State Consumer Disputes Redressal Commission
M/S. Renuka Ware Housing & Agro ... vs 1. Bajaj Allianz General on 4 April, 2012
1 C.C..No.: 18-08
STATE CONSUMER DISPUTE REDRESSAL COMMISSION,
MUMBAI, CIRCUIT BENCH AT AURANGABAD.
Date of filing : 27.11.2008
Date of Order: 04.04.2012
COMPLAINT CASE NO.: 18 OF 2008
M/s. Renuka Ware Housing & Agro Processing,
A Proprietary concern having its registered office
Situated at Village Deogaon,
Post- Deogaon, Taluka Kaij,
Dist. Beed, Through its Sole proprietor,
R/o. Beed. ...Complainant.
-Versus-
1. Bajaj Allianz General
Insurance Company Limited,
having its registered office
situated at GE Plaza, Airport Road,
Yerwada, Pune-411 006.
2. The Karnataka Bank Limited;
"SEA WOODS" Branch Nerul,
Mumbai-400 076, through its Branch Manager, ...Opponents
... Respondent
Coram : Mr. D. N. Admane, Hon'ble Presiding Judicial Member
Mr. K. B. Gawali, Hon'ble Member Present: Adv. Shri. Jayant Chitnis, present for complainant.
Adv. Shri. S. G. Chapalgaonkar, for opponent No.1.
None for the opponent No.2.
- :: ORAL ORDER ::-
Per Mr. K. B. Gawali, Hon'ble Member
1. The present complaint is filed against the opponent Bajaj Alianz General Insurance Co. Ltd., on the charges of deficiency in service and thereby sought compensation against it.2 C.C..No.: 18-08
2. Brief facts about the present complaint are as under:
i) Complainant Sau. Surekha w/o. Vilas Nagargoje who is the sole proprietor of M/s. Renuka Ware Housing & Agro Processing unit, at village Deogaon Tq. Kaij, District Beed. Under the scheme sponsored by NABARD she has constructed a godown in the year 2006 with the sole purpose of rendering service to the various farmers in adjoining villages of Beed District, in terms of storages of food products. Cost of the said godwon was of Rs.54,00,000/-, out of which Rs.50,00,000/- pertained to the cost of construction of building with fixtures and Rs.4,00,000/- pertained to the land cost. After the construction of said godown she had obtained credit facility of Rs. 37.50 lacks on 11.03.2006 from the opponent No.2 Bank which included loan of Rs. 25,00,000/- and subsidy of Rs.12.50 lacks. The said loan with interest of 7 % was to be repaid in 9 years with the moratorium period of one year.
ii) In order to secure the loan the O.P.No.2 Bank had obtained the "Special Peril and Fire Policy" from the Opponent No.1 Insurance Company on behalf of complainant. This policy had a special feature of assuring the risk covered in the form of reinstatement of the loss of the building of the godown. The policy was in effect during the period from 29.03.2007 to 28.02.2008 and the sum insured was for Rs. 54.00 lacks.
iii) It is submitted by the complainant that, on 05.06.2007 due to heavy rains associated with high speed wind caused damage to the godown building covering about 1/3 part. This heavy rains and high speed wind also caused loss to other properties existing in the surrounding area. The incident was intimated to the opponent Insurance Company. Accordingly the Insurance Company deputed licensed surveyor namely Shri. Jethlia who visited the spot on 06.06.2007 and carried out the inspection of damaged godown. The surveyor 3 C.C..No.: 18-08 then informed not to start repair work till written consent was given by the Insurance Company. The complainant further submitted that, again on 12.06.2007 at about 4.00 p.m. there was a similar incident of heavy rain coupled with cyclone which added further severe damage to the godown building, i.e. entire roof was damaged, front wall of godown had fallen down and other walls had developed cracks. The opponent Insurance Company was immediately informed about this second mishap also, to which company responded stating that, earlier surveyor Shri. Jethlia being not available another surveyor Shri. Khan was appointed on 13.06.2007. It was however offered by the complainant that Shri. A. M. Khan being a mechanical engineer he was not knowing how to survey and assess the loss of damage to the building and therefore the surveyor Mr. Khan expected from the complainant to submit the estimate of loss.
