State Consumer Disputes Redressal Commission
Vasanth vs The Manager on 31 March, 2023
Daily Order Date of Filing : 24.07.2018 Date of Disposal : 31.03.2023 BEFORE THE KARNATAKA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, BENGALURU (PRINCIPAL BENCH) DATED:31.03.2023 PRESENT Mr K B. SANGANNANAVAR: PRI. DIST & SESSIONS JUDGE ( R )-JUDICIAL MEMBER
Mrs DIVYASHREE M: LADY MEMBER Complaint No.306/2018 Mr. Vasant S/o Mr Kedari Labbe Age 33 years Occ: Agriculture R/o Hubbarwadi Raibag Taluk Belagavi District Complainant (By Mr.Sharan B Tadahal, Advocate)
-Versus-
The Manager IFFCO TOKIO General Insurance Company Ltd., Sudev Plaza, 3rd Floor Dajiban Peth Opp. Laxmi Temple Hubli-29 Dharwad District Opposite Party (By Mr. Janardhan Reddy, Advocate)
-: ORDER:-
Mr K B. SANGANNANAVAR: JUDICIAL MEMBER
1. This is a complaint filed under Section 17 of CP Act, 1986 to direct OP to settle his claim for Rs.25,00,984/- towards loss/damages caused to the Green House erected in his agricultural land bearing R.S.No.50/4 situated at Hubbarwadi Village, Raibag Taluk, Belgavi District and sought for interest on the said amount at the rate of 18% per annum from the date of incident i.e., 8.05.2017 till realization and compensation of Rs.1 lakh on account of mental agony, pain and sufferings.
2. The brief facts of the case of the complainant are as he is the resident of Hubbarwadi Village, Raibag Taluk, Belagavi District. He is an agriculturist undertaking advanced agricultural operations using modern technique and technology to get good yield every year. He and his brother Babu Kedari Labbe are the owners of land bearing Sy.No.50 measuring 3 Acres 5 guntas and 12 Acres 36 guntas respectively, in which he had erected Green House availing loan from Bank. He also insured the green house with the OP for a sum of Rs.28,11,953/- for the period commencing from 24.05.2016 to 23.05.2017. He had paid premium amount to obtain "Standard Fire and Special Perils Policy, Material Damage - Schedule" The sum assured was Rs.28,11,953/-.
3. In the above such situation on 08.05.2017 at about 7 pm due to heavy storm, insured Green House erected in their land was completely destroyed and the incident was informed to the Insurer, Village Accountant of their Village, Horticulture Officer, Raibag and Proprietor of Shree Ganesh Enterprises, Raibag. Pursuant to the said information the Asst. Director of Horticulture Department, visited their land, issued a certificate dated 10.05.2017 stating that Green House suffered 80% damages/loss and similarly, the Village Accountant of their Village after his visit issued a certificate dated 08.05.2017 stating that Green House erected is destroyed due to heavy storm. As the said incident was also intimated to Proprietor of Ganesh Enterprises, Raibag, he visited and inspected the place of incident thereby assessed the loss to the tune of Rs.25,00,984/-. However, the surveyor of the OP/Insurer assessed the loss only at Rs.4,70,000/- by making superfluous deductions on 14.05.2017. The said report prepared by Mr P.Upendra the Surveyor of OP is totally baseless, illegal and untenable in the eyes of law. In such circumstances he constrained to issue a legal notice and when it was not complied raised a consumer complaint.
4. On admission of the complaint, OP put appearance through learned counsel, submitted version, contending that liability of the insurer was assessed as per the terms and conditions of the policy at Rs.4,70,000/- after depreciation. The surveyor rightly assessed the loss to such an extent and the complaint filed seeking loss at Rs.25,00,984/- is untenable is liable to be dismissed.
5. In view of rival contentions of the respective parties to this complaint, Commission held an enquiry by receiving affidavit evidences and documents and after closure of the enquiry, having heard learned counsels on record we have to decide on the alleged deficiency in rendering services and to decide what appropriate order to be passed?.
6. It is an undisputed fact that Complainant Mr Vasanth and his brother Babu Kedari Labbe, own land bearing survey No.50 situated at Hubbarwadi Village, Raibag Taluk in Belgavi District measuring 12 Acres 36 guntas and in the said land complainant herein had put up Green House to cater the advanced agricultural operations applying the new technique and technology.
