State Consumer Disputes Redressal Commission
New India Assurance Co. Ltd. vs Sh. Lokpal Mokta. & Anr. on 29 December, 2015
H.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
SHIMLA.
First Appeal No.: 214/2015
Date of Presentation:04.11.2015
Date of Decision: 29.12.2015.
...............................................................................
The New India Assurance Company Ltd.,
Bhagra Niwas, The Mall Shimla,
Through its Senior Divisional Manager,
IIIrd Floor, Block No.7, SDA Complex,
Kasumpti, Shimla-171 009.
... Appellant.
Versus
1. Shri Lokpal Mokta,
Son of Shri Nikha Ram,
Resident of Village Labrot,
Post Office & Tehsil Jubbal,
District Shimla.
2. State Bank of India,
Jubbal, District Shimla,
Through its Branch Manager.
...Respondents
...................................................................................................
Coram
Hon'ble Mr. Justice Surjit Singh, President.
Hon'ble Mrs. Prem Chauhan, Member.
Hon'ble Mr. Vijay Pal Khachi, Member.
Whether approved for reporting?1
For the Appellant: Mr. Ratish Sharma, Advocate.
For Respondent No.1 Mr. H.S Thakur, Advocate
For Respondent No.2 Mr. Vaibhav Tanwar, Advocate.
................................................ ......................................................
O R D E R:
Justice Surjit Singh, President (Oral) Appellant has preferred this appeal against order dated 10.09.2015, of learned District Consumer Disputes Redressal Forum, Shimla, whereby a complaint filed against it, by respondent 1 Whether reporters of the local papers may be allowed to see the order? New India Assurance Co. Ltd. Versus Lokpal Mokta & Anr.
(F.A. No.214/ 2015) No.1, Lokpal Mokta, has been allowed and a direction given to it, to pay a sum of `2,99,593/-, with interest at the rate of 9% per annum, on account of insurance money for damage caused to the insured under construction building and `5,000/-, as compensation for deficiency in service.
2. Respondent, Lokpal Mokta, filed a complaint, under Section 12 of the Consumer Protection Act, 1986, pleading that after raising a loan of `10,00,000/-, from State Bank of India, respondent No.2 herein, he started construction of a residential house on a site in Village Labrot, Tehsil Jubbal of Shimla District. The house, under construction, was got insured in the sum of `10,00,000/-, by respondent No.2, in order to secure recovery of loan amount. On the night, intervening 21/22.08.2010, when the policy was in force, house under construction was partly damaged due to heavy rain. Report was lodged with the police. Intimation of the damage was given to the appellant. According to respondent No.1 loss caused due to rain, was to the tune of `4,34,302/-. 2
New India Assurance Co. Ltd. Versus Lokpal Mokta & Anr.
(F.A. No.214/ 2015) An estimate was got prepared by respondent No.1 from Assistant Architect and submitted to Surveyor deputed by the appellant. Surveyor considered that estimate. He assessed the loss at `64,924.83 and reduced this amount to `43,726.87 with the observation that the property had been under insured. The appellant offered to pay `30,227/-, after deducting a sum of `10,000/-, on account of excess clause, which the respondent No.1 refused, as according to him, the loss sustained by him, was huge, while the amount of money offered, was too small.
3. Respondent then filed a complaint, under Section 12 of the Consumer Protection Act, 1986, seeking direction to the appellant to pay a sum of `4,34,302/-, on account of indemnification for the loss caused. In addition, he claimed damages to the tune of `1,00,000/- and litigation expenses of `10,000/-.
4. Complaint was contested by the appellant and it was pleaded that the surveyor had assessed the loss, as per norms, taking into 3 New India Assurance Co. Ltd. Versus Lokpal Mokta & Anr.
(F.A. No.214/ 2015) consideration the actual damage noticed on the spot. It was also stated that what had been insured by the respondent, was structure above plinth level, while in the estimate submitted by the respondent, cost of repair/re-construction of work, below plinth level had also been included, which the surveyor had rightly rejected.
