State Consumer Disputes Redressal Commission
Sh. Mangat Ram vs National Insurance Co. Ltd. on 19 January, 2024
Appeal No. Sh. Mangat Ram 19.01.2024
142 of 2011
Vs.
Branch Manager,
National Insurance Co. Ltd. & Others
STATE CONSUMER DISPUTES REDRESSAL COMMISSION UTTARAKHAND, DEHRADUN
Date of Institution: 14.07.2011
Date of Final Hearing: 04.01.2024
Date of Pronouncement: 19.01.2024
First Appeal No. 142 / 2011
Sh. Mangat Ram S/o Sh. Jagram
R/o Village Purwala, Birsangpur, Post Raisi
Tehsil Laksar, District Haridwar
And Gali No. A/1 Subhash Nagar, behind D.P.S. School
Post Jwalapur, Tehsil & District Haridwar
(Through: Sh. Rajesh Regari, Advocate)
.....Appellant
VERSUS
1. Branch Manager,
National Insurance Co. Ltd.
Near Koli Hospital, Haridwar Road, Rishikesh, Dehradun
2. Manager,
National Insurance Co. Ltd.
Registered Office - 3 Middleton Street, P.B. No. 9229 Calcutta
(Through: Sh. Deepak Ahluwalia, Advocate)
..... Respondent Nos. 1 & 2
3. Manager,
Nainital Bank Ltd.
Branch Bhoopatwala, Haridwar, District Haridwar
....None for Respondent No. 3
Coram:
Ms. Kumkum Rani, Judicial Member II
Mr. B.S. Manral, Member
ORDER
(Per: Ms. Kumkum Rani, Judicial Member II):
1 Appeal No. Sh. Mangat Ram 19.01.2024
142 of 2011
Vs.
Branch Manager,
National Insurance Co. Ltd. & Others
This appeal under Section 15 of The Consumer Protection Act, 1986 has been directed against judgment and order dated 07.12.2010 passed by the learned District Consumer Disputes Redressal Forum, Haridwar (hereinafter to be referred as the District Commission) in consumer complaint No. 133 of 2010 styled as Sh. Mangat Ram Vs. Branch Manager, National Insurance Co. Ltd. and Others, wherein and whereby the complaint was partly allowed.
2. The facts giving rise to the present appeal, in brief, are as such that the complainant availed term loan facility on 30.11.2007 for his Poly House business against hypothecation of stocks of stand crop, poly house, plant and machinery, shades and fertilizer etc. and as per request of the complainant the said loan facility rescheduled on 30.11.2009 and installment of Rs. 78,363/- was payable half yearly with interest. The complainant got insurance policy No. 462201/11/07/3100001068 for the period from 06.02.2008 to 05.02.2009 for building, plant and machinery and stocks from National Insurance Company Ltd. On dated 24.07.2008 in the evening, there was a heavy rain and storm in the locality and due to heavy rain and storm his one poly house shade was totally damaged and poly sheet of other poly house was destroyed and it was partly damaged. The crops of Tomato to the tune of market value of Rs. 2,50,000/- was totally damaged. It is further alleged that at the time of mis-happening, the insurance policy was valid and effective. The matter was immediately informed to the insurance company as well as the Bank with the relevant documents and as per law, the loss was inspected by the surveyor and it was directed to the complainant by the insurance company to repair his poly house and to send its repair bill to the Bank and the Insurance Company. The complainant contacted to the opposite parties at several times to pay the insured amount to the complainant, but in vain. Therefore, the complaint was filed before the District Commission.
2 Appeal No. Sh. Mangat Ram 19.01.2024
142 of 2011
Vs.
Branch Manager,
National Insurance Co. Ltd. & Others
3. The opposite party Nos. 1 & 2 have submitted joint written statement alleging that the true facts are concealed by the complainant and lodged a complaint on incorrect facts. No information was given to the answering opposite parties that in the poly house a crop of Tomato was cultivated and the same was destroyed. It is further averred that as per Meteorological Department, on the alleged date there was average rain. In the written statement, it is pleaded and alleged that the surveyor has submitted his report alleging that the alleged loss does not come within the policy terms and conditions. Therefore, the surveyor has assessed the total loss to the tune of Rs. 11,616/-. As per surveyor report and as per policy terms and conditions, the claim was repudiated considering it 'No Claim Case' and was properly informed to the Bank. The complaint is not legally maintainable, hence liable to be rejected.
