay Rs. 14, 00,000=00 since there is no assessment of loss submitted by the complainant before the Surveyor and the Surveyor also not acted properly i.e. damage not determined according to the description of the insured properly situated at the Rice Mill. So the complainant will first reassess the same within 15 days from the date of this order by his own surveyor-cum-Valuer regarding the entire loss category wise and thereafter the same will be submitted within three days to the Ops and Ops will also sent his Surveyor other than M.s. S. N. Associate to assess the actual loss on the basis of the report of the complainant as well as physical verification, if possible, both parties are at liberty to request the local Anchal Pradhan and the B.D.O. or his representative to be present at that time of assessment of actual loss of complainant’s Rice Mill.
Thereafter assessment was done by Valuer Atanu Chattopadhyay and for the repairing of the damaged portion of the Paddy Godown of the Mill along with assessment of damaged paddy 8,000 packets as per certificate of the concerned BDO along with interest. Thereafter the complainant submitted the claim before the Ops through his ld. Lawyer vide letter dt. 19.-09.2014 requesting the Ops to settle the claim as expeditiously as possible. After receiving the letter the Ops sent a reply to the complainant dt. 22.09.2014 requesting to send a true copy of the said survey cum Valuer report so that the Ops can appoint their surveyor as per order of ld. Forum. The complainant forwarded the copies of the report prepared by the surveyor-cum-Valuer as per requirement of the Ops through his ld. Advocate on 22.09.2014 along with Xerox copies of the certificate issued by Pradhan of Paraj G.P., certificate issued by B.D.O., Galsi, Xerox copy of newspaper report and also the Xerox copy of certificate issued by O.C., Galsi P.S.
Thereafter, the complainant filed an Execution Case being No. 41/2015 against the judgement dated 15.07.2014 passed by this Forum in c.c. No. 196/2012. During pendency of the E.A. the Ops vide letter dated 10.07.2015 through their ld. Advocate informed the ld. Advocate of the complainant that one Mr. G. C. Shaw was appointed as Surveyor by the Ops for reassessment of loss and the Surveyor has assessed the loss up to the extent of Rs. 1, 76,400=00 and also requested the ld. Advocate of complainant to settle the dispute on the basis of the reassessment of at the Rs. 1, 76,429=00.
In the meantime after receiving the notice of E.A. the Ops appeared before this ld. Forum and filed written objection stating that the instant Application is not maintainable as the Ops had complied the order/judgement of this forum by appointing one Surveyor And Loss Assessor Mr. G. C. Shaw who after physical verification assessed the loss to the extent of Rs. 1, 76,429=00 and prayer is made for dismissal or rejection of the Execution Application.
The complainant filed a written statement against the said written objection filed by the Ops challenging the Survey Report prepared by the surveyor Mr. G. C. Shaw stating that the Surveyor prepared the report on the basis of assumption and presumption and surmises and conjunctures. The loss suffered by the complainant due to storm could not evident from the report of Mr. Shaw because by the passage of time the complainant has been compelled to repair and renovate the damages for smooth functioning of the Rice Mill. Moreover, the complainant also stated that he is not at all agreeing and satisfied with report filed by the Surveyor. Consequently, the complainant has expressed vehement objection against the report of the Surveyor categorically informed that the complainant will not settle the claim on the basis of the said report dated 08.07.2015 filed by the Surveyor & Loss Assessor Mr. G. C. Shaw. That the Ops did not comply the judgement of this Forum in to to because the Surveyor visited the site alone and has not requested/asked for the presence of Anchal Pradhan, B.D.O. to sort out the dispute and to ascertain the actual loss and Mr. Shaw assessed the loss arbitrarily.
After hearing from both sides, the ld. Forum was pleased to pass an order on 16.11.2015 thereby stating that on scrutiny of the final order in execution, the ld. Forum is of the opinion that there is no executing part in this final order and so the E.A. filed by the complainant is not at all maintainable and hence ordered that the Execution Application is rejected without any cost.