7. It is also not in dispute that he obtained the "Standard Fire and Special Perils Policy, Material Damage - Schedule" for the period from commencing from 24.05.2016 to 23.05.2017. It is not in dispute as to the sum assured under the said policy was Rs.28,11,953/-. Further OP did not dispute as to the erection of the Green House in the land of complainant and it was completely destroyed due to heavy storm on 08.05.2017 at about 7 pm.
8. According to Complainant, the loss caused due to heavy storm was Rs.25,00,984/-, whereas Mr.P.Upendra, the Surveyor of OP at Rs.4,70,000/-. In other words, complainant disputed the report of the Surveyor and he claims loss to the tune of Rs.25,00,984/-. In view of these facts in issues as to the assessment of the loss we have to examine as to how the Surveyor has assessed the loss said to have been caused due to heavy storm on 08.05.2017 at 7.00 pm and also to examine as to the assessment as made in the complaint.
9. Learned counsel for Complainant brought to the notice of the Commission about Standard Fire and Special Perils Policy, Material Damage - Schedule, wherein could see sum assured was Rs.28,11,953/- and Mr.Vasanth S/o Kedari Labbe, complainant herein has paid premium amount of Rs.18,352/- and had also brought to the notice of the Commission as to the additional details/clauses/endorsements/warranties, which would play a vital importance, wherein could see Green House covering water storage structure including lining and water storage structure with shade net are covered with risk. Crops not covered, plastic sheets shall attract 25% depreciation per annum from the date of installation. Waiting period for STFI risk is 30 days. Excess would be for storm and related perils - 10% of the sum insured. For other claims 10% of the claim amount subject to minimum of Rs.25,000/- for each and every claim. Thus these details attached conditions to the policy issued in the name of the Complainant which being part and parcel would play vital importance to appreciate not the only the contentions of the complainant but the defense set up by OP/insurer. It is found from the enquiry as the Assistant Director Department of Horticulture on 10.05.2017 issued a certificate certifying Green House erected by Vasanth S/o Kedari Labbe in his survey No.50 was destroyed to the extent of 80% due to heavy storm even before commencement of 2017-18 rain fall in Hubbarwadi Village. It is also found that the Village Accountant of Hubbarwadi Village, Raibag Taluk, Belgavi District had also certified certifying the destruction of the Green House erected by the complainant in Sy.No.50 and had certified was completely destroyed. Thus these two documents coupled with evidence of complainant and OP established the destruction of the Green House set up in the land of complainant at least to the extent of 80%.
10. It is pertinent to note herein that immediately after this incident, pursuant to the information of the incident given to Sri Ganesh Enterprises, had visited the land where Green House was erected and had assessed the loss to the tune of Rs.25,00,984/-. This document issued by the Enterprises is dated 10.05.2017. It is to be noted further that the incident was occurred on 08.05.2017 at about 7 pm and he visited within two days. Learned counsel submitted that the Green House erected from the materials obtained from Sri Ganesh Enterprises as such has to be said competent to assess the loss sustained on account of heavy storm. He has to be said competent to assess the loss, since had assessed fabrication and erection of Green shed net house by his personal visit. According to him Green shed net house measures 4000 sq. ft and not as measured by the OP's Surveyor. He has noted down 4000 sq. ft measurement and for which materials used GI pipes, GI wires, 50% shade net insect Net, Aluminum profile, Zigzag Springs for fixing the shade net, with foundation materials. Further valued for 4000 sq. ft @ Rs.625.246 sq. ft amounting to Rs.25,00,984/- and also furnished details as to the rates inclusive of VAT, transportation charges, material items, such as nuts/bolts/screws etc., Though his assessment cannot be accepted in toto, facts remain has to be considered as to use of fabrication Green shed net house was built by Complainant, measures 4000 sq. ft., In such circumstances, the loss assessed by OP's Surveyor needs to be examined by us. Mr.P.Upendra, the Surveyor, Loss Assessor, Investigator and Claim Examiner had assessed the loss at Rs.4,70,000/- and was accepted by the OP that the claim of the insured has to be settle for such amount. It is to be noted herein that the details furnished by Sri Ganesh Enterprises as to the measurement of Green Net House is not disputed by the OP and in such circumstances measurement has to be considered by this Commission for the purpose of assessment of loss on 4000 sq. ft net shed and as assessed at 3025 sq. ft by OP's Surveyor. In other