State Consumer Disputes Redressal Commission
M/S. Airsonic Holidays Pvt. Ltd. ... vs National Insurance Company Ltd. ... on 12 January, 2026
BEFORE THE GOA STATE CONSUMER DISPUTES
REDRESSAL COMMISSION,
PANAJI-GOA
In the matter in Consumer Complaint 06 of 2024.
Before Ms. Varsha R. Bale, President, (Off. President)
Ms. Rachna Anna Maria Gonsalves, Member
M/s Airsonic Holiday Pvt. Ltd.,
A Company Registered under
the Provisions of Indian Companies Act,
1956 having its Registered Office
at 1904 C Roma Lodha Fioronza,
Great Western Highway,
Goregaon East, Mumbai 63.
The said Company is represented
in its act through its Director
and Authorised Signatory
Mr. Pramod Rane, S/o Shri. Atmaram Rane,
aged about 71 years,
Businessman, Indian National,
r/o H. No. 515, Ashwem,
Mandrem-Goa. ......Complainant
V.
National Insurance Company Ltd.,
Mumbai Divisional Office XIX(261000),
Sterling Cinema Structures,
2nd floor, 65 Murzban Street,
Mumbai 400001. .....Opposite Party-1
National Insurance Company Ltd.
Mumbai Regional Office,
Sterling Cinema Structures,
2nd floor, 65 Murzban Street,
Mumbai-400001. .....Opposite Party-2
Adv. Shri. Neelesh Takkekar (via VC) along with Adv. Ms. Nikita Chopdekar
present for Complainant.
Adv. Shri. U. R. Timble present for Opposite Parties.
DATE: 12/01/2026
1
JUDGMENT
[per Adv. Ms. Rachna Anna Maria Gonsalves, Member]
1. This Judgment and Order arises out of Complaint filed by the Complainant in CC/06/2024 before this Commission alleging deficiency in service.
2. The brief facts:
A. The case of the Complainant is:
i. That the Complainant is lawful owner of the structures which are in the nature of furnished Hotel/Resort Room and other premises annexed to the same and located on the property bearing Survey No. 215/1 and 215/2 of Village Mandrem at Pernem Taluka, State of Goa and the said land is owned and possessed by the Director of the said Company by nature of Registered Deed of Sale and evidences the lawful title in respect of the said Individual. ii. That the Complainant is in hospitality business and operating the said structures which is in the nature of Hotel cum Resort and installed/set up by the said Company after having obtained the required permissions and sanctions as per law.
iii. The Complainant, in order to protect its financial interest and for Indemnification against any loss which may occur due to unforeseen events, had availed the services of the Opposite Party Company by obtaining a Standard Fire and Special Perils Insurance Policy for the period 22/01/2021 to 21/01/2022 with respect to the said Property/Building structures including plant, machinery furnitures, fixture, fittings therein which belong to the Complainant and the Complaint had land the said Fire Policy of the Opposite Party for Indemnification from any unforeseen losses including those resulting from Cyclone and not for sale or making profit and as such is a consumer under CPA 2019.2
iv. That the Complainant further stated that the said Fire Insurance Policy was purchased from Opposite Party-1 i.e. the National Insurance Company Ltd., being Standard Fire and Special Peril Policy bearing No. 261000 1120 10000149 covering risks, with effect from 22/01/2021 to 22/01/2022 which included loss resulting from Cyclone, Fire, Theft, Natural calamities etc. and as per the Terms and Conditions and its applicable clauses which includes, "Reinstatement Value Clauses", "Property Designation Clauses", "Waiver of under Insurance 15%" and "Omission and Addition/Alteration 5%", amongst other Clauses, Terms and Conditions of Tariff Advisory Committee (TAC). v. Thereafter on 16/05/2021 most of the areas in the State of Goa as well as neighbouring states were severely affected by a natural calamity i.e. the occurrence of the Tauktae Cyclone and due to this occurrence, the Insured structures and Plant and machinery, as well Furnitures, Fixtures and Fittings therein, which were operated by the Complainant as Hotel Cum Resort were severely affected and were Insured/Covered under the Fire Insurance Policy of the Opposite Party. Also there was substantial loss and damage to the Building Structures and Plant and Machinery (P &M) as well as Furnitures, Fixtures and Fittings (FFF) (Collectively called the Insured property) caused due to the Cyclonic winds and rains therein causing an assessed damaged and loss of Rs.1,15,63,374/- (Rupees One crore fifteen lakhs sixty three thousand three hundred seventy four only).