4. The opposite party No. 3 - Bank has submitted its written statement and pleaded that the complainant took the term loan facility after hypothecation of poly house business alongwith stocks of stand crop, poly house, plant and machinery, shades and fertilizer etc. The complainant has also obtained the insurance policy for the period from 06.02.2008 to 05.02.2009 and the alleged loss has occurred during the currency of insurance policy. The answering opposite party also informed the insurance company regarding the claim of the complainant and wrote letters dated 21.07.2009, 16.10.2009 & 24.02.2010 to the insurance company, but never received any response in this regard and due to this mis-happening the borrower did not repay due installments to the answering opposite party and Rs. 17,83,942/- with interest up to 21.05.2010 is due against the complainant. Hence, in such circumstances, the complainant has failed to establish deficiency in service against the answering opposite party, hence the complaint is liable to be dismissed against the answering opposite party.
3 Appeal No. Sh. Mangat Ram 19.01.2024
142 of 2011
Vs.
Branch Manager,
National Insurance Co. Ltd. & Others
5. The District Commission after hearing and taking into consideration the material available on the record passed the judgment and order on dated 07.12.2010 wherein and whereby it is held as under:-
"f"kdk;rdrkZ dh ;g f"kdk;r mijksDrkuqlkj Lohdkj dh tkrh gSA foi{kh chek dEiuh dks funsfZ "kr fd;k tkrk gS fd vkns"k dh frfFk ls ,d ekg ds Hkhrj f"kdk;rdrkZ dks 15]000@&:0 ¼iUnzg gtkj½ dh /kujkf"k Hkqxrku fd;k tkuk lqfuf"pr djsaA"
6. On having been aggrieved by the impugned judgment, the complainant as appellant has preferred the present appeal for enhancement of the award amount alleging that the appellant cultivated 5000 Tomato seedlings in his two poly houses. In the month of January and February, which was properly inspected by the competent officers on dated 17.03.2008. The complainant has also obtained a term insurance policy for Tomato crops and the same was properly insured with the National Insurance Co. Ltd. - opposite party Nos. 1 & 2. On dated 24.07.2008, due to heavy rain and storm, one poly house fell down and was totally damaged and the poly sheet of other poly house was destroyed and it was partly damaged and the crops of Tomato were totally damaged. After several requests, the claim amount was not given to the appellant. The respondents
- opposite parties have stated that on dated 24.07.2008 there was average rain and no loss has occurred to the appellant, whereas the surveyor has stated that the loss was not covered within the terms and conditions of the insurance policy. Therefore, the surveyor was assessed the loss to the tune of Rs. 11,616/-. The District Commission has ignored the facts, evidence and law available on the record and passed the impugned judgment ignoring the true facts, evidence available on record and without applying the judicial mind; it is further averred that the District Commission has granted 4 Appeal No. Sh. Mangat Ram 19.01.2024 142 of 2011 Vs. Branch Manager, National Insurance Co. Ltd. & Others very less amount to be paid to the appellant as claim amount. Therefore, the impugned judgment is against the facts, evidence and law. Hence, the impugned judgment and order passed by the District Commission be set aside and the appellant be awarded Rs. 3,39,050/- as loss caused to the appellant.
7. We have heard learned counsel for the appellant as well as learned counsel for respondent Nos. 1 & 2 and perused the material available on record. None has appeared on behalf of respondent No. 3, hence the appeal was heard ex-parte against respondent No. 3.
8. We have also perused the surveyor report available on record. There is a copy of letter dated 05.11.2008 of India Metrological Department available on record which pertains to the fact whether there was heavy rain / storm on the date of occurrence.
9. It is admitted by both the parties that the surveyor has assessed the loss to the tune of Rs. 11,616/-. We have perused the impugned judgment, wherein the District Commission has awarded Rs. 15,000/- as claim amount, but the District Commission has neither awarded compensation for mental and physical pain & agony nor any litigation charges to the appellant
- complainant.
10. The appellant - complainant has not submitted any cogent and reliable evidence that on what basis, the surveyor report was not properly assessed. Thus, we are of the definite opinion that the assessment made by the surveyor is genuine and the survey report cannot be brushed aside unless and until there is some cogent and believable evidence against it.
11. It is true that in following case laws, it is held that the surveyor report is an important piece of evidence.
5 Appeal No. Sh. Mangat Ram 19.01.2024
142 of 2011
Vs.
Branch Manager,
National Insurance Co. Ltd. & Others
12. In the case of Sikka Papers Limited vs. National Insurance Company Limited and Others, (2009) 7 Supreme Court Cases 777, the Hon'ble Supreme Court has held that it is true that the surveyor report is not the last word, but there must be legitimate reason for departing from such report. If the complainant has failed to show any reason to justify the rejection of the surveyor report; no infirmity is found in the order.
13. In the case of National Insurance Co. Ltd. vs. Noli Ram and Sons, 2017 (4) CPR 388 (NC), the Hon'ble National Commission has held that surveyor report cannot be disbelieved and cannot be rejected without any forceful evidence on the part of the complainant.
14. In the case of Ashish Kumar Jaiswal vs. ICICI Lombard General Insurance Company Ltd. and Ors., 2017 (3) CPR 71 (NC), the Hon'ble National Commission has held that the surveyor's report is only reliable document which is to be considered for settling the insurance claim, the petitioner has failed to put forward any cogent reasons to dispute surveyor's report and there is no reason to reject it.
