State Consumer Disputes Redressal Commission
Pave Infrastructures Pvt.Ltd. vs New India Assurance Company Ltd,The ... on 5 June, 2014
THE STATE CONSUMER DISPUTES REDRESSAL
COMMISSION, SIKKIM AT GANGTOK
JUDGMENT
Consumer Complaint Case No.02 of 2013 Pave Infrastructures Pvt. Ltd.
represented by its Director
Shri Mahabir Agarwal,
2nd Mile, Sevoke Road,
Siliguri,
West Bengal. ... Complainant
versus
1. The New India Assurance Company Limited through The Branch Manager, Siliguri Branch, Malhotra Towers, Hill Cart Road, Siliguri, West Bengal.
2. The Branch Manager, New India Assurance Company Limited, Gangtok Branch, Gangtok, East Sikkim. ... Opposite Parties For Petitioner : Mr. A. K. Upadhyaya, Senior Advocate with Mr. Rahul Rathi, Ms. Binita Chettri and Ms. Aruna Chettri, Advocates.
For Opposite Parties : Mr. Sudesh Joshi, Advocate. 2
Consumer Complaint Case No.02 of 2013 Pave Infrastructure Pvt. Ltd. vs. The New India Assurance Co. Ltd. and Another CORAM HON'BLE MR. JUSTICE S. P. WANGDI, PRESIDENT MRS. GEETA GURUNG, MEMBER DATE OF JUDGMENT : 05-06-2014 Wangdi, J.
1. The Complainant is a Construction Company registered under the Companies Act, 1956, having its Registered Office at 2nd Mile, Sevoke Road, Siliguri, West Bengal, which had been awarded with a construction work of Multi-Level Car Parking with allied facilities at Mangan, North Sikkim (in short the "Project') by the National Buildings Construction Corporation Limited (NBCCL), Tadong, Gangtok, East Sikkim. In order to insure the Project against future probable losses, the Complainant had taken an insurance policy, namely, "Contractors All Risk Insurance" from the Opposite Party No.1, the New India Assurance Company Limited, who in the present Complaint is represented by its Branch Manager, Gangtok Branch. The insurance policy bearing no.512301/44/09/ 03/60000002, taken in the joint names of NBCCL and the Complainant, was valid for the period commencing on 16- 02-2010 and ending on 15-06-2012.
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Consumer Complaint Case No.02 of 2013 Pave Infrastructure Pvt. Ltd. vs. The New India Assurance Co. Ltd. and Another 2(i) It is stated that a heavy landslide that had occurred on 13-01-2011 at the construction site of the Project substantially damaged the ongoing construction and some other properties covered under the insurance policy in question. A First Information Report lodged in this regard led the Mangan Police Station, North Sikkim, to make a G.D. Entry bearing No.504 dated 13-01-2011. Necessary intimation was also sent by the Complainant to the OP No.1 regarding the damage caused to the Project with a claim for recovery of the loss.
(ii) Pursuant to the intimation and claim of the Complainant the OP No.1, insurance company, had deputed a Surveyor for assessing the loss. At the same time the Complainant also engaged one Shri Sunil Kumar Agarwal, Surveyor & Loss Assessor and Grade - I Civil Engineer for the purpose. The OP No.1, however, did not inform the Complainant of the exact amount of loss assessed by them despite several oral and written requests. It is stated that the Complainant had submitted all required documents as sought for by the OP No.1 for a just assessment of the damages along with the claim form including a detailed estimate of loss amounting to 4 Consumer Complaint Case No.02 of 2013 Pave Infrastructure Pvt. Ltd. vs. The New India Assurance Co. Ltd. and Another Rs.40,70,531.29 assessed by Shri Sunil Kumar Agarwal, the Surveyor & Loss Assessor deputed by them. It is the assertion of the Complainant that the estimate of loss was against the actual expenditure incurred by them for restoration of the insured property damaged by the landslide which, as per them, was legally required to be paid by the OPs.