vi. That upon having faced with huge and devastating damage to its property, the Complainant then immediately informed the same to the Opposite Party requesting them to depute the Licensed Surveyor for Surveying and Assessing the Damage and Loss caused due to the cyclone winds identified as "Tauktae" as per the requirement of Section 64 UM of the Insurance Act 1938 and the Regulations of IRDA 3 as amended. Hence the Opposite Party had deputed M/s R. B. Davar, Insurance Surveyors and Loss Assessors, Mumbai whose Surveyor Mr. Anil Thakker, had conducted Virtual Survey on 20/05/2021, due to Travelling restrictions an account of Covid-19 and after the Virtual survey was conducted, Mr. Anil Thakker had personally visited the Insured property on three occasions i) 11, 12 & 13th June 2021, ii) 19, 20 & 21 August 2021 and iii) 7, 8 & 9 September 2021 and had inspected the entire insured property thoroughly and took inventory of Plant and Machinery, furnitures, fixtures and fittings etc. and thereafter submitted his Final Loss Assessment Report bearing No. 2021/502 dated 23/09/2021, assessing the gross loss at Rs.72,90,786/-(Rupees seventy two lakhs ninety thousand seven hundred and eighty six only) by wrongfully deducting claim amounts on account of alleged Under Insurance.
vii. That through its Representative the Complainant stated that a provisional claim was lodged immediately after the occurrence of loss on 16/05/2021, based on the rough estimate prepared on the basis of prima facie material available, which was tentatively estimated for a sum between Rs.30,00,000/-(Rupees thirty lakhs only) to Rs.40,00,000/-(Rupees forty lakhs only).
viii. Thereafter the survey was done and upon realising that the damage caused was much higher than what was estimated, there was a Revision in the claim amount carried out after consulting an expert in the field and on the basis of a report which was prepared by M/s. Karnik and Associates, Mumbai.
ix. Thereafter the Complainant had accordingly addressed their claim letter dated 15/10/2021 making a claim for an amount of Rs.1,15,63,374/- (Rupees One crore fifteen lakhs sixty three thousand three hundred and seventy four only).4
x. That a Loss Voucher dated 25/11/2022 was submitted by the Opposite Party-1 after much delay and length, for an amount of Rs.53,95,657/-(Rupees fifty three lakhs ninety five thousand six hundred and fifty seven only) which required the Complainant to sign the same as full and final settlement, without submitting to them the final Survey report of M/s. R. B. Davar (Surveyors) as well as the Claim Adjustment Statement in order to indicate as to how they had only Rs.53,95,657/-(Rupees fifty three lakhs ninety five thousand six hundred and fifty seven only) as against their gross claim amount of Rs.1,15,80,046/-(Rupees one crore fifteen lakhs eighty thousand and forty six only). xi. That as stated by the Complainant that in view of settling only a partial claim amount, a Notice was issued by the Complainant dated 07/12/2022 to the Opposite Party-1 through 'their Advocate, citing IRDA "Claim Procure in respect of the General Insurance Policy' from IRDA (Protection of Policy holders interest) regulation and called upon them to make payment of Rs.53,95,657/-(Rupees fifty three lakhs ninety five thousand six hundred and fifty seven only) in part payment without insisting for Loss Voucher and Settlement Agreement in view of the IRDA Circulars dated 21/09/2015 and 07/06/2016 respectively.
xii. Thereafter the Complainant through Advocate's letter dated 15/12/2022 submitted to the Opposite Party-1 Original Loss Voucher duly signed after marking "Under Protest" and deleting therein "Full and Final Settlement" and made endorsement therein to read as "Part Payment" alongwith the cancelled cheque. The Opposite Party-1 dishonestly submitted another fresh Loss Voucher by email to the Complainant without any disclosure of having received Loss Voucher and cancelled cheque from the Complainant's Advocate.
