State Consumer Disputes Redressal Commission
Sh. Pania Ram Sharma. & Anr. vs United India Insurance Co. Ltd. on 24 June, 2019
H.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
SHIMLA.
Consumer Complaint No.: 04/2018
Date of Presentation: 14.03.2018
Order reserved on : 11.04.2019
Date of Order : 24.06.2019
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1. Pania Ram Sharma son of late Shri Heera.
2. Rama Nand Sharma son of Pania Ram Sharma.
Both residents of Village-Pohl P.O. Bakhol Tehsil Kotkhai
District Shimla.
....Complainants
Versus
United India Insurance Company Ltd. through its Divisional
Manager Timber House Shimla-H.P.
....Opposite party
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Coram
Hon'ble Mr. Justice P.S. Rana (R) President.
Hon'ble Mr. Vijay Pal Khachi Member.
Hon'ble Ms. Sunita Sharma Member.
Whether approved for reporting?1 Yes
For the Complainants : Mr. Abhishek Sood Advocate.
For the Opposite Party : Mr. Jagdish Thakur Advocate.
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O R D E R:
Justice P.S. Rana (R) President
1. Present consumer complaint is filed under section 17 of Consumer Protection Act 1986 pleaded therein that complainants are owner in possession of two stories building comprised of rooms, kitchen, bath & toilet, electrical, 1 Whether Reporters of the local papers may be allowed to see the order? Yes Pania Ram Sharma & Anr. Versus United India Insurance Company Ltd. C.C. No.04/2018 sanitary fittings, interior furnishing with wooden material in khata/khatauni No.86 min/100 khasra No.418 Mohal Pohl P.O. Bakhol Tehsil and District Shimla H.P. It is pleaded that due to heavy rain and storm on dated 23.05.2016 entire building of complainants situated over the above mentioned land was substantially damaged and residential house of complainants became unfit for human habitation. It is further pleaded that complainants sustained structural damage to their residential building due to heavy rain. It is pleaded that insurance company issued insurance policy i.e. Standard Fire & Special Perils Policy and policy was operative w.e.f. 04.09.2008 to 03.09.2023. It is pleaded that opposite party also received premium amount from the complainants to the tune of Rs.1301/-(One thousand three hundred one). It is pleaded that building is beyond repair and require reconstruction.
2. It is further pleaded that Surveyor cum Loss Assessor assessed loss for reinstatement to the tune of Rs.2882800/-(Twenty eight lac eighty two thousand eight hundred). It is pleaded that opposite party did not settle the claim and committed deficiency in service. Complainants sought relief of payment of Rs.2882800/-(Twenty eight lac eighty two thousand eight hundred). In addition complainants sought relief of payment of Rs.100000/-(One lac) on account of mental harassment. In addition complainants sought relief 2 Pania Ram Sharma & Anr. Versus United India Insurance Company Ltd. C.C. No.04/2018 of payment of Rs.100000/-(One lac) as litigation costs alongwith interest @ 18% per annum. Prayer for acceptance of consumer complaint sought.
3. Per contra version filed on behalf of opposite party pleaded therein that insurance company is not under legal obligation to indemnify the complainants because as per opinion of Surveyor cum Loss Assessor loss was not sustained by complainants due to storm as roof of building in question was found intact and no other building was damaged in the nearby area due to storm. It is further pleaded that insurance policy was operative w.e.f. 04.09.2008 to 03.09.2023. It is pleaded that building in question was insured for a sum of Rs.3000000/-(Thirty lac). It is pleaded that loss to the building in question was not due to subsidence and was also not due to land slide. It is pleaded that insurance company appointed Surveyor cum Loss Assessor. It is further pleaded that final surveyor has assessed the loss to the tune of Rs.200329/-(Two lac three hundred twenty nine) on repair basis. It is pleaded that insurance company has repudiated the claim strictly as per laws. It is pleaded that insurance company did not commit any deficiency in service. Prayer for dismissal of consumer complaint sought.
4. Complainants also filed rejoinder and reasserted the allegation mentioned in the complaint. We have heard 3 Pania Ram Sharma & Anr. Versus United India Insurance Company Ltd. C.C. No.04/2018 learned Advocates appearing on behalf of parties and we have also perused entire record carefully.
