State Consumer Disputes Redressal Commission
National Insurance Co. Ltd. & Anr. vs Sh. Kam Raj Sharma. on 17 December, 2018
H. P. STATE CONSUMER DISPUTES REDRESSAL
COMMISSION SHIMLA
First Appeal No. : 318/2017
Date of Presentation: 14.09.2017
Order Reserved on : 30.08.2018
Date of Order : 17.12.2018
......
1. National Insurance Company Limited Shimla through
Narender K. Negi Administrative Officer (Legal).
2. National Insurance Company Limited through its Branch
Manager Branch Office Main Market Tapri District
Kinnaur H.P.
Both appellants No.1 & 2 through National Insurance
Company Limited Divisional Office Himland Hotel
Circular Road Shimla-171001 through its Senior Divisional
Manager.
...... Appellants/Opposite parties
Versus
Kam Raj s/o Shri Dev Raj Sharma r/o Village Kuhal Post Office
Deothi Tehsil Rampur Bushahr District Shimla H.P.
......Respondent/Complainant
Coram
Hon'ble Justice P.S. Rana (R) President
Hon'ble Mr. Vijay Pal Khachi Member
Whether approved for reporting?1 Yes.
For Appellants : Mr. Lalit K. Sharma Advocate
For Respondent : Mr. Shashi Bhushan Advocate
JUSTICE P.S. RANA (R) PRESIDENT:
O R D E R :-
1. Present appeal is filed under section 15 of Consumer Protection Act 1986 against order dated 1 Whether reporters of the local papers may be allowed to see the order? Yes. National Insurance Company Limited & Anr. Versus Kam Raj (F.A. No.318/2017) 07.07.2017 passed by Learned District Forum in consumer complaint No.244/2009 titled Kam Raj Versus National Insurance Company Limited & Anr.
Brief facts of Consumer Complaint:
2. Complainant filed consumer complaint under Section 12 of Consumer Protection Act 1986 directing opposite parties to pay sum of Rs.425081/- (Four lac twenty five thousand eighty one) on account of damage caused to house of complainant by cloud burst/landslide on dated 27.08.2008. In addition complainant also sought relief of payment of Rs.50000/- (Fifty thousand) on account of harassment and mental agony. Prayer for acceptance of consumer complaint sought.
3. Per contra version filed on behalf of opposite parties pleaded therein that consumer complaint is not maintainable and complainant has no cause of action against the opposite parties. It is pleaded that opposite parties did not commit any deficiency in service. It is further pleaded that opposite parties appointed surveyor-cum-loss assessor namely Shri Surender Kumar Soni Chartered Accountant to assess the loss. It is further pleaded that Chartered Account assessed the loss to the tune of Rs.62689/- (Sixty two thousand six hundred eighty nine). It is further pleaded that 2 National Insurance Company Limited & Anr. Versus Kam Raj (F.A. No.318/2017) construction was seven years old and after deducting depreciation cost Chartered Accountant recommended the payment of Rs.41167/- (Forty one thousand one hundred sixty seven). It is further pleaded that complainant did not accept the amount recommended by Chartered Accountant. It is further pleaded that opposite parties did not commit any deficiency in service. Prayer for dismissal of consumer complaint sought.
4. On dated 26.11.2012 complaint was dismissed in default by learned District Forum. Thereafter revision petition No.01 of 2013 was filed by the complainant before H.P. State Consumer Commission and H.P. State Consumer Commission vide order dated 02.04.2013 set aside the order of learned District Forum and complaint filed by complainant was restored to its original number.
5. Thereafter again consumer complaint was dismissed in default by learned District Forum on dated 16.09.2013. Thereafter again complainant filed Appeal No.302 of 2013 before H.P. State Consumer Commission which was decided by H.P. State Consumer Commission on dated 02.01.2014. H.P. State Consumer Commission allowed the appeal filed by complainant and complaint was restored to its original number.
