State Consumer Disputes Redressal Commission
Gorsi Construction Pvt. Ltd. vs Uiic Ltd. on 10 November, 2009
H
H.P. STATE CONSUMER DISPUTES REDRESSAL
COMMISSION, SHIMLA.
FIRST
APPEAL NO.318/2007
DATE
OF DECISION: 10.11.2009.
In
the matter of:
Gorsi Construction Pvt. Ltd., village Takoli,
P.O. Panarsa, Sub Tehsil Aut,
Tehsil Mandi, through its Director, Sh. Rakesh Kumar.
. . Appellant.
Versus
United India Insurance
Company Limited, Kullu, through its Branch Manager.
Respondent.
Honble
Mr. Justice Arun Kumar Goel (Retd.), President.
Honble Mr. Chander Shekhar Sharma,
Member.
Whether approved for reporting? Yea.
For the Appellant: Mr. Vikas Shyam, Advocate.
For the
Respondent: Mr. G.D. Sharma, Advocate,
O R D E R
Justice Arun Kumar Goel (Retd.), President (Oral).
This appeal is directed against the order passed by District Forum, Kullu in Complaint No.78/2006 on 11.4.2007. By means of impugned order complaint filed by the appellant has been dismissed. Hence this appeal.
2. It is admitted case of the parties that the respondent had provided insurance cover for 3 awarded works of providing protection/training work in Pullia Nallah by the National Hydroelectric Power Corporation Ltd. (NHPC) to the appellant. It is further admitted between the parties that the appellant had obtained a comprehensive insurance cover from the respondent in the sum of Rs. 8,34,000/- for these works. During the subsistence of the insurance policy, on 27.7.2005 due to heavy rains all the 3 works executed by the appellant were washed away.
3. Now the dispute starts. Because appellant alleges that he had intimated the respondent on 27.7.2005 vide Annexure R.1, i.e. on the date of incident itself, whereas stand of the respondent is that this letter has been antedated by the appellant and it was received by it on 7.9.2005. Thus, according to the learned Counsel for the respondent his client was not immediately informed about the incident so that it could get immediately the spot surveyed or the final survey done promptly to know about the actual facts as to whether the incident had taken place or not. And if so, the extent of loss suffered by the appellant. We may mention in this context that the learned District Forum had observed in para-7 of the impugned order that ante-dating of this letter was conceded on behalf of the appellant by his learned Counsel during the course of proceedings before the District Forum below. Mr. G.D. Sharma learned Counsel for the respondent laid great emphasis on this admission. As according to him, this by itself is enough to dismiss this appeal while upholding the order of the District Forum below. We shall deal with this submission appropriately hereinafter.
4. From the documents on record, it is clearly made out that 3 works in question had been allotted to the appellant by a Government of India Enterprise, i.e. NHPC. Dispute may have been between the appellant on one side, and the respondent on the other.
In this behalf when a reference is made to Annexure C.VII, to IX, the doctrine of men may lie, documents will not, is attracted.
5. Annexure C.VII refers to 96 nos. wire crates having been damaged due to heavy rainfall and discharge in Pulia Nallah on 27.7.2005 under the work providing protection/training work in Pulia Nallah (along the nallah from RD 108m to 133m) executed by the appellant. The damage suffered by the appellant was assessed by the NHPC at Rs.2,11,500/-. Similarly vide Annexure C.VIII, damage caused to 91 numbers wire crates due to heavy rainfall and discharge (along the Nallah from RD 133m to 158m) was assessed at Rs.1,98,708/-, and lastly vide Annexure C.IX, damage assessed by NHPC qua 82 numbers wire crates (along the Pulia Nallah from RD 158m to 173m) was assessed at Rs.1,77,773/-. This is one aspect of the case.
6. In addition to the above, affidavit of the Director of the appellant, namely Shri Rajesh Rao has remained unchallenged as well as uncontested.
This affidavit is at pages 87 & 88 of the complaint file. After having given the assessment of damage in the sum of Rs.5,87,981/-, he has categorically stated in para-6 as under:-
6. That I had personally informed the opposite party about the damage well in time but no action was taken by the opposite party.
The opposite party sent its surveyor after about more than one month to inspect the spot since the work was time bound we had to execute the same without the survey having been conducted by the surveyor of the opposite party.
7. In this behalf when a reference is made to the material on record, there is no counter evidence/affidavit filed by the respondent-Insurance Company. This clearly goes to show that whatever is stated on behalf of the complainant needs to be accepted on its face value.
