State Consumer Disputes Redressal Commission
Oriental Insurance Co. Ltd. vs Sh. Hira Singh. & Anr. on 21 November, 2017
H. P. STATE CONSUMER DISPUTES REDRESSAL
COMMISSION SHIMLA
First Appeal No. : 93/2017
Date of Presentation: 23.02.2017
Order Reserved On : 28.07.2017
Date of Order : 21.11.2017
......
Oriental Insurance Company Limited through its Senior
Divisional Manager Mythe Estate Kaithu Shimla-171003 H.P.
...... Appellant/Opposite Party No.1
Versus
1. Hira Singh Rayta s/o Late Shri Ganda Ram Rayta
R/o Village Mool Matiana Via Shari Matiana Tehsil
Theog District Shimla H.P.
......Respondent/Complainant
2. Er. Rajneesh Kumar Surveyor and Loss Assessor Ram
Bhawan Tuti Kandi Shimla 171004 H.P.
......Respondent/Opposite Party No.2
Coram
Hon'ble Justice P.S. Rana (R) President
Hon'ble Mr. Vijay Pal Khachi Member
Hon'ble Ms. Meena Verma Member
Whether approved for reporting?1 Yes.
For Appellant : Mr. Bunesh Pal Advocate.
For Respondent No.1: Mr. Sanjay Gandhi Advocate.
For Respondent No.2: Ex-parte.
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 09.12.2016 1 Whether reporters of the local papers may be allowed to see the order? Yes. Oriental Insurance Co. Ltd. Versus Hira Singh Rayta & Anr.(F.A. No.93/2017) passed by Learned District Forum in consumer complaint No.360 of 2013 title Hira Singh Rayta Versus Sr. Divisional Manager Oriental Insurance Co. Ltd. & Anr.
Brief facts of Case:
2. Complainant namely Shri Hira Singh filed consumer complaint under section 12 of Consumer Protection Act 1986 against opposite parties pleaded therein that apple packing and grading shed alongwith machinery was insured with opposite party No.1 vide policy No.263100/11/2013/1407 dated 23.11.2012. It is pleaded that premium was also paid to the opposite parties. It is further pleaded that on dated 17th & 18th January 2013 there was heavy snowfall and due to heavy snowfall roof of packing shed damaged. It is further pleaded that insurance company was informed and it is further pleaded that insurance company deputed surveyor who visited the spot. It is further pleaded that complainant completed all formalities. It is further pleaded that insurance company did not settle the claim. Complainant sought relief of payment of Rs.96092/- (Ninety six thousand ninety two).
3. Per contra version filed on behalf of opposite party i.e. Oriental Insurance Company Limited pleaded therein that complainant intimated opposite party about incident on 28.01.2013 despite the fact that incident took place on dated 17/18.01.2013. It is pleaded that complainant did not intimate opposite party immediately after the incident. It is further pleaded that opposite party appointed surveyor-cum-loss 2 Oriental Insurance Co. Ltd. Versus Hira Singh Rayta & Anr.(F.A. No.93/2017) assessor who assessed the loss to the tune of Rs.48736/- (Forty eight thousand seven hundred thirty six) after deducting the salvage value. It is further pleaded that loss sustained by complainant due to heavy snowfall did not cover under the insurance policy. It is further pleaded that complainant has sustained loss due to faulty design which is not covered under the insurance policy. It is further pleaded that opposite party did not commit any deficiency in service. Prayer for dismissal of complaint sought.
4. Complainant filed rejoinder and reasserted the allegations mentioned in the complaint.
5. Learned District Forum allowed the complaint and ordered opposite party i.e. insurance company to pay Rs.96000/- (Ninety six thousand) alongwith interest @ 9% per annum from the date of filing of complaint till payment within forty five days from the date of receipt of order. Learned District Forum also ordered the opposite party to pay sum of Rs.3000/- (Three thousand) as litigation costs.