3
National Insurance Company Limited & Anr. Versus Kam Raj (F.A. No.318/2017)
6. Thereafter on dated 28.02.2015 learned District Forum ordered opposite parties to pay sum of Rs.425100/- (Four lac twenty five thousand one hundred) to the complainant alongwith interest @9% per annum from the date of filing complaint i.e. 20.07.2009 till realization. In addition learned District Forum ordered opposite parties to pay compensation on account of mental harassment and litigation costs to the tune of Rs.25000/- (Twenty five thousand) within forty five days from the date of order.
7. Feeling aggrieved against order passed by learned District Forum Insurance Company filed Appeal No.42 of 2015 before H.P. State Consumer Commission which was decided on dated 15.06.2015. State Commission allowed the appeal filed by insurance company and set aside the impugned order. State Commission further ordered insurance company to pay Rs.41167/- (Forty one thousand one hundred sixty seven) to the complainant alongwith interest @9% per annum from the date of filing complaint i.e. 13.07.2009 till the payment of aforesaid amount.
8. Thereafter feeling aggrieved by the order passed by State Commission complainant Kam Raj filed Revision Petition No.2672 of 2015 before Hon'ble National Consumer Commission. Hon'ble National Consumer Commission decided the revision petition on dated 21.09.2016 and 4 National Insurance Company Limited & Anr. Versus Kam Raj (F.A. No.318/2017) remanded the consumer complaint to learned District Forum with the order that learned District Forum after summoning and examining the Assistant Engineer who had submitted report dated 10.09.2012 shall decide the consumer complaint afresh on the basis of deposition of Assistant Engineer of HPPWD and taking into consideration the cost of repair of damaged structure. Hon'ble National Consumer Commission directed the parties to appear before Learned District Forum on dated 20.10.2016.
9. Thereafter again learned District Forum disposed of consumer complaint on dated 07.07.2017 and learned District Forum ordered opposite parties to pay compensation of Rs.150000/- (One lac fifty thousand) to the complainant alongwith interest at the rate of 9% per annum from the date of filing complaint till the date of actual payment. Learned District Forum further ordered that opposite parties shall also pay Rs.20000/- (Twenty thousand) to the complainant on account of harassment and mental agony. In addition learned District Forum further ordered that opposite parties shall also pay litigation costs to the tune of Rs.10000/- (Ten thousand) to the complainant.
10. Feeling aggrieved against order passed by Learned District Forum insurance company filed present appeal before State Commission.
5
National Insurance Company Limited & Anr. Versus Kam Raj (F.A. No.318/2017)
11. We have heard learned advocates appearing on behalf of parties and we have also perused entire record carefully.
12. Following points arise for determination in present appeal.
1. Whether appeal filed by insurance company is liable to be accepted as mentioned in memorandum of grounds of appeal?
2. Final order.
Findings upon point No.1 with reasons:
13. Complainant filed affidavit in evidence. There is recital in the affidavit that deponent has raised construction of house upon the land comprised in Khasra No.1527 situated at Village Kuhal Post Office Deothi Tehsil Rampur District Shimla H.P. There is further recital in affidavit that construction work was carried out by the deponent strictly as per building plan. There is further recital in affidavit that after completion of construction work building was insured with the opposite parties w.e.f. 07.08.2008 to 06.08.2009. There is further recital in affidavit that building was damaged in the cloud burst which occurred during the rainy season of year 2008. There is further recital in affidavit that matter was reported to the insurance company and insurance company 6 National Insurance Company Limited & Anr. Versus Kam Raj (F.A. No.318/2017) appointed surveyor to assess the loss and surveyor namely Surender Kumar Soni Chartered Accountant assessed the loss to the tune of Rs.41167/- (Forty one thousand one hundred sixty seven) only. There is further recital in affidavit that Chartered Accountant appointed by insurance company to assess the loss has not properly assessed the loss and has assessed the loss on lower side. There is further recital in affidavit that complainant has sustained loss to the tune of Rs.425081/- (Four lac twenty five thousand eighty one). There is further recital in affidavit that complainant is legally entitled for the loss sustained by complainant alongwith interest.
