State Consumer Disputes Redressal Commission
United India Insurance Company Limited vs Gurdeep Singh on 7 November, 2013
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, DAKSHIN MARG, SECTOR-37A, CHANDIGARH
FIRST APPEAL NO. 10 OF 2011
Date of Institution: 04.01.2011
Date of Decision: 07.11.2013
United India Insurance Company Limited, through its Regional Office
at 136, Feroze Gandhi Market, Ferozepur Road, Ludhiana through its
Manager Shri S.K.Takyar.
.....Appellant/Opposite Party
VERSUS
Gurdeep Singh aged about 37 years son of Shri Karamjit Singh,
resident of Village Bhokhra, District Bathinda.
.....Respondent/Complainant
First Appeal against the order
dated 18.11.2010 passed by the
District Consumer Disputes
Redressal Forum, Bathinda.
Quorum:
Sh. Baldev Singh Sekhon, Presiding Member
Smt. Surinder Pal Kaur, Member Present:
For the appellant : Ms.Sonal Datta, Advocate
For the respondent : Sh.B.S.Sidhu, Advocate for
Sh.K.S.Sidhu, Advocate
BALDEV SINGH SEKHON, PRESIDING MEMBER
This appeal has been filed by the appellant/opposite party against the order dated 18.11.2010 passed by the District Consumer Disputes Redressal Forum, Bathinda (in short "District Forum"), vide which the complaint of the respondent/complainant was accepted.
2. The facts of the case, as stated in the complaint, are that the complainant was the owner of one cattle shed, which was insured with the opposite parties under Standard Fire and Special Perils Policy No.200401/11/08/11/000000795 against the risk of cattle shed, cattle First Appeal No. 10 of 2011 Page 2 of 7 feed, milk machine, etc. The cattle were also insured vide separate insurance policy No.200401/47/08/01/0000079 for the period 25.10.2008 to 24.10.2009. The insured shed was damaged and totally demolished due to storm/cyclone on 30.6.2009. The complainant approached the insurance company for the claim but he was asked to get prepared the estimate for loss suffered by him from an architect and present the report to the insurance company so that the claim could be released. He approached M/s Dhaliwal Architects to survey and prepare the assessment report of the loss, who assessed the loss suffered in storm to the tune of Rs.4,56,150/- and further estimated cost for reconstructing a new shed in place of damaged one as Rs.6,29,220/-. However, the opposite parties paid only Rs.1,80,330/- and remaining amount of Rs.4,48,890/- is still due towards them. Hence the complaint before the District Forum seeking directions that the opposite parties be directed to pay the balance amount of the claim. Compensation to the tune of Rs.1,00,000/- was also prayed.
3. Upon notice, the opposite parties filed joint written reply pleading therein that the complainant had concealed the fact that he accepted the loss, as assessed by the surveyor as genuine. He executed a consent letter and received assessed loss as full and final settlement. Now, he is estopped from raising any objection at this stage. It was further pleaded that he was running a dairy for earning huge profits and insurance policy was obtained for commercial purposes, as such, the dispute in hand, did not fall within the ambit of the Consumer Protection Act, 1986. After receiving the intimation regarding the incidence, the opposite parties deputed Er.Rakesh First Appeal No. 10 of 2011 Page 3 of 7 Kumar Gupta, Surveyor and Loss Assessor to assess the loss who, vide report dated 3.10.2009, assessed the loss to the tune of Rs.1,80,495/-. Thereafter, the complainant himself executed the consent letter to receive Rs.1,80,495/- as full and final settlement. Accordingly, the payment was made to him. The dismissal of the complaint was prayed.
4. The parties led their evidence by way of affidavits and documents and the District Forum, after going through that evidence and hearing the arguments, accepted the complaint and directed the opposite parties as under:-
" Keeping in view the facts, circumstances and the evidence produced on file by the parties, this Forum is of the view that there is deficiency in service on the part of the opposite parties. Hence this complaint is accepted with Rs.10,000/- as cost and compensation for mental harassment. The opposite parties have already paid an amount of Rs.1,80,495/- after deducting Rs.9000/- on account of salvage, Rs.10,000/- on account of excess clause and depreciation @15% from the loss assessed by the surveyor. Thus, the opposite parties are directed to pay jointly and severally an amount of Rs.2,51,485/- (Rs.2,95,865/- minus depreciation @15% as per policy terms and conditions i.e. Rs.44,380/- = Rs.2,51,485/-) to the complainant balance claim amount on account of loss suffered by him for his cattle shed.