Accordingly, the complainant submitted the claim for Rs. 35,10,415/- as on 26.06.2007. A separate estimate of removal of debris was also given. However, on the basis of the estimate of loss prepared by the Surveyor Shri. Khan the Insurance Company had offered compensation of Rs.11,00,000/- only. This offer was denied by the complainant. Therefore, with the consent of the complainant the opponent Insurance Company appointed another surveyor namely Mr. Milind Sangvikar who carried on the survey on 10.01.2008 and assessed the loss at Rs. 30,00,000/-. However, complainant requested the opponent Insurance Company to approve the estimated loss to the tune of current construction cost of the building as on 2008 i.e. the date of reinstatement as per condition No.6 of the policy. It is further stated by the complainant that, he completed the repair work before 15.05.2008 i.e. within one year from the date of incident as per the policy condition.
iv) It is also submitted by the complainant that, during the progress of work the opponent company was requested to make the payment as per the progress of construction work, however on the basis of survey report submitted by Mr. Khan, only Rs. 5,00,000/- were paid on 25.10.2007 and after the receipt of 4 C.C..No.: 18-08 survey report from surveyor Shri. Sangvikar the amount of Rs. 6,00,000/- was paid on 04.04.2008. It is contended by the complainant that, the opponent Insurance Company by its letter dated 15.04.2008 had informed the complainant that, unless the reinstatement work was completed no reimbursement would be made. He further contended that, although the work was completed by 15.05.2008 and final estimate of Rs. 41,00,000/- i.e. Rs.39.00 Lacks for repair and Rs.2,00,000/- for removal of debris was submitted to the opponent company, the balance amount payable as reimbursement i.e. Rs.30.00 lacks was not paid ( Rs.30.00 Lacks - Rs.11.00 lacks ).
v) The complainant has specifically contended that, the opponent Insurance Company has disallowed the reimbursement of expenditure of Rs.5,88,370/- incurred towards construction of RCC column which was required for support of wall. It is contended by her that during the progress of RCC column the surveyor Shri. Sangvikar as well as the Branch Manager, Shri. Tularam had visited the site and it was orally discussed that, instead of constructing new brick missionary walls of which the estimated cost was Rs. 7,01,733/- the RCC columns were being constructed with the cost of Rs. 5,88,370/- which is less than brick walls. The same was orally agreed both by the surveyor Shri. Sangvikar as well as the Branch Manager, Shri. Tularam. But later on the cost of the item of RCC column was disallowed stating that the same is beyond the purview of insurance policy. It was further contended by the complainant that opponent company has also not considered the expenditure of Rs.2,11,000/- incurred by her on removal of debris and thirdly, she has challenged the sunder insurance amount of Rs.8,51,107/- stating that, surveyor had nowhere mentioned about the same in his survey report.
vi) It is further contended by the complainant that, opponent Insurance Company did not pay the amount of reinstatement, even as per survey report submitted by the surveyor Shri. Sangvikar on 18.03.2008. As per Shri. 5 C.C..No.: 18-08 Sangvikar's report dated 18.03.2008 the net assessment to be paid is worked out to Rs. 24,06,404/-. It was further alleged that, the surveyor Shri. Sangvikar by his letter dated 13.08.2008 reported to the opponent Insurance Company the value at risk of the said building at Rs. 81,44,400/- and on the basis of the same and considering the sum insured of Rs.54,00,000/- works out 33.60 % and thus applying this factor the amount of net insurance was worked out to Rs.8,51,107/- and the same amount was disallowed and finally Rs. 15,97,852/- was recommended which is then offered by the insurance company to the complainant. The complainant therefore alleging the unfair trade practice and deficiency in service on the part of opponent Insurance Company filed the present complaint in this Commission, seeking direction to the opponent Insurance Company to pay her total amount of Rs. 41,00,000/-, out of which the amount of Rs. 11,00,000/- being already paid, the balance amount of Rs. 30,00,000/- be paid to her. Further she also sought direction to pay her liquidated damages in the form of godown rent as the Insurance Company delayed the financial assistance of damages to the tune of Rs. 3,60,000/- in lump sum and Rs. 5,00,000/- towards physical and mental harassment. She has also claimed all these amounts to be paid with the penal interest at 18 % from the date of damage i.e. 12.06.2007 along with 5% additional interest being her unit from the category of small scale industry etc.