(iii) The Complainant, on being informed of the approval of their claim seeking details of their bank account for transfer of the amount, had asked OP No.1 to first furnish the quantum of claim settled by them. However, the authorised representative of OP No.1 instead by letter dated 01-09-2012 surprisingly informed that only a sum of Rs.1,01,274/- was offered as full and final settlement against their claim of Rs.40,70,531.29. The request for information made by the Complainant as to the basis on which such amount had been arrived at vide letter dated 14-09-2012, was refused by the OP No.1 and instead insisted that the Complainant should furnish their bank account details and settlement vouchers within a period of 7 days from the date of receipt of their letter dated 19-09-2012 failing which their claim would be 5 Consumer Complaint Case No.02 of 2013 Pave Infrastructure Pvt. Ltd. vs. The New India Assurance Co. Ltd. and Another closed as "No Claim". A subsequent request made to that effect vide letter dated 01-10-2012 was again refused leading to a legal notice dated 26-03-2013 being issued to the OPs demanding Rs. 40,70,531.29 against loss as assessed by the Surveyor & Loss Assessor engaged by them.
(iv) In their written version the OPs have denied all material allegations made in the Complaint. It is alleged that on receipt of the written intimation dated 14-01-2011 from the Complainant, Shri Pradip Sen, an independent IRDA approved licensed Surveyor and Loss Assessor, Siliguri, engaged by the OP No.1 on the very day, i.e., 14- 01-2011, visited the spot for survey on 25-01-2011 and 26-01-2011. It is alleged that the Complainant failed to furnish a number of documents sought for many times by the Surveyor both orally and in writing, the last of which was letter dated 30-08-2011 sent by Registered Post with AD. It is asserted that the Surveyor engaged by the Complainant was not an IRDA approved and licensed Surveyor and Loss Assessor and no prior written consent was taken from the OPs before deputing him. As such, the estimate prepared by the Surveyor was not valid in 6 Consumer Complaint Case No.02 of 2013 Pave Infrastructure Pvt. Ltd. vs. The New India Assurance Co. Ltd. and Another terms of the provisions of the Insurance Act, 1938 and the IRDA Rules and Regulations. It is also alleged that no requisition for joint survey was demanded by the Complainant. Even then the estimate prepared by the unapproved and unlicensed Surveyor had not been submitted to the OPs but held back for wrongful gains.
(v) These are the substantial stand taken on behalf of the OPs apart from various others which, in our view, would not be material for the reasons that shall follow hereafter.
3. It is pertinent to note that on 15-03-2014 prayer was made on behalf of Mr. Sudesh Joshi, Learned Advocate, appearing on behalf of the OPs, to permit him to cross-examine the Valuer, Shri Sunil Kumar Agarwal, on the assessment of loss prepared by him. Accordingly, summons was issued to the said Shri Sunil Kumar Agarwal who was examined on 26-05-2014 fixing 31-05-2014 for hearing.
4. On 31-05-2014 when the matter was taken up for hearing only two issues were pressed on behalf of the OPs which were -
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Consumer Complaint Case No.02 of 2013 Pave Infrastructure Pvt. Ltd. vs. The New India Assurance Co. Ltd. and Another
(i) The validity of the estimate of loss prepared by Shri Sunil Kumar Agarwal, Surveyor and Loss Assessor;
and
(ii) Maintainability of the Complaint on the ground that the Complainant is not a 'Consumer' as defined under Section 2(1)(d)(ii) of the Consumer Protection Act, 1986.
In view of the above, we may confine ourselves only to these two questions.
5. Since it was the OPs who had raised the above two issues, we requested Mr. Sudesh Joshi, Learned Counsel, appearing on behalf of the OPs, to address us first.
6(i). It is submitted by Mr. Joshi that under Section 64UM of the Insurance Act, 1938, it is only a person who holds a valid licence issued to him under Section 3 of the Insurance Regulatory and Development Authority Act, 1999 (in short the 'IRDA'), who can act as a Surveyor or Loss Assessor which Shri Sunil Kumar Agarwal was not. The licence issued to him by the IRDA exhibited and marked 'X' did not cover the category 'Engineer' involved 8 Consumer Complaint Case No.02 of 2013 Pave Infrastructure Pvt. Ltd. vs. The New India Assurance Co. Ltd. and Another in the present case but to category 'C' which provides only for 'fire'. It is thus submitted that the estimate prepared by him is invalid.