Finding no other alternative the complainant has filed this case challenging the reassessment of the loss of the complainant to the tune of Rs. 1, 76,429=00 by the Ops on the basis of the survey report filed by the Surveyor Mr. Shaw. Being aggrieved and dissatisfied with the conduct of the Ops in settling the claim of the complainant as well as due to deficiency in service and unfair trade practice on the part of the Ops, the complainant has suffered great mental pain, agony and harassment. So the complainant is entitle to get Rs. 8, 94,000=00 as per assessment of the Valuer Atanu Chattopadhyay towards repairing the damaged portion of the paddy godown of Bhorosha Rice Mill Pvt. Ltd, Rs. 5, 06,000=00 towards damaged paddy of 8000 packets as per certificate of the concerned B.D.O. The complainant is also prays for Rs. 5, 50,000=00 as compensation towards mental pain, agony and harassment and Rs. 25,000=00 as litigation cost.
This complaint has been contested by the Ops by filing written version denying all the material allegations made by the complainant in the complaint. The case of the Ops is that the Bhorosha Rice Mill lodged a storm damage claim under Standard Fire and Special Perils Policy and the said Rice Mill suffered a loss out of storm damage on 03.5.2011 as alleged which covers the period of insurance. During inception of the said Fire Policy, the complainant-insured had proposed for insurance of building, plant and machinery and boiler and the said Rice Mill, but the said complainant did not propose for insurance of contents and accordingly the premium was charged and policy was issued covering building, plant and machinery and boiler. On receipt of claim intimation these Ops appointed IRDA approved surveyor M/s. S. N. Associates, who after physical verification of the loss, assessed the loss for an amount of Rs. 84,081=00 as per policy condition No. 10. Since the complainant was not satisfied with the assessment of the Surveyor, he filed C.C. No. 196/2012 before this Ld. Forum and after hearing both sides, this Forum ordered the complainant to reassess the loss by his own Surveyor-cum-Valuer within 15 days from the date of order dated 15.07.2014and to send the report within 3 (three) days to this OP and the OP will send the Survey report to the Surveyor appointed by the OP, other than the Surveyor M/s. S. N. & Associates for survey on the basis of the report of the complainant as well as physical verification.
These Ops further stated that the complainant’s own Surveyor-cum-Valuer Mr. Atanu Chattopadhyay had not reassessed the loss within 15 days and not submitted the said report to these Ops within 3 days as per order of this Ld. Forum. Thereafter, these Ops to comply the order appointed another IRDA Surveyor Mr. G. C. Sahu, who finally assessed the loss for an amount of Rs. 1,76,429=00 after deducting under Insurance Clause by 67.50% for the paddy shed, which was insured for Rs. 10 lacks against its market value of Rs. 30.75 lakhs. The Insurance Company’s Surveyors did not consider paddy stock which was not covered by the policy issued to the insured and the policy was issued covering building, plant and machinery and boiler as evident from the proposal form duly signed by the insured at the time of inception of the policy in question. The Surveyor-cum-Valuer Mr. Atanu Chattopadhyay appointed by the Insured also did not mention and assess the stock of paddy for obvious reasons; as such these Ops have no liability for the alleged damage of 8000 packets of paddy as claimed by the complainant. The Ops submit that the assessment made by the Surveyor Mr. G. C. Sahu was very much correct and based on the physical findings.
The Ops also stated that the complainant has submitted the Assessment of Loss/his Re-Assessment Claim through its Advocate on 19.09.2014, i.e. more than 1 ½ months later than the date fixed by the Forum. Therefore, the Ops were not in a position to appoint his surveyor on the basis of the said report of the complainant as well as physical verification. The complainant or its Advocate did not submit, along with his aforesaid letter dated 19.09.2014, the report of the Surveyor of the complainant, who reassessed the loss. As such these Ops requested the Advocate of the complainant through letter dated 22.09.2014 to submit a true copy of the Surveyor-cum-Valuer, Mr. Atanu Chattopadhyay, so that the Ops can appoint his Surveyor. In response the ld. Advocate of the complainant send a letter along with Surveyor-cum-Valuer report of the surveyor Mr. Chattopadhyay without mentioning any date of the said survey report along with certificates issued by Pradhan, Paraj Gram Panchayat, Burdwan dated 04.05.2011, Block Development Officer, Galsi-I Development Block, Burdwan without mentioning any date, the copy of the report published in newspaper as well as copy of the information lodged before the O.C. of Galsi Police Station dated 04.5.2011. The Ops further stated that the said certificates were not produced at the time of reassessment of the loss of the complainant’s alleged Surveyor Mr. Chattopadhyay and thus the said certificates are not at all acceptable for reassessment of the said loss, as assessed by the said Surveyor Mr. Chattopadhyay.