3. The complainant has submitted following documents in support of her complaint:
i) Affidavit in support of the complaint,
ii) The copy of insurance policy,
iii) Claim form,
iv) A newspaper cutting,
v) Panchanama dated 06.06.2007 and dated 14.06.2007,
vi) Intimation letter dated 12.06.2007,
6 C.C..No.: 18-08
vii) Letter given to Insurance Company on 02.11.2007,
viii) Copy of estimate of construction,
ix) A copy of letter dated 15.03.2000,
x) Minutes of meeting dated 12.03.2008,
xi) Letter given after receipt of Rs.11,00,000/- dated 27.12.2008,
xii) Letter dated 15.04.2008 from Insurance Company,
xiii) Bank sanction letter,
xiv) Letters given by NABARD,
xv) Balance sheet for the year 2006-2007.
4. (i) The opponent No.1 Insurance Company filed its written version dated 09.09.2009 along with evidence affidavit dated 02.07.2010 and contested the claim of the complainant. It is submitted that, the complainant was issued the policy in the form of "Standard Fire and Special Perils Policy" with special clause of "reinstatement". Therefore it was contended that, as per the condition No.18 of the policy he is entitled to reimbursement of the expenditure to the extent required for reinstatement of the damages only and not the expenditure incurred for better features i.e. R.C.C. columns as the same is beyond the scope of policy. It was submitted that on intimation of loss on 05.06.2007 immediately Shri. Jethlia, the surveyor and loss assessor was appointed who visited the site and carried the survey and also collected information. Again on getting intimation of second incident of loss as on 12.07.2007 the another surveyor Shri. A. M. Khan was appointed since Shri. Jethlia was not available then. The surveyor Shri. A.M. Khan visited the spot on 13.07.2007 and conducted the survey. He submitted the report on 20.09.2007 on the basis of which the complainant was paid Rs. 5,00,000/- on 22.10.2007. On receipt of report of surveyor Mr. Khan proposal of reimbursement of lump sum Rs. 11,00,000/- was offered for acceptance of the complainant. However, he disputed the valuation made by Mr. Khan on the plea that he being a mechanical engineer he does not know how to assess the valuation of the 7 C.C..No.: 18-08 building. Hence, with her consent of another surveyor Shri. Milind Sangvikar appointed on 11.01.2008. It was further submitted that Shri. Sangvikar visited the spot on 13.01.2008. On the basis of the surveyor's report of Mr. Sangvikar further amount of Rs.6,00,000/- was released to the complainant on 02.04.2008. It was also contended that, bills of expenditure which were submitted by the complainant were checked by Shri. Sanngvikar and submitted his bill check report on 13.08.2008.
ii) On the basis of the survey and assessment report and also the bill check report as submitted by Shri. Sangvikar, the opponent Insurance Company had arrived at the amount of Rs. 15,97,852/- as only payable to the complainant. As per the survey report and bill check report submitted by Shri. Sangvikar the total reinstatement cost was worked out at Rs. 30,67,957/-, out of which the amount of the salvage of Rs.5,34,000/- was deducted and reinstatement amount was worked out to Rs.25,33,057/-. Further as per the policy terms excess 5 % of this amount i.e. Rs.1,26,053/- is deducted and net amount is assessed at Rs.24,06,404/- in working total entitlement of compensation. The opponent company further contended that, since the complainant claimed the reinstatement value as per prevailing rate at the time of construction the total value of the godown building was also required to be worked out. Accordingly, by taking the rate of Rs.400/- per sq. ft. for construction of godown admeasuring 20336 sq. ft. the value at risk was worked out at Rs.81,34,400/- and contended that, value shown in policy at Rs.54,00,000/- was under insurance by 33.60 %. Thus, applying this percentage the amount of net insurance was worked out at Rs. 8,51,107/- and the same is disallowed from the assess amount of Rs. 25,27,357/- which comes to Rs.16,81,950/-. From this amount Rs.16,81,950/- an amount equal to 5 % as policy excess which comes to Rs.84,098/- was deducted and the final amount of Rs. 15,97,852/- was worked out as final amount to be payable to the complainant. Out of this amount of Rs. 15,97,852/- the amount of Rs.