5. Learned District Forum, vide impugned order, has upheld the appellant's plea that respondent is not entitled to indemnification for the damage caused to the construction below plinth level, and after excluding the money, claimed on account of work below plinth level, from the amount of estimate, submitted by the respondent, has directed the payment of a sum of `2,99,593/- for the works above plinth level, on the basis of estimate submitted by the respondent.
6. We have heard learned counsel for the parties and gone through the record.
7. Report of Surveyor, relied upon by the appellant, is Annexure R4. We have scrutinized the report. If the money claimed by respondent No.1, 4 New India Assurance Co. Ltd. Versus Lokpal Mokta & Anr.
(F.A. No.214/ 2015) on account of works below plinth level is excluded from the estimate, submitted by respondent No.1, money payable to respondent No.1 for the above plinth level damage comes to `2,44,305/-. In respect of four items appearing at serial Nos. 12,13, 14 and 15 of the report, against a claim of `24,142/- , plus 50% on account of cost index, the total amount of which, as per estimate of the respondent comes to `36,213/-, Surveyor has not given any amount of money with the observation that the works do not exist physically in damaged portion under construction. We see no reason to disagree with this part of the report of Surveyor and, therefore, if an amount of `36,213/- is excluded from the total amount of money required for repair/re-construction of above plinth level structure, the amount of money, payable to the respondent No.1, comes down to `2,08,092/-, as per estimate of respondent No.1.
8. Surveyor while reducing the amount of money, required for the rest of items above plinth level, i.e. items at serial Nos. 8,9, 10, 11, 16 and 17 5 New India Assurance Co. Ltd. Versus Lokpal Mokta & Anr.
(F.A. No.214/ 2015) has not given any cogent reason. For example, for reducing the amounts claimed for items 7(2), 7(3) and 7(4), the Surveyor has stated "the form work after laying beams, pillars, columns can be re-used in first floor and second floor". Now, if the pillars are shaken on the ground floor and require replacement, it may not be advisable to support the hanging pillars on the first floor and the second floor with the reconstructed pillars on the ground floor. Money claimed on account of items No.11, 16 and 17 has been reduced with the observation that the works are already lying dismantled. Now if the works had been dismantled, presumption is that they were damaged and had been dismantled for reconstruction purpose. So, we do not agree with the reduction in the amount of some items and complete disallowance of some other items by the Surveyor.
9. Surveyor in his report has stated that the building under construction was insured in the sum of `10,00,000/-. The covered area as per report of the Surveyor is 3764.49 Square Feet. He 6 New India Assurance Co. Ltd. Versus Lokpal Mokta & Anr.
(F.A. No.214/ 2015) has taken the cost of construction at the rate of `400 square feet, which according to us does not seem to be on the higher side. The total value of the insured under construction building has been worked out by the Surveyor at `14,84,602/-. That means, the building, in question, was under insured and by applying average clause appearing in the policy, the amount of money payable to the respondent No.1 comes down to `1,40,450/-.
10. As a result of above stated position, we partly accept the appeal filed by the appellant and reduce the amount of money, payable on account of insurance claim, from `2,99,593/- to `1,40,150/-, and direct that the aforesaid amount of money shall be paid with interest at the rate of 9% per annum, from the date of filing of the complaint to the date of payment of aforesaid amount of money. We further direct the appellant to pay `25,000/- on account of compensation for harassment and deficiency in service and a sum of `10,000/- on account of costs. This amount is inclusive of costs of `5,000/-, awarded by the District Forum. 7
New India Assurance Co. Ltd. Versus Lokpal Mokta & Anr.
(F.A. No.214/ 2015)
11. Learned counsel representing the appellant submits that the money, payable to respondent No.1 in terms of this order, whereby we have modified the order of learned District Forum, be remitted to the loan account of respondent No.1 with respondent No.2. We allow this request. However, action on the request of the learned counsel for the appellant shall be taken only after the expiry of period prescribed for filing revision against this order. The money deposited by the appellant, in excess of the money payable as per this order shall be refunded to it.
12. A copy of this order be sent to each of the parties, free of cost, as per Rules.
(Justice Surjit Singh) President (Prem Chauhan) Member (Vijay Pal Khachi) Member December 29, 2015.
DKM) 8