National Consumer Disputes Redressal
Iffco-Tokio General Insurance Co. Ltd. vs Parvatiya Vikas Sansthan on 10 January, 2018
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 424 OF 2017 (Against the Order dated 10/01/2017 in Complaint No. 17/2012 of the State Commission Uttaranchal) 1. IFFCO-TOKIO GENERAL INSURANCE CO. LTD. 4TH & 5TH FLOOR, IFFICO TOWER, PLOT NO. 3, SECTOR-29, GURGAON-122001 HARYANA ...........Appellant(s) Versus 1. PARVATIYA VIKAS SANSTHAN A-1, 1ST FLOOR, CARRIAPPA MARG, MB ROAD, NEW DELHI-110062 ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE AJIT BHARIHOKE,PRESIDING MEMBER
For the Appellant : Mr. K.V. Girish Chowdary, Advocate For the Respondent : Mr. B.P. Sharma, Advocate
Dated : 10 Jan 2018 ORDER
JUSTICE AJIT BHARIHOKE, PRESIDING MEMER
This appeal is directed against the order of the State Commission, Uttarakhand dated 10.1.2017 in consumer complaint No.17/2012.
2. Briefly put facts relevant for the disposal of this appeal are that the respondent/complainant society had a tourist resort situated at the back of river Kosi, post office Dhikuli, Garjia, district Nainital under the name and style of "Corbett Riverside Resort." The respondent/complainant had purchased an insurance policy in respect of the said resort valid for the period 24.7.2010 to 23.7.2011. The insurance of the premises was done as under: -
(a) Building - Rs.67,50,000/- (b) PMTA - Rs.7,00,000/- (c) F/F/F - Rs.13,00,000/- (d) Fixed Glasses - Rs.2,50,000/- Total - Rs.90,00,000/-
3. During the currency of the insurance policy on 18th September, 2010 due to heavy rainfall and cloud burst near Almora there was flood in river Kosi and due to overflow of the water, damage was caused to building ground floor and foundation of the resort building. The insurance company was telephonically informed about the incident on the very next day and an FIR was lodged with the police station Garjia, P.S. Kotwali, Ramnagar. On the receipt of the information the insurance company appointed a surveyor. The surveyor after inspecting the premises submitted the assessment report recommending the settlement of claim to the extent of Rs.18,44,859/-. The insurance company sent an email dated 19th April, 2012 intimating the respondent about settlement of his claim at Rs.18,42,628/- and called upon the complainant to sign the discharge voucher so that the amount may be released to him. The email was followed by the letter dated 7.6.2012 but the complainant failed to come forward and sign the discharge voucher and accept the amount. The complainant not satisfied by the claim settled by the insurance company filed the consumer complaint before the State Commission.
4. The appellant/opposite party resisted the claim under complaint by filing written statement.
5. The State Commission on the basis of the pleadings and the evidence adduced by the parties allowed the complaint partly and directed the appellant/opposite party to pay to the respondent/complainant compensation to the tune of Rs.19,94,211/- with interest @ 9% p.a. w.e.f. 28th September, 2012 till the realization of amount, besides the litigation expenses Rs.10,000/-.
6. The opposite party insurance company not satisfied with the order has approached this Commission in appeal.
7. Learned counsel for the appellant has contended that so far as the claim amount settled by the surveyor is concerned, the opposite party has always been ready and willing to pay that amount to the complainant. Even offer to this effect was given by email dated 19th April, 2012 which was followed by letter dated 7.6.2012 whereby the complainant was called upon to sign the discharge voucher and received the sanctioned amount. It is contended that it is the complainant who did not accept the amount offered. Therefore, the complainant cannot ask for interest for the delay in payment. Secondly it is contended that the State Commission has committed error in holding that the complainant is entitled to claim of Rs.19,44,211/- ignoring the fact that as per the insurance contract general exception condition No.1 surveyor was justified in deducting Rs.97,098/- from the accessed loss and surveyor was also justified in making deduction of Rs.53,096/- on account of under insurance. Learned counsel for the opposite party on the contrary has argued in support of the impugned order.
8. The first question which needs determination is as to whether or not the State Commission was justified in ignoring the adjustment suggested by the surveyor in the assessed loss in view of condition no.1 in the General Exclusions enumerated in the insurance contract. The relevant condition is reproduced as under:
"GENERAL EXCLUSIONS
1. This policy does not cover ( not applicable to policies covering dwellings) a. 5% of each and every claim subject to a minimum of Rs.10,000 in respect of each and every loss arising out of 'Act of God perils' such as Lighting, STFI, Subsidence, Landslide and Rock slide covered under this policy.
b. The first RS.10,000 for each and every loss arising out of other perils in respect of which the insured is indemnified by this policy."
9. Bare reading of the above makes it clear that insurance policy does not cover 5% of each and every claim subject to minimum of Rs.10,000/- in respect of the loss arising out of the act of God, lighting, STFI, Subsidence, Landslide and Rock slide. In the instant case, the total loss estimated by the surveyor is Rs.19,94,221/- against which under the above noted clause, the surveyor had suggested 5% amount i.e. Rs.97,098/-. The said adjustment obviously is as per the terms of the contract. Therefore, the State Commission has erred in not giving the benefit of said adjustment under condition no. 1 of General Exclusions to the insurance company.
10. The second adjustment allowed by the surveyor in the actual assessed loss is adjustment of Rs.53,096/- on account of under insurance. I have carefully perused the report of the surveyor. In my opinion, the survey report does not clearly indicate the basis on which it had arrived at conclusion of under insurance. The adjustment of aforesaid amount against the loss assessed is, therefore, not justified.
11. In view of the discussion above, I am of the view that State Commission has committed an error in holding that complainant is entitled to sum of Rs.19,44,211/-, whereas actually after adjustment of Rs.97,098/- in terms of General Exclusion no.1 of the insurance contract, the total claim payable to the complainant amounts to Rs.18,47,113/-.
12. Next question which needs determination is whether or not complainant is entitled to interest on the aforesaid amount? Contention of the appellant / insurance company is that appellant is not liable to pay interest on the aforesaid amount because the appellant at the outset offered the amount to the complainant subject to his signing the settlement voucher but complainant himself failed to accept the amount. I do not find merit in this contention for the reason that opposite party / appellant obviously has utilized the aforesaid claim amount payable to the complainant. Therefore, denial of interest to the complainant on the awarded amount would amount to unjust enrichment of the opposite party / insurance company. Thus, I do not find any fault with order of the State Commission awarding interest to the complainant.
13. In view of the discussion above, I partly allow the appeal and modify the order of the State Commission only to the extent that compensation amount instead of Rs.19,94,211/- shall be Rs.18,47,113/-. The remaining part of the order is maintained.
......................J AJIT BHARIHOKE PRESIDING MEMBER