5. Following points arise for determination in present consumer complaint.
1. Whether consumer complaint filed by complainants is liable to be accepted as mentioned in memorandum of grounds of consumer complaint.
2. Final order.
Findings upon point No.1 with reasons:
6. Complainant No.1 filed affidavit Ext.C-I in evidence. There is recital in affidavit that deponent is permanent resident of village Pohl P.O. Bakhol Tehsil Kotkhai District Shimla H.P. There is recital in affidavit that deponent and son of deponent namely Shri Rama Nand are owner in possession of two stories building comprised of rooms, kitchen, bath & toilet, electrical, sanitary fittings, interior furnishing with wooden material in khata 86 khatauni No.100 khasra No.418 Mohal Pohl P.O. Bakhol Tehsil and District Shimla H.P. There is recital in affidavit that deponent took insurance policy i.e. Standard Fire & Special Perils Policy from the opposite party. There is recital in affidavit that insurance policy was operative at the time of incident. There is recital in affidavit that insurance policy was issued in the sum of Rs.3000000/-(Thirty lac). There is recital in affidavit that deponent has paid premium to insurance company to the 4 Pania Ram Sharma & Anr. Versus United India Insurance Company Ltd. C.C. No.04/2018
tune of Rs.1301/-(One thousand three hundred one). There is further recital in affidavit that on dated 23.05.2016 due to heavy rain and storm entire building was substantially damaged and residential house of deponent became dangerous for human habitation. There is recital in affidavit that certificate of Tehsildar was also obtained relating to incident and matter was also reported to insurance company. There is recital in affidavit that insurance company did not settle the claim.
7. Complainants also filed affidavit of Sh. B.C. Sharma Ex.C-2 in evidence. There is recital in affidavit that deponent has visited spot on 24.02.2017 and after consideration of all relevant aspects submitted the damage report placed on record.
8. Complainants also filed affidavit of Sh. Rama Nand Ext.C-3 in evidence. There is recital in affidavit that deponent is son of Sh. Pania Ram complainant No.1 and obtained insurance policy from opposite party. There is recital in affidavit that due to heavy rain and storm on dated 23.05.2016 building in question became dangerous and also became unfit for human habitation. There is recital in affidavit that building sustained structural damage. There is recital in affidavit that Sh. B.C. Sharma Civil Engineer has submitted report in a comprehensive and detailed manner. There is further recital in affidavit that Surveyor cum Loss 5 Pania Ram Sharma & Anr. Versus United India Insurance Company Ltd. C.C. No.04/2018 Assessor appointed by insurance company did not apply his mind. There is recital in affidavit that insurance company has repudiated the claim contrary to law and committed deficiency in service.
9. Complainants also filed affidavit of Sh. Anup Sharma Ext.C-4 in evidence. There is recital in affidavit that on dated 23.05.2016 due to heavy rain and storm building in question was damaged and became dangerous for human habitation.
10. Co-complainant also filed rebuttal affidavit in evidence and reasserted the allegations mentioned in earlier affidavit. State Commission has carefully perused all the annexures filed by complainants.
11. Opposite party filed affidavit of Sangeeta Bali Divisional Manager United India Insurance Company Ltd. Ext.OP-I in evidence. There is recital in affidavit that version filed by opposite party alongwith annexures OP-1 to OP7 be read in evidence.
12. Opposite party also filed affidavit of Shri Vijay Kumar Berry Surveyor cum Loss Assessor Ext.OP-2 in evidence. There is recital in affidavit that deponent has assessed loss to the building in question to the tune of Rs.200329/-(Two lac three hundred twenty nine) on repair basis. There is recital in affidavit that there was no possibility of damage due to storm because roof of building in question 6 Pania Ram Sharma & Anr. Versus United India Insurance Company Ltd. C.C. No.04/2018 was found intact and no other building in nearby locality was damaged due to storm.
13. Opposite party also filed affidavit of Shri Vaibhav Dhatwalia Surveyor cum Loss Assessor in evidence. There is recital in affidavit that Surveyor report annexure-OP3 (Colly) alongwith all documents be read in evidence.
