State Consumer Disputes Redressal Commission
P.D. Memorial Religious & Educational ... vs 1.New India Assurance Company Limited, ... on 18 December, 2013
STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA Complaint No.30 of 2013 Date of Institution: 11.04.2008/17.05.2013 Date of Decision: 18.12.2013 P.D. Memorial Religious & Educational Association (Regd.), Registered Office at Village Sarai Aurangabad, Tehsil Bahadurgarh, District Jhajjar (Haryana). Complainant Versus 1. New India Assurance Company Limited, through Chief Regional Manager, New India Assurance Company Ltd., Regional Office, SCO 36-37, Sector 17-A, Chandigarh. 2. New India Assurance Company Limited, Branch Office at Delhi-Rohtak Road, Bahadurgarh, District Jahajjar. Opposite Parties BEFORE: Honble Mr. Justice Nawab Singh, President. Sh. B.M. Bedi, Judicial Member. For the Parties: Sh.Sanchit Punia, Advocate for Complainant. Sh. R.K. Bashamboo, Advocate for Opposite Parties. O R D E R
B.M. Bedi, Judicial Member:
Initially this complaint was filed before State Consumer Disputes Redressal Commission, Union Territory, Chandigarh. The complaint was allowed vide order dated 02.09.2008 allowing compensation of Rs.14,20,746/-. Both the parties preferred appeals before Honble National Consumer Disputes Redressal Commission, New Delhi. Complainant filed appeal for enhancement of compensation while opposite parties filed appeal for setting aside of the order. Honble National Commission in First Appeal No.448 of 2008 set aside the order of State Consumer Disputes Redressal Commission, Union Territory, Chandigarh on short ground of territorial jurisdiction and remanded the case to State Consumer Disputes Redressal Commission, Union Territory, Chandigarh to transfer the same to this Commission for fresh decision. This is how this complaint has come up before us for disposal.
FACTS
2. Complainant Society is running various educational institutions and had got its building equipments, furniture, computers and vehicles etc insured with the opposite parties for a sum of Rs.12.00 crores vide policy Ex.C-1. The rest of the buildings of complainant institution were insured for a sum of Rs.8,30,00,000/- vide policy Ex.C-2 and a vehicle bearing registration No.HR-63A-0416 was insured for Rs.9,60,000/- vide policy Ex.C-3. It was pleaded that on the night intervening 16/17.05.2007, a strong storm of high intensity hit the buildings i.e. College of Pharmacy, Engineering College, Workshop, Stadium, School Building, Canteen, Office Block, Boundary Wall of the Campus and Hostel etc which caused loss to the insured property. Information was given to opposite parties for appointment of surveyor. Complainant initially assessed the loss at Rs.45.00 lacs. The opposite parties appointed M/s V.K. Kharbanda & Associates, New Delhi as surveyor to assess the loss. Surveyor visited the premises on 05.06.2007 and sought certain information (documents) including the drawings of damaged building, documentation of valuation and copy of meteorological report dated 16.05.2007 etc. In the meanwhile, the complainant got the estimate of loss prepared from their own Architect M/s Directions Architects Interiors and Landscapes, Gurgaon who assessed the loss at Rs.66,28,850/-.
The complainant was stated to have further informed the opposite parties that the area has unpredictable weather conditions and the examination of students were in progress, besides the academic session was to start in the first week of July, therefore, the complainant required immediate repair work to the building.
3. Complainant got a notice dated 10.10.2007 served upon opposite party, still not getting any positive response complainant filed the present complaint seeking Rs.66,29,000/- towards damages to the building alongwith interest @ 18% per annum besides Rs.5,00,000/- towards compensation and Rs.22,000/- as litigation expenses.
DEFENCE
4. On notice opposite parties filed reply raising certain preliminary objections including want of territorial jurisdiction. Further stating that the surveyor appointed by the opposite parties had assessed the loss at Rs.10,20,746/- vide his report Ex.R-6 and that the complainant did not cooperate by not submitting weather report in order to take decision as to whether the loss was covered under the terms and conditions of the policy. On merits, denying allegations including the factum of storm it was submitted that on receipt of information regarding damage, M/s V.K. Kharbanda & Associates was appointed as surveyor, who had submitted their report assessing the loss at Rs.10,20,746/- which was payable subject to the terms and conditions of the policy.
5. Counsel heard. File perused.
6. Stress has been laid by learned counsel for the complainant to the estimate got prepared by the complainant from M/s Prabhu Shanti Real Estate Pvt. Ltd, wherein the loss has been assessed at Rs.66,29,000/-. Complainant also laid stress upon the photographs jointly exhibited as Ex.C16 (numbering 24) and the receipts obtained from M/s Prabhu Shanti Real Estate Pvt. Ltd for payment made for repairs.
7. On the other hand learned counsel for the opposite parties also relied upon the photographs placed on the file by the complainant besides the report of surveyor Ex.R6.