xiii. In pursuant to their contention the Complainant in good faith under Bonafide belief that the said payment was being 5 made in "Part payment" as per the Loss Voucher submitted by the Complainant's Advocate to the Opposite Party and therefore had signed fresh Loss Voucher received from the Opposite Party via e-mail and Rs.53,95,657/-(Rupees fifty three lakhs ninety five thousand six hundred and fifty seven only) was made as Remittance by Opposite Party-1 directly to the Complainant without pursuing the matter with the Opposite Party-1 and had also lodged an appropriate Complaint against the Opposite Party-1 with the IRDA and the Under Secretary to the Government of India by endorsing copy of their said letters dated 07/12/2022 and 15/12/2022 to the said Authorities.
xiv. The Complainant further stated that notwithstanding the Loss/Discharge Voucher submitted by them and considering that IRDA by its circulars 24/09/2015 and 07/06/2017 have directed all Insurers not to use Instrument of Discharge voucher as the means of Estoppel against the aggrieved Policy holders, when such Policy holder approaches the judicial Fora as Execution of such voucher does not foreclose right of policy holder to seek higher compensation before any judicial Fora or any other Fora established by law.
xv. That the Complainant stated that though the Opposite Party-1 after having received from the Advocate under their letter dated 07/12/2022 and 15/12/2021 the Discharge voucher marked "Under Protest" deleting the words "full and Final" and replacing the same with words "Part payment", the Opposite Party-1 have dishonestly collected fresh Loss Voucher from them and that the Complainant is entitled to pursue their claim for the balance amount under this Complaint.
xvi. Thereafter on being informed of the said payment, the Advocate of the Complainant by their letter dated 21/12/2022, put on record that the Complainant had received the said payment of Rs.53,95,657/-(Rupees fifty 6 three lakhs ninety five thousand six hundred and fifty seven only) in part settlement of their claim for Rs.1,17,00,000/- (Rupees One crore seventeen lakhs only) Less Salvage and 5% Policy Excess and called upon the Opposite Party-1 to proved to them Interim Survey Report and Final Survey Report issued by their surveyor M/s R. B. Davar and inspite of the request by the said letter and telephonic request, the Resppndent-1 failed to provide the Survey Reports. xvii. Therefore the Advocate of the Complainant by letter dated 20/01/2023, once again reminded for the same and threatened to take criminal action if the Survey Report was not submitted.
xviii. As stated by the Complainant that an email dated 23/01/2023 addressed to the Advocate of the Complainant was sent from the Opposite Parties Mumbai Regional Office- II and requested to provide request letter for the Final Survey Report and Addendum documents from the Complainant to which the Complainant by way of email dated 23/01/2023 informed the Opposite Party-1 that they had appointed Advocates Narichania and Narichania for collecting required documents and to take legal action and therefore requested Opposite Party-1 to provide documents based on which they had released payment of Rs.53,95,657/-(Rupees fifty three lakhs ninety five thousand six hundred and fifty seven only) against the claim amount of Rs.1,17,00,000/-(Rupees one crore seventeen thousand only).
xix. In pursuant to their contention the Complainant stated that in response to their Complaint to IRDA, IRDA by way of email dated 14/12/2022 called upon the Opposite Party to provide reasons if the settlement amount was lower than the Surveyor's estimated amount or Clients expected amount. The Complainant stated that the Opposite Party replied to the IRDA stating that Claimants Claim as per their claim Bill dated 15/10/2021 was Rs.1,17,14,879/-
7(Rupees one crore seventeen lakhs fourteen thousand eight hundred and seventy nine only) and the amount paid by the Insured against the Repair/Reinstatement Bills was Rs.1,15,63,374/-(Rupees one crore fifteen lakhs sixty three thousand three hundred and seventy four only) and the reasons given by them for settling the Claim for the lower amount was on account of alleged "Under Insurance" in terms of the building at 38.80% Plant and Machinery at 43.53% and furnitures, fixtures and fittings at 54.80%. though in fact there was no Under Insurance, considering their Repair/Replacement cost with regards to building structures is only Rs.64,89,880/-(Rupees sixty four lakhs eighty nine thousand eight hundred and eighty only) against sum insured of Rs.2,50,00,000/-(Rupees two crore fifty lakhs only) plus 15% waiver of Under Insurance and Furnitures, Fixtures and Fittings Rs.38,09,453/-(Rupees thirty eight lakhs nine thousand four hundred and fifty three only) against total sum Insured of Rs.80,00,000/- (Rupees eighty lakhs only) plus 15% waiver of Under Insurance copy.