6. Feeling aggrieved against order passed by Learned District Forum insurance company filed present appeal before State Commission.
7. We have heard learned advocates appearing on behalf of appellant & co-respondent No.1 and we have also perused entire record carefully.
3
Oriental Insurance Co. Ltd. Versus Hira Singh Rayta & Anr.(F.A. No.93/2017)
8. Following points arise for determination in present appeal.
1. Whether appeal filed by appellant is liable to be accepted as mentioned in memorandum of grounds of appeal.
2. Final order.
Findings upon point No.1 with reasons:
9. Complainant filed his affidavit in evidence. There is recital in the affidavit that deponent has insured his apple packing and grading shed alongwith machinery with opposite party vide policy No.263100/11/2013/1407 dated 23.11.2012.
There is further recital in the affidavit that deponent has paid premium to the tune of Rs.8290/- (Eight thousand two hundred ninety) as annual installment of insurance policy under Standard Fire and Perils Policy Schedule. There is further recital in the affidavit that unfortunately on 17th & 18th January 2013 there was heavy snowfall and due to unbearable load of heavy snow roof of packing shed was damaged and broken down. There is further recital in the affidavit that deponent informed the loss to the opposite party immediately on 19.01.2013 by way of telephone and by post on 28.01.2013. There is further recital in the affidavit that reason for not intimating opposite party immediately by post was due to blockade of road. There is further recital in the affidavit that opposite party appointed surveyor and loss assessor namely Rajneesh Kumar Dhiman. There is further recital in the affidavit that loss sustained by 4 Oriental Insurance Co. Ltd. Versus Hira Singh Rayta & Anr.(F.A. No.93/2017) deponent which is assessed by JE HPPWD Sub Division Matiana is to the tune of Rs.96092/- (Ninety six thousand ninety two). There is further recital in the affidavit that deponent sustained mental loss as well as finance loss. There is further recital in the affidavit that complainant sought compensation to the tune of Rs.96092/-(Ninety six thousand ninety two). State Commission also perused annexures C-1 to C-6 tendered by the complainant in evidence carefully.
10. Opposite party did not file any personal affidavit of Senior Divisional Manager under section 13 (4) of Consumer Protection Act 1986 in evidence who is opposite party No.1 in original complaint qua proof of controversial facts. Opposite party No.1 only filed affidavit in support of version filed by opposite party No.1. It is well settled law that affidavit filed in support of pleadings and affidavit filed in support of controversial facts are two different concepts under Consumer Protection Act 1986. Opposite party filed affidavit of Shri Rajneesh Kumar Dhiman surveyor and loss assessor in evidence. There is recital in the affidavit that deponent is duly licenced surveyor and loss assessor having licence No. SLA- 33247 which was valid upto 24.07.2016. There is further recital in the affidavit that deponent conducted the final survey of loss sustained by complainant due to heavy snowfall on dated 19.01.2013. There is further recital in the affidavit that contents of report submitted by deponent are true and correct and no part of it is false and nothing material has been concealed 5 Oriental Insurance Co. Ltd. Versus Hira Singh Rayta & Anr.(F.A. No.93/2017) therein. Surveyor-cum-loss assessor has assessed net loss to the tune of Rs.30927/- (Thirty thousand nine hundred twenty seven) after adjustment of average clause. State Commission also perused annexures OP-1 to OP-6 tendered by the opposite party in evidence carefully.
