Mansuri Pirubhai Gulabbhai vs Branch Manager, Oriental Insurance Co Ltd

REVISION petition no. 2964 of 2011 has been filed against the order dated 09.02.2011 of the Gujarat State Consumer Disputes Redressal Commission, Ahmedabad (''the State Commission'') in Appeal no. 1164 of 2007.

THE facts of the case as per the petitioner/ complainant are that the petitioner received a fire/ riot policy no. 2002/ 1378 for the house bearing no. 6/18, 6/18, 89/90 situated near the Luhar Chakla, Dabgar ni Pipal at Unjha for the period 21.09.2001 to 23.09.2011.In the month of February 2002 after the Godhra carnage, a riotous mob damaged the aforesaid house of the petitioner.

UNDER the conditions of the policy, the petitioner informed the insurance company regarding the damage caused to his house. Thereafter, as per the conditions of the policy, the petitioner filed his claim with information of damages, FIR, panchnama and other necessary documentary evidence. Thereafter, the insurance company has appointed a surveyor for assessing the damages caused to the house of the petitioner and the surveyor has completed his work. The insurance company informed the petitioner regarding the assessment to the tune of Rs.66,000/ -. The petitioner handed over the work of assessment to an independent surveyor Shri Navin H Patel of Aakash Architect who assessed the damaged house of the petitioner to the tune of Rs.3,56,596.30, therefore, the petitioner has produced the said report before the respondent. The respondent sent voucher for Rs.66,000/ - dated 03.07.2002 to the petitioner on 26.08.2002. Dissatisfied with the same the petitioner wrote a letter to the respondent taking objection that the assessed amount of Rs.66,000/ - was too little. In the written objection, the petitioner had clearly stated that "we are ready to accept the same with objection, without any consent, without coming into any pressured and also reserving our legal rights to initiate legal procedure before the proper court".

AFTER receiving the objection application of the petitioner, the respondent had not given any reply to the petitioner till date. Not only that, the insurance company had not granted or dismissed the claim produced by the petitioner before it. Till today, the insurance company had not provided the report regarding the assessed amount of Rs.66,000/ - to the petitioner. The insurance company had also not provided the report to the petitioner in writing nor has it informed the petitioner about the same orally. In view of the huge damage caused to the house of the petitioner the independent surveyor of the petitioner had assessed the cost for the new construction of the house, work of new wooden doors, glazed tiles, cupboard, cotta -stone flooring etc. Hence, the amount as assessed by the independent surveyor of the complainant was just and proper, and by not accepting the same, the insurance company has shown lapses and negligence in service. Moreover by not making settlement of the claim of the petitioner in proper and appropriate time, the insurance company has not observed the provisions of insurance act.

HENCE , the petitioner prays that: I) The forum may kindly order the insurance company to pay the amount to the tune of Rs.3,56,596.30 as determined by the surveyor of the petitioner regarding the damages caused to the house of petitioner by notorious persons during the post Godhra riots, with interest at the rate of 18% per annum from the date of filing of the complaint;

II) The forum may further be pleased to pass an order of additional compensation to the tune of Rs.5000/ - from the insurance company herein;

III) Cost to the tune of Rs.3000/ - of the present complaint may be imposed and the same be recovered from the insurance company herein; and IV) To pass such other and further orders necessary in the interest of justice.

IN their reply before the District Forum, the opposite party/ respondent, while mainly denying the facts of the complaint stated that the survey had been made by the insurance company for the damages caused to the house of the petitioner and as per the panchanama the said house was having two floors, whereas the petitioner had caused to make survey of the house through his private surveyor and such survey had been made for three floors of the house. The age of the petitioner was 70 years and he was a retired person. The survey performed by the surveyor of the insurance company was proper and as per the same, the voucher for Rs.66,000/ - had been sent to the petitioner. The petitioner had denied to accept it. Hence, the complaint of the petitioner should be dismissed.

THE District Forum vide its order dated 24.02.2006 after hearing the both the parties gave the following order: "The opponent herein (6/2003) the Oriental Insurance Company Limited is hereby directed to get denovo survey in respect of the house of the complainant herein be carried out through approved surveyor who is having educational qualification of B E (Civil) Engineer within 45 days from the date of this order, whatever the amount of damages be assessed in the said survey shall be paid to the complainant herein, if the applicant is aggrieved by the said amount, then he may file fresh application in this regard in the present forum.

The opponent herein do hereby pay Rs.1000/ - as cost to the complainant herein within 45 days from the date of this order. The remaining prayers of the complainant herein stand rejected and accordingly this complaint stands disposed of".

THE petitioner filed an appeal no. 320 of 2006 against the order of the District Forum as his grievance was against the District Forum''s Order that the petitioner should file a fresh complaint after the respondent got denovo survey carried out from an approved surveyor. The State Commission were of the view that District Forum''s order that fresh complaint may be filed was not proper and hence, not tenable in law. Hence, the State Commission vide order dated 24.05.2007 gave the following order: "The appeal stands granted. The order passed on 24.02.2006 by the Mahesana District Consumer Disputes Redressal Forum below complaint bearing case no. 6 of 2003 stands dismissed.

The matter stands remanded and the District Forum is directed to proceed with and dispose of this matter afresh on merits within 45 days from the date of this order by making available both the parties opportunity of being heard".

