State Consumer Disputes Redressal Commission
Sh. Bir Singh Rana. vs Oriental Insurance Co. Ltd. on 15 July, 2022
H. P. STATE CONSUMER DISPUTES REDRESSAL
COMMISSION SHIMLA
Consumer Complaint No. : 05/2015
Date of Presentation : 21.04.2015
Order Reserved on : 13.06.2022
Date of Order : 15.07.2022
__......
Bir Singh Rana, Son of Shri Deyee Ram,
Resident of Village Sainj Khad, Post Office Dhar Chandna,
Sub-Tehsil Kupvi, Tehsil Chopal, District Shimla, H.P.
......Complainant
Versus
The Divisional Manager, Oriental Insurance Company Limited,
Divisional Office, Mythe Estate, Kaithu, Shimla,
Tehsil and District Shimla, H.P.
...... Opposite party
Coram
Hon'ble Justice Inder Singh Mehta, President
Hon'ble Ms. Sunita Sharma, Member
Whether approved for reporting?1
For Complainant : Mr. Arun Kumar Advocate.
For Opposite Party : Mr. Lalit K.Sharma, Advocate.
Justice Inder Singh Mehta, President
O R D E R :-
Brief facts of consumer complaint:
1. Complainant Bir Singh Rana has filed the present consumer complaint Under Section 17 of the Consumer Protection Act, 1986 with the prayer that opposite party be directed to pay Rs. 30.00 lacs, on account of Insurance money, 1 Whether reporters of the local papers may be allowed to see the order?
Bir Singh Rana Versus Oriental Insurance Co. Ltd. C.C. No.05/2015 because of total loss of his insured house due to fire and to pay Rs. 3.00 lacs, on account of compensation for mental harassment and also to pay litigation expenses.
2. Case of the complainant is that the complainant built a house in Village Sainj Khad, Sub-Tehsil Kupvi, Tehsil Chopal, District Shimla. The construction was A-class. House was insured in the sum of Rs.30.00 lacs with the opposite party for the period w.e.f 20.05.2008 to 19.05.2013. Cover note is Annexure A-2. On the intervening night of 17th & 18th May, 2013, house was completely burnt in a fire. It was a case of total loss. Report was lodged with the police on 18.05.2013. Copy of the report is Annexure A-4. Member of the Panchayat visited the spot and gave written report, copy Annexure A-3, that house had been completely destroyed, due to fire. Intimation through registered letter was sent to the Head Office of the opposite party, on 18.05.2013 itself. There was no response from the opposite party consequently, a reminder was sent on 08.05.2014.
3. Thereafter, on 25.07.2014, a legal notice was sent to the opposite party, copy of which is Annexure A-7. Opposite party did not respond to the legal notice. Gram Panchayat of the area had passed a resolution, on 07.07.2013, recommending the payment of compensation to the complainant for total loss of his house and belongings, kept in that house. Copy of resolution is Annexure A-9.
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Bir Singh Rana Versus Oriental Insurance Co. Ltd. C.C. No.05/2015
4. Opposite party filed reply and stated that Engineer Rajneesh Kumar Dhiman was appointed surveyor who contacted the complainant repeatedly on telephone and requested him to accompany him to the spot, but complainant did not cooperate as result thereof, Surveyor could not inspect the spot and verify the alleged loss. It is stated that on 31.03.2014, he could not visit the spot and assess the loss for want of cooperation on the part of the complainant.
5. Parties have adduced evidence. Complainant has tendered in evidence copies of revenue papers, pertaining to the site of house, cover note, Annexure A-2, report of Member of Panchayat, Annexure A-3, copy of report lodged with the police, Annexure A-4, copies of three statements, allegedly recorded by the police, Annexure A-4, copy of intimation, sent to the opposite party, Annexure A-5, Annexure A-6, letter written to Divisional Manager of the opposite party, copy of legal notice, Annexure A-7, copy of resolution of Panchayat, Annexure A-9, Annexure A-10, letter dated 31.03.2014, received by the complainant from the Surveyor, complaining that he had not accompanied him to the spot, despite a number of telephonic calls. Complainant has also tendered his affidavit in evidence.