11. Submission of learned advocate appearing on behalf of insurance company that complainant has sustained damage to the roof of packing shed due to heavy snowfall and on this ground appeal be allowed is decided accordingly. State Commission has carefully perused the exclusion clause of Standard Fire and Special Perils policy annexure OP-3 placed on record. As per general exclusion clause policy does not cover damage caused due to Act of God Perils such as Lightning, STFI, Subsidence, Landslide, Rockslide. There is no positive recital in the insurance policy that loss sustained by natural snowfall would not cover under the policy. It is held that Himachal Pradesh is a hilly area. It is also held that snow fall is the ordinary course of nature in the hilly area of Himachal Pradesh. It is held that snow fall in hilly area is not Act of God such as Lightning, STFI, Subsidence, Landslide, Rockslide. Even snow fall has not been mentioned as Act of God in the insurance policy specifically. Snow falls means atmospheric water vapour frozen into ice crystals lying on ground as white layer. It is held that snowfall is only process of water nature and is not act of God. It is proved on record that insurance policy was operative at the time when complainant sustained loss due to snow fall 6 Oriental Insurance Co. Ltd. Versus Hira Singh Rayta & Anr.(F.A. No.93/2017) and it is also proved on record that opposite party has received premium from the complainant. Hence it is held that insurance claim filed by complainant is covered under the insurance policy and it is held that natural snowfall did not fall within the exclusion clause mentioned in the insurance policy.
12. Submission of learned advocate appearing on behalf of insurance company that premises was not occupied by the complainant for thirty days and on this ground appeal be allowed is decided accordingly. In the present complaint Oriental Insurance Company was impleaded as party through Senior Divisional Manager. Senior Divisional Manager did not file his personal affidavit. Hence adverse inference is drawn against the insurance company for non-filing of affidavit of Senior Divisional Manager. See AIR 1999 SC 1441 Vidyadhar Versus Mankik Rao. See AIR 1999 SC 1341 Iswar Bhai C. Patel Versus Harihar Behera.
13. Submission of learned advocate appearing on behalf of insurance company that complainant sustained loss due to defective roof design and on this ground appeal be allowed is decided accordingly. Opposite party did not file affidavit of any expert Engineer in order to prove that roof of shed was designed in defective manner. No reason assigned by the insurance company as to why insurance company did not examine any expert Engineer in order to prove that roof of shed was designed in defective manner. Onus to prove that roof of shed was designed in defective manner was upon insurance company. 7
Oriental Insurance Co. Ltd. Versus Hira Singh Rayta & Anr.(F.A. No.93/2017) Hence plea of insurance company is defeated on the concept of ipse-dixit (An assertion made without proof).
14. Submission of learned advocate appearing on behalf of insurance company that information was not given to the insurance company immediately and on this ground appeal be allowed is decided accordingly. Complainant has specifically mentioned in the affidavit that immediately information was given to the insurance company by way of telephone on dated 19.01.2013. Incident took place on 17/18.01.2013. Senior Divisional Manager did not file any counter affidavit in evidence in order to prove that information by way of telephone was not given to the insurance company on dated 19.01.2013. In view of unrebutted affidavit it is held that information was given to the insurance company by the complainant on dated 19.01.2013 by way of telephone.
15. Submission of learned advocate appearing on behalf of insurance company that insurance company appointed Shri Rajneesh Kumar Dhiman as surveyor-cum-loss assessor and learned District Forum has granted excessive claim to the complainant ignoring the report of surveyor-cum-loss assessor and on this ground appeal be allowed is decided accordingly. It is proved on record that insurance company appointed surveyor-cum-loss assessor namely Rajneesh Kumar Dhiman to assess the loss sustained by complainant. It is proved on record that Shri Rajneesh Kumar Dhiman is duly licenced surveyor- cum-loss assessor having licence No. SLA-33247 which was 8 Oriental Insurance Co. Ltd. Versus Hira Singh Rayta & Anr.