xx. That as stated by the Complainant that the Final Loss Assessment Report dated 23/09/2021 of M/s R. B. Davar, Surveyor is mainly based on the report of Mr. S. A. Dhuri, Architect and M/s Karnik and Associates, Chartered Accountant who arrived at Under Insurance by taking the value of the building at Rs.3,67,00,000/-(Rupees three crore sixty seven lakhs only) Plant and Machinery and furnitures, fixtures and fittings at Rs.1,77,00,000/-(Rupees one crore seventy seven lakhs only).
xxi. Thereafter the Complainant through their Advocate's Notice dated 09/03/2024 explained to the Opposite Party-1 that there was no Under Insurance keeping in mind Reinstatement Value as per the said Architect as well as Chartered Account enclosing therewith giving working and then called upon the Opposite Party to make balance 8 payment of Rs.52,92,148/-(Rupees fifty two lakhs nine two thousand one hundred and forty eight only). As there was no response from the Opposite Party the Advocate of the Complainant again reminded the Opposite Party by letter dated 15/11/2024 submitted the Valuation Report to the Opposite Party dated 05/01/2023 which was prepared by Civil Engineer Mr. Sameeer Naik alongwith PWD of Goa approved rates for Construction, which was already available with the Opposite Party/their Surveyor and explained that there was no Under Insurance as alleged and the Complainant stated that it is evident that there is no Under Insurance with regards to the building/Structures besides the fact that the claim for repairs of the Building/Structure is only of Rs.64,89,880/-(Rupees sixty four lakhs eighty nine thousand eight hundred and eighty only) as against total sum Insured on the building/Structures of Rs.2,50,00,000/-(Rupees two crore fifty lakhs only) plus "Waiver of 15% Under Insurance" total Rs.2,87,50,000/-(Rupees two crore eighty seven lakhs fifty thousand only) and therefore applying Under Insurance and Assessing the loss at Rs.44,34,490/- (Rupees forty four lakhs thirty four thousand four hundred and ninety only) by the surveyor M/s R. B. Davar is not justifiable. xxii. That the Complainant stated that the Reinstatement Value of furnitures, fixtures and fittings (FFF) is Rs.52,79,046/- (Rupees fifty two lakhs seventy nine thousand forty six only) against Total Sum Insured of furnitures, fixtures and fittings (FFF) is well within the Reinstatement Value and sum Insured and therefore there is no Under Insurance. That in terms of Plant and Machinery, Reinstatement value of the damaged Plant and Machinery is Rs.1,77,08,793/- (Rupees one crore seventy seven lakhs eight hundred seven thousand ninety three only) as against sum insured of Rs.1,00,00,000/-(Rupees one crore only) and hence there is Under Insurance to the extent of 43.5% as correctly worked 9 out by the Surveyor and therefore against the claim amount of Rs.3,68,541/-(Rupees three lakhs sixty eight thousand five hundred and fourteen only) by adjusting the Under Insurance for Plant and Machinery Rs.2,07,954/-(Rupees two lakhs seven thousand nine hundred and fifty four only) and also are liable to pay an additional amount of Rs.9,47,500/-(Rupees Nine lakhs forty seven thousand five hundred only) as "add on cover".
xxiii. In pursuant to their contention the Complainant stated that the Opposite Parties are liable for the loss as per the claim made together with interest at 15% per annum 90 days after date of loss 16th May, 2021 i.e. from 16/08/2021 on the entire Net claim amount of Rs.1,10,01,044/-(Rupees one crore ten lakhs one thousand and forty four only) and with effect from 23/12/2022 on balance Rs.56,05,387/- (Rupees fifty six lakhs five thousand three hundred and eighty seven only) being the date on which the Opposite Party-1 made part payment of Rs.53,95,657/-(Rupees fifty three lakhs ninety five thousand six hundred and fifty seven only) based on the Surveyor's Final Loss Assessment Report dated 23/09/2021 read with corrigendum to the said assessment report, which was based on the Valuation Report of Mr. S. A. Dhuri, Architect, is without any documentary evidence of the Rates applied, and does not reflect true and correct facts and assessment of loss and can be termed as baseless without any application of mind to the factual realities.