(ii) The Learned Counsel then proceeded to question the conduct of Shri Sunil Kumar Agarwal in agreeing to do the survey and estimate the loss. It is submitted that being a licensed Surveyor and Loss Assessor for category 'C', he would be aware of the requirements prescribed under the Insurance Surveyors and Loss Assessors (Licensing, Professional, Requirements and Code of Conduct) Regulations, 2000, Regulation 14(4) of which provides that every Surveyor and Loss Assessor shall be eligible to carry on the work as a Surveyor or Loss Assessor only as per the categorisation specified in the licence. Further, Regulation 15(5) mandates that a Surveyor and Loss Assessor shall not accept or perform survey works in areas which he does not hold a licence, and under Clause (6) it has been clearly laid down that a Surveyor and Loss Assessor shall not accept or perform work which he is not competent to undertake, unless he obtains some advice and assistance, as will enable him to carry out the work competently. That Shri Sunil Kumar 9 Consumer Complaint Case No.02 of 2013 Pave Infrastructure Pvt. Ltd. vs. The New India Assurance Co. Ltd. and Another Agarwal having acted in violation of these provisions of the Regulations, he was unworthy of the trust reposed under the Regulations and resultantly, the estimates prepared by him could not be held to be valid and reliable.
(iii) On the question of maintainability it was his submission that when it has been asserted that the Complainant is a 'Consumer' within the meaning of Consumer Protection Act, 1986, it was upon the Complainant to discharge the burden of proof that they are indeed such a Consumer. It is stated that since the Project insured was a commercial one, it was not covered within the meaning of 'Consumer' appearing in Section 2(1)(d)(ii) of the Consumer Protection Act, 1986. Reliance on this proposition was placed to Uttar Pradesh Power Corporation Limited and Others vs. Anis Ahmad : (2013) 8 SCC 491 and Cheema Engineering Services vs. Rajan Singh : (1997) 1 SCC 131.
7(i). Mr. A. K. Upadhyaya, Learned Senior Counsel, appearing on behalf of the Complainant, on the other hand, refuted the points asserted on behalf of the Ops which are dealt with in seriatim below:- 10
Consumer Complaint Case No.02 of 2013 Pave Infrastructure Pvt. Ltd. vs. The New India Assurance Co. Ltd. and Another
(ii) The validity of the estimate of loss prepared by Shri Sunil Kumar Agarwal, Surveyor and Loss Assessor.
It is submitted that Shri Sunil Kumar Agarwal in the first instance, is a Civil Engineer having a degree of Bachelor of Civil Engineering which is apparent from the notarised copy of a degree issued by the Jadavpur University. He is a Class 'A' Licensed Building Surveyor under the Siliguri-Jalpaiguri Development Authority, Siliguri and admittedly, also a licensed Surveyor and Loss Assessor under the Insurance Act, 1938, issued by the IRDA. Even if he did not hold a licence in the category of Engineering, as per the licence issued by the IRDA, he is a qualified Civil Engineer holding a valid degree of Bachelor of Civil Engineering and, therefore, a person eligible for a licence to act as a Surveyor or Loss Assessor under Section 64UM(1)(D) of the Insurance Act, 1938. As per him, this position stand vindicated by virtue of the decision of the Hon'ble Supreme Court in New India Assurance Company Limited vs. Pradeep Kumar : 2011 (7) RCR (Civil) 395. Mr. Upadhyaya also sought to rely upon a decision of the Delhi High Court in Surveyors Welfare Association (Regd.) vs. Union of India and Others : AIR 11 Consumer Complaint Case No.02 of 2013 Pave Infrastructure Pvt. Ltd. vs. The New India Assurance Co. Ltd. and Another 1995 Delhi 382. It is thus submitted that there was no infirmity in law in the estimate of loss prepared by Shri Sunil Kumar Agarwal as alleged on behalf of the OPs.
