State Consumer Disputes Redressal Commission
Sat Lal Dass vs Oico on 31 March, 2011
J&K STATE CONSUMER DISPUTES REDRESSAL COMMISSION, JAMMU Quoram: Honble Mr., Justice (Retd) G.D.Sharma, .President Mr. B.L.Saraf .....Member
Complaint No: - 2971/08 Date of Institute:-07.03.2008 Date of Decision:-31.03.2011 Sat Lal Dass S/O Late Maheshwar Nath Dass R/O Village Bomai (idi pora) Tehsil Sopore District Baramulla, Kashmir At present Jammu Complainant Versus
1. Oriental Insurance Co. Ltd.
Divisional Office National Highway Batwara Srinagar Kashmir Through Divisional Manager
2. Oriental Insuranc Co. Ltd.
Oriental House P.B.No. 7037, A-25/27, Asif Ali Road, New Delhi-110002 Through Chairman .OPs
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Counsel for the parties Mr. C.J.Dhar advocate for the Complainant.
Mr. Vishnu Gupta advocate for the OPs.
__________________________________________________________________________ Whether to be reported in press /MediaNo Whether to be reported in Digest/Journal.Yes
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Per Justice G.D.Sharma( Oral)
1. The complainant is a resident of village Bomai Tehsil Sopore District Baramulla and at the eve of eruption of terrorist activities in Kashmir Valley, he had to migrate and took refuge in Delhi. In this complaint, he has averred that he owned one residential three storeyed house with attic. Being the head of the joint Hindu family, he had insured the above said house for an insurable interest in the sum of Rs. 7 lac under Insurance Policy No. 11/01/00503 which came into operation on 09.09.2001 and had to expire on 08.09.2002. That during the intervening night of May 19/20, 2002, some miscreants set the said house on fire and the whole building was raised to ashes. One of his neighbourers informed him about the incident in the month of September 2002 and thereafter he raised the claim with the OPs as well as subsequently lodged the report with the Police. The OPs registered the claim after copy of the Police report was submitted and thereafter, appointed Mr. Shyam Sunder of the firm Elite Surveyors and Loss Assessors to assess the loss. Mr. Shyam Sunder visited the site on 22.07.2003 and demanded documents from the complainant vide three letters which are annexed with the record. The surveyor assessed the loss as total loss in the amount of Rs. 6,08,751.43/-. According to the complainant his claim was not settled and that amounted to deficiency in rendering service. The reliefs claimed by the complainant are:-
a. Reimbursement of Rs.7 lac alongwith interest @ 10% per annum from the date of loss till payment is made.
b. Compensation in the amount of Rs.20,000/- for harassment.
c. Litigation expenses in the sum of Rs.20,000/-
2. The claim has been resisted by the OPs and preliminary objections raised are to the effect that complicated questions of fact and law are involved which cannot be decided in a summary manner by the Commission. That claim of the complainant has been settled and to that effect requisite information was given to him. He failed to fulfill the formalities, so the amount could not be paid. On facts, it is pleaded that the insured house also belonged to his two brothers in equal shares and the complainants share was assessed for Rs.1,06,669.80/- which he had failed to receive. It is also pleaded that house was only partially damaged.
3. In support of the complaint, the complainant deposed on affidavit and he was cross-examined. He has also examined his brother Bishembar Nath and nephew Sunil Kumar as witnesses.
The OPs have produced the evidence of Mr. S.K.Bhagat and Mr. Shyam Sunder surveyor.
The complainant in his statement has corroborated the allegations made in the complaint and in cross-examination has stated that insured house was constructed by him personally on the ancestral land and in the revenue record; it is shown in his owner-ship. He did not produce the record of the ownership before the surveyor because that was not required by him under law.
His brother Bishamber Nath has deposed that the insured house did not belong to him or to his other brother but it exclusively belonged to the complainant. His version has been supported by the deposition of Sunil Kumar witness, who is the nephew of the complainant. He has stated that the house in question was constructed by the complainant from his own earnings.
OPs witness Mr. S.K.Bhagat Divisional Manager has supported the averments made in the written version but in cross-examination stated that if the complainant completes the required formalities, the OPs are ready to pay the assessed amount. He admits that the complainant has insurable interest in the insured house.
The witness Shyam Sunder surveyor has stated that during local inquiries, it was revealed that the insured house was a joint property of the complainant and his two brothers Bishembar and Sunil Kumar. That after making a detailed survey, and as per norms, he assessed the loss, which is due to the complainant of his share, which comes to Rs.1,06,669.80/-. In cross examination, he stated that he has assessed the total loss as per the PWD schedule which comes to Rs.6,08,751.43/- but he has no knowledge about the deduction of the depreciation clause in the PWD schedule.