Thereafter, these Ops appointed Mr. G. C. Sahu, Surveyor-cum-Loss Assessor on 28.10.2014 ti assess the actual loss on the basis of the said report of the complainant ad the Surveyor Mr. Sahu submitted his report dated 08.07.2015, which has been received by these Ops on 09.07.2015. Thereafter, these Ops sent a photocopy of the report of Surveyor Mr. Sahu to the Advocate of the complainant through the Advocate of Ops along with a letter dated 10.07.2015 with a request to settle the dispute and/or claim on the basis of reassessment of loss or damage worked out at Rs. 1, 76,429=00 by the surveyor Mr. Sahu and as such there was no laches or negligence and deficiency in service on the part of these Ops with regard to compliance of the Judgement/Order and direction dated 15.7.2014 passed in C. C. No. 196.2012 by this ld. Forum.
These Ops further submitted that on self-same cause of action the complainant filed the aforesaid C. C. No. 196/2015, which has been disposed of on 15.07.2014 and Execution Application No. 41/2015 also filed on 17.06.2015, which has been disposed of on 16.11.2015 by this Forum, but the complainant did not file any Appeal or Revision Application against the said Judgement/Order dated 15.07.2014 & 16.11.2015 respectively and thus on self-same cause of action, the instant C. C. No. 118/2016 is not at all maintainable according to law and thus the instant case is liable to be summarily dismissed or rejected imposing cost of Rs. 10,000=00 upon the complainant as per provision of Section 26 of the C. P. Act, 1986.
Points to be determined:-
- Whether there is any deficiency in service and unfair trade practice on the part of the Ops in settling his insurance claim at a lower price?
- Whether the complainant is entitled to get reliefs as sought for in his petition of complaint?
-: Decision with reasons:-
Both the above points are taken up together for discussion for the sake of convenience.
To prove this case complainant has filed evidence on affidavit on 09.01.2018. OP- Insurance Company prays for considering his written version supported by affidavit as his evidence. We have already stated that the incident of accident took place on 03.05.2011, intimation was given to the Insurance Company and others on 05.05.2011 and claim of about RS, 14, 00,000=00 for damages following the incident was sent by the complainant to the Insurance Company/OP. Following the claim Surveyor S.N. Associates surveyed the mill to assess the damage and prepared a report dated 12.04.2012. In the said report the claim was asked to be settled at Rs. 84,029=00 only. We have already stated in our foregoing discussion that following the claim, the earlier Consumer Complaint being No. 196/2012 was filed but in that case this Forum could not come to a decision regarding settlement of dispute over the claim for damage and also discarded the report of the Surveyor. There was specific direction to reassess the damages, first by complainant thereafter by Assessor/Surveyor from OP-Insurance Company to settle the claim. Following the Order/Judgement in C.C. No. 196/2012 complainant’s Surveyor Atanu Chatterjee surveyed the mill but it goes to show in the said report that the Surveyor Atanu Chatterjee gave a detailed estimate for the repairing works of the damaged portion of paddy godown of the mill. The said paddy godown is about 6844 sq. ft. having height of 20ft. He find damages in foundation and plinth and cement concrete was applied to repair the same and cost for such repairing is stated in the report as Rs. 1, 52,923=00.
Ld. Lawyer for OP submits that from the terms and conditions of the insurance policy it is clear that plinth and foundation of the building and stock of paddy are not covered in the policy. Therefore, OP argues that complainant is not entitled to any claim any damages of plinth and foundation of the building and also for stock of paddy.
The report of Surveyor Atanu Chatterjee appointed by the complainant was prepared long after 15 days and not as directed by District Forum, Burdwan in its judgement dated 15.07.2014 in C.C. No. 196/2012 and the report was not sent to the OP within time as directed in the said judgement. Therefore, OP served letter dated 22.09.2014 asking for true copy of the survey report of Mr. Atanu Chatterjee and also copy of report of B.D.O. and Panchayat Pradhan prepared following the incident in the year2011.