The compliance of this order be made within 30 days from the date of receipt of copy of this order and in case of non- compliance of the order within the stipulated period, the complainant shall be entitled for interest @ 9% P.A. on the amount of Rs.2,51,485/- till realisation."First Appeal No. 10 of 2011 Page 4 of 7
5. Aggrieved by this order, the appellant/opposite party has come up in appeal on the ground that immediately after receiving the information with regard to the damage to the cattle shed, it appointed surveyor who assessed the loss to the tune of Rs.1,80,495/- vide his report dated 3.10.2009 (Ex.R-4). The learned District Forum has gravelly erred in totally discarding the surveyor report in which, after duly vetting the claim, a detailed assessment of loss suffered by the complainant was given. The report given by the architect (Ex.C-3) does not consist of any detailed reasoning of the claim put forth in it while the storm survey report (Ex.R-4) is detailed one and given with proper cogent and convincing reasons. The complainant has already received Rs.1,80,495/- as full and final settlement for the claim and he has signed the consent letter admitting thereby the claim to the tune of Rs.1,80,495/-. Acceptance of the appeal and setting aside of the impugned order was prayed.
6. Learned counsel for the complainant submitted that there was no merit in the appeal and the same be dismissed.
7. We have thoroughly gone through the pleadings of the parties and have carefully perused the evidence on record.
8. Admittedly, the cattle shed of the complainant, which was insured with the opposite parties, got damaged due to the storm/cyclone on 30.6.2009. The complainant has contended that the loss of the shed was assessed by the M/s Dhaliwal Architects as Rs.4,56,150/- (Ex.C-3) while the opposite parties paid Rs.1,80,495/-, which was assessed by the Surveyor Er.R.K.Gupta as per his report (Ex.R-4). It is contended by the opposite parties that amount of First Appeal No. 10 of 2011 Page 5 of 7 Rs.1,80,495/- was received by the complainant as full and final settlement. The consent letter to that effect is placed on record. The learned counsel for the complainant argued that this consent letter was obtained by fraud and mis-representation as some blank papers were got signed from him at the time of filing the claim. But no such pleadings were made by him in the complaint filed before the District Forum. The complainant has also contended that he was advised by the opposite parties to get his loss assessed through an architect but there is no document on record to support his contention. In fact, the report of the architect has been obtained by the complainant at his own level. A bare perusal of report of architect (Ex.C-3) shows that it is unsigned and is very brief and sketchy. Only some calculations have been made on a sheet without elaborating the same. No reason or detailed notes have been given to justify the same. Another sheet showing the proposed estimate for reconstructing the cattle shed is placed on record as Ex.C-3A in which amount is assessed as Rs.6,29,220/-. Another proposed estimate dated 5.7.2009 from same architect for reconstructing the shed is attached with report of Surveyor (Ex.R-4) in which estimated amount is shown as only Rs.4,72,360/-. These two documents, issued by the same architect, are self-contradictory showing different assessed amounts. It confirms that these are only procured documents whereas the report of Surveyor (Ex.R-4) is very elaborate and well reasoned document in which all the items mentioned by architect in his report are discussed. Detailed background notes for reaching a conclusion are given. Moreover the Surveyor is duly authorised and licensed to carry out the First Appeal No. 10 of 2011 Page 6 of 7 survey and assess the loss. This report is of prime importance and cannot be discarded without any reason. Hon'ble National Commission in "Ashu Textiles V/s New India Assurance Company & Anr." 2009 3 CPC 382 (NC) has held as under:--
"6. To start with, we would like to state that Surveyor's report which is based upon the visit to the site as also subsequent verification and also after obtaining clarifications has be to be given more weight than the report of the Fire Brigade about loss and monthly stocks statements which were being sent by the petitioner to the Bank. On what basis the Fire Brigade had made the assessment has not been explained by learned Counsel for the petitioner. Not much importance can be given to the monthly stocks statement which were sent by the petitioner to the bank in the light of the survey report which is of prime importance which is based on the facts and circumstances of the case."
9. In view of the law laid down by the Hon'ble National Commission and the above discussion, the report of the surveyor cannot be ignored just because the complainant has got the assessment made from an architect, who was not competent to conduct the surveyor. Accordingly, the appeal of the appellant/opposite party, is allowed and the impugned order of the District Forum is set aside. Consequently, the complaint filed by the respondent/complainant is dismissed. No order as to costs.
10. The appellant/opposite party deposited an amount of Rs.25,000/- with this Commission at the time of filing of the appeal. This amount, alongwith interest, which has accrued thereon, if any, be remitted by the Registry to the appellant/opposite party, by way of a First Appeal No. 10 of 2011 Page 7 of 7 crossed cheque/demand draft, after expiry of 45 days under intimation to the learned District Forum.
11. The arguments in the case were heard on 30.10.2013 and the order was reserved. Now, the order be communicated to the parties.
12. The appeal could not be decided within the statutory period because of the heavy pendency of the court cases.
(BALDEV SINGH SEKHON) PRESIDING MEMBER (SURINDER PAL KAUR) MEMBER November 07, 2013 VINAY