8. Faced with this situation, Mr. G.D. Sharma on behalf of the respondent urged that his client could only appoint a Surveyor after receipt of intimation which it promptly did when Annexure R.1 was received on 7.9.2005 by calling upon Mr. Sanjay Vaidya, a duly licensed Surveyor & Loss Assessor to visit the spot and then assess the loss. Report of Shri Vaidya is Annexure R.2. While concluding in this report he has remarked that he was not in a position to assess whether the said crates were damaged or not because on his visit to the site all the crates were intact, so he was enabling, (it should be unable) to assess the loss.
9. Admittedly the loss to be assessed related to civil works. This position also could not be disputed on behalf of the respondent. In all fairness, as also as a prudent person the officer who appointed Shri Sanjay Vaidya as Surveyor to assess the loss should have applied his mind and then appointed a person who has an expertise as well as qualification to assess the loss in relation to civil works. A perusal of Annexure R.2 shows that Shri Vaidya is an Automobile Engineer, which is neither his branch of specialization/expertise, nor his sphere of study.
10. Faced with this situation Mr. Sharma on behalf of the respondent forcefully urged that he is a duly licensed Surveyor appointed by Insurance Regulatory Development Authority. According to him while appointing a Surveyor, competent authority keeps in view his qualification, competence as well as experience of the Surveyor concerned, as such no exception can be taken to the report of Shri Vaidya. He thus prayed for upholding Annexure R-2. This plea is being noted to be rejected.
11. This Commission in Complaint No.4/2007, decided on 25.6.2008, M/S Hotel Woodrina Versus The United India Insurance Company Ltd., rejected the report of a Mechanical Engineer in case of loss that was required to be assessed pertaining to civil works, as is the situation in this case and allowed compensation to the complainant based on the report of a Junior Engineer, Civil. Order passed by this Commission was challenged by the Insurance Company in Revision Petition No.3591/2008 before the National Commission. While partly allowing the appeal of the Insurance Company, whereby interest was reduced and compensation as well as punitive damages were disallowed rest of the findings were upheld.
12. Finding regarding rejection of the report of Mechanical Engineer was upheld. It was observed in this behalf as under:-
xxx xxxx xxxx xxxx Good reasons have been assigned by the State Commission for discrediting the report of Sh. Umesh Kumar Sood, surveyor appointed by the insurance company. The State Commission preferred to put credence on the survey report of Mr. Saini who was a Civil Engineer than the report of Mr. Sood who was obviously Mechanical Engineer.
One can take notice of the fact that regard being had to the nature of the job which the surveyor was required to accomplish, the surveyor should have possessed expertise in the Civil Engineering.
Xxx xxxx xxxx xxxx xxxx Nothing to the contrary has been brought to our notice to uphold the order of the District Forum below in this appeal by Mr. G.D. Sharma.
13. Though Mr. G.D. Sharma again submitted that if this order is disturbed it will be putting premium on the fraudulent act of the appellant who did not intimate his client within a reasonable time in terms of the policy of insurance, which he ought to have done. Thereafter when intimation was received by antedated letter on 7.9.2005, his client acted promptly. This plea on the face of it appears to be quite attractive, but when its soundness is tested in the context of para-6 in the affidavit of the appellant as extracted hereinabove, its hollowness is exposed. Why affidavit of the Branch Manager or any other competent person was not filed to rebut the evidence of the appellant, learned Counsel for the respondent had no answer.
14. At the risk of repetition, we may observe that nothing could be pointed out, nor was brought to our notice to discard the 3 certificates issued by the NHPC as contained in Annexures C.VII to C.IX. Appellant may have been interested in lodging a false case, may be it was submitted belatedly with the respondent, however the aforesaid Government of India Enterprise has no reasons to issue frivolous certificates wherein assessment had been made of the loss actually sustained of the crates of the 3 awarded works to the appellant. It is also not the case of the respondent, that NHPC issued these Annexures with a view to help the appellant and or it did not suffer the loss as detailed in these documents. This is an additional ground to allow the complaint by setting aside the impugned order passed by the District Forum below.
15. No other point was urged.
In view of the aforesaid discussion, while allowing this appeal, order passed by the District Forum, Kullu, in Complaint No.78/2006, dated 11.4.2007 is set aside and as a result of it, the said complaint is allowed. Consequently appellant is held entitled to be indemnified by the respondent in the sum of Rs.5,87,981/- with 7% interest from the date of filing of the complaint, i.e. 7.9.2006, till the date of payment/deposit whichever is earlier. Appeal is allowed in these terms, leaving the parties to bear their own costs.
Learned Counsel for the parties have undertaken to collect copy of this order free of cost from the Court Secretary as per rules.
Shimla, November 10, 2009.
( Justice Arun Kumar Goel ) (Retd.) President /BS/ ( Chander Shekhar Sharma ) Member