(F.A. No.93/2017) valid upto 24.07.2016. Shri Rajneesh Kumar Dhiman assessed loss to the tune of Rs.30927/- (Thirty thousand nine hundred twenty seven) after deduction of salvage and after applying average clause. State Commission has carefully perused the report submitted by Rajneesh Kumar Dhiman surveyor-cum- loss assessor. Report submitted by Rajneesh Kumar Dhiman surveyor-cum-loss assessor is trustworthy, reliable and inspires confidence of State Commission. There is no reason to disbelieve the report submitted by surveyor-cum-loss assessor. There is no evidence on record in order to prove that surveyor-cum-loss assessor has hostile animus against complainant at any point of time. It is well settled law that damage report submitted by surveyor-cum-loss assessor is substantive piece of evidence. See 2017 (1) CPJ 529 NC Ashish Kumar Jaiswal Versus ICICI Lombard General Insurance Co. Ltd. & Others. See 2012 (1) CPJ 420 NC H.C. Saxena Versus New India Assurance Co. Ltd. See 2012 (4) CPJ 103 NC National Insurance Company Limited Versus Jyoti Tobacco Traders. Hence it is held that compensation ought to have been granted by learned District Forum strictly as per loss assessed by surveyor-cum-loss assessor namely Rajneesh Kumar Dhiman. It is held that insurance company is liable to indemnify complainant strictly as per loss assessed by surveyor-cum-loss assessor because at the time of loss sustained by complainant insurance policy was in operation. State Commission has also perused the Standard Fire and Special Perils policy placed on record. As per insurance 9 Oriental Insurance Co. Ltd. Versus Hira Singh Rayta & Anr.(F.A. No.93/2017) policy furniture, fixtures, fittings, civil work of packing and grading house, plant and machinery of packing and grading house were insured with the opposite party.
16. Submission of learned advocate appearing on behalf of insurance company that learned District Forum wrongly granted litigation costs of Rs.3000/- (Three thousand) to the complainant on higher side and on this ground appeal be allowed is decided accordingly. It is proved on record that insurance company did not pay the claim amount to the complainant. It is proved on record that complainant has to approach the learned District Forum and has to pay Advocate fees and litigation charges. It is held that learned District Forum has granted reasonable litigation costs to the complainant.
17. 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 be dismissed is decided accordingly. State Commission has carefully perused the order passed by learned District Forum. Learned District Forum has awarded amount of Rs.96000/- (Ninety six thousand) alongwith interest @9% per annum to the complainant on the basis of pleadings of complainant only. Complainant did not file affidavit of JE HPPWD Sub Division Matiana in evidence qua controversial facts. It is well settled law that evidence qua controversial facts should be adduced by the parties strictly as per modes mentioned under Section 13(4) of Consumer Protection Act 10 Oriental Insurance Co. Ltd. Versus Hira Singh Rayta & Anr.(F.A. No.93/2017) 1986. Even no report of JE HPPWD Matiana is placed on record. Hence it is held that learned District Forum has granted excessive damage to the complainant ignoring the proved damaged assessed by surveyor-cum-loss assessor namely Rajneesh Kumar Dhiman. It is held that complainant is legally entitled for loss as assessed by surveyor-cum-loss assessor namely Shri Rajneesh Kumar Dhiman. In view of above stated facts point No.1 is decided accordingly.
Point No.2: Final Order
18. In view of findings upon point No.1 above appeal is partly allowed. Order of learned District Forum directing the appellant i.e. insurance company to pay amount to the tune of Rs.96000/- (Ninety six thousand) alongwith interest @9% per annum from the date of filing of complaint till payment is set aside. It is ordered that appellant i.e. Oriental Insurance Co. Ltd. would pay sum of Rs.30927/- (Thirty thousand nine hundred twenty seven) alongwith interest @ 9% per annum from the date of institution of complaint till realization to the complainant. Order of learned District Forum directing the appellant to pay Rs.3000/- (Three thousand) as litigation costs to the complainant is affirmed. Report submitted by surveyor- cum-loss assessor namely Rajneesh Kumar Dhiman annexure OP-4 dated 07.06.2013 will form part & parcel or order. Order of learned District Forum is modified to this extent only. Parties are left to bear their own litigation costs before State 11 Oriental Insurance Co. Ltd. Versus Hira Singh Rayta & Anr.(F.A. No.93/2017) Commission. 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 Meena Verma Member 21.11.2017.
*GUPTA* 12