15. In the case of Sri Venkateswara Syndicate vs. Oriental Insurance Company Limited and Another, (2009) 8 Supreme Court Cases 507, the Hon'ble Supreme Court has held that option to accept or not accept report of surveyor lies with the insurer, however, if report is prepared in good faith, with due application of mind and in the absence of any error or ill motive, insurance company cannot reject report of surveyors; Courts or other forums can intervene only if rejection is arbitrary and based on no acceptable reasons.
16. In the case of Pradeep Sharma vs. Bajaj Allianz General Insurance Co. and Anr., 2017 (1) CPR 259 (NC), the Hon'ble National 6 Appeal No. Sh. Mangat Ram 19.01.2024 142 of 2011 Vs. Branch Manager, National Insurance Co. Ltd. & Others Commission has held that the assessment made by surveyor must be given due weightage. The complainant failed to provide stock of medicines which did not expire at the time of fire in shop and in such circumstances, surveyor rightly assessed loss and State Commission has enhanced loss to Rs. 20,000/-; petitioner could not place any document on record to substantiate that complainant suffered loss more than Rs. 20,000/- pertaining to medicines having validity period, there is no illegality, irregularity or jurisdictional error in impugned order.
17. In the case of Devender Malhotra vs. United India Insurance Co. Ltd. & Anr., 2016 (3) CPR 461 (NC), the Hon'ble National Commission has held that the report made by the surveyor cannot be disbelieved unless there are cogent and convincing reasons to do so; report of the surveyor has to be given effect to unless there are contrary reasons to disregard the same. The appellant has not advanced any cogent and convincing reasons to disbelieve report of surveyor and assessment of loss made by surveyor is based on a correct appreciation of material made available to him.
18. In the case of National Insurance Company Ltd. vs. Manjit Singh and Ors., 2017 (4) CPR 384 (NC), the Hon'ble National Commission has held that the impugned order passed by the District Forum reflects a correct appreciation of issues involved in case and they rightly concluded that insurance company should make payment as per report given by surveyor.
19. In the case of Rohtas and Anr. vs. United India Insurance Co. Ltd. and Ors., 2017 (4) CPR 502 (NC), the Hon'ble National Commission has held that insurance policy was taken for general merchandise stocks at business premises and the loss caused due to fire, report made by surveyor in discharge of his professional duty should be accepted unless some serious discrepancies / short comings are pointed out in same.
7 Appeal No. Sh. Mangat Ram 19.01.2024
142 of 2011
Vs.
Branch Manager,
National Insurance Co. Ltd. & Others
20. The principle as laid down in the above mentioned cases are fully applicable to the case in hand.
21. As per the above law, the surveyor report is an important piece of document and it cannot be brushed aside unless and until there is some cogent and believable evidence against it.
22. The District Commission has granted the insured amount to the tune of Rs. 15,000/-. We are of the considered opinion that the District Commission has not awarded the compensation for mental and physical agony occurred to the appellant - complainant. Hence, we are of the view that the appellant is entitled to get Rs. 20,000/- as compensation for mental and physical agony. The District Commission has also not granted litigation charges whereas the appellant has sought relief for litigation charges including advocate fees. We are of the considered opinion that the appellant is entitled to get Rs. 10,000/- as litigation charges.
23. Accordingly, we hold that the appeal is liable to be allowed in part and the impugned judgment is to be modified to such extent that the appellant shall get Rs. 20,000/- for mental and physical agony and Rs. 10,000/- for litigation charges.
24. Appeal is allowed partly. Impugned judgment is modified to such extent that the respondent Nos. 1 & 2 (opposite party Nos. 1 & 2) shall pay Rs. 20,000/- as compensation for mental and physical agony and Rs. 10,000/- for litigation charges to the appellant - complainant. The respondent Nos. 1 & 2 (opposite party Nos. 1 & 2) Insurance Company are also directed to pay the above said amount including awarded amount to the appellant within a period of 30 days from the date of this Judgment; in default, the Insurance Company shall pay simple interest @ 7% per annum 8 Appeal No. Sh. Mangat Ram 19.01.2024 142 of 2011 Vs. Branch Manager, National Insurance Co. Ltd. & Others on the above said amount from the date of this Judgment till its actual realization. No modification in other respect. No order as to costs of the appeal.
25. A copy of this Order be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986 /2019. The Order be uploaded forthwith on the website of the Commission for the perusal of the parties. The copy of this judgment be sent to the concerned District Commission for record and necessary information.
26. File be consigned to record room along with a copy of this Order.
(Ms. Kumkum Rani) Judicial Member II (Mr. B.S. Manral) Member Pronounced on: 19.01.2024 9