Sri. G.V.Balasubramanya,<br /> Member,<br /> <br /> 1. Complainant is tobacco grower under a licence issued by the Tobacco Board. For the purpose of curing the tobacco, complainant had constructed a “Simplex barn”. He also has a Savings Bank Account in Cauvery Grameena Bank which has a tie up with the Opposite party for providing insurance to tobacco barns. The complainant had taken “Fire and allied perils policy” bearing No.070600/11/06/11/00000033, which covered the risk from 19.03.2006 to 18.11.2006. As per the said policy, the complainant’s barn was covered with the risk for an amount of Rs.1,20,000/- towards building and Rs.30,000/- towards the stock.<br /> 2. It is the simple case of the complainant that due to accidental fire the entire stock of tobacco and the barn were burnt down on 18.10.2006. The complainant states that he gave information to the Opposite party and a surveyor was deputed for assessment of the loss. It is contended by the complainant that though he has suffered loss to the tune of Rs.1,15,000/-, the Opposite party has remitted only Rs.44,000/- to his account. Such act of the Opposite party, according to the complainant, amounts to deficiency in service. The complainant claiming the balance amount of Rs.81,000/- with interest at 21% p.a. from the date of complaint till the date of payment. <br /> 3. Notice was duly served on the Opposite party who appeared and filed version. Opposite party has contested the claim on the following grounds:-<br /> 4. It is admitted that complainant is a agriculturist and owner of a tobacco barn, which was covered by the policy issued by the Opposite party. It is denied that the surveyor assessed the loss at Rs.1,15,000/-. The Opposite party has contended that the surveyor assed the loss at Rs.55,426/- and after deducting the policy excess of Rs.10,000, the complainant has been paid Rs.44,022/-. Such amount included both loss of stock and damage to barn. Asserting that there is no deficiency in service, the Opposite party has claimed that the amount paid was just and reasonable. For these reasons, the Opposite party has prayed for dismissing the complaint.<br /> 5. Apart from the affidavit, complainant has produced positive photographs of damaged barn, and copy of claim form. The Opposite party has produced the surveyor report, complainant’s estimate of repairs and copy of the settlement intimation note. Heard the learned counsels for both sides.<br /> 6. Points for our consideration are as under:-<br /> 1. Whether complainant proves that gross loss suffered by him was Rs.1,15,000/-?<br /> 2. Whether complainant further proves deficiency in service on the part of the Opposite party due to partial settlement of claim?<br /> 3. Whether the Opposite party proves that settlement of the claim by paying only Rs.45,426/- is just and proper?<br /> 4. What relief or order? <br /> 7. Our findings on the above points are as under:-<br /> 1. Point no.1 to 3 : Partly negative<br /> 2. Point no.4 : As per final order.<br /> REASONS<br /> <br /> 8. Points no. 1 to 3:- O.P. has produced a combined policy, which was issued in favour of number of barn owners. The policy issued by the O.P. has got two components, the first component is loss or damage caused to the building, which is limited to Rs.1,20,000/-. The 2nd component is loss or damage cause to the tobacco, which is limited only to Rs.30,000/-. There is no dispute that O.P. is entitled to deduct an amount of Rs.10,000/- towards compulsory excess from the total amount claimed by the complainant. Keeping in view these aspects, we proceed to appreciate the evidence on record.<br /> 9. Complainant has claimed that he suffered loss to the tune of Rs.1,15,000/- (vide para no.4 of the complaint). It is seen from the documents filed by the Opposite party that the complainant had assessed the loss/damage to the barn at Rs.79,700/-. But, before the Forum he has filed an estimate for Rs.1,15,020/- including loss of tobacco leaves. In view of the above contradiction, we cannot accept the contention of complainant that he is entitled to claim Rs.1,15,020/- as mentioned in the complaint. This amount is clearly an after thought. <br /> 10. Loss suffered by the complainant towards tobacco leaves:- In the claim made to the Opposite party, the