8 C.C..No.: 18-0811,00,000/- which is already paid to the complainant the balance of Rs.4,97,852/- has been deposited in favour of Opponent No.2 bank as directed by this Commission, vide Roznama dated 29.07.2010. Thus, it is contended by O.P.No.1 that, there is no deficiency in service as alleged by the complainant and the complaint having no merit be dismissed.
iii) In support of above said contention the opponent Insurance Company has submitted following documents:
a) Evidence affidavit,
b) Survey report dated 18.03.2008 as submitted by Shri.
Milind Sangvikar.
c) Letter dated 13.08.2008 addressed to the opponent
Insurance Company by surveyor Shri. Sangvikar, and
d) A copy of terms and conditions of the policy
iv) The opponent No.2, the Karnataka Bank Limited also appeared
and submitted its written statement as on 08.05.2009. It has admitted to have sanctioned and disbursed a loan amount of Rs. 37,50,000/- to the complainant by way of building loan for the said project, including subsidy. It is further submitted that, in order to secure the loan amount this opponent has obtained Insurance policy under reference from the Opponent No.1 Insurance Company on behalf of complainant and finally requested to deposit the amount in its favour whatever would be awarded by this Commission.
5. The complaint was finally heard on 02.03.2012. Adv. Shri. Jayant Chitnis was present for the complainant. Representative of the complainant Mr. R.S. Nagargoje was also present. Whereas, Adv. Shri. S. G. Chapalgaonkar was present for the opponent No.1 Insurance Company. None for the opponent 9 C.C..No.: 18-08 No.2 i.e. Bank. Both the counsels were heard at length & complaint was closed for orders.
6. The learned counsel for the complainant submitted that, the cost of the godown building is only Rs.50,00,000/-, therefore the expenditure is admissible upto the said amount of Rs. 50,00,000/-. The cost of building was worked out by Shri. Sangvikar has no basis. He also submitted that, Insurance policy under reference obtained by Opponent No.2 Bank considering the project cost as on the date of 24.06.2006 so as to secure the amount of credit finance to the complainant. He further contended that, the affidavit of the Branch Manager Shri. Mahesh Shetty of the opponent No.2 has also been brought on record be discloses project cost at Rs.50,00,000/-. The learned counsel therefore strongly opposed to the opponent Insurance Company's averment about under Insurance and claimed that the amount of Rs. 8,51,107/- should not be deducted from the compensation amount payable to the complainant. It was further argued that, the cost of RCC columns amounting to Rs.5,88,379/- should also be allowed as these columns were essential to support the walls and the said cost is less than the cost which would have been required for the construction of brick walls. He also contended that, during the progress of project, surveyor Shri. Sangvikar and also representative Shri. Tularam, the Branch Manger did gives oral consent for the same. Therefore, the complainant's claim regarding the expenditure incurred on RCC column i.e. Rs.5,88,379/- should be allowed. In addition, it was also argued that, the cost of renewal of debris to the tune of Rs. 2,11,000/- be also paid to the complainant. Thus, he claimed that in addition to the amount Rs.15,97,852/- as averred by the Opponent No.1 Insurance Company, the complainant is entitled to receive Rs.16,50,486/- (8,51,107/- + 5,81,379 + 2,11,000 ).
The learned counsel for the complainant in support of his above said contention relied on the following two citations:
10 C.C..No.: 18-08i. Ravat Brothers Vs. M/s. Oriental Insurance Company Ltd., and another, reported in 522/SCC - 1996 - 2005.
