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Judgment
The present revision petition has been filed against the order dated 18 th July, 2019 in appeal No.884/2018 filed by the petitioner against the order of the District Forum dated 31.1.2018.
At the outset, learned counsel submits that she is not challenging the concurrent findings of the Foras below relating to the deficiency in service and that her argument is only regarding the quantum of the relief which has been given to respondent No.1/complainant. It is argued that the surveyor has assessed the loss and had come to the conclusion that the loss is of Rs.63,500/-. It is argued that the Foras below had erred in not considering the finding of the surveyor on this count and granting a sum of Rs.2,50,000/- as compensation to the complainant.
We have heard the argument of learned counsel and perused the record. It is argued that the complainant took a loan of Rs.3 lakhs from the U.P. Gramin Bank, Branch Village Chakwa, District Balrampur on 9 th December, 2011 for rice plant and got insured the same with the petitioner for the said loan. On 22 nd August, 2016 at about 2.00 am a fire broke out in the rice plant of the complaint and the report of the said was sent to the petitioner and an FIR was also registered with the local police station. Petitioner appointed a surveyor. The petitioner, however, repudiated the claim on the ground that at the affected premises since the complainant was running a rice mill, while the policy was for rice shop and there was a change in the occupation, the claim was not covered under the policy. The complainant filed the consumer complaint before the District Forum. The similar plea was taken by the petitioner in the written version.
Parties led their evidences and after hearing the parties and perusing the record, the District Forum concluded that the policy was for the mini rice plant. This finding is based on the fact that the complainant had taken a loan for mini rice plant and this loan was insured by the petitioner hence the policy was for mini rice plant and the repudiation was hence wrong and concluded that this act amounts to deficiency in service. As regards the quantum, the District Forum held as under: -
"The dispute arises when insurance company on the basis of the surveyor report has made no claim by stating that general store was insured, small rice mill was not insured so profession is different. ON the comments of the surveyor that profession is changed, explanation may be placed with the help of the documents. In this regard, in reply to the letter of the complainant, the 'Loan Disbursed Bank' (opposite party No.2) handed over the inter correspondence office letter dated 25.2.2016 (paper No.6/7) and letter of the insurance company dated 25.2.2016 which show that opposite party No.2 bank has taken the insurance policy for mini rice plant and renewal was also made by paying installment of Rs.2052/- on 2.9.2015, Rs.2360 on 13.10.2014 and Rs.2200/- on 12.12.2012. The first time insurance policy was taken on 27.12.2011 by paying Rs.2200/- (as per the statement of loan account of the complainant filed by the opposite party No.2 bank Paper No.36/1 to 36/6). The 'Shop Rice Shop' was written in the cover note filed by the complainant (business security policy schedule). Paper No.6/1 which was issued by the opposite party insurance company for the period from 13.10.2014 to 12.10.2015 and paper No.34/9 filed by the opposite party No.1 insurance company which is for the period from 2.9.2015 to 1.9.2016 in column of business 'Shop Kirana Store' was endorsed and in proposal form dated 2.9.2015- 442034602 D111341 (paper No.34/6) there is no signature of the complainant. The agent of the insurance company has written Kirana Store in 'Bank Account of Mr. Mohd. Rais' whereas original proposal of policy no.44263462 which was given by the bank to the opposite party insurance company by paying installment on 27.12.2011 (as per the paper No.36/2), the opposite party insurance company has not filed any details or proposal whereas loan papers submitted by the bank (paper No.39/1 to 39/11) show that on the basis of the loan sanctioned by the Zila Gramoudhog Adhikari, Balrampur under Mukhyamantri Gramoudhog Yojna bank has granted loan to the complainant for rice mill and bank for protection of its loan taken the insurance of Rs.3,00,000/-(Rs.three lac) for plant rice mill from the opposite party insurance company by deducting from the account of the complainant. In report of the surveyor of the opposite party insurance company Sri Rajesh Maheshwari (as per the paper No.34/19 to 34/30 filed by the opposite party insurance company) fire taken place in mini rice mill plant and total current day replacement cost Rs.2,15,000/- and 50% less comes to Rs.1075/- and available sum insured Rs.3,00,000/- were shown but for non payment of the claim some time endorsed rice shop and some time Kirana Shop and made no claim of the complainant's insurance claim. The Hon'ble National Commission in New India Assurance Co. Ltd. versus Sehrawat India (P) Ltd. 2009 CTJ 432 (CP) (NCDRC), Hadimba International Ltd. versus United India Insurance Co. Ltd. 2010 CTJ 407 (CP) (NCDRC)...............held surveyor at time sought information not relevant to the claim and it is held in 2009 CTJ 432 (CP) (NCDRC) that loss finalized by surveyor's observation need to be accepted unless there is substantial evidence to the contrary- No such evidence produced.