14. Submission of learned Advocate appearing on behalf of complainants that complainants are legally entitled for a sum of Rs.2882800/-(Twenty eight lac eighty two thousand eight hundred) from insurance company is decided accordingly. Insurance company appointed Surveyor cum Loss Assessor namely Sh. Vijay Kumar Berry. Sh. Vijay Kumar Berry is duly licensed under Insurance Act 1938. Sh. Vijay Kumar Berry Surveyor cum Loss Assessor has personally inspected the premises in question and found that walls and G.F. of house in question were damaged. Sh. Vijay Kumar Berry Surveyor cum Loss Assessor has assessed loss to the tune of Rs.200329/-(Two lac three hundred twenty nine) on repair basis. Sh. Vijay Kumar Berry was appointed under statutory Act i.e. Insurance Act 1938. State Commission is of the opinion that report of Sh. Vijay Kumar Berry is substantial piece of evidence.
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Pania Ram Sharma & Anr. Versus United India Insurance Company Ltd. C.C. No.04/2018
15. State Commission is of the opinion that insurance company has committed deficiency in service by way of not relying report of Sh. Vijay Kumar Berry appointed under section 64UM of Insurance Act 1938. State Commission is of the opinion that it is not expedient in the ends of justice and on the principle of natural justice to allow insurance company to disbelieve the report of Surveyor cum Loss Assessor appointed under statutory Act i.e. Insurance Act 1938. It is held that insurance company has committed deficiency in service by way of not paying insurance amount as recommended by Sh. Vijay Kumar Berry Surveyor cum Loss Assessor appointed under statutory Act i.e. Insurance Act 1938. See 2010(1) CPC 696 NC Champa Lal Verma Versus Oriental Insurance Company Ltd. See 2010(3) CPJ 401 NC New India Assurance Company Ltd. Versus Pushpa Chhabra. See 2012(1) CPJ 420 NC H.C Saxena Versus New India Assurance Company Ltd. See 2012(4) CPJ 103 NC National Insurance Company Ltd. Versus Jyothi Tobacco Traders. See 2009(3) CPJ 194 NC Nand Kishore Jaiswal Versus National Insurance Company Ltd. See 2017 (1) CPJ 529 NC Ashish Kumar Jaiswal Versus ICICI Lombard General Insurance Company Ltd. & others. See 2009(1) CPC 166 NC Pradeep Kumar Versus National Insurance Company Ltd. See 2018(1) CPR 311 NC Oriental Insurance Company Ltd. Versus Jagdish Chand Gupta.
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Pania Ram Sharma & Anr. Versus United India Insurance Company Ltd. C.C. No.04/2018
16. Submission of learned Advocate appearing on behalf of complainants that as per report of Sh. B.C. Sharma complainants are legally entitled for a sum of Rs.2882800/- (Twenty eight lac eighty two thousand eight hundred) is decided accordingly. State Commission is of the opinion that Sh. B.C. Sharma is not registered Surveyor cum Loss Assessor under Insurance Act 1938. Sh. B.C. Sharma has assessed the loss for entire reconstruction of the building. State Commission is of the opinion that insurance company is under legal obligation to indemnify the actual damage sustained by complainants and insurance company is not under legal obligation to pay amount of entire reconstruction of building in question. In view of fact that Sh. B.C Sharma is not registered Surveyor cum Loss Assessor under statutory Act i.e. Insurance Act 1938 State Commission has relied report of Sh. Vijay Kumar Berry who is Surveyor cum Loss Assessor appointed under statutory Act i.e. Insurance Act 1938.
17. Submission of learned Advocate appearing on behalf of complainants that report of Surveyor cum Loss Assessor namely Sh. Vijay Kumar Berry is contrary to factual position is decided accordingly. Complainants did not send interrogatories to Sh. Vijay Kumar Berry Surveyor cum Loss Assessor appointed under Insurance Act 1938. No reason assigned by complainants as to why complainants did not 9 Pania Ram Sharma & Anr. Versus United India Insurance Company Ltd. C.C. No.04/2018 send interrogatories to Sh. Vijay Kumar Berry Surveyor cum Loss Assessor relating to his report. Adverse inference is drawn against complainants.
