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Judgment
R.K. Agrawal, J., President
The present Appeal has been filed against the Order dated 11.04.2012 passed by the State Consumer Disputes Redressal Commission Uttarakhand (hereinafter to be referred to as “State Commission”), whereby the Complaint filed by the Complainant was allowed and the Opposite Party Insurance Company was directed to pay a sum of ₹96,78,211/- alongwith interest @10%p.a. from the date of filing of the consumer complaint till the date of actual payment together with cost of ₹10,000/- the Complainant.
Brief facts of the case as narrated in the Complaint are that the M/s. Arora Housing Private Limited, (hereinafter referred to as the Complainant) was running an institute for education of the students under the name and style of “International Tourism Institute (India)” at its building situated at Jahangirabad Palace, Mallital, Nainital and also a hotel under the name and style of “Palace Resorts” in the same building mainly for the purpose of imparting practical training to the students of the said Institute. The Complainant renovated and furnished the said building for which it invested its own capital and also took a loan of ₹1.10 Crore from Punjab & Sind Bank (hereinafter referred to as the Opposite Party Bank). The Complainant obtained insurance of the said Building from National Insurance Company Ltd. (hereinafter referred to as the Opposite Party Insurance Company) w.e.f. 17.02.2000 to 16.02.2001. During the currency of the Policy on 16.01.2001 unfortunately the insured building caught fire and was completely destroyed. The Complainant informed the incident to the Opposite Party Insurance Company, who appointed Mr. V.D. Joshi for spot survey and M/s. Rohit Kumar & Co. for survey of the site and assessment of the loss. The Surveyor vide letter dated 30.04.2002 informed the Complainant that claim was adjusted for ₹96,78,211/- and asked the Complainant for giving its consent. As the Complainant was hard-pressed of the funds, it gave its consent vide letter dated 01.05.2002 for settlement of claim at ₹96,78,211/-. Despite that the said amount was not paid to the Complainant. After lot of follow-up, the Complainant was informed by the Insurance Company vide its letter dated 26.12.2003 that the claim was settled at ₹22,22,975/-. But the Insurance Company did not pay even the sum of ₹22,22,975/- as the Complainant wanted to accept this amount under protest, while on the other hand, the Insurance Company wanted that the Complainant should accept this amount as full and final settlement. Alleging deficiency in service and unfair trade practice on the part of the Opposite Parties, the Complainant filed a Consumer Complaint before the State Commission.
The Appellant Insurance Company contested the Complaint before the State Commission and submitted that the consent of the Complainant is not binding upon the Insurer and the insurer has right to pay or settle any claim at an amount different from the amount assessed by the approved surveyor or loss assessor; the survey report submitted by the M/s Rohit Kumar and Co. was prepared in the absence of requisite information and documents as such they could not accept the said report and appointed M/s. Atul Kapur & Co. to investigate, collect, co-relate and corroborate certain information, who with the help of their consulting engineer made thorough investigations / observations / verifications / inspections of the site, prepared a detailed report on 18.12.2003 which was sent to M/s. Rohit Kumar & Co., who prepared their supplementary report and finally assessed the loss at ₹22,22,975/- and they offered the said amount to the Complainant but they did not accept the same and opted to approach this Commission. It was submitted that there is no deficiency in service on their part and prayed that the Consumer Complaint be dismissed.
After hearing both the parties and perusal of material on record, the State Commission allowed the Complaint and directed the Appellant Insurance Company to pay to the complainant a sum of ₹96,78,211/- together with the interest @ 10% per annum from the date of filing the consumer complaint till the date of actual payment and ₹10000/- towards cost of litigation.
Feeling aggrieved by the Order dated 11.04.2012 passed by the State Commission, the Appellant Insurance Company has filed the present Appeal before this Commission.
Mr. Kishore Rawat, learned Counsel appearing on behalf of the Appellant Insurance company submitted that the area owned and insured by the Complainant was 1215 sq. mtr., which was used for Training Institute and Hotel Resort and consisted of 9 blocks/buildings. Only two buildings out of these 9 buildings were affected and damaged in the fire incident. The State Commission erred in observing that the assessment has been done taking the area of the premises at 4862 sq. mtr. therefore, the finding recorded by the State Commission should be set aside.
Per contra, Sh. Viksit Arora, learned Counsel for the Respondent, submitted that they have owned and insured only Buildings 1 & 2 out of the 9 Buildings. The Respondent/Complainant could not have insured any other Building except Building 1 & 2 since the same were never owned by them. He supported the Order passed by the State Commission as according to him the State Commission had passed a well-reasoned and justified order, which is based on a correct and rightful appreciation of evidence and material available on record and does not call for any interference.
We have heard Mr. Kishore Rawat, learned Counsel for the Appellant, Mr. Viksit Arora, learned Counsel appearing for the Respondent, perused the material available on record and given a thoughtful consideration to the various pleas raised by the Parties.
It is not in dispute that firstly the Surveyor has assessed the loss at ₹96,78,211/- but the Appellant Insurance Company appointed M/s. Atul Kapur & Co. to re-investigate the case and after its report, the first Surveyor, M/s. Rohit Kumar & Co., prepared their supplementary report and assessed the loss at ₹22,22,975/-. We find it a fit case to rely upon the Judgment passed by the Hon’ble Supreme Court in “New India Assurance Co. Ltd. v. Luxra Enterprises (P) Ltd., (2019) 6 SCC 36, wherein it has been held that it is not open to the Insurance Company to appoint another surveyor till such time it gets report / assessment in its favour by observing as under:-
“25. In fact, in the present case, it is evident that the claim of Rs 54,93,865 was accepted by the surveyor M/s Sunil J. Vora & Associates. The second surveyor M/s ABM Engineers & Consultants accepted the claim in the sum of Rs 24,76,585. The third surveyor R.G. Verma recommended total repudiation of claim. It is the third surveyor's report which subserved the interest of the Insurance Company which was made basis of repudiation of the claim of the complainant on the same day, when the report was furnished. We find that in view of the judgment in Sri Venkateswara [Sri Venkateswara Syndicate v. Oriental Insurance Co. Ltd., (2009) 8 SCC 507 : (2009) 3 SCC (Civ) 447] , it is not open to appoint another surveyor till such time, it gets a report in its favour. In fact, the appointment of the surveyors was to repudiate the claim of the complainant on one pretext or the other.”