The Gram Panchayat of the area Paraj of the mill certified that in that cyclone the roof of the godown, the machine room walls, pipe line of boiler were damaged and substantial amount of paddy was damaged. The report of the B.D.O. over the incident in that godown mentioned that roof shed of godown of the mill and the paddy packets of 26,000 numbers has been damaged due to sudden storm accompanied with rain that recess the area and swift the godown on 03.05.2011 afternoon. This Forum in its judgement dated 15.07.2014 in C. C. No. 196/2012 mentioned the report of B.D.O. that B.D.O. also suggested that the damages should be considerably determined by the authority concerned as per norms. Complainant along with report of second Surveyor Atanu Chatterjee sent the report of the B.D.O. and certificate of G.P. Thereafter in terms of the judgement in C.C. No. 196/2012 Mr. G.C. Shaw was appointed by OP-Insurance Company as Surveyor and Loss Assessor to reassess the damage suffered by the complainant in his mill in the storm on 03.05.2011. Mr. Shaw in his report also gave the policy particulars and details of the complainant that the building, godown, boundary wall, chimney etc. was covered for Rs. 92 lacs and plant and machine for Rs. 1, 28, 96,000=00. That the Vorosha Rice Mill reported suffered damage of their paddy shed, wall and boilers, machine room and paddy in the storm and the claim of Rs. 14 lacs was lodged by the insurer on 05.05.2011. During his visit Mr. Shaw inspected the mill; the situation of different shades, vulnerable areas and damages etc. Among the shades the paddy shade is of big area and of great height which bore the brunt of storm but he found that the damaged shades had already been repaired. He, on the basis of available signs of repairing and the probability of damages, gave his views and assessed the loss, namely, on the “paddy godown”. So also the Surveyor appointed by the complainant, namely, Mr. Atanu Chatterjee surveyed and estimated the repairing works of the damaged portion of “paddy godown” of the mill. Therefore, both the Surveyors found that the paddy godown was damaged, mainly for that incident. Mr. Sahu specifically stated that from the policy particulars it is clear that policy does not cover plinth and foundation of the building and policy does not cover stock of paddy, rice, husk etc. So the damages caused to the plinth and foundation as well as stock of paddy as claimed as the Surveyor stated that the insurer is not payable. Moreover, from the policy papers filed by the parties it is clear that paddy shed was insured in the policy for Rs. 10 lacs against its market value of Rs. 30.75 lacs and that stocked paddy was not at all insured and alleged damage of 8000 packets paddy as claimed is not payable by the Insurance Company.
From the report of Mr. Atanu Chatterjee we find that he gave an estimate of loss suffered of Rs. 8, 76,040=00 including damage caused to the foundation of plinth estimated cost of repairing Rs. 1, 52,923=00. As the policy does not cover the plinth and foundation of the building, therefore, if we debit the amount of Rs. 1, 52,923=00 from the assessment or estimate of Mr. Atanu Chatterjee then it will come to Rs. 7, 23,125=00. In the report of the Insurance Company Surveyor G.C. Shaw he gave an estimate of loss, repairing cost of the paddy godown amounting to Rs. 7, 47,475=00. Therefore, we find that there is no such big difference in both the estimates of total loss of Surveyor Mr. Chatterjee and Mr. Shaw. Complainant put questionnaires to the Surveyor on 20.03.2018 and reply of questionnaires was filed by OP on 20.04.2018. Therefore we heard argument of both sides in full.
Ld. Lawyer for the complainant submits that as the survey report prepared in the C.C. No. 196/2012 was discarded by this Forum, Mr. Shaw who visited the mill for survey on 01.07.2015 about four (4) years after the incident and found that repairing was already effected following the storm in the year 2011 by the complainant. The questions put to the Surveyor by the complainant and answer to such questions given by Mr. Shaw that he had to put reliance on the earlier survey report who actually visited the site immediately after the loss and witness the nature’s fury, fierce devastation. He also answered that the damaged items and area explained to him during his visit was worked out and assessment was made accordingly. But he deposed that the report is on the basis of assumption, presumption, surmises and conjectures.
Ld. Lawyer for the complainant also submits during his argument that actual loss cannot be assessed after four (4) years of such incident of storm when repairing was already undergone and the mill was in working condition after such incident. Therefore, both parties admit that storm of barreled on godown of neighbouring area of the mill. Damage as assessed by the Loss Assessor after inspection of the mill and also witnessing the repairing work and expected repairing cost has been assessed. However, on the magnitude of disaster in that cyclone we do not find any such big difference in the assessment of total loss of Mr. Chatterjee, the Surveyor of the complainant and Mr. Shaw, the Surveyor of Ops which we have already stated above.
