State Consumer Disputes Redressal Commission
National Insurance Co. Ltd. vs Sh. Kam Raj Sharma. on 15 June, 2015
H.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
SHIMLA.
First Appeal No.42/2015
Date of Presentation: 24.04.2015
Date of Decision: 15.06.2015
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National Insurance Company Limited,
Through its Senior Divisional Manager,
Hotel Himland, Shimla, H.P.
.......... Appellant .
Versus
Kam Raj Sharma, son of Shri Dev Raj Sharma,
Resident of Village Kuhal, Post Office Deothi,
Tehsil Rampur, District Shimla, H.P.
.......... Respondent.
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Coram
Hon'ble Mr. Justice Surjit Singh, President.
Hon'ble Mrs. Prem Chauhan, Member.
Hon'ble Mr. Vijay Pal Khachi, Member.
Whether approved for reporting?1 Yes.
For the Appellant:
Mr. Anil Tomar, Advocate.
For the Respondent:
Ms. Madhurika Verma, Advocate vice
Mr. Mohinder Verma, Advocate.
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O R D E R:
Justice Surjit Singh, President (Oral) Appellant has preferred this appeal against the order dated 28.02.2015 of learned District Consumer Disputes Redressal Forum, Shimla, whereby a complaint, under Section 12 of the 1 Whether Reporters of the local papers may be allowed to see the order? National Insurance Company Limited Versus Kam Raj Sharma (F.A. No.42/2015) ____________________________________________________________ Consumer Protection Act, 1986, filed against it by respondent, Kam Raj Sharma, has been allowed and a direction given to it, to pay a sum of `4,25,100/-, on account of insurance money, with interest at the rate of 9% per annum, from the date of filing of complaint, to the date of payment of the said amount of money and also to pay `25,000/-, on account of damages and litigation expenses.
2. Respondent, Kam Raj Sharma, had an RCC structure, comprising of three shops and a residential room in Village Kuhal, which he got insured with the appellant in the sum of `7.00 lacs, for the period from 07.08.2008 to 06.08.2009. According to the respondent/complainant, there was a cloudburst in the village on 26.08.2008, which resulted in a landslide and the landslide damaged the insured building, almost completely. He lodged a report with the police on the very next date of incident. Intimation of damage to the insured house was given to the appellant also. A Surveyor deputed by the appellant visited the spot on 14.09.2008 and assessed the loss at `62,689/-. After reducing this amount, on account of depreciation due to age of the building and Page 2 of 8 National Insurance Company Limited Versus Kam Raj Sharma (F.A. No.42/2015) ____________________________________________________________ excess clause, he recommended payment of a sum of `41,167/-. Respondent on coming to know that Surveyor had recommended payment of only a sum of `41,167/-, got the spot inspected from an Architect, who vide report dated 20.11.2008, reported that building had been damaged beyond repair and it required re-construction. He assessed the cost of re- construction/re-production of the building at `4,25,081/-. Appellant offered to pay a sum of `41,167/-, assessed by its Surveyor and asked for the consent of the respondent. Respondent refused to consent for acceptance of the aforesaid amount of money in full and final satisfaction of his claim, upon which the appellant closed the claim.
3. Respondent then, filed a complaint, under Section 12 of the Consumer Protection Act, 1986, before the learned District Consumer Disputes Redressal Forum, Shimla, seeking a direction to the appellant to pay a sum of `4,25,081/-, as assessed by the Architect, engaged by him, besides praying for award of compensation and litigation expenses.
4. Appellant contested the complaint and pleaded that slab and back wall of only one of the Page 3 of 8 National Insurance Company Limited Versus Kam Raj Sharma (F.A. No.42/2015) ____________________________________________________________ three shops had been damaged and that though there were minor cracks in the back walls of two other shops, the same were old ones. Damage to the retaining wall was admitted. It was stated that Surveyor deputed by the appellant assessed the loss at `41,167/-. According to the appellant a number of photographs were taken by the Surveyor, which showed that damage had been caused only to the lintel and a wall of one of the three shops and the damage was repairable.