In this case, two experts appointed for assessment had given two different assessment. Hence, Hon'ble National Commission had directed to sanction the mean of the assessment as assessed by two experts.
ii. National Insurance Co. Ltd., Vs. New Patiyala Trading Company, reported in SCC - 59.
In this case it is held by Hon'ble National Commission that, the Insurance Company before appointing second surveyor it must specify reasons but it is not free to appoint second surveyor.
6. On the other hand, the learned counsel Shri. Chapalgaonkar submitted that, as per the condition No.18 of the terms and conditions of the policy the complainant is entitled for reimbursement of only that much cost, which is actually required to replace or to reinstate the damage/loss and no other cost incurred for any betterment of existing building and/or any construction. He therefore argued that, the cost of Rs.5,88,389/- incurred by the complainant for RCC columns can not be allowed and paid. As regards the point of under insurance he submitted that, the complainant demanded the cost of reinstated work to be determined at the prevailing rate of construction on the date of construction and therefore the total cost of the building was also worked out to Rs. 81,31,400/-. However, since the complainant has shown the project cost only at Rs. 54,00,000/- in the insurance policy the proportion of under insurance was worked out comparing the said cost with that of estimated cost at 33.60 %. He therefore argued that the cost incurred by the complainant as per surveyor's report was rightly reduced with the said proportion of 33.60%.
The leaner counsel also contended that this factor of under insurance and also the cost of RCC columns as disallowed by the opponent Insurance Company 11 C.C..No.: 18-08 was agreed by the complainant as per meeting dated 12.03.2008. As regards the labour cost of Rs. 2,11,000/- for removal of debris the learned counsel submitted that no bills of expenditure were produced by the complainant and that in the joint meeting also this amount was not considered. He thus contended that, the complainant is entitled to receive only Rs.15,95,882/- and the same was offered to him. Hence, the claim for the amount as claimed in the complaint be rejected.
i) In support of his contention he relied on-
Sikka Paper Limited Vs. National Insurance Company & Ors, reported in 2009 AIR SCW - 4353 (AIR -2009 SC - 2834) In which it is held by the Hon'ble Apex court that, there was an element of under insurance in the complainant's policy and therefore the amount of compensation was accordingly reduced in proportion of the said element under insurance.
7. After going through the complaint, rejoinder affidavit of the complainant, the written version and affidavit filed by the respondent and the arguments as advanced by the learned counsel of both parties we have framed the following issues for our consideration and decision:
ISSUES
1. Whether, the complainant has proved the deficiency in service on the part of O.P.No.1 i.e. Insurance Company? Yes.
2. Whether, the complainant is entitled to receive the amount of reinstatement as claimed in the complaint?
Partly, yes.
12 C.C..No.: 18-083. What order ? As per final order.
From the perusal of the record and also considering the oral arguments as put forth by the learned counsel of the respective parties the above said issues are replied as under:
8. ISSUE NO. 1i) It is an admitted fact that, O.P.No.2 bank has financed the complainant for the godown project and also obtained "Standard Fire & Perils Policy" from the Opponent Insurance Company for sum insured of Rs. 54,00,000/- as on 26.03.2007 for the period from 29.03.2007 to 28.03.2008. It is also an admitted fact that, two consecutives mishaps one on 05.07.2007 and the other on 12.05.2007 causing damage to the said godown were occurred. Both the incidents were immediately intimated to the Opponent Insurance Company & had submitted the claim of Rs.35,10,415/- towards the loss sustained by him as on 26.06.2007. Opponent Insurance Company in turn appointed the surveyor Shri. Jethlia to carry out survey of the damages on very of the day i.e. on 06.06.2007 who inspected the site, obtained photographs/documents, but did not submit his survey report. Following the second mishap of 12.07.2007 the opponent company appointed another surveyor Shri. Khan who visited the spot on 13.07.2007. However, he being the mechanical engineer and having no experience in the valuation of the building delay was caused in submitting his survey report which was actually submitted in the month of Nov. 2007 i.e. after a period of about six months. Since Shri. A. M. Khan assessed the value of loss at only Rs.11,00,000/-, the same was not accepted by the complainant and with his consent another surveyor Shri Sangvikar appointed by the Opponent No.1 to reassessed the loss. The surveyor Shri. Sangvikar visited the spot on 10.01.2008 and after having survey of damage submitted its survey report on 13 C.C..No.: 18-08 18.03.2008. Thus there was a total delay of nine months from the date of incident till finalization of the total loss of the damages. In fact, as is observed from the record that as per the terms of the policy the complainant completed the reinstatement work before 15.05.2008 i.e. within a period of one year from the date of 2nd incident of mishap, however except the payment of Rs. 11,00,000/- upto April, 2008 the balance payment was not paid even after the survey report as submitted by Shri. Milind Sangvikar till filing of the complaint on 16.09.2008.