6. Opposite party has tendered in evidence copy of policy, copy of letter dated 31.03.2014 of the Surveyor, written to the complainant, Annexure OP-2 copy of letter written by 3 Bir Singh Rana Versus Oriental Insurance Co. Ltd. C.C. No.05/2015 the Surveyor to the Divisional Manager of the opposite party, Annexure OP-3, informing that complainant had not co- operated in the inspection of site of the alleged burnt house. The opposite party has also tendered in evidence affidavits of his Divisional Manager, Shimla, and Engineer, Rajneesh Kumar Dhiman, Surveyor.
7. This Commission has allowed the complaint in favour of the complainant on 20.07.2015. Thereafter, aggrieved by the order of this Commission, opposite party preferred the appeal before Hon'ble National Commission and after hearing the parties Hon'ble National Commission remanded back the complaint to decide afresh.
8. Learned counsel appearing on behalf of opposite party tendered in evidence affidavit of Mr. Rajneesh Kumar Dhiman registered Surveyor and Loss Assessor Ext. OP-1 alongwith Surveyor report Annexure OP-4 and closed the evidence.
9. In rebuttal, learned counsel appearing on behalf of complainant tendered in evidence affidavit Ext. C-2 and documents Annexure A-11 to A-14 and closed the evidence.
10. Learned counsel of the complainant has filed objections to the surveyor report in which it has been pleaded that three storey house was completely burnt in the year 2013. 4
Bir Singh Rana Versus Oriental Insurance Co. Ltd. C.C. No.05/2015
11. During the course of arguments, learned counsel of the complainant has submitted that three storey house was burnt in the fire incident, which was duly insured with the opposite party for a sum of Rs.30.00 lacs and intimation regarding fire incident was also given to the opposite party vide Annexures A-5 and A-6 and subsequently, legal notice was also issued to the opposite party. But, despite legal notice, nothing positive came out on behalf of the opposite party and consequently, the present complaint has been filed. He further submitted that despite intimation, opposite party did not appoint Surveyor and surveyor was appointed in the year 2013, but surveyor did not carry out the survey at the spot. He further submitted that order passed by this Commission was without surveyor's report and subsequently, opposite party approached the National Commission and opposite party was directed to carry out survey and Rajneesh K. Dhiman was appointed as Surveyor and he filed his report, which is placed on record as Annexure OP-4. Ld. Counsel of the complainant submitted that report of the surveyor is biased and inconsistent with the factual position at the spot. He further submitted that complainant is entitled to the insured amount of Rs.30.00 lac, whereas Surveyor has assessed only Rs. 62,341/-. Ld. Counsel of the complainant further submitted that Surveyor did not factually visit the spot and he has filed his report on his own without visiting the spot. He further submitted that despite intimation given to the opposite party, there were 5 Bir Singh Rana Versus Oriental Insurance Co. Ltd. C.C. No.05/2015 latches on the part of the opposite party in not appointing the surveyor immediately. Therefore, later appointment of surveyor and his report is biased and without any substance and surveyor report be ignored and the insurance amount of Rs.30.00 lacs be awarded in favour of the complainant.
12. On the other hand, learned counsel for the opposite party has submitted that house was insured for a sum of Rs.30.00 lacs. He further submitted that there is no latches on behalf of the opposite party and had there been any latches it would have been pointed out at the time of arguments before this Commission. Learned counsel for the opposite party further submitted that the opposite party immediately appointed the surveyor in the year 2013 itself as per Annexure OP-2 and OP-3 as well as A-10. He further submitted that as per Annexure A-10 dated 31.03.2014, it indicates that the surveyor who was appointed further intimated the complaint to ensure his availability at the spot, but despite numerous telephonic calls, he did not ensure his presence at the spot and later, he did not raise this objection before this Commission and it is only at National Commission, where he pointed out that surveyor's report is not on the record. Factually, it was complainant who was negligent for not making himself available at the spot. Later when complainant made himself available for the joint inspection, joint inspection was carried out in the year 2014 and filed survey report, Annexure OP-4 dated 14.02.2020 and there is no latches 6 Bir Singh Rana Versus Oriental Insurance Co. Ltd. C.C. No.05/2015 on the part of the opposite party. Rather, it was the complainant who was not available for the joint inspection at the spot and complainant is not entitled for any amount over and above assessed by the surveyor and complaint be disposed of as per law.