Ld. Lawyer for OP-Insurance Company further submits that the assessment of Mr. G. C. Shaw, total damage of Rs. 7, 48,475=00 and thereafter he deducted salvage items of Rs. 1, 00,000=00 and 10% depreciation it comes to Rs. 5, 73,628=00. Since the depreciated cost of paddy godown shed is Rs. 30.75 lacs inspite of sum insured of Rs. 10,00,000=00, so less under insurance 67.50% present and also less policy excess Rs. 10,000=00 and net loss amount he estimated at Rs. 1,76,429=00 to settle the claim of the complainant.
Ld. Lawyer for the complainant objected to such assessment wherein he claimed as per the report of Mr. Atanu Chatterjee he filed this case praying for Rs. 8,94,000=00 as assessment of loss by the Valuer Mr. Chatterjee and for loss of paddy Rs. 5,06,000=00 and for harassment and litigation cost of Rs. 25,000=00.
We have already stated that the paddy stocks of 8000 packets are not insured and he is not entitled to any such damage. On the assessment of loss of the paddy godown which was insured under the policy for Rs. 10 lacs as its actual cost of Rs. 30.75 lacs. Ld. Lawyer for Complainant filed reference of Hon’ble Apex Court in Civil Appeal No. 3167 of 2017 wherein Hon’ble Apex Court found that ‘claim should be allowed by applying the principle of averaging out, i.e. the insured is paid an amount proportionate to the extent of insurance as compared to the actual value of the goods insured’. Since the actual cost of godown is Rs. 30.75 lacs and insurance coverage is of Rs. 10 lacs, therefore, complainant is entitled to proportionate claim, deducting the 67.5% of the total damage as assessed by the Surveyor.
Ld. Lawyer for the OP further argued on the point of lack of pecuniary jurisdiction since the insurance coverage is for Rs. 2, 96, 00,000=00 of plinth, machine and building. To that extent ld. Lawyer for the complainant argued that the complainant is not claiming the total loss of building and machine. He vehemently argues that the loss assessed by both the Surveyors only regarding the “paddy shed” and insurance coverage of Rs. 10, 00,000=00 of such paddy godown is well within the pecuniary jurisdiction of this Forum. In his support he cited the decision of Hon’ble SCDRC of Punjab, Chandigarh in a Consumer Complaint No. 118/2017 wherein Hon’ble SCDRC has opined that Forum has pecuniary jurisdiction to entertain this claim. Since it is a claim over the paddy godown and insurance coverage is Rs. 10, 00,000=00 against actual cost of Rs. 30.75 lacs, therefore this Forum has ample jurisdiction to entertain the complaint.
Moreover no objection was anywhere raised in written version questioning the pecuniary jurisdiction and ld. Lawyer for complainant cited judgement of Hon’ble NCDRC as reported in 2018 (II) CPJ 402 (NC) that the case is filed well within the pecuniary jurisdiction as the claim of the complainant of value of cost and service along with compensation does not crossed Rs. 20 lacs.
Another point of Res Judicata was also raised by the OP is that reassessment of new Assessor which also is challenged by the complainant. OP agrees that the matter was finally adjudicated in the earlier case No. 196/2012. But we find from the said case CC/196/2012 records which is tagged with the present Consumer Complaint that though both the cases are based on the same cause of action but the “Res” has not been finally Adjudicated in that case, rather the judgement was passed only with the direction upon both the parties to reassess the loss by their respective Surveyors and thereafter asking to come to a settlement of claim. Therefore, the Execution Application filed by the complainant in connection with C.C. No. 196/2012 was also disposed of with the finding that “there is no executing part in the order or judgement in C.C. No. 196/2012”. The matter in issue was never finally adjudicated. Therefore, the question to Res Judicata does not arise in this case i.e. C.C. No. 118/2016 since the ‘Res’ has not been finally adjudicated by this Forum. Be it mentioned that no appeal was preferred by any of the parties over the judgement of C.C. No. 196/2012.
Ld. Lawyer for complainant cited the decision of Hon’ble Supreme Court in Civil Appeal No. 3167/2017 decided on 10.01.2018 in support of his claim, that the principle of “averaging out” should be followed in this case i.e. the insured paid an amount proportionate to the extent of insurance as compared to the actual value of the goods insured. Ld. Lawyer submits that following the averaging out principle at least 50% of the claim of damages as reported by the Loss Assessor may be allowed. But in the said Judgement of Hon’ble Apex Court we find the jewellery and valuables were insured and entire jewellery were stolen but the jewellery were insured for Rs. 1, 00,500=00 against this actual value of Rs. 1,84,150=00 and therefore the insurer was entitled to a sum of Rs. 1,00,500=00 under its head. In the instant case the entire paddy godown of the Varosha Rice Mill was not destructed or damaged in that natural calamity but it was severely affected and shades of the godown was seriously damaged and cracks were found in the walls. Therefore, as the godown was not completely destroyed, complainant cannot claim 50% of the assessed amount in this principle of averaging out.