ii) It is also to be noted that, as per the survey report the expenditure of Rs. 5,88,370/- incurred towards construction of supporting RCC pillars has been disallowed contending that the same is beyond the scope of policy as it amounts to improvisation and not reinstatement. The point is when the Sangvikar and the representative of the company Shri. Tularam had visited the spot during the progress of construction of those columns why did not objection was not taken. There is no single evidence on record to show that, the opponent Insurance Company had ever informed the complainant that, he should not construct those RCC columns as the same would not be reimbursed. Since it was not so communicated the complainant had incurred the expenditure and thereafter the same was rejected to be reimbursed by the Insurance Company which is definitely not fair and proper.
iii) Yet another point to be noted is that, the element of under insurance which has not been raised by Shri. Sangvikar in his survey report, but after about 5 months by a separate letter dated 13.08.2008 he intimated about the said element to the Insurance Company and thereby the company disallowed the amount of Rs.8,51,107/- towards under insurance. All the above said facts and observation does prove that, the opponent Insurance company has not only played unfair trade practice but has also committed deficiency in service, hence reply to issue No.1 is given in positive.
14 C.C..No.: 18-08ISSUE NO. 2 :
i) The complainant although claimed Rs.41,00,000/- by way of rejoinder affidavit. He had contended that as per the assessment of loss as worked out by Shri. Sangvikar he is entitled to receive the additional amount at least Rs.14,39,477/- which includes Rs. 8,51,107/- which the amount of under insurance and Rs.5,88,370/- which is the cost incurred for the construction of RCC columns. Both these amounts have been disallowed by the Opponent No.1 contending that, the same is as per the terms and conditions of the policy.
As regards the point of under insurance we have perused the condition No.18 of the policy on the basis of which the insurance company has disallowed Rs.8,51,107/-. This condition No.18 provides that, "the amount payable under the policy shall be the cost of replacing or reinstating on the same site or other site with property of the same kind or type but not superior to or more extensive than the insured property when new as on date of loss; subject to the following Special Provisions and subject also to the terms and condition as under:
a) The reinstatement should be completed within 12 months period from the date of damage.
b) The Insurance Company is liable for payment only, after the actual expenditure is incurred and the bills are produced to that effect which means no advance payment.
c) The reinstatement cost is liable to be paid only to the extent that it does not exceed the sum insured.15 C.C..No.: 18-08
ii) Thus the above said provisions as given under condition No.18 nowhere provides that, the reinstatement is to be done at old rate and if it is done at the rate prevailing during the period of reinstatement then the value at risk of entire building requires to be revised. In fact, the sum insured as per policy is Rs.54,00,000/- and as per the above said provision the reimbursement of the cost on reinstatement is allowed till it does not exceed the said insured sum. The revision of the cost of the building from Rs.54,00,000/- to Rs.81,34,400/- is totally unwarranted. It is contended that nowhere in survey report dated 18.03.2008 made reference to the point of under insurance. But after about the period of 5 months vide letter dated 13.08.2008 the surveyor Shri. Sangvikar has worked out the value at risk to be under insurance at 33.60 %. We also find from the consent letter dated 15.03.2008 as given by the complainant in compliance of the minutes of the meeting conducted by the opponent Insurance Company on 12.03.2008. In this consent letter also the complainant has specifically accepted net amount of Rs. 24,00,604/- opposing elements of under insurance. Thus the point of under insurance by which the opponent Insurance company has disallowed Rs.8,51,107/- is nothing but an attempt to avoid to pay the legitimate claim to the complainant. Hence, we are of the view that, the complainant is entitled to receive the above said amount.