(iii) Maintainability of the Complaint on the ground that the Complainant is not a 'Consumer' as defined under Section 2(1)(d)(ii) of the Consumer Protection Act, 1986.
It is submitted that this question was irrelevant and the contention raised on behalf of the OPs was mis- conceived as would appear from the very definition of 'Consumer' contained in Section 2(1)(d)(ii) of the Consumer Protection Act, 1986. It is an admitted position that the insurance policy had been taken by the Complainant from the OP No.1 under the terms and conditions as contained in the policy in question. For all intent and purpose, the Complainant was a 'Consumer' and, the service rendered by the OP No.1 would be covered definition of 'Service' under Section 2(1)(o) of the Consumer Protection Act, 1986. The decision of the National Consumer Disputes Redressal Commission in M/s. Ritu Gram Udyog Samiti vs. The New India Assurance Company Limited : 2009 (1) WBLR 285 was cited in support of this contention.
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Consumer Complaint Case No.02 of 2013 Pave Infrastructure Pvt. Ltd. vs. The New India Assurance Co. Ltd. and Another
8. We have considered the Complaint, the written version and the submissions made by the respective Counsel for the parties. As observed earlier, on behalf of the OPs only two questions noted above had been pressed at the time of hearing. We, therefore, have deemed it appropriate to confine our findings only on those two questions.
9. The validity of the estimate of loss prepared by Shri Sunil Kumar Agarwal, Surveyor and Loss Assessor.
(i) Although much has been said about the basis and manner in which the estimates were prepared by Shri Sunil Kumar Agarwal, the Civil Engineer who was engaged by the Complainant for the purpose, the only contention pressed on that at the time of hearing was as regards his capacity and qualification to act as a Surveyor and Loss Assessor on the ground that he did possess a valid licence to do so as required under Section 64UM of the Insurance Act, 1938. In other words, it was not the assessment that was under challenge but rather its validity as having been prepared by an unauthorised person. It would, therefore, be essential to examine as to whether the contention raised on behalf of the OPs would be acceptable or not. 13
Consumer Complaint Case No.02 of 2013 Pave Infrastructure Pvt. Ltd. vs. The New India Assurance Co. Ltd. and Another
(ii) Having thought it fit we have first examined as to whether Shri Sunil Kumar Agarwal possessed the necessary qualification required under the Insurance Act, 1938, to be eligible to be registered as a Surveyor & Loss Assessor. We find from Annexure 19 to the Complaint, the notarised copy of the degree, that Shri Shri Kumar Agarwal is a Bachelor of Civil Engineering from the Jadavpur University. Annexure 20 to the Complaint is a notarised copy of an Identification Card for Licensed Building Surveyor Class 'A' issued in the name of Sunil Kumar Agarwal vide Memo No.1291/ Planning/SJDA dated 01-04-2004 issued on behalf of the Chief Executive Officer of the Siliguri-Jalpaiguri Development Authority, Siliguri. Next, is the Licence bearing No.58428/2012-2017 for Renewal Licence to act as a Surveyor and Loss Assessor under the Insurance Act, 1938, in the name of Sunil Kumar Aggarwal duly allocating Category 'C' provided for department of 'Fire' issued by the IRDA-Surveyor Department, Hyderabad, marked 'X'. These documents would clearly lead one to conclude most unhesitatingly that Shri Sunil Kumar Agarwal was qualified to act as a Surveyor and Loss Assessor under the Insurance Act, 14 Consumer Complaint Case No.02 of 2013 Pave Infrastructure Pvt. Ltd. vs. The New India Assurance Co. Ltd. and Another 1938. The IRDA Licence marked Exhibit 'X' confirms this position, although it was issued for Category 'C' fire department.