8. We have minutely perused the photographs which clearly indicate that only the sheets of sheds had been blown and suffered damage and there was not much damage to rest of the building or other necessary equipments. The photographs belie the estimate of loss got prepared by the complainant from M/s Prabhu Shanti Real Estate Pvt. Ltd. The photographs rather corroborate the version of the opposite parties justifying the report of surveyor prepared by M/s V.K. Kharbanda & Associates assessing the loss at Rs.10,20,746/-. Even the surveyor in his report at page 4 under the heading PARAMETERS OF ASSESSMENT AND ADJUSTMENT has specifically mentioned that the repair charges have been found to be extensively high because of the fact that now the aluminium and ACC sheets fixed on the roof have been proposed to be replaced with steel sheets which are much more expensive. However, the insurer has to make assessment of the repair charges of the building based on its original construction at market rates. Besides the surveyor after making inquiry from market from number of suppliers has mentioned that such sheets in Ahmedabad and Surat, who usually supply the same all over India, have indicated the rates at Rs.150 per kg while each aluminium sheet of 3 m x 1 m has been found to be of 8 kg and thus the surveyor has made the assessment accordingly. He has further taken into consideration the rates of gypsum board used for false ceiling and stones used for construction of boundary wall and accordingly assessed the total loss at Rs.10,74,470/- and reducing it by 5% under excess clause, assessed the net loss at Rs.10,20,746/-. In Annexure-1, he has given the size of affected area of Library, Lab, Stadium as well as of Workshop Building and in Annexure-2 has worked out the quantity of aluminium and ACC sheets and other related material for the repair of affected area. No ambiguity could be found in working out the loss as assessed by the surveyor.
9. It is well settled law that report of surveyor is an important document and the same cannot be brushed aside without any congent and convincing evidence contrary to it.
Support can be drawn from the judgment rendered by the Honble Supreme Court cited as SRI VENKATESWARA SYNDICATE versus ORIENTAL INSURANCE COMPANY LTD & ANR, II (2010) CPJ 1 (SC), para 22 of which is reproduced here as under:-
. There is no disputing the fact that the Surveyor/Surveyors are appointed by the insurance company under the provisions of Insurance Act and their reports are to be given due importance and one should have sufficient grounds not to agree with the assessment made by them. We also add, that, under this Section the insurance company cannot go on appointing Surveyors one after another so as to get a tailor made report to the satisfaction of the concerned officer of the insurance company, if for any reason, the report of the Surveyors is not acceptable, the insurer has to give valid reason for not accepting the report. Scheme of Section 64-UM particularly, of Sub-sections (2),(3) and (4) would show that the insurer cannot appoint a second surveyor just as a matter of course. If for any valid reason the report of the Surveyor is not acceptable to the insurer may be for the reason if there are inherent defects, if it is found to be arbitrary, excessive, exaggerated, etc., it must specify cogent reasons, without which it is not free to appoint second Surveyor or Surveyors till it gets a report which would satisfy its interest. Alternatively, it can be stated that there must be sufficient ground to disagree with the findings of Surveyor/Surveyors. There is no prohibition in the Insurance Act for appointment of second Surveyor by the Insurance Company, but while doing so, the insurance company has to give satisfactory reasons for nor accepting the report of the first Surveyor and the need to appoint second Surveyor.
10. There is no denial to the fact that storm had hit the area on the night intervening 16/17.05.2007 as per report of Meteorological Department, which has been placed on the file as Annexure C-14. The wind speed was mentioned as 94 kmph from Westerly direction at 1948 hrs IST during squall.
11. Complainant has not placed on the file either bills or the documentary evidence to indicate as to how much amount was spent by it while raising construction in the year 2004 for putting roof building etc. Therefore apparently the estimate got prepared by complainant from M/s Prabhu Shanti Real Estate Pvt. Ltd. cannot be considered in preference to report of surveyor M/s V.K. Kharbanda & Associates. Even the letter head of M/s Prabhu Shanti Real Estate Pvt. Ltd does not reflect the same to be a builder/contractor. No such nature of activity being carried out by them has been mentioned.
12. Since the surveyor has not taken into consideration the loss of electrical fittings which Honble State Consumer Commission, U.T, Chandigarh had assessed at Rs.4.00 lacs, which we too agree. Even Honble State Commission, U.T, Chandigarh has also awarded compensation of Rs.14,20,746/- by taking into consideration the report of surveyor and by adding Rs.4.00 lacs towards electrical fittings. We do not find reason to differ with the same.
13. As a sequel to the aforesaid discussions, this complaint is partly allowed. Opposite parties are directed to pay to the complainant Rs.14,20,746/- alongwith interest @ 12% per annum from the date of filing complaint originally which as per record was filed on 11.04.2008. The opposite parties are also directed to pay cost of Rs.10,000/- to the complainant.
Announced:
18.12.2013 B.M. Bedi Judicial Member Nawab Singh President CL