The ratio given in the citation above as relied on by the learned counsel for the opponent insurance company is not applicable to the present case. It is observed from the case under citation that, the complainant had purchased diesel generating set at Rs. 45,00,000/- in the year April, 1997 and the same was insured for Rs. 35,00,000/- as in the year 2000, which means the said generating set was insured at lower price than the price at which it was purchased. This is not the case in the present complaint. The building cost including land was shown as Rs. 54,00,000/- in the insurance policy. There is no material to show that, the cost of building was in more than Rs. 54,00,000/- as shown in the policy.
16 C.C..No.: 18-08iv) As regards the cost of Rs.5,88,170/- incurred towards the construction of RCC column, can not be allowed as the said items is in out side the scope of the policy. Although the contention of the complainant is that, the surveyor Shri. Sangvikar and also Shri. Tularam, Branch Manager of the insurance Company has orally consented for the said construction on RCC column; the said expenditure can not be considered in absence of any written consent, as it is not in consonance with the terms of the policy.
v) As regards the claim of the complainant in respect of expenditure of Rs. 2,11,000/- towards removal of debris the same is also can not be accepted in absence of the proper justification to that effect. First of all there are no bills produced of the actual expenditure in this regard. But only estimate is prepared by the architect. Secondly, there is no whisper either in the meeting dated 12.03.2008 or in the consent letter dated 15.03.2008 given by the complainant. In view of the above said observation the complainant is entitled to receive Rs.8,51,107/- pertaining to the elements under insurance, therefore the reply given to Issue No.2 is partly positive.
10. ISSUE NO.3:-
i) In view of the above said material points and observations, we have arrived at the conclusion that, the complainant is entitled to receive the amount of Rs.8,51,107/- which was disallowed by the opponent No.1 under the pretext 'under insurance' over and above the agreed claim amount of Rs.15,57,852/-.
Thus the total amount which is entitled by the complainant is Rs.24,48,959/- (15,97,852 + 8,51,107 ). Out of this amount of Rs. 24,48,959/- an amount of Rs.11,00,000/- is already paid to the complainant, and Rs.4,97,852/- has also been deposited as per the Commission's interim order dt. 16.12.2009 in this Commission which comes to total amount of Rs.15,97,852/-. Hence, the 17 C.C..No.: 18-08 complainant is now entitled to receive the balance amount of Rs.8,51,107/-. This amount of Rs. 4,97,852/- is paid to the opponent No.2 Bank by this Commission vide cheque No. 390111 dt. 10.08.2010 as per this Commission's further interim order dt. 29.07.2010.
ii) The amount of Rs.8,51,107/- is required to be paid with interest from the date of filing of complaint i.e. dt. 27.11.2008. We however do not allow any interest on the amount of Rs.4,97,852/- since the same was not accepted by the complainant though offered by the opponent Insurance Company.
In the result, we pass the following order.
-:: ORDER::-
1. Complaint is partly allowed.
2. Opponent Insurance Company is directed to pay to the complainant Rs.8,51,107/- with interest @ 9% p.a. from 27.11.2008 till the date of this order within a period of 30 days, in addition to the amount of Rs.4,97,852/- which is already deposited with the Commission and then Commission paid the same to the opponent No.2 bank on behalf of complainant against the loan account of the complainant.
3. It is also directed the opponent Insurance Company to pay to the complainant Rs.5,000/- as mental agony and Rs.2,000/- as cost of the complaint, within a period of 30 days.
4. Failing to deposit the amount as ordered the opponent Insurance Company shall be liable to pay the interest @ 10% p.a. on the entire amount till realization.18 C.C..No.: 18-08
(K. B. Gawali) (D. N. Admane) Member Presiding Judicial Member Kalyankar