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Judgment
Ram Surat Ram Maurya, Presiding Member
Heard Mr. Mohd. Anis Ur-Rehman, Advocate, for the appellants and Ms. Nanita Sharma, Advocate, for the respondent.
Aforementioned appeal has been filed from the order of Chhattisgarh State Consumer Disputes Redressal Commission, Pandri, Raipur, dated 24.08.2012, passed in Consumer Complaint No.11 of 2010, partly allowing the complaint for Rs.1,65,507/- with interest @6% per annum and cost of Rs.5,000/-.
Arvind Agrawal and another (the appellants) filed Consumer Complaint No.11 of 2010, for directing National Insurance Company Ltd. (the respondent) (for short the Insurer) to pay (i) Rs.3680731/- as remaining insurance claim (ii) Rs.2/- lacs, as compensation for boundary wall, (iii) Rs.2/- lacs, as compensation for mental agony and harassment, (iv) Rs.2/- lacs, as compensation for deficiency in service, (v) Rs.1/- lac, as additional compensation, (vi) cost of litigation and (vii) any other relief which may be deemed fit and proper, in the facts and circumstances of the case.
The complainants stated that the firm M/s. Arvind Industries was manufacturing and selling P.V. Foams, Foam Sheets, Mattresses, and P.U. Foam and had its factory premises at S.K.S. Plot, Phase-2, Near Baldev Allies, Siltara, Raipur, Chhattisgarh. The complainants obtained Standard Fire and Special Peril Policy, i.e. Policy No.285101/11/08/3100000235, for the period of 22.06.2008 to 21.06.2009, sum insured for Rs.18650000/-, on Factory Shed, Office, Godown, Building, Boundary Wall of Foam manufacturing unit (for Rs.25/- lacs), Plant & Machinery, Accessories (for Rs.40/- lacs), Electrical installation (for Rs.1.5/- lacs), Stock of raw material, Stock in process and Finished goods (for Rs.120/- lacs), from National Insurance Company Ltd. Sum insured for Factory Shed, Office, Godown, Building, Boundary Wall of Foam manufacturing unit was enhanced to Rs.75/- lacs, vide Endorsement dated 03.03.2009, charging additional premium. On 13.06.2009 from 16:30 hours, heavy rain with storm and lightening was started in the locality of the factory premises, which continued up to 8:30 hours on 14.06.2009. Due to storm and wind, the steel pipes and trusses of the factory shed were bent down and collapsed along with cement asbestos sheet. Heavy rain continued for a long time, due to which, there was water logging and inundation, in the factory premises, which caused extensive damage to Factory Shed, Building, Boundary Wall, Plant & Machinery, Accessories, Electrical installation, Stock of raw material, Stock in process and finished goods. The complainants immediately informed the Insurer on telephone about the incident, in evening on 13.06.2009. Written information was given on 15.06.2009 to the Insurer. The Insurer appointed Navin Jain, Surveyor and Loss Assessor, Navi-Mumbai, as the surveyor. The Surveyor surveyed the factory premises on 16.06.2009 and on subsequent dates. The complainants submitted their claim for Rs.4611525/- (i.e. Rs.3402975/-, for loss of stock and Rs.1208550/-, for loss of shed and building). The Surveyor submitted Final Survey Report dated 04.11.2009, in which, he assessed the loss of Stock as Rs.678696/- and loss of shed and building as Rs.301183/-. After adjusting excess of 5%, he assessed total loss of Rs.930886/-. The Insurer sent discharge voucher for settlement of the claim for Rs.930794/-, which was signed by the complainant under protest on 25.05.2010 and the Insurer gave a cheque of Rs.930794/- dated 31.05.2010. On the allegations that the Surveyor has illegally assessed the loss for meagre amount, ignoring the evidence on record relating to extensive damage and thus there was deficiency in service, this complaint was filed.
The Insurer filed written reply on 18.01.2011 and contested the complaint. In the written reply, material facts have not been denied. It has been stated that as soon as the Insurer received information regarding the loss, the Insurer appointed surveyor for assessment of the loss. The Surveyor, after assessing the loss, submitted Final Survey Report on 04.11.2009, in which the loss has been assessed to Rs.9,30,886/-. In pursuance of the survey report, the Insurer sent a discharge voucher in full and final settlement. The complainant signed the discharge voucher on 25.05.2010 although under protest but the payment in this respect was made to the complainant on 31.05.2010. The Insurer has followed the survey report inasmuch as there was no contrary material to show that the survey report was incorrect. Therefore, there was no deficiency in service on the part of the Insurer. The Insurer is not liable to pay any further amount towards the insurance claim or compensation and damages etc. as claimed.
State Commission, after hearing the parties, vide judgment dated 24.08.2012, found that the surveyor has assessed the loss on the basis of physical verification. There is no material to challenge the findings recorded by the surveyor in Final Survey Report dated 04.11.2009. So far as Civil Engineer’s Report submitted by the complainant for proof of loss is concerned, it has been duly considered by the Surveyor in his report and he has recorded a finding for not accepting Civil Engineer’s report dated 25.06.2009. There was no illegality in respect of the assessment of loss either towards the stock or towards the building. However, State Commission found that the Surveyor has wrongly applied under insurance clause and deduced Rs.165507/-. On these findings, the complaint was partly allowed and the insurance company was directed to pay Rs.165507/-. Hence, this appeal has been filed claiming for enhancement of the compensation.
