State Consumer Disputes Redressal Commission
The New India Assusrance Company Ltd. vs Virendra Singh Rana on 6 June, 2024
First Appeal No. The New India Assurance Company Limited 06.06.2024
88 of 2018 Versus
Sh. Virender Singh Rana
STATE CONSUMER DISPUTES REDRESSAL COMMISSION UTTARAKHAND
DEHRADUN
Date of Admission: 03.07.2018
Date of Final Hearing: 30.05.2024
Date of Pronouncement: 06.06.2024
FIRST APPEAL NO. 88 / 2018
The New India Assurance Company Limited
Regional Office, Ram Institute
430, Niranjanpur, Saharanpur Road
Dehradun through Smt. Nisha Goyal, Deputy Manager
(Through: Sh. Rajesh Kumar Devliyal &
Sh. Vijay Pal Tiwari, Advocates)
...... Appellant
Versus
Sh. Virender Singh Rana S/o Sh. B.S. Rana
R/o Ganga Vihar, Near Collectorate Colony
Uttarkashi
(Through: Sh. Bhanu Joshi &
Sh. Yogesh Kumar Sharma, Advocates)
...... Respondent
Coram:
Ms. Kumkum Rani, President
Mr. B.S. Manral, Member
ORDER
(Per: Ms. Kumkum Rani, President):
This appeal under Section 15 of the Consumer Protection Act, 1986 has been directed against the impugned judgment and order dated 19.05.2018 passed by learned District Consumer Disputes Redressal Forum, Uttarkashi (hereinafter to be referred as "The District Commission") in consumer complaint No. 36 of 2013; Sh. Virender Singh Rana Vs. Branch Manager, The New India Assurance Company Limited, wherein and whereby the consumer complaint was allowed.
2. The facts giving rise to the present appeal, in brief, are, as such that the respondent / complainant had got his residential house insured 1 First Appeal No. The New India Assurance Company Limited 06.06.2024 88 of 2018 Versus Sh. Virender Singh Rana with the appellant / opposite party (insurance company) under House Holder's Insurance Policy No. 34090148110500000002 for the period from 12.08.2011 to 11.08.2012. On dated 03.08.2012, on account of flood due to cloud bursting, the insured house got badly damaged. The intimation of the occurrence was immediately given to the insurance company, who appointed surveyor. The surveyor of the insurance company inspected the damaged house on dated 30.08.2012. On 13.09.2012, all the relevant documents such as claim form; estimate of loss; layout plan; valuation of damaged house; certificate etc. were submitted with the surveyor. The complainant completed all the requisite formalities, but his claim was not settled by the insurance company inspite of several letters. The complainant also made oral request for payment of claim amount, but no appropriate action was taken by the insurance company. Such an act has depicted deficiency in service on the part of the insurance company. Therefore, the consumer complaint was filed by the complainant before the District Commission, claiming the reliefs, as mentioned at the end of the consumer complaint.
3. The appellant / opposite party filed its written statement before the District Commission, admitting the insurance of the residential house of the complainant for insured sum of Rs. 20,00,000/- for the period from 12.08.2011 to 11.08.2012. It was also pleaded that on receipt of intimation regarding the occurrence, the insurance company appointed surveyor, who visited the site and took photographs of the insured property. The insured house was constructed in four parts, i.e., lower ground floor; ground floor; first floor and second floor. The building had been constructed upto first floor in the year 1987 and expanded to second floor in the year 2006. It was further pleaded that the insured house was not totally damaged. The lower ground floor was completely damaged; ground floor was damaged to the extent of 50%;
2First Appeal No. The New India Assurance Company Limited 06.06.2024 88 of 2018 Versus Sh. Virender Singh Rana first floor was damaged to the extent of 20% and second floor was damaged to the extent of 5%. Thus, in the incident dated 03.08.2012, the insured property was partially damaged. The surveyor has assessed the loss to the tune of Rs. 6,39,775/-, which has already been paid to the complainant on 14.11.2013. The delay in settlement of the claim was caused due to the reason that on account of flood, there was great interruption in the District and the officials of the insurance company were also involved in natural calamity. There was no deficiency in service on the part of the insurance company, hence the consumer complaint is liable to be dismissed.