xxiv. That the Opposite Parties are actually in breach of IRDA regulation No-16 (i) 2017, while resorting to raising false and incorrect plea of Under Insurance in order to deny rightful dues of the Complainant, despite receipt of hefty premium under an Insurance contract. Also that in view of the meagre Insurance claim amount released by the Opposite Party-1 in terms of the Insured properties when the Complainant has in fact sustained substantial higher 10 loss due to the said Cyclone, the Complainant had obtained Valuation Report from an Independent and Qualified Engineer Mr. Sameer C. Naik Goa and the same was submitted by the Complainant to the Opposite Party-1(their surveyor) also the PWD rates for the construction which has been ignored and instead relied on the Valuation Report of Mr. S. A. Dhuri Architect which is issued without any documentary evidence of the construction rated and without considering "15% waiver of Under Insurance"
reduced the claim amount substantially without any justification.
xxv. That the Fire Insurance Policy issued by the Opposite Party-
1 under which the Claim is payable is subject to "Reinstatement Value Clauses", "Waiver of Under Insurance 15%", and "Omission and Addition /Alteration 5%", amongst other Clauses and Terms and conditions of Tariff Advisory Committee (TAC). That in view of these clauses, the Opposite Party-1 is liable to pay for actual expenses incurred in Reinstatement/Repair of the Insured property, subject to limitation of liability upto sum Insured. xxvi. As further stated by the Complainant that Mr. S. A. Dhuri and the Surveyor M/s R. B. Davar should have taken into consideration Book Value of the Insured property Damaged/lost, however the said Mr. Dhuri and the Surveyor M/s R. B. Davar failed to take into consideration Capitalized Book Value as well as actual Expenses incurred for Replacement/Repair of Damage/Loss which were well within the Sum Insured.
xxvii. The Complainant further stated that the total insurance claim amount as per the assessment, carried out then Independent Surveyors Mr. Sameer Naik Goa and capitalised Book Value works out to Net Sum of Rs.1,10,01,044/-(Rupees one crore ten lakhs one thousand and forty four only) after adjusting 5% Policy Excess and Salvage Value.11
xxviii. That the Complainant having incurred an actual loss of Rs.1,14,74,966/-(Rupees one crore fourteen lakhs seventy four thousand nine hundred and sixty six only) being the actual expenses incurred in Reinstatement/Repairing the damage as reflected in the Books of Account, which after deductions of Salvage and Policy Excess etc. deductible in terms of the Policy, had worked out Net Loss at Rs.1,06,12,419/-(Rupees one crore six lakhs twelve thousand four hundred and nineteen only) and hence the Complainant addressed a Demand Notice calling upon Opposite Parties to pay the said balance amounts with interest.
xxix. That despite several follow ups and reminders, the Opposite Party has failed to settle the balance claim amount and compensate the Complainant for the losses incurred thus causing undue hardship and financial distress to the Complainant. Also the Opposite Parties refusal to honour the claim, amounts to deficiency in service, which has caused immense financial loss to the Complainant.
Therefore being aggrieved the Complainant approached this Commission and prayed:
a. That the Opposite Parties be directed to pay the balance claim of Rs.56,05,387/-(Rupees fifty six lakhs five thousand three hundred and eighty seven only) alongwith an interest of 15% per annum from the dated of part payment of Rs.53,95,657/- (Rupees fifty three lakhs ninety five thousand six hundred and fifty seven only) on 24/12/2022 until payment/Realisation. Thus the actual amount is Rs.1,10,01,044/-(Rupees one crore ten lakhs one thousand and forty four only).
b. That the Opposite Parties be directed to pay compensation of Rs.5,00,000/-(Rupees five lakhs only) for harassment and financial loss caused to the Complainant due to the deficiency in service by the Opposite Parties.12
c. That the Opposite Parties be directed to pay an amount of Rs.50,000/-(Rupees fifty thousand only) as cost of litigation to the Complainant.
3. On the other hand the Opposite Parties filed their Written Version and denied the various allegations made against them.