However, he states that he has deducted the depreciation value according to the insurance Policy terms and schedule. That the deduction of Rs.50,000/- was made by him on the report of the investigator which was to the effect that the insured building had also suffered some loss earlier. He admits that he had not made confirmation about the loss either from the Police authorities or revenue authorities. He has admitted that it is a case of total loss.
4. Heard the arguments.
5. Mr. C.J.Dhar, advocate appearing for the complainant has contended that it is a case of total loss and the surveyor and loss assessor Mr. Shyam Sunder has wrongly made a deduction of Rs.2,06,115.43/- from the total loss assessed at Rs.68,751.43/- for twenty years @ 1.5% per annum. He thus wrongly has made payable a sum of Rs.4,80,936/- and then further deducted less salvage value rounded off at Rs.10,936/- and made payable Rs.4,70,000/-. It has come in the evidence that the insured house was constructed by the complainant from his own earnings and the deduction made for the two shares of his two brothers in the sum of Rs.3,13,330.20/- is also an illegal approach made by a loss assessor and surveyor.
While concluding his arguments, he has contended that further deduction of Rs.50,000/- for two terrorist activities stated in the Insurance Policy as less excess clause was also not legally warranted because there is no evidence to show that any such loss at two occasions was caused to the insured building.
6. In rebuttal, Mr. Vishnu Gupta, counsel appearing for the OPs has contended that incident in the present case occurred on 19.05.2002 but the complainant raised the claim on 15.07.2003 (annexure R1) and at that time, he had not filed the copy of FIR.
In annexure R1, neither the date nor month or year of the alleged loss had been mentioned. Legally speaking, the claim of the complainant stood abandoned as it was raised after twelve calendar months but the OPs showed him the indulgence and entertained the claim. He had failed to submit the documents. His claim was closed by the OPs on 31.03.2006 for non-co-operation. Complainant then started writing letters to the OPs which is evident from annexure R4. Those are three letters. The first letter is dated 12.02.2004, wherein, he made the request that he was making best possible efforts to complete the formalities from a reliable person as he himself was living in Delhi. Similar type of request was made in the letters dated 06.08.2004 and 26.11.2005.
Finally, the OPs repudiated the claim vide annexure R5 on 31.03.2006. Thereafter, on the receipt of letter from the complainant, the OPs reopened his claim on 06.06.2007 and asked him to submit the documents which he had submitted vide annexure R6 which is a letter addressed by him to the Divisional Manager and is dated 04.10.2007. The conduct of the complainant was not fair when he filed the complaint because in Para no.3 of the complaint, he has stated that only a copy of the premium receipt was filed as proof of Policy as annexure A which was not on the record and similarly in Para no.4 of the complaint, he stated that the copy of the Police report No.19 of ROZNAMCHA (Daily Register) is annexed as annexure B which was also not annexed.
Similarly, he has not annexed annexure F as was alleged in Para no.7 of the complaint. The learned counsel has referred to the cross-examination of the complainant in order to prove the fact that the conduct of the complainant has not bee fair as he has not attached the documents with the complaint which were shown by him to have been attached. He was also not diligent in getting the claim settled. Because of these facts and circumstances, he is not entitled to the payment of any interest on the amount which becomes due to him. While concluding his arguments, he has contended that the depreciation has rightly been deducted by the surveyor as the building was twenty years old when it was insured @ 1.5% per year of the insured value.
7. We have considered the respective contentions of the counsel appearing for the parties and perused the record. From annexure R6, it is established that the complainant after 04.10.2007 furnished the required documents for making the assessment of his claim. The existence of Insurance Policy is an admitted fact and the assessment made by the surveyor and loss assessor after making the deduction for depreciation and less salvage value has been quantified at Rs.4,70,000/-. Less excess clause for terrorism has been applied twice which on the facts and circumstances of the case is not applicable to the facts of the present case but a deduction of Rs.25,000/- is permissible for the terrorist act for the determination of the present claim and to this extent the assessment made by the surveyor and loss assessor can be tenable. The deduction made for the shares of his two brothers by the surveyor and loss assessor is also not factually and legally correct because his brother and nephew have supported complainants contention that the building was constructed by him and he had obtained the Insurance Policy.
On these admitted facts only the complainant is entitled to receive the assessed amount of the loss caused to the Insured building. In the back-drop of this discussion, we allow the complaint and direct the OPs to reimburse the complainant by making him the payment of Rs.4,45,000/- i.e. (Rs.4,70,000-Rs.25,000/-) alongwith interest @ 8% per annum from 01.01.2008 till the payment is made. The complainant is also entitled to the litigation expenses quantified at Rs.5,000/-. The complaint is consigned to records.
Member President