The present case is covered by the above referred judgments. Thus in the light of the above discussion, this Forum is of the view that opposite party insurance company by not paying the claim of the complainant has committed deficiency in service under Section 2 (1) (G) and 2 (1) (O) of the Act and also guilty of unfair trade practice under Section 2 (1) (R) of the Act. The opposite party insurance company is liable for payment of the claim amount and compensation to the complainant. The opposite party No.2 has stated in its written statement that claim amount should be given to the opposite party No.2 from the opposite party No.1 insurance company but in statement of complainant's loan account filed by the opposite party No.2 paper no.36/5 balance zero was shown on 24.6.2016. However, under which circumstances Rs.3,00,000/- received through NEFT and balance is shown Rs.2,52,699/-. No conclusive evidence was placed. In such a situation complainant is only entitled to receive the amount from the insurance company. The complainant has not sought any relief from the opposite party No.2, therefore, complaint is decided negative against opposite party No.2. The complaint is admitted against opposite party No.1. Since complainant has not filed any conclusive evidence to prove mental agony and health related liability therefore formal compensation shall be allowed."
This order is impugned by the petitioner before the State Commission and similar contentions were raised. The State Commission after re-appreciating and reassessing the evidences on record dismissed the appeal and upheld the order of the District Forum. The State Commission held as under: -
"The complainant had taken a loan of Rs.3 lakhs from OP No.2 i.e. Surv. U.P. Gramin Bank for mini Rice Plant and OP No.2 for the protection of loan given to the complainant has taken insurance from O.P. No.1 for mini Rice Plant and premium was paid from the loan account of the complainant and insurance policy was renewed. This is an admitted fact that OP No.2 got the Rice Mill/Plant insured through OP No.1/Appellant Insurance Company against the loan extended to complainant. In these circumstances, Appellant Insurance Company committed deficiency in service by insuring General Store instead of Rice Mill/Plant. It was also confirmed by the Surveyor's report that the rice mill/plant had caught fire. Therefore, it is clear that OP No.2 bank had insured Mini Rice Mill/Plant but by mistake the Appellant Insurance Company mentioned General Store in its policy which is deficiency in service by the appellant Insurance Company. Hence, the Appellant Insurance Company cannot escape its liability.
After going through the facts of the case, we are of the opinion that the award passed by the District Forum of Rs.2,15,000/- is correct. The District Forum awarded 10% interest from 22.1.2016 which is incorrect. The said interest shall be payable from the date of incident to be paid to the complainant. The amount of Rs.2,50,000/- as compensation for mental agony given by District is incorrect as the complainant has been given interest on the compensation amount. The amount of Rs.5,000/- for cost of the case to be paid to the complainant is correct and not liable to be modified. As per the above, the appeal is partly allowed and the order of the District Forum is modified and the Appellant Insurance Company is directed to pay Rs.2,15,000/- from the date of complaint alongwith interest @ 10% per annum and Rs.5,000/- as cost. Rs.2,50,000/- awarded as compensation towards mental agony and harassment awarded by District Forum is set aside. The cost of the appeal to be borne by the respective parties."
Before us, the learned counsel has only challenged the compensation amount of Rs.2,50,000/- which has been granted to the complainant on the ground that this is not the loss assessed by the surveyor and, therefore, the Foras below have committed illegality in granting this amount and the impugned order, therefore, is liable to be set aside.
We have perused the surveyor report. The surveyor has reported as under:
S. No.
Item Description
Qty. (In No)
Rate per Unit
Amount (Rs.)
1.
Diesel engine 22 H.P. with pulley
1
110000
110000
2.
Sheller
1
20000
20000
3
Polisher 18"
1
25000
25000
4
Expeller
1
20000
20000
5.
Patta Belt Pulley
1
4000
4000
Total Current Day Replacement Cost=
215000
Less: Depreciation @ 50%=
107500
Market Value as on date of Loss=
107500
Therefore,
Value at Risk for contents = Rs.107500/-
Now
Available Sum Insured = Rs.3,00,000/-
Hence,
Applicable Percentage Under Insurance = NIL"
Surveyor himself has calculated the total current day replacement cost to the entire plant to the value of Rs.2,15,000/-. There is a finding that the complete plant was destroyed in the fire. In view of this fact the argument that the finding of the Foras below are not based on the evidences which were part of the record and hence perverse is merit less. We find no perversity or infirmity in the impugned order. The present revision petition has no merit and the same is dismissed.