The Opposite Parties stated that the said loss subject matter of the Complainant occurred during the Cyclone Tauktae and the Insured, Air Sonic Holidays Pvt. Ltd. has purchased from the Opposite Party a Standard Fire and Special Perils Policy which covered the said loss.
Thereafter the Opposite Party appointed Surveyor Mr. R. B. Davar to assess the damages occurred to the insured property during the Cyclone Tauktae, Architect Rushikesh H, was appointed by the Insured who was unable to complete the required work and therefore another Valuer Architect Mr. S. A. Dhuri, a Government approved value, was appointed to carry out the valuation work and submitted his report dated 21/09/2021, thereby valuing the insured property at Rs.4,00,26,600/-(Rupees four crore twenty six thousand six hundred only). Thereafter the insured appointed a Chartered Accountant Karnik and Associates to assess the value of Plant and Machinery and Furniture/Fixture/Fitting and to verify/confirm the reinstatement work carried out by the insured. CA Karnik and Associates had submitted their reports for these two activities on 13/09/2021 and 23/09/2021 respectively.
That as stated by the Opposite Party that the CA had valued the Plant and Machinery at Rs.1,77,08,793/-(Rupees one crore seventy seven lakhs eight thousand seven hundred and ninety three only) and Furniture/Fixture/Fitting at Rs.52,79,046/- (Rupees fifty two lakhs seventy nine thousand forty six only). However, it is pertinent to note that Furniture/Fixture/Fitting were valued at Rs.1,77,00,000/-(Rupees one crore seventy seven lakhs only) by the Surveyor after having physically verified the 13 items installed in the villas comparing of Air Conditioners, TV electrical, wardrobe for 61 rooms and furniture/fixture/fitting at the restaurant.
In pursuant to their contention the Opposite Parties stated that the deductions in case of Building, Plant and Machinery Furniture/Fixture/Fitting and Add-on covers are due to the under insurance applicable on all these items and although there is a Clause for Waiver of under insurance of 15% this is applicable only if the under insurance is more than 15% then the regular concept of under insurance is applicable. That the Opposite Party has paid to the insured a sum of Rs.53,96,658/-(Rupees fifty three lakhs ninety three thousand six hundred and fifty eight only) and therefore the claim stands fully settled and the Complainant is not entitled to payment of any other of further amounts, whatsoever and all the calculations were correctly made as also all the deductions made were proper and correct.
Also it is pertinent to note that the claims of the Complainant were based on their own assessors and therefore incorrect. The Opposite Party further stated that the payment was made in full and final settlement of the claim and was accepted by the Complainant and hence the Opposite Party did not reply to the notices of the Complainant.
That the Repair/Replacement cost in terms of the building structures and other claims made and explanations sought to be furnished have nothing to do with the factum of under insurance and the under insurance exceeded the permissible limit of 15%. Once it so exceeded, the regular concept of under insurance became applicable as per the terms of the Policy. It is further pertinent to note that the Insurance taken was for Rs.2,50,00,000/-(Rupees two crore fifty lakhs only). The assessors appointed by the Complainant namely Architect S. A. Dhuri valued the insured property at Rs.4,00,26,600/-(Rupees four core twenty six thousand six hundred only) the Chartered Accountant Karnik and Associates valued plant and machinery at 14 Rs.1,77,08,793/-(Rupees one crore seventy seven eighty thousand and seven hundred ninety three only) and Furniture/Fixture/Fitting at Rs.52,79,046/-(Rupees fifty two lakhs seventy nine thousand and forty six only) and this is clearly the case of under insurance. Hence the calculations arrived at and the payment made was absolutely correct. It is further stated that there is no Consumer dispute at all as the claim of the Complainant is settled after proper consideration and application of mind.
Therefore the Opposite Party prayed that the Complaint be dismissed.
4. Documents relied upon by the Complainant:
Fire Insurance Policy bearing No.261000112010000149. Final Assessment Report dated 23/09/2021 of R. B. Davar, Insurance Surveyor.
Addendum of the report prepared by R. B. Davar dated 07/10/2022.
Report prepared by Chartered Accountant M/s Karnik and Associates dated 23/09/2021.
Loss Voucher dated 25/11/2022.