(iii) In the case of Pradeep Kumar (supra) in similar facts as obtaining in the present case, the Hon'ble Supreme Court while examining the scope of Section 64UM(2) held as follows:-
"21. Section 64-UM(2) of the Act 1938 reads:
"No claim in respect of a loss which has occurred in India and requiring to be paid or settled in India equal to or exceeding twenty thousand rupees in value on any policy of insurance, arising or intimated to an insurer at any time after the expiry of a period of one year from the commencement of the Insurance (Amendment) Act, 1968, shall, unless otherwise directed by the Authority, be admitted for payment or settled by the insurer unless he has obtained a report, on the loss that has occurred, from a person who holds a licence issued under this section to act as a surveyor or loss assessor (hereafter referred to as "approved surveyor or loss assessor"):
Provided that nothing in this sub- section shall be deemed to take away or abridge the right of the insurer to pay or settle any claim at any amount different from the amount assessed by the approved surveyor or loss assessor."
The object of the aforesaid provision is that where the claim in respect of loss required to be 15 Consumer Complaint Case No.02 of 2013 Pave Infrastructure Pvt. Ltd. vs. The New India Assurance Co. Ltd. and Another paid by the insurer is Rs. 20,000/- or more, the loss must first be assessed by an approved surveyor ( or loss assessor) before it is admitted for payment or settlement by the insurer. Proviso appended thereto, however, makes it clear that insurer may settle the claim for the loss suffered by insured at any amount or pay to the insured any amount different from the amount assessed by the approved surveyor (or loss assessor).
22. In other words although the assessment of loss by the approved surveyor is a pre-requisite for payment or settlement of claim of twenty thousand rupees or more by insurer, but surveyor's report is not the last and final word. It is not that sacrosanct that it cannot be departed from; it is not conclusive. The approved surveyor's report may be basis or foundation for settlement of a claim by the insurer in respect of the loss suffered by the insured but surely such report is neither binding upon the insurer nor insured." [emphasis supplied]
(iv) On a close examination of the pleadings and the documents, we find that the Complainant had intimated the OP No.1 on 14-01-2011 of the damage caused to the Project site due to collapse of the vehicular road situated behind it. It had been clearly informed that "the sheet piling as well as the guard wall had collapsed in the landslide requesting to take necessary steps towards the incident". We also find that a General Diary had been lodged on 13-01-2011 as soon as the incident had taken place.
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Consumer Complaint Case No.02 of 2013 Pave Infrastructure Pvt. Ltd. vs. The New India Assurance Co. Ltd. and Another
(v) It appears from the various correspondences exchanged between the parties that on being asked by the OPs to submit their bank details for transfer of the claim amount, the Complainant had consistently been requesting the OPs for the details of the claim of settlement arrived at as they had not been informed of that. We find at least two such letters dated 19-05-2012 and 18-06-2012 which the OP No.1 had responded to by their letter dated 01-09-2012 conveying that (i) the claim had been approved for an amount of Rs.1,01,274/-; (ii) that the Complainant should sign on the enclosed voucher indicating their full and final settlement of the claims; and
(iii) should furnish their bank particulars. The Complainant by letter dated 14-09-2012, however, expressed their inability to acknowledge the receipt of the amount approved by the OPs reiterating again that they should first be shown the basis of the calculation by which the amount was arrived at.
(vi) In reply to the aforesaid letter, we find that the OPs appears to have simply repeated the assessment of the claims as per their estimates without furnishing the details sought for by the Complainant. This was conveyed 17 Consumer Complaint Case No.02 of 2013 Pave Infrastructure Pvt. Ltd. vs. The New India Assurance Co. Ltd. and Another by the Complainant in their letter dated 01-10-2012 at the same time expressing their dis-satisfaction on the amount settled by the OPs as their claim was much higher and, further demanding that the claim as preferred by them be satisfied within a period of seven days from the date of receipt of the letter failing which they would be compelled to take resort to proceedings as provided under the insurance policy in question. The OPs having failed to respond, a legal notice dated 26-03-2013 was issued demanding payment of Rs.40,70,531.29 assessed by the Surveyor deputed by the Complainant. The OPs replied to the legal notice by their letter dated 22-04-2013 in which it was, inter alia, alleged that the Complainant had not deputed any Surveyor for assessing the loss as claimed by them and that the estimate of loss dated 30-01-2011 (wrongly mentioned as 25-01-2012) prepared by Shri Sunil Kumar Agarwal was not proper and lawful. Since the estimate of loss of Rs.1,01,274/- offered by the OPs was prepared on the basis of a report of an independent IRDA licensed Surveyor and Loss Assessor, the Complainant was legally entitled only to that sum. This then led to the filing of the present Complaint.