5. An application was moved by the respondent for appointment of a Local Commissioner, which was allowed by the learned District Forum, vide order dated 11.06.2012. An Assistant Engineer of Himachal Pradesh Public Works Department, was appointed as Local Commissioner. He visited the spot behind the back of the appellant and submitted report, which is available at pages 173 to 185 of the record of learned District Forum. Local Commissioner, per his report, which is in the form of an estimate, reported that a sum of `4,36,957/-, was required for reconstruction of the building.
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National Insurance Company Limited Versus Kam Raj Sharma (F.A. No.42/2015) ____________________________________________________________
6. Learned District Forum, on the basis of report of Architect, engaged by the respondent, as also the report of Local Commissioner, has allowed the complaint and directed the appellant to pay a sum of `4,25,100/-, as claimed by the respondent, with interest at the rate of 9% per annum and also to pay `25,000/-, as compensation and litigation expenses.
7. We have heard learned counsel for the parties and gone through the record.
8. As already noticed, on the very next day of the alleged cloudburst, resulting in massive landslide, respondent himself made a report to the police, in which it was stated that slab and back wall of the shop (the use of word shop in singular implies only one shop in which business was being run) was damaged. Surveyor deputed by the appellant visited the spot on 14.09.2008, or say about twenty days after the occurrence. He took a number of photographs, which are part of his report, Annexure R-3. The photographs show that no damage was caused to the front side of the shops. Not only this, even no damage was caused to the goods, kept in the shop and the goods were found properly stacked in Page 5 of 8 National Insurance Company Limited Versus Kam Raj Sharma (F.A. No.42/2015) ____________________________________________________________ the racks and shelves. These photographs do show some cracks in the back walls of the structure, but barring one, the cracks are minor and as per Surveyor, these cracks were old and not caused by the landslide, in question.
9. Architect, whose services were availed by the respondent to get the loss assessed, also took some photographs, per his report, Ext.CW/A. Respondent for the reasons best known to him, has not placed on record those photographs. Architect has prepared the estimate of re-construction of the entire building, comprising of three shops and a residential room. As per his estimate, a sum of `4,25,081/- would be required for re-production of the building. The building itself was insured in the sum of `7.00 lacs. Withholding of the photographs taken by the Architect, whose services were hired by the respondent, renders the respondent liable to adverse inference.
10. Local Commissioner visited the spot, without giving any notice of his visit to the appellant. Inspection was carried out behind the back of the appellant. He was cross-examined by the appellant Page 6 of 8 National Insurance Company Limited Versus Kam Raj Sharma (F.A. No.42/2015) ____________________________________________________________ and his cross-examination shows that he had prepared the estimate of re-construction of the building. The photographs taken by the Surveyor deputed by the appellant shows that slab and back wall of only one of three shops of the building, in question, has developed cracks and which, in our view, based on the inner condition of the shop, as depicted by photographs, can be repaired, without requiring dismantling of the said shop.
11. In view of the above stated position, we allow the appeal, set aside the impugned order and dismiss the complaint. However, the appellant is directed to pay the amount of `41,167/- to the respondent, together with interest at the rate of 9% per annum, from the date of filing of complaint, i.e. 13.07.2009, to the date of payment of the aforesaid amount of money, because the appellant ought to have paid the aforesaid amount of money to the respondent, as soon as it accepted the report of the Surveyor. It could not have closed the claim simply for the reason that respondent refused to accept the aforesaid amount of money, in full and final satisfaction of his claim.
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National Insurance Company Limited Versus Kam Raj Sharma (F.A. No.42/2015) ____________________________________________________________
12. A copy of the order be sent to each of the parties, free of cost, as per Rules.
(Justice Surjit Singh) President (Prem Chauhan) Member (Vijay Pal Khachi) Member June 15, 2015.
*dinesh* Page 8 of 8