Notices dated 07/12/2022, 09/03/2024 addressed to Opposite Party-1.
Circular dated 24/09/2015, 07/06/2016 issued by Insurance regulatory and development authority of India. Letter dated 15/12/2022, 21/12/2022, 20/01/2023 addressed to Opposite Party-1.
Valuation report dated 05/01/2023 prepared by Mr. Sameer Naik alongwith copy of PWD rates.
Valuation report dated 21/09/2021 prepared by Architect and Government Approved Valuer Mr. S. A. Dhuri. Letter dated 15/11/2024 addressed by the Complainant to the Opposite Party-1 Board Resolution dated 18/11/2024 of the Complainant company.
Both parties filed Affidavit-in-Evidence and Written Argument.15
5. Arguments were advanced by Advocates of both parties. Both Advocates argued extensively. Adv. Shri. Nilesh Takkekar argued on behalf of the Complainant and submitted the brief facts before this Bench and highlighted that the Complainant had availed the services of the Opposite Party by obtaining a Standard Fire and Special Perils Insurance Policy for the period 22/01/2021 to 21/01/2022 in terms of the building structures that belonged to the Complainant. The Advocate further pointed out that on 16/05/2021 that due to the occurrence of a Cyclone 'Tauktae' which had affected most areas of Goa and neighbouring states, the Insured structures which were operated by the Complainant were severely affected and caused an assessed damage and loss of Rs.1,15,63,374/-(Rupees one crore fifteen lakhs sixty three thousand three hundred and seventy four only) and the Complainant immediately notified the Opposite Party as per Regulation 9 of the IRDA Regulation 2002 and requested for Claim Process up to which the Opposite Party deputed a Licensed Surveyor M/s R. B. Davar and Final Surveyor Report dated 23/09/2021 was submitted. The Advocate further pointed that the surveyor had assessed gross loss at Rs.72,90,786/- (Rupees seventy two lakhs ninety thousand seven hundred and eighty six only) applying under insurance deductions arbitrarily wherein the Complainant's actual reinstatement expenses as corroborated by Chartered Accountants and Independent Civil Engineers, stood at Rs.1,14,74,966/-(Rupees one crore fourteen lakhs seventy four thousand nine hundred and sixty six only). Advocate Shri. Takkekar further drew the attention to the Bench to the what was overlooked in terms of structures, plant and machinery and added that the deductions made by the Opposite Party has clearly violated the principles of Indemnity under the Insurance law.
Adv. Shri Takkekar reiterated section 64 UM of the Insurance Act, 1938 and IRDA Circular dated 10/12/2022 mandates transparency and fair communication of claim Assessment to be 16 insured and concluded that the present Complaint deserves to be allowed.
On the other hand Adv. Shri. U. R. Timble argued on behalf of Opposite Party and submitted that the Complainant was paid a sum of Rs.53,95,657/-(Rupees fifty three lakhs ninety five thousand six hundred and fifty seven only) in view of 'waiver of Under Insurance which forms part of the Insurance policy. The Advocate further questioned whether reduction made due to under insurance is in proportion to the sum insured with the amount required to be insured is proper and justified and whether the same amounts to deficiency in service. Adv. Shri. Timble argued that there was clear under insurance made and therefore proportionate reduction of amount to be paid was fully justified. He further added that the Opposite Party had accepted the Valuer's Report and acted upon the same. The Advocate then submitted that the Complainant has failed to show in what manner the Valuer's Report is faulty. The Advocate concluded his Arguments and prayed for the Complaint to be dismissed as there is no deficiency in service against the Opposite Party.