4. Learned District Commission, after hearing both the parties and after taking into consideration the entire material available on record, allowed the consumer complaint vide impugned judgment and order dated 19.05.2018, thereby directing the appellant / opposite party to pay the balance amount of Rs. 2,00,000/- to the respondent / complainant together with interest @6% p.a. from the date of filing of the consumer complaint, i.e., 24.09.2013 till payment and Rs. 2,000/- towards litigation expenses, within a period of one month from the date of impugned judgment and order.
5. On having been aggrieved by the impugned judgment and order, the present appeal has been submitted on behalf of the insurance company as an appellant, alleging that the insured house was partially damaged, as per the extent of damage mentioned by the surveyor. It was also stated that on receiving the intimation about the occurrence, the insurance company had appointed S. Soni & Co., Surveyors / Loss Assessors / Investigators, who had submitted their report dated 13.06.2013, wherein it was observed that the lower ground floor was completely damaged; ground floor was damaged to the extent of 50%; first floor was damaged to the extent of 20% and second floor was 3 First Appeal No. The New India Assurance Company Limited 06.06.2024 88 of 2018 Versus Sh. Virender Singh Rana damaged to the extent of 5%. The lower ground floor; ground floor and first flood had been constructed in the year 1987, whereas second floor had been constructed in the year 2006, therefore, depreciation @2% per year was made by the surveyor, which amount comes to Rs. 8,90,379.84/-. The property was insured for sum of Rs. 20,00,000/- and the value at risk was Rs. 27,05,190.99/-. Thus, there was under
insurance, hence average clause was applicable. After deducting the amount of depreciation; salvage value and after applying average clause @73.93%, the net loss of Rs. 6,39,775.31/- was assessed by the surveyor, which was paid to the complainant. It was further stated that learned District Commission did not properly consider the report of the surveyor and even ignored the fact that the insurance company has already made the payment to the complainant in full and final satisfaction of his claim. Therefore, the impugned judgment and order passed by learned District Commission is against facts and evidence on record as well as mandate of law, hence the same is liable to be set aside and the appeal deserves to be allowed.
6. We have heard learned counsel for the parties and perused the record. It is established on record vide Paper No. 20kha/2 of the original record that cheque No. 486716 dated 14.11.2013 for Rs. 6,39,775/- was received by the complainant under protest. The main argument advanced on behalf of the appellant - insurance company is as to that the sum insured was less than the value of Rs. 27,05,190.99/-, therefore, average clause was applicable and further that taking into consideration the year of construction of different floors of the insured property, depreciation was rightly made by the surveyor and after deducting salvage value of Rs. 25,000/-, the net loss to the tune of Rs. 6,39,775.31/- was assessed by the surveyor, which amount has already been paid by the insurance company to the complainant, 4 First Appeal No. The New India Assurance Company Limited 06.06.2024 88 of 2018 Versus Sh. Virender Singh Rana therefore, no deficiency in service can be attributed to the insurance company.
7. Learned counsel for the insurance company has vehemently argued that the complainant has not submitted as to why the subject property was got insured for sum of Rs. 20,00,000/- only, whereas as per the report of the surveyor, the value at risk was Rs. 27,05,190.99/-.
As per the year of the construction of different floors of the insured property, deduction on account of depreciation was rightly made by the surveyor.
8. We have perused the survey report dated 13.06.2013, copy whereof is Paper Nos. 37 to 46 on record). A perusal of the survey report has depicted that the complainant has claimed loss of Rs. 17,68,000/-. It is not disputed that on 03.08.2012, on account of flood due to cloud bursting, the insured property was badly damaged. It is admitted that the intimation of the loss / occurrence was immediately given by the complainant to the insurance company. It is also admitted that on receipt of intimation of loss, the insurance company had appointed S. Soni & Co. as surveyor for assessment of loss, who had submitted aforesaid survey report. It is further admitted that in the survey report, the surveyor have stated that they had conducted the survey and verifications on 29.08.2012 & 30.08.2012 and took some photographs and recorded the statement of witnesses and also conducted physical inspection of the damaged building. Undoubtedly, it is proved that the insurance company had insured the subject property for sum of Rs. 20,00,000/- for the period from 12.08.2011 to 11.08.2012.