Now after hearing both sides and after going through the reassessment made by both the Assessor of complainant and OP we find that the loss assessment of the Surveyor of the OP of Rs. 7, 18,475=00 is not so unreasonable as both sides agreed that actual loss could not be ascertained after more than four (4) years of the calamity and when the repairing work has already been done by the complainant and mill was in running condition. We have already stated that the Loss Assessor of the complainant also come to such conclusion in his report and estimated the loss in his report of about Rs. 7,23,125=00 (excluding repairing cost for damages of plinth and foundation of building). Therefore, we do not find any abnormal or excess in the assessment of Loss Assessor of OP- G. C. Shaw.
But one thing is not clear to this Forum how he calculated ‘less salvage generated from damaged items i.e. steel purlins, broken GI Sheet etc. as scrap (approximately 5000 kgs. X Rs. 20/-) totaling Rs. 1, 00,000=00. Actually there is no documentary evidence in this regard, therefore in his report the loss of Rs. 1,00,000=00 is something unreasonable and in excess of actual damage s argued by the complainant. Complainant also failed to submit any documents in this regard. In our considered view we find that if the loss of salvage generated from damaged items is estimated at Rs. 50,000=00 instead of Rs. 1, 00,000=00, it will meet ends of justice.
Moreover, loss of depreciation Para of 10% has already calculated of Rs. 74,847=00. Thus the net loss amount as arrived by Surveyor G. C. Shaw Rs. 1, 76,429=00 less under insurance 67.50%, where at Rs. 50,000=00 more be added with this net loss amount i.e. total arrives at Rs. 2, 26,429=00 which we hold that the complainant is entitled to receive from the OP-Insurance Company towards the loss and damage of paddy godown.
Complainant contested this legal battle since 2012 in this Forum and the incident occurred on 03.05.2011. The claim was lodged on 05.05.2011 of Rs. 14, 00,000=00. Therefore, complainant has suffered a considerable mental and financial loss due to non-settlement of the claim; he is entitled to get benefit of insurance policy coverage since he was under the insurance policy when the natural calamity took place on 03.05.2011. Therefore, the complainant is also entitled to get litigation cost. We find that if an amount of Rs. 25,000=00 is awarded to the complainant towards compensation for harassment, mental pain and agony suffered by the complainant for last 4 to 5 years and a litigation cost of Rs. 5,000=00 if allowed, will meet the ends of justice.
Hence, it is
O r d e r e d
that the Consumer Complaint being No. 118/2016 be and the same is allowed on contest with cost against the OP Nos. 1 & 2. The OP Nos. 1 & 2 are directed to pay either jointly or severally Rs. 2, 26,429=00 (Rs. Two lacks twenty six thousand four hundred and twenty nine) only as compensation towards the repairing cost of the damaged portion of the paddy godown along with interest @8% per annum on Rs. 2,26,429=00 from the date of submission of his claim i.e. 05.05.2011 till realization of the entire amount along with interest within 45 (forty five) days from the date of passing of this final order, in default, the entire awarded amount (Rs. 2,26,429=00 + interest @8% p.a.) shall carry penal interest @10% per annum. The OP Nos. 1 & 2 are also directed to pay either jointly or severally Rs. 25,000=00 (Rs. Twenty five thousand) only as compensation for mental agony, pain and harassment and litigation cost of Rs. 5,000=00 (Rs. Five thousand) only to the complainant within 45 (forty five) days from the date of passing of this order, failing which, the complainant is at liberty to put the entire order in execution as per provisions of law.
Let plain copies of this order be supplied to the parties free of cost as per provisions of law.
Dictated & Corrected by me: (Jayanti Maitra (Ray)
President
(Jayanti Maitra (Ray) DCDRF, Purba Bardhaman
President
DCDRF, Purba Bardhaman
(Tapan Kumar Tripathy) (Nivedita Ghosh)
Member Member
DCDRF, Purba Bardhaman DCDRF, Purba Bardhaman
