State Consumer Disputes Redressal Commission
Abdul Hamid Abdul Gani Lashkariya vs United India Insurance Company Ltd. on 29 April, 2014
Daily Order
STATE CONSUMER DISPUTES
REDRESSAL COMMISSION, MAHARASHTRA
CIRCUIT BENCH AT NAGPUR
5 TH FLOOR,
ADMINISTRATIVE BUILDING NO. 1
CIVIL LINES, NAGPUR-440
001
First Appeal No.
A/552/2008
(Arisen out of Order
Dated 31/05/2008 in Case No. cc/07/145 of District None)
1.
ABDUL HAMID ABDUL GANI LASHKARIYA
OLD
CITY, AKOLA, TAH. AND DIST. AKOLA
NAGPUR
...........Appellant(s)
Versus
1.
THE NEW INDIA ASSURANCE COMPANY LTD
OLD
COTTON MARKET, TILAK ROAD, AKOLA
TQ.
AND DIST. AKOLA
...........Respondent(s)
First Appeal No.
A/553/2008
(Arisen out of Order
Dated 31/05/2008 in Case No. cc/08/146 of District Akola )
1.
ABDUL HAMID ABDUL GANI LASHKARIYA
OLD
CITY, AKOLA, TQ. AND DIST. AKOLA
...........Appellant(s)
Versus
1.
UNITED INDIA INSURANCE COMPANY
LTD.
FIRST FLOOR, RAJASTHAN BHAVAN,
AKOLA,
TQ AND DIST. AKOLA
...........Respondent(s)
BEFORE:
HON'ABLE
MRS. Jayshree Yengal PRESIDING MEMBER
HON'ABLE
MR. S.B.SAWARKAR MEMBER
PRESENT:
Adv.
Mr. B.K.Tawari and Adv. Mr. Solat
......for
the Appellant
Adv.
Mr. Kataria for New India Assurance Company Ltd.
Adv.
Mr. Joharapurkar for United India Insurance Company Ltd.
......for
the Respondent
ORDER
(Passed On 29/04/2014) Per Smt. Jayshree Yengal, Honble Presiding Member
1. These two appeals are being disposed off by this common order as they arose out of the common order dated 31/05/2008, passed by the District Consumer Forum, Akola, partly allowing the two consumer complaints bearing Nos. 145 of 2007 and 146 of 2007. Appeal No. 552 of 2008, challenges the order passed by District Consumer Forum, Akola partly allowing the consumer complaint bearing No. 145 of 2007. Appeal No. 553 of 2008, challenges the order passed by District Consumer Forum, Akola, partly allowing the Consumer Complaint bearing No. 146 of 2007. Both these appeals are filed by the original complainants as being not satisfied with the impugned order.
2. Appellant No. 1 Mr. Abdul Gani Lashkaria, appellant No. 2 Mr. Mohd. Sadiq Abdul Gani Lashkaria and appellant No. 3 Mr. Mohd Rauf Abdul Gani Lashkaria in appeal No. 552 of 2008 be referred as complainants of consumer complaint No. 145 of 2007 and respondent, New India Assurance Company be referred as OP in the said complaint. Appellant Mr. Abdul Gani Lashkaria in appeal No. 153 of 2008 be referred as complainant in consumer complaint No. 146 of 2007 and respondent, United India Insurance Company Ltd. be referred as OP in the said complaint.
3. Brief facts giving rise to these appeals are as under.
The complainants of both the complaints were the owners of a two storied residential building situated at Maruti Road, Old city, Akola and the total area of said building of 225.20 sq. meters. The complainants in consumer complaint No. 145 of 2007 were the joint owner of half share of the said building and complainant in consumer complaint No. 146 of 2007 was the owner of the other half of the said building.
4. The complainants had insured their respective half shares of the building with respondents New India Assurance Company and United India Assurance Company for the insured sum of Rs. 5,00,000/- and Rs. 4,50,000/- respectively. The complainant No. 1 Mr. Abdul Hamid Abdul Gani Lashkaria was running business under the names and style Babubhai Patangwala. He had availed loan of Rs. 2,00,000/- from the Akola Janata Commercial Co-Op Bank Ltd. Akola. The complainants had furnished guarantee and they had mortgaged their share of the building with the aforesaid bank. The said bank had insured the mortgaged share of the building for a sum of Rs. 5,00,000/- under Standard Fire and Special Peril Policy for the period from 18/01/2005 to 17/01/2006 with New India Assurance Company. Since the complainant No. 1 was the sole owner of the other half of the building, he insured that share with United India Insurance Company for the insured sum of Rs. 4,50,000/- covering risk under Standard Fire and Special Peril Policy for the period from 28/01/2005 to 27/01/2006. Therefore although the estimated cost of the building was about 13,00,000/-, The said building was covered under Standard Fire and Special Peril Policy for a total amount of Rs. 9,50,000/-.
5. On 2/12/2005 fire broke out in the building of the complainants and the whole building was reduced to ashes. The complainants lodged insurance claim on total loss basis and submitted for the sum insured as per the policies. The OP/ insurance company in both the complaints appointed a surveyor to assess the loss. The surveyor appointed by United India Insurance company assessed the loss at Rs. 94,675/- and the Insurance Company offered to settle the claim as per said surveyors report and the surveyor appointed by New India Assurance Company assessed the loss at Rs. 1,05,263/- and the Insurance Company was ready to settle the claim as per said surveyors report. The complainants were ready to accept the claims under protest. The complainants submitted that the loss should have been settled on total loss basis that is Rs. 5,00,000/- and 4,50,000/- by the respective Insurance Companies.