complainant has shown stock of 650 kg. of tobacco leaves and claimed the loss at the rate of Rs.45 per kg. amounting to Rs.29,250/. We have carefully perused the report of the surveyor. The surveyor has allowed 650 Kg. of tobacco at the rate of Rs.40 per kg. and estimated the loss at Rs.26,000/-. The complainant has not disputed the rate per kilogram. In fact, the surveyors report is unchallenged. <br /> 11. It is clearly mentioned in the Complaint that tobacco leaves to the extent of 500 kgs. and the barn were completely burnt. But at the time of claiming insurance the complainant has shown stocked of 650 kgs. and the surveyor has allowed it but at reduced rate. Neither the complainant nor the surveyor have given any evidence as to the rate per kg. claimed is correct. They have neither disputed the others claim also. Under such circumstances, principle of average will have to be adopted. Hence, we take the rate per kg. as Rs.42.50 and for 650 kg. it comes to Rs.27,625/-. <br /> 12. Loss and damaged caused to the building:- It is a case of fire damage. Even if some articles were burnt partially, they are unfit for use. The entire damaged portion is required to be replaced. We have carefully gone through the estimate given by the complainant to the Opposite party as well as report of the surveyor. The complainant’s estimate is for Rs.43,450/- and with labour charges it comes to Rs.50,450/-. The Complainant has given self mahazar signed by 4 villagers wherein it is stated that the entire barn is burnt out. As against this, the surveyor has assessed the loss at Rs.38,075/- and applied depreciation at 16% [at 2% p.a. barn constructed in 1998] thereby arriving at the figure of Rs.31,983/-. To this he has allowed labour charges of Rs.5,000/-. In other words according to the surveyor it is not a case of total loss. As already noted the Complainant’s claim for total loss is only before this Forum. He has himself given an estimate for Rs.79,700/- (including loss of tobacco leaves). The Complainant has for obvious reasons converted the claim for partial loss to total loss. Hence, according to Complainant’s own admission damage to the barn is to the extent of Rs.50,450/- [Rs.79,700/- as per Complainant’s estimate minus Rs.29,250/- loss of tobacco leaves).<br /> 13. A fire insurance is a contract of indemnity. Nobody can be permitted to make profit out of a claim. The Complainant himself has assessed the loss to barn at Rs.50,450/-. The loss assessed by the surveyor is in tune with the loss assessed by the Complainant. We are not agreeable with the deduction by the surveyor towards salvage and under insurance. On the one hand, the surveyor has calculated depreciation at 16% stating that the barn was constructed in the year 1998 and on the other hand he has deducted a sum of Rs.7,357/-. Hence, both have to be disallowed. Therefore, the damage to the barn from the point of view of the surveyor shall be taken as Rs.36,983/- ignoring the deductions made for salvage and under insurance. <br /> 14. Since neither party has cross examined the other or disputed the other’s estimate or assessment, it is just and proper to take average of the two i.e., Rs.36,983/- estimated by the surveyor and Rs.50,450/- estimated by the Complainant that comes to Rs.43,716/-. The same principle of average has already been applied for tobacco leaves and we have arrived at a figure of Rs.27,625/-. Thus, the total comes to Rs.71,341/-. Deducting the policy excess of Rs.10,000/-, the final amount is Rs.61,341/-. The Opposite party has already paid the Complainant Rs.44,022/-. Therefore, he has to pay the balance of Rs.17,319/-. Accordingly, we answer points no. 1 to 3 answered and we proceed to pass the following order:-<br /> <br /> ORDER<br /> <br /> 1. Complaint is partly allowed.<br /> 2. O.P. is directed to pay additional amount of Rs.17,319/- to the complainant with interest at the 9% p.a. from 09-11-2006.<br /> 3. The Opposite party shall pay the Complainant cost of Rs.1,000/-.<br /> 4. The above mentioned amount at 2 supra shall be paid within a period of 2 months, failing which the amount will carry interest at 12% p.a. from the date of the order till the date of payment.<br /> 5. Give a copy of this order to both parties according to Rules. <br />