THE respondent/ opposite party then got the re -survey done through Jagdish Associates who gave his report dated 20.04.2006 assessing the net amount payable to the insured as Rs.77,000/ -. Thereafter, the District Forum vide order dated 05.09.2007 partly allowed the complaint and gave the following order: "The present opponent insurance company is hereby ordered to pay Rs.3,56,596.30 with 9% interest from the date of filing of the present complaint (dated 18.01.2003) till its realisation to the applicant. The opponent is further ordered to pay Rs.2000/ - as cost of complaint to the applicant herein.

The opponent is hereby directed to pay the said amount to the applicant herein within 45 days from the date of this order, failing which the applicant shall be at liberty to initiate the proceeding for execution of this order against the opponent for recovery of the said amount.

The other reliefs sought by the applicant stands rejected".

AGGRIEVED by the order of the District Forum the respondents filed an appeal before the State Commission. Vide order dated 09.02.2011, the State Commission passed the following order: "3. The respondent has relied upon the survey report prepared by his surveyor Navinbhai S Patel, who has assessed the damages to the tune of Rs.3,56,596.30 and in this connection, the insurance company has appointed other surveyor namely Jagdishbhai Patel and he assessed the damages of the house to the tune of Rs.77,000/ -. But without taking into consideration the said report, the forum has passed impugned order.

In our opinion, the surveyor Navin S Patel has assessed the approximate amount for the damages but respondent Pirubhai Mansuri has not produced any evidence that how much expenses occurred, whereas the surveyor of insurance company Shri Jagdishbhai Patel has assessed the damages to the tune of Rs.77,000/ -. The respondent has not produced any evidence that how much actual expenses occurred in its whereas the surveyor of insurance company Shri Jagdishbhai Patel has assessed the damages to the tune of Rs.77,000/ - which is legal and proper. Hence, it is necessary to interfere in the order of the forum.

Hence, the appeal of the appellant insurance company stands partly allowed. 6. The order passed by the Forum on 05.09.2007 in complaint bearing no. 6 of 2003 stands set aside.

The appellant insurance company is hereby directed to pay Rs.77,000/ - as compensation for the damages caused to the house of insured person namely the respondent Pirubhai Mansuri and to pay Rs.2000/ - as costs him.

No order as to costs.

The appellant herein shall be returned to the tune of Rs.77,000/ - deposited as commission by them (appellant) with interest thereon".

HENCE , the present revision petition.

WE have heard the counsel for the parties and have carefully gone through the records of the case. Learned counsel for the petitioner has submitted that rather than relying on the report submitted by him from Shri Navinbhai S Patel, who had assessed the estimate of repair at Rs.3,56,596/ -, the State Commission had chosen to rely on the report of Jagdish Associates dated 20.04.2006, who had assessed the amount at Rs.77,000/ - based on the information, details of documents supplied by the Divisional Office at Mahesana. He further insisted that he should be reimbursed the amount as assessed by Shri Navinbhai S Patel.

LEARNED counsel for the respondent however, stated that the survey done by Jagdish Associates and Rajendra H Joshi were as per the terms and conditions of the insurance policy. The State Commission had relied on the survey done by Jagdish Associates in the year 2006, which was on the orders of the District Forum and hence, the State Commission had correctly came to the conclusions that only Rs.77,000/ - was payable.

IN the complaint the petitioner, himself, has stated that the "independent surveyor of the complainant has assessed about the new construction of the house, work of new wooden doors, glazed tiles, cupboard, cotta stone flooring etc." The fact that the assessment/ estimate prepared by Shri Patel is for new construction/ repair of the damaged house is supported by the estimate of the report on record which clearly states that it is the estimate of the repair to be done and not a survey report of the damage noticed during inspection. Besides, the survey was done without giving notice to the respondent and cannot be thus taken as survey and assessment of damages by an independent surveyor.

A reading of the survey of the report of Jagdish Associates also confirms that the entire house had since been sold and repaired. The report states as under: "We had informed in advance to the insured to remain present at the time of our visits on 29.03.2006 and 13.04.2006 to place of occurrence at Unjha in writing and by mobile phone, but insured did not remain present. During our visit it came to know that insured have sold out the insured property to other party and a new owner have repaired the entire building. New and present owner have shown their inability to give detailed information about the building history and details of riot event occurred on 28.02.2002. We prepared this final survey report based on the information, details and documents supplied by the Divisional Office at Mehsana. This report is confined to the claim of Pirubhai Gulabhai Mansuri only and prepared as on the base date of loss on 28.02.2002".

WE find that the State Commission has given a well -reasoned order for adopting the assessment of damages as made by Jagdish Associates, an independent surveyor on the orders of the District Forum. We find no reason to disagree with the same.

THE Hon''ble Supreme Court in Mrs Rubi (Chandra) Dutta vs M/s United India Insurance Co. Ltd., 2011 3 Scale 654 has observed: "Also, it is to be noted that the revisional powers of the National Commission are derived from Section 21 (b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view than what was taken by the two Forums. The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts. This is not the manner in which revisional powers should be invoked. In this view of the matter, we are of the considered opinion that the jurisdiction conferred on the National Commission under Section 21 (b) of the Act has been transgressed. It was not a case where such a view could have been taken by setting aside the concurrent findings of two fora."

THUS , we find that no jurisdictional or legal error has been shown to us in the impugned order to call for interference in the exercise of powers under Section 21 (b) of Act. The order of the State Commission does not call for any interference nor does it suffer from any infirmity or erroneous exercise of jurisdiction or material irregularity. Thus, the present revision petition is hereby, dismissed with no order as to cost.