We have considered the arguments of the counsel for the parties and examined the record. The finding of the surveyor has been challenged in paragraph 4 of the complaint which is quoted below:
“4. That the loss which the complainant has suffered after the said incident in the insured premises the detail of the said is mentioned in Annexure A along with this complaint and the detail of stock is mentioned as Annexure B which is attached with this complaint.
In the insured spot at the damage shed per sheet were of average 6 to 7 kilogram foam sheet which were kept in different lines in one line 4 bundle were kept and in per bundle there are 7 foam sheets. In godown in one part there were 285 lines of 6 kilogram and in per line there were four bundles. In the same way the foam sheet of 7 kilogram there were total 80 lines and per line 3 bundle were there. In this way of 6 kilogram there were 1140 bundles and total of 7980 foam sheet and of 7 kilogram there were 240 bundles and total of 720 foam sheet were kept there. The complainant had assessed the bundles where were kept down of last 2 foam sheet of damage sheets of 285 sheets of 6 kilogram.
That is total 570 sheets of 6 kilogram total weight of 3420 k.g. and regarding this 50% of the claim amount which is Rs.204892/- which is half of the claim has been claimed by the complainant. In the same way 185 lines of the upper part of the bundle the first two sheets were calculated which were damage because the shed of iron and seizure of iron of asbestos sheets was fallen down. In this way 370 sheets of 6 kg of total of 2220 kg the amount of Rs.159600/- which is 60% of the claim was claimed. In this way the rest 100 lines of 6 kg the upper part of the bundle 4 sheets were damage and total 400 sheets whose weight was 2400 kg for which claim amount of Rs.244439/- which is 85% of the claim amount was claimed. In this way, it is clear that complainant has claimed the amount genuinely. It is clear that 1140 bundle of 6 kg which is total 7980 sheets out of which 1340 sheets has been claimed and rest 6640 sheets whose weight is 40950 k.g. the amount claim is of this in part 1100 no. of foam Gadda which were open and it was not taken by bardana and in spite of total loss on the said 1100 no. of Gadda total amount of 70% which comes to Rs.1,14,037/- was claimed.
Apart from this the parts in the godown were the shed was not fallen down completely but because of incident the water was logged and the damaged bundle in per line 3 bundles total of 80 lines and according to that the 7 k.g., loss of 50% which was of Rs.67099/- was claimed and rest sheets whose total weight was 9380 k.g. of which 25% of the claim amount was demanded. In fact in the said sheets the loss of the 50% and the amount claimed was 25% of the loss which is of Rs.280987/-. In this way of the said damage stock the price was of Rs.2952371/- and 10% of construction cost 3.5% packing material and Rs.30 per bundle shifting charges. In this way total of Rs.3402975/- was claimed regarding the damage materials. And regarding the building and damage of the shed the complainants had assessed from the loss of the expert engineer and the damage materials, shed, iron seizure, asbestos sheets has assessed the loss of 50%, in fact the complainant has demanded the 50% of the said loss which is of Rs.1208550/-, in fact the surveyor of the OP has assessed the loss of Rs.3491250/- of the shed. It is specific statement that the surveyor has not inspected the entire damage material and when on 16.06.2009 the spot was fill up with the water and the sheds which were there in the damage condition in the material which was damage was not completely inspected by the surveyor because which was not possible to go in the placed because of water. After that the surveyor of the Mumbai has sent his representative who has also not inspected and for that the letter was written on 28.07.2009 and in his report he has assessed the loss of the half part of the godown and for rest no specific reason has been given. And in his report regarding the insurance amount in stock has been calculated wrongly and from which it is clear that the claim of the complainant has not been decided correctly and it has been decided one sided and without assessing the correct loss of the material kept in the godown the amount Rs.930794/- has been given to the complainant. Which is totally wrong and it shows that OP has committed unfair trade practice and deficiency in service.”
In paragraph-6 of the complaint, it has been stated that the weight of sheets were 6 and 7 kgs but the surveyor has assessed it on the basis of 5 Kg/ per sheets. But no evidence in this regard has either been produced before the State Commission or in the Appeal. As such, this is not liable to be accepted.
The surveyor, in the final survey report dated 04.11.2009, has taken the loss as follows:
Damage Place
Qty found affected
Rate (Avg.)
(Rs.)
Value in (Rs.)
% of loss allowed
Value of loss (Rs.)
At Top ayer
(a) Pressed/Torn
1,600 kgs
118/-
1,88,000/-
50%
94,400/-
(b) Water drenched
1,020 kgs
118/-
1,20,360/-
40%
48,144/-
At Bottom ayer
Water inundated
2,020 kgs
118/-
3,09,100/-
40%
1,23,664/-
Remaining water affected
36,760 kgs
(7,860) kgs)
(at bottom)
+
21,040 kgs)
118/-
43,37,680/-
10%
4,33,768/-
Sub Total
6,99,976/-
6,999/-
Add 1% of loss for damage to Packing Material which was water damaged/spotted (After adjusting its salvage value)
Total
7,06,975/-
The Surveyor found that whole shed of godown had not collapsed. This fact is not disputed. Loss of water drenched foams was assessed as 10% only. The quantity of the damaged foam as mentioned in paragraph 4 of the complaint is tallying with the quantity as mentioned in the survey report. However, the damages were assessed on percentage basis. This finding of the surveyor has not been challenged by the complainant that percentage basis has been wrongly applied.
ORDER
In view of aforesaid discussion, we do not find any illegality in the judgment of the State Commission. The appeal has no merit and is dismissed.