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Consumer Complaint Case No.02 of 2013 Pave Infrastructure Pvt. Ltd. vs. The New India Assurance Co. Ltd. and Another
(vii) On a careful examination of the documents relied up on by the OP No.1, we find that on 26-06-2011 the final survey report (Annexure 8 to the written version) had already been submitted by Shri Pradip Sen, the Surveyor and Loss Assessor deputed by the OP No.1 while the preliminary survey report was dated 27-01-2011 (Annexure 7 to the written version). We, therefore, find it difficult to understand as to why documents were being sought for from the Complainant even as on 19-08-2011 (Annexure 5 collectively to the written version) by the said Surveyor and Loss Assessor and, by the OP No.1 through their letter dated 30-08-2012 (Annexure 6 to the written version) which is about two months after submission of the final survey report. Grave doubts, therefore, would arise as to the bona fides of the stand taken by the OP No.1 vitiating the very authenticity of the estimate of loss prepared by Shri Sen. We are also surprised to note the obduracy on the part of the OP No.1 in not providing the details of estimate of loss to the Complainant as demanded by them. This reinforces our doubts as regards the very authenticity and existence and, therefore, reliability of the survey report prepared by Shri Sen. 19
Consumer Complaint Case No.02 of 2013 Pave Infrastructure Pvt. Ltd. vs. The New India Assurance Co. Ltd. and Another
(viii) Contrary to the submissions otherwise placed by Shri Sudesh Joshi, we are of the firm opinion that the OP No.1, being a statutory body, ought to have called for a joint survey or approached the IRDA for recommending an independent Surveyor in its panel for a fresh survey of the damages. Instead of doing so, we find that they have resorted to being persistent in their denial and refusal even to furnish the details of the survey report on the basis of which they had estimated the loss at a paltry sum of Rs.1,01,274/-. It is pertinent to note that from the photographs of the Project site taken after the landslide there can be no doubt that the damage was quite severe. The photographs clearly reflect that a large section of the road situated above the Project site had collapsed destroying most of the works at the Project site located below which belies the loss assessed by the Surveyor.
(ix) We also find that a large number of vouchers have been filed by the Complainant as proof of the expenditure incurred by them for repairing the damages. The only objection on those documents raised on behalf of the OPs was that the vouchers were all post the date of the incident and, therefore, not valid as proof of the 20 Consumer Complaint Case No.02 of 2013 Pave Infrastructure Pvt. Ltd. vs. The New India Assurance Co. Ltd. and Another damages. We find it difficult to accept this contention as repairs of the damages would naturally be carried out only after the damages have occurred. The bulk of the vouchers pertain to purchase of boulders, aggregate, stones, sand, ply boards, hardwoods, cement, fuel and labour costs. Claim against MS steel rods forms only a small portion. We find this to be credible and beyond reproach and accordingly accept them as valid.
(x) Shri Sunil Kumar Agarwal in his statement in answer to a question put by us had stated most unequivocally that he had physically measured the structure and recorded the physical existence of the work done in his assessment as a Civil Engineer by following the Civil Engineering principles that the construction materials used commonly are MS steel, sand, aggregate, boulders, cement and labour both skilled and unskilled and the rates of these items were applied as per the prevailing market rates which could easily be assessed by making a market survey of the area where the construction was being undertaken. That some of the rates applied in fact were less then what was prevailing. These statements have neither been contradicted nor demolished in any manner 21 Consumer Complaint Case No.02 of 2013 Pave Infrastructure Pvt. Ltd. vs. The New India Assurance Co. Ltd. and Another on behalf of the OPs. We, therefore, have no hesitation in accepting the statement of Shri Sunil Kumar Agarwal and the estimate of loss prepared by him as being valid in law, more particularly, in view of the ratio laid down in the case of Predeep Kumar (supra).