14. Complainant also filed affidavit of Des Raj Sharma Architect and Consulting Engineer and Interior Designer in evidence. There is recital in the affidavit that deponent is dealing in the work of Consulting Engineer and Interior Designer for the last many years. There is further recital in affidavit that complainant Kam Raj approached the deponent in the month of November 2008 and requested the deponent to inspect the house of complainant situated at Village Kuhal Post Office Deothi Tehsil Rampur District Shimla H.P. There is further recital in affidavit that deponent inspected the site on dated 15.11.2008 and submitted report Ex.CW-3/A. There is further recital in affidavit that load bearing walls were 7 National Insurance Company Limited & Anr. Versus Kam Raj (F.A. No.318/2017) totally damaged and entire house was damaged due to huge landslide. Deponent assessed the loss to the tune of Rs.425100/- (Four lac twenty five thousand one hundred).
15. Complainant also filed affidavit of Sita Devi President Gram Panchayat Kuhal Post Office Deothi Tehsil Rampur District Shimla H.P. in evidence. There is recital in the affidavit that deponent is Pradhan of Gram Panchayat.
There is further recital in affidavit that complainant has raised construction of house upon the land comprised in Khasra No.1527 situated at Village Kuhal Post Office Deothi Tehsil Rampur District Shimla H.P. There is further recital in affidavit that construction work was carried out by the complainant strictly as per building plan. There is further recital in affidavit that building of the complainant was damaged in the cloud burst which occurred during the rainy season of year 2008. There is further recital in affidavit that deponent inspected the spot and prepared the report of loss caused to the building of complainant Annexure C-8. There is further recital in affidavit that amount of Rs.450000/- (Four lac fifty thousand) would be required to restore the building to its original position.
16. Opposite parties filed affidavit of B.S. Dhatwalia Manager National Insurance Company Limited in evidence. There is recital in the affidavit that opposite parties appointed 8 National Insurance Company Limited & Anr. Versus Kam Raj (F.A. No.318/2017) Surender Kumar Soni Chartered Accountant to visit the site and assess the loss sustained by complainant. There is further recital in affidavit that on dated 14.09.2008 Surender Kumar Soni visited the spot and carried out the survey and assessed the loss to the tune of Rs.62689/- (Sixty two thousand six hundred eighty nine). There is further recital in affidavit that building was seven years old and after deducting 11% deprecation cost amount to the tune of Rs.41167/- (Forty one thousand one hundred sixty seven) was recommended for payment to the complainant. There is further recital in affidavit that complainant did not complete the requisite formalities despite several reminders and thereafter claim was closed as no claim.
17. Opposite parties also filed affidavit of Surender Kumar Soni Chartered Account in evidence. There is recital in the affidavit that on dated 14.09.2008 deponent visited the spot and carried out the survey and assessed the loss of building. There is further recital in affidavit that deponent has assessed the loss to the tune of Rs.62689/- (Sixty two thousand six hundred eighty nine). There is further recital in affidavit that building was seven years old and after deducting deprecation cost amount to the tune of Rs.41167/- (Forty one thousand one hundred sixty seven) was recommended for payment to the complainant.
9
National Insurance Company Limited & Anr. Versus Kam Raj (F.A. No.318/2017)
18. In compliance of directions of Hon'ble National Consumer Commission learned District Forum examined Gopal Singh Negi Retired Executive Engineer HPPWD on dated 06.06.2017. Learned District Forum recorded oral testimony of Gopal Singh Negi on dated 06.06.2017 and Gopal Singh Negi has stated that while posted as Assistant Engineer HPPWD in Teklech Rampur District Shimla H.P. he was appointed as Local Commissioner by District Forum for the inspection of house of Kamraj situated at Village Kuhal. Gopal Singh Negi has stated that he had inspected the spot and submitted his report to the learned District Forum. Gopal Singh Negi has further stated that in his opinion if damaged house to be repaired in August 2008 then amount to the tune of Rs.150000/- (One lac fifty thousand) would have been required. There is recital in the cross examination portion of statement of Gopal Singh Negi that opposite parties did not cross examine Gopal Singh Negi despite opportunity granted by learned District Forum for cross examination.