6. Alleging accordingly, the complainants filed consumer complaints. Consumer complaints bearing No. 145/2007 was filed against New India Assurance Company Ltd. claiming 500000/- sum insured and 5,00,000/- towards professional damages and 1,00,000/- towards loss of interest incurred and Rs. 2,00,000/- towards mental and physical harassment. Therefore the claim against New India Assurance Company was to the extent of Rs. 13,00000/- The consumer complaint bearing No. 146 of 2007 was filed against United India Insurance Company claiming the total sum insured of Rs. 4,50,000/-, Rs. 1,00,000/- professional damage, Rs. 1,00,000/- more towards mental and physical harassment and Rs. 10,000/- towards cost of proceedings that is the claim against United India Insurance Company was of Rs. 6,60,000/- with 18% interest thereon.
7. The OP Insurance Companies in both the complaints resisted the complaints by filing their written version and denied all the adverse allegation of the complainant.
8. OP/respondent New India Assurance company in appeal No. 552 of 2008 specifically submitted that the risk cover was for residential house of the complainant and the complainant had changed its use by running business of kites, ice cream and cold drinks and the house for used as godown for storing goods. The premium which was paid by the complainants was for the risk covered for residential house. Therefore in fact no claim was payable. The OP further submitted that the risk cover was for the residential house of the complainant which was constructed in the year 1920 that means it was more than 80 years old. Therefore on that count also, technically the construction had outlived its life and therefore on that count also no claim was payable. However, keeping all these into consideration the surveyor appointed by the OP assessed the loss at Rs. 1,04,688/-which the OP was willing to pay but it was only the complainants who declined to accept. Therefore there was no deficiency in service on the part of the respondent Insurance Company and the complaint deserves to be dismissed being frivolous.
9. The respondent/OP United India Insurance Company Ltd. in appeal No. 553 of 2008 specifically submitted that the surveyor appointed by them assessed the loss at Rs. 94,675/-and the insurance company was willing to settle the claim as per the surveyor report. The complainant refused to accept the claim amount without protest, therefore the claim could not be settled. However there was no deficiency in rendering service and the complaint deserves to be dismissed being frivolous.
10. The Forum after hearing both the sides and perusing the documents filed on record, partly allowing the consumer complaint bearing Nos. 145 of 2007 and 146 of 2007 and allowed the claim as per the surveyors report of the respective insurance companies. The Forum however dismissed the other claim of the complainant as being not proved in respect of the loss incurred.
11. The complainants in both the complaints being not satisfied by the impugned order filed these appeals seeking settlement of claim on total loss basis etc. We heard counsels of the complainants and respondents in the respective appeals and perused the written notes of arguments, copy of complaint, written version, surveyor report and other documents filed on record by both the parties.
12. The fact in respect of the risk covered for half of the residential house of the complainant for Rs. 4,50,000/- by United India insurance company and other half of the house for Rs. 5,00,000/- by New India Assurance Company are not disputed. It is also not disputed that there was a fire on 02/12/2005 and the residential house was completely damaged and turned into ashes. The surveyors reports assessing the loss and the fastening the net liability at Rs. 94,737/- for United India insurance company and Rs. 1,05,263/- for New India Assurance Company is not disputed.
13. The only issue that survives in these appeals is whether the complainants have proved the loss at Rs. 6,50,000/- against United India Insurance Company and Rs. 13,00,000/- against New India Assurance Company as claimed in the Consumer Complaints.
14. The complainants have claimed damages against New India Assurance Company at Rs. 13,00,000/-. The details as per the consumer complaint being 5,00,000/- towards settlement of claim on total loss basis, Rs. 5,00,000/- towards loss of business, Rs. 1,00,000/- towards loss of interest, Rs. 2,00,000/- as compensation towards mental and physical harassment. The complainants have claimed loss of business but has not furnished any details and/ or evidence in respect of the alleged business being pursued by the complainants at the premises. The Insurance policy also does not reflect that the complainant was pursuing any business at the premises or the said premises was used as any godown etc. to infer that some business was carried on at the premises and damage was caused due to the said premises being destroyed in to fire. Therefore allowing the claim in absence of any evidence cannot sustain in law and the Forum has rightly disallowed the same and has accepted the net liability on the insurance company as per the surveyor reports to which there is no challenge by the complainants.
15. Similarly the complainants claimed total Rs. 6,50,000/-, i.e. towards settlement of claim on total loss basis at Rs. 4,50,000/- against United India Insurance Company Ltd. Rs. 1,00,000/- towards loss of business, Rs. 1,00,000/- as compensation towards mental and physical harassment etc.
16. As regards the settlement of insurance claim on total loss basis at Rs.5,00,000/- and 4,50,000/-, we peruse the insurance documents and the copy of the sale deed dated 27/3/1991 in respect of the premises purchased by the complainants which mentions that the construction of the house was made approximately in the year dated 1920. Therefore surveyors of both the insurance companies have assessed the loss considering the depreciated value as per rules.
17. For the foregoing reasons and observations we find no glaring infirmity or illegality in the impugned order and the appeals deserve to be dismissed being devoid of any merits.
18. In the result we proceed to pass the following order.
ORDER i.
Appeals bearing Nos. 552 of 2008 and 553 of 2008 are dismissed.
ii.
The impugned common order dated 31/05/2008, passed in consumer complaint bearing Nos. 145 of 2007 and 146 of 2007 is confirmed.
iii.
In the peculiar facts and circumstances of the case, parties to bear their own cost.
iv.
Copy of order be furnished to both the parties, free of cost.
[HON'ABLE MRS. Jayshree Yengal] PRESIDING MEMBER [HON'ABLE MR.
S.B.SAWARKAR] MEMBER ph