words the assessment as to the measurement is satisfactorily rebutted from the evidence placed by Sri. Ganesh Enterprises. It is found from his report that he has deducted depreciation at 56% and had deducted policy excess 10% besides deducting salvage value and finally assessed at Rs.4,70,000/- payable to the complainant for the loss sustained by him due to heavy storm on 08.05.2017 at about 7 pm to the Green House erected which was insured with OP. In such circumstances, even if we accept all the terms and conditions attached to the Policy as stated supra and accept depreciation of 56%, policy excess 10% and deduction of salvage value is correctly made in consideration of the date of erection of Green House and the date of heavy storm incident occurred on 08.05.2017 at about 7 pm resulting thereby complete destroy of green house erected by the Complainant and accept the contention of OP, as Standard Fire and Special Perils Policy, Material Damage - Schedule is subject to terms and conditions of the policy and assessment made by Mr. P.Upendra is held was made after considering the depreciation as he found at the spot and in considering the age of the Green House as was built two years and 3 months ago before the incident, since as per the policy issued, plastic sheets shall attract 25% depreciation p.a from the date of installation, a depreciation of 66% on the loss assessed was applied, while arriving at the liability and after deduction of excess of 10% sum insured and deduction of salvage considering the measurement and valuation arrived as found in the document issued dated 10.05.2017 by Sri. Ganesh Enterprises, we are of the view that the complainant has to be said claimed loss or damages to the extent as assessed by Sri. Ganesh Enterprises without deducting amount towards depreciation and as per policy conditions as stated above, similarly the OP's Surveyor also not considered the actual fact as to the measurement of the Green House at 4000 sq. ft. In view of these lapses found from the case of the complainant and the defense of the OP-insurer it would be appropriate now for the Commission to assess as follows:
Even if Rs.25,00,984/- assessed by the complainant has to be acceptable, since we held Green House Shed erected measures 4000 sq. ft at the rate of Rs.625.246 per sq. ft, we have to deduct 56% out of the above assessed amount towards depreciation as assessed by Mr.P.Upendra, the Surveyor it would comes to Rs. 14,00,551/- and this amount has to be deducted and after such deduction balance would be worked at Rs.11,00,432/- and out of this amount, as per the terms and conditions of the policy, excess 10% of Rs.28,11,953/- has to be deducted towards policy excess at 10% at Rs.2,81,195/-. In other words by accepting the report of the OP's Surveyor such deductions have to be made to settle the claim by this commission considering the documentary evidence placed on record by parties to the complaint as a whole.
11. In such view of the matter, we hold that the actual damage caused to the Green House suffered by the complainant would be worked at Rs.8,19,238/-. Further, as it is found from the enquiry that the salvage is retained by the complainant as such report of Mr.P.Upendra, the surveyor of OP as to the value of the salvage to be considered at Rs.47,404/-, as such has also to be deducted in the gross assessment of the loss/damage. In such conclusion the Complainant, has to be held entitle for net amount payable by OP for the damage or loss caused to at Rs.7,71,834/-. In other words, the complainant is legally entitled to claim Rs.7,71,834/- for the loss sustained by him due to heavy storm as his green house was covered by Standard Fire and Special Perils Policy, Material Damage - Schedule for the period commencing from 24.05.2016 to 23.05.2017 and since the incident was occurred on 08.05.2017, falls well within this period and the OP is legally liable to settle the claim for such an amount in favour of complainant and for not settling claim has to be said rendering deficiency of services, since OP failed to settle the claim at the earliest point of time, but had driven the complainant to approach consumer commission. The complainant had approached the consumer commission to seek redressal has to be held had suffered mental agony being an agriculturist, as such has to be held entitled for compensation of Rs.75,000/- for the inconvenience caused and mental agony all these years and has also to spend money and time. In such conclusion, we proceed to allow the complaint in part and directed OP to pay Rs.7,71,834/- along with interest at the rate of 9% per annum from the date of repudiation till realization and do pay Rs.75,000/- as compensation for inconvenience and mental agony caused and Rs.25,000/- towards litigation cost within 60 days from the date of the order.
12. Send a copy of this Order to the parties concerned, immediately.
Lady Member Judicial Member *s