9. Regarding the incident, the surveyor have observed that on 03.08.2012, when the complainant was sleeping in his house, at about 5 First Appeal No. The New India Assurance Company Limited 06.06.2024 88 of 2018 Versus Sh. Virender Singh Rana 10:30 p.m., he heard some shouts outside his house and his neighbor had been shouting and running here & there, because of heavy flood in the Bhagirathi River, the river had changed its passage and direction towards the colony. Due to high pressure of the flood, water had hit his house and other neighbouring houses and damaged the lower ground floor of his house. The surveyor have also observed that the insured building has been constructed in the year 1987 upto first floor and expanded to second floor in the year 2006. The report further makes mention of the fact that the complainant has provided certificate obtained from Municipal Corporation, Uttarkashi. The surveyor have deducted depreciation @2% per year, which has been detailed in Annexure - I of the report and the same comes to Rs. 8,90,379.84/-. The surveyor have also assessed the salvage value as Rs. 25,000/-. The surveyor have worked out the value at risk as Rs. 27,05,190.99/-, explained in Annexure - II to the report and as the sum insured was Rs. 20,00,000/-, hence the surveyor have applied the average clause @73.93% and have assessed the net loss as Rs. 6,39,775.31/-.
10. The surveyor have stated in their report that the complainant had provided the certificate obtained from Municipal Corporation, Uttarkashi, which certifies that the house was constructed in the year 1987 and the same was expanded in the year 2006. The subject property must have been insured by the insurance company after physical verification and only then, the risk covered under the policy was provided as Rs. 20,00,000/- and premium was charged thereupon. If the insurance company was of the view that the value of the subject property was more than Rs. 20,00,000/-, then the insurance company ought to have increased the sum insured, but the same was not done. This apart, even after issuing the insurance policy, the insurance company did not write a single letter to the complainant, stating that he has got the property insured at a lower amount and that the actual 6 First Appeal No. The New India Assurance Company Limited 06.06.2024 88 of 2018 Versus Sh. Virender Singh Rana valuation of the property is more than the insured amount. It would not be out of place to mention here that the amount of loss claimed by the complainant falls within the insured amount provided under the policy and not beyond that. The survey report has not indicated that on what basis, the valuation of the insured property was made. It is not clarified on record that the surveyor had assessed the valuation as per the circle rate or not. Moreover, the supporting and corroborating evidence is also not available on record to this effect to show the fact that on what basis, the valuation of the subject property was assessed. Hence, in the present circumstances, there was no justification on the part of the surveyor to have applied the average clause, while computing the loss. Learned counsel for the appellant has cited judgment of Hon'ble Apex Court in the case of Sikka Papers Limited Vs. National Insurance Company Ltd. & Ors. reported in 2009 (3) CPR 272 (SC). We have perused the cited case law. The facts of the cited case law were different from those of the case in hand.
11. So far as the issue that the insurance company had already paid an amount of Rs. 6,39,775/- to the complainant in full and final satisfaction of his claim is concerned, the District Commission has categorically recorded finding that the cheque for the aforesaid amount was received by the complainant under protest. It is pertinent to mention here that the said amount was paid by the insurance company through cheque dated 14.11.2013, i.e., after institution of the consumer complaint by the complainant before the District Commission on 24.09.2013. Thus, there is also no force in the stand taken by the insurance company that it has already settled the claim in full and final satisfaction.
12. On the basis of the appreciation of evidence on record, we are of the considered opinion that the finding of the District Commission is 7 First Appeal No. The New India Assurance Company Limited 06.06.2024 88 of 2018 Versus Sh. Virender Singh Rana perfectly justified and in accordance with law and we find no illegality and irregularity in the impugned judgment and order passed by the District Commission and we are of the considered opinion that the insurance company has certainly committed deficiency in service by not paying the legitimate claim of the complainant. Therefore, we are not inclined to interfere with the finding recorded by the District Commission. We are also of the view that learned District Commission has rightly allowed the consumer complaint. The impugned judgment and order passed by the District Commission is not perverse. Hence, the appeal filed by the insurance company is liable to be dismissed.
13. Appeal is dismissed. Impugned judgment and order dated 19.05.2018 passed by the District Commission is hereby affirmed. No order as to costs of the appeal.
14. 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. A copy of this Order be sent to the concerned District Commission for record and necessary information. The original record of the District Commission be also remitted back forthwith.
15. File be consigned to record room along with a copy of this Order.
(Ms. Kumkum Rani) President (Mr. B.S. Manral) Member Pronounced on: 06.06.2024 8