Similarly in the present case, the appointment of M/s. Atul Kumar & Co. by the Appellant Insurance Company, was to minimize the loss assessment of the Respondent/Complainant on one pretext or the other.
Secondly, from the perusal of Maps, Sale Deed and other documents available on record, it is evident that the total area of the Building known as Jahangirabad Palace at Mallital, Nainital which consisted of 1 to 9 Blocks/Buildings, was 4862 sq. mts. and from a bare perusal of the sale-deed it is crystal clear that the Complainant/Respondent owned only 1215 sq. mtr. consisting of Blocks/Buildings 1 & 2 in which it was running its Institute for which it got insurance from the Appellant Insurance Company. The State Commission has dealt with all the issues in detail by observing as under:-
“12. Now we come to the fact of this case. There is no disputes on the point that the building known as Jahangirabad Palace situated at Mallital, Nainital is a group of nine buildings marked as Block-1,2,3,4,5,6,7,8 & 9 having an area of 4862.00 square meters. It is also not in dispute that the Complainant was running an institute in this building and it had renovated the building by investing its own capital and also by taking a loan of ₹1.10 crore from Punjab & Sind Bank-opposite party No.2. It is also not in dispute that a fire broke out in the building in which the institute was being run, on 16.01.2001. The main disputes is whether the Complainant owned the whole building or part of it. The insurance company has presumed throughout the process of setting the claim that the complainant owned the whole area and, accordingly, settled the claim at an amount of ₹22,22,975/-. The Complainant’s contention is that it purchased a part of the said building and not the whole Jahangirabad Palace. In evidence, it has produced the copy of the sale deed which is at Paper No. 308. Thus, it owned only 1215.00 square meters of the area and rest of the building was sold to other purchaser. The complainant had produced copies of some of such sale deeds also in support if its contention. Thus, we are of the view that the complainant owned only 1215.00 square meters of the area, which comprises Block 1 and Block 2 and the insurance company without any reasonable basis has presumed that it owned 4862.00 square meter of the area. This material information has misled the surveyor, who in turn, submitted the supplementary report reassessing the loss of ₹22,22,975/-
We also went through the surveyor’s report wherein the loss has been assessed at ₹96,78,211/- and found that the report is quite elaborate and the surveyor has discussed each every aspect of the case. He had sought relevant information and documents from the bank, and, therefore, report is based on relevant information and data. We do not find any reason as to why the insurance company appointed M/s Atul Kapur & Co. for reinvestigation and verification and of the first surveyor’s report. What we could see is that the basis for the reassessment was the misconceived fact that the complainant owned all the nine blocks of the said building and, accordingly when M/s Rohit Kumar & Co was asked to verify its report, the surveyor with this misleading information, reassessed the loss at ₹22,22,975/-. Without going through the minute detail of the calculation, we can see that if the total area of 4862.00 square meters was insured for ₹1.50 crore, as presumed by the insurance company, then the loss due to fire in Block Nos 1 and 2, having as area of 1215.00 square meters would come to ₹23 lacs approximately on pro-rata basis. Thus, the supplementary report cannot be accepted because the reassessment of loss is based on a misleading information, it would not be out of place to mention here that during arguments even the learned counsel for the insurance company somehow appeared to be agreeable with the fact that the complainant owned only 1215.00 square meters of the area comprising of the Block Nos 1 and 2 of the building. Thus, if this controversy whether the complainant owns 4862.00 square meters of area put to rest with a finding that the complainant actually owns an area of 1215.00 square meters, the controversy regarding estimated loss also come to an end. In other words, the original report submitted by the surveyor should be accepted wherein the loss has been assessed at ₹96,78,211/-.
For all these reasons, we are of the well considered view that the complainant is entitled to get an amount of ₹96,78,211/- against the insurance claim filed by him. Considering the facts and circumstances of this case he is also entitled to get adequate compensation for mental and physical agony and financial loss and also cost of litigation. Therefore, it would be just and proper that complainant should be awarded a higher rate of interest than the rate we generally award on the award amount in lieu of compensation. Therefore, we are of the view that an award of interest rate of 10% per annum on the said amount from the date of filing the consumer complaint till the date of actual payment and ₹10000/- towards cost of litigation would meet the ends of justice.
Accordingly, the consumer complaint is allowed against the Opposite Party Nos. 1 and 3, the Insurance Company. The opposite party Nos 1 and 3 are directed to pay to the complainant a sum of ₹96,78,211/- together with the interest @ 10% per annum from the date of filing the consumer complaint till the date of actual payment and ₹10000/- towards cost of litigation within 30 days from the date of this order. The consumer complaint is dismissed against the opposite party No.2.”
We do not find any ground to interfere with the well-reasoned Order passed by the State Commission. Consequently, the Impugned Order passed by the State Commission is upheld and the Appeal is dismissed being devoid of merit. Keeping in view the facts and circumstances of the case, there shall be no order as to costs.