19. Submission of learned advocate appearing on behalf of insurance company that learned District Forum has not given any opportunity for cross examination to insurance company when oral statement of Gopal Singh Negi was recorded on dated 06.06.2017 by learned District Forum and on this ground appeal filed by insurance company be allowed 10 National Insurance Company Limited & Anr. Versus Kam Raj (F.A. No.318/2017) is decided accordingly. State Commission has carefully perused the oral testimony of Gopal Singh Negi recorded by learned District Forum on dated 06.06.2017. There is recital in the oral statement recorded by learned District Forum on dated 06.06.2017 that opportunity was given to the insurance company to cross examine Gopal Singh Negi but despite opportunity granted by learned District Forum insurance company did not cross examine Gopal Singh Negi qua his oral statement recorded by way of examination in chief.
20. State Commission has also carefully perused the order sheet dated 06.06.2017 signed by President and Male Member. Order sheet dated 06.06.2017 is quoted in toto:
06.06.2017 Present: Sh. Mahinder Verma Adv. counsel for the complainant.
Sh. Anil Tomar Adv. counsel for the OPs.
Statement of the then Assistant Engineer HPPWD Taklech Rampur with respect to cost of repair of the house in question recorded. Road and Diet money be paid to above-named witness by the OPs which is assessed at Rs.4500/- through his bank account.
Arguments heard. Now matter be listed for orders on 07.07.2017.
Sd/-
(R.K. Verma) Sd/-
Subneet S. Chauhan 11 National Insurance Company Limited & Anr. Versus Kam Raj (F.A. No.318/2017)
21. There is positive recital in the order sheet dated 06.06.2017 that statement of then Assistant Engineer HPPWD Rampur in respect of repair of house was recorded in the presence of Anil Tomar advocate engaged by insurance company. State Commission took judicial notice of the order sheet dated 06.06.2017. In view of the fact that there is recital in the cross examination oral statement portion of Gopal Singh Negi that no cross examination was conducted by the insurance company despite opportunity granted and in view of the fact that in order sheet dated 06.06.2017 there is recital that statement of then Assistant Engineer HPPWD Taklech Rampur was recorded in the presence of Ld. Anil Tomar advocate engaged by the insurance company State Commission is of the opinion that it is not expedient in the ends of justice and on the principles of natural justice to accept the above stated plea of insurance company to the effect that no opportunity of cross examination was given to the insurance company upon oral statement of Gopal Singh Negi recorded by learned District Forum on dated 06.06.2017.
22. Submission of learned advocate appearing on behalf of insurance company that Gopal Singh Negi then Assistant Engineer has wrongly and arbitrarily assessed the loss to the tune of Rs.150000/- (One lac fifty thousand) ignoring the report of Chartered Accountant namely Surender 12 National Insurance Company Limited & Anr. Versus Kam Raj (F.A. No.318/2017) Kumar Soni who has assessed the loss to the tune of Rs.41167/- (Forty one thousand one hundred sixty seven) and on this ground appeal filed by insurance company be allowed is decided accordingly. As per Section 64UM(2) of Insurance Act 1938 if claim involved is exceeding Rs.20000/- (Twenty thousand) then insurance company is under legal obligation to obtain report of surveyor-cum-loss assessor who holds licence under Insurance Act 1938 to assess the loss. In the present matter there is no evidence on record that Surender Kumar Soni Chartered Accountant was issued licence to assess the loss under Insurance Act 1938. State Commission is of the opinion that under Section 64UM(2) of Insurance Act 1938 only licence holder under Insurance Act 1938 is competent to conduct the survey and assess the loss. In view of the fact that Surender Kumar Soni Chartered Account was not holding valid licence under Section 64UM(2) of Insurance Act 1938 the report submitted by Surender Kumar Soni Chartered Accountant is not trustworthy and is not reliable because word shall used in Section 64UM(2) of Insurance Act 1938 is mandatory in nature and not directory in nature. No reason assigned by insurance company as to why insurance company has flouted the mandatory condition of section 64UM (2) of Insurance Act 1938 to appoint surveyor-cum-loss assessor holding licence to conduct survey 13 National Insurance Company Limited & Anr. Versus Kam Raj (F.A. No.318/2017) under Insurance Act 1938. Hence adverse inference is drawn against the insurance company because S.K. Soni Chartered Accountant has not mentioned his licence number issued under Insurance Act 1938 and it is mandatory to mention licence number in loss assessment report under Insurance Act 1938.