13. We have heard learned counsel for the parties and gone through the entire record carefully.
FINDINGS :-
14 The complainant in his complaint has specifically stated that the complainant has built a house situated at Chack Sainj Khad, Tehsil Chopal, District Shimla and same was got insured with opposite party for a sum of Rs. 30.00 lacs which is proved as per affidavit Ext. C-1. The complainant further stated in para-2 of his complaint that he insured the house for a sum of Rs. 30.00 lacs and same has been proved in his affidavit.
15. The complainant in his complaint in para-4 has specifically stated that the said insured house was gutted in fire in the intervening night of 17.05.2013. FIR was registered on 18.05.2013 which is Annexure A-4. Intimation to the Insurance Company on telephone as well as through registered post was given on 18.05.2013 Annexure A-5. The complainant further alleged that despite intimation none came forward to assess the loss. Legal notice was issued to the opposite party on 25.07.2014. Opposite party did not respond to the legal notice. Gram Panchayat of the area had passed a resolution on 7 Bir Singh Rana Versus Oriental Insurance Co. Ltd. C.C. No.05/2015 07.07.2013, recommending the payment of compensation to the complainant for total loss of his house and belongings, kept in that house. Copy of resolution is Annexure A-9.
16. So far, the insured house gutted in fire on the intervening night of 17th and 18th May, 2013 and registration of consequential FIR has not been disputed in the reply of the opposite party. Further, the said house was insured with the opposite party too has not been disputed in its reply.
17. The plea of the opposite party is that the complaint of the complainant is not maintainable for the complainant own act and conduct of non-cooperation. The said plea is supported with an affidavit of Sh. P.N. Bodh, Sr. Divisional Manager on behalf of opposite party stating therein that Sh. Rajneesh Kumar Dhiman was deputed as loss assessor who kept on contacting complainant. But despite repeated reminders the complainant on one or the other pretext avoided survey/assessment and did not co-operate to visit the spot. The factum of the letter of Rajneesh Kumar Dhiman dated 31.3.2014 is Annexure OP-2.
18. The complainant in his claim has claimed insured amount amounting to Rs. 30.00 Lacs on account of fire of his house as a total loss. In support of his claim, complainant has filed his only affidavit in evidence Ext. C-2. 8
Bir Singh Rana Versus Oriental Insurance Co. Ltd. C.C. No.05/2015
19. The complainant in his affidavit and statement of claim has not filed valuation report of house in question which was gutted in fire.
20. The bare perusal of the affidavit Ext. C-2 does not show the name of articles which were gutted in fire and its valuation. There is no other material evidence on record to show the details of articles which were destroyed in the fire except the structure which is shown in photographs Ext. A-1 and A-2.
21. Therefore, the claim of the complainant is just based on the claim of the insured amount only and the structure of the house as shown in photographs.
22. The allegations of the complainant that the opposite party despite repeated request did not come forward to assess the loss does not seems to be correct in presence of surveyor letter .
23. The registered loss assessor Sh. Rajneesh Kumar Dhiman intimated the non-co-operation on the part of the complainant and his inability to submit his loss assessment report to the opposite party.
24. The said letter dated 30.05.2014 written to the Sr. Divisional Manager, The Oriental Insurance Company dated 30.05.2014 by Er. Rajneesh Kumar Dhiman is reproduced as under :
" Pursuant to the instructions from your office on 9 Bir Singh Rana Versus Oriental Insurance Co. Ltd. C.C. No.05/2015 11.7.2013, I, the undersigned kept repeatedly contacting and requesting the insured on his mobile from day one to issuing of registered notice dated 31.3.2014 (copy of which is appended along with postal receipt) to confirm his availability/presence for showing the spot so that the visit for spot inspection could be scheduled accordingly, but whenever he attended my call/met me in Shimla, he evaded by telling a different story, like:
. He could not attend the calls as he was busy in discharging his duty in/for the Govt. School, he is posted in. . He could not attend the calls as he was in Uttaranchal for about 2 months for the final rites of his father and was not carrying his mobile.