10. Maintainability of the Complaint on the ground that the Complainant is not a 'Consumer' as defined under Section 2(1)(d)(ii) of the Consumer Protection Act, 1986.
(i) In our view, this objection is not at all sustainable as we are clearly of the view that the OPs suffer from a serious mis-conception. In order to appreciate this, we may reproduce below Sections 2(1)(d)(i), 2(1)(d)(ii) and 2(1)(o) of the Consumer Protection Act, 1986:-
"2. Definitions.--(1) In this Act, unless the context otherwise requires, --
.....................................................................
(d) "consumer" means any person who,--
(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or 22 Consumer Complaint Case No.02 of 2013 Pave Infrastructure Pvt. Ltd. vs. The New India Assurance Co. Ltd. and Another partly promised, or under any system of deferred payment, when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or
(ii) hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purpose;
Explanation.--For the purposes of this clause, "commercial purpose" does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self-employment;
.....................................................................
(o) "service" means service of any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing insurance, transport, processing, supply of electrical or other energy, board or lodging or both, housing construction, 23 Consumer Complaint Case No.02 of 2013 Pave Infrastructure Pvt. Ltd. vs. The New India Assurance Co. Ltd. and Another entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service;"
(ii) From the above, indubitably 'Consumer' would mean any person who hires any service for consideration and 'Service' would mean a service of any description which is made available to potential users and includes the provision of facilities in connection with insurance as defined in Section 2(1)(o) of the Consumer Protection Act, 1986.
(iii) It is apparent from a bare perusal of the policy in question that it is a "Contractors All Risk Insurance"
meaning thereby that the policy indemnifies any description of the risk that the contractors may face with regard to the Project in question. There can be no second opinion on the fact that the cause of the damage and the damage of the kind caused to the Project site fall within the perils duly insured under the policy of insurance.
(iv) Failure on the part of the OPs to satisfy the indemnity it had guaranteed under the policy would, therefore, amount to deficiency of service. Reference may 24 Consumer Complaint Case No.02 of 2013 Pave Infrastructure Pvt. Ltd. vs. The New India Assurance Co. Ltd. and Another be made to Umedilal Aggarwal vs. United India Assurance Co. Ltd. : 1991 (1) CPR 217; J. Sarveswara Rao vs. Branch Manager, National Insurance Co. Ltd. and Others : 1991 (II) CPR 567 (AP) and The new India Assurance Co. Ltd. vs. M/s. Vipro Electronics Pvt. Ltd. : I (1991) CPJ 335 (NCDRC) in which the case of Umedilal Aggarwal (supra) was relied upon by the National Consumer Disputes Redressal Commission. We, therefore, do not find any substance in the objection raised on behalf of the OPs and is accordingly rejected.
11(i). After having discussed the various issues and after arriving at our findings set out above, the question that would then call for our determination would be the quantum of compensation that the Complainant would be entitled to. In order to determine this, we find it essential to reproduce paragraph 9 of the Complaint which reads as follows:-
"9. THAT the complainant had issued a legal notice dated: 26-03-2013 upon the Opposite Parties claiming an amount of Rs. 40,70,531.29/- on the basis of the estimate of loss prepared by the independent surveyor Shri Sushil (sic) Kumar Agarwal.
The schedule time of completion of the work being 24 months , the complainant had to start the re-construction of the damaged part of the project as aforesaid, the 25 Consumer Complaint Case No.02 of 2013 Pave Infrastructure Pvt. Ltd. vs. The New India Assurance Co. Ltd. and Another complainant accordingly started the re- construction of the same by incurring a total additional expenditure of Rs. 38,14,278 ( All the receipts/vouchers are annexed with the list of documents).