6. Heard arguments and on going through the entire material on record we observed that:
i. That the Complainant had taken a policy from Opposite party for the period 22/01/2021 to 21/01/2022. The claim of the Complainant was for 1 Cr and 46 Lakhs and only 52 Lakhs was paid by Opposite Party and a premium of Rs.25,000/-(Rupees twenty five thousand only) was paid.
ii. We also observed that the Valuation Report prepared by Sameer Naik has a methodical approach and this has been rightly pointed out by the Advocate for Complainant during final arguments and the Valuation Report by Mr. Dhuri is not based on any material at page 61 of the file, and we noted that the loss assessment is completely illogical.17
iii. The Opposite Party has failed to reply to the various communications addressed by the Complainant to the Opposite Party.
iv. We are not in agreement with the submissions made by the Advocate for Opposite Party that less payment was made due to Under Insurance which was more than 15% and that the Surveyors Report has to be accepted as once no inadequacy is found and is not akin to the facts of the case before this Commission and this is quite in the contrary with the authority relied upon by the Adv. Shri. Takkekar for the Complainant, wherein the Hon'ble Apex body in Khatena Fibres Ltd. Vs. New India Assurance Co. Ltd. observed at paragraphs-35, 36 and 37 which reads as under;-
"35. This is why the law is settled that the Surveyors report is not the last and final word. It has been hold by this Court in several decisions, that the Surveyors report is not so sacrosanct as to be incapable of being departed from. A useful reference can be made in this regard to the decision of this Court in New India Assurance Co. Ltd. Vs. Pradeep Kumar.
36. The Insurance Act,1938 even while assigning an important role for the Surveyor, casts an obligation on him under sub- section (1-A) of section 64-Um to comply in respect of his duties, responsibilities and other professional requirements as specified by the regulations made under the Act. As per provision 64- UM(1-A) every surveyor and loss assessor has to comply with the code of conduct in terms of their duties, responsibilities and other professional requirements as specified by the regulations made by the authority.
They are: (i) that the surveyor is governed by a code of conduct, the breach of which may give rise to an allegation of deficiency in service; and (ii) that the discretion vested in the insurer to reject the report of the surveyor in whole or in part, cannot be exercised arbitrarily or whimsically and that if so done, there could be an allegation of deficiency in service".18
We also observed that Mr. Dhuri's Valuation Report does not hold water and we question how did he arrive at a figure of 4 Crores, which is completely an under valuation and is not based on cogent material as compared to valuation report of Mr. Sameer. The authorities relied upon by the Complainant are squarely applicable to the Complaint before this Commission. We also noted that the report is given by the Chartered Accountant who has been appointed by the Surveyor. The Chartered Accountant has not given any valuation report and he cannot certainly give valuation on the building structures.
The dispute in the Complaint is two fold (1) the Surveyor report which is incorrect and (2) 15% allowance which was there. Also we are taken a back at how the Opposite Party arrived at under insurance.
We observed that the report by Mr. Dhuri has absolutely no material on record.
Therefore there was no question of Under Insurance as concluded by the said Surveyor M/s R. B. Davar based on valuation report of M/s Dhuri ignoring provisions of Reinstatement Insured value (RIV), Designation of property clause "Waiver of 15% Under Insurance Clause" and Capitalisation of Reinstatement/Repair in the Books of Account.
The Opposite Parties are in breach of the Insurance contract due to which the Complainant had to bear the financial burden of the un- settled claim amount which has had a cascading effect on the financial well-being of the Company.
We find that the dispute is regarding balance payment and the Opposite Party has without any evidence come to the conclusion that there is an under insurance as per the CA report which is clearly a deficiency on the part of the Opposite Party and we are therefore inclined to grant the reliefs as prayed for by the Complainant for in the Complaint.
Also as per trite law, that the insured must be put in the same financial position as prior to the loss.
19In light of the above discussion, we pass the following:
ORDER
1. The Complaint is hereby allowed with no order as to cost.
2. The following reliefs are granted:
3. The Opposite Parties is hereby directed to pay the balance claim amount of Rs.56,05,387/-(Rupees fifty six lakhs five thousand three hundred and eighty seven only) alongwith interest of 6% p.a. from the date of part payment 24/12/2022, of Rs.53,95,657/-(Rupees fifty three lakhs ninety five thousand six hundred and fifty seven only) on until payment/realization.
4. The Opposite Parties is hereby directed to pay compensation of Rs.50,000/-(Rupees fifty thousand only) for harassment and financial loss caused to the Complainant due to the deficiency in service by Opposite Party.
5. The Opposite Parties is hereby directed to pay a amount of Rs.25,000/-(Rupees thirty thousand only) as cost of litigation.
[Adv. Ms. Varsha R. Bale] President (off.) [Adv. Ms. Rachna A. M. Gonsalves] Member VS 20