. Road leading to the spot from either side is damaged by heavy rains to the extent that it is beyond restoration for traffic in near future.
. He is busy in the treatment of his ailing mother. . Spot is not accessible due to heavy snowfall.
. He could not attend the calls as he was hit and injured by a motorcyclist in Shimla.
. Wreckage of the house is washed away and except barren land nothing is left on the spot to show.
Even the insured has not responded to my registered letter dated 31.3.2014.
As such spot survey could not be conducted till date to proceed further in the claim."
25. The aforesaid letter specifically states the non-co- operation on the part of the complainant and the said letter is written to the opposite party prior to his assessment at the later stage.
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Bir Singh Rana Versus Oriental Insurance Co. Ltd. C.C. No.05/2015
26. Alleged letter written by the complainant Annexure A-6 indicates that nothing was left at the spot, as the house of the complainant was gutted in fire.
27. The instant survey report dated 14.12.2020 was carried out after a gap of seven years and the surveyor has given his report in view of investigation reference Fire/13- 14/OIC,DO, Shimla dated 08.07.2016, the Himachal Pradesh Stamp (Prevention of Undervaluation of Instruments) Amendment Rules notified vide Notification Number Revenue Stamp (F) 6-1/2009-1 dated 26/06/ -20132013, pubished in the Rajpatra, Himachal Pradesh on 26/06/2013, and the Cost Inflation Index for FY-2013-14 Notified by CBDT with base Year 2001-02, and policy, and other information, the loss has been assessed to the tune of Rs. 62,341/- in favour of the complainant.
28. FIR Annexure A-4 which was registered at the instance of the complainant himself does not discloses the name of the articles which were destroyed in the fire. The FIR only indicates that the house was gutted in fire. 11
Bir Singh Rana Versus Oriental Insurance Co. Ltd. C.C. No.05/2015
29. The objection to the surveyor report filed by the complainant does not bring much substance in his objection and the same is rejected for non-participation of the complainant himself at initial period and in the presence of affidavit of Sh. P.N.Bodh, Sr. Divisional Manager of opposite party and affidavit of surveyor Ext. OP-1.
30. Surveyor Rajneesh Kumar Dhiman has nothing adverse against the complainant despite that on the further request of opposite party he prepared survey report as nothing remains to be assessed at the spot after a gap of seven years.
31. The complainant fails to bring on record any other loss except the house gutted in the fire as shown in photographs Annexure C-1 and C-2.
32. The complainant fails to bring on record valuation report of the house.
33. In these circumstances, nothing remains on record to accept only the assessment report of surveyor dated 14.10.2020 in which the surveyor has assessed the loss to the tune of Rs. 62,341/-.
34. Therefore, the complaint is partly allowed and the complainant is entitled to Rs. 62,341/- alongwith interest @ 9% 12 Bir Singh Rana Versus Oriental Insurance Co. Ltd. C.C. No.05/2015 per annum from the date of filing of complaint till realization of entire amount. Opposite party is further directed to pay Rs.50,000/- as compensation for harassment and Rs.25,000/- on account of litigation costs.
35. The file be consigned to record room after due completion. Certified copy of order be sent to the parties as well as their counsel strictly as per rules. Pending application(s), if any, also disposed of.
Justice Inder Singh Mehta President Sunita Sharma Member 15.07.2022 *ss* 13 Bir Singh Rana Versus Oriental Insurance Co. Ltd. C.C. No.05/2015 14 Bir Singh Rana Versus Oriental Insurance Co. Ltd. C.C. No.05/2015 15 Bir Singh Rana Versus Oriental Insurance Co. Ltd. C.C. No.05/2015 16