Accordingly, the complainant now claims an amount of Rs. 38,14,278 to be indemnified by the Opposite Party No. 01 as covered by the policy of insurance."
(ii) As would be evident from the above, the claim made in the Complaint is not the estimate of loss arrived at by the independent Surveyor Shri Sunil Kumar Agarwal amounting to Rs.40,70,531.29 but the actual expenditure incurred by the Complainant in carrying out the restoration work on the damaged part of the Project which is Rs.38,14,278/- being the total amount of the ones reflected in the receipts/vouchers, Annexures 18(1) to 18(14) to the Complaint. Under these circumstances, the entire discussion on the competence of Shri Sunil Kumar Agarwal to act as a Surveyor and Loss Assessor, in our view, appear to be redundant and of no consequence except to the limited extent of the details of the damage caused in the Project site.
12(i). In their written version, in paragraph 25, the OPs no doubt have denied the Complainant having incurred the expenditure of Rs.38,14,278/- and that the 26 Consumer Complaint Case No.02 of 2013 Pave Infrastructure Pvt. Ltd. vs. The New India Assurance Co. Ltd. and Another said amount was indemnified by the OPs-Insurance Company. However, as already noted by us earlier, the only objection on that account raised orally by the Learned Counsel for the OPs during the hearing was that the dates of receipts/vouchers filed in original with the Complaint as Annexures 18(1) to 18(14) to the Complaint were post the date of the incident. On the other hand, the Complainant in their affidavit have affirmed that the statements contained in paragraph 9, apart from other paragraphs, "are true to the best of the knowledge" of Shri Mahabir Agarwal, Director and authorized representative of the Complainant Company. Extract of the minutes of the Board meeting authorising the said Shri Mahabir Agarwal, to represent the Complainant has also been filed as Anneuxre 16 to the Complaint.
(ii) As against this, the affidavit duly sworn by the OP No.2 in support of their written version affirms that the statements contained in paragraph 25 amongst others of the written version are "true to the best of his information derived from the official records available in his possession" which he believes to be correct. However, no material was placed before us either in the written version 27 Consumer Complaint Case No.02 of 2013 Pave Infrastructure Pvt. Ltd. vs. The New India Assurance Co. Ltd. and Another or during the course of the arguments to contradict the authenticity of the receipts/vouchers filed as Annexures 18(1) to 18(14) to the Complaint and that those did not reflect the true expenditure incurred by the Complainant towards the restoration work of the damage caused by the landslide. Under these circumstances, when we consider the evidence on the principle of oath versus oath, we find no impediment in law to accept the receipts/vouchers marked as Annexures 18(1) to 18(14) to the Complaint as authentic and that those reflect the expenditure incurred by the Complainant for restoration of the damage caused to the Project due to the landslide.
13. Considering the above and the doubts expressed by us earlier with regard to the survey report submitted by Shri Pradip Sen, Surveyor and Loss Assessor said to have been deputed by the OP No.1, we are of the considered view that there is no infirmity in the claim made by the Complainant.
14. In the facts and circumstances, we direct the OPs to pay to the Complainant Rs.38,14,278/- (Rupees thirty eight lakhs fourteen thousand two hundred and 28 Consumer Complaint Case No.02 of 2013 Pave Infrastructure Pvt. Ltd. vs. The New India Assurance Co. Ltd. and Another seventy eight) only being the expenditure incurred by the Complainant in restoring the damage to the Project caused by the landslide. We, however, reject the claim of Rs.1,00,000/- as damages for causing harassment, mental tension and agony.
15. The Complainant shall also be entitled to an interest @ 10% on the above sum from the date of the claim before us until full and final satisfaction thereof. The awarded amount shall be paid to the Complainant within six weeks from the date of this judgment and not later than that.
16. In the result, the Complaint succeeds in part.
17. No order as to costs.
Sd/-
( S. P. Wangdi ) President 05-06-2014 Sd/-
( Geeta Gurung ) Member 05-06-2014 Approved for reporting : Yes Internet : Yes ds