18. Submission of learned Advocate appearing on behalf of complainants that complainants are legally entitled for a sum of Rs.100000/-(One lac) on account of mental harassment is decided accordingly. Insurance company did not settle the claim as recommended by Surveyor cum Loss Assessor namely Sh. Vijay Kumar Berry appointed under statutory Act i.e. Insurance Act 1938. State Commission is of the opinion that complainants are legally entitled for reasonable compensation for mental harassment.
19. Submission of learned Advocate appearing on behalf of complainants that complainants are legally entitled for litigation costs to the tune of Rs.100000/-(One lac) is decided accordingly. State Commission is of the opinion that complainants have engaged Advocate before State Commission and have also paid litigation costs. State Commission is of the opinion that complainants are legally entitled for reasonable litigation costs.
20. Submission of learned Advocate appearing on behalf of insurance company that damage was not caused due to storm because roof of the building in question was found intact at the time of survey and no other building in nearby 10 Pania Ram Sharma & Anr. Versus United India Insurance Company Ltd. C.C. No.04/2018 area was damaged due to storm and on this ground complaint filed by complainants be dismissed is decided accordingly. State Commission is of the opinion that insurance company has appointed Sh. Vijay Kumar Berry Surveyor cum Loss Assessor and after personally inspecting the place of incident Sh. Vijay Kumar Berry Surveyor cum Loss Assessor appointed under statutory Act i.e. Insurance Act 1938 has recommended payment to complainants to the tune of Rs.200329/-(Two lac three hundred twenty nine) on repair basis. State Commission is of the opinion that it is not expedient in the ends of justice and on the principle of natural justice to allow insurance company to disbelieve the recommendation of Sh. Vijay Kumar Berry Surveyor cum Loss Assessor appointed under statutory Act i.e. Insurance Act 1938.
21. Even report of Surveyor cum Loss Assessor appointed under statutory Act i.e. Insurance Act 1938 is corroborated by report of Tehsildar Kotkhai District Shimla- H.P wherein Tehsildar has specifically mentioned in his report that after verification it was found that on dated 23.05.2016 due to storm and natural calamity cracks developed in residential house of complainants. Report of Sh. Vijay Kumar Berry Surveyor cum Loss Assessor is also corroborated by certificate issued by office of Gram Panchayat Bakhol. Gram Panchayat Bakhol has given the certificate that house of 11 Pania Ram Sharma & Anr. Versus United India Insurance Company Ltd. C.C. No.04/2018 complainants in question was damaged. In view of above stated facts point No.1 is decided accordingly. Point No.2: Final Order
22. In view of findings upon point No.1 above complaint is partly allowed. It is ordered that opposite party shall pay claim to complainants to the tune of Rs.200329/- (Two lac three hundred twenty nine) as assessed by Surveyor cum Loss Assessor namely Sh. Vijay Kumar Berry appointed under statutory Act i.e. Insurance Act 1938 alongwith interest @ 9% per annum from the date of institution of complaint till actual payment.
23. It is further ordered that opposite party shall also pay compensation to complainants for mental harassment to the tune of Rs.20000/-(Twenty thousand). It is further ordered that opposite party shall litigation costs to complainants to the tune of Rs.10000/-(Ten thousand). Insurance company shall complete the entire process of payment within one month after the receipt of certified copy of order.
24. Report of Surveyor cum Loss Assessor namely Sh. Vijay Kumar Berry dated 03.12.2016 annexure-P9, certificate of Tehsildar annexure-P4 and certificate of Gram Panchayat Bakhol dated 26.05.2016 annexure-P5 shall form part and parcel of order. File of State Commission be consigned to record room after due completion forthwith. Certified copy of 12 Pania Ram Sharma & Anr. Versus United India Insurance Company Ltd. C.C. No.04/2018 order be transmitted to parties forthwith free of costs strictly as per rules. Complaint is disposed of. Pending application(s) if any also disposed of.
Justice P.S. Rana (R) President Vijay Pal Khachi Member 24.06.2019 Sunita Sharma K.D Member 13