23. Submission of learned advocate appearing on behalf of insurance company that loss assessed by Gopal Singh Negi then Assistant Engineer HPPWD is arbitrary and contrary to facts and on this ground appeal filed by insurance company be allowed is decided accordingly. Insurance company did not cross examine Gopal Singh Negi then Assistant Engineer HPPWD despite opportunity granted by learned District Forum when Gopal Singh Negi appeared before learned District Forum and recorded his oral statement on dated 06.06.2017. Even insurance company did not file any interrogatories to Gopal Singh Negi as required under Consumer Protection Act 1986. No reason assigned by the insurance company as to why insurance company did not cross examine Gopal Singh Negi when statement of Gopal Singh Negi then Assistant Engineer HPPWD was recorded by learned District Forum on dated 06.06.2017 by way of oral examination in chief. No reason assigned by the insurance company as to why insurance company did not issue any 14 National Insurance Company Limited & Anr. Versus Kam Raj (F.A. No.318/2017) interrogatories to Gopal Singh Negi then Assistant Engineer HPPWD as per Consumer Protection Act 1986. Hence adverse inference is drawn against the insurance company.
24. Submission of learned advocate appearing on behalf of insurance company that complainant did not place on record photographs which Gopal Singh Negi then Assistant Engineer HPPWD took at the time of inspection and photographs were also not produced before Learned District Forum and on this ground appeal filed by insurance company be allowed and complaint filed by complainant be dismissed is decided accordingly. State Commission is of the opinion that Hon'ble National Commission has directed the complainant to produce the photographs and no direction was given to the learned District Forum by Hon'ble National Commission to obtain the photographs. State Commission is of the opinion that directions issued to complainant were personam in nature. Insurance company did not file any written application before the learned District Forum directing the complainant to produce the photographs alongwith negatives alleged to be in the possession of complainant took by Gopal Singh Negi then Assistant Engineer HPPWD. No reason assigned by the insurance company as to why insurance company did not file any written application before the learned District Forum directing the complainant to 15 National Insurance Company Limited & Anr. Versus Kam Raj (F.A. No.318/2017) produce the photographs alongwith negatives which are alleged to be in the possession of complainant. Insurance company could not be allowed to take benefit of its own non- action and laxity. It is well settled law that written application should be filed to execute order of competent statutory authority.
25. Submission of learned advocate appearing on behalf of complainant that order passed by learned District Forum is in accordance with law and in accordance with proved facts and on this ground appeal filed by insurance company be dismissed is decided accordingly. Hon'ble National Consumer Commission has specifically directed that learned District Forum shall decide afresh the matter on the basis of deposition of Gopal Singh Negi then Assistant Engineer HPPWD and taking into consideration the cost of repair of damaged structure to the extent it was damaged on account of cloud burst as on 26.08.2008. It is held that District Forum has passed the order on the basis of deposition of Gopal Singh Negi then Assistant Engineer HPPWD and has also passed the order on the basis of damaged assessment assessed by Gopal Singh Negi then Assistant Engineer HPPWD on 26.08.2008. In view of above stated facts it is held that it is not expedient in the ends of justice and on the principles of natural justice to interfere in 16 National Insurance Company Limited & Anr. Versus Kam Raj (F.A. No.318/2017) the order of learned District Forum. Point No.1 is decided accordingly.
Point No.2: Final Order
26. In view of findings upon point No.1 above appeal is dismissed and order of learned District Forum announced in consumer complaint No.244/2009 dated 07.07.2017 is affirmed. Parties are left to bear their own litigation costs before State Commission. Oral statement of Gopal Singh Negi then Assistant Engineer HPPWD dated 06.06.2017 and order of order sheet dated 06.06.2017 passed by learned District Forum shall form part and parcel of order. File of learned District Forum alongwith certified copy of order be sent back forthwith and file of State Commission be consigned to record room after due completion forthwith. Certified copy of order be transmitted to parties forthwith free of costs strictly as per rules. Appeal is disposed of. Pending application(s) if any also disposed of.
Justice P.S. Rana (R) President Vijay Pal Khachi Member 17.12.2018.
*GUPTA* 17